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District Court 6 December 2018

Hang v Nguy (No. 2)

[2018] NSWDC 373

Other
TORT DEFAMATION EXTENT OF PUBLICATION LIMITED APPLICATION DISMISSED WITH COSTS

Citation: Hang v Nguy (No. 2) [2018] NSWDC 373
Court: District Court of New South Wales
Date: 6 December 2018
Judge: Gibson DCJ

Background

The plaintiff brought defamation proceedings against 18 members of a Buddhist temple organisation in New South Wales (the Australian Kin Fu Ma Zu Association Inc, which had approximately 52 members). The dispute arose from a statement prepared and signed by committee members on 23 February 2016, setting out reasons why they proposed to remove the plaintiff from his position in the association. That statement was published in both English and traditional Chinese, giving rise to three matters complained of, all stemming from essentially the same publication on the same day.

The extent of publication was limited: the primary publications were between the defendants themselves, with potential republication to other temple members and, less likely, to the broader public. The defendants pleaded a range of defences, including statutory qualified privilege, honest opinion, justification, contextual truth, and unlikelihood of harm.

The defendants filed a Notice of Intention to Elect Trial by Jury. The plaintiff then applied under s 21(1) and/or s 21(3) of the Defamation Act 2005 (NSW) for an order dispensing with the jury, arguing that various features of the case made it unsuitable for jury determination.

  • Whether the court should exercise its discretion under s 21(1) of the Defamation Act 2005 (NSW) to dispense with a jury, notwithstanding a defendant's election for jury trial.
  • Whether the specific circumstances of the case met the s 21(3) grounds for dispensing with a jury, namely: (a) that the trial requires a prolonged examination of records, or (b) that the trial involves technical, scientific or other issues that cannot be conveniently considered and resolved by a jury.
  • Whether the "cumulative burden" of multiple factors, including foreign-language evidence, interpreter use, potential expert accounting evidence, a large number of defendants and witnesses, and a lengthy trial, warranted dispensing with a jury.

Decision

Gibson DCJ dismissed the application. The court held that neither individually nor cumulatively did the factors raised by the plaintiff reach the threshold required to displace the defendants' election for jury trial.

On the question of language and interpreter use, the court observed that documents in traditional Chinese would require translation for a judge in any event, so this factor did not distinguish a jury trial from a judge-alone trial. The use of interpreters and translated documents is not uncommon in the District Court, and the court declined to accept that juries are poorly placed to assess such evidence.

On the complexity of the defences, including the justification defence and its alleged engagement of numerous combinations of offences under the Crimes Act 1900 (NSW), the court found the plaintiff's characterisation of the issues overstated. Juries routinely assess allegations of dishonesty and financial misconduct in criminal proceedings, often in more complex and distressing circumstances than those presented here. The court noted that the submission that a judge is superior to a jury in assessing criminal misconduct was a surprising one, given the central role of juries in the criminal trial system.

On the question of the large number of defendants, witnesses, and the anticipated trial length, the court was unpersuaded that these features created an unreasonable burden on a jury. The court observed that the District Court is a principal jury trial court in Australia and routinely handles lengthy and complex matters involving expert evidence and translated material. The court was also satisfied that the knowledge of a jury trial would encourage the parties to present the issues clearly and efficiently, consistent with the overriding purpose in ss 56 to 62 of the Civil Procedure Act 2005 (NSW).

Orders Made

  • The plaintiff's application to set aside the Notice of Intention to Elect Trial by Jury filed on 12 September 2018 and to dispense with a jury was dismissed.
  • The plaintiff was ordered to pay the defendants' costs, with liberty to apply.

Key Takeaways

  • The District Court confirmed that the discretion under s 21(1) of the Defamation Act 2005 (NSW) to dispense with a jury must be exercised judicially, with reference to the particular facts of each case and the interests of justice.
  • Under s 21(3), the relevant grounds are whether the trial requires a prolonged examination of records, or involves technical or scientific issues that cannot be conveniently resolved by a jury; "conveniently" means without substantial difficulty compared to a judge-alone process.
  • The presence of foreign-language documents and interpreter-assisted evidence does not, in itself, warrant dispensing with a jury, particularly where translation would be required regardless of whether the tribunal of fact is a judge or jury.
  • A cumulative approach to multiple complexity factors is a recognised basis for an application under s 21, but the court found that no combination of the factors raised here, including interpreter use, expert accounting evidence, numerous defendants, and a lengthy anticipated trial, was sufficient to cross the threshold.
  • In dismissing the application, the court emphasised the fundamental and well-established role of juries in the District Court, noting their regular exposure to complex evidence, including expert financial testimony and translated material, in criminal proceedings.

Legislation and Cases Referenced

Legislation:
- Defamation Act 2005 (NSW), ss 21, 30
- Civil Procedure Act 2005 (NSW), ss 56 to 62
- Crimes Act 1900 (NSW), ss 192E, 192G, 192H
- District Court Act 1973 (NSW), s 76B
- Defamation Act 1974 (NSW), s 7A
- Supreme Court Act 1970 (NSW), s 86

Key Cases:
- Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315
- Ange v Fairfax Media Pty Ltd [2010] NSWSC 1383
- Goldsworthy v Seven Network Limited [2013] NSWSC 344
- Mallik v McGeown [2008] NSWSC 129
- Trantum v McDowell [2007] NSWCA 138
- Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379
- Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79
- Wagner v Harbour Radio Pty Ltd [2017] QSC 222
- Rayney v Western Australia (No 7) [2016] WASC 288
- Perera v Genworth Financial Mortgage Insurance Pty Ltd [2017] NSWCA 19
- Kencian v Watney [2015] QCA 212
- Setka v Abbott (2014) 44 VR 352
- David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667