Ultrasonic Slimming Pty Ltd v Fairfax Media Publications Pty Ltd [2013] NSWSC 1987

Ultrasonic Slimming Pty Ltd v Fairfax Media Publications Pty Ltd [2013] NSWSC 1987

At the interlocutory stage, the Court allowed only imputations that were at least arguable and sufficiently distinct. Imputations (b) and (j)(i) were disallowed as not substantially dissimilar from other imputations. The word "wrongly" was struck out because, in the pleaded imputations, it was ambiguous, insufficiently particularised or superfluous. Imputations against the Second Plaintiff were not struck out merely because she was unnamed, as it was arguable that persons acquainted with her could identify her as the First Plaintiff's owner, director and controller and that the articles could impugn her. The "incompetence" imputation concerning the Third Plaintiff was arguable at this...

Jurisdiction
Australia
Judgment Date
01 July 2013
Procedural Posture
Defamation Proceedings / Interlocutory Objections to Pleaded Imputations in the Amended Statement of Claim; Reasons for Ex Tempore Orders
Outcome
Some pleaded imputations were struck out, some were allowed, and the Plaintiffs were ordered to particularise alleged incompetence.
Legal Topics
['defamatory Imputations' 'strike Out of Imputations' 'pleadings' 'identification of Unnamed Plaintiff' 'ambiguous Imputations' 'repetitious Imputations']
['defamation' 'civil Procedure'] ['defamatory Imputations' 'strike Out of Imputations' 'pleadings' 'identification of Unnamed Plaintiff' 'ambiguous Imputations' 'repetitious Imputations']

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Procedural Posture

Defamation Proceedings / Interlocutory Objections to Pleaded Imputations in the Amended Statement of Claim; Reasons for Ex Tempore Orders

Legal Issues

  1. 1 ['Whether the challenged imputations in paragraph 6 of the Amended Statement of Claim arguably arose from the published articles.' 'Whether an imputation that the Third Plaintiff was incompetent arguably arose from the articles.' 'Whether imputations concerning the Second Plaintiff arose notwithstanding that she was not named in the articles.' 'Whether the word "wrongly" was permissible in the pleaded imputations.' 'Whether some imputations were repetitious and not substantively different from other pleaded imputations.' 'Whether imputations referring to "surgery" or "cosmetic surgery" arose from articles concerning Botox injections.']

Ratio Decidendi

At the interlocutory stage, the Court allowed only imputations that were at least arguable and sufficiently distinct. Imputations (b) and (j)(i) were disallowed as not substantially dissimilar from other imputations. The word "wrongly" was struck out because, in the pleaded imputations, it was ambiguous, insufficiently particularised or superfluous. Imputations against the Second Plaintiff were not struck out merely because she was unnamed, as it was arguable that persons acquainted with her could identify her as the First Plaintiff's owner, director and controller and that the articles could impugn her. The "incompetence" imputation concerning the Third Plaintiff was arguable at this...

Court Disposition

Some pleaded imputations were struck out, some were allowed, and the Plaintiffs were ordered to particularise alleged incompetence.

Orders

  • ['Imputations (b), (h)(i) [on the basis of the use of the word "surgery" only], (j)(i) and (n)(ii) contained in paragraph 6 of the Amended Statement of Claim (as amended in correspondence and discussion between the parties) be struck out.' 'Imputations (c)(i), (c)(ii), (f)(i), (i)(i), (m), (n)(i), (n)(ii) be...