Fairfax Media Publications Pty Ltd v Cowper [2016] NSWCA 320

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fairfax Media Publications Pty Ltd v Cowper [2016] NSWCA 320 Hearing dates: 17 November 2016 Date of orders: 17 November 2016 Decision date: 22 November 2016 Before: Beazley P; Leeming JA; Barrett AJA Decision: Orders made on 17 November 2016:

1. Leave to appeal is granted.

2. The appeal is allowed in part.

3. Set aside that part of the orders made by Rothman J on 14 November 2016 dismissing the appellant's application to file further amended defences.

4. Grant leave to the appellants to amend their defences in the form of proposed further amended defences which are annexures A and B to the affidavit of Hugh Bennett affirmed 27 October 2016.

Orders made on 22 November 2016:

5. Direct Fairfax Media Publications Pty Ltd and the Australian Broadcasting Corporation to file within 7 days of today a notice of appeal joining all parties to the proceedings and incorporating the grounds of appeal contained in the supplementary submissions dated 16 November 2016, and otherwise dispense with the requirements of service under the rules.

6. Each party's costs in this Court to be that party's costs in the proceedings at first instance. Catchwords: PRACTICE – interlocutory appeal from decision to refuse amendment and refuse to vacate trial – defamation – plaintiff sued on imputations that he had been dismissed for forging documents – documents produced on subpoena capable of supporting defence of justification – deficiencies in plaintiff's discovery – prejudice to plaintiff arose from vacation of trial rather than amendment – appeal allowed in part granting leave to amend – defendants' application to vacate trial refused – plaintiff's application to split trial reserved for consideration by trial judge Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 60 Cases Cited: House v The King (1936) 55 CLR 499 In re Will of Gilbert (1946) 46 SR (NSW) 318 Young v Hones (No 2) [2014] NSWCA 338 Category: Principal judgment Parties: Fairfax Media Publications Pty Ltd (First Appellant) The Age Company Ltd (Second Appellant) Adele Ferguson (Third Appellant) Ruth Williams (Fourth Appellant) Jeff Morris (Fifth Appellant) Australian Broadcasting Corporation (Sixth Appellant) Matthew Peacock (Seventh Appellant) Graeme Cowper (Respondent) Representation: Counsel: A T S Dawson SC, D Roche (Appellants) K Smark SC, S Chrysanthou (Respondent)