Creak v Channel Seven Sydney Pty Ltd (No 2)

HER HONOUR: In these proceedings, the plaintiff prosecutes four causes of action, namely, defamation, injurious falsehood, trespass and what might be termed s 52 claims (that is, claims of misleading or deceptive conduct). The procedure by which the hearing should proceed is complicated on that account.

In the case of the claim in defamation, there is a statutory entitlement, upon election, to have the proceedings tried by jury: see s 21 of the Defamation Act 2005 (NSW). Section 22 of the Act delineates the roles of judge and jury in that event, requiring the jury to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. The section reserves all other issues (including damages) to the judge. It has been foreshadowed that an election for trial by jury will be made in this case.

Section 85 of the Supreme Court Act 1970 (NSW), however, provides "proceedings in any Division are to be tried without a jury, unless the Court orders otherwise."

In the claims brought by the plaintiff there is, if not exact commonality, at least substantial overlap in the claims in defamation and injurious falsehood in respect of the imputations or meanings to be attributed to the material complained of by the plaintiff.

Separately, there is the complication that, whereas damages for defamation are determined by the judge, damages for injurious falsehood, in proceedings tried by jury, would ordinarily be determined by the jury.

The parties have sought to address those complexities by proposing orders by consent which, with respect, reflect a sensible solution. I am satisfied that it is appropriate to make the orders sought, as follows: