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James v Faddoul

James v Faddoul

Case [2008] NSWSC 176 5 March 2008

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CITATION: JAMES v FADDOUL [2008] NSWSC 176

HEARING DATE(S): 8 February 2008

JUDGMENT DATE :
5 March 2008

JUDGMENT OF: Latham J

DECISION: The Motion is dismissed with costs

CATCHWORDS: DEFAMATION - application to strike out defence pleadings - UCPR 4.15 - whether pleadings scandalous, oppressive or an abuse of process - relevance of pleadings to defence of truth and to contextual imputations - capacity of contextual imputations to arise from published material

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: James v Faddoul [2007] NSWSC 821
General Steele Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125
Edward Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364
Batistatos v Roads and Traffic Authority of NSW ; Batistatos v Newcastle City Council [2006] HCA 27 ; (2006) 226 CLR 256
Millington v Loring (1880) 6 QBD 190
Cavill Business Solutions v Jackson (2005) WASC 138
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586
Shari-Lea Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7
Moorgate Tobacco Co Ltd v Phillip Morris Limited (1984) 156 CLR 414 ; [1984] HCA 73
Maisel v Financial Times (1915) 112 LT 953
Allen v John Fairfax & Sons Ltd NSWSC (unreported) 2/12/88
James & Anor. v Faddoul & Anor. [2006] NSWSC 1330

PARTIES:
Adriana James (First Plaintiff)
Everett Woodbury James (Second Plaintiff)
Bluespark Pty Limited (Third Plaintiff)
Roberta Faddoul (First Defendant
George Faddoul (Second Defendant)

FILE NUMBER(S): SC 20421/2006

COUNSEL: R Pepper (Plaintiffs)
M Richardson (Defendants)

SOLICITORS: Henry Davis York (Plaintiffs)
John Winter & Slattery Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

LATHAM J

5 MARCH 2008

2006/20421 ADRIANA JAMES & ORS. v ROBERTA FADDOUL& ANOR
JUDGMENT

1 Since the commencement of proceedings in this Court by the plaintiffs in August 2006, there have been a number of skirmishes concerning the pleadings between the parties that have taken up considerable judicial time and resources, ostensibly with a view to allowing the substantive matter to be listed for hearing. This judgment represents yet another step in that process.

2 The background to the proceedings has been summarised by Price J in James v Faddoul [2007] NSWSC 821 at [3] – [6] and I see no need to repeat it here. It is sufficient to note that the published material giving rise to the plaintiffs’ actions in defamation, breach of confidence and injurious falsehood are constituted by four emails, with attachments depicting the first plaintiff naked or partially naked in sexually suggestive poses. The four images were stored in a laptop computer that originally belonged to the plaintiffs. The computer was given to the defendants at the end of 2005. The emails were sent in May 2006.

3 In respect of the first and third emails, including the images attached to them, the plaintiffs allege that two imputations, namely, that the first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading James v Faddoul

Details

AGLC: James v Faddoul [2008] NSWSC 176
Case: [2008] NSWSC 176
Decision Date: 5 March 2008

CaseChat Overview and Summary

The proceedings in James v Faddoul concerned a defamation action brought by the plaintiff, James, against the defendant, Faddoul. The plaintiff alleged that defamatory statements made by the defendant in published material led to damage to his reputation. The case was heard in the Federal Court of Australia. The defendant sought to strike out certain defence pleadings, arguing that they were scandalous, oppressive, or an abuse of process under UCPR 4.15. The court was required to determine whether the defendant's pleadings met these criteria and whether they were relevant to the defence of truth and contextual imputations.

The court considered the nature of the pleadings and their relevance to the defence of truth. It examined whether the pleadings were scandalous, oppressive, or an abuse of process. The court noted that the pleadings were necessary to establish the defence of truth and to address the contextual imputations arising from the published material. The court held that the pleadings were not scandalous, oppressive, or an abuse of process, as they were relevant to the defence and did not exceed the scope of a fair and proper defence. The court emphasised that contextual imputations could indeed arise from published material and that the pleadings were essential to address these imputations.

Based on the reasoning above, the court dismissed the plaintiff's application to strike out the defence pleadings. The court concluded that the pleadings were relevant to the defence of truth and the contextual imputations, and did not constitute a scandalous, oppressive, or abusive process. The court allowed the defence pleadings to stand and directed the parties to proceed with the trial. The final orders included the dismissal of the plaintiff's application to strike out the defence pleadings and directions for the continuation of the trial.

Orders