King v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1450

King v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1450

The plaintiff's application failed because, although the Court could undertake a limited interlocutory assessment of whether a contextual imputation was capable of arising in addition to a plaintiff's imputation, the challenged contextual imputations were matters for the jury. The first contextual imputation was sufficiently distinct in passage and concept and should not be struck out; the second was reasonably capable of arising from the articles, including by implication from the juxtaposition of the severance package with hidden serious misconduct; and the third was capable because reasonable minds could differ and the articles as a whole raised concerns about corporate governance...

Jurisdiction
Australia
Judgment Date
09 October 2015
Procedural Posture
Defamation Action / Interlocutory Application Concerning Objections to Amended Defence of Contextual Truth
Outcome
Application to have contextual imputations struck out dismissed
Legal Topics
['contextual Truth' 'contextual Imputations' 'capacity of Imputations' 'pleadings' 'strike Out Application']
['defamation' 'civil Procedure'] ['contextual Truth' 'contextual Imputations' 'capacity of Imputations' 'pleadings' 'strike Out Application']

Case Brief

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Procedural Posture

Defamation Action / Interlocutory Application Concerning Objections to Amended Defence of Contextual Truth

Legal Issues

  1. 1 ['Whether objections that a contextual imputation is not capable of being conveyed "in addition to" the plaintiff\'s imputations should be determined before trial.' "Whether the first new contextual imputation was capable of being conveyed in addition to the plaintiff's imputation concerning gross incompetence as CEO." 'Whether the second new contextual imputation concerning acceptance of a termination package was capable of arising from the matters complained of.' 'Whether the third new contextual imputation concerning investigation by ASIC for breaches of duties of care and diligence was capable of arising.']

Ratio Decidendi

The plaintiff's application failed because, although the Court could undertake a limited interlocutory assessment of whether a contextual imputation was capable of arising in addition to a plaintiff's imputation, the challenged contextual imputations were matters for the jury. The first contextual imputation was sufficiently distinct in passage and concept and should not be struck out; the second was reasonably capable of arising from the articles, including by implication from the juxtaposition of the severance package with hidden serious misconduct; and the third was capable because reasonable minds could differ and the articles as a whole raised concerns about corporate governance...

Court Disposition

Application to have contextual imputations struck out dismissed

Orders

  • ['The first contextual imputation should not be struck out.' 'The second contextual imputation is capable of arising.' 'The third contextual imputation is capable of arising.']