CATO v MANAIA MEDIA LTD [2021] NZCA 226

CATO v MANAIA MEDIA LTD [2021] NZCA 226 [3 June 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA690/2020[2021] NZCA 226BETWEEN KRISTIN PIA CATOAppellantAND MANAIA MEDIA LIMITEDFirst RespondentROWAN DIXONSecond RespondentJANE THOMPSONThird RespondentHearing: 20 May 2021Court: Goddard, Venning and Peters JJCounsel: S J Mills QC and E D Nilsson for AppellantF A King and M A Dempster for RespondentsJudgment: 3 June 2021 at 11.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay the respondents costs for a standard appeal ona band A basis, with usual disbursements. We certify for second counsel.____________________________________________________________________Table of contentsPara NoIntroduction and summary [1]The issues before this Court [1]Summary [6]Relevant legislation [8]Background [15]The proceedings [15]The jury notice date is fixed as 10 May 2019 [20]Further steps in the proceedings [21]The respondents decide not to give a jury notice by 10 May 2019 [24]The respondents cease to be represented, then obtain legalrepresentation again [26]The October 2019 trial date is vacated [27]Extension of time to give jury notice [30]High Court extension judgment [35]High Court leave judgment [47]Issues on appeal [52]Ms Cato's submissions on appeal [55]Discussion [67]An extension of time was required [67]Approach to extension of time application [75]Should an extension of time be granted in this case? [86]Result [97]REASONS OF THE COURT(Given by Goddard J)Introduction and summaryThe issues before this Court[1] The appellant, Ms Cato, has brought defamation proceedings against therespondents. A three-week trial is scheduled to begin on 6 September 2021.[2] A trial was previously scheduled to take place in October 2019.The High Court made timetable orders on 15 March 2019 leading up to that trial date.Those orders required the respondents to give notice by 10 May 2019 if they soughta trial before a jury, rather than a Judge alone. Under s 16 of the Senior Courts Act2016 the respondents were entitled to a jury trial, provided they gave a timely noticein accordance with the High Court Rules 2016. The respondents, who at that timeexpected to be self-represented at the trial, chose not to give a jury notice by the10 May 2019 deadline.[3] The October 2019 fixture was subsequently vacated at the parties' joint request.In December 2019 the respondents, who had obtained legal representation for the trial,applied for an extension of time to give a jury notice. Hinton J granted that application(High Court extension judgment).1[4] Ms Cato applied for leave to appeal to this Court from the High Court extensionjudgment. The Judge granted leave.2[5] Ms Cato argues that an extension of time should not have been granted to filea jury notice. The respondents say that an extension of time was not required.Alternatively, if they did need an extension of time, the Judge was right to grant it.Summary[6] We do not accept the respondents' argument that an extension of time was notrequired. The date for filing a jury notice fixed by the High Court on 15 March 2019did not lapse automatically as a result of the vacation of the October 2019 trial date.Nor was the jury notice date vacated by the directions given by the High Court on23 July 2019, when the October 2019 fixture was vacated, expressly or by implication.[7] However, we consider that the Judge was right to grant an extension of time tofile a jury notice, in the circumstances of this case. The appeal must therefore bedismissed.Relevant legislation[8] Section 16 of the Senior Courts Act provides:16 Certain civil proceedings may be tried by High Court Judge withjury(1) Any party to a proceeding for defamation, false imprisonment, ormalicious prosecution may, on giving notice in accordance with the1 Cato v Manaia Media Ltd [2020] NZHC 1240 [High Court extension judgment] at [105]–[106].2 Cato v Manaia Media Ltd [2020] NZHC 2961 [High Court leave judgment] at [51].High Court Rules, require the proceeding to be tried by a High CourtJudge with a jury.(2) Any party to a counterclaim in a proceeding for defamation, falseimprisonment, or malicious prosecution may, on giving notice inaccordance with the High Court Rules, require the counterclaim to betried by a High Court Judge with a jury.(3) If a notice is given under subsection (1) or (2), the proceeding orcounterclaim must be tried in accordance with the subsection thatapplies.(4) A High Court Judge may, on the application of either party, order thata proceeding for defamation, false imprisonment, or maliciousprosecution or any issue in the proceeding be tried before a Judgewithout a jury if it appears to the Judge before the trial that the trial ofthe proceeding or the issue will—(a) involve mainly the consideration of difficult questions of law;or(b) require any prolonged examination of documents or accounts,or any investigation in which difficult questions in relation toscientific, technical, business, or professional matters arelikely to arise, being an examination or investigation thatcannot conveniently be made with a jury.(5) A proceeding for defamation, false imprisonment, or maliciousprosecution that also contains other causes of action may be tried onlybefore a High Court Judge without a jury.(6) No civil proceeding other than for defamation, false imprisonment, ormalicious prosecution may be tried by a High Court Judge with a jury.[9] It is common ground that it was open to the respondents to give a noticerequiring a jury trial under s 16(1), provided that notice was given in accordance withthe High Court Rules. It is also common ground that s 16(4), which identifies certaincircumstances in which a Judge may direct a Judge-alone trial even though a noticehas been given under s 16(1), was not relevant here. So the respondents had a right torequire a jury trial, provided they gave a timely notice.[10] Rule 7.16 of the High Court Rules prescribes the date by which a jury noticemust be given:7.16 Jury noticeIf either party to a proceeding to which section 16 of the Act appliesrequires the proceeding to be tried before a Judge and a jury, the partymust give notice to that effect to the court and to the other party notlater than—(a) 5 working days before the close of pleadings date for theproceeding; or(b) a date fixed by a Judge for the purpose.[11] The default deadline for a jury notice in r 7.16(a) is set by reference to the closeof pleadings date. The close of pleadings date is usually fixed by a Judge at a casemanagement conference. If a Judge does not fix a close of pleadings date, the closeof pleadings date is the later of the date that is 60 working days before the allocatedtrial date, and the date on which the trial date is allocated.3 Rule 7.7 of the High CourtRules provides that after the close of pleadings date leave is required to file anamended pleading or interlocutory application, or to take any other step (with certainlimited exceptions).[12] The rationale for the default deadline for filing a jury notice — five workingdays before the close of pleadings date — appears to be two-fold:(a) by this date, the proceedings should be in final form, enabling eachparty to make an informed decision about whether to seek trial beforea jury; and(b) this date leaves a short window (one week) before the close of pleadingsdate, within which any other party can file an application under s 16(4)of the Senior Courts Act in response to a jury notice, without needingleave to do so.[13] The respondents' application for an extension of time was made under r 1.19of the High Court Rules, which provides:1.19 Extending and shortening time(1) The court may, in its discretion, extend or shorten the time appointedby these rules, or fixed by any order, for doing any act or taking anyproceeding or any step in a proceeding, on such terms (if any) as thecourt thinks just.3 High Court Rules 2016, r 7.6(4) and (4A).(2) The court may order an extension of time although the application forthe extension is not made until after the expiration of the timeappointed or fixed.[14] Rule 1.19 must be interpreted in light of the objective of the High Court Rulesset out in r 1.2: to secure the just, speedy, and inexpensive determination of any proceedingor interlocutory application.BackgroundThe proceedings[15] Ms Cato's proceedings relate to an article published by the respondents on theNew Zealand Horse & Pony Magazine website on 2 December 2017, and promotedby them on social media. Ms Cato claims the article defamed her. The respondentsdeny the defamation, and say a clarification and apology was attached to the articlewhen they became aware of Ms Cato's complaint. The article was then removed fromonline publication.[16] It has already been established that the article is capable of bearing thedefamatory meanings pleaded by Ms Cato.4 The issues that remain for determinationat trial are whether the article did in fact defame Ms Cato and, if so, the damages orother relief that should be awarded.[17] The statement of claim was filed on 22 December 2017. The respondents fileddefences on 20 February 2018. Ms Cato filed replies on 6 March 2018. Ms Catosought a recommendation under s 26 of the Defamation Act 1992 that a correction bepublished. The parties agreed that a conference should be convened under s 35 of theDefamation Act to determine that application. Ms Cato also applied fora determination of whether the article was capable of bearing the defamatory meaningsshe had pleaded (the meanings application). A hearing date of 17 December 2018 wasallocated to deal with these two matters.4 Cato v Manaia Media Ltd [2019] NZHC 440 [High Court meanings judgment], reversed in partin Cato v Manaia Media Ltd [2019] NZCA 661 [Court of Appeal meanings judgment].[18] Prior to that hearing, the Judge made certain timetable directions requested byMs Cato, including directions setting the close of pleadings date at 31 March 2019,and setting down a three-week trial to commence on 21 October 2019.[19] The s 35 conference and the meanings application were heard on 17 December2018, but the hearing was not completed on that day. A further hearing took place on13 February 2019. On 7 February 2019 Ms Cato advised the Court that she wished towithdraw her application for a s 26 recommendation, so the s 35 conference was nolonger required. The hearing of the meanings application was completed on13 February 2019, and the judgment on that application was delivered on 13 March2019 (High Court meanings judgment).5 The Judge concluded, in summary, that someof the meanings pleaded by Ms Cato were not available, but the article was otherwisecapable of bearing the defamatory meanings pleaded. The Judge directed that Ms Catowould need to re-plead to take account of her findings, and should give furtherparticulars of certain remaining aspects of the pleading.6The jury notice date is fixed as 10 May 2019[20] By joint memorandum dated 14 March 2019, the parties sought timetabledirections, including directions as to filing and service of amended pleadings andparticulars. They requested that a new close of pleadings date of 10 May 2019 befixed, with "any jury notice [to] be filed and served by the same date". The directionssought also included various pre-trial steps, including service of briefs of evidence andbundle nominations. By minute dated 15 March 2019 the Judge made timetable ordersin terms of the parties' joint memorandum.Further steps in the proceedings[21] As contemplated by the directions made on 15 March 2019, Ms Cato fileda second amended statement of claim on 29 March 2019. The respondents filed theirsecond amended statements of defence on 12 April 2019. Ms Cato filed her reply tothe first respondent's second amended defence on 26 April 2019.5 High Court meanings judgment, above n 4.6 At [48]–[52].[22] On 10 April 2019, Ms Cato filed an appeal to this Court against parts of theHigh Court meanings judgment. This appeal meant that the timetable directions madeon 14 March 2019 were superseded in certain respects.[23] On 29 April 2019, Ms Cato filed a third amended statement of claim, addinga claim for punitive damages, and replies to the second amended statement of defenceof the second and third respondents. The respondents filed third amended statementsof defence on 3 May 2019. These steps had not been timetabled, but were permittedwithout leave as the close of pleadings date had not yet been reached.The respondents decide not to give a jury notice by 10 May 2019[24] The respondents gave evidence that by early May 2019 they were in disarray,could not afford to pay their legal fees, and decided they would represent themselvesin the proceedings. The advice they were given by the solicitor acting for them at thattime was that, if they would be self-representing at trial, a Judge-alone trial would bepreferable. But if they were represented at trial, a jury trial would be preferable.Because the respondents expected to be self-represented at trial, they decided not togive a jury notice by the deadline of 10 May 2019.[25] On 14 May 2019, the High Court registrar wrote to counsel asking whetherthey would be seeking a trial before a jury, and pointing out this would require leave.Both Ms Cato and the respondents confirmed that they would not be seeking a trialbefore a jury.The respondents cease to be represented, then obtain legal representation again[26] The respondents ceased to be legally represented in the High Court on30 May 2019. They were self-represented until 23 September 2019, when theircurrent lawyers agreed to assist them. The second respondent had applied for, andobtained, legal aid to fund that representation.The October 2019 trial date is vacated[27] On 5 June 2019, the respondents filed a memorandum seeking allocation ofa judicial settlement conference, saying they lacked the means to adequately putforward their case. In response to that proposal, Ms Cato filed a memorandum dated20 June 2019 proposing that another s 35 conference be convened to explore possiblesettlement, and make any necessary timetable directions if settlement was notachieved. The respondents agreed to a s 35 conference. On 8 July 2019, a jointmemorandum was filed seeking a one-day s 35 conference before Hinton J.The parties asked that the timetable directions made on 15 March 2019 be vacated, onthe basis that the likelihood of settlement would be reduced if Ms Cato was put tosignificant further trial preparation costs ahead of the s 35 conference. No referencewas made in that memorandum to vacating the October 2019 hearing. Ms Cato fileda further memorandum on 10 July 2019, again asking that the pre-trial directions bevacated, and also seeking vacation of the October 2019 fixture.[28] The Judge held a telephone conference on 23 July 2019. In a minute issuedthat day, the Judge allocated a one-day fixture for the s 35 conference on2 December 2019, which was the first full day available before her. She also directedthat the "three-week trial fixture scheduled to commence on 21 October 2019, andrelated pre-trial timetable directions" were vacated.[29] The s 35 conference took place on 2 December 2019. In her minute dated3 December 2019 the Judge recorded that no resolution had been achieved at theconference, but there had been progress in that direction. She adjourned theproceedings to a telephone conference on 9 December 2019 and directed that, in themeantime, the parties were to do their utmost to conclude a pragmatic settlement.If that was not possible, the proceeding was to be timetabled through to a two-weekhearing. A settlement did not eventuate.Extension of time to give jury notice[30] On 6 December 2019, the respondents filed a memorandum advising that theysought trial by jury under s 16 of the Senior Courts Act. Counsel for Ms Catoresponded that the jury notice was out of time, and submitted that a formal applicationfor leave to extend time was required. After some procedural back and forth, the Judgedirected that a formal application be filed and set a timetable for submissions.[31] On 18 December 2019 this Court allowed the appeal in relation to the meaningsissue.7 This Court held that the article was capable of bearing a number of pleadedmeanings that the High Court had found were not available. Orders were madereinstating those meanings and permitting Ms Cato to plead them in her statement ofclaim.8[32] On 14 February 2020, Ms Cato filed her fourth amended statement of claim,in which those meanings were reinstated. A fourth amended statement of defence wasfiled on 17 December 2020.[33] The respondents' application for an extension of time to give a jury notice washeard on 13 May 2020 (by telephone, due to the COVID-19 pandemic).On 12 June 2020, the Judge delivered her judgment granting an extension of time.9[34] The Judge also directed, by minute dated 29 May 2020, that the proceeding beset down for a three-week trial. The Judge made a number of pre-trial timetabledirections. The minute made it clear that the allocation of a trial was without prejudiceto the question of mode of trial. The Court has since allocated a three-week fixturecommencing on 6 September 2021.High Court extension judgment[35] The Judge considered that it was arguable that the time for giving a jury noticehad not in fact elapsed.10 It was arguable that at the parties' joint request, the Judgehad vacated the timetable directions she made in the minute of 15 March 2019 settingthe close of pleadings date at 10 May 2019, and requiring any jury trial notice to befiled and served by that same date. Although the Judge had used the term "pre-trial"directions in the minute dated 23 July 2019, that was not the language used in theparties' joint memorandum dated 8 July 2019. That memorandum asked the Judge tovacate "the timetable directions". Further, the Judge considered that it would logicallyfollow from r 7.6 of the High Court Rules that where no hearing date was allocated7 Court of Appeal meanings judgment, above n 4.8 At [40].9 High Court extension judgment, above n 1.10 At [53].and the timetable orders had been vacated, there would be no close of pleadings dateand hence no date for jury election.11[36] However, because of the ambiguity in the minute of 15 March 2019, the Judgeconsidered that it was not appropriate to dispose of the matter on that basis alone.She therefore went on to consider the application for extension of time.12[37] The Judge considered that the close of pleadings date had necessarily fallenaway, as a result of the appeal of the High Court meanings judgment, as that meantthat pleadings remained a live issue pending resolution of that appeal. Consistentlywith that, this Court's judgment on 18 December 2019 granted leave to file a furtheramended statement of claim pleading the reinstated meanings. Ms Cato did so on14 February 2020.13[38] Until the Court of Appeal meanings judgment was issued, the pleadingsremained at large. There were a number of possible outcomes including the pleadingsremaining unchanged, reinstatement, and partial reinstatement. It was also a necessaryconsequence of this Court allowing Ms Cato to file an amended statement of claimthat the respondents would be allowed to file an amended statement of defence inresponse, which would not necessarily be identical to the previous pleading. The shortpoint, the Judge said, is that the shape of the parties' cases could not be finally defineduntil the Court of Appeal issued its decision and any consequential amended pleadingswere filed.14[39] The Judge observed that the High Court Rules do not clearly provide for whathappens where a case needs to be re-pleaded after the close of pleadings date becauseof a successful appeal of a pre-trial decision affecting the pleadings. Nor do theyexpressly provide for what happens where the trial date is vacated at the parties'request, so far as timetabling directions predicated on that trial date are concerned.11 At [60].12 At [61].13 At [62].14 At [63].Applying the High Court Rules purposively, the Judge considered that in thecircumstances of this case, the pleadings had effectively reopened.15[40] The Judge accepted that this was not dispositive of the present application, asshe had fixed a specific date for giving jury notices, albeit the same as the close ofpleadings date. The jury notice date "remains nominally in place, with the result thatthe [respondents], at least technically, were out of time in filing their jury notice and require an extension".16[41] The Judge said she used the word "technically" not just because the jury noticedate was the same as the close of pleadings date, but also because, as a matter ofsubstance, the jury notice was filed during the same interlocutory phase of theproceedings that prevailed as at 10 May 2020.17 These matters informed theexcusability of the delay in giving the jury notice, and the extent to which Ms Catocould say she had been prejudiced by the respondents' "technically late election".18[42] The Judge therefore went on to consider the application for an extension oftime under r 1.19 of the High Court Rules. The Judge did not consider that theapplication for an extension of time should be approached on the basis that there wasa presumption against extending time to give a jury notice.19 Nor did the Judge acceptthat the application should be approached on the basis that a jury trial would greatlyincrease the cost and time taken, and was inconsistent with the expeditious resolutionof proceedings required under the Defamation Act.20 The Judge considered that s 16of the Senior Courts Act makes it clear that Parliament considered that jury trialsshould remain available in respect of defamation cases. The default position is thata jury trial is available on demand.21 Nor was there any trend in New Zealandappellate authority "requiring generalised hostility towards civil jury trials".2215 At [64].16 At [65].17 At [66].18 At [67].19 At [78].20 At [76].21 At [73].22 At [74].[43] The Judge concluded that s 16 refers to a requirement to give a jury notice"in accordance with the High Court Rules". The scheme of the High Court Rulesincludes r 1.19, and thus includes the potential for an extension of time to be grantedwhere the justice of the case so requires. There was no reason to treat defamationcases differently, and there was no presumption against an extension of time beingavailable for the giving of a jury notice under r 7.16.23[44] The Judge proceeded on the basis that claims of prejudice to Ms Cato as a resultof having to pursue her claim before a jury, rather than before a Judge alone, were oflimited relevance. That prejudice would have been suffered if a timely jury notice hadbeen given: it was not attributable to the delay in giving such a notice. Rather, thequestion was whether there was any prejudice to Ms Cato stemming from the lateelection.24[45] In this case, the Judge said, the delay was technical and was excusable.She was somewhat concerned that this was a case not of oversight, but of a change inposition as a result of the respondents' changed circumstances. But this point wasrendered redundant by the technical nature of the delay.25 Ms Cato had not identifiedany prejudice that was fairly attributable to the lateness of the jury notice. The Judgewas not persuaded that Ms Cato might have taken different steps to bring the matteron earlier, had the jury notice been given earlier. It was very unclear what those stepswould have been, and the point was not even raised in the written submissions forMs Cato.26[46] The Judge was satisfied that it was just to exercise her discretion to grant anextension of time under r 1.19. The notice given in December 2019 was accepted forfiling.2723 At [78].24 At [85].25 At [92].26 At [99]–[101].27 At [105]–[106].High Court leave judgment[47] Ms Cato needed leave to appeal from the High Court judgment, because it wasan interlocutory decision.28 Ms Cato applied to the High Court for leave to appeal tothis Court. That application was opposed. The Judge dealt with it on the papers,issuing a decision granting leave on 17 November 2020.29[48] In her leave application Ms Cato identified a number of alleged errors of factin the High Court extension judgment, and seven alleged errors of law, which in hersubmission justified the grant of leave to appeal. The Judge did not consider that thealleged factual errors justified the grant of leave to appeal.30 However the Judgeconsidered that three of the alleged errors of law were sufficiently arguable to warrantappellate consideration. These three grounds related to the Judge's finding that therespondents' delay was "technical". The Judge accepted that it was arguable that shewas wrong to conclude that the pleadings were "at large" at the time the jury noticewas filed because of the subsequent filing of Ms Cato's fourth amended statement ofclaim; she was wrong to say that pleadings had "effectively reopened"; and she waswrong to regard these points as relevant to the exercise of discretion under r 1.19.31The Judge also accepted that it was arguable that she had given insufficient weight tothe following matters in determining whether to grant an extension under r 1.19:32(a) the efficiencies and costs savings from a Judge-alone trial;(b) the need to ensure the swift, efficient and economical disposal ofdefamation proceedings;(c) the prejudice caused to Ms Cato, including in the form of additionaland likely irrecoverable costs, from being required to prosecute herclaim before a jury; and28 Senior Courts Act 2016, s 56(3).29 High Court leave judgment, above n 2.30 At [24]–[25].31 At [27]–[31].32 At [39].(d) the fact that the respondents' failure to file a jury notice on time was theresult of a positive election made on legal advice, rather than aninadvertent failure to comply with the High Court Rules.[49] The Judge did not consider that the other proposed grounds of appeal wereseriously arguable.[50] The Judge did not consider that the issues raised by the proposed appeal thatshe had identified as arguable were of wider or public importance. But she accepted(with some hesitation) that the amounts at stake were of sufficient private significanceto Ms Cato that appellate determination was warranted.33[51] The Judge granted leave to appeal in respect of the grounds of appeal she hadidentified as arguable.34Issues on appeal[52] The central issue raised by Ms Cato's appeal is whether the Judge erred in theapproach she adopted to the respondents' application for an extension of time to filetheir jury notice.[53] The respondents did not give a notice of intention to support the judgment onother grounds. But at the hearing before us, they sought to argue that they did notrequire an extension of time as the direction setting the jury notice date had been setaside by the High Court minute of 23 July 2019. Because the effect of that minutewas treated by the Judge as a relevant factor in her r 1.19 analysis, and would need tobe considered in any event, we permitted the respondents to advance that argument.[54] We note that where leave to appeal is granted under s 56 of the Senior CourtsAct, the appeal is not confined to the grounds that were identified as justifying thegrant of leave. Rather, the appeal proceeds as an appeal by way of rehearing that isnot restricted to the question(s) identified as justifying the grant of leave.35 In this33 At [49]–[50].34 At [51]–[52].35 Horsfall v Potter [2017] NZSC 196, [2018] 1 NZLR 638 at [70]–[72]. See also Normanv Attorney-General [2021] NZCA 78 at [104]–[105].case, it would be artificial to consider some factors bearing on whether an extensionof time should have been granted in isolation from other relevant factors. We thereforeapproach the appeal on the basis that the question for determination by us is whetherthe Judge erred in granting an extension of time under r 1.19 to file a jury notice.Ms Cato's submissions on appeal[55] Mr Mills QC, counsel for Ms Cato, emphasised that the Judge's decision toextend time for filing a jury notice would cause Ms Cato substantial additional costs.A jury trial, he said, will be more complex and will require more hearing time.This means higher hearing fees and increased legal costs. In this case, those costs areunlikely to be recovered by Ms Cato if she is successful, because the respondents claimto be impecunious. One of them has been granted legal aid.[56] Mr Mills emphasised that the respondents were resiling from an earlierprocedural election in order to obtain a perceived tactical advantage. They had madea tactical choice not to seek a jury trial, at a time when they expected to beself-represented at trial. Since then, their circumstances had changed and they wantedto make a different choice.[57] Mr Mills also submitted that the respondents were making a (belated) tacticalchoice in light of a point he had made at the s 35 conference on 2 December 2019.He had expressed the view that in circumstances where this Court had found that thearticle was capable of conveying the pleaded meanings, a trial Judge was likely to findthat the article did in fact convey those meanings. In order to manage this risk therespondents had decided to seek a jury trial, hoping that (in the words of their previouslawyer):[A] jury may be likely to be sympathetic to [the respondents'] position(ie regardless of what the law really says) [58] Mr Mills said that if Ms Cato had known that the respondents would be entitledto revisit their previous procedural elections, she would not have agreed to incur thecost and inconvenience of attending a facilitated settlement discussion, which includeda transparent presentation of argument, the result of which was to give the respondentsa tactical advantage.[59] Mr Mills submitted that the Judge made a number of fundamental errors in herapproach to the r 1.19 application. First, the Judge was wrong to proceed on the basisthat the failure to file a jury notice by the date set was a "technical" failure becausethe relevant directions had effectively fallen away and pleadings reopened as a resultof the appeal to this Court. This conclusion was wrong because:(a) It was contrary to the Judge's own finding that the relevant directionshad not been set aside or fallen away.(b) It mischaracterised the effect of Ms Cato's meanings appeal, whichsimply sought to reinstate meanings struck out by the High Court andhad no effect on the scope of the trial.(c) It also mischaracterised the reasons why the respondents had failed tofile a jury notice when it was due. That failure was deliberate, not"technical".[60] Second, in reliance on her finding that the late filing was "technical", the Judgefailed to consider the respondents' actual reasons for failing to comply with the earlierdirections, and the absence of a good reason for seeking to revisit their election.The respondents hoped to obtain a tactical advantage at trial. They were not seekingto avoid a procedural prejudice. The Judge placed no, or insufficient, weight on this.[61] Third, the Judge erred in disregarding the importance of procedural efficiencyin the determination of civil claims. That goal is reflected in r 1.2 of the High CourtRules, and is given particular weight in defamation proceedings by s 35 of theDefamation Act. In this case:(a) The respondents had lost their right to a jury trial because they had notexercised that right by the date fixed by the Court for doing so. Rule 1.2was an important factor in determining whether they should bepermitted to have a jury trial. Declining the application would notinvolve curtailing the respondents' right to a jury trial.(b) Efficiency has been recognised as an important factor in consideringwhether to grant extensions of time for jury election in England andWales.36 The importance of procedural efficiency in the context ofdefamation jury trials has been recognised by this Court.37(c) There had been previous delays in the determination of the proceeding,including the loss of a trial date, caused by the respondents.[62] Fourth, the Judge erred in dismissing as irrelevant the fact that granting therespondents' late application would result in substantial additional costs to Ms Catothat would likely be unrecoverable.[63] Mr Mills submitted that important lessons can be drawn from recent Englishand New Zealand decisions in relation to the complexities, risks and inefficiencies ofjury trials in defamation cases. Section 16 of the Senior Courts Act reflected theapproach adopted by the Law Commission in a report in 2011.38 In the intervening10 years, significant lessons have emerged from the experience of the English courts,and also the New Zealand courts, in relation to the inefficiencies associated with jurytrials of defamation cases.[64] In these circumstances, Mr Mills said, the Judge should have asked "what isthe correct decision now?", that is, at a time when the respondents no longer had a rightto a jury trial. The inefficiencies and costs associated with a jury trial were highlyrelevant to that question. Mr Mills accepted, in the course of the hearing, that the rightconferred by s 16(1) was a relevant factor in determining whether to grant an extensionof time. But he submitted that it had been given too much weight by the Judge.[65] Mr Mills also emphasised a number of factors which he submitted the Judgehad overlooked: the seriousness of the allegations, and the significant advantage ofa reasoned judgment from a Judge-alone trial. That was particularly important here36 Cook v Telegraph Media Group Ltd [2011] EWHC 763 at [83] and [114]–[116];Thornton v Telegraph Media Group Ltd [2011] EWCA Civ 748; and Bento v Chief Constable ofBedfordshire Police [2012] EWCA Civ 956, [2012] All ER (D) 189.37 Young v Television New Zealand Ltd [2014] NZCA 50 at [73]–[74].38 Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126,2012) at [11.11]–[11.19].because Ms Cato is a barrister, and the article attacked her professional conduct.The question of whether she had fallen short of the professional standards required ofa barrister was best determined by a Judge, rather than a jury. That would achievevindication for her within the audience among which she had been most damaged: herprofessional peers, and the judiciary.[66] In response to the argument that an extension of time was not required,Mr Nilsson, junior counsel for Ms Cato, took us through the relevant proceduralhistory and submitted that:(a) The minute of 23 July 2019 only referred to vacating "pre-trialtimetable directions".(b) The vacation of the trial date did not mean that the jury notice date alsofell away. The High Court Rules do not provide for this consequence,and it is not a necessary implication that vacation of the trial date shouldhave that effect.DiscussionAn extension of time was required[67] Mr King, counsel for the respondents, accepted at the hearing before us thathis argument that no extension of time was needed depended on establishing that thedirections given in the 23 July 2019 minute issued by the Judge vacated the directionpreviously given in the 15 March 2019 minute fixing the jury notice date. It istherefore necessary to look at those minutes in more detail, to understand the effectthe second minute had on the first.[68] On 15 March 2019, the Judge made directions sought by the parties byreference to para 10 of the joint memorandum they had filed on 14 March 2019. Thatjoint memorandum set out at para 10 a list of 16 directions sought, grouped underfive headings: "Costs on the meanings judgment", "Amended pleadings","Discovery", "Close of pleadings date and jury notice", and "Pre-trial steps". Underthe heading "Close of pleadings date and jury notice" the memorandum read:(j) That the close of pleadings date [be] set at 10 May 2019, and that anyjury notice be filed and served by the same date.(k) Leave is reserved for any party to apply, by memorandum, to alter theclose of pleadings date in the event any interlocutory maters remainunresolved as at 10 May 2019.[69] Under the heading "Pre-trial steps" the memorandum set out a number of stepsleading up to trial, beginning with service of Ms Cato's briefs of evidence and bundlenominations by 21 June 2019.[70] The parties' joint memorandum dated 8 July 2019 confirmed that the partieswere committed to exploring the possibility of settlement, and agreed that the Court'sinvolvement might be of assistance. It continued:3. However, the parties anticipate that the likelihood of a settlementbeing reached will be reduced if the plaintiff is put to significantfurther trial preparation costs in advance of the s 35 or settlementconference. For these reasons, the following directions arerespectfully sought by consent:(a) That the timetable directions made on 15 March 2019 bevacated.[71] As already mentioned, this was followed by Ms Cato's memorandum dated10 July 2019 seeking a number of directions, including a direction "[t]hat the currenttrial fixture and pre-trial timetable directions are vacated". A telephone conferencetook place before the Judge on 23 July 2019. The Judge made a direction by consent,as noted above, that "[t]he three-week trial fixture scheduled to commence on21 October 2019, and related pre-trial timetable directions, are hereby vacated".[72] We consider that the better view, reading the Judge's 23 July 2019 minute inthe context of the directions and memoranda that preceded it, is that the pre-trialtimetable directions that were set aside were the "Pre-trial steps" set out in the jointmemorandum dated 14 March 2019. The focus of the July 2019 memorandum wason avoiding incurring further costs by taking further trial preparation steps, untila further attempt had been made to settle the proceedings. The possibility of settingaside the close of pleadings date and jury notice date, dates which had already passed,does not appear to have been adverted to. The minute of 23 July 2019 does notexpressly set aside the directions given on 15 March 2019 in relation to the close ofpleadings date and jury notice date, and we do not consider that it is implicit in theminute that those were also set aside.[73] We also accept Mr Nilsson's submission that nothing in the High Court Rulesprovides, expressly or by implication, that the result of vacating a trial date is thata close of pleadings date and jury notice date previously set by a Judge fall away.Where a trial date is vacated the Judge can give consequential directions in relation tomatters such as the close of pleadings date. But in the absence of such directions, anydates previously fixed by a Judge remain operative.[74] It follows that the respondents did require an extension of time in order to beable to file a jury notice after 10 May 2019.Approach to extension of time application[75] As Mr Mills accepted at the hearing, the starting point for considering anapplication to extend time to file a jury notice must be the right to elect a jury trialconferred on each party by s 16 of the Senior Courts Act. In circumstances wheres 16(4) was not engaged, it was open to the respondents to require trial by jury at anytime up to the jury notice date fixed by the High Court.[76] In conferring that right, Parliament has proceeded on the basis that theadvantages of allowing a party to elect a trial by jury in the cases identified in s 16(1)outweigh the disadvantages of trial by jury. The balance has been struck in favour ofjury trial, if desired by any party, subject only to the limits in s 16(4), and proceduralrequirements in the High Court Rules designed to ensure that a jury notice is givensufficiently in advance of trial to enable preparation to occur in an orderly manner.[77] There is considerable force in Mr Mills' submission that the experience of theNew Zealand courts and the English courts over the last 10 years has underscored thedifficulties, including increased cost and delay, that can result from trying defamationcases before juries.39 Defamation law has evolved over that period, becoming morecomplex and more nuanced, in response to both legal developments (in particular, theinfluence of human rights legislation) and social developments (in particular, the riseof online media). It is increasingly common for defamation cases to raise mixedquestions of fact and law. That gives rise to difficulties in relation to the respectiveroles of Judge and jury. Recent years have also brought an increased awareness of thebenefits of obtaining a reasoned judgment in defamation cases. The availability ofreasons where a Judge sits without a jury assists with public understanding of the resultreached by the court. It facilitates the exercise of appeal rights. Where an appealsucceeds, a retrial is less likely to be required if the trial took place before a Judgealone, and there is a reasoned judgment which sets out the factual findings made andthe reasons for those findings. And where the law is uncertain or developing, a Judge,unlike a jury, can make findings in the alternative to assist appellate courts to resolveany appeals without the need to send the proceeding back for a retrial.[78] However, we consider that it would be inconsistent with the policyunderpinning s 16 of the Senior Courts Act for the courts to proceed on the basis thatonce the jury notice date has passed, significant (perhaps, decisive) weight should begiven to the disadvantages of jury trials in defamation cases. It may well be desirablefor Parliament to revisit the balance struck by s 16 in light of the concerns identifiedby Mr Mills, as has occurred in the United Kingdom where the right to a trial by juryin defamation cases was removed by the Defamation Act 2013 (UK). But unless anduntil similar reform occurs in New Zealand, we take as our starting point the right toa jury trial under s 16(1) of the Senior Courts Act, and the policy in favour of a rightto trial by jury which that provision reflects.39 Mr Mills referred us to a number of cases which identify the disadvantages of jury trials indefamation cases, and corresponding advantages of Judge-alone trials, including this Court'sdecision in Durie v Gardiner [2018] NZCA 278, [2018] 3 NZLR 131 esp at [62], and Englishdecisions such as Cook v Telegraph Media Group Ltd, above n 36; Thornton v Telegraph MediaGroup Ltd, above n 36; Bento v Chief Constable of Bedfordshire Police, above n 36; Yeo v TimesNewspapers Ltd [2014] EWHC 2853, [2015] 1 WLR 971 (QB); and Gregory v Commissioner ofthe Police for the Metropolis [2014] EWHC 3922, [2015] 1 WLR 4253 (QB).[79] Mr Mills correctly points out that this right is expressly limited by therequirement in s 16(1) that notice must be given in accordance with the High CourtRules. But as the Judge observed, that reference to the High Court Rules brings intoplay the Rules as a whole, including not only the time limit in r 7.16, but also thepower to extend time limits conferred by r 1.19.40 It could not sensibly be suggestedthat r 1.19 does not apply to defamation proceedings, and to the time for giving jurynotices prescribed under r 7.16.[80] It follows that the appropriateness of granting an extension of time to givea jury notice must be considered under r 1.19, read in light of r 1.2, and against thebackdrop of the right to give such a notice conferred by s 16(1).[81] An analogy can be drawn with the well-established framework for consideringwhether an extension of time to appeal to this Court should be granted under r 29A ofthe Court of Appeal (Civil) Rules 2005. As the Supreme Court confirmed inAlmond v Read, the ultimate question in that context is what the interests of justicerequire.41 That inquiry takes place against the backdrop of a right to a first appeal tothis Court.42 Factors which are likely to require consideration in that context includethe length of the delay; the reasons for the delay; the conduct of the parties, particularlyof the applicant; any prejudice or hardship to the respondent or to others with alegitimate interest in the outcome; and the significance of the issues raised by theproposed appeal, both to the parties and more generally.43 The underlying merits ofthe proceeding will not generally be relevant. 44[82] Similarly, the ultimate question under r 1.19 of the High Court Rules must bewhether granting an extension of time is in the interests of justice. Will it advance ther 1.2 objective: "the just, speedy, and inexpensive determination of any proceeding"?At the risk of stating the obvious, the references in r 1.2 to speed and expense shouldnot be understood as independent goals to be pursued at the expense of the interests of40 High Court extension judgment, above n 1, at [78]. See also Andrew Beck and others McGechanon Procedure (online looseleaf ed, Thomson Reuters) at [HR7.16.03].41 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].42 At [36]–[38].43 At [38].44 At [39].justice; rather, they serve as a reminder that these factors are relevant to determiningwhere the overall balance of justice lies.[83] The factors relevant to the question whether an extension of time is in theinterests of justice will include the length of the delay, the reasons for the delay, andthe consequences of that delay: essentially the same factors that are relevant in thecontext of an extension of time to appeal under r 29A. The nature and extent of anyprejudice that an extension would cause to the plaintiff (or others with a legitimateinterest in the outcome) will often be a factor of particular importance. The nature ofthe proceedings may be a relevant factor, in particular where that has a bearing on theconsequences of delay. We accept Mr Mills' submission that it is important thatdefamation proceedings be resolved promptly. The importance of early resolution ofdefamation proceedings has long been recognised, and is reflected in the provisions ofthe Defamation Act.45 If an extension of time is likely to cause material delay in thefinal determination of defamation proceedings, that will count against granting anextension.[84] It is well established in the context of a r 29A application to extend time tobring an appeal that the prejudice that will be caused by an appeal in and of itself isnot relevant. That prejudice would have been suffered even if the right to appeal hadbeen exercised in a timely way. The only prejudice that is relevant is prejudice causedby the delay in filing the appeal. That reasoning is equally applicable in the presentcontext. Any prejudice that Ms Cato would suffer as a result of the trial of her claimbefore a jury is not relevant to the question whether an extension of time should begranted. That prejudice would have been suffered if the s 16(1) right had beenexercised in a timely way. The Judge was right to put to one side the disadvantagesfor Ms Cato of a jury trial, and focus on whether she would suffer any incrementalprejudice as a result of the delay in giving the notice.[85] It follows that we do not accept Mr Mills' argument that the Judge should haveapproached the application for an extension of time by asking what the appropriatemode of trial is now. As we said above, the starting point in New Zealand remains the45 See Gillespie v McKay (1999) 13 PRNZ 90 (HC) at 93.right to a jury trial conferred by s 16(1). The approach contended for by Mr Millsgives insufficient weight to that starting point.Should an extension of time be granted in this case?[86] We turn to consider the factors relevant to whether an extension of time shouldbe granted, focusing on the length of the delay, its causes, and its consequences.[87] Whether the delay in giving a jury notice is seen as significant in this casedepends on the lens through which it is viewed. Focusing on the date set by the Judgein March 2019, the delay was significant: some seven months from 10 May 2019 to6 December 2019.[88] But importantly, delay in this pre-trial step will not cause any delay in relationto the trial of the proceeding. The trial had already been deferred for other reasons.[89] We do not think it is especially illuminating to attach labels such as "technical"to the delay. Nor do we consider that the close of pleadings date automatically fellaway as a result of the vacation of the trial, as explained above. Pleadings did notautomatically reopen as a result of the vacation of the trial, or as a result of this Court'smeanings judgment. But we agree with the Judge that the vacation of theOctober 2019 trial date meant that a deferral of the date for giving a jury notice hadnone of the adverse consequences that might otherwise flow from that step.[90] The reason for setting a jury notice cut off date at 10 May 2019 was, plainly,to enable the parties to prepare for trial over the following five or so months. In orderto prepare for trial, the parties needed to know a reasonable time in advance whetherthe trial was to take place before a jury, or a Judge alone. The parties proceeded onthe basis that around five months' notice would be sufficient for that purpose.As matters have developed, the respondents' notice was given more than a year beforethe rescheduled trial date. There has been (and still is) plenty of time to prepare fortrial before a jury.[91] Put simply, the original reasons for setting the cut off date for a jury notice as10 May 2019 had fallen away. In those circumstances, the rationale for requiringcompliance with that date also fell away. There was no relevant "delay", bearing inmind the purpose which the r 7.16 deadline serves.[92] We accept Mr Mills' submission that this is not a case where a deadline wasmissed through inadvertence. In May 2019 the respondents made a conscious choicenot to seek a jury trial. However, their circumstances changed in a way that wasdirectly relevant to that choice, when they obtained legal representation inSeptember 2019. At that point, it was reasonable for them to re-evaluate the choicethey had made about mode of trial. And it was reasonable for them to seek to changetack, provided this could be done without causing any relevant prejudice to Ms Cato.[93] For the reasons we explained above, any additional cost and inconvenienceassociated with a jury trial is not a relevant form of prejudice when consideringwhether an extension of time should be granted. The focus is on prejudice caused bythe delay in giving the notice. We consider that the Judge was right to find that therewas no material prejudice to Ms Cato as a result of the jury notice being given inDecember 2019 rather than May 2019, in circumstances where the original trial datehad been vacated, the prospect of further pleadings being filed remained live, and nonew trial date had been set.[94] We are not persuaded that Ms Cato's agreement to participate in the s 35conference held on 2 December 2019 was attributable to the mode of trial anticipatedat that stage. Nor are we persuaded that there is any relevant prejudice arising out ofMr Mills' observations at that settlement conference, pointing out the risks to therespondents at a trial before a Judge alone. Whether the trial takes place before a Judgeor a jury, the decision-maker will need to determine what meanings the article bore.That is not the same as the question determined by this Court, which was whether thearticle was capable of bearing certain meanings.[95] And it seems to us, with respect to Mr Mills, that the potential differences inapproach between a jury and a Judge in addressing questions such as meaning werereadily apparent in late 2019, and were likely to be identified by any competentcounsel instructed by the respondents. Indeed the advice given to the respondents bytheir former legal advisers in May 2019 suggested that the respondents should seeka jury trial (provided they had legal representation) because of differences in approachof this kind. In these circumstances, it seems most unlikely that the respondents'decision to seek trial by jury, a few months after they obtained legal representation forthat trial, was attributable to Mr Mills' comments at the s 35 conference.[96] In summary, we do not consider that the delay in giving the jury notice wasmaterial, bearing in mind the purpose of the deadline. The respondents' change oftack was deliberate, but was not unreasonable given their change in circumstances.The delay did not cause any relevant prejudice to Ms Cato. In these circumstances, itwas in the interests of justice to extend the time within which the respondents couldexercise their right to require a jury trial. The Judge did not err in granting theextension of time.Result[97] The appeal is dismissed.[98] Costs should follow the event in the usual way. Ms Cato must pay costs to therespondents for a standard appeal on a band A basis, with usual disbursements.We certify for second counsel.Solicitors:Lee Salmon Long, Auckland for AppellantMcKenna King, Hamilton for Respondents