McBride v ABC [2000] NSWSC 747

McBride v ABC [2000] NSWSC 747

Contextual imputation 6(a)(1) was sufficiently precise and not embarrassing, but the s 16 defence could not go to the jury because the substantial truth of an imputation that the plaintiff engaged in scientific fraud could not rationally be considered as so affecting his reputation that the pleaded imputations concerning endangering women patients and disregard for their welfare and rights did not further injure that reputation. Contextual imputation 6(a)(2) was bad in form because its concluding words were tautological and, in substance, the broadcast was incapable of conveying that the plaintiff personally sought to conceal his scientific fraud. The s 13 particulars and mitigation...

Jurisdiction
Australia
Judgment Date
04 August 2000
Procedural Posture
Defamation / Interlocutory Notice of Motion to Strike Out Contextual Imputations and Particulars, and for Separate Determination of Capacity
Outcome
Plaintiff's motion substantially allowed; contextual imputation 6(a)(1) not struck out for form, but contextual imputation 6(a)(2), the s 16 defence, s 13 particulars and mitigation particulars were ruled against or struck out; defendant ordered to pay costs.
Legal Topics
['contextual Imputations' 'contextual Truth' 'capacity' 'strike Out' 'section 13 Defence' 'mitigation of Damages' 'bad Reputation' 'particulars']
['defamation' 'civil Procedure'] ['contextual Imputations' 'contextual Truth' 'capacity' 'strike Out' 'section 13 Defence' 'mitigation of Damages' 'bad Reputation' 'particulars']

Case Brief

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Procedural Posture

Defamation / Interlocutory Notice of Motion to Strike Out Contextual Imputations and Particulars, and for Separate Determination of Capacity

Legal Issues

  1. 1 ['Whether contextual imputation 6(a)(1), that the plaintiff as a medical practitioner engaged in scientific fraud, was embarrassing or bad in form.' 'Whether contextual imputation 6(a)(2), that the plaintiff sought to conceal his scientific fraud in order to avoid its detection, was embarrassing or bad in form and capable of being conveyed by the matter complained of.' 'Whether the defence of contextual justification under s 16 of the Defamation Act 1974 was available as a matter of law.' 'Whether the particulars supporting the s 13 defence were embarrassing or otherwise incapable of supporting that defence.' 'Whether the particulars relied upon in mitigation of damages by reference to bad reputation were sufficient and admissible in principle.']

Ratio Decidendi

Contextual imputation 6(a)(1) was sufficiently precise and not embarrassing, but the s 16 defence could not go to the jury because the substantial truth of an imputation that the plaintiff engaged in scientific fraud could not rationally be considered as so affecting his reputation that the pleaded imputations concerning endangering women patients and disregard for their welfare and rights did not further injure that reputation. Contextual imputation 6(a)(2) was bad in form because its concluding words were tautological and, in substance, the broadcast was incapable of conveying that the plaintiff personally sought to conceal his scientific fraud. The s 13 particulars and mitigation...

Court Disposition

Plaintiff's motion substantially allowed; contextual imputation 6(a)(1) not struck out for form, but contextual imputation 6(a)(2), the s 16 defence, s 13 particulars and mitigation particulars were ruled against or struck out; defendant ordered to pay costs.

Orders

  • ['I decline to strike out contextual imputation 6(a)(1) on the basis that it is embarrassing by reason of being bad in form.' 'I strike out contextual imputation 6(a)(2) as embarrassing by reason of defects in form in accordance with these reasons.' 'I otherwise hold as a matter of law that the matter complained of...