Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191

Wing v Fairfax Media Publications Pty Limited [2017] FCAFC 191

Sections 21 and 22 of the Defamation Act 2005 (NSW) prescribing jury trial and jury/judge division of functions are inconsistent with ss 39 and 40 of the Federal Court of Australia Act under s 109 of the Constitution, and are not picked up by s 79 of the Judiciary Act. The discretion to order jury trial under s 40 is to be exercised by reference to whether the ends of justice in the particular case render it expedient, and no relevant special reason or advantage was established in this matter to depart from the normal mode of judge-alone trial. Thus, the application for a jury trial is dismissed.

Parties
Applicant: Chau Chak Wing; First Respondent: Fairfax Media Publications Pty Limited; Second Respondent: John Garnaut
Jurisdiction
Australia
Judgment Date
27 November 2017
Procedural Posture
Defamation Proceeding (application for Civil Jury Trial, Interlocutory) / Interlocutory Application—application for Jury Trial Under S 40 Federal Court of Australia Act, Resolved by Full Court
Outcome
Interlocutory application for jury trial dismissed with costs to applicant.
Legal Topics
Trial by Jury in Civil Cases, Interplay of Federal and State Laws, Qualified Privilege in Defamation, Section 109 Inconsistency, Application of Judiciary Act S 79, Exercise of Discretion Under S 40 Federal Court of Australia Act
Practice and Procedure Constitutional Law Defamation Trial by Jury in Civil Cases Interplay of Federal and State Laws Qualified Privilege in Defamation Section 109 Inconsistency Application of Judiciary Act S 79 +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 30 Party arguments 2
Sign in to unlock

Parties

Chau Chak Wing

Applicant

Fairfax Media Publications Pty Limited

First Respondent

John Garnaut

Second Respondent

Procedural Posture

Defamation Proceeding (application for Civil Jury Trial, Interlocutory) / Interlocutory Application—application for Jury Trial Under S 40 Federal Court of Australia Act, Resolved by Full Court

Legal Issues

  1. 1 Whether ss 21 and 22 of the Defamation Act 2005 (NSW) are inconsistent with ss 39 and 40 of the Federal Court of Australia Act 1976 (Cth) under s 109 of the Constitution
  2. 2 Whether ss 21 and 22 of the Defamation Act are 'picked up' by s 79 of the Judiciary Act 1903 (Cth) in Federal Court proceedings
  3. 3 Whether the Court should have regard to ss 21 and 22 of the Defamation Act in exercising its discretion under s 40 of the Federal Court of Australia Act

Ratio Decidendi

Sections 21 and 22 of the Defamation Act 2005 (NSW) prescribing jury trial and jury/judge division of functions are inconsistent with ss 39 and 40 of the Federal Court of Australia Act under s 109 of the Constitution, and are not picked up by s 79 of the Judiciary Act. The discretion to order jury trial under s 40 is to be exercised by reference to whether the ends of justice in the particular case render it expedient, and no relevant special reason or advantage was established in this matter to depart from the normal mode of judge-alone trial. Thus, the application for a jury trial is dismissed.

Court Disposition

Interlocutory application for jury trial dismissed with costs to applicant.

Orders

  • The respondents' interlocutory application dated 4 November 2016 be dismissed.
  • The respondents pay the applicant's costs of and incidental to the application.