Chel v Fairfax Media Publications Pty Ltd. [2015] NSWCA 379. Macfarlan; Meagher JJA and Tobias AJA. The Court of Appeal has upheld an appeal brought by ...
Judgment Summary Supreme Court New South Wales Court of Appeal
Chel v Fairfax Media Publications Pty Ltd [2015] NSWCA 379 Macfarlan; Meagher JJA and Tobias AJA The Court of Appeal has upheld an appeal brought by Ms Lili Chel that arose after the Court of Appeal, on 20 November 2015, granted interim relief in relation to a decision of the Common Law Division of the Supreme Court to hear defamation proceedings without a jury after the primary judge held that Fairfax Media Publications Pty Ltd (the defendants in those proceedings below) were entitled shortly before the commencement of the hearing to withdraw their earlier election under s 21(1) of the Defamation Act 2005 (NSW) to have the proceedings tried by jury. Section 21 of the Defamation Act provides that both parties to defamation proceedings may elect for the proceedings to be tried by jury and that such an election must be made in accordance with the relevant Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). In accordance with s 21, Fairfax satisfied the pre-conditions in UCPR r 29.2A for an election for a jury trial by serving the relevant Notice of Intention and filing the relevant Notice of Election within the prescribed time limits. Ms Chel did not complete these steps or file a Notice of Motion seeking an order that the proceedings not be tried by jury. The Court of Appeal made two findings. First, it found that Fairfax was not entitled to withdraw their election under s 21 of the Defamation Act for the proceedings to be tried by a jury. In doing so, the Court declined to follow the Queensland Court of Appeal decision in Kencian v Watney [2015] QCA 212. It instead held that the proceedings should therefore be tried by a jury unless, on the application of a party, the Court made an order under s 21 dispensing with a jury. Secondly, the Court of Appeal held that a trial judge has the power under UCPR r 1.12 to extend the time limits imposed by UCPR r 29.2A for a party to make an election for a jury trial.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
