Kang v Australian Broadcasting Corporation

The applicants, Mr. Kang and others, sought leave to appeal from a judgment of McCallum J in the Common Law Division of the Supreme Court of New South Wales, which had dismissed their defamation proceedings. The dismissal occurred at a "show cause" hearing after the plaintiffs failed to file and serve an amended statement of claim. The applicants also sought to adduce fresh evidence on appeal.

The primary legal issues before the Court of Appeal were whether leave to appeal should be granted, and in particular, whether the proposed fresh evidence could have affected the outcome of the original proceedings, thereby justifying its admission in the exercise of the court's discretion. The court also considered whether the appeal raised an issue of principle, as contemplated by section 61 of the *Civil Procedure Act 2005* (NSW).

Basten JA and Bergin CJ in Eq, in dismissing the application for leave to appeal, reasoned that the proposed fresh evidence was unlikely to have altered the outcome of the original decision. They found that the applicants had not demonstrated that the evidence could not have been obtained with reasonable diligence for use at trial, nor that it was compelling enough to warrant admission on appeal. The court concluded that the appeal did not raise a significant issue of principle that would justify granting leave.

Consequently, the Court of Appeal ordered that the summons filed on 3 September 2015 seeking leave to appeal be dismissed, and that the applicants pay the respondents’ costs of the application.