Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 Hearing dates: 20 and 21 April 2015 Decision date: 04 June 2015 Before: McColl JA at [1];
Basten JA at [119];
Macfarlan JA at [230]Decision: (1) Grant the applicants leave to appeal from the orders made by McCallum J in the Common Law Division on 9 October 2014.
(2) Direct that the applicants file a notice of appeal in the form of the draft notice of appeal contained in the white book within seven days.
(3) Dismiss the appeal.
(4) Order the applicants to pay the respondent’s costs of the proceedings in this Court.Catchwords: APPEAL – interlocutory – defendant’s pleading struck out – whether defence available at law – whether pleading had tendency to prejudice, embarrass or cause delay
DEFAMATION – defences – whether David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 6 stated a separate common law defence of justification – whether defendant bound by plaintiff’s pleadings – whether defendant able to plead and justify alternative imputations not substantially different from plaintiff’s imputations – English authorities reviewed
PRACTICE AND PROCEDURE – defamation – defence – pleading imputation – whether defendant able to plead alternative imputations not substantially different from plaintiff’s imputations – whether Uniform Civil Procedure Rules 2005 (NSW), rr 14.30-14.32 preclude such pleading
STATUTORY INTERPRETATION – uniform defamation laws – interrelationship of statute and common law – effect of common purpose of uniform legislation in interpretation of Defamation Act 2005 (NSW) – meaning of “the general law” as preserved by the Defamation Act, s 6 and s 24 – whether reference to general law includes judicial exegesis of statutory provisions – whether preserved general law reflects modifications by legislative instruments or by acts of Parliament only – whether Uniform Civil Procedure Rules affected common law defence of justification
WORDS AND PHRASES – “the general law” – “the common law and equity” – Defamation Act 2005 (NSW)Legislation Cited: Civil Procedure Act 2005 (NSW), s 56-60
Crimes Act 1900 (NSW), s 23
Defamation Act 1901 (NSW), s 6
Defamation Act 1912 (NSW), s 7
Defamation Act 1958 (NSW), s 16
Defamation Act 1974 (NSW), s 15
Defamation Act 2005 (NSW), ss 4, 6, 8, 11, 21, 22, 24, 25, 26, 30
Defamation Act 2005 (Vic), ss 6, 8, 24, 25
Defamation Act 1992 (NZ), s 8
Defamation Act (WA) 2005
Interpretation Act 1987 (NSW), ss 3, 28, 30
Juries Act NT (1980), s 6A
Native Title Act 1993 (Cth), s 12
Slander & Libel Act 1847, 11 Vic c 13
Supreme Court Rules 1970 (NSW) Pt 67 r 11(3)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.28, 14.30, 14.31, 14.32, 14.42, 15.1, 15.21, 15.22; Pt 14, Divs 2, 6; Pt 15 Div 4
Wrongs Act 1936 (SA), s 7Cases Cited: Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206
Australian Securities Commission v Marlborough…
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- Case
- [2015] NSWCA 154
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the common law defence of justification, as it existed prior to the Uniform Defamation Acts, permitted a defendant to plead and justify imputations that were not identical to those pleaded by the plaintiff, provided they were not substantially different. Further, the Court had to consider whether the Uniform Civil Procedure Rules 2005 (NSW), specifically rules 14.30-14.32, precluded such pleading, and how the Defamation Act 2005 (NSW) preserved the "general law" and its interrelationship with common law defences.
The Court reasoned that the decision in *David Syme & Co Ltd v Hore-Lacy* [2000] 1 VR 6 did not establish a separate common law defence of justification but rather affirmed the existing principles. It held that a defendant is not bound by the plaintiff's pleadings and may plead and justify alternative imputations, provided they are not substantially different from those alleged by the plaintiff. The Court found that the Uniform Civil Procedure Rules did not preclude such pleading and that the "general law" preserved by the Defamation Act 2005 (NSW) included the common law as it stood, including the ability to plead alternative imputations.
The Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering the applicants to pay the respondent's costs.
Orders
Orders of the court
(1) Grant the applicants leave to appeal from the orders made by McCallum J in the Common Law Division on 9 October 2014.
(2) Direct that the applicants file a notice of appeal in the form of the draft notice of appeal contained in the white book within seven days.
(3) Dismiss the appeal.
(4) Order the applicants to pay the respondent’s costs of the proceedings in this Court.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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