Boikov v Network Ten Pty Ltd; Boikov v Nationwide News Pty Ltd [2017] NSWDC 88

Boikov v Network Ten Pty Ltd; Boikov v Nationwide News Pty Ltd [2017] NSWDC 88

Given the proximity of the trial, the lateness of the plaintiff’s application to amend, and uncontested evidence of likely truth of contextual imputations, leave to amend is only appropriate if subject to a condition: leave to amend is to be revoked nunc pro tunc for any imputation substantially proved true, so as to preserve the defendants’ ability to rely on the s 26 Defamation Act 2005 (NSW) defence. The exercise of discretion favours such a conditional order to prevent abuse of process and ensure procedural justice.

Jurisdiction
Australia
Judgment Date
01 May 2017
Procedural Posture
Civil Defamation / Interlocutory; Application for Leave to Amend Statement of Claim; Orders on Procedural Issues Ahead of Trial
Outcome
Leave to amend granted subject to condition preserving defendants' contextual justification defence; costs reserved to the trial judge; document production orders made.
Legal Topics
['pleading Amendments' 'contextual Imputations' 'late Amendment' 'contextual Justification Defence' 'civil Procedure Orders']
['tort' 'defamation' 'civil Procedure'] ['pleading Amendments' 'contextual Imputations' 'late Amendment' 'contextual Justification Defence' 'civil Procedure Orders']

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Procedural Posture

Civil Defamation / Interlocutory; Application for Leave to Amend Statement of Claim; Orders on Procedural Issues Ahead of Trial

Legal Issues

  1. 1 ["Whether plaintiff should be granted leave to amend the statement of claim to plead back defendants' contextual imputations" 'Whether such leave should be granted with the condition that it be revoked nunc pro tunc if any imputation is proved substantially true, preserving the s 26 Defamation Act 2005 (NSW) contextual justification defence']

Ratio Decidendi

Given the proximity of the trial, the lateness of the plaintiff’s application to amend, and uncontested evidence of likely truth of contextual imputations, leave to amend is only appropriate if subject to a condition: leave to amend is to be revoked nunc pro tunc for any imputation substantially proved true, so as to preserve the defendants’ ability to rely on the s 26 Defamation Act 2005 (NSW) defence. The exercise of discretion favours such a conditional order to prevent abuse of process and ensure procedural justice.

Court Disposition

Leave to amend granted subject to condition preserving defendants' contextual justification defence; costs reserved to the trial judge; document production orders made.

Orders

  • ['Grant leave to Dailymail to produce documents in court per notice/subpoena, marked as if under subpoena by the Subpoena Registry in both Boikov v Network Ten Pty Ltd (2015/220364) and Boikov v Nationwide News Pty Ltd (2015/220729)' "Orders in accordance with the confidentiality regime set out in the 'Order dated...