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Burrows v Houda (No. 2)

Burrows v Houda (No. 2)

Case [2021] NSWDC 127 16 April 2021

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Burrows v Houda (No. 2) [2021] NSWDC 127
Hearing dates: 25 March 2021
Date of orders: 25 March 2021
Decision date: 16 April 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders
(1)   The Plaintiff’s application to strike out paragraphs 13(a)(i) - (iii) and 13 (b)(i) - (iii) and particulars [1 ] – [102] of the defence of justification and contextual truth, as well as the defence of justification, is dismissed.
(2) Pursuant to UCPR rule 28.2, contextual imputations (i) and (iii) are reasonably capable of being conveyed; the plaintiff’s challenges to their form are dismissed.
(3)   Contextual imputation (ii) is struck out as not differing in substance from the plaintiff’s imputations 8(b) & 14(b).
(4) Leave to the plaintiff to amend the further Amended Statement of Claim to appropriate contextual imputation (i) and (iii) is granted, but that leave to amend shall be revoked nunc pro tunc in respect of any imputation proved by the defendants to be substantially true, such that, at trial, the defendants may rely upon any such imputation for the purposes of the defence under s 26 of Defamation Act 2005 (NSW); such amended pleading to be filed in seven days.
(5)   Leave to the defendant to file an amended defence 21 days after service of the Further Amended State of Claim.
(6)   The plaintiff is to provide submissions as to court’s asserted lack of power to make nunc pro tunc orders by 5pm Friday 26 March 2021.
(7)   The defendant is to reply by Tuesday 30 March 2021.
(8)   The defendant to answer the plaintiff’s email dated 2 March 2021 in seven days; the plaintiff is to reply 14 days thereafter.
(9)   Plaintiff to pay defendant’s costs of the application.
(10)   Matter stood over to the Defamation List for further directions Thursday 29 April 2021 at 9am.

Catchwords:
TORT – defamation – application to strike out defences of justification and contextual truth on the basis of wholly inadequate particularisation – challenges to the form and capacity of the contextual imputations – application to “plead back” the contextual imputations – whether the court has power to grant leave to plead back but as a conditional nunc pro tunc order

Legislation Cited:
Broadcasting Services Act 1992 (Cth) cl 91
Civil Procedure Act 2005 (NSW) ss 56 - 64
Competition and Consumer Act 2010 (Cth) ss 18(1), s19
Defamation Act 2005 (NSW) ss 25, 26, 28, 29, 31 and 32
Evidence Act 1995 (NSW) s 91
Limitations Act 1985 (ACT) ss 11(1) and 36
Royal Commissions Act 1902 (Cth) s 6DD

Cases Cited:
Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228
Allen v John Fairfax and Sons Ltd ((Unreported, NSWSC, 2 December 1988)
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125
Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81
Burk v The Commonwealth (No 2) [2002] VSC 464
Burrows v Houda [2020] NSWDC 485
Channel Seven Sydney…

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 Burrows v Houda (No. 2)

Details

AGLC: Burrows v Houda (No. 2) [2021] NSWDC 127
Case: [2021] NSWDC 127
Decision Date: 16 April 2021

CaseChat Overview and Summary

The court considered an application by the plaintiff, Burrows, to strike out certain defences raised by the defendant, Houda, in a defamation proceeding. The plaintiff sought to strike out paragraphs relating to the defences of justification and contextual truth, as well as the defence of justification itself, on the basis that they were inadequately particularised. The plaintiff also challenged the form and capacity of certain contextual imputations. The application was dismissed in part and allowed in part. The court found that some of the contextual imputations were reasonably capable of being conveyed, but others were not sufficiently different in substance from the plaintiff’s own imputations to be maintained as separate defences.

The court considered whether it had the power to grant leave to the plaintiff to amend the further Amended Statement of Claim to include certain contextual imputations, but as a conditional nunc pro tunc order. The court concluded that it did have such power and granted leave to the plaintiff to amend the pleadings, but with the condition that the leave to amend would be revoked nunc pro tunc if any of the imputations proved substantially true. The court also granted leave to the defendant to file an amended defence and set a timetable for further submissions and directions. The plaintiff was ordered to pay the defendant’s costs of the application and the matter was stood over for further directions.

Orders

Orders of the court

Orders

(1) The Plaintiff’s application to strike out paragraphs 13(a)(i) - (iii) and 13 (b)(i) - (iii) and particulars [1 ] – [102] of the defence of justification and contextual truth, as well as the defence of justification, is dismissed.

(2) Pursuant to UCPR rule 28.2, contextual imputations (i) and (iii) are reasonably capable of being conveyed; the plaintiff’s challenges to their form are dismissed.

(3) Contextual imputation (ii) is struck out as not differing in substance from the plaintiff’s imputations 8(b) & 14(b).

(4) Leave to the plaintiff to amend the further Amended Statement of Claim to appropriate contextual imputation (i) and (iii) is granted, but that leave to amend shall be revoked nunc pro tunc in respect of any imputation proved by the defendants to be substantially true, such that, at trial, the defendants may rely upon any such imputation for the purposes of the defence under s 26 of Defamation Act 2005 (NSW); such amended pleading to be filed in seven days.

(5) Leave to the defendant to file an amended defence 21 days after service of the Further Amended State of Claim.

(6) The plaintiff is to provide submissions as to court’s asserted lack of power to make nunc pro tunc orders by 5pm Friday 26 March 2021.

(7) The defendant is to reply by Tuesday 30 March 2021.

(8) The defendant to answer the plaintiff’s email dated 2 March 2021 in seven days; the plaintiff is to reply 14 days thereafter.

(9) Plaintiff to pay defendant’s costs of the application.

(10) Matter stood over to the Defamation List for further directions Thursday 29 April 2021 at 9am.

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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Citations

AGLC Citation

Burrows v Houda (No. 2) [2021] NSWDC 127

Most Recent Citation

Burrows v Houda (No 3) [2025] NSWDC 77

Cases citing this decision · 1 of 1 shown

Burrows v Houda (No 3)
[2025] NSWDC 77 Para 3

…After rulings on pleadings ( Burrows v Houda [2020] NSWDC 485; Burrows v Houda (No 2) [2021] NSWDC 127) and completion of all interlocutory steps, the parties were ready for trial so, on 20 October 2022, orders were made for the parties to approach the List Judge to obtain a hearing date.…

View all 1 citing cases →

Cases cited in this decision · 28 of 28 shown

Hutley v Cosco
[2021] NSWCA 17 Para 2

…principles which have been mired in controversy over the last decade (as to the most recent discussion of these problems, see Hutley v Cosco [2021] NSWCA 17). In addition, there is the novel issue as to whether the court has power to make nunc pro tunc orders.…
Herron v HarperCollins Publishers Australia Pty Ltd (No 3)
[2020] FCA 1687 Para 25

…gs of fact made by one tribunal as having applicability to other issues outside the litigation. For example, in Herron v HarperCollins Pty Ltd (No 3) [2020] FCA 1687, the applicants, two medical practitioners the subject of adverse findings in a “notorious” (at [4]) Royal Commission known as the Chelmsford enquiry…
Feldman v Nationwide News Pty Ltd
[2020] NSWCA 260 Para 28

…t the plaintiff’s evidence in a Royal Commission was inadmissible in subsequent defamation proceedings) failed in Feldman v Nationwide News Pty Ltd [2020] NSWCA 260. While consideration of this issue turned on an interpretation of s 6DD of the Royal Commissions Act 1902 (Cth), the careful analysis of the special re…
Burrows v Houda
[2020] NSWDC 485 Para 1

…ions the subject of these claims are two Twitter posts dated 29 th July 2019 and 27 th May 2020, the contents of which are set out in Burrows v Houda [2020] NSWDC 485.…
State of New South Wales v Wraydeh
[2019] NSWCA 192 Para 34

…marks made in other proceedings are sufficiently strong to be “scathing” is an issue for the tribunal of fact: State of New South Wales v Wraydeh [2019] NSWCA 192.…
Australian Broadcasting Corporation v Chau Chak Wing
[2019] FCAFC 125 Para 29

…documents the contents of which are admissible at trial: Clark v Richards [2002] WASC 5 at [9]; Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [147] and [177] – [178].…
Esso Australia Pty Ltd v Australian Workers' Union
[2017] HCA 54 Para 1

…curing of a procedural defect or error. Even the apparent limitation expressed by the High Court in Esso Australia Pty Ltd v Australian Workers Union (2017) 263 CLR 551 at [49] is a matter going to discretion rather than to power: Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FC…
Abou-Lokmeh v Harbour Radio Pty Ltd
[2016] NSWCA 228 Para 46

…These principles were explained in more detail by the Court of Appeal in Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [30] – [40]:…
Jones v TCN Channel Nine Pty Ltd (No 3)
[2016] NSWSC 922 Para 58

…pleaded. Leave to appropriate is commonly granted ( Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171; Jones v TCN Channel 9 Pty Ltd (No 3) [2016] NSWSC 922), but on terms. In making such an order in Eardley v Nine Network Australia Pty Ltd (the authority referred to by Mr Rasmussen in his written submiss…
Fairfax Media Publications Pty Ltd v Zeccola
[2015] NSWCA 329 Para 47

…tricted to a specific event, but to be Maisel imputations. If I have erred in so finding, I would add that, in Fairfax Media Publications v Zeccola [2015] NSWCA 329, McColl JA, with whom Macfarlan JA agreed and Sackville AJA agreed, held that a general contextual imputation of a Maisel nature could be pleaded in de…
Chel v Fairfax Media Publications Pty Ltd
[2015] NSWSC 171 Para 2

…ead back” contextual imputations where there has been a challenge made to their form and capacity ( Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 at [23]), principles which have been mired in controversy over the last decade (as to the most recent discussion of these problems, see Hutley v Cosco [2021]…
Liu v Fairfax Media Publications
[2013] NSWSC 7 Para 1

…ns, including contextual imputations, which are well settled: Kelly v Harbour Radio [2013] NSWSC 9 at [12] – [17]; Liu v Fairfax Media Publications [2013] NSWSC 7 at [17] – [22]; Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8 at [6] – [7].…
Tauaifaga v TCN Channel Nine Pty Ltd
[2013] NSWSC 8 Para 1

…Harbour Radio [2013] NSWSC 9 at [12] – [17]; Liu v Fairfax Media Publications [2013] NSWSC 7 at [17] – [22]; Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8 at [6] – [7].…
Kelly v Harbour Radio
[2013] NSWSC 9 Para 1

…The principles in relation to form and capacity of imputations, including contextual imputations, which are well settled: Kelly v Harbour Radio [2013] NSWSC 9 at [12] – [17]; Liu v Fairfax Media Publications [2013] NSWSC 7 at [17] – [22]; Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8 at [6] – [7].…
Rennie Golledge Pty Ltd v Ballard
[2012] NSWCA 376 Para 2

…all of the imputations regardless of their subject matter. The bona fides of the application still remain relevant: Rennie Gollege Pty Ltd v Ballard [2012] NSWCA 376 at [104] – [105].…
Fairfax Media Publications Pty Ltd v Kermode
[2011] NSWCA 174 Para 2

…The impact on a pleaded defence under s 26 of the Defamation Act 2005 (NSW) (“the Act”), following Besser v Kermode [2011] NSWCA 174, where a plaintiff seeks to “plead back” contextual imputations where there has been a challenge made to their form and capacity ( Chel v Fairfax Media Publications Pty Ltd [2015] NSW…
Channel Seven Sydney Pty Ltd v Mahommed
[2010] NSWCA 335 Para 40

…ch material can be relied on if there is both a qualitative and temporal proximity between the defendant’s particulars of truth and the imputation: Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 278 [217] – [218]. The qualitative element is established because of the relevance of these events to the proceedings the plaintiff is ass…
Channel Seven Sydney Pty Ltd v Mahommed
[2008] HCATrans 270 Para 40

…both a qualitative and temporal proximity between the defendant’s particulars of truth and the imputation: Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 278 [217] – [218]. The qualitative element is established because of the relevance of these events to the proceedings the plaintiff is asserted to be…
John Fairfax Publications Pty Ltd v Hitchcock
[2007] NSWCA 364 Para 16

…ationwide News Pty Ltd at 42 – 54, acknowledges (at [43]) the high test set by the Court of Appeal in John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at 112 and by the High Court in Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 at 418. In short, a plea should not be struck out unless it is perfe…
Li v The Herald & Weekly Times Pty Ltd
[2007] VSC 109 Para 39

…the date of publication of the defamatory matter will be admissible: Maisel v Financial Times Ltd [1915] 3 KB 336; Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 at [227]. Admissibility of post‑publication material as evidence of the truth of the defamatory publication at the time of publication is conceptuall…
John Fairfax Publications Pty Ltd v O'Shane
[2005] NSWCA 164

…aintiff’s own imputations and by the defendants’ contextual imputations’ ( Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, p 41E). The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations…
Burk v The Commonwealth (No 2)
[2002] VSC 464 Para 69

…The best-known example of conditional leave is the HMAS Voyager case. In Burk v The Commonwealth (No 2) [2002] VSC 464, conditional leave to amend a defence, to plead that the plaintiff's claim for alleged injuries suffered as a result of the collision of HMAS Melbourne with HMAS Voyager on 10 February 1964 was n…
Jackson v ACP Publishing Pty Ltd
[2002] WASC 5 Para 29

…ustification to be in admissible form, or to be restricted to references to documents the contents of which are admissible at trial: Clark v Richards [2002] WASC 5 at [9]; Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [147] and [177] – [178].…
Chakravarti v Advertiser Newspapers Ltd
[1998] HCA 37

…lar imputations. ( Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, p 771, Chakravati v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 pp 24, 60, 139.) Where the plaintiff’s imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whet…
Emanuele v Australian Securities Commission
[1997] HCA 20 Para 65

…Mr Rasmussen refers to Emanuele v ASC (1997) 188 CLR 114 at 142, where the ASC failed to seek leave before requesting orders to wind up a group of companies be made. The Full Federal Court granted leave nunc pro tunc to do so. In the High Court, Kirby J described this step as a court of superior record exercising a s…
Howden v Truth & Sportsman Ltd
[1937] HCA 74 Para 16

…urt of Appeal in John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at 112 and by the High Court in Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 at 418. In short, a plea should not be struck out unless it is perfectly clear that it cannot succeed. In determining whether this test can be satisfie…
[1915] 3 KB 336
[1915] 3 KB 336 Para 39

…a reasonable period not only before but also after the date of publication of the defamatory matter will be admissible: Maisel v Financial Times Ltd [1915] 3 KB 336; Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 at [227]. Admissibility of post‑publication material as evidence of the truth of the defamatory pu…
Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd
[2020] FCAFC 81 Para 1

…3 CLR 551 at [49] is a matter going to discretion rather than to power: Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81 at [67] (Bromberg J; but note also the observations of Flick J at [16]).…

Legislation cited in this decision · 9

Defamation Act 2005 (TAS)
25, 26, 28, 29, 31, 32 7 mentions (from Para 2)
Limitations Act 1985 (ACT)
11(1), 36 3 mentions (from Para 69)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 4)
Competition and Consumer Act 2010 (Cth)
18(1) 2 mentions (from Para 1)
Evidence Act 1995 (Cth)
91 2 mentions (from Para 20)
Broadcasting Services Act 1992 (Cth)
1 mention (from Para 2)
Defamation Act 1974 (NSW)
1 mention
District Court Act 1973 (NSW)
51) 1 mention (from Para 4)
Royal Commissions Act 1902 (Cth)
6DD 1 mention

Medium Neutral Citation:	Burrows v Houda (No. 2) [2021] NSWDC 127
Hearing dates:	25 March 2021
Date of orders:	25 March 2021
Decision date:	16 April 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders (1) The Plaintiff’s application to strike out paragraphs 13(a)(i) - (iii) and 13 (b)(i) - (iii) and particulars [1 ] – [102] of the defence of justification and contextual truth, as well as the defence of justification, is dismissed. (2) Pursuant to UCPR rule 28.2, contextual imputations (i) and (iii) are reasonably capable of being conveyed; the plaintiff’s challenges to their form are dismissed. (3) Contextual imputation (ii) is struck out as not differing in substance from the plaintiff’s imputations 8(b) & 14(b). (4) Leave to the plaintiff to amend the further Amended Statement of Claim to appropriate contextual imputation (i) and (iii) is granted, but that leave to amend shall be revoked nunc pro tunc in respect of any imputation proved by the defendants to be substantially true, such that, at trial, the defendants may rely upon any such imputation for the purposes of the defence under s 26 of Defamation Act 2005 (NSW); such amended pleading to be filed in seven days. (5) Leave to the defendant to file an amended defence 21 days after service of the Further Amended State of Claim. (6) The plaintiff is to provide submissions as to court’s asserted lack of power to make nunc pro tunc orders by 5pm Friday 26 March 2021. (7) The defendant is to reply by Tuesday 30 March 2021. (8) The defendant to answer the plaintiff’s email dated 2 March 2021 in seven days; the plaintiff is to reply 14 days thereafter. (9) Plaintiff to pay defendant’s costs of the application. (10) Matter stood over to the Defamation List for further directions Thursday 29 April 2021 at 9am.
Catchwords:	TORT – defamation – application to strike out defences of justification and contextual truth on the basis of wholly inadequate particularisation – challenges to the form and capacity of the contextual imputations – application to “plead back” the contextual imputations – whether the court has power to grant leave to plead back but as a conditional nunc pro tunc order
Legislation Cited:	Broadcasting Services Act 1992 (Cth) cl 91 Civil Procedure Act 2005 (NSW) ss 56 - 64 Competition and Consumer Act 2010 (Cth) ss 18(1), s19 Defamation Act 2005 (NSW) ss 25, 26, 28, 29, 31 and 32 Evidence Act 1995 (NSW) s 91 Limitations Act 1985 (ACT) ss 11(1) and 36 Royal Commissions Act 1902 (Cth) s 6DD
Cases Cited:	Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Allen v John Fairfax and Sons Ltd ((Unreported, NSWSC, 2 December 1988) Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81 Burk v The Commonwealth (No 2) [2002] VSC 464 Burrows v Houda [2020] NSWDC 485 Channel Seven Sydney…