Toben v Milne

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.