Blake v John Fairfax Publications & Anor [2001] NSWSC 885

New South Wales Supreme Court

CITATION : Blake v John Fairfax Publications & Anor [2001] NSWSC 885 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20279 of 2000 HEARING DATE(S) : 5 October 2001 JUDGMENT DATE : 5 October 2001

DOMINIC BLAKE (Plaintiff)

v PARTIES : JOHN FAIRFAX PUBLICATIONS PTY LTD (First Defendant)

DAVID SYME & CO. LIMITED (Second Defendant) JUDGMENT OF : Levine J

R A Campbell (Plaintiff) COUNSEL : T Blackburn (First & Second Defendants) Gallagher de Reske (Plaintiff)

SOLICITORS : Freehills (First Defendant)

Minter Ellison (Second Defendant) CATCHWORDS : Application to amend Defence - application for compulsory mediation LEGISLATION CITED : Supreme Court Act 1970 CASES CITED : McBride v ABC [2000] NSWSC 747 NRMA Insurance Limited v Amalgamated Television Services Pty Ltd (unreported, 14 July 1989, Hunt J) DECISION : See paragraphs 19 & 20

DLJ: 2 (Ex Tempore – Revised) [2001] NSWSC 885 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST 20279 of 2000

JUSTICE DAVID LEVINE FRIDAY 5 OCTOBER 2001 DOMINIC BLAKE (Plaintiff) v

John Fairfax Publications Pty limited (First Defendant) DAVID SYME & CO LIMITED (Second Defendant) Judgment (Application to amend Defence – application for compulsory mediation) 1 HIS HONOUR: By an amended Notice of Motion filed on 21 September this year, which on its face indicates that the first defendant, Fairfax, only is moving the court, orders are sought in relation to reference to mediation under s 110K of the Supreme Court Act and leave to file an amended defence. Both defendants in fact move for the orders sought. 2 A jury trial has already taken place in which it was found that the then three pleaded imputations against both defendants were carried by the relevant publications and were defamatory of the plaintiff. Those imputations: "(a) The plaintiff was convicted of the offence of causing actual bodily harm to a twelve year old boy; (b) The plaintiff was convicted of the offence of possessing a prohibited weapon; (c) The plaintiff is a cruel person in that he inflicted electric shocks on a twelve year old boy". 3 I had given, prior to the 7A trial, a judgment on imputations on 1 September last year [2000] NWSC 883. 4 The imputations have been found to have been carried and have been found by the tribunal to be defamatory; they have been found to have been published by the defendants in the relevant publications. 5 The defendant now seeks to plead a defence under s 16 of the Defamation Act and, in the light of the material in the affidavit of Ms Norman sworn 20 September 2001, it fairly can be stated as a matter of reasonable conclusion that it seeks to do so because of a belief in its capacity to prove its proposed contextual imputations true by reference to certain material that has been exposed on the inspection of documents produced on subpoena. 6 The matter is presently fixed for hearing for the assessment of damages only on 24 and 25 October, a few weeks hence. 7 The proposed contextual imputations are: