Chel v Fairfax Media Publications Pty Limited

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."
2. 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."
2. 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.
3. 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.

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