Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010

Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010

The plaintiff's requested direction was convenient for the just, quick and cheap disposal of the proceedings because the defendants' reliance on confidential sources created real risks of prejudice and late forensic decisions concerning the statutory qualified privilege defence. The defendants could not be permitted to file a late notice of election for trial by jury because, after a hearing date had been fixed, r 29.2A prohibited filing and the s 21 right to elect had ceased to exist; the identified procedural powers could not revive that statutory right.

Jurisdiction
Australia
Judgment Date
27 July 2015
Procedural Posture
Defamation Proceedings / Interlocutory Applications Concerning Directions for Statutory Qualified Privilege and Filing a Notice of Election for Trial by Jury
Outcome
Plaintiff's application for directions granted; defendants' application to allow filing of a notice of election for a jury trial dismissed; defendants ordered to pay the plaintiff's costs of the matters determined in the judgment.
Legal Topics
['mode of Trial' 'trial by Jury' 'statutory Qualified Privilege' 'confidential Sources' 'journalist Privilege' 'directions for Conduct of Proceedings']
['defamation' 'civil Procedure' 'evidence'] ['mode of Trial' 'trial by Jury' 'statutory Qualified Privilege' 'confidential Sources' 'journalist Privilege' 'directions for Conduct of Proceedings']

Case Brief

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Procedural Posture

Defamation Proceedings / Interlocutory Applications Concerning Directions for Statutory Qualified Privilege and Filing a Notice of Election for Trial by Jury

Legal Issues

  1. 1 ['Whether the defendants should be directed to notify the plaintiff whether they maintain any defence under s 30 of the Defamation Act and, if so, identify confidential sources or state that they do not propose to disclose those identities.' 'Whether the Court has power to permit the defendants to file a notice of election for a trial by jury after a date had been fixed for the hearing of defamation proceedings.' 'If such power existed, whether it should be exercised where the failure to file the notice was due to inadvertence in the context of a practice of not incurring jury requisition fees until necessary.']

Ratio Decidendi

The plaintiff's requested direction was convenient for the just, quick and cheap disposal of the proceedings because the defendants' reliance on confidential sources created real risks of prejudice and late forensic decisions concerning the statutory qualified privilege defence. The defendants could not be permitted to file a late notice of election for trial by jury because, after a hearing date had been fixed, r 29.2A prohibited filing and the s 21 right to elect had ceased to exist; the identified procedural powers could not revive that statutory right.

Court Disposition

Plaintiff's application for directions granted; defendants' application to allow filing of a notice of election for a jury trial dismissed; defendants ordered to pay the plaintiff's costs of the matters determined in the judgment.

Orders

  • ['That the defendants, not later than 21 September 2015, notify the plaintiff in writing whether the defendants maintain any defence under s 30 of the Defamation Act.' 'If the defendants maintain any defence under s 30 of the Defamation Act, they must notify the plaintiff of the identity of any confidential sources...