Besser v Kermode [2011] NSWCA 174

Besser v Kermode [2011] NSWCA 174

Section 26 of the Defamation Act 2005 (NSW), properly construed, does not permit a defendant to plead back any of the plaintiff's imputations as contextual imputations to establish a defence of contextual truth; contextual imputations must be additional to those of which the plaintiff complains.

Jurisdiction
Australia
Judgment Date
30 June 2011
Procedural Posture
Appeal / Leave to Appeal and Substantive Appeal Heard Concurrently; Appeal From Supreme Court of NSW Decision
Outcome
Appeal dismissed (after granting leave).
Legal Topics
['contextual Truth Defence' 'pleading in Defamation' 'uniform Defamation Laws' 'interpretation of Defamation Act 2005 (nsw)']
['defamation' 'statutory Interpretation' 'civil Procedure'] ['contextual Truth Defence' 'pleading in Defamation' 'uniform Defamation Laws' 'interpretation of Defamation Act 2005 (nsw)']

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Procedural Posture

Appeal / Leave to Appeal and Substantive Appeal Heard Concurrently; Appeal From Supreme Court of NSW Decision

Legal Issues

  1. 1 ["Whether s 26 of the Defamation Act 2005 (NSW) permits a defendant to 'plead back' the plaintiff's imputations as contextual imputations for the purpose of establishing the defence of contextual truth." 'Whether the statutory context and history support the continuation of the pleading-back practice under the 2005 Act.']

Ratio Decidendi

Section 26 of the Defamation Act 2005 (NSW), properly construed, does not permit a defendant to plead back any of the plaintiff's imputations as contextual imputations to establish a defence of contextual truth; contextual imputations must be additional to those of which the plaintiff complains.

Court Disposition

Appeal dismissed (after granting leave).

Orders

  • ['Grant leave to appeal.' 'Appellant to file the draft notice of appeal in a form which conforms to the issue raised on appeal within 7 days of these orders.' 'Appeal dismissed with costs.']