Chel v Fairfax Media Publications Pty Limited

The proceedings for the plaintiff’s claim for damages for defamation were listed to commence last Monday 9 November 2015 for a three-week trial by jury. It was adjourned by reason of the plaintiff's counsel's indisposition. Last Friday my Associate was notified that the defendants, who had previously filed a notice of election for a jury, no longer wished to have trial by jury and purported to waive that right.

By notice of motion filed in court today, the plaintiff seeks a declaration that the defendants are estopped from withdrawing or revoking their election for trial by jury; and, in the alternative, an order dispensing with r 29.2A(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The plaintiff also seeks leave to serve a notice of intention to elect for the proceedings to be tried by jury; leave to file an election for the proceedings to be tried by jury; and an order that the trial of these proceedings be by jury.

The usual mode of trial in the Common Law Division of this Court for civil matters other than in defamation proceedings is trial without a jury: s 85(1) of the Supreme Court Act 1970 (NSW). In defamation proceedings, any party may elect for the proceedings to be tried by jury. Such election is governed by the Defamation Act 2005 (NSW) (the Act) and the UCPR.

Section 21 of the Act provides as follows:

UCPR 29.2A prescribes the manner in which a jury election is to be made in this Court as follows:

The Civil Procedure Regulation 2012 (NSW) sets out fees which are applicable for the filing of an election for trial by jury and also daily fees relating to a trial by a jury. The purpose of the daily retention fee is to cover or at least partly cover the costs payable to juries for their jury service: s 72 of the Jury Act 1977 (NSW).

These proceedings were commenced in 2011. In 2012 the defendants served a notice of intention to elect to have the proceedings tried by jury (the Notice of Intention). They filed a notice of election to have the proceedings tried by jury (the Notice of Election) on 9 March 2015. On 30 April 2015 this matter was set down to commence on 9 November 2015 with an estimate of three weeks. The estimate was provided having regard to the fact that it was to be a trial by jury.

The plaintiff did not serve a notice of intention. Accordingly, she could not file a notice of election. She did not apply by motion, or otherwise, to have the jury dispensed with when she received the defendants’ Notice of Intention.

The nature of the right to trial by jury was considered by McColl JA (Giles JA and Handley AJA agreeing) in Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246; 81 NSWLR 315. After considering the legislative framework and the relevant authorities, McColl JA said at [50]:

Thus, a party preserves the right to elect a trial by jury by serving a notice of intention. The purpose of the notice of intention is so that, if the other party objects to trial by jury, that party can file a motion for an order under s 21(1) that the proceedings are not to be tried by jury. If no such motion is filed, and the party which served a notice of intention subsequently files a notice of election, that party obtains a vested and accrued substantive right to have the proceedings tried by jury.

The first question that arises is whether the defendant’s accrued right to have these proceedings tried by jury can be waived. Mr Blackburn SC, who appears with Ms Barnett on behalf of the defendants, relied on a decision of the Court of Appeal of the Supreme Court of Queensland, Kencian v Watney [2015] QCA 212, in which the question arose whether a party which filed a notice of election could unilaterally abandon that right. Their Honours at [23]-[28] concluded that the right to a trial by jury which is obtained following an election could be unilaterally waived by the party to whom that right accrued.

Although Mr Rasmussen, who appears on behalf of the plaintiff, noted that Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells had not been drawn to the attention of the Court in Kencian v Watney I do not consider that to be a proper basis on which I could decline to be bound by, or follow, the decision of Kencian v Watney.

Accordingly, on the basis of Kencian v Watney, I am satisfied that the defendants’ vested and accrued right to have these proceedings tried by jury can be waived.

The next question which arises is whether the defendants are estopped from waiving their right to trial by jury. The plaintiff contends that there is an estoppel which arises on the footing of so-called Waltons v Maher estoppel which derives its name from the decision of the High Court in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR at 387. Justice Brennan listed the elements of such an estoppel in the following oft-cited passage at 428-429:

I am not satisfied that any of the elements of the Waltons v Maher estoppel have been made out in the present case. Each party to defamation proceedings has a separate and independent right to trial by jury. The procedure set out above is available to all parties to defamation proceedings. Thus, the plaintiff could not rely on the defendants to assert their right to trial by jury, in order to protect her own. In order to preserve her right to trial by jury, she herself had to serve a notice of intention and file a notice of election. If she did not follow that course, she put the question whether the proceedings would be tried by a jury or by judge alone in the hands of the defendants, since they were the ones with the accrued right, and they, accordingly, were in a position either to enforce it, or waive it.

As the plaintiff and Mr Boorman gave evidence and as this is germane to the question of the elements of estoppel it is necessary to refer to it, albeit briefly.

The plaintiff gave evidence that she had always wanted the proceedings to be tried by jury. Mr Boorman said that he understood that the plaintiff wanted a trial by jury but that Mr Evatt (formerly counsel for the plaintiff) had told him that it was not necessary to do anything because the defendants had already done what was necessary.

Mr Boorman quoted Mr Evatt as saying, "We do not have to because the other side has already done it". I am not satisfied that that is in fact what Mr Evatt said. My finding to that effect does not mean I have formed an adverse credit finding against Mr Boorman, but rather that Mr Boorman, somewhat surprisingly for a legal practitioner, has taken no notes whatsoever of any conversations either with Mr Evatt or with the plaintiff herself of any conversations relating to trial by jury at all. Given that the first occasion on which this conversation is alleged to have occurred was at some time in 2013, I do not accept that Mr Evatt said anything of the sort. Indeed, I think it would be unfair to Mr Evatt to accept that he said something of that nature, particularly as one might expect him to be more familiar with the Act and the UCPR than such a statement would tend to suggest.

The plaintiff has given evidence that she always wanted to have a trial by jury and that she was reassured when she was told that the defendants had at first served a notice of intention to elect and, secondly, filed a notice of election. Even if I were to accept her evidence that she was reassured by that process, there were no reasonable grounds for her to rely on the defendants’ not changing their minds about that matter and waiving the right at any time, which I consider they were able to do up until the time of empanelment of the jury.

Moreover, the plaintiff has been unable to point to any conduct of the defendants that caused her not to serve a notice of intention or file a notice of election. That the defendants themselves took these courses of action does not provide any reason for the plaintiff to consider that she did not need to act so as to protect her own position. The defendants were always at liberty, having served a notice of intention, not to file a notice of election. They were at liberty, at least until the jury was empanelled, to waive their right to have the proceedings tried by jury.

Accordingly, I am not satisfied that the defendants have done anything which would make it unconscionable for them to waive the accrued vested right which they have by reason of the filing of the notice of election.

In light of the conclusions set out above, it necessary to turn to the further question: is the plaintiff herself entitled at this stage to have a trial by jury? The parties accept that the decision of McCallum J in Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 110, is relevant. In that case her Honour decided that she did not have power to permit the defendants to elect to have the proceedings tried by jury in circumstances where they had not followed the procedure under the Act and the UCPR.

Justice McCallum accepted the submissions made by Mr Smark SC, who appeared in Carolan v Fairfax Media Publications Pty Ltd for the plaintiff, that there was no requirement of the rules to do anything before a hearing date was fixed. Accordingly, there was no requirement that could be extended by the Court. Her Honour reasoned that the Act and the UCPR created a right (to have the proceedings tried by jury) which would accrue under certain circumstances (if a notice of intention were served and a notice of election filed within the relevant period and the requisite fee paid), but which, if not activated, would cease to exist, or cease to become available. For those reasons, McCallum J was not persuaded that she had the power to grant the relief sought by the defendants in that case.

I am not required to follow the decision of McCallum J if I am satisfied that it is clearly wrong. I am not satisfied that this decision is clearly wrong or, indeed, that it is other than correct and I respectfully follow her Honour's analysis.

Mr Blackburn has also drawn my attention to O'Connor v SP Bray Limited (1936) 36 SR (NSW) 248 in which Jordan CJ (Street and Maxwell JJ agreeing), considered the question of waiver of inconsistent rights in the context of an action for damages for personal injury by a worker in respect of which the worker had also claimed damages under the Workers Compensation Act. It was significant in that case that an election was made between alternatives which were inconsistent and that the election was the election of the worker. I note that Mr Blackburn drew my attention to this case for completeness but he suggested that it could be distinguished and did not really bear on the issues in this case.

Mr Rasmussen submitted that O'Connor v SP Bray Limited supported the plaintiff’s application because there is an election between inconsistent rights, namely the right to trial by jury, or a right to trial by judge alone. It seems to me that the situation in the present case is far removed from O'Connor v SP Bray Limited in that in that case the relevant right was a right of the worker to elect to either sue for damages or have payments under the Workers Compensation Act.

In the present case, in the circumstances of a claim for damages for defamation, both parties have the same right to elect for a trial by jury and those rights are independent and subsisting. Any party who wishes to preserve his, her or its right to a trial by jury in a defamation action has an equivalent right to protect that position by serving a notice of intention and (unless an order is made by the Court under s 21(1) of the Act) filing a notice of election.

For these reasons I make the following orders: