District Court
New South Wales
Medium Neutral Citation: Barrack v Wilson [2020] NSWDC 789 Hearing dates: 3 and 17 September 2020 Date of orders: 3 and 17 September 2020 Decision date: 09 November 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: 03 September 2020
(1) Grant leave to Plaintiff to reinstate imputation 6(c) “The plaintiff is dishonest”, which is strike out inadvertently.
(2) Grant leave to Plaintiff to plead the fourth contextual imputation as a new imputation 6(f).
(3) Plaintiff’s challenge to the form of the contextual imputation (iv) is dismissed.
(4) Subject to the condition set out in order (5), the plaintiff is granted leave to file a Further Amended Statement of Claim pleading the imputation which is currently pleaded by the defendant as the fourth contextual imputation in the Defence.
(5) The leave granted in order (4) above, is granted on the condition that leave to amend be revoked nunc pro tunc if the imputation is proved by the defendant to be substantially true, such that, at trial, the defendant may rely upon the imputation for the purpose of a defence under s. 26 of the Defamation Act 2005 (NSW).
(6) Dismiss the challenge to the first and the third contextual imputations brought on the basis that the language of these imputations is sufficiently imprecise.
(7) Dismiss the challenge to the second and third contextual imputations as not differing in substance
(8) Defer the argument as to the particulars of justification (para 24-26), pending the further submissions as follows:
(9) Plaintiff to file further submissions by 10 Sep 2020
(10) Defendant to file a reply to the further submissions by 17 September 2020.
(11) Matter listed for further argument on Thursday 17 September 2020.
(12) Costs reserved.
17 September 2020
(13) Note the concession that the particulars need to be re-pleaded to set out which apply to which contextual imputation.
(14) Plaintiff’s application to strike out particulars 31, 32, 34, 35 and 36 of the particulars of the contextual justification Defence is dismissed with costs including the cost of the adjourned hearing of 3 September 2020.
(15) Parties are to provide SMO for a further timetable for this proceeding including amendments to the contextual justification particulars following from the agreement between Mr Senior and Mr Thomas.
Catchwords: TORT- DEFAMATION – challenge to the form of the defendant’s contextual imputations – challenge to particulars of justification – no issue of principle
Legislation Cited: Defamation Act 2005 (NSW) s 26
Uniform Civil Procedure Rules (“UCPR”) r 14.30(3)
Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Allen v John Fairfax & Sons (Supreme Court of NSW, Hunt J, 2 December 1988)
Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204
Brooks v Fairfax Media Publications Pty Ltd (No 3) [2020] NSWSC 1331
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232
Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772
Con Ange v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 204
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- AGLC
- Barrack v Wilson [2020] NSWDC 789
- Case
- [2020] NSWDC 789
- Decision Date
CaseChat Overview and Summary
The court found that the plaintiff could reinstate an inadvertent strike-out of an imputation and add a new imputation. The court dismissed the plaintiff's challenge to the form of one contextual imputation, as the language was not sufficiently imprecise. The court granted leave for the plaintiff to amend the Statement of Claim to include a new imputation, subject to the condition that the leave be revoked if the imputation was found to be substantially true. The court dismissed the plaintiff's challenges to other contextual imputations, finding that they did not differ in substance from the defendant's pleaded imputations. The court deferred the argument on the particulars of justification pending further submissions from the parties.
The court further found that the plaintiff's application to strike out certain particulars of the contextual justification defence was dismissed, with costs awarded to the defendant. The court noted the concession that the particulars needed to be re-pleaded to set out which applied to which contextual imputation. The parties were directed to provide a further timetable for the proceeding, including amendments to the contextual justification particulars following an agreement between the parties' solicitors.
The court's orders allowed the plaintiff to amend the Statement of Claim to include additional imputations and challenge certain aspects of the defendant's defence. The court's decision ensures that the plaintiff has the opportunity to plead the relevant imputations and challenge the defendant's defence effectively. The court's orders also ensure that the case progresses in an efficient and timely manner, with the parties providing a further timetable for the proceeding.
Orders
Orders of the court
03 September 2020
(1) Grant leave to Plaintiff to reinstate imputation 6(c) “The plaintiff is dishonest”, which is strike out inadvertently.
(2) Grant leave to Plaintiff to plead the fourth contextual imputation as a new imputation 6(f).
(3) Plaintiff’s challenge to the form of the contextual imputation (iv) is dismissed.
(4) Subject to the condition set out in order (5), the plaintiff is granted leave to file a Further Amended Statement of Claim pleading the imputation which is currently pleaded by the defendant as the fourth contextual imputation in the Defence.
(5) The leave granted in order (4) above, is granted on the condition that leave to amend be revoked nunc pro tunc if the imputation is proved by the defendant to be substantially true, such that, at trial, the defendant may rely upon the imputation for the purpose of a defence under s. 26 of the Defamation Act 2005 (NSW).
(6) Dismiss the challenge to the first and the third contextual imputations brought on the basis that the language of these imputations is sufficiently imprecise.
(7) Dismiss the challenge to the second and third contextual imputations as not differing in substance
(8) Defer the argument as to the particulars of justification (para 24-26), pending the further submissions as follows:
(9) Plaintiff to file further submissions by 10 Sep 2020
(10) Defendant to file a reply to the further submissions by 17 September 2020.
(11) Matter listed for further argument on Thursday 17 September 2020.
(12) Costs reserved.
17 September 2020
(13) Note the concession that the particulars need to be re-pleaded to set out which apply to which contextual imputation.
(14) Plaintiff’s application to strike out particulars 31, 32, 34, 35 and 36 of the particulars of the contextual justification Defence is dismissed with costs including the cost of the adjourned hearing of 3 September 2020.
(15) Parties are to provide SMO for a further timetable for this proceeding including amendments to the contextual justification particulars following from the agreement between Mr Senior and Mr Thomas.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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