Rush v Nationwide News Pty Ltd (No 2)

In the matter of Rush v Nationwide News Pty Ltd (No 2), the applicants sought leave to further amend their defence and to file a cross-claim against the STC, a third party. The applicants argued that the particulars previously struck out of their qualified privilege defence could be reintroduced as particulars relevant to the mitigation of damages, and that their proposed cross-claim had sufficient merit. The court was required to decide whether the applicants' explanations for the delay in filing the further amended defence and the cross-claim were satisfactory, and whether granting leave would cause further delay in the proceedings.

The court found that the applicants' explanations for the delay were unsatisfactory. They had already been granted leave to amend their defence three times, and the proposed further amended defence was their fourth attempt at settling a viable and satisfactory defence. The court also found that the proposed cross-claim was weak and the prospects of success were poor. The court considered that the delay was significant and likely to be productive of considerable prejudice to the applicant. The court concluded that granting leave would not be in the interests of justice, and dismissed the applicants' applications for leave.

The court ordered that the applicants' amended interlocutory applications seeking leave to file a further amended defence and a cross-claim be dismissed. The court also ordered that the applicants pay the applicant's costs of and associated with the amended interlocutory applications. If the applicants filed a further amended defence in accordance with the leave granted in order 2, they were to pay the applicant's costs thrown away as a result of the filing of the further amended defence.