David Holmes v TCN Channel Nine Limited [2007] NSWDC 137

David Holmes v TCN Channel Nine Limited [2007] NSWDC 137

Because the Defamation Act 2005 makes the matter complained of, not each imputation, the cause of action, form objections to imputations should be approached with caution and with attention to practical justice. Imputation (i) was not struck out because "living hell" was a distillation of the broadcast rather than a prohibited literal repetition. Imputation (xiii) was not struck out because whether "permanent lowlife" referred to one or more tenants was a question on which reasonable minds could differ. Imputation (xv), however, was not properly pleaded as arising in the natural and ordinary meaning because it depended on the extrinsic fact that viewers who knew the plaintiff would know...

Jurisdiction
Australia
Judgment Date
22 June 2007
Procedural Posture
Civil Defamation Proceedings / Defendant's Application to Strike Out Imputations
Outcome
Defendant's application partly dismissed and partly allowed.
Legal Topics
['imputations' 'pleading' 'form and Capacity' 'erroneous Identification' 'strike Out Application']
['defamation' 'civil Procedure'] ['imputations' 'pleading' 'form and Capacity' 'erroneous Identification' 'strike Out Application']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Defendant's Application to Strike Out Imputations

Legal Issues

  1. 1 ['What approach should be taken to questions of form, capacity and defamatory meaning for imputations pleaded under the Defamation Act 2005.' 'Whether imputation (i) should be struck out because it used words from the matter complained of.' 'Whether imputation (xiii) should be struck out because the words of the matter complained of referred to only one tenant.' 'Whether imputation (xv) could be pleaded in its natural and ordinary meaning where the broadcast wrongly identified the plaintiff as Glen Wright but also referred to David Holmes.']

Ratio Decidendi

Because the Defamation Act 2005 makes the matter complained of, not each imputation, the cause of action, form objections to imputations should be approached with caution and with attention to practical justice. Imputation (i) was not struck out because "living hell" was a distillation of the broadcast rather than a prohibited literal repetition. Imputation (xiii) was not struck out because whether "permanent lowlife" referred to one or more tenants was a question on which reasonable minds could differ. Imputation (xv), however, was not properly pleaded as arising in the natural and ordinary meaning because it depended on the extrinsic fact that viewers who knew the plaintiff would know...

Court Disposition

Defendant's application partly dismissed and partly allowed.

Orders

  • ["Defendant's application to strike out imputations (i) and (xiii) dismissed." 'Imputation (xv) struck out with leave to replead with particulars of identification.' 'Costs reserved.']