Crosby v Kelly [2013] FCA 1343

Crosby v Kelly [2013] FCA 1343

The application succeeded only in part. The remaining particulars for justification of imputation 5(a) against Mr Textor were sufficiently precise and arguable. The tweet was capable of conveying that each applicant was a hypocrite, and those contextual imputations were different from the applicants' imputations and were "other imputations" for s 136(a). However, many particulars, especially those concerning Mr Crosby's association with Liberal Party campaigns and broad assertions about 2010 and overseas elections, were embarrassing generalisations lacking precision and had to be struck out. The respondent was not precluded from pleading common law qualified privilege because the...

Jurisdiction
Australia
Judgment Date
11 December 2013
Procedural Posture
Defamation Proceedings / Interlocutory Application to Strike Out Parts of the Amended Defence
Outcome
Interlocutory application allowed in part; respondent required to serve a draft amended defence and pay 50% of the applicants' costs of the application.
Legal Topics
['justification' 'partial Justification' 'contextual Truth' 'qualified Privilege' 'pleadings and Particulars' 'abuse of Process' 'strike Out Application' 'twitter Publication']
['defamation' 'practice and Procedure'] ['justification' 'partial Justification' 'contextual Truth' 'qualified Privilege' 'pleadings and Particulars' 'abuse of Process' 'strike Out Application' 'twitter Publication']

Case Brief

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Procedural Posture

Defamation Proceedings / Interlocutory Application to Strike Out Parts of the Amended Defence

Legal Issues

  1. 1 ['Whether the plea of justification in respect of imputation 5(a) should be struck out.' 'Whether the matter complained of was capable of conveying contextual imputations that each applicant was a hypocrite.' 'Whether the contextual imputations were "other imputations" within the meaning of s 136(a) of the Civil Law (Wrongs) Act 2002 (ACT) or available at common law.' 'Whether the particulars supporting contextual truth were sufficiently precise and capable of supporting the pleaded imputations.' 'Whether the respondent should be precluded from relying on qualified privilege because the defence was not pleaded during earlier jurisdictional proceedings.']

Ratio Decidendi

The application succeeded only in part. The remaining particulars for justification of imputation 5(a) against Mr Textor were sufficiently precise and arguable. The tweet was capable of conveying that each applicant was a hypocrite, and those contextual imputations were different from the applicants' imputations and were "other imputations" for s 136(a). However, many particulars, especially those concerning Mr Crosby's association with Liberal Party campaigns and broad assertions about 2010 and overseas elections, were embarrassing generalisations lacking precision and had to be struck out. The respondent was not precluded from pleading common law qualified privilege because the...

Court Disposition

Interlocutory application allowed in part; respondent required to serve a draft amended defence and pay 50% of the applicants' costs of the application.

Orders

  • ['The respondent serve a draft amended defence on the applicants on or before 24 January 2014 in a form consistent with the reasons for judgment published on 11 December 2013.' "The respondent pay 50% of the applicants' costs of the interlocutory application filed on 20 September 2013."]