Cossari v Wells
[2020] VSCA 133
•26 May 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0043
| GUISEPPE JOE COSSARI | Applicant |
| v | |
| KIM WELLS | Respondent |
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| JUDGES: | BEACH, KAYE and OSBORN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 May 2020 |
| DATE OF JUDGMENT: | 26 May 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 133 |
| JUDGMENT APPEALED FROM: | [2020] VCC 512 (Judge Tsalamandris) |
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PRACTICE AND PROCEDURE – Civil trial – Defamation trial – Mode of trial – Jury – Party’s right to signify jury trial – Power to order trial by judge alone – Indefinite suspension of jury trials due to COVID-19 health crisis – Relevance of indefinite suspension of jury trials – Indefinite delay if trial by jury outweighing party’s right to trial by jury – Application for leave to appeal primary judge’s order dispensing with jury refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D P Gilbertson QC with Ms S N Whiteman | Burch & Co Lawyers |
| For the Respondent | Mr M Hoyne | Carbone Lawyers Pty Ltd |
BEACH JA
KAYE JA
OSBORN JA:
In the lead up to the November 2018 State election, Kim Wells was the elected member for the seat of Rowville. He was a candidate for re-election in the general election to be held in that month. Guiseppe Joe Cossari was a rival candidate for election for Mr Wells’ seat. These proceedings have their genesis in an alleged encounter between Mr Wells and Mr Cossari on 12 November 2018, some 12 days before the election.
On 13 and 14 November 2018, Mr Cossari is alleged to have uploaded onto various Facebook pages six publications which are said to convey that Mr Wells, amongst other things, physically assaulted Mr Cossari on 12 November 2018. On 21 December 2018, Mr Wells filed a writ in the County Court claiming damages from Mr Cossari for defamation in relation to these publications.
In his defence and counterclaim, Mr Cossari, while making some admissions of publication of material about Mr Wells, denied that he published anything defamatory of Mr Wells; denied the imputations pleaded by Mr Wells in relation to the various publications; pleaded the defence of truth, both at common law and under s 25 of the Defamation Act 2005 (Vic) and its equivalent provisions in the other states and territories of Australia; pleaded the defence of honest opinion under s 31 of the Defamation Act and equivalent provisions; pleaded defences of qualified privilege, at common law and under s 30 of the Defamation Act and equivalent provisions; and counterclaimed for damages for a battery alleged to have occurred, on 12 November 2018, when Mr Wells allegedly ‘grabbed [Mr Cossari’s] left arm with force and twisted it around’.
On 7 October 2019, the proceedings between Mr Wells and Mr Cossari were fixed for hearing in the County Court on 3 June 2020, before a judge and jury of six, on an estimate of eight days. The proceedings were fixed for trial before judge and jury because Mr Cossari had filed a notice under r 47.02 of the County Court Civil Procedure Rules 2018, signifying his desire to have the proceedings so tried.
As a result of health concerns arising from the current COVID-19 pandemic, the County Court, and the Trial Division of this Court, determined that, from 16 March 2020 until further notice, there would be no jury trials conducted in this State.
On 3 April 2020, Mr Wells’ solicitors wrote to Mr Cossari’s solicitors asking them to consent to the changing of the mode of trial from judge and jury to judge alone on the basis of ‘the current difficulties the courts are experiencing with respect to empanelling juries due to COVID-19’. Mr Cossari’s consent, however, was not forthcoming.
On 29 April 2020, Judge Tsalamandris heard Mr Wells’ application for the proceedings to be heard as a cause on 3 June 2020. On 1 May 2020, the judge granted Mr Wells’ application, making an order in the following terms:
1.The trial date of 3 June 2020 is confirmed as a remote eTrial by judge alone (estimate eight days).
Mr Cossari now seeks leave to appeal on the following grounds:
1.In the exercise of her discretion, the learned judge acted on a wrong principle, namely whether she was satisfied that there was any particular reason as to why the case should proceed before a jury (Reasons for Decision [18], first bullet point). The learned judge should have considered whether she was persuaded that the matter should be heard by judge alone.
2.In the alternative to 1, in the exercise of her discretion, the learned judge took into account an irrelevant consideration, namely whether she was satisfied that there was any particular reason as to why the case should proceed before a jury (Reasons for Decision [18], first bullet point).
3.In the exercise of her discretion, the learned judge failed to take into account a relevant consideration, namely that the applicant had a prima facie entitlement to trial by jury.
4.In the exercise of her discretion, the learned judge reversed the onus of proof, and therefore acted on a wrong principle, in that she considered whether she was satisfied that there was any particular reason as to why the case should proceed before a jury (Reasons for Decision [18], first bullet point). The learned judge should have considered whether she was persuaded that the matter should be heard by judge alone.
5.In the exercise of her discretion, the learned judge acted on a wrong principle, namely that the factors usually considered by a court in deciding whether to dispense with a jury were irrelevant to the application (Reasons for Decision [12]). The learned judge should have considered the complexity of the legal and factual issues in the proceeding.
6.In the exercise of her discretion, the learned judge failed to take into account a relevant consideration, namely that in defamation cases, juries are well-suited to decide the issues which are at large between the parties, particularly in relation to the imputations to be derived from the publications.
The application to dispense with the jury
Mr Wells’ application to dispense with the jury was supported by an affidavit sworn by him on 21 April 2020. The affidavit made it clear that the basis of the application was the announcement by the County Court, in March, that there would be no new jury trials until further notice. As Mr Wells put it, ‘there is a real risk that my matter might not be heard until the second half of 2021 or even the beginning of 2022’.
In his affidavit, Mr Wells deposed to ‘experiencing substantial stress and inconvenience by this proceeding being outstanding’ and that he was ‘anxious to secure a vindication of [his] reputation as soon as possible’.
Additionally, Mr Wells noted that the trial had already been adjourned on one occasion:
largely as a result of the defendant [Mr Cossari] failing to provide proper discovery (which led to the need for the plaintiff to issue a number of subpoenas under Order 42A) or attend a medico-legal appointment with Dr David Kennedy, organised by [Mr Wells’] solicitors.
While Mr Wells conceded that he sought the adjournment on the occasion just referred to, he said that this was ‘necessitated by the actions (and inaction) of the defendant’.
In his submissions to the primary judge, counsel for Mr Wells said that if it was possible to have confidence that a rescheduled trial could take place in, say, October 2020, then this application would not have been made. The basis for the application was that jury trials have been suspended indefinitely.
In submitting that the matter should proceed as a cause on the date currently fixed for trial (3 June 2020), counsel for Mr Wells relied upon the following matters:
·sections 7 and 8 of the Civil Procedure Act 2010 require the Court to ‘facilitate the just, efficient, timely and cost effective resolution’ of the dispute;
·the proceeding has already been adjourned once;
·a delay in a defamation case means that the damage to the plaintiff’s reputation continues;
·Mr Wells has gone on oath as to the stress and inconvenience caused by having the proceedings remain outstanding;
·further delay has the capacity to impact on the memory of witnesses; and
·Mr Cossari’s recent disposal of his share in the family home to his wife gives rise to a concern about the ability to subsequently recover any judgment sum from him, and the longer the trial is delayed, the greater the concern.
In their submissions to the primary judge, counsel for Mr Cossari pointed out that Mr Wells bore the onus of persuading the Court that it should dispense with the jury. They submitted that there was no special reason to dispense with the jury. Moreover, this was a case which was appropriate to be heard by a jury, notwithstanding the delays in hearing jury trials caused by the current health crisis.
Additionally, counsel for Mr Cossari submitted that, their client having elected for a trial to be conducted by judge and jury, he had a prima facie entitlement to such a trial and should not be deprived of that entitlement in the absence of good cause. In support of that submission, counsel relied upon this Court’s decision in Trevor Roller Shutter Service Pty Ltd v Crowe.[1]
[1](2011) 31 VR 249, 259–260 [39] (‘Trevor Roller Shutter’).
Additionally, counsel for Mr Cossari submitted to the judge that it has long been accepted that in defamation cases, juries are well-suited to decide the issues which are at large between the parties, particularly in relation to the imputations to be derived from publications.[2] In the present case there was, they submitted, a ‘real issue’ as to whether the meanings relied upon by Mr Wells were conveyed by the impugned publications.
[2]See, generally, Belbin v Lower Murray Urban and Rural Water Corporation(Ruling No 1) [2012] VSC 359, [8]; Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246, [69]–[71].
Counsel for Mr Cossari also submitted that the case was not a complex one. While there are a number of publications, it was submitted that there were not likely to be many documents involved at trial.
Finally, counsel for Mr Cossari made the following responsive submissions to those made on behalf of Mr Wells:
(1)The first adjournment of the trial was by consent and on the application of Mr Wells. If he was concerned to preserve the trial date then that application should not have been made.
(2)Every defamation trial which is delayed results in stress to both parties.
(3)The fact that damage to reputation may be ongoing is offset by an appropriate award of damages that takes such matters into account.
(4)Whether Mr Wells, if successful, will ultimately recover any damages awarded is a risk that all plaintiffs share in all cases in which monetary compensation is sought.
Primary judge’s reasons
Having referred to relevant background, the judge noted the announcement made by the Courts in March 2020 that, until further notice, there would be no new jury trials in the Supreme Court or County Court of Victoria.[3] The judge said that the Common Law Division of the County Court was currently hearing ‘causes of 1–2 days, as remote eTrials’. Her Honour then said that it was intended that from 1 June 2020, the Court would hear ‘longer causes, irrespective of the length, as remote eTrials, unless satisfied that such a case is unsuitable to be heard via video’.[4]
[3]Wells v Cossari [2020] VCC 512, [3] (‘Reasons’).
[4]Ibid [4].
The judge referred to Mr Wells’ affidavit[5] and submissions made by Mr Cossari.[6] The judge then referred to the principles underlying applications to change the mode of trial from judge and jury to trial by judge alone as follows:
Subject to compliance with the Rules of Court, a party is entitled as of right to seek trial by jury provided the claim is founded in contract or in tort. This right was enlivened in this case by Mr Cossari filing a jury notice in this matter on 25 January 2019 and the jury fees have been paid.
Where a party has given proper notice that a trial by jury is required, that will be the prescribed mode of trial unless the court is persuaded to dispense with the jury. This power is provided for under 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).[7]
The Court of Appeal in Trevor Roller Shutter Service Pty Ltd v Crowe noted that a party who gives notice in accordance with the Rules has a prima facie entitlement to trial by jury and that party should not be deprived of such an entitlement in the absence of good cause.
The onus in persuading a court to dispense with a jury trial rests with the party making the application, in this case the plaintiff. A court will not lightly make such an order unless it is warranted by the ‘dictates of justice’.
In Gunns Ltd v Marr [No 5] and Birti v SPI Electricity, J Forrest J summarised the factors relevant to the court exercising its discretion to dispense with a jury trial, which included matters such as complexity of factual matters and legal issues.[8]
[5]Ibid [5].
[6]Ibid [6].
[7]The relevant rule was in fact the equivalent rule 47.02 of the County Court Civil Procedure Rules 2018.
[8]Reasons [7]–[11] (citations omitted).
Her Honour then observed that the factors usually considered by a court in deciding whether to dispense with a jury were ‘irrelevant to this application, which arises solely as a consequence of the indefinite suspension of new jury trials in this State.’[9]
[9]Ibid [12].
Next, the judge then referred to a decision of Macaulay J in the matter of Mulquiney v Reynolds [No 1][10] and a decision of Perram J in Capic v Ford Motor Co of Australia Ltd.[11] With respect to Mulquiney, the judge said:
[10][2020] VSC 119 (‘Mulquiney’).
[11][2020] FCA 486 (‘Capic’).
On the day that new jury trials were suspended, Macaulay J, in the matter of Mulquiney v Reynolds & Anor [No 1], considered the court’s power under 47.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and whether the court has power to determine if the trial proceed by judge alone.
The case of Mulquiney involved an institutional liability proceeding against an alleged perpetrator of sexual abuse and the State of Victoria. The case had previously been expedited due to the nature of the plaintiff’s injuries and the adverse effects of the litigation process upon him.
In deciding that the ‘dictates of justice’ warranted the exercise of his discretion to order trial by judge alone, Macauley J considered the following matters:
•it was in the interests of the plaintiff to have the matter expedited and not subject to delay;
•there was nothing about the case which would make it unjust to either party to have it heard by a judge rather than a jury;
•it was in the public interest for cases before the courts to be disposed of in an orderly, timely and cost-effective way.[12]
[12]Reasons [13]–[15] (citation omitted).
The judge observed that since the decision in Mulquiney, the State Government had passed laws restricting the movement of people in response to COVID-19. She noted that the restrictions were to be reviewed in early May, but said that even if those restrictions were eased, ‘at the current time it cannot be confidently assumed that a jury trial can proceed this year’.[13]
[13]Ibid [16].
In relation to Capic, the judge said:
As was recently noted by Perram J in Capic v Ford Motor Company of Australia Limited, in an adjournment application for a class action in the Federal Court due to commence in June 2020:
‘… there is simply no guarantee that the situation will be any better in six months’ time. It may be that this is a state of affairs which persists for a year or so. It is not feasible nor consistent with the overarching concerns of the administration of justice to stop the work of the courts for such a period …’[14]
[14]Ibid [17] (citations omitted).
The judge concluded her reasons for judgment by saying:
Relevant to the exercise of my discretion in this case, I note the following:
•I am not satisfied that there is a particular reason as to why the case should proceed before a jury;
•I am satisfied that Mr Wells will suffer ongoing stress and concern about ongoing damage to his reputation until this matter is determined. If, as I accept, it is not likely that a jury trial can commence before the end of 2020 there will be a delay of eight months or more. I am mindful of the maxim ‘justice delayed is justice denied’ in considering the application before me;
•A lengthy adjournment would be inconsistent with the overarching purposes of the Civil Procedure Act 2010 (Vic), to achieve just, efficient, timely and cost-effective resolution of the real issues in dispute in a case;
•The court has the capacity to hear this trial as a cause on 3 June 2020. This mode of trial will enable the case to be heard ‘equally justly’, and without the need for a lengthy adjournment.
In exercising my discretion to dispense with a jury, I must be satisfied as to what the dictates of justice demand in this particular case. For the reasons stated, I am satisfied that the jury in this matter be dispensed with and the case now proceed as a cause.[15]
[15]Ibid [18]–[19] (citation omitted).
Parties’ submissions
Mr Cossari’s submissions may be summarised as follows:
(1)The judge acted on a wrong principle, or took into account an irrelevant consideration, when she concluded that she was not satisfied that there was any particular reason as to why the case should proceed before a jury[16] (grounds 1, 2 and 4).
[16]Ibid [18].
(2)The judge failed to take into account a relevant consideration — namely that Mr Cossari had a prima facie entitlement to trial by jury (ground 3).
(3)The judge reversed the onus of proof (ground 4).
(4)The judge erred in:
(a)holding that the factors usually considered by a court in deciding whether to dispense with a jury were irrelevant;[17] and
(b)failing to consider whether the legal and factual issues in the case were complex
(ground 5).
(5)The judge erred in failing to take into account a relevant consideration, namely that in defamation cases, juries are well-suited to decide the issues which are at large between the parties, particularly in relation to the imputations to be derived from the publications (ground 6).
[17]Ibid [12].
In support of his contentions, Mr Cossari submitted that the current health crisis ‘is not good cause why the jury should be dispensed with’. To hold otherwise would result in ‘virtually every civil jury trial in the County Court [being] turned into a judge alone trial because of COVID-19’. It was submitted that this ‘cannot be right’.
In response to Mr Cossari’s submissions, Mr Wells submitted that the judge’s decision was an interlocutory discretionary decision on a matter of practice and procedure. The principles in House v The King[18] applied. No error of the kind referred to in House had been demonstrated, and the application for leave to appeal should thus be refused. The judge did not disregard Mr Cossari’s prima facie right to trial by jury, or reverse the onus. Rather, her Honour concluded – as she was entitled to do so – that that right was outweighed by the prospect that the trial of the proceeding would be indefinitely delayed if the trial were to be by jury.
[18](1936) 55 CLR 499 (‘House’).
Consideration
The judge commenced her analysis at Reasons [7] by noting that, because he had filed a jury notice, Mr Cossari had a prima facie entitlement to trial by jury.[19] Thus, immediately one sees that ground 3, which complains that the judge failed to take into account the fact that Mr Cossari had a prima facie entitlement to trial by jury, is wholly without substance and must be rejected. Having acknowledged that prima facie right, the judge found that there were countervailing circumstances – and in particular, the indefinite delay if the trial were to be by judge and jury – which outweighed and displaced that right. Such reasoning by the judge did not involve any reversal by her Honour of the applicable onus of persuasion (ground 4).
[19]See also, Reasons [8]–[9].
Similarly, we are unpersuaded that the judge failed to consider the issue of complexity so far as it was relevant to Mr Wells’ application. In her analysis, the judge specifically referred to Gunns Ltd v Marr [No 5][20] and Berti v SPI Electricity,[21] and the issue of complexity as discussed in those cases.[22] Mr Cossari’s assertion to the contrary in his argument under ground 5 is thus without substance and must accordingly be rejected.
[20][2009] VSC 284.
[21][2011] VSC 566.
[22]Reasons [11].
Likewise, we are not persuaded that there was any error in the judge failing to reason, from the proposition that generally speaking juries are an appropriate, if not the preferred, mode of trial in defamation proceedings, to a conclusion that Mr Wells’ application to dispense with the jury should be refused. The judge referred to Mr Cossari’s submission to that effect.[23] Accordingly, in so far as it was contended that the judge overlooked this issue, that contention must be rejected.
[23]Ibid [6]. Against which it might be observed that there was on the application before the judge a countervailing consideration that defamation cases be tried with expedition (thus explaining one of the underlying rationales for the 12 month time limit for their commencement set out in s 5(1AAA) of the Limitation of Actions Act 1958 (Vic) and its equivalent provisions in the other states and territories of Australia).
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.
It follows from the above that ground 6 is without substance and must be rejected. We turn now to grounds 1 and 2, and the balance of grounds 4 and 5.
In observing that the factors usually considered by a court in deciding whether to dispense with a jury were irrelevant in the application made by Mr Wells, the judge was saying no more than that the basis for the application was the indefinite suspension of jury trials brought about by the current health crisis. It is plain from her reasons for judgment that the judge well understood that the issue was whether that very significant matter should override Mr Cossari’s entitlement to his preferred mode of trial.
In the application, the judge was required to grapple with the unprecedented circumstances the courts now find themselves in as a result of the health crisis,[24] and the indefinite delay in the hearing of jury trials as a result of that crisis. Her Honour was required to balance (among other considerations) Mr Cossari’s right to have the trial of the proceeding determined by a jury as against, on the other hand, Mr Wells’ right to have it heard without indefinite delay. In our view, the judge did so in a careful, considered and principled manner. Her Honour’s reasons for judgment show that she well understood the relevant facts, the relevant principles to be applied and the matters to be taken into account in the determination of Mr Wells’ application.
[24]See Mulquiney [2020] VSC 119; Capic [2020] FCA 486; JKC Australia LNG Pty Ltd v CH2MHill Companies Ltd [2020] WASCA 38.
Frequently in applications for leave to appeal from interlocutory discretionary decisions on matters of practice and procedure, this Court will note the traditional restraint that is exercised by appellate courts in relation to such decisions.[25] In the present case, however, we would conclude that her Honour’s decision was correct in all the circumstances. To have permitted this proceeding to be adjourned indefinitely would, in our view, have been plainly wrong. Her Honour did not fall into that error. Her decision was plainly correct.
[25]See In re The Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318, 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177.
For completeness, we should say that there was no error in the judge considering whether there was any particular reason why the case should proceed before a jury. In considering that matter,[26] her Honour was conducting the same analysis conducted by Macaulay J in Mulquiney.[27] There was no error in that approach.
[26]See Reasons [18].
[27]Mulquiney [2020] VSC 119, [8].
Finally, we reject Mr Cossari’s submission that her Honour’s decision has the consequence that ‘virtually every civil jury in the County Court will be turned into a judge alone trial because of COVID-19’. As her Honour’s judgment shows, each case must be considered on its merits. Relevant issues will include whether the matter has been fixed for trial, and if so how long; the likelihood of the matter being able to be heard as a jury within an appropriate timeframe; and the nature of the issues in the proceeding. The fact that, while there remains an indefinite suspension of jury trials, many applications to change the mode of trial from judge and jury to judge alone might succeed, is no basis for departing from a principled approach to each application that might be made to a trial court to change the mode of trial so as to permit the relevant proceeding to be tried in a timely fashion.
It follows that grounds 1, 2, 4 and 5 are also without substance and must be rejected.
Conclusion
Leave to appeal must be refused.
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