Lee & Ors v Keddie & Ors [2009] NSWSC 777

Lee & Ors v Keddie & Ors [2009] NSWSC 777

Clause 5 of the deed excluded the contemplated defamation proceedings from the deed's application and was intended to preserve the parties' entitlement to litigate all issues arising in those proceedings. In that forensic context, the consent dismissal of the earlier proceedings disposed of those proceedings without limiting the defendants' rights in the defamation proceedings, so no issue estoppel arose and the challenged particulars of justification were not struck out.

Jurisdiction
Australia
Judgment Date
07 August 2009
Procedural Posture
Defamation Proceedings / Plaintiffs' Notice of Motion to Strike Out Particulars of Justification in the Amended Defence
Outcome
Plaintiffs' notice of motion dismissed with costs.
Legal Topics
['issue Estoppel' 'dismissal of Earlier Proceedings' 'consent Orders' 'deed of Release' 'particulars of Justification' 'defence of Justification' 'construction of Settlement Deed']
['defamation' 'civil Procedure' 'estoppel' 'contract Construction'] ['issue Estoppel' 'dismissal of Earlier Proceedings' 'consent Orders' 'deed of Release' 'particulars of Justification' 'defence of Justification' 'construction of Settlement Deed']

Case Brief

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Procedural Posture

Defamation Proceedings / Plaintiffs' Notice of Motion to Strike Out Particulars of Justification in the Amended Defence

Legal Issues

  1. 1 ['Whether the order dismissing earlier proceedings precluded the defendants from raising similar factual and legal issues as particulars of justification in later defamation proceedings by operation of issue estoppel.' "Whether the deed of release, particularly cl 5 excluding potential defamation proceedings, preserved the parties' entitlement to litigate all issues arising in the contemplated defamation proceedings."]

Ratio Decidendi

Clause 5 of the deed excluded the contemplated defamation proceedings from the deed's application and was intended to preserve the parties' entitlement to litigate all issues arising in those proceedings. In that forensic context, the consent dismissal of the earlier proceedings disposed of those proceedings without limiting the defendants' rights in the defamation proceedings, so no issue estoppel arose and the challenged particulars of justification were not struck out.

Court Disposition

Plaintiffs' notice of motion dismissed with costs.

Orders

  • ["The plaintiffs' notice of motion filed 15 July 2009 be dismissed." "The plaintiffs pay the defendants' costs."]