Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191

FEDERAL COURT OF AUSTRALIA

Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191 File number: NSD 1303 of 2016

Judges: ALLSOP CJ, RARES AND BESANKO JJ

Date of judgment: 27 November 2017

Catchwords: PRACTICE AND PROCEDURE – consideration of an application seeking an order pursuant to s 40 of the Federal Court of Australia Act 1976 (Cth) that, to the extent permitted by law, the proceeding be heard by a jury – where the applicant has brought a proceeding for defamation against the respondents – where allegedly defamatory material was published in multiple places including New South Wales and the Australian Capital Territory – where the normal mode of trial of a civil proceeding in the Federal Court of Australia is by a judge without a jury – where the ends of justice will not be advanced or promoted if a jury hears and determines the factual issues in this case, rather than a judge – where judges of the Federal Court of Australia regularly apply a normative standard to the interpretation of statements and the assessment of reasonableness – where ss 21 and 22 of the Defamation Act 2005 (NSW) are not relevant to the exercise of the discretion in s 40 of the Federal Court of Australia Act 1976 (Cth) CONSTITUTIONAL LAW – consideration of alleged inconsistency between ss 21 and 22 of the Defamation Act and ss 39 and 40 of the Federal Court of Australia Act for the purposes of s 109 of the Constitution (Cth) – where there is direct inconsistency between ss 39 and 40 of the Federal Court of Australia Act and ss 21 and 22 of the Defamation Act – alternatively ss 21 and 22 of the Defamation Act are not picked up by s 79 of the Judiciary Act 1903 (Cth) because a law of the Commonwealth otherwise provides