CROSS & ANOR v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD [2003] NSWSC 1236

CROSS & ANOR v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD [2003] NSWSC 1236

Although the article was not completely harmless and might convey something from the expressions "in hot water" and "failed", it did not logically connect the second plaintiff's role as director with the companies being placed into voluntary administration, did not support a reasonable suspicion by creditors or the Illawarra Mercury that he had put the company into voluntary administration, and used formulations such as "unfit" that were vague and uncertain. The pleaded imputations were therefore incapable of being carried, but the second plaintiff was given a final opportunity to plead a properly formed imputation concerning want of business capacity.

Jurisdiction
Australia
Judgment Date
18 December 2003
Procedural Posture
Defamation Action / Interlocutory Application Concerning Imputations, Capacity and Form
Outcome
The first plaintiff's action was dismissed; the challenged imputations were held incapable of being carried and verdicts were entered for the defendant on them; the second plaintiff was granted leave to file an amended statement of claim and ordered to pay the defendant's costs of the application.
Legal Topics
['imputations' 'capacity' 'form of Imputations' 'ordinary Reasonable Reader' 'amended Statement of Claim']
['defamation'] ['imputations' 'capacity' 'form of Imputations' 'ordinary Reasonable Reader' 'amended Statement of Claim']

Case Brief

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Procedural Posture

Defamation Action / Interlocutory Application Concerning Imputations, Capacity and Form

Legal Issues

  1. 1 ["Whether the first plaintiff's abandoned action should be dismissed." 'Whether imputations 3(d)(i), 3(e), 3(f), 3(h)(i) and 3(h)(ii) were capable of being carried by the matter complained of.' 'Whether the second plaintiff should have leave to plead an amended imputation founded on want of business capacity.']

Ratio Decidendi

Although the article was not completely harmless and might convey something from the expressions "in hot water" and "failed", it did not logically connect the second plaintiff's role as director with the companies being placed into voluntary administration, did not support a reasonable suspicion by creditors or the Illawarra Mercury that he had put the company into voluntary administration, and used formulations such as "unfit" that were vague and uncertain. The pleaded imputations were therefore incapable of being carried, but the second plaintiff was given a final opportunity to plead a properly formed imputation concerning want of business capacity.

Court Disposition

The first plaintiff's action was dismissed; the challenged imputations were held incapable of being carried and verdicts were entered for the defendant on them; the second plaintiff was granted leave to file an amended statement of claim and ordered to pay the defendant's costs of the application.

Orders

  • ["The action by the first plaintiff against the defendant is dismissed. The first plaintiff is to pay the defendant's costs of the action." 'Imputations 3(d)(i), 3(e), 3(f), 3(h)(i) and 3(h)(ii) are incapable of being carried by the matter complained of and a verdict is entered for the defendant on each.' 'Note that...