Shari-Lea Hitchcock v John Fairfax Publications Pty Limited [2007] NSWSC 7 | Case summary

20245/05 Shari-Lea Hitchcock v John Fairfax Publications Pty Limited JUDGMENT 1 His Honour: This is the plaintiff's application by notice of motion filed 5 October 2006 for an order under Pt 14, r 14.28(1)(a) and (b) that several paragraphs of the further amended defence filed 24 October 2006 be struck out on grounds that they disclose no reasonable defence and/or are embarrassing. By consent, the questions raised by the plaintiff's objections that some of the contextual imputations were incapable of being conveyed by the matter complained of proceeded as separate questions for decision under Pt 28, r 28.2. 2 The applicable test remains as stated in General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, pp 129, 130 which requires demonstration that the matter pleaded is so obviously untenable that it cannot possibly succeed, or is manifestly groundless. If reasonable minds may differ about the conclusion to be drawn the issue must be left for trial. 3 The matter complained of was an article published by the defendant in the edition of the newspaper "The Sun Herald" of 26 June 2005 (the article). It is in the following terms: "SHARI-LEA Hitchcock's impromptu solo dirty dancing at a function celebrating the new INXS Rock Star TV series last week may have successfully raised the profile of Richard Pratt's former mistress for a nanosecond, but it has done little to commend the ex-North Wollongong Hotel bikini model to pay TV executives. Well, actually that's not entirely true. One married pay TV executive was very impressed indeed. So much so that the grey-haired Lothario exchanged saliva with Hitchcock in a nauseating display that turned the stomachs of pretty much everyone in the room on Tuesday night. As fellow guests at the Civic Hotel diverted their eyes to prevent themselves from being transformed into pillars of salt, Hitchcock's behaviour became increasingly erratic as the night wore on. Even though she told one publication she had been invited to the event, organisers claim she was not on the official guest list. Must just be an INXS fan, we suppose. I'm sure there's a name for that … [Photograph of Plaintiff] DIRTY DANCING: Shari-lea Hitchcock". 4 On 8 February 2006, at the trial pursuant to s 7A Defamation Act 1974 (the Act), the jury found that the matter complained of conveyed the following imputations and that each was defamatory:

(4) The matter complained of was published on an occasion of qualified privilege, (a) at common law and/or, (b) pursuant to s 22 of the Act. Public interest 7 A ground of objection common to the defences of truth, contextual truth, and comment, paras 4, 5, 6 respectively, was that neither the imputations nor the comment relate to matters of public interest as pleaded by the defendant and, accordingly, these defences should be struck out. 8 To succeed, the defendant is required to establish a nexus between the imputation or comment and a matter of public interest. That is to say, the act or condition of the plaintiff identified in the imputation or comment must be shown to relate to a matter of public interest. Guidance for the identification of a matter of public interest in a particular case may be gained from oft-quoted cases. 9 In London Artists Ltd v Littler [1969] 2 QB 375, Lord Denning said (p 391): "… There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. A good example is South Hetton Coal Co Ltd v North-Eastern News Association Ltd . A colliery company owned most of the cottages in the village. It was held that the sanitary conditions of those cottages - or rather their insanitary condition - was a matter of public interest. Lord Esher MR said ([1894] 1 QB at p 140) that it was "a matter of public interest that the conduct of the employers should be criticised". There the public were legitimately concerned . Here the public are legitimately interested . Many people are interested in what happens in the theatre. The stars welcome publicity. They want to be put at the top of the bill. Producers wish it too. They like the house to be full. The comings and goings of the performers are noticed everywhere. When three top stars and a satellite all give notice to leave at the same time - thus putting a successful play in peril - it is to my mind a matter of public interest on which everyone, press and all, are entitled to comment freely". 10 In Chappell v TCN Channel Nine Pty Limited (1988) 14 NSWLR 153, Hunt, J (p 165) observed that the mischief which was sought to be remedied by the statutory requirement that the imputation relate to a matter of public interest was the gratuitous destruction of reputation permitted by the defence of truth alone which is available at common law. He noted that this country does not have the "public figure" defence afforded by the First Amendment in the United States recognised in New York Times Co. v Sullivan (1964) 376 US 254. He held that "… unless the public figure makes his private activity a matter of public interest himself … that private activity can be a matter of public interest only if it has some bearing upon his capacity to perform his public activities". He said (p 167): "A public figure's private behaviour or character can become a matter of public interest in one of two ways - either because it affects the performance of his public duties (a proposition which I discussed earlier) or because he makes it such a matter himself. If the plaintiff had in fact deliberately put himself forward to the public as subscribing to such high standards in his private behaviour, so that he could be taken as having appealed to the public for its judgment on that private behaviour, he cannot then be heard to say that the public does not have the right to pronounce the judgment which he asked of it: cf Dwyer v Esmonde (1877) 11 Ir R (CL) 542 at 550 and Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532; 51 WN 178". 11 In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 the majority, Dawson, McHugh, Gummow, JJ authoritatively stated (p 215) "… a subject of public interest meant the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion". Their Honours emphasised (pp 218-220) that a subject of public interest is to be understood to refer to the conduct or performance of a person engaged in such activities. 12 Relevantly, in Mutch v Sleeman (1929) 29 SR (NSW) 125, Ferguson, J held that it could not be said that a libel related to a matter of public interest merely because the plaintiff was a public figure. He said (p 137): "It is not enough that the plaintiff was a public man. The mere fact that a man is a politician, or is engaged in some occupation which brings him into public notice, is not of itself enough to make his private life a matter of public interest, so as to justify the kind of defamatory comment to which, so far as his public activities are concerned, he must submit as one of the incidents of his position". 13 It follows, in my understanding, that to obtain a finding that a plaintiff's conduct relates to a matter of public interest it is necessary for a defendant to show that such conduct occurred in the course of the plaintiff's engagement or participation in an activity which is of legitimate concern to the public at large or to a substantial section of it. That is to say, in an activity which is of significance to the Australian public, which is to be distinguished from an activity which is personal or private in nature. The plaintiff's objection in this case raises the question whether the act or condition encapsulated in each of the imputations relates to a matter of concern to the public at large. 14 In Green v Schneller [2000] NSWSC 548, Simpson, J (para 24) pointed out that, having regard to the test posed in Bellino, it is insufficient for the defendant to establish that members of the public reading the article might find themselves interested in its assertions about the conduct of the plaintiff. 15 The defendant has pleaded particulars of facts and matters relied upon to show that the imputations relate to a matter of public interest. It submitted that the case it intends to make at the trial is that the plaintiff has deliberately put herself before the public as a person whose views are significant and worthy of attention, and who was the mistress of Mr Pratt, a well known industrialist. It was put that in such circumstances the plaintiff has become a public figure with the consequence that, expressly or inferentially, she should be taken as having invited public criticism of her conduct at the INXS function as described in the article and specified in the imputations. 16 Part 15, r 15.21(1)(a) requires the pleading of particulars of the facts, matters and circumstances on which the defendant relies to establish that any imputation or comment was, or related to, a matter of public interest. In Sims v Wran [1984] 1 NSWLR 317, Hunt, J (p 326) observed that the rule does not require the defendant to identify the subject or matter of public interest, but requires particulars of the facts and matters relied upon to establish the relationship of the imputation or comment to it. However, he suggested that a defendant would be wise to identify the particular subject or matter of public interest in such particulars. 17 In its further amended defence the defendant included particulars of the facts and matters relied upon to establish that the plaintiff's imputations and the contextual imputations relate to matters of public interest. They are: "The Plaintiffs (sic) Imputations and the Contextual Imputations relate to matters of public interest by reason of the following facts and matters: (a) the plaintiff has, over a period of a number of years, actively sought publicity and, in particular, has invited publicity and public attention which would not have been accorded to her were it not for her adulterous relationship with a prominent married man, Richard Pratt. Her seeking publicity and public attention is evidenced by:" (sub-paras (i) to (vii) specify material in newspapers and magazines about the plaintiff; and the fact that she posed naked as a model for an erotic picture for public exhibition; and that she appeared as a panellist in the television programme "Beauty and the Beast"; and that she allowed media coverage of her private functions such as birthday parties; and that she gave interviews in which she discussed aspects of her relationship with Mr Pratt and their daughter). "(b) it may be inferred from the fact that the plaintiff would not have attracted publicity and attention to herself (as set out in (a) above) had she not carried on an adulterous relationship with Richard Pratt, that the plaintiff used or took advantage of that relationship to attract such publicity and attention; (c) in her public appearances, such as on the "Beauty and the Beast" program and in magazine interviews, the plaintiff has put herself forward as a person whose views are of significance and interest; (d) the matter complained of related to: (i) the behaviour in public of a person who occupied the public spotlight by reason of her past behaviour and by reason of her own invitation of publicity and public attention in reliance on her relationship with Richard Pratt as referred to in (a), (b) and (c) above; (ii) the behaviour in public of a person who has conducted a long-running affair with a married man who is a leading public figure in Australia; (iii) the behaviour in public of a person who has enjoyed a certain celebrity as a result of her long-running public affair with a married man; (iv) the behaviour in public of a person who has courted media attention, in particular, arising out of her long running adulterous affair with one of Australia's richest men; each of which is inherently a matter of proper and legitimate interest to the public, particularly in the circumstances set out in paragraphs (a)(i)-(viii), (b) and (c) above". 18 In my opinion none of the matters specified in para (d) is a matter of public interest within the meaning of the relevant sections of the Act. The particulars refer only to the public behaviour of the plaintiff who is described, in effect, as a person who has invited and obtained public attention, mainly through media publicity. I do not accept that because the plaintiff's behaviour is brought before the public gaze from time to time it becomes a matter of public interest. In this field of discourse it does not follow that the conduct and activities of a person who is a creature of publicity or has become famous for being famous should automatically be taken to be such as to affect the public at large. The fact that the conduct is public does not, without more, make it a matter of public interest. What is required is that it is conduct of a kind which concerns the public and either inherently, expressly, or inferentially invites its criticism or discussion. (Mutch p 137; Chappell p 167; Bellino p 215). 19 It is self evident, in my opinion, that the matters referred to are not matters of public interest in that they are not such as to affect the public at large, and are not matters with which the public would be concerned in any legitimate way. Indeed it is difficult to see any basis upon which it could be said that there is a public interest in having information on any of the subjects. As Simpson, J said in Green (para 22): "Not every subject on which the interest of some members of the public might be whetted, is a matter of public interest". 20 This conclusion is fatal to the defences which require proof of the existence of a matter of public interest to which the imputations or comment are claimed to relate. However, lest this conclusion be wrong, it is appropriate to consider whether the imputations relate to the matters specified in para (d) on the assumption they are found to be of public interest. 21 The plaintiff's imputations and the contextual imputations are imputations about her conduct and behaviour in the course of what were described to be her activities during the INXS party. According to the particulars of truth of imputation (vii) that the plaintiff gatecrashed a function, the INXS party was not open to the general public and admission was limited to invited guests (para H(b), (e), (f), and (g)). 22 In my opinion the conduct described in each of the imputations does not relate to any activity of the plaintiff which is of concern to the public either as specified in para (d), or at all. None of the imputations allege misconduct in respect of any activity which affects the public at large, or which has any public importance whatsoever. The imputations are directed to her relationship with Mr Pratt as his former mistress, and to her behaviour at a social function which was not open to the public. I find that the conduct so described relates only to affairs and activities which are of a private and personal kind (cf: e.g. Baltinos v Australian Consolidated Press Limited [Unreported, NSWSC, 21 July 1995], p 27) and is remote from the matters described in para (d) however widely they may be construed. 23 In my opinion the defendant's contention that the imputations relate to matters of public interest is untenable. The relevant pleadings, taken at their highest, do not demonstrate the necessary nexus between the imputations and comment and any specified matter, or matters, of public interest. The inevitable consequence is that the defences of truth, contextual truth, and comment as pleaded in paras 4, 5, and 6 of the further amended defence should be struck out. Contextual imputations 24 Although I have held that the contextual truth defence should be struck out, it is appropriate to deal with the objections taken to the contextual imputations. Principally these were on the ground that the article was incapable of conveying them. 25 The principles applicable to the correct approach of the court on the question of capacity are well known. A court must keep in mind that a reasonable person can and does read between the lines in light of his general knowledge and experience of worldly affairs, and will draw implications much more freely than a lawyer, especially when they are derogatory. One must try to envisage people between those who are unusually suspicious and those who are unusually naive and see what is the most damaging meaning they would put on the words in question. The question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, and this must always be a matter of impression (see e.g. Lewis v Daily Telegraph Ltd [1964] AC 234, pp 258, 259, 277, 285). 26 The exercise of discretion in deciding whether or not an imputation should be struck out is to be undertaken with great caution. If reasonable minds may possibly differ about whether or not the matter complained of is capable of carrying a defamatory meaning that would be "… a strong, perhaps an insuperable, reason for not exercising the discretion to strike out" (Favell v Queensland Newspapers Limited [2005] HCA 52, para 6). 27 Imputation (i) is: "the plaintiff has engaged in a long-running public affair with a married man". 28 The article refers to the plaintiff as "Richard Pratt's former mistress". The plaintiff submitted that the article is incapable of conveying this imputation in that it provides no support for the description of the affair as a "long running public affair, with a married man". 29 In response, the defendant referred to a meaning given to the noun "mistress" in the Oxford English Dictionary namely: "7. a woman other than his wife with whom a man has a long-lasting sexual relationship". I note that in the Macquarie Dictionary (4th edition) one of the meanings is: "7. a woman with whom a man has a continuing extra-marital sexual relationship". In the circumstances, I accept the defendant's submission that the description "mistress" in the article provides arguable support for an imputation that the plaintiff has engaged in a long-running affair with a married man. 30 With regard to the adjective "public", the defendant submitted that it was reasonably open for the reader of the whole of the article to infer that the plaintiff's relationship with Mr Pratt, said to be a widely known person, was a public one. It was put that the style of writing, and the way in which the plaintiff was portrayed, convey the impression that the affair was conducted in public. In my opinion, the phrase "Richard Pratt's former mistress", in context, is incapable of conveying the meaning that the plaintiff had engaged in a "public affair with a married man", long standing or not. The imputation does not refer to, and would not be understood to be limited to, an affair with Mr Pratt. Furthermore, even if it be accepted that Mr Pratt was a public figure, I fail to see how the mere identification of the plaintiff as his mistress supports the conclusion that they carried on their affair in public. I find that the use of the adjective "public" cannot be supported, and, accordingly, the imputation as pleaded should be struck out. 31 Imputation (iii) is: "the plaintiff is prepared to engage in sexual misconduct, including adultery, with married men". 32 The plaintiff submitted that the article is incapable of supporting the inclusion of the words "including adultery" in this imputation. Objection was also taken on the basis that by use of the phrase "is prepared to engage in" the imputation impermissibly asserts a general tendency on the part of the plaintiff, whereas the activities attributed to her were confined to one occasion. 33 In my opinion, there is sufficient material in the article which provides arguable support for the imputation namely, the description of her as a former mistress, and the descriptions of her solo dirty dancing, of her nauseating display when kissing a married man, and the assertion of increasingly erratic behaviour as the night wore on. In the circumstances, I find this imputation is capable of arising. 34 Imputation (iv) is: "the plaintiff engages in exhibitionist behaviour in public of a sexual nature". 35 Objection was taken on the ground that the article was incapable of conveying this imputation. It was put that the description of her activities on a specific occasion could not be understood by the ordinary reasonable reader to mean that the plaintiff had a general tendency to engage in such conduct on other occasions. In response, the defendant referred to the account of her solo dirty dancing, and of the display of her kissing a married man in view of guests attending the function as likely to lead the reader to conclude that the plaintiff had a general tendency to draw attention to herself on occasions not limited to the INXS function. 36 An "exhibitionist" is "someone who intentionally behaves in a way that draws attention to their actions, personality, etc". "Exhibitionism" is "a tendency to display one's abilities or to behave in such a way as to attract attention" (Macquarie Dictionary, 4th edition). 37 I accept the defendant's submissions. Having regard to the whole of the article I find the imputation is capable of arising. 38 Imputation (v) is: "the plaintiff is an exhibitionist". 39 The plaintiff's objections were similar to those made to imputation (iv). When confronted with the proposition that this imputation did not differ in substance from (iv), Senior Counsel for the defendant stated that the word "exhibitionist" should be understood to mean "a person who makes a foolish spectacle of herself". So understood, I find that the imputation differs in substance from (iv). I also find it capable of arising for the same reasons given in respect of (iv). 40 Imputation (vi) is: "the plaintiff is a person who is prepared to lie". 41 Objection was taken on the ground that the article was incapable of conveying this imputation. It was put that as the article is concerned with only one occasion on which it was said that she lied (cf: plaintiff's imputation (c)), it cannot be reasonably understood to mean that the plaintiff has a general tendency to lie. For the defendant it was put that, when the sentence referring to her claim that she was invited to the event is considered in the context of the whole of the article, the issue is arguable, and therefore the imputation should not be struck out. Essentially, it was put that it was open to conclude that the plaintiff was a generally discreditable person, and likely to lie if it suited her to do so. 42 With some misgiving, I am persuaded that the imputation is capable of arising. I decline to strike it out. 43 Imputation (vii) is: "the plaintiff gatecrashed a social function". 44 Objection is taken that the imputation does not differ in substance from the plaintiff's imputation (d) which is: "that the plaintiff had gatecrashed a social function knowing she was not invited". 45 The defendant contended that the phrase "knowing she was not invited" in imputation (d) rendered its defamatory sting more serious than that carried by imputation (vii). In my opinion, however, the plaintiff's objection should be upheld. To gatecrash a party or an event is ordinarily understood to mean to attend it uninvited. I find imputation (vii) to be merely a shade or gradation of meaning of, and does not differ in substance from, imputation (d). Accordingly, this imputation should be struck out. 46 In summary, I find imputations (iii), (iv), (v), and (vi) are capable of being conveyed by the article. If it were necessary to do so I would order that imputations (i) and (vii) be struck out. Comment 47 In addition to the public interest issue, the plaintiff submitted that imputations (a) and (b) were incapable of amounting to comment, with the consequence that the defence should be struck out. Having regard to the whole of the article by which these imputations were conveyed my opinion is that the question is arguable. I would decline to strike out the defence on this ground. Qualified privilege 48 The defence of qualified privilege at common law is in para 7(a). It was challenged on the ground that the particulars provided no basis for asserting that the defendant had a social or moral duty to publish the libellous imputations, or that readers of the matter complained of had a reciprocal interest in having the publication made to them. Senior Counsel for the defendant confirmed that the particulars relied upon were those pleaded in support of the defence under s 22 of the Act, particularly those relevant to the issue of reasonableness. Subsequently (T p 66) he explained that he relied on the principles in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 which, he conceded, was not accepted as the law in Australia. I assume he was referring to the decision of the Court of Appeal in John Fairfax & Sons Limited v Vilo (2001) 52 NSWLR 373, in which it was held that in the absence of some strong reason of principle or policy, the traditional law relating to the common law defence of qualified privilege in its application to protection of publications to large audiences or to the general public as propounded in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 should continue to be applied in New South Wales in preference to any extension to the traditional law which may be propounded in Reynolds. 49 The defendant, without formally abandoning this defence, accepted that I was bound to strike it out, and I propose to do so. 50 To the defence under s 22 of the Act, pleaded in para 7(b), objection was taken on the grounds, firstly, that it was not open to the defendant to assert that recipients of the matter complained of had any interest or apparent interest in having published to them information which included the imputations found by the jury and, secondly, that it did not appear from the particulars relevant to the issue of reasonableness that the defendant would assert that, prior to publication, it had sought the plaintiff's reaction. 51 As I have found that it is not open for the defendant to assert that the plaintiff's imputations relate to matters of public interest, in my opinion the plaintiff's objection on the first ground should be upheld. The necessary interest for the purposes of s 22(1)(a) of the Act includes any matter of genuine interest to the readership of the newspaper, and connotes an interest in knowing a particular fact, not simply as a matter of curiosity, but as a matter of substance apart from its mere quality as news (Barbaro v Amalgamated Television Services Pty Limited (1985) 1 NSWLR 30, p 40; Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354, p 359). In my opinion there is no reasonable basis for maintaining that the readership of the article has an interest or an apparent interest in information on the plaintiff's conduct as encapsulated in the imputations. Accordingly I propose to order that para 7(b) be struck out. 52 As for the second ground, the plaintiff submitted that the absence of a particular to the effect that prior to publication it had sought the plaintiff's reaction, and/or of a particular in support of an excuse for failure to seek her reaction, was fatal to the defendant's case that its conduct in publishing the matter complained of was reasonable in the circumstances. 53 In response, the defendant referred to s 22(2A) of the Act which provides that in determining whether the conduct of the publisher was reasonable in the circumstances the court may take into account the matters listed in sub-paras (a) to (h), and such other matters as it considers relevant. The matters described in sub-para (g) are "whether the matter published contained the substance of the person's side of the story, and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the person". 54 It is apparent from the terms of s 22(2A) that proof of reasonable conduct is not dependent upon proof of the matters in sub-para (g). Indeed, for the plaintiff it was conceded that there was no such rule (T p 69). In my opinion, the absence of particulars of the kind referred to by the plaintiff does not render the pleading of the defence under s 22 of the Act defective and, accordingly, the objection on this ground fails. Publication in the Australian Capital Territory, Queensland and Tasmania 55 It follows from the determination in the plaintiff's favour of the public interest issue in respect of the New South Wales defences that similar defences to publication in the Australian Capital Territory, Queensland and Tasmania of which a subject or matter of public interest is a necessary component should also be struck out. These are paras 10, 13(b), and 14(b). 56 Public benefit is pleaded as a necessary component of the defences in paras 8 and 9. Senior Counsel for the defendant accepted in effect (T p 81) that if the defendant did not succeed on the issue of public interest it would not succeed on the issue of public benefit. Accordingly paras 8 and 9 should be struck out. 57 Paragraph 12 pleads the defence of qualified privilege at common law to publication in the Australian Capital Territory. It must be struck out. (See paras 48, 49 above). Polly Peck defences 58 Additional objection was taken to the defences pleaded in para 9 being defences of truth in respect of publication in the Australian Capital Territory, Queensland, and Tasmania under the principles in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000. In para 9(a) the defendant pleaded the same imputations as it did in the contextual truth defence in respect of publication in New South Wales (para 5(a)). In the alternative in sub-paras 9(b), (c), and (d), it pleaded imputations said to be not separate and distinct from the plaintiff's imputations. 59 I reviewed the principles concerning the approach to be taken to issues under a Polly Peck defence in Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204. I held that an imputation which is a contextual imputation under s 16 of the Act is one which is substantially different from, and separate and distinct from, the plaintiff's imputation and, therefore, outside the ambit of alternative imputations available to the defendant under Polly Peck. To preserve its position the defendant formally submitted that Ron Woodham was wrongly decided. In response, it is sufficient to state that I find there is no reason for me not to adhere to my decision and, accordingly, I propose to order para 9(a) be struck out. 60 In John Fairfax Publications Pty Limited v Zunter [2006] NSWCA 227 (para 42) the Court of Appeal confirmed the rejection of a Polly Peck defence based on an imputation not separate and distinct from the plaintiff's imputation as being a defence not recognised by the common law of Australia. Accordingly, I propose to order that para 9(b), (c), and (d) be struck out, and it follows that 9(e) should also be struck out. Conclusion 61 Although no specific submissions were made in respect of the defences pleaded in paras 13(a), and (c), and 14(a) and (c), as I understand the pleading their fate also depended upon the outcome of the public interest issue. On this basis those paragraphs should also be struck out. 62 The effect of the plaintiff's success on this application is that the defendant is left without any substantial grounds of defence, and that the further amended defence should be struck out. Subject to any question of leave being granted to the defendant to further amend its defence, it would be appropriate to direct that the proceedings be set down for assessment of damages. 63 In the circumstances, opportunity should be given to the parties to be heard on any question of costs, failing agreement, and as to the future conduct of these proceedings. Orders 64 The court orders that:

Shari-Lea Hitchcock v John Fairfax Publications Pty Limited

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