Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852

Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852

The language of s 26 of the Defamation Act 2005 does not permit defendants to plead back the plaintiff's imputations as contextual imputations for the contextual truth defence; contextual imputations must differ in substance from those pleaded by the plaintiff.

Parties
Plaintiff: Reginald Lionel Kermode; First Defendant: Fairfax Media Publications Pty Ltd; Second Defendant: Fairfax Digital Australia & New Zealand Pty Ltd; Third Defendant: Linton Besser
Jurisdiction
Australia
Judgment Date
04 August 2010
Procedural Posture
Defamation / Interlocutory Ruling on Pleadings
Outcome
Paragraphs 5(a), 9(a), and 13(a) and contextual imputations (A) and (C) of the Defence struck out; defendants have liberty to file an amended defence.
Legal Topics
Contextual Truth Defence, Pleadings, Statutory Interpretation
Defamation Civil Procedure Contextual Truth Defence Pleadings Statutory Interpretation

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Parties

Reginald Lionel Kermode

Plaintiff

Fairfax Media Publications Pty Ltd

First Defendant

Fairfax Digital Australia & New Zealand Pty Ltd

Second Defendant

Linton Besser

Third Defendant

Procedural Posture

Defamation / Interlocutory Ruling on Pleadings

Legal Issues

  1. 1 Whether s 26 of the Defamation Act 2005 allows defendants to rely on imputations pleaded by the plaintiff as part of a contextual truth defence
  2. 2 Whether contextual imputations pleaded by the defendant differ in substance from those pleaded by the plaintiff

Ratio Decidendi

The language of s 26 of the Defamation Act 2005 does not permit defendants to plead back the plaintiff's imputations as contextual imputations for the contextual truth defence; contextual imputations must differ in substance from those pleaded by the plaintiff.

Court Disposition

Paragraphs 5(a), 9(a), and 13(a) and contextual imputations (A) and (C) of the Defence struck out; defendants have liberty to file an amended defence.

Orders

  • Paragraphs 5(a), 9(a) and 13(a) of the Defence be struck out.
  • Contextual imputations (A) and (C) be struck out.