Hawke & The Legal Eagles


Vale Hawke 

It has been moving to read the many fond tributes flocking in commemorating the life, leadership and legacy of Bob Hawke, the 23rd Prime Minister of Australia, who passed away aged 89 yesterday, practically on the eve of the federal election.

The Hawke Defamation Case

Among the literature on Hawke, I stumbled on a reported case from 1983 featuring Mr Hawke as the Plaintiff. It was decided in 1983 which was his first year as Prime Minister: Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 before Hunt J.  

The Legal Eagles

Prime Minister Hawke was represented by John Garnsey (now Garnsey QC). He was a leading commercial junior at that time. Just prior to the litigation, in 1982, Mr Garnsey (Hawke’s counsel) had founded Blackstone Chambers (which closed in 2017) along with his colleague, Don Grieve, who took silk the following year.  It was a bald step at the time; establishing chambers away from then holy grail of chambers: Phillip Street. He garnered the support of impressive barristers, including Tom Hughes QC, who would later be the father-in-law of the former Prime Minister, Malcolm Turnbull. Mr Garnsey is also known as being instrumental to the approval by the Bar Association of New South Wales of “direct access briefs” following his authorship of a letter, signed by 100 barristers, which was also provided to the Attorney General and the Premier but probably not his client, the Prime Minister of Australia.

The Defendant Newspaper was represented by W H Nicholas QC (later, the Honourable Justice Nicholas) and J R Sackar (now, the Honourable Justice Sackar).

The Hawke Case

The case involved an application for a jury of 12 persons (rather than 4 persons) in an action for defamation against the publisher of the “Northern Daily Leader”, a daily Tamworth newspaper which had been in existence since 1876 and had a relatively wide readership. Prime Minister Hawke claimed damages in relation to the publication of a letter to the editor in that newspaper which was published a week before the general election of that year. The letter was written under a non-de-plume, “King Solomon”. It was reported as a “somewhat disjointed and irrational piece of writing” and made a number of disparaging statements concerning Prime Minister Hawke.

The reported decision goes to a rather narrow point of procedure but has an enduring legacy. It has been referred to many times since including by the Court of Appeal (for example, Marshall v Megna [2013] NSWCA 30; Lloyd-Jones v Allen [2012] NSWCA 230; Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362).

It concerns the test that applies in an application for a jury of 12 persons in civil actions in NSW (rather than jury by 4, the norm). Prime Minister Hawke submitted that departure from the normal procedure was justified in his case because the matter raised issues concerning his public conduct and his suitability for parliamentary office, matters of which are of public importance and which concern the public conduct of a public figure. Ultimately the application for a 12 person jury was dismissed.

Hunt J said:

“The fundamental question to be considered in any application for a jury of twelve persons is whether the case is one more fitting to be tried with a jury of twelve than one of four persons and so warrants a departure from the normal procedure in civil actions in this State”.

He referred to the test of Nagle J in Lang v Australian Consolidated Press Ltd [1967] 1 NSWR 157 stating that the test is:

“… a quantitative one rather than a qualitative one in that a jury of 12 would seem to give a better ‘spread’ and be more representative of the views of the community as a whole.”

To warrant a jury of 12 persons, the public prominence of a person by itself may not be enough but, as Hunt J explained:

“… the public prominence of the plaintiff is one circumstance which, with others, may render it proper that a case should be heard by an expanded jury which, by its numbers, would more appropriately reflect varying shades of community thought. The additional circumstance which is usually considered together with the public prominence of the plaintiff is the need to ensure that a contentious figure is given a dispassionate and fair trial …”

To similar effect, many years later, Rares J said in Ra v Nationwide News Pty Ltd [2009] FCA 1308:

“Where a person is a contentious figure or one with a prominent public role, his or her position as a party to an action tried before a jury may cause concern about its potential effect on a jury of 4 persons. He or she is more likely to be given a dispassionate and fair trial by a jury of 12. This is because a larger jury is more likely to dilute the influence of any single juror whose passions or antipathies are aroused for or against one of the parties. Balanced against that concern, must be the Court’s recognition that jurors obey the directions of trial judges to put aside their own personal prejudices and feelings. And members of a jury panel ordinarily can be expected to accept the invitation before being called to the box, to indicate whether they feel they could not bring an impartial and dispassionate mind to the resolution of the issues for trial or by reason of the matters disclosed to them as to what the proceedings are about and who the parties are.”

The Normal Procedure

The normal procedure in New South Wales for the trial by jury of a civil case is that it be tried by a jury of four before a judge. Whether an order for a 12 person jury should be made is discretionary. It is not a matter of right. It is necessary for the court to be satisfied that the case is a proper one to be tried by such a jury.

The discretion is to be exercised with regard to the facts and circumstances of the particular case. As the variety of cases is infinite the authorities provide guidance as to the approach to be taken, but settle no code. Relevant factors include:

  • The nature of the libel or imputation sued on;
  • The nature of the subject matter discussed in the alleged libel;
  • The status in the community of the respective parties to the litigation; and
  • What the issues of fact and law will be on the hearing of the action

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