Carolan v Fairfax Media Publications Pty Ltd (No 5) [2015] NSWSC 1560

Supreme Court New South Wales

Medium Neutral Citation: Carolan v Fairfax Media Publications Pty Ltd (No 5) [2015] NSWSC 1560 Hearing dates: 19, 20 October 2015 Date of orders: 27 October 2015 Decision date: 27 October 2015 Jurisdiction: Common Law Before: McCallum J Decision: Application to amend defence refused. Catchwords: DEFAMATION – defences – application on first day of trial to amend particulars of truth defence – where plaintiff claiming prejudice – whether proof required – whether defendants should be permitted to call the plaintiff to disprove the alleged prejudice – whether prejudice manifest Legislation Cited: Defamation Act 2005 (NSW), s 31 Evidence Act 1995 (NSW), s 38 Uniform Civil Procedure Rules 2005 (NSW),r 33.4 Cases Cited: Carolan v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1344 Carolan v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 1399 Category: Procedural and other rulings Parties: Sean Carolan (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Peter FitzSimons (second defendant) Representation: Counsel: K Smark SC with S Chrysanthou (plaintiff) ATS Dawson with C Amato (defendants)

Solicitors: Kalantzis Lawyers (plaintiff) Bank Haddock Fiora (defendants) File Number(s): 2014/245957 Publication restriction: None

Judgment 1. HER HONOUR: Sean Carolan is suing the publisher of the Sydney Morning Herald and a journalist for defamation in respect of four articles published in September 2013. On the first day of the hearing (19 October 2015), the defendants sought leave to amend their defence. I refused the application, reserving my reasons so as not to interrupt Mr Carolan's evidence (T126.46 and see T127.28). These are my reasons for refusing the application.