Hooper v Phipps

1. [1]

   KIRK JA: I agree with McHugh JA.

2. [2]

   STERN JA: I agree with McHugh JA.

3. [3]

   McHUGH JA: This expedited application for leave to appeal arises out of the third trial, before the primary judge, Gibson DCJ, and a jury of four, of proceedings for defamation in the District Court of New South Wales. Five hearing days into the trial, the applicant, who is the plaintiff below, suffered a serious medical episode after the evidence had been completed and the respondents’ counsel had addressed but before the applicant’s own counsel’s address. This resulted in the discharge of the jury — that being the third discharge in the unhappy history of this litigation. Rather than abandoning the hearing and ordering a fourth trial, the primary judge upheld the respondents’ application to order pursuant to s 21 of the Defamation Act 2005 (NSW) that the proceedings not be tried before a jury: Hooper v Phipps (No 3) [2025] NSWDC 370 (‘J’). The effect of her Honour’s orders is that, subject to any application to reopen, the trial will continue to conclusion before her on the evidence already given. Her Honour has now retired as a Judge of the District Court and is currently an Acting Judge. She proposes to complete the trial and give judgment as soon as possible.

4. [4]

   The applicant accepts that the decision he seeks to upset was interlocutory (such that leave to appeal is required) and discretionary (such that House v The King (1936) 55 CLR 499; [1936] HCA 40 error must be shown). Although the primary judge appears to have mistakenly located her power to order that the proceedings not be tried by jury in s 21(1A)(b), rather than in s 21(1), there is no doubt that her Honour had power to make an order of the kind she made. The applicant has not established any House v The King error.

5. [5]

   Leave to appeal should be granted on the basis that the matter raises a question of principle, being the proper approach to the exercise of the powers in s 21. But the appeal should be dismissed with costs.

The role of the jury in defamation cases

1. [6]

   Historically, the administration of justice in this State has accorded a singular importance to the jury in actions for defamation. The centuries-long history of trial by jury in such cases has continued in New South Wales, decades after the jury was abandoned as the principal arbiter of contested facts in other forms of civil litigation in this State.

2. [7]

   Perhaps the two most prominent arguments advanced in favour of this state of affairs are the need for decision-making in defamation cases to reflect community standards, and assertions of the “constitutional” role of the jury as an essential feature of democracy, particularly as a bulwark against encroachment on the freedom of speech in matters alleging reputational harm (see, e.g., Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246 at [70]-[77], [79] per McColl JA (Giles JA and Handley AJA agreeing)).

3. [8]

   It is certainly true that the question at the heart of every defamation action —whether the imputation would tend to make ordinary reasonable members of the community think less of the plaintiff — involves the direct application of a uniform community standard. Particularly because that standard evolves, sometimes quickly, there is much to be said for drawing directly upon members of the community to answer that question. Yet many other aspects of the law involve the application of community standards. That has not been seen as an impediment to decision-making consistently with those standards by a cadre of professional judges lacking direct access to members of the community via the jury box.

4. [9]

   As for the jury’s role in safeguarding the civic and political value of freedom of speech, the law of defamation undoubtedly can burden political communication (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568; [1997] HCA 25) as well as other kinds of public speech. However, the defamation defences themselves operate to strike a balance between freedom of speech and protection of reputation, particularly justification (substantial truth: s 25), public interest (s 29A), statutory qualified privilege (s 30) and comment (honest opinion: s 31).

5. [10]

   Parliament has done much the same thing in other areas of the law which prohibit or regulate public speech, balancing competing interests through statutory defences or carve-outs. The difference is that in areas other than defamation, our legal system does not insist on a jury. For example, provisions of the Anti-Discrimination Act 1977 (NSW) render unlawful certain forms of public conduct inciting hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on particular grounds: s 20C(1) (racial vilification), s 38S(1) (transgender vilification), s 49ZE(1) (religious vilification), 49ZT(1) (homosexual vilification) or s 49ZXB(1) (HIV/AIDS vilification). Complaints of contraventions may come to be referred to the New South Wales Civil and Administrative Tribunal, which is authorised to award damages of up to $100,000: s 108(2)(a). Parliament has chosen that remedial mechanism — which involves no jury — notwithstanding the scope for disagreement about the extent to which those provisions burden freedom of speech. The scope for disagreement is not trivial, given the evaluative aspect of the carve-outs in ss 20C(2)(c), s 38S(2)(c), 49ZE(2)(c), 49ZT(2)(c), 49ZXB(2)(c). These exclude from the statutory prohibitions public acts done reasonably and in good faith for purposes in the public interest.

6. [11]

   In modern legal systems, most obviously those employing written constitutions or charters of rights, there are other more general alternative or additional mechanisms to secure freedom of speech. Again, none insists on the expense, disruption and delay entailed in drafting four ordinary people, not chosen for any special experience equipping them to be guardians of the people’s rights, out of their homes and workplaces to perform the function of ad hoc judges of the facts in any defamation case in which a party happens to prefer their chances with four ordinary people than with a trained judge. (That said, one salutary advantage of the jury should not be overlooked. None of the alternative mechanisms, including the constitutional implication described in Lange, affords the double protection granted by the jury: protection not only against abuses by the executive government or powerful private interests, but also from the judges themselves.)

7. [12]

   Outside New South Wales, at various times since 1934 in jurisdictions around Australia, juries have either disappeared altogether from the defamation landscape, or else had their functions significantly curtailed: see the discussion in Fierravanti-Wells at [78]. In recent years judges of the Federal Court of Australia sitting without a jury have decided a series of defamation cases raising issues of major public importance, such as Roberts-Smith v Fairfax Media Publications Pty Ltd and Others (Appeal) (2025) 310 FCR 170; [2025] FCAFC 67 and Lehrmann v Network Ten Pty Ltd [2025] FCAFC 173.

8. [13]

   Even in this State, the functions historically assigned to the jury in defamation cases have been modified and at times very heavily circumscribed. For a period of about a decade beginning late last century and continuing into the early part of this one, the jury’s role was regulated by s 7A of the Defamation Act 1974 (NSW). The jury’s function was “to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory”: s 7A(3). In the event that the jury answered that question in favour of the plaintiff in respect of any imputation, the judge alone was to determine whether any defence was established and the amount of any damages (including all issues of fact and law relating to those subjects): s 7A(4).

9. [14]

   Since the enactment of the Defamation Act 2005, s 22(3) has provided that if the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judge alone is to determine the amount of damages and all unresolved related issues of fact and law relating to the determination of that amount.

10. [15]

    All that being so, the time has long passed when Lord Hailsham could describe the jury as, “where either party desires it, the only legal and constitutional tribunal for deciding libel cases, including the award of damages”: Cassell & Co Ltd v Broome [1972] AC 1027 at 1065. The jury’s function is not “constitutional” in the sense that without a jury the administration of justice with respect to the law of defamation cannot function, either consistently with the essential features of our democratic system, or at all.

11. [16]

    It should come as no surprise that there is power in s 21 of the Defamation Act 2005 to dispense with trial by jury. As will be seen, s 21 is to be construed in light of Parliament’s choice to preserve a party’s right to elect for trial by jury, and against the background of the jury’s historical role in defamation cases. But the importance of the jury’s historical role for the exercise of the power should not be overstated.

Section 21

1. [17]

   Section 21 provides in its current form:

2. [18]

   The numbering of what is now s 21(1A) may give the impression that the subsection was introduced into s 21 after the Act was originally enacted. That impression would be misleading. What is now subs (1A) was originally numbered subs (3). What are now subss (3) and (4), addressing revocation of an election, were not contained in the Act as originally enacted. When they were introduced in 2021, subs (1A) was given its current numbering.

3. [19]

   At first instance, the parties and the primary judge proceeded on the footing that the applicable legislation was s 21 in its current form: see J[19]. However, it was agreed at the hearing of the appeal that by reason of Sch 4, cl 7 of the 2005 Act, given that the publication occurred in 2018, it is the 2018 form of the legislation which applies. What is currently subs (1A) was still numbered subs (3) in 2018, and there were no equivalents to the current subss (3) and (4). But the parties agreed that there is no difference material to the disposition of the present application between the 2018 and 2025 forms of the legislation. In light of that agreement, and given that the primary judge referred to the legislation in its current form, the path least likely to result in confusion is to do the same in these reasons.

4. [20]

   Several points should be noted about the legislative framework.

5. [21]

   Section 21 does not expressly state what follows from the election referred to in subs (1). But there is no doubt that once the election in favour of a jury trial is made, subject to the court’s ordering “otherwise”, the proceedings must be tried before a jury. In Fierravanti-Wells this was described as giving rise to “a vested or accrued substantive right” (at [50] per McColl JA, Giles JA and Handley AJA agreeing). As Handley AJA put it at [138], “[b]y its timely election the appellant acquired the right to trial by jury which was defeasible only by an order properly made under s 21(1) and s 21(3)” (i.e., what is now s 21(1A)). That is important context informing the discretion discussed below.

6. [22]

   In its current form, s 21 on its face confers three separate powers to dispense with the jury. One is a general power which is not subject to any express limitations: subs (1). The second, in subs (1A), is conditioned on the matters identified in pars (a) or (b). The third is a power to authorise a party who has elected for the proceedings to be tried by jury to revoke their election if the other party withholds consent: subss (3)(b) and (4). Only the first and second powers are directly relevant to the present application.

7. [23]

   In light of the general power in s 21(1), the existence of s 21(1A) appears at first blush somewhat curious, particularly as it begins with the words, “Without limiting subsection (1), a court may order … .” However, as will be seen, the two powers have distinct operations. It is convenient to deal with them separately.

8. [24]

   As to the first power, s 21(1) confers a discretion to “order otherwise”. That is not a power to prevent a party from making an election in accordance with the procedure required by subs (2). It is a power to deny the consequence of the election, that is, that the “proceedings … be tried by jury”. It is thus a power to defeat the “right” to trial by jury acquired by the party’s election.

9. [25]

   There are no express statutory criteria as to what engages the general s 21(1) power or as to the matters to be taken into account in its exercise. However, it was held in Fierravanti-Wells that the power is not exercisable on the Court’s own motion: see at [52], [94]-[97], [110]. It was also held that certain considerations may not be taken into account in the exercise of the power: see the discussion below. Subject to those matters, what engages the general power in s 21(1) is due application by a party: Fierravanti-Wells at [52].

10. [26]

    As to the correct approach to determining the matters that may properly be taken into account in exercising the general s 21(1) power, at [43] McColl JA described the power as:

11. [27]

    Her Honour went on to say at [46]:

12. [28]

    Consistently with that approach, a series of cases has held that a power to dispense with trial by jury expressed in general terms must be exercised having regard to the circumstance that, as noted above, once a party elects for the proceedings to be tried by jury, s 21(1) confers a “right” or an “entitlement” to that mode of trial. It would defeat Parliament’s choice to confer a right to trial by jury if the right was defeasible merely because of characteristics inherent in that mode of trial.

13. [29]

    The leading authority is Pambula District Hospital v Herriman (1988) 14 NSWLR 387, a case of medical negligence, to which McColl JA paid particular attention in Fierravanti-Wells at [81]-[88]. Several features of Pambula and the then applicable legislative scheme are relevant to the construction of s 21.

    1. (1)

       There Kirby P (at 402F) and Samuels JA (at 413D) held, Mahoney JA dissenting (at 421), that the primary judge, Cole J, had erred in taking into account universal characteristics of trial by jury when dispensing with the jury pursuant to the then s 89(1) of the Supreme Court Act 1970 (NSW). Cole J’s reasons had included that the trial would be shorter and cheaper, that counsel could discuss ranges of damages with the court and that there would be reasons for the decision which could be tested on appeal: see at 392-393.

    2. (2)

       Section 85(1) of the Supreme Court Act provided, by way of default position, that proceedings were to be tried without a jury. However, the claim in medical negligence fell within s 86(1), which provided that “issues of fact shall, if any party files a requisition for trial with a jury … be tried with a jury”: see 390. The filing of the requisition corresponds with the making of an election under s 21(1) of the Defamation Act 2005.

    3. (3)

       The entitlement to trial by jury which accrued upon the filing of a requisition pursuant to s 86(1) was then subject to a power in the then s 89(1) to dispense with the jury. This was expressed in general terms: “[i]n any proceedings on a common law claim (except proceedings to which section 88 applies), the Court may order, despite sections 85, 86 and 87, that all or any issues of fact be tried without a jury”: see 391. That power was thus akin to the general power in s 21(1).

    4. (4)

       It might be noted that defamation claims (which, it will be remembered, were not the issue before the court in Pambula) were subject to a different regime. By default, s 88(b) provided that such claims were to be tried before a jury. The general power of dispensation in s 89(1) did not apply to claims in respect of defamation. Instead s 89(2) provided (see 391):

    5. (5)

       Kirby P held at 402-403 that the “basic flaw in Cole J’s reasoning was in considering to be relevant as such, universal characteristics of jury trials”. The President said “the exercise of the discretion called for by s 89 requires the party seeking the alternative mode of trial to discharge the onus to satisfy the Court that it should exercise its discretion upon the particular application made”. “It is therefore not to the point to consider universal characteristics of jury trials. They must be taken to have been known to, and accepted by, Parliament when contemplating that jury trial would continue, except where the discretion under s 89(1) of the Act was exercised.” His Honour said that those conclusions could be reached by reference to the terms of the section and the statutory context, together with the legislative history. “But when to this material is added the long history of civil jury trials in this jurisdiction and the necessity in the present case, to deprive a party that is taken to have requisitioned a jury, of its entitlement to have that mode of trial, the error in Cole J’s judgment becomes even more clear.”

    6. (6)

       Kirby P’s concern was that “the criteria [Cole J] expressed could lead in this case (as in all cases) to trial by judge sitting alone. If Parliament had so provided, that would have been permissible. But Parliament has not so provided”: at 404. Importantly, however, Kirby P did not suggest that the general characteristics of jury trials could never be relevant to the exercise of the discretion at all. Instead, he expressly stated at 403B:

    7. (7)

       Samuels JA expressed a similar conclusion at 413D:

14. [30]

    Neither the correctness nor the applicability of the reasoning in Pambula was disputed in the present application for leave to appeal. It should, however, be noted that what counts as a universal characteristic of trial by jury is debatable, as McColl JA pointed out in Fierravanti-Wells at [90].

15. [31]

    The second s 21 power, in subs (1A), is engaged only where the criteria in pars (a) or (b) are satisfied.

16. [32]

    Because of the nature of those criteria, the operation of s 21(1A) stands in stark contrast to the construction given to s 21(1). For example, where the subs (1A) power is engaged because some technical issue “cannot be conveniently considered and resolved by a jury”, the inconvenience must be among the universal characteristics of trial by jury. The words “a jury” invoke trial by jury in general; in this respect, there is no reason to distinguish any jury from another. It would plainly be within the court’s discretion to grant an application brought on that ground pursuant to the power in subs (1A), even if the inconvenience of having a jury resolve the technical issue were the only ground on which the order was sought. By contrast, in light of Pambula, an application based only on that ground would likely have to be refused if brought pursuant to subs (1).

17. [33]

    That being so, the opening words of s 21(1A), “Without limiting subsection (1), …” might be thought to be, if anything, expressed the wrong way around. By permitting the court to take into account things which are universal characteristics of trial by jury, subs (1A) might be thought to expand, rather than to limit, subs (1). But no argument to that effect was advanced on the present appeal.

18. [34]

    As was pointed out in Fierravanti-Wells at [44], the mere fact that the conditions for the exercise of the subs (1A) power are established does not require that the power be exercised. McColl JA said: “Rather the judge considering a s 21(3) [i.e., s 21(1A)] application must consider whether, in all the circumstances, including the role juries play in defamation trials …, the power should be exercised.”

19. [35]

    As to the criteria themselves, subs (1A) refers to “any technical, scientific or other issue”. The words “other issue” do not mean “other factor relevant to discretion”. The words “other issue” are qualified by what follows them: “… that cannot be conveniently considered and resolved by a jury”. Plainly, the “other issue” must itself be a matter for decision by the tribunal of fact.

20. [36]

    The fact that there are two differently expressed powers in s 21(1) and (1A) appears to be explained in part by the history of the provisions governing trial by jury in defamation cases. (The Attorney-General’s Second Reading Speech for the 2005 Bill sheds no light: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005 at 17635-17641.) McColl JA traced the history up until 2011 in Fierravanti-Wells at [53]-[68]. Various amendments resulted in the provisions being re-numbered. For present purposes, it suffices to focus on the period immediately prior to the enactment of the Defamation Act 2005.

    1. (1)

       At that time, the default position in both the Supreme Court and the District Court was that defamation cases were required to be tried before a jury: Supreme Court Act, s 86(1); District Court Act 1973 (NSW), s 76B(1).

    2. (2)

       In each court there was a special, but limited, power to order that all or any issues of fact in defamation cases be tried without a jury. These powers were expressed in language similar to the former s 89(2) of the Supreme Court Act. They were engaged only where either “(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury”; or “(b) all parties consent to the order”: Supreme Court Act, s 86(2); District Court Act, s 76B(2).

    3. (3)

       It is unsurprising that a defamation-specific power of that kind (i.e., s 21(1A)) would be carried over when, in 2005, the regime governing the availability of trial by jury in defamation cases was removed from the legislation governing the particular courts: Supreme Court Act, s 85(6); District Court Act, s 76A(4). Since that time, the regime governing trial by jury has resided in s 21 of the Defamation Act.

    4. (4)

       Importantly, however, under the Defamation Act 2005, trial by jury is not the default in defamation cases; it requires a party’s election. That is similar to the position that obtained with respect to the medical negligence proceeding the subject of Pambula. It is thus also unsurprising that the new regime would include a provision (i.e., s 21(1)) which, like the former s 89(1) discussed in Pambula, confers a general power to dispense with the jury expressed in unconfined terms.

21. [37]

    In the result, s 21 contains two distinct powers that are relevant for present purposes.

22. [38]

    The first, in subs (1), is expressed in general terms. That power is exercisable on the basis explained in Pambula and Fierravanti-Wells, which limits the role of universal characteristics of trial by jury in the exercise of the discretion. It is impermissible to exercise the subs (1) power based only on such characteristics. But where there is good reason arising out of the particular circumstances of the case for dispensing with the jury, it is not irrelevant in the exercise of the discretion to take into account features of trial by jury that have significance in the particular circumstances.

23. [39]

    Section 21(1A) then has a different operation. By its terms, the power in subs (1A) is engaged in only a limited range of circumstances. But those circumstances will include some which, because they are universal characteristics of trial by jury, may stand outside the subs (1) power.

24. [40]

    Both powers are discretionary. Once either power is regularly invoked, the fact that the statute confers on the electing party an entitlement to trial by jury will be a significant matter in the discretion. But the party’s entitlement cannot be prohibitive. Otherwise the two powers, which permit that entitlement to be defeated, could never be exercised.

25. [41]

    Kirby P referred in Pambula to “the long history of civil jury trials in this jurisdiction”: at 403. McColl JA referred in Fierravanti-Wells to the historical role of the jury in securing “the freedom of the press against the possibility of judges being disposed in favour of the Crown”, and to Lord Hailsham’s description, more than half a century ago, of the jury as the “constitutional tribunal for deciding libel cases”: see the discussion at [70]-[77]. Those matters of history were relevant to the construction given to s 89(1) in Pambula and to s 21(1) in Fierravanti-Wells. In each case, the legislative regime was construed as conferring an entitlement to trial by jury on a party who elected for it. In each case, the provisions conferring powers to defeat that entitlement were accordingly construed as excluding the universal characteristics of trial by jury as the basis for exercising the discretion.

26. [42]

    However, for the purposes of exercising the s 21(1) discretion to order “otherwise” in any particular case, the historical role of trial by jury in defamation cases, and the reasons for it, add little to the fact that s 21(1) confers an entitlement to trial by jury on parties who elect for it. Due regard must be had to that entitlement. Beyond that, the discretion is to be exercised judicially and in the interests of justice. That is the touchstone of the power. Save for excluding the universal characteristics of trial by jury as the basis for exercising the power, the discretion is confined only by the dictates of justice in the particular case. Moreover, the power can be exercised at any time: see analogously Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14; [1993] HCA 23 at 17-18 per Mason CJ, Deane and Dawson JJ; 23-4 per Gaudron J; 27-30 per McHugh J.

The primary judge’s decision

1. [43]

   The applicant’s first trial before a jury occurred on 4-5 September 2023 before Weber SC DCJ. Part way through his evidence in chief, the applicant collapsed in the courtroom and was taken to hospital. The jury was discharged.

2. [44]

   The applicant’s second trial before a jury commenced on 4 April 2024. Two events occurred after the applicant gave his evidence in chief. The court building suffered a total blackout of electricity on 5 April 2024. Then, on the evening of what would have been the third day of the trial, counsel for the respondents was injured in a bicycle accident. The jury was discharged.

3. [45]

   The applicant’s third trial before a jury commenced on 21 July 2025 before Gibson DCJ. The applicant collapsed in court at the end of the fifth day and was taken by ambulance to hospital where he was admitted. At that point, all that remained of the trial was the applicant’s counsel’s closing address and the trial judge’s summing up, to be followed by the jury’s deliberations and determination by the judge of any damages: see s 22. On the following day, Tuesday 29 July 2025, her Honour was informed that the applicant would be unable to attend physically at court for the rest of that week, and that the position as to the following week was unknown. As her Honour said at J[10]-[11]:

4. [46]

   It will be necessary to say something below about the “rider” referred to at J[11].

5. [47]

   On 14 August 2025, the respondents applied for the trial to continue, but without a jury. That application was heard on 11 and 18 September 2025. Her Honour delivered her decision with reasons promptly the following day, 19 September 2025.

6. [48]

   Her Honour identified two principal reasons which led her to grant the application: see J[21]-[23], J[30], J[47].

   1. (1)

      The first was the applicant’s health. “[T]his will be the fourth jury trial in these proceedings, in circumstances where two of the three prior jury discharges occurred because of medical emergencies occurring in the courtroom.”

   2. (2)

      The second was that, “while jury trials are an important right, retrials have repeatedly been described in the starkest language as ‘evil’, particularly when the number of retrials start to mount up”.

7. [49]

   Her Honour cited a number of cases in support of the second reason. These included the statement in TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 704 that the fourth jury trial of the action in that case was “an appalling, state of affairs”, and Kirby P’s statement in Palmer v Clarke (1989) 19 NSWLR 158 at 164 that retrials were “an evil and a deplorable result, to be avoided wherever possible”.

8. [50]

   The primary judge’s reasons were not directed to the universal characteristics of jury trial. As to the first reason, it is not a characteristic of jury trials that litigants have medical episodes. But the consequences of a medical episode are potentially much worse in a jury case compared to one tried before a judge alone. The disagreement the parties had in this case as to how to explain to the jury why the applicant would be absent from the courtroom without prejudice to either party is one example. A more substantial concern is the practical impossibility of adjourning a jury trial for any length of time, which happens as a matter of routine in cases tried before a judge alone.

9. [51]

   The second reason was directed to avoiding the undoubted evil of a fourth trial, whether it be before a jury or a judge alone. The primary judge was attempting to salvage as much as she could of a trial that had proceeded almost to conclusion. The desire to avoid a retrial might not ordinarily (at least in the absence of all parties’ consent) be a sufficient reason to order “otherwise” in order to discharge the jury and conclude the trial before the judge alone on the evidence already led. But it could hardly be said that the imperative to avoid a fourth trial was an irrelevant consideration here, and no such submission was advanced.

The draft notice of appeal

1. [52]

   The draft notice of appeal contains the following grounds:

   1. (1)

      “The primary judge erred by making an order under s 21(1A) of the Defamation Act 2005 (NSW) (the Act), where no such order was sought.”

   2. (2)

      “The primary judge erred by holding that the appellant’s ill health could amount to an ‘other issue’ within the meaning of s 21(1A) of the Act, and by making an order dispensing with a jury on that basis.”

   3. (3)

      (Ground 3 was not pressed.)

   4. (4)

      “The primary judge erred in not dismissing the respondents’ application to dispense with the jury.”

Incorrect identification of power

1. [53]

   Grounds 1 and 2 were pressed only faintly.

2. [54]

   The primary judge treated the applicant’s health issues as an “other issue” within the meaning of s 21(1A)(b), and identified that as the power she was exercising: J[20]-[21].

3. [55]

   It is common ground that her Honour was mistaken in doing so. No question concerning the applicant’s health was a matter to be “considered and resolved by [the] jury” for the purposes of subs (1A)(b). The power in s 21(1A) was not engaged. However, neither party suggests that that matter is determinative of the present application.

4. [56]

   To the contrary, the applicant acknowledges that the general power in s 21(1) was available to the primary judge. The applicant made clear at the hearing that if the Court considered that her Honour’s decision was made in accordance with the principles applicable to exercising the power in subs (1), he would take no point that her Honour had mistakenly identified subs (1A). If so, Grounds 1 and 2 in the notice of appeal would fall away.

5. [57]

   The applicant’s position acknowledges the forensic realities. He requires leave to appeal, to which the question of substantial injustice is highly material. He also seeks a retrial. By Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1), this Court “must not order a new trial … unless it appears to the Court that some substantial wrong or miscarriage has been thereby occasioned.” In other words, even if there was error in the primary judge’s identification of the power she was exercising, the Court would not order a new trial unless it was satisfied that the error had led to an injustice.

6. [58]

   The applicant did not suggest that there was any condition of s 21(1) which was not satisfied. Nor did he suggest that in ordering that the proceeding not be tried by jury, the primary judge approached the exercise of discretion inconsistently with the basic requirements of s 21(1). (Instead, the applicant asserts a specific House v The King error — failure to have regard to a material consideration — as discussed below.)

7. [59]

   It is clear that the primary judge’s approach to the power was consistent with an exercise of discretion pursuant to subs (1).

   1. (1)

      Her Honour acknowledged that both “parties stated that they accept that the exercise of the discretion must be made in the circumstances that, once a party elects for proceedings to be tried by jury, they have a vested or accrued substantive [right] to that mode of trial”: J[27]. She accepted the submission “that weight should be given to the Court’s endorsement of jury trials”: J[29]; see also at J[23].

   2. (2)

      At J[27], her Honour quoted from Fierravanti-Wells at [46], being the passage addressing the power in s 21(1) referred to above.

   3. (3)

      Her Honour said at J[30] that the “defendants do not rely upon the universal characteristics of jury trials, such as expense or length, as they acknowledge that such matters should not be taken into account in the exercise of the discretion: Fierravanti-Wells at [83].”

8. [60]

   That being so, Grounds 1 and 2 in the notice of appeal fall away.

9. [61]

   In light of the applicant’s position, it is not necessary to determine the question whether there is legal error when a court wrongly purports to exercise a power which is not available, in circumstances in which another source of power was available pursuant to which the same order could have been made. However, the following might be noted.

10. [62]

    This Court has recently referred to the principle that “if a power is exercised upon a mistaken belief as to the source of power, this does not necessarily result in invalidity if the decision is able to be supported by another available source of power”: Licha v Joseph [2025] NSWCA 192 at [61]-[66] per Griffiths AJA, Kirk and Ball JJA agreeing at [16]. In the context of administrative decision-making, the principle goes to the validity of the decision: Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3 per French CJ, Hayne, Kiefel and Bell JJ at [34]. In that context, the application of the principle depends on whether any conditions antecedent to the exercise of the other head of power have been satisfied.

11. [63]

    Griffiths AJA at [65] of Licha applied the principle in the context of judicial review for jurisdictional error in judicial decision-making. His Honour reasoned that “the principle is also implicit in the requirement that an error must be a material error to amount to jurisdictional error in the context of both administrative and judicial decision-making (see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [9]-[16] and Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [15])”.

12. [64]

    Whether the principle would also apply to deny error in judicial decision-making for the purposes of an appeal in accordance with s 75A of the Supreme Court Act, as opposed to operating at the level of materiality for the purposes of determining whether an error is jurisdictional, need not be determined in light of the applicant’s position with respect to Grounds 1 and 2.

No House v The King error

1. [65]

   Ground 4 is a catch-all, pursuant to which the applicant asserts a discrete House v The King error. The applicant’s argument in effect proceeds on the footing that the power the primary judge was exercising was that in s 21(1). The applicant submits that the primary judge failed to have regard to an argument relied on by the applicant at first instance. The argument was that the applicant had run and presented his case on the basis that the tribunal of fact was a jury, not a judge, and that to switch the mode of trial after the event, so close to the end of the trial, would cause him prejudice.

2. [66]

   The applicant referred to observations about the potential for prejudice arising out of a change in the mode of trial in G & J Shopfittings & Refrigeration Pty Ltd (in liq) v Lombard Insurance Company (Aust) Ltd (1989) 16 NSWLR 363 at 371 per Kirby P, and to Patton, particularly at 18-19 per Mason CJ, Deane and Dawson JJ and 25 per Gaudron J. As the applicant fairly pointed out, Patton disapproved of the result in G & J, and held that a power to order that “all or any questions of fact be tried without a jury” remained exercisable after the trial had commenced. That being so, the applicant accepted that the s 21(1) power could be exercised in circumstances such as those of the present case, where there was a change from jury to judge and the judge was to determine the case on the basis of evidence already led. The applicant also accepted that concerns about prejudice arising from a change in the mode of trial were not prohibitive. They are instead relevant considerations in the exercise of the discretion.

3. [67]

   The applicant thus needs to establish that her Honour failed to take this consideration into account. He faces a significant difficulty in that respect. The argument which the applicant complains the primary judge failed to consider was identified by her Honour at J[38] as follows:

4. [68]

   It would certainly be surprising if, having gone to the trouble of recording submissions made both in writing and in oral argument, her Honour proceeded to have no regard to them. To the contrary, in the exercise of her discretion the primary judge plainly considered the submissions which the applicant now complains she did not.

5. [69]

   Part of the applicant’s argument is that the primary judge undoubtedly considered a different aspect of the prejudice said to arise from the change in mode of trial. That was the concern, which her Honour expressly agreed was a relevant factor, that she would have to make findings of fact based on the evidence, including as to the applicant’s credit, when that had not been her role at the time the evidence was given: see at J[40]-[42]. But it does not follow from the way in which her Honour dealt with one submission that she failed to deal with the other.

6. [70]

   The context in which J[38] should be understood includes what had been said about the applicant’s argument based on forensic decisions in the course of argument on the application. On 11 September 2025, the following exchange took place involving then counsel for the applicant:

7. [71]

   Then on 18 September, two further exchanges took place as follows:

8. [72]

   Her Honour’s reference to the applicant’s submissions at J[38] must be understood in light of the interchanges during argument, as referred to above.

9. [73]

   To the extent that the applicant’s complaint concerns some step he did not take in running his case before the jury which he would have taken before a judge alone, it was open to the applicant to identify the step and apply to reopen. But the applicant did not point to any such step, either in the court below or in this Court. Similarly, to the extent that the applicant submits that he would not have taken some forensic step before a judge alone which he took before the jury, he was unable to point even to a single question that he would not have asked, or that he would have asked differently. That is not to say that the “ineffable” effect of the mode of trial on counsel’s forensic decisions is not real. The point is instead that in the absence of any concrete manifestation of the issue it is difficult to give real weight to the applicant’s argument that the change in mode of trial occasioned him actual prejudice.

10. [74]

    In the first exchange quoted above, counsel for the applicant acknowledged the force of her Honour’s point about reopening. In the third exchange, he went close to acknowledging that there was little in the argument now brought to the forefront of the applicant’s case on appeal. The argument was not in any event a strong one. That may explain why her Honour did not return to it expressly. But it cannot be concluded that the primary judge failed to take the argument into account.

11. [75]

    That being so, this argument fails. Ground 4 is not made out.

12. [76]

    Leave to appeal should be granted but the appeal should be dismissed.

Re-exercise of discretion

1. [77]

   Had it been necessary for this Court to re-exercise the s 21(1) discretion, it would have been appropriate to reach the same conclusion as the primary judge, for substantially the same reasons she gave together with those expressed above. But there are two additional reasons which would also have had considerable weight in determining where the interests of justice lay.

2. [78]

   The first relates to the issue raised in Ground 1 in the respondents’ notice of contention, which is as follows:

3. [79]

   At J[49], the primary judge had declined to take into account the applicant’s conduct in threatening to withdraw his counsel’s instructions. Her Honour was concerned that if she were to remain the trial judge she should not make any findings as to the parties’ credit or the way in which they had conducted the proceedings. That was, with respect, a sound approach in the circumstances. For that reason, the notice of contention would not in terms have been made out (as to what her Honour “ought to have found”).

4. [80]

   This Court would not, however, have been bound by the same concern on the re-exercise of discretion if it had been necessary to undertake that exercise.

5. [81]

   It is one thing to insist on one’s rights. It is quite another to threaten to derail the trial process if one does not get one’s way. There was no other reason for the applicant to threaten to withdraw his counsel’s instructions. In a real sense, the jury was discharged because the primary judge was left with no alternative in light of that threat. To reward the applicant with a retrial would be to permit him to take advantage of his own conduct in a manner which is inimical to the interests of justice.

6. [82]

   The second reason arises out of the relief the applicant seeks. The primary relief sought is a new trial before a judge and jury. But in the alternative the applicant seeks a new trial before a judge alone. In other words, the applicant’s real complaint is ultimately not that he has been deprived of his s 21(1) “right” to a jury trial. It is that what he really wants is a retrial.

7. [83]

   It is no answer that the change in mode of trial prejudices the applicant in the two ways on which he relied in his submissions to the primary judge, and that a retrial before a judge alone is less prejudicial than for the primary judge to complete the hearing on the evidence that was led before the jury. For the reasons given above, that prejudice is not sufficient to outweigh the strong factors in favour of exercising the power to order “otherwise”. But more to the point, in light of the relief sought it is difficult to give weight to any argument that what the applicant has lost is the “right” to trial by jury which s 21(1) confers.

Conclusion and orders

1. [84]

   The orders I propose are:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal with costs.