Fairfax Media Publications Pty Ltd v Cowper

Fairfax Media Publications Pty Ltd and the Australian Broadcasting Corporation (the appellants) appealed to the Court of Appeal of New South Wales against orders made by Rothman J. The proceedings concerned a defamation claim brought by the respondent, Mr Cowper, who alleged he had been dismissed from his employment due to forging documents. The appellants sought to amend their defences and to vacate the trial date.

The Court of Appeal was required to determine whether the primary judge erred in refusing the appellants leave to file further amended defences and in refusing to vacate the trial. The central legal issues revolved around the adequacy of the proposed amendments to the defences, particularly in light of documents produced on subpoena that appeared capable of supporting a defence of justification, and the prejudice to the parties, especially the plaintiff, arising from any vacation of the trial.

The Court found that the primary judge had erred in refusing leave to amend the defences. It reasoned that the deficiencies in the plaintiff's discovery, coupled with the documents capable of supporting a justification defence, meant that the proposed amendments were necessary to properly ventilate the issues. The Court also determined that any prejudice to the plaintiff arose from the vacation of the trial rather than from the amendment of the defences. Consequently, the appeal was allowed in part, with leave granted to the appellants to amend their defences as proposed. The application to vacate the trial was refused, and the plaintiff's application to split the trial was reserved for the trial judge.