Lynn v Thompson [2017] NSWDC 296

Lynn v Thompson [2017] NSWDC 296

The proportionality argument could not fairly proceed until the plaintiff identified the precise publication and republication relied upon, so leave to interrogate the defendant about the extent of publication was granted. Several imputations were struck out because they either did not differ in substance from another imputation or were ambiguous or insufficiently specific, while leave to replead was granted for certain imputations. The plaintiff's unreadiness for the proportionality argument on two occasions, despite the defendant being ready and despite publication defects in the pleading, warranted an indemnity costs order for the vacating of that argument, with ordinary costs for the...

Jurisdiction
Australia
Judgment Date
26 October 2017
Procedural Posture
Defamation Proceedings / Procedural Applications for Interrogatories, Strike Out of Imputations and Summary Dismissal/proportionality Argument
Outcome
Leave to interrogate granted; certain imputations struck out or allowed to be repleaded; proportionality argument vacated with costs orders; matter stood over.
Legal Topics
['publication by Email' 'interrogatories' 'summary Dismissal' 'proportionality' 'form and Capacity of Imputations' 'costs']
['tort' 'defamation' 'civil Procedure'] ['publication by Email' 'interrogatories' 'summary Dismissal' 'proportionality' 'form and Capacity of Imputations' 'costs']

Case Brief

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Procedural Posture

Defamation Proceedings / Procedural Applications for Interrogatories, Strike Out of Imputations and Summary Dismissal/proportionality Argument

Legal Issues

  1. 1 ['Whether leave should be granted for the plaintiff to interrogate the defendant as to the extent of publication of the email.' "Whether the defendant's proportionality or summary dismissal argument based on Bleyer v Google Inc could proceed before the plaintiff clarified publication and republication." 'Whether pleaded imputations differed in substance or were defective in form or capacity.' 'Whether indemnity or ordinary costs should be ordered in relation to the adjourned proportionality argument and the UCPR arguments.']

Ratio Decidendi

The proportionality argument could not fairly proceed until the plaintiff identified the precise publication and republication relied upon, so leave to interrogate the defendant about the extent of publication was granted. Several imputations were struck out because they either did not differ in substance from another imputation or were ambiguous or insufficiently specific, while leave to replead was granted for certain imputations. The plaintiff's unreadiness for the proportionality argument on two occasions, despite the defendant being ready and despite publication defects in the pleading, warranted an indemnity costs order for the vacating of that argument, with ordinary costs for the...

Court Disposition

Leave to interrogate granted; certain imputations struck out or allowed to be repleaded; proportionality argument vacated with costs orders; matter stood over.

Orders

  • ['Grant leave to the plaintiff to interrogate the defendant as to the extent of publication with particular regard to publication to the email address vvaacsheadsup@gmail.com in 7 days.' "Defendant's answers to interrogatories 14 days thereafter." 'Imputation 2(c) is struck out as not differing in substance from...