Sutherland v ACP Publishing Pty Limited [2000] NSWSC 1139

Sutherland v ACP Publishing Pty Limited [2000] NSWSC 1139

The defence of comment was not struck out because the imputation, especially when read with the hyperbolic language of the published matter, could be understood as an expression of opinion, and the pleaded proper material for comment raised trial issues. The contextual truth defence was struck out because an imputation that the plaintiff regularly consumed excessive alcohol during the years he hosted a television program could not rationally swamp the sting of the plaintiff's imputation that he appeared on television grossly affected by alcohol. The s 13 defence was not struck out because the circumstances and authorities did not make it impossible for the defendant to rely on that...

Jurisdiction
Australia
Judgment Date
08 December 2000
Procedural Posture
Defamation Proceedings; Strike Out Application Concerning Defences of Comment, Contextual Truth and Unlikelihood of Harm / Post S 7 a Trial Notice of Motion to Strike Out Parts of the Amended Defence
Outcome
Plaintiff's notice of motion allowed in part; paragraph 6 of the amended defence struck out; notice of motion otherwise dismissed.
Legal Topics
['strike Out Application' 'defence of Comment' 'contextual Truth' 'unlikelihood of Harm Under S 13' 's 7 a Jury Trial' 'pleadings']
['defamation' 'civil Procedure'] ['strike Out Application' 'defence of Comment' 'contextual Truth' 'unlikelihood of Harm Under S 13' 's 7 a Jury Trial' 'pleadings']

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Procedural Posture

Defamation Proceedings; Strike Out Application Concerning Defences of Comment, Contextual Truth and Unlikelihood of Harm / Post S 7 a Trial Notice of Motion to Strike Out Parts of the Amended Defence

Legal Issues

  1. 1 ['Whether the defence of comment should be struck out on the basis that the imputation was a bare statement of fact rather than comment.' "Whether the defendant's pleaded material was incapable of being proper material for comment." "Whether the contextual truth defence under s 16 should be struck out because the contextual imputation could not prevent further injury to the plaintiff's reputation." 'Whether the s 13 defence of unlikelihood of harm should be struck out in relation to publication in a magazine to a wide or unknown audience.']

Ratio Decidendi

The defence of comment was not struck out because the imputation, especially when read with the hyperbolic language of the published matter, could be understood as an expression of opinion, and the pleaded proper material for comment raised trial issues. The contextual truth defence was struck out because an imputation that the plaintiff regularly consumed excessive alcohol during the years he hosted a television program could not rationally swamp the sting of the plaintiff's imputation that he appeared on television grossly affected by alcohol. The s 13 defence was not struck out because the circumstances and authorities did not make it impossible for the defendant to rely on that...

Court Disposition

Plaintiff's notice of motion allowed in part; paragraph 6 of the amended defence struck out; notice of motion otherwise dismissed.

Orders

  • ["Order 3 in plaintiff's Notice of Motion is made striking out paragraph 6 of the Amended Defence (contextual truth)." 'Notice of Motion otherwise dismissed.' 'Defendant has leave to file a further amended defence within seven days to reinstate issues joined as at 15 May 2000.' 'Particular (ii) of Particulars of...