Edwards v Nine Network Australia Pty Ltd (No 2)

Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332 is a Federal Court procedural decision in a defamation case. The Court was not deciding whether the publications were defamatory in the final sense, or whether Nine would ultimately succeed at trial. It was deciding two narrower but commercially important questions shortly before trial.

The first question was whether Nine should be allowed to amend its defence very late in the proceeding. The second was whether Nine should be allowed to cross-examine Ms Edwards on her affidavit of discovery. The Court allowed some amendments, refused others, dismissed the discovery cross-examination application, and ordered Nine to pay Ms Edwards' costs of the interlocutory application.

The underlying dispute arose from Nine broadcasts and articles about a cavoodle named Oscar. Ms Gina Edwards, a barrister, sued Nine Network Australia Pty Ltd, an affiliated company and a reporter for defamation. The judgment summarises the pleaded imputations as including that she was a thief who stole Oscar, stole Oscar for her own financial benefit, deliberately delayed a court case about Oscar, and exploited Oscar for her own financial benefit.

By the time this application was heard, the case was close to trial. The trial was listed to commence on 12 December 2022. That timing mattered throughout the judgment. The Court repeatedly focused on whether any procedural step would unfairly burden Ms Edwards or threaten the existing hearing date.

Nine sought to expand its defence. It wanted to add a new justification defence, add a new contextual imputation in support of contextual truth, and revise or add particulars. Nine said these changes were based mostly on documents obtained after the original defence was filed, including documents produced under subpoena and documents obtained through Ms Edwards' discovery. Nine's position was that gathering and analysing those materials took time.

Ms Edwards opposed the amendments. Her position was that the changes came too late, that the delay had not been adequately explained, and that allowing the amendments would cause serious prejudice. In practical terms, she said she would not be able to properly prepare for trial if new topics, facts or issues were introduced only a little over a month before the hearing.

Nine also attacked aspects of discovery. It pointed to text messages and emails that had been deleted from Ms Edwards' electronic devices and were no longer in her possession. Nine wanted to cross-examine her on her discovery affidavit, including to identify internet or cloud service providers or relevant servers so it could consider further subpoenas. The Court had to decide whether that was a proper and useful step at that stage of the case.

On the amendment application, the Court said the principles were settled. A late amendment shortly before trial involves a discretionary balancing exercise. Relevant considerations include the nature and importance of the amendment, the extent of the delay, the explanation for delay, costs, prejudice to the other side, the parties' forensic choices to date, the effect on other litigants if a trial date is lost, and public confidence in the administration of justice.

The Court accepted that it can be very significant to deprive a party of an arguable defence because of tardiness in pleading it. That consideration deserved real weight. But it was not the only consideration. The Court also had to assess whether the delay was properly explained and whether the other side could fairly meet the new case without losing the trial date or suffering prejudice that costs could not fix.

On discovery, the Court summarised the usual principles for cross-examination on an affidavit of discovery. An affidavit verifying discovery is generally accepted as conclusive as to adequacy. Cross-examination for the purpose of showing discovery is inadequate will ordinarily not be permitted. A workable test is whether there are reasonable grounds for being fairly certain that other relevant documents exist. Even where discovery is deficient, the usual remedy is a further affidavit of discovery, not cross-examination.

So the Court was not simply asking whether Nine wanted more procedural tools. It was asking whether the proposed steps were legally justified, practically useful, and fair in the context of an imminent trial.

The Court was not persuaded that Nine had provided an adequate or reasonable explanation for all of its delay. The judge accepted that it took time to gather documents, but found that Nine had most of the documents said to support the amendments by early July 2022. Given the impending trial date, the Court said the amendment application should have been brought much sooner.

The judgment also points to a further problem. Nine had filed an earlier interlocutory application on 1 September 2022 seeking more limited amendments. The broader amendments later sought on 1 November 2022, especially the new justification defence, were not included in that earlier application. The Court said there was effectively no explanation for the delay between 1 September and 1 November.

The Court also noted an important feature of defamation litigation. A defendant who seeks to plead justification must generally do so on the basis of information in its possession when the defence is delivered, and is usually not permitted to undertake a fishing expedition in the hope of finding support for the plea. The judge did not find that Nine's subpoenas were necessarily an abuse of process, but considered it relevant that Nine did not possess the information on which it now sought to rely when it published the broadcasts and articles.

On prejudice, the Court accepted Ms Edwards' evidence that she would suffer irremediable prejudice if all proposed amendments were allowed and the trial still proceeded in just over a month. Some amendments raised new topics, facts or issues that would require further inquiries and possibly further evidence. The Court also accepted that Ms Edwards would suffer significant prejudice if the trial date had to be vacated, because a new trial date was unlikely until much later. The judge noted that he would not be able to hear the trial before October 2023 due to existing commitments.

That timing mattered especially because this was a defamation case. The Court said a major purpose of defamation proceedings is public vindication, and the longer vindication is delayed, the greater the risk that the purpose of the proceedings may be undermined. That is why the judgment repeatedly stresses the importance of preserving the December trial date.

The Court granted leave to make some, but not all, of the proposed amendments. The judge drew a practical line. Amendments that raised, or contributed to, an arguable defence and were unlikely to cause material prejudice if the trial proceeded in December were allowed. Amendments that did not raise an arguable defence, or that introduced new issues or facts Ms Edwards could not reasonably be expected to meet at the December trial, were refused.

The Court allowed Nine to insert a new justification defence, but only for certain pleaded imputations. Specifically, leave was granted in respect of the imputations in subparagraphs 7.1, 7.2, 10.1, 10.2, 13.1 and 16.1 of the statement of claim. The Court did not permit a justification defence in respect of the imputations in subparagraphs 7.4 and 10.3.

The Court also allowed a range of amended and additional particulars. Some were described as not major or significant and unlikely to cause real difficulty. Others added factual allegations, but the Court considered that they were mostly based on documentary evidence and would not truly take Ms Edwards by surprise.

However, the Court refused some proposed amendments. It refused the proposed new contextual imputation that Ms Edwards, as a lawyer, misled police in relation to the ownership of Oscar. The judge watched the broadcast, read the transcript and considered Nine's submissions, but was unable to accept that it was even arguable that this contextual imputation was conveyed. The Court also found that adding it would be unfair because it raised an entirely new topic or issue that Ms Edwards would have to investigate and address in very limited time.

The Court further refused a justification defence for the imputations that Ms Edwards had exploited Oscar for her own financial benefit. The reason was that the proposed particulars, even if proved, were incapable of establishing the truth of that imputation as pleaded. The judgment explains the distinction carefully. The particulars might support an allegation that Ms Edwards intended to obtain a benefit from Oscar's Instagram account in the future, but they could not show that she had already exploited Oscar for her own financial benefit at the time of publication. By contrast, the imputations that she stole Oscar for her own financial benefit were capable of being read as connoting a future intention to obtain a financial benefit, so the Court allowed the relevant particulars in support of those imputations.

The Court also refused one proposed particular because it was vague, imprecise and ambiguous, and because its breadth was likely to prejudice Ms Edwards' ability to meet it at the December trial.

One of the most practical parts of the judgment is that the Court did not simply say yes or no to the amendment application. It managed prejudice by limiting Nine's evidentiary case. In proving the new justification defence and the particulars supporting it, Nine was confined to the evidence identified in its existing outlines of evidence and the documents identified in Annexure B. If Nine wanted to rely on any further evidence, whether testimonial or documentary, it would need the Court's leave.

That matters for businesses because it shows how a court can permit a late amendment while still controlling the forensic consequences. A party may get part of what it wants, but not on an unrestricted basis. The court can narrow the evidence, preserve the timetable, and leave admissibility and relevance arguments to trial.

The judge also made clear that allowing new particulars did not mean the Court accepted that they were necessarily relevant, or that the documents in Annexure B were necessarily admissible. Ms Edwards remained free to object at trial. The Court also gave her until 5 December 2022 to file and serve any additional or supplementary outlines of evidence in response to the new particulars.

For a business reader, this is a reminder that a successful amendment application may still come with strict conditions. If you leave your case theory too late, the court may let you run only a constrained version of it.

The Court dismissed Nine's application to cross-examine Ms Edwards on her affidavit of discovery. The main complaint was that some text messages and emails referred to in discovery had been deleted from her electronic devices and were no longer in her possession. Nine criticised that deletion and said it wanted to question Ms Edwards to identify service providers or servers so it could seek further subpoenas.

The Court held that this was not a proper basis for permitting cross-examination before trial. Even if deleting the messages and emails might be open to criticism, that did not mean discovery was inadequate in the relevant sense or that cross-examination would produce further discovery. As the judge put it, Ms Edwards had, strictly speaking, discovered the deleted text messages. They were just no longer in her possession. Cross-examination would not result in her discovering further documents if they had in fact been deleted.

The Court said that if Nine wished to cross-examine Ms Edwards about the propriety or reasonableness of deleting messages or not retaining devices, it could do so at trial. But using discovery cross-examination as a way to gather information for further subpoenas was unrealistic so close to trial. The Court said Nine had already had ample opportunity to issue subpoenas and use other compulsory processes, particularly given the nature of the case. The judgment's language is blunt: enough is enough.

Nine also complained about another discovery issue involving text messages that referred to Oscar. Earlier correspondence showed a dispute about whether messages that merely referred to or pictured Oscar were discoverable. The Court was not persuaded that Ms Edwards' discovery was inadequate. Based on the examples provided, the judge considered those messages plainly irrelevant to any issue at trial and therefore not discoverable. Discovering them would have been, in the Court's words, an utter waste of time.

The result was that the discovery cross-examination application was dismissed in full.

The formal orders reflected the mixed but limited success of Nine's application. Nine was granted leave to file an amended defence in accordance with the reasons. The parties were directed to confer about whether the draft amended defence complied with the judgment. Ms Edwards was given time to file any additional or supplementary outlines of evidence in response.

But the amended interlocutory application was otherwise dismissed, which included the failed discovery cross-examination request. The Court also ordered Nine to pay Ms Edwards' costs of, and associated with, the interlocutory application.

The costs reasoning is important. The Court said it was entirely reasonable for Ms Edwards to oppose the application because the amendment request was made very late and the discovery application was unmeritorious. Although Nine had some success in obtaining limited leave to amend, it did not get all the amendments it sought. More significantly, the limited grant of leave could fairly be characterised as an indulgence. The Court saw no basis for making Ms Edwards pay costs referable to that indulgence. The Court also relied on Nine's inadequate explanation for delay and its complete failure on the discovery issue.

For businesses, this is a useful warning. Partial procedural success does not guarantee a favourable costs outcome. If your application is late, only partly successful, or includes weak procedural points, you may still end up paying the other side's costs.

This case should be read as a lesson in litigation discipline. If your business intends to rely on a substantial defence, especially one that depends on detailed factual allegations, you should identify it early and plead it as soon as reasonably possible. Courts may allow some late changes, but they will ask hard questions about delay, explanation, prejudice and trial readiness.

The decision also shows that trial dates matter. Once a hearing date is fixed, especially in a case where delay undermines the purpose of the proceeding, the court may prefer to preserve that date rather than allow a party to run every new point it wants to add. That can mean refusing amendments, limiting evidence, or both.

It also shows that discovery disputes should be raised properly and promptly. If there is a genuine issue about categories of documents, bring it to the court's attention in time. Do not wait until just before trial and then seek an unusual procedural step with little practical utility.

Finally, the case is a reminder that procedural applications can be expensive even when partly successful. A business can win some leave to amend and still lose on costs if the application is late, overreaches, or includes weak arguments.

The judgment was delivered on 8 November 2022 by Wigney J in the Federal Court of Australia. The hearing of the interlocutory application took place on 7 November 2022. The trial in the principal proceeding was listed to commence on 12 December 2022. The orders also required Nine to provide a draft amended defence by 10 November 2022, with further steps to follow depending on whether the parties agreed that the draft complied with the judgment. Ms Edwards was given until 5 December 2022 to file and serve any additional or supplementary outlines of evidence in response to the new particulars.

This remains an interlocutory ruling. It should not be treated as the final determination of the defamation proceeding.

This page is based on the Federal Court judgment in Edwards v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1332. The judgment itself says the reasons should be read with the earlier interlocutory judgment, Edwards v Nine Network Australia Pty Ltd [2022] FCA 509, for fuller background and context.

The case is best understood as a procedural authority about late amendments, discovery challenges and case management in defamation litigation.