Burrows v Houda (No. 2) [2021] NSWDC 127

District Court New South Wales

Medium Neutral Citation: Burrows v Houda (No. 2) [2021] NSWDC 127 Hearing dates: 25 March 2021 Date of orders: 25 March 2021 Decision date: 16 April 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders (1) The Plaintiff's application to strike out paragraphs 13(a)(i) - (iii) and 13 (b)(i) - (iii) and particulars [1 ] – [102] of the defence of justification and contextual truth, as well as the defence of justification, is dismissed. (2) Pursuant to UCPR rule 28.2, contextual imputations (i) and (iii) are reasonably capable of being conveyed; the plaintiff's challenges to their form are dismissed. (3) Contextual imputation (ii) is struck out as not differing in substance from the plaintiff's imputations 8(b) & 14(b). (4) Leave to the plaintiff to amend the further Amended Statement of Claim to appropriate contextual imputation (i) and (iii) is granted, but that leave to amend shall be revoked nunc pro tunc in respect of any imputation proved by the defendants to be substantially true, such that, at trial, the defendants may rely upon any such imputation for the purposes of the defence under s 26 of Defamation Act 2005 (NSW); such amended pleading to be filed in seven days. (5) Leave to the defendant to file an amended defence 21 days after service of the Further Amended State of Claim. (6) The plaintiff is to provide submissions as to court's asserted lack of power to make nunc pro tunc orders by 5pm Friday 26 March 2021. (7) The defendant is to reply by Tuesday 30 March 2021. (8) The defendant to answer the plaintiff's email dated 2 March 2021 in seven days; the plaintiff is to reply 14 days thereafter. (9) Plaintiff to pay defendant's costs of the application. (10) Matter stood over to the Defamation List for further directions Thursday 29 April 2021 at 9am. Catchwords: TORT – defamation – application to strike out defences of justification and contextual truth on the basis of wholly inadequate particularisation – challenges to the form and capacity of the contextual imputations – application to "plead back" the contextual imputations – whether the court has power to grant leave to plead back but as a conditional nunc pro tunc order Legislation Cited: Broadcasting Services Act 1992 (Cth) cl 91 Civil Procedure Act 2005 (NSW) ss 56 - 64 Competition and Consumer Act 2010 (Cth) ss 18(1), s19 Defamation Act 2005 (NSW) ss 25, 26, 28, 29, 31 and 32 Evidence Act 1995 (NSW) s 91 Limitations Act 1985 (ACT) ss 11(1) and 36 Royal Commissions Act 1902 (Cth) s 6DD Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Allen v John Fairfax and Sons Ltd ((Unreported, NSWSC, 2 December 1988) Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81 Burk v The Commonwealth (No 2) [2002] VSC 464 Burrows v Houda [2020] NSWDC 485 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 Chel v Fairfax Media publications Pty Ltd [2015] NSWSC 171 Clark v Richards [2002] WASC 5 Eardley v Nine Network Australia Pty Ltd [2017] NSWCA 1374 Emanuele v ASC (1997) 188 CLR 114 Esso Australia Pty Ltd v Australian Workers Union (2017) 263 CLR 551 Fairfax Media Publications v Zeccola [2015] NSWCA 329 Feldman v Nationwide News Pty Ltd [2020] NSWCA 260 Herron v HarperCollins Pty Ltd (No 3) [2020] FCA 1687 Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 Hutley v Cosco [2021] NSWCA 17 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 Jones v TCN Channel 9 Pty Ltd (No 3) [2016] NSWSC 922 Kelly v Harbour Radio [2013] NSWSC 9 Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 Liu v Fairfax Media Publications [2013] NSWSC 7 Maisel v Financial Times Ltd [1915] 3 KB 336 Rennie Gollege Pty Ltd v Ballard [2012] NSWCA 376 Rush v Nationwide News Pty Ltd [2018] FCA357 State of New South Wales v Wraydeh [2019] NSWCA 192. Tauaifaga v TCN Channel 9 Pty Limited [2013] NSWSC 8 Category: Procedural rulings Parties: Plaintiff: Zali Burrows Defendant: Adam Houda Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant: Mr C Parkin