Gregory Frawley v The State of New South Wales [2007] NSWSC 1379

New South Wales Supreme Court

CITATION : Gregory Frawley v The State of New South Wales [2007] NSWSC 1379

HEARING DATE(S) : 19 November 2007 - 27 November 2007

JUDGMENT DATE : 29 November 2007

JUDGMENT OF : Berman AJ

DECISION : The Plaintiff was not allowed to put its case on the basis that there was an alternative means of establishing liability for publication from that which had already been put to the jury.

CATCHWORDS : Defamation - Publication - Internet - Acceptance of responsibility - Pleadings - Whether Plaintiff should be able to present its case to the jury on a new basis.

LEGISLATION CITED : Defamation Act 1974

Urbanchich v Drummoyne Municipal Council (1991) Aust Tort Reports 81-127 CASES CITED : Byrne v Dean [1937] 1 KB 818 Webb v Bloch (1928) 41 CLR 331

PARTIES : Gregory Frawley State of New South Wales

FILE NUMBER(S) : SC 20243/05

COUNSEL : P. M. Sibtain - Plaintiff T. Molomby SC; K. Andronos - Defendant

SOLICITORS : MacMahon Associates PtyLtd - Plaintiff Crown Solicitor - Defendant

JUDGMENT

1 Towards the end of a jury trial conducted under s7A Defamation Act 1974 the Defendant raised an issue with the contents of the address made on behalf of the Plaintiff. The Defendant submitted that Counsel for the Plaintiff, Ms Sibtain, had, in her address, raised for the first time an alternative basis for the Defendant's liability which had not been pleaded, and about which it had not been given notice. I heard argument and ruled that the Plaintiff was not allowed to put its case on the basis that there was an alternative means of establishing liability from that which had been already put to the jury. In order to inconvenience the jury as little as possible I indicated that I would give my reasons for that ruling later. These then are those reasons.