Goldberg v Randel

[2008] NSWDC 45

CITATION:	Goldberg v Randel [2008] NSWDC 45
HEARING DATE(S):	28 March 2008
JUDGMENT DATE:	28 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Defendant's application for extension of time in which to file a jury requisition is dismissed. 2. Defendant pay plaintiff’s costs of this application.
CATCHWORDS:	Tort - defamation - application for extension of time to requisition a jury
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), s 56 Defamation Act 1974 (NSW), s 7A Defamation Act 2005 (NSW), s 21 District Court Act 1973 (NSW), ss 78 and 79A District Court Rules 1973 (NSW), Part 12 r 5 Uniform Civil Procedure Rules 2005 (NSW), Part 29 r 29.2
CASES CITED:	Dunsec v Nationwide News Pty Ltd [2000] NSWCA 155 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Mallik v McGeown [2008] NSWSC 129 Murrihy v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, 11 December 1998, unreported) Pambula District Hospital v Herriman (1988) 14 NSWLR 387
PARTIES:	Plaintiff: Raymond Goldberg Defendant: John Randel
FILE NUMBER(S):	5709 of 2006
COUNSEL:	Plaintiff: S Chrysanthou Defendant: R Rasmussen
SOLICITORS:	Plaintiff: Kalantzis & Co Defendant: Sally Nash & Co as agents for Bennett & Philp

Introduction
1. The plaintiff commenced proceedings by way of statement of claim filed on 28 November 2006 and served on 4 December 2006 concerning an alleged defamatory email sent to a customer of the plaintiff’s in Dubai.

2. An order was made on 4 May 2007 for a defence to be filed on 18 May 2007. The defence was filed on 4 June 2007. There were the usual interlocutory arguments concerning discovery and interrogatories, which the parties have now resolved, and the matter is likely to be given a hearing date when the matter is next in the list.

3. On 29 January 2008 the solicitors for the plaintiff wrote drawing attention to the fact that while what purported to be a jury notice had been served, that notice was defective. The plaintiff’s solicitors were correct in this opinion; the document had been rejected by the District Court registry as being out of time.

4. The defendant now brings an application for leave to file a jury requisition out of time.

Jury provisions in defamation trials in the District Court
5. The publication having been made after the commencement of operation of the Defamation Act 2005 (NSW), the parties’ rights to a jury trial are governed by s 21 Defamation Act, which requires any election for trial by jury to be made at the time and in the manner prescribed by the rules of court for the court where the proceedings are to be tried, and to be accompanied by the prescribed jury fee. Section 21(3) notes that a court may order that defamation proceedings not be tried by a jury in certain circumstances, but this section is predicated on a jury requisition being filed in the usual way.

6. The relevant rule in this court is Part 29 r 29.2, which sets out a different regime depending on whether the party filing the requisition is the plaintiff or the defendant. If, as is the case here, the party requisitioning the jury is the defendant, the relevant provisions are set out in Part 29 r 29.2(6)(b). If the notice is filed by the defendant, it must be done 28 days after service of the statement of claim or, if the court directs “some other date for the filing of a defence, within 28 days after the date fixed by the court’s direction”.

7. In addition, an announcement must be made in open court to a judicial officer at the first hearing more than three days after the notice is filed. It is not in dispute that this was never done.

8. The purpose of these rules is clear; the intention of the legislature is that early and clear warning should be given about the intention of a party to seek trial before a jury.

9. The rules relating to the requisitioning of juries in the District Court were for many years the provisions in ss 78 and 79A District Court Act 1973 and Part 12 r 5 District Court Rules. As Levine J noted in Murrihy v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, 11 December 1998, unreported, at 3), “in the District Court the availability of a jury depends upon an order of the court being made rather than the automatic entitlement that exists in this court.” In particular, Practice Note 33 required “exceptional” circumstances to permit the filing of a jury requisition out of time.

10. This procedure changed with the introduction of compulsory s 7A jury trials in this court following amendments to the Defamation Act 1974 (NSW) to bring the District Court jury rules into line with those in the Supreme Court.

11. As McCallum J noted in Mallik v McGeown [2008] NSWSC 129 at [13], the purpose of s 21 was to replace “similar provisions” for the requisitioning of juries. The procedure is, however, not the same as existed previously. There are now fees payable, and there is a reference to a discretion which would appear to give a wider discretion to the judge hearing the application than was the case with section 7A jury trials. This is no doubt because a jury hearing an action brought under the 2005 Act determines all issues except damages while a jury hearing an action brought under the 1974 Act determined only limited issues of publication, imputations, identification and defamatory meaning.

12. The issue in this application is whether the defendant should be granted leave to file a requisition for a jury over a year since the time for filing a jury requisition (ie 28 days after the date of 18 May 2007, being the date for the filing of the defence).

The relevant events in these proceedings
13. On 4 May 2007, I made an order that a defence be filed by 18 May. No defence was filed by that date; it was in fact filed on 4 June.

14. Ms Chrysanthou, on behalf of the plaintiff, points out that since the relevant date for the purposes of Part 29 r 29.2(6)(b) is 18 May, then the latest date under Part 29 r 29.2 on which the defendant could file a jury requisition was 16 June.

15. The matter was next in court on 22 June.

16. The jury requisition was filed on 28 June, which the plaintiff submits was 12 days out of time. This requisition was rejected by the registry, no doubt because the order of the court was for the defence to be filed on 18 May.

17. The proceedings were back in court five times in 2007 and early 2008. No announcement was ever made about a jury requisition. The defendant never told the plaintiff the fate of its jury requisition.

18. On 29 January 2008 the plaintiff’s solicitor wrote to the defendant pointing out that the jury requisition served upon them was defective.

19. The application for extension of time is now made nine months after the time for filing the requisition has expired.

The parties’ submissions
20. The plaintiff’s counsel submits that the defendant seeks an extraordinary indulgence without offering any explanation for its failure to attend to these matters earlier. The plaintiff has prepared the matter for trial on the basis that the action will be heard by a judge. Decisions about what witnesses to call, the preparation and presentation of evidence and the conduct of the action have all been made on this basis. The fact that there is a difference in documentation and pre-trial arguments in a trial before a judge as opposed to a trial before a jury was noted by Mason P in Dunsec v Nationwide News Pty Ltd [2000] NSWCA 155.

21. The plaintiff also submits that additional costs will be incurred if the action is heard by a jury. However, I propose to disregard these arguments, because they relate to the perceived evils of defamation trials in general, rather than to problems in this trial, which is not permissible: Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at 403B.

22. The defendant submits that notice was given to the plaintiff of the intention to seek trial by jury by a letter dated 25 June 2007 enclosing a copy of a requisition that the defendant intended to file. It is asserted that pleadings were not closed until the Reply was filed on 10 September 2007.

23. Further, it is asserted that a truth defence is eminently a matter for a jury. Parliament intended that all factual matters (save for damages) be tried by jury and that a jury trial is in the interests of justice.

Conclusions
24. The rules relating to jury requisitions need to be read in the light of the intention of s 21 Defamation Act 2005 that a party can requisition a jury, and the intention of s 56 Civil Procedure Act 2005 (NSW) that the conduct of court proceedings should be just, quick and cheap.

25. The difficulty the defendant has is that he offers no explanation for his conduct in lodging the application late and doing nothing about it until prompted to bring this application by a reminder letter from the solicitor for the plaintiff.

26. If the application had been brought promptly when the jury requisition was rejected in June 2007, such an application may well have been viewed with sympathy. The period of time for which an extension was sought would have been small and the plaintiff did not have the prejudice of having continued to prepare for hearing on the basis that the hearing was before a judge alone.

27. In exercising my discretion whether to extend time, it seems to me that the best guide is to consider, by analogy, issues the Court of Appeal considered appropriate in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 and the many cases which have applied the principles set out therein.

28. The failure to file the requisition in time was compounded by the failure to take steps to seek an extension for many months. No explanation is forthcoming for this failure. There is evidence of prejudice to the other party.

29. While I am conscious of appellate decisions that the role of the jury in defamation actions must be vigorously protected (Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 88) this should not entitle a party who has flouted the rules to take an opponent by surprise when the matter is almost ready for hearing.

30. I note the submissions about truth being an appropriate matter for a jury. However Parliament, in its wisdom, set down a strict timetable for the requisitioning of a jury. In the absence of some kind of reasonable explanation that is capable of enlivening judicial discretion, that timetable should have been complied with.

Orders

31. I make the following orders:

1. Defendant’s application for extension of time in which to file a jury requisition is dismissed.
2. Defendant pay plaintiff’s costs of this application.

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