//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2025] NSWCA 267
respondent. Leave to appeal granted; appeal dismissed with costs.
The Court of Appeal said that an elected jury trial is an important entitlement, but the court can order that a defamation case proceed without a jury. Under the general power in s 21(1), it cannot do so merely because jury trials are generally slower, more expensive or otherwise have inherent features. Those features can be relevant where particular circumstances make them significant. The separate power in s 21(1A) applies only when its specified conditions are met; the plaintiff's health was not an issue for the jury to decide, so that power did not apply here. The primary judge's decision was nevertheless consistent with the principles governing the general power, and the plaintiff did not show that the judge overlooked his argument about forensic prejudice. The Court granted leave to appeal because the statutory approach raised a question of principle, but dismissed the appeal with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,215 words · generated 06/10/2026
8 cited instruments linked from this judgment.
Hooper v Phipps [2025] NSWCA 267 concerned an interrupted defamation trial in the District Court of New South Wales and the statutory power to continue a defamation proceeding without a jury. McHugh JA delivered the principal reasons. Kirk JA and Stern JA agreed with those reasons ([1]-[3]).
The case had already experienced two discharged jury trials. Mr Hooper's first trial ended after he collapsed while giving evidence and was taken to hospital ([43]). The second trial ended after an electricity blackout at the court building and an accident in which counsel for the respondents was injured ([44]).
The third jury trial began on 21 July 2025 before Gibson DCJ. After five hearing days, Mr Hooper suffered another medical episode and was admitted to hospital. The evidence had finished and the respondents' counsel had addressed the jury. What remained was Mr Hooper's closing address, the judge's summing up, the jury's deliberations, and the judge's determination of any damages ([45]).
The judge canvassed alternatives, including proceeding with Mr Hooper listening remotely and discharging the jury to allocate a fresh trial date. Mr Hooper chose discharge of the jury and a fresh hearing, adding that he would withdraw counsel's instructions if counsel made an address. The jury was discharged ([45]).
The respondents later applied for the trial to continue without a jury. Gibson DCJ granted that application. Her principal reasons were Mr Hooper's health, given the repeated trial disruptions, and the undesirability of another trial after the evidence had been completed ([47]-[51]). She identified s 21(1A) of the Defamation Act 2005 (NSW) as the source of power. On appeal, the parties accepted that Mr Hooper's health was not an issue to be resolved by the jury and so did not engage s 21(1A)(b) ([54]-[56]).
The Court granted leave because the case raised a question of principle about s 21, but dismissed the appeal with costs ([5], [76], [84]).
The Court separated two statutory powers. Section 21(1) allows a plaintiff or defendant to elect for a jury trial, “unless the court orders otherwise”. Once the election is made, the party has an entitlement to that mode of trial, but it is defeasible by a properly exercised court power ([21], [24]). The general power in s 21(1) has no express criteria. Its exercise is nevertheless constrained by statutory context, legal principle and the interests of justice ([25]-[28], [42]).
The central limit, drawn from Pambula District Hospital v Herriman and applied in the defamation setting through Channel Seven Sydney Pty Ltd v Fierravanti-Wells, is that a court cannot dispense with a jury merely because of universal characteristics of jury trial. If ordinary features such as expense, delay or the availability of judicial reasons were by themselves enough, the elected entitlement would be substantially undermined ([28]-[30], [38]). The judgment also makes clear that this does not make jury-trial features invariably irrelevant. Where case-specific circumstances give a general feature particular significance, the court may consider it ([29], [38]).
The second power, in s 21(1A), is different. It applies only if a trial requires a prolonged examination of records, or involves a technical, scientific or other issue that cannot conveniently be considered and resolved by a jury ([17], [31]). The words “other issue” refer to an issue for the tribunal of fact to decide, rather than any factor relevant to the court's discretion ([35]). Mr Hooper's health affected the practical conduct of the trial but was not itself a question for the jury to determine. Thus s 21(1A) was not engaged ([50], [55]).
That did not resolve the appeal. Mr Hooper accepted that the general s 21(1) power was available and did not maintain that the judge's decision was inconsistent with its principles ([56]-[60]). The Court considered that the primary judge had acknowledged the jury-trial entitlement, referred to the relevant authority, and did not base her decision on general jury-trial characteristics such as cost or duration ([59]). The specific circumstances included repeated disruption caused by medical emergencies and the prospect of a fourth trial when the evidence was complete ([48]-[51]).
The applicant's remaining argument was that the judge failed to consider prejudice from changing to a judge-alone trial after counsel had conducted the case for a jury. The Court found that the judge had identified the argument in her reasons and had engaged with it during oral submissions ([67]-[72]). Although the claimed effect of the trial mode on counsel's forensic decisions could be real, Mr Hooper identified no particular question he would have asked differently, no witness he would have called or not called, and no specific step demonstrating actual prejudice ([73]-[75]). The alleged House v The King error was therefore not established.
The judgment explains the earlier statutory and historical setting to illuminate the current s 21. Before the 2005 Act, defamation proceedings in the Supreme Court and District Court were generally required to be tried before a jury. The relevant statutes included limited powers to proceed without a jury where prolonged examination of documents, or scientific or local investigation, could not conveniently be undertaken with a jury, or where all parties consented ([36]).
The 2005 Act changed the framework. Jury trial was no longer the default for defamation cases; a party had to elect for it. Section 21 combined a general power to order otherwise with the more specific criteria-based power. The judgment treats the general power as comparable in relevant respects to the general power considered in Pambula, while the specific power reflects the earlier defamation-specific exceptions ([29], [36]).
The Court described an elected jury trial as a substantive entitlement. Fierravanti-Wells had called it a “vested or accrued substantive right”, and the Court adopted that understanding as important context for construing the discretion ([21]). But the entitlement is not absolute: the statutory powers permit it to be displaced where properly exercised ([40]).
Historically, juries in New South Wales defamation cases had roles that were more extensive than their later functions. Under s 7A of the Defamation Act 1974, the jury determined whether the matter carried an imputation and whether it was defamatory, while the judge decided defences and damages ([13]). Under the 2005 Act, the judge determines damages and related issues after a plaintiff's success on liability ([14]). The Court therefore rejected any suggestion that a jury is constitutionally indispensable to the administration of defamation law ([15]-[16]).
As to the outcome's implications, the judgment supplies a structured interpretation of the two powers, but it does not announce a change to the text of s 21. It confirms that the general discretion must respect the elected entitlement and cannot rest only on universal jury-trial characteristics. It also clarifies that s 21(1A)(b) concerns issues for the fact-finder, not general practical difficulties in managing a trial ([35], [38]-[42]).
The judgment applies the version of the Act relevant to a 2018 publication, while using the current numbering for convenience because the parties agreed there was no material difference for the appeal ([19]). That qualification matters when using the reasons in a later matter: the applicable statutory version and numbering should be checked against the publication date and transitional provisions.
Elected jury trial and the general power. At [24], the Court says s 21(1) does not prevent a party from making a proper election. It empowers the court to deny the consequence of that election, namely a jury trial. In plain English, the election matters, but it does not remove the court's authority to order a different mode of trial.
Limits on relying on general jury characteristics. At [38], the Court says the general power cannot be exercised “based only” on universal jury characteristics. However, where the particular case supplies a good reason to consider dispensing with a jury, features of jury trial can be relevant if they matter in those circumstances. The distinction is between a generic preference for judge-alone trials and a case-specific justification.
The s 21(1A)(b) boundary. At [35], the Court states that an “other issue” must itself be a matter for decision by the tribunal of fact. In ordinary terms, a difficulty does not fall within the provision merely because it makes a jury trial inconvenient. The issue must be one the jury would have to consider and resolve.
The governing touchstone. At [42], McHugh JA says the discretion is exercised “judicially and in the interests of justice”. The historical importance of juries informs the construction of the power, but the Court says that history adds little to the entitlement already expressed by s 21(1) when the discretion is applied to a particular case.
Forensic prejudice. At [73], the Court did not deny that jury trial can shape counsel's decisions. Its reasoning was evidentiary and particular: without examples of decisions or questions affected by the mode of trial, it was difficult to give substantial weight to a claim of actual prejudice. The Court did not state that such prejudice can never matter.
The decision is most directly relevant when a party has elected for a jury trial in a New South Wales defamation proceeding and another party seeks an order under s 21 to proceed without one. It supplies the general approach to distinguishing the unconfined discretion in s 21(1) from the criteria in s 21(1A).
It is particularly relevant where an application relies on features said to be inherent in jury trials, such as practical inconvenience, delay or trial management. Under the Court's account of s 21(1), such general features alone are insufficient; the application needs a case-specific reason. A general feature may still be considered if it has particular significance in the case before the court ([28]-[30], [38]).
It also applies where the asserted s 21(1A)(b) issue is not part of the fact-finder's task. The reasoning indicates that a party's health or a practical obstacle to conducting the hearing does not, without more, constitute an “other issue” for the jury to resolve ([35], [55]). The judgment does not define every type of issue that may satisfy s 21(1A)(b), so its application to technical or other fact-finding questions depends on the statutory words and facts in the particular proceeding.
Finally, the decision is relevant to a mid-trial change of mode. It recognises that forensic choices made for a jury may be raised as a prejudice concern, while illustrating the importance of identifying how the change affected the case in concrete terms ([65]-[75]). It should not be read as holding that only specified examples of forensic decisions can count.
The supplied judgment does not contain any later judicial treatment of Hooper v Phipps itself. It is therefore not possible, from this source alone, to say whether later courts have followed, distinguished or limited its reasoning.
The judgment does discuss authorities that pre-date it and explains their role. It treats Pambula District Hospital v Herriman as central to the restriction on relying solely on universal characteristics of jury trial, and describes Channel Seven Sydney Pty Ltd v Fierravanti-Wells as applying that approach in the context of s 21 ([28]-[30], [41]). It also cites Patton v Buchanan Borehole Collieries for the proposition that the power can be exercised after trial has commenced ([42], [66]).
The judgment refers to Licha v Joseph and Australian Education Union v Department of Education and Children's Services when discussing whether an order made under an incorrectly identified source of power might be supported by another available source. It expressly leaves the broader appellate question undecided in this case because it was unnecessary to resolve it ([61]-[64]). Those passages should not be described as deciding that question for all appeals.
The Court did not decide whether an order made under a power that was not available can nevertheless be upheld on appeal because another power could have supported the same order. It outlined the possible relevance of the principle in Licha and administrative-law authority, but said the question need not be determined in light of the applicant's position ([61]-[64]).
The reasons also note that what counts as a “universal characteristic” of jury trial is debatable, referring to Fierravanti-Wells ([30]). Hooper explains how the distinction operates in the circumstances before it, but does not provide an exhaustive classification of features that are universal, or of when a universal feature has particular significance in an individual case.
The judgment does not establish a checklist for assessing claimed forensic prejudice from a change of mode. It found the argument insufficient in this case because no concrete manifestation was identified, while acknowledging that the influence of trial mode on counsel's decisions can be real ([73]-[74]). The weight of such a claim where specific decisions and their consequences are demonstrated remains dependent on the circumstances.
Finally, the discussion of the historical role of juries explains the statutory context, but the Court says that history should not be overstated when applying the discretion in an individual case ([16], [41]-[42]). The supplied reasons do not address how later amendments or later decisions might affect that balance.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hooper v Phipps [2025] NSWCA 267
Hearing dates: 5 December 2025
Date of orders: 12 December 2025
Decision date: 12 December 2025
Before: Kirk JA at [1];
Stern JA at [2];
McHugh JA at [3]
Decision: (1) Grant leave to appeal.
(2) Dismiss the appeal with costs.
Catchwords: DEFAMATION — Practice and procedure — Trial by jury — Discharge of jury — Application for trial to continue without jury — Defamation Act 2005 (NSW), s 21 — Applicable principles — Whether primary judge identified incorrect source of power — Whether primary judge failed to take into account argument that change in mode of trial would occasion prejudice to applicant
Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 20C, 38S, 49ZE, 49ZT, 49ZXB, 108
Defamation Act 1974 (NSW), s 7A
Defamation Act 2005 (NSW) (as at March 2018), s 21
Defamation Act 2005 (NSW) (currently in force), ss 21, 22, 25, 29A, 30, 31, Sch 4
District Court Act 1973 (NSW) (as at 1 January 2006), s 76A
District Court Act 1973 (NSW) (as at 25 October 2005), s 76B
Supreme Court Act 1970 (NSW) (as at 1 January 2006), s 85
Supreme Court Act 1970 (NSW) (as at 15 July 1988), ss 86, 88, 89
Supreme Court Act 1970 (NSW) (as at 25 October 2005), s 86
Supreme Court Act 1970 (NSW) (currently in force), s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 51.53
Cases Cited: Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1; [2012] HCA 3
Cassell & Co Ltd v Broome [1972] AC 1027
Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246
G & J Shopfittings & Refrigeration Pty Ltd (in liq) v Lombard Insurance Company (Aust) Ltd (1989) 16 NSWLR 363
Hooper v Phipps (No 3) [2025] NSWDC 370
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 568; [1997] HCA 25Lehrmann v Network Ten Pty Ltd [2025] FCAFC 173
Licha v Joseph [2025] NSWCA 192
Palmer v Clarke (1989) 19 NSWLR 158
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14; [1993] HCA 23
Roberts-Smith v Fairfax Media Publications Pty Ltd and Others (Appeal) (2025) 310 FCR 170; [2025] FCAFC 67
TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682
Texts Cited: New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005
Category: Principal judgment
Parties: John Hooper (Applicant)
Julia Phipps (First Respondent)
Willoughby City Council (Second Respondent)
Representation: Counsel:
K Smark SC (Applicant)
M Richardson SC; T Senior (Respondents)
Solicitors:
Mark O’Brien Legal (Applicant)
RGSLAW (Respondents)
File Number(s): 2025/390041
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant, Mr John Hooper, commenced proceedings in defamation against the respondents, Ms Julia Phipps and Willoughby Shire Council. At the first trial, the jury was discharged because the applicant suffered a medical episode. At the second trial, the jury was discharged for reasons unrelated to the applicant’s health.
The applicant’s third trial before a jury commenced on 21 July 2025 before Gibson DCJ. At the end of the fifth day, the applicant had a further medical episode and was admitted to hospital. 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. The applicant asked that the jury be discharged, and a fresh hearing date be allocated. He added a further rider that if his counsel made any address, he would withdraw his counsel’s instructions. The jury was discharged.
On 14 August 2025, the respondents applied for the trial to continue without a jury. Gibson DCJ granted the application. Her Honour identified the power she was exercising as s 21(1A) of the Defamation Act 2005 (NSW). Section 21 relevantly provides:
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.
(1A) 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.
(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.
The applicant sought leave to appeal that decision on two bases. First, that the primary judge incorrectly identified the source of her Honour’s power. Secondly, that she failed to take into account an argument relied on by the applicant. That 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 that mode of trial after the event, so close to the end of trial, would cause him prejudice.
The Court held (McHugh JA, Kirk and Stern JJA agreeing) granting leave to appeal and dismissing the appeal:
(1) Section 21(1) confers an entitlement to trial by jury on parties who elect for it. Section 21(1) also confers a general discretionary power on the court to “order otherwise”, which may be exercised at any time. In light of the entitlement to trial by jury which subs (1) confers, the power to “order otherwise” may not be exercised wholly on the basis of the universal characteristics of trial by jury. But where there is good reason in the circumstances of a given case to “order otherwise”, the court may take into account universal features of trial by jury that have particular significance in those circumstances. Beyond that, the discretion is to be exercised judicially and in the interests of justice: [22], [25]-[30], [38], [41]-[42].
Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246; Pambula District Hospital v Herriman (1988) 14 NSWLR 387, discussed.
Patton v Buchanan Borehold Collieries Pty Ltd (1993) 178 CLR 14; [ 1993] HCA 23, cited.
(2) The discretionary power in s 21(1A) is engaged only where the criteria in pars (a) or (b) are satisfied. That power will be engaged in some circumstances that may stand outside the subs (1) power because they are universal characteristics of trial by jury: [22], [39].
(3) In the present case, the power in s 21(1A) was not engaged because 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). However, the primary judge’s decision was made in accordance with the principles applicable to exercising the power in subs (1), and in those circumstances the applicant took no point as to the identification of the proper power: [35], [55]-[59].
(4) The primary judge correctly identified the applicant’s argument regarding the prejudice he would suffer if the mode of trial were changed. The applicant did not establish that her Honour failed to take that argument into account: [67]-[74].
(5) Discussion of the significance for the exercise of the powers in s 21(1) and (1A) of the historical role in NSW of trial by jury in defamation cases: [6]-[16], [41]-[42].
KIRK JA: I agree with McHugh JA.
STERN JA: I agree with McHugh JA.
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.
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.
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.
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.
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)).
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.
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 A**ustralian B**roadcasting C**orporation (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).
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.
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.
(1A) 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.
(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) An election may be revoked only—
(a) with the consent of all the parties to the proceedings, or
(b) if all the parties do not consent, with the leave of the court.
(4) The court may, on the application of a party to the proceedings, grant leave for the purposes of subsection (3)(b) only if satisfied it is in the interests of justice for the election to be revoked.
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.
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.
Several points should be noted about the legislative framework.
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.
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.
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.
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.
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].
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:
“an unfettered discretion ‘unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view’: Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 per Dixon J; see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [22] per Gaudron and Gummow JJ.”
“Prima facie, a grant of power to a court (including the conferral of jurisdiction) should not be construed as subject to a limitation not appearing in the words of that grant. Rather it should be construed in accordance with ordinary principles and the words used given their full meaning unless there is something to indicate to the contrary. It is inherent in the conferral of such a power that it must be exercised judicially and in accordance with legal principle, thus warranting ‘the most liberal construction’ of the power because such a requirement would exclude the possibility that the power might be exercised ‘arbitrarily or capriciously or to work oppression or abuse’”.
Citations omitted.
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.
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.
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.
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.
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).
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):
In any proceedings to which section 88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where —
(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.
That power was thus akin to the power in s 21(1A).
“This is not to say that the general characteristics of jury trials, as such, may not have consequences upon a particular litigant that would warrant account being taken of them, in exercising the discretion under the section as they produce such consequences. Thus, if a litigant was seriously ill or dying, the difficulties and delays of the jury list or of jury trial itself, would certainly be relevant considerations to be taken into account, as Clarke J suggested in Peck v Email Ltd.”
Emphasis supplied.
“Accordingly, I agree in general with what the President has written about the necessity to exclude from examination in the exercise of this discretion matters which are wholly general or universal, and which raise only the inherent and inevitable consequences of employing juries in civil trials. … Accordingly, in order to make good an application to dispense with a jury it is not enough to point to the supposed deficiencies of jury trial. It is necessary to show grounds which are particular to the case in hand. These may of course be produced by the pressure of singular circumstances upon the general character of a jury trial. For example, the state of the jury list, if it entails a delay likely to exceed a plaintiff’s life expectancy, would be a matter involving the particular application of a general condition. …”
Emphasis supplied.
The second s 21 power, in subs (1A), is engaged only where the criteria in pars (a) or (b) are satisfied.
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).
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.
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.”
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.
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 .
In the result, s 21 contains two distinct powers that are relevant for present purposes.
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.
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.
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.
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.
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 (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 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.
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.
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]:
“[10] … The parties agree that there were three options before the court:
(a) [Counsel for the respondents’] proposal was that the plaintiff listen to his counsel’s closing address in real-time by audio-visual link or telephone and that the hearing proceed, with a suitable explanation for his absence to the jury.
(b) I suggested an extension of this proposal, namely that in addition to the plaintiff being able to listen via AVL, if he were well enough, a transcript of the closing address could be provided to enable the plaintiff to review it. [Counsel for the applicant] could then return the following day or the day after, to make any such further address as the plaintiff wanted to be made prior to my summing up.
(c) The alternative was that the jury be discharged and a fresh hearing date allocated at some time in the future.
[11] The plaintiff elected the third of these alternatives, adding the further rider that if his counsel did make any address, he would withdraw his instructions. The jury was accordingly discharged.”
It will be necessary to say something below about the “rider” referred to at J[11].
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.
Her Honour identified two principal reasons which led her to grant the application: see J[21]-[23], J[30], J[47].
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.”
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”.
Her Honour cited a number of cases in support of the second reason. These included the statement in TCN Channel 9 Pty Ltd v Antoni**adis (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 Clark**e (1989) 19 NSWLR 158 at 164 that retrials were “an evil and a deplorable result, to be avoided wherever possible”.
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.
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 contains the following grounds:
“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.”
“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.”
(Ground 3 was not pressed.)
“The primary judge erred in not dismissing the respondents’ application to dispense with the jury.”
Grounds 1 and 2 were pressed only faintly.
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].
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.
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.
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.
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.)
It is clear that the primary judge’s approach to the power was consistent with an exercise of discretion pursuant to subs (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].
At J[27], her Honour quoted from Fierravanti*-Wells* at [46], being the passage addressing the power in s 21(1) referred to above.
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: *-Wells* at [83].”
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.
The applicant referred to observations about the potential for prejudice arising out of a change in the mode of trial in G & J Shopfitting**s & 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.
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:
“[Counsel for the applicant] submitted that both parties had made forensic and presentation decisions governed by the mode of trial, and that ‘the only real way to preserve fairness is to conclude the trial in the form in which it began’ (submissions, paragraph 4). He added, in oral submissions, that if there were a fresh trial before a judge sitting alone, this would be an appropriate way for the next trial to be conducted; his concern was to obtain a fresh trial on all issues, rather than the mode of the trial. A new trial was necessary, he submitted, because these ‘ineffable’ decisions on case management had been made by counsel on the basis of what would be acceptable to the jury as opposed to a judge.”
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.
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.
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:
“EDWARDS: … [T]here are ineffable and indefinable decisions made in the running of a jury trial that may be different to decisions that would have been made in the running of a judge-alone trial.
HER HONOUR: That was one submission I was expecting one or both of you to make, but the thing is, while there are ineffable decisions made of that kind, if it’s before addresses or partway through addresses, that can still be dealt with by reason of granting leave to reopen.
EDWARDS: Yes, your Honour.
HER HONOUR: So I think that I have considered that, and if there was any such step, for example, calling or not calling a witness, asking for certain evidence to be excluded, asking for a ruling, that’s something that could be accommodated into a timetable. So I don’t know that that’s really going to be a difficulty, but thank you for mentioning it. I’ll call it the ineffable submission, because that is something that, owing to the circumstances in which the trial stopped, as long as there was a timetable, that could be accommodated. …”
“HER HONOUR: … I wanted to ask you about something. You said that both parties had made ‘ineffable forensic presentations’, but the thing is, I think, if they were ineffable, you’d still have to tell me what they were. I mean, what witnesses did you not call because it was the jury?
EDWARDS: Well, that, your Honour, is not so much. The essence of the problem is that, having prepared and run the matter as a jury trial, the omelette can’t be unmade. There are decisions made about the way evidence is not only adduced but presented and pitched. There are questions about what evidence falling from particular witnesses is cross-examined on and is not cross-examined on. These are things that are the product of counsels’ experience and judgment in that particular context made at the time. The point I’m making is there’s nothing wrong with that, but because that is the way both parties have conducted it, it is the way the proceeding should be concluded, that is, by counsel for the plaintiff delivering the address that I was prepared to deliver shortly before I could not.
HER HONOUR: Yes. Well, there’s just one problem with that, that, in fact, the same may be said about the evils of retrials; that retrials are just as unfair because, in a sense, they’ve said it all before, and you end up comparing it to what was said before, and people feel that they haven’t got as fair a go the second time around, or whatever. …”
Then:
“HER HONOUR: Yes, it’s one factor, so is the ineffable point that is raised. But the other thing about this, in terms of ineffable, is that this might be the case if there were defences like qualified, privileged, comment[], and the like, but this is just a case about is it true; just a simple – I mean, is it true? And I think it would be fair to assume that you ask all the really tough questions of the defendant’s witnesses, just like they ask all the really tough questions of your client.
SENIOR: Yes.
HER HONOUR: They won’t be not running something because they think it might harm their qualified, privileged defence.
EDWARDS: No. That’s true, your Honour. We accept that.”
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.
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.
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.
That being so, this argument fails. Ground 4 is not made out.
Leave to appeal should be granted but the appeal should be dismissed.
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.
The first relates to the issue raised in Ground 1 in the respondents’ notice of contention, which is as follows:
“The primary judge ought to have found that the conduct of the Appellant as described at [10]-[11] of Hooper v Phip**ps (No 3) [2025] NSWDC 370 (Primary Judgment) was a factor to be taken into account in the exercise of her Honour’s unfettered discretion, contrary to [49] of the Primary Judgment.”
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”).
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.
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.
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.
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.
The orders I propose are:
Grant leave to appeal.
Dismiss the appeal with costs.
**********
[41]: page reference "402" corrected to "403" [49]: page reference "695" corrected to "704" [50]: "is" corrected to "are" [51(1)]: "rights" amended to "[right]" [51(2)]: paragraph reference "[43]" corrected to "[46]" [66]: quotation mark moved
[51]: "fourth retrial" corrected to "fourth trial", twice
Hooper
Phipps [2025] NSWCA 267
(2012) 248 CLR 1
(2011) 81 NSWLR 315
(1989) 16 NSWLR 363
(1936) 55 CLR 499
(1997) 189 CLR 520
(1989) 19 NSWLR 158
(1988) 14 NSWLR 387
(1993) 178 CLR 14
(2025) 310 FCR 170
(1998) 44 NSWLR 682
(1947) 74 CLR 492
(1998) 193 CLR 72
(2024) 280 CLR 321
(1995) 184 CLR 163
Leave to appeal granted; appeal dismissed with costs.
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.)
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.
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).
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.
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.
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.
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).
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).
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.
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.
That being so, Grounds 1 and 2 in the notice of appeal fall away.
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.
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.
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])”.
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.