Brender v John Fairfax Publications Limited [2000] NSWSC 743

Brender v John Fairfax Publications Limited [2000] NSWSC 743

The matter complained of was incapable as a matter of law of carrying the two pleaded imputations. A fair reading of the article disclosed a historical narrative with comment, but nothing suggesting that the plaintiff and Phillip Bart acted in concert, unconscionably or predatorily, or were responsible for the deed of arrangement, the demise of National Textiles, or the detriment to unsecured creditors. The pleaded meanings could arise only by a fanciful or unreasonable application of suspicion or a morbid approach by a reader.

Jurisdiction
Australia
Judgment Date
04 August 2000
Procedural Posture
Defamation Proceedings / Separate Trial of Issue of Law as to Capacity of Matter Complained of to Carry Pleaded Imputations Pursuant to SCR Pt 31 R 2
Outcome
The separate question of law was determined in favour of the defendant; the matter complained of was held incapable of carrying the pleaded imputations, with costs payable by the plaintiff and leave to amend granted.
Legal Topics
['capacity of Matter Complained of to Carry Imputations' 'natural and Ordinary Meaning' 'ordinary Reasonable Reader' 'newspaper Publication' 'separate Question of Law']
['defamation' 'civil Procedure'] ['capacity of Matter Complained of to Carry Imputations' 'natural and Ordinary Meaning' 'ordinary Reasonable Reader' 'newspaper Publication' 'separate Question of Law']

Case Brief

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Procedural Posture

Defamation Proceedings / Separate Trial of Issue of Law as to Capacity of Matter Complained of to Carry Pleaded Imputations Pursuant to SCR Pt 31 R 2

Legal Issues

  1. 1 ['Whether the newspaper article was capable, in its natural and ordinary meaning, of conveying that the plaintiff in concert with Phillip Bart acted unconscionably to the detriment of unsecured creditors of National Textiles Limited by being a party to the acquisition of assets of that company for less than their true worth.' 'Whether the newspaper article was capable, in its natural and ordinary meaning, of conveying that the plaintiff in concert with Phillip Bart acted in a predatory way to the detriment of unsecured creditors of National Textiles Limited by being a party to the acquisition of assets of that company for less than their true worth.' 'Whether the pleaded imputations differed in substance for the purposes of SCR Pt 67 r 11(3).']

Ratio Decidendi

The matter complained of was incapable as a matter of law of carrying the two pleaded imputations. A fair reading of the article disclosed a historical narrative with comment, but nothing suggesting that the plaintiff and Phillip Bart acted in concert, unconscionably or predatorily, or were responsible for the deed of arrangement, the demise of National Textiles, or the detriment to unsecured creditors. The pleaded meanings could arise only by a fanciful or unreasonable application of suspicion or a morbid approach by a reader.

Court Disposition

The separate question of law was determined in favour of the defendant; the matter complained of was held incapable of carrying the pleaded imputations, with costs payable by the plaintiff and leave to amend granted.

Orders

  • ['The determination, pursuant to SCR Pt 31 r 2 of the separate question of law is that the matter complained of is incapable of carrying the imputations pleaded in 4(a) and (b) of the Statement of Claim filed 17 March 2000.' "The plaintiff is to pay the defendant's costs of the application." 'The plaintiff has leave...