PK v BV

[2008] NSWDC 292

CITATION:	PK v BV [2008] NSWDC 292
HEARING DATE(S):	8 December 2008
EX TEMPORE JUDGMENT DATE:	8 December 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Defendant's defence is struck out and dismissed. (2) The defendant is to pay the plaintiffs’ costs. (3) Until further order, an order that the names of the parties and any identifying factors not be published and that any publication in this court use a pseudonym PK for the first plaintiff, AK for the second plaintiff and BV for the defendant, and that the proceedings hereafter be known as PK v BV.
CATCHWORDS:	DEFAMATION - defences - application to strike out defences of truth and contextual truth - inadequate particulars - offer to make amends - failure to comply with s 15 or to make a genuine apology - defences struck out
LEGISLATION CITED:	Defamation Act 1974 (NSW), s 16 Defamation Act 2005 (NSW), ss 14, 15, 25, 26 and 33 Uniform Civil Procedure Rules 2005 (NSW), Part 36 r 16
CASES CITED:	Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80 Herald & Weekly Times Ltd & Bolt v Popovic [2003] VSCA 161 Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 Howden v Truth and Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 Searle v Mirror Newspapers Ltd [1974] 1 NSWLR 180 (CA) Trantum v McDowell [2007] NSWCA 138 Whelan v John Fairfax [2002] NSWCA 1028; (2002) 56 NSWLR 89
PARTIES:	First Plaintiff: PK Second Plaintiff: AK Defendant: BV
FILE NUMBER(S):	287 of 2008
COUNSEL:	Plaintiffs: Mr C J Dibb Defendant: No appearance
SOLICITORS:	Plaintiffs: Darryl Barlow & Co Defendant: No appearance

Introduction

1. The plaintiffs, by way of statement of claim filed on 1 February 2008, bring proceedings for damages for defamation arising from two slanders published in Sydney, New South Wales. The defendant has pleaded defences of truth, contextual truth, triviality and unlikelihood of harm.

2. The proceedings are listed before the court today for a 4-day hearing. The defendant's solicitors filed a Notice of Ceasing to Act on 10 November 2008. The defendant's name has been called three times outside the court, twice, at 10:10am and most recently at 10:35am, and there has been no appearance on his behalf. The plaintiffs now bring an application to strike out the defence, not only by reason of the non-attendance of the defendant, but also on the basis that the defences, as pleaded, are hopeless.

3. I shall first set out the publications.

First publication

4. On or about 12 February 2007 the defendant, while visiting a private home, had a conversation with a Ms BW to the following effect:

Defendant: "Why are you still friends with those two?"
BW: "P and A?"
Defendant: "Yes, of course. They have stolen money from me. They are not trustworthy. They are both snakes. P is a con man. They are not really…