Boikov v Network Ten Pty Ltd; Boikov v Nationwide News Pty Ltd [2017] NSWDC 88

District Court New South Wales

Medium Neutral Citation: Boikov v Network Ten Pty Ltd; Boikov v Nationwide News Pty Ltd [2017] NSWDC 88 Hearing dates: 30 March 2017 Date of orders: 30 March 2017 Decision date: 01 May 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders in Boikov v Network Ten Pty Ltd (2015/220364) (1) Grant leave to Dailymail to produce documents in court, in response to a notice to produce to the plaintiff, which will be marked as documents produced as if under subpoena by the Subpoena Registry. (2) Orders in accordance with the confidentiality regime as set out in the document headed Order dated 30 March 2017 filed in court today. (3) Subject to the condition set out in order (4), the plaintiff is granted leave to file a Further Amended Statement of Claim pleading the imputations which are currently pleaded by the defendant as contextual imputations in the Amended Defence. (4) The leave granted in order (3) above is granted on the condition that leave to amend be revoked nunc pro tunc in respect of any imputation proved by the defendants to be substantially true, such that, at trial, the defendants may rely upon any such imputation for the purpose of a defence under s 26 of the Defamation Act 2005 (NSW). (5) Costs of this application reserved to the Trial Judge.

Orders in Boikov v Nationwide News Pty Ltd (2015/220729) (1) Grant leave to Dailymail to produce documents in court, in response to the defendant's 16 March 2017 subpoena, which will be marked as documents produced as if under subpoena by the Subpoena Registry. (2) Orders in accordance with the confidentiality regime as set out in the document headed Order dated 30 March 2017 filed in court today. (3) Subject to the condition set out in order (4), the plaintiff is granted leave to file a Further Amended Statement of Claim pleading the imputations which are currently pleaded by the defendant as contextual imputations in the Amended Defence. (4) The leave granted in order (3) above is granted on the condition that leave to amend be revoked nunc pro tunc in respect of any imputation proved by the defendants to be substantially true, such that, at trial, the defendants may rely upon any such imputation for the purpose of a defence under s 26 of the Defamation Act 2005 (NSW). (5) Costs of this application reserved to the Trial Judge. Catchwords: TORT – defamation – application by plaintiff for leave to amend to "plead back" defendants' contextual imputations Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57, 58 and 64 Defamation Act 2005 (NSW), s 26 Cases Cited: Aon Risk Services Australia v Australian National University (2009) 258 ALR 14 Boikov v Dailymail.com Australia Pty Ltd [2015] NSWDC 192 Boikov v Dailymail.com Australia Pty Ltd; Boikov v Network Ten Pty Ltd; Boikov v Nationwide News Pty Ltd [2016] NSWDC 161 Boikov v Nationwide News Pty Ltd [2015] NSWDC 193 Born Brands Pty Ltd v Nine Network Australia Pty Ltd (2014) 88 NSWLR 421 Chel v Fairfax Media Publications (No 6) [2017] NSWSC 230 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285 Hibbert v Nationwide News Pty Limited (District Court Proceedings 2014/60638, Mahony SC DCJ) Hunter v Chief Constable of the West Midlands Police [1982] AC 529 Jeffery & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75 Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 Pahuja v TCN Channel Nine Pty Ltd [2015] NSWSC 1664 Rogers v the Queen (1994) 181 CLR 251 Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223 Toben v Nationwide News Pty Ltd [2016] NSWCA 296 Walton v Gardiner (1993) 177 CLR 378 Category: Procedural and other rulings Parties: Plaintiff: Simeon Boikov Defendant in 2015/220364: Network Ten Pty Ltd Defendant in 2015/220729: Nationwide News Pty Ltd Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant in 2015/220364: Ms L E Barnett Defendant in 2015/220729: Ms L E Barnett