Malouf v Prince - [2009] NSWCA 159

New South Wales

Court of Appeal

CITATION: Malouf v Prince [2009] NSWCA 159

HEARING DATE(S): 21 April 2009

JUDGMENT DATE:
24 June 2009

JUDGMENT OF: McColl JA at 1; Macfarlan JA at 2; Nicholas J at 3

DECISION: 1. Application for leave to appeal refused with costs. 2.Motion to allow further evidence dismissed. 3. Applicant to pay the costs of the application before Beazley JA, for leave to appeal and the motion to allow further evidence. 4. Respondent’s motion for dismissal of the application for leave to appeal dismissed. 5.No order as to costs in respect of the respondent’s motion.

CATCHWORDS: APPEAL - leave to appeal - matter of practice and procedure - refusal of adjournment and related costs orders - interference with discretion of court below - whether injustice - general principles

LEGISLATION CITED: Supreme Court Act 1970
Trade Practices Act 1974 (Cth)

CATEGORY: Principal judgment

CASES CITED: Adam P Brown Male Fashions Pty Ltd v Philip Morris [1981] HCA 39; (1981) 148 CLR 170
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Malouf v Prince [2008] NSWCA 153
Re Will of Gilbert (1946) 46 SR(NSW) 318

PARTIES: John Malouf - Applicant
Stephen Thomas Prince - Respondent

FILE NUMBER(S): CA 40178 of 2008

COUNSEL:
Mr ATS Dawson - Applicant
Mr FG Lever SC - Respondent

SOLICITORS: Attwood Marshall Lawyers (QLD) - Applicant
Walters Solicitors - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 24/07

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 11/06/08, 12/06/08

CA 40178/08
DC 24/2007

McCOLL JA
MACFARLAN JA
NICHOLAS J
Wednesday 24 June 2009

John Malouf v Stephen Thomas Prince

Judgment

1 McCOLL JA:

I agree with Nicholas J.

2 MACFARLAN JA: I agree with Nicholas J

3 NICHOLAS J: Before the Court were an application for leave to appeal, and to appeal, from orders made by his Honour Judge McLoughlin on 11 June and 12 June 2008 which were heard concurrently. There were also the applicant’s motion for leave to admit further evidence on the appeal and the respondent’s motion for orders that the application for leave to appeal be dismissed as an abuse of process, with costs on an indemnity basis.

4 The proceedings were commenced by the applicant in the District Court at Lismore by statement of claim claiming damages for the publication of defamatory imputations in letters of 6 March and 10 March 2006, and damages under s 87 Trade Practices Act 1974 (Cth) for such publications. The defence pleaded defences of common law and statutory qualified privilege, truth, honest opinion, fair comment, and an offer of amends. It was estimated that the trial would involve numerous witnesses, and would take about 10 days.

5 In due course the proceedings were listed for hearing in Lismore at the sittings commencing 10 June 2008 before the primary judge. On that day, his Honour stood over to 11 June 2008 the applicant’s motion for an adjournment of the proceedings to the sittings in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Malouf v Prince

Details

AGLC: Malouf v Prince [2009] NSWCA 159
Case: [2009] NSWCA 159
Decision Date: 24 June 2009

CaseChat Overview and Summary

Malouf (the applicant) sought leave to appeal from a decision of Beazley JA, who had refused an adjournment of proceedings and made related costs orders. Prince (the respondent) had filed a motion seeking dismissal of the application for leave to appeal.

The primary legal issue before the Court of Appeal was whether Beazley JA had erred in the exercise of her discretion by refusing the adjournment and making the costs orders, and whether this refusal had caused injustice to the applicant. A secondary issue concerned the applicant's motion to adduce further evidence on appeal.

The Court of Appeal, comprising McColl JA, Macfarlan JA, and Nicholas J, considered the principles governing interference with a primary judge's discretion, particularly in matters of practice and procedure. They found no basis to interfere with Beazley JA's decision, concluding that no injustice had been demonstrated. The application for leave to appeal was therefore refused. The motion to allow further evidence was also dismissed.

The Court ordered that the applicant pay the costs of the application for leave to appeal and the motion to allow further evidence. The respondent's motion for dismissal of the application for leave to appeal was dismissed, with no order as to costs in respect of that motion.

Orders

Orders of the court

1. Application for leave to appeal refused with costs. 2.Motion to allow further evidence dismissed. 3. Applicant to pay the costs of the application before Beazley JA, for leave to appeal and the motion to allow further evidence. 4. Respondent's motion for dismissal of the application for leave to appeal dismissed. 5.No order as to costs in respect of the respondent's motion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Malouf v Prince [2009] NSWCA 159
HEARING DATE(S):	21 April 2009
JUDGMENT DATE:	24 June 2009
JUDGMENT OF:	McColl JA at 1; Macfarlan JA at 2; Nicholas J at 3
DECISION:	1. Application for leave to appeal refused with costs. 2.Motion to allow further evidence dismissed. 3. Applicant to pay the costs of the application before Beazley JA, for leave to appeal and the motion to allow further evidence. 4. Respondent’s motion for dismissal of the application for leave to appeal dismissed. 5.No order as to costs in respect of the respondent’s motion.
CATCHWORDS:	APPEAL - leave to appeal - matter of practice and procedure - refusal of adjournment and related costs orders - interference with discretion of court below - whether injustice - general principles
LEGISLATION CITED:	Supreme Court Act 1970 Trade Practices Act 1974 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Adam P Brown Male Fashions Pty Ltd v Philip Morris [1981] HCA 39; (1981) 148 CLR 170 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Malouf v Prince [2008] NSWCA 153 Re Will of Gilbert (1946) 46 SR(NSW) 318
PARTIES:	John Malouf - Applicant Stephen Thomas Prince - Respondent
FILE NUMBER(S):	CA 40178 of 2008
COUNSEL:	Mr ATS Dawson - Applicant Mr FG Lever SC - Respondent
SOLICITORS:	Attwood Marshall Lawyers (QLD) - Applicant Walters Solicitors - Respondent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 24/07
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	11/06/08, 12/06/08