Bechara v Bonacorso

Civil Procedure Regulation 2005 (NSW), Schedule 1, Part 3 cl 4 Defamation Act 1974 (NSW), s 7A LEGISLATION CITED: Defamation Act 2005 (NSW), s 21 District Court Act 1973 (NSW), s 76A(4) District Court Rules 1973 (NSW), Part 12 r 5 Uniform Civil Procedure Rules 2005 (NSW), Part 10 r 10.1 and Part 29 r 29.2

AN v New South Wales [2003] NSWSC 100 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Bechara v Bonacorso [2009] NSWDC 131 Bechara v Bonacorso (No. 2) [2010] NSWDC 42 Bishop v State of New South Wales [2000] NSWSC 1042 Calvert v Stollznow [1980] 2 NSWLR 749 CASES CITED: Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245 Davis v Nationwide News Pty Ltd [2008] NSWSC 699 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 Hart v Wrenn (1995) NTLR 17 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; (1992) Aust Torts Reports 81-200 Razvan v Berechet (NSW Court of Appeal, 23 February 1990, unreported) Sydney Markets Ltd v Sydney Flower Market Pty Ltd [2001] FCA 662

TEXTS CITED: District Court Practice Note 6 The Honourable Justice McClellan, "Eloquence and Reason - are juries appropriate for defamation trials?"

PARTIES: Plaintiff: Antoine Bechara Defendant: Paul Bonacorso

COUNSEL: Plaintiff: Ms S Chrysanthou Defendant: Ms K Rees

SOLICITORS: Plaintiff: Kalantzis Lawyers Defendant: Puleo Lawyers

[1] The defendant, by Notice of Motion filed on 1 April 2010, brings an application that issues of liability in the trial of these proceedings, which is fixed for five days as a non-jury trial on 17 May 2010, be heard by a jury, in accordance with s 21 Defamation Act 2005 (NSW).

[2] The defendant obtained a first return date for this Motion of 23 April, before the Judicial Registrar. As these proceedings had already been given a pre-hearing directions date to ensure everything was ready for the trial, and the application raised important case management matters similar to other applications before me in the List, I asked the parties if they could deal with the matter before me on 16 April after I had had the opportunity to deal with those matters. The parties agreed with this proposal, although as a result the Defamation List ran so far outside court hours that it was not possible for me to keep Reporting Services long enough to hand down an ex tempore judgment. I am grateful to the parties for agreeing that my reasons for the orders I made could be emailed to them later in the week.

[3] The history of the proceedings, in case management terms, may briefly be summarized as follows. The Statement of Claim was filed on 27 October 2008. After timetables and an interlocutory application (Bechara v Bonacorso [2009] NSWDC 131), the parties came before the court seeking a hearing date on 4 September 2009. On that date, these proceedings were set down for hearing as a 5-day non-jury trial commencing on 17 May 2010; Ms Chrysanthou, who appeared for the plaintiff, told me this 5-day estimate was the agreed estimate of the parties, and that she was mentioning the matter for counsel for the defendant, Mr Lynch. At the time of the matter being given a 5-day estimate, I understood from Ms Chrysanthou, and from the pleadings, that publication of the three slanders was denied, and that in the alternative a defence of qualified privilege at common law was relied upon.

[4] It is not in dispute that no jury announcement in court was ever made by the defendant in these proceedings (as to which see Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 29.2(4)). More importantly, no Notice of Intention was ever served on the plaintiff and at no time in correspondence, during argument in court or discussions between counsel was the defendant's intention to proceed by way of jury trial discussed. When the matter was set down for trial, Ms Chrysanthou had no idea that a Notice of Election had been filed on 7 July 2009.

[5] The parties have been preparing for trial since the allocation of the hearing date. On 12 March 2010 I heard a dispute about discovery and interrogatories (Bechara v Bonacorso (No. 2) [2010] NSWDC 42). In the course of that judgment, at [2], I referred to the proceedings being listed as a 5-day non-jury trial. As I apprehend the defendant's submissions, this was the first time the defendant or his legal representatives knew about the matter being listed as a non-jury trial. The defendant briefed new counsel (Mr McHugh SC and Miss Rees) who settled a letter to the plaintiff and also the Notice of Motion which was filed on 1 April 2010.

[6] The defendant relies on the affidavits of Matthew Puleo, sworn 1 April 2010, and John Puleo, sworn 1 and 16 April. The plaintiff relies on the affidavit of Vasilios Kalantzis, sworn on 12 April 2010. I have set out below the relevant extracts from the evidence of the defendant's solicitors and Ms Rees's submissions concerning the failure to take any of the necessary steps to alert either the plaintiff or the court to the defendant's proposed election for trial by jury prior to 29 March 2010.

[7] The defendant gives the following explanations for failure to make an announcement in court, serve the Notice of Intention, file and serve a Jury Requisition and pay the $913 Jury Requisition Fee: (1) Failure to make an announcement in court: The announcement in court must be made at the first hearing that takes place more than 3 days after service of the Notice of Intention: Part 29 r 29.4. In their affidavits, Matthew and John Puleo, the solicitors for the defendant, describe how a solicitor had attended the Registry on 2 July to file a Notice of Motion and a Requisition for Trial by Jury. A staff member in the Registry told him a Notice of Intention was the correct document to file. Accordingly, after Mr Puleo's return to the office on 3 July 2009 from overseas, the Notice of Intention was filed on 7 July, which would mean any announcement should be made at the next court hearing.

As the solicitors for the defendant asked the plaintiff to mention the matter on the next two occasions, the only occasion when the defendant was legally represented in court was when the matter was listed for argument on 12 March 2010. The explanation for Mr Lynch not doing so on that occasion is not explained, nor is the failure to ask the plaintiff to do so when mentioning the matter. The plaintiff was, in fact, never informed this document had been filed.

(2) Failure to serve the Notice of Intention: The defendant's written submissions concede failure to serve the Notice of Intention and say this "appears to have been an oversight". Ms Rees submits that Part 29 r 29.3 "does not state that the Notice of Intention must be served on the plaintiff" (written submissions, [12]). Matthew Puleo, in paragraph 12 of his affidavit, says that the Notice of Intention was signed by John Puleo on 6 July and lodged by an unknown person in the office on 7 July. He returned the file to John Puleo "on his return to the office from overseas" (which I note was on 3 July).

"From my review of the file it would appear that the Notice of Intention was not served on the Plaintiff's solicitor. I have no recollection why that is so but it definitely was not a deliberate decision. I have asked each staff member why the Notice was not served on the Plaintiff's solicitor and I am informed by them and I believe they have no such recollection but I believe that after the Notice of Intention was filed in the Court Registry it was placed on the firms [sic] matter file in July 2009".

John Puleo says it is his signature on the document, but he has no recollection of signing it, or causing it to be filed (paragraph 8). He was unaware until 22 March 2010 of the requirement of UCPR Part 29 r 29.2(4).

The text of the Notice of Intention appears to have been dictated to the defendant's solicitor or filing clerk by a member of the District Court registry, who set out the relevant rules ( UCPR Part 29 r 29.2(3)) and section 21 of the Defamation Act 2005 (NSW). The person who had attempted to file the Notice of Motion wrote these words down on the rejected Notice of Motion (see MP 4 attached to Matthew Puleo's affidavit) and took them back to the office so that the correct form could be prepared and filed.

I should note, in addition to the requirements in UCPR Part 29 r 29.2(4), that UCPR Part 10 r 10.1(1) requires parties who file documents to serve copies of the documents on each other active party "as soon as practicable".

(3) Delay in notifying the plaintiff's solicitor and bringing this motion: The solicitors for the defendant became aware the matter was listed as a 5-day non-jury trial when their client rang them on the evening of 19 March 2010 after reading the judgment published on the NSW District Court Caselaw website that day. John Puleo read this judgment and checked his file. He became aware on 22 March of UCPR Part 29 r 29.4, and on 23 March he briefed new counsel. On 24 March he had a conference with the new counsel, who told him to take immediate steps to have the proceedings tried by a jury, but this counsel was unavailable to settle the documents until 28 March 2010.

On 31 March 2010 John Puleo sent the following letter to the solicitors for the plaintiff:

"It has become apparent that notwithstanding the filing of a Notice of Intention to request a jury by my firm that the correct procedure as set out in Part 29.2 has not been followed.

Accordingly we advise that we intend to file a Notice of Motion seeking the Court's leave to have the proceedings heard by jury.

Vasilious Kalantzis' reply, also dated 31 March 2010, not only stated that the plaintiff did not consent, but complained no notice had ever been served. He also drew the defendant's attention to UCPR Part 29 rr 29.2(4) and 29.2(5)(b)(ii). He added that at no time in correspondence, or in the course of the many directions hearings, had the question of a jury trial been raised. He noted the trial was six weeks away, and warned that if the application was brought his client would seek indemnity costs.

On 1 April 2010 the defendant's Notice of Motion was filed, returnable for 23 April 2010 at 9.30 before the Judicial Registrar (according to what I was told by the parties). The matter is clearly identified as a matter in the Defamation List. The explanation for the matter being placed before the Judicial Registrar is that this Notice of Motion was filed by the defendant in person.

Notices of Motion have not generally been in use in defamation proceedings in the Supreme or District Courts since Hunt J, for case management reasons, discontinued their use in 1983: Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 at 134. Practice Note 6 preserves this entitlement, to promote speedy and inexpensive resolution of legal arguments which tend to be a feature of defamation actions. Listing a Notice of Motion seeking this kind of relief before the Judicial Registrar was unnecessary and added to the delay.

(4) Failure to file a Jury Requisition or pay the $913 fee: No Jury Requisition has been filed, no fee has been paid, and the plaintiff complains that other than as an annexure to an affidavit, the Notice of Intention has never been served on them. The defendant's position in submissions is that it is not necessary to file a Jury Requisition or pay a fee because this is only required for non-defamation matters by reason of the language of UCPR Part 29 r 29.2.

[8] But for one matter (discussed in more detail below) I would have some sympathy with the defendant's position here. The terms of s 76A(4) District Court Act 1973 (NSW), which refer to the filing of a requisition for trial with a jury and payment of the fee, specifically say: "(4) This section does not apply to any action for defamation."

[9] The note under s 76A states that s 21 Defamation Act 2005 makes provision for jury trials in defamation actions.

[10] This is further complicated by UCPR Part 29 r 29.2. This provision replaces Part 12 r 5 District Court Rules 1973 (NSW), which was the provision for requesting juries in all matters until the amendment of s 76A in 2002 to make s 7A juries compulsory in the District as well as the Supreme Court. Part 29 r 29.2(3) refers to the filing of a notice of intention, not a requisition. If read literally, this would mean that no fees were payable in defamation jury trials for the requisition of a jury or a daily retention fee.

[11] Part 29 r 29.2 of the UCPR relevantly provides: "(1) - (2) …

(3) Elections under section 21 of Defamation Act 2005 A party who intends to make an election under section 21 of the Defamation Act 2005 to have proceedings for defamation tried by jury (an "election for trial by jury") must file a notice of intention to do so.

(4) Unless the court otherwise orders, an election for trial by jury must be made, by means of an announcement in open court before a judicial officer, at the first hearing that takes place more than 3 days after service on the active parties of the notice of intention to make the election.

(4A) A party who makes an election for trial by jury must, at the hearing referred to in subrule (4), produce to the court a copy of the notice of intention filed under subrule (3).

(5) At a hearing referred to in subrule (4), any party may, without notice of motion having been filed or served, apply to the court for an order under section 21 (3) of the Defamation Act 2005 that the trial not be by jury and, if such an application is made, the court may determine the application on the day it is made or on any later day fixed by the court.

(6) Time for filing notice of motion or intention Unless the court otherwise orders, a notice of motion under subrule (1) or notice of intention under subrule (3) must be filed:

(i) within 28 days after service on the defendant of the statement of claim, or

(ii) if, pursuant to rule 14.3, the court directs some other date for the filing of a defence, within 28 days after the date fixed by the court's direction."

[12] The fee payable upon the filing of a jury requisition is governed by the Civil Procedure Regulation 2005 (NSW): Schedule 1, Part 3 cl 4.

[13] However, s 21(1) Defamation Act 2005 (which is a later Act) makes it clear that the legislators of this Act were not providing free juries. The process for election is as follows: "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."

[14] A fee of $913 is prescribed by Schedule 1, Part 3, cl 4 Civil Procedure Regulation 2005 (NSW), payable at the time of filing of the notice (clause 8(1)).

[15] It would be possible to be confused by these apparently conflicting provisions, although common sense should dictate that it was not the intention of the legislature to require payment of jury requisition and retention fees only in those rare civil cases where a party in a trial for any action other than defamation actions sought a jury. However, as Ms Chrysanthou pointed out, practitioners well know that this is not the case, because the standard practice of media defendants in the Supreme Court is to file a Jury Requisition and pay the fee. Ms Chrysanthou submitted (and Ms Rees did not dispute) that the requirement for a Jury Requisition to be filed and served, as well as the Notice of Intention, is standard practice.

[16] If all that the defendant had done was to fail to file the Jury Requisition and pay the fee, I would have required very strong persuading to refuse a request for jury trial. The failure to do so plays little part in my reasons for rejecting the application. The real problem is the defendant's failure to serve the plaintiff or otherwise put them on notice until six weeks before the trial, in circumstances where, by reason of the limited time allotted by the court as well as the manner of preparation for the trial, the plaintiff is not able to accommodate this late request.

The plaintiff's inability to meet a trial by jury for the hearing

[17] I shall deal with the problems identified by the plaintiff in turn.

[18] The lateness of the application creates problems for the court. This matter was given a 5-day special fixture.

[19] Ms Rees assured me that it was her view, and the view of Mr McHugh SC, that the jury trial could be completed in the five days allotted for the trial. She informed me that the five-day estimate given by Mr Lynch was relied upon by them, but that it was her view, and the view of her leader, as well.

[20] Ms Chrysanthou, who was junior counsel in the first defamation jury trial under the new legislation (Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245), and more recently was junior counsel in the Haertsch trial (Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182), told me that the few jury trials which have been held since the 2005 Act came into force had taken many weeks. The trial times range from three weeks (in the case of the Haertsch trial) to five weeks (in the case of the Corby trial). She identified three additional factors as problems in the length of this trial: (1) The matters complained of were three slanders, and there was a challenge to the words spoken on each occasion, which was not the case in these other defamation jury trials;

(2) There was a defence of qualified privilege of some complexity, and there would be evidence in relation to malice. The length and difficulty of issues of the Davis trial ( Davis v Nationwide News Pty Ltd [2008] NSWSC 699) were indicative of the likely true length of the trial;

(3) Jury trials require a number of pre-trial motions on issues such as whether the jury should hear evidence of damage and disputes about the form of the questions. There was insufficient time before the trial to carry out these steps, and if they were done during the trial (or not at all) this would add to the trial length and complexity.

[21] A valuable source of guidance for me has been McClellan CJ at CL's discussion paper on jury trials, "Eloquence and Reason - are juries appropriate for defamation trials?" . McClellan CJ at CL states: "Based on the recent experiences of the court the length of defamation trials where there is a jury is likely to be three times greater than if conducted by a judge alone trial" (pp 18 - 19).

[22] Ms Chrysanthou told me that none of the members of counsel consulted by the defendant had appeared in any jury trials under the new legislation. However, I know from my own reading that Mr Lynch appeared in defamation jury trials under the repealed legislation (Defamation Act 1974 (NSW)). For example, Mr Lynch was counsel in Hart v Wrenn (reported in (1995) NTLR 17 and elsewhere), a jury trial which ran for many months. I have taken into account, when considering his estimate, that he is an experienced jury trial advocate.

[23] However, I have also taken into account that defamation jury trials prior to the s 7A procedure were notoriously lengthy, and that the perceived errors resulting from these lengthy trials (see for example Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; (1992) Aust Torts Reports 81-200) were one of the justifications for limiting the jury's role, in New South Wales, to issues of defamatory meaning and publication. These s 7A trials often took two to three days even when publication was not disputed, and generally much longer where a slander was involved (an example being Bishop v State of New South Wales [2000] NSWSC 1042, in which Mr Lynch appeared).

[24] The District Court, in its criminal division, regularly sets down criminal jury trials in sittings all over New South Wales, and accurate estimates of time for trials by counsel is an essential prerequisite for the listing system to work. Judges come to know, from these jury trials, that juries need time to settle in to their tasks. With great respect to Ms Rees and her leader, any estimate of five days for this trial is unrealistic. Further, the trial would not simply run over the time allotted, requiring the vacating of other trials, but would run in circumstances where the plaintiff complains that decisions made by his legal advisers as to witnesses and choice of counsel, made on the basis of a judge-alone trial, may put the plaintiff at a disadvantage.

[25] As to the other matters referred to by Ms Rees in paragraph 20, I have been informed that the plaintiff did not in fact brief Mr Littlemore QC (this having been put forward as a guarantee that a party represented by Mr Littlemore QC would not be troubled by a jury trial). The defects in the defence are the problems adverted to in Bechara v Bonacorso (No 2), namely the difficulties caused by a defendant denying publication of the matter complained of while asserting a defence of qualified privilege. These difficulties remain unresolved.

[26] Ms Rees said it was the lawyers' fault, not the defendant's, and relied upon Calvert v Stollznow [1980] 2 NSWLR 749. The blamelessness of a party, as opposed to the conduct of his legal representative, is one of about a dozen matters taken into account in applications to strike out for want of prosecution, for the reasons explained by Harrison M in AN v New South Wales [2003] NSWSC 100 at [31]. I note in passing that in Razvan v Berechet (NSW Court of Appeal, 23 February 1990) Kirby P referred to delay "on his, or his lawyer's part" in a defamation action, without differentiating between the two.

[27] However, as Ms Chrysanthou pointed out in reply to this submission, this is not a case where the defendant is denied a defence; the defendant is still able to defend his cause of action before a judge. The extreme circumstances in which a court would strike out a cause of action, or a defence, are not analogous to an application to amend, or to bring an application of the nature that is before me today.

[28] Ms Chrysanthou also referred to the case management principles set out in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27: (1) This was not an amendment to enable the real issues to be dealt with in the proceedings, but a request for those issues to be determined by a jury rather than a judge. Although a consideration of the "real" issues could extend beyond the pleadings, there was no inherent injustice in a judge hearing the matter and thus no injustice warranting a late and significant amendment ( AON Risk Services Australia Ltd v Australian National University at [31], [71], [82]);

(2) It is incumbent upon any party seeking a material amendment to the case which will change the format, complexity or length of the trial, to provide an explanation for failing to do earlier ( AON Risk Services Australia Ltd v Australian National University at [5], [14]). Reliance upon negligence of the lawyers for the plaintiff is not an adequate explanation and amounted to an unsatisfactory explanation ( AON Risk Services Australia Ltd v Australian National University at [5], [114]);

(3) A delayed determination of the facts in issue was inevitable if the hearing proceeded with a jury, which was relevant to the just resolution of the issues in dispute between the parties, and militated against the granting of the relief sought. This was not a matter where any costs could remove the harm of a vacated hearing date or a hastily prepared trial ( AON Risk Services Australia Ltd v Australian National University at [99]). The defendant did not seek an adjournment, nor was there any offer to pay costs, even on a party-party basis, occasioned by the lateness and inconvenience;

(4) For the reasons explained in AON Risk Services Australia Ltd v Australian National University , both in the High Court and in the Full Court of the Supreme Court of the ACT, the application should be dismissed, with costs on an indemnity basis.

[29] However, the real difficulty in this case is that one party has filed a document which it has never served, and has proceeded to conduct the case in court without telling the opponent's solicitor or his counsel that a jury trial was sought.

[30] Service of filed documents must be made on all active parties. Part 10 r 10.1(1) of the UCPR relevantly provides: "(1) Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party."

[31] I further note it is not possible, three weeks before the trial, to change the length of this trial to accommodate a two to three week jury trial, and for reasons relating to the convenience of the court, the hearing would have to be vacated. I have indicated to the parties that the matter might well have to be adjourned until November. While this is a comparatively unimportant matter, compared to the significant need of the parties to retain an already allocated hearing date, and the right of a party to a jury, it nevertheless must be taken into account.

[32] For these reasons, I strike out the Notice of Intention to proceed by way of a jury trial filed on 7 July 2009 and decline to alter my order of 4 September 2009 listing this matter as a 5-day non-jury trial commencing on 17 May 2010.

[33] In his letter of 29 March 2010 Vasilios Kalantzis stated that by reason of the lateness and lack of notice, indemnity costs would be sought if the application proceeded.

[34] In the course of argument I referred to the judgment of Penfold J in AON Risk Services Australia Ltd v Australian National University where her Honour said: "66. The effect of the respondent's tactical decisions, if the amendment to the further amended statement of claim is allowed, will certainly go beyond inconveniencing the applicant. As identified in the evidence of Ms Carr, solicitor for the applicant, it will involve the applicant's solicitors in a substantial amount of new work and probably involve costs for expert witnesses who would not otherwise have been required. On the other hand, no claims were made about witnesses with failing recollections, witnesses who have, or are likely to, become unavailable, or anything else that might result in prejudice that could not be compensated in costs or otherwise. Thus, the identified prejudice - put simply, a large amount of extra work by the applicant's solicitors and possibly extra witness costs - is prejudice of the kind that could adequately be compensated by an appropriate costs order.

69. As I have indicated above, in this case the proper compensation could only be provided by an order for indemnity costs, and in this context I respectfully adopt the remarks of Healy J in Sydney Markets Ltd v Sydney Flower Market Pty Ltd [2001] FCA 662 in which he said at [8]:

"Whilst I feel obliged to grant the adjournment application, if there were any prejudice to the respondent, then my attitude would be quite different. I think that anything less than an indemnity costs order would occasion prejudice to the respondent through an occurrence which is no fault of the respondent, and which lies entirely at the door of the applicant.""

[35] Solicitors who file, but fail to serve, pleadings may, in some circumstances, place their opponents at a very real disadvantage. This case is a good example.

[36] The matters raised in the plaintiff's solicitor's letter of 31 March 2010 in my view clearly constitute grounds for the award of indemnity costs. There was a total failure to comply not only with court rules but rules of professional courtesy.

[37] I have considerable sympathy for the defendant, who gave his solicitors clear instructions from the start, and took immediate action as soon as he read the Caselaw judgment. I would hope that the solicitors for the defendant would accept responsibility for the errors in their office which led them to fail to carry out those instructions, but do not propose to do more than note this view.

(1) Defendant's application for leave to extend time for an election for trial by jury is refused. (2) Defendant is to pay the plaintiff's costs on an indemnity basis. (3) Gibson DCJ to email the parties reasons for decisions by reason of lateness of the hour. (4) Matter stood over for further directions to 29 April 2010 at 9:00am.

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