Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chel v Fairfax Media Publications Pty Ltd [2015] NSWCA 355 Hearing dates: 16 November 2015 Date of orders: 17 November 2015 Decision date: 17 November 2015 Before: Macfarlan JA Decision: (1) That the plaintiff's application for leave to appeal and the appeal that would follow if leave were granted be heard on a concurrent basis on Friday 20 November 2015, with an estimate of half a day. (2) That Adamson J's decision to hear the Common Law Division proceedings numbered 2011/409423 without a jury be stayed until the determination of the plaintiff's application for leave to appeal or, if leave is granted, the plaintiff's appeal. (3) That the defendants pay the plaintiff's costs of her application for interim relief. (4) That by 5.00 pm on Wednesday 18 November 2015, the plaintiff file and serve a written summary of argument. (5) That by 5.00 pm on Thursday 19 November 2015, the defendants file and serve a written summary of argument. (6) That the plaintiff file and serve supplemented white folders by 2.00 pm on Thursday 19 November 2015. Catchwords: DEFAMATION – application to Court of Appeal for interim relief to prevent hearing at first instance proceeding without a jury – defendants elected for a jury trial but purported to withdraw election shortly before hearing Legislation Cited: Civil Procedure Act 2005 (NSW), s 14 Defamation Act 2005 (NSW), s 21 Uniform Civil Procedure Rules 2005 (NSW), r 29.2A Cases Cited: Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246; 81 NSWLR 315 Kencian v Watney [2015] QCA 212 Category: Procedural and other rulings Parties: Lili Chel (Appellant) Fairfax Media Publications Pty Ltd (First Respondent) Vanda Carson (Second Respondent) Representation: Counsel: R Rasmussen (Appellant) T Blackburn SC/L Barnett (Respondents) Solicitors: Beazley Boorman Lawyers (Appellant) Banki Haddock Fiora Lawyers (Respondents) File Number(s): CA 2015/337676 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2015] NSWSC 1707 Date of Decision: 16 November 2015 Before: Adamson J File Number(s): SC 2011/409423 [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.] Judgment 1. HIS HONOUR: This is an application for interim relief, pending the hearing of a summons for leave to appeal, against a decision of Adamson J sitting in the Common Law Division to dismiss a Notice of Motion filed on 16 November 2015 by the present applicant (to whom I shall refer as the plaintiff) and to order that the proceedings before her Honour be tried by judge alone, and not by jury. The proceedings are for damages for defamation. 2. In April 2012 the defendants (the respondents to the present application) filed a notice of their intention to elect to have the proceedings tried by a jury. On 9 March 2015 they gave, pursuant to s 21(1) of the Defamation Act 2005 (NSW), a notice of election to have the proceedings tried by a jury. On 30 April 2015 the final hearing of the proceedings was fixed to commence on 9 November 2015, with an estimate of three weeks on the basis that it was to be a jury trial. The commencement of the hearing was postponed to 16 November 2015 because the plaintiff's counsel was unwell. On Friday 13 November 2015 the defendants notified the primary judge that they no longer wished to have a jury trial and purported to waive their right to that mode of hearing. 3. By Notice of Motion filed at first instance on 16 November 2015 the plaintiff sought a declaration that the defendants were estopped from withdrawing or revoking their election for trial by jury and, in the alternative, an order dispensing with r 29.2A(2) of the Uniform Civil Procedure Rules 2005 (NSW). The plaintiff also sought leave to serve a notice of intention to elect for a jury trial, leave to file an election for a jury trial and an order that the trial be by jury. Rule 29.2A(2)(a) provides that a party may file and serve a notice of election for a jury trial only if, inter alia, it "has served a notice of intention to file the notice of election on each other active party before a date has been fixed for the hearing of the defamation proceedings." The plaintiff did not file any such notice, nor any notice of election, prior to the proceedings being fixed for hearing. 4. By judgment of 16 November 2015 the primary judge held, following the Queensland Court of Appeal's decision in Kencian v Watney [2015] QCA 212, that a party which had elected for proceedings to be tried by jury thereby acquired a "vested or accrued substantive right" (see Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246; 81 NSWLR 315 at [50]) which it could unilaterally waive. 5. Secondly, her Honour held that a party's right, under s 21(1) of the Defamation Act, to elect for proceedings to be tried by jury continued notwithstanding that the other party had already elected for that to occur (see [8], [15], [20] and [27]). 6. Thirdly, her Honour held, following the decision of McCallum J in Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010, that she did not have the power to extend the time by which UCPR r 29.2A(2)(a) stipulates that a notice of intention to file a notice of election for a jury trial must be filed (Judgment [22]-[24]). In that case, McCallum J had rejected the defendant's submissions that there were a variety of sources of relevant power, including s 14 of the Civil Procedure Act 2005 (NSW) (see [32]-[33]). 7. In light of these findings, the primary judge commenced on 16 November 2015 to hear the proceedings without a jury. Later that day, the plaintiff was given leave by this Court to file a Summons seeking leave to appeal, returnable instanter. Counsel for the plaintiff then sought a stay of the hearing of the proceedings at first instance until the Summons seeking leave to appeal, and/or the appeal that would be pursued if leave were granted, was determined. 8. For the following reasons, I consider that the hearing of the plaintiff's application for leave to appeal should be expedited, that that application should be heard concurrently with the appeal that would lie if leave were granted and that an interim stay should be granted in respect of the hearing at first instance: 1. The application for leave to appeal puts in issue the correctness of the primary judge's three conclusions of law to which I have referred earlier (see [4]-[6]). In my view, the plaintiff has an arguable case that each is incorrect. 2. As the primary judge's decision to proceed to hear the proceedings without a jury was founded upon these conclusions of law, it did not constitute a discretionary decision in respect of which this Court would have a particular reluctance to intervene prior to the conclusion of the proceedings at first instance. 3. A party's right to elect for its defamation proceedings to be heard by a jury is one of value and importance (see Channel Seven at [69]-[79]). 4. If her Honour was in error, correction of the error on an appeal following the conclusion of the proceedings at first instance would involve considerable wastage of time and expense as it would require a re-trial before a judge sitting with a jury. Moreover, that hearing would likely be significantly different (benefitting which party is unclear) than it would have been if there had not been an earlier hearing as the transcript of the witnesses' evidence given at the earlier hearing would be available at the later hearing. 5. The Court is able to offer an early hearing date for the hearing, on a concurrent basis, of the application for leave to appeal and the appeal, namely Friday 20 November 2015. The period during which interim relief will operate will thus be limited if this offer is accepted. 1. For these reasons, I make the following orders: 1. That the plaintiff's application for leave to appeal and the appeal that would follow if leave were granted be heard on a concurrent basis on Friday 20 November 2015, with an estimate of half a day. 2. That Adamson J's decision to hear the Common Law Division proceedings numbered 2011/409423 without a jury be stayed until the determination of the plaintiff's application for leave to appeal or, if leave is granted, the plaintiff's appeal. 3. That the defendants pay the plaintiff's costs of her application for interim relief. 4. That by 5.00 pm on Wednesday 18 November 2015, the plaintiff file and serve a written summary of argument. 5. That by 5.00 pm on Thursday 19 November 2015, the defendants file and serve a written summary of argument. 6. That the plaintiff file and serve supplemented white folders by 2.00 pm on Thursday 19 November 2015. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 November 2015