George Bushara v Nobananbas Pty Ltd & Anor [2012] NSWSC 63

George Bushara v Nobananbas Pty Ltd & Anor [2012] NSWSC 63

An offer to make amends that includes a term limiting the time for acceptance is not for that reason precluded from supporting a defence under s 18(1) of the Defamation Act 2005. Section 18(1)(b) concerns whether the publisher was ready and willing to carry out the terms of the offer on acceptance, not whether the offer remained open for acceptance at all times before trial. Any issue about the reasonableness of a time limit is to be considered under s 18(1)(c). Accordingly, the plaintiff's challenge to paragraph 4 of the defence was misconceived.

Jurisdiction
Australia
Judgment Date
15 February 2012
Procedural Posture
Interlocutory Applications / Plaintiff's Notice of Motion to Strike Out Paragraph 4 of the Defence Under UCPR Pt 14, R 14.28(1)
Outcome
The plaintiff's application to strike out paragraph 4 of the defence was dismissed.
Legal Topics
['offer to Make Amends' 'defence Under S 18(1) Defamation Act 2005' 'strike Out Application' 'statutory Construction' 'time Limit for Acceptance of Offer']
['defamation' 'civil Procedure'] ['offer to Make Amends' 'defence Under S 18(1) Defamation Act 2005' 'strike Out Application' 'statutory Construction' 'time Limit for Acceptance of Offer']

Case Brief

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Procedural Posture

Interlocutory Applications / Plaintiff's Notice of Motion to Strike Out Paragraph 4 of the Defence Under UCPR Pt 14, R 14.28(1)

Legal Issues

  1. 1 ['Whether an offer to make amends under the Defamation Act 2005 may include a term limiting the time for acceptance by the aggrieved person.' 'Whether s 18(1)(b) of the Defamation Act 2005 requires an offer to make amends to remain open for acceptance at any time before trial.' 'Whether paragraph 4 of the defence pleading a defence under s 18(1) should be struck out.']

Ratio Decidendi

An offer to make amends that includes a term limiting the time for acceptance is not for that reason precluded from supporting a defence under s 18(1) of the Defamation Act 2005. Section 18(1)(b) concerns whether the publisher was ready and willing to carry out the terms of the offer on acceptance, not whether the offer remained open for acceptance at all times before trial. Any issue about the reasonableness of a time limit is to be considered under s 18(1)(c). Accordingly, the plaintiff's challenge to paragraph 4 of the defence was misconceived.

Court Disposition

The plaintiff's application to strike out paragraph 4 of the defence was dismissed.

Orders

  • ["The plaintiff's application to strike out par 4 of the defence be dismissed." "The plaintiff pay the defendants' costs of the application."]