The senator

The circumstances of this appeal were as follows:
• the plaintiff, a Senator from NSW, was funded to go to Italy on a study trip in 2009. She wrote a 620-page report on the Australian Wool Industry;
• “Today Tonight” broadcast a story and referred to it as a “dubious study trip”…. and stated:

“And where else would Liberal Senator Concetta Fierravanti-Wells go for her study trip? Italy, of course. It cost the taxpayer more than $17,000 for the politician to reconnect with her heritage.”

• the plaintiff sued Channel 7 in the District Court in NSW.
• Channel 7 and the journalist filed defences asserting justification, contextual truth, honest opinion and fair comment. They also elected for a trial by jury.
• Judge Levy SC acted on his own motion in dispensing with the jury. There was no application by either party.
• His Honour asked the parties for submissions as to why the trial should not be heard by judge alone and ultimately after hearing submissions, ordered that the trial not be heard by a jury.
• His Honour basically concluded that it would be too complicated for a jury to analyse the Wool Report.
• Channel 7 and the journalist appealed to the NSW Court of Appeal.

The main question then was this: When a party has elected for a trial by jury under the Defamation Act, can a court move on its own motion to have the trial heard by judge alone?

After analyzing jury trials in defamation proceedings, jury trials generally, the adversarial system, the legislation and the Rules, Appeal Justice McColl (with whom the other judges agreed) concluded that the answer was no. Only a party can bring such an application.

So the trial goes back into the lists and good luck to the jury with that report!