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 Judgment 1These are reasons for rulings I have given earlier today granting leave to the defendants to file a Further Amended Defence to the Second Further Amended Statement of Claim and in relation to the defendants' application to strike out particulars of the Reply. 2The defendants by notice of motion, initially returnable 31 August 2012 but heard by agreement between the parties today, sought orders as follows: (1)Pursuant to s 64 of the Civil Procedure Act 2005 (NSW), the first and second defendants have leave to file their defence to the second further amended statement of claim in the form of Annexure 'A' to this Motion. (2)That the following paragraphs of the plaintiff's Reply be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW): (a)Paragraph 2(ii)(c); (b)Paragraph 2(ii)(d); (c)Paragraph 2(ii)(f); (d)Paragraph 2(ii)(g). (3)Such further or other orders as the court thinks fit. (4)The plaintiff pay the first and second defendants' costs of this application. 3The plaintiff commenced proceedings for defamation on 1 July 2011, for a publication asserted to have been made by the defendants on 5 July 2010. The text of the matter complained of consists of an email sent by the second defendant to the employees of the first defendant. That email, which attached a work calendar for the period commencing 31 May 2010 to 11 July 2010, stated: "To All, In one month, I quickly counted 24 sick days, 21 late comers and 26 days of holiday as attached. This is equivalent of 3 people not here continuously throughout the month. This also means that the rest of the people here will be doing their jobs so that we can produce adequate to pay everyone's salary. This is not fair to the company and the ones who come on time every time. We will be looking at this very seriously in the next days. It costs us big dollars per day of productivity. This is not acceptable. Today only, 5 people sick and 1 on holidays. It hurts management to run the projects. We will talk about this at our first staff meeting." 4The plaintiff is identified by her first name in the attached work calendar. 5The imputations pleaded by the plaintiff, in their current form, are: (a)The plaintiff is a malingerer. (b)The plaintiff unjustifiably took time off by falsely pretending she was sick. (c)The plaintiff does not act fairly to her employer. (d)By unjustifiably taking time off work the plaintiff does not act fairly to other staff. (e)[Imputation deleted] (f)The plaintiff hurts management in the running of projects by unjustifiably absenting herself from work. 6Before setting out reasons for my rulings, I shall first outline the procedural history of this defamation action and the circumstances in which the defendants first pleaded, then abandoned, then sought to replead particulars of qualified privilege which included the particulars for which leave to amend is now sought. Procedural history 7After the first return date, the matter was listed on 23 September 2011 for a hearing of an application by the defendants to have the proceedings struck out. On 23 September 2011, the following orders were made in the Defamation List: (1)Plaintiff is to file a Further Amended Statement of Claim within seven days. (2)Defendant is to file an Amended Defence to the Further Amended Statement of Claim within 21 days thereafter. (3)Listed for further directions in the Defamation List on 4 November 2011. (4)Each party to pay its own costs of the application today. 8The parties were unable to tell me today whether these orders were made as a result of a hearing of objections to the form of the pleadings, and whether there was any capacity argument. Counsel for the defendant told me that the defendant has new legal representation, and counsel for the plaintiff did not appear on the occasion in question. Mr McHugh said that the previous counsel's submissions stated that the court ordered the plaintiff to serve an amended pleading identifying the matters relied upon in support of the contention that there had been "bilateral publication in this jurisdiction of the matter complained of" (written submissions of the defendants, 7 October 2011, paragraph 1). 9An Amended Statement of Claim was filed on 30 September 2011. The matter was relisted on 7 October 2011 so that further objections could be dealt with in relation to the pleadings including the pleading of republication. Given the deletion of imputation (e) from the Second Further Amended Statement of Claim (see paragraph 5 above) it is possible a ruling on capacity occurred either on 23 September, or 7 October, or both. Counsel then appearing for the defendants provided the court with the written submissions referred to above, outlining asserted pleading errors of the plaintiff. There is no judgment, but the orders made were as follows: (1)Plaintiff to file a Further Statement of Claim addressing such matters as the plaintiff sees fit within 7 days. (2)Vacate the directions made on 23 September 2011 and replace those directions with the following: (a)The defendant is to file and serve an Amended Defence by 4 November 2011. (b)The plaintiff is to file and serve any Reply by 9 November 2011. (c)Listed for further directions in the Defamation List on 11 November 2011. (3)Costs reserved. 10These proceedings were next before the court on 11 November 2011. The defendants filed a Defence and a timetable was entered into for service of a Reply and discovery. The defendant had pleaded reliance upon profitability interest as one of the bases for a qualified privilege defence at common law and pursuant to s 30 Defamation Act 2005 (NSW). The discovery issue was stood over to 17 February for argument. On 17 February costs were reserved and the matter stood over to 24 February 2012. Although there is no judgment or formal order, the plaintiff must have successfully argued that documents be discovered on this issue, given the inclusion of an award of costs of "the argument on 24.2.12" in the orders made by the list judge on 27 April. 11The categories of documents for discovery by the defendants included, relevantly: "... (10) Plaintiff's employment files and records. (11) Income tax returns, balance sheets, and profit and loss accounts of the defendant from 1 July 2008 to date." 12However, on 3 April 2012, the solicitors then acting for the defendants, wrote to the plaintiff stating: "Our clients propose no longer to rely upon any profitability interest as a basis for their defence of qualified privilege. We note that the Court's order on 24 February 2012 that our clients give discovery of income tax returns and profit and loss accounts of the first defendant from 1 July 2008 to date (the "profitability documents") was made solely on the basis that such documents were relevant to our clients' defence of qualified privilege based on the profitability interest. As our clients propose no longer to rely upon that element of their defence of qualified privilege, the profitability documents no longer have any relevance to the issue that are in dispute in these proceedings. Accordingly, our clients propose to apply to the Court for an order varying the 24 February 2012 discovery orders, so as no longer to required [sic] discovery of the profitability documents. Please confirm that, when the matter is next before the Court, your client will consent to the filing of the enclosed amended defence, and that, in the interim, your client does not press discovery of the profitability documents. If we do not receive such confirmation within 7 days, we will apply to have the matter restored to the list for the purpose of immediately determining the applications foreshadowed herein." 13The defendants were granted leave to file this amended defence on 27 April, subject to payment of costs thrown away and "costs of the argument" on 24 April 2012. The parties handed up short minutes relating to the administration of interrogatories and on the next return date (1 June 2012) a hearing date for a jury trial of 4 - 5 days was allocated. In fact neither side had sought a jury trial and, when the matter was listed before me on 8 June 2012 for pre-trial management, the parties requested that this order be amended accordingly. 14At the pre-trial directions hearing before me on 8 June, the parties were asked to identify any outstanding issues. The defendants have sought leave to amend the defence to reinstate the previously deleted particular. These are the matters for determination today. The plaintiff opposes leave to amend being granted, or alternatively seeks discovery of documents going beyond those sought in February, namely documents going back to 2006, and documents in addition to tax returns and profit and loss documents. The defendants have also raised objections to the form of the Reply. The defendants' application for leave to amend the particulars of the defence 15These proceedings are fixed for hearing on 22 October 2012 for hearing. As a general rule, all interlocutory steps should have been attended to by parties seeking rulings, as part of case management in the Defamation List. The parties sought rulings on one or more occasions, and it was following one of these occasions that the defendants abandoned reliance upon the particulars which they now propose to reinstate. 16In Lee v Keddie [2011] NSWCA 2, an application for leave to appeal from the refusal of the Defamation List Judge to allow certain amendments was dismissed. There are factual similarities with the present case; both were set down for hearing at the time of the application, both were claims arising from publications by a plaintiff and defendant in an employer/employee relationship, and in both cases a defence of qualified privilege was pleaded. In Lee v Keddie the particulars the subject of the application for leave were allegations that the defendants, prior to publication of the matter complained of, asked the plaintiffs to behave dishonestly in order to help the defendants meet complaints by the firm's clients about their conduct as solicitors (at [3]). It was common ground that if these amendments were permitted, the hearing date would have to be vacated. 17Although Ms Evans submitted that an adjournment of the hearing was possible if this claim was particularised, it is unlikely that the provision of the financial information to support the proposed particulars would trigger an adjournment or even extend the time for the trial. By contrast, in Lee v Keddie, a previous trial date had already been vacated for unrelated reasons (problems with the representation of the plaintiffs) and a second adjournment of the trial was considered particularly undesirable. 18Allsop P stated at [7]: "[7] The reasons of the primary judge for refusing leave were, in my view, compelling. A three week hearing date would have been vacated having already been vacated in August last year. The matters the subject of the paragraphs in question contain allegations of the utmost seriousness. They had not been part of any pleaded case although, interlocutory steps of discovery had been sought for material which would have underpinned them. Those requests were some time ago abandoned." 19Allsop P went on to note at [11]: "Justice is justice to both sides and relevant is the timely and appropriate administration of justice. Matters of the most serious kind have been raised in a relevant sense four years after the defamation and three years after the case began. Matters which go to the heart of the question of malice which was always at the forefront of the plaintiffs' case in reply was pleaded from the outset, that is, malice was pleaded from the outset. The subject matter is a matter that was always to the knowledge and within the knowledge of the plaintiffs. No aspect of language could have affected their understanding of what they say had been said to them by the defendants." 20Another case where a very late application for leave to amend was also refused was Sharma v Shandil [2011] NSWCA 155. The defendant had abandoned the defence of qualified privilege in its entirety at the trial, but then sought to reinstate the defence two weeks after the evidence had closed. The court noted that it had been open to the defendant to seek to reopen the case at the time, and that the defendant had not done so. This is suggestive of a more flexible view to late amendment than that taken in Lee v Keddie. 21Allsop P in Lee v Keddie at [10] referred to AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ("AON"). Counsel for the plaintiff has also relied upon this decision in the application before me. Ms Evans first drew my attention to the lack of explanation for the proposed amendment. 22In AON, the High Court noted the importance of an explanation of the reasons for late amendment. The explanation here seems to be that the position was reconsidered after the defendants retained new solicitors and new counsel. This was, I note, the explanation offered (and rejected) in Lee v Keddie, and it is not an explanation that would, by itself, be considered sufficient. 23In oral submissions, Mr McHugh stated that there had been problems with the conduct of the proceedings, and that the informal way the matter had been conducted in the Defamation List had been a problem for both parties. He drew my attention to his instructing solicitors' letter of 12 August 2012 referring being "in the dark" because of "a dearth of particulars and even interrogatories" on both sides, and suggesting agreement between the parties to overcome these difficulties (Exhibit E to the affidavit of Stephanie Borg). 24While the Court of Appeal has warned that rulings on imputations in the Supreme Court should be the subject of not only orders but reasons for decision (Ahmed v John Fairfax Pty Ltd [2006] NSWCA 6 at [102]), this expectation does not necessarily apply to inferior courts, particularly where the scope of the claim is modest: Bristow v Adams [2012] NSWCA 166 at [42] - [43]. Decisions of the District Court are of interest to the parties, but of no precedent value (Bristow v Adams at [7]). The matter complained of in Bristow v Adams was, similarly, a publication of limited extent arising out of disputes in the workplace, circulated to fellow employees, so these observations by the Court are of particular relevance here. 25As to the claim that the orders do not reflect rulings, the degree to which the parties should require orders reflecting decisions on case management issues is a matter for the parties. The defendants were content to go along with an informal procedure of dealing with disputes about pleading and legal issues, and should not be entitled to complain about it now. 26However, the proposed amendments do not represent a significant change of position, as was the case in AON. In the present case, the amendment sought is to reinstate particulars already provided, and to provide discovery along the lines of what had previously been agreed. The subject matter is an issue of relevance, given the content of the matter complained of. The interests of justice favour permitting the amendment, provided that adequate discovery is given, and there is time for interrogatories to be administered. This brings me to Ms Evans' second argument. 27The second matter raised by Ms Evans was that that the delay to discovery and interrogatories is of significance and could result in an adjournment of the trial date. The parties entered into a consent timetable on 27 April 2012 concerning discovery and interrogatories which has not been adhered to. A strict timetable should resolve this problem, and this has been included in the orders that I have made. 28Ms Evans' third basis for objection to the grant of leave to amend was made on the basis that the qualified privilege defence, particularly the s 30 defence, was hopeless. She drew my attention to s 30(3)(h), namely the failure of the defendants to provide the substance of the plaintiff's side of the story, or to have made a reasonable attempt to do so. 29I do not accept this submission. A summary finding would be made as to the availability of a defence of qualified privilege only in exceptional circumstances: 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; Walker v Veda Advantage Information Services & Solutions Ltd [2011] QSC 316. In response to the submission that the plaintiff was not given an opportunity to reply (s 30 (h)) and include that response in the publication, the s 30 defence succeeded in LVMH Watch & Jewellery Australia Pty Ltd v Lassanah [2011] NSWCA 370 at [138], where no opportunity to reply (other than a simple denial by one plaintiff) was given when allegations of attempting to steal from a shop were made. 30Ms Evans submitted that, if leave were granted, the defendant should provide more documents than had been the subject of agreement when the orders of 24 February 2012 were made. She sought documents going back to 2006, when the plaintiff was first employed. The defendants have offered to provide documents evidencing the work being performed by the staff of the first defendant and its due dates at the relevant times, but submit that to discover documents going back to 2006 would be excessive. 31I have accepted the defendants' argument, for two reasons. Firstly, the 2008 date was that originally determined by the parties in February 2012 as the appropriate cut-off date. Secondly, the issue of discovery may have been dealt with during the informal argument in the defamation list which resulted in case management orders and, if so, I would be reluctant to go behind any such determination. 32The defendants have accordingly been granted leave to amend, conditional upon production of the documents the parties previously agreed should be discovered. The defendants' application to strike out particulars contained in the Reply 33The defendants seek orders striking out particulars 2(ii)(c), (d), (f) and (g). These particulars are as follows: (c) Defendants' failure to admit publishing the matter complained of. (d) Defendants' conduct in terminating the plaintiff's employment by way of redundancy when she had recovered from her illness sufficiently so as to be able to work. (f) Wrongful failure of the defendants to apologise. (g) Defendants' conduct in defending the matter complained of by alleging that the profitability of the defendants' business justified publication of the matter complained of about the plaintiff. 34The objections fall into two main categories: (a)Particulars relating to the conduct of the litigation by the defendants (particulars 2(ii)(c), (f) and (g)); and (b)The inclusion of a claim of post publication conduct asserted to evidence improper motive which may result in the trial being a "mini-trial" as to the defendants' motive for terminating the plaintiff's employment (particular 2(ii)(d)). 35I shall deal with the objections to particulars 2(ii)(c), (f) and (g) first. The conduct of litigation by the defendants, including the conduct of the trial 36As Tobin & Sexton, Australian Defamation Law & Practice at [18,040] point out, conduct on the part of the defendant subsequent to the publication of the defamatory material, including the manner in which the trial is conducted, may be relied upon in relation to malice, although the court is wary at drawing inferences of improper motive from legitimate conduct such as defending the proceedings. That the inference is open is, however, clear from the remarks made by Jordan CJ in Guise v Kouvelis (1946) 46 SR (NSW) 419 at 422-423, where cross-examination of the plaintiff by counsel was regarded as capable of reinforcing inference that the defendant was animated by ill will towards the plaintiff, an ill will which continued and received a new manifestation at the trial. 37As the manner of conduct of proceedings is a recognised basis upon which improper motive may be pleaded, I am reluctant to strike out these particulars. Whether or not improper motive may be established will be a matter for the trial. Accordingly, particulars 2(ii)(c) and (g) will not be struck out. 38However, particular 2(ii)(f) ("Wrongful failure of the defendants to apologise") is a hopeless particular, for the reasons explained by Levine J in Harrigan v Jones [2000] NSWSC 814 at [42]-[43]: "[42] Particular (i): "Wrongful failure to retract and apologise". Here we are not concerned with any failure to apologise. Here we are not concerned with any failure to apologise being available as a component for ordinary compensatory damages (Clarke v Ainsworth (1996) 40 NSWLR 463). Nor are we concerned with a failure to apologise being improper, unjustifiable or lacking in bona fides in support of a claim for aggravated damages. What is here asserted is that Mr Jones was actuated by express malice by reason of what is said to have been a wrongful failure to retract and apologise for that publication actuated by that state of mind. These are the matters to which proper particulars should be directed if the plaintiff, in the end, proposes to assert express malice on the part of Mr Jones by reason of this failure to apologise. This the plaintiff has clearly failed to do. In Waterhouse/2GB at 68F Hunt J dealt with similar allegations on the question of absence of good faith but in the context of the protected report defence. His Honour's general observations there are apposite. [43] This is a hopeless particular and without more cannot be said to point in a substantive way to the availability of what is asserted as a matter going to malice in any event." 39Particular 2(ii)(f) will be struck out. While I have granted leave to the plaintiff to provide further particulars for the Reply, these particulars should not include a revised form of 2(ii)(f), or particulars similar to those struck out by Levine J in Harrigan v Jones. The inclusion of a claim of post publication conduct (particular 2(ii)(d)) 40The objection to particular 2(ii)(d) is that it may result in the hearing becoming a "mini-trial" as to the defendants' motive for terminating the plaintiff's employment by redundancy despite her recovery from cancer. 41Conduct on the part of a defendant at any stage up to and including the trial may be relied upon as evidence of malice. The circumstances of termination of the plaintiff's employment clearly falls within that category. Whether or not this issue dominates the trial can be dealt with by appropriate trial rulings. Other issues 42In paragraph 8 of the defence, the defendants plead that any damages awarded to the plaintiff should be reduced "or further and alternatively set-off under s 21 Civil Procedure Act" by reason of the plaintiff's delay in complaining of the alleged republication and by failing to complain of the publication or seek redress prior to instituting these proceedings and/or filing in these proceedings a Further Amended Statement of Claim. 43Section 21 Civil Procedure Act 2005 (NSW) provides: "21 Defendant's right to set-off (1) If there are mutual debts between a plaintiff and a defendant in any proceedings, the defendant may, by way of defence, set off against the plaintiff's claim any debt that is owed by the plaintiff to the defendant and that was due and payable at the time the defence of set-off was filed, whether or not the mutual debts are different in nature. (2) This section extends to civil proceedings in which one or more of the mutual debts is owed by or to a deceased person who is represented by a legal personal representative. (3) This section does not apply to the extent to which the plaintiff and defendant have agreed that debts (whether generally or as to specific debts) may not be set off against each other. (4) This section does not affect any other rights or obligations of a debtor or creditor in respect of mutual debts, whether arising in equity or otherwise. (5) This section is subject to section 120 of the Industrial Relations Act 1996. (6) In this section, "debt" means any liquidated claim." 44The statutory right of set-off was reintroduced by the Civil Procedure Act 2005, following the repeal of earlier provisions on the basis that the only right of set-off should be an equitable right of set-off (Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 73 ALR 289 at 292). The NSW Law Reform Commission Report 94 (2000), "Set-off", recommended a reintroduction of the statutory right where it is restricted to "mutual" debts involving liquidated claims due and payable when the defence is filed: see Ritchie's Uniform Civil Procedure (LexisNexis) at [21.5]. The statutory right of set-off does not extend to unliquidated claims. 45In addition, while rights of cross-claims and indemnities pursuant to legislations such as the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) apply to defamation actions, the entitlement of a defendant to claim a set-off under the Civil Procedure Act 2005 is novel. The particulars provided are matters which would go to mitigation of damages, not to a set-off. 46I note these matters have been raised in the course of argument and that Mr McHugh had indicated that his clients would probably abandon this claim. Nevertheless, I have reserved the entitlement of the plaintiff to bring an application to strike out this portion of the pleading, so that the issue can be properly ventilated by a hearing on the merits. 47Another issue which may cause problems at the trial, but which was not referred to by the parties, is the determination of malice by joint tortfeasors where it is asserted that the malice of one infects the other so that both defendants are liable: Webb v Bloch (1928) 41 CLR 331; Dougherty v Chandler & Ors (1946) 46 SR (NSW) 370 at 375-376; Egger v Viscount Chelmsford [1965] 1 QB 248. In LVMH, supra, at [66], Bergin A-JA referred to but did not decide the issue. 48The present case has the additional complication of being one where it is likely (unlike LVMH, where liability by the NSW Police for statements of police officers was not in dispute) that vicarious liability issues may arise: Hay v Australasian Institute of Marine Engineers (1906) 3 CLR 1002 at 1011 - 12 per Griffiths CJ; Tobin & Sexton Australian Defamation Law and Practice [18,045]. A careful delineation of malice by each defendant is a matter to which the parties may wish to give consideration prior to the trial. Orders (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. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 August 2012