Gaynor v Burns (No. 2) [2015] NSWDC 283

Gaynor v Burns (No. 2) [2015] NSWDC 283

Imputation 3(d) was not incapable merely as vulgar abuse because the matter complained of was capable of conveying that the plaintiff was dangerously stupid for advocating the mass extermination of homosexuals, but the imputation as pleaded was defective because it repeated words from the matter complained of and added rolled-up explanatory words rather than capturing a clear and simply worded sting, so it was struck out with leave to replead. Imputations 3(a) and 3(c) differed in substance because one alleged vilification on the plaintiff's blog and the other alleged investigation by the NSW Anti-Discrimination Board, requiring different evidence. Imputation 3(e) was capable of...

Jurisdiction
Australia
Judgment Date
03 December 2015
Procedural Posture
Defamation Proceedings; Application Pursuant to Rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (nsw) Challenging the Form and Capacity of Imputations / Procedural Ruling Determined on Written Submissions
Outcome
The defendant's objections were partly successful: imputation 3(d) was struck out with leave to replead; the other challenged objections addressed in the orders were dismissed or rejected; each party was ordered to pay his own costs.
Legal Topics
['form and Capacity of Imputations' 'vulgar Abuse' 'defamatory Meaning' 'leave to Replead' 'strike Out' 'costs']
['tort' 'defamation' 'civil Procedure'] ['form and Capacity of Imputations' 'vulgar Abuse' 'defamatory Meaning' 'leave to Replead' 'strike Out' 'costs']

Case Brief

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Procedural Posture

Defamation Proceedings; Application Pursuant to Rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (nsw) Challenging the Form and Capacity of Imputations / Procedural Ruling Determined on Written Submissions

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to replead imputation 3(d)' 'A ruling on the revised imputation 3(d)' 'Whether imputations 3(a) and 3(c) differ in substance' 'Whether imputation 3(e) is defamatory' 'The capacity of imputations 5(b) and 5(e)' 'Costs of the argument']

Ratio Decidendi

Imputation 3(d) was not incapable merely as vulgar abuse because the matter complained of was capable of conveying that the plaintiff was dangerously stupid for advocating the mass extermination of homosexuals, but the imputation as pleaded was defective because it repeated words from the matter complained of and added rolled-up explanatory words rather than capturing a clear and simply worded sting, so it was struck out with leave to replead. Imputations 3(a) and 3(c) differed in substance because one alleged vilification on the plaintiff's blog and the other alleged investigation by the NSW Anti-Discrimination Board, requiring different evidence. Imputation 3(e) was capable of...

Court Disposition

The defendant's objections were partly successful: imputation 3(d) was struck out with leave to replead; the other challenged objections addressed in the orders were dismissed or rejected; each party was ordered to pay his own costs.

Orders

  • ['Imputation 3(d) is struck out with leave to replead.' "Defendant's objections to imputations 3(a) and 3(c) dismissed." 'Imputations 5(b) and 5(e) are capable of being conveyed and will go to the jury.' 'Each party pay his own costs.']