Assaf v Skalkos [1999] NSWSC 1328

Assaf v Skalkos [1999] NSWSC 1328

The asserted trade terms contention was a matter which fell within Pt 15 r 13(2)(b) of the Supreme Court Rules because, if not pleaded specifically, it may take the plaintiffs by surprise; paragraph 4 of the second further amended defence did not sufficiently raise that matter, so on the present pleadings it was not open to the defendants to challenge the subject imputation by reference to asserted trade terms in the publications.

Jurisdiction
Australia
Judgment Date
09 November 1999
Procedural Posture
Defamation Proceedings / Ex Tempore Ruling During Trial on Whether Defendants Could Raise a Trade Terms Challenge to a Pleaded Imputation on the Existing Pleadings
Outcome
On the present pleadings, the defendants were not permitted to raise the challenge to the subject imputation by reference to asserted trade terms; they could seek leave to amend the second further amended defence to plead that matter specifically.
Legal Topics
['pleadings' 'defamatory Imputations' 'natural and Ordinary Meaning' 'trade Terms' 'specific Pleading' 'surprise' 'amendment of Defence']
['defamation' 'civil Procedure'] ['pleadings' 'defamatory Imputations' 'natural and Ordinary Meaning' 'trade Terms' 'specific Pleading' 'surprise' 'amendment of Defence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Defamation Proceedings / Ex Tempore Ruling During Trial on Whether Defendants Could Raise a Trade Terms Challenge to a Pleaded Imputation on the Existing Pleadings

Legal Issues

  1. 1 ['Whether, on the existing pleadings, the defendants could contend that words complained of should not be construed in their natural and ordinary meaning because they were trade terms.' 'Whether the defendants were required to plead specifically their contention about trade terms because otherwise it may take the plaintiffs by surprise.' 'Whether paragraph 4 of the second further amended defence sufficiently raised the trade terms contention.']

Ratio Decidendi

The asserted trade terms contention was a matter which fell within Pt 15 r 13(2)(b) of the Supreme Court Rules because, if not pleaded specifically, it may take the plaintiffs by surprise; paragraph 4 of the second further amended defence did not sufficiently raise that matter, so on the present pleadings it was not open to the defendants to challenge the subject imputation by reference to asserted trade terms in the publications.

Court Disposition

On the present pleadings, the defendants were not permitted to raise the challenge to the subject imputation by reference to asserted trade terms; they could seek leave to amend the second further amended defence to plead that matter specifically.

Orders

  • ['The matters raised by the defendants fall within r 13(2)(b) of the Supreme Court Rules and are not sufficiently raised by paragraph 4 of the defence.' 'The defendants may seek leave to amend the second further amended defence by specifically pleading matters associated with the alleged reference to trade terms in...