The Court refused both the defendant's application to transfer the proceeding to the Family Court under the Cross-vesting Act and the plaintiff's application to amend her writ to specify trial by jury. On the jury question, the Court held that the existence of a claim based on the novel common law tort of invasion of privacy was a strong factor favouring judge-alone trial, given the difficulties of instructing a jury on uncertain legal elements and the importance of a full factual record for likely appeals; the fact that the proceeding included a defamation claim did not, in the circumstances, outweigh that factor. On the transfer application, the Court expressed doubt as to whether the Family Court had jurisdiction (whether via accrued jurisdiction or s 9(3) of the Commonwealth Cross-vesting Act) but declined to resolve that question, holding that even assuming jurisdiction existed, the Supreme Court was the more appropriate forum because of the vindication function of defamation proceedings (which conflicts with the Family Court's default confidentiality regime), the Supreme Court's greater suitability for developing a novel tort, and the Court's capacity to provide an expeditious trial. The Court inclined to the view, without finally deciding, that r 47.02(2) is available to a defamation plaintiff who did not signify for jury trial in the writ, and that s 49 of the Civil Procedure Act 2010 provides an independent power to order a jury trial.
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