Palavi v Radio 2UE Sydney Pty Limited

Judgment 1This matter is set down for hearing with a jury for two weeks commencing on 19 March 2012. 2On 14 February 2012 the solicitor for the defendant contacted the District Court Registry to enquire about the appropriate mechanism to effect payment of the fee set by the regulations in respect of the "filing a requisition for trial by jury" in the District Court (Civil Procedure Regulation 2005 Part 3). 3The Registry was concerned that the fee had not been paid before the matter had been listed for hearing, as required by Rule 29.2A(6)(b) of the Uniform Civil Procedure Rules 2005 ("UCPR"). The matter was referred to me as the Judge allocated to hear the matter in March. 4On examining the provisions of the Defamation Act 2005, in particular Section 21(2), I took the view that I should hear from the parties because it seemed to me that a difficulty had arisen which went beyond the above rule. Accordingly I heard submissions from the parties on 22 February 2012. 5It is immediately apparent that the parties have proceeded to date on the assumption that the matter would be heard with a jury. The overall history is set out in the affidavit of Ms Natalie Buck affirmed on 21 February 2012. I think the most relevant dates are the following: (a)The proceedings were commenced by Statement of Claim on 27 July 2009. (b)On 4 August 2009 the defendant filed a Form 21 Notice of Intention to Elect Trial by Jury. It was served on the plaintiff's solicitors the following day. The Notice of Intention was required by Rule 29.2 of the UCPR (as at August 2009). (c)On 21 August 2009 the matter had its first directions hearing before the Court. At this hearing the solicitor appearing for the defendant made an announcement in open court stating the defendant's election for trial by jury (in accordance with Rule 29.2(4)). (d)On 4 September 2009 Gibson DCJ set the matter down for a three week hearing with a jury commencing on 13 September 2010. (e)On 19 August 2010 the defendant filed a Notice of Motion seeking vacation of the hearing date alleging failure on the plaintiff's part to give proper discovery. (f)The Motion came on for hearing on 3 September 2010. It was stood over to 13 September 2010. (g)On 13 September 2010, the day the matter was intended to proceed to hearing, a jury was not empanelled and the trial judge, Colefax SC DCJ, began to hear the defendant's Notice of Motion. (h)On 14 September 2010 the trial was vacated and the defendant's Motion was stood over to 30 September 2010 for further hearing. (i)On 4 November 2011 the matter was listed before Truss DCJ who set the matter down for hearing on 19 March 2012. 6Section 21 of the Defamation Act 2005 is as follows: " 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. (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) 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." 7A plain reading of Section 21(2) is that the election for the proceedings to be tried by a jury must be "accompanied by the fee ...". In other words, the fee must be paid at the same time as the election. The simplicity of this reading must be set, however, against the background of the Rules as they were at the time of the election of the jury. Rule 29.2, in August 2009 was as follows: " 29.2 Applications, elections and requisitions for jury (cf SCR Part 34, rule 3; DCR Part 12, rule 5) (1) Applications generally Except as provided by subrule (3), an application for proceedings to be tried by jury must be made by notice of motion. (2) Filing of requisitions for juries For the purposes of section 85 of the Supreme Court Act 1970 and section 76A of the District Court Act 1973, a requisition for a jury must be filed at the same time as the notice of motion referred to in subrule (1) is filed. (3) Elections under section 21 of Defamation Act 2005 A party who intends to make an election under section 21 of the Defamation Act 2005 to have proceedings for defamation tried by jury (an election for trial by jury) must file a notice of intention to do so. (4) Unless the court otherwise orders, an election for trial by jury must be made, by means of an announcement in open court before a judicial officer, at the first hearing that takes place more than 3 days after service on the active parties of the notice of intention to make the election. (4A) A party who makes an election for trial by jury must, at the hearing referred to in subrule (4), produce to the court a copy of the notice of intention filed under subrule (3). (5) At a hearing referred to in subrule (4), any party may, without notice of motion having been filed or served, apply to the court for an order under section 21 (3) of the Defamation Act 2005 that the trial not be by jury and, if such an application is made, the court may determine the application on the day it is made or on any later day fixed by the court. (6) Time for filing notice of motion or intention Unless the court otherwise orders, a notice of motion under subrule (1) or notice of intention under subrule (3) must be filed: (a) if the notice is filed by the plaintiff: (i) within 56 days after service on the defendant of the statement of claim, or (ii) if a defence is served on the plaintiff within that period, within 28 days after service of the defence on the plaintiff, or (b) if the notice is filed by the defendant: (i) within 28 days after service on the defendant of the statement of claim, or (ii) if, pursuant to rule 14.3, the court directs some other date for the filing of a defence, within 28 days after the date fixed by the court's direction." 8It can be seen from the terms of sub-rules (3) and (4) that, in 2009, although a document in the form of a Notice of Intention was required to be filed, the election for trial by jury was made by way of an announcement in open court. 9Taken literally, therefore, in order for the fee to accompany the election, the fee was required to be paid in open court. 10The defendant submitted that this was a practice that had never been followed and it would be, effectively, absurd for it to take place. In addition, the defendant submitted, the practice would not allow for a challenge to the election after the fee was paid. This fact supported the defendant's assertion that the word "accompanied" in Section 21(2)(b) did not necessarily mean at the same time. 11In my view, the defendant's interpretation of the word "accompanied" is not correct, for two reasons: (a)The word "accompanied" cannot, in my view, be given an interpretation that stretches its meaning beyond 'at the same time', or at least 'proximate', and certainly could not be stretched to the two and a half years that exists in the present case. (b)Rule 29.2(5) envisages that the objection to the jury will be made on the same day as the election. 12In my view, Section 21(2) plainly means the fee must be paid at the same time or very close to the election. That was not done and it follows that there has been a breach of the section. 13In relation to the 'absurdity' of a practitioner or self-represented litigant making a payment in court, I agree this would be unusual. However the word "accompanied" would encompass the fee being paid in the Registry following the court hearing or perhaps even within a day or so. The defendant here is arguing for over two years. 14The requirement is also logical. If the Registry is to organise a jury, it should hold the necessary funds and not be concerned with collecting them. 15The next question that arises is what is the consequence of the breach? A possible reading of the section is that the election stands separately to the payment of the fee. Therefore if the fee is not paid the election remains valid but there has otherwise been a breach of the section. The defendant drew support for this approach from the following two passages in Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246: "The exercise of the s21 discretion must be made in the circumstance that once the appellants exercised the s21 entitlement to elect for the proceedings to be tried by a jury, they had a vested or accrued substantive right." (McColl JA, para 50). "By its timely election the appellant acquired the right to trial by jury which was defeasible only by an order properly made under s21(1) and (3) of the Defamation Act 2005." (Handley AJA, para 138). 16The difficulty I have in applying these passages to the current issue is threefold: (a)The inclusion of the requirement in the Act for payment of the fee, together with the use of the word "must" suggests that the legislature intended it to be a condition of the election of trial by jury that the fee be paid as stated. Had the requirement to pay the fee been included in rules or regulations made under the Act, or in the UCPR, then a different approach may have been appropriate. (b)The point ma d e in (a) above is reinforced by the use of the word "and" at the end of Section 21(2)(a). (c)The Act makes no provision for the consequences of a breach of Section 21(2)(b). What then is the point of the requirement? 17I see no ambiguity in the wording of Section 21(2). It requires the fee to be paid at the same time as, or close to, the election. Had the legislature intended to separate the election from the payment, so that the latter was simply a procedural requirement, one would have expected a stipulated sanction for failure to pay on time or for the requirement to pay to have been dealt with by rules or regulations. The requirement in subsection (b) would also not have been conjunctive to that in subsection (a). A valid election thus has two constituents; the first in subsection (a), the second in subsection (b). 18There is a distinction in my view between the creation of the right referred to by Justice McColl and Acting Justice Handley and the defeasibility of that right once properly created. 19The right is only created when the mechanism of creation provided by Section 21 is complied with. 20Further, I have little doubt that if the election had been made contrary to manner prescribed by Section 21(2)(a) (in accordance with the rules), then it would be open to attack. I see no basis for applying a different approach to subsection (2)(b) especially when, as noted above, the requirement is conjunctive to that in (a). 21I have not been able to find an authority exactly on point although I note my conclusion is not inconsistent with the principles stated in French v Herald and Weekly Times Pty Limited [2010] VSC 127. 22I also note that in Bechara v Bonacorso (No 3) [2010] NSWDC 52 and in Goldberg v Randel [2008] NSWDC 45, Gibson DCJ, in dealing with a party's failures in respect of following the correct procedure for a jury election, dealt with the applications on a discretionary basis rather than applying the mandatory approach that I have taken. Her Honour, as I read her judgments, did not receive any submission asserting that a failure to pay the fee was fatal to the election. 23Gibson DCJ did however make this point in Allen v Lloyd-Jones (No 3) [2010] NSWDC 53: "The entitlement of a party to seek trial by jury is an important right, which has been specifically preserved by Parliament for litigants in defamation proceedings. However, the exercise of that right is dependant upon the procedure, including payment of court fees, in accordance with the UCPR and S 21 of the Defamation Act 2005 (NSW) (see Goldberg v Randel [2008] NSWDC) being followed." (Paragraph 21) 24In conclusion, therefore, I am of the view that Section 21 requires the fee to be paid at the same time as the election for trial by jury and that the failure to pay at this time renders the election invalid. 25What then is the next step? The defendant wishes to have a jury. The plaintiff has always anticipated that the case would be heard with a jury. It was almost heard by a jury in September 2010. To now deny the defendant a trial by jury would seem unjust. On the other hand the defendant, knowing it was required to pay the fee, has not done so for two and a half years. 26The defendant's answer to this dilemma is that it should be allowed to make a fresh application for a trial by jury. This otherwise apparently sensible approach faces the difficulty that the current applicable rule (Rule 29.2A(6)(b)) requires a Notice of Election for a Jury to be filed before a date has been fixed for the hearing of the proceedings. As the date for the proceedings was fixed on 4 November 2011 the defendant is not now entitled to file the relevant Notice. The defendant submitted that this obstacle could be met by a waiver of any rule standing in the way of it filing the Notice. 27Having regard to the history of the matter, the defendant's suggestion is prima facie appealing. However, it seems to me that it is appropriate for the defendant to file a Notice of Motion seeking the required leave, thus giving the plaintiff the opportunity to put any arguments in resistance to the defendant's application as well as to consider filing her own Motion under Rule 29.2A(4). The defendant will no doubt need to explain its failure to pay the fee until the cusp of the trial. 28Accordingly, I find that the Election for Trial by Jury made by the defendant on 21 August 2009 is invalid. I make the following orders: (a)Subject to further order the hearing on 19 March 2012 is to proceed without a jury. (b)Leave to the defendant to file a Notice of Motion seeking orders in relation to filing a fresh Notice of Election for Trial by Jury. (c)Costs reserved. 29I will ask the parties if they require directions in respect of the timing and hearing of any Notices of Motion in order to preserve the allocated hearing date.