Barrack v Wilson [2020] NSWDC 789

District Court New South Wales

Medium Neutral Citation: Barrack v Wilson [2020] NSWDC 789 Hearing dates: 3 and 17 September 2020 Date of orders: 3 and 17 September 2020 Decision date: 09 November 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: 03 September 2020 (1) Grant leave to Plaintiff to reinstate imputation 6(c) "The plaintiff is dishonest", which is strike out inadvertently. (2) Grant leave to Plaintiff to plead the fourth contextual imputation as a new imputation 6(f). (3) Plaintiff's challenge to the form of the contextual imputation (iv) is dismissed. (4) Subject to the condition set out in order (5), the plaintiff is granted leave to file a Further Amended Statement of Claim pleading the imputation which is currently pleaded by the defendant as the fourth contextual imputation in the Defence. (5) The leave granted in order (4) above, is granted on the condition that leave to amend be revoked nunc pro tunc if the imputation is proved by the defendant to be substantially true, such that, at trial, the defendant may rely upon the imputation for the purpose of a defence under s. 26 of the Defamation Act 2005 (NSW). (6) Dismiss the challenge to the first and the third contextual imputations brought on the basis that the language of these imputations is sufficiently imprecise. (7) Dismiss the challenge to the second and third contextual imputations as not differing in substance (8) Defer the argument as to the particulars of justification (para 24-26), pending the further submissions as follows: (9) Plaintiff to file further submissions by 10 Sep 2020 (10) Defendant to file a reply to the further submissions by 17 September 2020. (11) Matter listed for further argument on Thursday 17 September 2020. (12) Costs reserved. 17 September 2020 (13) Note the concession that the particulars need to be re-pleaded to set out which apply to which contextual imputation. (14) Plaintiff's application to strike out particulars 31, 32, 34, 35 and 36 of the particulars of the contextual justification Defence is dismissed with costs including the cost of the adjourned hearing of 3 September 2020. (15) Parties are to provide SMO for a further timetable for this proceeding including amendments to the contextual justification particulars following from the agreement between Mr Senior and Mr Thomas. Catchwords: TORT- DEFAMATION – challenge to the form of the defendant's contextual imputations – challenge to particulars of justification – no issue of principle Legislation Cited: Defamation Act 2005 (NSW) s 26 Uniform Civil Procedure Rules ("UCPR") r 14.30(3) Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Allen v John Fairfax & Sons (Supreme Court of NSW, Hunt J, 2 December 1988) Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 Brooks v Fairfax Media Publications Pty Ltd (No 3) [2020] NSWSC 1331 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 Con Ange v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 204 Crosby v Kelly [2013] FCA 1343 Domican v Pan Macmillan Australia Pty Limited [2019] FCA 1384 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR135 Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 Fairfax Media Publications v Zeccola [2015] NSWCA 329 Feldman v Polaris Media Pty Ltd [2016] NSWSC 1889 Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 Habib v Nationwide News Pty Ltd [2010] NSWCA 34 Hansen v Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 68 Hooper v Phipps [2020] NSWDC 134 Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 Maisel v Financial Times Pty Ltd [1915] 3 KB 336 Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 Miller v Associated Newspapers Ltd [2014] EWCA Civ 39 Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 Pahuja v TCN Channel Nine Pty Ltd [2015] NSWSC 164 Piggins v Denton [2006] NSWSC 954 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223 Texts Cited: Professor R Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Second Edition,1994) Category: Procedural and other rulings Parties: Plaintiff: Benjamin Barrak Defendant: Andrew Wilson Representation: Counsel: Plaintiff: Mr D Thomas Defendant: Mr T Senior