Fairfax Media Publications v Zeccola [2015] NSWCA 329

Fairfax Media Publications v Zeccola [2015] NSWCA 329

The primary judge erred by striking out the default contextual imputations on the basis that they did not differ in kind from the respondents' imputations; s 26 requires only that contextual imputations differ in substance, and the default imputations were capable of being other imputations carried in addition to the respondents' imputations. The primary judge did not err in striking out the reasonable grounds to suspect imputations because the matters complained of did not speak in terms of any suspicion held by any individual person or authority and were not about the existence of a reasonably held suspicion.

Jurisdiction
Australia
Judgment Date
23 October 2015
Procedural Posture
Defamation Appeal / Application for Leave to Appeal and Appeal From Orders Striking Out Contextual Imputations Pleaded in Defence
Outcome
Leave to appeal granted; appeal allowed in part; primary judge's order set aside insofar as it struck out the appellants' default contextual imputations; appeal otherwise dismissed.
Legal Topics
['defence of Contextual Truth' 'section 26 Defamation Act 2005 (nsw)' 'contextual Imputations' 'strike Out Application' 'reasonable Suspicion Imputations']
['torts' 'defamation' 'civil Procedure'] ['defence of Contextual Truth' 'section 26 Defamation Act 2005 (nsw)' 'contextual Imputations' 'strike Out Application' 'reasonable Suspicion Imputations']

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Procedural Posture

Defamation Appeal / Application for Leave to Appeal and Appeal From Orders Striking Out Contextual Imputations Pleaded in Defence

Legal Issues

  1. 1 ["Whether s 26 of the Defamation Act 2005 (NSW) requires contextual imputations to differ from the plaintiff's imputations in kind as well as in substance." "Whether the appellants' default contextual imputations were capable of being other imputations carried in addition to the respondents' imputations." 'Whether it is appropriate to strike out contextual imputations before trial.' 'Whether the reasonable grounds to suspect contextual imputations were capable of being carried by the matters complained of.' "Whether leave should be granted to appeal from the primary judge's strike-out orders."]

Ratio Decidendi

The primary judge erred by striking out the default contextual imputations on the basis that they did not differ in kind from the respondents' imputations; s 26 requires only that contextual imputations differ in substance, and the default imputations were capable of being other imputations carried in addition to the respondents' imputations. The primary judge did not err in striking out the reasonable grounds to suspect imputations because the matters complained of did not speak in terms of any suspicion held by any individual person or authority and were not about the existence of a reasonably held suspicion.

Court Disposition

Leave to appeal granted; appeal allowed in part; primary judge's order set aside insofar as it struck out the appellants' default contextual imputations; appeal otherwise dismissed.

Orders

  • ['Grant leave to appeal.' 'Appellants to file the notice of appeal in the form of the draft appearing in the White Book at page 34 within seven days.' 'Appeal allowed in part.' "Set aside order 1 made by McCallum J on 13 March 2014 insofar as her Honour struck out the appellants' contextual imputations 19(a)(i), and...