JOHN FAIRFAX GROUP PTY LTD AND ANOR v WILLIAMS AND ORS [1992] NSWCA 119

JOHN FAIRFAX GROUP PTY LTD AND ANOR v WILLIAMS AND ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P (1), MAHONEY JA (2) and HOPE A-JA (3) 4 February 1992 [1992] NSWCA 119

PRACTICE and PROCEDURE — Court of Appeal — leave to appeal — interlocutory defamation proceedings — statement of claim seeks to recover damages for re-publication of alleged defamation by another media outlet — whether natural and probable consequence of original publication — whether correct test — HELD: (dismissing summons from orders of David Hunt J) The summons was not timely. The challenge should be brought as of right, if then needed, after the jury's verdict in the trial. Observations by Kirby P on the "particular problem in defamation cases" of a proliferation of interlocutory appeals.

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (CA) referred to.

Kirby P In this summons the claimants seek to challenge an order of David HuntJ (as the Chief Judge at Common Law then was) refusing the claimant's application to strike out para7 to paral0 of the amended Statement of Claim and ordering the claimants to pay the opponents' costs. The paragraphs in question seek to render the claimants liable in law for certain alleged re-publications of the allegedly defamatory matter made by a broadcaster of the Australian Broadcasting Corporation.

On the call of the summons, the Court raised the question of the timeliness of the grant of leave. In my view, the grant of leave is not timely. It would be preferable that, if necessary, the issue sought to be raised should come to this Court in an appeal that is brought from any final verdict in favour of the opponents at the hands of the jury in the principal proceedings. These await trial in the Common Law Division.

In taking that course, as was demonstrated in argument, there are at least four advantages.