Chel v Fairfax Media Publications Pty Ltd (No 2)

[2015] NSWCA 379

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379
Hearing dates:	20 November 2015
Date of orders:	20 November 2015
Decision date:	02 December 2015
Before:	Macfarlan JA at [1]; Meagher JA at [53]; Tobias AJA at [60]
Decision:	(1)   Grant leave to appeal. (2)   Allow the appeal. (3) Order that Adamson J’s decision to hear the Common Law proceedings number 2011/409423 without a jury be permanently stayed unless and until her Honour or another judge makes an order under s 21 of the Defamation Act 2005 dispensing with a jury. (4)   Set aside orders 1 and 2 made by Adamson J on 16 November 2015. (5)   Order the respondents to pay the appellant’s costs of the application for leave to appeal and the appeal. (6)   Note that the Court will provide its reasons for judgment in due course. (7)   Direct the appellant within seven days of today’s date to file a Notice of Appeal in accordance with the draft that has been provided.
Catchwords:	DEFAMATION – application to Court of Appeal for interim relief to prevent hearing at first instance proceeding without a jury – defendants elected for a jury trial but purported to withdraw election shortly before hearing – whether defendants can withdraw their election – whether primary judge had the power to extend the time limits for other party to elect to have a jury trial WORDS AND PHRASES – “elect” – Defamation Act 2005, s 21 – whether “elect” connotes a choice that is final in character
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 14 Defamation Act 2005 (NSW), s 21 Supreme Court Act 1970 (NSW), s 85 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 29.2A Queensland Uniform Civil Procedure Rules (1999)
Cases Cited:	Agricultural & Rural v Gardiner [2008] HCA 57; 238 CLR 570 Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 Attorney General (NSW) v Brewery Employees Union of New South Wales [1908] HCA 94; 6 CLR 469 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246; 81 NSWLR 315 Chel v Fairfax Media Publications Pty Ltd [2015] NSWCA 355 Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Immer (No 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26 Kencian v Watney [2015] QCA 212 O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634
Texts Cited:	D C Pearce and R S Geddes, Statutory Interpretation in Australia (2014,8th ed) N C Seddon, R A Bigwood & M P Ellinghouse, Cheshire & Fifoot Law of Contract (2012, 10th Aust ed)
Category:	Principal judgment
Parties:	Lili Chel (Appellant) Fairfax Media Publications Pty Ltd (First Respondent) Vanda Carson (Second Respondent)
Representation:	Counsel: R Rasmussen/I Kirgiz (Appellant) T Blackburn SC/L Barnett (Respondents)   Solicitors: Beazley Boorman Lawyers (Appellant) Banki Haddock Fiora Lawyers (Respondents)
File Number(s):	CA 2015/337676
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2015] NSWSC 1707 Date of Decision: 16 November 2015 Before: Adamson J File Number(s): SC 2011/409423

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 November 2015 the Court of Appeal granted interim relief in relation to a decision of the Common Law Division of the Supreme Court to hear defamation proceedings without a jury after the primary judge held that the respondents (the defendants in those proceedings below) were entitled shortly before the commencement of the hearing to withdraw their earlier election under s 21(1) of the Defamation Act 2005 (NSW) to have the proceedings tried by jury.

Section 21 of the Defamation Act provides that both parties to defamation proceedings may elect for the proceedings to be tried by jury and that such an election must be made in accordance with the relevant Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). In accordance with s 21, the defendants satisfied the pre-conditions in UCPR r 29.2A for an election for a jury trial by serving the relevant Notice of Intention and filing the relevant Notice of Election within the prescribed time limits. The plaintiff did not complete these steps or file a Notice of Motion seeking an order that the proceedings not be tried by jury.

Held, allowing the appeal (per Macfarlan JA; Meagher JA, Tobias AJA agreeing):

(1) The defendants were not entitled to withdraw their election under s 21 of the Defamation Act for the proceedings to be tried by a jury. The proceedings should therefore be tried by a jury unless, on the application of a party, the Court makes an order under s 21 dispensing with a jury ([18]).

Kencian v Watney [2015] QCA 212, not followed.

(2) There is nothing in s 21 or elsewhere in the Defamation Act to suggest that the legislature intended the word “elect” to be understood differently to how it is understood under the general law. An election for a jury trial should therefore be regarded as irrevocable ([20]-[25]).

O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248; Immer (No 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26; Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634, considered.

(3) A trial judge has the power under UCPR r 1.12 to extend the time limits imposed by UCPR r 29.2A for a party to make an election for a jury trial ([49]-[51]).

Judgment

1. MACFARLAN JA: These are my reasons for joining in the grant of relief on 20 November 2015 in relation to a decision of Adamson J, sitting in the Common Law Division of the Supreme Court, to hear defamation proceedings without a jury. The principal issue for her Honour’s consideration was whether the respondents in this Court (the defendants in the proceedings below) were entitled shortly before the commencement of the hearing to withdraw their earlier election under s 21(1) of the Defamation Act 2005 (NSW) to have the proceedings tried by jury. For the reasons that appear below, my view is that the defendants were not entitled to withdraw their election and the proceedings should be tried with a jury subject to any order that the Court may make under s 21, on the application of a party, dispensing with a jury.

2. Section 85 of the Supreme Court Act 1970 (NSW) deals with the circumstances in which most proceedings in the Supreme Court are or are not tried with a jury. The section does not however apply to defamation proceedings (see subsection (6)) which are instead governed by s 21 of the Defamation Act. That section is in the following terms:

“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.”

3. Rule 29.2A of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) stipulates the time for the making in defamation proceedings of an election for a jury and the manner in which it is to be made. The rule is in the following terms:

“29.2A Elections for juries in defamation proceedings

(1) An election under section 21 of the Defamation Act 2005 for defamation proceedings to be tried by jury must be made by filing a notice of election for a jury trial and serving the notice on each other active party in the proceedings.

Note. Section 21 (2) (b) of the Defamation Act 2005 requires an election to be accompanied by the fee prescribed by the regulations under the Civil Procedure Act 2005 for the requisition of a jury in the court concerned.

(2)   A party may file and serve a notice of election for a jury trial only if:

(a)   the party has served a notice of intention to file the notice of election on each other active party before a date has been fixed for the hearing of the defamation proceedings, and

(b)   a notice of motion has not been filed under subrule (4) or, if such a notice of motion has been filed and served, the court has refused to make the order sought in the notice of motion.

(3)   A party who serves a notice of intention to file a notice of election for a jury trial must, before a date has been fixed for the hearing of the defamation proceedings, inform the court that the notice of intention has been served.

(4) A party on whom a notice of intention to file a notice of election for a jury trial is served may, within 21 days of being served with the notice, file a notice of motion seeking an order under section 21 of the Defamation Act 2005 that the proceedings not be tried by jury.

(5)   If a notice of motion is filed under subrule (4), a date may not be fixed for the hearing of the defamation proceedings until the court has disposed of the motion.

(6)   Without limiting subrule (2), a notice of election for a jury trial may not be filed or served if:

(a) the court makes an order under section 21 of the Defamation Act 2005 (whether or not of its own motion) that the defamation proceedings not be tried by jury, or

(b)    a date has been fixed for the hearing of the defamation proceedings.”

PROCEDURAL HISTORY

4. The proceedings were commenced in the Common Law Division on 20 December 2011. On 4 April 2015 the defendants served a Notice of Intention to file a Notice of Election for a jury trial (see r 29.2A(2)(a)) and on 9 March 2015 they filed, in accordance with s 21 of the Defamation Act, an election for the proceedings to be tried by jury. The defendants satisfied the two pre-conditions specified in r 29.2A(2) for the filing of this Notice of Election by having previously served a Notice of Intention to file that Notice of Election (before the proceedings were fixed for hearing) and the plaintiff had not filed a Notice of Motion seeking an order that the proceedings not be tried by jury. The two conditions specified in r 29.2A(6) were also satisfied as the Court had not made an order that the proceedings not be tried by jury and a date had not been fixed for the hearing of the proceedings prior to the Notice of Election being filed.

5. On 30 April 2015 the proceedings were fixed for hearing to commence on 9 November 2015, with a three week estimate. On 6 November 2015 the commencement of the hearing was postponed to Monday 16 November 2015 due to illness of the plaintiff’s counsel.

6. On Friday 13 November 2015 the defendants purported to withdraw their election for a jury trial. This followed a discussion at a directions hearing on the previous day during which the trial judge had asked the defendants if they still wanted a jury. The question arose out of consideration of the consequences of the plaintiff’s counsel’s illness.

7. On 16 November 2015 the plaintiff applied to the trial judge by Notice of Motion for orders for an abridgement of the time for service of the motion and its hearing instanter, and for:

“ …

3   An order that the defendants are estopped from withdrawing or revoking their election and requisition for trial by Jury.

In the alternative,

4 An order dispensing with UCPR 29.2A(2).

5   An order granting the plaintiff leave to file and serve a Notice of Intention to Elect Trial by Jury and a Requisition for Trial by Jury.

6   An order that these proceedings be tried by a Jury.

7   Costs.”

8. By a judgment of that day, the trial judge dismissed the Notice of Motion and ordered that the proceedings be tried by a judge alone and not by jury ([2015] NSWSC 1707). On appeal, the defendants accepted that none of the parties applied to her Honour to dispense with a jury. As a result, the making of the latter order was erroneous because, as this Court held in Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246; 81 NSWLR 315, the court does not have power under s 21 of the Defamation Act (or otherwise) to dispense with a jury in the absence of an application by a party or parties for such an order (at [94]).

9. What in substance occurred was that her Honour decided that she should proceed to hear the proceedings without a jury because the defendants had, as her Honour considered they were entitled to do, withdrawn their election for trial by jury. As the plaintiff had not made an election for a jury, her Honour concluded that trial without a jury was required because none of the parties had, by a subsisting election, rendered trial by jury appropriate. If these conclusions were correct, there was no need, and it was in fact inappropriate in the absence of an application by a party, for her Honour to make a positive order that the trial be without a jury. That is the default position for which s 21 implicitly provides in the absence of a party electing for trial by jury.

10. Later on 16 November 2015 the plaintiff sought interim relief from this Court preventing her Honour from proceeding without a jury. I granted limited interim relief the next day ([2015] NSWCA 355) and fixed the plaintiff’s application for leave to appeal, and the appeal that would follow if leave were granted, for hearing on a concurrent basis on 20 November 2015. On that day, the Court made the orders set out at the end of this judgment.

THE TRIAL JUDGE’S REASONS FOR JUDGMENT

11. Having noted that the defendants acquired “a vested or accrued substantive right” when they made an election for trial by jury (see Channel Seven Sydney Pty Ltd v Fierravanti-Wells at [50]), the trial judge concluded that she was bound by the Queensland Court of Appeal’s decision in Kencian v Watney [2015] QCA 212 to find that that right “could be unilaterally waived by the party to whom that right accrued” (at [11]).

12. Her Honour then addressed and rejected a claim by the plaintiff that the defendants were estopped from waiving their right to trial by jury. The plaintiff did not put her argument in this way on appeal. Rather, she relied upon the proper construction of s 21 of the Defamation Act, as informed by general law concepts of election.

13. The trial judge rejected the plaintiff’s argument that the defendants had elected between inconsistent rights, (namely the right to trial by jury and the right to trial by judge alone), stating that the decision in O’Connor v SP Bray Ltd (1936) 36 SR (NSW) 248, upon which the plaintiff relied, was “far removed” from the present case (at [26]), and adding:

“27 In the present case, in the circumstances of a claim for damages for defamation, both parties have the same right to elect for a trial by jury and those rights are independent and subsisting. Any party who wishes to preserve his, her or its right to a trial by jury in a defamation action has an equivalent right to protect that position by serving a notice of intention and (unless an order is made by the Court under s 21(1) of the Act) filing a notice of election.”

14. Finally, the trial judge held that she had no power to extend the time within which the plaintiff was entitled to elect to have the proceedings tried by jury. Unless the time was extended, UCPR r 29.2A precluded the plaintiff making an election because she did not serve a Notice of Intention to file a Notice of Election, or file a Notice of Election itself, before the proceedings were fixed for hearing. Her Honour followed McCallum J’s decision in Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 in which, as the trial judge described it, McCallum J found that as “there was no requirement of the rules to do anything before a hearing date was fixed … there was no requirement that could be extended by the Court” (at [23]).

ISSUES ON APPEAL

15. The issues on appeal were essentially as follows.

16. The first issue was whether a party to defamation proceedings who has made an election under s 21 of the Defamation Act for trial by jury is entitled subsequently to withdraw that election. The defendants contended that they were entitled to withdraw their election at any time prior to the empanelment of a jury for the purposes of the trial of the proceedings.

17. The second issue was whether, assuming the defendants had a right to withdraw their election for trial by jury, the Court had power to extend the time within which the plaintiff could herself elect for the proceedings to be tried by jury.

DETERMINATION OF THE APPEAL

Whether an election for jury trial can be withdrawn

18. In seeking an affirmative answer to this question, the defendants faced the difficulty that, whilst s 21 of the Defamation Act expressly confers upon parties a right to elect for defamation proceedings to be tried by jury, it does not confer, at least in express terms, any right to withdraw such an election. Once made by one party, an election changes in a significant respect the manner in which the proceedings are to be disposed of by the court. As Channel Seven v Fierravanti-Wells made clear (at [69]-[79]), there are important differences between the trial of defamation proceedings with and without a jury.

19. A party’s election therefore affects not only its own position but also that of the other parties to the proceedings. This precludes any analogy being drawn, as the defendants contended it should be, with the contract law principle that a party to a contract may waive performance of a contractual provision that is for its benefit and not for the benefit of the other party (see N C Seddon, R A Bigwod & M P Ellinghouse, Cheshire & Fifoot Law of Contract, (2012, 10th Aust ed, at [20.13]). A party’s election confers a right upon the non-electing party to trial by jury. Whether the latter sees the right as a benefit at any particular point does not matter as its views may change as the matter proceeds. Unlike the situation where the contract principle applies, the right cannot be regarded as one benefiting only the electing party.

20. The legislature chose to use the word “elect” in s 21(1). In ordinary English and under the general law this word connotes a choice that is final in character. Where a legislature uses a word that has a meaning under the general law, that meaning may inform the meaning to be attributed to the word used in the statute (see Attorney General (NSW) v Brewery Employees Union of New South Wales [1908] 6 CLR 469 at 531 and other authorities referred to in D C Pearce and R S Geddes, Statutory Interpretation in Australia (2014, 8th ed, at [4.13]-[4.14]). There is nothing in s 21 or elsewhere in the Defamation Act to suggest that the legislature intended the word “elect” to be understood differently from how it is understood under the general law. I turn therefore to consider some relevant common law authorities. Whilst the equitable doctrine of election is distinct from the common law principle of election, it nevertheless shares an underlying concept of finality of choice between alternatives (see Agricultural & Rural Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 at [57]).

21. In O’Connor v SP Bray Ltd, Jordan CJ discussed the concept of election between inconsistent rights at length. In considering whether a lessor had made an election to avoid a lease, his Honour said:

“If he merely takes some steps towards avoiding it, the test of whether this takes away his alternative right to treat it as being on foot has been said to be whether the act done amounts to an ‘unequivocal act of election,’ and this seems to turn on whether, after such an act, it would be unjust that both alternatives should still remain available” (at 259-60).

22. His Honour concluded his discussion of election in the context of contract law by stating:

“It would appear, therefore, from the authorities, that an intimation of an election between alternatives of itself produces no irrevocable results, except in cases where the intimation, of itself, produces legal consequences independently of any question of election, or where it is necessary that the choice should be treated as irrevocable, in order to do justice to the other party” (at 262).

23. In the language of Jordan CJ, an election under s 21(1) of the Defamation Act “produces legal consequences independently of any question of election”: the election changes the mode of trial applicable to the proceedings. In contrast to service of a Notice of Intention to file a Notice of Election (see r 29.2A(2)(a)), the filing of a Notice of Election is not merely a preliminary intimation of intention.

24. In Immer (No 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26, the plurality referred to an election as involving “the abandoning of a right that is available” (at 39). In the present case, this is the right to trial without a jury, which is the default position applicable if no valid election for a jury trial is made. Their Honours also referred to “the idea of confrontation” as being “at the heart of election” (at 42) and held that the appellant in that case had not been “confronted with the necessity of making a choice” (at 43), with the consequence that its act did not constitute an election to affirm the contract to which it was a party.

25. In my view, s 21(1) makes it clear that the parties are confronted with the need to make a definitive choice by the time that the period referred to in subsection (2) expires. The legislature’s use of the word “elect” forecloses an argument that an election for jury trial is simply a preliminary step. The legislature has characterised an election for jury trial as an act that would be treated by the general law as irrevocable. As Mason J said in Sargent v ASL Developments Ltd [1974] HCA 440; 131 CLR 634, “once an election is made it cannot be retracted” (at 656). These conclusions accord with Handley AJA’s view in Channel Seven v Fierravanti-Wells that:

“138 By its timely election [under s 21(1) of the Defamation Act] the appellant acquired the right to trial by jury which was defeasible only by an order properly made under s 21(1) and (3) of the Defamation Act 2005.”

26. These conclusions do not involve a construction of s 21 of the Defamation Act that produces unreasonable or inconvenient results. If a party which elects to have a jury trial changes its mind, it may apply to the court for an order dispensing with the jury (see Channel Seven v Fierravanti-Wells, at [42]-[50], although I query whether there are in fact two powers conferred by s 21 rather than one under s 21(1) which is amplified by s 21(3)). It is not unreasonable or inconvenient for the issue of whether or not there should be a jury to be left, in these circumstances, to the discretion of the court. The attitude of the other party or parties will no doubt be an influential factor as to the course that the court adopts.

27. On the other hand, a conclusion that, as the defendant submitted, an electing party can withdraw its election at any time until a jury is empanelled could lead to wasted expenditure on the part of the other parties, and perhaps even the court, in preparing for a jury, rather than a judge alone, trial. Further, it gives rise to opportunities for an electing party to “judge-shop” by waiting to see which judge is allocated to the trial before choosing which mode of trial to select.

28. Moreover, it is difficult to see why the defendants’ argument, if correct, could not be extended to enable an electing party to withdraw its election at any time before the jury returned its verdict or, indeed, after that time if the consequent judgment were set aside on appeal and a new trial ordered.

29. I turn then to consider the Queensland Court of Appeal’s decision in Kencian v Watney which the trial judge followed.

The Queensland Court of Appeal’s decision in Kencian v Watney

30. In that case, a defendant in defamation proceedings made an election under the Queensland equivalent of s 21 of the New South Wales Defamation Act for the proceedings to be tried by jury, but shortly thereafter purported to withdraw it. The Queensland Uniform Civil Procedure Rules are in different terms to the corresponding New South Wales rule but I do not consider that the differences are of present significance.

31. The Court held that the defendant was entitled to withdraw the election. Morrison JA (with whom Carmody CJ and Boddice J agreed) gave five reasons for that conclusion.

32. First, his Honour pointed out that s 21(1) “says nothing about changing or abandoning the election” (at [19]). This is a factor that in my opinion supports the view that an election cannot be withdrawn.

33. Secondly, his Honour thought it would be odd if the electing party could not withdraw the election absent a court order whereas, there was no reason to suppose that the parties to defamation proceedings could not together agree to dispense with a jury. However, the latter proposition is incorrect. Whilst it is likely that a court would dispense with a jury if the parties agreed to that course, the step does require a court order and the court is not bound to comply with the parties’ request. The premise for his Honour’s conclusion that an electing party can withdraw the election is therefore not sound.

34. Thirdly, his Honour referred to Garling J’s decision in Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383, which the plaintiffs relied on, but found that it did not provide any assistance in resolving the issue before him. This third point did not therefore constitute a factor supporting his Honour’s conclusion. It was neutral.

35. Fourthly, his Honour said that correctness of the contention of the appellants in the case before him “would mean that a party who elected would be forced to have a trial by jury even though that party (and even the other parties) did not want one” (at [26]). However, the Court has the power under s 21 of the Defamation Act to override any election and order, on the application of a party, that a jury be dispensed with. There is nothing surprising or undesirable about the question of whether a jury should be dispensed with being left to the court’s discretion where a party has elected for a jury.

36. Fifthly, his Honour rejected the plaintiffs’ contention that it was relevant that the defendants alleged withdrawal of his election was by way of refusal to pay jury fees. Again, this was not a matter which provided support for his Honour’s conclusion. It was neutral.

37. In these circumstances, I do not consider that any persuasive reasons were advanced in Kencian v Watney for the presently relevant conclusion reached in that case. What was said there does not detract from what I have said above about the relevant issue. Although this Court should be reluctant to depart from a decision of another intermediate Court of Appeal on the construction of uniform legislation, I am satisfied to the requisite degree that the decision in Kencian v Watney is incorrect (see Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492; Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]).

38. For these reasons, my view is that the defendants in the present case were not entitled to withdraw their election for a jury trial and that it was appropriate for this Court to grant a stay to preclude the trial judge proceeding to hear the proceedings without a jury, unless her Honour or another judge makes an order under s 21 of the Defamation Act dispensing with a jury. As noted earlier, this would have to be made on the application of a party, and not on her Honour’s own motion.

39. A corollary of this conclusion is in my view that it was not appropriate, nor indeed possible, for the plaintiff to make her own election for a jury trial once the defendants had already done so. The defendants’ election changed the mode of trial of the proceedings and in that sense it bound both the plaintiff and the defendants. It would have been pointless for the plaintiff to purport by her own election to do what had already been done. The section should not be understood as authorising the giving of another notice as it should not be construed to authorise or encourage pointless acts.

40. If the non-electing party wanted to make its preference for jury trial clear at an early stage, perhaps to provide support for its resistance to a later application by the electing party to the Court to dispense with a jury, that could easily be done without a duplicate purported election under s 21(1). Any means of communication with the electing party would suffice.

Whether the trial judge had power to extend the time for the plaintiff to make an election for trial by jury

41. This issue is only relevant, at least at the present time, if I am wrong in concluding that the defendants were not entitled to withdraw their election. Theoretically, it could become relevant if the Court made an order under s 21 dispensing with a jury, but it is unlikely that the Court would nevertheless grant the plaintiff an extension of time to elect for a jury in that situation. Substantially the same considerations would likely be relevant to each application.

42. The issue could nevertheless be important in a case, unlike the present, where neither party made an election within the time prescribed by UCPR r 29.2A. In that case, a party might well apply for an extension of time to make an election for jury trial.

43. The possible sources of power upon which the plaintiff principally relies are s 14 of the Civil Procedure Act 2005 (NSW) and UCPR r 1.12.

44. Section 14 of the Civil Procedure Act states:

“In relation to particular civil proceedings, the court may, by order, dispense with any requirement of rules of court if satisfied that it is appropriate to do so in the circumstances of the case.”

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 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 pre-condition to the exercise of the right.

46. Furthermore, I do not consider that the desired result could be achieved by using s 14 of the Civil Procedure Act to dispense altogether with compliance with UCPR r 29.2A. That would conflict with the intent of s 21 that there be in the court rules a time for, and manner of, exercising the right that that section confers.

47. UCPR r 1.12(1) provides as follows:

“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.”

48. Two points arise concerning the application of this rule.

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.

50. Secondly, there is a question as to whether s 21(2)(a) of the Defamation Act, in referring to the time prescribed by the rules of court, is only referring to the time specified in a rule such as UCPR r 29.2A and not to that time as it may be extended under other provisions of the Rules. I do not see any reason why s 21(2) should be so construed. If the power to extend time were incorporated in r 29.2A itself, there could be little doubt that s 21(2) would refer to times extended in accordance with the exercise of such a power. I do not consider that it makes any difference that the power to extend time limits is found in a separate rule of court.

51. Accordingly, I conclude, contrary to the trial judge’s view, that her Honour would have had the power under UCPR r 1.12 to extend the time for the plaintiff to file a jury election if the filing of such election had been appropriate and permissible.

ORDERS

52. It was for these reasons that I joined in the making on 20 November 2015 of the following orders:

(1)   Grant leave to appeal.

(2)   Allow the appeal.

(3) Order that Adamson J’s decision to hear the Common Law proceedings number 2011/409423 without a jury be permanently stayed unless and until her Honour or another judge makes an order under s 21 of the Defamation Act 2005 dispensing with a jury.

(4)   Set aside orders 1 and 2 made by Adamson J on 16 November 2015.

(5)   Order the respondents to pay the appellant’s costs of the application for leave to appeal and the appeal.

(6)   Note that the Court will provide its reasons for judgment in due course.

(7)   Direct the appellant within seven days of today’s date to file a Notice of Appeal in accordance with the draft that has been provided.

53. MEAGHER JA: On 20 November 2015 the orders referred to by Macfarlan JA at [52] were made. My reasons for the making of those orders accord with those of Macfarlan JA. I add the following short additional observations.

54. The question raised by the proposed appeal was whether a party to defamation proceedings who has elected for a jury trial in accordance with s 21(1) of the Defamation Act 2005 (NSW) can, in the absence of an application to the relevant court for an order that the proceedings are not to be tried by a jury, somehow withdraw or revoke that election thereby producing the outcome that, within the language of s 21(1), there has been no election for a jury trial.

55. Subsection 21(1) confers the right on a plaintiff or defendant to elect to have the defamation proceedings tried by jury and thus to choose between two inconsistent forms of trial. It also provides that the election once made governs as to the form of trial “Unless the court orders otherwise”.

56. The language of subs 21(3) makes clear that the power conferred on the court to order “otherwise” is directed to whether the proceedings are or are not to be tried by jury. It is not directed to either party’s right of election although, as was held by this Court in Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246; 81 NSWLR 315 at [43], [138], that power may be exercised in the face of an election which would otherwise govern the form of trial.

57. Macfarlan JA points out that it is the essence of an election that it involve a binding choice between inconsistent courses of action, rights or remedies. As was observed by Gummow, Hayne and Kiefel JJ in Agricultural & Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 at [59], in relation to the operation of the doctrine of election at common law, in many cases the central issue is whether a binding election has been made.

58. Subsection 21(2) addresses that question in relation to the exercise of the right to elect in subs (1). It provides that the election must be made at the time and in the manner prescribed by the rules. It does so to ensure that there is certainty as to whether and when an election has been made. Relevantly, subject to the satisfaction of the conditions in Uniform Civil Procedure Rules 2005 (NSW), r 29.2A(2), such an election is made by the filing and service of a “notice of election for a jury trial”.

59. In this case that election was made by the defendants on 9 March 2015. That election, subject to the exercise of the power conferred on the court by s 21(1) to order otherwise, continues to govern the form of trial of the proceedings.

60. TOBIAS AJA: In this matter I have had the advantage of reading in draft the reasons of Macfarlan JA and the additional observations of Meagher JA. Those reasons and observations accord with my own view as to the orders which the Court made on 20 November 2015.

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Amendments

09 December 2015 - Corrections to Coversheet and [37]

03 December 2015 - Corrections to [19] and [22].