Hooper v Phipps (No 3)

[2025] NSWDC 370

District Court

New South Wales

Medium Neutral Citation:

Hooper v Phipps (No 3) [2025] NSWDC 370

Hearing dates:

11 and 18 September 2025

Date of orders:

19 September 2025

Decision date:

19 September 2025

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Orders:

(1)   Defendants’ application granted; Requisition for Jury filed on 24 August 2022 revoked; trial to proceed before Gibson DCJ sitting without a jury.

(2)   Costs reserved with liberty to apply.

(3)   The parties are to bring in short Minutes of Order reflecting an agreed timetable for the exchange of further evidence (if any) and submissions in order to conclude the hearing of these proceedings.

(4)   Exhibits remain with the file until further order.

Catchwords:

TORT – defamation – three jury trials aborted, two of which resulted from the plaintiff’s ongoing health issues – whether a fourth trial by jury should be ordered or whether the current (third) trial should continue to completion – “other issue” – discretion – trial should continue before trial judge sitting alone

Legislation Cited:

Defamation Act 2005 (NSW) ss 10 and 21

Defamation Amendment Act 2020 (NSW)

Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 47.02(3)

Cases Cited:

Adams v Network Ten Pty Ltd [2010] NSWDC 198

Bernard v Seltsam Pty Ltd [2010] VSC 305; 28 VR 46

Burchett v Kane [1980] 2 NSWLR 266

Business and Research Management Limited v Flude [2002] NSWSC 812

Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315

Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383

Dunning v Altmann (1991) 2 VR 667

Footscray Football Club Limited v Adam Kneale [2024] VSCA 314

Gunns v Marr (No 5) [2009] VSC 284

Hooper v Phipps (No 2) [2024] NSWDC 8

Lane & Anor v Reid [2005] NSWCA 198

Lee v Cha [2005] NSWCA 279

Messade v Baires Contracting Pty Ltd (Rulings Nos 2, 3 and 4) [2011] VSC 75

Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208

Moselmane v Jones & Anor [2002] NSWDC 1

Obeid v Australian Broadcasting Corporation [2003] NSWDC 1

Palmer v Clark (1989) 19 NSWLR 158

Palmer v Clark (1989) 19 NSWLR 158

Pezzimenti v Seamer [1995] 2 VR 32

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67; 310 FCR 170

Saltalmacchia v Zamagias [2024] NSWCA 184

TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682

Wagner v Harbour Radio Pty Ltd [2017] QSC 222

Zollner Limited v Municipal Council of Sydney (1917) 17 SR (NSW) 164

Category:

Procedural rulings

Parties:

John Hooper (plaintiff)
Julia Phipps (1st defendant)
Willoughby City Council (2nd defendant)

Representation:

Counsel:
AH Edwards (plaintiff)
T Senior (defendants)

Solicitors:
Mark O’Brien Legal (plaintiff)
RGSLAW (defendants)

File Number(s):

2019/00096207

Publication restriction:

Nil

Judgment

The application before the court

1. These are defamation proceedings being heard before a jury and in which I am the trial judge. On the fifth day of the trial, after the defendants’ counsel had finished his address, the plaintiff became unwell and was taken to the emergency centre at a nearby hospital, where he was admitted for observation. In circumstances set out more fully below, the parties agreed that the jury had to be discharged. The defendants now bring an application pursuant to s 21 of the Defamation Act 2005 (NSW) (“the Act”) for an order that the trial of the remainder of these proceedings continue before me, but without a jury.

2. Section 21 of the Act in its current form provides:

“21 Election for defamation proceedings to be tried by jury

(1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.

(1A) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if--

(a) the trial requires a prolonged examination of records, or

(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.

(2) An election must be--

(a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and

(b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court.

(3) An election may be revoked only--

(a) with the consent of all the parties to the proceedings, or

(b) if all the parties do not consent, with the leave of the court.

(4) The court may, on the application of a party to the proceedings, grant leave for the purposes of subsection (3)(b) only if satisfied it is in the interests of justice for the election to be revoked.”

3. Nothing turns on the minor differences between the present and former versions of s 21.

4. The defendants rely upon the following evidentiary material:

1. The affidavit of James Riley sworn on 27 August 2025.

2. The affidavit of Julia Phipps, the first defendant, affirmed 27 August 2025.

3. The affidavit of Rachel Blazey affirmed 27 August 2025.

5. The plaintiff, who opposes the application, seeks a fresh hearing date for his defamation claims to be heard before a jury at a date to be set by the court. He initially filed no evidence but after I adjourned the hearing of this application, he served an affidavit, affirmed on 15 September 2025, in which he sets out the treatment he had in hospital. He has not provided any medical reports or discharge summaries.

The background to this application

6. This is not the first application the defendants have brought for orders seeking to dispense with a jury under s 21. A previous application for similar orders was made, and rejected, on 6 February 2024: Hooper v Phipps (No 2) [2024] NSWDC 8.

7. The plaintiff’s first trial before a jury occurred on 4-5 September 2023 before Webber SC DCJ. Partway through his evidence in chief, the plaintiff collapsed in the courtroom and was taken to hospital. The jury was discharged and the matter was fixed for a second jury trial on 4 April 2024.

8. The second jury trial commenced on the parties’ chosen date; however, two events outside the control of the parties resulted in the second jury trial being aborted at the close of the plaintiff’s evidence in chief. The first of these was that the District Court suffered a total blackout of electricity on 5 April 2024 and the whole of the second day of trial was lost. The second was that on the evening of what would have been the third day of the trial, counsel for the defendants was injured in a collision with a motor vehicle and suffered a broken arm and broken wrist. The second jury was accordingly discharged.

9. The third trial of these proceedings then commenced on 21 July 2025 before myself and a jury of four. As noted above, the plaintiff collapsed in court and was taken by ambulance to St Vincent’s Hospital where he was admitted. Medical evidence was provided to the effect that the plaintiff’s medical condition was such that he was unlikely to return for some days.

10. At the time that this occurred, all that remained of the trial was the plaintiff’s counsel’s closing address and my summing up before the jury retired to consider their answers to the questionnaire which had already been provided to them. The question was what would occur in terms of the trial continuing to completion before the jury. The parties agree that there were three options before the court:

1. Mr Senior’s proposal was that the plaintiff listen to his counsel’s closing address in real-time by audio-visual link or telephone and that the hearing proceed, with a suitable explanation for his absence to the jury.

2. I suggested an extension of this proposal, namely that in addition to the plaintiff being able to listen via AVL, if he were well enough, a transcript of the closing address could be provided to enable the plaintiff to review it. Mr Edwards could then return the following day or the day after, to make any such further address as the plaintiff wanted to be made prior to my summing up.

3. The alternative was that the jury be discharged and a fresh hearing date allocated at some time in the future.

11. The plaintiff elected the third of these alternatives, adding the further rider that if his counsel did make any address, he would withdraw his instructions. The jury was accordingly discharged.

12. On 14 August 2025, the defendants made their present application for the trial to continue, but without a jury. On 21 August 2025, the plaintiff indicated his opposition and sought a hearing date for a fourth trial before a jury.

13. The defendants’ application was listed before me for argument on 11 September 2025. I adjourned the hearing for a week so that the parties could address the issue of the course taken in other jury trials following discharge of the jury and for the provision of any evidence by the plaintiff.

14. The plaintiff has now provided an affidavit affirmed on 15 September 2025. In it, he sets out information about the treatment he had in hospital. He informs the court that as a result of changes to his medication, there should not be a recurrence of the medical episode which caused his admission on 28 July 2025. He also informed the court that he had travelled overseas for a holiday on 17 August 2025 and that his doctors had told him he would be well enough to do so as long as he took his medication. As noted above, no report has been provided by the plaintiff’s medical practitioners.

15. The other reason for my adjourning the proceedings for further submissions was to enable the parties to address me further as to my concerns about the defendants’ request for me to make findings in relation to the plaintiff’s conduct concerning these events, which I was reluctant to do, as this is an application made in the course of the trial.

The relevant principles of law

16. As I noted in the previous application for the jury notice to be revoked, the relevant principles in relation to choice of trial by jury are set out by Applegarth J in Wagner v Harbour Radio Pty Ltd [2017] QSC 222. Those principles need to be viewed in the context of the history of this litigation with particular regard to the following:

1. Whether multiple discharges of a jury in a case such as the present amount to grounds for exercise of the discretion identified by Applegarth J and/or fall into the category “other issue” as defined by s 21 of the Act.

2. The course taken by other judges in similar situations, namely where a jury trial has miscarried or been aborted for similar reasons.

17. The history of defamation jury trials under s 21 and its predecessors for many years was problematic. In Business and Research Management Limited v Flude [2002] NSWSC 812, Levine J observed at [11]:

“11 The plaintiff’s application and its unsuccessful resolution highlights what could be perceived to be an unacceptable flaw, exposed by recent legislation in the administration of Defamation law and practice in this State. In one Act, namely the Defamation Act, the legislature enacted that the constitutional tribunal of a civil jury, was still to play a critical role. In other Acts, namely amendments to the Supreme Court Act (ss 85-7) and specifically amendments to the District Court Act 1973 (see s76A and the judgment of Gibson DCJ in Moselmane v Jones & Anor, unreported, 14 August 2002) a serious question has arisen as to whether the legislature has unfairly compromised that constitutional component: in this Court there must be a jury in reality, in the District Court there will not be a jury.”

18. Following Moselmane v Jones & Anor [2002] NSWDC 1, the legislature sought to correct this inconsistency by amending the legislation as set out in paragraphs [7] – [10] of that judgment.

19. The parties have avoided the pitfalls of these provisions by focussing on the test as enunciated by Applegarth J in Wagner. The plaintiff’s claim arises from two publications made before these amendments came into effect. However, as is set out in Obeid v Australian Broadcasting Corporation [2003] NSWDC 1 at [13], where the operation of a statutory provision is merely procedural (such as the right to a jury), the presumption against retrospective operation is inapplicable: Zollner Limited v Municipal Council of Sydney (1917) 17 SR (NSW) 164. This would mean, if I were not satisfied that the facts disclosed “other issue”, that I could also look to the “interests of justice” as an alternative. By reason of the way the parties ran this argument, this was not necessary.

“Other issue” and the exercise of discretion

20. Section 21 provides that where there is a prolonged examination of records or any technical, scientific “or other issue” that cannot be conveniently considered and resolved by a jury, the discretionary power to the court to order trial without a jury be invoked. The precise parameters of what constitutes “other issue” are unknown, as this term has not been considered at appellate level.

21. There are two reasons for holding that the issue of the plaintiff’s health has now become such a factor. The first is that this will be the fourth jury trial in these proceedings, in circumstances where two of the three prior jury discharges occurred because of medical emergencies occurring in the courtroom.

22. There is, further, a significant risk in defamation actions where a party to the proceedings suffers a health problem. The two episodes suffered by the plaintiff were recovered from, but if his ongoing heart condition leads to his death before the trial ends, that will extinguish the cause of action and could have complicated costs consequences. Section 10 (as applicable to proceedings prior to Sch 1(5) of the Defamation Amendment Act 2020 (NSW) coming into force) provides:

“10 No cause of action for defamation of, or against, deceased persons

A person (including a personal representative of a deceased person) cannot assert, continue or enforce a cause of action for defamation in relation to—

(a) the publication of defamatory matter about a deceased person (whether published before or after his or her death), or

(b) the publication of defamatory matter by a person who has died since publishing the matter.”

23. The second is that, while jury trials are an important right, retrials have repeatedly been described in the starkest language as “evil”, particularly when the number of retrials start to mount up: Burchett v Kane [1980] 2 NSWLR 266 at [279]; Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 at [239]. As the Court noted in TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at [695], multiple defamation jury trials were of particular concern, with the court going so far as to say that a fourth jury trial could not be regarded as anything other than “appalling”:

“This case shows how easy it is for the trial of a libel action to miscarry, and
how difficult is the task of the trial judge. We have concluded that there must
be a fourth trial of this action. This is an unsatisfactory, indeed an appalling,
state of affairs but this is only one of a number of libel actions in the last ten or
fifteen years with a history of multiple trials.”

24. The reason that the third trial result (a judgment for Mrs Antoniadis) could not stand was that the Court of Appeal held that trial judge had erred in relation to rulings on the defence contextual justification and a retrial was necessary. The first and second jury panels were discharged due to the conduct of counsel for the defendant and did not go all the way to verdict. It was only by reason of these compelling factors, neither of which apply here, that a fourth trial was ordered.

25. Similar views on the “evil” nature of retrials have been given even by proponents of jury trials such as Kirby P who, in Palmer v Clark (1989) 19 NSWLR 158 at [164], described retrials as “an evil and a deplorable result, to be avoided wherever possible” because they involved disappointment to the parties as well as “a repeated demand on the already stretched resources of the judiciary” (see also Saltalmacchia v Zamagias [2024] NSWCA 184 at [3] and Footscray Football Club Limited v Adam Kneale [2024] VSCA 314 at [591] (jury trial in personal injury proceedings)).

26. The principal ground relied on by the defendants is the court’s discretionary powers, which may be considered in cases where the plaintiff cannot rely upon the specific exceptions. In the present application for trial before a jury, as in the previous one, the discretionary power to the court to order a civil trial without a jury is reliant upon s 21(1A), which was added to s 21(3) by the Defamation Amendment Act 2020 (NSW). This power is unfettered, in that it is not confined to circumstances of the kind identified in s 21(3), as Applegarth J noted in Wagner at [8].

27. Both parties stated that they accept that the exercise of the discretion must be made in the circumstances that, once a party elects for proceedings to be tried by jury, they have a vested or accrued substantive rights to that mode of trial. They referred me to the reasons set out by McColl JA in Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 (“Fierravanti-Wells”) at [43]:

“The first power is that contained in s 21(1), which permits the court to "order otherwise" if either the plaintiff or defendant elects for the proceedings to be tried by jury. This is an unfettered discretion "unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view": Water Conservation & Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 (at 505) per Dixon J; see also Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 (at [22]) Gaudron and Gummow JJ.”

28. I do not agree, however, that this statement of principle is as ironclad as is claimed. Fierravanti-Wells was an important decision in terms of legislative policy, but the circumstances in which the jury requisition was set aside were most unusual:

1. It was the judge at first instance, and not the parties, who brought an application, of the court’s own motion, to set aside the jury requisition. His application was not supported by the parties. The defendant opposed the court’s motion vigorously as well as appealing the strike-out (the plaintiff neither consented nor opposed).

2. The first instance judge brought the application at a time when the review process set up under s 49 was under consideration. In that review, the Supreme and District Courts provided submissions that jury trials, not technology, were the root cause of the cost and complexity of defamation actions. The same notices had been distributed by the court to all defamation matters where a jury had been requisitioned (see Adams v Network Ten Pty Ltd [2010] NSWDC 198 at [63]).

3. As a result, the appeal focussed on the question of whether the Court had power to do make such orders. Its strong endorsement of trial by jury as an approved method of trial needs to be seen in this context.

29. Nevertheless, I accept the submission that weight should be given to the Court’s endorsement of jury trials. I also accept that the correctness of Fierravanti-Wells has been endorsed many times since (see in particular Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 at [24]).

30. However, those endorsements are not relevant here. The defendants do not rely upon the universal characteristics of jury trials, such as expense or length, as they acknowledge that such matters should not be taken into account in the exercise of the discretion: Fierravanti-Wells at [83]. Essentially, they point to the case management of the proceedings as being a matter which has arrived at the “non-universal” point of being a fourth trial over close to a four-year period of trial readiness (2023 – 2026), and where the likelihood of that future jury trial being aborted for similar heath reasons should be added as a significant factor.

31. In short, the plaintiff has a heart condition of long standing which has disrupted two of the jury trials commenced in these proceedings. The medical advice he was given before the trial was that his specialist considered he was well enough but added the rider, as noted in Hooper v Phipps (No 2) at [10], that “a 100% guarantee” could not be provided. Unfortunately, that turned out to be the case. The plaintiff now offers no medical evidence, in circumstances where these proceedings have reached what the Court of Appeal of New South Wales described in Antoniadis as the “appalling” reality of a fourth trial.

29. The defendants point to the following additional factors triggering the discretion:

1. The publications relate to events going back over two decades. The matters complained of were published on 28 March and 11 April 2018. These proceedings were commenced in March 2019 and set down for trial in 2023 and a full trial is unlikely to be listed before late 2026. The passing of the years will impact on the evidence of witnesses on both sides.

2. The plaintiff has already suffered two heart attacks during these proceedings, which are clearly stressful for him. It is neither in the interests of justice nor in his own interests for him to continue to insist upon a jury trial. A fourth non-jury trial is no better; Mr Senior submitted that this was “the worst of both worlds”.

3. The undesirable aspects of multiple trials in this case favour the defendants, in that all of the evidence has been given in circumstances where the evidence can be ruled on by the judge hearing the jury trial, and it does not have to be given all over again, whether before another judge or myself.

4. The need for finality, which has led to some appellate courts, in appropriate proceedings, commending judges for finding alternatives for finishing trials rather than putting the parties through the uncertainties and difficulties caused by a retrial.

The course taken in other jury discharge cases

33. While the courses taken by other first instance judges in similar situations do not form part of any binding precedent, the combined pool of judicial wisdom offers observations of a helpful nature.

34. In Messade v Baires Contracting Pty Ltd (Rulings Nos 2, 3 and 4) [2011] VSC 75, J Forrest J discharged the jury after 10 days of evidence when three of the jurors expressed concern that they had encountered the plaintiff several times at the railway station in circumstances where there could be some concern that this might affect their impartiality. After J Forrest J discharged the jury, the question then arose as to whether his Honour should continue to hear the trial to its conclusion, sitting alone.

35. The plaintiff submitted that the hearing should proceed before the judge sitting alone, as provided by rule 47.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), arguing that the administration of justice was best served by such a course as the balance of the trial could be completed within one sitting day. The defendant opposed this course, noting that the defendant was blameless in the discharge of the jury and submitting that the plaintiff had effectively brought about the situation upon himself, whether intentionally or otherwise. The defendant should not be “punished” by losing its entitlement to a jury trial (at [33]).

36. After noting the relevant rules and principles as set out in Gunns v Marr (No 5) [2009] VSC 284, J Forrest J stated that “juries are still the norm in tortious injury and defamation litigation” (which I note has not been the case in New South Wales for about three decades, particularly in this court). His Honour noted the observations of Bell J in Bernard v Seltsam Pty Ltd [2010] VSC 305; 28 VR 46 and the importance of trial by jury as an institution of great value. A party should not be deprived of an entitlement to a jury in the absence of good cause, and universal objections such as the cost and time played no part in such an exercise. While significant additional costs would if the whole of the trial had to be heard again, that should not be a factor. The central issue was whether the defendant not only had an entitlement to a trial jury but should not be deprived of that right without good cause particularly where that conduct is blameless. Cases should be removed from the jury only in the case of complexity (Dunning v Altmann (1991) 2 VR 667) or where there was other good cause, such as the jury failing to reach a proper verdict (Pezzimenti v Seamer [1995] 2 VR 32).

37. The question in the present case is different. It should be whether another jury should be empanelled when, on two of the three previous occasions when the proceedings have been listed for hearing, the plaintiff’s health problems have resulted in his admission to hospital and to the jury being discharged.

38. Mr Edwards submitted that both parties had made forensic and presentation decisions governed by the mode of trial, and that “the only real way to preserve fairness is to conclude the trial in the form in which it began” (submissions, paragraph 4). He added, in oral submissions, that if there were a fresh trial before a judge sitting alone, this would be an appropriate way for the next trial to be conducted; his concern was to obtain a fresh trial on all issues, rather than the mode of the trial. A new trial was necessary, he submitted, because these “ineffable” decisions on case management had been made by counsel on the basis of what would be acceptable to the jury as opposed to a judge.

39. Mr Senior submitted that the evils of the changes resulting from how the aborted jury trial had been conducted were no better than the evils of giving evidence more than once, noting observations about the “disappointment to the litigant successful at the first trial” (Palmer v Clark (1989) 19 NSWLR 158 at [164] per Kirby P). He added that the likelihood of “ineffable” choices being made about evidence to be led by the plaintiff before the jury would be very low, given that the sole defence put was the defence of justification.

40. Both parties acknowledged that one of the reasons for a fresh trial on all issues was put before J Forrest J in Messade v Baires Contracting Pty Ltd (Rulings Nos 2, 3 and 4) was that his Honour would be asked to retrospectively evaluate the plaintiff’s credit. That had not been his role during the course of the trial, which was to ensure a fair trial by the jury of the claim and the assessment of the plaintiff’s damages. His Honour accepted that that this point was not determinative, but he thought it a relevant consideration (at [43]).

41. I agree that this is a factor weighing against the continuation of the trial before me, as is Mr Edwards’ submission that my role during the trial would have been principally to ensure that the trial ran smoothly and fairly rather than determining the issues. However, judges carry out this kind of administrative function in all trials, and the fact that I was not expecting to be the determiner of fact is, while relevant, not determinative of the issue.

42. J Forrest J did in fact refuse to continue with the trial, holding at [44]:

“Ultimately I return to the point that the primary consideration is the entitlement of the defendant to a trial by jury. If its conduct had in some way led to a discharge of the jury then it may have forfeited by its actions its entitlement to trial by jury. I have thought long and hard about the disposition of this application. Ultimately it is for the plaintiff to persuade me that there is good cause to deprive the defendant of its entitlement to a jury. Whilst I have taken into account powerful considerations in relation to the saving of costs and the effect on the administration of justice I am not persuaded that the defendant should lose its entitlement to a jury trial.”

43. There were, however, reasons arising from the different facts of that case for doing so. This would have been the second retrial, not the fourth, and the plaintiff had no health risks.

44. Although there is no authority directly on point in New South Wales, courts at appellate level have on several occasions commended decisions not to discharge the jury where the end of the trial had been reached, or where there are multiple defendants, or multiple causes of action (as was the case in Gunns Ltd v Marr), because different factors may apply.

45. An example occurred in Lee v Cha [2005] NSWCA 279, where there were six separate defendants and a cross-claim, and the s 7A jury had to be discharged in relation to the conduct of one defendant following an address ruling partway through a lengthy trial. In the course of dismissing the appeal against the discharge of the jury in relation to only one of the six defendants, where the first instance judge continued with the jury trial in relation to the other defendants, the court approved of this course as having “very sensibly” (at [63]) resolved the difficulty of what was to become with the rest of the proceedings.

46. In Lane & Anor v Reid [2005] NSWCA 198 at [16], Brownie AJA similarly endorsed a decision to continue with a judge-alone trial in such circumstance as “very sensible”, although warning that such cases turn on their facts:

“16 I would just add one other matter. Reference was made to the decision in Croll where the Full Court had to consider the trial judge’s decision declining to discharge the jury. In that case Ferguson ACJ, who was the trial judge, declined to discharge the jury towards the end of a very long trial, saying in substance that it was better in the circumstances to receive the verdict of a jury because that might be the end of the case. That was if I might say so with respect, a very sensible view, but it is a far cry from the circumstances of this case.”

47. While these decisions are of assistance, none refer to multiple discharges of a jury. Further, none refer to the reason for the discharge being, in two of the three occasions of discharge, a party’s ill health continuing to be a potential problem for future trials. The basis upon which this application is brought by the defendants falls well outside the list of factors considered in any of the above judgments. Not only is there a prospect that the plaintiff will become ill again in the course of the proceedings if there is a fourth jury (or, for that matter, non-jury) trial; there is also the possibility that he will die and thereby extinguish the action with disagreeable costs consequences.

Conclusion: this trial should proceed to its conclusion

48. For the reasons set out above, and only those reasons, I am satisfied that pursuant to s 21 of the Act and the discretion I accordingly exercise, the defendants’ application should be granted. The jury has already been discharged. All that remains is for the plaintiff to make submissions in reply. Neither party proposes to call further evidence or to seek to reopen cross-examination. The issues of law are not complex. The legal principles applicable to justification and contextual justification are not only well-established but have been the subject of careful consideration very recently in Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal) [2025] FCAFC 67; 310 FCR 170.

49. As noted above, Mr Senior raised issues such as proportionality, the plaintiff’s conduct and the impact on the defendants and the witnesses for the defendants. I have not taken any of these matters into account. As to the first, I do not consider proportionality is appropriate to take into account as it is akin to applying the “universal” features of jury trials. As to the second, I consider that if I am to remain the trial judge in these proceedings, I should not make any findings as to the parties’ credit or the way in which these proceedings have been conducted.

50. I have similarly not taken into account any asserted failure to comply with the requirements of Civil Procedure Regulation 2017(NSW) for the plaintiff to pay jury requisition and/or retainer fees, although I note that some fees, including jury retention fees, remain unpaid for the first and third trial.

51. I have reserved the issue of costs. These events occurred through no fault of either party and the appropriate time for costs to be determined is at the conclusion of these proceedings.

52. As I am satisfied that the trial of these proceedings should continue before me as a judge-alone trial, I invite the parties to provide Short Minutes of Order for the completion of closing submissions, with a trial date for the hearing of oral submissions to take place.

Orders:

1. Defendants’ application granted; Requisition for Jury filed on 24 August 2022 revoked; trial to proceed before Gibson DCJ sitting without a jury.

2. Costs reserved with liberty to apply.

3. The parties are to bring in short Minutes of Order reflecting an agreed timetable for the exchange of further evidence (if any) and submissions in order to conclude the hearing of these proceedings.

4. Exhibits remain with the file until further order.

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Decision last updated: 19 September 2025