Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44

Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44

The contextual truth plea was struck out because, although expressed contingently, it adopted a subset of the plaintiff's imputations as contextual imputations and thereby impermissibly pleaded back contrary to the binding authority of Kermode. The better view was that Kermode governs not only pleading but also the course of trial: true plaintiff imputations may mitigate damages but do not become contextual imputations under s 26. The mitigation particulars were struck out because their connection to Oscar Kazal's individual reputation was obscure and tenuous and would introduce a large separate case by side wind. Leave to discontinue against the first defendant was granted with each...

Jurisdiction
Australia
Judgment Date
10 February 2017
Procedural Posture
Defamation Proceedings / Interlocutory Applications Concerning the Form of the Defence, Particulars of Mitigation, and Costs of Discontinuance Against the First Defendant
Outcome
Plaintiff's applications to strike out the contextual truth defence and particulars of mitigation succeeded; leave granted to discontinue against the first defendant on terms as to costs.
Legal Topics
['contextual Truth' 'substantial Truth' 'pleading Back' 'mitigation of Damages' 'discontinuance' 'defamation List Practice Note']
['defamation' 'civil Procedure' 'costs'] ['contextual Truth' 'substantial Truth' 'pleading Back' 'mitigation of Damages' 'discontinuance' 'defamation List Practice Note']

Case Brief

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Procedural Posture

Defamation Proceedings / Interlocutory Applications Concerning the Form of the Defence, Particulars of Mitigation, and Costs of Discontinuance Against the First Defendant

Legal Issues

  1. 1 ["Whether the defendants' defence of contextual truth under s 26 of the Defamation Act 2005 (NSW), framed contingently by reference to imputations pleaded by the plaintiff and found substantially true, should be struck out." "Whether it is open to a defendant at trial to rely on a limited subset of the plaintiff's imputations that are found conveyed, defamatory and substantially true as contextual imputations for the purposes of s 26." "Whether the defendants' particulars of mitigation, concerning the Kazal family and other family members, were capable of mitigating damage to Oscar Kazal's individual reputation." "What costs order should be made on the plaintiff's discontinuance of the proceedings against the first defendant."]

Ratio Decidendi

The contextual truth plea was struck out because, although expressed contingently, it adopted a subset of the plaintiff's imputations as contextual imputations and thereby impermissibly pleaded back contrary to the binding authority of Kermode. The better view was that Kermode governs not only pleading but also the course of trial: true plaintiff imputations may mitigate damages but do not become contextual imputations under s 26. The mitigation particulars were struck out because their connection to Oscar Kazal's individual reputation was obscure and tenuous and would introduce a large separate case by side wind. Leave to discontinue against the first defendant was granted with each...

Court Disposition

Plaintiff's applications to strike out the contextual truth defence and particulars of mitigation succeeded; leave granted to discontinue against the first defendant on terms as to costs.

Orders

  • ['The defence of contextual truth be struck out.' 'The particulars of mitigation from paragraph 20 of the defence be struck out.' 'Leave is granted to the plaintiff to discontinue the proceedings as against the first defendant on terms that each of those parties bear his or its own costs.']