Chel v Fairfax Media Publications Pty Limited (No 4) [2015] NSWSC 1727

Supreme Court New South Wales

Medium Neutral Citation: Chel v Fairfax Media Publications Pty Limited (No 4) [2015] NSWSC 1727 Hearing dates: 17 November 2015 Decision date: 17 November 2015 Jurisdiction: Common Law Before: Adamson J Decision: Application for adjournment refused Catchwords: PRACTICE AND PROCEDURE – application for adjournment of hearing pending determination of application of leave to appeal to Court of Appeal from interlocutory decision – whether waste of time to continue hearing – whether plaintiff prejudiced if adjournment is refused on basis that transcript of evidence would be available at any rehearing – application refused 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. Mr Rasmussen, who appears on behalf of the plaintiff, once again makes an application for an adjournment of the proceedings until at least tomorrow morning and preferably next Monday, being Monday 23 November 2015. 2. He contended that, in all the circumstances, it would be a waste of time to continue with the proceedings having regard to the prospect that the Court of Appeal might either stay these proceedings when the matter comes before Macfarlan JA at 3pm this afternoon or, overturn the order I made yesterday that the trial continue as trial by judge alone before me. 3. If the Court of Appeal sets aside that order and decides that the plaintiff is entitled to have these proceedings tried by a jury, then Mr Rasmussen submitted, as is the case, any time spent on this trial by judge alone would be wasted. 4. Mr Rasmussen also submitted that there would be prejudice to the plaintiff if she were required to embark on her evidence before me since there is a possibility that the defendant will be able to cross-examine her, at any future trial, by reference to the transcript in these proceedings and therefore she will be at a relative disadvantage. He submitted further that it would be awkward and potentially difficult for the trial judge conducting any further jury trial in this matter, to have to explain to the jurors why there is a transcript of the plaintiff's evidence, notwithstanding that they were not present when that evidence was adduced. 5. Mr Blackburn SC, who appears with Ms Barnett on behalf of the defendants, submitted that there were no relevant factors against the matter continuing today. He contended that the plaintiff's having to give her evidence before me could not possibly amount to prejudice. He submitted that it was desirable in the interests of costs and the administration of justice that the trial continue before me today since, in the event that my order is not overturned, the time can be usefully spent in progressing the trial. He also rejected the submission made by Mr Rasmussen that the time was required to permit counsel to refine the arguments for this afternoon. Mr Blackburn submitted that he did not apprehend that there would be any particularly complex arguments made this afternoon, if at all, and it was likely that the Court would decide the question of a stay and make administrative arrangements for the hearing of any application for leave to appeal and appeal and potentially list both those matters concurrently this Friday. 6. In all the circumstances, I am not persuaded that it would be in the interests of justice to grant the adjournment and, accordingly, I refuse it.