Creak v Channel Seven Sydney Pty Ltd (No 2)

[2017] NSWSC 512

Supreme Court

New South Wales

Medium Neutral Citation:	Creak v Channel Seven Sydney Pty Ltd (No 2) [2017] NSWSC 512
Hearing dates:	28 April 2017
Decision date:	28 April 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Pursuant to s 85 of the Supreme Court Act, all issues relating to the claim in injurious falsehood, other than actual loss and damages, to be tried by a jury, with the intent that the latter issues be reserved to the trial judge; pursuant to Uniform Civil Procedure Rules r 28.2, all issues of damages in respect of all claims brought by the plaintiffs, together with the issue of actual loss for the claim in injurious falsehood, be determined separately from, and after, the other issues in the proceedings.
Legislation Cited:	Defamation Act 2005 (NSW), ss 21, 22 Supreme Court Act 1970 (NSW), s 85 Trade Practices Act 1974 (Cth), s 52 Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Category:	Procedural and other rulings
Parties:	Ian David Charles Creak (first plaintiff) Tallevine Pty Ltd (second plaintiff) Channel Seven Sydney Pty Ltd (defendant)
Representation:	Counsel: K Smark SC, MJ Lewis (plaintiffs) ATS Dawson SC (defendant)   Solicitors: Agility Legal Pty Ltd (plaintiffs) Addisons (defendant)
File Number(s):	2011/330038

Judgment

1. HER HONOUR: In these proceedings, the plaintiff prosecutes four causes of action, namely, defamation, injurious falsehood, trespass and what might be termed s 52 claims (that is, claims of misleading or deceptive conduct). The procedure by which the hearing should proceed is complicated on that account.

2. In the case of the claim in defamation, there is a statutory entitlement, upon election, to have the proceedings tried by jury: see s 21 of the Defamation Act 2005 (NSW). Section 22 of the Act delineates the roles of judge and jury in that event, requiring the jury to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. The section reserves all other issues (including damages) to the judge. It has been foreshadowed that an election for trial by jury will be made in this case.

3. Section 85 of the Supreme Court Act 1970 (NSW), however, provides "proceedings in any Division are to be tried without a jury, unless the Court orders otherwise."

4. In the claims brought by the plaintiff there is, if not exact commonality, at least substantial overlap in the claims in defamation and injurious falsehood in respect of the imputations or meanings to be attributed to the material complained of by the plaintiff.

5. Separately, there is the complication that, whereas damages for defamation are determined by the judge, damages for injurious falsehood, in proceedings tried by jury, would ordinarily be determined by the jury.

6. The parties have sought to address those complexities by proposing orders by consent which, with respect, reflect a sensible solution. I am satisfied that it is appropriate to make the orders sought, as follows:

1. Pursuant to s 85 of the Supreme Court Act, all issues relating to the claim in injurious falsehood, other than actual loss and damages, be tried by a jury, with the intent that the latter issues be reserved to the trial judge.

2. Pursuant to UCPR r 28.2, all issues of damages in respect of all claims brought by the plaintiffs, together with the issue of actual loss for the claim in injurious falsehood, be determined separately from, and after, the other issues in the proceedings.

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Decision last updated: 02 May 2017