Brett May v TCN Channel Nine Pty Ltd & Ors [2007] NSWSC 760

Brett May v TCN Channel Nine Pty Ltd & Ors [2007] NSWSC 760

The reply was embarrassing because it did not specifically plead each matter of defeasance to each comment defence in the four defences and did not clearly link particulars to a specific allegation of defeasance directed to a particular commentator or commentators. Since the pleading would likely cause confusion, embarrassment or delay, paras 2(a)–(e) and the particulars were struck out under r 14.28(1), with liberty to replead.

Jurisdiction
Australia
Judgment Date
13 July 2007
Procedural Posture
Defamation Proceedings / Defendants' Notice of Motion Under Uniform Civil Procedure Rules 2005 R 14.28(1) to Strike Out the Reply as Embarrassing After a S 7 a Defamation Act 1974 Trial
Outcome
Defendants' motion to strike out the challenged parts of the reply was granted, with liberty to replead.
Legal Topics
['pleadings' 'reply' 'comment Defence' 'common Law Fair Comment' 'statutory Fair Comment' 'grounds of Defeasance' 'strike Out for Embarrassment']
['defamation' 'civil Procedure'] ['pleadings' 'reply' 'comment Defence' 'common Law Fair Comment' 'statutory Fair Comment' 'grounds of Defeasance' 'strike Out for Embarrassment']

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Procedural Posture

Defamation Proceedings / Defendants' Notice of Motion Under Uniform Civil Procedure Rules 2005 R 14.28(1) to Strike Out the Reply as Embarrassing After a S 7 a Defamation Act 1974 Trial

Legal Issues

  1. 1 ["Whether paras 2(a)–(e) and the particulars in the plaintiff's reply to comment, fair comment and statutory fair comment defences should be struck out as embarrassing." 'Whether the reply sufficiently pleaded and particularised matters of defeasance separately by reference to each comment defence and each commentator.' 'What matters may defeat defences of comment under ss 32, 33 and 34 of the Defamation Act 1974, common law fair comment, and statutory fair comment.']

Ratio Decidendi

The reply was embarrassing because it did not specifically plead each matter of defeasance to each comment defence in the four defences and did not clearly link particulars to a specific allegation of defeasance directed to a particular commentator or commentators. Since the pleading would likely cause confusion, embarrassment or delay, paras 2(a)–(e) and the particulars were struck out under r 14.28(1), with liberty to replead.

Court Disposition

Defendants' motion to strike out the challenged parts of the reply was granted, with liberty to replead.

Orders

  • ['Paras 2(a)–(e) and the particulars as pleaded in the reply filed 12 April 2007 be struck out, with liberty to replead.' 'The first, second and third defendants serve any amended defence on/before 4pm 27 July 2007.' 'The plaintiff serve any amended reply or replies on/before 4pm 10 August 2007.' 'Proceedings stood...