Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223

Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223

It is now established, following Zeccola, that a defendant may plead as a contextual imputation any imputation that differs in substance from the plaintiff's imputations; a general imputation may be pleaded against specific ones. The threshold for 'difference in substance' is not high, and courts should be cautious before striking out such a defence interlocutorily. The evaluation of the swamping effect and sufficiency of contextual imputations is for the tribunal of fact. Therefore, the plaintiffs’ application to strike out the contextual truth defence must be refused.

Parties
First Plaintiff: Steven Sharp; Second Plaintiff: Tom Issa; First Defendant: Harbour Radio Pty Limited; Second Defendant: Ray Hadley
Jurisdiction
Australia
Judgment Date
26 February 2016
Procedural Posture
Defamation / Interlocutory Application to Strike Out Defence of Contextual Truth
Outcome
Plaintiffs' application to strike out contextual truth defence refused; plaintiffs to pay the costs of today's application.
Legal Topics
Contextual Truth Defence, Difference in Substance of Imputations, Uniform Civil Procedure Rules Compliance, Strike Out Application, Pleading Contextual Imputations
Defamation Civil Procedure Contextual Truth Defence Difference in Substance of Imputations Uniform Civil Procedure Rules Compliance Strike Out Application Pleading Contextual Imputations

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Parties

Steven Sharp

First Plaintiff

Tom Issa

Second Plaintiff

Harbour Radio Pty Limited

First Defendant

Ray Hadley

Second Defendant

Procedural Posture

Defamation / Interlocutory Application to Strike Out Defence of Contextual Truth

Legal Issues

  1. 1 Whether the defendants' pleaded contextual imputation meets the requirement that it be 'in addition to' and differ in substance from the plaintiffs' imputations under s 26 of the Defamation Act 2005 (NSW)
  2. 2 Whether the contextual imputation is capable of having the 'swamping' effect required under s 26(b)
  3. 3 Whether the contextual imputation should be struck out before determination by the tribunal of fact

Ratio Decidendi

It is now established, following Zeccola, that a defendant may plead as a contextual imputation any imputation that differs in substance from the plaintiff's imputations; a general imputation may be pleaded against specific ones. The threshold for 'difference in substance' is not high, and courts should be cautious before striking out such a defence interlocutorily. The evaluation of the swamping effect and sufficiency of contextual imputations is for the tribunal of fact. Therefore, the plaintiffs’ application to strike out the contextual truth defence must be refused.

Court Disposition

Plaintiffs' application to strike out contextual truth defence refused; plaintiffs to pay the costs of today's application.

Orders

  • Plaintiffs' application to strike out contextual truth defence refused.
  • Plaintiffs to pay the defendants' costs of the application.