Ell v Milne (No 3) [2012] NSWSC 985

Ell v Milne (No 3) [2012] NSWSC 985

The defendant was refused leave to replead the proposed contextual imputation because the imputation alleged that the plaintiff had knowledge of deception when making donations, but the particulars did not provide an adequate statement of facts, matters and circumstances from which that state of mind could conceivably be inferred. The Court did not refuse leave merely because the imputation was pleaded as a true innuendo or merely because the amendment was late.

Jurisdiction
Australia
Judgment Date
14 August 2012
Procedural Posture
Defamation Proceedings / Interlocutory Application for Leave to Replead Contextual Imputations
Outcome
Defendant's application for leave to replead contextual imputations refused.
Legal Topics
['contextual Truth' 'true Innuendo' 'substantial Truth' 'strike Out' 'leave to Amend Defence' 'particulars of State of Mind' 'costs']
['defamation'] ['contextual Truth' 'true Innuendo' 'substantial Truth' 'strike Out' 'leave to Amend Defence' 'particulars of State of Mind' 'costs']

Case Brief

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Procedural Posture

Defamation Proceedings / Interlocutory Application for Leave to Replead Contextual Imputations

Legal Issues

  1. 1 ["Whether a contextual imputation pleaded as a true innuendo is capable of satisfying s 26(b) of the Defamation Act 2005 where the plaintiff's imputations are alleged to arise in the natural and ordinary meaning of the matter complained of." 'Whether leave to replead should be refused because the proposed amendment was made too late after previous strike outs.' 'Whether the particulars provided for the proposed new contextual imputation were capable of sustaining an allegation that the plaintiff knowingly took part in a scheme to deceive the electors of Tweed Shire.']

Ratio Decidendi

The defendant was refused leave to replead the proposed contextual imputation because the imputation alleged that the plaintiff had knowledge of deception when making donations, but the particulars did not provide an adequate statement of facts, matters and circumstances from which that state of mind could conceivably be inferred. The Court did not refuse leave merely because the imputation was pleaded as a true innuendo or merely because the amendment was late.

Court Disposition

Defendant's application for leave to replead contextual imputations refused.

Orders

  • ["The defendant pay the plaintiff's costs of the applications to amend the defence." 'Orders 1 to 8 were made in the form of orders handed up by Mr Tobin as amended by the Court.']