Whiting v Herald and Weekly Times Pty Limited [2018] NSWDC 372

Whiting v Herald and Weekly Times Pty Limited [2018] NSWDC 372

The Amended Reply was struck out because it failed to particularise any factual basis amounting to malice; assertions that copying another article or publishing 'Text Talk' comments without evidence of fabrication or absence of honest belief are insufficient in law and mere conjecture, not particulars. The plaintiff is given a final opportunity to replead malice with proper particulars, and the defendant is permitted to amend its Defence to clarify certain particulars of honest opinion.

Jurisdiction
Australia
Judgment Date
06 December 2018
Procedural Posture
Tort – Defamation / Interlocutory Application – Application to Strike Out Reply and Parts of Defence
Outcome
Amended Reply struck out with leave to serve draft Further Amended Reply; Defendant granted leave to file Further Amended Defence; Plaintiff ordered to pay Defendant's costs of both applications; liberty to apply for further orders on timetable.
Legal Topics
['strike Out Application' 'pleadings' 'honest Opinion Defence' 'particularisation of Malice']
['tort' 'defamation' 'civil Procedure'] ['strike Out Application' 'pleadings' 'honest Opinion Defence' 'particularisation of Malice']

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Procedural Posture

Tort – Defamation / Interlocutory Application – Application to Strike Out Reply and Parts of Defence

Legal Issues

  1. 1 ['Whether the Amended Reply sufficiently particularises malice for the purposes of defamation and should be struck out' 'Whether the particulars of honest opinion in the defence should be struck out as inadequate' 'Whether a defence based on honest opinion must be particularised for each matter complained of']

Ratio Decidendi

The Amended Reply was struck out because it failed to particularise any factual basis amounting to malice; assertions that copying another article or publishing 'Text Talk' comments without evidence of fabrication or absence of honest belief are insufficient in law and mere conjecture, not particulars. The plaintiff is given a final opportunity to replead malice with proper particulars, and the defendant is permitted to amend its Defence to clarify certain particulars of honest opinion.

Court Disposition

Amended Reply struck out with leave to serve draft Further Amended Reply; Defendant granted leave to file Further Amended Defence; Plaintiff ordered to pay Defendant's costs of both applications; liberty to apply for further orders on timetable.

Orders

  • ['Amended Reply struck out.' 'Leave to serve (but not file) a draft Further Amended Reply by 14 February 2019.' 'Leave to the defendant to file a Further Amended Defence.' "Plaintiff pay the defendant's costs of both applications." 'Liberty to bring in Short Minutes of Order reflecting a timetable.']