Kelly v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 166

Kelly v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 166

Assuming, as a matter effectively required by Kermode, that a defendant may in some circumstances contingently adopt a plaintiff's alternative imputation as a contextual imputation, the plaintiff's fallback bribery imputations in this case were not capable of satisfying s 26 because the earlier ruling established that their only difference from the corruption imputations was a difference in degree of seriousness, not a difference in kind. The defendants were otherwise permitted to plead contextual imputations that alleged discrete misconduct such as deliberate non-disclosure, dishonest cover-up, and conflict of interest in signing a lease, but were not permitted to plead contextual...

Jurisdiction
Australia
Judgment Date
28 February 2014
Procedural Posture
Defamation Action / Interlocutory Application Concerning Objections to Parts of a Proposed Amended Defence Pleading Contextual Truth
Outcome
Defendants granted leave to file an amended defence in accordance with the reasons.
Legal Topics
['contextual Truth' 'defamatory Imputations' 'alternative Imputations' 'pleading Objections' 'strike Out of Pleadings']
['defamation' 'civil Procedure'] ['contextual Truth' 'defamatory Imputations' 'alternative Imputations' 'pleading Objections' 'strike Out of Pleadings']

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Procedural Posture

Defamation Action / Interlocutory Application Concerning Objections to Parts of a Proposed Amended Defence Pleading Contextual Truth

Legal Issues

  1. 1 ['Whether, on the proper construction of s 26 of the Defamation Act 2005, it is open to a defendant to plead back as a contextual imputation an imputation relied upon by the plaintiff only as a fallback or alternative imputation.' 'Whether particular contextual imputations pleaded by the defendants complied with the requirements of s 26 of the Defamation Act 2005 and settled pleading principles.' "Whether particular contextual imputations were bad in form, ambiguous, confusing, conveyed multiple stings, incapable of arising, or incapable of arising in addition to the plaintiff's imputations."]

Ratio Decidendi

Assuming, as a matter effectively required by Kermode, that a defendant may in some circumstances contingently adopt a plaintiff's alternative imputation as a contextual imputation, the plaintiff's fallback bribery imputations in this case were not capable of satisfying s 26 because the earlier ruling established that their only difference from the corruption imputations was a difference in degree of seriousness, not a difference in kind. The defendants were otherwise permitted to plead contextual imputations that alleged discrete misconduct such as deliberate non-disclosure, dishonest cover-up, and conflict of interest in signing a lease, but were not permitted to plead contextual...

Court Disposition

Defendants granted leave to file an amended defence in accordance with the reasons.

Orders

  • ['The defendants have leave to file an amended defence in accordance with these reasons.' "The defendants should not have leave to include the plaintiff's alternative imputations 7(a) and 16(a) as contextual imputations." 'The defendants should not have leave to include contextual imputation 8(a)(C).' 'The...