Bottrill v Graham (No 3)

[2025] NSWDC 306

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bottrill v Graham & Anor (No 3) [2025] NSWDC 306

Hearing dates:

22, 29 May, 5 June and 12 June 2025

Date of orders:

12 August 2025

Decision date:

12 August 2025

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

See [61]

Catchwords:

TORT – defamation – three podcasts imputing the plaintiff is the world leader of a paedophile murder and blood-drinking ring of criminals - defendants seek trial by jury – form 23A Election for Trial by Jury filed and served – plaintiff’s Notice of Motion to refuse application for trial by jury – practical difficulties, logistical problems and the need for prolonged examination of documents and podcasts – Notice of Motion granted – second defendant’s application for a second pro bono lawyer pursuant to UCPR r 7.36 – whether “special reasons” made out – hearing date already set and amount of work involved would be very substantial - application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56 – 62

Defamation Act 2005 (NSW) s 21

Jury Act 1977 (NSW) ss 20, 22, 38(8)(b) and 58

Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 7.39 and 29.2A

Cases Cited:

Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383

Bailey v Bottrill (No 2) [2019] ACTSC 167; 14 ACTLR 108

Bottrill v Graham & Anor (No 2) [2025] NSWDC 221

Bottrill v Graham [2024] NSWDC 566

Bottrill v Sunol [2018] ACAT 21

Bottrill v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26

Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315

Cristian v Bottrill [2016] ACTSC 315

David Bottrill v Dyson Devine and Vivienne Legg CS 05/50690

Doe v Dowling [2019] NSWSC 1222

E1 v E2; E Pty Limited v E2 [2023] NSWDC 411

Gatto v Australian Broadcasting Corporation (No 1) [2020] VSC 420

Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 290

Goldsworthy v Seven Network Limited [2013] NSWSC 344

Hanrahan v Ainsworth (1990) 22 NSWLR 73

Hordern v State of New South Wales [2015] NSWSC 959

Malan v Silvas [1992] NSWCA 143

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87

McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133

Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott - Final [2024] NSWSC 1489

Mohareb v State of New South Wales [2025] NSWCA 156

Ordo Templi Orientis Inc & Anor v Devine & Anor (Anti-Discrimination) [2007] VCAT 2470

Ordo Templi Orientis v Legg (Anti-Discrimination) [2007] VCAT 1484

Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14

Prosecutor v. Nyiramasuhuko et al. (2015) Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR)

Purcell v Cruising Yacht Club of Australia and 2 Ors [2001] NSWSC 926

Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41

Texts Cited:

“Equality before the Law Bench Book”, 2006, New South Wales Judicial Commission

Category:

Procedural rulings

Parties:

Plaintiff:
Mr David Bottrill

First Defendant:
Mr David Michael Graham
Second Defendant:
Mrs Cathryn Gale Gibson (Self-represented)

Representation:

Counsel:
Plaintiff:
Mr N Kirby

First Defendant:
Mr R Armitage

Solicitors:
Plaintiff:
O’Connor Legal

First Defendant:
Redline Legal

File Number(s):

2024/00334742

Judgment

The claim before the court

1. These are proceedings for defamation for publication of three three-hour-plus podcasts called “Guru ‘n’ Crew” on the X social media platform in January and February 2024. Each of the three podcasts is asserted to impute that the plaintiff, a retired public servant, is the world leader of an international paedophile child murder and blood-drinking ring of criminals.

2. The defendants initially represented themselves. After the second defendant unsuccessfully challenged service of the statement of claim (Bottrill v Graham [2024] NSWDC 566) both defendants sought a referral for legal assistance from the Pro Bono Legal Panel for legal assistance, an order I made on 21 November 2024. Since that time, the first defendant has been legally represented. The matter was set down for hearing on 23 March 2026.

The parties’ applications

3. The second defendant brings an application for further pro bono assistance. The second defendant had received pro bono assistance during December 2024 and January 2025 but, on 22 January 2025, the barrister appointed to assist the second defendant terminated her retainer pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 7.39. I have refused that application and set out my reasons for doing so at the end of this judgment.

4. The principal issue before the court is the parties’ submissions as to the mode of trial. On 30 June 2025, following a ruling on serious harm (Bottrill v Graham & Anor (No 2) [2025] NSWDC 221), a hearing date was allocated. A timetable for discovery and interrogatories was set up so that the parties could ready themselves for a hearing on that date. Both defendants are in breach of that timetable. Instead, on 1 July 2025, the first defendant, filed an application pursuant to s 21 of the Defamation Act 2005 (NSW) (“the Act”) and UCPR r 29.2A for these proceedings to be heard by a jury, having served and then filed a Form 23A Election for Trial by Jury in Defamation Proceedings (hereafter “election” or “notice”). The second defendant supports the first defendant’s election for trial by jury.

5. The plaintiff brings an application, by Notice of Motion filed on 21 July 2025, that this election should be struck out so that the trial can proceed as a non-jury hearing on 23 March 2026 (it is not in dispute that a jury trial cannot proceed on the allocated hearing date of 23 March 2026).

6. The plaintiff initially also submitted that the “election” filed on 1 July 2025 was invalid, as the accompanying filing fee (see Schedule 1, Part 3 of the Civil Procedure Act 2005) had not been paid: Palavi v Radio 2UE Sydney Pty Limited [2012] NSWDC 14 at [10] – [24] and a hearing date for a non-jury trial had been allocated. However, the plaintiff now withdraws the objections to the validity of the election as the parties agree that this document should not have been filed and that the election has not been made. This means that I am treating the election as having been served for the purposes of UCPR r 29.2A and not as having been filed.

An overview of the issues

7. The parameters of the argument concerning trial by jury are narrow. When a jury trial is sought, Mr Armitage submits that such an election should always be permitted unless exceptions under s 21(1A) can be invoked: Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315 (“Fierravanti-Wells”); Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 (“Ange”). He submits that “the interests of justice” have no part to play. He points to the long history of emphatic endorsement by appellate courts of the key role played by the jury in defamation proceedings: Hanrahan v Ainsworth (1990) 22 NSWLR 73 at [88]; Malan v Silvas [1992] NSWCA 143. The jury’s role as a tribunal of fact is all the more relevant, it is submitted, where the podcasts in question raise issues that are of vital public importance, such as international conspiracies to rape and murder children and drink their blood and the coming apocalypse where evildoers like the plaintiff must suffer the consequences. Mr Armitage submits that both defendants are entitled to a tribunal in which they can repose confidence, namely a jury rather than a judge.

8. Mr Kirby, for the plaintiff, submits that, on the facts in this case, the exceptions identified in s 21(1A) are made out.

Practical difficulties in this case

9. What must be addressed in this application is the practical difficulties which are posed by the requisition of a jury in the factual circumstances of this case, which would include:

1. Length: The length of the matters complained of (three podcasts totalling nine and a half hours, all of which the jury would have to listen to) and the likelihood of tender of many similar podcasts.

2. Empanelment problems: The parties would have to read out to the prospective jurors a list of at least 200 persons and organisations named in the matters complained of as being guilty of paedophilia, child murder and other crimes. Members of entire religious groups (such as Catholics and Jews) and members of Rotary and Masons would also shave to consider whether they could determine impartially publications which call for their “capture” (to use one of the euphemisms for execution) or for them to be “shot” are made. Mr Kirby points out that if other podcasts are tendered, there may be many more persons or organisations whose identity must be put to the jury panel.

3. AVL use: How the mode of trial can accommodate the second defendant who, whether she is represented or not, cannot leave Tasmania and will have to appear via AVL not only to give evidence but for the whole of the trial, including calling and cross-examining witnesses. Her duties as a carer for her husband and two sons as well as the three hours a day she has to spend at her parents’ home caring for them mean that her ability to participate in the trial will be limited. There may be adjournments for this reason.

4. Calls on the court’s resources caused by the defendants’ lack of funds: There would be substantial document preparation including court books, provision of technical equipment and other resources over a period of some weeks. The defendants must be separately represented and the two teams of pro bono lawyers (if the second defendant is legally represented) would require support from the court. The second defendant has told the court that she can make no financial contribution whatsoever.

5. Panel problems: There is a greater risk of the trial miscarrying in circumstances where there is only a jury of four; if more than one juror has to withdraw, there will be insufficient jurors, and the trial will have to start over again. There can be special circumstances permitting a jury of twelve under the Jury Act 1977 (NSW), but the defendants do not satisfy any of the criteria.

6. Deliberation time problems: There will be difficulties in accommodating listening to the matters complained of to the limited time given for civil juries to answer the jury questions under the Jury Act.

The matters complained of

10. Many of these problems arise because of the nature and length of the matters complained of. A brief summary of their content is set out in Bottrill v Graham (No 2) at [34]. All three podcasts consist of nauseating content, diffuse profanity, warnings of mass unrest and a call to arms. There are many veiled threats (a common feature of extermination language: Prosecutor v. Nyiramasuhuko et al. (2015) Trial Chamber of the International Criminal Tribunal for Rwanda (ICTR) (“sweep the dirt outside”)). The reason for the speakers’ caution is that other persons and organisations (in particular, @cookerwatch and other “trolls” (to use the second defendant’s explanation of them in her submissions to me) who sought to expose the defendants’ activities were listening in, and were out to make trouble for them.

11. Even with this warning, the speakers, led by the first defendant, make it plain that they call for the overthrow, not only of the government of Australia (where four million people did not vote and millions more died from Government vaccinations), but governments and their police and armed forces across the world, as the oppressed rise up to fight for their rights “get these people the fuck out of here” (concluding comments to the second matter complained of). There is not much future for anyone in this sadopopulistic futureworld (Mr Kirby called it a “Manichean struggle between good and evil”) of violence and retribution; the most that can be hoped for in this coming conflagration is that evildoers like the plaintiff and his underlings are suffering more.

12. The plaintiff is specifically identified as a target for extermination by the guest speaker for all three podcasts, “Luke”, as the plaintiff is “the leader” of the Ordo Templi Orientis (“OTO’) which has taken over the Masons and is complicit with “evil” Catholics such as the Pope. The second defendant expresses pleasure in one of the speakers’ descriptions of the “capture” of Masons, which is starting now, as they had targeted her in the past (3 February 2024 podcast at 13.02 minutes); she also refers to Rotary. Luke adds that these paedophiles, who are “all Masons” are assisted by the High Court which “confirmed acts of kidnapping”. The High Court is but one of the many courts and tribunals identified. Many judges and courts are described in scathing terms as being corrupt and the plaintiff’s previous success in court proceedings is attributed to his high position in this vast paedophile network.

13. Mr Armitage submitted that the length of the matters complained of would have little impact on the trial, for two reasons:

1. There were “large swathes of material” (he suggested at least two or three hours of the matters complained of) which did not refer to the plaintiff and which were irrelevant; as a result, “very significant slabs” (also described as “huge slabs”) would be objectionable and have to be excluded. He said he had gone through the podcasts and prepared examples of these irrelevant and objectionable portions, in relation to the first podcast (these are set out below).

2. The jury would not be entitled to listen to the audio more than once. If the jury listened to the whole of the nine and a half hours at the commencement of the trial, Mr Armitage insisted that they would not be entitled at a later stage to say, "We'd like to listen to all nine hours again" because, “as a matter of judicial control of the proceedings, it would be at odds with any sensible forensic purpose”. Mr Armitage stressed that, for the purpose of determining defamatory meaning, the jury were only entitled to listen to the podcasts and matters complained of once. Mr Armitage assured me that rulings of this kind would be made by the trial judge. He stated that the parties would “negotiate which parts plainly have nothing to do with the issues in dispute” (Mr Kirby responded that no such agreed course would occur).

“Irrelevant” portions of the matters complained of

14. The whole of the podcast is relevant as content. Although Mr Armitage challenged the proposition that “Luke” was the invited guest for each podcast, spoke throughout it and was there from each podcast’s beginning until the end, the podcast contents confirm that this is in fact the case. Those portions of the podcast outside the matters complained of are relevant in order to demonstrate this. Similarly, those portions of the podcasts outside the parameters of each of the matters complained which are capable of demonstrating both defendants’ role in the podcast, including muting or shutting out “trolls” (and asking other listeners to "name and shame” any naysayers attempting to put views contrary to those of the “Guru” and his acolytes), are relevant to the issues of identification and the defences of qualified privilege and opinion.

15. Mr Armitage’s provided extracts from the first matter complained of which he says demonstrate that this was just a podcast chat about politics generally, such as a retirement from parliament of a former Prime Minister and the war in Gaza.

16. It is important to put these in context first.

17. In the opening part of each of the podcasts the first defendant introduces “Luke” as someone with exciting information on two topics. First, the first defendant is keen to talk with the “cookers” who are blocking his path to public attention by, inter alia, warning a journalist to stop the plaintiff being interviewed on air. Before this, the first defendant has already made a rousing speech (at 25:46 minutes) about how “we are in a war” and warning that if his followers “run out there and try and shoot people in the head with bullets” the evildoers are “gonna try and take you out” so everyone needs to get “strategic”, which includes knowing who the enemy is. This is what leads to Luke’s attack on the plaintiff (at 26:40 minutes) which is followed by general commentary about the “satanists” and the first defendant’s warning about the coming war and the shootings, the “great beast Beelzebub”. Aleister Crowley (whose teachings are part of OTO), an excursus into personal cleanliness and a warning from the first defendant that, when talking to young people they were hoping to recruit, not to “blow their heads off with people eating kids and drinking blood, you know what I mean?”.

18. Having set out this context, the next step is to consider Mr Armitage’s chosen examples of material that should be excised:

1. The first matter complained of, at 40:07 minutes: Mr Armitage submitted that this was a discussion about “ScoMo” going to the United States to meet with “Trump’s former colleagues” and that “He’s been positioned by the puppets about what’s coming, you know, the Trump train”. Mr Trump has been “waking everyone up to the fact of what’s gone on. That’s our job, as he said, to pick up our cross, guys, bear it, and wear it, and walk with it. You know what I mean? And that’s what we gotta do now, Australia” says the first defendant. The next speaker interrupts to add that “well, we know…whether we know it or not, we’re all part of…we’re all part of the Anons. That’s all the information. The Anons pass on the information. So, you know...” following which the first defendant interrupts to agree, adding “we’re doing it all right. Excellent guys”.

2. These elliptical references to “waking up” and having to perform distasteful deeds in order to save Australia are ubiquitous in the conversations of the podcast; this is why their words are carefully chosen because “trolls” are listening in. The level of threat needs to be seen in the context of references to there being a coming war, a “Night of the Long Knives”, when the evil Satanists and Luciferians (and the plaintiff, who has been identified as the leader earlier by “Luke”) will be put to the sword.

3. The first matter complained of, at 41:24 minutes: Mr Armitage submitted that this referred to rock climbing and riding bikes. However, what @mrsollutions1 and the first defendant are discussing is not outdoor sport but how people have to put these pleasant activities aside to prepare for the apocalypse as otherwise the evildoers, who are “slowly boiling the frog” and cutting out activities people are allowed to do until they are just sitting in their house and being controlled, just like in “1984”. “It’s 1984, bro”, is the reaction from @Drunkleopardo”.

4. I agree with Mr Kirby that the themes of George Orwell’s novel have nothing to do with rock climbing or riding bikes; this is a warning to prepare for the apocalypse.

5. The first matter complained of, at 43:10 minutes: Mr Armitage submitted that the first defendant is talking about cricket. Closer examination of the text shows that he is using cricket as an analogy for court proceedings where “they” make the rules and have the playbook. The first defendant actually says: “That’s my analogy on going to court”. This leads to a discussion about how to prepare for court cases where these true believers are at a disadvantage against “guys [who] know their Black’s dictionary” where it is very difficult to win given that it is an “old system that they created”. This leads to the first defendant mentioning his own upcoming court case where he was to be sentenced for his conduct towards a journalist. The references to an unfair and corrupt legal system where the rich paedophiles win is, like Ariadne’s skein of wool, a thread leading to the plaintiff’s corrupt court cases where he won despite lying about the OTO and its followers not being paedophile child murderers and blood drinkers.

6. The first matter complained of, at 1:31:01 hours: Mr Armitage submitted that this is a reference to the Israel/Palestine war and the massacre of 500,000 West Papuans by Indonesia. However, this is not what is being discussed at all. What the speakers are saying is that “you’re being played, folks” when expressing concerns over dead Palestinians or Jews, or the West Papua death toll, because the real war that is going to happen is not these wars, which are designed to be distractions, but “a subtle game being played” in order to “eke out and reveal” the bad guys, a “simulated reality” where “everything that we’ve been told is a complete lie”. This then descends into a discussion as to whether this war is an intergalactic one. There is no significant connecting factor to the plaintiff, but it is an important example of the level of discussion between those participating in the podcast and therefore relevant to the defences.

19. Mr Armitage submitted, in a broad fashion, that there were many more parts of the matters complained of that had nothing to do with the evil paedophile international conspiracy, such as “discussion about Donald Trump [and] Joe Biden” and said that he did not agree that these references were “about, in some umbrella sense, what the plaintiff’s suing on.”

20. Mr Kirby, in reply, pointed to each of these examples containing material about a secret cabal of top officials (one of whom is clearly identified as the plaintiff and others of whom are country leaders) having secret meetings to strategize how to hide the sins of wealthy paedophiles and sex offenders, including their own depraved sexual activity.

21. Mr Armitage said that he had gone through the matters complained of to find examples of this kind, so it is safe to assume these are the best examples he could find. I can see how the defendants would be anxious to excise as much as possible from these publications – the references to the intergalactic war are simply ridiculous but other statements, such as the claim of execution and replacement of five members of the Royal Family are surprisingly hurtful – but I cannot see that any of the examples given to me would result in such a step.

22. The result is that any trial that proceeds must allow for extended time for the opening addresses to allow a day for each of these matters to be heard as well as for considerable further time for other podcasts of this kind. The transcript of them would be an aide memoire only. I note that the second defendant tendered third party podcasts discussing the matters complained of, which I assume will be similarly lengthy.

Restrictions on the jury listening to the matters complained of more than once

23. Mr Armitage’s second reason, namely the assertion that the trial judge would not permit the jury to listen to the matters complained of more than once, conflates the ordinary reasonable reader test with the role of the jury in determining form and capacity of imputations. The ordinary reasonable reader (or, in this case, listener) would read the matter once and the jury can be told this, but that does not mean that the jury members are only entitled to listen to the matters complained of only once.

24. Nor does it mean that a transcript can be used as a substitute for listening to the matters complained of, which they are entitled to listen “more than once” both in the court room and the jury room: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87 at [39] per Levine J. Caution in the use of a transcript should be exercised: Purcell v Cruising Yacht Club of Australia and 2 Ors [2001] NSWSC 926 at [11].

25. Any intrusion into the jury’s role by preventing them from listening to the matter complained of during jury deliberations would constitute “an unwarranted and illegal intrusion into the secrecy of the jury's deliberations”; moreover, those deliberations “are secret and must remain so, and just as the conversations of jurors in the jury room are immune from review, [so] their replaying of the tape and the number of times they do so would, in my view, amount to no more than a review of their deliberations and cannot be permitted”: Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 290 at [10].

26. The citations set out in the previous paragraphs come from actual jury trial rulings. None of these were referred to by Mr Armitage in his submissions. The strong language of Dunford J, an experienced jury trial judge, contains wise warnings against the course Mr Armitage assures me would be taken at a jury trial.

27. The jury is entitled to listen to the matters complained of (as well as other evidence they wish to read, listen to or watch) for as long as they consider necessary for their deliberations. The result is that jury deliberations are likely to take much longer than the four-hour period referred to in s 58 of the Jury Act 1977 (NSW).

28. This is, however, only one of the many problems likely to arise if these proceedings are heard by a jury.

Problems with jury empanelment

29. Section 38(8)(b) of the Jury Act 1977 (NSW) requires the trial judge to request any potential juror to seek to excuse themselves from jury service if they consider that for appropriate reasons, they may not be able to give impartial consideration to the case.

30. As already noted, given the large number of persons and organisations accused of very serious crimes, empanelment will be a lengthy process. That much is acknowledged by Mr Armitage.

Loss of more than one juror during the trial

31. Even after selection, further problems may arise during the trial. Section 20 of the Jury Act provides for a civil jury of four and s 22 goes on to state that, if one of the four jurors dies or is discharged, the jury may continue with three members.

32. However, there are no provisions permitting the court to empanel, for example, five or six jurors instead of four. This means that if more than one juror has to be excused from the trial, the panel must be discharged as a whole, and the trial commence again with a fresh panel.

Prolonged examination of documents

33. These would include:

1. The matters complained of are only three of the daily podcasts made by the first defendant on X. All these other podcasts appear to be of similar length, namely around three hours. It is unclear how many of these additional podcasts would need to be listened to, but their content and style would be relevant to issues in the trial ranging from the defences to credit, for the same reasons as the numerous pornographic DVDs in Ange.

2. As is set out in Bottrill v Graham (No 2) at [2], the plaintiff and the OTO have been the target over the past two decades of very grave allegations of raping and murdering children and of drinking their blood as well as menstrual blood (see Ordo Templi Orientis v Legg (Anti-Discrimination) [2007] VCAT 1484 at [24]). The second defendant in particular has called for the plaintiff to produce all earlier defamation, anti-discrimination and contempt court and tribunal proceedings, including not only first instance proceedings but also the decisions on appeal; these include Ordo Templi Orientis Inc & Anor v Devine & Anor (Anti-Discrimination) [2007] VCAT 2470; Ordo Templi Orientis v Legg (Anti-Discrimination) [2007] VCAT 1484; David Bottrill v Dyson Devine and Vivienne Legg CS 05/50690; Bottrill v Van Lieshout & Ors (Civil Dispute) [2015] ACAT 26; Cristian v Bottrill [2016] ACTSC 315; Bottrill v Sunol [2018] ACAT 21; Bailey v Bottrill (No 2) [2019] ACTSC 167; 14 ACTLR 108. The first defendant has not yet provided categories but may be assumed to have similarly broad requirements. The amount of documentation can only be guessed at.

3. The plaintiff has discovered about 30 books relating to OTO history and philosophy. It is likely that his list will be challenged, given the particulars of contextual justification.

34. This is probably just the beginning. It is difficult to be more precise concerning the extent of documentation, as the defendants have to date failed to comply with orders to provide categories of discovery and lists of documents (in the case of the first defendant) and inter-defendant discovery (in the case of both defendants). Only the plaintiff has provided a List of Documents. The plaintiff has served categories of documents for discovery from the defendants without success.

Impact on the jury

35. Much of the reading and listening materials will be disgusting, profane and at times ridiculous.

36. Courts expect juries to be able to confront such material with equanimity. The mere fact that there is distressing or repellent content is not, of itself, grounds for refusing a trial by jury. In Ange, the plaintiff, a notorious pornographer, submitted that the jury would have to look at what was described as “hours” of videotape of a confronting sexual nature. This submission was rejected by Garling J, as juries in criminal trials hear evidence of this kind on a regular basis.

37. Carefully instructed, a jury could be assisted through such publications, but the risk of more than the maximum of one juror needing to be excused out of only four is of concern. Some weight, although very limited, should be given to this factor.

Assisting querulents and litigants in person

38. The content of the matters complained of falls within the rubric of sovereign citizen-style publications. Courts are developing a series of special case management strategies to deal with such claims but there have been few civil jury trials involving litigants in person. Most such cases involve matters before the Local Court, where there are no juries. The Judicial Commission has provided some information about procedural issues in the “Equality before the Law Bench Book”, 2006 in Section 10 (“Self-represented parties”).

39. In civil actions of a non-jury nature, courts have accommodated these problems on an ad hoc basis, such as by not requiring rulings on obviously hopeless arguments. Many courts have Litigant in Person Guidelines (see, for example, the Supreme Court’s Self-Represented Litigant Fact sheet) and some courts, such as the Victorian County Court, have special case management lists for all litigants in person. Many judgments refer to court time as a valuable resource and remind litigants that other court users’ rights must be taken into account. The difficulty is that most of these resources are aimed at persons who are self-represented for financial reasons, as opposed to persons seeking a forum for their conspiracy theories.

40. In non-defamation actions where trial by jury may be sought but where leave is required, the courts have not been receptive to jury trials taking place where a litigant in person or a querulent is before the court: Mohareb v State of New South Wales [2025] NSWCA 156 at [47]. This is also the case in defamation proceedings. In McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 “McGrane”), Daubney J did not simply deny the plaintiff, a convicted murderer, a jury, but struck the whole claim out. These problems derive not only from the complexity of defamation law but also from the use of smaller jury panels (in New South Wales, only four persons). A similar ruling was made where the party seeking a jury was likely to use the proceedings as a soapbox: Doe v Dowling [2019] NSWSC 1222.

41. It is not in dispute that issues of court resources and the cost of a lengthy trial are not to be considered these are part of the “universal characteristics” of jury trials: Fierravanti-Wells at [83]. There is no inconsistency between additional length and costs of jury trials and the overriding purposes of ss 56 – 62 of the Civil Procedure Act 2005 (NSW): Goldsworthy v Seven Network Limited [2013] NSWSC 344 at [52] – [54]. However, the problems in this case are not case management issues of the universal kind referred to in Fierravanti-Wells; they are special procedures put in place to cope with the rising tide of conspiracy and sovereign citizen-based litigation which has become an issue of concern in relation to the administration of justice. These concerns underlie all the bases upon which the plaintiff’s Notice of Motion is brought.

42. Another difficulty for the conduct of the trial would be the impact of the second defendant’s inability to attend court in person, whether she is represented or not. The inability of parties to attend court in person for a defamation jury trial was considered to be a significant barrier to conduct of a jury trial in Gatto v Australian Broadcasting Corporation (No 1) [2020] VSC 420. A significant factor in Gatto v Australian Broadcasting Corporation (No 1) was that, as is the case here, the proceedings had already been allocated a hearing date that would now be lost, and the delay involved could be considerable due to court resources problems, due to Covid restraints. There are no Covid restraints now, but there are other factors stretching this Court’s resources to the limit. Particular problems arise where the party seeking the jury trial is both self-represented and anxious for a public forum, as McGrane demonstrates.

McGrane v Channel Seven Brisbane Pty Ltd

43. Dr McGrane had been convicted of the murder of a female patient who had made a complaint that he had sexually molested her. He brought a claim for defamation seeking $90 million in damages following the podcast of a documentary which described the murder accurately but, inaccurately, claimed he had been found guilty of sexually molesting nine other women. In fact, he had only been convicted of the murder of his patient and no findings had resulted from complaints by other women patients.

44. The defence of contextual truth was pleaded and Dr McGrane sought trial by jury. The defendant sought the striking out of the whole proceedings, arguing inter alia that a jury trial was impossible, given the lengthy and tortured pleadings drafted by the plaintiff, the complexities of the defence of contextual justification and the need for properly drafted documentation to be put before the jury to ensure a fair and just result.

45. Daubney J (at [22] – [26]) accepted the third of these three submissions and struck out the whole of the proceedings on the basis that the plaintiff’s pleadings and the way he intended to put the case to the jury would prevent a fair trial taking place:

“It is a fundamental tenet of our procedural rules that pleadings have the function of stating with sufficient particularity the case that must be met. This requirement ensures that the opponent has the opportunity of meeting the case against them and also to assist in defining the issues for decision.

Those requirements have particular significance in defamation actions, which are conventionally tried by jury. In this case, the plaintiff has sought trial by jury. It was formerly the custom for the pleadings in a defamation case to be read to the jury at the commencement of the trial. Since Practice Direction 1 of 2002, in Queensland an alternative approach has been adopted, namely for counsel for the plaintiff to read out a statement, agreed between the parties, which sets out:

(a) the essential facts necessary to establish the plaintiff’s claim.

(b) the essential facts necessary to establish any defence relied on by the defendant.

(c) details of all admitted facts.

(d) the issues in question for resolution by the jury.

The allegations made in the ASOC are so diffuse as to render it impossible, in my view, to produce a meaningful and useful statement such as is contemplated by Practice Direction 1 of 2002.

Paragraphs 2.4 and 2.5 of the ASOC do not in any way comply with the fundamental purpose of the pleading, and ought be struck out.

In light of my conclusion as to the fundamental defects in these parts of the ASOC, it is not necessary for me to consider a further argument advanced by the defendant on the basis of s 26 of the Defamation Act 2005, i.e. the defence of contextual truth.”

46. There are factual differences – in McGrane it was the pleadings, rather than the matter complained of, that were lengthy and bizarre – but the problem of a querulent litigant whose conduct of the trial could render it unfair, leading to a discharge or perverse findings, is submitted to be common to both cases. Some weight should be given to the concerns expressed by Daubney J.

Conclusion: the plaintiff has established the exceptions in s 21(1A) apply

47. The importance of the right to a trial by jury is a central feature of claims for defamation in New South Wales and is governed by s 21(1A). However, s 21(1A) also requires the interests of justice to be taken into account in appropriate cases. As well as the usual factors raised in such applications, the Court must also ensure, as Daubney J observed in McGrane at [21] – [25], that the proceedings must be able to be managed efficiently by the court. In Michael Wilson & Partners Ltd as the assignee of Robert Colin Nicholls & Temujin International Limited (as trustee of Temujin International (trading) Trust) & Temujin Services Limited v Emmott - Final [2024] NSWSC 1489 at [76], Hammerschlag J stated: “This Court is not the plaything of parties or practitioners”.

48. The right to seek trial before a jury is a cherished and important part of our legal system. In the present case, a careful consideration of the matters complained of, the procedural history, the difficulties identified by the plaintiff in empanelling and conducting the trial, including prolonged examination of documents, the potential misuse of the proceedings as a soapbox for the defendants’ apocalyptic world views are more than sufficient to warrant a refusal of this right under ss 21 of the Act.

The second defendant’s application for further pro bono assistance

49. The second defendant’s request for further pro bono assistance (brought at the end of the parties’ submissions) is a matter which the other parties have essentially left to the court. Mr Armitage did, however, submit that “special reasons” applied only where the new application for pro bono assistance was made in relation to a different matter, and that if a pro bono assistance order were made but the retainer terminated, the party with the benefit of the order could return to ask for another barrister or solicitor. This submission is incorrect. Even where the fresh application is made in the same proceedings, there is still a requirement to establish “special reasons”: Hordern v State of New South Wales [2015] NSWSC 959 at [12] – [13].

50. The second defendant relies upon a confidential affidavit she prepared, setting out her dissatisfaction with the previously designated pro bono advice lawyer. She complains she was unable to understand her English because of her accent, that she went on holidays for a long period and that she only gave her 48 hours to reply and was generally unhelpful.

51. The practitioner assigned to the second defendant has appeared before me in several interlocutory hearings. On those occasions, she was well-prepared and courteous and had a clear speaking voice. She was unavailable between Christmas and 9 January, which I consider reasonable. She terminated her services because she sent half a dozen emails to the second defendant to contact her but received no reply.

52. I do not regard this practitioner’s conduct as warranting criticism, a factor relevant to this application: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41. The real problem appears to be that she gave advice the second defendant did not agree with.

53. The second defendant was unable to enunciate what kind of assistance she would require, or for how long, but if she is expecting to obtain a grant of legal assistance for all steps up to and including conducting the hearing commencing on 23 March 2025, that would be a substantial amount of work.

54. The Pro Bono Panel in this Court is conducted by the Registrars. Its resources are limited and they are stretched to breaking point due to the rising number of litigants in person before the court, a problem I have referred to in a number of recent judgments, not only in relation to defamation (where the percentage of hearings involving litigants in person is of particular concern) but in civil litigation generally (E1 v E2; E Pty Limited v E2 [2023] NSWDC 411). The Pro Bono Panel has processed and found representation, I understand from inquiries, following more than 500 referral orders made by the Court over the past two decades. Each referral takes a considerable amount of time. The Registrars have to prepare a Brief and then consult barristers and solicitors on the panel. The closer to the hearing when such an application is made, the more work is involved, and the more difficult it is to find a member of the profession prepared to take on matters which are difficult enough without taking into account the logistic problem of the second defendant living in Tasmania and having many care duties.

49. The second defendant said she had found a solicitor in Tasmania who would be able to help her, although she would expect to be paid. I assume that this solicitor would expect to be able to appear via AVL, but this could be accommodated if there is trial before a judge sitting alone.

50. The second defendant has had since January 2025 to locate a new solicitor or barrister. She has left it to the last minute to seek assistance. No explanation is proffered for the delay.

51. While the likelihood is that legal assistance would advantage her, that is not sufficient to warrant the making of an order where there has been delay, where there is an unlikelihood that the second defendant would accept adverse legal advice and where there is unwarranted criticism of the previous practitioner appointed by the Registrar.

52. The second defendant’s application is refused.

The future conduct of this litigation

59. Once again, the defendants have fallen behind in the timetable. I have directed the parties to bring in Short Minutes of Order for a revised timetable for discovery and interrogatories. In the case of the defendants, those orders should be self-executing orders.

Costs and other orders

60. Costs of the parties’ applications in relation to the mode of trial should follow the event. No costs order need be made in relation to the second defendant’s application for pro bono legal representation.

61. The orders I make are as follows:

1. Plaintiff’s notice of motion granted; first defendant’s Notice of Election for Trial by Jury struck out.

2. Defendants pay the plaintiff’s costs of the application in relation to mode of trial; no order for costs in relation to the second defendant’s application under UCPR r 7.36, which is refused.

3. Liberty to the parties to bring in Short Minutes of Order for a timetable for discovery, with the orders for provision of Lists of Documents by each of the defendants to be self-executing in nature, with a review date no later than 18 September 2025 in the Defamation List.

4. Confirm the hearing date of 23 March 2026 as a non-jury trial.

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Amendments

14 August 2025 - Typographical errors

Decision last updated: 14 August 2025