Chel v Fairfax Media Publications Pty Ltd (No 2)

The Court of Appeal of New South Wales considered an application for interim relief brought by the appellant, Chel, against the respondent, Fairfax Media Publications Pty Ltd. The dispute concerned the respondent's attempt to withdraw its election for a jury trial in defamation proceedings shortly before the hearing was due to commence. Chel sought to prevent the primary judge from proceeding with the hearing without a jury.

The central legal issues before the Court of Appeal were whether the respondent, having elected for a jury trial, could validly withdraw that election, and whether the primary judge possessed the power to extend the time limits for the appellant to elect to have a jury trial. The Court was required to interpret the meaning of "elect" within the context of section 21 of the Defamation Act 2005, specifically considering whether such an election was final in character.

The Court of Appeal reasoned that the word "elect" in section 21 of the Defamation Act 2005 connotes a choice that is final and binding. Consequently, the respondent could not unilaterally withdraw its election for a jury trial. The Court further held that the primary judge did not have the power to extend the time for the appellant to elect a jury trial, as the respondent's prior election had already determined the mode of trial. The Court allowed the appeal, granted leave to appeal, and permanently stayed the primary judge's decision to hear the proceedings without a jury, unless an order dispensing with a jury was made under section 21 of the Act. The orders of the primary judge were set aside, and the respondent was ordered to pay the appellant's costs.