John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364

John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364

The Court held that the summary striking out of defences in a defamation case is only appropriate in the clearest of cases where there is a high degree of certainty that the defences cannot succeed. On the facts pleaded, it was at least arguable that by courting publicity, the respondent had acted in a way inviting public criticism or discussion, making the issue of public interest inappropriate for resolution at the strike-out stage. Contextual imputation (vii) was, by a majority, held not to differ in substance from the plaintiff’s fourth imputation, being only a shade or gradation of meaning. The inter-state (Polly Peck) defences could not be pleaded if they were substantially...

Jurisdiction
Australia
Judgment Date
14 December 2007
Procedural Posture
Appeal / Appellate (court of Appeal Decision on Appeal From Supreme Court Strike Out Order)
Outcome
Appeal allowed in part
Legal Topics
['strike Out Applications' 'pleadings' 'public Interest Defence' 'contextual Truth' 'qualified Privilege' 'comment' 'imputations']
['defamation' 'civil Procedure'] ['strike Out Applications' 'pleadings' 'public Interest Defence' 'contextual Truth' 'qualified Privilege' 'comment' 'imputations']

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Procedural Posture

Appeal / Appellate (court of Appeal Decision on Appeal From Supreme Court Strike Out Order)

Legal Issues

  1. 1 ['Whether the defences of truth, contextual truth, comment and qualified privilege should be struck out for lack of public interest nexus' "Whether contextual imputation (vii) (gatecrashing a function) differed in substance from the respondent's fourth imputation" 'Whether the inter-state (common law) defences pleaded alternative imputations not substantially different from the plaintiff’s imputations']

Ratio Decidendi

The Court held that the summary striking out of defences in a defamation case is only appropriate in the clearest of cases where there is a high degree of certainty that the defences cannot succeed. On the facts pleaded, it was at least arguable that by courting publicity, the respondent had acted in a way inviting public criticism or discussion, making the issue of public interest inappropriate for resolution at the strike-out stage. Contextual imputation (vii) was, by a majority, held not to differ in substance from the plaintiff’s fourth imputation, being only a shade or gradation of meaning. The inter-state (Polly Peck) defences could not be pleaded if they were substantially...

Court Disposition

Appeal allowed in part

Orders

  • ["Set aside the Supreme Court's order striking out specified paragraphs of the Further Amended Defence (paras 4, 5 (except for para 5(a)(i) and 5(a)(vii)), 6, 7(b), 8, 9(a)(vii), 10, 11, 13 and 14) as filed 24 October 2006" "Respondent (Hitchcock) to pay one half of the appellant's (Fairfax's) costs of the appeal...