Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 1707

Supreme Court New South Wales

Medium Neutral Citation: Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 1707 Hearing dates: 16 November 2015 Decision date: 16 November 2015 Jurisdiction: Common Law Before: Adamson J Decision: 1. Dismiss the plaintiff's notice of motion filed 16 November 2015.

2. Order that these proceedings will be tried by judge alone and not by jury.

3. Reserve costs. Catchwords: DEFAMATION – notice of election for trial by jury – substantive right vests or accrues upon filing of notice of election – whether vested and accrued right can be waived unilaterally by party to whom right accrued – Kencian v Watney [2015] QCA 212 followed – right can be waived – party who wishes to preserve right to trial by jury in defamation action must serve notice of intention and notice of election irrespective of whether other party does so

DEFAMATION – whether plaintiff entitled to trial by jury having failed to serve notice of election in accordance with Uniform Civil Procedure Rules 2005 (NSW), r 29.2A – no power to permit election for trial by jury where non-compliance with Defamation Act 2005 and relevant rules – Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 110 followed

ESTOPPEL – Waltons v Maher estoppel - whether defendants estopped from withdrawing election for trial by jury – whether reliance by plaintiff on defendants' election for trial by jury was reasonable – whether defendants' conduct in waiving right to trial by jury unconscionable – elements of estoppel not established Legislation Cited: Defamation Act 2005 (NSW), s 21 Jury Act 1977 (NSW), s 72 Supreme Court Act 1970 (NSW), s 85 Uniform Civil Procedure Rules 2005 (NSW), r 29.2A Cases Cited: Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 110 Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246; 81 NSWLR 315 Esber v Commonwealth [1992] HCA 20 174 CLR 430 O'Connor v SP Bray Limited (1936) 36 SR (NSW) 248 Kencian v Watney [2015] QCA 212 Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR at 387 Category: Procedural and other rulings Parties: Lili Chel (Plaintiff) Fairfax Media Publications Pty Limited (First Defendant) Vanda Carson (Second Defendant) Representation: Counsel: R Rasmussen (Plaintiff) T Blackburn SC/L Barnett (Defendants)