Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010

Supreme Court New South Wales

Medium Neutral Citation: Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 Hearing dates: 10 July 2015 Date of orders: 27 July 2015 Decision date: 27 July 2015 Jurisdiction: Common Law Before: McCallum J Decision: Defendants, not later than 21 September 2015, to notify the plaintiff in writing whether they maintain any defence under s 30 of the Defamation Act and, if so, the identity of any confidential sources relied upon by them in the preparation of the matters complained of or, alternatively, a statement that they do not propose to disclose those identities; plaintiff to give notice within a further seven days whether he intends to make any application under s 126K(2) of the Evidence Act in relation to the sources or any other application in relation to the defence of statutory qualified privilege; defendants' application for orders to allow a notice of election for a jury trial to be filed dismissed; defendants to pay the plaintiff's costs of the matters determined in this judgment. Catchwords: DEFAMATION – procedure – mode of trial – where defendants omitted to file notice of election for a jury trial within the time allowed under the rules – whether Court has power to allow notice to be filed after that time – whether power should be exercised – where omission due to inadvertence in the context of a practice of not incurring fees until necessary

DEFAMATION – defences – defence of statutory qualified privilege – where information relied upon in publishing the matters complained of included sources to whom promises of confidentiality were made by journalists – whether appropriate to make order directing defendants to confirm reliance upon defence in advance of trial Legislation Cited: Civil Procedure Act 2005 (NSW), ss 14, 56, 57, 58 59, 61, 63 Defamation Act 2005 (NSW), ss 21, 30 Evidence Act 1995 (NSW), s 126K Supreme Court Act 1970 (NSW), s 85 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 2.1, 29.2A Cases Cited: Liu v The Age Company Ltd [2012] NSWSC 12; 285 ALR 386 R v Christov [2009] NSWCCA 168 Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246 Sims v Wran [1984] 1 NSWLR 317 Category: Procedural and other rulings Parties: Sean Carolan (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Peter Fitzsimmons (second defendant) Representation: Counsel: K Smark SC with S Chrysanthou (plaintiff) ATS Dawson (defendants)