Deirdre Frances O'Connor v Nationwide News Pty Limited [1995] ACTSC 112 (24 October 1995)

SUPREME COURT OF THE ACT

DEIRDRE FRANCES O'CONNOR v. NATIONWIDE NEWS PTY LIMITED
No. SC8 of 1995
Number of pages - 15
Courts and Judicial System - Defamation - Legal Practitioners - Practice and
Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Courts and Judicial System - application to transfer proceedings to Supreme Court of New South Wales - cross-vesting - balance of convenience - whether reasonable apprehension of bias by reason of judicial status - whether interests of justice require a transfer of the proceedings.

Defamation - nationally distributed newspaper article - right to freedom of political discussion - whether issues suitable for jury trial rather than by judge alone.

Legal Practitioners - independence of commissioners.

Practice and Procedure - trial by jury - politically sensitive issues - whether trial by jury to be preferred to trial by judge alone.

Jurisdiction of Courts (Cross-Vesting) Act 1987, s5(2)

Supreme Court Act 1933 (ACT),ss14, 22(2)
Defamation Act 1974 (NSW), ss7A, 46
Judiciary Act 1903 (Cth), s40(2)
Industrial Relations Act 1988 (Cth), ss28, 43, 44, 88A, 89, 90, 299
Juries Act 1967 (ACT), s32

Dawson v Baker (1994) 120 ACT R 11
McKain v RW Miller and Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1
Stevens v Head [1993] HCA 19; (1992-93) 176 CLR 433
Andrews v John Fairfax and Sons Ltd (1980) 2 NSWLR 225
Baffsky v John Fairfax and Sons Ltd (1990) 97 ACTR 1
Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd,

unreported, Supreme Court, Australian Capital Territory, Miles CJ, 19 July 1989
Wood v Guenther, unreported, Supreme Court, Australian Capital Territory, Higgins J, 5 November 1993

R v Watson; ex parte. Armstrong [1976] HCA 39; (1976) 136 CLR 248
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342
Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Fingleton v Ivanoff Pty Ltd (1976) 14 SASR 530
Re McCrory; Ex parte Rivett (1895) 21 VLR 3
Barton v Walker (1979) 2 NSWLR 740
Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78
Sankey v Whitlam (1977) 1 NSWLR 333
R v Murphy [1985] HCA 50; (1985) 158 CLR 596
John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706
Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356
John L Williams (Solicitor) (trading as a firm) v Beesley (1973) 1 WLR 1295;

(1973) 3 All ER 144
Trustees of the Christian Brothers v Cardone, unreported, Federal Court of Australia, Canberra, Gallop, Wilcox and Ryan JJ, 20 June 1995

Lubans v Scougall (1965) ALR 119
Attorney-General of the Commonwealth of Australia v The Queen (The

Boilermakers' Case) [1957] HCA 12; (1957) 95 CLR 529

Nationwide News Pty Ltd v Wills [1992] HCA 46; (1991-92) 177 CLR 1
Theophanous v Herald and Weekly Times Ltd (1994) 68 ALJR 713
Nationwide News Pty Ltd v Bradshaw [1986] NTSC 40; (1986) 84 FLR 49

HEARING

CANBERRA, 2 August 1995
24:10:1995

Counsel for the Plaintiff/Respondent: Mr J.S. Wheelhouse

Instructing Solicitors: Mallesons Stephen Jaques

Counsel for the Defendant/Applicant: Mr W.H. Nicholas QC with
Mr T.C. Blackburn

Instructing Solicitors: Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:
1. The application for transfer be refused.
THE COURT DIRECTS THAT:
1. Should this matter be listed for trial, the mode of trial be with a jury.

DECISION

HIGGINS J On 5 January 1995 the plaintiff commenced proceedings in this Court for damages for defamation. The matter complained of was an article published in the Weekend Australian of 24 December 1994. The defendant admits that it was the publisher of that newspaper article.

2. The defendant has applied for an order that this claim be transferred to the Supreme Court of New South Wales pursuant to s5(2) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (Cross-Vesting Act). Alternatively, it seeks an order that trial of the proceedings be with a jury pursuant to s22(2) of the Supreme Court Act 1933 (ACT) (Supreme Court Act).

3. The grounds for the application under the Cross-Vesting Act, as expressed by the supporting affidavit, are that,

(a) a reasonable apprehension of bias would thereby be avoided;
(b) the parties have a more substantive connection with the State of
New South Wales; and
(c) the balance of convenience to parties and witnesses favours the
Supreme Court of New South Wales.

4. Section 5(2) of the Cross-Vesting Act, insofar as it is relied upon by the defendant, provides as follows,

(2) Where:
(a) a proceeding (in this subsection referred to as the "relevant
proceeding") is pending in the Supreme Court of a State or
Territory (in this subsection referred to as the "first court");
and
(b) it appears to the first court that:
...
(iii) it is otherwise in the interests of justice that the
relevant proceeding be determined by the Supreme Court of another
State or Territory;
the first court shall transfer the relevant proceeding to that
other Supreme Court.

5. What is or may be "in the interests of justice" will depend very much on the circumstances of the case and the situation of the parties.

6. In Dawson v Baker (1994) 120 ACT R 11, I set out, at 25, those factors which will usually be relevant in deciding that issue. However, that list is not exhaustive.

7. Some of those factors are of little or no relevance in the present case. The alleged defamation was carried by a national newspaper distributed nearly simultaneously in all parts of Australia. The substantive law to be applied, whilst varying according to the place of publication, will not vary according to the place of trial: see McKain v RW Miller and Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1. The rules as to assessment of damages will vary according to the forum chosen for trial: see Stevens v Head [1993] HCA 19; (1993) 176 CLR 433. Under the law of the State of New South Wales, damages recoverable in that State are not to include exemplary damages nor are they to be exacerbated by the malice or other "state of mind" of the publisher: see s46 Defamation Act 1974 (NSW) (Defamation Act). That, arguably, could create a difference in the result of the case if litigated in New South Wales rather than this Territory. However, the Statement of Claim does not seek exemplary damages. The reply does allege express malice. However, that is not expressed to be relied upon as to the issue of damages. Rather it is pleaded as a response to the defences pleaded by the defendant. However, malice or other "state of mind" may, even in New South Wales, despite s46, be relevant to the assessment of damages otherwise than for the purpose of exacerbation: see Andrews v John Fairfax and Sons Ltd (1980) 2 NSWLR 225.

8. Whether the method of assessment of damages is regarded as substantive or procedural, it seems to me that little turns on it as a point of difference between this Court and the suggested alternative.

9. Otherwise, the only suggested procedural difference was the availability of trial by jury in the State of New South Wales. The Defamation Act was amended so as to limit the role of juries in defamation trials. However, that amendment (s7A) applies only to the trial of causes of action accruing after the commencement of the amendment. The amendment was assented to on 12 December 1994 but commenced on 1 January 1995. The causes of action in this case allegedly accrued on or shortly after 24 December 1994. Therefore, that amendment would not apply to the trial of this action should it occur in New South Wales.

10. However, whilst only available if specially ordered, trial by jury is a possible mode of trial in this Territory: see Supreme Court Act s22(2). The role of the jury is not limited to particular issues.

11. Otherwise, there seems little, if any, forensic advantage or detriment to either party arising out of the plaintiff's choice of forum.

12. In view of the nationwide character of the defendant's newspaper and the national character of the subject matter of the article, there was nothing unusual in the choice by the plaintiff of this Territory as the place to commence proceedings. Indeed, as publication took place in this Territory, and the defendant has a place of business here, the plaintiff had a right to sue here and, but for the Cross-Vesting Act, this Court would have been obliged to try the case.

13. The plaintiff resides in Sydney. Her chambers, as President of the Industrial Relations Commission, are in Sydney. The defendant's headquarters are in Sydney.

14. Those connections are, however, of only peripheral significance, though they may affect cost and convenience. In Baffsky v John Fairfax and Sons Ltd (1990) 97 ACTR 1, the matter clearly had a greater connection with Sydney, both as to subject matter and as to residence of parties and witnesses, than is the case here. In Baffsky (supra) the plaintiff feared that a jury might be biased because of the reference in the matter complained of to his alleged connection with a notorious reputed criminal. Hence he commenced proceedings in this Territory where there had also been publication. However, it seemed to me inappropriate to have given weight to that consideration. In my view it was not proper to support or appear to support a suggestion that a fair trial would be prejudiced by such a circumstance whether before a jury or before judge alone. In the result, I did not consider that the weight of the connection to Sydney was enough to displace the plaintiff's right to chose a forum which, but for the Cross-Vesting Act, he was entitled to choose. Thus it could not be said that it was "in the interests of justice" to order a transfer of the proceedings.

15. I therefore turn to the specific grounds relied upon by the defendant in this application which it contends add weight to and warrant the conclusion that a transfer should be ordered.

Balance of convenience
16. This issue can be readily disposed of. The defendant estimated that it will cost $17,572.54 more if the case proceeds in Canberra rather than Sydney. It assumes that the burden of legal representation will be borne in Sydney rather than in Canberra so as to produce that result. That choice no doubt accounts for much of the projected cost difference.

17. The plaintiff submits that delay will be greater if the matter is to proceed in Sydney. It is further submitted that, by reason of her judicial office and that of her office as President of the Industrial Relations Commission, it would be embarrassing for the plaintiff to apply in New South Wales for expedition. That does not, of course, imply that there is good cause for the plaintiff to feel such embarrassment.

18. In Dawson v Baker (supra), at 23, I expressed the opinion that comparative court delays would not usually be given much weight. It is not appropriate for one court to appear to reflect adversely on delays in another. Further, an anticipated delay in current circumstances might well undergo relative change before a pending matter can be listed for trial.

19. The parties' present estimate of the length of the trial of this matter is 5-10 days. Such estimates are notoriously difficult to make accurately at this stage of the proceedings. However, a difference in cost of the order suggested by the defendant as between New South Wales and this Territory is not really significant, assuming that such extra cost is, in fact, incurred.

20. I do not consider that the balance of convenience adds any significant support for an order for transfer.

A more substantive connection with New South Wales
21. The defendant is a national corporation publishing a national newspaper. The article in question reflects on national policies and on a national institution. It is entirely unlike the Arrowcrest case (Arrowcrest Group Pty Ltd v Advertiser News Weekend Publishing Co Pty Ltd, unreported, Supreme Court, Australian Capital Territory, Miles CJ, 19 July 1989) in which the issues, as well as the parties, were connected with and concerned only with the affairs of the State of South Australia.

22. The matter is also unlike Wood v Guenther, unreported, Supreme Court, Australian Capital Territory, Higgins J, 5 November 1993, where neither the parties, the events or the issues, had any connection with the Territory.

23. On the contrary, given that this matter concerns national affairs, national political and public figures, and a national institution, it is to my mind entirely appropriate for it to be litigated in the national capital.

Appropriateness of the Court
24. The defendant's main contention was that it was inappropriate for any member of this court to conduct the trial of this matter. The plaintiff, in addition to holding office as President of the Industrial Relations Commission, holds a commission as a Judge of the Federal Court of Australia.

25. Each of the judges of this court also holds a commission as a Judge of the Federal Court of Australia. Any appeal from a decision of this Court in this matter would be heard by a Full Court of the Federal Court of Australia.

26. It is suggested that these circumstances might lead members of the public, including members of the defendant company, to apprehend bias on the part of the judge or judges who may be assigned to preside over the trial or any appeal therefrom to the Federal Court.

27. Alternatively, the defendant contends that even if there would not be an apprehension of bias, there would be serious potential embarrassment to the judges of this Court and of the Federal Court which it would be proper to avoid by transferring the proceedings to the Supreme Court of New South Wales.

28. Apprehension of bias does not readily arise.

29. The test to be applied in order to determine whether an apprehension of bias exists is as stated by the High Court in R v Watson; ex parte. Armstrong [1976] HCA 39; (1976) 136 CLR 248, at 264, that is,

... whether it has been established that it might reasonably be
suspected by fair-minded persons that the learned judge might
not resolve the questions before him (or her) with a fair and
unprejudiced mind.

30. In Watson's case (supra) the apprehension of bias was found to have arisen from comments made by the learned trial judge at an interlocutory stage concerning the creditworthiness of the parties.

31. The case of Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 was similar to Watson's case in that two members of the Court of Appeal, who heard an application concerning the appellant's fitness to practice as a barrister, had previously adjudicated upon, and found adversely to the credit of, a person the appellant wished to call as a witness. The disciplinary proceedings facing the appellant arose out of the same factual situation as had been involved in the proceedings to which the witness had been subjected.

32. The Court, at 294, articulated the dilemma faced by any trial judge in such circumstances in the following terms,

If a judge at first instance considers that there is any real
possibility that his participation in a case might lead to a
reasonable apprehension of pre-judgment or bias, he should, of
course, refrain from sitting. On the other hand, it would be an
abdication of judicial function and an encouragement of procedural
abuse for a judge to adopt the approach that he should
automatically disqualify himself whenever he was requested by one
party so to do on the grounds of a possible appearance of
pre-judgment or bias, regardless of whether the other party
desired that the matter be dealt with by him as the judge to whom
the hearing of the case had been entrusted by the ordinary
procedures and practice of the particular court.

33. That principle was applied to the circumstances of Livesey's case (supra) in the following terms, at 300,

It is, however, apparent that, in a case such as the present
where it is not suggested that there is any overriding
consideration of necessity, special circumstances or consent of
the parties, a fair-minded observer might entertain a reasonable
apprehension of bias by reason of pre-judgment if a judge sits to
hear a case at first instance after he has, in a previous case,
expressed clear views either about a question of fact which
constitutes a live and significant issue in the subsequent case
or about the credit of a witness whose evidence is of significance
on such a question of fact.

34. In Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342, the High Court applied the test affirmed in Watson and Livesey to a case where a court counsellor had privately communicated matters adverse to a party, to the judge. That circumstance, even though disclosed to the parties, warranted, in the circumstances, a reasonable apprehension of bias. The particular bias apprehended was that the judge might appear to be influenced to prejudge the issues before her. It was not suggested that the judge in fact had been influenced to prejudge the matter.

35. In Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, another case of alleged apparent pre-judgment, Gaudron and McHugh JJ doubted that, if pre-judgment was, in fact, established, not even the doctrine of necessity would require a person to submit to a decision made or to be made by a person who was reasonably believed to have prejudged the issue.

36. The case of Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 is another example of apprehended bias. In that case apprehended bias was found established by reason of apparent pre-judgment of the credibility of certain medical experts who gave evidence in the case.

37. The apparent or apprehended bias may, of course, be waived by the parties. As Toohey J noted at 587,

There is no reason why, in authority or in principle, a litigant
who is fully aware of the circumstances from which ostensible bias
might be inferred, should not be capable of waiving the right
later to object to the judge continuing to hear and dispose of the
case.

38. Waiver may be inferred from a failure by a party to object to the judge after becoming aware of the circumstances from which reasonable apprehension of bias may be inferred.

39. However, the present objection does not rely on any pre-judgment by the members of this Court or of the Federal Court of any of the issues in this case. Rather, it depends on the office held by the plaintiff and her collegiate association with the judges who may need to adjudicate upon the matter.

40. Reference was made to the case of Fingleton v Ivanoff Pty Ltd (1976) 14 SASR 530. In that case a proclamation was made causing magistrates, who were then public servants, to come under the departmental authority of the Crown Solicitor as their formal departmental head. The Crown Solicitor also had responsibility for the conduct of prosecutions in all courts, including the magistrates' courts. A magistrate disqualified himself from hearing a matter prosecuted by a member of the same department as himself on the basis that he and the prosecutor were responsible to the same departmental head and there might, as a result, be the appearance of lack of impartiality. The Full Court held that the magistrate was right to disqualify himself in those circumstances. There was no suggestion that there had been any departmental interference in the performance by magistrates of their judicial duties. However, it was open to the departmental head, as a matter of legal authority, to exercise disciplinary powers over a magistrate. It was, therefore, concluded that the very existence of that power would make it reasonable to apprehend bias in a case prosecuted by or on behalf of the Crown Solicitor before a magistrate who was also under the authority of the Crown Solicitor.

41. That case is, of course, different from the present one. It is not suggested that the plaintiff is in a position to exercise authority over any judge of this court or of the Federal Court. It is the collegiality of the plaintiff with those judges which is said to found the apprehension of bias or prejudgment.

42. In Fingleton's case (supra), Bray CJ, albeit obiter, referred to the question of collegiality. His Honour commented on that aspect of the case, at 536, in the following terms,

Though it is not directly in point, the effect of collegiality on
a Judge is illustrated by the case of Re McCrory; Ex parte Rivett
((1895) 21 VLR 3), where one of three sitting Justices left the
bench to conduct his own case before his colleagues and then
resumed his seat while another Justice descended and went through
the same performance. Hood J said, at p.5, that the sight of one
man deciding his colleague's case and then the colleague doing the
like office for him was unseemly in the highest degree. There he
was not called on to decide whether it was a case of actual
disqualification for bias because he held that the objection had
been waived (p.6), but I think that his inclination in that
direction is fairly clear.

43. The potentially disqualifying feature in McCrory's case (supra) seems not to have been the fact that two of the Justices were litigants in their own court but rather the appearance that there may have been collusion between the Justices to produce a favourable result by reason of the particular circumstances in which their respective cases were heard. Certainly, the comments of Hood J would support the view that it was the unseemly proximity of the two cases and the appearance of each of the litigant Justices on the Bench hearing the case of the other which gave rise to the occasion for objection.

44. Hood J also noted at 5,

...
It was said in argument that a man is entitled to have his
litigation decided even though he be a Magistrate. This is quite
true. But when he accepts such a position he should be prepared
to make some small sacrifice, and he might either arrange that his
case should not come on in the Court at which he usually presides,
or else he might refrain from sitting on the Bench on the day when
he has a case in the list.

45. That latter statement does not indicate that collegiality between Magistrates precluded a Magistrate from being a litigant in the Magistrates' Court.

46. There is also the case of Barton v Walker (1979) 2 NSWLR 740.

47. In that matter, the Attorney-General had filed ex officio indictments against the appellants. Proceedings were taken to challenge that action. It was submitted to O'Brien J, then recently appointed Chief Judge of the Criminal Division of the Supreme Court, that he should disqualify himself from hearing and determining those proceedings. The ground for that submission was that his Honour had then only recently been invited by the Attorney-General to accept appointment as Chief Judge. His Honour peremptorily rejected that submission. His decision was taken on appeal to the Court of Appeal.

48. The substantive question as to whether there was any sound basis for the application which had been made to O'Brien J, was dealt with by Samuels JA at 757-8,

The appellants' point is that the suspicion generated (as they
contend) by O'Brien J's appointment would have been created,
fundamentally, by the apprehension that the judge might favour the
respondent out of gratitude for the benefit which the appointment
represented. This argument has no rational foundation once it is
apparent that the appointment was not the product of the
respondent's own favour. For all that appears, the acquaintance,
if there was any at all, between the respondent and the learned
judge was of the most formal kind.

49. Past associations are much less likely to warrant disqualification. In Re Polites; Ex parte Hoyts Corporation Pty Ltd [1991] HCA 31; (1991) 173 CLR 78, a member of a Full Bench of the Australian Industrial Relations Commission was held not to be disqualified for apprehended bias by reason of having previously acted as a solicitor for one of the parties before him prior to his appointment. That was despite the fact that the advice he had given was relevant to an issue in the proceedings before the Commission.

50. In Sankey v Whitlam (1977) 1 NSWLR 333 an issue arose as to whether a magistrate who had sued for damages for defamation should have disqualified himself from continuing to hear certain proceedings then before him. His role in those proceedings was the subject of the defamatory statement. The statement had suggested that he was biased in favour of the prosecution. It was submitted that it was possible that a reasonable person might believe that the Magistrate's future conduct of the proceedings would be such as to maximise his prospects for success in the defamation matter. The Court of Appeal rejected that contention.

51. As to the propriety or otherwise of a judicial officer commencing proceedings for defamation in respect of defamatory statements made concerning his or her performance as a judicial officer, Moffitt P noted at 351 in Barton (supra),

Where there is an allegation of bias, warranting commencement of
proceedings for contempt of court, circumstances may dictate
disposal at once, or deferment until after the proceedings.
Instead of so doing, although unusual, it is always open to a
judge to commence defamation proceedings.

52. It would be expected that if a judge took such proceedings they might well be heard in the court of which he or she is a member. That was more likely to have been so in 1977 when Moffitt P wrote those words, cross-vesting legislation not having then been enacted. I can find no indication that his Honour would have regarded such an action by a judge, though "unusual", as entailing embarrassment or difficulty for the judicial colleagues of such a judge so as to make it inappropriate or improper for one or more of them to preside over the trial of the matter.

53. The case of R v Murphy [1985] HCA 50; (1985) 158 CLR 596 involved an application by Justice Murphy of the High Court to that Court for rulings on certain questions of law involved in criminal proceedings taken against him. That application was heard and determined, adversely to Murphy J, by the remaining Justices. Most of the reserved questions were remitted for decision to the Court of Criminal Appeal in New South Wales. That remittal, however, was justified on the traditional ground that the ordinary processes of appeal would give the High Court the benefit of the opinion of the Court of Criminal Appeal on those questions. Whilst, no doubt, the principle of necessity could have been invoked, there is nothing in the judgment of the Court suggesting that it might be legally embarrassing or seen as inappropriate for a Justice to be a litigant in the Court.

54. I also note that Judge Foord, as he then was, of the District Court of New South Wales, sued for defamation in the Supreme Court of New South Wales. An appeal was taken to the Court of Appeal in the matter: see John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706. No suggestion emerges from the judgments delivered in that case that the plaintiff's judicial status, current or recent, posed any difficulties for the court in dealing with the matter.

55. The question of perception of bias by reason of judicial status was raised before me in the case of Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356. The plaintiff, a magistrate, sued in this Court alleging that he had been defamed by comments made in a letter published in "The Canberra Times" criticising his sentencing practices as a magistrate. Application was made for the case to be tried before a jury, inter alia, upon the ground that each judge of this Court, resident or additional, would know the plaintiff. Further, it was contended, the public might apprehend bias if a judge was to fix damages for a fellow judicial officer, even if that officer was a member not of the same but of a lower court in the same judicial system. I rejected that contention.

56. In Williams v Beesley (1973) 1 WLR 1295; (1973) 3 All ER 144, it was contended that there might be a reasonable apprehension of bias towards lawyers who were litigants in a court in which they practiced. That suggestion was also rejected.

57. The case of Trustees of the Christian Brothers v Cardone, unreported, Federal Court of Australia, Canberra, Gallop, Wilcox and Ryan JJ, 20 June 1995, was referred to in argument but, in my view, it does not assist in the present case. I had found a verdict for the plaintiff awarding him damages for personal injury. The appeal was founded, inter alia, on the basis that I should have disqualified myself from hearing the matter. I had an association with the defendant as Chairman of the Board of the school at which the injury had occurred (though not at the time of the accident in question) and I knew some of the witnesses to be called. The issue was not, however, whether objection to my hearing of the matter could have been validly made but, rather, whether the appellant had waived that objection.

58. As Wilcox J observed, at 3,

There is no general rule that a Judge is disqualified from hearing
a case in which a witness known to him or her will be called.

59. It would, in my opinion, be inappropriate to approach this application any differently from any other case in which there is a litigant who is, or may be, personally known to the present members of this Court and of any relevant appellate court.

60. The degree of that knowledge and the extent of it will determine whether any particular judge considers that he or she should not preside over this case if assigned to him or her by the usual listing processes. The nature of the case and the issues raised by it will be of great significance in that consideration.

61. I do not consider that the Judges of this or of the Federal Court are necessarily disqualified for apprehended bias merely by reason of their common membership with the plaintiff on the Federal Court.

62. On that basis, it does not appear to me that it is "in the interests of justice" for this Court to decline to exercise a jurisdiction properly invoked by the plaintiff.

63. I therefore refuse the application for transfer of the proceedings.

Previous application to the High Court
64. The affidavit of the solicitor for the plaintiff draws attention to an application made by notice dated 16 February 1995 seeking an order of the High Court to remove this action into that Court pursuant to s40(2) of the Judiciary Act 1903 (Cth). That application was made on behalf of the defendant.

65. The ground relied upon in that application was that the proceedings,

... cannot properly be heard by any judge holding a commission in
the Federal Court of Australia, including any judge sitting on the
Supreme Court of the Australian Capital Territory.

66. Written argument, supporting that ground covered the same matters as were urged before me in support of the application to transfer the proceedings out of this Court. The High Court refused the application but in doing so expressed no view as to the merits or otherwise of the defendant's argument.

67. The outcome of those proceedings, in my view, has no effect one way or the other on the opinion I have expressed in rejecting the substantive ground relied upon by the defendant.

Application for trial by jury
68. As I noted in Nicholl v Federal Capital Press of Australia Pty Ltd (supra), s14 Supreme Court Act provides for trial by judge alone as the usual mode of trial. For that mode of trial to be altered, it is necessary that, for special reasons, it appears "just" to order trial by civil jury. That reverses the common law approach. In Nicholl's case, I expressly rejected the view taken in Lubans v Scougall (1965) ALR 119 that, before trial by jury may be ordered, it is necessary for an applicant to demonstrate that trial by judge alone would be unjust. Nevertheless, the onus rests upon the applicant to persuade the court that the usual mode of trial should be altered. There must appear some special reason why it would be just to alter the usual mode of trial.

69. In Nicholl's case there were two principal reasons for declining the application. One was the nature of the issues raised by the pleadings. The other was the fact that the plaintiff, having invoked the Court's jurisdiction, opposed a departure from the normal mode of trial.

70. The plaintiff in the present case, neither consents to nor opposes the defendant's alternative application to order trial by jury.

71. I should emphasise that I do not regard the defendant's expressed concern as to the apprehension of bias to be a reason for supporting the application that the trial of the action be with a jury. In that respect, the comments I made at 365-6 in Nicholl's case are applicable,

Of more concern is the more general question raised that, both by
reason of the plaintiff's status as a judicial officer and the
controversial nature of the issues raised, the Court should
insulate itself from potential criticism by ordering a jury. This
contention has some superficial attraction, but I find myself
persuaded by the reasoning of Lord Diplock in John L Williams
(Solicitor) (Trading as a firm) v Beesley, at 1299; 147, that is:
To allow the court's decision as to the mode of trial to be swayed
by the existence of such a belief by one of the parties, however
sincerely it might be held, would be to acknowledge that there was
some substance in it and that our system of justice lacks the firm
foundation of an impartial judiciary.
(His Lordship was there referring to a jury of 12.)
Furthermore, in the absence of some system for examining jurors,
as advocated as long ago as 1928 (P A Jacobs, "Examining the Jury"
(1928) 2 ALJ 83), it would be impossible to feel confident that
one or more of the jurors may not have had personal experience of
criminal conduct as a victim or a close friend or relative of one
or as a close friend or relative of an offender where the offender
or even a co-offender was dealt with by the plaintiff. It strikes
me as being a case similar to Borg v Australian Consolidated Press
Ltd (see Sholl J, at 133):
When one adds together ... the possibility of a juror being
personally affected or closely acquainted with someone who is, and
the possibility of a juror being disposed to prejudge the matter
by reason of prior publicity, one is driven to the conclusion that
it is a safer method of trial to have trial by a judge alone than
to entrust the plaintiff's case and the defendant's defences to
the determination of a jury, the views of which are likely to be
the subject of so much uncertainty.
It may be noted that his Honour was there referring to a jury of
six or 12, not a jury of four.

72. As I have already noted there is, in my view, no substance in the defendant's submissions concerning apprehended bias. A judge who feels that he or she could not, because of association with the plaintiff, fairly try the case would, no doubt, decline to preside over the trial of this matter whether it was conducted before a judge alone or with a jury.

73. The matter complained of does not relate to the plaintiff's role as a judge. It relates to her role, and that of the Federal Government, in the settlement of industrial disputes.

74. It is well settled that the Industrial Relations Commission, like previous bodies exercising similar functions, does not exercise the judicial power of the Commonwealth: see Attorney-General of the Commonwealth of Australia v The Queen (The Boilermakers' Case) [1957] HCA 12; (1957) 95 CLR 529.

75. The decisions made by the Commission, though in conformity with law, are arbitral in nature and involve the exercise of legislative and administrative power. It follows that the exercise by the Commission and its members of their powers is a matter of legitimate public and political concern and controversy. Nevertheless, Commissioners, including the President, may not be directed in general or specific terms by Government and may not be removed save in the manner usual for removal of a Federal Judge: see ss28, 43 and 44 Industrial Relations Act 1988 (Cth) (IR Act). However, in deciding what is in the public interest, the Commission is entitled to consider and have regard to matters of government policy: see s90 and following.

76. One example may be sufficient. If the public does not perceive the Industrial Relations Commission as independent of Government but rather as an agency to give effect to Government policy, it might feel that the alleged imputations are not defamatory or are defensible as fair comment. On the other hand, the contrary conclusion would be arguable if the public perception was that the Commission was genuinely independent of government as are the Courts of law.

77. The independence members of the Commission enjoy is not directed to upholding the independence of the judiciary but rather to facilitate the settlement of industrial disputes: see ss88A and 89, IR Act. Nevertheless, provisions for the independence of and punishment for contempt of Commissioners and the Commission are analogous to those provisions which similarly protect the independence of superior court judges: see s299 IR Act and Nationwide News Pty Ltd v Wills [1992] HCA 46; (1991-92) 177 CLR 1.

78. I commented in Nicholl's case that an examination of a magistrate's sentencing practices could lead to difficulty in assembling an unbiased jury. It seemed to me that there would also be difficulty in satisfactorily explaining matters of sentencing law and practice to a jury in the course of a summing up. The hearing might be further unduly lengthened and complicated if all the learned Magistrate's sentences had to be examined and explained to a jury. In this case, the issues relating to the Commission canvassed in the matter complained of, raise no such concerns. Nor are the issues of such a nature as to support a concern that jurors might have personal experiences which would prevent an unbiased and dispassionate evaluation thereof.

79. Nevertheless, questions as to the nature and extent of public interest and of governmental policy in respect of industrial relations are raised by the issues joined between the plaintiff and the defendant.

80. The plaintiff complains that she stands accused of partiality in the exercise of her office and subservience to the wishes of the government and the unions as against employers.

81. The defendant disputes that such an accusation was made and further asserts that it was, in any event, exercising its right to freedom of political discussion as affirmed by the High Court in Theophanous v Herald and Weekly Times Ltd (1994) 68 ALJR 713.

82. The defendant further relies on defences of qualified privilege and fair comment. The plaintiff in reply, asserts that the defendant was motivated by malice and/or lack of good faith.

83. So many of the matters of public interest and of policy depend on public perception that it seems to me just that the public, through the medium of the jury, should pronounce a verdict upon the public perception of them.

84. Other matters of public interest are particularised in the defence. I will not repeat them. Suffice to say that I accept that they also support the desirability of a trial by jury rather than by judge alone. It does not seem to me that that desirability is lessened by reason of the fact that only a jury of four may be ordered: see Juries Act 1967 (ACT), s32.

85. There is much force in the following observation made by Nader J in Nationwide News Pty Ltd v Bradshaw [1986] NTSC 40; (1986) 84 FLR 49, 64,

Cases may arise in which a judge may reasonably decide that the
interests of justice require a departure from the normal mode of
trial. It could be thought in the interests of justice to order
trial with a jury in an action in which the parties are prominent
members of opposing political parties and where the subject matter
is politically sensitive. The ordering of trial with a jury in
such a case may further the interests of justice by helping to
immunise the court from the inevitable uninformed public criticism
that would be likely to flow from the verdict of a judge sitting
alone.

86. I would prefer to rest justification for such a departure on the proposition that the result of such a trial would be more readily accepted as reflecting community values if members of the community, sitting as a jury, resolved those issues. The judge is not then seen as expressing an opinion on them.

87. This is such a case.

88. It therefore appears to me to be just that a special order be made for the trial of this action with a jury.

89. Accordingly, I direct that, should this matter be listed for trial, the mode of trial be with a jury.

90. I will hear the parties as to costs.