DEFAMATION — practice and procedure — application for leave to amend pleadings to include imputations not included in original concerns notice — whether potential limitation argument precludes amendment — whether proposed imputations differ in substance
Quick Take
1Following Newman v Whittington [2022] NSWSC 1725, the prohibition in s 12B of the Defamation Act 2005 (NSW) requiring service of a concerns notice before commencing proceedings does not apply to amendments of extant defamation proceedings to add new imputations, particularly where the new imputations are the same or substantially the same as those in the original concerns notice — though the Court of Appeal in Whittington v Newman [2024] NSWCA 27 left the broader question open.
2A potential limitation defence under s 14B of the Limitation Act 1969 (NSW) does not justify refusing leave to amend a statement of claim where the defendant has not yet pleaded the statutory bar or brought a strike-out application supported by admissible evidence; the burden of raising and establishing the limitation bar rests on the defendant.
3Proposed imputations that are more particularised versions of existing imputations — placing them in temporal context or specifying a modus operandi — may be 'substantially the same' for s 12B(2) purposes but may nonetheless 'differ in substance' under UCPR r 14.30(3), requiring the plaintiff to elect between them where they do not differ in substance from each other.
