Cato v Manaia Media Limited
[2021] NZHC 2240
•27 August 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-3091
[2021] NZHC 2240
UNDER The Defamation Act 1992 BETWEEN
KRISTIN PIA CATO
Plaintiff
AND
MANAIA MEDIA LIMITED
First Defendant
ROWAN DIXON
Second DefendantJANE THOMPSON
Third Defendant
Hearing: 27 August 2021 (Via VMR) Appearances:
S J Mills QC and E D Nilsson for the Plaintiff S A McKenna and R G Scott for the Defendants
Judgment:
27 August 2021
JUDGMENT OF CAMPBELL J
(Mode of trial)
This judgment was delivered by me on 27 August 2021 at 4:00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
CATO v MANAIA MEDIA LIMITED [2021] NZHC 2240 [27 August 2021]
[1] This is a defamation proceeding. The defendants elected, under s 16 of the Senior Courts Act 2016, a jury trial. The defendants were late in making their election, but Hinton J granted their application for an extension of time.1 Her Honour’s decision was upheld by the Court of Appeal in a judgment dated 3 June 2021.2
[2] A three-week trial is scheduled to begin on 6 September 2021. That is just over a week away. Auckland is currently at COVID-19 Alert Level 4. It is almost certain to be at that alert level or at Alert Level 3 in the week commencing 6 September 2021. Jury trials will not begin under Alert Levels 3 or 4.3 It is thus almost certain that, if the proceeding is to be tried with a jury, the trial will have to be vacated. This eventuality will cause considerable delay – perhaps 12 months – before a rescheduled jury trial could get underway.
[3] In these circumstances the plaintiff applies for an order for a judge-alone trial so that a trial can proceed on the currently scheduled timetable.4 Mr Mills QC, counsel for the plaintiff, submits the Court has inherent power to change the mode of a defamation trial where it is in the interests of justice to do so. He says the interests of justice favour such a change here. Defamation proceedings should be heard promptly. This proceeding has already suffered delays. A judge-alone trial would be quicker and less costly.
[4] The defendants oppose the application. Mr McKenna, for the defendants, submits the Court does not have any inherent power to change the mode of a defamation trial. Even if it did, he says it is not in the interests of justice to make a change here. The defendants exercised a right to have a jury trial and that must carry considerable weight. Mr McKenna says there will be delays whether the trial is before a judge sitting alone or before a jury. Both parties have prepared on the basis the trial will be before a jury.
1 Cato v Manaia Media Ltd [2020] NZHC 1240.
2 Cato v Manaia Media Ltd [2021] NZCA 226.
3 Chief High Court Judge Protocol: COVID-19 Alert Level 3 and 4 23 August 2021.
4 The plaintiff proposed that, if I were to grant the order, a judge-alone trial could commence 13 September 2021.
[5] I have to decide two issues. Does the Court have inherent power to change the mode of a defamation trial? If so, is it in the interests of justice to change the mode of trial in this case?
Does the Court have inherent power to change the mode of a defamation trial?
[6] This issue arises in the context of s 16 of the Senior Courts Act 2016. Relevantly, this provides:
16 Certain civil proceedings may be tried by High Court Judge with jury
(1)Any party to a proceeding for defamation, false imprisonment, or malicious prosecution may, on giving notice in accordance with the High Court Rules, require the proceeding to be tried by a High Court Judge with a jury.
(2)Any party to a counterclaim in a proceeding for defamation, false imprisonment, or malicious prosecution may, on giving notice in accordance with the High Court Rules, require the counterclaim to be tried by a High Court Judge with a jury.
(3)If a notice is given under subsection (1) or (2), the proceeding or counterclaim must be tried in accordance with the subsection that applies.
(4)A High Court Judge may, on the application of either party, order that a proceeding for defamation, false imprisonment, or malicious prosecution or any issue in the proceeding be tried before a Judge without a jury if it appears to the Judge before the trial that the trial of the proceeding or the issue will—
(a)involve mainly the consideration of difficult questions of law; or
(b)require any prolonged examination of documents or accounts, or any investigation in which difficult questions in relation to scientific, technical, business, or professional matters are likely to arise, being an examination or investigation that cannot conveniently be made with a jury.
…
[7] Section 16(4) allows either party to a defamation proceeding to apply, on limited grounds, for an order that the proceeding be tried before a judge alone. When the defendants applied to Hinton J for an extension of time to elect trial by jury the plaintiff did not argue that the defendants’ election should in any event be reversed on the grounds in s 16(4). Nor does the plaintiff rest her current application on s 16(4).
[8] Mr Mills submits s 16(4) provides only one jurisdictional basis on which to reverse a jury election. It does not expressly exclude the Court’s inherent power to do so where the interests of justice require. Mr Mills submits the Court has inherent power to set aside a prior order concerning the mode of the trial where a change in circumstances requires. He referred me to R v Anderson,5 in which Eichelbaum J (as he then was) expressly recognised the Court’s inherent power to do so.
[9] Mr Mills says the Supreme Court held in Siemer v Solicitor-General that where the legislature wishes to remove the Court’s inherent powers to govern its own procedures in any particular area, it must make its intention to do so clear, and will generally need to say so expressly.6 He submits s 16 does not.
[10] In advance of this morning’s hearing I drew counsel’s attention to News Media (Auckland) Ltd v Young.7 This is a decision of a full bench of the Court of Appeal on the predecessor to s 16, s 19A of the Judicature Act 1908. The defendants in a defamation proceeding gave notice requiring a jury trial. The plaintiff applied for an order that the proceeding be tried before a judge without a jury, primarily on the ground set out in s 19A(4) (equivalent to s 16(4)(a)). The plaintiff further asked the Judge to exercise an inherent jurisdiction to order a judge-alone trial on the ground that evidence to be adduced would prejudice him in the eyes of the jury. The Judge held he had no such inherent jurisdiction. The plaintiff challenged that decision on appeal. The Court saw no merit in the plaintiff’s argument:8
Mr Treadwell [counsel for the plaintiff] argued unsuccessfully before the Judge that the Court has inherent jurisdiction to order a Judge alone trial in the interests of justice even though one side insists on a statutory right to a jury under s 19A of the Judicature Act. He raised the point again in this Court
…
There is no substance in that suggestion. The section gives a statutory right in the circumstances obtaining here. There is no gap to be filled by any inherent jurisdiction, no room for inherent jurisdiction to operate.
[11] Mr Mills says that for two reasons I am not bound by Young on the present application. First, in Young the Court of Appeal asked whether s 19A left a “gap to
5 R v Anderson [1986] 2 NZLR 745 (HC).
6 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 (SC) at [144]-[148].
7 News Media (Auckland) Ltd v Young [1989] 2 NZLR 173 (CA).
8 News Media (Auckland) Ltd v Young [1989] 2 NZLR 173 (CA) at 176.
be filled by any inherent jurisdiction”. Siemer shows that was the wrong question to ask. Instead, the question is whether the statutory wording clearly precludes the Court from resorting to its inherent jurisdiction when necessary to achieve a just outcome in the particular circumstances of the case.
[12] Secondly, Mr Mills says, the present application is concerned with whether external circumstances mean that justice cannot be done if the proceeding is tried by a jury. That was not considered by the Court in Young, where the plaintiff was trying to invoke the inherent jurisdiction based on circumstances internal to the proceeding (namely, evidence that was to be adduced).
[13] Mr McKenna submits s 16(4) is the limit of the Court’s jurisdiction. He says I should follow Young. He emphasises that, unlike the position in Siemer, I am dealing here with an attempt to override a statutory right. He also notes that R v Anderson is not on point, because there the accused was simply trying to change his election. It was not a case of the prosecution asking the Court to exercise an inherent jurisdiction to override the accused’s right to choose the mode of trial.
Decision
[14] In Siemer the Supreme Court had to consider whether the inherent power of the courts to make non-party suppression orders had been excluded by s 138(5) of the Criminal Justice Act 1985.9 The majority carefully considered the background to s 138(5) and the text of s 138 as a whole. The majority concluded:
[148] Against that background, we consider that much clearer words than those which appear in s 138(5) would be required to exclude the inherent power to make orders of a kind not “described” in s 138(2). We thus conclude that s 138(5) did not exclude the inherent power of the courts to make non- party orders suppressing publication of judgments and rulings.
[15] The majority subsequently referred to “a pattern of legislative action and inaction founded on the assumption that the courts have the power to make non-party suppression orders”.10
9 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 (SC) at [126].
10 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441 (SC) at [169].
[16] I accept, based on Siemer v Solicitor-General, that where the legislature wishes to remove or limit the Court’s inherent power to govern its own procedures, it must make its intention to do so clear. In my view the legislature has done so in s 16 of the Senior Courts Act. The Court of Appeal in Young thought that was the case with s 19A. In my view it is even clearer with s 16.
[17] Section 16(1) begins by providing that a party may, by notice, “require” a jury trial. Section 19A(2) was to the same effect. Section 16(3) then says that if such a notice is given the proceeding “must” be tried with a jury. This mandatory language does not sit easily with there being a residual inherent power to order a judge-alone trial outside the circumstances addressed by s 16(4). There was no equivalent to s 16(3) in s 19A. In that respect, s 16 is even clearer than s 19A.
[18] This view is reinforced by the background to s 16. The Law Commission, in a report that ultimately led to the Senior Courts Act, recommended that the right to a civil jury trial be restricted to the torts of defamation, false imprisonment and malicious prosecution. The Commission also recommended that if the right to a jury trial were restricted to those torts there was no need for the retention of a provision equivalent to s 19A(5) of the Judicature Act 1908. Civil jury trials would “therefore be available as of right for defamation, false imprisonment and malicious prosecution proceedings, upon the giving of notice by either of the parties to the proceeding, with no residual judicial discretion to determine that the matter should be heard by a judge sitting alone” (emphasis added).11
[19] Consistently with the Law Commission’s recommendation, when the Judicature Modernisation Bill (from which the Senior Courts Bill was divided) was first introduced to Parliament, cl 15 (which ultimately became s 16) did not contain any equivalent to what is now s 16(4). Section 16(4) was introduced only at the select committee stage.
11 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R 126, 2012) at 11.18.
[20] In my view this background strongly confirms a legislative intention (apparent anyway from s 16(3)) that s 16(4) is exhaustive as to the power or jurisdiction of the Court to order a judge-alone trial where one party has elected a jury trial.
[21] I do not accept Mr Mills’ submission that a distinction is to be drawn between “external” and “internal” grounds for seeking a judge-alone trial, or that Young is to be distinguished in that respect. The “external” grounds to which Mr Mills refers have been exacerbated in this case by the return of COVID-19 Alert Level 4 restrictions. But the grounds themselves relate to the reduced delays and costs of a judge-alone trial over a jury trial. Those are matters that can hardly have escaped the minds of the legislature. As the Court of Appeal has said in this proceeding, Parliament has proceeded on the basis that the advantages of allowing a party to elect a trial by jury outweigh the disadvantages. The balance has been struck in favour of jury trial, “subject only to the limits in s 16(4)”.12
[22] Finally, I regard R v Anderson as distinguishable. I agree with Mr McKenna that there the Court was not addressing whether the inherent power could be exercised to override a statutory right to elect a particular mode of trial.
[23] I therefore conclude that I have no power, beyond that in s 16(4), to order that this proceeding be heard before a judge without a jury.
Is it in the interests of justice to change the mode of trial?
[24] Even if I had found there was inherent power to change the mode of trial, I would not have exercised it. In the circumstances I will set out my reasons briefly.
[25] The starting point must be the defendants’ right to a jury trial. That right has to be given considerable weight, given the language of s 16(3). In my view the balance would have to clearly favour overriding that statutory right.
[26] I acknowledge it is important that defamation proceedings be resolved promptly. Any further delay will be unfortunate. But it is far from certain that a judge-
12 Cato v Manaia Media Ltd [2021] NZCA 226 at [76].
alone trial would proceed in the current trial window. Auckland is likely to remain at Alert Levels 3 or 4 throughout that period. The challenges of running a trial with four counsel and twelve witnesses, each at a remote location, would be formidable, even with relatively few documents. Mr McKenna also raised a likely personal difficulty with attending even remotely under likely COVID-19 restrictions. This means there is a distinct possibility that there would be some delay (and wasted costs) even if the proceeding were to be tried without a jury.
[27] I would also take into account, as a factor weighing against ordering a change in the mode of trial, Mr McKenna’s point that extensive preparation has been put into this matter, by both sides, to ready themselves for a jury trial. He referred me to the Court of Appeal’s observation that to prepare for trial the parties need to know a reasonable time in advance whether it will take place before a jury or a judge alone.13 A reasonable time will usually be a matter of months.
[28] In my view, considering these factors together, it would not have been in the interests of justice to order a judge-alone trial.
Result
[29]The plaintiff’s application is dismissed.
[30] The defendants are entitled to costs on the application, on the 2B basis sought by Mr McKenna. Given the urgency with which the application had to be heard, I certify for second counsel.
Campbell J
13 Cato v Manaia Media Ltd [2021] NZCA 226 at [90].
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