Consideration of matters raised by the plaintiff
30 The first basis for the application is that the trial requires a prolonged examination of records, which is a discrete ground for dispensing with a jury under s 21(3)(a). Mr Neil contended that the matter would involve listening to "many hours" of tapes of the Crossley proceedings and probable examination of lengthy written transcript. As noted above, the particular extracts relied on by the defendants (as compiled by the plaintiff) come to only 22 pages. Further, since there are tapes and a certified transcript of the proceedings in existence, and the parties are represented by experienced counsel, I am confident that the parties through their counsel will endeavour to agree on a manageable presentation for the jury, in accordance with their respective duties under s 56 of the Civil Procedure Act 2005. In any event, by current standards as to what is expected of juries, the burden in this matter will be relatively light. I am not satisfied that the trial will require a prolonged examination of records such as to warrant dispensing with a jury.
31 The remaining grounds invoke s 21(3)(b), which focuses on the nature of the issues that would be required to be resolved by the jury. It would not be enough if I were satisfied that those issues could be more conveniently decided by a judge than by a jury. The test is whether I am satisfied that the trial raises issues that cannot be conveniently tried by a jury.
32 In Peck v Email Ltd (1987) 8 NSWLR 430, Clarke J expressed the view that the word "conveniently" does not refer only to the physical inconvenience that would be occasioned if the case were tried with a jury: at 433C. His Honour proceeded on the basis that the applicant must establish that there are circumstances of "unusual difficulty" from the point of view of the jury apprehending the matters involved and, to a lesser degree, from the point of view of the judge summing up. That is the test that Mr Neil says I should apply.
33 Mr Neil contended that the defences involve serious allegations against a solicitor in the performance of his professional duties, which he submits should be resolved by a judge. He identified a list of issues said to arise on the pleadings, as to which it was said that the jury would be expected to make "learned determinations about very complex and intricate legal issues such as the duties of a solicitor advocate in the Crossley case". Mr Neal relied on the decision of the House of Lords in Osenton & Co v Johnson [1942] AC 130. That was a professional negligence case against a solicitor in which the House of Lords held that the proceedings should not be determined by an official referee where there was no right of appeal from the referee's decision. Particular reliance was placed on the speech of Lord Porter at 153:
" A litigant whose character or professional ability is attacked should not unless there are strong reasons to the contrary be deprived of his right to have the facts reviewed."
34 The difficulty with that submission is that, in the present case, the plaintiff's rights are governed by the Defamation Act 2005. That Act does not confer a right to trial by judge to a person whose character or professional ability is attacked in the proceedings. The only right expressly conferred is a right to trial by jury, subject to the Court's limited discretion under s 21(3). A person who chooses to commence proceedings for defamation must be taken to have done so with knowledge of the defences available and the usual method of trial of those defences.
35 The argument advanced by Mr Neil entails the proposition that questions as to the propriety of the conduct of an advocate are inherently too complex for the comprehension of ordinary members of the community. It is submitted that there will be "unusual difficulty from the point of view of the jury apprehending, understanding, properly considering and resolving the issues raised". I do not agree. In my view, the resolution of the factual issues raised in these proceedings calls for the ability to comprehend relatively straightforward questions of past fact and the application of common sense, both qualities assumed to repose in a jury.
36 As to the complexity of the issues raised by the defences of honest opinion and qualified privilege concerning the professional conduct of advocates, it is not known, and counsel agreed that I should not speculate, precisely what form of question would go to a jury. To some extent that is unchartered territory because, under the Defamation Act 2005, it appears the jury now has to decide whether the matter was published on an occasion of qualified privilege, which (even before the commencement of s 7A of the Defamation Act 1974) was historically a question for the judge: Morgan v John Fairfax (1990) 20 NSWLR 511 at 539B. As indicated above, I am not persuaded that any issue raised by the defences will require the jury to judge the plaintiff's professional conduct against the standards of the profession as alleged by Mr Neil. If any such issue does arise, I am satisfied that it could be expressed in simple terms. In order to say that an advocate breached the (so-called) rule in Browne v Dunne, one does not need to say that the advocate breached the rule in Browne v Dunne. It is enough to say that he made a serious allegation about a witness at the end of the case when he hadn't given that witness an opportunity to respond to the allegation in the witness box. Equally, the issue would not need to be presented, as contended by Mr Neil, as one involving considerations of Clyne v NSW Bar Association [1960] 104 CLR 186. It would be enough to say that the advocate made a very serious allegation when he did not have a proper basis for doing so. The assessment of such questions is familiar to lawyers but not, in my opinion, exclusively within their capacity; they are matters of common sense.
37 The New South Wales Parliament has seen fit to entrust defences in defamation trials to juries. Those defences do raise issues of some difficulty. In my opinion, the issues of fact raised in these proceedings cannot be said to suffer "unusual" difficulty.
38 Further, if I were to accede to the plaintiff's application, I would in effect be acknowledging the existence of a special class of plaintiff (legal professionals) with rights different from those of any other class of plaintiff in defamation proceedings.
39 The third ground for the application is that there are complexities arising from the defences of comment and qualified privilege. To the extent that this raises different issues from those considered above, it is enough to say that those defences are expressly consigned to the function of the jury under s 22(2) of the Act.
40 As to the health of Mr McGeown, in my opinion that is not a consideration appropriately to be taken into account having regard to the terms of s 21(3)(b), which focuses on the nature of the issues to be determined by the tribunal of fact at trial. The plaintiff noted in his written submissions that Clarke J took the medical condition of the plaintiff into account in deciding to dispense with a jury in Peck v Email at 435C-D. However, his honour expressly noted that this factor was relevant only on the issue of discretion (the plaintiff was dying of mesothelioma and sought a trial by judge so that the matter could be heard before he died). In the present case, the sick party is the first defendant, and he wants a jury trial, but the threshold question is whether the test in s 21(3)(b) is satisfied.
41 Finally, as to the contention that trial by a judge alone is likely to result in a considerable saving of time and resources, that again is a matter which must be taken to have been considered and rejected by Parliament when it passed the Defamation Act 2005, including ss 21 and 22. Accordingly, I am not satisfied that there is any basis for an order under s 21(3) that the proceedings are not to be tried by jury.