Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550

Leave to amend the defence to include previously struck out paragraphs as particulars relevant to mitigation of damages is refused because the facts pleaded are not directly relevant background context under Burstein but instead are hearsay, rumour, or allegations not concerning the applicant's own conduct or reputation in the relevant sector. The same material remains inadmissible as particulars of the qualified privilege defence because no proper basis for their relevance was shown and discretionary considerations—mainly delay, lack of merit, and prejudice—also apply. Leave to file the proposed cross-claim for contribution against the STC is refused as the cross-claim is very weak,...

Jurisdiction
Australia
Judgment Date
20 April 2018
Procedural Posture
Defamation / Interlocutory Applications Regarding Leave to Amend Defence and File Cross Claim
Outcome
Applications to amend defence (in substantive form) and to file cross-claim dismissed; leave granted for non-controversial amendment; costs orders for applicant.
Legal Topics
['amendment of Pleadings' 'mitigation of Damages' 'qualified Privilege' 'cross Claims' 'burstein Principle']
['practice and Procedure' 'defamation'] ['amendment of Pleadings' 'mitigation of Damages' 'qualified Privilege' 'cross Claims' 'burstein Principle']

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Procedural Posture

Defamation / Interlocutory Applications Regarding Leave to Amend Defence and File Cross Claim

Legal Issues

  1. 1 ['Whether leave should be granted to amend defence to include previously struck out particulars as facts relevant to mitigation of damages under Burstein v Times Newspapers Ltd [2001] 1 WLR 579' 'Whether particulars may be reintroduced as particulars of qualified privilege' 'Whether leave should be granted to file a cross-claim against the Sydney Theatre Company Limited (STC) for contribution under s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW)' 'Whether explanation for delay and discretionary considerations justify grant or refusal of leave']

Ratio Decidendi

Leave to amend the defence to include previously struck out paragraphs as particulars relevant to mitigation of damages is refused because the facts pleaded are not directly relevant background context under Burstein but instead are hearsay, rumour, or allegations not concerning the applicant's own conduct or reputation in the relevant sector. The same material remains inadmissible as particulars of the qualified privilege defence because no proper basis for their relevance was shown and discretionary considerations—mainly delay, lack of merit, and prejudice—also apply. Leave to file the proposed cross-claim for contribution against the STC is refused as the cross-claim is very weak,...

Court Disposition

Applications to amend defence (in substantive form) and to file cross-claim dismissed; leave granted for non-controversial amendment; costs orders for applicant.

Orders

  • ['The amended interlocutory application seeking leave to amend the defence by including struck out particulars is dismissed.' 'The First and Second Respondents are granted leave to file a further amended defence in the form annexed to the interlocutory application as originally filed on 3 April 2018.' 'The amended...