Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Chel v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWCA 379 Hearing dates: 20 November 2015 Date of orders: 20 November 2015 Decision date: 02 December 2015 Before: Macfarlan JA at [1]; Meagher JA at [53]; Tobias AJA at [60] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Order that Adamson J's decision to hear the Common Law proceedings number 2011/409423 without a jury be permanently stayed unless and until her Honour or another judge makes an order under s 21 of the Defamation Act 2005 dispensing with a jury. (4) Set aside orders 1 and 2 made by Adamson J on 16 November 2015. (5) Order the respondents to pay the appellant's costs of the application for leave to appeal and the appeal. (6) Note that the Court will provide its reasons for judgment in due course. (7) Direct the appellant within seven days of today's date to file a Notice of Appeal in accordance with the draft that has been provided. 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 – whether defendants can withdraw their election – whether primary judge had the power to extend the time limits for other party to elect to have a jury trial

WORDS AND PHRASES – "elect" – Defamation Act 2005, s 21 – whether "elect" connotes a choice that is final in character Legislation Cited: Civil Procedure Act 2005 (NSW), s 14 Defamation Act 2005 (NSW), s 21 Supreme Court Act 1970 (NSW), s 85 Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 29.2A Queensland Uniform Civil Procedure Rules (1999) Cases Cited: Agricultural & Rural v Gardiner [2008] HCA 57; 238 CLR 570 Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 Attorney General (NSW) v Brewery Employees Union of New South Wales [1908] HCA 94; 6 CLR 469 Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 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 Chel v Fairfax Media Publications Pty Ltd [2015] NSWCA 355 Farah Constructions v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Immer (No 145) Pty Ltd v The Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26 Kencian v Watney [2015] QCA 212 O'Connor v SP Bray Ltd (1936) 36 SR (NSW) 248 Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634 Texts Cited: D C Pearce and R S Geddes, Statutory Interpretation in Australia (2014,8th ed) N C Seddon, R A Bigwood & M P Ellinghouse, Cheshire & Fifoot Law of Contract (2012, 10th Aust ed) Category: Principal judgment Parties: Lili Chel (Appellant) Fairfax Media Publications Pty Ltd (First Respondent) Vanda Carson (Second Respondent) Representation: Counsel: R Rasmussen/I Kirgiz (Appellant) T Blackburn SC/L Barnett (Respondents)