Balzola v Federal Capital Press of Australia Pty Limited (ACN 008 394 063) & Anor [2015] NSWDC 23

Balzola v Federal Capital Press of Australia Pty Limited (ACN 008 394 063) & Anor [2015] NSWDC 23

The pleaded particulars in support of justification raised triable issues and should not be struck out at an interlocutory stage. Contextual imputations (A) and (B) were different in substance and kind from the plaintiff's imputations and carried different stings, but contextual imputation (C) was not sufficiently different and was not an imputation in addition to the plaintiff's imputations. The plaintiff was entitled to leave to plead back contextual imputations (A) and (B), as no sufficient prejudice was shown. The challenged reply particulars concerning the second defendant's personal involvement and the filing and maintenance of truth and contextual truth defences were embarrassing...

Jurisdiction
Australia
Judgment Date
06 March 2015
Procedural Posture
Civil Defamation Proceedings / Oral Interlocutory Applications to Strike Out Pleadings and for Leave to Amend
Outcome
Each party was partly successful; the plaintiff's applications were granted in part and refused in part, the defendants' strike out application was granted in part, and each party was ordered to pay his, her, or its own costs of the applications.
Legal Topics
['strike Out Applications' 'justification' 'contextual Truth' 'contextual Imputations' 'leave to Replead' 'express Malice' 'particulars']
['defamation' 'civil Procedure'] ['strike Out Applications' 'justification' 'contextual Truth' 'contextual Imputations' 'leave to Replead' 'express Malice' 'particulars']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Oral Interlocutory Applications to Strike Out Pleadings and for Leave to Amend

Legal Issues

  1. 1 ['Whether the particulars pleaded in support of the defence of justification should be struck out' 'Whether contextual imputations (A), (B) and (C) pleaded pursuant to s 26 of the Defamation Act 2005 (NSW) should be struck out' 'Whether the plaintiff should have leave to plead back the contextual imputations' 'Whether particulars in paragraph 2(b)(vii) and (ix), and paragraph 5, of the Reply to the Further Amended Defence should be struck out']

Ratio Decidendi

The pleaded particulars in support of justification raised triable issues and should not be struck out at an interlocutory stage. Contextual imputations (A) and (B) were different in substance and kind from the plaintiff's imputations and carried different stings, but contextual imputation (C) was not sufficiently different and was not an imputation in addition to the plaintiff's imputations. The plaintiff was entitled to leave to plead back contextual imputations (A) and (B), as no sufficient prejudice was shown. The challenged reply particulars concerning the second defendant's personal involvement and the filing and maintenance of truth and contextual truth defences were embarrassing...

Court Disposition

Each party was partly successful; the plaintiff's applications were granted in part and refused in part, the defendants' strike out application was granted in part, and each party was ordered to pay his, her, or its own costs of the applications.

Orders

  • ["The plaintiff's oral application to strike out the particulars pleaded in support of the defence of justification is refused." "The plaintiff's application to strike out the contextual imputations pleaded pursuant to s 26 of the Act is refused in respect of contextual imputations (A) and (B)." "The plaintiff's...