Fairfax Digital Australia & New Zealand Pty Ltd v Kazal

(2018) 97 NSWLR 547; [2018] NSWCA 77

NSW Court of Appeal

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Interrogate

Catchwords

1. Defamation
2. › Defences
3. › Contextual truth
4. › Defamation Act 2005 (NSW), s 26
5. › Whether defendant may contingently plead back plaintiff's imputations as contextual imputations
6. › Whether imputation found substantially true ceases to be one 'of which the plaintiff complains'
7. › Defamation Act 2005 (NSW), ss 8, 25, 26
1. Defamation
2. › Damages
3. › Mitigation of damages
4. › Particulars
5. › Whether reputation particulars concerning family members were directly relevant background context
6. › Whether particulars lacked precision and were inadequate
7. › Uniform Civil Procedure Rules 2005 (NSW), r 14.28
1. Defamation
2. › Defences
3. › Contextual truth
4. › Relationship between justification defence under s 25 and contextual truth defence under s 26
5. › Whether finding of substantial truth under s 25 must be taken into account in s 26(b) weighing exercise
6. › Defamation Act 2005 (NSW), ss 25, 26
1. Statutes
2. › Construction
3. › Uniform national legislation
4. › Whether intermediate appellate court should depart from interpretation of uniform legislation by another intermediate appellate court
5. › Whether interpretation plainly wrong

Quick Take

Defamation practitioners cannot rely on Chel v Fairfax Media Publications (No 6) and must accept that a plaintiff's imputation found to be substantially true under s 25 does not 'transmogrify' into a contextual imputation under s 26; the only avenue for a defendant to obtain benefit from partial justification is in mitigation of damages.