NSW Caselaw
New South Wales District Court
CITATION: Creighton v Nationwide News Pty Ltd (No. 2) [2010] NSWDC 192
HEARING DATE(S): 20 August, 31 August, 6 September 2010
JUDGMENT DATE: 6 September 2010
JURISDICTION: Civil
JUDGMENT OF: Gibson DCJ
(1) Plaintiffs' application to amend the statement of claim to plead back the defendants' contextual imputations granted. (2) Order 1 subject to leave being granted to both parties to bring any application to adjourn the proceedings pending legislative consideration of the issues raised by Simpson J in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852. DECISION: (3) Plaintiffs' Third Further Amended Statement of Claim to be filed in 7 days. (4) Defence to the Third Further Amended Statement of Claim to be filed 14 days thereafter. (5) Liberty to apply generally to Gibson DCJ as the trial judge in the proceedings listed to commence on 6 December, or to the Defamation List Judge. (6) Costs reserved.
CATCHWORDS: TORT - defamation - defendant pleads three contextual imputations - plaintiffs seek leave to "plead back" imputations - judgment of Simpson J in Kermode v John Fairfax Media Publications Pty Ltd [2010] NSWSC 852 holding that s 26 Defamation Act 2005 (NSW), due to a drafting oversight, fails to permit a defendant to rely on the truth of one or more of a plaintiff's imputations in the defence of contextual truth, entitling a plaintiff who "pleads back" contextual impuations thereby to defeat this defence - application by defendants to refuse plaintiffs leave to amend on the basis of abuse of process and pursuant to ss 56 - 62 Civil Procedure Act 2005 (NSW) - principles of comity - Simpson J's judgment inconsistent with Corby v Channel Seven Sydney Pty Ltd (Nicholas J, 20 February 2008, unreported) - principles of statutory interpretation - Simpson J's decision not clearly or plainly wrong - plaintiffs' application for leave to amend granted - plaintiffs bring application to join two additional defendants after expiry of the limitation period - application fails under s 56A Limitation Act 1969 (NSW) - alternative finding that plaintiffs' application to join two additional parties in a trial set down for hearing in three months would fail because of considerations of case management - plaintiffs' application to join two additional parties refused
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