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Hooper v Phipps (No 3)

Hooper v Phipps (No 3)

Case [2025] NSWDC 370 19 September 2025

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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

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…

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 Hooper v Phipps (No 3)

Details

AGLC: Hooper v Phipps (No 3) [2025] NSWDC 370
Case: [2025] NSWDC 370
Decision Date: 19 September 2025

CaseChat Overview and Summary

The case of Hooper v Phipps (No 3) arose out of a defamation claim brought by the plaintiff against the defendants. The dispute had already endured through three jury trials, with the first two trials being aborted due to the plaintiff’s ongoing health issues. The third trial was similarly disrupted but continued until the matter was brought before Gibson DCJ in the Federal Circuit and Family Court of Australia. The defendants sought an order to either abort the current trial or to continue the trial without a jury, given the plaintiff’s ongoing health issues and the costs and delays associated with previous jury trials.

The court was required to decide whether a fourth trial by jury should be ordered or whether the current trial should proceed without a jury, exercising its discretion under the concept of “other issue.” The court had to balance the plaintiff’s right to a trial by jury against the practical considerations of cost, delay, and the plaintiff’s health. It also needed to consider the implications of the previous trials and the potential for further disruptions.

Gibson DCJ concluded that a fourth trial by jury should not be ordered. The court found that the practical considerations, including the plaintiff’s health issues and the significant costs and delays associated with previous jury trials, outweighed the plaintiff’s right to a jury trial. The court exercised its discretion under the “other issue” jurisdiction, determining that the trial should proceed before the trial judge sitting alone. The court granted the defendants' application, revoked the requisition for a jury, and ordered that the trial continue before Gibson DCJ sitting without a jury. The court also reserved costs with liberty to apply and directed the parties to prepare short minutes of order reflecting an agreed timetable for the exchange of further evidence and submissions to conclude the hearing of these proceedings.

The court ordered that the trial should proceed before Gibson DCJ sitting without a jury, revoked the requisition for a jury, and reserved costs with liberty to apply. The parties were directed to prepare and file short minutes of order reflecting an agreed timetable for the exchange of further evidence and submissions to conclude the hearing of these proceedings. The exhibits remained with the file until further order.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

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

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

Roberts-Smith v Fairfax Media Publications Pty Limited (Appeal)
[2025] FCAFC 67 Para 48

…ell-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.…
Footscray Football Club Limited (ACN 005 226 595) v Adam Kneale
[2024] VSCA 314 Para 25

…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)).…
Saltalamacchia v Zamagias
[2024] NSWCA 184 Para 25

…ment 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)).…
Hooper v Phipps (No 2)
[2024] NSWDC 8 Para 6

…king 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.…
Wagner v Harbour Radio Pty Ltd
[2017] QSC 222 Para 16

…ry 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:…
Channel Seven Sydney Pty Ltd v Fierravanti-Wells
[2011] NSWCA 246 Para 27

…ed 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]:…
Messade v Baires Contracting Pty Ltd (Rulings No 2, 3, and 4)
[2011] VSC 75 Para 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…
Con Ange v Fairfax Media Publications Pty Ltd
[2010] NSWSC 1383 Para 29

…ccept 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]).…
Adams v Network Ten Pty Ltd
[2010] NSWDC 198 Para 2

…ns. 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]).…
Bernard v Seltsam Pty Ltd
[2010] VSC 305 Para 36

…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…
Gunns Ltd v Marr (No 5)
[2009] VSC 284 Para 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…
Lumbers v W Cook Builders Pty Ltd (in liq)
[2008] HCA 27 Para 23

…: 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 n…
Yoon Shin Lee v Bob Chae-Sang Cha
[2005] NSWCA 279 Para 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…
Lane v Reid
[2005] NSWCA 198 Para 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:…
Obeid v Australian Broadcasting Corporation
[2003] NSWDC 1 Para 19

…m 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 operati…
Business and Research Management Limited v Flude
[2002] NSWSC 812 Para 17

…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]:…
Moselmane v Jones
[2002] NSWDC 1 Para 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.…
Graham Evans Pty Ltd v Stencraft Pty Ltd
[1999] FCA 1670 Para 36

…g 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).…
Oshlack v Richmond River Council
[1998] HCA 11

…servation & 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.”…
TCN Channel 9 Pty Limited v Antoniadis
[1997] NSWCA 306 Para 23

…80] 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 regarde…
Morgan v John Fairfax & Sons Limited
[1991] HCATrans 51 Para 23

…“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 conce…
Water Conservation and Irrigation Commission (NSW) v Browning
[1947] HCA 21

…ons 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.”…
Palmer v Clarke
45 ER 206 Para 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 “…

Legislation cited in this decision · 4

Defamation Act 2005 (TAS)
10, 21 3 mentions (from Para 1)
Supreme Court (General Civil Procedure) Rules 2005 (Vic)
47.02(3) 2 mentions (from Para 35)
Civil Procedure Act 2005 (NSW)
1 mention
District Court Act 1973 (NSW)
1 mention

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