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District Court 30 July 2015

Rothe v Scott (No. 2)

[2015] NSWDC 143

Other
TORT DEFAMATION

Citation: Rothe v Scott (No. 2) [2015] NSWDC 143
Court: District Court of New South Wales
Date: 30 July 2015
Judge: Gibson DCJ

Background

The plaintiff brought a defamation claim against the defendant arising from imputations in a matter complained of. One of the imputations concerned an allegation that the plaintiff had allowed convicted paedophiles to reside at properties he operated, described in the matter complained of as two motels and a restaurant, located near bus stops used by children.

The defendant had previously pleaded a defence of justification under s 25 of the Defamation Act 2005 (NSW), but that defence was struck out in the earlier decision of Rothe v Scott [2015] NSWDC 105. It was struck out because the particulars were wholly inadequate: they identified no specific paedophiles, no properties, and no timeframes, and the defendant had refused to answer the plaintiff's requests for further particulars on the basis that the relevant information simply was not available.

The defendant then sought to reinstate the justification defence in relation to two of the three imputations. The proposed new particulars consisted of a single sentence that essentially repeated the gist of the original allegation, with a further statement that the names of the relevant individuals would be provided following discovery, subpoenas, and notices to produce.

  • Whether the defendant could reinstate a previously struck-out defence of justification where the repleaded particulars remained substantively inadequate.
  • Whether a material change in circumstances or newly discovered material existed to justify revisiting the earlier ruling striking out the defence.
  • Whether a defendant pleading justification in defamation is entitled to defer providing particulars until after discovery, interrogatories, subpoenas, or notices to produce.

Decision

Gibson DCJ refused the application to reinstate the defence of justification. The proposed new particulars were, if anything, less informative than those that had already been struck out. They named no individuals, identified no specific properties, and provided no timeframes. The accompanying statement that particulars would be provided after discovery was not a proper response to a request for particulars.

The defendant's counsel argued that the former solicitor had been negligent in not objecting to the request for particulars and that the change of legal representation constituted a fresh circumstance warranting reconsideration. Gibson DCJ rejected this submission. Applying the principles in Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313, the court found there was no material change in circumstances and no newly discovered material that could not have been placed before the court on the original application.

On the substantive legal question, Gibson DCJ confirmed that the rule against deferring justification particulars pending discovery is longstanding and settled. A defendant must be in a position to justify the accusation on existing materials. An unparticularised defence of justification is no defence at all, and a defendant cannot seek to use the discovery process to fish for evidence that might, at some future point, support such a plea.

The court also noted that even where a party seeks to anonymise individuals to avoid what they characterise as providing discovery of evidence, this is not permissible. Where allegations involve specific conduct by identifiable third parties, the plaintiff is entitled to know the names of those persons and the relevant times and places.

Orders Made

  • The hearing date of 20 August 2015 was vacated on the defendant's application to amend the defence.
  • The defendant was granted leave to file an Amended Defence limited to defences of qualified privilege (under s 30 of the Defamation Act 2005 and at common law), honest opinion, and unlikelihood of harm.
  • The defendant was ordered to pay the plaintiff's costs occasioned by the vacation of the hearing date on an indemnity basis, including the costs of the application.
  • The Amended Defence was to be filed and served within 21 days.
  • The defendant's application to reinstate the justification defence was refused.
  • The matter was stood over to the Defamation List on 27 August 2015.

Key Takeaways

  • A defendant pleading justification in defamation must provide full particulars based on existing materials before any discovery takes place. The rule that a defendant is not entitled to discovery for the purpose of determining whether a justification defence exists has been settled for centuries and was reaffirmed in this decision.
  • Under the principles in Amalgamated Television Services v Marsden, an application to reinstate a previously struck-out defence requires either a material change in circumstances or the discovery of material that could not reasonably have been placed before the court on the original application. A change of solicitor does not satisfy this threshold.
  • Where allegations involve the conduct of identifiable third parties, particulars of justification must include the names of those individuals along with the relevant times and places. Withholding names on the basis that their disclosure would amount to discovery of evidence is not a legitimate approach.
  • An unparticularised justification defence does not merely fail to assist the defendant's case; it is no defence at all, and is liable to be struck out under UCPR r 14.28 as embarrassing, irrelevant, or otherwise an abuse of process.
  • Costs consequences can be significant where a hearing date is vacated as a result of a defendant's late and inadequate attempt to amend. The District Court here ordered indemnity costs flowing from the vacation of the hearing date.

Legislation and Cases Referenced

Legislation
- Defamation Act 2005 (NSW), s 25 (justification), s 30 (qualified privilege)
- Uniform Civil Procedure Rules 2005 (NSW), r 14.28

Cases
- Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313
- Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
- Marshall v Smith [2013] WASC 432
- Rothe v Scott [2015] NSWDC 105
- Sali v Australian Broadcasting Corporation (No 2) [2013] VSC 719
- Sims v Wran [1984] 1 NSWLR 317
- Wootton v Sievier [1913] 3 KB 499