Sakr v Australian Broadcasting Corporation; Australian Broadcasting Corporation v Sakr [2015] NSWCA 310

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sakr v Australian Broadcasting Corporation; Australian Broadcasting Corporation v Sakr [2015] NSWCA 310 Hearing dates: 1 September 2015 Date of orders: 02 October 2015 Decision date: 02 October 2015 Before: Macfarlan JA at [1]; Ward JA at [3]; Sackville AJA at [88] Decision: (1) Extend to 7 May 2015 the time for the filing of Ms Sakr's summons for leave to appeal from the decision of the primary judge to strike out imputation 4(a) in the initial statement of claim, grant leave to appeal and dismiss the appeal. (2) Grant the ABC leave to cross-appeal from the decision of the primary judge not to strike out imputations 4(b) and (c) in the initial statement of claim and to appeal from the decision of the primary judge not to strike out imputation 4(a) as re-pleaded in the draft second amended statement of claim. (3) Strike out "willingly" from imputation 4(a) in the third amended statement of claim and direct that Ms Sakr file a fourth amended statement of claim amending imputations 4(b) and (c) in accordance with these reasons. (4) Otherwise dismiss the ABC's cross-appeal from the decision of the primary judge in relation to imputations 4(b) and (c) in the initial statement of claim. (5) Order Ms Sakr to pay the ABC's costs both of her appeal and of its appeal from the second judgment. (6) Order that the costs of the ABC's cross-appeal from the first judgment be costs in the cause. Catchwords: DEFAMATION – whether leave to appeal/cross-appeal should be granted to applicant in relation to re striking out of pleaded imputation and to respondent in relation to refusal to strike out that imputation as subsequently re-pleaded and other pleaded imputations – whether matter complained of capable of giving rise to the imputations pleaded – objection as to form of particular imputations Legislation Cited: Uniform Civil Procedure Rules 2005, r 28.2 Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682 Nationwide News v Hibbert [2015] NSWCA 13 Singleton v Ffrench (1986) 5 NSWLR 425 Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J 20 February 1980, unreported) The Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285 Toben v Milne [2014] NSWCA 200 Category: Principal judgment Parties: Reme Sakr (Applicant 2015/00135973; Respondent 2015/00091274) Australian Broadcasting Corporation (Respondent 2015/00135973; Applicant 2015/00091274) Representation: Counsel: T Molomby SC (Applicant 2015/00135973; Respondent 2015/00091274) ATS Dawson with MJ Lewis (Respondent 2015/00135973; Applicant 2015/00091274)