Carolan v Fairfax Media Publications Pty Ltd (No 5) [2015] NSWSC 1560

Carolan v Fairfax Media Publications Pty Ltd (No 5) [2015] NSWSC 1560

Leave to amend the defence was refused because the proposed truth particulars were sought on the first day of trial, the new case involved a degree of irrationality in seeking to justify an evaluative imputation about the plaintiff's conduct by the bare fact of having Mr X as a client, the defendants could have obtained the critical document earlier by timely inspection of discovered documents, and fairness to the plaintiff weighed against allowing an amendment that would create manifest forensic prejudice. The defendants were also not permitted to call the plaintiff on the amendment application because the inquiry was speculative, potentially intruded into client legal privilege, was...

Jurisdiction
Australia
Judgment Date
27 October 2015
Procedural Posture
Defamation Proceedings / Procedural Ruling on Defendants' Application on First Day of Trial to Amend Defence; Ruling on Subpoena
Outcome
Application to amend defence refused; subpoena to Mr Tim Unsworth set aside after the defendants withdrew it.
Legal Topics
['application to Amend Defence' 'truth Defence' 'honest Opinion Defence' 'prejudice From Late Amendment' 'calling Plaintiff on Amendment Application' 'subpoena Set Aside']
['defamation' 'civil Procedure' 'evidence'] ['application to Amend Defence' 'truth Defence' 'honest Opinion Defence' 'prejudice From Late Amendment' 'calling Plaintiff on Amendment Application' 'subpoena Set Aside']

Case Brief

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Procedural Posture

Defamation Proceedings / Procedural Ruling on Defendants' Application on First Day of Trial to Amend Defence; Ruling on Subpoena

Legal Issues

  1. 1 ['Whether the defendants should be granted leave on the first day of trial to amend particulars of the truth defence to imputation (b).' 'Whether prejudice to the plaintiff from the proposed amendment was manifest or required proof by evidence.' 'Whether the defendants should be permitted to call the plaintiff as their witness on the amendment application to test alleged prejudice.' 'Whether a subpoena issued to Mr Tim Unsworth should be set aside under r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW).']

Ratio Decidendi

Leave to amend the defence was refused because the proposed truth particulars were sought on the first day of trial, the new case involved a degree of irrationality in seeking to justify an evaluative imputation about the plaintiff's conduct by the bare fact of having Mr X as a client, the defendants could have obtained the critical document earlier by timely inspection of discovered documents, and fairness to the plaintiff weighed against allowing an amendment that would create manifest forensic prejudice. The defendants were also not permitted to call the plaintiff on the amendment application because the inquiry was speculative, potentially intruded into client legal privilege, was...

Court Disposition

Application to amend defence refused; subpoena to Mr Tim Unsworth set aside after the defendants withdrew it.

Orders

  • ['Leave to amend the defence refused.' 'The subpoena dated 13 October 2015 issued at the request of the defendants to Mr Tim Unsworth of Unsworth Legal set aside.' 'Documents produced to the Registry in answer to the subpoena to be returned to Mr Unsworth.']