Edwards v Giles

Catchwords: CIVIL PROCEDURE – application to strike out paragraphs of defence – where paragraphs do not adequately plead material facts – application granted in part

Legislation Cited: Civil Liability Act 2002 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) r 14.28

Cases Cited: Edwards v Nine Network Australia Pty Limited (No 9) [2025] FCA 1042
Hearne v Street (2008) 235 CLR 125
TCS ACES Pty Limited v Mikohn Gaming Australasia Pty Limited [2007] NSWSC 1139
Unicomb v Blais (2024) 115 NSWLR 155

Category: Procedural rulings

Parties: Gina Edwards (Plaintiff)
Rebekah Giles (First Defendant)
Giles George Pty Ltd (Second Defendant)

Representation: Counsel:
Plaintiff (self-represented)
M Castle (Defendants)
Solicitors:
Rose Legal (Defendants)

File Number(s): 2025/00277303

JUDGMENT – DUTY – EX TEMPORE (REVISED)

Introduction

1. A notice of motion filed by Ms Gina Edwards on 12 November 2025 seeks the following orders:-

2. Pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), paragraphs [4], [5], [9], [14], [22] including sub-paragrahs thereto, sub-paragraph [38b], paragraph [64] insofar as it repeats paragraph [22], [74] – [78], [79] and [80] of the Defendant’s Defence filed 19 September 2025 be struck out on the grounds that:-

(a) They disclose no reasonable defence; (b) They are embarrassing, evasive, have a tendency to cause prejudice, or delay in the proceedings.

2. In the alternative, that the Defendant be directed to file and serve an Amended Defence that complies with the Rules and properly pleads any material facts relied upon, within 14 days of the date of this order.

3. The Defendant pay the Plaintiff’s costs of and incidental to this motion.

4. Any other or further order deemed necessary by the Court.

5. In short, the plaintiff alleges that the impugned paragraphs noted above are defective because they:-

(a) Incorporate evidence by reference instead of pleading material facts; (b) Assert scandalous or hollow conclusions without material facts; (c) Plead an impermissible “estoppel”, relying on an affidavit never read in evidence and subject to the principles in Hearne v Street (2008) 235 CLR 125; (d) Are internally inconsistent and embarrassing; and (e) Plead “obvious risk” defences that are legally irrelevant to the pleaded causes of action.

3. The Statement of Claim alleges negligence and breaches of the Australian Consumer Law with respect to legal services provided by the defendant or defendants to the plaintiff in defamation proceedings in the Federal Court of Australia in the period 2021 to 2024. The plaintiff is a practising barrister.

4. I note that on 28 August 2025, Wigney J of the Federal Court of Australia made orders transferring the matter known as Edwards v Nine Network Australia Pty Limited & Ors (in which the second defendant is Intervenor) to the Supreme Court of New South Wales: see Edwards v Nine Network Australia Pty Limited (No 9) [2025] FCA 1042 (“the Related Proceedings”). Whilst there has been delay in the transfer of the file following his Honour’s orders, I observe that there is every likelihood that those proceedings will be consolidated with the instant proceedings.

Evidence

5. The following evidence was before me on the hearing of the motion:

6. An affidavit of the plaintiff Gina A Edwards sworn on 11 November 2025 with three annexures;

7. An affidavit of Kieran Allan Pulley sworn on 8 December 2025 with an exhibit of 72 pages;

8. Short email correspondence.

9. The affidavit of Ms Edwards annexes correspondence between the parties between 6 – 10 November 2025, the Statement of Claim and the Defence.

10. The affidavit of Mr Pulley annexes correspondence including a letter dated 8 December 2025 giving reasons why the impugned paragraphs of the defence ought not to be struck out.

Out of time

8. By order of the Court on 13 October 2025, the plaintiff was ordered to file the motion by 27 October 2025, which she failed to do. On 6 November 2025, the plaintiff wrote to the defendants identifying the strike-out issues and inviting them to amend within 10 days. On 10 November 2025, the defendants asserted that the plaintiff was out of time, refused to amend the defence and indicated an intention to seek an adjournment of the proceedings. The motion was filed on 12 November 2025, 16 days late. On 17 November 2025, leave was granted to the plaintiff for the filing and service of the motion out of time. The plaintiff therefore arguably requires leave to proceed on the motion out of time. I accept the plaintiff’s explanation that the delay was occasioned by her attempting to resolve the dispute without the need to ventilate the issues in court, and I cannot identify any prejudice on the part of the defendants should the motion proceed today. I will therefore grant leave to the plaintiff to proceed on her motion so that the real issues in dispute can be determined.

Part 14.28

9. Part 14.28 of the Uniform Civil Procedure Rules 2005 (“UCPR”) provides:-

14.28 Circumstances in which court may strike out pleadings

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

10. The law with respect to Part 14.28 is clear and needs not be repeated. The plaintiff essentially alleges that discrete parts of the defence do not or do not adequately plead material facts or do not otherwise comply with the usual rules of pleading.

11. I will now turn to each of the impugned paragraphs of the defence.

Paragraph 4

12. Paragraph 4 of the defence, referring to an alleged telephone call between the plaintiff and the first defendant currently says:

“The defendants do not admit paragraph 4 of the SOC but say that they will reply on the full context of the call as a matter of evidence.”

13. The plaintiff says that such a pleading is impermissible and that the defendants must plead the effect of the telephone call for which they contend: see TCS ACES Pty Limited v Mikohn Gaming Australasia Pty Limited [2007] NSWSC 1139 at [7] per Brereton J.

14. In my view, it is permissible for the defendants to not admit the paragraph and put the plaintiff to proof and I adopt the defendants’ submission that the words from “but” until the end of the sentence are “surplusage”. They should be struck out. I grant leave to replead, should the defendants wish.

Paragraph 5

15. Paragraph 5 suffers from the precise same vice, and I strike out the words “on the full context of the call and”. The agreement is admitted at paragraph 10, so that may be left in the defence. I grant leave to replead, should the defendants wish.

Paragraph 9

16. Paragraph 9 suffers from the same vice. If the defendants wish to rely on the full meaning of the email, it should set out the effect for which they contend. I strike out the words “but rely on the attached costs agreement within the email for its full meaning and effect.” I grant leave to replead, should the defendants wish.

Paragraph 14

17. Paragraph 14 says:

“The defendants deny paragraph 14 of the SOC and say that the allegations are improperly made and are liable to be struck out.”

18. It may be that the allegations are liable to be struck out, but no application has been made. I strike out the words “and say that the allegations are improperly made and are liable to be struck out”. I grant leave to replead, should the defendants wish.

Paragraph 22

19. As to paragraph 22(a) and (b), it likewise fails to articulate the effect of the emails for which it contends. I therefore strike out the words in 22(a) “and further say they rely on the email for its full context and effect”. I grant leave to replead, should the defendants wish.

Paragraph 38(b)

20. As to paragraph 38(b), it repeats paragraph 22 of the defence. As paragraph 22 will be amended, I make no order with respect to paragraph 38(b).

Paragraph 64

21. Paragraph 64 likewise repeats paragraph 22(a) of the defence. As paragraph 22 will be amended, I make no order with respect to paragraph 38(b).

Paragraphs 74-78

22. Paragraphs 74-78 plead an estoppel in answer to the whole of the Statement of Claim. It is a matter for the trial judge to determine whether or not an estoppel is made out to the effect alleged by the defendants. The plaintiff claims that the alleged estoppel relies on an affidavit that was not read in the Related Proceedings and because of the implied undertaking articulated in Hearne v Street (2008) 235 CLR 125, reliance on the material contained in that affidavit will be precluded in these proceedings. The defendants say that it is inevitable that the Related Proceedings will be consolidated with the instant proceedings so that evidence in one will be evidence in another. Further the defendants say that the affidavit was not produced under “compulsion”, and they rely on the judgment of McGrath J in Unicomb v Blais (2024) 115 NSWLR 155 at [247]–[251], and observe that it is pleaded in the plaintiff’s Statement of Claim.

23. There is no evidence on this motion about the status of the affidavit, merely assertions by both parties. In the circumstances, in my view, the effect or otherwise of any implied undertaking ought to be left to the trial judge. I make no order with respect to paragraphs 74-78.

Paragraph 79

24. Contrary to the plaintiff’s submissions, paragraph 79 is an orthodox pleading on causation. I make no order with respect to it.

Paragraph 80

25. As to paragraph 80 of the defence, it picks up several provisions of the Civil Liability Act 2002 (NSW) that are usually applied to personal injury litigation. I confess to not seeing those sections deployed in such a matter previously. However, that they are novelly deployed does not mean that a trial judge should not consider them. I propose to make no order with respect to paragraph 80.

26. I make the following orders:-

27. To the extent necessary, I give leave to the plaintiff to proceed on her motion filed on 12 November 2025.

28. I strike out the words “but say that they will rely on the full context of the call as a matter of evidence” from paragraph 4 of the defence but give leave to the defendants to replead that paragraph.

29. I strike out the words “on the full context of the call and” in paragraph 5 of the defence but give leave to the defendants to replead that paragraph.

30. I strike out the words “but rely on the attached costs agreement within the email for its full meaning and effect” in paragraph 9 of the defence but give leave to the defendants to replead that paragraph.

31. I strike out the words “and say that the allegations are improperly made and are liable to be struck out” in paragraph 14 of the defence but give leave to the defendants to replead that paragraph.

32. I strike out the words “and further say they rely on the email for its full context and effect” in paragraph 22(a) of the defence but give leave to the defendants to replead that paragraph.

33. The defendants are to file and serve an amended defence by close of business on 19 December 2025.

34. The plaintiff is to file and serve any Reply upon which she proposes to rely by close of business on 16 January 2026.

35. I vacate the listing before the Registrar on 15 December 2025 and relist the matter before the Registrar on 17 February 2026.

36. As there has been mixed success on the motion, costs are to be costs in the cause.

**********