Purcell v Cruising Yacht Club of Australia [2001] NSWSC 257

Purcell v Cruising Yacht Club of Australia [2001] NSWSC 257

The Court found that none of the pleaded imputations could arise on the published material, striking out all the imputations and granting leave to replead. Imputations of guilt or responsibility for death were not supported, nor were repetitious minor variations in wording. The second plaintiff was not sufficiently identified in the publication to sustain a claim in injurious falsehood. Particulars of malice were excessive and argumentative, requiring amendment. The statutory claims were dependent on the fate of the imputations and so were not finally determined, but could stand until after any amended claim.

Parties
First Plaintiff: Richard Gordon Purcell; Second Plaintiff: Allure Marketing Pty Limited; First Defendant: Cruising Yacht Club of Australia Pty Ltd; Second Defendant: Johanne Christian Hugo Van Kretschmar; Third Defendant: Peter Bush
Jurisdiction
Australia
Judgment Date
10 April 2001
Procedural Posture
Motion to Strike Out Pleadings in Defamation/injurious Falsehood Proceeding / Interlocutory Application, Supreme Court, Common Law Division
Outcome
Plaintiffs' imputations struck out; second plaintiff's claim dismissed; leave to replead granted
Legal Topics
Injurious Falsehood, Striking Out Pleadings, Imputations, Malice Particulars, Summary Disposal, Vicarious Liability
Defamation Torts Trade Practices Injurious Falsehood Striking Out Pleadings Imputations Malice Particulars Summary Disposal +1 more

Case Brief

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Parties

Richard Gordon Purcell

First Plaintiff

Allure Marketing Pty Limited

Second Plaintiff

Cruising Yacht Club of Australia Pty Ltd

First Defendant

Johanne Christian Hugo Van Kretschmar

Second Defendant

Peter Bush

Third Defendant

Procedural Posture

Motion to Strike Out Pleadings in Defamation/injurious Falsehood Proceeding / Interlocutory Application, Supreme Court, Common Law Division

Legal Issues

  1. 1 Whether the pleaded imputations are capable of arising from the conduct alleged
  2. 2 Whether the second plaintiff has a cause of action in injurious falsehood
  3. 3 Whether particulars of malice comply with legal requirements

Ratio Decidendi

The Court found that none of the pleaded imputations could arise on the published material, striking out all the imputations and granting leave to replead. Imputations of guilt or responsibility for death were not supported, nor were repetitious minor variations in wording. The second plaintiff was not sufficiently identified in the publication to sustain a claim in injurious falsehood. Particulars of malice were excessive and argumentative, requiring amendment. The statutory claims were dependent on the fate of the imputations and so were not finally determined, but could stand until after any amended claim.

Court Disposition

Plaintiffs' imputations struck out; second plaintiff's claim dismissed; leave to replead granted

Orders

  • Plaintiffs' imputations 7(a)-(p) struck out
  • Second plaintiff's (Allure Marketing Pty Limited) claim for injurious falsehood dismissed and judgment for defendants