Benhayon v Rockett (No 2)

This is an action for defamation which is ready to be listed for hearing. The parties have asked the Court to refer the matter to the list clerk to obtain a hearing date with an estimate of four to six weeks.

Having regard to the fact that each of the parties is an individual and mindful of the likely cost of a hearing of that length, I called upon the parties to provide a memorandum justifying a listing for that length of time. The parties have addressed that issue, if briefly, in a joint document. The material set out explained the complexity of the issues in the proceedings but did not address the Court’s principal concern, namely, the issue of proportionality.

Accordingly, I called upon the parties further to say whether they wished to be heard as to whether a direction should be made limiting the listing to a period shorter than the estimate of four to six weeks by the parties pursuant to section 62(3) of the Civil Procedure Act 2005 (NSW). Neither party wished to be heard on that issue.

Section 62 of the Civil Procedure Act provides:

It may be accepted that the proceedings involve issues of some complexity, including by reason of the large number of matters complained of and the correspondingly large number of imputations, the fact that there are defences of truth, contextual truth and statutory and common law qualified privilege and the generality of some of the imputations and contextual imputations sought to be justified in the proceedings. However, I do not think this Court can on any analysis warrant the allocation of a period of up to six weeks for a hearing of this kind. Were the hearing to take that long, the costs would inevitably be vastly disproportionate to the interest at stake, bearing in mind the cap on general damages under the Defamation Act 2005 (NSW), being $389,500.

For those reasons I direct, pursuant to section 62(3) of the Civil Procedure Act, that the period of the hearing be limited to three weeks. I list the proceedings for hearing for that period on 3 September 2018.