Toben v Milne [2014] NSWCA 200

Toben v Milne [2014] NSWCA 200

The Court held that, contrary to the primary judge's conclusion, an assertion that a person fabricates history can be different in substance from an assertion that the person is a Holocaust denier, because fabrication connotes making something up, lying about something or inventing, whereas denial of the Holocaust...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
26 June 2014
Procedural Posture
Defamation Appeal Concerning Pleadings and Imputations / Application for Leave to Appeal and Appeal From an Interlocutory Order of Mc Callum J Striking Out Pleaded Imputation (a) in Defamation Proceedings
Outcome
Leave to appeal granted; appeal dismissed; appellant granted leave to replead imputation (a); each party to pay his and her own costs of the summons for leave to appeal and the appeal.
Legal Topics
['defamation Act 2005' 'pleadings' 'imputations' 'whether Imputations Differ in Substance' 'vague and Imprecise Imputation' 'strike Out' 'uniform Civil Procedure Rules 2005, R 14.30']
['defamation' 'civil Procedure'] ['defamation Act 2005' 'pleadings' 'imputations' 'whether Imputations Differ in Substance' 'vague and Imprecise Imputation' 'strike Out' 'uniform Civil Procedure Rules 2005, R 14.30']

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Procedural Posture

Defamation Appeal Concerning Pleadings and Imputations / Application for Leave to Appeal and Appeal From an Interlocutory Order of Mc Callum J Striking Out Pleaded Imputation (a) in Defamation Proceedings

Legal Issues

  1. 1 ['Whether the pleaded imputation that the appellant fabricated history differed in substance from the pleaded imputation that the appellant is a Holocaust denier.' 'Whether imputation (a) was too vague and imprecise or bad in form because it failed to specify the act or condition attributed to the appellant with sufficient precision.' 'Whether the strike out order should be upheld and whether the appellant should have leave to replead imputation (a).']

Ratio Decidendi

The Court held that, contrary to the primary judge's conclusion, an assertion that a person fabricates history can be different in substance from an assertion that the person is a Holocaust denier, because fabrication connotes making something up, lying about something or inventing, whereas denial of the Holocaust may occur without fabrication. However, imputation (a) as pleaded was too vague and imprecise because it did not identify, in the context of the article as a whole, the subject matter of the alleged fabrication of history. The strike out order was therefore upheld on the notice of contention, the appeal was dismissed, and the appellant was given leave to replead imputation (a).

Court Disposition

Leave to appeal granted; appeal dismissed; appellant granted leave to replead imputation (a); each party to pay his and her own costs of the summons for leave to appeal and the appeal.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.' 'Leave granted to the appellant to replead imputation (a).' 'Each party to pay his and her own costs of the summons for leave to appeal and the appeal.']