Allen v Lloyd-Jones (No. 3)

[2010] NSWDC 53

CITATION:	Allen v Lloyd-Jones (No. 3) [2010] NSWDC 53 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16 April 2010
JUDGMENT DATE:	16 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) The Notice of Intention to Elect Trial by Jury in Defamation Proceedings (Form 23 UCPR 29.2) is struck out. These proceedings, which are currently provisionally listed for hearing on 19 July 2010, to be heard by a judge alone. (2) Costs reserved.
CATCHWORDS:	TORT – defamation – defendant seeks a jury trial but fails to comply with provisions to requisition jury - plaintiff complains of defendant’s unreadiness for trial and seeks to join an additional defendant – both parties ask for hearing date to be vacated – hearing vacated and defendant’s application for jury trial struck out
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), ss 56-62, 58(2) and 65 Commonwealth of Australia Constitution Act 1900 (Cth) Uniform Civil Procedure Rules 2005 (NSW), Part 6 rr 6.24, 6.26(1) and 6.26(2)(a), and Part 29 r 29.2
CASES CITED:	Allen v Lloyd-Jones (No. 2) [2010] NSWDC 41 Bechara v Bonacorso (No. 3) [2010] NSWDC 52 Defamation Act 2005 (NSW), s 21 French v Herald & Weekly Times Pty Ltd [2010] VSC 127 Goldberg v Randel [2008] NSWDC 45 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818; [1997] 10 Leg Rep 2; (1997) Aust Torts Reports 81-434; [1997] HCA 25 Peters v Coastace [2006] NSWSC 289 Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275 Webb v Bloch (1928) 41 CLR 331
PARTIES:	Plaintiff: Anthony James Allen Defendant: Laurel Lloyd-Jones
FILE NUMBER(S):	1549 of 2009
COUNSEL:	Plaintiff: Ms S Chrysanthou Defendant: Mr C A Evatt / Mr R Rasmussen
SOLICITORS:	Plaintiff: Andrew Warren & Associates Defendant: Levitt Robinson Solicitors

REASONS FOR DECISION FOR THE STRIKING OUT OF A NOTICE OF INTENTION TO ELECT TRIAL BY JURY IN DEFAMATION PROCEEDINGS

[1] These are reasons for decision for the orders I made in these proceedings on 16 April 2010.

[2] These proceedings were commenced by Statement of Claim filed on 14 April 2009. The current pleading is the Amended Statement of Claim filed on 10 July 2009. The matter complained of is a letter emailed by the defendant to a number of media outlets, including Four Corners. It is alleged that the defendant is also liable for the republication by media organisations of what is contained in the matter complained of.

[3] The Defence filed on 7 August 2009 denies, or does not admit, every allegation in the Amended Statement of Claim. Defences of truth, contextual truth, common law (including the extension asserted to arise by reason of the implied right of freedom of speech under the Commonwealth of Australia Constitution Act 1900 (Cth): see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; (1997) 145 ALR 96; (1997) 71 ALJR 818; [1997] 10 Leg Rep 2; (1997) Aust Torts Reports 81-434; [1997] HCA 25) and statutory qualified privilege, comment, opinion and unlikelihood of harm.

[4] A Reply was filed on 28 August 2009 pleading malice in defeasance of the qualified privilege defences, and also matters in defeasance of the comment and opinion defences.

[5] The matter was fixed for hearing on 27 April 2010 as a 2-week plus jury trial. In short, this is not a simple defamation action.

[6] The defendant is a nun. Earlier this year, according to the affidavit of Mr Warren, the plaintiff’s solicitor, it became apparent to the plaintiff’s legal advisers that the defendant was likely to be a person without assets of significance. An application was brought pursuant to Part 6 r 6.24 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and s 65 Civil Procedure Act 2005 (NSW) to join Elm Grove Sanctuary Ltd as Trustee of the Elm Grove Sanctuary Trust, as the second defendant, on the basis that the matter complained of appears on Trust letterhead and the defendant signed the matter complained of as “CEO, Elm Grove Sanctuary Trust”. It is asserted that the Trust is a publisher for the purposes of defamation because the persons who make the publication are jointly and severally liable for it: Webb v Bloch (1928) 41 CLR 331 at 363-365. Accordingly, the Trust “ought to have been joined as a party” for the purposes of r 6.24.

[7] A matter to take into account is that the Trust has been “intervening” in these proceedings, according to Mr Warren’s affidavit, in that it has been seeking to raise money for the defendant to defend this matter, as information on its website makes clear. The Trust has advertised in the local newspaper seeking donations for the defendant to assist her to defend these proceedings (see annexure “O” to the affidavit of Mr Warren).

[8] The plaintiff submits, and I agree, that because the Trust is properly a defendant, UCPR r 6.26(1) does not apply: see UCPR r 6.26(2)(a) and Peters v Coastace [2006] NSWSC 289 at [22]-[25] per Austin J.

[9] The real difficulty has been to determine what orders should be made concerning the hearing date if the Trust is joined as a defendant. It is submitted that what is asserted to be the defendant’s “persistent failure to comply with court directions” means that I should have regard to ss 56 and 58 Civil Procedure Act in finding that the injustice suffered by the defendant is slight, in that she has not demonstrated any apparent need for haste in her conduct of this litigation. Accordingly, the plaintiff argues the hearing date should be vacated without any costs penality. An additional feature in this application is the asserted hopelessness of the defence of contextual truth. The parties have in fact arrived at a consent order concerning costs which reflects these problems.

[10] Both parties also submit that, in the circumstances, the matter is not ready for trial and the hearing date should be vacated.

[11] The adjourning of proceedings prior to hearing is not a step that should be taken lightly. It should have occurred to the plaintiff’s legal advisers some time ago that a member of Holy Orders carrying out duties for a charitable trust was unlikely to hold assets of significance. The identity of the Trust is hardly a secret; its name appears on the first and last page (including the letterhead) of the matter complained of.

[12] While the Trust is apparently aware of this application, Mr Evatt advised the Court, and I accept, that he is in no position to advise the Trust, as his client (the defendant) is in a potential conflict of interest position.

[13] The parties agreed that this was not a case where the wrong party had been joined. Having regard to the problems for a plaintiff who seeks to defeat the defence of comment where the person who holds the comment is not joined as a party (as to which see Rodgers v Nine Network Australia Pty Ltd (No 2) [2008] NSWDC 275), it is essential that Sister Lloyd-Jones remain a defendant.

[14] I have considered the “just, cheap and quick” requirements of ss 56-62 Civil Procedure Act and I consider it is appropriate for the resolution of these matters to adjourn the hearing, allow the joinder of the Trust as second defendant, grant leave to file the Further Amended Statement of Claim, give the matter a fresh hearing date later in the year and make arrangements for the hearing of a number of outstanding interlocutory matters, such as the objections to the defence of contextual truth.

[15] However, an additional step that I propose to take is to accede to the plaintiff’s request to strike out the Notice of Intention to Elect Trial by Jury. I have done this for three reasons:

(a) Complexity : The pleadings in these proceedings demonstrate more complexity than the proceedings before Beach J in French v Herald & Weekly Times Pty Ltd [2010] VSC 127. Beach J acceded to the plaintiff’s application that the trial proceed without a jury and be determined as a cause by a judge sitting alone;

(b) Failure to file the appropriate documents to requisite a jury : The defendant failed to file a Jury Requisition and pay the appropriate fee (as to which see French v Herald & Weekly Times Pty Ltd at [12], footnote 14); and

(c) Conduct of the litigation by the defendant : The unreadiness of both parties, but principally the defendant, is such that, even if the application for joinder of the proposed second defendant had not been brought, these proceedings were not ready for trial.

[16] I shall deal with each of these in turn.

The complexity of these proceedings

[17] These proceedings are more complex than those which led to similar orders in French v Herald & Weekly Times Pty Ltd. The two publications in French v Herald & Weekly Times Pty Ltd were asserted to convey a total of three imputations, to which there were two contextual imputations pleaded. In the present case, there are seven imputations, 15 contextual imputations and complex republication issues relating to subsequent publication by the media. In addition to the defences pleaded in French v Herald & Weekly Times Pty Ltd, the defendant relies upon the implied right of freedom of speech under the Constitution and the defence of unlikelihood of harm. The questions for the jury would well run to 30 or 40 pages in length. I have been given a draft which is 9 pages long which the parties agreed required substantial enlargement.

[18] The circumstances in which a Court may take the view that the complexity of the case put it beyond the parameters of a jury trial are picked up, to a degree, by s 58(2) Civil Procedure Act. Section 58(2) requires the Court, when considering orders or directions to be made for the management of proceedings, to have regard to the dictates of justice in a particular case, including the degree of difficulty or complexity to which the issues in the proceedings give rise.

Failure to file the Jury Requisition and pay the filing fee

[19] Where a party seeks a jury, the mere filing of a Notice of Intention to Elect Trial by Jury in Defamation Proceedings is not sufficient, for the reasons I have explained in more detail in another judgment: Bechara v Bonacorso (No. 3) [2010] NSWDC 52.

[20] This is not simply a case where the jury fees have not been paid, in which circumstances a court would discharge the jury and determine the case as a cause (French v Herald & Weekly Times Pty Ltd at [12], footnote 14). The Jury Requisition has not been filed and served in accordance with the UCPR.

[21] 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 dependent upon the procedure, including payment of court fees, in accordance with the UCPR and s 21 Defamation Act 2005 (NSW) (see Goldberg v Randel [2008] NSWDC 45) being followed.

Conduct of the litigation

[22] The complexity of the issues is handicapped by the inadequacies of the pleading, the lack of preparation (and I note in particular the plaintiff’s complaint that none of the necessary pre-trial jury issues have been dealt with) and the prior history of failure by the defendant to comply with directions, some of which are referred to in my judgment of 19 March 2010 (Allen v Lloyd-Jones (No. 2) [2010] NSWDC 41).

[23] While the discharge of a jury is not a step to be undertaken lightly, on the facts of this case, I consider the plaintiff’s request that the jury be dispensed with to be both sensible and proper and one which, if it had not been made, could have been initiated by the Court of its own motion in circumstances such as the present.

[24] Accordingly, the Notice of Intention to Elect Trial by Jury is struck out. The costs of the application is a matter on which I will hear from the parties when the matter is next before the Court, on 23 April 2010.

Orders

(1) The Notice of Intention to Elect Trial by Jury in Defamation Proceedings (Form 23 UCPR 29.2) is struck out. These proceedings, which are currently provisionally listed for hearing on 19 July 2010, to be heard by a judge alone.

(2) Costs reserved.

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23/04/2010 - Typographical errors - Paragraph(s) Orders