Bailey v WIN Television NSW Pty Ltd [2018] NSWSC 792

Supreme Court New South Wales

Medium Neutral Citation: Bailey v WIN Television NSW Pty Ltd [2018] NSWSC 792 Hearing dates: 18 May 2018 Decision date: 18 May 2018 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff granted leave to amend the statement of claim; plaintiff to pay defendants' costs thrown away including the costs of preparing for and attending today's hearing Catchwords: DEFAMATION – pleading – whether proposed amended pleading requires leave under s 65(2)(c) of the Civil Procedure Act 2005 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW), s 65(2)(c) Defamation Act 2005 (NSW), s 8 Category: Procedural and other rulings Parties: Roger Bailey (plaintiff) WIN Television NSW Pty Ltd (first defendant) WIN Corporation Pty Ltd (second defendant) Maree Statham (third defendant) Representation: Counsel: A Spies (plaintiff) S Chrysanthou (first and second defendants) M Richardson (third defendant)

Solicitors: Mills Oakley (plaintiff) Banki Haddock Fiora Lawyers (first and second defendants) Colin Biggers & Paisley (third defendant) File Number(s): 2017/315166 Publication restriction: None

Judgment – EX TEMPORE 1. HER HONOUR: These are proceedings for defamation commenced by statement of claim filed 18 October 2017. That statement of claim pleaded "quoted words" attributed to the third defendant alleged to have been republished in a segment of the WIN News programme, which was identified as the first matter complained of (in [9] of the pleading). 2. The plaintiff now seeks to amend the statement of claim. The proposed amendment makes plain that the material previously identified only as the "quoted words" is now the first matter complained of and relies on what was formerly the first matter complained of as a republication of the quoted words. 3. The response of the defendants to the proposed amendment was to note that the cause of action based on the quoted words was out of time and that the plaintiff required leave under s 65(2)(c) of the Civil Procedure Act 2005 (NSW) to add that new cause of action. 4. For reasons that are not clear to me, the plaintiff resisted that characterisation. It was argued that because the original statement of claim specified that the third defendant "published" the quoted words, that ought to have been understood as the pleading of a cause of action in accordance with s 8 of the Defamation Act 2005 (NSW). That section provides that a person has a cause of action in relation to the "publication of defamatory matter". 5. I do not accept that the form of the pleading made it clear that the quoted words were intended to be relied upon as a discrete cause of action. In particular, as already noted, it was not specified as a "matter complained of" and no imputations were pleaded to arise from it, contrary to the requirements of the rules. It is plain, in my view, that the plaintiff does require leave under s 65, which is now not opposed. 6. In the circumstances, the defendants seek their costs of today. The proceedings ought to have been for second listing today, but it has been necessary first to determine the issues raised by the proposed amendment. The defendants' respective positions were made clear in correspondence sent in late April. The plaintiff responded to that correspondence by written submissions served only on Wednesday. 7. In my view, it is clear that the defendants should have the costs thrown away, which should include the costs of preparing for and attending the hearing today.