Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 1707

Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 1707

The defendants' filed notice of election gave them a vested and accrued substantive right to trial by jury, but that right was capable of unilateral waiver. The plaintiff could not establish estoppel because each party had an independent right to preserve a jury trial by serving a notice of intention and filing a notice of election, and the defendants did not engage in conduct making their waiver unconscionable. Because the plaintiff had not complied with the Defamation Act 2005 (NSW) and UCPR 29.2A, the Court had no power to permit her late election for trial by jury.

Jurisdiction
Australia
Judgment Date
16 November 2015
Procedural Posture
Defamation Proceedings / Plaintiff's Notice of Motion Seeking to Prevent Withdrawal of the Defendants' Jury Election or Obtain Leave to Elect for Trial by Jury Before Trial
Outcome
Plaintiff's notice of motion dismissed; proceedings ordered to be tried by judge alone and not by jury; costs reserved.
Legal Topics
['election for Trial by Jury in Defamation Proceedings' 'waiver of Accrued Right to Jury Trial' 'compliance With UCPR 29.2 A' 'waltons V Maher Estoppel']
['defamation' 'civil Procedure' 'estoppel'] ['election for Trial by Jury in Defamation Proceedings' 'waiver of Accrued Right to Jury Trial' 'compliance With UCPR 29.2 A' 'waltons V Maher Estoppel']

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Procedural Posture

Defamation Proceedings / Plaintiff's Notice of Motion Seeking to Prevent Withdrawal of the Defendants' Jury Election or Obtain Leave to Elect for Trial by Jury Before Trial

Legal Issues

  1. 1 ["Whether the defendants' vested and accrued right to have the defamation proceedings tried by jury could be waived unilaterally." 'Whether the defendants were estopped from withdrawing or revoking their election for trial by jury.' 'Whether the plaintiff, having failed to serve a notice of intention and file a notice of election in accordance with the Defamation Act 2005 (NSW) and UCPR 29.2A, could now obtain an order that the proceedings be tried by jury.']

Ratio Decidendi

The defendants' filed notice of election gave them a vested and accrued substantive right to trial by jury, but that right was capable of unilateral waiver. The plaintiff could not establish estoppel because each party had an independent right to preserve a jury trial by serving a notice of intention and filing a notice of election, and the defendants did not engage in conduct making their waiver unconscionable. Because the plaintiff had not complied with the Defamation Act 2005 (NSW) and UCPR 29.2A, the Court had no power to permit her late election for trial by jury.

Court Disposition

Plaintiff's notice of motion dismissed; proceedings ordered to be tried by judge alone and not by jury; costs reserved.

Orders

  • ["Dismiss the plaintiff's notice of motion filed 16 November 2015." 'Order that these proceedings will be tried by judge alone and not by jury.' 'Reserve costs.']