Thunder Studios Inc (California) v Kazal (No 10) [2020] FCA 1636

Thunder Studios Inc (California) v Kazal (No 10) [2020] FCA 1636

The particulars relating to the applicant's prior conduct concerning the 2010 Sydney Morning Herald article, the ICAC inquiry, or Cayman Islands proceedings are not sufficiently connected to the assessment of damages and fall outside the admissible background context as required by the Burstein principles. These particulars are struck out as not directly relevant to the damages assessment.

Jurisdiction
Australia
Judgment Date
22 October 2020
Procedural Posture
Defamation and Injurious Falsehood Claim With Misleading and Deceptive Conduct Alleged Under Consumer Law / Interlocutory Judgment on Admissibility of Particulars in Mitigation of Damages During Trial
Outcome
Application to strike out particulars in mitigation partially granted.
Legal Topics
['mitigation of Damages' 'admissibility of Evidence' 'provocation in Defamation' 'assessment of Damages']
['defamation' 'evidence' 'consumer Law'] ['mitigation of Damages' 'admissibility of Evidence' 'provocation in Defamation' 'assessment of Damages']

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Procedural Posture

Defamation and Injurious Falsehood Claim With Misleading and Deceptive Conduct Alleged Under Consumer Law / Interlocutory Judgment on Admissibility of Particulars in Mitigation of Damages During Trial

Legal Issues

  1. 1 ["Whether respondents' particulars in mitigation of damages are admissible where there is no defence on record" "Whether applicant's alleged conduct directly provoked the defamatory publication complained of" "Whether certain material is sufficiently connected to assessment of damages or applicant's credibility"]

Ratio Decidendi

The particulars relating to the applicant's prior conduct concerning the 2010 Sydney Morning Herald article, the ICAC inquiry, or Cayman Islands proceedings are not sufficiently connected to the assessment of damages and fall outside the admissible background context as required by the Burstein principles. These particulars are struck out as not directly relevant to the damages assessment.

Court Disposition

Application to strike out particulars in mitigation partially granted.

Orders

  • ["Paragraph 1(a)(i), (b) and (c) of the respondents' particulars relied on in mitigation dated 22 October 2020 are struck out."]