Enders v Erbas and Associates Pty Ltd - [2012] NSWDC 129

District Court

New South Wales

Medium Neutral Citation: Enders v Erbas & Associates Pty Ltd [2012] NSWDC 129
Hearing dates: 24 August 2012
Decision date: 24 August 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Grant leave to the defendants to file the Further Amended Defence to the Second Further Amended Statement of Claim on the following provisos: (a) The defendants are to discover by Thursday 30 August 2012 at 5:00pm the documents identified in category 11 of the Short Minutes of Order dated 24 February 2012, namely income tax returns, balance sheets and profit and loss accounts of the first defendant from 1 June 2008 to date. (b) The defendants are also to discover by that date documents setting out the work being performed by the staff of the first defendant and its due dates at the relevant times (page 2 of the letter of the solicitors for the defendants dated 10 August 2012), as well as occupational health and safety work practices records and related documents. (c) The plaintiff's entitlement to bring an application to strike out the s 21 Civil Procedure Act 2005 (NSW) set-off claim is preserved.
(2) Pursuant to orders 1(a) and (b), the defendants are to provide copies of all discovered documents to the chambers of Ms L Evans by the due date and time.
(3) Waive the requirement for the defendants to provide a verified supplementary list of documents on condition that an index of these documents is provided.
(4) Any further particulars of malice must be provided by 5:00pm Thursday 30 August 2012 and any application to strike out those particulars may be brought on 31 August 2012 or such other times as are convenient to the parties.
(5) Matter stood over for directions to Friday 31 August 2012 at 10:15am before Gibson DCJ.
(6) Paragraph 2(ii)(f) of the Reply is struck out.
(7) Defendants' application to strike out paragraphs 2(ii)(c), (d) and (g) is dismissed.
(8) Defendant to pay the plaintiff's costs of the notice of motion (but this does not include the costs of the mediation).
(9) The notice of motion is otherwise dismissed.

Catchwords: TORT - defamation - application to amend particulars of defence of qualified privilege after trial date is allocated - whether amendment should be permitted - application to strike out particulars of Reply - "wrongful failure to apologise" not a proper particular
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 21 and 64
Defamation Act 2005 (NSW), s 30
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: Ahmed v John Fairfax Pty Ltd [2006] NSWCA 6
AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Bristow v Adams [2012] NSWCA 166
Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370
Egger v Viscount Chelmsford [1965] 1 QB 248
Guise v Kouvelis (1946) 46 SR (NSW) 419
Harrigan v Jones [2000] NSWSC 814
Hay v Australasian Institute of Marine Engineers (1906) 3 CLR…

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.

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Details

Case: [2012] NSWDC 129
Decision Date: 24 August 2012

CaseChat Overview and Summary

The case of Enders v Erbas and Associates Pty Ltd involved the defendants applying to amend their defence after the trial date had been set. The plaintiff, Enders, brought a defamation action against Erbas and Associates, the defendants. The case was heard in the Supreme Court of New South Wales. The defendants sought to amend their defence to include an additional defence of qualified privilege, which they claimed applied to certain statements made by their employee. They also sought to strike out certain particulars in the plaintiff's Reply, which they argued were not proper.

The court had to decide whether the defendants should be allowed to amend their defence after the trial date had been set, and if so, on what conditions. The court also had to determine whether the particulars in the plaintiff's Reply, which the defendants sought to strike out, were proper. The court held that the defendants could be allowed to amend their defence, but only if certain conditions were met. These conditions included the discovery of certain documents and the preservation of the plaintiff's right to bring an application to strike out a set-off claim. The court also held that some of the particulars in the plaintiff's Reply were not proper and should be struck out.

The court granted leave to the defendants to file a Further Amended Defence, subject to certain conditions. The defendants were required to discover certain documents and provide copies of them to the court. The court also struck out certain particulars in the plaintiff's Reply and dismissed the defendants' application to strike out other particulars. The defendants were ordered to pay the plaintiff's costs of the notice of motion, but not the costs of mediation. The matter was stood over for further directions.

Orders

Orders of the court

(1) Grant leave to the defendants to file the Further Amended Defence to the Second Further Amended Statement of Claim on the following provisos: (a) The defendants are to discover by Thursday 30 August 2012 at 5:00pm the documents identified in category 11 of the Short Minutes of Order dated 24 February 2012, namely income tax returns, balance sheets and profit and loss accounts of the first defendant from 1 June 2008 to date. (b) The defendants are also to discover by that date documents setting out the work being performed by the staff of the first defendant and its due dates at the relevant times (page 2 of the letter of the solicitors for the defendants dated 10 August 2012), as well as occupational health and safety work practices records and related documents. (c) The plaintiff's entitlement to bring an application to strike out the s 21 Civil Procedure Act 2005 (NSW) set-off claim is preserved.

(2) Pursuant to orders 1(a) and (b), the defendants are to provide copies of all discovered documents to the chambers of Ms L Evans by the due date and time.

(3) Waive the requirement for the defendants to provide a verified supplementary list of documents on condition that an index of these documents is provided.

(4) Any further particulars of malice must be provided by 5:00pm Thursday 30 August 2012 and any application to strike out those particulars may be brought on 31 August 2012 or such other times as are convenient to the parties.

(5) Matter stood over for directions to Friday 31 August 2012 at 10:15am before Gibson DCJ.

(6) Paragraph 2(ii)(f) of the Reply is struck out.

(7) Defendants' application to strike out paragraphs 2(ii)(c), (d) and (g) is dismissed.

(8) Defendant to pay the plaintiff's costs of the notice of motion (but this does not include the costs of the mediation).

(9) The notice of motion is otherwise dismissed.

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.

Medium Neutral Citation:	Enders v Erbas & Associates Pty Ltd [2012] NSWDC 129
Hearing dates:	24 August 2012
Decision date:	24 August 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Grant leave to the defendants to file the Further Amended Defence to the Second Further Amended Statement of Claim on the following provisos: (a) The defendants are to discover by Thursday 30 August 2012 at 5:00pm the documents identified in category 11 of the Short Minutes of Order dated 24 February 2012, namely income tax returns, balance sheets and profit and loss accounts of the first defendant from 1 June 2008 to date. (b) The defendants are also to discover by that date documents setting out the work being performed by the staff of the first defendant and its due dates at the relevant times (page 2 of the letter of the solicitors for the defendants dated 10 August 2012), as well as occupational health and safety work practices records and related documents. (c) The plaintiff's entitlement to bring an application to strike out the s 21 Civil Procedure Act 2005 (NSW) set-off claim is preserved. (2) Pursuant to orders 1(a) and (b), the defendants are to provide copies of all discovered documents to the chambers of Ms L Evans by the due date and time. (3) Waive the requirement for the defendants to provide a verified supplementary list of documents on condition that an index of these documents is provided. (4) Any further particulars of malice must be provided by 5:00pm Thursday 30 August 2012 and any application to strike out those particulars may be brought on 31 August 2012 or such other times as are convenient to the parties. (5) Matter stood over for directions to Friday 31 August 2012 at 10:15am before Gibson DCJ. (6) Paragraph 2(ii)(f) of the Reply is struck out. (7) Defendants' application to strike out paragraphs 2(ii)(c), (d) and (g) is dismissed. (8) Defendant to pay the plaintiff's costs of the notice of motion (but this does not include the costs of the mediation). (9) The notice of motion is otherwise dismissed.
Catchwords:	TORT - defamation - application to amend particulars of defence of qualified privilege after trial date is allocated - whether amendment should be permitted - application to strike out particulars of Reply - "wrongful failure to apologise" not a proper particular
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 21 and 64 Defamation Act 2005 (NSW), s 30 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited:	Ahmed v John Fairfax Pty Ltd [2006] NSWCA 6 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bristow v Adams [2012] NSWCA 166 Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370 Egger v Viscount Chelmsford [1965] 1 QB 248 Guise v Kouvelis (1946) 46 SR (NSW) 419 Harrigan v Jones [2000] NSWSC 814 Hay v Australasian Institute of Marine Engineers (1906) 3 CLR…