Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77

Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77

The Court held that s 26 of the Defamation Act 2005 (NSW) does not permit a defendant to contingently adopt a plaintiff's imputations as contextual imputations once found to be substantially true; once pleaded, the plaintiff's imputations remain 'the defamatory imputations of which the plaintiff complains' throughout the contextual truth defence process, regardless of findings under s 25. The particulars pleaded by the appellants in mitigation of damages lacked particularity, direct connection to the respondent, and amounted to a roving inquiry, and thus were properly struck out.

Parties
First Appellant: Fairfax Digital Australia & New Zealand Pty Ltd; Second Appellant: Linton Besser; Third Appellant: Kate McClymont; Respondent: Oscar Kazal
Jurisdiction
Australia
Judgment Date
17 April 2018
Procedural Posture
Appeal / Decision on Interlocutory Appeal From Supreme Court Order Striking Out Contextual Truth Defence and Particulars of Mitigation of Damages
Outcome
appeal dismissed (leave granted, appeal dismissed, costs to respondent)
Legal Topics
Contextual Truth Defence, Mitigation of Damages, Pleading in Defamation, Construction of Defamation Act 2005 (nsw) S 26
Defamation Contextual Truth Defence Mitigation of Damages Pleading in Defamation Construction of Defamation Act 2005 (nsw) S 26

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 18 Party arguments 2
Sign in to unlock

Parties

Fairfax Digital Australia & New Zealand Pty Ltd

First Appellant

Linton Besser

Second Appellant

Kate McClymont

Third Appellant

Oscar Kazal

Respondent

Procedural Posture

Appeal / Decision on Interlocutory Appeal From Supreme Court Order Striking Out Contextual Truth Defence and Particulars of Mitigation of Damages

Legal Issues

  1. 1 Whether a defendant may contingently plead a plaintiff's imputations as contextual imputations under s 26 of the Defamation Act 2005 (NSW)
  2. 2 Whether particulars pleaded in mitigation of damages relating to family conduct are adequate and relevant

Ratio Decidendi

The Court held that s 26 of the Defamation Act 2005 (NSW) does not permit a defendant to contingently adopt a plaintiff's imputations as contextual imputations once found to be substantially true; once pleaded, the plaintiff's imputations remain 'the defamatory imputations of which the plaintiff complains' throughout the contextual truth defence process, regardless of findings under s 25. The particulars pleaded by the appellants in mitigation of damages lacked particularity, direct connection to the respondent, and amounted to a roving inquiry, and thus were properly struck out.

Court Disposition

appeal dismissed (leave granted, appeal dismissed, costs to respondent)

Orders

  • Leave to appeal granted.
  • Appellants directed to file and serve a notice of appeal in accordance with the draft notice of appeal contained in the White Book within 7 days.