Case: Reader's Digest Services Pty Limited v Lamb [1982] HCA 4 ; (1982) 150 CLR 500
Outcome: followed
of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, secondly, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications. In Reader's Digest Services Pty Limited v Lamb [1982] HCA 4 ; (1982) 150 CLR 500 at 505-506 Brennan J, with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed said: "Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees -- Lord Selborne's reasonable men ( Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741 , at p 745) or Lord Atkin's right-thinking members of society generally ( Sim v. Stretch (1936) 52 TLR 669 , at p 671) or Lord Reid's ordinary men not avid for scandal ( Lewis v. Daily Telegraph Ltd. [1964] AC, at p 260)) -- would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ( Byrne v. Deane [1937] 1 KB 818 , at p. 833, being a standard common to society generally ( Miller v. David (1874) LR 9 CP 118 ; Myroft v. Sleight (1921) 90 LJKB 883 ; Tolley v. J.S. Fry &amp; Sons Ltd. [1930] 1 KB 467, at p. 479)." (emphasis added) Brennan J went on to say ( Lamb 150 CLR at 506): "But the moral or social standard by which the defamatory character of an imputation is determined is not amenable to evidentiary proof; it is pre-eminently a matter for the jury to give effect to a standard which they consider to accord with the attitude of society generally ." (emphasis added) This matter raises issues that very much involve giving effect to moral and social values of the community. I am satisfied that a trial by a jury would be a better mode of trial than by judge alone to assess the various claims and defences in these defamation proceedings. The jury will be better able to make such an assessment than a judge and to do so in a way likely to arrive at a reflection of the attitude of society generally: Lamb 150 CLR at 506. I am of opinion that the essential balances that will need to be struck in respect of the critical issues in this matter (other than damages) are quintessentially better determined by a jury. This assessment will best be done by the community referees to whom French CJ, Gummow, Kiefel and Bell JJ referred in Chesterton 254 ALR at 616 [37]-[38], 618 [46], 619 [48] as did Brennan J in Lamb 150 CLR at 506. Accordingly, I am satisfied that the ends of justice render it expedient to direct a trial by jury of all issues in the proceedings, other than damages and any other issue which, pursuant to the Defamation Act would not be left to the jury. Thus, the question of the capacity of the matters complained of to convey any of the defamatory meanings alleged (as opposed to whether they in fact were conveyed) would remain a question of law to be decided by a judge. The part of this controversy that arises under s 53B of the Trade Practices Act should also be decided by a jury. This is because it is inextricably related to the meanings conveyed to ordinary reasonable readers by the matters complained of and whether Ms Ra has been injured in her reputation as an employer for the purposes of s 53B. However, if the jury returned a verdict in her favour on the issues of liability, the amount of compensation to be awarded pursuant to s 82 of that Act should be assessed by a judge.