CATO v MANAIA MEDIA LIMITED [2020] NZHC 1240

CATO v MANAIA MEDIA LIMITED [2020] NZHC 1240 [12 June 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2017-404-3091[2020] NZHC 1240UNDER the Defamation Act 1992BETWEEN KRISTIN PIA CATOPlaintiffAND MANAIA MEDIA LIMITEDDefendantAND ROWAN DIXONSecond DefendantAND JANE THOMPSONThird DefendantHearing(by telephone):13 May 2020Appearances: P King and S McKenna for the PlaintiffS Mills QC and D Nilsson for the DefendantsJudgment: 12 June 2020JUDGMENT OF HINTON J[Defendants' Interlocutory Application for Extension of Timeto Elect Trial by Jury]This judgment was delivered by me on 12 June 2020 at 4:30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Lee Salmon Long, AucklandS Mills QC, AucklandMcKenna King[1] The defendants apply for an order granting them leave to elect trial by juryout of time. The plaintiff, Ms Cato, opposes the grant of leave, saying it wouldprejudice her for leave to be granted and there is no good reason for the late election.Background: Procedural HistoryThe genesis of the dispute[2] The proceeding concerns an article published by the defendants on the Horse& Pony Magazine website on 2 December 2017 and promoted by them on socialmedia. The plaintiff alleges the article defamed her. The defendants deny thedefamation and say a clarification and apology was attached to the article when theybecame aware of the plaintiff's complaint, and the article was then removed fromonline publication.[3] It has already been established the article is capable of bearing the defamatorymeanings pleaded by Ms Cato.1 Remaining issues arising for determination arewhether the article did in fact defame Ms Cato and, if so, the measure of damages.Chronology[4] The plaintiff's claims as to prejudice and overall delay on the part of thedefendants make it necessary to detail the lengthy chronology of this proceeding.[5] Ms Cato filed her statement of claim on 22 December 2017, the defendantsfiled defences on 20 February 2018 and on 6 March 2018 the plaintiff filed repliesand a notice of particulars under ss 39 and 41 of the Defamation Act 1992 (the Act).[6] On 16 May 2018, the plaintiff filed a first amended statement of claimincorporating a new prayer for a recommendation that a correction be publishedunder s 26. She also filed an interlocutory application seeking determination ofwhether the article was capable of bearing the defamatory meanings she had pleaded(the meanings application) and for an order for a conference under s 35 of the Act todetermine whether a s 26 recommendation should be made (the s 35 conference).1 Cato v Manaia Media Ltd [2019] NZHC 440, reversed in part [2019] NZCA 661.The defendants filed a notice of opposition on 30 May 2018 to the meaningsapplication.[7] A first case management conference was held on 20 June 2018. The partieswere agreed a s 35 conference should be convened to consider a s 26 remedy. Theplaintiff wanted a contemporaneous hearing of the meanings issue, saying that wouldpromote a settlement. The defendants opposed, saying determination of that issue atthe same time as the s 35 conference would artificially increase the costs incurred byboth parties, affect the application of s 26, generally reduce the likelihood ofsettlement and defeat the just, expeditious, and economical disposal of theproceeding. The parties agreed that each "hearing" would take half a day. In aMinute that day I recorded that quick resolution of the proceeding was mutuallydesired, and I did not consider (wrongly as it turned out) making pre-trialdeterminations as to meaning would add materially to the parties' costs. I directedas sought by the plaintiff that the two matters be considered together at a one-dayhearing to be allocated at the earliest possible opportunity.[8] On 17 July 2018 the registry notified the parties of a date on 21 September2018. That date could not be maintained due to unavailability of Ms Goatley, thencounsel for the defendants. Anticipating difficulty in finding a date, on 26 Julycounsel filed memoranda indicating available dates and requesting that, if the hearingwas not until 2019, directions be made to progress the proceeding in the interim. Theregistry then advised that the one-day hearing would be convened on 22 March 2019.By memorandum dated 16 August 2018, Mr Mills QC, for the plaintiff, indicateddissatisfaction with that date. He noted the primary remedy pursued by the plaintiffwas a recommendation for publication of a correction under s 26, the benefit of whichwould fade significantly with delay. (I note the plaintiff had not however sought thatremedy until five months after the proceeding was filed.) If an earlier one-day fixturecould not be found he sought directions and a trial date, as well as maintaining theone day March 2019 fixture. On 17 August Ms Goatley said that timetabling of stepsdown to and including allocation of a trial fixture was premature. Too many furthersteps prior to a s 35 conference would reduce the likelihood of the conferenceachieving an economical disposal of the proceeding. She said both parties hadindicated a s 35 conference could resolve the proceeding, pleadings had not yet beenfinalised, neither discovery nor inspection had been undertaken, the form of trial hadnot yet been determined, and no realistic estimate of the length of the trial could bemade.[9] At my urging, the registry redoubled their efforts to secure an earlier hearingdate, which led to the 22 March 2019 one-day hearing being vacated in favour of aone-day hearing on 17 December 2018, the last sitting day of the year.[10] A month later, on 12 October 2018, the plaintiff filed a memorandum askingthat I still make timetable directions pending the 17 December 2018 hearing. Thedefendants again opposed the making of timetable directions until after theDecember 2018 settlement conference, for the same reasons as before.[11] By Minutes dated 26 October 2018 and 8 November 2018 I made thetimetable directions requested by the plaintiff including directions setting the closeof pleadings date at 31 March 2019 and setting down a three week trial commencingon 21 October 2019. I said it seemed (wrongly as it turned out) that all parties had"significant legal resources behind them", the directions did not require much workbefore the December 2018 hearing and also the one-day hearing would have been inSeptember were it not for counsel for the defendants' earlier unavailability. I notedthat there was a reasonable chance of the trial being shorter than three weeks induration.[12] On 27 November 2018 the defendants filed defences to the first amendedstatement of claim. The plaintiff filed her replies and a second notice of particularson 13 December 2018.[13] The two interlocutory hearings (the s 35 conference and the meaningsapplication) were heard on 17 December 2018, but unfortunately not concluded. Afurther half-day had to be allocated which, again with my intervention, was able tobe promptly fixed for 13 February 2019 and the parties were so advised (at least thatit was a February date).[14] On 4 February 2019 Ms Goatley filed a memorandum pointing out (correctly)that it would be impossible for the then close of pleadings date of 31 March 2019 tobe adhered to.[15] On 7 February 2019 the plaintiff advised the Court she wished to withdrawher application for a recommendation under s 26, and was abandoning the s 35conference. Due to "the apparently unavoidable delays that have occurred inprogressing the application", the plaintiff regarded the utility of a recommendationunder s 26 as having been greatly diminished. Mr Mills sought orders that thecontinued hearing for 13 February 2019 be limited to the plaintiff's replysubmissions on capability of meaning, and that the plaintiff file and serve anamended statement of claim removing the prayer for relief under s 26. The plaintiffalso sought that the question of costs consequent on her withdrawal be reserved.[16] On 12 February 2019 Ms Goatley filed a memorandum opposing theplaintiff's proposed orders. She noted that the plaintiff had been aware since17 December 2018 that the continued hearing of the applications would take placein February 2019 and contended that the plaintiff's suggestion that resolution unders 26 was impossible as at February 2019, when it had clearly remained in play inDecember 2018, was "contrived". Ms Goatley said it was similarly contrived for theplaintiff to suggest that her costs in respect of the proceeding or the application wouldhave increased so materially between December 2018 and February 2019 so as tomake settlement that much less likely to follow from the resolution of a s 35conference. She submitted that the Court should continue the s 35 conference on13 February 2019, the defendants remaining of the view that there was a real prospectof consequential resolution. In the alternative, the defendants sought immediatedetermination of costs in their favour.[17] At the 13 February 2019 hearing, Ms Goatley acknowledged that this was nota case where, applying r 15.22 of the High Court Rules 2016, I could require that thes 26 application and s 35 conference proceed. I agreed and allowed the plaintiff towithdraw her application. There was then something less than an hour of submissionsby Mr Nilsson, who appeared for the plaintiff that day, in reply on the meaningspoint.[18] I fixed costs in the defendants' favour following the plaintiff's withdrawal,2on the basis there had been no change or delay that justified her abandonment of theapplication at that point, "particularly as compared to before the hearing on17 December 2018." Ms Goatley had sought increased costs on the basis ofCalderbank correspondence, but there was an issue whether that could properly beput before me at that juncture so she instead sought 2B scale costs, with the issue ofincreased costs reserved.3 In a costs judgment of 18 February 2019, I recorded partialagreement with Ms Goatley's submission that the plaintiff's election to have a s 35conference had occupied much of the time spent by the parties in relation to the firstcase management conference and on subsequent timetabling issues,4 and awardedscale costs to the defendants consequential on the withdrawal of the s 26 applicationin the sum of $6,355.5 The issue of increased costs remains outstanding.[19] At the end of the February 2019 costs judgment I vacated the March 2019close of pleadings date, leaving the October 2019 trial and timetable directions inplace pending a case management conference on 15 March 2019, by which date mymeanings judgment was estimated to be available. I referred to Ms Goatley havingraised again a difficulty with the October 2019 fixture because of a conflict. Ideclined nonetheless to vacate the fixture saying even though the plaintiff could besaid to have wasted time it was still important the proceeding be disposed of aspromptly as possible. I noted that it was not yet known whether the matter wouldproceed to a jury trial or a Judge-alone hearing.[20] My judgment on the meanings issue was released on 13 March 2019.6 Iconcluded, in summary, that certain of the meanings pleaded by Ms Cato were notavailable but held that the article was otherwise capable of bearing the defamatorymeanings pleaded. I directed that the plaintiff would need to re-plead to take accountof my findings but also that the plaintiff had to properly particularise the remainingpleading.72 Cato v Manaia Media Ltd [2019] NZHC 186.3 At [9].4 At [13].5 At [17].6 Cato v Manaia Media Ltd [2019] NZHC 440.7 At [48]-[52].[21] By joint memorandum dated 14 March 2019 the parties sought timetabledirections including directions as to filing and service of amended pleadings andparticulars; fixing a new close of pleadings date of 10 May 2019 with "any jurynotice to be filed and served by the same date"; and pre-trial steps beginning withservice of briefs of evidence and bundle nominations by the plaintiff on 21 June2019. In a Minute of 15 March 2019 I made timetable orders in terms of the parties'14 March joint memorandum.8[22] The directions also included a one-hour interlocutory hearing for resolutionof a discovery dispute, which the registry set down for 9 May 2019. On 7 May 2019,I vacated that hearing because the parties had managed to narrow the unresolveddiscovery issues to the point they could be resolved by negotiation or, at worst at atelephone conference.[23] Pursuant to the directions made on 15 March 2019, the plaintiff filed a secondamended statement of claim on 29 March 2019, the defendants filed their secondamended statements of defence on 12 April 2019, and the plaintiff her reply to thesecond amended defence of the first defendant on 26 April 2019.[24] On 10 April 2019, the last day for doing so, the plaintiff filed an appeal in theCourt of Appeal against parts of my judgment of 13 March 2019. The defendantsfiled a cross-appeal on 29 April 2019. An appeal had not been included in thetimetable and the filing of it on 29 April rendered the timetable clearly inapt, giventhe plaintiff's briefs and bundle nominations were to be served by 21 June 2019.[25] On 29 April 2019 the plaintiff filed a third amended statement of claim (thistime adding a claim for punitive damages) and replies to the second amendedstatement of defence of the second and third defendants. She also filed a secondamended notice of particulars. None of these pleadings had been timetabled. The8 These included orders timetabling the making of submissions in respect of all parties' applicationsfor costs in respect of the meanings judgment. By judgment dated 8 July 2019, I held that theplaintiff had been substantially successful, as the meanings I had concluded were not availablewere amongst the less serious pleaded, but also acknowledged that reasonable portions of theplaintiff's claim had been struck out on her own application, and so awarded 2B scale costs in theplaintiff's favour but reduced the amount of the award by a little over 50 per cent: Cato v ManaiaMedia Ltd [2019] NZHC 1574.defendants then had to each file third amended defences which they did on 3 May2019.[26] The defendants depose that by early May 2019 they were in disarray, couldnot afford to pay their legal fees and would have to self-represent. Ms Dixon saysshe was suffering from medical issues that made her unable to communicate withcounsel and Ms Thompson says she found the legal proceeding and its requirementsoverwhelming particularly as she was also caring for her ill husband. The advicethey were given by Ms Goatley was that, if self-representing at trial it was preferableto pursue a judge-alone trial whereas (by reasonable inference) if represented at trialthey would be better advised to proceed by jury trial.[27] On 10 May 2019 the plaintiff filed and served notices to the second and thirddefendants requiring them to answer interrogatories. On 17 May 2019 the plaintiffsfiled a reply to the third amended statement of defence.[28] On 14 May 2019 the Court registrar wrote to counsel asking whether theywould be seeking a trial before a jury and pointing out it would require leave. On 15May 2019 she asked the plaintiff to confirm her position while "confirming receiptof the defendants' position". There does not seem to be any record of the latter.[29] On 29 May 2019, according to an affidavit by Ms Cato in relation to thepresent application she filed a memorandum in the Court of Appeal seeking a half-day hearing and to strike out the cross-appeal because the defendants had failed toprosecute it.[30] At the same time, on 30 May 2019 the defendants became formallyunrepresented. A notice of change of representation and address for service was filedby Ms Goatley. The defendants were self-represented from then until 23 September2019, when present counsel for the defendants, Mr King and Mr McKenna agreed toassist the defendants.[31] On 5 June 2019 the defendants in person filed a memorandum seekingallocation of a judicial settlement conference, saying they lacked the means toadequately put forward their case. That memorandum was sent to the plaintiff by theCourt on 16 June.[32] In response to the defendants' proposal, on 20 June 2019 counsel for theplaintiffs filed a memorandum proposing another s 35 conference be convened toexplore possible resolution and make timetable directions if necessary. Thememorandum refers to not having answers to interrogatories from one of thedefendants. It makes no mention of the timetable order requiring the plaintiff to servebriefs by 21 June 2019, which I presume the plaintiff failed to do. The defendantwho had not complied, responded immediately saying she would reply to theinterrogatories that day.[33] On 25 June 2019 Clifford J in the Court of Appeal issued a Minute requiring,inter alia, Ms Cato to file submissions in support of the strikeout by 8 July 2019.[34] By letter to the Court dated 26 June 2019, the defendants agreed to a seconds 35 conference. On 8 July 2019 a joint memorandum (drawn up by the plaintiff'ssolicitors) was filed seeking a one-day s 35 conference be set down before me andthat the timetable directions made on 15 March 2019 be vacated, anticipating thatthe likelihood of settlement would be dissipated "if the plaintiff [was] put tosignificant further trial preparation costs" ahead of the conference. Thememorandum makes no mention of also vacating the October 2019 hearing,presumably in error. By Minute later that day, Lang J offered the parties a one-dayfixture for a judicial settlement conference before Sargisson AJ on 2 September2019, it being "unlikely that any other dates will be able to be offered prior to thecommencement of the trial."[35] The plaintiff filed a further memorandum on 10 July 2019 seeking again tovacate the pre-trial directions and now also seeking to vacate the October 2019fixture. She also sought allocation of a s 35 conference before me specifically, duringthe window provided by the vacated trial fixture (that is, in the three weeks between21 October and mid-November 2019). The memorandum asserts that the conduct ofthe defendants in respect of the cross-appeal meant that the plaintiff's appeal againstthe meanings judgment would not be able to be determined in advance of the thenallocated trial fixture and as a consequence the trial had to be vacated also. I do notagree with this characterisation of the reason the October 2019 fixture had to bevacated, as I set out later.[36] Given the plaintiff's reiteration that the second s 35 conference be before me,Lang J directed that the joint application for that conference be considered by me ata further telephone conference.[37] On 16 July 2019 the defendants abandoned their cross-appeal. Some timelater, the Court of Appeal granted costs of about $4,000, an uplift of about 20 percent on scale, "reflecting that there is substance in each of the three points made bythe appellant" while also intending to reflect "the difficulties outlined by therespondents"9 which as I understand it related to their self-representation. Based onMs Cato's affidavit her three points seem to have been non-payment of security, nottaking steps required on an appeal and ignorance of the law by an unrepresentedperson being no excuse.[38] I held the further telephone conference directed by Lang J on 23 July 2019.The parties referred interchangeably to a s 35 conference and to a judicial settlementconference. I repeated Lang J's recommendation that the one-day conference be ajudicial settlement conference before Sargisson AJ and also his advice that theAssociate Judge is particularly experienced at settlement conferences. I explainedthat vacating the trial did not free up time before me, as I would not be the trial judge.Mr Mills (and the defendants) held to their position that I preside at the conference,despite the knowledge that meant it would not proceed until much later than if itproceeded before another Judge or as a judicial settlement conference beforeSargission AJ. In a Minute that same day I allocated a one-day fixture for the s 35conference for 2 December 2019 "the first full day currently available before me".[39] Also on 23 July 2019 I directed, as the parties had jointly sought in theirearlier memorandum, that "the three-week trial scheduled to commence on21 October 2019, and related pre-trial timetable directions" were vacated.9 [2019] NZCA 661, above n 1 at [43].[40] Despite having refused only days earlier to proceed with another Judge, andobviously having been content with a date between 21 October and mid-November2019, by memorandum dated 25 July 2019, Mr Mills expressed concern at the factthe settlement conference would not take place until 2 December 2019. He soughtallocation of a two-week trial fixture, with new pre-trial directions to be made at thes 35 conference. In their 29 July memorandum in reply the defendants (in person)said that it was the plaintiff's suggestion the trial be vacated, to which they agreed.They observed that on 10 July, counsel for the plaintiff had indicated he agreed withthe defendants that a 35 conference was the most effective way to progress matters,including vacating the trial and pre-trial directions, so as to minimise furtherpreparation costs and increase the likelihood of settlement. The defendantsexpressed concern that the 25 July memorandum from the plaintiff showed theplaintiff's attitude was hardening well in advance of the s 35 conference, as theplaintiff's proposal would involve significant further preparation work beingrequired in advance of the s 35 conference.[41] I responded to the memoranda of 25 and 29 July 2019 by Minute of 30 July2019. I noted that, if the parties were concerned to have the earliest possible date fora settlement conference, they might reconsider having it before Sargisson AJ, whichcould proceed earlier. I said I did not think it appropriate in the circumstances to re-allocate a trial date when one had just been vacated by agreement. If the matter didnot settle following the s 35 conference a trial date could then be allocated and pre-trial directions made. By further Minute of 5 August 2019, I assured the parties theywould be consulted if an earlier hearing date for the s 35 conference becameavailable.[42] In September 2019 the defendants ceased to be self-represented.[43] The second s 35 conference was held before me on 2 December 2019. MrKing advised at the outset that both the second and third defendants now had grantsof legal aid. One of these had been communicated earlier. By Minute dated 3December 2019 I recorded that no resolution had been achieved at the conferencebut that there had been progress in that direction. I adjourned the matter to atelephone conference before me on 9 December 2019 and directed that, in themeantime, the parties were to do their utmost to conclude a pragmatic settlement. Ifthat was not possible, the matter was then to be timetabled through to a two-weekhearing.[44] Settlement unfortunately did not result and on 6 December 2019 thedefendants advised by memorandum that they sought trial by jury pursuant to s 16of the Senior Courts Act 2016.[45] At the 9 December 2019 telephone conference, Mr Mills said that thedefendants were out of time with their jury notice and formal application for leaveto extend was required. Mr King said that he did not consider the defendants wereout of time as pleadings had not closed nor were they within five days of closing.Mr Mills did not dispute that at the time. Mr King said that the order dated 15 March2019 fixing 10 May 2019 as the date by which a jury trial notice had to be given wasno longer in force. My initial view was that Mr King was probably correct giventhat the hearing and directions had been vacated by consent. I said I would treat MrKing's memorandum as an application to extend and gave Mr Mills time to filesubmissions in response.[46] The Court of Appeal gave judgment on 18 December 2019 (after a hearingon 14 November) reversing in part my decision as to the meanings issue and holdingthat the defamatory meanings previously pleaded were reinstated and could bepleaded in the statement of claim.[47] On 10 December 2019, Mr Mills filed a memorandum seeking that a formalapplication for an extension of time be filed by the defendants. He also submittedthat the issue of whether leave should be granted was a "substantive trial issue" thatshould be determined by the trial judge, which was to be someone other than me, asI had convened the settlement conference.[48] On 14 February 2020, following the Court vacation, the plaintiff filed herfourth amended statement of claim together with an expanded memorandumrequesting inter alia allocation of the trial judge. On 20 February 2020, thedefendants said the matter is still not ready to proceed to trial as the form of trial hasnot been determined, they had filed applications for legal aid, and interlocutorymatters remained outstanding.10[49] The first case of COVID-19 in New Zealand was reported on 28 February2020, with second and third cases reported on 4 and 5 March 2020, and over 500cases reported before the end of March. A national state of emergency was declaredon 25 March 2020. As a precautionary measure, jury trials were suspended on 18March 2020, now resuming on 1 August 2020, New Zealand having on 9 June 2020moved into COVID-19 Level One.11[50] In a Minute of 5 March 2020 I stated that no trial judge would be assigneduntil after a hearing date is allocated. (In fact a trial judge is not usually assigneduntil well after that date.) I also said that the question of election of the form of trialis not, as a matter of principle and logic, a trial issue, and that I would proceed todetermine the application for extension of time. However in light of Mr Mills'submissions I revisited my earlier directions, saying the application for an extensionof time was to still be treated as having been made on 6 December 2019, but Itimetabled a formal application and submissions. I said I would deal with the matteron the papers unless counsel wanted a hearing.[51] On 19 March 2020, Mr Mills filed a memorandum saying that the defendantshad failed to file the formal application in accordance with the timetable. Mr Kingimmediately explained that he had not seen my 5 March 2020 Minute until servedwith Mr Mills' memorandum on 19 March 2020. My Minute had been sent in errorby the Court registry to an unmonitored email address, not that contained in theNotice of Change of Representation dated 23 September 2019. (This seems to haverelated to counsel having changed practice.) Mr Mills filed a further opposingmemorandum. However in a Minute dated 23 March 2020 I accepted Mr King'sexplanation and also noted that "the practical reality, given current circumstanceswith the Covid-19 virus, is that all proceedings are going to take longer to progressin any event". I gave the defendants seven days to file their formal application, with10 I note it now seems unlikely any further interlocutory matters will need to be resolved.11 Dame Helen Winkelmann, Chief Justice of New Zealand "Letter to the Legal Profession: COVID-19 – Movement to Alert Level 1" (Judicial Office For Senior Courts, Wellington, 8 June 2020).Mr Mills having fourteen days to reply. These directions were complied with and on21 April I set the matter down for a one-hour hearing by telephone, on 13 May 2020.The plaintiff had requested that there be a hearing by memorandum of 6 April, andin fact contested the hearing being by telephone, but ultimately it proceeded in thatmanner.[52] By Minute dated 29 May 2020 I directed, at the plaintiff's request, that a threeweek trial be set down and made pre-trial timetable directions. I made it clear thiswas without prejudice to the issue as to mode of trial. The Court registry is yet toallocate a new fixture date such that the timetable is not yet practically speaking onfoot.Has the time for giving a jury notice in fact elapsed?[53] It is arguable that the time for giving a jury notice has not yet in fact elapsed.This was the position adopted by counsel for the defendants in written submissionsbut was not, it is fair to say, a focus of Mr King's oral submissions.[54] The ability to require civil proceedings to be tried by Judge and jury arisesfrom s 16 of the Senior Courts Act 2016, which relevantly provides that: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 theHigh Court Rules, require the proceeding to be tried by a High CourtJudge 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.[][55] The relevant provision of the High Court Rules 2016 (the Rules) is r 7.16which requires that any jury notice be given no later than:(a) 5 working days before the close of pleadings date for theproceeding; or(b) a date fixed by a Judge for the purpose.[56] The close of pleadings date is determined in accordance with r 7.6, whichprovides that a Judge must allocate the close of pleadings date for a proceeding atthe time a hearing or trial date is allocated,12 and, if a Judge does not do so, the closeof pleadings date is the later of:13(a) the date that is 60 working days before the hearing or trial dateallocated; and(b) the date on which the hearing or trial date is allocated.[57] As noted above, in my Minute of 15 March 2019, I made timetablingdirections in terms of the joint memorandum of counsel dated 14 March including adirection that "the close of pleadings date be set at 10 May 2019, and that any jurynotice be filed and served by the same date", with leave reserved to the parties tomake an interlocutory application on or before that date to vary the close of pleadingsor jury notice date. No application was made, and, Mr Mills submits, that jury noticedate remains in place.[58] However, in paragraph 3(a) of their further joint memorandum dated 8 July2019, counsel sought orders vacating "the timetable directions made on 15 March2019" and shortly afterwards, in her memorandum of 10 July 2019, the plaintiffsought an order that the October 2019 fixture be vacated.12 High Court Rules 2016, r 7.6(4).13 Rule 7.6(4A).[59] On 23 July 2019, I directed that "the three-week trial fixture scheduled tocommence on 21 October 2019, and related pre-trial timetable directions" werevacated.[60] It arguably follows that at the parties' joint request I vacated the timetabledirection I made in my Minute of 15 March 2019 setting the close of pleadings dateat 10 May 2019 and requiring any jury trial notice to be filed and served by that samedate. Although I happen to have used the language "pre-trial" directions in myMinute of 23 July, which language also appears as a heading below the close ofpleadings/jury notice date nominated in counsel's joint memorandum of 14 March2019, that was not in fact the language used in the joint memorandum of 8 July.There, the parties had sought purely to vacate "the timetable directions". Further, itwould logically follow from r 7.6 that where no hearing date was allocated and thetimetable orders had been vacated, there would be no close of pleadings date andhence no date for jury election.[61] Because of the ambiguity, I do not consider it appropriate to dispose of thematter on this basis alone. Nonetheless, I consider the matters noted above to berelevant.[62] In any event I consider that the close of pleadings date has necessarily fallenaway. The plaintiff's appeal of my meanings judgment meant that pleadingsremained a live issue pending resolution of that appeal. Consistently with that, whenthe Court of Appeal gave judgment on 18 December 2019 reversing in part mydecision as to the meanings issue and reinstating the particular pleadings I had struckout, leave was granted to file a further amended statement of claim pleading thereinstated meanings, which Ms Cato subsequently did on 14 February 2020.[63] Mr Mills says that Ms Cato did little more in filing her fourth amendedstatement of claim on 14 February 2020 than reinstate her pleading as it stood at thetime of my meanings judgment, and that this cannot be said to have reopenedpleadings. It happens that only reinstatement was required but that is not the point.Until the Court of Appeal judgment issued the pleadings were at large. There werea number of possible outcomes including the pleading remaining unchanged,reinstatement, partial reinstatement or otherwise. Furthermore, while the Court ofAppeal did not expressly address whether the defendants could file further amendedpleadings in response, it is a necessary consequence of the Court's allowing Ms Catoleave to file an amended statement of claim that the defendants must be allowed tofile an amended statement of defence in response, which would not necessarily beidentical to before.14 The short point is that the shape of the parties' cases could notbe finally defined until the Court of Appeal decision issued and any consequentialamended pleadings were filed, all of which was and will be after 6 December 2019.[64] The Rules do not clearly provide for what happens where a case needs to berepleaded after the close of pleadings date because of a successful appeal of a pre-trial decision affecting the pleadings. Nor do they expressly provide for whathappens where the trial date is vacated at the parties' request, but not necessarily alltimetabling directions predicated on that trial date. In this respect, I consider it salientthat the purpose of fixing a close of pleadings date is to ensure that all pleadings arecompleted and interlocutory matters resolved a certain distance in advance of trial,so that the parties can get on with preparing for the hearing without disruption.15Where the shapes of the parties' cases remain unclarified well past the close ofpleadings date because of an appeal from an interlocutory decision on pleadings,especially where a previously fixed trial date also has fallen away, there is no need,nor would it be appropriate, to prioritise trial preparation. Accordingly, applying therules purposively,16 I consider that, in circumstances such as those, pleadings haveeffectively reopened.[65] I accept that is not dispositive of the present application. I fixed a specificdate for the giving of jury notices, albeit clearly, both in terms of the parties'memorandum and my Minute, it was to be the same as the close of pleadings date.The jury notice date remains nominally in place, with the result that the defendants,at least technically, were out of time in filing their jury notice on 6 December 2019and require an extension.14 As I understand it they have not yet done so.15 RHH Ltd v Anderson (No 3) [2018] NZHC 2045 at [9].16 High Court Rules 2016, rr 1.2 and 1.6.[66] I say technically not just because the two dates were clearly to be the samebut because, as a matter of substance, for the reasons discussed above, the jury noticewas filed during the same 'interlocutory' phase of the proceeding as prevailed at 10May 2020. That is, before trial preparation was required to begin in earnest.[67] These matters inform the excusability of the "delay" and the degree to whichMs Cato can say she has been prejudiced by the defendants' technically late electioncompared, say, to a situation in which the late election had arrived deep into theparties' progress through a pre-trial timetable.How should the jurisdiction to grant an extension of time be exercised?There is no presumption against the grant of an extension of time to file a jury notice[68] The defendants' application for leave is made in reliance on r 1.19, whichprovides that: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.(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.[69] Mr Mills submits that s 16 was intended to curtail a party's ability to make alate election, which together with the emphasis under the Defamation Act 1993 onexpeditious resolution of proceedings means I should proceed on the basis there is apresumption against an extension of time under r 1.19 being available. In support,he refers me to two English cases.[70] In the first, Cook v Telegraph Newspapers Ltd, Tugendhat J determined theappropriate mode of trial in a libel action following a late application by the plaintifffor a jury trial. Applying s 69 of the Senior Courts Act 1981 (UK), he refused theapplication. Tugendhat J said there are "very great case management advantages"1717 Cook v Telegraph Newspapers Ltd [2011] EWHC 763 (QB) at [83] and [112].associated with judge alone trials compared to jury trials. These included, the Judgethought, a judge's ability when sitting alone to try issues in the most convenient orderand rule on meanings in advance of trial. (Obviously, the position is different herewhere a judge can nonetheless rule on meanings and in this case has.) Tugendhat Jalso referred to, and followed, English appellate authority stating that "the emphasisnow is against trial by juries"18, and that this was a relevant consideration for trialcourts in determining the method of trial.[71] In Gregory v Commissioner of Police for the Metropolis, the other Englishauthority to which Mr Mills referred me, Cranston J traced the development of therelevant legislative provisions and identified that the right to a jury trial in Englishcivil cases had progressively narrowed over time. The Judge noted that withenactment of the 1981 statute applied by Tugendhat J, the English Court of Appealdetermined the statutory policy had become set "against trial with juries"19;particularly in respect of defamation cases.20 By 2006, the discretion under the 1981statute to allow a jury trial was rarely exercised. Eventually, the WestminsterParliament adopted this same attitude. The Defamation Act 2013 (UK) removedlitigants' statutory right to apply for trial by jury in slander and libel cases in Englishand Wales. Rather, following concurrent amendments made to the English CivilProcedure Rules, an application for a jury trial became purely a matter of casemanagement wholly within the trial court's discretion.21 This change was justifiedon the basis the jury trial format "greatly increased the cost and time taken"22 to trya matter and was seen as part of what had rendered defamation a tool of attritionwarfare.[72] As in England, the trend in New Zealand has similarly been away from civiljury trials as a matter of fact, in terms of the number of civil jury trials actually being18 At [89], referring to Fiddes v Channel Four Television Corporation [2010] EWCA Civ 730, [2010]1 WLR 2245.19 Gregory v Commissioner of Police for the Metropolis [2014] EWHC 3922 (QB) at [17], citingGoldsmith v Pressdram [1988] 1 WLR 64 (EWCA) at 68.20 At [17] and [18], referring to Viscount De L'Isle v Times Newspapers Ltd [1988] 1 WLR 49(EWCA) at 58; and Aitken v Preston [1997] EMLR 415 (QB).21 At [22].22 At [22].conducted.23 Similarly, s 16 of the Senior Courts Act 2016 excludes the possibilityof a jury trial in civil actions other than in defamation, false imprisonment, andmalicious prosecution. Conversely the predecessor provision to s 16, s 19A of theJudicature Act 1908, had allowed from 1986 to 2016 for any civil matter topotentially be tried with a jury subject to the Court's being satisfied that wasappropriate in the given case.24[73] Importantly however, the terms of s 16 make it clear that Parliamentconsidered that jury trials should remain available in respect of, inter alia, defamationcases.25 While this right is qualified by the notice requirement in s 16(2) and theCourt's discretion under s 16(4) (not suggested to be applicable here), the 'default'position, unlike under s 69 of the 1981 English statute, is that a jury trial is availableon demand. I note that the Law Commission, in its report that led to the SeniorCourts Act 2016 was of the view that, of all civil matters, defamation actions are themost suited to jury trials as jurors are better positioned than judges to "gauge currentsocietal views and the value of a loss of reputation";26 those issues being the crux ofa defamation trial. It follows that juries are better placed to provide the primaryremedy for defamation which the Court of Appeal has recently said is "adetermination that any cloud cast over [the plaintiff's] reputation is wrong."27Equally, it would follow, juries are best placed to determine where relief is notrequired.[74] Correspondingly, in New Zealand there is no trend of appellate authoritytaking s 19A (and now s 16) as requiring generalised hostility towards civil jury trials.The position is captured in Thorp J's 1993 decision in Lindon v James Hardie & CoPty Ltd. The Judge followed the Court of Appeal in Lidgard v Guardian AssuranceCo Ltd in accepting that s 19A "was not intended to deprive litigants of their right to23 See Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012) at [11.2]-[11.3].24 See Wyatt v Iversen HC Napier CP15/98, 30 June 2000 per Heron J for an example of theapplication of these principles to determining whether a negligence action was suitable to be triedby a judge sitting with a jury, as referred to in O'Regan v The Radio Network Ltd [2001] 1 NZLR568 at [30].25 As noted by Johnston AJ in Harvey v Mediaworks Holdings Ltd [2019] NZHC 1414 at [11],referring to Law Commission, above n 23 at 121.26 Law Commission, above n 23, at [11.12].27 Williams v Craig [2018] NZCA 31, [2018] 3 NZLR 1 at [32].trial by jury to a greater extent than was necessary"28 because of the terms of thestatute itself. He considered Barker J had been wrong in two other cases not to followLidgard. In those cases, Barker J had treated the "thrust" of s 19A as having been todiscourage civil jury trials because of "the additional calls on Court time andresources involved in jury trial".29 This approach was inconsistent with Lidgard andwith the Court of Appeal's later reiteration in Green v Matheson that s 19A wasconcerned with, and only with, removing overly complex matters from juries (as withs 16(4) of the 2016 Act) and was not meant to signify a wider change in policy.30[75] This appellate attitude clearly influenced Robertson J in McGrory v AnsettNZ Ltd, to which counsel referred me. There, the parties were presented with asecond opportunity to give a jury notice following the falling away of the firstallocated trial date. No notice had been given on the first available opportunity butRobertson J allowed the notice to be given. In Shattock v Devlin (one of the casescriticised by Thorp J in Lindon) Barker J had arrived at the contrary view. RobertsonJ departed from Barker J in treating an application to file a jury notice out of time asbeing governed by the rules concerning extensions of time generally.31 This, thelearned authors of McGechan suggest, is "the predominant, and preferable"32 view,as opposed to that taken by Barker J in Shattock v Devlin. Certainly, except forShattock v Devlin, which appears to have been decided per incuriam the decision inLidgard, an extension was allowed in each case to which I was referred. Mr Millshas suggested these cases can be distinguished: I return to that submission shortly.[76] First though, I conclude my evaluation of the relevance of the English casesby noting that I am not persuaded by Tugendhat J's prioritising efficiency in casemanagement above all else. Promoting the expeditious and inexpensive resolution of28 Lindon v James Hardie & Co Pty Ltd (1993) 7 PRNZ 325 (HC), following Lidgard v GuardianAssurance Co Ltd [1961] NZLR 860 (CA).29 At 328, referring to Shattock v Devlin (1988) 1 PRNZ 271 at 276 and Commercial UnionAssurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187 at 202.30 At 328, referring to Green v Matheson [1989] 3 NZLR 564 (CA) at 569 and 571 per Cooke P.31 McGrory v Ansett New Zealand Ltd [7999] 2 NZLR 328 (HC) at [14]-[18], following Willis vKatavich HC Auckland A547/85, 19 November 1987 and Smith v TVNZ Ltd (1994) 7 PRNZ 456(SC), distinguishing, on the basis of the new statutory provisions adopted in 1986, Kemble vBedogni [1961] NZLR 118 (SC).32 AC Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at[HR7.16.03].proceedings is an objective of civil procedure,33 and of the Defamation Act 1993.34It is not, however, the sole objective. The ultimate aim is doing justice in each case.What parties seek in going to court "is to use the machinery of justice to obtain a justresult, and what the clients seek to avoid is unnecessary and prejudicial expense,delay, and technicality in the process of attaining that just result."35 Parliament hasdetermined that, as a matter of policy, justice can best be done in defamation mattersby allowing jury trials where requested; the inefficiencies of jury trialsnotwithstanding. It follows that purporting to prioritise justice being doneexpediently by presumptively inclining against jury trials may actually underminethe interests of justice.[77] For all of these reasons, I do not consider that the English authorities to whichMr Mills referred me espouse the law as it stands in New Zealand today.[78] I consider the matter put beyond doubt by the precise wording of s 16. Therequirement to give a jury notice is stated as an obligation to give a notice "inaccordance with the High Court Rules." The scheme of the Rules includes r 1.19and, therefore, the potential for an extension to be granted where the justice of thecase so requires. Absent any indication Parliament intended defamation cases to betreated differently, such that the full rules of court except for r 1.19 should apply, andI have found none, the same degree of flexibility should be afforded to parties thatseek leave to make a late election as is afforded to other parties seeking to rely on r1.19. It follows I do not consider there is a presumption against an extension of timebeing available for the giving of a jury notice under s 16 and r 7.16.The jurisdiction to grant an extension should be applied using the general principlesapplicable to applications for an indulgence under r 1.19[79] Mr Mills strongly emphasised in oral submissions that the discretion to grantan extension has been exercised only where there is no ascertainable prejudice to therespondent from the late jury notice and the late notice had resulted entirely fromcounsel error/inadvertence. I accept that, in the cases to which Mr Mills referred me33 High Court Rules 2016, r 1.2.34 Gillespie v McKay (1999) 13 PRNZ 90 (HC) at 93.35 Above n 32 at [HR1.2.02] (emphasis added).where leave to file a late notice was granted, the Court placed weight on the fact thatthere was no prejudice to the recipient of the notice in granting an extension, and thatthe delay had been occasioned entirely by counsel error.36 However, I consider itclear that, in each case, these factors were treated as meaning there was noimpediment to an extension being granted. Nowhere was lack of prejudice (orinadvertence) stated to be a precondition for exercise of the jurisdiction to extend inthe applicant's favour.[80] There is of course no presumption in favour of an extension being granted.As noted above, while there is a presumptive right to a jury trial in a defamationmatter, Parliament has clearly provided in s 16(2) that the right must be exercised asdirected in the rules of court. Specifically, it must be exercised in accordance withr 7.16, subject to an extension being available under r 1.19.[81] Generally, the jurisdiction to grant an extension of time under r 1.19 has beenheld to be unfettered,37 subject to the need for the party seeking an extension orshortening of time to lay a proper foundation for the Court's permitting a departurefrom the Rules.38 Practically speaking, this will require the applicant to providesuitable evidence of a good reason for their delay warranting the granting of anindulgence.39 That onus stems from the fact that, absent the applicant offering thatgood reason, the rules of court ought to have been obeyed.40 Also relevant to theassessment is whether prejudice has resulted or will result to other parties if anextension is granted, including, in particular, because of any unwarranted delay.41[82] Additionally, I accept Mr Mills' submission that, at least in general terms, myexercise of r 1.19 here should be informed by the Defamation Act 1993 having beenintended to "facilitate the prompt commencement and disposal of defamation causesof action."4236 McGrory, above n 31, at [24]; O'Regan, above n 24 at [17]; Smith, above n 31, at 459.37 Caltex Oil (NZ) Ltd v Hughes (1986) 1 PRNZ 235 (HC).38 Day v Ost (No 2) [1974] 1 NZLR 714 (SC), applying Ratnam v Cumarasamy [1964] 3 All ER 933(PC) at 935 per Lord Guest.39 Spicers Paper (NZ) Ltd v BPK&GA Buckley Ltd (1993) 6 PRNZ 16 (HC).40 Day v Ost, above n 38, applying Ratnam v Cumarasamy, above n 38.41 See the discussion in Day v Ost, above n 38; Ongley v Brdjanovic [1975] 2 NZLR 242 (HC); andMcGory v Ansett, above n 31.42 Gillespie v McKay (1999) above n 34, at 93.[83] I have found it useful in applying these principles to consider Millet J'ssummary of the factors relevant to the grant of an extension under the English rulesin Mortgage Corp Ltd v Sandoes, as adopted by Robertson J in McGrory v Ansett,which captures many of the above points.43 The Judge's summary is as follows:1 Time requirements laid down by the rules and directions given by thecourt were not merely targets to be attempted; they were rules to beobserved.2 At the same time the overriding principle was that justice must be done.3 Litigants were entitled to have their cases resolved with reasonableexpedition. The non-compliance with time limits could cause prejudiceto one or more of the parties to the litigation.4 In addition the vacation or adjournment of the date of trial prejudicedother litigants and disrupted the administration of justice.5 Extensions of time which involved the vacation or adjournment of trialdates should therefore be granted only as a last resort.6 Where time limits had not been complied with the parties should co-operate in reaching an agreement as to new time limits which would notinvolve the date of trial being postponed.7 If they reached such an agreement they could ordinarily expect the courtto give effect to that agreement at the trial and it was not necessary tomake a separate application solely for that purpose.8 The court would not look with favour on a party who sought only totake tactical advantage from the failure of another party to comply withtime limits.9 In the absence of an agreement as to a new timetable, an applicationshould be made promptly to the court for directions.10 In considering whether to grant an extension of time to a party who wasin default, the court would look at all the circumstances of the caseincluding the considerations identified above.[84] Here, considerations five through seven are not directly relevant except toemphasise that no trial date had been allocated when the defendants gave notice ofjury election, which made the timing of the election inherently much less significant.[85] One final point under this heading, which emerges from the above, is theimportance of clarifying the scope of the inquiry called for under r 1.19. Several of43 McGrory v Ansett, above n 31, at 54, adopting Mortgage Corp Ltd v Sandoes [1996] TLR 751(EWHC) at 752.the objections the plaintiff has raised to the defendants' application for an extensionare in fact objections to the perceived disadvantages, in terms of costliness andinefficiency, of jury trials as compared to judge alone trials. These concerns havemotivated the English legislature and courts to hostility towards allowing jury trialsin defamation actions as a matter of case management. As noted above, that is notthe position in New Zealand law. Parliament, in the 2016 legislative reforms, decidedthat for better or worse, either party to a defamation proceeding can request a jurytrial as of right. Neither s 16(2),44 nor r 7.16, invites revisiting of the merits of judgealone as opposed to jury trials generally in the face of this clear expression oflegislative policy. As a result, claims of prejudice stemming from having toprosecute or defend a claim before a judge sitting with a jury, as opposed to before ajudge alone, as a consequence of a jury trial election being made, are of limitedrelevance to weighing the overall justice of whether to grant an indulgence in theform of an extension. The question is rather whether there has been prejudicerelating to, and stemming from, the late timing of the election.How should the discretion to grant an extension of time be applied here?[86] Having clarified the scope of the inquiry, I now turn to address the applicationof r 1.19 to the present case.Is the delay excusable?[87] First, and most importantly, the delay is this case is technical for the reasonsexpressed above. It is not generally contemplated, and was not contemplated by theparties here, that the jury notice be other than at close of pleadings (that is beforetrial preparation begins in earnest). Pleadings have not closed and in any event wereclearly not complete until after 18 December 2019 when the Court of Appealjudgment issued. At the point of the defendants' election on 5 December 2019 therewas no fixture and no pre-trial timetable in place. The proceeding was behind thepoint it was at when the May 2019 jury notice date was fixed on 15 March 2019. Atthat point there was a fixture in October 2019 and timetabled directions. It was inmy view an error that the 10 May 2019 date was not vacated when the appeal was44 Nor, I note for completeness, does s 16(4), which invites only an inquiry into whether the matteris too complex to go to a jury: Green v Matheson, above n 30, at 569 and 571.filed, and at least after the fixture and timetable were vacated in July 2019. Thetemporal "delay" must be seen in that light.[88] In my view this point substantially answers the excusability of the delay, butif I am wrong in placing reliance on this, I go on to consider all of the points and inthe order raised by Mr Mills.[89] The plaintiff says the delay is not excusable because:(a) In absolute terms the delay was seven months from 10 May 2019 to5 December 2019, which well exceeds any case where an extension hasbeen granted.(b) Even if the first five months is explained because the defendants hadremained unrepresented until September 2019, nonetheless thatchanged in September and there was still a delay of two months whichcould not be excused.(c) This is not a case of oversight or legal error but of a decision beingmade following legal advice and now changed.(d) The defendants' election was made following the s 35 conference andas a consequence of without prejudice communications made by theplaintiff's counsel at that conference. The defendants eitherdeliberately delayed their election, to trap the plaintiff's counsel intomaking without prejudice communications at the second s 35conference which he would not otherwise have made, or are simplyacting tactically to now take advantage of those comments.[90] The defendants say, and I accept, that their not giving notice in May 2019was based on legal advice premised on their having to self-represent through inabilityto pay their lawyers. That position changed in September 2019 when their currentsolicitors agreed to act. I consider that was reasonable. Mr Mills says even if that isexcusable, there can be no excuse for the delay in the period between September2019 and December 2019, during which the defendants were represented but still didnot give notice. However, I accept on the basis of the defendants' submissions andevidence, that the delay between September and December flowed from acombination of counsel focusing on the s 35 conference settlement (in which case notrial would follow), counsel error and the illness or mental incapacity of the secondand third defendants. I consider the "delay" is excusable in that context. I shouldadd I accept from the defendants' evidence and my own observation that they werestressed by the proceeding to the point of being unable to express themselves, orovercome with emotion. In addition, Mr King volunteered at the settlementconference that he has no experience in proceedings of this nature.[91] While the temporal delay has been shorter in the New Zealand cases wherean extension has been granted, these were also cases where the jury notice date wasset in accordance with the intention of the rules and the parties, rather than a nominaldate that had effectively become redundant. I note also that I have not had referredto me a case in New Zealand where an extension of time has been refused, with theexception of Shattock v Devlin which as noted above appears to have been wronglydecided.[92] It does concern me somewhat that this is a case not of oversight but of achange in position as a result of the changed circumstances of the defendants, but Iconsider this point is made redundant by the technical nature of the delay.[93] I accept Mr Mills' submission that the defendants were likely affected inmaking the election because of "without prejudice" statements made by him at thesettlement conference (which statements he does not identify). I do not accept thesestatements were made in the secure knowledge that there would be no jury trial. AsI pointed out at the hearing of this application, Mr Mills said at the settlementconference that he "thought" he and Mr King were agreed that the matter would goto a judge alone trial. He said that in the manner of a question, to which Mr Kingdid not reply. Given Mr Mills relies on these "statements", to consider his argumentit is necessary for me to record the statements to which I understand he refers.Mr Mills said at the s 35 conference, which followed shortly after the Court ofAppeal hearing, that he expected the plaintiff to win the appeal. This was significantin his view because on the basis of all of the alleged meanings being found to beavailable, judgment was likely to follow in a judge-alone trial. I do not consider hishaving expressed that view, whether correct or not, goes against extending time.Rather it supports my point that the jury election date needed to remain in line withclose of pleadings which in turn followed the Court of Appeal's decision.[94] I do not see the defendants as having acted either "deliberately" or"tactically". If anything, without meaning any disrespect, I would describe theirconduct as having been hapless. I do not consider points such as this relevant in thiscontext.Will prejudice result from delay in election?[95] As the plaintiff relies mainly on delay it is relevant, as emerges from theconvoluted procedural history set out above, that the resolution of this proceeding interms of the matter progressing to trial has been delayed on a number of occasions.Both parties brought about delays. Some delays, as Mr Mills described them in anearlier memorandum, were unavoidable.[96] The plaintiff says she is prejudiced by the defendants' delay in giving notice,because it has caused her to:(a) face a longer trial than otherwise, which will be more difficult toschedule, that difficulty being exacerbated by delays resulting from theCOVID-19 pandemic, particularly as affecting jury trials; and(b) the defendants are impecunious and will be unable to meet the extracosts if unsuccessful following a longer trial, and are already in defaulton a costs award.[97] I accept that a jury trial will take longer to hear than a judge-alone trial. It isquestionable what the greater length of trial would be. Mr Mills suggested insubmissions it may be three weeks as opposed to two, but in an earlier conference hesaid a jury trial in this proceeding would take two days longer than otherwise. In myview, that is more plausible than it requiring an additional week. The decision towhich Mr Mills referred me of Johnson AJ where the Associate Judge discusses afour day trial and a likely increase to seven days if before a jury, is not authority onthis point, nor of any assistance.45[98] It does not seem in fact that a jury trial, or even a three week trial will takelonger to schedule than a judge-alone trial of say two weeks. I am advised by theJudicial Resource Manager that the wait time for a trial date, while likely to be furtheraway than before COVID-19, is likely to be very similar whether the trial is for twoweeks or three weeks, jury or judge alone. A new fixture has only just been directedand jury trials are scheduled to recommence on 1 August, the country having beenplaced on 9 June into COVID-19 Level One.[99] But in any event, as I have already set out, the prejudice has to be fairlyattributable to the default. The matters relied on do not flow from the "lateness" ofthe jury notice. COVID-19 is a pandemic, not created by the defendants. Whateverthe greater length of a jury trial, that would have applied at whatever time notice wasgiven. The same applies with regard to the defendants' impecuniosity. They wereor would have become impecunious regardless of the timing of a jury notice. Thisis not prejudice that flows from the breach.[100] Counsel for the plaintiff refined this point a little further in oral submissionssaying that, had the defendants' election been made as at 10 May 2020, he wouldhave moved more quickly to get a trial date set and would have taken a different tackin the settlement conference. He did not suggest that had he done this, the hearingcould have been completed in 2019 or before COVID-19, and nor would I acceptthat. Presumably he was suggesting that the matter may have been further up in thelist of trials to be scheduled. However, in my view, Mr Mills did not view the jurytrial as a closed possibility as I have noted earlier. Also, Mr Mills did ask for a newtrial date to be allocated after the October 2019 date had been vacated at his request,and I declined to do so. I said he would have to wait until after the settlementconference in December 2019. Also, the plaintiff did not treat speed as a driver in anumber of respects during 2019, including in declining to have the second s 3545 Harvey v Mediaworks Holdings Ltd [2019] NZHC 1414 at [19].conference before anyone other than me with the resulting long wait for thatconference. In short, I do not accept the suggestion that the plaintiff may have takendifferent steps had the jury notice been given in May 2019 and is thereforeprejudiced. It was very unclear what those steps would have been and the point wasnot even raised in written submissions.[101] For the above reasons I do not consider the plaintiff will suffer prejudicebrought about by the late jury notice if an extension is allowed.Other considerations relevant to overall justice[102] The plaintiff says the defendants caused the October 2019 fixture andtimetable to be abandoned and also have caused delay overall. It will be clear that Ido not agree with these propositions. The plaintiff filed her appeal to the Court ofAppeal on the last day she could do so. As soon as she did so, it was clear that thetimetable which did not provide for the appeal, could not be met. While there wasdelay arising out of non-prosecution of the cross-appeal, it is incorrect to say thatcaused the fixture to be vacated. In fact, apart from what Ms Cato says regarding thecross-appeal, and the issues early on regarding Ms Goatley's availability, I considerthe defendants have acted both promptly and properly in this proceeding.[103] The plaintiff says it is very material that the defendants have not proved anyprejudice to themselves in the event the application is denied. Mr Mills did not pointme to any authority that such prejudice is relevant in this context and I do notconsider it is.46 As addressed earlier, the ability to elect a jury trial is a (qualified)"right". But if prejudice is required then I consider it exists. I infer from the BellGully letter referred to earlier that a jury trial would be preferable for the defendantsif represented, and more so when legally aided. I draw that conclusion also from theplaintiff's opposition to this application and Mr Mills statements at the s 35conference referred to above.[104] Finally I have been somewhat concerned by Mr Mills' point that thedefendants are in breach of the Court of Appeal order to pay costs and should not be46 Wild J has referred to a s 26 recommendation as a "quick fix"; O'Regan, above n 24, at [25].granted an indulgence in those circumstances nor, in particular, should the plaintiffhave to face a longer and more expensive trial in those circumstances. However, theplaintiff has served bankruptcy notices on the second and third defendants and hasserved a statutory demand on the first defendant. That will result either in paymentbeing made or the defendants being liquidated or bankrupted in which event therewill be no trial – the plaintiff will succeed by default. I should also note in thiscontext that I do not consider it relevant in terms of overall justice that the plaintiffwill not be able to recover costs of a longer trial because the defendants areimpecunious or, now, legally aided. Justice does not differ between those who arelegally aided or impecunious and those who are not.Conclusion and Result[105] For all of the above reasons, and in particular the lack of any delay in asubstantive sense or any real prejudice to Ms Cato, and the fact that the defendantsacted promptly to inform the plaintiffs of their election following the failed s 35conference and before a trial date or timetable had been fixed, I am satisfied that itis just to exercise my discretion to grant an extension of time under r 1.19 in favourof the defendants.[106] The defendants' application for an extension of time is granted, with the resultthat the defendants' notice given in December 2019, requiring that the trial of theoutstanding issues in this proceeding be conducted before a jury, pursuant to s 16 ofthe Senior Courts Act 2016, is accepted for filing.[107] The defendants are to file a memorandum as to costs within 14 days and theplaintiff any reply within seven days of receipt. The defendants' counsel will needto address the cases regarding costs following an indulgence, and whether they areapplicable here.Hinton J