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…