Byrnes v John Fairfax Publications Pty Ltd

[2003] NSWSC 764

CITATION:	Byrnes v John Fairfax Publications Pty Ltd [2003] NSWSC 764
HEARING DATE(S):	18 August 2003
JUDGMENT DATE:	18 August 2003
JUDGMENT OF:	Simpson J
DECISION:	Matter not to be listed for hearing until after 26 February 2004; costs to be costs in the cause.
CATCHWORDS:	defamation - determination of related matter under s7A - vendetta allegation - costs
LEGISLATION CITED:	Defamation Act 1974, s7A
PARTIES :	Jim Byrnes - Plaintiff John Fairfax Publications Pty Ltd - Defendant
FILE NUMBER(S):	SC 20465/00
COUNSEL:	CA Evatt - Plaintiff TD Blackburn - Defendant
SOLICITORS:	Verekers - Plaintiff Freehills - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Monday 18 August 2003

20465/00 Jim BYRNES v JOHN FAIRFAX PUBLICATIONS PTY LTD

JUDGMENT

1 HER HONOUR: By notice of motion filed 7 July 2003 the plaintiff, in proceedings numbered 20465 of 2000, seeks an order that that matter be heard together with matter number 20047 of 2003.

2 During the course of argument it became apparent that that did not really reflect the order that the plaintiff seeks. What the plaintiff seeks in reality is an order that matter number 20465 of 2000 be not listed for hearing until after a date at the beginning of 2004. I will set out the circumstances that bring this about.

3 Matter number 20465 of 2000 is a matter by which the plaintiff seeks damages for defamation against the defendant. A jury empanelled pursuant to s 7A of the Defamation Act 1974 found that five imputations defamatory of the plaintiff had been conveyed by two publications made by the defendant. Defences have been filed, the principal defence, perhaps the only defence, being of justification and contextual justification. That matter is ready for a hearing. I am told on behalf of the defendant that it is expected that a two to three day hearing would be all that is required, although I confess to some scepticism about that.

4 Matter number 20047 of 2003 is also a matter in which the plaintiff claims damages for defamation against the defendant. That matter is fixed for a trial before a jury pursuant to s 7A of the Defamation Act 1974 on 25 February 2004, with an estimated hearing time of one day plus.

5 The plaintiff seeks to delay the hearing of the first matter until after the s 7A hearing in the second matter with a view, if the jury finds any of the imputations to have been conveyed, to having both matters heard together. The basis of the application is that the plaintiff asserts that the defendant has published many articles about him which are described on his behalf as a "vendetta and campaign of denigration against him".

6 Although the imputations pleaded in respect of the second matter are not in the same terms as the imputations found to have been conveyed by the first two matters complained of, there is some link between them. The real basis on which the plaintiff seeks the order is that he wishes to put before a court (assuming that, in the second matter, an imputation or imputations that defame him have been conveyed) the “vendetta” allegation.

7 On behalf of the plaintiff reference was also made to the costs involved in the conduct of a defamation trial and the cost savings that could be brought about if the two were heard together.

8 I am persuaded that the application is valid and that the present matter, 20465 of 2000, should not proceed until after the jury has made its determination under s 7A in matter number 20047 of 2003. Accordingly, I direct that this matter not be listed for hearing until after 26 February 2004.

9 I will order that the costs be costs in the cause.

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Last Modified: 08/27/2003