Creighton v Nationwide News Pty Ltd (No. 2)

In the case of Creighton v Nationwide News Pty Ltd (No. 2), the plaintiffs sought to amend their statement of claim to plead back three contextual imputations made by the defendants. The defendants opposed this amendment, arguing that it would constitute an abuse of process and was precluded by the Civil Procedure Act 2005 (NSW). Additionally, the plaintiffs applied to join two additional defendants after the limitation period had expired. The court was required to decide whether the plaintiffs could amend their statement of claim to include the contextual imputations and whether the plaintiffs could join the additional defendants.

The court considered the principles of comity and statutory interpretation in relation to the plaintiffs' application to plead back the contextual imputations. The court found that the judgment of Simpson J in Kermode v John Fairfax Media Publications Pty Ltd [2010] NSWSC 852, which held that a defendant cannot rely on the truth of one or more of a plaintiff's imputations in the defence of contextual truth, was not clearly or plainly wrong. The court also noted that Simpson J's judgment was inconsistent with the decision of Nicholas J in Corby v Channel Seven Sydney Pty Ltd (unreported, 20 February 2008). The court concluded that the plaintiffs' application for leave to amend should be granted, subject to leave being granted to both parties to bring any application to adjourn the proceedings pending legislative consideration of the issues raised by Simpson J in Kermode. The court also found that the plaintiffs' application to join the additional defendants was statute-barred and would fail on considerations of case management.

The court made several orders in relation to the plaintiffs' application to amend the statement of claim and the application to join additional defendants. The court granted the plaintiffs' application to amend the statement of claim to plead back the contextual imputations, subject to leave being granted to both parties to bring any application to adjourn the proceedings pending legislative consideration of the issues raised by Simpson J in Kermode. The court also ordered that the plaintiffs' Third Further Amended Statement of Claim be filed within 7 days and that the defence be filed 14 days thereafter. The court further ordered that the parties have liberty to apply generally to the trial judge or the Defamation List Judge. The court reserved costs.