Fairfax Media Publications Pty Ltd v Cowper [2016] NSWCA 320

Fairfax Media Publications Pty Ltd v Cowper [2016] NSWCA 320

The primary judge materially erred by understating the significance of the newly produced documents and the direct relevance to the defendant’s justification defence; prejudice to the respondent from amendment was overstated and mainly arose from vacation rather than amendment. Leave to amend the defences should be granted; application to vacate trial refused.

Parties
First Appellant: Fairfax Media Publications Pty Ltd; Second Appellant: The Age Company Ltd; Third Appellant: Adele Ferguson; Fourth Appellant: Ruth Williams; Fifth Appellant: Jeff Morris; Sixth Appellant: Australian Broadcasting Corporation; Seventh Appellant: Matthew Peacock; Respondent: Graeme Cowper
Jurisdiction
Australia
Judgment Date
22 November 2016
Procedural Posture
Interlocutory Appeal / Court of Appeal Decision on Leave and Amendment; Partial Appeal Determination
Outcome
Leave to appeal granted; appeal allowed in part; leave granted to amend defences; application to vacate trial refused.
Legal Topics
Amendment of Pleadings, Vacation of Trial, Practice and Procedure, Discovery Deficiencies, Justification Defence, Special Damages
Civil Procedure Defamation Amendment of Pleadings Vacation of Trial Practice and Procedure Discovery Deficiencies Justification Defence Special Damages

Case Brief

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Parties

Fairfax Media Publications Pty Ltd

First Appellant

The Age Company Ltd

Second Appellant

Adele Ferguson

Third Appellant

Ruth Williams

Fourth Appellant

Jeff Morris

Fifth Appellant

Australian Broadcasting Corporation

Sixth Appellant

Matthew Peacock

Seventh Appellant

Graeme Cowper

Respondent

Procedural Posture

Interlocutory Appeal / Court of Appeal Decision on Leave and Amendment; Partial Appeal Determination

Legal Issues

  1. 1 Whether leave to amend defences in defamation proceedings should be granted close to trial
  2. 2 Whether application to vacate the trial date should be allowed
  3. 3 Impact of late discovery and newly produced documents on pleadings and trial fairness

Ratio Decidendi

The primary judge materially erred by understating the significance of the newly produced documents and the direct relevance to the defendant’s justification defence; prejudice to the respondent from amendment was overstated and mainly arose from vacation rather than amendment. Leave to amend the defences should be granted; application to vacate trial refused.

Court Disposition

Leave to appeal granted; appeal allowed in part; leave granted to amend defences; application to vacate trial refused.

Orders

  • Leave to appeal is granted.
  • The appeal is allowed in part.