Consideration
24 I have come to the firm conclusion that this is not an appropriate case in which to exercise my discretion to grant the respondents' application for a jury trial. That is because I am satisfied that the respondents made a considered decision not to apply for a trial by jury after they had had a fair and sufficient opportunity to consider that question on or before 15 July 2016, pursuant to order 3 made on 12 May 2016.
25 In exercising the Court's case management powers, Pt VB of the Federal Court Act imposes obligations on the Court, the parties and their lawyers to facilitate the achievement of the overarching purpose of the civil practice and procedure provisions prescribed in s 37M(1), namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
26 While it is true, as the respondents argued, that the Rules do not prescribe any particular time by which an application under s 40 may be made, order 3 made on 12 May 2016 did. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 215 [103], Gummow, Hayne, Crennan, Kiefel and Bell JJ said that:
Generally speaking, where a discretion is sought to be exercised in favour of one party and to the disadvantage of another, an explanation will be called for. (emphasis added)
27 In Tamaya Resources Limited (in Liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 226 [154]-[157], Gilmour, Perram and Beach JJ emphasised the importance of the giving of an explanation by a party who seeks a favourable exercise of a discretion to be afforded a further forensic opportunity to do something in the proceedings that the party had not done or failed to do earlier. They said:
[154] Just what explanation is called for will necessarily depend upon the particular case. The explanation will be given by, or on behalf of, the moving party. Affidavit evidence may or may not be necessary. In Cement Australia [Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261], for example, as the explanation was that the error was one of judgment by senior counsel for the ACCC, a statement by him from the bar table, to which no objection was taken, was accepted by the Court as sufficient.
[155] It must be borne in mind that the explanation required is that of the moving party, not merely their solicitor or counsel. The client may very well know of matters relevant to the explanation for delay which are not known by the lawyers.
[156] Evidence as to the explanation for delay will often be given by an applicant's solicitor from their own knowledge but that may, in some cases, not be sufficient. This is such a case. The primary judge was correct to conclude that the explanation offered by Tamaya was deficient because Ms Banton could not explain why she did not know of the Chilean audit issues until she was told by Mr Basford. Her Honour's approach does not involve any error of principle.
[157] We observe, in this respect, that in Aon the plurality had regard to letters which were in the possession of the ANU one year or so before proceedings commenced and which bore on the issues the subject of the amendment application as relevant to the consideration of the adequacy of the explanation for the delay: Aon at [54] and [106]. (emphasis added)
28 I accept that the lawyers for the respondents gave consideration to the making of an application for trial by a jury at, or shortly before, their counsel made the statement during the course of the directions hearing on 27 September 2016 to which I have referred. However, that does not explain, in any way, what reasoning process the respondents themselves adopted earlier when they decided not to make an application in accordance with the order made on 12 May 2016, or, why they subsequently changed their minds.
29 This is not a case in which the respondents' lawyers suggested that they or their clients had made some error of judgment at that earlier stage of the proceedings, or that some new circumstance had occurred so as to warrant their change of course. Nor is there any explanation as to why the respondents gave instructions to make the present application. The respondents had filed their original defence on 20 June 2016, that pleaded justification, a month before 22 July 2016, being the time fixed by order 3 made on 12 May 2016 for them to apply for a trial by jury.
30 At this stage neither party has exchanged any outlines of evidence of the witnesses whom each proposes to call, in accordance with orders 11 and 12 that I made on 27 September 2016. Those orders required the respondents, as the parties alleging serious criminal and civil wrongdoing by Mr Gregg, to serve outlines of their witnesses' evidence first, and then for Mr Gregg to serve his witnesses' outlines in reply. Nonetheless, if I were to order a trial by jury, it would be necessary to revisit precisely how the evidence would be called at trial and probably to make rulings in advance of the trial as to substantive disputes concerning admissibility, in order that the trial could proceed with the jury in as smooth and convenient way as possible.
31 Were I to order a trial by a jury at this time, I am of opinion that it would be necessary to make substantive further procedural directions as to how the proceedings should be prepared for trial and to have significant preliminary hearings as to the admissibility of evidence proposed to be led in relation to the justification defence. In addition, there would be a need to craft careful directions relating to the way in which evidence was to be called before the jury. A jury trial potentially would take significantly longer than the four weeks estimate given for a trial by a judge alone.
32 The factor that a jury trial may involve greater complexity, may or may not ultimately weigh in determining whether or not a trial by jury ought be ordered under s 40 of the Federal Court Act in particular cases. However, s 80 of the Constitution requires trials on indictment for serious criminal offences against the laws of the Commonwealth to be heard by juries, and trials of that nature are heard every day in the nation's criminal courts. Indeed, experience has shown that often civil trials by juries are shorter and more efficient for the reason that parties need to tailor their cases appropriately to the real issues in dispute so as not to lose the attention and potential sympathy of the jury in determining the outcome of the proceedings. Frequently, a trial by a judge alone involves the judge being deluged with an overwhelming amount of unnecessary evidence in the thought that, if all is given to the judge, somehow that will make things clearer rather than more obfuscated.
33 Section 11 of the Defamation Act 2005 (NSW) and its analogues in every State and Territory provide that in cases of multiple publications, the law of the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection, will be the substantive law for determining all of the rights and liabilities of the parties.
34 I reviewed the authorities that I considered to be relevant to the exercise of the discretion under s 40 of the Federal Court Act in Ra v Nationwide News Pty Ltd (2009) 182 FCR 148. Besanko J, in Roozendaal 232 FCR 487 declined to follow my decision and held that the historical mode of trial in defamation actions at common law and in New South Wales, as the venue of the trial, was largely irrelevant to the exercise of the discretion under s 40. He considered that the general policy of trial by judge alone was settled by the words of ss 39 and 40 of the Federal Court Act. He said that the respondents in that case had not established a sufficient reason to depart from the normal mode of trial (232 FCR at 495 to 496 [26]-[27]).
35 It is important that applications under s 40 are not hamstrung by the artificial development of implications, or unstated limitations, that the words of the section do not themselves convey, in the context in which they appear in connection with the general policy evinced by s 39 of the Federal Court Act. In Owners of "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 at 421 Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said:
It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.
36 Those principles were echoed by Gummow, Hayne, Heydon and Kiefel JJ in Campbell v Backoffice Investments Pty Limited (2009) 238 CLR 304 at 361 [178] where they said that a power given to a Court under s 233(1)(d) of the Corporations Act, in relation to an oppression action, "should not be hedged about by implied limitations".
37 The Parliament has conditioned the exercise of the power, in s 40 of the Federal Court Act, to direct a trial with a jury of a suit or issue of fact in circumstances "in which the ends of justice appear to render it expedient to do so". The ordinary natural meaning of the word "expedient" includes:
conducive to advantage in general or to a definite purpose; fit proper or suitable to the circumstances of the case; something that helps forward or that conduces to an object, a means to an end (Oxford English Dictionary online); and
tending to promote some proposed or desired object, fit or suitable for the purpose, proper in the circumstances, conducive to advantage or interest as opposed to right (Macquarie Dictionary online).
38 Those meanings convey the sense in which "expedient" is used in s 40, namely that, the moving party for a trial by a jury must satisfy the Court that the ends of justice appear to render a trial by a jury convenient or likely to promote the overarching purpose of the civil practice and procedure provisions. To the extent that Besanko J expressed a different view in Roozendaal 232 FCR 487, I respectfully disagree with his Honour.
39 The issue is whether the moving party has satisfied the Court or, perhaps, the Court itself is satisfied, that the ends of justice render it expedient to order a trial by a jury. That discretion must be exercised having regard to, among other things, the general policy in s 39 that the Parliament has selected, namely that, ordinarily, trials in this Court should be by a judge alone without a jury.
40 Nonetheless, where the law of the place at which the Court is sitting is the substantive law to be applied in the way in which, as s 11 of the Defamation Act operates, that law is relevant to, but not determinative of, the selection of the mode of trial for the purposes of s 40 of the Federal Court Act. I have written on this elsewhere: S Rares: Defamation and Media Law update 2006: Uniform National Laws and the Federal Court of Australia (2006) 28 Aust. Bar Review 1: S Rares: The Jury in Defamation Trials (2010): 33 Aust. Bar Review 93.
41 It is likely that the publications in The Age have their closest connection in Victoria, where the Defamation Act 2005 (Vic) is materially identical to the New South Wales Act, including in requiring a trial by jury where a party makes an election for that mode of trial, and that the publications in The Canberra Times have their closest connection with the Australian Capital Territory where the Civil Law (Wrongs) Act 2002 (ACT) does not provide for any civil trials by jury, in particular in Ch 9, in respect of defamation actions. However, the extent of publication in The Canberra Times is likely to be much smaller than those for The Sydney Morning Herald and The Age.
42 Nonetheless, for the reasons I have given earlier, in my opinion in this matter, the respondents have not persuaded me that it is expedient in the interests of justice to order a trial by jury, having once had and, for unexplained reasons, recanted from their opportunity to make this application at an earlier stage of the proceedings. It is not desirable to encourage parties to proceedings who do not advance, at least, some substantive explanation for doing so, to seek to change their course in proceedings, after having made a deliberate choice of how they wish them to proceed. A mere change of heart as to whether such a choice may or may not suit the party forensically in a way in which he, she or it declines to explain, is calculated to result in the Court being unpersuaded to exercise the discretion in the party's favour.
43 Whether I would have ordered a trial by jury under s 40, had the respondents made a prompt application in accordance with the orders of 12 May 2016, is not necessary for me to decide. Nor is it necessary for me to resolve the many disputed arguments, as to whether these proceedings should have been heard by a jury, which each of the parties addressed on the particular factual circumstances of this matter.