Hughes v ISPT Pty Ltd (No. 2)

CITATION:	Hughes v ISPT Pty Ltd (No. 2) [2010] NSWDC 282
HEARING DATE(S):	10 December 2010
JUDGMENT DATE:	10 December 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Application by the plaintiff to strike out the defence of contextual truth on the basis of Kermode is dismissed (Gibson DCJ to email judgment to the parties). (2) Costs reserved.
CATCHWORDS:	TORT – defamation – application to strike out defence of contextual truth – conflicting decisions as to the interpretation of s 26 Defamation Act 2005 (NSW) in two Supreme Court decisions – impact on a defendant of loss of this defence and consequential adjournment of the trial – application refused
LEGISLATION CITED:	Defamation Act 1974 (NSW), s 16 Defamation Act 2005 (NSW), s 26
CASES CITED:	Ahmed v Nationwide News Pty Ltd [2010] NSWDC 268 Corby v Channel Seven Sydney Pty Ltd (Supreme Court of NSW, 20 February 2008) Creighton v Nationwide News Pty Ltd (No. 2) [2010] NSWDC 192 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (Supreme Court of New South Wales, Hunt J, 14 July 1989)
PARTIES:	Plaintiff: Tanjhena Hughes First Defendant / Cross-Claimant: ISPT Pty Ltd (ACN 064 041 283) Second Defendant: Jones Lang LaSalle (NSW) Pty Ltd (ACN 002 851 925) Third Defendant: Australian Independent Retailers Pty Ltd (ACN 004 678 675) trading as Big W Cross-Defendant: Centauri Security (ABN 56 320 335 442) Second Cross-Defendant: Jones Lang LaSalle (VIC) Pty Ltd (ACN 004 582 423)
FILE NUMBER(S):	3945 of 2008
COUNSEL:	Plaintiff: Mr R Rasmussen First Defendant / Cross-Claimant: Mr A T S Dawson Second Defendant / Second Cross-Defendant: Mr R Potter First Cross-Defendant: Ms T Berberian
SOLICITORS:	Plaintiff: Etheringtons Solicitors First Defendant / Cross-Claimant: Colin Biggers and Paisley Lawyers Second Defendant / Second Cross-Defendant: Marque Lawyers First Cross-Defendant: Wotton + Kearney

Judgment

[1] These proceedings were listed for hearing by the Judicial Registrar on 5 August 2010, for 5 days, for the week commencing 14 March 2011. The Judicial Registrar also stood the matter over for directions to Friday 3 December 2010. This directions listing was referred to me. At the directions hearing on 3 December, the parties dealt expeditiously, and largely by agreement, with a list of outstanding matters.

[2] When the matter came before me on 10 December I heard, and dismissed, the plaintiff’s application to strike out the first defendant’s s 26 defence. These are my reasons for refusal to do so.

The pleadings

[3] The plaintiff in these proceedings has pleaded the following imputations:

(a) the plaintiff is a thief;

(b) the plaintiff is a shoplifter;

(c) the plaintiff had stolen from almost every shop in the Marketplace at Wagga Wagga;

(d) the plaintiff so conducted herself as to warrant being banned from the Marketplace Shopping Centre, Wagga Wagga and the Big W Store.

[4] The defendant has pleaded a defence of contextual justification to imputation 6(a)…