Macquarie Bank Limited & Anor v Berg [2002] NSWSC 1110

New South Wales Supreme Court

CITATION : Macquarie Bank Limited & Anor v Berg [2002] NSWSC 1110 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20247/99 HEARING DATE(S) : 3 April 2002; 12 April 2002; 16 July 2002; 24 July 2002 JUDGMENT DATE : 22 November 2002

PARTIES : Macquarie Bank Limited & A J Downe v Charles Joseph Berg JUDGMENT OF : Smart AJ at 1

LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : (P) B McClintock SC & Mr T Blackburn (D) J Ireland QC & Mr R Dalgleish SOLICITORS : (P) Abbott Tout (D) Verekers CATCHWORDS : Leave to proceed with Statement of Claim served out of jurisdiction - what constitutes publication in New South Wales when material downloaded from Internet overseas - no abuse of process Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gutnick v Dow Jones & Co Inc [2001] VSC 305 CASES CITED : Webb v Bloch [1928) 41 CLR 331 Lee v Wilson & Ors (1934) 51 CLR 276 Bristile v Buddhist Society of Western Australia Inc [1999] WASC 259 Agar v Hyde (1999-2000) 201 CLR 552 DECISION : See paras 59-61

- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SMART AJ

Friday, 22 November 2002

20247/99: MACQUARIE BANK LIMITED & A J DOWNE v CHARLES JOSEPH BERG JUDGMENT

1 The plaintiffs in substance allege that the defendant published or caused to be published or participated in the publishing on the Internet in May and July 1999 of material which is defamatory of them, being respectively counts 1 and 2 of the statement of claim. The website was established in the United States and the allegedly defamatory material was placed on the Internet in that country. It was common ground that the allegedly defamatory material was accessible in New South Wales and was so accessed, inter alios, by the plaintiffs' solicitor. The plaintiffs relied on such access as constituting publication in New South Wales. There was an argument that the actual allegations in the statement of claim were demurrable and, in any event, did not represent the factual position for which the plaintiffs contended.