Watney v Kencian and Wooley - [2014] QDC 290

DISTRICT COURT OF QUEENSLAND

CITATION:

Watney v Kencian & Wooley [2014] QDC 290

PARTIES:

CHRISTOPHER DAUNT WATNEY
(plaintiff)
v
DR JANET KENCIAN
(first defendant)
and
ANTHONY WOOLEY
(second defendant)

FILE NO/S:

CLAIM NO: 52 of 2013

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Cairns

DELIVERED ON:

17 December 2014

DELIVERED AT:

Cairns

HEARING DATE:

12 December 2014

JUDGE:

MORZONE QC DCJ

ORDER:

1.   The application is dismissed.

2.   Subject to order 3, the defendants will pay the plaintiff’s costs of the application to be assessed on the standard basis.

3.   If either party contends for a different costs order, that party will file and serve written submissions in respect of costs by 4:00 pm on 23 January 2015, and order 2 will be stayed pending a decision on costs on the papers.

CATCHWORDS:

DEFAMATION – PRACTICE AND PROCEDURE – QUEENSLAND - DECLARATION – where plaintiff elected trial by jury but proposes to not pay prescribed fees for jury – where respondents made no election – respondents apply for declaration that plaintiff cannot change election and compel plaintiff to pay fees; or alternatively permit defendants to pay instead, or alternatively order for trial by jury – costs.

Legislation

Defamation Act 2005 (Qld) – ss 21 and 22
Jury Act 1995 (Qld) – ss 65(1) and 65A

Jury Regulation 2007 (Qld) – reg 11
Uniform Civil Procedure Rules 1999 (Qld) – rr 472 to 475
Cases

Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315
Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383
Coronis v Jilt (2012) QCA 66
Nielsen v State of Queensland [2001] 1 Qd R 500
Quinlan v Rothwell [2008] QSC 143
Rubin v Buchanan [2011] QSC 275

Trevor Roller Shutter Service Pty Ltd v Crowe (2011) 31 VR 249
Davies v Davies (1919) 26 CLR 348
Brooks v Burns Philp (1969) 121 CLR 432
Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129

COUNSEL:

Dr M Jonsson for the Plaintiff

Mr T Pincus for the Defendants

SOLICITORS:

Miller Bou-Samra solicitors for the Plaintiff

Boe Williams Anderson solicitors for the Defendants

The defendants made an application in the proceeding for a declaration that the plaintiff cannot change his election to trial by jury and an order that the plaintiff pay the prescribed fees for a jury; or alternatively an order permitting the defendants to the pay instead and amend the request for trial date, or alternatively an order for trial by jury and costs.

I have had the advantage of written outlines of argument supplemented by oral submissions made on the hearing of the application on 12 December 2015.

Background

The proceeding arises out of the plaintiff’s claim that he was defamed in a letter the defendants wrote to school authorities. The plaintiff was a principal of a school attended by the defendants’ children. The defendants deny that the alleged imputations arose and/or were defamatory, and plead defences of qualified privilege or alternatively honest opinion.

The plaintiff’s statement of…

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.

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Details

Case: [2014] QDC 290
Decision Date: 17 December 2014

CaseChat Overview and Summary

The case of Watney v Kencian and Wooley involved a defamation claim where the plaintiff, Watney, had elected trial by jury but proposed to not pay the prescribed fees for the jury. The respondents, Kencian and Wooley, made no election and applied for a declaration that Watney could not change his election and that he must pay the fees; alternatively, they sought to permit themselves to pay the fees instead or to order a trial by jury. The case was heard in the Supreme Court of Queensland. The primary legal issue before the court was whether Watney could change his election regarding the payment of jury fees after having initially elected to proceed with a trial by jury.

The court examined the statutory framework governing the election of trial by jury and the payment of jury fees. It noted that under the relevant legislation, once a party elects trial by jury, they are required to pay the prescribed fees. However, the court held that Watney's right to elect trial by jury was absolute, and once exercised, it could not be withdrawn. The court concluded that Watney's proposal to not pay the jury fees did not alter his right to trial by jury. Consequently, the court dismissed the respondents' application for a declaration and for an order compelling Watney to pay the fees or permitting the respondents to pay instead.

The court also considered the costs implications of the application. It held that the respondents were not entitled to an order for costs as they had not succeeded in their application. Instead, the court ordered that the defendants would pay the plaintiff’s costs of the application, to be assessed on the standard basis. The court provided an opportunity for either party to apply for a different costs order, with written submissions to be filed and served by a specified date. The court stayed the costs order pending a decision on the costs on the papers. This outcome ensured that the procedural rights of the parties were respected while also addressing the financial implications of the application.

Orders

Orders of the court

1. The application is dismissed.

2. Subject to order 3, the defendants will pay the plaintiff’s costs of the application to be assessed on the standard basis.

3. If either party contends for a different costs order, that party will file and serve written submissions in respect of costs by 4:00 pm on 23 January 2015, and order 2 will be stayed pending a decision on costs on the papers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Watney v Kencian & Wooley [2014] QDC 290
PARTIES:	CHRISTOPHER DAUNT WATNEY (plaintiff) v DR JANET KENCIAN (first defendant) and ANTHONY WOOLEY (second defendant)
FILE NO/S:	CLAIM NO: 52 of 2013
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Cairns
DELIVERED ON:	17 December 2014
DELIVERED AT:	Cairns
HEARING DATE:	12 December 2014
JUDGE:	MORZONE QC DCJ
ORDER:	1. The application is dismissed. 2. Subject to order 3, the defendants will pay the plaintiff’s costs of the application to be assessed on the standard basis. 3. If either party contends for a different costs order, that party will file and serve written submissions in respect of costs by 4:00 pm on 23 January 2015, and order 2 will be stayed pending a decision on costs on the papers.
CATCHWORDS:	DEFAMATION – PRACTICE AND PROCEDURE – QUEENSLAND - DECLARATION – where plaintiff elected trial by jury but proposes to not pay prescribed fees for jury – where respondents made no election – respondents apply for declaration that plaintiff cannot change election and compel plaintiff to pay fees; or alternatively permit defendants to pay instead, or alternatively order for trial by jury – costs. Legislation Defamation Act 2005 (Qld) – ss 21 and 22 Jury Act 1995 (Qld) – ss 65(1) and 65A Jury Regulation 2007 (Qld) – reg 11 Uniform Civil Procedure Rules 1999 (Qld) – rr 472 to 475 Cases Channel Seven Sydney Pty Ltd v Fierravanti-Wells (2011) 81 NSWLR 315 Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383 Coronis v Jilt (2012) QCA 66 Nielsen v State of Queensland [2001] 1 Qd R 500 Quinlan v Rothwell [2008] QSC 143 Rubin v Buchanan [2011] QSC 275 Trevor Roller Shutter Service Pty Ltd v Crowe (2011) 31 VR 249 Davies v Davies (1919) 26 CLR 348 Brooks v Burns Philp (1969) 121 CLR 432 Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129
COUNSEL:	Dr M Jonsson for the Plaintiff Mr T Pincus for the Defendants
SOLICITORS:	Miller Bou-Samra solicitors for the Plaintiff Boe Williams Anderson solicitors for the Defendants