New South Wales Consolidated Regulations

UNIFORM CIVIL PROCEDURE RULES 2005 - REG 15.28

15.28 Particulars in relation to defences of comment and honest opinion

(cf SCR Part 67, rule 17(3)-(6); DCR Part 49, rule 16(3)-(6))

(1) Defences under Division 7 of Part 3 of Defamation Act 1974 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of comment under Division 7 of Part 3 of the Defamation Act 1974 must include--

(a) particulars identifying the material on which it is alleged that the matter alleged to be comment was comment and identifying to what extent that material is alleged to be proper material for comment, and

(b) as to material alleged to be proper material for comment, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation.

(c) if the defendant relies on a defence under section 33 of that Act--particulars identifying the servant or agent of the defendant whose comment it is alleged to be.

Note : A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974 .

(2) Defences under section 31 of Defamation Act 2005 Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of honest opinion under section 31 of the Defamation Act 2005 must include--

(a) particulars identifying the material on which it is alleged that the matter alleged to be an opinion was an opinion and identifying to what extent that material is alleged to be proper material, and

(b) as to material alleged to be proper material, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation, and

(c) if the defendant relies on a defence under section 31(2) of that Act--particulars identifying the employee or agent of the defendant whose opinion it is alleged to be, and

(d) if the defendant relies on a defence under section 31(3) of that Act--particulars identifying the commentator whose opinion it is alleged to be.

Note : A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24(1) of the Defamation Act 2005 .

(3) Defence of fair comment at common law Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of fair comment at common law must include--

(a) particulars identifying the material on which it is alleged that the matter alleged to be comment was comment and identifying to what extent that material is alleged to be based on true facts or material that was published under privilege, and

(b) as to material alleged to be true facts or material that was published under privilege, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation.

Note : See note to subrule (2).