PERKINS v HARRIS [1995] NSWCA 364

PERKINS v HARRIS [1995] NSWCA 364

The defence of contextual truth under s16 Defamation Act 1974 (NSW) permits a defendant to plead contextual imputations, including those overlapping with the plaintiff’s, to each cause of action except the underlying imputation of that cause. Provided the defence is properly pleaded and particularised, the mere complexity does not warrant striking out under Pt15 r26(1)(b); the trial judge’s reasoning was inconsistent and the defence should not have been struck out.

Parties
Defendant: K Perkins; Plaintiff: A Harris
Jurisdiction
Australia
Judgment Date
26 May 1995
Procedural Posture
Interlocutory Appeal in Defamation Proceedings / Court of Appeal Judgment on Appeal From Interlocutory Order Striking Out Defence
Outcome
Appeal upheld. Striking out of para5 (the s16 defence) reversed.
Legal Topics
Defence of Truth, Contextual Imputations, Pleadings, Defamation Act 1974 (nsw), Supreme Court Rules Pt15 R26(1)(b)
Defamation Defence of Truth Contextual Imputations Pleadings Defamation Act 1974 (nsw) Supreme Court Rules Pt15 R26(1)(b)

Case Brief

Summary, issues, holding and outcome

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Parties

K Perkins

Defendant

A Harris

Plaintiff

Procedural Posture

Interlocutory Appeal in Defamation Proceedings / Court of Appeal Judgment on Appeal From Interlocutory Order Striking Out Defence

Legal Issues

  1. 1 Whether a defendant may plead contextual imputations, including those that overlap with plaintiff’s imputations, under s16 of the Defamation Act 1974 (NSW)
  2. 2 Whether the defendant’s s16 contextual imputations sufficiently differed in substance from plaintiff’s imputations to justify allowing the defence
  3. 3 Whether striking out para5 of the defence under Supreme Court Rules Pt15 r26(1)(b) was proper

Ratio Decidendi

The defence of contextual truth under s16 Defamation Act 1974 (NSW) permits a defendant to plead contextual imputations, including those overlapping with the plaintiff’s, to each cause of action except the underlying imputation of that cause. Provided the defence is properly pleaded and particularised, the mere complexity does not warrant striking out under Pt15 r26(1)(b); the trial judge’s reasoning was inconsistent and the defence should not have been struck out.

Court Disposition

Appeal upheld. Striking out of para5 (the s16 defence) reversed.

Orders

  • Appeal upheld.
  • Para5 of defence restored (order striking it out set aside).