Bristow v Adams

[2010] NSWDC 64

CITATION:	Bristow v Adams [2010] NSWDC 64
HEARING DATE(S):	16 April 2010
JUDGMENT DATE:	28 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Application by the defendant for the hearing fixed for 7 June 2010 (5 day estimate) to proceed by way of jury is dismissed with costs. (2) Judge Gibson to email judgment to parties.
CATCHWORDS:	TORT - defamation - matter set down for trial as non-jury hearing - defendant makes application for jury trial - failure to comply with jury requisition procedure - application dismissed
LEGISLATION CITED:	Civil Procedure Regulation 2005 (NSW), Schedule 1, Part 3 cl 4 Defamation Act 2005 (NSW), ss 21(2)(a) and 21(2)(b) District Court Act 1973 (NSW), s 76A Uniform Civil Procedure Rules 2005 (NSW), Part 29 rr 29.2(2), 29.2(3) and 29.2(4)
CASES CITED:	Allen v Lloyd-Jones (No. 3) [2010] NSWDC 53 Bechara v Bonacorso (No. 3) [2010] NSWDC 52
TEXTS CITED:	The Honourable Justice McClellan, “Eloquence and Reason - are juries appropriate for defamation trials?” <
PARTIES:	Plaintiff: Alan Bristow Defendant: Tracy Adams
FILE NUMBER(S):	4259 of 2009
COUNSEL:	Plaintiff: Ms S Chrysanthou / Ms V Otavski (solicitor) Defendant: Mr C A Evatt / Ms L Evans
SOLICITORS:	Plaintiff: Goldsmiths Lawyers Defendant: Stacks Goudkamp

Judgment

[1] These are my reasons for dismissing the application brought by the defendant for these proceedings (which is set down for hearing as a 5-day non-jury trial for 7 June 2010) to be heard by a jury.

[2] The plaintiff commenced proceedings on 24 September 2009 by Statement of Claim pleading publication of an email by the defendant on 10 June 2009 conveyed the following imputations:

“A. That the plaintiff was a bully (Line 7).

B. That the plaintiff conspired with others to dishonestly obtain the benefit of the publisher’s sale territory (Lines 9-11).

C. That the plaintiff as a Manager was unprofessional (Lines 12-13).

D. That the plaintiff was a liar (Line 16).

E. That the plaintiff was a thief (Line 16).

F. That the plaintiff was not suitable for a position of Manager (Lines 21-22)

G. That the plaintiff was dishonest (Lines 21-22).

H. That the business of Muswellbrook operations of Total Fasteners deteriorated as a result of the failings of the plaintiff (Lines 22-24).”

[3] There has never been any determination of form and capacity of the imputations.

[4] On 30 October 2009, the defendant filed a Cross-Claim in defamation and subsequently, on 4 November 2009, a Defence was filed pleading defences of truth, contextual truth, comment and qualified privilege.

[5] Although a Notice of Intention to Elect Trial by Jury in Defamation Proceedings was filed by the defendant on 13 October 2009, no announcement was made in court by the defendant when the matter was next before the court on 11 December 2009 for the trial to proceed by way of a jury trial contrary to Part 29 r 29.2(4) Uniform Civil Procedure Rules 2005 (NSW). Further directions hearings were held on 12 February, 26 February and 19 March 2010, when the matter was listed for hearing as a 5-day non-jury matter.

[6] The matter was given a degree of fast tracking because of the limited extent of publication of the matter complained of as set out in paragraph 1 of the Statement of Claim. When the matter was set down for hearing, Mr Rasmussen, who appeared for the defendant, did not oppose the matter being set down for hearing, provisionally, for Monday 7 June 2010 as a 5-day non-jury matter.

[7] My associate then received the following letter on 23 March 2010 from the solicitors for the defendant:

“We refer to the Directions Hearing in this matter on Friday 19 March 2010 when a Hearing date was set for 7 June 2010 as a non-jury trial with an estimate of five days.

We enclose Notice of Intention to Elect Trial by Jury in Defamation Proceedings which was filed with the Court on 13 October 2009.

The matter is next before Her Honour on 16 April 2010.

At that time we respectfully request that our Notice of Intention to Elect Trial by Jury be noted, and the appropriate order be made to ensure that this matter is heard before a jury.”

[8] When the matter came before me on 16 April 2010, this being for the purpose of review of the readiness of the matter for trial as a non-jury matter, Mr Evatt, who appeared for the defendant, raised with me whether the trial would proceed as a non-jury trial or as a jury trial.

[9] Upon it being drawn to Mr Evatt’s attention that his client had not served the Notice of Intention, made a jury announcement, filed a requisition for jury or paid the fee, and had consented to the matter being set down (albeit provisionally) as a non-jury hearing, in circumstances where the hearing date would have to be vacated, Mr Evatt said that he would make no further submissions. As an experienced jury advocate who has appeared in a number of trials since the enactment of the Defamation Act 2005 (NSW), Mr Evatt agreed that there was no prospect of the jury trial being completed in 5 days; the “triple length” rule (on page 18-19) referred to by McClellan CJ at CL in his recent discussion paper “Eloquence and Reason - are juries appropriate for defamation trials?” < given on 4 November 2009 is far more likely to be correct. This is especially so in circumstances where the defendant has filed a cross-claim in defamation, which presents as a further complication adding to the length of the trial.

[10] I have set out in my judgments in Bechara v Bonacorso (No. 3) [2010] NSWDC 52 and Allen v Lloyd-Jones (No. 3) [2010] NSWDC 53 the relevant rules and procedure for:

(a) the filing of a Notice of Intention to Elect Trial by Jury in Defamation Proceedings (s 21(2)(a) Defamation Act 2005 (NSW), r 29.2(3) Uniform Civil Procedure Rules 2005 (NSW));

(b) a public announcement in court (r 29.2(4) Uniform Civil Procedure Rules 2005 (NSW));

(c) the filing of a requisition for jury (s 76A District Court Act 1973 (NSW); r 29.2(2) Uniform Civil Procedure Rules 2005 (NSW)); and

(d) the payment of the $913 jury fee (s 21(2)(b) Defamation Act 2005 (NSW); Civil Procedure Regulation 2005 (NSW), Schedule 1, Part 3 cl 4).

[11] The plaintiff sought an order for costs on the basis of the lateness of the application, the circumstances in which prior notification had not been given to the court and lack of notice to the plaintiff of this proposal.

[12] The procedure for requisitioning a jury should by now be clear to practitioners. Fundamental to this procedure is the early notification not only of the court by way of an announcement made in open court but, just as importantly, if not more so, by the service of the relevant documents on the opposing party.

Orders

(1) Application by the defendant for the hearing fixed for 7 June 2010 (5 day estimate) to proceed by way of jury is dismissed with costs.

(2) Judge Gibson to email judgment to parties.

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