Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246 Hearing dates: 29 June 2011 Decision date: 24 August 2011 Jurisdiction: Civil Before: Giles JA at [1], McColl JA at [2], Handley AJA at [137] Decision: (1) Appeal allowed with costs. (2) Set aside the order of Levy DCJ made on 16 July 2010 that the trial of the action proceed without a jury. (3) The respondent to have a certificate under the Suitors' Fund Act 1951. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DEFAMATION - election for trial by jury - whether trial judge had power under s 21, Defamation Act 2005 to dispense with jury of own motion

DEFAMATION - election for trial by jury - history of jury trials in defamation proceedings - whether s 21 entitlement to jury trial creates vested or accrued substantive right

DEFAMATION - election for trial by jury - whether party which has properly requisitioned trial by jury can retain that mode of trial - onus of proof - whether party required to justify retention of jury

DEFAMATION - Defences - honest opinion - function of judge and jury - whether primary judge erred in concluding public interest component of defence a matter for jury - s 22 (5)(b), Defamation Act 2005