Westfield v Page
[2001] NSWSC 439
•18 May 2001
CITATION: Westfield & Anor v Page [2001] NSWSC 439 CURRENT JURISDICTION: Civil FILE NUMBER(S): SC 20606/00 HEARING DATE(S): Friday, 18 May 2001 JUDGMENT DATE:
18 May 2001PARTIES :
Mark Westfield (Plt)
Anne Maria Nicholson (Plt)
Karina Page (Def)JUDGMENT OF: McClellan J
COUNSEL : S Wheelhouse (Plt)
L McCallum (Def)SOLICITORS: Bush Burke & Company (Plt)
Mallesons Stephen Jaques (Def)CATCHWORDS: Defamation - imputations said to arise from statements made by the defendant in debate when a development application of the plaintiffs was being considered by Council - whether claim and cross-claim should be heard before the one jury in a trial pursuant to section 7A of the Defamation Act 1974 (NSW) LEGISLATION CITED: Defamation Act 1974 (NSW) CASES CITED: Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 DECISION: Paras 8-12
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
McCLELLAN J
FRIDAY, 18 MAY 2001
20606/00 - WESTFIELD & ANOR v PAGE
JUDGMENT
1 HIS HONOUR: The plaintiffs in this matter sue in relation to imputations which are said to arise from statements made by the defendant in debate when a development application of the plaintiffs was being considered by Manly Council. The defendant is a councillor and spoke in the debate in relation to an application brought by the plaintiffs to alter a dwelling house.
2 The proceedings are defended, and the defendant brings a cross-claim, alleging that she was defamed in a letter forwarded by the plaintiffs to the Mayor of Manly Council, and also in comments made to the Manly Daily, which were incorporated into a publication in that newspaper. The alleged defamation upon which the plaintiffs sue is also included in the same article in that newspaper.
3 The debate before me today is whether both the claim and cross-claim should be heard before the one jury in a trial pursuant to section 7A of the Defamation Act, which deals with both the claim and the cross-claim.
4 Ms McCallum, who appears for the defendant in the matter, submits that prior to the amendment to the Defamation Act, which provided for section 7A trials, a matter such as this would be tried before a jury and all issues would have been litigated in the one proceedings. Of course, the ordinary common law rule, reflected in the Supreme Court Rules, is that matters in dispute between parties should, where appropriate, be heard and disposed of in the one proceedings. Apart from any other consideration, the Court is concerned to minimise the cost to the parties and to the State of protracted litigation in separate trials. However, it is plain that such an approach was not obligatory.
5 Ms McCallum submits that the same approach should be adopted by this Court in administering the trial processes following the amendment to the Defamation Act. My enquiries indicate that this issue has not arisen in this Court previously and, accordingly, so far as I can determine, there is no statement of this Court which provides any guidance as to the approach which should be taken.
6 However, the Court of Appeal has previously considered general matters arising pursuant to section 7A where it has been stressed that it is necessary for a court to be careful to ensure that the process of section 7A trials is not contaminated by the introduction of material not relevant to the limited issues which are required to be considered in such a trial.
7 It is plain that section 7A provides a procedure which focuses exclusively on two questions, the first being whether the words or other matter convey the imputations pleaded, and the second whether they are defamatory. No other issue is relevant to the trial, and the court should ensure that no matter is introduced which could have the effect of diverting the jury from considering the limited issues thereby raised (see Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 at 473).
8 The present case involves a dispute between an applicant to Manly Council and a councillor. Whatever be the background to that dispute, which has led to the publication of the various statements, it is plain that a jury may, if both the claim and cross-claim were heard together, be diverted from the task of considering the separate issues which arise in relation to the claim or cross claim. In my opinion there is a significant risk that, upon being apprised of the correspondence between the plaintiffs and the Mayor, a jury would be diverted from the task of considering only the issues relevant to the plaintiffs' claim when considering that claim. Further, there is a real risk that knowledge of the plaintiff's claim could deflect the jury from considering the limited issues relevant to the cross claim. Accordingly, the appropriate course is for the 7A trial to be separated.
9 If this is done, it should be possible for the court to make arrangements to ensure that the trial in relation to the claim is followed immediately by the trial in relation to the cross-claim. In this way the expense to the parties of separate trials should be minimised. Accordingly, I make order 2 in the notice of motion.
10 I formally indicate that when the matters are considered for a hearing, if possible, arrangements should be made so that the trial of the claim is heard before a judge and jury, to be followed, as soon as convenient, by the trial of the cross-claim. I have in mind that this should occur on the day following the conclusion of the trial in relation to the claim.
11 I also indicate, for the assistance of those listing the matter for hearing, that arrangements should be made so that the same Judge hears the trial of the claim and of the cross-claim.
12 The plaintiffs seek an order for costs. The plaintiffs have, of course, succeeded in the motion opposed by the defendant, although the matter is, as I have indicated, novel. In my view, there is no reason why the usual order should not be made and, accordingly, I order the defendant to pay the plaintiffs' costs.
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