Hughes v ISPT Pty Ltd (No. 2) [2010] NSWDC 282

Hughes v ISPT Pty Ltd (No. 2) [2010] NSWDC 282

Because there were conflicting single-judge decisions on the construction and practical operation of s 26, an appeal in Kermode was pending, striking out the defence would involve needless expense and likely adjournment of the trial, and the safer course was to continue to interpret s 26 in the time-honoured way pending appellate clarification or legislative amendment, the plaintiff's application to strike out the first defendant's contextual truth defence was refused.

Jurisdiction
Australia
Judgment Date
10 December 2010
Procedural Posture
Civil Defamation Proceedings / Plaintiff's Application to Strike Out the First Defendant's S 26 Defence of Contextual Truth Before Trial
Outcome
Application dismissed; costs reserved.
Legal Topics
['defence of Contextual Truth' 'application to Strike Out Defence' 'section 26 Defamation Act 2005 (nsw)' 'conflicting Single Judge Decisions' 'adjournment of Trial']
['tort' 'defamation' 'civil Procedure'] ['defence of Contextual Truth' 'application to Strike Out Defence' 'section 26 Defamation Act 2005 (nsw)' 'conflicting Single Judge Decisions' 'adjournment of Trial']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Plaintiff's Application to Strike Out the First Defendant's S 26 Defence of Contextual Truth Before Trial

Legal Issues

  1. 1 ["Whether the first defendant's defence of contextual truth under s 26 Defamation Act 2005 (NSW) should be struck out on the basis of Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852." 'How the District Court should deal with a pleaded s 26 defence pending appellate determination of conflicting Supreme Court authority on the construction of s 26.' 'Whether striking out the defence would cause unnecessary expense and adjournment of the imminent trial.']

Ratio Decidendi

Because there were conflicting single-judge decisions on the construction and practical operation of s 26, an appeal in Kermode was pending, striking out the defence would involve needless expense and likely adjournment of the trial, and the safer course was to continue to interpret s 26 in the time-honoured way pending appellate clarification or legislative amendment, the plaintiff's application to strike out the first defendant's contextual truth defence was refused.

Court Disposition

Application dismissed; costs reserved.

Orders

  • ['Application by the plaintiff to strike out the defence of contextual truth on the basis of Kermode is dismissed (Gibson DCJ to email judgment to the parties).' 'Costs reserved.']