Enders v Erbas & Associates Pty Ltd [2012] NSWDC 129

Enders v Erbas & Associates Pty Ltd [2012] NSWDC 129

Leave to amend the defence to reinstate particulars of qualified privilege was granted as the amendments did not fundamentally change the defendants' case and discovery agreed previously was deemed adequate. The strike out application succeeded only in relation to the Reply's assertion of a wrongful failure to apologise, which is not a proper particular of malice; other particulars were allowed to stand for trial determination.

Parties
Plaintiff: Sylvia Enders; First Defendant: Erbas & Associates Pty Ltd; Second Defendant: Ken Gurcan Erbas
Jurisdiction
Australia
Judgment Date
24 August 2012
Procedural Posture
Civil (defamation) / Interlocutory Applications (leave to Amend Defence and Strike Out Reply Particulars)
Outcome
Interlocutory orders: Leave granted to amend defence on conditions; certain reply particulars struck out; costs orders made; matter stood over for further directions.
Legal Topics
Defamation—qualified Privilege, Pleading Amendments—case Management, Strike Out Applications—malice Particulars, Interlocutory Applications
Tort Defamation Civil Procedure Defamation—qualified Privilege Pleading Amendments—case Management Strike Out Applications—malice Particulars Interlocutory Applications

Case Brief

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Parties

Sylvia Enders

Plaintiff

Erbas & Associates Pty Ltd

First Defendant

Ken Gurcan Erbas

Second Defendant

Procedural Posture

Civil (defamation) / Interlocutory Applications (leave to Amend Defence and Strike Out Reply Particulars)

Legal Issues

  1. 1 Whether to grant leave to defendants to amend particulars of qualified privilege defence after allocation of trial date
  2. 2 Whether certain particulars in the plaintiff's Reply should be struck out, specifically with regard to malice and conduct post-publication
  3. 3 Scope and timing for discovery obligations

Ratio Decidendi

Leave to amend the defence to reinstate particulars of qualified privilege was granted as the amendments did not fundamentally change the defendants' case and discovery agreed previously was deemed adequate. The strike out application succeeded only in relation to the Reply's assertion of a wrongful failure to apologise, which is not a proper particular of malice; other particulars were allowed to stand for trial determination.

Court Disposition

Interlocutory orders: Leave granted to amend defence on conditions; certain reply particulars struck out; costs orders made; matter stood over for further directions.

Orders

  • Grant leave to defendants to file the Further Amended Defence to the Second Further Amended Statement of Claim on specified discovery conditions.
  • Defendants to provide copies of all discovered documents to Ms L Evans' chambers by the due date.