NSW v IG Index plc & Ors

(2007) 17 VR 87; [2007] VSCA 212

Victorian Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Defences
3. › Fair comment
4. › Comment and fair comment at common law and under legislation of various States and Territories
5. › Whether factual substratum for comment was false
6. › Whether words carried necessary implication which was false
7. › Whether context of whole article relevant to determining truth of factual basis
1. Defamation
2. › Defences
3. › Fair comment
4. › Distinction between fact and comment
5. › Whether statement that organisation acted illegally was fact or opinion
6. › Whether question for tribunal of fact or judge
1. Practice and Procedure
2. › Striking out defences
3. › Interlocutory application
4. › Whether comment defences bound to fail
5. › Application of General Steel principles to strike-out of defences
6. › Whether question of meaning of words should be left to tribunal of fact

Quick Take

When determining whether to strike out a comment or fair comment defence in defamation proceedings, the court must consider the whole context in which the statements were made or published, not merely the particularised facts. Where words are capable of various meanings, the question whether statements are fact or comment, and whether the factual basis is true, must be left to the tribunal of fact. An omitted fact that shows the opinion expressed was wrong does not render false the facts upon which the comment was based.