Bristow v Adams - [2010] NSWDC 64

CITATION: Bristow v Adams [2010] NSWDC 64

HEARING DATE(S): 16 April 2010

JUDGMENT DATE:
28 April 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Application by the defendant for the hearing fixed for 7 June 2010 (5 day estimate) to proceed by way of jury is dismissed with costs.
(2) Judge Gibson to email judgment to parties.

CATCHWORDS: TORT - defamation - matter set down for trial as non-jury hearing - defendant makes application for jury trial - failure to comply with jury requisition procedure - application dismissed

LEGISLATION CITED: Civil Procedure Regulation 2005 (NSW), Schedule 1, Part 3 cl 4
Defamation Act 2005 (NSW), ss 21(2)(a) and 21(2)(b)
District Court Act 1973 (NSW), s 76A
Uniform Civil Procedure Rules 2005 (NSW), Part 29 rr 29.2(2), 29.2(3) and 29.2(4)

CASES CITED: Allen v Lloyd-Jones (No. 3) [2010] NSWDC 53
Bechara v Bonacorso (No. 3) [2010] NSWDC 52

TEXTS CITED: The Honourable Justice McClellan, “Eloquence and Reason - are juries appropriate for defamation trials?” <

PARTIES: Plaintiff: Alan Bristow
Defendant: Tracy Adams

FILE NUMBER(S): 4259 of 2009

COUNSEL: Plaintiff: Ms S Chrysanthou / Ms V Otavski (solicitor)
Defendant: Mr C A Evatt / Ms L Evans

SOLICITORS: Plaintiff: Goldsmiths Lawyers
Defendant: Stacks Goudkamp

Judgment

[1] These are my reasons for dismissing the application brought by the defendant for these proceedings (which is set down for hearing as a 5-day non-jury trial for 7 June 2010) to be heard by a jury.

[2] The plaintiff commenced proceedings on 24 September 2009 by Statement of Claim pleading publication of an email by the defendant on 10 June 2009 conveyed the following imputations:

“A. That the plaintiff was a bully (Line 7).

B. That the plaintiff conspired with others to dishonestly obtain the benefit of the publisher’s sale territory (Lines 9-11).

C. That the plaintiff as a Manager was unprofessional (Lines 12-13).

D. That the plaintiff was a liar (Line 16).

E. That the plaintiff was a thief (Line 16).

F. That the plaintiff was not suitable for a position of Manager (Lines 21-22)

G. That the plaintiff was dishonest (Lines 21-22).
H. That the business of Muswellbrook operations of Total Fasteners deteriorated as a result of the failings of the plaintiff (Lines 22-24).”

[3] There has never been any determination of form and capacity of the imputations.

[4] On 30 October 2009, the defendant filed a Cross-Claim in defamation and subsequently, on 4 November 2009, a Defence was filed pleading defences of truth, contextual truth, comment and qualified privilege.

[5] Although a Notice of Intention to Elect Trial by Jury in Defamation Proceedings was filed by the defendant on 13 October 2009, no announcement was made in court by the defendant when the matter was next before the court on 11 December 2009 for the trial to proceed by way of a jury trial contrary to Part 29 r 29.2(4) Uniform Civil Procedure Rules 2005 (NSW). Further directions hearings were held on 12 February, 26 February and 19 March 2010, when the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bristow v Adams

Details

AGLC: Bristow v Adams [2010] NSWDC 64
Case: [2010] NSWDC 64
Decision Date: 28 April 2010

CaseChat Overview and Summary

The case of Bristow v Adams involved a defamation claim brought by the plaintiff, Bristow, against the defendant, Adams. The dispute centred around defamatory statements made by Adams about Bristow. The matter was set down for a trial as a non-jury hearing, but Adams sought to have the trial proceed by way of a jury, citing a failure to comply with the jury requisition procedure. The application was lodged in the court, which needed to determine whether the application was validly made and whether the failure to follow the correct procedure justified a change in the trial format.

The court was required to decide whether the defendant's application for a jury trial was valid, considering the procedural requirements for such a request. It also needed to assess whether the failure to comply with the jury requisition procedure was a significant enough error to warrant allowing the application. The court considered the procedural fairness and the implications of the non-compliance on the defendant's right to a trial by jury.

The court found that the defendant's application for the hearing to proceed by way of a jury was not validly made, as it did not adhere to the required jury requisition procedure. Consequently, the application was dismissed with costs. The court determined that the procedural error was not sufficient to warrant a change in the trial format, emphasising the importance of following the correct procedures. The judge also ordered that the judgment be emailed to the parties.

(1) The application by the defendant for the hearing fixed for 7 June 2010 (5 day estimate) to proceed by way of jury is dismissed with costs.
(2) Judge Gibson to email judgment to parties.

Orders

Orders of the court

(1) Application by the defendant for the hearing fixed for 7 June 2010 (5 day estimate) to proceed by way of jury is dismissed with costs.

(2) Judge Gibson to email judgment to parties.

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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CITATION:	Bristow v Adams [2010] NSWDC 64
HEARING DATE(S):	16 April 2010
JUDGMENT DATE:	28 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Application by the defendant for the hearing fixed for 7 June 2010 (5 day estimate) to proceed by way of jury is dismissed with costs. (2) Judge Gibson to email judgment to parties.
CATCHWORDS:	TORT - defamation - matter set down for trial as non-jury hearing - defendant makes application for jury trial - failure to comply with jury requisition procedure - application dismissed
LEGISLATION CITED:	Civil Procedure Regulation 2005 (NSW), Schedule 1, Part 3 cl 4 Defamation Act 2005 (NSW), ss 21(2)(a) and 21(2)(b) District Court Act 1973 (NSW), s 76A Uniform Civil Procedure Rules 2005 (NSW), Part 29 rr 29.2(2), 29.2(3) and 29.2(4)
CASES CITED:	Allen v Lloyd-Jones (No. 3) [2010] NSWDC 53 Bechara v Bonacorso (No. 3) [2010] NSWDC 52
TEXTS CITED:	The Honourable Justice McClellan, “Eloquence and Reason - are juries appropriate for defamation trials?” <
PARTIES:	Plaintiff: Alan Bristow Defendant: Tracy Adams
FILE NUMBER(S):	4259 of 2009
COUNSEL:	Plaintiff: Ms S Chrysanthou / Ms V Otavski (solicitor) Defendant: Mr C A Evatt / Ms L Evans
SOLICITORS:	Plaintiff: Goldsmiths Lawyers Defendant: Stacks Goudkamp