Ainsworth v Burden [2005] NSWSC 819

Ainsworth v Burden [2005] NSWSC 819

Leave to file the further amended defence was granted only subject to rulings. The proposed fair protected report and fair extract or abstract or summary defences could not succeed because the letter merely referred to proceedings and reports and did not purport to be a substantially accurate report, summary, extract or abstract of them. The comment defence was arguably open because the statements were capable of being understood as comment and the material for comment was arguably sufficiently identified, but particulars had to comply with Pt 67 r 17(3) of the SCR. The reply to attack defence was not arguable because the letter lacked the requisite connection with the plaintiff's earlier...

Jurisdiction
Australia
Judgment Date
15 August 2005
Procedural Posture
Defamation Proceedings / Defendant's Notice of Motion for Leave to File a Further Amended Defence
Outcome
Leave granted in part; proposed defences of fair protected report, fair extract or abstract or summary, and reply to attack struck out; comment defence permitted subject to proper particulars.
Legal Topics
['leave to Amend Defence' 'comment' 'fair Protected Report' 'fair Extract or Abstract or Summary' 'reply to Attack' 'particulars' 'strike Out']
['defamation' 'civil Procedure'] ['leave to Amend Defence' 'comment' 'fair Protected Report' 'fair Extract or Abstract or Summary' 'reply to Attack' 'particulars' 'strike Out']

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Procedural Posture

Defamation Proceedings / Defendant's Notice of Motion for Leave to File a Further Amended Defence

Legal Issues

  1. 1 ['Whether the defendant should have leave to file a further amended defence.' 'Whether proposed defences of fair protected report and fair extract or fair abstract or summary were arguable.' 'Whether the defendant should be permitted to renew reliance on the defence of comment and whether particulars complied with Pt 67 r 17(3) of the SCR.' 'Whether the proposed defence of reply to attack was arguable.']

Ratio Decidendi

Leave to file the further amended defence was granted only subject to rulings. The proposed fair protected report and fair extract or abstract or summary defences could not succeed because the letter merely referred to proceedings and reports and did not purport to be a substantially accurate report, summary, extract or abstract of them. The comment defence was arguably open because the statements were capable of being understood as comment and the material for comment was arguably sufficiently identified, but particulars had to comply with Pt 67 r 17(3) of the SCR. The reply to attack defence was not arguable because the letter lacked the requisite connection with the plaintiff's earlier...

Court Disposition

Leave granted in part; proposed defences of fair protected report, fair extract or abstract or summary, and reply to attack struck out; comment defence permitted subject to proper particulars.

Orders

  • ["Subject to the following rulings, grant leave to the defendant to file the further amended defence within fourteen days of today's date." 'Particulars pursuant to Pt 67 r 17(3) of the SCR of the defence of comment that are currently identified in subparagraphs (viii) (a) and (b) are to be set out in the further...