Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246

McColl JA

113. This was contrary to that aspect of the adversarial system that the moving party bears the legal burden of establishing the right to the relief sought at a hearing before a judge of which the moving party has given notice to the defending party and at which both parties have an opportunity to tender evidence relating to, and advance arguments in favour of, the particular orders they ask for – an aspect of the rules of natural justice which pervades Australian procedural law: International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 (at [141] – [142]) per Heydon J.

114. As I have explained (at [83]), the onus is on an applicant seeking to change the mode of trial properly invoked to persuade the court to do so. Further, a party who lawfully requisitions a jury is not obliged to explain his or her choice and does not have to justify retention of the jury: see Combined Excavations and Supplies v Bowis (at [37] – [38]) per Heydon JA; Commonwealth of Australia v Cook[1994] NSWCA 60 (at 5); Gerlach v Clifton Bricks Pty Ltd (at [72]) per Kirby and Callinan JJ.


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