AUSTRALIAN BROADCASTING CORPORATION v PREBBLE [1996] NSWCA 32

AUSTRALIAN BROADCASTING CORPORATION v PREBBLE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA and GILES AJA 21 October 1996

[1996] NSWCA 32

Priestley JA. In the Australian Broadcasting Corporation matter the Court has come to a conclusion.

The opponent to the application in this matter brought proceedings in New South Wales in 1990 against the claimant, the Australian Broadcasting Corporation, for alleged defamation on a particular occasion and in New Zealand against another defendant for alleged defamation on a different occasion.

The Court was told from the bar table that the New Zealand proceedings probably also commenced in 1990. The claimant says the defamation alleged in the two proceedings is substantially the same.

By March 1993 pleadings, particulars and lists of documents on both sides in the New South Wales proceedings had been attended to. In October 1995 on the opponent's application the New South Wales proceedings were, as it appears by the opponent's chronology, by consent, restored to the list.

By notice of motion filed on 22 November 1995, the Australian Broadcasting Corporation sought an order that the proceedings be stayed as an abuse of process. On 6 September 1996, Levine J dismissed the application. This application for leave to appeal against his decision was then brought.

The Court has not seen Levine J's reasons but the documents filed in connection with the application for leave and the argument this morning sufficiently disclosed matters to enable the Court to be able to deal with the application.

Three factors were particularly argued before the Court. These were the prospects of success of the application for the stay on the ground on which it was brought, in the event leave was granted; the utility of the appeal in the sense that questions were raised whether the particular issues the Australian Broadcasting Corporation wanted to raise might not, in substance, be dealt with in the defamation proceedings, thus making an appeal in the application for stay proceedings of no particular utility; and third the delay by the Australian Broadcasting Corporation in seeking to raise the matter of this stay.