Matthews v Banning

[2008] NSWDC 46

Reported Decision: 6 DCLR (NSW) 366

District Court

CITATION:	Matthews v Banning [2008] NSWDC 46
HEARING DATE(S):	28 March 2008
JUDGMENT DATE:	28 March 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Application to dispense with a jury dismissed. 2. Plaintiff pay defendant’s costs of this application.
CATCHWORDS:	Tort - defamation - application to dispense with jury under s 21 Defamation Act 2005 (NSW)
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Defamation Act 1974 (NSW), s 13 Defamation Act 2005 (NSW), ss 21and 40 District Courts Act 1858 (NSW) District Court Act 1973 (NSW), ss 79A, 126 and 127 Uniform Civil Procedure Rules 2005 (NSW), Part 29 r 29.2
CASES CITED:	Antoniadis v TCN Channel Nine Pty Ltd(1998) 44 NSWLR 682 Ainsworth v Burden [2006] NSWCA 199 Combined Excavations & Supplies Pty Ltd v Bowis [2000] NSWCA 298 Costains (Aust) Pty Ltd v Atkinson (Court of Appeal of NSW, 5 October 1995, unreported) Dubbo Stock & Station Agents Pty Ltd v Laws [2004] NSWCA 336 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 Grobbelaar v News Group Newspapers Ltd [2001] 2 All ER 437 Grobbelaar v News Group Newspapers Ltd [2004] 4 All ER 732 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Huntley v Alexander (1922) 30 CLR 566 Jones v Sutton (2005) 61 NSWLR 614 Keramaniakis & Anor v Regional Publishers Pty Ltd [2007] NSWCA 375 Malan v Silvas (Court of Appeal of NSW, 3 July 1992, unreported) Mallik v McGeown [2008] NSWSC 129 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Percy v General-Motors Holden [1975] 1 NSWLR 289
TEXTS CITED:	Ritchie’s Uniform Civil Procedure
PARTIES:	Plaintiff: Janette Matthews Defendant: Robert Banning
FILE NUMBER(S):	2986 of 2007
COUNSEL:	Plaintiff: R Weaver Defendant: G R Graham
SOLICITORS:	Plaintiff: Higgins & Higgins Defendant: Hallam & Littlewood

Introduction
1. This is an application by the plaintiff for the trial of defamation proceedings (set down for hearing for 4 August 2008) to proceed without a jury.

2. The plaintiff commenced proceedings by way of Statement of Claim filed 13 July 2007 for an oral publication in September 2006 imputing allegations that the plaintiff was a sex worker, a horse thief and had loose morals. As the date of publication occurs after 1 January 2006, the Defamation Act 2005 (NSW) applies, either party is entitled to requisition a trial by jury, on all issues except quantum, by compliance with the procedure set down in Part 29 r 29.2 UCPR.

3. The plaintiff and defendant had at one stage had an interest in a horse, “Amberlove”. The alleged publication that gave rise to these proceeding was a slander said to have been uttered by the defendant, an 83 year old pensioner, to four people. The defendant is in poor health and has recently suffered a stroke. It is a limited publication, and one which is properly brought in the District Court, having regard to the special costs provisions in s 40 Defamation Act 2005.

4. A defence was filed…