New South Wales Court of Appeal CITATION: Holmes à Court v Papaconstuntinos [2010] NSWCA 329 HEARING DATE(S): 29 June 2010 JUDGMENT DATE: 29 June 2010 JUDGMENT OF: Allsop P at 1; McColl JA at 8; Basten JA at 9 EX TEMPORE JUDGMENT DATE: 29 June 2010 1. Grant leave to appeal on the question of qualified privilege as covered by grounds 1, 3, 4, 5 and 6 of the draft notice of appeal noting that leave has been withdrawn on the question of quantum which I would not have granted leave about in any event. DECISION: 2. Order the applicant to pay the costs thrown away caused by the late application to challenge previous decisions of this Court in Bennette v Cohen [2009] NSWCA 60 and Goyan v Motyka [2008] NSWCA 28. Such costs thrown away are to be paid on an indemnity basis. Grant leave to assess such costs forthwith and once assessed to be paid forthwith. 3. The costs of today insofar as they represent a leave application only are to be costs in the appeal. CATEGORY: Procedural and other rulings Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366 CASES CITED: Bennette v Cohen [2009] NSWCA 60 Goyan v Motyka [2008] NSWCA 28 Richards v Cornford (No 3) [2010] NSWCA 134 PARTIES: Peter Holmes à Court (Appellant) Tony Papaconstuntinos (Respondent) FILE NUMBER(S): CA 2009/298579 COUNSEL: Mr B R McClintock SC, Mr R W Potter (Appellant) Mr T K Tobin QC, Mr R K Weaver (Respondent) SOLICITORS: Baker & McKenzie (Appellant) Slater & Gordon (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 2006/20404 LOWER COURT JUDICIAL OFFICER: McCallum J LOWER COURT DATE OF DECISION: 4 September 2009 LOWER COURT MEDIUM NEUTRAL CITATION: PAPACONSTUNTINOS v HOLMES À COURT [2009] NSWSC 903 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298579 ALLSOP P McCOLL JA BASTEN JA Tuesday 29 June 2010 PETER HOLMES à COURT v TONY PAPACONSTUNTINOS Judgment 1 ALLSOP P: I propose to say a number of things. First of all, set against the background of today these are my reasons. On the calling upon the concurrent application today it became apparent immediately that the applicant/appellant wished or needed to challenge previous decisions of this court as part of his argument. The question concerns not only the precedential value but the content of the judgment of McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366. The previous decisions of this court, in particular Bennette v Cohen [2009] NSWCA 60 and Goyan v Motyka [2008] NSWCA 28 have adopted McHugh J's judgment in Bashford as a statement of legal principle. 2 It was put on behalf of the applicant that this was a subsidiary position and that the primary position was that these cases could be distinguished. Nevertheless, the point was not resiled from or abandoned. Paragraph 38 of the Practice Note makes plain that if any party proposes to challenge the correctness of a previous decision of this Court or another intermediate court in the Commonwealth, notice should be given in writing immediately to the Registrar of the Court of Appeal. That is because questions such as departure from previous decisions is an important matter for the Court and involves questions of the constitution of the Court of more than three judges. 3 Because no notice was given, a bench of three judges has been assembled for this; both judges being involved in a third decision of the Court of Appeal which may not be the subject of challenge but was related. It is most regrettable that this has occurred. If the challenge had not involved the assertion of the incorrect application by previous Courts of Appeal of High Court authority there would have been powerful reasons why the late application for leave to challenge the earlier decisions would have been refused, for the kinds of considerations that were discussed recently in Richards v Cornford (No 3) [2010] NSWCA 134. 4 Mr Papaconstuntinos is an individual litigant who was successful below and whose judgment is being sought to be challenged. He was entitled to expect his case to be heard today and that would bring a resolution of the litigation one step closer. Nevertheless, the issue now raised, which should have been raised in a letter to the Registrar months ago, is a matter of significant importance. It involves the proper application of High Court authority and if the course were taken not to grant leave to permit the challenge to the earlier Court of Appeal decisions this could simply be productive of additional costs for Mr Papaconstuntinos in later applications. 5 In all the circumstances, I do not think the course should be taken of refusing leave to challenge these decisions. That means that the appeal should not proceed today. It is most unfortunate but Mr Papconstuntinos should be protected as far as possible financially from the consequences of this and in that light I would make appropriate costs orders to do so. 6 It is not appropriate, given that I would grant leave, to say anything more about the substance of the argument. 7 The orders that I would make are: 1. Grant leave to appeal on the question of qualified privilege as covered by grounds 1, 3, 4, 5 and 6 of the draft notice of appeal noting that leave has been withdrawn on the question of quantum which I would not have granted leave about in any event. 2. Order the applicant to pay the costs thrown away caused by the late application to challenge previous decisions of this Court in Bennette v Cohen [2009] NSWCA 60 and Goyan v Motyka [2008] NSWCA 28. Such costs thrown away are to be paid on an indemnity basis. Grant leave to assess such costs forthwith and once assessed to be paid forthwith. 3. The costs of today insofar as they represent a leave application only are to be costs in the appeal. 8 McCOLL JA: I agree. 9 BASTEN JA: I also agree. 10 ALLSOP P: The orders I have proposed are, therefore, the orders of the Court. ********** 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.