Gross v Weston & Anor [2007] NSWCA 1

Gross v Weston & Anor [2007] NSWCA 1

Although the District Court judge erred in some respects, including by requiring specification of an improper motive where the plaintiff relied on knowledge of falsity and by excluding the alleged falsity of the first defendant's s 7A evidence solely because of lapse of time, the proposed Amended Reply was still properly refused because its particulars were defective and failed to identify the facts and matters relied upon to establish the first defendant's alleged states of mind or any alternative improper motive.

Jurisdiction
Australia
Judgment Date
08 January 2007
Procedural Posture
Defamation Appeal / Appeal From District Court Decision Refusing Leave to File an Amended Reply; Leave to Appeal Had Been Granted
Outcome
Appeal dismissed.
Legal Topics
['qualified Privilege' 'improper Motive' 'express Malice' 'particulars of Pleadings' 'amended Reply' 's 7 a Defamation Act 1974 Hearing' 'relevance of Subsequent False Evidence to State of Mind']
['defamation' 'civil Procedure' 'evidence'] ['qualified Privilege' 'improper Motive' 'express Malice' 'particulars of Pleadings' 'amended Reply' 's 7 a Defamation Act 1974 Hearing' 'relevance of Subsequent False Evidence to State of Mind']

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Procedural Posture

Defamation Appeal / Appeal From District Court Decision Refusing Leave to File an Amended Reply; Leave to Appeal Had Been Granted

Legal Issues

  1. 1 ['Whether the District Court erred in refusing leave to file the proposed Amended Reply alleging that publication was actuated by express malice or improper motive.' 'Whether a plaintiff replying to a defence of qualified privilege must specify the improper motive relied upon.' 'Whether allegedly false evidence given by the first defendant in the s 7A trial could be relevant to her motive at the time of publication.' "Whether the particulars supplied by the plaintiff sufficiently identified the facts and matters relied upon to establish the first defendant's alleged states of mind."]

Ratio Decidendi

Although the District Court judge erred in some respects, including by requiring specification of an improper motive where the plaintiff relied on knowledge of falsity and by excluding the alleged falsity of the first defendant's s 7A evidence solely because of lapse of time, the proposed Amended Reply was still properly refused because its particulars were defective and failed to identify the facts and matters relied upon to establish the first defendant's alleged states of mind or any alternative improper motive.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'Each party is to pay her and its own costs.']