New South Wales Court of Appeal CITATION: State of New South Wales v Frawley [2006] NSWCA 317 HEARING DATE(S): 9 November 2006 JUDGMENT DATE: 9 November 2006 JUDGMENT OF: McColl JA at 1; Basten JA at 6 EX TEMPORE JUDGMENT DATE: 11/09/2006 DECISION: Application for leave to appeal dismissed with costs. CATCHWORDS: DEFAMATION - application for leave to appeal from refusal of application for summary dismissal - question whether claimant responsible for internet publication on school computers where principal failed to respond to plaintiff's request to have matters complained of removed from website, or to bar students from accessing computers - matter of practice and procedure - primary application proceeded on assumed facts - actual facts to be determined by jury at s 7A Defamation Act hearing - leave refused (ND) LEGISLATION CITED: Defamation Act 1974 Adam P Brown Male Fashion Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 CASES CITED: Frawley v State of New South Wales [2006] NSWSC 48 In re the will of Gilbert (decd) (1946) SR (NSW) 318 PARTIES: State of New South Wales - Claimant Gregory Frawley - Opponent FILE NUMBER(S): CA 40193 of 2006 COUNSEL: T Molomby SC with K Andronos - Claimant L McCallum SC with PM Sibtain- Opponent SOLICITORS: IV Knight, Crown Solicitor - Claimant MacMahon Associates - Opponent LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20243 of 2005 LOWER COURT JUDICIAL OFFICER: Simpson J LOWER COURT DATE OF DECISION: 6 April 2006 LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWSC 248 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40193/06 SC 20243/05 McCOLL JA BASTEN JA Thursday 9 November 2006 STATE OF NEW SOUTH WALES v GREGORY FRAWLEY Ex Tempore Judgment 1 McCOLL JA: This is an application for leave to appeal from a decision of Simpson J in which her Honour refused the claimant's application for summary dismissal of the proceedings and its application that the statement of claim be struck out. 2 The opponent seeks to recover damages against the claimant in respect of two allegedly defamatory publications which the statement of claim asserts were published on the defendant's computers in circumstances more fully set out in Simpson J's judgment. In essence the claimant is said to have published the matters complained of because of their publication on a web site, notification to the principal of the high school of that publication accompanied by a request by the opponent to remove the material, or to take steps to ensure it was not viewed, and the principal's failure to take the steps or to respond to the request made of him. 3 The claimant sought to strike the proceedings out on the basis that, as a matter of law, publication by it could not be constituted by these facts. Simpson J refused to do so on the assumed basis, which she was required to make for the purpose of the application, that those facts were made good and there was an arguable case on authorities dealing with publication. 4 The application for leave to appeal seeks to challenge a decision relating to a matter of practice and procedure in which respect the Court keeps a tight rein on interference with orders of a Judge at first instance: In re the will of Gilbert (decd) (1946) SR (NSW) 318 at 323; Adam P Brown Male Fashion Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170. 5 The factual controversy between the parties and the factual foundation will have to be determined by a jury at a hearing pursuant to section 7A of the Defamation Act 1974. In such circumstances, in my view, it is not appropriate to accede to the application for leave to appeal. I would refuse leave to appeal with costs. 6 BASTEN JA: I agree. I would only add that the issue sought to be raised by the claimant appears to me to be an important one which, if it could be dealt with by way of a separate issue, might appropriately have been dealt with in that way. Given the need for a jury to consider the question of the facts of the publication that course was presumably thought to be inappropriate. 7 I agree that leave should be refused in the present case because the important issue of principle should not properly be disposed of without the facts being known. 8 In upholding the decision of her Honour I would not wish to be thought to approve her Honour's statement in Frawley v State of New South Wales [2006] NSWSC 48 at [17] and [18] that the opponent could necessarily establish its case in the way outlined there. I do not think her Honour meant to make a statement of legal principle, but it is certainly a matter which would need to be dealt with at trial on full submissions when that occasion arises. 9 I agree with the orders proposed by McColl JA. 10 McCOLL JA: The application for leave to appeal is dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.