Dennis v Australian Broadcasting Corporation [2008] NSWCA 37

Dennis v Australian Broadcasting Corporation [2008] NSWCA 37

The acquiescence imputations were capable of arising because a reasonable jury could understand the reference to a shared "controlling interest", reinforced by the applicant's role as legal adviser, as implying acquiescence in the relevant conduct. However, Nicholas J did not err in refusing leave to file a further amended pleading because the applicant had already had ample opportunity to plead the active imputations, had abandoned them as a forensic decision, and the statutory overriding purpose supported refusing further amendment.

Jurisdiction
Australia
Judgment Date
01 April 2008
Procedural Posture
Defamation Proceedings Concerning a Television Broadcast / Application for Leave to Appeal From Interlocutory Judgments Striking Out Pleaded Imputations and Refusing Leave to File a Fifth Further Amended Statement of Claim
Outcome
Leave to appeal from the judgment of 6 February 2007 granted and the strike-out order set aside; leave to appeal from the judgment of 7 February 2007 refused.
Legal Topics
['television Broadcast' 'capacity of Defamatory Imputations' 'acquiescence Imputations' 'pleadings' 'leave to Amend Pleadings' 'case Management']
['defamation' 'civil Procedure'] ['television Broadcast' 'capacity of Defamatory Imputations' 'acquiescence Imputations' 'pleadings' 'leave to Amend Pleadings' 'case Management']

Case Brief

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Procedural Posture

Defamation Proceedings Concerning a Television Broadcast / Application for Leave to Appeal From Interlocutory Judgments Striking Out Pleaded Imputations and Refusing Leave to File a Fifth Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the broadcast was capable of conveying imputations that the applicant acquiesced in the conduct of Nu-Tec and Mr Symons.' 'Whether leave should be granted to file a Fifth Further Amended Statement of Claim reintroducing active conduct imputations previously abandoned.']

Ratio Decidendi

The acquiescence imputations were capable of arising because a reasonable jury could understand the reference to a shared "controlling interest", reinforced by the applicant's role as legal adviser, as implying acquiescence in the relevant conduct. However, Nicholas J did not err in refusing leave to file a further amended pleading because the applicant had already had ample opportunity to plead the active imputations, had abandoned them as a forensic decision, and the statutory overriding purpose supported refusing further amendment.

Court Disposition

Leave to appeal from the judgment of 6 February 2007 granted and the strike-out order set aside; leave to appeal from the judgment of 7 February 2007 refused.

Orders

  • ['Grant leave to appeal from the judgment of Nicholas J of 6 February 2007.' "Set aside his Honour's order striking out the imputations pleaded by the plaintiff at pars 3(b), 3(c), 3(f) and 3(h) of the Fourth Further Amended Statement of Claim." 'Refuse leave to appeal from the judgment of Nicholas J of 7 February...