Gaynor v Burns [2015] NSWDC 194

Gaynor v Burns [2015] NSWDC 194

The defence of contextual justification, as pleaded, is impermissible in law because it relies solely on the plaintiff's imputations. It is struck out. The defence of qualified privilege must be pleaded with precision indicating whether it relies on common law, s 30 Defamation Act 2005 (NSW), or both.

Parties
Plaintiff: Bernard Gaynor; Defendant: Garry Burns
Jurisdiction
Australia
Judgment Date
03 September 2015
Procedural Posture
Civil / Interlocutory Ruling on Pleadings
Outcome
Paragraph 7 of the defence struck out; leave granted to replead qualified privilege; costs awarded to plaintiff.
Legal Topics
Strike Out Application, Contextual Justification, Qualified Privilege, Pleadings, Case Management, Costs
Tort Defamation Strike Out Application Contextual Justification Qualified Privilege Pleadings Case Management Costs

Case Brief

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Parties

Bernard Gaynor

Plaintiff

Garry Burns

Defendant

Procedural Posture

Civil / Interlocutory Ruling on Pleadings

Legal Issues

  1. 1 Whether the defence of contextual justification based solely on the plaintiff's imputations is tenable
  2. 2 Whether the defence of qualified privilege is sufficiently particularised in the pleadings

Ratio Decidendi

The defence of contextual justification, as pleaded, is impermissible in law because it relies solely on the plaintiff's imputations. It is struck out. The defence of qualified privilege must be pleaded with precision indicating whether it relies on common law, s 30 Defamation Act 2005 (NSW), or both.

Court Disposition

Paragraph 7 of the defence struck out; leave granted to replead qualified privilege; costs awarded to plaintiff.

Orders

  • Paragraph 7 of the defence is struck out.
  • Leave granted to defendant to file and serve an Amended Defence identifying the qualified privilege defence and, if s 30 Defamation Act 2005 (NSW) is pleaded, setting out particulars of reasonableness, within 13 days.