Rothe v Scott (No. 2) - [2015] NSWDC 143

District Court

New South Wales

Medium Neutral Citation: Rothe v Scott (No. 2) [2015] NSWDC 143
Hearing dates: 30 July 2015
Date of orders: 30 July 2015
Decision date: 30 July 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
See paragraph 22

Catchwords: TORT - defamation - defence of justification struck out as hopelessly pleaded, following a refusal to answer a request for particulars - application to reinstate defence of justification to two of three imputations pleaded, on the basis that the plaintiff should be able to provide the particulars at some later stage following discovery, interrogatories and subpoenae to unknown third parties - repleaded particulars consisted of one sentence repeating the gist of the matter complained of and hopeless on its face - longstanding rule that a defendant is not entitled to discovery before delivering particulars of a plea of justification - no evidence of fresh material recently discovered or other grounds for bringing this application a second time - application to reinstate defence of justification refused
Legislation Cited: Defamation Act 2005 (NSW), s 25
Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Marshall v Smith [2013] WASC 432
Rothe v Scott [2015] NSWDC 105
Sali v Australian Broadcasting Corporation (No 2) [2013] VSC 719
Sims v Wran [1984] 1 NSWLR 317
Wootton v Sievier [1913] 3 KB 499
Texts Cited: Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis)
Brown on Defamation in Canada, United Kingdom, Australia, New Zealand and the United States (Carswell)Click here to enter text.
Category: Procedural and other rulings
Parties: Plaintiff: Kenneth Rothe
Defendant: David Scott
Representation:
Counsel:
Plaintiff: Mr C J Dibb
Defendant: Mr B Goldsmith
Solicitors:
Plaintiff: Slater & Gordon
Defendant: Goldsmith Lawyers

File Number(s): 2015/74837
Publication restriction: None

Judgment

These are my reasons for refusing the defendant leave to reinstate the defence of justification to imputations 3(b) and 3(c) pursuant to s 25 Defamation Act 2005 (NSW).
The basis upon which the defence was struck out on the previous occasion is set out in Rothe v Scott [2015] NSWDC 105.
The plaintiff seeks orders pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the defendant’s application to reinstate the defence be refused.

The proposed new pleading

The proposed new pleading, although limited to two of the three imputations, is even shorter and less helpful than the defence in its previous form. The defendant now seeks to plead a defence of justification pursuant to s 25 in relation to imputations 3(b) and 3(c) which is particularised as follows:

“The plaintiff operated the properties by allowing convicted paedophiles to reside there and notwithstanding that the properties were close to bus stops used, inter alia, by children.”

The “properties” in question, although unidentified, are stated in the matter complained of to be two motels and the River Edge Indian Cuisine Restaurant. No details of when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rothe v Scott (No. 2)

Details

AGLC: Rothe v Scott (No. 2) [2015] NSWDC 143
Case: [2015] NSWDC 143
Decision Date: 30 July 2015

CaseChat Overview and Summary

Rothe v Scott (No. 2) involved the plaintiff, Rothe, suing Scott for defamation. The case proceeded to a stage where the defence of justification had been struck out by the court. Scott sought to reinstate this defence concerning two of the three defamatory imputations alleged. The Court of Appeal was tasked with determining whether the defence of justification should be reinstated, considering the plaintiff's potential ability to provide particulars at a later stage after discovery, interrogatories, and subpoenas to unknown third parties. The court examined whether there were sufficient grounds to allow for the reinstatement of the defence, particularly since the plaintiff was required to provide particulars before any discovery could take place.

The court held that the longstanding legal principle required a defendant to provide particulars before seeking discovery. The court was not convinced that the plaintiff would be able to provide the necessary particulars at a future stage, given the current state of the pleadings. The court found that the repleaded particulars were insufficient, merely repeating the gist of the complaint and lacking any substantive detail. Additionally, the court noted there was no evidence of newly discovered material or other grounds warranting a second application for reinstatement. The application to reinstate the defence of justification was therefore refused.

The Court of Appeal found that the application to reinstate the defence of justification was without merit. The court's decision was based on the inadequacy of the particulars provided, the procedural requirements of the law, and the absence of any new evidence or justification for a second application. The court confirmed that the plaintiff was not entitled to discovery before delivering particulars of the plea of justification. The final orders of the court were that the application to reinstate the defence of justification was dismissed.

Orders

Orders of the court

See paragraph 22

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Rothe v Scott (No. 2) [2015] NSWDC 143
Hearing dates:	30 July 2015
Date of orders:	30 July 2015
Decision date:	30 July 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	See paragraph 22
Catchwords:	TORT - defamation - defence of justification struck out as hopelessly pleaded, following a refusal to answer a request for particulars - application to reinstate defence of justification to two of three imputations pleaded, on the basis that the plaintiff should be able to provide the particulars at some later stage following discovery, interrogatories and subpoenae to unknown third parties - repleaded particulars consisted of one sentence repeating the gist of the matter complained of and hopeless on its face - longstanding rule that a defendant is not entitled to discovery before delivering particulars of a plea of justification - no evidence of fresh material recently discovered or other grounds for bringing this application a second time - application to reinstate defence of justification refused
Legislation Cited:	Defamation Act 2005 (NSW), s 25 Uniform Civil Procedure Rules 2005 (NSW), r 14.28
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 Marshall v Smith [2013] WASC 432 Rothe v Scott [2015] NSWDC 105 Sali v Australian Broadcasting Corporation (No 2) [2013] VSC 719 Sims v Wran [1984] 1 NSWLR 317 Wootton v Sievier [1913] 3 KB 499
Texts Cited:	Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis) Brown on Defamation in Canada, United Kingdom, Australia, New Zealand and the United States (Carswell)Click here to enter text.
Category:	Procedural and other rulings
Parties:	Plaintiff: Kenneth Rothe Defendant: David Scott
Representation:	Counsel: Plaintiff: Mr C J Dibb Defendant: Mr B Goldsmith Solicitors: Plaintiff: Slater & Gordon Defendant: Goldsmith Lawyers
File Number(s):	2015/74837
Publication restriction:	None