Channel Seven Sydney Pty Ltd v Fierravanti-Wells

The Court of Appeal of New South Wales, comprising Giles and McColl JJA and Handley AJA, considered an appeal by Channel Seven Sydney Pty Ltd against an order made by Levy DCJ that the defamation proceedings brought by Ms Fierravanti-Wells would proceed to trial without a jury. Ms Fierravanti-Wells had properly requisitioned a jury trial.

The central legal issues before the Court of Appeal were whether the trial judge had the power, either under section 21 of the *Defamation Act 2005* (NSW) or under provisions of the *Civil Procedure Act 2005* (NSW) and Uniform Civil Procedure Rule 29.2A, to dispense with a jury of his own motion, notwithstanding the plaintiff's election for a jury trial. The Court also considered whether the entitlement to a jury trial under section 21 of the *Defamation Act 2005* created a vested or accrued substantive right, and the onus of proof for justifying the retention of a jury. Furthermore, the Court examined whether the primary judge erred in concluding that the public interest component of the honest opinion defence was a matter for the jury.

The Court of Appeal reasoned that section 21 of the *Defamation Act 2005* conferred a right on a party to elect for a jury trial, and that this right, once exercised, could not be overridden by the judge of their own motion, unless the specific conditions in section 21(3) for dispensing with a jury (namely, a prolonged examination of records) were met, which they were not. The Court found that the judge's power to dispense with a jury was limited to circumstances where a party applied for such an order, or where the statutory conditions were satisfied. The Court held that the plaintiff, having properly elected for a jury trial, was entitled to retain that mode of trial. The Court also determined that the judge had erred in concluding that the public interest component of the honest opinion defence was a matter for the jury, finding it to be a question of law for the judge.

The Court of Appeal allowed the appeal, set aside the order of Levy DCJ that the trial proceed without a jury, and ordered that the respondent have a certificate under the *Suitors' Fund Act 1951*.