Macquarie Bank Limited & Anor v Berg [2002] NSWSC 254

New South Wales Supreme Court

CITATION : Macquarie Bank Limited & Anor v Berg [2002] NSWSC 254 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20247/99; 20393/00 HEARING DATE(S) : 13 June 2001; 15 February 2002 JUDGMENT DATE : 3 April 2002

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

COUNSEL : (P) Mr B McClintock SC (D) Mr J M Ireland QC & Mr R Dalgleish SOLICITORS : (P) Abbott Tout (D) Verekers CATCHWORDS : Resolution of procedural difficulties - no matter of principle LEGISLATION CITED : Defamation Act 1974 CASES CITED : Nil DECISION : Paras 35-38

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SMART AJ

Wednesday, 3 April 2002

20247/99) MACQUARIE BANK LIMITED and ANDREW JOHN DOWNE v CHARLES JOSEPH BERG 20393/00) JUDGMENT 1 SMART AJ : There are three applications, one by the plaintiffs in proceedings 20247/99, one by the plaintiffs in proceedings 20393/00 and one by the defendant in proceedings 20393/00. They relate to proceedings in respect of defamatory material allegedly placed by the defendant on the Internet on or about 25 May 1999 and 1 July 1999 in Illinois, United States of America. It was subsequently able to be accessed by people in Australia who wished to do so. The defendant does not reside or carry on business in Australia and has only been present in the jurisdiction on a limited number of occasions.

2 There are two sets of proceedings because in respect of the first placement on the Internet of about 25 May 1999 by summons the plaintiffs in 20247/99 sought an order restraining the defendant publishing certain material on the Internet. There was no claim for damages in the summons. While the defendant was notified of the application he did not appear at the hearing. On 2 June 1999 Simpson J said "The order I make is that the application for interlocutory injunction is refused." That order has never been passed and entered. It would not matter if it had been as it was only an interlocutory order. It could be varied or rescinded. Upon further application by motion an interlocutory injunction could have been granted. That is usually only done on further evidence or where the judge can be persuaded that the initial refusal was infected by a material error. The refusal of the interlocutory order did not stop the plaintiff pressing for final relief and, in support, if so advised, relying on further evidence.