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[1995] NSWCA 309
Court of Appeal (NSW)
1995-07-31
Original judgment source is linked above.
NATIONWIDE NEWS PTY LIMITED v HARTLEY SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL
Mahoney AP. This is an application for an urgent hearing of an appeal in an action for defamation. The alleged defamation occurred on 13 February 1990, something like five years ago. The chronology which the parties have provided to the Court for its assistance indicates a number of proceedings have taken place and it is obvious that the matter ought, in an ideal system, be dealt with as soon as practicable. One of the difficulties facing the Court is that, having regard to the state of this Court's list, it is unlikely that, granted expedition, the matter will be heard this year. However, I think in all the circumstances it is appropriate that some form of expedition be given.
The circumstances of the case are that the plaintiff, on 7 March 1995, was awarded a judgment of $935,000. I express no opinion as to whether that is excessive to the extent that the Court would set it aside. But there must, on any view, be an arguable case that it is. If it is then the matter must go back for re-trial and it would be set for re-trial on all issues. However, a problem has arisen from the fact that the parties have raised in the hearing the issues which were dealt with in the High Court in Theophanous v Western Australian Newspapers Limited (1994) 124 ALR 1 and no doubt they will upon the re-trial require some guidance on those matters as far as this Court is able to give it.
I have raised with the parties the question whether, if an order for expedition should be granted (and I think it should) something should be done to shorten the litigation process involved. If the matter comes before this Court and the judgment is set aside, eg, on the quantum issue, it will inevitably go back for a re-trial. The matter will then come to this Court on appeal and no doubt, if a similar verdict is given, go to the High Court. This seems to be excessive litigation. I have therefore raised with the parties whether there is some possibility of this being avoided.
I propose to indicate that, on the basis that the matter is to be expedited, this is a matter which in relation to the appeal should be monitored by a judge of the Court so as to ascertain whether some procedure can be evolved which will avoid the necessity of undue litigation. It would be unfortunate if this case went backwards and forwards between courts for reasons which, to a lay person, would suggest that it should not.
In the circumstances, I will grant an order that the matter be expedited. It is not a matter which requires hearing at the earliest possible date, but it is entitled to some degree of expedition. The degree of expedition and the date on which it will be heard will have to be settled by the Registrar. The parties may approach the Registrar for that purpose. It would appear appropriate that the costs of the application for expedition be costs in the appeal.
I will make that order for expedition and the costs will be costs in the appeal.
NATIONWIDE NEWS PTY LIMITED
HARTLEY
(1994) 124 ALR 1