HARVEY v MEDIAWORKS HOLDINGS LIMITED [2019] NZHC 1414

HARVEY v MEDIAWORKS HOLDINGS LIMITED [2019] NZHC 1414 [20 June 2019]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECIV-2018-441-86[2019] NZHC 1414BETWEEN DAMON JOHN HARVEYPlaintiffAND MEDIAWORKS HOLDINGS LIMITEDDefendantHearing: 10 June 2019Appearances: A Romanos for plaintiff/respondentJ Graham and L Fraser for defendant/applicantJudgment: 20 June 2019JUDGMENT OF ASSOCIATE JUDGE JOHNSTON[1] The plaintiff, Mr Damon Harvey, is a Hastings District Councillor and a localbusinessman. The defendant, Mediaworks Holdings Ltd, is a broadcaster and amongstother activities broadcasts the TV3 evening news show Newshub.[2] On 20 January 2018, Newshub featured a news item related to the abortedlaunch by a concern known as Rocket Lab of a rocket from Mahia Peninsular inNorthern Hawkes Bay. The following day, Newshub broadcast a second news item onthe same subject.[3] The plaintiff commenced this proceeding a little over eight months later, on4 October 2018. He pleads that, properly understood, either on the ordinary meaningof the words used, or by implication, the articles, which identified him by name, meantthat he was responsible for the launch having to be aborted, or at least that there weregrounds for suspecting this. He says that is untrue and defamatory. He claims general,aggravated and punitive damages.[4] Section 43(1) of the Defamation Act 1992 provides that a plaintiff indefamation proceedings commenced against a broadcasting organisation may notidentify the quantum of his or her claim in the statement of claim. Accordingly, theplaintiff has not done so. That leaves the quantum of his claim at large.[5] Having commenced his claim in this Court, the plaintiff has filed and served ajury notice pursuant to s 16(1) of the Senior Courts Act 2016, which provides:A party to a proceeding for defamation, false imprisonment, or maliciousprosecution may, on giving notice in accordance with the High Court Rules,require a proceeding to be tried by a High Court Judge with a jury.[6] By interlocutory application dated 1 March 2019, the defendant applies for:(a) an order pursuant to s 16(4) of the Senior Courts Act that the case betried by a judge sitting alone (without a jury);(b) an order pursuant to s 94(1) of the District Court Act 2016 for thetransfer of this proceeding to the District Court.[7] A word or two about the orders sought. First, it appears to me that they mustnecessarily be addressed in the order I have summarised them (which reverses theorder in which Mr Graham addressed them before me) because only in this Court canthere be a trial by a judge and jury. Such trials do not occur in civil cases in the DistrictCourt. Accordingly, if, in terms of s 16(4), the plaintiff is entitled to have his claimtried by a judge and jury, the transfer of the proceeding to the District Court woulddeprive him of that entitlement. Second, the issue of the transfer of the proceeding tothe District Court is complicated by the inability of the plaintiff to plead the quantumof damages sought. The jurisdiction of the District Court is limited to claims for$350,000 or less.1 In a formal pleadings sense, we do not know what damages theplaintiff is claiming. I will need to return to this.1 District Court Act 2016, s 74(1)(a).Judge and jury or judge alone[8] In the past, most substantial civil litigation was tried before a judge and jury.2In the United States, that is still the case.3 But in this country, like most of the commonlaw world, the overwhelming majority of civil litigation is tried before a judge alone.[9] Section 15 of the Senior Courts Act provides:(1) A civil proceeding must be tried before a High Court Judge sittingalone.(2) This section is subject to section 16.[10] Under s 16, only cases in which the cause of action involves the torts ofdefamation, false imprisonment or malicious prosecution can be tried before a judgeand jury, and then only when one of the parties "require[s]" this under s 16(1) or (2),as the plaintiff has done here.[11] In the course of argument, Mr Romanos referred to the "right" of a party insuch litigation to have it tried before a judge and jury. While there is a right to trial byjury in criminal cases where the maximum penalty for the offence is two or more yearsimprisonment, that right does not extend to civil matters.4 Nevertheless, whenproposing the provision now contained in s 16, the Law Commission recommendedthat civil jury trials be available "as of right" in the specified categories of cases.5 Ifit is correct to describe this as a right, then at most it is a qualified one because it is aright that exists only so long as a Judge does not conclude otherwise under s 16(4),which provides:(4) A High Court Judge may, on the application of either party, order thata proceeding for defamation, false imprisonment, or maliciousprosecution or any issue in the proceeding be tried before a Judgewithout a jury if it appears to the Judge before the trial that the trial ofthe proceeding or the issue will—2 See Conor Hanly "The Decline of Civil Jury Trial in Nineteenth-Century England" (2005) 26 JLegal Hist 253. The demise of civil jury trials in England is often traced to the enactment of theCommon Law Procedure Act 1854 (UK), which allowed parties in civil cases before the RoyalCourts to opt for a judge-alone trial.3 See United States Constitution, amend VII.4 New Zealand Bill of Rights Act 1990, s 24(e).5 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126,2012) at 121.(a) involve mainly the consideration of difficult questions of law;or(b) require any prolonged examination of documents or accounts,or any investigation in which difficult questions in relation toscientific, technical, business, or professional matters arelikely to arise, being an examination or investigation thatcannot conveniently be made with a jury.[12] The defendant's primary contention as to why this proceeding should be triedby a judge alone is that it involves "mainly the consideration of difficult questions oflaw". In this regard, the defendant points to the fact that it has pleaded the affirmativedefence of public interest communication recently articulated by the Court of Appealin Durie v Gardiner.6 The public interest communication defence essentially requiresthe defendant to establish that the publication concerned a matter of public interest andthat its reporting of it was in all respects responsible.[13] As Mr Graham submitted, the Court of Appeal held that the public interestcommunication defence raises subtle mixed questions of fact and law that must bedetermined by one decision maker — that is to say, a Judge. He went on to argue that,as this constitutes the defendant's primary affirmative defence, the trial will thereforeinvolve "mainly the consideration of difficult questions of law". I do not accept thissubmission.[14] The Court of Appeal in Durie v Gardiner did not say — or even suggest —that cases in which the affirmative defence is pleaded cannot be tried by a judge andjury, or are unsuitable for determination by a judge and jury. All the Court said wasthat, where the defence is raised, that defence must be determined by a judge becausethe issues of fact and law that it raises are so interwoven.7[15] Standing back from the matter, it does not appear to me that this case will, asMr Graham contended, involve mainly difficult issues of law. It will involve the usualrange of issues in defamation cases, some of which are issues for the Judge (whetherthe language used is capable of being defamatory and the merits or otherwise of the6 Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131.7 At [62]–[63].defendant's affirmative defence), and some of which are quintessentially jury issues(whether the plaintiff was in fact defamed and the quantum of any award of damages).[16] The defendant also says that this proceeding should not be tried before a judgeand jury but before a judge sitting alone because that will "reduce the complexity andlength of the trial". It will not affect the complexity of the case. The same issues willarise. Simply, it will mean that they must all be determined by a judge. Assumingthat it is relevant to this issue, I accept that it would likely mean that the trial wouldbe shorter.[17] Mr Graham continued by submitting that, if the matter were to be tried beforea judge and jury, the jury would have to be stood down in order to enable the judge torule on the public interest communication defence, which would give rise afragmented and lengthy decision-making process.[18] There is something in this. However, in the end, I do not see this as being verydifferent from a criminal trial in which a judge has to rule on the admissibility ofevidence in the absence of a jury.[19] In support of this aspect of his argument, Mr Graham produced a table in whichhe compared the time that would be occupied by a trial in this Court before a judgeand jury and a trial before a judge alone. Mr Graham's analysis also extended to atruncated judge alone trial in the District Court. I have not had regard to this as I donot feel able to assess at this stage what form of trial might be directed in that Court.On his analysis, trial in this Court before a judge and jury would take seven dayswhereas a trial before a judge alone would take four — 43 per cent less. That isprobably not unrealistic, although I have to say that aspects of Mr Graham's analysissurprise me. One example is that he allows two sessions (the entire Monday morning)for the empanelling of a jury, which I would have thought would be unlikely to occupyany more than an hour). Be that as it may, even on Mr Graham's analysis, I do not seethe difference between the time likely to be occupied by a trial before a judge and juryand by a trial before a judge sitting alone as being a decisive factor.[20] There is a reason why trial by a judge and jury has been retained in a narrowarea of civil law. The decision to retain it in the case of defamation, false imprisonmentand malicious prosecution is not a mere matter of caprice. The common denominatorof these causes of action is that they are proceedings where, in the words of theLaw Commission, "the loss relates to reputation, liberty, or sanctity of the person,where damages are 'at large'".8 In the case of defamation, the core remedy beingsought by a plaintiff is vindication of an "injury to the esteem in which the plaintiff isheld by his or her fellow citizens".9 In all three cases, a jury is better placed todetermine the appropriate remedy because that will depend on how society valuesreputation and liberty at the time.10 That explains the observations made by HarrisonJ in Williams v Craig that the primary remedy for a plaintiff in defamation proceedingsis a determination that any cloud cast over his or her reputation is wrong;compensatory damages are a secondary element.11 There is an understandable sensein which a plaintiff seeking that primary remedy may wish vindication to come fromtwelve of his or her peers in the form of a jury rather than from a determination madeby a puisne judge.[21] Against that background, in my view, a Court should not lightly deprive a party— perhaps particularly a plaintiff, though of course the same principles apply in thecase of a defendant — of the prima facie entitlement to have his or her case tried by ajudge and jury, unless it is clear that such a mode of trial is inappropriate having regardto the considerations set out in s 16(4) of the Senior Courts Act. In the course ofargument Mr Graham referred me to the judgment of Associate Judge Bell in Craig vStiekema.12 There is a sense in which the approach I take to this issue is different fromthat adopted by the Associate Judge in that case. It is probably fair to say that I aminclined to place considerably more emphasis on the importance of the so called rightto elect trial by a judge and jury. But, in any event the circumstances of the two casesappear to me to be materially different, not least because in Craig v Stiekema thequantum of damages were pleaded and fell with jurisdiction of the District Court.8 Law Commission, above n 5, at [11.11].9 At [11.4].10 At [11.12]–[11.14].11 Williams v Craig [2018] NZCA 31, [2018] 3 NZLR 1 at [32].12 Craig v Stiekema [2017] NZAR 633.[22] Whilst this case will involve the consideration of the (relatively) difficultquestions of fact and law associated with its affirmative defence, and a trial before ajudge and jury will certainly take longer than would a trial before a judge sitting alone,I do not accept that the case will "involve mainly the consideration of difficultquestions of law". Certainly, the scope of this proceeding appears to be relativelycontained compared with other recent defamation proceedings, some of which weretried before a judge and jury.13[23] Accordingly, I am not prepared to order that the trial take place before a judgesitting alone.Transfer of proceeding[24] For the reasons referred to earlier, declining the application for an order thatthis case be tried by a judge sitting alone makes it inappropriate to grant the secondcomponent of the application — to transfer the proceeding to the District Court. Todo so would be to render nugatory the plaintiff's prima facie entitlement to a trial bya judge and jury, and the associated importance of that election, as addressed above.[25] In any case, there is a further reason why it would be inappropriate to grant thedefendant's application to transfer the proceeding to the District Court. As alreadysaid, the jurisdiction of the District Court is limited to claims for $350,000 or less.That jurisdictional limit is based on the amount of the plaintiff's claim, not on whetherthe plaintiff's claim is a realistic one.[26] In the course of argument, Mr Graham referred me to the schedule appendedto the Supreme Court's decision in Craig v Williams and submitted that even if theplaintiff were to be entirely successful, the damages he might expect to recover wouldbe in the order of tens of thousands.14 He submitted that I should make an assessmentof the probable outcome in terms of damages in the event of the plaintiff being13 See, for instance, Arnold v Stuff Ltd [2018] NZHC 1641, where the Question Trail was 63 pageslong. By contrast, Mr Romanos estimates that the Question Trail in the present case is likely tobe only one page long.14 Craig v Williams [2019] NZSC 38.successful and, if I concluded that that would be likely to be less than $350,000, Ishould treat that as the quantum of the claim.[27] As it happens, I am inclined to agree that any damages award in this case islikely to be in the range Mr Graham suggests, though I only feel able to say so becausemy view as to that is neither here nor there.[28] The position is that the plaintiff is precluded from identifying in his pleadingswhat amount of damages he claims. In the course of argument, Mr Romanos told methat the plaintiff's case would be opened on the basis that he was seeking in excess of$350,000. He went on to explain why the plaintiff took the view that he was entitledin this case to substantial damages by reference to various aspects of the case that it isunnecessary to go into here. I treat that unequivocal statement from counsel assomething that I am unable to look beyond, and I accept that the case will be openedon that basis.[29] That being so, whatever view I might take of the likely outcome in terms ofdamages in this case, I must proceed on the basis that the plaintiff is claiming in excessof $350,000. Accordingly, it does not seem to me that there is any room for an orderfor a transfer.[30] This conclusion, to which I regard myself as compelled, may of course berelevant to costs issues at a later stage in this proceeding.[31] Before turning from this topic, I wish to make it clear that, at least in caseswhere neither party seek trial before a judge and jury, I align myself entirely with theobservations made by Associate Judge Bell in Human Resources Institute of NewZealand v Elephant Training and HR Ltd that the High Court should not be seen as thesole venue for defamation litigation and that there is no reason whatsoever whydefamation litigation cannot to be dealt with in the District Court.1515 Human Resources Institute of New Zealand Inc v Elephant Training & HR Ltd [2015] NZHC2739.[32] However, in this case, because of the plaintiff's wish for trial before a judgeand jury, and because of the particular circumstance of the plaintiff being precludedfrom identifying the quantum of his claim against this defendant, and counsel'sexpress indication to the Court that the case will be opened on the basis that it is aclaim for in excess of $350,000, I cannot see that it would be appropriate to transferthe proceeding.[33] For those reasons, I am not prepared to grant the defendant's application for atransfer of this proceeding to the District Court.Summary of conclusions[34] Accordingly:(a) The defendant's application for an order that this matter be tried by ajudge sitting alone is dismissed.(b) The defendant's application for an order transferring this proceeding tothe District Court is dismissed.[35] I reserve costs, not having heard from counsel in relation to them. If counselare unable to agree on costs — as I would expect them to be able to do — then theymay refer the matter back to me by memorandum and I will deal with costs on thepapers.Associate Judge JohnstonSolicitors:Brown & Bates, Napier for plaintiff/respondentChapman Tripp, Auckland for defendant/applicant