BUTTON v LONDON and ANOR [1991] NSWCA 38

BUTTON v LONDON and ANOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, SAMUELS and CLARKE JJA

1 May 1991, 1 May 1991

[1991] NSWCA 38

PRACTICE and PROCEDURE — Court of Appeal — defamation contested application to add additional grounds of appeal necessity of adjournment of hearing — appeal originally against damages only — immediately prior to hearing appellant seeks to add grounds relating to (a) suggested failure by evidence to establish identification; (b) alleged failure of trial judge to state reasons; and (c) misdirections as to imputations and the defences of truth, comment and unlikelihood of harm — held: (1) The Court should strive, if it can justly do so, to determine the real issues between the parties on the merits; (2) Last minute adjournment necessitated by the addition of fresh grounds of appeal caused injustice to the respondent whose claim arose in 1984 and was tried in 1988; (3) However, such injustice could be adequately repaired by an order that the appellant pay on a solicitor and client basis t:he costs occasioned by the application and consequent adjournment; (4) It would remain for the Court hearing the appeal to determine whether, to allow the fresh grounds of appeal, would involve a procedural unfairness, having regard to the manner in which the trial was conducted. Coulton and Ors v Holcombe and Ors (1986) 162 CLR 1,7 referred to.

DEFAMATION — identification — letter to editor under false name — persons allegedly defamed not identified by name whether sufficiently identified by evidence — whether sufficiently identified for amount of damages awarded whether evidence of identification necessary in the manner of the conduct of the trial — held: An application to enlarge grounds of appeal (originally against damages only) to permit objections to the judgment of a District Court judge based upon want of identification would be permitted on terms. Consolidated Trust Co Limited vy Browne (1948) 49 SR (NSW) 86 referred to.