PAVY v JOHN FAIRFAX PUBLICATIONS PL [2002] NSWSC 1053

PAVY v JOHN FAIRFAX PUBLICATIONS PL [2002] NSWSC 1053

The proposed imputation was not ambiguous or lacking precision because, consistently with the Court of Appeal's reasoning, it contained an element of intention and its availability and defamatory nature could be assessed by reference to the matter complained of. The transfer application was declined because the proceeding had long been conducted in the Supreme Court, including Defamation List determinations, a s 7A jury trial, an appeal to the Court of Appeal, and a new trial already fixed in the Supreme Court, so transfer would distort the mechanisms of justice hitherto enjoyed by the parties.

Jurisdiction
Australia
Judgment Date
30 October 2002
Procedural Posture
Defamation Proceedings / Defendant's Notice of Motion to Strike Out an Imputation and Plaintiff's Application to Transfer the Action to the District Court
Outcome
Defendant's notice of motion dismissed; plaintiff's application to transfer to the District Court declined.
Legal Topics
['imputations' 'capacity' 'difference in Substance' 'strike Out Application' 'transfer to District Court' 'section 7 a Jury Trial']
['defamation' 'civil Procedure'] ['imputations' 'capacity' 'difference in Substance' 'strike Out Application' 'transfer to District Court' 'section 7 a Jury Trial']

Case Brief

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Procedural Posture

Defamation Proceedings / Defendant's Notice of Motion to Strike Out an Imputation and Plaintiff's Application to Transfer the Action to the District Court

Legal Issues

  1. 1 ["Whether the plaintiff's proposed second imputation, that he had directed physical violence towards his baby son thereby breaking six ribs, should be struck out as ambiguous or lacking precision." "Whether the plaintiff's proposed imputations differed in substance." "Whether the plaintiff's action should be transferred to the District Court under s 143(4) of District Court Act 1973."]

Ratio Decidendi

The proposed imputation was not ambiguous or lacking precision because, consistently with the Court of Appeal's reasoning, it contained an element of intention and its availability and defamatory nature could be assessed by reference to the matter complained of. The transfer application was declined because the proceeding had long been conducted in the Supreme Court, including Defamation List determinations, a s 7A jury trial, an appeal to the Court of Appeal, and a new trial already fixed in the Supreme Court, so transfer would distort the mechanisms of justice hitherto enjoyed by the parties.

Court Disposition

Defendant's notice of motion dismissed; plaintiff's application to transfer to the District Court declined.

Orders

  • ['The plaintiff should confirm his election within seven days, within which time the amended statement of claim is to be filed.' "The defendant's notice of motion is dismissed with costs." "The plaintiff's application to transfer the action to the District Court is declined." 'No order as to costs is made in respect...