Gaynor v Burns [2015] NSWDC 194

District Court New South Wales

Medium Neutral Citation: Gaynor v Burns [2015] NSWDC 194 Hearing dates: 03 September 2015 Date of orders: 03 September 2015 Decision date: 03 September 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Note that paragraph 7 of the defence is struck out (Judge Gibson to give reasons at the suggestion of Mr Rasmussen). (2) Grant leave to the defendant to file and serve an Amended Defence identifying the qualified privilege defence and, if s 30 Defamation Act 2005 (NSW) is pleaded, setting out particulars of reasonableness, in 13 days. (3) Any capacity argument is to be raised when the matter is next listed, failing which the court will direct that the imputations, as currently pleaded, will go to trial. (4) Matter listed for an imputation argument on Thursday 17 September 2015 at 9:00am. (5) The defendant is to pay the costs thrown away by reason of the amendments to the defence. (6) The defendant is to pay the plaintiff's costs of today. Catchwords: TORT - defamation - defences - application to strike out defence of contextual justification based solely on the plaintiff's imputations - defendant concedes defence unavailable in that form - whether defence should be struck out - defence of qualified privilege fails to identify whether defence pleaded pursuant to s 30, at common law, or both - defence struck out with liberty to replead Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26 and 30 Cases Cited: Balzola v Federal Capital Press of Australia Pty Ltd (ACN 008 394 063) [2015] NSWDC 23 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode (2011) 81 NSWLR 157 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991 Category: Procedural and other rulings Parties: Plaintiff: Bernard Gaynor Defendant: Garry Burns Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant: Ms M Curry