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Cossari v Wells

Cossari v Wells

Case [2020] VSCA 133 26 May 2020

Civil Litigation & Procedure

Defamation

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0043

GUISEPPE JOE COSSARI	Applicant
v
KIM WELLS	Respondent

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JUDGES:	BEACH, KAYE and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 May 2020
DATE OF JUDGMENT:	26 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 133
JUDGMENT APPEALED FROM:	[2020] VCC 512 (Judge Tsalamandris)

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PRACTICE AND PROCEDURE – Civil trial – Defamation trial – Mode of trial – Jury – Party’s right to signify jury trial – Power to order trial by judge alone – Indefinite suspension of jury trials due to COVID-19 health crisis – Relevance of indefinite suspension of jury trials – Indefinite delay if trial by jury outweighing party’s right to trial by jury – Application for leave to appeal primary judge’s order dispensing with jury refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D P Gilbertson QC with Ms S N Whiteman	Burch & Co Lawyers
For the Respondent	Mr M Hoyne	Carbone Lawyers Pty Ltd

BEACH JA
KAYE JA
OSBORN JA:

In the lead up to the November 2018 State election, Kim Wells was the elected member for the seat of Rowville. He was a candidate for re-election in the general election to be held in that month. Guiseppe Joe Cossari was a rival candidate for election for Mr Wells’ seat. These proceedings have their genesis in an alleged encounter between Mr Wells and Mr Cossari on 12 November 2018, some 12 days before the election.

On 13 and 14 November 2018, Mr Cossari is alleged to have uploaded onto various Facebook pages six publications which are said to convey that Mr Wells, amongst other things, physically assaulted Mr Cossari on 12 November 2018. On 21 December 2018, Mr Wells filed a writ in the County Court claiming damages from Mr Cossari for defamation in relation to these publications.

In his defence and counterclaim, Mr Cossari, while making some admissions of publication of material about Mr Wells, denied that he published anything defamatory of Mr Wells; denied the imputations pleaded by Mr Wells in relation to the various publications; pleaded the defence of truth, both at common law and under s 25 of the Defamation Act 2005 (Vic) and its equivalent provisions in the other states and territories of Australia; pleaded the defence of honest opinion under s 31 of the Defamation Act and equivalent provisions; pleaded defences of qualified privilege, at common law and under s 30 of the Defamation Act and equivalent provisions; and counterclaimed for damages for a battery alleged to have occurred, on 12 November 2018, when Mr Wells allegedly ‘grabbed [Mr Cossari’s] left arm with force and twisted it around’.

On 7 October 2019, the proceedings between Mr Wells and Mr Cossari were fixed for hearing in the County Court on 3 June 2020, before a judge and jury of six, on an estimate of eight days. The proceedings were fixed for trial before judge and jury because Mr Cossari had filed a notice under r 47.02…

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 Cossari v Wells

Details

AGLC: Cossari v Wells [2020] VSCA 133
Case: [2020] VSCA 133
Decision Date: 26 May 2020

CaseChat Overview and Summary

Cossari v Wells involved a dispute concerning the mode of trial in a defamation case. The plaintiff, Cossari, sought a trial by jury, while the defendant, Wells, preferred a trial by judge alone. The matter was before the Supreme Court of New South Wales, which had to decide on the appropriate trial mode amidst the COVID-19 pandemic, which had led to the indefinite suspension of jury trials. The court's task was to balance the defendant's right to a jury trial with the indefinite delay that would result from continuing to wait for jury trials to resume.

The legal issues centred on whether the indefinite suspension of jury trials due to the COVID-19 health crisis justified the exercise of the court's discretion to order a trial by judge alone, despite the plaintiff's right to a jury trial. The court had to consider whether the indefinite delay in conducting a jury trial outweighed the plaintiff's right to such a trial. It also had to determine whether the indefinite suspension of jury trials was a relevant factor in deciding the mode of trial.

The court reasoned that the indefinite suspension of jury trials due to the COVID-19 health crisis was a relevant factor in determining the appropriate mode of trial. The court held that the indefinite delay in conducting a jury trial, which would result in significant prejudice to the defendant, outweighed the plaintiff's right to a trial by jury. The court exercised its discretion under the relevant legislation to order a trial by judge alone, considering the exceptional circumstances of the pandemic. The plaintiff's application for leave to appeal the primary judge's order was refused.

Orders