Ale v Pauling [2017] NSWSC 1744

Ale v Pauling [2017] NSWSC 1744

The Court refused to determine the defendant's capacity objections separately because the alleged oral publication involved spoken words, screenshots, and possible visual cues such as facial expression, tone and demeanour, so the judge was not in the same position as the trial judge and the meaning conveyed could be materially affected by evidence at trial.

Jurisdiction
Australia
Judgment Date
08 December 2017
Procedural Posture
Defamation Proceedings / Application for Separate Determination of Objections to Imputations at First Listing
Outcome
Application for separate determination of objections to imputations refused
Legal Topics
['oral Publication' 'capacity to Convey Imputations' 'separate Determination of Questions' 'meaning Affected by Gesture, Tone, Facial Expression and Demeanour']
['defamation' 'civil Procedure'] ['oral Publication' 'capacity to Convey Imputations' 'separate Determination of Questions' 'meaning Affected by Gesture, Tone, Facial Expression and Demeanour']

Case Brief

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Procedural Posture

Defamation Proceedings / Application for Separate Determination of Objections to Imputations at First Listing

Legal Issues

  1. 1 ["Whether the Court should determine before trial the defendant's objections that the oral matter complained of was not reasonably capable of conveying pleaded imputations." 'Whether the nature of the alleged oral publication, including screenshots and visual cues, made separate determination of capacity inappropriate.']

Ratio Decidendi

The Court refused to determine the defendant's capacity objections separately because the alleged oral publication involved spoken words, screenshots, and possible visual cues such as facial expression, tone and demeanour, so the judge was not in the same position as the trial judge and the meaning conveyed could be materially affected by evidence at trial.

Court Disposition

Application for separate determination of objections to imputations refused

Orders

  • ["The Court declined to determine the defendant's objections to capacity separately, in advance of the trial."]