Whittington v Newman

[2024] NSWCA 27

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Whittington v Newman [2024] NSWCA 27

Hearing dates:

23 October 2023

Decision date:

16 February 2024

Before:

Leeming JA; Stern JA; Simpson AJA

Decision:

Summons seeking leave to appeal filed 10 January 2023 dismissed with costs.

Catchwords:

DEFAMATION – appeal from order granting leave to amend – adequacy of pleading and particulars – amendment to pleading introduced matters arising after commencement of Defamation Amendment Act 2020 (NSW) – operation of concerns notice to matters introduced by amendment – whether sufficient particulars of serious harm to reputation provided – whether sufficient particulars of publication provided – significance of claims of denial of procedural fairness in deciding points of law adversely to defendant

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56

Defamation Act 2005 (NSW), ss 10A, 12B, 13, 14, 15, 17, 18, 44, cl 7 of Sch 4

Defamation Amendment Act 2020 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 15.19

Cases Cited:

Amersi v Leslie [2023] EWCA Civ 1468

Banks v Cadwalladr [2023] KB 524; [2023] EWCA Civ 219

Coker v Nwakanma [2021] EWHC 1011

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56

Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Lachaux v Independent Print Ltd [2020] AC 612; [2019] UKSC 27

Murdoch v Mudgee Dolomite & Lime Pty Ltd (in liq) [2022] NSWCA 12; 398 ALR 658

Newman v Whittington [2022] NSWSC 1725

Newman v Whittington [2022] NSWSC 249

Texts Cited:

D Rolph, “A serious harm threshold for Australian defamation law” (2022) 51(2) Australian Bar Review 185

Category:

Principal judgment

Parties:

Adam Whittington (Applicant)
Jasmin Newman (Respondent)

Representation:

Counsel:
S Chrysanthou SC and T Smartt (Applicant)
R Armitage (Respondent)

Solicitors:
Makinson d’Apice Lawyers (Applicant)
Unrepresented (Respondent)

File Number(s):

2023/11410

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2022] NSWSC 1725

Date of Decision:

16 December 2022

Before:

Rothman J

File Number(s):

2021/35572

JUDGMENT

1. THE COURT: More than three years after commencing a defamation action in the Common Law Division of this Court, and with no defence having been filed, the parties are engaged in an interlocutory appeal concerning a proposed amendment to a pleading styled “Fourth Amended Statement of Claim”. It is 53 pages long, with about 160 pages of annexures. Its title is probably inaccurate; about 500 pages of the White Folder explain that some seven versions of the pleading have to date been served. The matters complained of are all material made available on the internet, either through posts on a WordPress blog, or posts on Facebook or (what was then known as) Twitter.

2. The orders from which the defendant seeks leave to appeal are the grant of leave to amend, on terms. One class of complaints sought to be advanced by the defendant, which occupied most of the parties’ time, is about the particulars of publication.…