Chel v Fairfax Media Publications Pty Limited (No 2) [2015] NSWSC 1725

Supreme Court New South Wales

Medium Neutral Citation: Chel v Fairfax Media Publications Pty Limited (No 2) [2015] NSWSC 1725 Hearing dates: 12 November 2015 Decision date: 12 November 2015 Jurisdiction: Common Law Before: Adamson J Decision: (1) Decline the plaintiff's application for an adjournment.

(2) Confirm the trial date of 16 November 2015. Catchwords: PRACTICE AND PROCEDURE – application to vacate jury trial due to counsel's illness – interests of justice – time set aside by Court for hearing - application refused – no question of principle 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)

Solicitors: Beazley Boorman Lawyers (Plaintiff) Banki Haddock Fiora Lawyers (Defendants) File Number(s): 2011/409423

Judgment (EX TEMPORE – REVISED) 1. This matter was listed for hearing for a trial by jury for three weeks commencing Monday 9 November 2015. 2. It was initially listed before me at short notice on Friday 6 November 2015 for the plaintiff's application to vacate the hearing date on the grounds that Mr Rasmussen, junior counsel for the plaintiff, was indisposed. Medical evidence was adduced on that occasion as to his condition through an affidavit of Mr Beazley, the solicitor on the record for the plaintiff. I acceded to the application, vacated the hearing date, and listed the matter for hearing commencing Monday 16 November 2015, noting the estimate of three weeks. 3. I also listed the matter for mention before me this morning in order that the hearing date could be confirmed. Mr Beazley tendered in support of his application for a further adjournment a letter of Dr Bhatt whom Mr Rasmussen consulted on 11 November 2015. Dr Bhatt wrote: "He has improved with antibiotics for severe rhino-sinusitis. Unfortunately, he has caught another respiratory virus on 8/11/15 with high fever and his contagious viral conjunctivitis persists. Some of the blood tests were abnormal and I've ordered more tests. I have advised him to rest for a further week. Roger is still unfit to attend Court and will be unfit for another week." 1. Mr Beazley submitted that there was a lot of documentary material in the case; the plaintiff has five witnesses; and the defendant has subpoenaed other witnesses. He said, and I accept, that Mr Rasmussen has done a lot of the work preparing these witnesses for the purposes of the hearing. Mr Beazley informed me that this is not a simple case. However, Mr Beazley accepted that he has made no attempt to get other counsel other than that he has spoken to Mr Rasmussen and Mr Evatt, who was formerly briefed as lead counsel in the matter. They have both apparently suggested at least one other barrister, Tom Molomby SC, who, as it happens, is not available for the time allocated for the hearing of the matter. 2. Mr Blackburn SC, who appears with Mrs Barnett on behalf of the defendants, submitted that barristers often appear in Court when they are slightly, or indeed substantially, indisposed, and that the administration of justice would be jeopardised by a further adjournment, having regard to the events with which the proceedings are concerned, which took place in 2009; and the likelihood of a further hearing date which would be in the order of at least ten months away. 3. While I have sympathy for Mr Rasmussen and for his client (since it is regrettable when barristers are not well or clients need to change barristers last minute), I am not satisfied that the interests of justice favour an adjournment. It is inconceivable that Mr Rasmussen would be the only barrister at the Sydney bar prepared to run this case on behalf of the plaintiff. The preparation work having been attended to, I see no particular reason why another barrister at the defamation bar would not be able to come to terms with the material in order to represent the plaintiff to an adequate and competent standard. 4. The time set aside by this Court is an important and relevant consideration, and the obtaining of jurors for the purpose of a jury trial is another. For these reasons, I am not disposed to vacate the hearing of this matter which is listed to commence next Monday, 16 November 2015.