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District Court 12 August 2025

Bottrill v Graham & Anor (No 3)

[2025] NSWDC 306

Other
TORT DEFAMATION DRINKING RING OF CRIMINALS DEFENDANTS SEEK TRIAL BY JURY NOTICE OF MOTION GRANTED WHETHER “SPECIAL REASONS” MADE OUT

Citation: Bottrill v Graham & Anor (No 3) [2025] NSWDC 306
Court: District Court of New South Wales
Date: 12 August 2025
Judge: Gibson DCJ

Background

The plaintiff, a retired public servant, sued the two defendants in defamation over three podcasts published on the X platform in January and February 2024. Each podcast ran for more than three hours. The plaintiff alleged each publication imputed that he was the world leader of an international paedophile child murder and blood-drinking ring of criminals.

The first defendant had been legally represented since late 2024 following a pro bono referral. The second defendant, based in Tasmania, had received pro bono legal assistance until her barrister terminated the retainer in January 2025 under UCPR r 7.39. The matter was set down for hearing on 23 March 2026.

Two interlocutory applications were before the court. First, the first defendant filed an election for trial by jury under s 21 of the Defamation Act 2005 (NSW), supported by the second defendant. The plaintiff moved to have that election struck out. Second, the second defendant applied for a further pro bono lawyer under UCPR r 7.36.

  • Whether the defendants' election for trial by jury should be struck out under the exceptions in s 21(1A) of the Defamation Act 2005 (NSW), having regard to practical difficulties including the length of the matters complained of, empanelment problems, logistical constraints, and the need for prolonged examination of documents
  • Whether the second defendant had established "special reasons" justifying the appointment of a second pro bono lawyer under UCPR r 7.36

Decision

Trial by jury election

Gibson DCJ accepted that the defendants' position reflected well-established appellate authority endorsing the jury's role in defamation proceedings. However, the court was satisfied that the exceptions in s 21(1A) were made out on the particular facts of this case. A range of practical difficulties made a jury trial unworkable, and these difficulties arose directly from the nature and volume of the matters complained of.

The matters complained of totalled approximately nine and a half hours of audio. A jury would need to listen to all three podcasts and potentially many further similar recordings. More than 200 named individuals and organisations, including members of entire religious groups and civic bodies, were identified in the publications as being guilty of serious crimes. The empanelment process alone would require reading out that list to prospective jurors and testing each for impartiality, a task of considerable length and complexity.

Additional logistical obstacles compounded the difficulty. The second defendant cannot leave Tasmania and would need to participate throughout the trial, including the calling and cross-examining of witnesses, via audio-visual link, subject to interruptions arising from her substantial carer responsibilities. Civil juries in New South Wales are ordinarily composed of only four persons; if more than one juror withdrew during a lengthy trial, the proceedings would need to start again. The court also noted significant resource burdens, including the cost of preparing court books and technical equipment over a trial lasting several weeks.

Pro bono application

The court refused the second defendant's application for a further pro bono appointment. The second defendant had been without legal representation since January 2025, yet she offered no explanation for the delay in seeking a replacement. The hearing date had already been set, and the volume of work involved would be very substantial for any practitioner who took on the matter. The court also noted that the second defendant had directed unwarranted criticism at her previous practitioner and that there was an insufficient basis to conclude she would act on adverse legal advice. While legal representation would likely benefit her, those considerations did not rise to the level of "special reasons" required under UCPR r 7.36.

Orders Made

  • The plaintiff's notice of motion was granted; the first defendant's Notice of Election for Trial by Jury was struck out.
  • The defendants are to pay the plaintiff's costs of the application relating to mode of trial.
  • No costs order was made in relation to the second defendant's pro bono application; that application was refused.
  • The parties have liberty to bring in Short Minutes of Order for a timetable for discovery, with orders for provision of Lists of Documents by the defendants to be self-executing, subject to a review date no later than 18 September 2025 in the Defamation List.
  • The hearing date of 23 March 2026 was confirmed as a non-jury trial.

Key Takeaways

  • The District Court confirmed that s 21(1A) of the Defamation Act 2005 (NSW) can displace an election for jury trial where the particular facts of the case give rise to practical difficulties, logistical problems, and the need for prolonged examination of documents and audio material.
  • A jury election will not automatically succeed simply because appellate courts have historically endorsed the jury's role in defamation proceedings; the factual circumstances of the specific case determine whether the statutory exceptions apply.
  • Where the matters complained of involve extreme volume and content, and where empanelment would require testing hundreds of potential conflicts across a large pool of named individuals and organisations, those factors can collectively satisfy the threshold for refusing a jury trial under the legislation.
  • Under UCPR r 7.36, "special reasons" for a pro bono appointment are not established by the mere fact that legal representation would assist a party; delay in seeking a replacement, absence of explanation for that delay, and conduct toward a prior practitioner are all relevant to the exercise of the discretion.
  • Self-executing orders for discovery were directed against defendants who had already fallen behind the court's timetable, reflecting the court's expectation that procedural compliance obligations be maintained in the lead-up to the confirmed hearing date.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), ss 56–62
- Defamation Act 2005 (NSW), s 21
- Jury Act 1977 (NSW), ss 20, 22, 38(8)(b) and 58
- Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 7.39 and 29.2A

Cases
- Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1383
- Bottrill v Graham [2024] NSWDC 566
- Bottrill v Graham & Anor (No 2) [2025] NSWDC 221
- Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells (2011) 81 NSWLR 315
- Doe v Dowling [2019] NSWSC 1222
- E1 v E2; E Pty Limited v E2 [2023] NSWDC 411
- Gatto v Australian Broadcasting Corporation (No 1) [2020] VSC 420
- Goldsworthy v Radio 2UE Sydney Pty Limited [1999] NSWSC 290
- Goldsworthy v Seven Network Limited [2013] NSWSC 344
- Hanrahan v Ainsworth (1990) 22 NSWLR 73
- Hordern v State of New South Wales [2015] NSWSC 959
- Malan v Silvas [1992] NSWCA 143
- Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87
- McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133
- Michael Wilson & Partners Ltd v Emmott [2024] NSWSC 1489