Lehrmann case turns spotlight on shift in defamation trials

Bruce Lehrmann leaves the Federal Court in Sydney.

The defamation case heard in December in the Federal Court between Bruce Lehrmann and Channel 10 raised again the long-debated question of whether these kinds of actions should be decided by a judge alone or by the verdict of a jury.

The Lehrmann case was heard by a judge of the Federal Court sitting without a jury because the rules of that court provide that juries will not be employed in any cases before the court except in exceptional circumstances. If, however, the case were being heard in the NSW Supreme Court, the reverse would apply and there would be a jury if either side opted for this mode of trial, unless there were some unusual factors that made a judge-alone trial more appropriate. It was also a case where there was a direct clash of credit between the two chief witnesses, and some would argue that a jury of ordinary members of the community is best-suited to choose which version to believe.

All this seemed largely an academic question in 2005 when uniform defamation legislation was finally adopted in all the states and territories. This was because the legislation assumed most libel cases would be tried with a jury.

It is true that South Australia, the ACT and the Northern Territory were excluded from this requirement because they had never used juries in any civil cases. But the major defamation cases had usually taken place in Sydney or, to a lesser extent, Melbourne and it was thought these would continue to be tried with a jury. There was no thought of libel cases being heard in the Federal Court because it was assumed these were not part of its jurisdiction. But in 2012 the Federal Court decided, rather artificially in my view, that it did have the power to hear defamation cases, and in recent times some of the highest-profile actions have been heard without a jury in the Federal Court.

It has often been said that one reason to abandon jury trials is that they take longer than judge-alone trials, and this may generally be true. But, prior to the option of judge-alone trials in the Federal Court becoming a choice for plaintiffs generally, there were always some plaintiffs who did not want to face a jury. They might have been defamed by the publication in question but other aspects of their conduct might be unattractive and they feared this would influence a jury to find against them in a way that a judge, who has to give written reasons, would not be able to do. So there may be less trials overall where juries are the norm.

This preference by some plaintiffs for judge-alone trials was one reason why, over the period from the 1960s to the 1990s, quite a number of plaintiffs from Sydney and Melbourne chose to bring their defamation cases in the ACT Supreme Court, secure in the knowledge these proceedings would be heard without a jury. The damages were perhaps not as large as in the case of successful jury trials for plaintiffs in the NSW or Victorian Supreme Courts but they were substantial and in almost every instance during those years the plaintiff was successful in obtaining a verdict. Media defendants viewed the ACT Supreme Court as having the same grim certainty for them as death and taxes.

Lisa Wilkinson (L) pictured with lawyers leaving Federal Court Sydney.

Those results, however, also reflected the fact that traditionally there were only two viable defences for media defendants in libel cases – truth or fair comment, and both were seldom successful. But in 2021 the uniform legislation was amended, except in Western Australia and the Northern Territory, to establish a new defence where the publication concerns an issue of public interest and the defendant reasonably believed the publication of the matter was in the public interest.

This new defence was strongly supported by media organisations in the hope it would enable them to successfully defend exercises of investigative journalism even when some of the material published turned out to be wrong. How the courts – and juries in cases where they are involved – respond to this provision remains to be seen. It has only been considered in one case so far and it was unsuccessful there.

In addition to traditional media cases, the courts have seen an influx in recent years of actions based on material published on the internet and on social media. This influx started after 2005 so it was not a subject dealt with by the original uniform legislation but the states, except for South Australia, and the territories have agreed to amendments that will come into force on July 1 dealing with this area. These changes will largely remove liability for defamatory material from search engines, such as Google, and platforms, such as Facebook where they are not the originators of the material.

The law of defamation has always tried to strike a balance between freedom of speech and the protection of individual reputation. There have long been disputes as to how that balance should be correctly struck in legislation and the debate on that question will certainly continue no matter what changes are made to Australian law in the future.

Michael Sexton SC is co-author of Australian Defamation Law and Practice.