Supreme Court New South Wales Medium Neutral Citation: Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 1707 Hearing dates: 16 November 2015 Decision date: 16 November 2015 Jurisdiction: Common Law Before: Adamson J Decision: 1. Dismiss the plaintiff's notice of motion filed 16 November 2015. 2. Order that these proceedings will be tried by judge alone and not by jury. 3. Reserve costs. Catchwords: DEFAMATION – notice of election for trial by jury – substantive right vests or accrues upon filing of notice of election – whether vested and accrued right can be waived unilaterally by party to whom right accrued – Kencian v Watney [2015] QCA 212 followed – right can be waived – party who wishes to preserve right to trial by jury in defamation action must serve notice of intention and notice of election irrespective of whether other party does so DEFAMATION – whether plaintiff entitled to trial by jury having failed to serve notice of election in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 29.2A – no power to permit election for trial by jury where non-compliance with Defamation Act 2005 and relevant rules – Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 110 followed ESTOPPEL – Waltons v Maher estoppel - whether defendants estopped from withdrawing election for trial by jury – whether reliance by plaintiff on defendants' election for trial by jury was reasonable – whether defendants' conduct in waiving right to trial by jury unconscionable – elements of estoppel not established Legislation Cited: Defamation Act 2005 (NSW), s 21 Jury Act 1977 (NSW), s 72 Supreme Court Act 1970 (NSW), s 85 Uniform Civil Procedure Rules 2005 (NSW), r 29.2A Cases Cited: Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 110 Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246; 81 NSWLR 315 Esber v Commonwealth [1992] HCA 20 174 CLR 430 O'Connor v SP Bray Limited (1936) 36 SR (NSW) 248 Kencian v Watney [2015] QCA 212 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR at 387 Category: Procedural and other rulings Parties: Lili Chel (Plaintiff) Fairfax Media Publications Pty Limited (First Defendant) Vanda Carson (Second Defendant) Representation: Counsel: R Rasmussen (Plaintiff) T Blackburn SC/L Barnett (Defendants) Solicitors: Beazley Boorman Lawyers (Plaintiff) Banki Haddock Fiora Lawyers (Defendants) File Number(s): 2011/409423 Judgment (ex tempore - Revised) Introduction 1. 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. 2. 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. Reasons The procedure in defamation proceedings 1. 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. 2. Section 21 of the Act provides as follows: "21 Election for defamation proceedings to be tried by jury (1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury. (2) An election must be: (a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and (b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court. (3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if: (a) the trial requires a prolonged examination of records, or (b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury." 1. UCPR 29.2A prescribes the manner in which a jury election is to be made in this Court as follows: "29.2A Elections for juries in defamation proceedings (1) An election under section 21 of the Defamation Act 2005 for defamation proceedings to be tried by jury must be made by filing a notice of election for a jury trial and serving the notice on each other active party in the proceedings. Note. Section 21 (2) (b) of the Defamation Act 2005 requires an election to be accompanied by the fee prescribed by the regulations under the Civil Procedure Act 2005 for the requisition of a jury in the court concerned. (2) A party may file and serve a notice of election for a jury trial only if: (a) the party has served a notice of intention to file the notice of election on each other active party before a date has been fixed for the hearing of the defamation proceedings, and (b) a notice of motion has not been filed under subrule (4) or, if such a notice of motion has been filed and served, the court has refused to make the order sought in the notice of motion. (3) A party who serves a notice of intention to file a notice of election for a jury trial must, before a date has been fixed for the hearing of the defamation proceedings, inform the court that the notice of intention has been served. (4) A party on whom a notice of intention to file a notice of election for a jury trial is served may, within 21 days of being served with the notice, file a notice of motion seeking an order under section 21 of the Defamation Act 2005 that the proceedings not be tried by jury. (5) If a notice of motion is filed under subrule (4), a date may not be fixed for the hearing of the defamation proceedings until the court has disposed of the motion. (6) Without limiting subrule (2), a notice of election for a jury trial may not be filed or served if: (a) the court makes an order under section 21 of the Defamation Act 2005 (whether or not of its own motion) that the defamation proceedings not be tried by jury, or (b) a date has been fixed for the hearing of the defamation proceedings." 1. 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). 2. 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. 3. 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 effect of a notice of election: to vest a substantive right 1. 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]: "The exercise of the s 21 [of the Defamation Act] discretion must be made in the circumstance that once the appellants exercised the s 21 entitlement to elect for the proceedings to be tried by a jury, they had a vested or accrued substantive right: see generally Esber v The Commonwealth (1992) 174 CLR 430 at 440–441; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 at [31] per McHugh J; Pambula at 412 per Samuels JA." 1. 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. Whether the right to trial by jury can be waived 1. 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. 2. 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. 3. 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. Whether the defendants are estoppel from waiving the right to trial by jury 1. 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: "In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed or expected that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption or expectation may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs." 1. 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. 2. 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 evidence of the plaintiff and Mr Boorman 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. Whether the plaintiff is entitled to elect to have the proceedings tried by jury 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. Orders 1. For these reasons I make the following orders: 1. Dismiss the plaintiff's notice of motion filed 16 November 2015. 2. Order that these proceedings will be tried by judge alone and not by jury. 3. Reserve costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2015