Bass v McDonald & TCN Channel Nine Pty Ltd (No.2) [2001] NSWSC 955

Bass v McDonald & TCN Channel Nine Pty Ltd (No.2) [2001] NSWSC 955

Where a defendant publishes a riposte and establishes common law qualified privilege on that basis, the defence is not defeated by particulars alleging the publisher's lack of belief in truth, recklessness, belief in falsity, or knowledge that the person making the riposte or on whose behalf it was made was predominantly motivated by an intention to injure the plaintiff. Accordingly, paragraph 2 of the further amended reply did not provide an answer in law to the Second Defendant's pleaded common law qualified privilege defence.

Jurisdiction
Australia
Judgment Date
26 October 2001
Procedural Posture
Defamation / Ruling During Ongoing Trial on Whether Pleaded Malice Answered the Second Defendant's Defence of Common Law Qualified Privilege
Outcome
Paragraph 2 of the further amended reply was ruled not to provide an answer in law to the Second Defendant's defence of common law qualified privilege, if established, as particularised in paragraph 2 of the amended defence.
Legal Topics
['common Law Qualified Privilege' 'riposte' 'malice' 'state of Mind as to Truth or Falsity' 'predominant Intention to Injure']
['defamation'] ['common Law Qualified Privilege' 'riposte' 'malice' 'state of Mind as to Truth or Falsity' 'predominant Intention to Injure']

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Procedural Posture

Defamation / Ruling During Ongoing Trial on Whether Pleaded Malice Answered the Second Defendant's Defence of Common Law Qualified Privilege

Legal Issues

  1. 1 ["Whether the plaintiff's particulars of malice based on the defendant's state of mind concerning the truth or falsity of the publication were an answer in law to a defence of common law qualified privilege based on publication of a riposte." "Whether the defendant's alleged knowledge that the BWIU or persons associated with it were predominantly motivated by an intention to injure the plaintiff was an answer in law to the riposte qualified privilege defence."]

Ratio Decidendi

Where a defendant publishes a riposte and establishes common law qualified privilege on that basis, the defence is not defeated by particulars alleging the publisher's lack of belief in truth, recklessness, belief in falsity, or knowledge that the person making the riposte or on whose behalf it was made was predominantly motivated by an intention to injure the plaintiff. Accordingly, paragraph 2 of the further amended reply did not provide an answer in law to the Second Defendant's pleaded common law qualified privilege defence.

Court Disposition

Paragraph 2 of the further amended reply was ruled not to provide an answer in law to the Second Defendant's defence of common law qualified privilege, if established, as particularised in paragraph 2 of the amended defence.

Orders

  • ["Paragraph 2 of the further amended reply does not provide an answer in law to the defendant's defence of common law qualified privilege, if established, as particularised in paragraph 2 of the particulars of common law qualified privilege in the defendant's amended defence."]