Benhayon v Rockett (No 2) [2017] NSWSC 808

Supreme Court New South Wales

Medium Neutral Citation: Benhayon v Rockett (No 2) [2017] NSWSC 808 Hearing dates: 2 June 2017 Decision date: 02 June 2017 Jurisdiction: Common Law Before: McCallum J Decision: Period of the hearing limited to three weeks; hearing for that period listed on 3 September 2018 Catchwords: DEFAMATION – Civil Procedure Act 2005 (NSW), s 62(3) – where parties' estimate for length of trial disproportionate to the interest at stake – power to limit the time that may be taken by the hearing Legislation Cited: Civil Procedure Act 2005 (NSW), s 62(3) Defamation Act 2005 (NSW) Category: Procedural and other rulings Parties: Serge Isaac Benhayon (plaintiff) Esther Mary Rockett (defendant) Representation: Counsel: KP Smark SC (plaintiff) (mentions Ms Goodchild for the defendant)

Solicitors: Universal Law Cameron Bell & Associates (plaintiff) Goldsmiths Lawyers (defendant) File Number(s): 2015/329298

Judgment 1. This is an action for defamation which is ready to be listed for hearing. The parties have asked the Court to refer the matter to the list clerk to obtain a hearing date with an estimate of four to six weeks. 2. Having regard to the fact that each of the parties is an individual and mindful of the likely cost of a hearing of that length, I called upon the parties to provide a memorandum justifying a listing for that length of time. The parties have addressed that issue, if briefly, in a joint document. The material set out explained the complexity of the issues in the proceedings but did not address the Court's principal concern, namely, the issue of proportionality. 3. Accordingly, I called upon the parties further to say whether they wished to be heard as to whether a direction should be made limiting the listing to a period shorter than the estimate of four to six weeks by the parties pursuant to section 62(3) of the Civil Procedure Act 2005 (NSW). Neither party wished to be heard on that issue. 4. Section 62 of the Civil Procedure Act provides: 62 Directions as to conduct of hearing (1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made. (2) The court may, by order, give directions as to the order in which questions of fact are to be tried. (3) Without limiting subsections (1) and (2), the court may, by order, give any of the following directions at any time before or during a hearing: (a) a direction limiting the time that may be taken in the examination, cross-examination or re-examination of a witness, (b) a direction limiting the number of witnesses (including expert witnesses) that a party may call, (c) a direction limiting the number of documents that a party may tender in evidence, (d) a direction limiting the time that may be taken in making any oral submissions, (e) a direction that all or any part of any submissions be in writing, (f) a direction limiting the time that may be taken by a party in presenting his or her case, (g) a direction limiting the time that may be taken by the hearing. (4) A direction under this section must not detract from the principle that each party is entitled to a fair hearing, and must be given a reasonable opportunity: (a) to lead evidence, and (b) to make submissions, and (c) to present a case, and (d) at trial, other than a trial before the Local Court sitting in its Small Claims Division, to cross-examine witnesses. (5) In deciding whether to make a direction under this section, the court may have regard to the following matters in addition to any other matters that the court considers relevant: (a) the subject-matter, and the complexity or simplicity, of the case, (b) the number of witnesses to be called, (c) the volume and character of the evidence to be led, (d) the need to place a reasonable limit on the time allowed for any hearing, (e) the efficient administration of the court lists, (f) the interests of parties to other proceedings before the court, (g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute, (h) the court's estimate of the length of the hearing. (6) At any time, the court may, by order, direct a solicitor or barrister for a party to give to the party a memorandum stating: (a) the estimated length of the trial, and the estimated costs and disbursements of the solicitor or barrister, and (b) the estimated costs that, if the party were unsuccessful at trial, would be payable by the party to any other party. 1. It may be accepted that the proceedings involve issues of some complexity, including by reason of the large number of matters complained of and the correspondingly large number of imputations, the fact that there are defences of truth, contextual truth and statutory and common law qualified privilege and the generality of some of the imputations and contextual imputations sought to be justified in the proceedings. However, I do not think this Court can on any analysis warrant the allocation of a period of up to six weeks for a hearing of this kind. Were the hearing to take that long, the costs would inevitably be vastly disproportionate to the interest at stake, bearing in mind the cap on general damages under the Defamation Act 2005 (NSW), being $389,500. 2. For those reasons I direct, pursuant to section 62(3) of the Civil Procedure Act, that the period of the hearing be limited to three weeks. I list the proceedings for hearing for that period on 3 September 2018.