Hooper v Phipps (No 2)

[2024] NSWDC 8

District Court

New South Wales

Medium Neutral Citation:

Hooper v Phipps (No 2) [2024] NSWDC 8

Hearing dates:

01 February 2024

Date of orders:

06 February 2024

Decision date:

06 February 2024

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Defendants’ application to dispense with the jury dismissed with costs.

Catchwords:

TORT – defamation – plaintiff requisitions a jury - proceedings set down for trial with a jury – trial adjourned after plaintiff suffers an atrial fibrillation episode during examination in chief – plaintiff’s cardiologist certifies plaintiff now fit to give evidence and be cross-examined in a jury trial - defendants bring application pursuant to s 21(1) of the Defamation Act 2005 (NSW) (“the Act”) for an order that the trial of these proceedings proceed without a jury – whether medical evidence satisfactory – whether, in the exercise of the unfettered discretion under s 21(1), there are other reasons why the court should order that the trial should proceed before a judge alone – application dismissed with costs

Legislation Cited:

Defamation Act 2005 (NSW), ss 21(1), 21(3), 21(4)

Cases Cited:

Channel Seven Sydney Pty Ltd v Senator ConcettaFierravanti-Wells (2011) 81 NSWLR 315

Cheikho v Nationwide News Pty Limited (No 3) [2015] NSWSC 146

Courtney v Maguire [2023] VCC 2280

Goldsworthy v Seven Network Limited [2013] NSWSC 344

Hanrahan v Ainsworth (1990) 22 NSWLR 73

Hunt v Times Newspapers Limited (No 5) [2013] EWHC 1868

Lehrmann v Network Ten Pty Limited (Tribunal of Fact) [2023] FCA 612

Malan v Silvas [1992] NSWCA 143

Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67

Ouda v Hunter (No 2) [2023] VSC 384

Pambula District Hospital v Herriman (1988) 14 NSWLR 387

Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555

Wagner v Harbour Radio Pty Ltd [2017] QSC 222

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

John Hooper (plaintiff)
Julia Phipps (1st defendant)
Willoughby City Council (2nd defendant)

Representation:

Counsel:
AH Edwards (plaintiff)
T Senior (defendants)

Solicitors:
Mark O’Brien Legal (plaintiff)
RGSLAW (defendants)

File Number(s):

2019/00096207

Publication restriction:

Nil

Judgment

The application before the court

1. These are proceedings for defamation which are listed for hearing before a judge and jury on 4 April 2024. The defendants bring an application pursuant to s 21(1) of the Defamation Act 2005 (NSW) (“the Act”) for an order that the trial of these proceedings proceed without a jury. The plaintiff opposes the application.

Section 21(1) of the Act

2. Section 21(1) provides:

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.

3. The form of s 21 was modified by the Defamation Amendment Act 2020 (NSW) to insert s 21(3) and (4), but these amendments have no relevance to this application.

The background to this application

4. The plaintiff, an elected councillor of the Willoughby City Council (the second defendant), has brought proceedings for defamation against that Council and its media and marketing officer (the first defendant). The first of the two publications sued upon is an email sent by the first defendant on 28 March 2018 in response to a query from Mr Conway, a journalist employed by the North Shore Times. The second matter complained of is a further email dated 11 April 2018 sent to Mr Conway.

5. After pleadings were closed, the plaintiff made an election for a jury trial, the validity of which is not in dispute, on 24 August 2022 and the proceedings were listed for trial on 4 September 2023, with an estimate of seven days. On 4 September 2023, the jury was empanelled and counsel for the plaintiff made his opening address to the jury. In the afternoon of that day, the plaintiff, leaving the witness box during a short adjournment of his evidence in chief, fell to the ground as the result of a medical episode. He was taken by ambulance to the Emergency Department of St Vincent’s Hospital and it is not in dispute that what he suffered was an atrial fibrillation (an irregular/rapid heart rhythm).

6. The following day, the plaintiff’s legal representatives made an application to discharge the jury and vacate the hearing date. This was supported by a letter of 4 September 2023 from the hospital registrar. Counsel for the plaintiff told the court that he needed “a proper medical report in order to give advice to my client about appropriate means of proceeding with this trial” (Tcpt 54). The defendants consented to the application (Tcpt 55) and the trial judge, Weber SC DCJ, made the following orders:

1. Discharge the Jury.

2. Vacate the hearing dates previously set for the matter.

3. Stand the matter over to the Defamation List on 14 September 2023.

4. Costs reserved.

7. The allocation of a fresh hearing date was stood over to the Defamation List on 5 October 2023, when I made the following orders:

NOTE: the parties seek a Hearing date in April 2024, (estimate now less than 2 weeks and possibly, 5-7 days), depending on the mode of trial.

1. Stood over for Directions only to Thursday 2nd November 2023 for the parties to advise the court as to the mode of trial and the plaintiff’s health issues, with liberty to apply.

8. On 18 June 2023, I set these proceedings down for hearing on 4 April 2024 as a 5 – 7 day jury trial, this being the estimate agreed to by the parties whatever the mode of trial. The issue of judge-alone or jury was, however, left in abeyance, and a further directions hearing date of 22 December 2023 allocated, so that the plaintiff’s cardiologist, Dr Kotlyar, could provide a report, which would set out how the plaintiff was responding to medication prescribed for his condition. Dr Kotlyar undertook to express a definitive opinion as to whether the plaintiff was fit enough to give evidence, and to undergo cross-examination, in a jury trial.

The medical issues

9. Dr Kotlyar’s report of 21 December 2023 answered the question of the plaintiff’s fitness for these activities as follows:

“From the information related to health being declared by Mr Hooper, my clinical examination and diagnostic tests are [sic] recorded below, I certify Mr Hooper is fit for examination and cross examination in a jury trial.”

10. Dr Kotlyar then set out the factual matters upon which this opinion was based and concluded:

“With the above in mind, Mr Hooper can undergo cross examination in a jury trial in court.

Whilst it is not possible to give a 100% guarantee that the arrhythmia would not recur, the addition of the two antiarrhythmic agents will significantly minimise the risk of the recurrence along with regular breaks in Court proceedings and it would be helpful that there is no restriction by Mr Hooper’s clothing such as a tight-fitting garment and/or neck tie and if requested for a break by Mr Hooper, he should be allowed to leave the court until he is able to return.”

11. Dr Kotlyar was not required for cross-examination, on the basis that the parties agreed upon the following medical facts:[redacted]

12. In practical terms, these agreed facts make no difference to the conclusions expressed by Dr Kotlyar.

13. Counsel for the defendants was critical of Dr Kotlyar’s asserted qualification of this opinion, in the form of a refusal to give a “100% guarantee” that the plaintiff would be well enough to give evidence in a jury trial. He argues that the report does not state in sufficiently categorical terms that the plaintiff is well enough.

14. I reject this submission. Dr Kotlyar states in unambiguous terms that the plaintiff is well enough to give evidence. His reference to the “100% guarantee” is a figure of speech, not a dilution of his earlier expressed opinion, and should be read in this context.

15. The defendants have failed to demonstrate that the medical evidence is a basis for the exercise of the discretion under s 21(1) of the Act.

Other grounds for the exercise of the discretion

16. By reason of the unfettered discretion in s 21(1), the defendants are entitled to raise other factual matters, as well as health issues, in support of their application. No additional factual material was put before the court, but submissions have been made as to other bases upon which I could exercise my discretion.

17. The first of these is the defendants’ submission that a jury trial would be longer (and thus more expensive) and more uncertain in result than a non-jury trial. The second is the concerns expressed by counsel for the defendants as to what would happen if the plaintiff suffered a second episode, and the potential for prejudice to the defendants at the trial if the trial continued after this occurred.

The relevant principles of law

18. Section 21(1) is the first of two powers conferred on the court to dispense with a jury in defamation proceedings. As Applegarth J explained in Wagner v Harbour Radio Pty Ltd [2017] QSC 222 at [8], s 21(1) provides a general discretionary power to order that a defamation proceeding not be tried by jury, despite the election by a party for a jury trial. By contrast, the other source of power (s 21(3) gives a discretionary power to order a civil trial without a jury, if the trial requires a prolonged examination of records, or involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury; neither of these factors is relied upon in this application.). The s 21(1) power is unfettered, in that it is not confined to circumstances of the kind identified in s 21(3).

19. The relevant principles are set out in Channel Seven Sydney Pty Ltd v Senator ConcettaFierravanti-Wells (2011) 81 NSWLR 315. Counsel for the plaintiff has helpfully summarised these principles as follows:

1. The powers in ss 21(1) and 21(1A) to dispense with a jury (over an election) are discretionary, and the specific matters in s 21(1A) do not limit s 21(1) ([42]-[44]);

2. The circumstances for the exercise of the discretion is that a party’s election for a jury gives rise to a vested or accrued right to that mode of trial ([50] and [138]);

3. The special rules of the Act concerning jury trials (as opposed to the general principle for civil litigation in NSW) “illustrates the legislative recognition of the importance of their role in defamation proceedings” ([68]);

4. The common law has commensurately recognised the significance of jury trials in defamation actions – the right to elect is of value and importance ([69]-[79]);

5. The “universal characteristics” of jury trials – e.g. cost, duration and unpredictability – are assumed by the availability of the election and not relevant matters to take into account in the exercise of the discretion ([83], citing Pambula District Hospital v Herriman (1988) 14 NSWLR 387);

6. The onus is on an applicant seeking to change the mode of trial to persuade the court to do so and “a party who lawfully requisitions a jury is not obliged to explain his or her choice and does not have to justify retention of the jury” ([83] and [114]).

20. The policy issues behind these principles can be traced back to the emphatic endorsement by appellate courts of the key role played by the jury in defamation proceedings. One such example occurred in Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 88:

“The role of the jury must, under the present law, be energetically defended in defamation actions. This is because Parliament has energetically preserved the function of the jury in such actions where, in so many others, jury trial has been abolished: see Supreme Court Act 1970, s 88(b). No doubt Parliament has so provided because of the intangible considerations raised by defamation actions, the hotly disputed contests about the actions and motives of those involved and the highly individualised determination of a money verdict where the plaintiff is entitled to succeed. Whilst the law remains as it is stated in s 88(b) of the Act, judges must exercise care and restraint in invading the functions reserved by Parliament to juries. In a sense, the jury represents a microcosm of the community. Experience teaches that juries are well fitted to determining sensibly the issues of fact which typically arise in resolving issues of liability in defamation actions.”

21. As McCallum J adds in Cheikho v Nationwide News Pty Limited (No 3) [2015] NSWSC 146 (in which an order otherwise was refused) at [13], this is because Courts are confident that jurors are capable of complying with the directions required to be given to them by a judge that they should try a matter impartially. Jurors can, and do, act judicially, disregarding any material other than the evidence before them in the proceedings and setting aside any prejudice. As the largest trial court in Australia, the District Court of New South Wales has a great deal of expertise in jury management in criminal matters, where problems of the kind feared by Mr Senior can and do occur without the consequential difficulties that concern him.

22. What factors may be taken into account when exercising the discretion? The first of these was a submission that the jury has had its day.

Are defamation juries out of date?

23. Counsel for the defendants referred to what might be called “case management principles” which he asserted could be of relevance to the exercise of my discretion, namely the asserted length, expense and unreliability of jury verdicts. He referred in passing to an article in the Sydney Morning Herald on 31 January 2024 (“The death of juries and the rise of blockbuster Federal Court defamation trials”) in which defamation practitioners foresaw shorter, cheaper and quicker defamation trials in the Federal Court because of its refusal of jury trials on case management grounds.

24. At first blush, this would appear to be the kind of generalised attack on jury trials which the Court of Appeal has warned should not be taken into account: Pambula District Hospital v Herriman (1988) 14 NSWLR 387. However, what Mr Senior is really saying is that times – and legal thinking – have changed. The right to a jury was seen as an important benefit (Malan v Silvas [1992] NSWCA 143) but Mr Senior is suggesting that it has become a cumbersome and inefficient mode of trial, inconsistent with modern case management statutes, when compared to the case management system used in courts such as the Federal Court.

25. This is a startling submission when one considers the ubiquity of the jury trial in crime. It is by reason of the jury trial’s long history, and the public policy issues underlying it, that courts have accepted that inconsistencies between jury trials and the overriding purpose of the Civil Procedure Act 2005 (NSW) are not a relevant consideration for dispensing with a jury: Goldsworthy v Seven Network Limited [2013] NSWSC 344 at [52] – [54]; Moran v Schwartz Publishing Pty Ltd [No 5] [2016] WASC 67. No specific examples of expensive, unduly long trials and/or perverse verdicts were provided in support of this submission.

26. In addition, I am by no means convinced that this “blockbuster” mode of defamation trial is such a good alternative. Two days after the Sydney Morning Herald article, the Australian Financial Review published an article referring to a one-third drop in defamation actions in 2022-2023, allegedly due to disastrous, long and expensive judge-alone trials (“Celebrity defamation on the decline after ‘prominent losses’”). It may be that there is more than one opinion on this issue.

27. Has the jury trial all but vanished? Jury trials are much less common, but they continue to be case managed (Ouda v Hunter (No 2) [2023] VSC 384), heard (the most recent completed jury trial is Courtney v Maguire [2023] VCC 2280; the assessment of damages was handed down on 18 December 2023) and considered as a possibility, even by the Federal Court (Lehrmann v Network Ten Pty Limited (Tribunal of Fact) [2023] FCA 612). As Mr Senior acknowledged, there are other jury trials listed for hearing this year in this court. I am aware of jury trials fixed for hearing in other jurisdictions.

28. Is the jury still relevant in a modern technological world? One possible reason for the jury’s continued relevance in defamation is that the tribunal of fact may be called upon to determine allegations of serious criminality, although to the civil onus (as to the determination of which, in a non-jury trial, see Hunt v Times Newspapers Limited (No 5) [2013] EWHC 1868 at [76] and more recently Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) [2023] FCA 555 at [95] – [110]). Perhaps less controversially, as a microcosm of the community (to use Kirby J’s description in Hanrahan v Ainsworth at 88), the jury brings its common sense to issues such as defamatory meaning, particularly in social media cases.

29. In conclusion, as Kirby J noted, while the use of juries in common law proceedings has vanished almost entirely, the entitlement of a party to a jury in defamation proceedings has not followed this course. Juries are increasingly fewer in number, but the entitlement to a jury remains available in the Act and it is for the party seeking trial by judge alone to satisfy the court that this is the appropriate order to be made.

30. I am unpersuaded by Mr Senior’s submission that the defamation jury trial has had its day.

Findings concerning the other bases for exercise of discretion

31. As to asserted length and expense of a jury trial in these proceedings, the parties’ own estimates of trial length (contained in the court orders set out above) are the best evidence that there will be very little difference.

32. The defendants are rightly concerned about potential prejudice and delay. However, the case management of trials in this Court is such that, if the plaintiff becomes ill a second time, it will make little or no difference whether the trial is before a jury or not, even if the whole trial has to be adjourned. The more likely scenario is short delays. It is not uncommon for jurors, witnesses and/or legal representatives in criminal proceedings to need time out for health reasons and these kinds of delays are readily accommodated. Prejudice can thus be avoided.

33. Whether or not anything does go wrong (and, like Dr Kotlyar, I cannot give a 100% guarantee), juries are robust and capable of following directions. If a direction on health is sought, this is the kind of direction that can be carefully put together in consultation with the parties prior to or during the trial.

Conclusions

34. The plaintiff has made a valid election for a jury under s 21(1) and has a vested or accrued substantive right to a trial by that mode. He bears no persuasive or evidentiary onus for its retention; the onus lies on the defendants. That onus has not been discharged.

35. As to the medical evidence, Dr Kotlyar unhesitatingly states that the plaintiff is fit for examination and cross-examination in a jury trial. While he adds that it is not possible to give a 100% guarantee, he stresses that the combined effects of medication and the putting in place of simple and practical steps (such as not wearing a tie) will assist. His medical evidence favours the plaintiff.

36. None of the other reasons put forward by the defendants, individually or collectively, are sufficient to displace the onus.

Orders:

1. Defendants’ application to dispense with the jury dismissed with costs.

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Decision last updated: 19 September 2025