Nationwide News Pty. Ltd Trading as the Centralian Advocate v Simon Townsend; Harvey Shore; Richard Jonothan Bradshaw and Phillip Howard Toyne [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: O'Leary C.J.,Nader,Asche JJ
• Judgment Date: 17 July 1986
• Docket Number: No. AP4 of 1986
• Date: 17 July 1986

(1986) 41 NTR 1

IN THE SUMPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

O'Leary C.J., Nader and Asche JJ.

No. AP4 of 1986

Nationwide News Pty. Ltd. Trading as the Centralian Advocate

and

Simon Townsend; Harvey Shore; Richard Jonothan Bradshaw and Phillip Howard Toyne

Counsel for the Applicant: B. Thomson QC P. Bracher

Counsel for the Respondent: T. Pauling QC K. Parish

Cases applied:

Ex Parte Bucknell (1936) 56 CLR 221

Fredericks v May 47 ALJR 362

Cases followed:

Adam P. Brown Male Fashions Pty. Ltd. v Phillip Morris Incorporated (1981) 148 CLR 170

Allen v The King 16 ALJR 255

Birkett v James (1977) 3 WLR 38

Brambles Holdings Ltd. v TPC (1979) 40 CLR 364

Bryce v Northland Greyhound Lines Inc. (1953) 8 WWR (N.S.) 202

Cocks In re Poole; In Ex parte (1882) 21 Ch D 397

Coulton and Ors. v Holcombe and Ors. (unreported) High Court 19 June 1986.

Darrel Lea (Vic) Pty. Ltd. v Union Assurance Society of Australia Ltd. (1969) VR 401

Dowson, Taylor and Co. v Drosphore (1895) 12 R 138

Duncombe v Porter (1953) 90 CLR 295

Ford v Blurton (1922) 38 TLR 801

Gilbert (deceased); Re the Will of (1946) 46 SR (N.S.W.) 318

Henry v The Commonwealth (1937) ALR 409

House v The King (1936) 55 CLR 499

Huntley v Alexander (1922) 30 CLR 566

McDermott v Collien (1953) 87 CLR 154

Martin v Iliffe (1984) 7 DLR (4th) 755

Norbis v Norbis (unreported) High Court 30 April 1986.

Thompson v Thompson (1942) 59 WN (N.S.W.) 219

Ward v James (1966) 1 QB 273

Wilcott v Canadian Accident and Fire Insurance Co. (1968) 70 DLR (2d) 8

Cases referred to:

Composite Buyers Ltd. v J.C. Taylor Constructions Pty. Ltd. (1983) 2 VR 311

Hawkings v Great Western Railway Company (1895) 14 R. 360

Lubans v Scougall (1965) Argus LR 119

Cases not followed:

B.H.P. Petroleum Pty. Ltd. v Dil Basins Ltd. (1985) VR 756

Demestre v A.D. Hunter Pty. Ltd. (1960) 77 WN 143

Monash University v Berg (1984) VR 383

Niemann v Electronic Industries Ltd. (1978) VR 431

Perry v Smith 27 VLR 66

Appeal — By leave only — From interlocutory judgment — Principles applicable by Court of Appeal considering application for leave — Supreme Court Act: s.53

Appeal — From discretionary judgment — Interlocutory matter — Principle applicable by courts in considering the appeal.

Practice and procedure — Application for a civil jury — Principles relevant to the considerations of the application — Juries Act: s.7.

Jury — Civil issue — Application for civil jury — Principles relevant to the consideration of the application — Juries Act: s.7.

JUDGE1

1 By Writ of Summons issued out of the court on 4 June 1984, the respondents (plaintiffs in the action) sued the applicants (defendants) claiming from the first applicant, as the publisher of the Centralian Advocate Newspaper, damages for libel arising out of certain articles published in that newspaper, and from the second and third applicants, as the Host and Executive Producer respectively of a certain television programme, damages for slander arising out of certain words spoken on that programme. In addition to the damages sought by them in the writ, the respondents now seek ‘aggravated and/or exemplary damages’ from the applicants, particulars of which have been supplied to them.

2 By their Amended Defence to the action, the applicants admit publication of the articles and the words complained of, but claim that they do not bear and were not understood to bear and are incapable of bearing or of being understood to bear any of the defamatory meanings alleged. Furthermore, they claim that certain of the articles published were fair comment on matters of public interest.

3 By Interlocutory Summons dated 12 March 1986 the applicants applied to the court for an order that ‘the issues and facts in issue in this action be tried by the court with a jury.’ That application was made pursuant to the provisions of s.7 of the Juries Act which is in these terms:

‘7(1) The trial of a civil issue or a question of fact in a civil issue shall be by the court without a jury unless the court orders otherwise in accordance with this section.

(2) A party to a civil issue may make application to the court for an order that the issue or a question of fact in the issue be tried by the court with a jury.

(3) Whether or not such an application has been made, the court may, if it appears just, order that a civil issue or a question of fact in a civil issue be tried by the court with a jury.

4 The application was heard by Rice J. who, in the result, refused it. The applicants now apply to this court for leave to appeal from that decision. It is conceded that the order of dismissal of the application is an interlocutory order, and, therefore, that leave to appeal is necessary, as provided by s.53 of the Supreme Court Act. That section is in these terms:

‘53. A party to a proceeding may not appeal under section 51(1) from an interlocutory judgment except by leave of the Court of Appeal constituted by not less than 3 judges’.

‘Judgment’ is defined in s.9 of the Act to include an ‘… order, … and a refusal to make an order, …’.

5 Besides an application for leave to appeal, the applicants have also filed a Notice of Appeal, in the event that leave should be granted. The grounds set out in the Notice of Appeal are —

‘GROUNDS:

3. The learned judge was wrong in holding that it was necessary for the applicants to show some special reason making it open that justice might possibly not be done if the trial was before a judge, and that on the other hand justice would be done if the trial was before a jury before ordering a jury.

4. The learned judge was wrong in holding that there was an onus on the applicant to satisfy him that possible justice might not be done if the trial was before a jury.

5. The learned judge was wrong in holding that once it was conceded that a fair trial could be had by a judge alone, the application must fail.

6. The learned judge should have held that he had an unfettered discretion given to him by the Act and on the facts of this case should have exercised that discretion in favour of ordering trial by jury.

6 The initial matter to be considered by the Court is the application for leave to appeal, and, since this is the first such application to come before the Court, I think it would be as well if I were to state what I perceive to be the principles that should guide the court, and the considerations that it should take into account, in deciding whether or not leave to appeal should be granted in a case such as this. Before coming to consider that question, however, I think two preliminary matters should be noted. First, that, if leave be given, the appeal would involve a consideration by the court of the exercise of a discretion vested in the learned primary judge. Secondly, that the discretion here in question is in the making of an interlocutory order in a matter of practice and procedure, namely, the mode of trial of the action. To put the question in its true perspective, I think I should say something shortly about each of those matters.

7 The principles which should guide a Court of Appeal when sitting on appeal from a discretionary order or judgment are well known. They were expressed by the High Court in House v The King (1936) 55 CLR 499, at 504–505 in these terms:

‘It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

8 Where, however, the appeal is from the exercise of a discretion in a matter of practice or procedure, the approach of an appellate court is rather more stringent. In Thompson v Thompson (1942) 59 WN (N.S.W.) 219, Jordan C.J. expressed the difference in these terms (at 220):

‘It is established by the authorities that if an appeal lies from the exercise of a discretion which is determinative of substantive legal rights, the appellate court must exercise its own discretion: In Re Ryan 23 SR 354, but if it lies from the exercise of a discretion in a matter of practice or procedure, a Court of Appeal will not as a general rule interfere unless it is satisfied that the judge has applied a wrong principle of law or that injustice will result from his order, and only if it clearly satisfied that he is wrong: Evans v Bartlam (1937) AC 473 at 480, 481 and 486–7, and Charles Osenton and Co. v Johnston (1942) AC 130.’

9 In the later case, however, of Demestre v A.D. Hunter Pty. Ltd. (1960) 77 WN 143 the Full Court of the Supreme Court of New South Wales (Street C.J., Owen J. and Hardie A.J.) expressed the relevant principle somewhat differently when it said (at 146):

‘An interlocutory order for an injunction is a matter of practice and procedure … and, in such a case, an appellate court should not … interfere with the exercise by the judge of first instance of his discretionary power unless a clear case has been made out that he has acted on some wrong...