Edwards v Nine Network Australia Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332

File number: NSD 129 of 2022
Judgment of: WIGNEY J
Date of judgment: 8 November 2022
Catchwords: PRACTICE AND PROCEDURE – application by respondent to amend defence – consideration of applicable principles on grant of leave to amend – proposed amendments raise new justification defence, new contextual imputation and new or amended particulars – application by respondent to cross-examine applicant on discovery affidavit – potential prejudice to applicant if proposed amendments allowed – considerations of imminent trial date and delay – leave to make certain amendments granted – application to cross-examine on discovery affidavit dismissed
Legislation: Defamation Act 2005 (NSW) ss 25, 26
Cases cited:

Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; [2010] SASCFC 59

Edwards v Nine Network Australia Pty Ltd [2022] FCA 509

Guy Carpenter & Company Pty Ltd v Grove (No 2) [2011] FCA 1190

Procter v Kalivis (2009) 263 ALR 461; [2009] FCA 1518

Rush v Nationwide News Proprietary Limited (No 2) [2018] FCA 550

Rush v Nationwide News Pty Ltd (2018) 359 ALR 473; [2018] FCA 357

Rush v Nationwide News Pty Ltd (No 6) [2018] FCA 1851

Spyer v Cuddles ‘N’ Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563

Voxson Pty Ltd v Telstra Corporation Ltd (No 10) (2018) 134 IPR 99; [2018] FCA 376

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 64
Date of hearing: 7 November 2022
Counsel for the Applicant: Ms S Chrysanthou SC with Mr N Olson
Solicitor for the Applicant: Company Giles
Counsel for the Respondents: Mr D R Sibtain SC with Ms C Roberts
Solicitor for the Respondents: Bird & Bird

ORDERS

NSD 129 of 2022
BETWEEN:

GINA EDWARDS

Applicant
AND:

NINE NETWORK AUSTRALIA PTY LIMITED

First Respondent

TCN CHANNEL NINE PTY LIMITED

Second Respondent

STEVE MARSHAL

Third Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

8 NOVEMBER 2022

THE COURT ORDERS THAT:

1.The respondents be granted leave to file an amended defence in accordance with these reasons for judgment.

2.On or before 5.00pm on 10 November 2022, the respondents provide the applicant with a draft amended defence in accordance with order 1.

3.The parties confer with a view to reaching agreement about whether the draft defence is in accordance with the judgment, and: 

(a)if agreement is reached, the amended defence be filed on or before 15 November 2022; or

(b)if agreement is not reached, the Court be notified on or before 1.00pm on 15 November 2022.

4.On or before 5 December 2022, the applicant file and serve any additional or supplementary outlines of evidence upon which it relies in respect of the principal proceeding.

5.The respondents’ amended interlocutory application filed 1 November 2022 be otherwise dismissed.

6.The respondents pay the applicant’s costs of, and associated with, the interlocutory application.

7.The matter be listed for case management hearing at 2.15pm on 15 November 2022.

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Details
Case
[2022] FCA 1332
Decision Date

CaseChat Overview and Summary

The respondent, Nine Network Australia Pty Ltd, sought leave to amend its defence in a defamation case brought by the applicant, Edwards. The dispute centred around whether the proposed amendments introduced new defences, contextual imputations, and particulars that were permissible under the court's rules. The case was heard in the Federal Court of Australia. The court was required to decide whether the principles governing leave to amend a pleading were satisfied in this instance and whether the proposed amendments introduced new justifications, contextual imputations, and particulars that were permissible. Additionally, the court had to consider the potential prejudice to the applicant if the amendments were allowed and whether the imminent trial date and the resulting delay justified denying leave to amend.

The court held that the respondent's application to amend its defence was permissible. The court found that the principles governing leave to amend pleadings were satisfied and that the proposed amendments introduced a new justification defence, a new contextual imputation, and new or amended particulars. However, the court also found that allowing the amendments would cause potential prejudice to the applicant. Despite this, the court considered the imminent trial date and the delay caused by the application, and ultimately decided that the respondent should be granted leave to amend its defence. The court dismissed the respondent's application to cross-examine the applicant on the discovery affidavit, finding that it would cause further delay and prejudice to the applicant.

The court ordered that the respondent be granted leave to file an amended defence in accordance with the reasons for judgment. The respondent was required to provide the applicant with a draft amended defence by a specified date and the parties were directed to confer with a view to reaching agreement about whether the draft defence was in accordance with the judgment. If the parties reached an agreement, the amended defence was to be filed by a specified date, and if they did not reach an agreement, the Court was to be notified by a specified date. The court also ordered that the applicant file and serve any additional or supplementary outlines of evidence upon which it relied in respect of the principal proceeding by a specified date. The respondent's amended interlocutory application was dismissed, and the respondent was ordered to pay the applicant's costs of, and associated with, the interlocutory application. The matter was listed for a case management hearing at a specified time.

Orders

Orders of the court

1. The respondents be granted leave to file an amended defence in accordance with these reasons for judgment.

2. On or before 5.00pm on 10 November 2022, the respondents provide the applicant with a draft amended defence in accordance with order 1.

3. The parties confer with a view to reaching agreement about whether the draft defence is in accordance with the judgment, and:

(a) if agreement is reached, the amended defence be filed on or before 15 November 2022; or

(b) if agreement is not reached, the Court be notified on or before 1.00pm on 15 November 2022.

4. On or before 5 December 2022, the applicant file and serve any additional or supplementary outlines of evidence upon which it relies in respect of the principal proceeding.

5. The respondents’ amended interlocutory application filed 1 November 2022 be otherwise dismissed.

6. The respondents pay the applicant’s costs of, and associated with, the interlocutory application.

7. The matter be listed for case management hearing at 2.15pm on 15 November 2022.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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