McBride v John Fairfax Group P/L

[2007] NSWSC 662

CITATION:	McBride v John Fairfax Group Pty Ltd [2007] NSWSC 662
HEARING DATE(S):	11 May 2007
JUDGMENT DATE :	27 June 2007
JUDGMENT OF:	Price J at 1
DECISION:	1. Grant leave to the defendant to file an amended defence in the form attached to the letter dated 17 April 2007 from Mallesons Stephen Jaques to Slater & Gordon and also as may be amended by incorporating in the defence the particulars of the defendant's contextual imputations. 2. The amended defence is to be filed by 4pm on 4 July 2007.
CATCHWORDS:	Civil procedure - application to amend defence
LEGISLATION CITED:	Civil Procedure Act 2005 s 56, s 57, s 58
CASES CITED:	Waterhouse v Broadcasting Station 2GB Pty Limited (NSWSC unreported 20 October 1986, Hunt J)
PARTIES:	William Griffith McBride John Fairfax Group Pty Limited
FILE NUMBER(S):	SC 13029 of 1989
COUNSEL:	Mr Hale SC - Plaintiff Mr T D Blackburn SC - Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

27 June 2007

13029 of 1989 William Griffith McBride v
John Fairfax Group Pty Ltd

JUDGMENT

1 HIS HONOUR: By a notice of motion filed on 3 May 2007 the defendant seeks leave to file an amended defence. The proposals to amend raise a defence of substantial truth to the plaintiff’s imputation as pleaded in paragraph 4 of the Amended Statement of Claim and provide additional particulars of contextual truth in respect of the contextual imputations pleaded at paragraphs 9(b), (c) and (d) of the defence. The amendments to the particulars of the defendants contextual imputations are now marked MFI A.

2 The plaintiff opposes the proposed amendments upon the grounds of prejudice, the absence of adequate explanation for the late amendments, the generality of the particulars and the failure to accompany the application with an outline of evidence.

3 The subject matter of the proposed amendment of substantial truth, the plaintiff argues, raises the involvement of Dr Grant in the circumstances leading to the plaintiff’s doctoral thesis in May 1960. Furthermore, the amendments to the particulars of contextual truth return to events more than 25 years ago.

4 These contentions had considerable force when the present proceedings were listed for hearing commencing on 28 May 2007. The hearing, however, was vacated for the reasons given in my judgment on 15 May 2007 and the proceedings are now listed for hearing commencing on 12 November 2007. The prejudice which may fairly have been said to arise to the plaintiff by permitting the proposed amendments has been removed. To my mind, the plaintiff has sufficient time to attend to those matters which are said to arise from the application being granted.

5 In deciding whether to make an order for the amendment of a document, the Court must seek to act in accordance with the dictates of justice: section 58 of the Civil Procedure Act 2005. For the purpose of determining what the dictates of justice are in a particular case regard must be had to the provisions of sections 56 and 57 and to those matters in sub-paragraph (b) to section 58 to the extent to which the Court considers them to be relevant.

6 The explanation for the delay in seeking to raise the substantial truth defence is apparently one of senior counsel’s recent opinion, whereas the additional particulars of contextual truth arise from the access orders made on 23 April 2007. Whilst to some extent the complexity of the case is increased by the proposed amendments, there is no prejudice to the plaintiff. It appears to me that in the absence of prejudice, the defendant is entitled to have a determination by the jury on any fairly arguable defence. The arguments concerning the defence of contextual truth will be dealt with in the judgment on the plaintiff’s motion. Although it is unusual to grant an amendment and then consider whether the amended defence of contextual truth should be struck out, the strike out application, in my view, cannot be properly considered absent the proposed amendments

7 There are cases where the lateness of the application to amend has required not only the provision of full particulars but also a broad outline of the evidence by which the plea of justification is to be made out: see Waterhouse v Broadcasting Station 2GB Pty Limited (NSWSC unreported 20 October 1986, Hunt J). Due to the vacation of the hearing date, this is not such a case.

8 Particulars of the defence of substantial truth are pleaded at P.1 A – P.1 C of the amended defence. Should the plaintiff consider that further particulars are required, a request that further particulars be supplied may be made of the defendant.

9 Accordingly I make the following orders:

(i) I grant leave to the defendant to file an amended defence in the form attached to the letter dated 17 April 2007 from Mallesons Stephen Jaques to Slater & Gordon and also as may be amended by incorporating in the defence the particulars of the defendant’s contextual imputations.

(ii) The amended defence is to be filed by 4pm on 4 July 2007.

10 I reserve the question of costs on this motion until the delivery of the judgment on the motion to strike out the defence of contextual truth.

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