JOHN FAIRFAX GROUP PTY LTD AND ANOR v WILLIAMS AND ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirByY P, MAHONEY JA and Hope A-JA 4 February 1992 [1992] NSWCA 120 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. First, it minimises the interference of this Court in the conduct of trial proceedings. It reduces the number, cost and complexity of interlocutory appeals, which are, in my view, a particular problem in defamation cases. See Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 148 (CA). Secondly, it avoids unnecessary appeals in the event, for example, that the claimants succeed at the trial, either generally or on the issue of re-publication, or suffer a verdict that is acceptable to them or otherwise considered unappealable. Thirdly, it avoids the particular disadvantages of a stream of appeals. If this Court were to grant leave it would do so on the question of whether the re-publication was the "natural and probable consequence" of the original publication by the claimants. If the Court granted leave in that case, arguably, it might be a matter in which the High Court of Australia could be persuaded to 2 UNREPORTED JUDGMENTS grant special leave to appeal from this Court's order. That would set in train a series of appeals which would be premature and inconvenient to the opponents and to the courts. Fourthly, if the issue is to be reviewed it is desirable, as Mahoney JA pointed out during argument, that the precise circumstances of the original publication and of the re-publication should be demonstrated in the exact facts of the particular case. It is at least possible that, bringing the matter up now, would simply increase the number of hearings and the risk of multiplicity of proceedings without compensatory advantage. I would therefore dismiss the summons with costs necessarily without any observation on the correctness of Hunt J's orders. It should be left to the trial judge to decide whether to take a special verdict from the jury on this point, as would seem appropriate. This would allow that component of any verdict attributable to the alleged re-publication to be considered in isolation. That would seem to be useful for any appeal that may be brought from the jury's verdict. The issue now sought to be raised may then be tested as of right. The order of the Court should be that the summons is dismissed with costs. Mahoney J I agree the summons should be dismissed with costs. Hope AJA I agree. Kirby P: The order of the Court is summons dismissed with costs. Summons dismissed with costs. Counsel for the Claimant: S Rares Solicitors for the Claimant: Mallesons Stephen Jaques Counsel for the Opponent: JS Wheelhouse Solicitors for the Opponent: Fisher Nash Morgan