Hooper v Phipps (No 3)

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.