JOHN FAIRFAX AND SONS LIMITED v LUKIN LUKIN v JOHN FAIRFAX AND SONS LIMITED [1988] NSWCA 74

JOHN FAIRFAX & SONS LIMITED v LUKIN LUKIN v JOHN FAIRFAX & SONS LIMITED

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MCHUGH and CLARKE JJA 22 & 23 February 1988, 6 July 1988

[1988] NSWCA 74

KEY WORDS: DEFAMATION — LEAVE TO APPEAL DEFAMATION — separate trial in Defamation List under Pt31 r 2 of questions whether or not certain imputations should go to the jury — discussion of circumstances in which leave to appeal in such cases should be granted and refused — plaintiff's application for leave to appeal refused and defendants' application allowed. PRACTICE & PROCEDURE — circumstances in which application for leave to appeal will be treated as the hearing of the appeal — Pt1 r12 and Pt51 r4(2) referred to.

Samuels JA There were two summonses for leave to appeal before us, one filed by the plaintiff and the other by the first, second, fifth, and sixth defendants. Each challenged orders made by Hunt J in the Defamation List on 22 December 1987 deciding which of the imputations asserted in the further amended statement of claim should or should not go to the jury following a separate trial under Pt31 r 2 held with the consent of the parties.

The further amended statement of claim (the amendments were made during the course of the hearing before Hunt J) sued upon an article written by the second defendant and published by the first defendant in The Sydney Morning Herald on 15 November 1986. The article is Annexure "A" to this judgment.

[EDITOR'S NOTE: The said article is not reproduced on the CLIRS system. Refer to hard copy of judgment for details.] The plaintiff alleged that by that publication the first and second defendants made the following defamatory imputations of the plaintiff:-

"(a) that the plaintiff and his brother had together committed the crime of cultivating and possessing marijuana for sale;