Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688

Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688

Leave to amend the Defence is granted only for particulars which relate to applicant's specific conduct directly relevant to the subject matter and reputation sectors affected by the defamatory publication, and which are justifiable as a matter of case management and proportionality. Particulars relating to opinions, motivations, regulatory findings, and peripheral conduct are not permitted. Costs awarded to applicant due to the limited success of respondents and the necessity of the opposition.

Parties
Applicant: Peter David Schiff; First Respondent: Nine Network Australia Pty Ltd; Second Respondent: The Age Company Pty Ltd; Third Respondent: Nicholas McKenzie (and others named in the Schedule); Fourth Respondent: Charlotte Grieve; Fifth Respondent: Joel Tozer
Jurisdiction
Australia
Judgment Date
23 June 2023
Procedural Posture
Defamation Proceeding / Interlocutory Application for Leave to Amend Defence
Outcome
Leave partially granted; leave refused in respect of some particulars, granted in respect of others. Respondents directed to pay costs thrown away and costs of the application.
Legal Topics
Mitigation of Damages, Amendment of Pleadings, Admissibility of Evidence, Case Management, Burstein Principle
Defamation Mitigation of Damages Amendment of Pleadings Admissibility of Evidence Case Management Burstein Principle

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 20 Party arguments 2
Sign in to unlock

Parties

Peter David Schiff

Applicant

Nine Network Australia Pty Ltd

First Respondent

The Age Company Pty Ltd

Second Respondent

Nicholas McKenzie (and others named in the Schedule)

Third Respondent

Charlotte Grieve

Fourth Respondent

Joel Tozer

Fifth Respondent

Procedural Posture

Defamation Proceeding / Interlocutory Application for Leave to Amend Defence

Legal Issues

  1. 1 Whether particulars of directly relevant background context in mitigation of damages are defective
  2. 2 Whether the Burstein principle is confined to evidence of misconduct as opposed to facts
  3. 3 Whether evidence of opinions held by regulators or agencies is admissible

Ratio Decidendi

Leave to amend the Defence is granted only for particulars which relate to applicant's specific conduct directly relevant to the subject matter and reputation sectors affected by the defamatory publication, and which are justifiable as a matter of case management and proportionality. Particulars relating to opinions, motivations, regulatory findings, and peripheral conduct are not permitted. Costs awarded to applicant due to the limited success of respondents and the necessity of the opposition.

Court Disposition

Leave partially granted; leave refused in respect of some particulars, granted in respect of others. Respondents directed to pay costs thrown away and costs of the application.

Orders

  • Leave granted to respondents to file a Further Amended Defence in accordance with reasons.
  • Respondents to pay the applicant's costs thrown away by the amendment and the applicant's costs of the application to file the Further Amended Defence.