Palmer v McGowan [2021] FCA 430

Palmer v McGowan [2021] FCA 430

Most of Mr Palmer's contextual truth pleas should not be struck out because, applying the cautious approach required on strike out applications, questions of capacity, difference in substance and comparative sting were generally arguable and better determined at trial. However, Contextual Imputations 11, 15, 16, 19, 21, 27 and 29 were struck out because some were vague or imprecise, some did not differ in substance from Mr McGowan's pleaded imputations, and some were not capable of arising from the relevant impugned matter.

Jurisdiction
Australia
Judgment Date
27 April 2021
Procedural Posture
Defamation Proceeding With Cross Claim / Interlocutory Application Under R 16.21 of the Federal Court Rules 2011 (cth) to Strike Out Particulars of the Defence of Contextual Truth in the Cross Claim
Outcome
Application upheld in part.
Legal Topics
['contextual Truth' 'strike Out of Pleadings' 'defamatory Imputations' 'capacity of Publications to Convey Imputations' 'pleading Specificity']
['defamation' 'civil Procedure'] ['contextual Truth' 'strike Out of Pleadings' 'defamatory Imputations' 'capacity of Publications to Convey Imputations' 'pleading Specificity']

Case Brief

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Procedural Posture

Defamation Proceeding With Cross Claim / Interlocutory Application Under R 16.21 of the Federal Court Rules 2011 (cth) to Strike Out Particulars of the Defence of Contextual Truth in the Cross Claim

Legal Issues

  1. 1 ["Whether the contextual imputations pleaded by Mr Palmer in defence to Mr McGowan's cross-claim were capable of arising from the impugned matters." 'Whether the contextual imputations differed in substance from the imputations pleaded by Mr McGowan.' "Whether the contextual imputations raised a sting exceeding the sting of Mr McGowan's pleaded imputations." 'Whether some contextual imputations were vague, embarrassing, imprecise or otherwise deficient in pleading form.']

Ratio Decidendi

Most of Mr Palmer's contextual truth pleas should not be struck out because, applying the cautious approach required on strike out applications, questions of capacity, difference in substance and comparative sting were generally arguable and better determined at trial. However, Contextual Imputations 11, 15, 16, 19, 21, 27 and 29 were struck out because some were vague or imprecise, some did not differ in substance from Mr McGowan's pleaded imputations, and some were not capable of arising from the relevant impugned matter.

Court Disposition

Application upheld in part.

Orders

  • ["The Contextual Imputations 11, 15, 16, 19, 21, 27 and 29 pleaded in the Cross-Respondent's defence are struck out." 'The remaining applications in the interlocutory application of the Cross-Claimant filed on 9 November 2020 are dismissed.']