David Syme & Co v Swinburne [1909] HCA 92

David Syme & Co v Swinburne [1909] HCA 92

The majority of the High Court held that there was no ground for setting aside the judgment or for ordering a new trial. The conversation between the juror and the clerk did not constitute enough for a mistrial as there was no substantial fairness at risk; the trial judge was entitled to rely on the unsworn statement of the juror, especially as no objection was raised at the time; the jury was not properly discharged as their discharge had not been acted upon; and the damages awarded were not excessive given the gravity of the libel and the public position of the plaintiff.

Parties
Appellant: David Syme & Co.; Respondent: George Swinburne
Jurisdiction
Australia
Judgment Date
15 March 1909
Procedural Posture
Appeal / On Appeal From the Supreme Court of Victoria
Outcome
appeal dismissed
Legal Topics
Libel, Fair Comment, Jury Discharge, New Trial, Misconduct of Juryman, Damages, Procedural Irregularity
Defamation Civil Procedure Libel Fair Comment Jury Discharge New Trial Misconduct of Juryman Damages +1 more

Case Brief

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Parties

David Syme & Co.

Appellant

George Swinburne

Respondent

Procedural Posture

Appeal / On Appeal From the Supreme Court of Victoria

Legal Issues

  1. 1 Whether a conversation between a juryman and a party's representative is sufficient grounds for a new trial.
  2. 2 Whether unsworn statements by a juryman could be considered by the trial judge.
  3. 3 Whether the jury was effectively discharged when jury fees were not paid and, if so, whether it could be recalled.

Ratio Decidendi

The majority of the High Court held that there was no ground for setting aside the judgment or for ordering a new trial. The conversation between the juror and the clerk did not constitute enough for a mistrial as there was no substantial fairness at risk; the trial judge was entitled to rely on the unsworn statement of the juror, especially as no objection was raised at the time; the jury was not properly discharged as their discharge had not been acted upon; and the damages awarded were not excessive given the gravity of the libel and the public position of the plaintiff.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed with costs.