Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246
• Hearing dates: 29 June 2011
• Decision date: 24 August 2011
• Jurisdiction: Civil
• Before: Giles JA at [1], McColl JA at [2], Handley AJA at [137]

Decision

(1) Appeal allowed with costs.

(2) Set aside the order of Levy DCJ made on 16 July 2010 that the trial of the action proceed without a jury.

(3) The respondent to have a certificate under the Suitors' Fund Act 1951.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: DEFAMATION - election for trial by jury - whether trial judge had power under s 21, Defamation Act 2005 to dispense with jury of own motion; DEFAMATION - election for trial by jury - history of jury trials in defamation proceedings - whether s 21 entitlement to jury trial creates vested or accrued substantive right; DEFAMATION - election for trial by jury - whether party which has properly requisitioned trial by jury can retain that mode of trial - onus of proof - whether party required to justify retention of jury; DEFAMATION - Defences - honest opinion - function of judge and jury - whether primary judge erred in concluding public interest component of defence a matter for jury - s 22 (5)(b), Defamation Act 2005; JURY - Defamation proceedings - power to order trial without jury - whether case involved "prolonged examination of records" - s 21(3), Defamation Act 2005; PRACTICE AND PROCEDURE - whether s 56 - s 61 and/or s 86(3), Civil Procedure Act 2005 empowered judge to dispense with jury of own motion; PRACTICE AND PROCEDURE - Uniform Civil Procedure Rule 29.2A - whether inconsistent with Defamation Act 2005 and ultra vires
• Legislation Cited: Arbitration Act 1902; Civil Procedure Act 2005; Defamation Act 1974; Defamation Act 2005; District Court Act 1973; Interpretation Act 1987; Parliamentary Entitlement Act 1990 (Cth); Suitors' Fund Act 1951; Supreme Court Act 1970; Supreme Court Procedure Act 1900; Supreme Court Rules 1970; Uniform Civil Procedure Rules 2005; Parliamentary Entitlements Regulations (Cth) 1997; County Courts Extension Act 13 & 14 Vict. c 61; Administration of Justice (Miscellaneous Provisions) Act 1933 (UK); Rules of Supreme Court 1883 (UK)
• Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Ascot Investments Pty Ltd v Harper [1981] HCA 1; (1981) 148 CLR 337; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364; Bond Corporation Holdings Ltd v Australian Broadcasting Commission [1989] NSWCA 22; (1989) A Def R 50-050; Cassell & Co Ltd v Broome [1972] AC 1027; Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90; Combined Excavations and Supplies v Bowis [2000] NSWCA 298; Commonwealth of Australia v Cook [1994] NSWCA 60; Dashwood v Maslin [1909] HCA 62; (1909) 9 CLR 451; Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430; FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268; Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130; Forbes Services Memorial Club Ltd v Hodge [1995] NSWCA 151; Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478; Gipp v R [1998] HCA 21; (1998) 194 CLR 106; Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430; House v The King [1936] 40; (1936) CLR 499; International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319; Jenkins v Bushby [1891] 1 Ch 484; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291; Jones v Skelton [1963] 1 WLR 1362; Knight v F P Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178; London Artists Ltd v Littler; Grade Organisation Ltd v Littler [1969] 2 QB 375; Macdougall v Paterson (1851) 11 CB 755; (1851) 138 ER 672; Mallik v McGeown [2008] NSWSC 129; McBride v John Fairfax Publications Pty Ltd & Anor [2009] NSWSC 10; Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356; NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585; Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72; OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155; (2010) 270 ALR 542; Pambula District Hospital v Herriman (1988) 14 NSWLR 387; Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 23; (1993) 178 CLR 14; Peck v Email Ltd (1987) 8 NSWLR 430; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301; R v Mosely (1992) 28 NSWLR 735; Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148; Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; Rothermere v Times Newspapers Ltd [1973] 1 All ER 1013; Saraswati v R [1991] HCA 21; (1991) 172 CLR 1; Sharp v Rangott [2008] FCAFC 45; (2008) 167 FCR 225; SMEC Holdings v Boniface [2004] NSWSC 526; Smoje v Trend Laboratories (Cole J, 27 May 1988, Supreme Court of New South Wales, unreported); South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133; Sutcliffe v Pressdram Ltd [1991] 1 QB 153; Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439; Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
• Texts Cited: Civil Procedure Bill 2005, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 6 April 2005; Defamation Amendment Bill 2002, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 12 November 2002; Supreme Court (Amendment) Bill 1987, District Court (Amendment) Bill 1987, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 16 September 1987; HV Evatt, "The Jury System in Australia", (1936) 10 Australian Law Journal (Supp) 49; P Milmo and WVH Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell
• Category: Principal judgment
• Parties: Channel Seven Sydney Pty Ltd - first appellant; Jonathon Creek - second appellant; Senator Concetta Fierravanti-Wells - respondent
• Representation: RG McHugh SC with DR Sibtain - appellants; CA Evatt with RKM Rasmussen - respondent; Johnson Winter & Slattery - appellants; NJ Papallo & Co - respondent
• File Number(s): 2010/250670
• Publication restriction: No

Decision under appeal

• Citation: [2010] NSWDC 143
• Date of Decision: 2010-07-16 00:00:00
• Before: Levy SC DCJ
• File Number(s): 2010/100777

Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells v Kermode

 

Headnote

 

[This headnote is not to be read as part of the judgment]

 

Concetta Fierravanta-Wells, the respondent, is a Senator for the State of New South Wales in the Parliament of Australia.  In accordance with her parliamentarian entitlements, she undertook a study trip to Italy in 2009.  On her return she wrote a report some 620 pages long concerning the Australian wool industry (the “Wool Report”).  Channel Seven, the first appellant, broadcast on the programme “Today Tonight” a report about the cost to taxpayers of overseas trips taken by Federal Parliamentarians.  During the programme its reporter, the second appellant, Jonathon Creek, referred to “dubious study trips” and to the respondent’s study trip to Italy “to reconnect with her heritage”.

 

The respondent commenced defamation proceedings originally only against the first appellant in respect of the broadcast.  The second appellant was joined as a defendant at a later stage.  The first appellant filed a notice of intention to elect for trial by jury, (s 21, Defamation Act 2005 (the “2005 Act”)) which election the respondent accepted extended to the second appellant.  The appellants filed a defence pleading, among other matters, justification, contextual truth, honest opinion and fair comment at common law.  The particulars of the defence of truth raised issues concerning whether the Wool Report complied with parliamentary requirements and asserted it could have been prepared without the respondent having to travel to Italy.  The defence of honest opinion pleaded as particulars of public interest the Commonwealth legislation relating to the respondent’s parliamentary entitlements.

 

In the course of a case management review the primary judge directed the parties to file and serve submissions as to why, pursuant to s 21(3) of the 2005 Act, an order should not be made that the trial of the action proceed without a jury.  The appellants opposed that course.  The primary judge considered whether the matter should proceed with a jury at a hearing during which the appellants read an affidavit sworn by their solicitor opposing the course proposed.  They led no other evidence.  The respondent submitted to such order as the Court might make.  The Wool Report was not tendered by either party, but was marked as an exhibit by the primary judge.

 

The primary judge concluded that the matters raised by the appellants’ defence meant the Wool Report would have to be examined in some detail and that the jury would have to refer to, read and consider it.  He also determined that the public interest component of the defence of honest opinion meant the jury would have to consider the operation of Commonwealth legislation.  He concluded that the consideration of the Wool Report would constitute a “prolonged examination” in terms of s 21(3)(a) of the 2005 Act and that the legislation the jury would have to consider would involve technical issues also within s 21(3)(b) of the 2005 Act.  Accordingly he determined that he should order the trial proceed otherwise than by jury.

 

The appellants appealed by leave.  On appeal the respondent supported the primary judge’s decision.

 

Held, per McColl JA (Giles JA and Handley AJA agreeing) allowing the appeal and setting aside the order that the trial proceed without a jury:

 

1.           The primary judge had no power to dispense with the jury of his own motion either under s 21 of the 2005 Act and/or under the Civil Procedure Act 2005.

 

2           The entitlement to a jury trial for which a party has regularly elected is a relevant consideration in determining whether the s 21(3) power should be exercised.

 

3.           In order to enliven the discretion to dispense with a jury, an applicant must demonstrate more than that the proceedings will require the prolonged examination of records.  There must be something difficult about that process in order for the discretion to be enlivened.

 

4.           The primary judge erred in concluding that the public interest component of the defence would involve the jury considering the operation of Commonwealth legislation in connection with the Wool Report.  Such issues were reserved for the judicial officer’s consideration by s 22(5)(b) of the 2005 Act, as was any question as to whether facts as found answered a statutory description or satisfied statutory criteria.

 

5.           Uniform Civil Procedure Rule 29.2A is inconsistent with s 21 of the 2005 Act and ultra vires.

 

Orders

 

1.           Appeal allowed with costs.

 

2.           Set aside the order of Levy DCJ made on 16 July 2010 that the trial of the action proceed without a jury.

 

3.           The respondent to have a certificate under the Suitors’ Fund Act 1951.

 

**********

Judgment

Legislative framework	[4]
Statement of the case	[11]
The primary judgment	[29]
Notice of appeal	[32]
Submissions	[33]
Consideration	[42]
Construction of s 21, 2005 Act	[51]
(a)Jury trials	[53]
(b)The role of the jury in defamation proceedings	[69]
(c)The exercise of the power to dispense with juries	[80]
(d)Conclusion on construction of section 21, 2005 Act	[94]
Case management and the jury dispensation power	[98]
Conclusion on power	[110]
The onus of proof issue	[112]
The prolonged examination dispensation power	[117]
Section 22(5), 2005 Act	[126]
Application to adduce fresh evidence	[133]
Uniform Civil Procedure Rule 29.2A	[135]
Orders	[136]

1 Giles JA: For the reasons given by McColl JA, the primary judge had no power to order of his own motion, pursuant to s 21(3) of the Defamation Act 2005, that the proceedings not be tried by jury; and assuming the power, he erred on the exercise of the discretion. I agree with her Honour's observation that UCPR 29.2A is in part beyond power, and with the orders proposed by her Honour.

2 McColl JA: The appellants, Channel Seven Sydney Pty Ltd and Jonathon Creek, appeal by leave granted on 14 December 2010 from a judgment of his Honour Judge Levy SC ordering pursuant to s 21(3) of the Defamation Act 2005 (the "2005 Act") that the trial of defamation proceedings brought by the respondent, Senator Fierravanti-Wells, proceed without a jury: Senator Fierravanti-Wells v Channel Seven Sydney Pty Ltd [2010] NSWDC 143.

3 The primary judge acted of his own motion in dispensing with the jury. The critical issue that arises on appeal is whether he had the power to do so. For the reasons that follow, I have concluded he did not.

Legislative framework

4 Section 21 of the 2005 Act relevantly 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) 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

(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury."

There is no definition of "records" in the 2005 Act.

5 Section 9 of the Interpretation Act 1987 should be noted. It provides that, except in so far as the contrary intention appears (s 6) in an Act or instrument "the word 'may', if used to confer a power, indicates that the power may be exercised or not, at discretion".

6 Section 22 of the 2005 Act is also relevant. It provides, in substance, that in defamation proceedings that are tried by jury, the jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. The judicial officer is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. Section 22(5)(b) provides:

"(5) Nothing in this section:

...

(b) requires or permits a jury to determine any issue that, at general law, is an issue to be determined by the judicial officer."

7 Section 86(3) of the Civil Procedure Act 2005 (the "CP Act"), which appears in Part 6, Division 6 (Miscellaneous) provides:

" 86 Orders

...

(3) Subject to this Act and to rules of court, the court may make any order that it has power to make either of its own motion or on the application of a party or any other person entitled to make such an application.

8 Section 86(3) appears to be entirely novel.

9 At the time the primary judge dispensed with the jury, Part 29.3 of the Uniform Civil Procedure Rules 2005 ("UCPR") provided for the manner in which an election under s 21 of the 2005 Act should be made. Part 29 was amended by the Uniform Civil Procedure Rules (Amendment No 42) 2011 which commenced on 11 March 2011. The new UCPR 29A.2 which deals with elections for juries in defamation proceedings includes the following:

" (6) ... a notice of election for a jury trial may not be filed or served if:

(a) the court makes an order under section 21 of the Defamation Act 2005 (whether or not of its own motion) that the defamation proceedings not be tried by jury, or

(b) a date has been fixed for the hearing of the defamation proceedings." (Emphasis added)"

10 I shall return to this rule.

Statement of the case

11 The respondent is a Senator for the State of New South Wales in the Parliament of Australia. She is Australian born of Italian ancestry. She took her seat as a Senator on 5 May 2005. The following statement of the respondent's entitlements as a Senator to funding for travel is extracted from the appellants' defence and was accepted as accurate by the respondent's counsel.

12 Once the respondent had served as a Federal Parliamentarian for three years, she was entitled to travel overseas for the purpose of undertaking studies or investigations of matters related to her duties and responsibilities as a member of Parliament. The defence identified the Parliamentary Entitlement Act 1990 (Cth) as the source of this entitlement. She was also entitled to financial assistance from the Government for travel for the purpose of undertaking such studies and investigations. In order to draw upon the entitlement to financial assistance for travel outside the Commonwealth of Australia she was required, among other matters, to report in writing to the Special Minister of State confirming the purpose of her journey, key meetings and the main finding or outcomes and the conclusions drawn relating to the relevance of the tour to her parliamentary responsibilities within 30 days of return (the "Return Report requirement").

13 The respondent undertook a study trip to Italy from 18 to 29 January 2009. On 29 October 2009 she sought, and was granted, leave to table a document in the Senate which she described as a study leave report entitled "From the Farm to the Wardrobe: A snapshot of the Australian Wool Industry" (the "Wool Report"). The Wool Report is 620 pages long.

14 On 7 January 2010 the first appellant broadcast on the programme "Today Tonight" a report about the cost to taxpayers of overseas trips taken by Federal Parliamentarians ("the matter complained of"). The programme largely explored travel undertaken by Prime Minister Kevin Rudd. In the course of the programme the reporter, Jonathon Creek, said:

"Then there's those dubious study trips.

[He referred to two politicians other then the respondent and continued]

And where else would Liberal Senator Concetta Fierravanti-Wells go for her study trip? Italy, of course. It cost the taxpayer more than $17,000 for the politician to reconnect with her heritage.

....

Special Minister of State Joe Ludwig launched a complete review of the entitlements system in September. Today Tonight understands study trips could be scrapped..."

15 On 18 March 2010 the respondent commenced defamation proceedings against the first appellant, Channel Seven, in respect of the "Today Tonight" broadcast. She pleaded that the matter complained of conveyed the following imputations which were defamatory of her:

"(a) The respondent wasted taxpayers money;

(b) The respondent went on a dubious study trip;

(c) The respondent abused her entitlement to have an overseas trip by spending more than $17,000 for a study trip to Italy, because the reason she went there was not to study, but to reconnect with her heritage; and

(d) The respondent's abuse of her study trip was one of three examples of dubious study trips that led the Special Minister of State Joe Ludwig to launch a complete review of the entitlements system and possible scrapping of study trips."

16 On 31 March 2010 the first appellant filed its appearance and a notice of intention to elect for trial by jury. On 30 April 2010 its legal representative announced in Court that it elected for trial by jury: UCPR 29.2(4) as then in force. The second appellant, Mr Creek, was joined to the proceedings at a subsequent date, but before the primary judge dispensed with the jury. The respondent did not contend that he was not entitled to the benefit of the jury election.

17 On 25 June 2010, after interlocutory arguments about the imputations and the filing of an amended, then a further amended statement of claim, the appellants filed a defence putting in issue whether the imputations were conveyed and, if they were, whether they were defamatory. In addition the defence pleaded justification (s 25, 2005 Act), contextual truth (s 26, 2005 Act), honest opinion (s 31, 2005 Act) and fair comment at common law.

18 Paragraph six set out particulars of the defence of truth relevantly as follows:

"(k) The wool report did not comply with the return report requirement in that it did not report in relation to:

(i) the purpose or the purposes of the journey and the itinerary, including any changes to the purpose or purposes and itinerary;

(ii) key meetings and the main findings or outcomes; and

(iii) conclusions drawn relating to the relevance of the tour to the Plaintiff's parliamentary responsibilities.

(l) The Plaintiff stated in the wool report that the impetus for her to conduct the research reflected in the wool report was that:

(i) she wondered why Australians did not manufacture woollen suits;

(ii) she had a particular interest in Australian-Italian relations, given her background; and

(iii) she understood the wool industry to be 'integral' to the relationship between Australian and Italy.

(m) The wool report could have been prepared without the Plaintiff undertaking travel to Italy, without a materially adverse impact on the quality or content of the report.

(n) The wool report did not materially improve the body of literature on the relationship between Australian and Italian wool industry participants."

The appellants' counsel informed the Court that particular (n) would be abandoned.

19 The defence of honest opinion pleaded, as required, that the opinion related to a matter of public interest: s 31(1)(b), 2005 Act. The particulars of that matter were:

"Particulars of public interest (UCPR 15.21(1)(a))

(a) The operation of the Parliamentary Entitlements Act 1990 and Parliamentary Entitlements Regulations 1997.

(b) The cost and benefit of parliamentary study trips which are funded by the Australian taxpayer.

(c) Need to ensure that Parliamentary entitlements represent value to the taxpayer."

20 On 5 July 2010 the respondent filed a reply joining issue save as to matters admitted in the defence. In reply to the defence of honest opinion, she pleaded in paragraph two that the opinion was not honestly held by the appellants and/or that the first appellant did not believe the opinion was honestly held by its servant or agent when the matter complained of was published. Paragraph 2(f) stated:

"(f) When the Defendant's [sic, as in original] made the telecast they did not know any reason given by the Plaintiff for her study trip or any other details about the study trip including the contents of her report."

21 On 1 July 2010, following what the primary judge described as a case management review, his Honour, of his own motion, issued directions to the parties to file and serve submissions as to why, pursuant to s 21(3) of the 2005 Act, an order should not be made that the trial of the action should proceed without a jury. The appellant filed an affidavit of Kevin Lynch sworn on 7 July 2010 and submissions opposing the course proposed. The respondent filed no submissions or evidence.

22 On 8 July 2010 the primary judge ordered the appellants to deliver a copy of the Wool Report to his chambers.

23 The primary judge considered the matter on 16 July 2010. The respondent submitted to such order as the Court may make. The appellants read Mr Lynch's affidavit without objection or cross-examination. Their counsel then stated that that was the evidence on the hearing. At that stage the Wool Report, which had not been tendered by either party, was marked as an exhibit by the primary judge.

24 It is unnecessary to recount the contents of Mr Lynch's affidavit which was sufficiently summarised in the primary judgment (at [13]).

25 The appellants' counsel's submissions as to why the primary judge should not order that the proceedings not be tried by a jury explored the legislative regime, identified cases demonstrating the importance of the role of the jury in defamation actions, referred to the history of the enlarged role of the jury in defamation proceedings in New South Wales upon the enactment of the 2005 Act, and extensively reviewed authorities in which universally unsuccessful applications had been made in defamation proceedings to dispense with juries. In particular, the submissions drew the primary judge's attention to an observation by Levine J in SMEC Holdings v Boniface [2004] NSWSC 526 (at [15]) that his Honour was not aware of any case in which a jury had been dispensed with in a defamation action. The authors of the submissions added that they were similarly unaware.

26 The submissions emphasised that the jury had been properly requisitioned. They identified the imputations and the defences, said that it was likely that both parties would refer to the Wool Report and non-technical documents such as drafts and itineraries, but that the appellants did not propose to lead expert, scientific or specialist evidence and did not anticipate the respondent would do so.

27 Somewhat surprisingly, the written submissions did not contend that the primary judge did not have power to dispense with the jury. However in counsel's oral submissions at the hearing, he referred to the fact that neither side had sought the order so that what the primary judge's direction amounted to was a motion to show cause. He drew the primary judge's attention to Pambula District Hospital v Herriman (1988) 14 NSWLR 387 and, in particular, to Mahoney JA's statement (at 421) that he did not think that the power given by s 89 of the Supreme Court Act 1970, the then general discretion conferred on the Supreme Court to order that all or any issues of fact be tried without a jury, might be exercised by the Court on its own initiative. The primary judge's response to this statement being drawn to his attention was that it preceded the advent of the CP Act .

28 In his oral submissions counsel for the appellants also emphasised that neither party contended that the Wool Report required prolonged examination. He argued that the jury would not have to read the Wool Report in its entirety but, rather, that he anticipated the defences would be dealt with by cross-examination of the respondent on passages in it and cross-examination in relation to the circumstances of her trip in the context of the imputations and the matter complained of.

The primary judgment

29 After setting out the background, the primary judge said:

"7. It is clear from paragraph 6(k) of the defence and from paragraph 2(f) of the plaintiff's reply to that defence, that at trial, the assertion that the report in question was not compliant with a " report requirement " of the Australian Senate, those requirements, and the report itself, will have to be examined in some detail as part of the evaluation of the plaintiff's claim, and the defences relied upon by the defendants.

8. The defendants concede that if the trial proceeds with a jury, in its deliberations, the jury will have to refer to, read and consider the report in question. Counsel for the defendants argued that reference to that report would be limited, but having regard to the content of the report, and to the issues raised on the pleadings, I am unconvinced that the anticipated foray into the report at trial will not be in a much wider range.

9. It is also clear from the defence that the public interest component of the defence of the claim made by the plaintiff will involve the jury in a consideration of the operation of the Parliamentary Entitlements Act (Cwth) 1990 and the Parliamentary Entitlements Regulations (Cwth) 1997, in connection with the report prepared by the plaintiff."

30 The primary judge then referred to other cases dealing with applications pursuant to s 21(3) of the 2005 Act to dispense with juries from which he extracted no principle, concluding each turned on its own facts. As to one, Mallik v McGeown [2008] NSWSC 129, his Honour recorded (at [17]) that "McCallum J considered the anticipated burden on the jury to be 'relatively light' having regard to the materials and facts involved in that case". He continued:

"20. I now turn to the question of whether in the circumstances of this case, the test for the exercise of discretion under s 21(3)(a) or (b) has been engaged and satisfied.

21. For clarity, I should state that although the question of whether or not there should be a jury trial in this matter arose in the course of a case management review of the issues calling for decision in the proceedings, my decision is not based on questions of allocation of court time and resources , concerns which McCallum J observed had been considered and rejected by Parliament when it passed the Defamation Act 2005: Mallik [41]. Instead, I base my decision solely on the factors referred to s 21(3) of the Act.

22. For the purpose of considering whether there should be a jury trial in this case, pursuant to an earlier direction, on 12 July 2010 I was provided with a copy of the 600 page report prepared by the plaintiff. The report was marked as Exhibit 'A' on the hearing of the argument on the jury issue.

23. I have reviewed the report. It contains 12 chapters. It is stated to have been prepared by the plaintiff during a period of study leave she took from her duties as a Senator in the Australian Parliament. The report outlines 5 categories of consultative contacts the plaintiff stated she has had with a combination of some 118 individuals and organisations in the course of preparing her report.

24. In my view, having examined the report in question, it is obviously a bulky document, much of which is technical in its content, and involves issues and argument aimed at stimulating discussion dealing with challenges facing the Australian wool industry. In my view the report comes within the meaning of ' records as contemplated by s 21(3)(a) of the Act.

25. It is clear from the defence, and from the reply, that a jury trial of these proceedings would involve a jury being provided with a copy or copies of the report and a prolonged examination of its content, relative to the issues thrown up by the pleadings.

26. Having regard to the defence, I consider that the trial will not only involve a prolonged examination of the report in question so as to satisfy the considerations posed by s 21(3)(a) of the Act, but will also involve some technical issues of interpretation arising out of the provisions of the Parliamentary Entitlement Act (Cwth) 1990 and the Parliamentary Entitlements Regulations (Cwth) 1997. In my view, these matters of interpretation cannot be conveniently resolved by a jury, thus also engaging the discretion conferred by s 21(3)(b) of the Act.

27. I am therefore satisfied that I should make an order that the trial should proceed otherwise than by jury." (Emphasis added)

31 The appellants do not challenge the primary judge's conclusion that the Wood Report constituted a record for the purposes of s 21(3)(a).

Notice of appeal

32 As I have said, the critical question on appeal is whether the primary judge had power to dispense with the jury of his own motion. The appellants also complained that his Honour erred in making orders pursuant to s 21(3) of the 2005 Act, in that the jurisdictional facts enlivening the discretion were not established, in finding that the requirements of s 21(3) were satisfied, in reversing the onus of proof and in considering the public interest component of the defence would be a matter for a jury. Finally the appellants complained that in all the circumstances, his Honour's exercise of discretion was manifestly unreasonable and unjust.

Submissions

33 The appellants' primary submission is that the primary judge did not have power to make orders under s 21(3) of the 2005 Act of his own motion. They emphasised that a party electing for the proceedings to be tried by a jury has an "entitlement" or "statutory right" to that mode of trial and that it was another party, not the judicial officer, who bore the onus of showing that the Court should exercise any discretion to deprive it of that entitlement. They emphasised the historical and legal importance of jury trials of defamation proceedings.

34 Secondly, the appellants submitted that even if the primary judge did have power to act of his own motion to dispense with the jury, his Honour erred in doing so because the discretion reposed in him by s 21(3) was not enlivened. This was because, they contended, there was no evidentiary basis upon which his Honour could have been satisfied that the trial either required a prolonged examination of records or involved any technical, scientific or other issue that could not be conveniently considered and resolved by a jury. The appellants pointed to Mr Lynch's affidavit which, they contended, was uncontested evidence that the documents to be considered by the jury were no more voluminous than those considered in many other defamation trials and that there was no technical matter in issue. They complained that although his Honour referred to that affidavit (at [13]) he did not take it into account when determining to dispense with the jury.

35 Thirdly, the appellants submitted that if the s 21(3) jurisdiction was properly invoked, his Honour's exercise of the discretion miscarried in such a manner as to attract appellate intervention: House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 505). They complained that the primary judge failed to consider whether, even if satisfied of the matters in s 21(3)(a) or (b), he should, in all the circumstances, exercise his discretion to dispense with the jury. They repeated their complaint that the primary judge failed to take into account relevant considerations, being their "statutory right" to a jury and Mr Lynch's affidavit. They argued that his Honour failed to identify any singular feature of the case which would warrant dispensing with the jury. They contended his Honour incorrectly considered the jury would have to determine issues of statutory construction and public interest whereas those were matters of law for judicial determination. They also submitted that the primary judge had taken into account irrelevant considerations, such as the risk of parties being unrepresented and failed to have regard to the absence of any factor transcending the usual problems encountered with jury trials.

36 As I have said, the respondent submitted to the order of the Court below. However in this Court she sought to uphold the primary judge's order. Her principal submission was that the primary judge had power to dispense with the jury of his own motion in exercise of the case management powers contained in the CP Act and the UCPR. When pressed, however, to identify a specific source of that power in that legislation counsel for the respondent appeared to resile from that submission and contend that the power was inherent in the use of the words "[u]nless the court orders otherwise" in s 21(1) and "a court may order..." in s 21(3) of the 2005 Act.

37 The respondent also supported the primary judge's conclusion that consideration of the Wool Report would either require prolonged consideration or involve technical issues. She sought to tender the appellants' "Categories of Documents for Discovery by the Plaintiff" and her "List of Documents" as relevant to the re-exercise of the s 21 discretion should that arise. The Court refused to permit that tender. The reason for that refusal appears later in this judgment.

38 In her written submissions, under a heading "Abuse", the respondent complained that since the introduction of the 2005 Act "media defendants in every case request a jury" which she contends has resulted in "bottlenecks and delay", such that if a jury was to try every defamation case there would be a serious delay between the dates of publication and the dates of trial. Nevertheless, she submitted that the primary judge based his decision not on questions of allocation of court time and resources, but solely on the factors referred to in s 21(3).

39 After the Court reserved its judgement in the matter it drew counsels' attention to s 86 of the CP Act. It requested both parties to make submissions concerning the effect of s 86(3) in particular on the question whether the primary judge had power to act of his own motion in dispensing with the jury, such submissions to include submissions as to the inter-relationship, if any, between the CP Act and the 2005 Act.

40 The appellants submitted that s 86(3) did not authorise the primary judge to make an order under s 21(3) of the 2005 Act of his own motion. They emphasised the difference between the language of s 86(1) empowering the court "to make orders in relation to proceedings, whether under this or any other Act or otherwise..." and that of s 86(3) which is not expressed to extend beyond the CP Act and rules of court. They submitted that that limitation recognised that a power of the nature of that conferred by s 86(3) might appropriately extend to the exercise of procedural powers under the CP Act and the UCPR, but that the legislature could not have intended it to extend to enable a court to act of its own motion so as to interfere with an accrued "statutory right" such as that acquired by an election for trial by jury. They argued that a construction of s 86(3) which empowered a court to act of its own motion under any legislation would be tantamount to authorising courts to exercise inquisitorial powers.

41 The respondent submitted while s 86(3) was subject to the CP Act and rules that did not mean it was limited to powers conferred by those legislative instruments. She contended s 86(3) was to the same effect as s 86(1) and s 86(2), mutatis mutandis .

Consideration

42 Section 21 of the 2005 Act confers two powers on the court to dispense with a jury in defamation proceedings. The respondent did not contest the proposition that both powers are discretionary: s 9, Interpretation Act ; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 (at [28]) per Gummow and Hayne JJ.

43 The first power is that contained in s 21(1), which permits the court to "order otherwise" if either the plaintiff or defendant elects for the proceedings to be tried by jury. This is an unfettered discretion "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view": Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 (at 505) per Dixon J; see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at [22]) Gaudron and Gummow JJ.

44 The second power is that found in s 21(3). It expressly does not confine the s 21(1) discretion. It is a discretion empowering the court to order that the jury be dispensed with if the conditions prescribed in s 21(3)(a) and/or s 21(3)(b) are established. However the mere fact that those conditions are established does not require that the power s 21(3) confers be exercised. Rather the judge considering a s 21(3) application must consider whether, in all the circumstances, including the role juries play in defamation trials to which I refer later in these reasons, the power should be exercised.

45 Both discretions are conferred upon "the court". There is no reference to a party moving for the power to be exercised. The appellants' primary contention is, in effect, that the s 21(3) power is subject to the negative implication that the court's jurisdiction to exercise the power may only be invoked upon application by a party. If that contention is correct as to s 21(3), it must also be correct as to s 21(1).

46 Prima facie, a grant of power to a court (including the conferral of jurisdiction) should not be construed as subject to a limitation not appearing in the words of that grant. Rather it should be construed in accordance with ordinary principles and the words used given their full meaning unless there is something to indicate to the contrary. It is inherent in the conferral of such a power that it must be exercised judicially and in accordance with legal principle, thus warranting "the most liberal construction" of the power because such a requirement would exclude the possibility that the power might be exercised "arbitrarily or capriciously or to work oppression or abuse": Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 (at 205) per Gaudron J; see also (at 190 - 192) per Mason CJ and Deane J; Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 23; (1993) 178 CLR 14 (at 17) per Mason CJ, Deane and Dawson JJ; (at 27 - 29) per McHugh J. In language reminiscent of Dixon J's statement in Water Conservation & Irrigation Commission (NSW) v Browning , Gaudron J has said that a broad judicial discretion is properly confined by identification of the matters which are extraneous to the power and the exposition of those which are relevant to the power and the way in which they bear on its exercise: Patton v Buchanan Borehole Collieries Pty Ltd (at 23).

47 Nothing in the decisions referred to in the previous paragraph means that a conferral of jurisdiction and power is "totally uncontrolled simply because the repository of the power [is] a court": PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 (at 313) per Brennan CJ, Gaudron and McHugh JJ; Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; (1999) 198 CLR 435 (at [134]) per Gaudron, Gummow and Callinan JJ; Ascot Investments Pty Ltd v Harper [1981] HCA 1; (1981) 148 CLR 337 (at 354) per Gibbs J (Stephen J agreeing). It is "[t]he words of the grant [which] chart the ultimate boundaries of the power": Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 (at [76]) per Kirby and Callinan JJ. There may be occasions when it is appropriate to approach the question of the proper meaning of the grant of power on the basis that only the clearest express intention can displace fundamental legal principle or basic policy consideration: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 (at 290) p er Gaudron J.

48 The ambit of the s 21 power must be determined in the context of the adversarial system of justice in which civil proceedings in this country are conducted. In that system "choice rests primarily with the parties and it is generally the case that the courts' power of decision or order is exercised upon the application of a party ": Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 (at [15]) per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ. As Jervis CJ said in Macdougall v Paterson (1851) 11 CB 755 (at 773); (1851) 138 ER 672 (at 679), speaking of a power conferred by the County Courts Extension Act 13 & 14 Vict. c 61:

"[W]hen a statute confers an authority to do a judicial act in certain cases, it is imperative for those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application."

49 One of the cardinal principles of the adversarial system of justice is that a judge tries the case before him or her on the evidence and arguments presented in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. This principle reflects a central element in the system of justice administered by Australian courts, that is that it should be fair, meaning that it must be open, impartial and even-handed: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 (at 350) per Mason J; see also Gipp v R [1998] HCA 21; (1998) 194 CLR 106 (at [48]) per McHugh and Hayne JJ. It is not the role of a judge to create a controversy: Sharp v Rangott [2008] FCAFC 45; (2008) 167 FCR 225 (at [55]) per Besanko J.

50 The exercise of the s 21 discretion must be made in the circumstance that once the appellants exercised the s 21 entitlement to elect for the proceedings to be tried by a jury, they had a vested or accrued substantive right: see generally Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 (at 440 - 441); Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 (at [31]) per McHugh J; Pambula (at 412) per Samuels JA.

Construction of s 21, 2005 Act

51 The first question is whether s 21 of the 2005 Act empowered the primary judge to act of his own motion. That question must be determined by reference to the language of s 21 and its legal and historical context.

52 The language of s 21 is silent as to how the exercise of the power it confers may be initiated. I have said sufficient about the nature of the adversarial system to indicate that, prima facie, such a power is to be exercised on due application by a party. That prima facie view is, in my opinion, borne out by the legal and historical context concerning civil jury trials and powers to dispense with their use. As will be apparent, historically, different approaches have been taken to whether a trial should be by jury in defamation or reputational cases.

(a) Jury trials

53 The history of civil jury trials and the enactment of powers to dispense with their use was discussed in Gerlach by Kirby and Callinan J (at [32]ff) - a discussion which reflects Kirby P's consideration of the same issue when presiding in the Court of Appeal in Pambula (at 394 - 400). It is sufficient for present purposes to note the following from that discussion.

54 At the start of the twentieth century, section 3 of the Supreme Court Procedure Act 1900 enabled the parties to agree to dispense with a jury in proceedings before the Supreme Court of the colony and empowered "a judge at any time to order that all or any of the issues of fact be tried with a jury 'if it appears to him to be expedient' ": Gerlach (at [36] - [37]).

55 Both the Supreme Court Act 1970 and the District Court Act 1973 continued the facility of jury trial. In both courts the overriding provision was that proceedings be tried be without a jury (s 85, Supreme Court Act , s 77(3), District Court Act ), however the parties in certain actions could requisition, summon or apply for a jury: s 86(1), s 87, Supreme Court Act ; s 78(1), s 79, District Court Act . In the Supreme Court claims in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage were required to be tried with a jury: s 88, Supreme Court Act . There was no such provision in the District Court Act when first enacted.

56 Following an observation by Clarke J (as his Honour then was) in Peck v Email Ltd (1987) 8 NSWLR 430 (at 435) to the effect that an unfettered discretion for judges to order trial by judge alone was required (save in proceedings to which s 88 applied), the Supreme Court Act and the District Court Act were amended in 1987 to confer a power to dispense with a jury. The power was intended to enable the court exercising it "to have regard to all relevant circumstances and be able to make a decision consistent with the needs of justice in each particular case": Attorney General, the Hon T Sheahan, Second Reading Speech, New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 16 September 1987 (at 13658).

57 The Supreme Court Act was amended so that s 89 thereafter relevantly provided:

"89. (1) In any proceedings on a common law claim (except proceedings to which section 88 applies), the Court may order, despite sections 85, 86 and 87, that all or any issues of fact be tried without a jury.

(2) In any proceedings to which section 88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where -

(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury; or

(b) all parties consent to the order..."

58 The District Court Act was amended by the insertion of s 79A:

" Power to dispense with jury

79A In any action, the Court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury."

59 In Pambula (at 399), after referring to the 1987 amendment and the Attorney General's Second Reading Speech, Kirby P observed that it was clear from the 1987 amendment that "jury trial would continue [but that] ...in a particular case application could be made (except in proceedings governed respectively by s 88 and s 89(3)) dispensing with a jury".

60 In 2001 the provisions of the Supreme Court Act and the District Court Act dealing with juries were again amended in a manner designed to curtail civil jury trials both in the Supreme Court and the District Court: Gerlach (at [64]).

61 Sections 85 - 89 of the Supreme Court Act were omitted and replaced by s 85, subsection (1) of which provided that proceedings in any Division were to be tried without a jury unless the Court ordered otherwise. Section 85 did not apply to proceedings referred to in s 86 which read:

" 86 Common law claim - defamation

(1) Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury.

(2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if:

(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or

(b) all parties consent to the order."

Section 86 was repealed on the enactment of the 2005 Act.

62 Sections 77 - 79A of the District Court Act were repealed and replaced by s 76A which required an action to be tried without a jury, unless the Court ordered otherwise.

63 In Gerlach (at [64]) Kirby and Callinan JJ suggested the 2001 amendment "provide[d] some evidence of an acceptance by [the New South Wales] Parliament of the law applied by the Court of Appeal" in that case - that being a reference to the Court of Appeal's application in Clifton Bricks Pty Ltd v Gerlach [2000] NSWCA 90 of the principles in Pambula (see [0] - [87] below).

64 In 2002 the District Court Act was amended by the insertion of s 76B which provided:

" 76B Defamation actions to be tried by jury unless Court orders otherwise

(1) An action in which there are issues of fact on a claim in

respect of defamation is to be tried with a jury.

(2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if:

(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or

(b) all parties consent to the order."

65 Section 76A was also amended so that it no longer applies to actions referred to in s 76B. Section 76B was repealed on the enactment of the 2005 Act. Section 76A was also amended on the enactment of the 2005 Act to insert subsection (4) which provided that s 76A did not apply to any action for defamation.

66 The 2002 amendments to the District Court Act were prompted by the increasing number of defamation actions being heard in that court and in order to ensure consistency between the availability of juries in the two courts: Defamation Amendment Bill 2002, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates , (Hansard), 12 November 2002.

67 The current position in both the Supreme and District Courts is that "proceedings in any Division" ( Supreme Court Act , s 85(1)) and "an action" ( District Court Act , s 76A(1)) are to be tried without a jury, unless the Court orders otherwise. Neither section applies to defamation proceedings: Supreme Court Act , s 85(6); District Court Act , s 76A(4). The 2005 Act, accordingly, governs the question of whether a jury tries a defamation case.

68 This discussion of the statutory history of the use of jury trials in this State illustrates the legislative recognition of the importance of their role in defamation proceedings. The guiding principle in proceedings/actions other than defamation is that they are not to be tried by jury. No such guiding principle governs the question of whether a jury tries a defamation case.

(b) The role of the jury in defamation proceedings

69 The role the jury has long played in defamation actions provides the historical context for the legislative recognition embodied in s 21 of the 2005 Act.

70 In 1936 Justice H V Evatt commented that "in modern times the jury system is to be regarded as an essential feature of real democracy", adding that "[h]istorically, such rights as 'the liberty of the press' owe their development to juries, for in England nearly every State Trial for libel was little short of 'an appeal from the government to the people' ". The latter statement was attributed to an 1848 work, "History of Trial by Jury", by William Forsyth, a "little known Cambridge don who established himself as the leading exponent of the history of trial by jury": Evatt, "The Jury System in Australia", (1936) 10 Australian Law Journal (Supp) 49 (at 49, 67).

71 The force of Justice Evatt's observation remains, notwithstanding "the trend away from jury trial" to which Gleeson CJ referred in Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 (at [7]), as to which, his Honour commented:

"...[D]ecision-making by the collective verdict of a group of citizens, rather than by the reasoned judgment of a professional judge, is a time honoured and important part of our justice system. It also has the important collateral advantages of involving the public in the administration of justice, and of keeping the law in touch with community standards."

72 The importance of the role of juries in defamation proceedings has been frequently emphasised. In Cassell & Co Ltd v Broome [1972] AC 1027, at (1065) the Lord Chancellor, Lord Hailsham described the jury as "where either party desires it, the only legal and constitutional tribunal for deciding libel cases, including the award of damages." In Sutcliffe v Pressdram Ltd [1991] 1 QB 153 (at 181) Nourse LJ stated that "[t]he primacy of the jury in defamation cases was settled by the Libel Act 1792 (Fox's Act)" and that "[t]he great end of those who achieved the passing of the 1792 Act was to secure the freedom of the press against the possibility of judges being disposed in favour of the Crown". While his Lordship posited that "the object of the rule established by the 1792 Act may have wasted into insignificance", he was of the opinion that:

"... its justification is as valid as it ever was. The question whether someone's reputation has or has not been falsely discredited ought to be tried by other ordinary men and women and, as Lord Camden said, it is the jury who are the people of England."

73 Kirby J pointed out the relevance of jury trials in defamation cases in Bond Corporation Holdings Ltd v Australian Broadcasting Commission [1989] NSWCA 22; (1989) A Def R 50-050 (at 40,325) as being that "[i] ssues of reputation are not readily susceptible to the normative activity with which judges are familiar ...[the] large room for evaluation, impression and opinion...[that] [i]t is better, for finality and community acceptance that such decisions should be made by a group of citizens reflecting current community standards than by a judge ...[and] ... the opinion of a multi-member jury may be safer and wiser than the opinion of a judge, sitting alone".

74 As Rares J recently explained in Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 (at [19]):

"One of the great virtues of having a jury try the substantial factual issues in a defamation action is that they represent the very audience to which the defamatory publication was addressed. In assessing whether or not a publication, first, is defamatory in the sense complained of and, secondly, has been defended under defences such as truth, honest opinion or fair report, a jury of ordinary reasonable people is able to evaluate the competing factual issues bringing to bear the moral and social standards that they share with the community at large. And, they are better placed than judicial officers to assess how ordinary reasonable people understand mass media publications."

75 As I have said (see [43]), s 21(3) reposes a discretion in a judge as to whether to dispense with a jury even if the jurisdictional facts are established. The following remarks of Lord Denning MR in Rothermere v Times Newspapers Ltd [1973] 1 All ER 1013 (at 1017), a defamation case in which the plaintiffs sought trial by judge alone, but the defendant wanted trial by jury, are apposite to the exercise of that discretion in this case:

"Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest - and is then charged with libel - then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents."

76 Lawton LJ also recognised (at 1020) the significance of the legislature making special provision for cases:

"...in which there was a charge of fraud against a party or there was a claim in respect of libel, slander, malicious prosecution, false imprisonment and the now obsolete claims in respect of seduction or breach of promise of marriage? All these cases have a common characteristic, namely, that the trial is likely to end with the honour, integrity and reputation of either the plaintiff or the defendant being tarnished or even destroyed. Parliament must have thought that in common law claims in which issues of this kind arose it would be wrong to get rid of a mode of trial which had become identified in the minds of many with constitutional rights and liberties."

In his Lordship's opinion that "factor must be considered whenever the court, on being satisfied that the trial will require prolonged examination of documents or accounts, comes to exercise its discretion [although] [t]he strength of this factor will vary from case to case".

77 He agreed (at 1022) with Lord Denning MR that the trial should be by jury. This was because the public was concerned in two ways. First, the sting of the matter complained of was that the plaintiffs had put profits before people. His Lordship identified the question of "[j]obs for men or profits for shareholders" as being "the Morton's fork of our times" on which"[t]he opinions of 12 jurors may reflect the public's view more accurately than the assessment of any judge". Secondly, if the defendants were unsuccessful:

"The reputation which the Times has enjoyed for so long around the whole world for responsible journalism will be badly dented, if not destroyed. The destruction of its reputation would be the destruction of a national institution. In my judgment a trial which could have this result should not be the responsibility of one man."

78 Bearing in mind that the 2005 Act is intended to promote uniform laws of defamation in Australia (s 3(a)), it is relevant to note that since a period commencing in 1934, shortly before Evatt J wrote in the Australian Law Journal , juries have not been required to try defamation cases in most States and Territories. As at 2006 (after the enactment of the 2005 Act in substantially the same terms across the country) "the ... position [was that] in none of the eight jurisdictions is there a strict and unqualified right to jury trial; three have completely abandoned jury trial on all civil issues; and while in the remaining five the question of whether publication is defamatory is left to the jury, together with issues other than damages, all questions of damages are removed from the jury": see Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 (at [231] - [239]) per Heydon J.

79 The different approaches taken to juries between jurisdictions do not, in my view, reduce the force of the classic statements as to the importance of the jury's role in reputational cases. Rather it concentrates attention on the jurisprudence which continues to apply in those jurisdictions which have preserved a party's entitlement to elect for trial by jury. In New South Wales it is relevant to note that when the Supreme Court was the primary venue for defamation proceedings the Supreme Court Act required them to be heard by jury, subject only to the prolonged examination dispensation power - and, from 1994 - s 7A of the 1974 Act. Once the District Court became the venue where more defamation proceedings were commenced, the same legislative regime was introduced in that jurisdiction.

(c) The exercise of the power to dispense with juries

80 Although the primary judge purported to act under s 21(3) of the 2005 Act, authorities dealing with the more general discretion conferred by s 21(1) of that Act and analogous provisions cast light on the approach to the exercise of the s 21(3) power.

81 The power to dispense with a jury following the inclusion of s 89(1) of the Supreme Court Act in 1988 (see [57] above) was considered by the Court of Appeal in Pambula . Leave to appeal was granted in that case because, following the enactment of s 89(1), it was apparent that different judges of the Common Law Division and the District Court were approaching the determination of whether cases should be tried without a jury in different ways. The appeal was heard in conjunction with other appeals and references to the Court which raise substantially the same question: Pambula (at 389).

82 In Pambula , Cole J (as his Honour then was) dispensed with the jury in common law proceedings involving allegations of medical negligence in purported exercise of the s 89(1), Supreme Court Act power to do so. It was not suggested by the parties that there would be significant dispute about the facts or that complex medical questions would be raised which would involve any prolonged examination of documents or consideration of scientific investigations: Kirby J (at 389). Cole J reached his decision in part by adopting factors for dispensing with a jury he had set out in Smoje v Trend Laboratories (Cole J, 27 May 1988, Supreme Court of New South Wales, unreported) and because it would be shorter, cheaper, counsel could discuss ranges of damages with the court and there would be reasons for the decision which could be tested on appeal: see Pambula (at 392 - 393). Kirby P enumerated (at 393 - 394; see also Samuels JA (at 408 - 409)) Cole J's list of factors from Smoje , and described them (at 402) as "observations of a general character relating to the nature of jury trials as such".

83 Both Kirby P (at 402) and Samuels JA (at 413) held that Cole J erred in taking such universal characteristics into consideration. Kirby P said (at 402 - 403):

"The basic flaw in Cole J's reasoning was in considering to be relevant as such, universal characteristics of jury trials. This was impermissible because the scheme of the legislation assumes that jury trials will continue to be available for proceedings on a common law claim such as this. Indeed, whether or not s 86 of the Act confers a 'right', strictly so called, it does envisage that a party to proceedings on a common law claim will continue to have an entitlement to requisition a jury . Having done so (as the appellant is to be taken to have done here) the exercise of the discretion called for by s 89 requires the party seeking the alternative mode of trial to discharge the onus to satisfy the Court that it should exercise its discretion upon the particular application made, to order that the trial be had, despite that fact, without a jury . It is therefore not to the point to consider universal characteristics of jury trials. They must be taken to have been known to, and accepted by, Parliament when contemplating that jury trial would continue, except where the discretion under s 89(1) of the Act was exercised.

...

The foregoing conclusions could be arrived at by reference to nothing more than the terms of the section and the statutory context in which it appears, together with reference to the legislative history and a passing glance at the Parliamentary debates. But when to this material is added the long history of civil jury trials in this jurisdiction and the necessity in the present case, to deprive a party that is taken to have requisitioned a jury, of its entitlement to have that mode of trial , the error in Cole J's judgment becomes even more clear. It is plain that his Honour accepted as the standard to apply whether it had been shown that: 'It is a case of such singularity that it would be more efficiently, more shortly or in a less costly manner litigated before a jury.' " (Emphasis added)

The passages emphasised reflect the basic principle that the onus is on an applicant seeking to change the mode of trial to persuade the court to do so: see Nicholl v Federal Capital Press of Australia Pty Ltd (1990) 101 FLR 356 (at 362) per Higgins J (as his Honour then was) and the cases there cited; see also McBride v John Fairfax Publications Pty Ltd & Anor [2009] NSWSC 10 (at [9]) per Nicholas J.

84 Kirby P (at 404) held that the s 86 entitlement to requisition a jury had to be reconciled with the s 89 dispensation power by "the judge deciding the matter start[ing] from the acceptance of the entitlement of the requisitioner to have a jury and, notwithstanding that entitlement, for other relevant reasons shown, [determining] that in the particular case the trial should be had without a jury."

85 Samuels JA (at 411) described s 86 of the Supreme Court Act as establishing "a conditional right to a jury...the right to a jury which is defeasible only upon exercise of the judicial discretion supplied in s 89(1)". He considered (at 412) the discretion conferred by s 89(1) to be "one by which an accrued statutory right (...the right, conditional though it may be, to a jury) may be displaced". In addition to disapproving of Cole J's recourse to extraneous general matters, his Honour (at 413) considered Cole J had posed a test that was wrong in principle leading to his discretion miscarrying. This was because his Honour appeared "to have made retention of the jury, not dispensation, the subject matter of the discretion; and regarded that element as dependent upon whether the case before him was 'of such singularity that it would be more efficiently, more shortly, or in a less costly manner litigated before a jury' [whereas]...the issue for determination...was whether there were considerations ... which required an order for trial without the jury already requisitioned for reasons affecting the interests and expectations of the litigants before him".

86 Mahoney JA dissented. In his Honour's view the construction of s 89(1) was to be determined in accordance with the principles enunciated by Dixon J in Water Conservation and Irrigation Commission (New South Wales) v Browning . He concluded "there was nothing in the provisions of the statute or the nature of subject matter of the statute which makes...ordinary incidents of a court and its lists a matter outside the scope of this undefined discretion". Accordingly he held Cole J had not erred in the exercise of the discretion. He also made the following statement (at 421) upon which the appellants unsurprisingly seized:

"It was, however, submitted that the learned judge had, in making the orders he did, acted on his own initiative and without application by either party. I do not think that the power given by s 89 may be exercised by the court on its own initiative. There are instances in which, under the Act or the rules, a judge may act without application by either party. I do not think that this is one of them. I do not mean that, in the exercise of the power in the course of, for example, the settlement of a busy list or the formulation of cases to be heard on circuit, a judge must have, as a condition of the power, a formal motion and a supporting affidavit. An application may be made in some cases informally and in the course of, for example, the giving of directions generally in respect of a case or class of case. But if, for example, both parties decline to seek an order under s 89(1) it is not, in my opinion, open to the judge to make one." (Emphasis added)

87 It is not immediately apparent that Cole J had acted of his own initiative in Pambula. However it appears the Court (see 393, 394) considered that Cole J had incorporated his reasons in Smoje into his reasons in Pambula. In Smoje , Cole J forcefully expressed the view that the court could exercise the s 89 discretion of its own motion. His Honour reached that conclusion because s 89 was found in Pt 6 of the Supreme Court Act , dealing with procedure and because "in the absence of any restriction by Statute or Rules, the Court has control over its procedures". His Honour also found comfort for his conclusion in the statements in the Second Reading Speech that the "new provision will provide the Court with [a] broad discretion...".

88 I would understand Mahoney JA's rejection of the proposition that the court could exercise the s 89 power of its own initiative to have been directed to Cole J's statements in Smoje . It might also be thought that Kirby P's emphasis (at 402, see [ 83 ] above) on there being a moving party for a dispensation order and the onus that party bore, as an implicit rejection of the proposition that the court could make such an order of its own motion.

89 As Heydon JA pointed out in Combined Excavations and Supplies v Bowis [2000] NSWCA 298 (at [36]), the reasoning in Pambula was applied to s 79A of the District Court Act in Forbes Services Memorial Club Ltd v Hodge [1995] NSWCA 151. In Forbes , Kirby P (with whom Priestley and Cole JJA agreed) explained (at 5) that the point Pambula "was designed to uphold, Parliament having reserved a facility of jury trials in certain cases, was that judges asked to dispense with a jury should not do so upon a footing that it was necessary to show that a case was, as such, singular or suitable for jury trial". His Honour added that "[w]ith every respect to those of a different view, Pambula merely states an elementary rule that a statutory power must be exercised by a donee of the power only for the purpose that is afforded and not to contest that purpose".

90 Forbes and Combined Excavations and Supplies v Bowis recognised that what are "considerations of a universal character relevant to jury trials as such" ( Pambula (at 407)) raises a "question of characterisation on which reasonable minds can and will differ": Combined Excavations and Supplies v Bowis (at [2] - [3]) per Spigelman CJ. The latter case proved the proposition with Spigelman CJ and Davies AJA holding that the primary judge had erred in taking such considerations into account in making an order dispensing with a jury and Heydon JA disagreeing.

91 Section 79A of the District Court Act arose in Gerlach v Clifton Bricks Pty Ltd . In that case the plaintiff successfully applied for an order dispensing with a jury. A judge heard the case, found in the plaintiff's favour and awarded him damages. On appeal the Court of Appeal (Handley JA, Priestley and Giles JJA agreeing) applied Pambula and held (at [8], [10]) that the dispensation order had erroneously been made by reference to the general consequences of trial with a jury in every case. The Court also held (at [10]) that by virtue of the error in dispensing with the jury the action had not been tried according to law. A new trial was ordered as the Court could not hold that a properly conducted jury trial could not possibly have produced a different result.

92 The High Court allowed an appeal by majority (Gaudron, McHugh and Hayne JJ, Kirby and Callinan JJ dissenting). The majority relevantly held (at [11]) that the Court of Appeal had erred because, even if it was assumed that the order dispensing with a jury should not have been made, a party to litigation who had been wrongly deprived of the mode of trial it desired but had nevertheless had a trial, must be assumed to have had a trial according to law. Accordingly it could not be concluded that a substantial wrong or miscarriage warranting a new trial (Supreme Court Rules 1970, Pt 51AA r 16(1)) had been occasioned.

93 The majority (at [14]) found it unnecessary to consider whether "what are said to be principles established by the Court of Appeal's decision in Pambula District Hospital v Herriman are consistent with the many decisions of this Court that deal with the construction of provisions in the form of s 79A of the District Court Act ". Kirby and Callinan JJ did refer to this issue (at [75]ff). In their Honours' view Pambula did not offend the principle stated in such cases as Knight v F P Special Assets Ltd and Patton v Buchanan Borehole Collieries Pty Ltd [1993] HCA 23; (1993) 178 CLR 14. Rather, their Honours emphasised, Knight did not stand for the proposition that "a conferral of jurisdiction and power was totally uncontrolled simply because the repository of the power was a court [and it is] [t]he words of the grant [which] chart the ultimate boundaries of the power".

(d) Conclusion on construction of section 21, 2005 Act

94 In my opinion s 21 of the 2005 Act does not confer a power on the court to act of its own motion to dispense with a jury. Such a power cannot be found in the mere conferral of the power upon the court without an explicit reference to an application for dispensation. Discretionary powers are frequently conferred on courts in language such as "unless the court otherwise orders" (s 21(1)) or "a court may" (s 21(3)), but they do not indicate an intention to confer a power to be exercised by the court of its own motion but, rather, upon proper application: cf Dashwood v Maslin [1909] HCA 62; (1909) 9 CLR 451 (at 459 - 460) per Barton J; Macdougall v Paterson (supra).

95 Secondly, s 21 is in the legislation dealing with defamation, proceedings in which there has been historic recognition of the importance of trial by jury rather than judicial officer. If it had been intended that a judicial officer could dispense with the jury of his or her own motion, one would have expected the legislature to have clearly so stated -since the course the primary judge took reversed the onus of proof: see [112] ff below. Further, s 21 appears in that part of the 2005 Act dealing with the litigation of civil disputes. That context presupposes opposing parties conducting litigation in the framework of the adversarial system to which I have referred. Again, had the legislature intended to interfere with the fundamental precept on which that system operates one would expect it to have manifested that intention with clear and unambiguous language.

96 Thirdly, Mahoney JA expressly (and Kirby P implicitly) held to the contrary, albeit in reasoning not essential to the decision, in Pambula in relation to the same words as are used in s 21(3).

97 In my view nothing in the subject matter, scope and purpose of the 2005 Act indicate that the legislature intended to confer a power on the court to act of its own motion.

Case management and the jury dispensation power

98 The next question is whether the case management provisions of the CP Act empowered the primary judge to act of his own motion. The primary judge did not purport to act under any such power, although he was at pains to explain that the occasion for considering whether the jury should be dispensed with arose in the course of a case management review - and there are hints which suggest his Honour thought such considerations were germane: see primary judgment (at [18] - [19], [21]). Nevertheless, he purported to act under s 21(3).

99 However, the respondent faintly contended that case management provisions were the source of the primary judge's power. As I have said, the respondent's written and oral submissions did not identify any express power under those provisions, but, rather, relied on what might be called the general powers of the court directed to giving effect to the overriding purpose of s 56 of the CP Act, s 56 - s 61. Subsequent to the hearing the Court raised the question whether s 86(3) of the CP Act was the source of power for the course the primary judge took.

100 As I have said (see [ 8 ]) s 86(3) is novel. In the second reading speech to the Civil Procedure Bill 2005, the Attorney General, the Hon Bob Debus MP, said of cl 86 (New South Wales Legislative Assembly, Parliamentary Debates , (Hansard), 6 April 2005 (at 15115)):

"Clause 86 deals with the court's power to make orders. In particular, it provides that the court can make all or any of its orders on terms, and that it can make any order on its own motion or on the application of a party or person entitled to make such an application. The inclusion of this provision in the bill means that it is no longer necessary to repeatedly refer to such matters in the rules."

The Attorney General's statement does not indicate a legislative intention to confer a far-reaching power on all courts in the State to make any order of their own motion.

101 The observations I have made concerning the scope of an unfettered discretion are equally apposite in determining the meaning of s 86. Counsel did not refer the Court to any authority which has hitherto considered s 86, nor have my researches uncovered any.

102 The ambit of s 6 of the District Court Act (which was in language similar to s 86(2) of the CP Act) was considered in R v Mosely (1992) 28 NSWLR 735. That case concerned the question whether a judge presiding in criminal proceedings in which, subject to limited statutory exceptions, the general rule is that orders for costs are not made and absent any express statutory power to so order, was empowered by s 6 of the District Court Act to order the Crown to pay costs as a condition of granting an adjournment. The Court (Gleeson CJ, Kirby P and Mahoney JA agreeing) held that it did not.

103 After setting out s 6 (and remarking on its similarity with s 21 of the Supreme Court Act), Gleeson CJ said:

"However, the power to impose terms and conditions is not unconstrained. It is limited by the statutory context in which it appears and by the purpose for which it is conferred. As Dixon J observed in Shrimpton v The Commonwealth (1945) 69 CLR 613 at 630, an exercise of a power cannot rise higher than its source. The District Court Act , when conferring the power to award costs, distinguishes between civil and criminal proceedings and confers the power only in the former case. This, in turn, is a distinction with a long history in the common law, and it is subject to special but limited statutory modification. If the court has power to order the Crown to pay costs when granting an adjournment to the Crown then equally it must have power to order an accused person to pay costs in similar circumstances. To recognise such a power would be inconsistent with the scheme of the statute, a scheme which is in turn designed to respect common law principles. As a matter of statutory construction I would not accept that the powers conferred by s 6 extend so far ."

104 It might be accepted, therefore, that s 86(1) and s 86(2) of the CP Act operate in circumstances where the relevant court has an extant express power (whether found in statute, inherent or implied powers) to make orders in relation to proceedings. The extent to which those provisions will enable the court to make the orders the subsections contemplate will depend on the ambit of the underlying power.

105 The respondent submits that s 86(3) should also be understood to apply to enabling a court with power under not only the CP Act and rules, but also any Act, including the 2005 Act, to act of its own motion. In my opinion that submission should be rejected. It is contrary to the language of s 86(3), the context in which it is found and fundamental common law principles.

106 As I have said, s 86(3) operates subject to the CP Act and to rules of court. Prima facie, in my view, s 86(3) is confined to powers conferred on a court by either the CP Act or rules of court. The prefatory limitation at the outset of s 86(3) restricts its operation so that it does not have the ambit of the power conferred by s 86(1) and s 86(2) - that is to say, it does not extend to powers to make orders "under...any other Act or otherwise". Rather, it appears to be intended to operate independently of s 86(1) and s 86(2). It operates, in the context of Part 6, to facilitate the court giving effect to the overriding purpose of "this Act and of rules of court" - the expression which provides the framework for s 56 - but only insofar as procedural matters are concerned. It would, as the appellants submitted, be a large proposition to construe s 86(3) as empowering any court or tribunal in this State, wherever there is a power to make an order, to make that order of its own motion. Such a construction would not, in my opinion, be consistent with the context of the CP Act, which is addressed to matters of procedure, nor to the policy which can be perceived to underlie it.

107 It is uncontroversial that case management is now an accepted aspect of the system of civil justice administered by courts in Australia: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (at [92]) per Gummow, Hayne, Crennan, Kiefel and Bell JJ. However, those powers operate in the context that a party has the right to bring proceedings and make choices as to what claims are to be made and how they are to be framed: Aon Risk Services Australia Ltd v Australian National University (at [112]). Those choices clearly include the s 21 right to elect for trial by jury. Case management is not, in my opinion, a licence to courts to assume the tactical conduct of proceedings insofar as choices of a substantive nature, such as whether or not a proceedings are tried by jury, are concerned. Such an approach would be inimical to the principles of the adversarial system of justice to which I have referred (at [48] - [49]).

108 Further, the 2005 Act commenced on 1 January 2006 and was accordingly later in time than the CP Act which commenced on 15 August 2005. The specific power to dispense with the jury is found in s 21 of the 2005 Act. The general case management powers in Part 6 of the CP Act do not address the issue of juries. It must be assumed that the legislature intended that both s 86 of the CP Act and s 21 of the 2005 Act should operate: Saraswati v R [1991] HCA 21; (1991) 172 CLR 1 (at 17) per Gaudron J; Ferdinands v Commissioner for Public Employment [2006] HCA 5; (2006) 225 CLR 130 (at [18]) per Gummow and Hayne JJ. Their operation can be reconciled by deducing a legislative intention that the general powers found in the CP Act do not impinge upon, or affect, the specific power in s 21.

109 In my view neither s 86(3) nor the overriding purpose provisions of the CP Act conferred power upon the primary judge to dispense with the jury.

Conclusion on power

110 Accordingly, in my opinion, the primary judge had no power to dispense with the jury of his own motion. The appeal should be allowed and that order set aside.

111 This conclusion sufficiently disposes of the appeal, however there are several other matters which should be the subject of brief comment.

The onus of proof issue

112 The effect of the primary judge in essence issuing a show cause notice to the appellants as to why they should be entitled to retain their election for trial by jury was that he reversed the onus of proof.

113 This was contrary to that aspect of the adversarial system that the moving party bears the legal burden of establishing the right to the relief sought at a hearing before a judge of which the moving party has given notice to the defending party and at which both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for - an aspect of the rules of natural justice which pervades Australian procedural law: International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 (at [141] - [142]) per Heydon J.

114 As I have explained (at [83]), the onus is on an applicant seeking to change the mode of trial properly invoked to persuade the court to do so. Further, 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: see Combined Excavations and Supplies v Bowis (at [37] - [38]) per Heydon JA; Commonwealth of Australia v Cook [1994] NSWCA 60 (at 5); Gerlach v Clifton Bricks Pty Ltd (at [72]) per Kirby and Callinan JJ.

115 By acting of his own motion the primary judge put the appellants in the position where they had to justify its retention.

116 Moreover the primary judge was also compelled to tender the critical evidence - the Wool Report. This underlines the embarrassing position in which a court which creates a controversy can find itself when it acts of its own motion. It underscores why s 21 of the 2005 Act should be construed so as not to permit such a course.

The prolonged examination dispensation power

117 The prolonged examination dispensation power referred in s 21(3) can be traced to the old practice of the common law courts: Jenkins v Bushby [1891] 1 Ch 484 (at 490) per Lindley LJ. It appears first to have taken legislative form in Order 36, rule 5 of the Rules of Supreme Court 1883 (UK) and later as part of s 6 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (UK). In New South Wales a similar power was conferred on the Supreme Court by s 15(b) of the Arbitration Act 1902. Although not expressed in terms as enabling a jury to be dispensed with, the Arbitration Act clearly had that effect where cases involved "any prolonged examination of documents or scientific or local investigation". Indeed it enabled the Court to refer either the whole cause or "any question or issue of fact" to an arbitrator or a referee whose report was, "unless set aside by the Court or a judge...equivalent to the verdict of a jury": s 16(2), Arbitration Act. It was a power Rich J lamented in Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 (at 469) ought to have been invoked after the first mistrial in that case.

118 It is a curious feature of the s 21(3)(a) power that it has been uncoupled from the historically linked question whether the "prolonged examination" can "conveniently be made with" a jury.

119 That does not, in my view, mean that it is sufficient to attract the discretion to discharge a jury that the applicant merely demonstrate that the proceedings will require the prolonged examination of records. Clearly a question will arise in every case as to what constitutes a "prolonged examination". It does not necessarily mean that the power will be attracted only if the case involves voluminous records. One record of great complexity may require prolonged examination. The same may be true of a large volume of elementary records.

120 Two cases, admittedly decided in relation to somewhat differently expressed dispensation powers, cast some light on the proper approach to s 21(3)(a).

121 In Combined Excavations and Supplies v Bowis Davies AJA emphasised (at [84] - [85]) that the discretion s 79A of the District Court Act then conferred (see [58] above) was "not entirely at large, for a party who duly requisitions for a jury is entitled to one, unless the Court orders to the contrary" and that a "jury should not be dispensed with unless there is a factor in the particular case of sufficient weight to overcome the right to a jury trial". His Honour added (at [85]) that "...the factor must be a weighty one, for the entitlement to a jury trial is an important right, not lightly to be set aside". This factor is a relevant consideration too when a court comes to exercise the s 21(3)(a) power. The mere fact that the case requires the "prolonged examination of records" is not sufficient to displace the right to a jury trial. The entitlement to a jury trial for which a party has regularly elected is a relevant consideration in determining whether the s 21(3)(a) power should be exercised. There must, it seems to me, be something difficult about the "prolonged examination" to enliven the discretion as appears from Peek v Email Ltd .

122 Peck v Email Ltd was a case involving a plaintiff who alleged he had contracted pleural mesothelioma by reason of his employer's negligence in exposing him to asbestos dust and fibre. The defendant had employed him for two periods during the 1960s. He had worked for another employer from the late sixties to mid-seventies in employment which also involved exposure to asbestos fibres. Clarke J would not have dispensed with the jury merely because the evidence would include a scientific question involving competing expert opinions. His Honour acknowledged (at 434) that juries in New South Wales were "asked, almost on a daily basis, to decide relatively complex medical questions [and] ... appear[ed] to do so without undue difficulty". His Honour held (at 434) that the applicant seeking an order that a jury be dispensed with pursuant to the prolonged examination dispensation power then provided by s 89(1)(a) of the Supreme Court Act "must establish that there are circumstances of unusual difficulty from the point of view of the jury apprehending the matters involved and, to a lesser degree, from the point of view of the judge summing-up". He concluded that such circumstances had been established in relation to the causation issue which would arise because the "mechanisms whereby the implantation of a fibre in a person's lungs give rise to symptoms and illness fifteen to twenty years later are not yet fully understood".

123 It will also be appropriate, in my view, to take into consideration when seeking to apply the s 21(3)(a) discretion the nature of the records the jury will be required to consider in the context of the issues it is required to determine. Although words the legislature appears deliberately to have excised in enacting s 21(3)(a) should not be read into it, it is not a sensible interpretation of that provision, in my view, for the court not to pay some regard to the nature of the burden cast upon the jury by the relevant records. It is unnecessary to do more than say that the question whether the prolonged examination which is required will enliven the discretion to dispense with the jury turns on the facts of each case, but that the nature of the examination must at least be such as to displace the right to the jury trial engaged by the party's election for that mode of trial.

124 It was significant in this case that the uncontradicted evidence the appellants led through Mr Lynch's affidavit was that no such difficult issues would arise from the examination of the Wool Report. The Court was taken through that document. It is unnecessary to recount its detail. Suffice it to say that despite its length, little of it actually considered the Italian wool industry, and none of it appeared to be written at a level of complexity or technicality which would challenge a jury. No doubt this is in part because the respondent wrote it in a manner that would engage her constituency.

125 Lord Denning's cogent statement in Rothermere v Times Newspapers Ltd (at 1015 - 1016) bears consideration on this issue:

"The first point is whether the trial will require the prolonged examination of documents which cannot conveniently be tried with a jury. The figures given by the plaintiffs make things look very alarming. But, I do not think they are nearly so bad as they appear. ... I think this assertion of 'prolonged examination of documents' may well turn out to be a bogey which, in capable hands, can be cut down to size. I have tried cases with masses of documents on many occasions. It is remarkable how often they can be reduced to manageable proportions...No doubt the trial will be long and complicated, but length and complication of themselves are no bar to a jury. Many of the important libel cases in recent years were long and complicated, but they were tried with juries."

Section 22(5), 2005 Act

126 In my view the primary judge also erred in the factors he took into account in purporting to exercise the s 21(3) discretion.

127 In New South Wales the Defamation Act 1974 was amended in 1994 to confine the jury's function to the matters set out in s 7A.

128 Section 22 of the 2005 Act creates a different division of functions between judge and jury. Subject to s 22(5), in defamation proceedings to be tried by jury, the only issue left for the judge is the determination of damages. In NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585 (at 594) Hunt J observed that in a defamation action "the issues which are usually said to be peculiarly the province of a jury, and thus usually make mandatory a hearing with a jury, are those of defamation and damages" - an observation which appears to have escaped the attention of the drafters of the 2005 Act.

129 Section 22(5)(b) of the 2005 Act expressly carves out from matters the jury has to determine, "any issue that, at general law, is an issue to be determined by the judicial officer". It is not apparent that the primary judge directed his mind to that provision when dispensing with the jury, or if he did, with respect, whether he appreciated its ambit.

130 The primary judge concluded (at [9] and [26]) that the public interest component of the defence of the claim would involve the jury in a consideration of the operation of the Parliamentary Entitlement Act and the Parliamentary Entitlements Regulations (Cth) 1997, in connection with the Wool Report. This was an error. It is for the judge, not the jury, to decides whether the matter commented on is a matter of public interest: P Milmo and W V H Rogers, Gatley on Libel and Slander , 11th ed (2008) Sweet & Maxwell (at [36.15]) ("Gatley"), referring to South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 (at 141, 143) per Lopes LJ, Jones v Skelton [1963] 1 WLR 1362 (at 1378) and London Artists Ltd v Littler; Grade Organisation Ltd v Littler [1969] 2 QB 375.

131 Further, whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law: Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 (at [24] - [28]) and see generally OV and OW v Members of the Board of Wesley Mission Council [2010] NSWCA 155; (2010) 270 ALR 542 (at [2] - [8]) per Allsop P; (at [28] - [31]) per Basten JA and Handley AJA. Questions of law are matters for the judge: Gatley (at [36.2]).

132 The judge, accordingly, misdirected himself, or took into account an irrelevant consideration, in deciding to dispense with the jury.

Application to adduce fresh evidence

133 The respondent sought to tender the appellants' list of documents and their response as relevant to the re-exercise of the discretion - should the Court come to do so. She had failed to comply with the rules relating to an application to receive additional evidence: UCPR 51.51. That of itself was sufficient reason for the Court to reject the tender.

134 Since there is no application to dispense with the jury, no occasion for the s 21(3) discretion to be re-exercised arises and the documents were irrelevant.

Uniform Civil Procedure Rule 29.2A

135 Finally I would briefly observe that the amendment to UCPR Pt 29.2 in March 2011 (after the primary judgment in this case) which (inter alia) inserted the words "whether or not of its own motion" in the new UCPR 29.2A is, in my opinion, inconsistent with s 21 of the 2005 Act and ultra vires. The rule making power in s 9(1) of the CP Act does not authorise rules which are inconsistent with that or any other Act. The 2005 Act did not confer any power to make rules of court.

Orders

136 I propose the following orders:

(1) Appeal allowed with costs.

(2) Set aside the order of Levy DCJ made on 16 July 2010 that the trial of the action proceed without a jury.

(3) The respondent to have a certificate under the Suitors' Fund Act 1951.

137 Handley AJA : in this appeal I have had the benefit of reading the reasons for judgment of McColl JA in draft. I agree with her Honour's reasons and with the orders that she proposes.

138 By its timely election the appellant acquired the right to trial by jury which was defeasible only by an order properly made under s 21(1) and (3) of the Defamation Act 2005.

139 The primary judge was not entitled of his own motion to exercise the Court's powers under those provisions. In any event the grounds for such an order were not established. The trial of the action under the present pleadings would not require " prolonged examination" of " records " or "any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury".

140 A jury is capable of determining the scope and merits of a "study tour" of the centres of the Italian woollen industry.

141 The primary judge's discretionary exercise miscarried for legal reasons in any event. He said (at [9]):

"It is also clear from the defence that the public interest component of the defence of the claim made by the plaintiff will involve the jury in a consideration of the operation off the Parliamentary Entitlements Act (Cwth) 1990 and the Parliamentary Entitlements Regulations (Cwth) 1997, in connection with the report prepared by the plaintiff."

142 The construction of domestic legislation is a question of law for the judge, and not a question of fact for the jury. The trial judge would have to direct the jury on any question of fact arising under that legislation, but that would not bring the case within s 21(3)(a) or (b).

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Amendments

02 November 2012 - text added
Amended paragraphs: 71

Decision last updated: 02 November 2012