Goldberg v Randel - [2008] NSWDC 45

CITATION: Goldberg v Randel [2008] NSWDC 45

HEARING DATE(S): 28 March 2008

JUDGMENT DATE:
28 March 2008

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: 1. Defendant's application for extension of time in which to file a jury requisition is dismissed.
2. Defendant pay plaintiff’s costs of this application.

CATCHWORDS: Tort - defamation - application for extension of time to requisition a jury

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 56
Defamation Act 1974 (NSW), s 7A
Defamation Act 2005 (NSW), s 21
District Court Act 1973 (NSW), ss 78 and 79A
District Court Rules 1973 (NSW), Part 12 r 5
Uniform Civil Procedure Rules 2005 (NSW), Part 29 r 29.2

CASES CITED: Dunsec v Nationwide News Pty Ltd [2000] NSWCA 155
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207
Mallik v McGeown [2008] NSWSC 129
Murrihy v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, 11 December 1998, unreported)
Pambula District Hospital v Herriman (1988) 14 NSWLR 387

PARTIES: Plaintiff: Raymond Goldberg
Defendant: John Randel

FILE NUMBER(S): 5709 of 2006

COUNSEL: Plaintiff: S Chrysanthou
Defendant: R Rasmussen

SOLICITORS: Plaintiff: Kalantzis & Co
Defendant: Sally Nash & Co as agents for Bennett & Philp

Introduction
1. The plaintiff commenced proceedings by way of statement of claim filed on 28 November 2006 and served on 4 December 2006 concerning an alleged defamatory email sent to a customer of the plaintiff’s in Dubai.

2. An order was made on 4 May 2007 for a defence to be filed on 18 May 2007. The defence was filed on 4 June 2007. There were the usual interlocutory arguments concerning discovery and interrogatories, which the parties have now resolved, and the matter is likely to be given a hearing date when the matter is next in the list.

3. On 29 January 2008 the solicitors for the plaintiff wrote drawing attention to the fact that while what purported to be a jury notice had been served, that notice was defective. The plaintiff’s solicitors were correct in this opinion; the document had been rejected by the District Court registry as being out of time.

4. The defendant now brings an application for leave to file a jury requisition out of time.

Jury provisions in defamation trials in the District Court
5. The publication having been made after the commencement of operation of the Defamation Act 2005 (NSW), the parties’ rights to a jury trial are governed by s 21 Defamation Act, which requires any election for trial by jury to be made at the time and in the manner prescribed by the rules of court for the court where the proceedings are to be tried, and to be accompanied by the prescribed jury fee. Section 21(3) notes that a court may order that defamation proceedings not be tried by a jury in certain circumstances, but this section is predicated on a jury requisition being filed in the usual way.

6. The relevant rule in this…

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 Goldberg v Randel

Details

AGLC: Goldberg v Randel [2008] NSWDC 45
Case: [2008] NSWDC 45
Decision Date: 28 March 2008

CaseChat Overview and Summary

Goldberg v Randel is a case heard by the Federal Circuit and Family Court of Australia. The plaintiff, Goldberg, brought an action for defamation against the defendant, Randel. The plaintiff sought an extension of time in which to file a jury requisition, claiming that Randel's defamation of him was of such a nature that a jury was required to determine the case. Randel opposed the application on the basis that the defamation was not of such a nature as to require a jury, and that the plaintiff had not demonstrated any justification for the delay in filing the requisition.

The court was required to decide whether the defamation was of such a nature that a jury was required to determine the case, and whether the plaintiff had demonstrated any justification for the delay in filing the requisition. The court noted that the nature of the defamation was not, in itself, sufficient to require a jury. The court also found that the plaintiff had not demonstrated any justification for the delay in filing the requisition. The court held that the plaintiff's delay was unreasonable and that the defendant would be prejudiced if the application was granted.

Accordingly, the court dismissed the defendant's application for an extension of time in which to file a jury requisition. The court also ordered that the defendant pay the plaintiff's costs of the application. This decision highlights the importance of timely filing of jury requisitions and the need for a justification for any delay in doing so. It also reinforces the principle that the nature of the defamation is not, in itself, sufficient to require a jury.

Orders

Orders of the court

1. Defendant's application for extension of time in which to file a jury requisition is dismissed. 2. Defendant pay plaintiff's costs of this application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Goldberg v Randel [2008] NSWDC 45
HEARING DATE(S):	28 March 2008
JUDGMENT DATE:	28 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Defendant's application for extension of time in which to file a jury requisition is dismissed. 2. Defendant pay plaintiff’s costs of this application.
CATCHWORDS:	Tort - defamation - application for extension of time to requisition a jury
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), s 56 Defamation Act 1974 (NSW), s 7A Defamation Act 2005 (NSW), s 21 District Court Act 1973 (NSW), ss 78 and 79A District Court Rules 1973 (NSW), Part 12 r 5 Uniform Civil Procedure Rules 2005 (NSW), Part 29 r 29.2
CASES CITED:	Dunsec v Nationwide News Pty Ltd [2000] NSWCA 155 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Mallik v McGeown [2008] NSWSC 129 Murrihy v Radio 2UE Sydney Pty Ltd (Supreme Court of NSW, 11 December 1998, unreported) Pambula District Hospital v Herriman (1988) 14 NSWLR 387
PARTIES:	Plaintiff: Raymond Goldberg Defendant: John Randel
FILE NUMBER(S):	5709 of 2006
COUNSEL:	Plaintiff: S Chrysanthou Defendant: R Rasmussen
SOLICITORS:	Plaintiff: Kalantzis & Co Defendant: Sally Nash & Co as agents for Bennett & Philp