Plaintiff v Defendants

2 In June 2019 orders were made by consent fixing the proceeding for trial by judge alone in July this year. The plaintiff says this was done erroneously and inadvertently, and that at all times it has been his desire, and his instruction to his legal representatives, to have a trial by judge and jury. The trial is currently fixed for 22 July 2020.

3 As a result of the current COVID-19 pandemic, this court determined on 16 March 2020 that until further notice there will be no civil jury trials conducted.

4 The plaintiff has applied to vacate the trial date of 22 July and have the proceeding re-fixed for trial by jury on the next available date after civil jury trials resume. The plaintiff's application is opposed.

(a) Affidavits of Mr Lopez, solicitor for the plaintiff, sworn 3 July, 6 July and 7 July 2020;

(b) Affidavit of Mr Bennett, solicitor for the defendants, affirmed 7 July 2020; and

(c) Written outlines for both parties supplemented by oral submissions.

6 In the writ filed on 5 April 2019 the plaintiff signified his desire for trial by judge and jury of six in accordance with r 47.02(1) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules').

7 The proceeding was listed for a first directions hearing on 6 June 2019. On 4 June Mr Lopez emailed draft orders to solicitors for the defendants, ord 12 of which proposed that the proceeding be fixed for trial by judge alone on a date after 18 November 2019 on an estimate of eight sitting days. A signed minute of consent of final terms negotiated by the parties provided to the court contained a handwritten annotation to ord 12 which was initialled, which altered the not before date for trial to 6 April 2020. On 11 June 2019 Clayton JR made orders fixing the proceeding for trial by judge alone on 20 July 2020.

8 In further email correspondence between the parties in advance of a post-mediation directions hearing listed for 21 November 2019 a secretary on behalf of Mr Lopez responded to a query raised by the defendants' solicitors as to the need for an order for jury questions by stating such an order was not required because there had been no request for a jury. Orders made by consent at that time confirmed the trial date, without reference to the mode of trial.

9 A notice of trial filed by the plaintiff on 4 June 2020 confirmed that the proceeding was ready for trial, but made no reference to the mode of trial.

10 There has been no order made for payment of fees for the purposes of s 24 of the Juries Act 2000 (Vic), and no fees have been paid.

11 On 14 June the defendants' solicitor emailed the plaintiff's solicitor seeking consent to a trial date of 22 July rather than 20 July. A proposed form of order was attached to the email, which referred to the mode of trial as being by judge alone. The plaintiff's solicitor consented to the alteration of the trial date, and Clayton JR made orders in terms of the minute of consent which were emailed to the parties on 23 June.

12 On 26 June the plaintiff sought consent of the defendants to adjournment of the trial until reintroduction of civil juries in the Supreme Court. The defendants oppose adjournment of the trial.

13 Currently there is no date or time frame for reintroduction of civil jury trials in this Court. Given the nature of the COVID-19 pandemic, recent worsening of circumstances in Victoria, and the reintroduction of stage 3 lockdown measures for metropolitan Melbourne, the timing of resumption of civil jury trials is uncertain and unlikely to be for some time.

14 Reintroduction of criminal juries planned to occur from 20 July 2020 with limited numbers and in a measured way, having regard to social distancing requirements and relevant health advice, has now been deferred.

15 In 2021 this court will list approximately 14 civil proceedings for trial each week in which a party has nominated judge and jury as the mode of trial.

16 The mode of trial is governed by r 47.02 of the Rules:

(1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if -

(a) the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Prothonotary within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and

(b) the prescribed fees for the purposes of section 24 of the Juries Act 2000 are paid.

(2) Any other proceeding shall be tried without a jury, unless the Court otherwise orders.

(3) Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury.

...

17 A party who has given notice in accordance with r 47.02(1) has a prima facie right to trial by jury, and should not be deprived of that right in the absence of good cause or some special reason.[1]

18 The court has an overriding discretion under r 47.02(3) to dispense with a jury. The discretion to dispense with a jury trial is unfettered and may be exercised where it is warranted by the dictates of justice. However, a court will not likely make such an order.[2]

19 The court must give effect to the overarching purpose of the Civil Procedure Act 2010 (Vic)[3] in the exercise of power under r 47.02 of the Rules, that is to say to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[4]

20 Juries are recognised as being an appropriate mode of trial in defamation proceedings.[5]

21 The plaintiff submitted that, having had personal experience of the jury system, it was his very strong desire to maintain trial by jury, because judgement from his peers represents the best vindication he can achieve and, by corollary, the greatest censure of the defendants' publication. In the particular circumstances of this case, especially in light of the identity of the plaintiff, he submits that questions as to what the article meant and whether it was defamatory of him are best answered by a jury of six fellow members of the community rather than by a judge sitting alone. Whether the article would have been likely to cause the ordinary reasonable reader to have thought less of the plaintiff is quintessentially a matter for determination by the plaintiff's peers, represented by a jury, given that they are the arbiters of general community standards.

22 Second, mistakes by his legal representatives which have resulted in orders for the mode of trial by judge alone should not be held against the plaintiff.

23 Third, it is the plaintiff rather than the defendants who stands to be more significantly prejudiced by any adjournment of the trial date as the vindication of his reputation will be delayed. The plaintiff is prepared to accept the prejudice associated with an inevitably lengthy delay in order to maintain his desired mode of trial.

24 Fourth, there is limited evidence of prejudice to the defendants. There is no evidence supporting the assertion that the second and third defendants will suffer ongoing strain and a personal and emotional toll associated with a lengthy or indefinite adjournment of the trial. Neither the second nor third defendant is on the list of proposed witnesses, and accordingly will not be subject to cross-examination. The tort is one of strict liability, and a finding against the second and third defendants does not convey any malintent.

25 Fifth, the proceeding has been conducted as a model of efficiency. There has been no previous adjournment of the trial, and no requirement for judicial intervention or determination.

26 The defendants submitted the plaintiff's application should be refused for the following five reasons.

27 First, although the plaintiff signified for trial by judge and jury in the writ, he abandoned that election by consenting to the orders for trial by judge alone made on 11 June 2019.

28 Second, even if the plaintiff's abandonment of his original election was done in error, the abandonment was affirmed on numerous occasions by the deliberate steps of those representing him. This commenced with the first draft of procedural orders provided to the defendants' solicitors on 4 June 2019, which nominated the mode of trial as judge alone, and concluded with their consent to orders made on 15 June fixing the proceeding for trial by judge alone on 22 July. Further, the plaintiff has not paid jury fees as a precondition to the prima facie entitlement to a jury under r 47.02(1)(b). Failure to pay those fees, or take steps to pay them, is inconsistent with the plaintiff's assertion that he and his solicitors have always intended a trial by jury.

29 Third, there is no reason why trial by judge alone will not be equally just as trial before a judge and jury, and there are good reasons why the former is the more appropriate mode of trial. There is an air of unreality in relation to the plaintiff's asserted desire for a jury trial. The gist of the dispute between the parties is whether:

(a) the article was a fair and accurate report of court proceedings and therefore attracts defences of absolute privilege under the Wrongs Act 1958 (Vic), or qualified privilege at common law, or one of its statutory variations in the Defamation Act 2005 (Vic); and

(b) the plaintiff's entitlement to damages ought be substantially mitigated owing to his prior offending and his reputation more generally.

The first question would in large part be a matter for the trial judge even if there were a jury. The second question goes solely to damages and, accordingly, would be a matter for the trial judge even if there were a jury. The only questions remaining for the jury are whether or not the pleaded imputations are conveyed and, in relation to the statutory variation of the qualified privilege defence, whether the article was not published for the information of the public or the advancement of education. Having regard to these matters, a jury trial would be inefficient because the jury would have to sit through much evidence of no relevance at all to the only questions upon which its verdict could be sought.

30 Fourth, the continuing suspension of jury trials in current unprecedented circumstances means that the plaintiff's application is, in effect, an application for an indefinite adjournment of the trial. As Macaulay J observed in Mulquiney,[6] were all jury trials simply adjourned there would be a substantial strain placed on the resources of the court, causing inevitable further delays. This would cause prejudice to the administration of justice generally and frustrate the court's ability to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in this proceeding.

31 Fifth, an indefinite adjournment of the trial will cause specific prejudice to the defendants. For over 12 months the defendants have known the trial was fixed before judge alone in the week beginning 20 July 2020. They have commenced preparations for trial, and there will inevitably be costs thrown away if the trial were to be adjourned. Further, there will be a personal and emotional toll on the second and third defendants in being subjected to the ongoing strain of the litigation for a further, indefinite period.[7]

32 I accept that the plaintiff's desire has always been for trial of the proceeding to be by judge and jury. The plaintiff notified that desire in accordance with r 47.02(1)(a). There has been no order for payment of jury fees, and therefore no failure by the plaintiff to satisfy the requirements of r 47.02(1)(b). I accept the consent by the representatives of the plaintiff to orders that the trial be by judge alone was in error, and contrary to the plaintiff's desire as to the mode of trial. On that basis I conclude the plaintiff has a prima facie entitlement to a jury trial.

33 However, for the following reasons, I conclude that I should exercise my discretion to direct that the trial proceed without a jury on 22 July 2020.

34 First are the circumstances related to the COVID-19 pandemic and the indefinite suspension of civil jury trials in this court. The current worsening of the COVID-19 situation in Victoria and the associated reintroduction of stage 3 restrictions on metropolitan Melbourne may represent the fluctuating and restrictive circumstances in which this court, and the community more broadly, will have to operate for a considerable period. The postponement of the planned reintroduction of criminal jury trials in light of recent developments is an example of the complications which will probably arise with the reintroduction of civil jury trials. Any reintroduction is likely to be gradual and may consume more court resources at least until the pandemic is resolved. It is uncertain how many such trials will be able to be accommodated by the court at any time. The result is that there is an increased need to make efficient use of court resources, in particular where time to accommodate a trial has been allocated.

35 The adjournment and lengthy delay before trial would result in failure to use court time and judicial resources currently available and allocated to hear the matter, and add to the list of trials for hearing by the court next year when it seems likely there will still be complications caused by the COVID-19 pandemic.[8]

36 If the plaintiff's application were granted, and this proceeding were re-listed for trial without priority, it would be given a date in November 2021. The trial date would remain subject to reintroduction of civil jury trials by that time, and the capacity of the court to accommodate a jury trial in this proceeding. Such a lengthy and indefinite adjournment of the trial is inconsistent with the overarching purposes of the Civil Procedure Act, that is to achieve the just, efficient, timely and cost-effective resolution of the real issues in dispute in the proceeding.

37 Second, I accept the defendants' submission that the major issues which will be in dispute and occupy much of the trial will be matters for the trial judge even if there were a jury. The defendants admit publication of the article. Whether or not the pleaded meanings are conveyed is to be determined on the content of the article itself. If the meanings which are pleaded are made out there will be no significant issue as to whether or not they are defamatory. The imputations are not novel, unusual or otherwise of a kind which warrants a jury trial. The only other question for the jury is whether the article was not published honestly for the information of the public or the advancement of education, which is a limited question related only to the statutory variations of the qualified privilege defence.

38 In Cossari v Wells,[9] commenting on jury trials in defamation proceedings, the Court said:

Moreover, the proposition relied upon by Mr Cossari (that a jury is the preferable mode of trial in cases of the present kind) is not some legal principle that mandates the mode of trial in such proceedings. More specifically, the proposition that juries are somehow to be preferred in cases which involve a conflict about the natural and ordinary meaning of words is not, and cannot be, one of universal application. Each case must be determined on its own facts and circumstances, and in the particular circumstances that the parties and the Court find themselves in at the relevant time.

In my view, the issues to be decided by a jury at trial in this proceeding do not militate strongly in favour of a jury trial. The fact that the major issues in dispute will necessarily be determined by the trial judge is a significant consideration.

39 Third, I accept that the defendants have been operating for over 12 months on the basis that the proceeding is fixed for trial by judge alone in the week commencing 20 July 2020, and that they will be prejudiced by an indefinite and necessarily lengthy adjournment. That prejudice extends beyond costs thrown away by reason of an adjournment, and cannot be simply cured by an order for costs. The pressures imposed by litigation are real, and apply in particular to the second and third defendants even though it is not intended that they be called as witnesses.[10]

40 For the reasons stated the plaintiff's application is dismissed and the current order fixing the proceeding for trial by judge alone on 22 July 2020 is confirmed.

[1] Trevor Roller Shutter Service Pty Ltd v Crowe [2011] VSCA 16; (2011) 31 VR 249, 259-60 [39]; Matthews v SPI Electricity & Ors [2012] VSC 318; (2012) 35 VR 643, 653 [54], [56] ('Matthews'); Gunns Ltd v Marr [2009] VSC 284, [9] ('Gunns').

[2] Matthews (n 1) [56]; Gunns (n 1) [9].

[3] 'Civil Procedure Act', ch 2.

[4] Mulquiney v Reynolds & Anor (Ruling No 1) [2020] VSC 119 [7] ('Mulquiney').

[5] Defamation Act 2005 (Vic), div 1, pt 4.

[7] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 182 [5], 188-9 [23]-[24] (French CJ), 213-14 [97]-[101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ) ('Aon').

[8] Mulquiney (n 4) [4]; ASIC v Getswift Ltd [2020] FCA 504, [38].

[9] [2020] VSCA 133, [33].

[10] Aon (n 7) 182 [5], 188-9 [23]-[24] (French CJ), 213-14 [97]-[101] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); Plaintiff S111A/2018 v Minister for Home Affairs (No 2) [2020] FCA 499, [17] (Robertson J); see also Bourke v Kesckes [1967] VicRp 117; [1967] VR 894, 897-8; Goldie v Johnson [1968] VicRp 85; [1968] VR 651, 654.