Toben v Milne

Case [2014] NSWCA 200

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Toben v Milne [2014] NSWCA 200
Hearing dates:3 June 2014
Decision date: 26 June 2014
Before: Beazley P at [1];
Meagher JA at [34];
Ward JA at [1]
Decision:

1. Leave to appeal granted;

2. Appeal dismissed;

3. Leave granted to the appellant to replead imputation (a);

4. Each party to pay his and her own costs of the summons for leave to appeal and the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: DEFAMATION - Defamation Act 2005 - pleadings - imputations - Uniform Civil Procedure Rules 2005 , r 14.30 - whether imputations differ in substance - imputation too vague and imprecise - imputation bad in form
Legislation Cited: Defamation Act 2005, ss 8, 25, 26
Uniform Civil Procedure Rules 2005, r 14.30
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Bishop v Latimer (1861) 4 LT (NS) 775
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Griffith v Australian Broadcasting Corporation & Ors [2002] NSWSC 86
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 682
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77
Jones v Skelton [1963] 1 WLR 1362
Monte v Mirror Newspapers (1979) 2 NSWLR 663
Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749
Parker v Laws [2002] NSWSC 311
Singleton v Ffrench (1986) 5 NSWLR 425
Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 20 February 1980, unreported)
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Category:Principal judgment
Parties: Dr Fredrick Toben (Appellant)
Senator Christine Milne (Respondent)
Representation: Counsel:
C Evatt; R Rasmussen (Appellant)
T Blackburn SC; R Potter (Respondent)
Solicitors:
Carters Law Firm (Appellant)
Fitzgerald & Browne (Tas) (Respondent)
File Number(s):CA 2013/334740
 Decision under appeal 
Jurisdiction:
9111
Citation:
Toben v Mathieson; Toben v Nationwide News Pty Limited [2013] NSWSC 1530
Date of Decision:
2013-10-18 00:00:00
Before:
McCallum J
File Number(s):
2013/200128; 2013/200157

Judgment

  1. BEAZLEY P and WARD JA: The appellant has been granted leave to appeal from that part of the decision of McCallum J given on 18 October 2013 in which her Honour struck out imputation (a) pleaded by the appellant in defamation proceedings against the respondent, namely, that "[t]he plaintiff fabricated history". The imputation was said to have been conveyed by a portion of an article published in The Australian newspaper on…

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AGLC
Toben v Milne [2014] NSWCA 200
Case
[2014] NSWCA 200
Decision Date

CaseChat Overview and Summary

The appeal concerned a defamation action brought by the appellant, Toben, against the respondent, Milne. The dispute centred on the adequacy of the imputations pleaded by the appellant in his statement of claim. The matter came before the Court of Appeal of New South Wales.

The primary legal issue before the court was whether the imputation pleaded by the appellant, specifically imputation (a), was too vague and imprecise to constitute a valid cause of action in defamation under the Defamation Act 2005 and Rule 14.30 of the Uniform Civil Procedure Rules 2005. The court was required to determine if the pleaded imputation differed in substance from what could be reasonably inferred from the material complained of, and if it was bad in form.

The Court of Appeal found that imputation (a) was indeed too vague and imprecise, failing to clearly articulate the defamatory meaning allegedly conveyed. The court reasoned that a pleaded imputation must be sufficiently specific to allow the defendant to understand the case they have to meet and to enable the court to determine the meaning of the words complained of. While the appeal against the primary judge's decision to strike out the imputation was dismissed, the court granted the appellant leave to replead imputation (a) to rectify its deficiencies. The court ordered that leave to appeal be granted, the appeal be dismissed, and that each party bear their own costs of the summons for leave to appeal and the appeal.

Orders

Orders of the court

1. Leave to appeal granted;

2. Appeal dismissed;

3. Leave granted to the appellant to replead imputation (a);

4. Each party to pay his and her own costs of the summons for leave to appeal and the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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