Australian Broadcasting Corporation v McBride [2001] NSWCA 322

Australian Broadcasting Corporation v McBride [2001] NSWCA 322

The particulars offered by the ABC in support of the plea of mitigation of damages did not relate to the relevant sector of the plaintiff's reputation harmed by the defamatory imputations as pleaded; the scientific fraud and misconduct alleged against McBride related to his conduct as a researcher/scientist and not to the care, compassion, and dedication to patients alleged to be at issue in the defamatory broadcast. Therefore, the trial judge was correct to strike out the particulars, and the proposed amendments did not cure the defect.

Jurisdiction
Australia
Judgment Date
01 November 2001
Procedural Posture
Civil Appeal / Appeal From Order Striking Out Particulars in Defence in Supreme Court Common Law Division
Outcome
Appeal dismissed.
Legal Topics
['mitigation of Damages' 'plea of Mitigation' 'relevant Sector of Reputation' 'admissibility of Evidence' 'effect of Evidence Act on Defamation' 'particularisation in Defence']
['defamation'] ['mitigation of Damages' 'plea of Mitigation' 'relevant Sector of Reputation' 'admissibility of Evidence' 'effect of Evidence Act on Defamation' 'particularisation in Defence']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From Order Striking Out Particulars in Defence in Supreme Court Common Law Division

Legal Issues

  1. 1 ['Whether the trial judge erred in ordering that particulars in support of the plea of mitigation of damages be struck out' 'Whether a defendant can rely on particulars in mitigation of damages despite not pleading justification' 'Whether the particulars related to the relevant sector of the plaintiff’s reputation' 'What evidence the court could consider in determining that issue' "Whether the 'relevant sector' rule is affected by sections 55 and 56 of the Evidence Act" 'Whether a defendant can rely on particulars relating to matters arising after the date of publication']

Ratio Decidendi

The particulars offered by the ABC in support of the plea of mitigation of damages did not relate to the relevant sector of the plaintiff's reputation harmed by the defamatory imputations as pleaded; the scientific fraud and misconduct alleged against McBride related to his conduct as a researcher/scientist and not to the care, compassion, and dedication to patients alleged to be at issue in the defamatory broadcast. Therefore, the trial judge was correct to strike out the particulars, and the proposed amendments did not cure the defect.

Court Disposition

Appeal dismissed.

Orders

  • ["Appellant's application to amend the Notice of Appeal refused." 'Appeal dismissed with costs.']