Ell v Milne (No 2) [2012] NSWSC 259

Ell v Milne (No 2) [2012] NSWSC 259

Contextual imputation 8(a)(i), read in the context of the matter complained of, clearly conveyed a notion of impropriety and was pleaded with adequate specificity, so it was not liable to be struck out. Proposed contextual imputation 8(a)(ii) carried a substantial risk of confusion or embarrassment because of inconsistent use of the word "independent", temporal confusion about the plaintiff's alleged knowledge, and failure to distil the defamatory act or condition attributed to the plaintiff; leave to amend to plead it was therefore refused.

Jurisdiction
Australia
Judgment Date
22 March 2012
Procedural Posture
Defamation Proceedings / Interlocutory Applications Concerning Strike Out and Leave to Amend Contextual Imputations
Outcome
Plaintiff's application to have contextual imputation 8(a)(i) struck out refused. Defendant's application for leave to amend contextual imputation 8(a)(ii) refused.
Legal Topics
['contextual Truth' 'contextual Imputations' 'true Innuendo' 'strike Out of Pleadings' 'leave to Amend']
['defamation' 'civil Procedure'] ['contextual Truth' 'contextual Imputations' 'true Innuendo' 'strike Out of Pleadings' 'leave to Amend']

Case Brief

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Procedural Posture

Defamation Proceedings / Interlocutory Applications Concerning Strike Out and Leave to Amend Contextual Imputations

Legal Issues

  1. 1 ['Whether contextual imputation 8(a)(i) was bad in form for want of specificity and liable to be struck out.' 'Whether the defendant should have leave to amend the defence to plead contextual imputation 8(a)(ii).' 'Whether contextual imputation 8(a)(ii) was embarrassing or liable to cause confusion.' 'Whether a true innuendo is capable of sustaining a defence of contextual truth under s26 of the Defamation Act 2005.']

Ratio Decidendi

Contextual imputation 8(a)(i), read in the context of the matter complained of, clearly conveyed a notion of impropriety and was pleaded with adequate specificity, so it was not liable to be struck out. Proposed contextual imputation 8(a)(ii) carried a substantial risk of confusion or embarrassment because of inconsistent use of the word "independent", temporal confusion about the plaintiff's alleged knowledge, and failure to distil the defamatory act or condition attributed to the plaintiff; leave to amend to plead it was therefore refused.

Court Disposition

Plaintiff's application to have contextual imputation 8(a)(i) struck out refused. Defendant's application for leave to amend contextual imputation 8(a)(ii) refused.

Orders

  • ["Plaintiff's application to have contextual imputation 8(a)(i) struck out refused." "Defendant's application for leave to amend contextual imputation 8(a)(ii) refused."]