Kencian v Watney

Case [2015] QCA 212

SUPREME COURT OF QUEENSLAND

CITATION:

Kencian & Anor v Watney [2015] QCA 212

PARTIES:

JANET KENCIAN
(first appellant)
ANTHONY WOOLEY
(second appellant)
v
CHRISTOPHER DAUNT WATNEY
(respondent)

FILE NO/S:

Appeal No 12293 of 2014
DC No 52 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


District Court at Cairns – [2014] QDC 290

DELIVERED ON:

30 October 2015

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2015

JUDGES:

Carmody CJ and Morrison JA and Boddice J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The appeal is allowed.

2.   The orders made on 17 December 2014 are set aside, and in lieu thereof it is ordered that pursuant to r 475(1) of the Uniform Civil Procedure Rules 1999 (Qld) the trial proceed as trial by jury at the appellants’ election.

3.   The respondent is to pay the appellants’ costs, of and incidental to the appeal, and the application, to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – DEFAMATION – ACTIONS FOR DEFAMATION – TRIAL – TRIAL BY JURY – FUNCTIONS OF JUDGE AND JURY – IN GENERAL – where the respondent was a school principal at a school attended by the children of the appellants – where the respondent claims that he was defamed by the appellants – where the respondent started proceedings claiming damages for defamation – where the respondent’s Amended Statement of Claim included an election for trial by jury – where the appellants defended the claim – where the appellants signed a request for trial date and sent it to the respondent’s solicitors to action – where the respondent’s solicitors returned the form without ticking Item G, the relevant box for the trial by jury election – where the appellants commenced correspondence regarding this – where the respondent’s solicitors responded that they had been instructed to give up the right to have a trial by jury, by not paying the fees – where the appellants sought orders: compelling the respondent to adhere to his election for trial by jury by paying the fees; or permitting them to do so and allowing those fees to be recovered at the end of the trial; or ordering a trial by jury on the basis that they were entitled to elect for such a trial but had not done so – where the learned primary judge dismissed that application – where the appellant seeks to challenge that decision – whether a party who elects for trial by jury can abandon that election, by refusal to pay the jury fees, in the absence of a court order – whether a trial by jury should have been ordered under Uniform Civil Procedure Rules 1999 (Qld) r 475

Defamation Act 2005 (Qld), s 21, s 22, s 30
Jury Act 1995 (Qld), s 65
Jury Regulation 2007 (Qld), reg 11
Uniform Civil Procedure Rules 1999 (Qld), r 472, r 475

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AGLC
Kencian v Watney [2015] QCA 212
Case
[2015] QCA 212
Decision Date

CaseChat Overview and Summary

The case of Kencian v Watney involved a dispute over defamation claims between the appellants and the respondent, a school principal. The respondent initiated proceedings claiming damages for defamation, which included an election for trial by jury. The appellants, who defended the claim, later requested a trial by jury but their request was denied when the respondent's solicitors indicated they had been instructed to abandon the trial by jury election by not paying the required fees. The appellants sought orders to compel the respondent to adhere to the election for trial by jury or to permit them to elect for such a trial and recover the fees at the end of the trial. The primary judge dismissed the application, leading to the appellants challenging the decision on appeal.

The central legal issues in the appeal were whether a party who elects for trial by jury could abandon that election by refusing to pay the jury fees in the absence of a court order, and whether a trial by jury should have been ordered under rule 475 of the Uniform Civil Procedure Rules 1999 (Qld). The Court found that the primary judge had misapprehended the number and burden of the documents in disclosure that matter to the jury's task. The Court held that the proceeding could appropriately be tried by jury, considering the nature of the defamation claim, the number and contents of the disclosed documents, and the standard defences in defamation cases. The Court further noted that the appellants had always wanted a jury trial and did not elect due to a misunderstanding of the legal effect of the respondent's election. The Court concluded that the respondent's decision to forego trial by jury came long after disclosure was complete, and there was no evidence suggesting the respondent would suffer prejudice by having the trial by jury.

The Court allowed the appeal, setting aside the orders made on 17 December 2014. It ordered that the trial proceed as trial by jury at the appellants’ election, in accordance with rule 475(1) of the Uniform Civil Procedure Rules 1999 (Qld). The respondent was also ordered to pay the appellants' costs, of and incidental to the appeal and the application, to be assessed on the standard basis.

Orders

Orders of the court

1. The appeal is allowed.

2. The orders made on 17 December 2014 are set aside, and in lieu thereof it is ordered that pursuant to r 475(1) of the Uniform Civil Procedure Rules 1999 (Qld) the trial proceed as trial by jury at the appellants’ election.

3. The respondent is to pay the appellants’ costs, of and incidental to the appeal, and the application, to be assessed on the standard basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my view the learned primary judge has proceeded on a misapprehension of fact in relation to the number and burden of those documents in disclosure that matter to the jury’s task. And, to the extent that the learned primary judge proceeded on the basis of the unadjusted figures, his Honour has allowed extraneous or irrelevant matters to guide or affect the decision.Conclusion. The test to be applied is whether the Court is satisfied the proceeding could appropriately be tried by jury. In my view there is nothing compelling in the matters raised by the evidence below to suggest that the jury could not do so. Indeed the following matters show that the proceeding could be appropriately tried by jury:(a)the defamation alleged concerns what was said in one document;(b)there are quite a number of documents disclosed, but not very great in overall terms, and experience suggests that by the trial that number will be much reduced;(c)nothing has been identified about the documents, or their contents, to suggest that a jury could not comprehend them perfectly well;(d)in truth the jury’s task will not be overly burdened by the documents, or the defences pleaded, for the reasons given in paragraphs [43] to [45] above;(e)therefore it could not really be concluded that the number or content of the documents was so burdensome that the proceeding could not be appropriately tried by jury; and(f)the defences are in three categories: (i) no defamatory imputation, (ii) qualified privilege, and (iii) honest opinion; none of those are novel defences; they are ones that juries have routinely been dealing with on defamation cases. Furthermore, it is important to bear in mind that:(a)the appellants have always wanted a jury trial and did not elect because of an incorrect assumption as to the legal effect of the respondent’s election;(b)the combined effect of s 21(1) of the Defamation Act and r 472 UCPR is that the election does not have to be made in the first iteration of a party’s pleading; r 472 simply requires the election to be in the statement of claim or the defence; whilst the appellants are parties who were entitled to elect but did not, the fact that they did not should not present any additional barrier to doing so where the electing party wishes to resile from the election;(c)the respondent maintained his election for trial by jury long after disclosure was complete and the size and complexity of the documents would have been well apparent; the last disclosure list was dated 13 August 2013;[36] the correspondence concerning the decision to forego trial by jury commenced on 31 October 2014;[37] and(d)there is no evidence that the respondent will suffer prejudice by the fact that the trial will be by jury, as opposed to by judge alone.[36]AB 80, 86.[37]AB 48. I cannot agree, with respect, that the just and expeditious resolution of the proceedings is likely to be frustrated by the issues as to documents and defences.[38] In my view the application should have been allowed. For the reasons expressed above I would allow the appeal.[38]See the Reasons below at [47], AB 159.Costs.

Ratio Decidendi

Legal Principle Established

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