McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196

McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196

The Court held that none of the impugned particulars or contextual imputations was so clearly untenable or incapable of sustaining the defences of substantial truth or contextual truth so as to warrant summary strike-out. As the relevant legal standards require more than doubtful prospects and in the absence of demonstrated certainty of failure, the pleadings should stand. The amendment to contextual imputation 7(b)(B) was allowed due to justified late objection, but new contextual imputations which duplicated or merely reformulated plaintiff's imputations were disallowed. Leave to amend other aspects of the defence was given only where justified, otherwise deferred for evidence at trial.

Jurisdiction
Australia
Judgment Date
07 March 2012
Procedural Posture
Defamation and Injurious Falsehood Proceedings / Procedural Ruling During Jury Trial, on Applications to Strike Out Parts of Defence and for Leave to Amend Defence
Outcome
Plaintiff's strike-out application dismissed; defendants' application for leave to amend defence allowed in part.
Legal Topics
['pleadings' 'strike Out Application' 'defamation' 'contextual Truth' 'substantial Truth' 'amendment of Defence']
['defamation' 'civil Procedure'] ['pleadings' 'strike Out Application' 'defamation' 'contextual Truth' 'substantial Truth' 'amendment of Defence']

Case Brief

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Procedural Posture

Defamation and Injurious Falsehood Proceedings / Procedural Ruling During Jury Trial, on Applications to Strike Out Parts of Defence and for Leave to Amend Defence

Legal Issues

  1. 1 ['Whether particulars pleaded in support of substantial truth and contextual truth defences were capable of sustaining the defences' 'Whether contextual imputation 7(b)(B) was liable to be struck out as incapable of being defamatory' 'Whether leave should be granted to amend the defence to plead new or revised contextual imputations and substantial truth to further imputations' 'Whether particulars of truth in respect of various imputations should be struck out as incapable of supporting the pleaded defence']

Ratio Decidendi

The Court held that none of the impugned particulars or contextual imputations was so clearly untenable or incapable of sustaining the defences of substantial truth or contextual truth so as to warrant summary strike-out. As the relevant legal standards require more than doubtful prospects and in the absence of demonstrated certainty of failure, the pleadings should stand. The amendment to contextual imputation 7(b)(B) was allowed due to justified late objection, but new contextual imputations which duplicated or merely reformulated plaintiff's imputations were disallowed. Leave to amend other aspects of the defence was given only where justified, otherwise deferred for evidence at trial.

Court Disposition

Plaintiff's strike-out application dismissed; defendants' application for leave to amend defence allowed in part.

Orders

  • ["Plaintiff's application to strike out parts of defence dismissed" 'Defendants granted leave to amend defence as specified, including amendment to contextual imputation 7(b)(B)' 'Defendants refused leave to amend by adding certain new contextual imputations' "Defendants to pay plaintiff's costs thrown away by...