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File Number(s): 2023/00347867

Publication restriction: Nil

JUDGMENT

1. HIS HONOUR: By Notice of Motion dated 14 September 2026, the plaintiffs seek leave to make an election for trial by jury out of the time fixed in accordance with s 21 of the Defamation Act 2005 (NSW) (“Defamation Act”). For the reasons that follow, I refuse that application.

2. The factual background to this case is rehearsed in previous judgments: see eg, Onakoya v The Sydney Children’s Hospitals Network (No 4) [2025] NSWSC 743. All that needs to be said is that these proceedings for defamation were commenced and are being conducted by the plaintiffs who are self-represented. They have been on foot for some years, and on 12 June 2026, I fixed them for a five-day hearing commencing on 30 November 2026. No notice of intention to file a notice of election for trial by jury had been served by the plaintiffs on the defendant, the Court had not been informed that such a notice had been served nor had a notice of election been filed prior to the fixing of the hearing date. In short r 29.2A of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) had not been complied with.

3. On 30 June 2026, some eighteen days after a date was fixed for the hearing of this matter, the first plaintiff remarked from the Bar table that he would prefer for this matter to be determined by a jury. I declined to deal with the matter informally and directed that any late application should be made by way of Notice of Motion supported by affidavit. The motion was not filed until 14 September 2026, and the prayer for relief is inapposite inasmuch has it invokes r 29.2 UCPR rather than r 29.2A. The distinction is important as r 29.2 governs applications for trial by jury in civil proceedings other than defamation.

Legal Principles

4. The general presumption against trial by jury in civil proceedings does not apply in proceedings for defamation: Supreme Court Act 1970 (NSW) s 85(6). Consequently, it is the Defamation Act that “governs the question of whether a jury tries a defamation case”: Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315; [2011] NSWCA 246 at [67] (McColl JA, Giles JA and Handley AJA agreeing) (“Channel Seven v Fierravanti-Wells”). Section 21 of the Defamation Act provides a right on each party to defamation proceedings to elect for trial by jury. The “election must be made” in conformity with “the rules of court”, which in this State is r 29.2A: s 21(2) of the Defamation Act; which as I have indicated, prescribes the time at which and the manner in which an election may be made.

5. Compliance with these procedural steps is of importance. First, absent a compliant election the default is trial by judge alone. Secondly, an election once made binds both parties and may not be withdrawn: Chel v Fairfax Media Publications Pty Ltd (No 2) (2015) 90 NSWLR 309; [2015] NSWCA 379 at [38]-[39], Macfarlan JA; Meagher JA and Tobias AJA agreeing (“Chel v Fairfax”).

6. Chel v Fairfax concerned, relevantly, whether the Court has power to extend the time for filing an election to have a defamation proceeding tried by a jury through the exercise of the power conferred by in s 14 of the Civil Procedure Act 2005 (NSW) or by r 1.12 UCPR. Although, in a strict sense, Macfarlan JA’s remarks on this point (Meagher JA and Tobias AJA agreeing) are obiter, they are highly persuasive dicta of the Court of Appeal by which I am bound: His Honour rejected the availability of s 14 for the following reasons (at [45]):

“Section 14 does not in my view assist the plaintiff in this case. That section is concerned with “any requirement” of the Rules. In contrast, s [sic] 29.2A regulates the exercise of the right conferred by s 21 of the Defamation Act to elect for jury trial. It does not, so far as is relevant, impose a requirement to do anything. Rather, its effect is that if the right is to be exercised, it must be done in a particular way. Thus, there is no requirement to file a notice of intention to file a notice of election, or a notice of election, before the hearing date of the defamation proceedings is fixed. That is simply a precondition to the exercise of the right.”

7. Rule 1.12 of the UCPR is in the following terms:

(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.

(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.

8. In Chel v Fairfax, Macfarlan JA made two points concerning the application of the rule. His Honour said (at [49]):

“First, the relevant conditions in UCPR r 29.2A are not expressly stated as fixing time limits for the filing of a s 21 election. Rather, they are expressed as prohibitions: a Notice of Election may not be filed unless a Notice of Intention to file the Notice has been given beforehand and before a date has been fixed for the hearing, and the Notice of Election must be given before that fixture is made. However, the effect of the provisions is to impose time limits within which a Notice of Election must be filed. I do not consider that the possible application of UCPR r 1.12 should, or does, turn upon the form, as distinct from the substance, of the other provisions of the rules which may be the subject of an order under it.”

9. It also needs to be borne firmly in mind that the procedures prescribed by r 29.2A for the filing of a notice of intention in advance of the notice of election (together with notice to the court), is to be complied with before a hearing date is fixed for the purpose of providing the opposing party with the opportunity to file a notice of motion seeking an order under s 21 of the Defamation Act that the proceedings not be tried by a jury: r 29.2A(4) UCPR.

10. As the terms of s 21 of the Defamation Act itself made clear the right to elect for trial by jury is subject to the power of the court to order otherwise on the application of the opposing party. The deprivation of that right of the opposing party to object and take steps to make good its objection is no small thing and should not be lightly brushed aside by a court dealing with a late application for extension of time under r 1.12 of the UCPR which as I have said the plaintiffs did not in terms invoke: Channel Seven v Fierravanti-Wells at [42]-[45], per McColl JA, Giles JA and Handley AJA agreeing.

Application

11. Although I have pointed out that the plaintiffs have not invoked the applicable rules, I am prepared to deal with the matter as though r 29.2A and r 1.12 had been expressly invoked.

12. The only ground upon which the plaintiffs claim for a favourable exercise of the r 1.12 power is that they were ignorant of the requirement to comply with s 21 Defamation Act and r 29.2A of the UCPR. I must say, during the time I have been case managing the matter prior to the 30 June 2026 at no stage has any mention made by the plaintiffs of a preference for trial by jury. Nor did they assert that they were labouring under the misapprehension that trial by jury was the default position in proceedings for defamation. That the applicable Practice Note SC CL 4 does not mention trial by jury is neither here nor there. Although one might have thought had the plaintiffs the expectation that trial by jury was the default position, the absence of a mention of trial by jury in the practice note might have caused them to make enquiries about that matter.

13. Contrary to their argument, the Court is not under any obligation to explain to the plaintiffs that there are two available alternative modes of trial for defamation proceedings, the default position being trial by judge alone. Nothing was said to alert the Court to a need to raise that matter. The Court sits in the middle, impartially balancing the rights of the opposing litigants. It is not the function of the Court to advise either party of the content of adjectival law. The Defamation Act itself, the rules of court applicable defamation proceedings and the practice note set out fully the relevant procedural law.

14. I do not regard the explanation proffered by the plaintiffs as in any way satisfactory for their failure to comply with r 29.2A of the UCPR as required by s 21 of the Defamation Act. From the affidavit filed in support of the application it appears that the plaintiffs obtained legal advice about a certain matter and the possibility of trial by jury was then raised. In my view this consideration does not add to or improve the explanation.

15. Moreover, the position remains that the plaintiffs have neither filed a notice of intention to elect for trial by jury, a notice of election for trial by jury nor paid the prescribed fee for the requisition of a jury as required by s 21(2)(b) of the Defamation Act.

16. By their failure to take the required steps the plaintiffs have deprived the defendant of its opportunity to object and to bring a notice of motion before the Court for an order that the proceedings not be tried by jury in accordance with r 29.2A(4) of the UCPR. It is clear from its written submissions that the defendant would have been desirous of taking this step and taking it in a timely fashion. We are now only two months out from the commencement of a five-day hearing when the plaintiffs on the one hand and the defendant on the other are engaged in the final preparations for trial which by default will be a judge alone trial. I am satisfied that extending the time for the plaintiffs to comply with UCPR r 29.2A at this late stage would considerably disrupt the parties’ preparation for trial and involve the incurring of significant wasted costs on both sides of the record. Moreover, interests of justice would not permit the Court to extend the time for the plaintiffs’ compliance with r 29.2A of the UCPR at the expense of the defendant’s rights under r 29.2A(4). Given the proximity of the hearing date, I am not satisfied that the defendant’s rights could be accommodated without jeopardising a five-day trial for which the time has already been set aside. There is a significant public interest in the preservation of court time already allocated to a hearing at the expense of other litigants who may have been shut out by the listing of this matter.

17. I record that from my enquiries of the registry, I am satisfied that the Court could accommodate a jury trial of the matter commencing on the 30 November 2026 albeit that trial would be longer than trial by judge alone. However, this is not the point. I am not of the view that the capacity of the Court to accommodate a civil jury time at that time displaces the other considerations to which I have referred favouring a refusal of the Plaintiffs’ application.

18. I am fully cognisant of the significance of the history of trial of defamation cases by jury in the Common Law World generally and in this State. However, jury trial is no longer the default position and the considerations expressed in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) favour the refusal of the application.

Orders

19. I make the following orders:

20. The Notice of Motion filed by the plaintiffs on 14 September 2026 is dismissed.

21. The plaintiffs are to pay the defendant’s costs of and incidental to the motion.

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