Griffin v Kotsifas - [2011] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
GRIFFIN v KOTSIFAS & ANOR
[2011] SASC 161
Reasons of Judge Lunn a Master of the Supreme Court
29 September 2011
PROCEDURE
Pleading defence - 6R 100 - held permissible under R 100 to plead the material facts for several special defences together and the basis for the defences separately and unrelated to the pleaded facts.

PROCEDURE
Application to strike out under 6R 104 the pleading of facts for special defence - held sub-r 104(b) not usually satisfied where those facts were admissible for other pleaded defences.

DEFAMATION
Defence of fair report under s 27 of the Defamation Act 2005 - what are "proceedings" - held not to include communications between persons involved in the dispute and where not part of the activities of the association in reaching its decision or adjudication.

GRIFFIN v KOTSIFAS & ANOR
[2011] SASC 161
JUDGE LUNN:
Reasons on plaintiff’s application to strike out the Defence
Background

In this action the plaintiff claims damages for defamation. The Statement of Claim pleads 11 defamatory imputations from the publications complained of. The Defence denies those imputations, but pleads in its paragraph 4 in the alternative, if the imputations are made out, defences of justification, qualified privilege, fair comment and fair reporting of a proceeding of public concern.[1] These four defences are stated in paragraph 4.48. Sub-paragraphs 4.1 to 4.47 plead various facts and matters on which the four defences are based. Counsel for the defendants contended that all of 4.1 – 4.47 were relevant pleadings for each of the four defences in 4.48, but counsel for the plaintiff disputed this. However, counsel for the plaintiff did not suggest that any of 4.1 – 4.47 were not a relevant and proper pleading for at least one of the four defences.[2] Paragraph 5 of the Defence was a plea of contextual truth pursuant to s 24 of the Defamation Act 2005 (“the Act”) and paragraph 8 was a plea of a defence of triviality pursuant to s 31 of that Act.
[1] Those defences, apart from the last, are raised both at common law and pursuant to various sections of the Defamation Act 2005, but unless otherwise stated, it is not necessary here to differentiate between the common law and the statutory defences.
[2] In view of my striking out some of those defences, the striking out of some of the facts may need to be revisited, unless similar defences are re-introduced by amendment.
By an application of 6 June 2011, FDN4, the plaintiff sought to have the whole or parts of the Defence struck out under 6R 104 and, in the alternative, further particulars of the Defence ordered under 6R 102.
In the course of his submissions, counsel for the defendants sought to submit that the plaintiff had unreasonably pursued FDN4 before attempting to exhaust the available alternative dispute resolution processes. However, at a directions hearing on 6 July 2011 the solicitor then appearing for the defendants had expressly waived any point being taken by the defendants under 6R 129. If the defendants had insisted upon the enforcement of R129, it is likely that a settlement conference, and possibly a mediation, would have been ordered before FDN4 was listed for argument.
The plaintiff’s application is under 6R 104 which provides:
104—Court's power to strike out pleading
The Court may strike out a pleading in whole or part if the pleading—
(a) does not comply with these rules; and
(b) is an abuse of the process of the Court or prejudices the proper conduct of the action.
Example—
If a statement of claim discloses no reasonable cause of action, or a defence discloses no reasonable ground of defence, the Court may strike it out as an abuse of the process of the Court.
In order to succeed, the plaintiff must establish both (a) and (b) for the pleading which is to be struck out.[3] It is not sufficient if the plaintiff establishes embarrassment or prejudice, but cannot establish (a).[4]
[3] Holcon Australia Pty Ltd & Ors v Corporation of the Town of Walkerville & Anor (2007) 252 LSJS 236 at [4].
[4] IPA Holdings Pty Ltd v Onetemp Pty Ltd & Anor Lunn M, 2 June 2009, [2009] SASC 153 at [10].
Whether each ground of defence is to be pleaded separately
The plaintiffs’ primary complaint was that the various facts and matters pleaded in sub-paragraphs 4.1 – 4.47 of the Defence were not specifically related to each of the four defences pleaded in 4.48, or to each of the 11 imputations pleaded in the Statement of Claim. The plaintiff contended that the applicable Rules required that each of the facts and matters pleaded in 4.1 – 4.17 should be individually and specifically related to each of the four defences raised in 4.4 and to each of the imputations. In other words, the plaintiff claimed, at least in the circumstances of this action, it was necessary that the defendants, albeit by using cross-referencing where appropriate, plead each of their four grounds of defence in 4.48 to each of the 11 imputations in such a way that in respect of each such defence for each imputation it could be readily seen from the face of the pleading how the defendants would make out that particular ground of defence for each imputation. The defendants disputed that this mode of pleading was required by the Rules and maintained that their Defence satisfied the relevant Rules.
This raises an important and novel point about the interpretation of the relevant pleading Rules. As far as I am aware, it has not previously been considered in relation to pleading under the 2006 Rules. It is to be resolved by construing the proper meaning of these Rules. Except as stated below, there is no utility in looking at the comparable position under other, and significantly different, pleading rules.
The relevant Rules for determining whether the plaintiff has satisfied 6R 104(a) in this matter are as follows:
98—General rules of pleading
…
(2)     A pleading—
(a)     must be as brief as the nature of the case allows; and
(b)     must state only material facts relied on and not the evidence or arguments by which the facts are to be proved; and
(c)     must not contain matter that is—
(i)    scandalous; or
(ii)     evasive or ambiguous; or
(iii)    frivolous or vexatious; or
(iv)    an abuse of the process of the Court in some other respect.
(d)     must plead such facts as give fair notice of the party’s case at trial.
…
99—Requirements for statement of claim
(1)     A statement of claim—
(a)     must state each cause of action; and
(b)     must state the basis of each cause of action (including reference to any statutory provision on which the plaintiff relies); and
(c)     must contain a short statement of the material facts on which each cause of action is based; and
…
(2)If the plaintiff relies on separate causes of action, the statement of material facts must differentiate between—
(a)     facts that are common to both or all causes of action; and
(b)     facts that are relevant only to a particular cause of action.
…
100—Requirements for defence
(1)     A defence—
(c)     must specifically raise any special defence on which the defendant relies; and
(d)     must state the basis of each special defence on which the defendant relies (including reference to any statutory provision on which the defendant relies); and
(e)     must contain a short statement of the material facts on which each special defence is based.
(3)A special defence is a defence other than a denial of facts alleged by the plaintiff, or a denial that facts alleged by the plaintiff give rise to a cause of action.
Examples—
1      An assertion that the plaintiff is estopped from maintaining the claim.
2      An assertion that the plaintiff's claim is statute barred.
…
103—Effect of pleadings
(1)     A party must not, without the Court's permission—
(a)     introduce at the trial of an action evidence of facts that should have been, but were not, alleged in the party's pleadings; or
(b)     raise at the trial of an action issues of which notice should have been, but were not, given in the party's pleadings.
(2)     However—
(a)     the Court's permission is not required to introduce evidence, or to raise issues, relevant to credit; and
(b)     the Court will not exercise its discretion to exclude relevant evidence, or to prevent relevant issues from being raised, unless satisfied that—
(i)the default was deliberate; or
(ii)the default was in the circumstances so prejudicial or embarrassing to another party that permission should be refused in the interests of the proper administration of justice.
(3)In deciding whether its permission is required under subrule (1) and, if so, how to exercise its discretion to grant or refuse that permission, the Court should—
(a)     avoid captious or unduly technical interpretation of pleadings; and
(b)     have regard to material that was available to the parties apart from the pleadings; and
(c)     seek to achieve substantial justice between the parties.
The crux of the point is whether 6R 100(1)(d) and (e) require the defendants to do more than merely state the basis of each special defence and separately plead a short statement of the material facts on which each such special defence is based. The defendants say that sub-paragraphs 4.1 – 4.47 satisfy sub-rule 100(1)(e) and that sub-paragraph 4.48 separately satisfies 6R 100(1)(d). The plaintiff contends that the requirements of sub-rules (d) and (e) are linked so that the statement of the material facts must be expressly related to the stated basis of each special defence for each imputation.[5]
[5] The defendants’ counsel submitted that all of sub-paragraphs 4.1 – 4.47 were proper pleas in support of each of the four defences in 4.48 in respect of all 11 imputations, but that was disputed. I need not resolve the point.
6R 98(2) also applies to the pleading of the defence. However, it is in general terms and does not differentiate between how different grounds of defence are to be pleaded under its sub-rr (2)(b) and (d). It is unclear whether 6R 103 is a relevant rule for the purpose of the application of 6R 104(a). The power of the trial Judge under 6R 103 should not be any less than the power of a Master in an interlocutory application under 6R 104. Rather, it is likely that the scope of 6R 103 is greater than that of 6R 104.[6] 6R 103(2)(b) and (3) appear inconsistent with RR 98 and 100 if the latter requires that defendants integrate their pleading of the material facts with their statement of the basis of a particular special defence.
[6] Counsel for the defendants cited my decisions in Morgan v Roberts 27 January 2006 [2006] SASC 15 and Coonawarra Premium Vineyards Ltd v Nugan Group Pty Ltd & Anor [2006] SASC 5 where I suggested issues about the adequacy of pleading were primarily best left to the trial Judge. The Full Court did not accept this in H Stanke & Sons Pty Ltd and Another v O’Meara (2007) 98 SASR 450 at [85].
Up until the introduction of R46A into the Supreme Court Rules 1987 on 3 June 2000, defendants were under no obligation to identify the basis of their defences, except possibly to identify statutory provisions on which they relied. It was for the Court prior to that time to grant any relief to which the parties were entitled in law based on the facts which they had pleaded.[7] Neither 87R 46A, nor the Supreme Court Civil Rules 2006 which superseded it, expressly require more than a statement of the basis of the defences relied upon. They do not expressly require a party to identify the line of legal argument which would cause a finding on the facts pleaded to result in a conclusion of law to make out the identified defence. 6R 98(2)(b) precludes the pleading of the arguments by which the facts are to be proved.
[7] Opperman v The State of Western Australia EM Heenan J, 4 February 2011 [2011] WASC 25.
The most telling factor in the defendants’ favour on this point is the contrast between 6RR 99 and 100. In 6R 99 relating to statements of claim, sub-rr (1)(a), (b) and (c) generally correspond to 6R 100(1)(c), (d) and (e) relating to defences. However, 6R 99(2), which requires a differentiation of pleaded facts between separate causes of action, has no equivalent in 6R 100 for defences. Its omission from 6R 100 strongly suggests that if defendants plead separate grounds of defence, they are not required to differentiate in their defences between the facts which are relevant to each ground of defence. However, the plaintiff’s submission would require an equivalent of 6R 99(2) to be implied into 6R 100, but there is no justification for this.
Accordingly, I hold the plaintiff has not shown that the defendants have not complied with the Rules in not relating each of the facts pleaded in 4.1 – 4.47 to each of the four defences in 4.48 for each of the 11 imputations. As sub-r 104(a) has not been satisfied, the whole of paragraph 4 of the Defence cannot be struck out on this ground, even if that form of pleading is an abuse of process of the Court or prejudices the proper conduct of the action. The plaintiff can only pursue any such prejudice at the trial under 6R 103.
I do not accept the plaintiff’s contention that paragraph 4 is in breach of 6R 98(2)(c)(ii) as being ambiguous. Ambiguity requires that the pleaded material in question must reasonably have at least two alternative meanings. No instance of this has been demonstrated. Whether a particular pleading is irrelevant to a specific ground of defence is not a defect of ambiguity.
I do not accept the plaintiff’s contention that the mode of pleading adopted in paragraph 4 of the defence is an abuse of process. It has not been shown to have other than a legitimate purpose. It is a mode of pleading permissible under the relevant Rules.
Justification
I now deal with the alternative applications of the plaintiff to strike out parts of the Defence relating to specific topics. The first is the plea of justification in 4.48.1. Insofar as the complaint is that the pleading needs to be broken down into the pleas of justification for each of the 11 imputations, or possibly to be grouped where they are sufficiently similar, my conclusion above about 6R 104(a) being not satisfied also applies for similar reasons. There is some authority that whether there is sufficient particularly for a particular plea that the Court can look to the whole of the pleading collectively, rather than take a narrow approach of merely looking at the particulars expressly given for that plea.[8]
[8] S, DJ v Channel Seven Adelaide Pty Ltd & Anor White J, 24 April 2008, [2008] SASC 108 at [42] – [43]; Gross v Weston and Another (2007) 69 NSWLR 279 at [29] – [30].
Furthermore, even if sub-r (a) of R 104 was satisfied for 4.48.1, I would not find its sub-r (b) to be satisfied. It was not disputed that the whole of 4.1 – 4.47 of the Defence was relevant to at least one of the four defences in 4.48. Thus the evidence on the sub-paragraphs 4.1 – 4.47 would be admitted at the trial, albeit subject to arguments on whether it is to be admitted only for limited purposes, but that is for the trial Judge. Because they are allegations of facts which will be in evidence at least for some purposes, the plaintiff is obliged to prepare himself to meet that evidence. Where the evidence will be before the Court in any event, there is usually little utility in excluding it at an interlocutory stage for one particular purpose.[9] Sub-paragraph 4.48.1 will not be struck out.
[9] Estate of the Late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1 at [58] – [62].
Qualified privilege
I do not accept the plaintiff’s attack on sub-paragraph 4.48.2 on the defence of qualified privilege. For the reasons given above, I consider that the defendants have sufficiently pleaded this defence and are not required to specifically relate the facts pleaded in 4.1 – 4.47 to the individual elements of qualified privilege. I do not accept that in relation to the equivalent statutory defence under s 28 of the Act, which requires, inter alia, the defendants to prove that their conduct in publishing the matter was reasonable in the circumstances, requires any further pleading. The Defence has been identified by the reference to s 28 of the Act. Whether the conduct was reasonable is primarily a conclusion of law and thus does not have to be pleaded as a material fact. The conduct upon which the defendants can rely to establish such reasonableness is that pleaded in 4.1 – 4.47.
Fair comment
On the defence of fair comment, in 4.48.3 the defendants’ plea is as follows:
4.48 in these premises, the Letter: …
4.48.3further and in the alternative, consists of matters of opinion, honestly held, based on proper material and on a matter of public interest, namely, the conduct and administration of the sport of Taekwondo in Australia, and is, therefore, fair comment and/or the defendants are entitled to the defence of honest opinion pursuant to s.29 of the Defamation Act 2005 (SA);
The plea is in respect of “the Letter”, meaning the letter of 17 September 2010 which is annexed to the Statement of Claim. A plea of fair comment can only relate to comment and not to assertions of fact.[10] The defendants need to identify by their pleading what are the comments which are the subject of this defence. It cannot be the whole contents of the Letter, which is what is pleaded. It needs to be confined to particular imputations pleaded by the plaintiff which are asserted by the defendants to be comment. What is comment is primarily an allegation of fact which needs to be pleaded and proved if this defence is to succeed. Thus, the defendants are in breach of 6R 100(1)(e) in not pleading all the necessary material facts for this defence, and so 6R 104(a) is made out in respect of 4.48.3. Similarly, by reference to the Example,[11] 6R 104(b) is made out because an incomplete plea of a ground of defence is also an abuse of process for the purposes of (b). I do not follow how the defendants have pleaded that the facts, on which the comment is based, are true.[12] Similarly, it is unclear whether the necessary facts have been sufficiently identified in the Letter.[13] Sub‑paragraph 4.48.3 will be struck out.
[10] Rocca v Manhire and Another (1992) 57 SASR 224 at 235.
[11] Which by s 19 of the Acts Interpretation Act 1915 is part of the Rule.
[12] A difficulty with the mode of pleading adopted by the defendants is that by not relating the individual facts pleaded in 4.1 – 4.47 to the elements of the defence of fair comment, it is not always easy to see how the necessary material facts have been pleaded.
[13] Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245 at [49].
Fair report
Sub-paragraph 4.48.4 pleads a defence of a fair report of a proceeding of public concern in the following terms:
4.48 in these premises, the Letter:
…
4.48.4further and in the alternative, was a fair report of a proceeding of a public concern, namely the attempts to resolve the AOC Dispute in the interests of the Australian Taekwondo community and the defendants are entitled to the defence provided pursuant to s.27 of the Defamation Act 2005 (SA).
The relevant parts of s 27 of the Act are:
(1)It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
…
(4)In this section—
…
Proceedings of public concern means—
…
(i)    proceedings of a sport or recreation association, or of a committee or governing body of the association, under its relevant objects, but only to the extent that the proceedings relate to a decision or adjudication made in Australia about—
(i)    a member or members of the association; or
(ii)a person subject by contract or otherwise by law to control by the association; or
relevant objects of a … sport or recreation association or trade association means—
…
(b)     in relation to a sport or recreation association—objects of the kind referred to in paragraph (a) of the definition of sport or recreation association in this subsection; or
…
sport or recreation association means a body, wherever formed—
(a)     the objects of which include the promotion of any game, sport, or pastime to the playing of which or exercise of which the public is admitted as spectators or otherwise and the promotion or protection of the interests of people connected with the game, sport, or pastime; and
(b)     authorised by its constitution—
(i)to exercise control over, or adjudicate on, matters connected with the game, sport, or pastime; and
(ii)to make findings or decisions having effect, by law or custom, in any part of Australia;

There is no reported judicial authority on their meaning. What constitutes “proceedings” for the purposes of s 27 is not defined by the Act. “Proceedings” is a protean expression which takes its meaning from its context.[14] Subs (4)(i) confines such proceedings to those relating to a decision or adjudication about members of an association. It does not extend to any dealings between persons involved in a dispute concerning a sporting association in their communications with each other about that dispute. It is confined to the activities of the association in reaching its decision or adjudication referred to in subs (4)(i).
[14] R v Seigneur (2009) 103 SASR 207; Maguire v Pankiewicz Gray J, 12 June 2009, [2009] SASC 169.
I accept the plaintiff’s submission that there is nothing pleaded in 4.1 – 4.47 to bring the Letter of 17 September 2010 within the ambit of s 27 of the Act for a proceeding of a “sport association”. The association here for the purposes of s 27 is the Australian Olympic Committee (“the AOC”). The Letter is not part of any decision or adjudication process by the AOC, but merely a communication from a disputant in the proceedings before the AOC. The sport association for the purposes of s 27 cannot be the second defendant, because the Letter does not deal with any decision of the second defendant about its members.
Accordingly, I am satisfied that it is not reasonably arguable that 4.48.4 is based on a pleading of the necessary material facts to make out a defence under s 27 of the Act. Rule 104(a) is satisfied in that 4.48.4 does not comply with R 100(1)(c) in not containing a statement of the necessary material facts on which a s 27 defence can be based. For similar reasons, 4.48.4 amounts to an abuse of process within R 104(b). Hence, there will be an order that 4.48.4 be struck out.
Contextual truth
Paragraph 5 of the Defence pleads a defence of contextual truth under s 24 of the Act in the following terms:
5.Further, or in the further alternative, if the Letter was defamatory of the plaintiff in the ways alleged (which is denied);
5.1    the Letter carried an additional imputation, namely, that the plaintiff was an unreasonable obstacle to the resolution of the AOC Dispute;
5.2    that additional imputation was substantially true; and
PARTICULARS
The defendants refer to and repeat paragraph 4 hereof.
5.3    the imputations alleged in paragraph 3 of the SOC if made (which is denied) do not further harm the reputation of the plaintiff because of the substantial truth of the additional contextual imputation;
and, in those premises, the defendants are entitled to the defence of contextual truth pursuant to s.24 of the Defamation Act 2005 (SA).
For the reasons already given, I do not accept that the defendants are in breach of the Rules for the purpose of 6R 104(a) by the globalised cross-reference in paragraph 5 to the facts pleaded in paragraph 4.
I do not accept the plaintiff’s submission that there can be no reasonably arguable defence of contextual truth because the imputation pleaded by the defendants does not differ in substance from the plaintiff’s imputations and because, if the defendants’ imputation was made out, it could not cause any further harm to the plaintiff’s reputation over and above that from the imputations pleaded by the plaintiff. There may well be considerable force in these submissions if the plaintiff succeeds at trial in establishing all, or at least most, of his 11 alleged imputations. However, that cannot be known by me at this interlocutory stage of the action. If the plaintiff only establishes some of his imputations, and if some of his imputations are defeated by the pleas of justification, the pleaded defence of contextual truth still needs to be dealt with by the trial Judge in relation to any remaining actionable imputation or imputations.[15] If only some of the less serious imputations are found to be actionable, it is reasonably possible that the defendants’ alleged imputation could co-exist with the plaintiff’s actionable imputations and, if it is shown by the defendants to be true, it could be a proper basis for a finding that the plaintiff’s actionable imputations did not further harm his reputation because of the substantial truth of the defendants’ imputation. Thus, there is a reasonable possibility that there is proper work for paragraph 5 to do at the trial of the action. It is a matter which is best left to the trial Judge.[16] In any event, the evidence and many of the arguments involved in the s 24 defence will be canvassed at the trial in relation to other issues. Accordingly, I decline to strike out paragraph 5 of the Defence.
[15] By “actionable” I mean an imputation which is held to arise from the publication and which is not justified or defeated by some other ground of defence.
[16] Sands v State of South Australia Peek J, 16 September 2011, [2011] SASC 146.
Further particulars
Paragraphs 6 – 8 of FDN4 seek an order pursuant to 6R 102 for the defendants to give further particulars of much of their defence. The particulars sought were requested in paragraphs 9 – 22 of a letter of 29 March 2011 from the plaintiff’s solicitor.[17]
[17] Some of the requests were for documents, and therefore are not properly the subject of an application for further particulars under 6R 102. As FDN4 did not seek orders for production of documents, I assume this is no longer an issue between the parties.
Under 6R 102 the plaintiff must establish that the orders sought are necessary to avoid substantial prejudice to him. No attempt was made to identify or prove actual prejudice. I am asked to infer substantial prejudice from the generality of the plaintiff’s pleading and the circumstances of the case.
Paragraphs 9 – 22 of the letter of 29 March read like a R 46.20 notice under the repealed 1987 Rules in that it asks to be told everything about everything. 6R 102(3), and its predecessor 87R 46A.09, were introduced to stop costs and delay being incurred by requests for particulars which would serve no useful purpose in the prosecution of the action.[18] The plaintiff has not shown in respect of any of the requests for particulars why it would be substantially prejudiced in its conduct of the action if it does not have such particulars.
[18] Jones v Nuske & Ors (2003) 227 LSJS 331.
As is shown by 6R 102(3)(a), an order for further particulars must be based on a breach of 6R 98(2)(d) that the party has not pleaded such facts as give fair notice of its case at trial. Sub-r 98 (2)(d) is a requirement over and above that of sub-r 98 (2)(b) that the material facts for the cause of action or the ground of defence are to be pleaded. Hence an order for particulars is not a substitute for a failure to plead the material facts which are essential to the ground of defence: that is to be pursued under 6R 104 and not under 6R 102. Much of the plaintiff’s complaint stems from his desire to obtain a further pleading of the grounds of defence themselves, which I have disallowed above.
Insofar as the defendants have pleaded the facts which give further notice of their case at trial in general terms, they will need to persuade the trial Judge under 6R 103 that they have pleaded with sufficient particularity, or otherwise given proper notice of the case which they intend to make out at trial. Insofar as it is alleged that the particulars given are too general, it needs to be remembered that for the purpose of the admission of evidence at trial, they operate both to create an inner limit as well as an outer limit on the detail of the evidence which should be admitted at the trial.[19]
[19] Norris v McNair (1992) 167 LSJS 389.
Triviality
In paragraph 8 of the Defence the defendants have pleaded a defence of triviality pursuant to s 31 of the Act that the circumstances of the publication of the Letter were such that the plaintiff was unlikely to have sustained any harm. The plaintiff seeks to strike out this paragraph under 6R 104. It is impossible to determine on an interlocutory application at this stage of the action whether there are reasonable grounds for such a defence or not. Part of the publication pleaded in paragraph 2.2 of the Statement of Claim is that between about 18 and 24 September 2010 the Letter was published on the second defendant’s blog website. There is no evidence about the extent of its publication through this website. This defence under s 31 does not seem to require any additional evidence beyond that which will be adduced at the trial on the plaintiff’s damages. Thus it is appropriately left to be dealt with by the trial Judge. The plaintiff has not satisfied either sub-rr (a) or (b) of 6R 104 in seeking to strike out paragraph 8.
The plaintiff also seeks particulars of paragraph 8. There was no suggestion that this s 31 defence would involve evidence other than that which was otherwise to be adduced by the parties on the other issues in the action. Again, no substantial prejudice has been established.
I have today made the following orders:
1Sub-paragraphs 4.48.3 and 4.48.4 of the Defence are struck out.
2The balance of FDN4 is dismissed.
3Liberty to the plaintiff, if so advised, to apply to strike out parts of 4.1 – 4.47 of the Defence insofar as they were only related to 4.48.3 and 4.48.4.
4Question of costs reserved.
5Fit for counsel.
6Liberty to the plaintiff to make any further application for striking out, and the defendants to make any application for permission to amend, returnable for the adjourned hearing, provided they are issued by 17 October 2011.
7Adjourned to a directions hearing on Thursday 20 October 2011 at 9.45am.