Barilaro v Shanks-Markovina (No 3) [2021] FCA 1100

Federal Court of Australia

Barilaro v Shanks-Markovina (No 3) [2021] FCA 1100 File number(s): NSD 484 of 2021

Judgment of: RARES J

Date of judgment: 31 August 2021

Catchwords: DEFAMATION – juries – application under s 40 of Federal Court of Australia Act 1976 (Cth) for trial by jury – whether jury best able to determine all issues, including if imputations conveyed and defamatory – where Defamation Act 2005 (NSW) and Limitation Act 1969 (NSW) amended since proceedings commenced – where statutory amendments add new defences and complexity to proceeding – whether new defences available to publishers for online publications in place before and after Defamation Act amended – possible impact of Covid-19 pandemic on mode of trial – where jury trial likely to be more expensive and take significantly longer than trial by judge alone – held: not in the interests of justice for proceeding to be tried by jury.

Legislation: Federal Court of Australia Act 1976 (Cth) ss 39, 40 Judiciary Act 1903 (Cth) s 79 Defamation Amendment Act 2020 (NSW) Defamation Act 2005 (NSW) ss 3, 10A, 12A, 12B, 26, 29A, 30, 31 Jury Act 1977 (NSW) s 20 Limitation Act 1969 (NSW) ss 14B, 14C, 56A, 73A

Cases cited: Adeang v the Australian Broadcasting Corporation [2016] FCA 1599 Barilaro v Shanks-Markovina (No 2) [2021] FCA 950 Capic v Ford motor Company Australia Limited (Adjournment) [2020] FCA 486 Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 Chau v the Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36 Joukhador v Network Ten Pty Ltd (2021) 388 ALR 318 Lange v The Australian Broadcasting Corporation (1997) 189 CLR 520 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Swain v Waverley Municipal Council (2005) 220 CLR 517 Wing v Fairfax Media Publications (2017) 255 FCR 61