CITATION: Bechara v Bonacorso (No. 3) [2010] NSWDC 52 HEARING DATE(S): 16 April 2010
JUDGMENT DATE:
20 April 2010JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Defendant’s application for leave to extend time for an election for trial by jury is refused.
(2) Defendant is to pay the plaintiff’s costs on an indemnity basis.
(3) Gibson DCJ to email the parties reasons for decisions by reason of lateness of the hour.
(4) Matter stood over for further directions to 29 April 2010 at 9:00am.CATCHWORDS: TORT – defamation – hearing date allocated in September 2009 for May 2010 as 5-day non-jury trial – defendant files Notice of Motion shortly before trial seeking trial by jury – failure to comply with provisions to requisition jury – failure to give prior notice to opponent or to the court of intention to seek trial by jury – plaintiff complains of prejudice occasioned by the late application – application refused with costs on an indemnity basis LEGISLATION CITED: Civil Procedure Regulation 2005 (NSW), Schedule 1, Part 3 cl 4
Defamation Act 1974 (NSW), s 7A
Defamation Act 2005 (NSW), s 21
District Court Act 1973 (NSW), s 76A(4)
District Court Rules 1973 (NSW), Part 12 r 5
Uniform Civil Procedure Rules 2005 (NSW), Part 10 r 10.1 and Part 29 r 29.2CASES CITED: AN v New South Wales [2003] NSWSC 100
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27
Bechara v Bonacorso [2009] NSWDC 131
Bechara v Bonacorso (No. 2) [2010] NSWDC 42
Bishop v State of New South Wales [2000] NSWSC 1042
Calvert v Stollznow [1980] 2 NSWLR 749
Corby v Channel Seven Sydney Pty Limited [2008] NSWSC 245
Davis v Nationwide News Pty Ltd [2008] NSWSC 699
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182
Hart v Wrenn (1995) NTLR 17
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; (1992) Aust Torts Reports 81-200
Razvan v Berechet (NSW Court of Appeal, 23 February 1990, unreported)
Sydney Markets Ltd v Sydney Flower Market Pty Ltd [2001] FCA 662TEXTS CITED: District Court Practice Note 6
The Honourable Justice McClellan, “Eloquence and Reason - are juries appropriate for defamation trials?” <PARTIES: Plaintiff: Antoine Bechara
Defendant: Paul BonacorsoFILE NUMBER(S): 5084 of 2008 COUNSEL: Plaintiff: Ms S Chrysanthou
Defendant: Ms K ReesSOLICITORS: Plaintiff: Kalantzis Lawyers
Defendant: Puleo Lawyers
Judgment
The background to the defendant’s application
[1] The defendant, by Notice of Motion filed on 1 April 2010, brings an application that issues of liability in the trial of these proceedings, which is fixed for five days as a non-jury trial on 17 May 2010, be heard by a jury, in accordance with s 21 Defamation Act 2005 (NSW).
[2] The defendant obtained a first return date for this Motion of 23 April, before the Judicial…
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Details
- AGLC
- Bechara v Bonacorso (No. 3) [2010] NSWDC 52
- Case
- [2010] NSWDC 52
- Decision Date
CaseChat Overview and Summary
The case of Bechara v Bonacorso (No. 3) involved a dispute over a defamation claim. The matter was scheduled for a five-day non-jury trial in May 2010, with the hearing date set for September 2009. Shortly before the trial, the defendant filed a Notice of Motion seeking a trial by jury. The plaintiff objected, citing the defendant's failure to comply with the requisite provisions for a jury requisition and the lack of prior notice to either the plaintiff or the court regarding the intention to seek a jury trial. The plaintiff argued that the late application caused significant prejudice.
The primary legal issue before the court was whether the defendant was entitled to a trial by jury, and if so, whether the application could be made at such a late stage without incurring penalties. The court had to consider the procedural rules governing the requisition of a jury and whether the defendant's failure to follow these rules justified the refusal of the application. Additionally, the court had to assess the impact of the defendant's late application on the plaintiff and decide on the appropriate remedy.
The court found that the defendant's application for a trial by jury was untimely and did not comply with the necessary procedural requirements. It was determined that the defendant had not provided the plaintiff or the court with adequate notice of the intention to seek a jury trial, and thus the application was refused. The court emphasised the importance of adhering to procedural rules to ensure fairness and avoid unnecessary prejudice. Consequently, the defendant was ordered to pay the plaintiff’s costs on an indemnity basis. The matter was stood over for further directions, with the reasons for the decision to be communicated via email by the judge.
The primary legal issue before the court was whether the defendant was entitled to a trial by jury, and if so, whether the application could be made at such a late stage without incurring penalties. The court had to consider the procedural rules governing the requisition of a jury and whether the defendant's failure to follow these rules justified the refusal of the application. Additionally, the court had to assess the impact of the defendant's late application on the plaintiff and decide on the appropriate remedy.
The court found that the defendant's application for a trial by jury was untimely and did not comply with the necessary procedural requirements. It was determined that the defendant had not provided the plaintiff or the court with adequate notice of the intention to seek a jury trial, and thus the application was refused. The court emphasised the importance of adhering to procedural rules to ensure fairness and avoid unnecessary prejudice. Consequently, the defendant was ordered to pay the plaintiff’s costs on an indemnity basis. The matter was stood over for further directions, with the reasons for the decision to be communicated via email by the judge.
Orders
Orders of the court
(1) Defendant’s application for leave to extend time for an election for trial by jury is refused.
(2) Defendant is to pay the plaintiff’s costs on an indemnity basis.
(3) Gibson DCJ to email the parties reasons for decisions by reason of lateness of the hour.
(4) Matter stood over for further directions to 29 April 2010 at 9:00am.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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