Rothe v Scott

[2015] NSWDC 105

District Court

New South Wales

Medium Neutral Citation:	Rothe v Scott [2015] NSWDC 105
Hearing dates:	4 June 2015
Date of orders:	04 June 2015
Decision date:	04 June 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Strike out the defence of justification in paragraph 6A. (2) Pursuant to s 26 Civil Procedure Act 2005 (NSW), direct the parties to attend for mediation before an assistant registrar of the District Court on Tuesday 16 June 2015. (3) Matter stood over for further directions in the Defamation List on Thursday 18 June 2015 at 9:00am.
Catchwords:	TORT – defamation – failure to provide further and better particulars for the defence of justification – particulars pleaded in the defence manifestly inadequate – defence of justification struck out
Legislation Cited:	Defamation Act 2005 (NSW), s 25
Cases Cited:	Fogarty v Nationwide News Pty Ltd [2013] WASC 477 Greenfield v Fairfax Media Publications Pty Ltd (No 2); Greenfield v Australian Broadcasting Corporation [2015] NSWSC 373 Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472 Saraceni v Mentha [2013] WASC 95
Category:	Procedural and other rulings
Parties:	Plaintiff: Kenneth Rothe Defendant: David Scott
Representation:	Counsel: Plaintiff: Mr C J Dibb Defendant: Mr M Glaser (solicitor) Solicitors: Plaintiff: Slater & Gordon Defendant: Glaser Lawyers
File Number(s):	2015/74837
Publication restriction:	None

Judgment

1. The plaintiff by statement of claim filed 11 March 2015 seeks damages for a publication on Facebook of the following statements by the defendant, which are reproduced in the form in which they appeared:

“1. David Scott

2. March 12. Edited

3. Pedophile warning:- Nambucca has been used as a relocation for these monsters

4. – blue dolphin – nirvana hotel and above the indian restaurant! One of them even

5. tried to change his name and get a job at the local public school? People what the

6. fark share this post please! Can’t believe this just another council decision without

7. consent! Bus stops are right out the front of these hotels for our children?”

2. The plaintiff pleads that the matter complained of gives raise to the following imputations:

1. The plaintiff is a paedophile;

2. The plaintiff so conducted his businesses at the Blue Dolphin Motel and the Nirvana Village Motel as to cause them to be a danger to children through the undisclosed presence of paedophiles; or alternatively,

3. The plaintiff so conducted his businesses at the Blue Dolphin Motel and the Nirvana Village Motel as to permit them to be a danger to children through the undisclosed presence of paedophiles.

3. The plaintiff brings an application to strike out the s 25 Defamation Act 2005 (NSW) defence of justification, which has been pleaded as follows:

“6A. In answer or alternative answer to the whole Statement of Claim the Defendant says the words of the matter complained of are true or substantially true.

Particulars of the truth

a. When people convicted of crimes are released from prison they are sometimes housed in Nambucca;

b. Some people released from prison were convicted of paedophillia and were provided temporary housing in Nambucca;

c. Some convicted paedophiles were temporarily housed in the blue dolphin, nirvana hotel and above the indian restaurant;

d. Paedophiles are monsters;

e. Children in Nambucca use bus stops to catch buses;

f. Bus stops are in front of or near to hotels in Nambucca.”

4. There are a number of defects in this infelicitously drafted defence, including the failure to plead the defence to the imputations, the rolled up particulars of justification and their almost complete irrelevance to the imputations pleaded: Greenfield v Fairfax Media Publications Pty Ltd (No 2); Greenfield v Australian Broadcasting Corporation [2015] NSWSC 373. However, the basis upon which the application is brought is that the defendant has refused to answer request for further and better particulars of the facts and matters particularised.

5. Mr Glaser, the solicitor for the defendant, has told the court he is “unable to answer” any of those particulars. He accepts that, in the absence of particulars as to the facts and matters referred to, which were essentially requests for dates and names, these particulars are so wholly deficient that they cannot stand.

6. The circumstances in which a plea of justification will be struck out must be compelling. In Fogarty v Nationwide News Pty Ltd [2013] WASC 477, Kenneth Martin J states at [14]:

“[14] There was no dispute between the parties as to applicable principles of law underlying this strikeout application insofar as a challenge grounded on arguments that the pleaded defence does not disclose an arguable defence (ie, basis for the plea of justification or substantial truth) is to be evaluated. A relatively low interlocutory threshold arising out of principles well established in cases such as General Steel Industry Inc v Cmr of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 applies. In other words, the plaintiff needs to make out an overwhelming case on this application that the particulars of truth as pleaded by the defendants are essentially untenable as regards a justification defence concerning this imputation.”

(See also Saraceni v Mentha [2013] WASC 95 at [50]; Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 448–449 and Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40].)

7. Applications to strike out an entire defence of justification are rare. Generally speaking, only in very clear cases will such a plea be struck out: MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472.

8. That is not the case here. The combination of the hopelessness of the pleading and refusal to answer a single question in the plaintiff’s request for particulars warrants the making of such an order.

9. The sole remaining defence is that of Offer of Amends (s 18 Defamation Act 2005 (NSW)). In those circumstances, this is an ideal matter for referral to mediation before an assistant registrar of the District Court, and steps have been taken for the mediation to take place on 16 June 2015.

10. This court’s free mediation service is an essential part of defamation case management in the Sydney registry. As defamation is complex, and defamation insurance rare, litigants in defamation proceedings find the conduct of the case stressful as well as expensive. The opportunity for early resolution of proceedings, with the assistance and guidance of these registrars, aids not only the parties, but also the profession and the court. I take this opportunity to acknowledge the invaluable contribution the registrars make to the conduct of defamation proceedings in accordance with the precepts of ss 56 – 62 Civil Procedure Act 2005 (NSW).

Orders

1. Strike out the defence of justification in paragraph 6A.

2. Pursuant to s 26 Civil Procedure Act 2005 (NSW), direct the parties to attend for mediation before an assistant registrar of the District Court on Tuesday 16 June 2015.

3. Matter stood over for further directions in the Defamation List on Thursday 18 June 2015 at 9:00am.

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Decision last updated: 27 July 2015