Enders v Erbas & Associates Pty Ltd [2012] NSWDC 129

District Court New South Wales

Medium Neutral Citation: Enders v Erbas & Associates Pty Ltd [2012] NSWDC 129 Hearing dates: 24 August 2012 Decision date: 24 August 2012 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Grant leave to the defendants to file the Further Amended Defence to the Second Further Amended Statement of Claim on the following provisos: (a) The defendants are to discover by Thursday 30 August 2012 at 5:00pm the documents identified in category 11 of the Short Minutes of Order dated 24 February 2012, namely income tax returns, balance sheets and profit and loss accounts of the first defendant from 1 June 2008 to date. (b) The defendants are also to discover by that date documents setting out the work being performed by the staff of the first defendant and its due dates at the relevant times (page 2 of the letter of the solicitors for the defendants dated 10 August 2012), as well as occupational health and safety work practices records and related documents. (c) The plaintiff's entitlement to bring an application to strike out the s 21 Civil Procedure Act 2005 (NSW) set-off claim is preserved. (2) Pursuant to orders 1(a) and (b), the defendants are to provide copies of all discovered documents to the chambers of Ms L Evans by the due date and time. (3) Waive the requirement for the defendants to provide a verified supplementary list of documents on condition that an index of these documents is provided. (4) Any further particulars of malice must be provided by 5:00pm Thursday 30 August 2012 and any application to strike out those particulars may be brought on 31 August 2012 or such other times as are convenient to the parties. (5) Matter stood over for directions to Friday 31 August 2012 at 10:15am before Gibson DCJ. (6) Paragraph 2(ii)(f) of the Reply is struck out. (7) Defendants' application to strike out paragraphs 2(ii)(c), (d) and (g) is dismissed. (8) Defendant to pay the plaintiff's costs of the notice of motion (but this does not include the costs of the mediation). (9) The notice of motion is otherwise dismissed. Catchwords: TORT - defamation - application to amend particulars of defence of qualified privilege after trial date is allocated - whether amendment should be permitted - application to strike out particulars of Reply - "wrongful failure to apologise" not a proper particular Legislation Cited: Civil Procedure Act 2005 (NSW), ss 21 and 64 Defamation Act 2005 (NSW), s 30 Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 14.28 Cases Cited: Ahmed v John Fairfax Pty Ltd [2006] NSWCA 6 AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bristow v Adams [2012] NSWCA 166 Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370 Egger v Viscount Chelmsford [1965] 1 QB 248 Guise v Kouvelis (1946) 46 SR (NSW) 419 Harrigan v Jones [2000] NSWSC 814 Hay v Australasian Institute of Marine Engineers (1906) 3 CLR 1002 Lee v Keddie [2011] NSWCA 2 LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370 Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263; (1990) A Def R 50-095 S, DJ v Channel Seven Adelaide Pty Ltd [2008] SASC 108 Sharma v Shandil [2011] NSWCA 155 Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289 Walker v Veda Advantage Information Services & Solutions Ltd [2011] QSC 316 Webb v Bloch (1928) 41 CLR 331 Texts Cited: NSW Law Reform Commission Report 94 (2000), "Set-off" Ritchie's Uniform Civil Procedure (LexisNexis) Tobin & Sexton Australian Defamation Law and Practice (LexisNexis) Category: Interlocutory applications Parties: Plaintiff: Sylvia Enders First Defendant: Erbas & Associates Pty Ltd Second Defendant: Ken Gurcan Erbas Representation: Plaintiff: Ms L Evans Defendants: Mr M McHugh Plaintiff: Friend & Co Lawyers Defendants: Neville & Hourn Legal File Number(s): 2011/214416 Publication restriction: None