DISTRICT COURT OF QUEENSLAND

1. [1]
   The defendants made an application in the proceeding for a declaration that the plaintiff cannot change his election to trial by jury and an order that the plaintiff pay the prescribed fees for a jury; or alternatively an order permitting the defendants to the pay instead and amend the request for trial date, or alternatively an order for trial by jury and costs.

2. [2]
   I have had the advantage of written outlines of argument supplemented by oral submissions made on the hearing of the application on 12 December 2015.

Background

3. [3]
   The proceeding arises out of the plaintiff’s claim that he was defamed in a letter the defendants wrote to school authorities. The plaintiff was a principal of a school attended by the defendants’ children. The defendants deny that the alleged imputations arose and/or were defamatory, and plead defences of qualified privilege or alternatively honest opinion.

4. [4]
   The plaintiff’s statement of claim filed in March 2013 indicated that the plaintiff elected for a trial by jury.  The defendants made no election in their defence.

5. [5]
   On 22 September 2014, the defendants’ solicitors tendered a signed request for trial date. In the covering letter the defendants’ solicitors requested the plaintiff’s solicitors, to make arrangements to pay the necessary jury fees and then check the box for Item G on the request form to confirm that payment.

6. [6]
   The plaintiff’s solicitors returned the request form signed 15 October 2014, but without checking Item G without any alert or explanation. After an exchange of correspondence between the parties’ solicitors on the topic, the plaintiff’s solicitors wrote on 5 November 2014 confirming the plaintiff’s instructions to give up the right to a trial by jury by not paying the jury fee.

7. [7]
   After further correspondence, the defendants brought this application.

Application

8. [8]
   The defendants’ application seeks alternative cascading orders:

1. A declaration that the plaintiff is held to his election for a trial by jury and is obliged to pay the required jury fees; and directions requiring him to pay the jury fees and tell the defendants when he has done so (so that the defendants can complete and file the signed Request for Trial Date); and a guillotine order dismissing the proceeding if the plaintiff fails to pay; or
2. Directions permitting the defendants to pay the jury fees and an order to the effect that such fees will be recoverable by the defendants at the conclusion of the proceeding regardless of the outcome of the proceeding; or.
3. An order for trial by jury on the application of the defendants as parties who were entitled to elect for a trial by jury but did not so elect.

Enforcement of Election

9. [9]
   The starting point in the application is the characterisation, at law, of the election made by the plaintiff in the statement of claim requiring a trial by jury. Then my consideration must turn to whether that right can be lost or renounced at the whim of the plaintiff.

Election

10. [10]
    Section 21 of the Defamation Act 2005 (Qld) enshrines the right for any party to elect to have defamation proceedings to be tried by jury, and relevantly provides:

1. (1)
   Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.
2. (2)
   An election must be made at the time and in the manner prescribed by the rules of court for the court for the court in which the proceedings are to be tried.
3. (3)
   Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if –

• (a)
  the trial requires a prolonged examination of records; or
• (a)
  the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.

11. [11]
    The election must be both timely and in the manner prescribed by the rules. Rule 472 of the Uniform Civil procedure Rules 1999 relevantly provides that “a plaintiff in the statement of claim or a defendant in the defence may elect a trial by jury”.

12. [12]
    Further, in order to secure the jury, by s 65 of the Jury Act 1995 (Qld), the party who requires a jury must also pay to the registrar the fee of $773.60 prescribed by s 11 of the Jury Regulation 2007 (Qld) before the trial begins.

13. [13]
    Section 65(1) of the Jury Act 1995 provides:

If a party to a civil trial requires a jury, the party must pay to the registrar of the court before which the trial is to be conducted –

• (a)
  the fee prescribed under a regulation before the trial begins; and
• (b)
  the further fees required under a regulation as and when payment is required under the regulation.

Plaintiff’s Position

14. [14]
    In this case, the plaintiff foreshadowed that he will renounce his right to a jury trial. By letter of 5 November 2014 the plaintiff’s solicitors communicated the plaintiff’s instructions to give up the right to a trial by jury by not paying the jury fee.

15. [15]
    The defendants argue in effect that the mode of trial by jury was irrevocably set by the plaintiff’s election, and the mode can only be changed by a court order pursuant to rule 475 of the Uniform Civil Procedure Rules.  The plaintiff maintained that his election of a jury trial was either a conditional procedural right or a qualified right, which may be lost or relinquished.

Defendants’ Position

16. [16]
    The defendants’ argue that the once a party has elected for trial by jury then the effect of the legislation is that the mode of trial is set, unless the Court otherwise orders, and therefore the party must pay the jury fees. That, of course, is the primary relief sought in the application.

17. [17]
    On this point, the defendants’ counsel developed the argument by reference to case authorities with particular emphasis on New South Wale and Victorian cases. None of those involved a purported renunciation of a party’s election to a jury trial by refusing to pay the jury fee or otherwise. They were of limited authoritative value here.

18. [18]
    In the New South Wales Case of Con Ange v Fairfax Media Publications Pty Ltd,^[1] Garling J made a general statement that:

“Once a party has elected for trial by jury then the effect of the legislation is that the mode so chosen will be the mode of trial unless the Court otherwise orders.  I note that it is always possible for a jury to be dispensed with by the consent of the parties”. 

19. [19]
    In Channel Seven Sydney Pty Ltd v Fierravanti-Wells,^[2] the court was concerned to uphold a party’s election and right to a jury trial or change the mod of trial at the behest of the opposing party.  In that context, McColl JA said at [50]:

“The exercise of the s21 discretion must be made in the circumstance that once the appellants exercised the s21 entitlement to elect for the proceedings to be tried by a jury, they had a vested or accrued substantive right” (citations omitted)

20. [20]
    The issue for me to decide is the consequence of a party renouncing that choice, which was not an issue in those cases. At best, the court in Con Ange merely noted the possibility of renunciation by consent of the parties. 

Discussion

21. [21]
    The Jury Act 1995 is silent as to the consequences of non-payment of the prescribed fee.  However, this was considered by the Court of Appeal in Coronis v. Jilt (2012) QCA 66, where the court in separate judgments left no doubt that the law in Queensland was that a plaintiff, who had made the requisite election for trial by jury, would lose that right by not paying the prescribed jury fees.

22. [22]
    McMurdo P (with whom Wilson AJA agreed at [80]) characterised the right to a jury trial at paragraph [44] of her judgment, as “not a common law right nor a statutory right but a procedural right under UCPR 472.”  The President then said at [45]:

“In the circumstances of this case, I consider that Ms Coronis gave up her procedural right to trial by jury by not paying the prescribed jury fees before the trial began as mandated by s 65 Jury Act.

23. [23]
    Similarly, Chesterman JA at [57] said:

“… The appellant lost her right to trial by jury by failing to pay the prescribed fees without which a jury panel could not be summoned.  When the action was called on for trial her choice was to seek an adjournment … to enable her to pay the fees so jurors could be brought to court, or proceed, as she did, by way of judge alone trial.,  Having chosen the latter course the appellant cannot now complain of the mode of her trial”.

24. [24]
    The court’s characterisation of the right to trial by jury as a procedural right that may be lost by failure of a condition by default or by choice, is not only binding on me, but also accords with the Queensland legislative framework and established authority.^[3]

25. [25]
    The right is conditional because the party must satisfy two cumulative conditions to realise the right:

1. Firstly, the party must make the requisite election at the time and in the manner prescribed by the rules of court;^[4]
2. Secondly, the party who made that election must pay the jury fee in the amount, time and manner prescribed.^[5]

26. [26]
    It is important to appreciate that the Queensland provisions governing the election, timing and manner of a jury trial differ from the analogue provisions in other jurisdictions and cases from other jurisdictions must be considered in their unique legislative and factual context. For example, in New South Wales, whilst subsections 21(1) and (3) of the Defamation Act (NSW), are identical to their Queensland analogue, subsection 21(2) is significantly different.  The New South Wales provision governs not only that an election must be made at the time and in the manner prescribed by the court rules but also requires that election must be accompanied by the prescribed fee for the requisition of a jury.  So, unlike Queensland, in New South Wales the right is crystallised by meeting the requirements of the election.

27. [27]
    In my view, even if the right is crystallised by meeting the cumulative requirements of the Queensland legalisation, it is still open to the party to abandon or renounce that right, unless the right is not only for the benefit of the party alone but also in the public interest.

28. [28]
    In Davies v Davies,^[6] Higgins J expressed the general rule that:

"Anyone is at liberty to renounce a right conferred by law for his own sole benefit; but he cannot renounce a right conferred for the benefit of society."

29. [29]
    This general rule was referred to in the context of a statutory right in Brooks v Burns Philp Trustee Co. Ltd,^[7] where Windeyer J observed:

“When a statute creates and confers rights and imposes corresponding duties, persons for whose benefit this was done may by contract waive or renounce their rights, unless to do so would be contrary to the statute. It may be seen that it would be so, because of an express prohibition against "contracting out", or because the provisions of the statute, read as a whole, are inconsistent with a power to forgo its benefits: or the policy and purpose of the statute may shew that the rights which it confers on individuals are given not for their benefit alone, but also in the public interest, and are therefore not capable of being renounced.”

30. [30]
    These observations were approved in Westfield Management Limited v AMP Capital Property Nominees Limited and Anor.^[8] The majority (French CJ, Crennan, Keifel and Bell JJ) at [46] stated:

“Windeyer J observed in Brooks v Burns Philp Trustee Co Ltd³² that a person upon whom a statute confers a right may waive or renounce his or her rights unless it would be contrary to the statute to do so. It will be contrary to the statute where the statute contains an express prohibition against “contracting out” of rights. In addition, the provisions of a statute, read as a whole, might be inconsistent with a power, on the part of a person, to forego statutory rights. It is the policy of the law that contractual arrangements will not be enforced where they operate to defeat or circumvent a statutory purpose or policy according to which statutory rights are conferred in the public interest, rather than for the benefit of an individual alone. The courts will treat such arrangements as ineffective or void, even in the absence of a breach of a norm of conduct or other requirement expressed or necessarily implicit in the statutory text.”

31. [31]
    Whilst a jury in a defamation case is charged to determine whether words convey a defamatory meaning in accordance with the moral or social attitudes of the community,^[9] that does not confer any beneficial public interest in the right to a jury. The public interest is served by maintaining public participation and public confidence in the justice system through the use of juries in civil cases.  In my view, the legislative scheme read as a whole, simply confers the right to a jury trial for the benefit of an individual party, and not for the public interest.  Further, that individual party may renounce or lose the right by choice or default.

32. [32]
    For these reasons, I decline to make the declaration sought that plaintiff cannot change his election to trial by jury and to compel plaintiff to pay the prescribed fees for a jury.

Defendants’ Election

33. [33]
    In that event, the defendants sought alternative relief for directions permitting the defendants to pay the jury fees and an order to the effect that such fees will be recoverable by the defendants at the conclusion of the proceeding regardless of the outcome of the proceeding.

34. [34]
    The defendants having failed to invoke the procedural right by electing a jury trial in the defence, cannot by some form of subrogation assume the rights of the plaintiff. In my view that course is not available within the language of s. 21(1) & (2) of the Defamation Act 2005, r 472 of the UCPR, or s 65(1) of the Jury Act 1995. 

35. [35]
    In my view, I see no justification in use the general powers of the court (including rules 5 or 367) to interfere with plaintiff’s entitlement to waive or renounce his right to a jury as discussed. That is a matter for the plaintiff whose right it is.

36. [36]
    I therefore refuse the alternative relief for directions.

Appropriateness for Jury Trial

37. [37]
    The final alternative relief sought by the defendants is to apply for a jury trial pursuant to r 475 of the UCPR.

38. [38]
    Rule 475 UCPR provides:

1. (1)
   The court may order a trial by jury on an application made before the trial date is set by a party who was entitled to elect for a trial by jury but did not so elect.
2. (2)
   If it appears to the court that an issue of fact could more appropriately be tried by a jury, the court may order a trial by jury.

39. [39]
    The defendants do not identify any particular grounds justifying the exercise of the discretion under r 475(2). Generally speaking, a party who seeks the exercise of a discretion to grant relief in its favour must satisfy the court that grounds exist for doing so.^[10]  It is enough for the defendants to show that a jury could appropriately deal with the matter.^[11]

40. [40]
    Here the defendants rely upon their solicitor’s failure to elect a jury coupled with the solicitor’s belief there are no factors of the kinds referred to in s 65A of the Jury Act 1995 or 22(3) of the Defamation Act 2005 or any other reasons why a jury could not appropriately deal with the matter.

41. [41]
    This part of the application is supported by paragraph 4 of the affidavit of the defendants’ solicitor as follows:

“4.If the Court considers it necessary to consider paragraph 5 of the defendants’ application (made in the alternative to paragraphs 1 – 4), I say as follows:

a.the defendants’ instructions have since the commencement of this proceeding been, and remain, that they desire a trial by jury in this matter;

b.the only reason why the defendants did not themselves elect for trial by jury in their defence is that I assumed the plaintiff’s election to determine that there would be a trial by jury unless the court ordered, on an application by a party or otherwise, that the trial proceed without a jury;

c.I am not aware of, and do not believe there are, any factors in this case of the kinds referred to in section 65A of the Jury Act 1995 or 22(3) of the Defamation Act 2005, nor or any other reasons why a jury could not appropriately deal with the matter.”

42. [42]
    In paragraph 24 of the defendants’ outline of submissions, the defendants’ counsel asserted that:

“… In a defamation case of this nature, it is plain that a jury could appropriately deal with the matter. It would be a very strange and unacceptable result if the defendants were now denied a trial by jury which they always desired and did not expressly elect in the defence only because the plaintiff had already so elected.”

43. [43]
    It seems to me that by not making an election, perhaps comforted by the plaintiff’s election,^[12] the defendants voluntarily took the risk that the plaintiff to waive or renounce the right accrued to him.  That might explain the defendants’ predicament, but the question for me is whether despite that omission a jury could appropriately deal with the matter.^[13]  The defendants’ counsel helpfully referred me to several comparative cases where the discretion had been exercised.^[14]

44. [44]
    Ultimately, each case will turn on its on circumstances and scope of disputed factual issues.

45. [45]
    The pleadings disclose that, in the case, it would fall upon a jury to determine whether relevant words convey a defamatory meaning, as well as whether any of the defences raised have been established.^[15]  The plaintiff argued that consideration of the defences would involve scrutiny of:

1. Various investigations and responses on the part of the plaintiff and other personnel at Trinity Anglican School in response to various complaints made by the defendants;^[16]
2. The conduct and outcomes of two independent investigations commissioned to enquire into and report upon the matter of the defendants’ complaints.^[17]

46. [46]
    The affidavit of the plaintiff’s solicitor including the parties’ Lists of Documents shows that the disclosed documents in the proceeding consist of 935 pages spread across 181 documents. By virtue of the parties’ compliance with the duty of disclosure, I accept that these documents are directly relevant to the matters in issue, both in relation to their content the defendants’ knowledge as to their content.^[18]  This may change if, or when, the parties agree upon a bundle of documents for trial, but I am not in a position to speculate about that.

47. [47]
    In my view, a jury trial could be attended by complications and risks both arising from the need to navigate any jury through the labyrinth of defences, and a prolonged examination of records which are likely to frustrate the just and expeditious resolution of the proceedings.

48. [48]
    For these reasons, I am not satisfied that a jury could appropriately deal with the matter, and I will not order a trial by jury.

Orders

49. [49]
    For these reasons, I make the following orders:

1. The application is dismissed.
2. Subject to order 3, the defendants pay the plaintiff’s costs of the application to be assessed on the standard basis.
3. If either party contends for a different costs order, that party will file and serve written submissions in respect of costs by 4:00 pm on 23 January 2015, and order 2 will be stayed pending a decision on costs.

Judge Dean P. Morzone QC

District Court of Queensland