Petty v Zhao (No. 2)

[2015] NSWDC 18

District Court

New South Wales

Medium Neutral Citation:	Petty v Zhao (No. 2) [2015] NSWDC 18
Hearing dates:	25 February 2015
Decision date:	25 February 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1)Grant leave to the plaintiff to plead back the defendant’s imputations in accordance with the Amended Statement of Claim filed in court today. (2)Costs are to be the defendant’s costs in the cause. (3)Waive any requirement for the defendant to file a Further Amended Defence, on the understanding that the particulars of contextual justification will become particulars for the purpose of the s 25 defence. (4)Reserve the defendant’s right to amend in the event that the proposed s 26 amendments currently under consideration may impact upon the pleading, including any issue of retrospectivity. (5)Any answers by the defendant to the plaintiff’s request for particulars of 18 November 2014 to be provided in 21 days. (6)Plaintiff’s Reply by 21 days. (7)Matter listed in the Defamation List on Thursday 26 March 2015 at 2:00pm before Gibson DCJ.
Category:	Procedural and other rulings
Parties:	Geoffrey Roy Petty (Plaintiff) Yocy Zhao (Defendant)
Representation:	Counsel: Ms S T Chrysanthou (Plaintiff) Mr A Nelson (Defendant) Solicitors: Burston Cole & Associates (Plaintiff) Slade Waterhouse Lawyers (Defendant)
File Number(s):	2014/148290

Judgment

1. These are my reasons for permitting the plaintiff to adopt the contextual imputations pleaded by the defendant in the Further Amended Defence filed on 4 November 2014 at paragraph 9.

2. The defendant’s contextual imputations are pleaded as follows (paragraph 9 of the Further Amended Defence, amended on 4 November 2014):

i.   That the plaintiff is a selfish man;

ii.   That the plaintiff is a careless man;

iii.   That the plaintiff is cheap;

iv.   That the plaintiff is extremely rude;

v.   That the plaintiff is extremely disrespectful;

vi.   That the plaintiff is ungrateful;

vii.   That the plaintiff is infuriating;

viii.   That the plaintiff is extremely unpleasant;

ix.   By way of false innuendo, that the plaintiff is a bad neighbour.

3. This is one of a series of applications (see also Mallegowda v Sood (No. 3) [2015] NSWDC 14) brought following the handing down of Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604. In Hall, McCallum J refused to follow and Waterhouse v The Age Co Ltd [2012] NSWSC 9 and Ahmed v Nationwide News Pty Ltd (2010) 11 DCLR (NSW) 396, and permitted the plaintiff to adopt the contextual imputations pleaded by the defendant. The practice of permitting a plaintiff to “adopt” or “plead back” the defendant’s contextual imputations is one of long standing: Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [10]; Creighton v Nationwide News Pty Ltd (No 2) (2010) 11 DCLR (NSW) 271. This was still the case after Simpson J, in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852, held that, on a proper construction of s 26 Defamation Act 2005 (NSW), a defendant could not “plead back” the plaintiff’s imputations. In practical terms, this took away from the defendant the possibility of a…