SPAUTZ v KIRBY [1989] NSWCA 189

SPAUTZ v KIRBY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, MEAGHER JA, HoPE AJA 30 October 1989

[1989] NSWCA 189

Gleeson CJ There are two applications before the court. The first is for appeal in this matter to be struck out on the ground that it is an abuse of the process of the court. The point in issue in the appeal is a novel and important question concerning the construction of a particular provision of the Defamation Act. As I understand it, it is common ground that the point is free from authority. The respondent contends that the appellant, whilst a member of the Law Reform Commission, was one of the co-authors of a report, the terms of which are such thatthey are either support or manifest an acceptance of an interpretation of the section contrary to that for which the appellant would now wish to argue in the appeal. Even assuming that assertion of fact to be correct, it is no possible basis for concluding that the appeal constitutes an abuse of the process of the Court. This Court will decide for itself questions that come before it as to the meaning and effect of the provisions of the Defamation Act. Whether the Court may be assisted to reach its own view on the true interpretation of the Act by extraneous material is a matter that will have to be worked out in due course. It is evident, however, that the point of construction involved is one as to which arguments can be put both ways The first application should be dismissed.

The second application is for the appeal to be treated as a short appeal and placed in the short appeals list. In this regard we have been given some information by Mr McClintock of counsel and Dr Spautz as to what occurred on the hearing of the matter at first instance. It seems to me that the point involved, although important, is a short question of construction of the Defamation Act, and the application that the matter be dealt with as a short appeal strikes me as reasonable. I would propose that the application be granted and the costs of the applications today be costs in the appeal.