AUSTRALIAN CONSOLIDATED PRESS LTD v BALTINOS [1995] NSWCA 27

AUSTRALIAN CONSOLIDATED PRESS LTD v BALTINOS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLY and MEAGHER JJA 18 September 1995, 18 September 1995

[1995] NSWCA 27

PRACTICE and PROCEDURE — Court of Appeal- application to discharge orders of a single JA — proper approach — held: Must show error of principle.

PRACTICE and PROCEDURE — Court of Appeal- stay — impecuniosity of judgment creditor — preliminary estimate of the prospects of success — proper approach — held: (by maj): No error — stay refused. Alexander and Ors v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 (CA) explained and applied.

APPEAL — stay — impecuniosity — prospects.

DEFAMATION — public interest defence imputations as to deception and abandonment of wife — held: arguable but (by maj) were taken into account in refusing stay.

PRACTICE and PROCEDURE — Court of Appeal — discharge of orders of single judge (Cole JA) refusing stay — proper approach of Court of Appeal — held: (by the Court): The approach to be adopted is by analogy with review of discretionary decisions — Court to consider whether error of principle shown or misunderstanding of essential matter.

PRACTICE and PROCEDURE — Court of Appeal — application to discharge the orders of a single Judge of Appeal (Cole JA) refusing a stay — judgment in defamation action in favour of plaintiff on imputations found to be true but not within public interest defence — publisher challenges judgment — appeal point arguable — judgment in sum of $17,400 — whether error shown in the exercise of the discretion to refuse to provide stay — whether judge declined to take into account impecuniosity of party whether he failed to consider the prospects of success in the appeal — held: (Priestley JA and Meagher JA; Kirby P dissenting): (1) No error shown; (2) Discharge of the orders of Cole JA refused. Alexander and Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR 685 (CA) considered and explained.