Defamation & Protecting Reputation
A complete guide to acting in defamation and related areas of the law including privacy, breach of confidence, injunctive relief, injurious falsehood, and misleading and deceptive conduct.
Recent publication updates can be viewed on Obiter - our blog.
Guides in this publication
MATTER PLAN
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“ New South Wales The term ‘subpoena’ is adapted from Latin, but was never a Latin word as such. It has long been an accepted English word. The plural, used in this guide and generally, is therefore ‘subpoenas’, not ‘subpoenae’. ”
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“ This guide deals mainly with subpoenas to produce documents, subpoenas ‘duces tecum’. Much of the law related to subpoenas also applies to subpoenas to give evidence, subpoena ‘ad testificandu’, but there are important, mostly practical, differences. A subpoena can also be both a subpoena to ... ”
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“ See s 3 and the Dictionary of the Evidence Act 1995: “document” means any record of information, and includes: ”
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“ One of the most important things to know about subpoena law is the so called ‘implied undertaking’, also known as the ‘Harman undertaking’, or the ‘Hearne v Street undertaking’. The common law provides that production of and access to documents under subpoena, even without any other court order, ... ”
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“ One needs a good understanding of the law and practice relating to subpoenas to be able to advise and assist clients who receive a subpoena. Such an understanding will then make you far better equipped to draft and issue subpoenas for clients who are parties to litigation. Once you understand and ... ”
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“ Recipients of subpoenas are usually strangers to the court case in which the subpoena is issued. The subpoena comes as a surprise and an unwelcome imposition. Unless they are familiar with litigation, or have received subpoenas before, they will be unlikely to know what to do and may feel angry, ... ”
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“ Unfortunately, given the unwelcome impost that a subpoena constitutes, one of the most common responses for clients who receive a subpoena is to ignore it and hope it goes away. This, of course, almost never works. A subpoena is a court order. It cannot be ignored. Failure to comply with it may ... ”
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“ At the other end of the spectrum, is another inappropriate but very common response to a subpoena, especially a poorly drafted one which calls for ‘All documents about X’, where your client receives the subpoena and immediately brings their life and/or their business to a screaming halt so that ... ”
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“ It is important to read a subpoena carefully when it is received as there is a lot of helpful information on the subpoena itself such as: Out of which court and in what type of proceedings was it issued? For example, is it a criminal, civil or family law case? ”
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“ The majority of subpoenas are not objectionable, or at least perhaps not worth objecting to. A reasonably precise call in a subpoena for a limited number of clearly identifiable and uncontroversial documents, that your client has in their possession or control and that are clearly relevant to the ... ”
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“ Once instructions have been taken and the scope of the subpoena considered, if there are, or may be, any objections they should be communicated to the issuing party. Documents should not be produced until the objection is either resolved or, depending upon the nature of the objection, until ... ”
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“ In criminal cases s 225 Criminal Procedure Act 1986 provides that a person named in a subpoena is not required to produce any document or thing if it is not specified or sufficiently described in the subpoena. This is basically a matter of common sense. If a subpoena does not describe something, ... ”
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“ The threshold issue for production of documents under any subpoena is the requirement that there be a legitimate forensic purpose (LFP) for the documents sought. If there is not, then the subpoena, or the objectionable part of it, will be set aside as an abuse of process. There is extensive ... ”
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“ In criminal cases Alister and Saleam have been applied, and the ‘on the cards’ test approved, in cases such as Attorney General for New South Wales v Dylan Chidgey [2008] NSW CCA 65 and Perish v R; Lawton v R [2015] NSWCCA 237 at [56] – [57]. There is always a difficult balancing act for a court ... ”
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“ The leading civil case is Waind v Hill and National Employers’ Mutual General Association [1978] 1 NSWLR 372 per Moffitt P at 379-382 and was followed in such cases as A v Z [2007] NSWSC 899; ICAP Pty Ltd & Ors v Moebes & Anor [2009] NSWSC 306 and McLaughlin v Dungowan Manly Pty Ltd [2009] NSWSC ... ”
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“ In the federal jurisdiction, the requirement for an issuing party to establish LFP is well recognised via such cases as: Re Trade Practices Commission v Arnotts Limited; Arnott’S Biscuits Limited; Fledspac Pty Limited and the Dickens Corporation Pty Limited [1989] FCA 248; ”
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“ Subpoenas in family law cases, even though they are civil cases and the above federal authorities apply, are effectively a different category. In the family law jurisdiction, there are no pleadings as such, merely an Application and a Response, supported by affidavit evidence and almost anything ... ”
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“ Most often the LFP objection will relate to the breadth of the subpoena - the failure to limit the call in the schedule to identifiable and relevant documents only, thereby potentially capturing documents for which there is no LFP. Often a subpoena will be drafted carelessly so as to seek ... ”
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“ A subpoena may be oppressive if it places an undue burden on the producing party to produce documents that do not have sufficient relevance. This is a balancing exercise, intrinsically connected to LFP. Where a subpoena causes unreasonable trouble and expense to your client then an objection is ... ”
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“ Public interest immunity (PII) is a substantive common law privilege and can be claimed by governments over confidential information, the disclosure of which would damage the public interest. It was articulated in Alister v R (“Hilton Bombing case”) [1984] HCA 85 and has frequently been claimed, ... ”
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“ There are numerous pieces of legislation which protect documents from production under subpoena. Mostly, those documents will be held by government departments or agencies. In many of those instances, there is no point issuing a subpoena for such documents as they cannot and will not be produced ... ”
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“ Legal Professional Privilege (LPP) is a complex area. It exists in both common law and by virtue of ss 117-119 Evidence Act 1995 and it depends which jurisdiction you are in as to which iteration applies. Both forms of the privilege apply the dominant purpose test: Esso Australia Resources v ... ”
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“ If the subpoena is pressed over your objection you will need to file a Notice of Motion, or an Application in a case in the federal jurisdiction, asking for an order to set it aside and/or seeking orders that your client be excused from producing any material on an appropriate ground, for example, ... ”
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“ In civil cases Part 33 Uniform Civil Procedure Rules 2005 contains the provisions relating to subpoenas. In criminal cases subpoenas are covered in s 220 - 232 Criminal Procedure Act 1986. ”
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“ A subpoena is a tactical tool in litigation, but should be employed as part of the overall strategy. A subpoena allows you to obtain evidence that might support your client’s case. It should be an integral part of the case theory. You should issue a subpoena to obtain documents that are likely to ... ”
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“ In short – not too early, but not too late! As noted above, the subpoenas that need to be issued initially will become evident from your instructions and your formulation of a case theory. Those subpoenas can and should be issued as early as reasonably possible, to start building your case. ... ”
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“ Applying to the court You can issue a subpoena by attending at the registry, or filing online. You should provide the court with sufficient copies to allow for you, the recipient, the court and all parties to the litigation to receive one. A subpoena can be issued out of any registry of the ... ”
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“ Who is the right recipient Subpoenas need to be addressed to a person. ”
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“ Scenario: Your client Vicki Victim is the plaintiff in a civil claim for damages against Peter Puncher for injuries sustained as a result of an assault upon your client, which occurred in the foyer of a branch of the Institutional Bank of Australia, where Mr Puncher has since been convicted by the ... ”
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“ Always check the specific rules for service for the court where you are issuing the subpoena: see the links to court websites in Power to Issue a Subpoena above or Further Information below. Generally, subpoenas require personal service, unless they are directed to police or other public ... ”
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“ An addressee need not comply with the requirements of a subpoena unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required. See r 33.6 Uniform Civil Procedure Rules 2005 and s 224 Criminal Procedure Act 1986. Conduct money ... ”
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“ In criminal proceedings, only a party to the proceedings can seek or obtain a costs order. A third-party recipient of a subpoena is not a party: s 221 Criminal Procedure Act 1986. This effectively means there are no costs sanctions for a criminal defendant issuing numerous and objectionable, ... ”
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“ A subpoena is a court order requiring production of stated documents to the court. Even if you object, unless the objection is for oppression or relates to a claim of privilege, in which case see Hancock v Rinehart (Privilege) [2016] NSWSC 12 and the discussion of legal professional privilege ... ”
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“ It is common that the recipient does not produce the required documents within the time stipulated in the subpoena. In the event this occurs, the recipient and issuing party should agree on a later date for production. The issuing party should then attend court on the return date and advise the ... ”
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“ As a subpoena is an order of the court, any failure to comply is contempt of court and the non-complying recipient can be dealt with for contempt. Rule 33.12 Uniform Civil Procedure Rules 2005 provides for this explicitly. The rules also provide for an arrest warrant to issue where non-compliance ... ”
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“ When a subpoena is issued the documents are produced to the court, not to you. This is fundamental and clearly stated on the subpoena. However, it is surprising how often subpoena recipients, especially those who have not had much prior experience with court proceedings, will respond to a subpoena ... ”
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“ It is important to know how access orders are dealt with in different courts. In the Supreme Court, for example, unless any objection is made to the court at the time of production, the access order that will apply is the one noted on the subpoena by the issuing party, otherwise general access ... ”
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“ Australia’s Uniform Defamation Laws There are no provisions for jury trials in South Australia, the Northern Territory or the Australian Capital Territory uniform laws. Tasmania omits section 10 prohibiting actions by or against the dead. ”
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“ Trade Marks Legal Guide Neighbourhood disputes Legal Guides ”
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“ Defamation legal principles remain grounded in the common law and the uniform Defamation Act 2005 provides that the operation of the common law as regards the tort of defamation is not affected by the new statutory regime except to the extent that the statute provides otherwise. The starting point ... ”
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“ The essential difference between an agreement and a deed is that of consideration. An agreement must have consideration moving between the parties. It usually involves a promise made for a promise - for example, I will transfer ownership of this horse to you in return for payment of $1,000. ”
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“ An indemnity clause provides that the indemnifier will pay liabilities incurred by the indemnified party as a result of performance of the contract. For example, a principal may indemnify their agent for any liability incurred while carrying out their duties. Indemnity clauses are often included ... ”
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“ Defamation claims over offensive but innocuous remarks are serious threats to the credibility of the justice system, especially in cases where a plaintiff has suffered no real harm. These claims are likely to be relegated to legal history anytime soon so you need to think twice about commencing a ... ”
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“ While the United States Constitution includes the right to free speech in the First Amendment, there is no comparable constitutional right in the United Kingdom or Australia. In the UK, section 10 of the Human Rights Act 1998 includes the right to freedom of expression subject to such restrictions ... ”
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“ A plaintiff will inevitably read more into a defamatory publication than the defendant with heightened sensitivity about possible meanings that could be derived from the publication. The ordinary reasonable reader or viewer as represented by the jury will generally find a meaning or meanings in ... ”
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“ Journalists – and writers more generally – will usually send a list of questions to anyone they are writing about who is likely to object to what is being said. If you defame a person without first giving them the opportunity to respond to what you are saying then you will pay aggravated damages ... ”
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“ All common law defences with the exception of truth and absolute privilege are defeated by malice. Malice at common law includes improper motive, ill will, knowing a publication was false and reckless indifference to truth or falsity. Like the common law defences, each of the statutory defences – ... ”
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“ For the defence of fair comment to succeed, there must be evidence that the comment represents the defendant’s own honestly held point of view. The test is whether a fair-minded person could honestly express the opinion in question, not whether the opinion is agreeable or even rational. In fact, ... ”
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“ In order to obtain the benefit of the qualified privilege defence at common law, you should be careful to publish defamatory material only to people with whom you have a common or reciprocal interest involving your business or private affairs and in circumstances where you have a legal or moral ... ”
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“ There are severe cost penalties under Australian law for running an unsuccessful truth defence in defamation proceedings. You will probably be advised to drop the defence if other defences are available such as comment and qualified privilege. By all means plead truth initially to put the ... ”
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“ In a case where there is little doubt that the plaintiff has been defamed, a grovelling and apologetic defendant is more likely to avoid proceedings than an aggressive and unapologetic one. Either way, the wise defendant will offer to make amends by following the procedure laid down in Part 3 of ... ”
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“ In the course of completing this work, I have laboured the point that a gross injustice seems to occur in circumstances where costs of a million plus dollars follow a paltry damages award to the plaintiff of a few thousand dollars. Despite the offer to make amends provisions in the uniform ... ”
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“ Publishing material that constitutes an attack on a person’s fundamental self-worth may be so gross as to amount to a breach of their privacy. The harm done by publicly broadcasting explicit sexual material without the permission of the person depicted in the material has long been regarded as so ... ”
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“ At the time of writing, I was consulted by a woman who worked for a state government minister. Her privacy rights had been breached when confidential information about the cessation of her employment was inadvertently circulated to a number of employment websites and parliamentary email addresses. ... ”
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“ Another good alternative to defamation proceedings is the misleading or deceptive conduct action under section 18 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth) formerly section 52 of the Trade Practices Act 1974). The usual applicant will be a ... ”
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“ Malicious or injurious falsehood is a tort that provides a remedy where the defendant maliciously publishes false material causing special damage to the plaintiff or the plaintiff’s property or business. The action is frequently prosecuted in conjunction with a claim for misleading and deceptive ... ”
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“ Defamation practitioners will be familiar with the case where a business or professional client wants to stop a previous customer or former client behaving badly, for example, by publishing defamatory material on the internet. Can you get an injunction to stop the internet publication without ... ”
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“ In October 1975, the Racial Discrimination Act (Cth) became law which had the effect of implementing the United Nations Convention on the Elimination of all Forms of Racial Discrimination, a treaty Australia had signed but not ratified. The Racial Discrimination Act marked the official end of the ... ”
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“ The vast majority of print media organisations in Australia are members of the Australian Press Council, a self-regulatory body with responsibility for dealing with complaints about Australian newspapers, magazines and associated digital outlets. Although the Council is funded mostly by the major ... ”
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“ The task of regulating radio and television broadcasts presently falls to the Australian Communications and Media Authority (ACMA), a statutory body established under the Broadcasting Services Act 1992 (Cth). All broadcast media is covered by the legislation with the exception of the national ... ”
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“ As the name suggests, criminal defamation requires an element of criminality that is not found in the tort of defamation, although mens rea is not required at common law as the offence depends on the effect of the words, not the intention of the person accused of the crime. Criminal defamation at ... ”
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“ The laws of defamation have been part of the social fabric of human co-operation and development since ancient times. Both Greek and Roman law recognised the importance of protecting reputation. In Jewish tradition, the prophet Moses is known as ‘The Lawgiver’ for delivering to the people of ... ”
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“ Defamation is a personal attack in spoken words (slander) or in writing (libel) or in art, photography, film, video, radio, television or other format, or perhaps using disparaging body language, which has the effect of diminishing the person’s reputation in the eyes of ordinary reasonable people ... ”
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“ You can say or write what you please about a person, but you will not be defaming them unless you publish your attack to a third party. If you write the person a letter or send them an email, you should include the words ‘private and confidential’ at the beginning of the text in case a third party ... ”
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“ A cause of action in defamation arises when defamatory material is published about an identifiable person. It is not necessary to name the person to defame them so long as they can be identified from the defamatory material. If the publication can reasonably be interpreted as referring to the ... ”
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“ At common law, any person, group, community, organisation or corporation involved in publishing defamatory material can be sued in defamation. The author of the material can be sued as well as the editor of the material, the typesetter, the printer, the proprietor of the publisher and the ... ”
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“ Some solicitors will write to a prospective defendant and say they have instructions to sue for $750,000 – the maximum civil claim in the District Court – an amount that often shocks their client no less than the addressee of the letter. Personally, I would set out the defamatory imputations in ... ”
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“ One of the first cases to be decided under the new uniform defamation law was the Mercedes Corby case. In February 2007, the plaintiff, Mercedes Corby, was the subject of four separate broadcasts on the Channel Seven television network in Sydney about her relationships with her sister, the ... ”
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“ The question of costs in the Mercedes Corby case is not entirely a matter of speculation due to an application by Tom Hughes QC for the defendant six weeks before the trial seeking security for costs against the plaintiff as well as an order that the proceedings be stayed until the security was ... ”
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“ There are two answers to this question depending upon whether your case settles or goes to trial. In November 2009 there were 74 defamation cases in the New South Wales Supreme Court common law list. In the District Court in 2011 there were 24 lodgements of defamation cases and 29 finalisations. ... ”
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“ Anyone intending to publish material that might be defamatory could consider making pre-publication inquiries of the person likely to be offended by the contentious material. A letter, email or other form of communication prior to publication should clearly state that its purpose is to address the ... ”
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“ As a general rule in civil law, you need to be circumspect about apologies or expressions of regret as they will usually imply an admission of fault or responsibility. But that said, all States and Territories now provide statutory protection in varying degrees when a person apologises or ... ”
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“ Nobody seems to know why there needs to be two separate regimes in place in defamation and other civil law disputes to facilitate settlement offers. In order not to fall foul of either regime, most lawyers make multiple offers of compromise that comply with the separate requirements for both Court ... ”
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“ Prior to the uniform defamation law, a person defamed had six years from the date of publication in which to commence proceedings in line with time limitations on other actions in tort such as negligence. For the person defamed, the generous time limitation meant they could recover from the ... ”
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“ The first question you will need to ask yourself as the plaintiff’s legal representative is whether the defamatory material was published in one of the eight jurisdictions in which the uniform defamation law operates. If the defamatory material is published to one person other than the person ... ”
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“ As noted earlier, the distinction between written and spoken defamation (libel and slander) was abolished by the uniform defamation law, but the form in which the defamatory words are published is important in the context of preparing the Statement of Claim. A transcript of the defamatory material ... ”
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“ Whether the words in the published material or matter complained of carry defamatory imputations depends on the answer to three questions. What do the words mean? Is the meaning or meanings of the words capable of being defamatory? Are the words in fact defamatory in their context? Begin with a ... ”
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“ The approach taken by some defamation lawyers is to draft the Statement of Claim in such a way as to plead as many defamatory imputations as possible in the hope that the jury or the trial judge will find at least one of them sticks as a matter of probability. A more considered approach is to ... ”
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“ The original Statement of Claim is signed by the plaintiff’s solicitor and filed with multiple copies sealed by the court. You will need sealed copies for each party to the proceedings and it is wise to keep a sealed copy for your own file. A defendant must be served personally or by post to their ... ”
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“ My first appearance before the Supreme Court Registrar on the return date (directions hearing) in a defamation proceeding was hugely embarrassing as I had missed my case. I was supposed to be representing the defendant but I went to the wrong court. By the time I found the Registrar’s Court, my ... ”
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“ Few defendants will want to rush in and make amends to the plaintiff except in the case of a genuine mistake or misunderstanding. Publication of defamatory material usually follows heated relations between the parties with emotion and upset on both sides of the argument. A legal adviser will ... ”
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“ As a general rule, plaintiffs will commence proceedings as a last resort when every attempt to settle their dispute with the defendant has failed. In most cases, the defendant can assume that plaintiff is a reluctant litigant, mortified by the publication and desperate to restore their damaged ... ”
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“ My first appearance before the Supreme Court Registrar at the first directions hearing in a defamation case was hugely embarrassing as I had missed my case. I was supposed to be representing the defendant but I went to the wrong court. By the time I found the Registrar’s Court, my case was done ... ”
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“ Litigation lawyers usually have their favourite form of request for further and better particulars in actions for goods sold and delivered, money due and owing and so on. The usual questions of the plaintiff centre on any agreement between the parties. Is the agreement express or implied, written ... ”
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“ A strike out application by the defendant will be appropriate if the plaintiff fails to reply to the request for further and better particulars or otherwise fails to address the plaintiff’s concerns about the Statement of Claim. The fundamental principle is that the defendant is entitled to know ... ”
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“ It would be unusual for a Statement of Claim not to have the benefit of a second opinion before it is filed. Even the solicitor experts in defamation will run their pleadings by counsel in the expectation that there will be some aspect of the case that needs further attention. A self-represented ... ”
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“ In criminal trials, it is often said that you want a judge and jury to hear the case if your client is likely to be guilty, but you want a judge sitting alone without a jury if the client appears to be innocent. The truism is based on the assumptions that juries are less suspicious than a judge ... ”
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“ Truth alone has been a defence to defamation claims since section 25 of the uniform defamation law came into force in 2006. Between 1847 and 2006, as well as proving the truth of defamatory remarks, a defendant had to prove that the remarks were made in the public interest or for the public ... ”
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“ The truth defence becomes especially complicated when there is a multiplicity of possible imputations or meanings conveyed by the published material and the defendant asserts that his or her imputations or meanings (not relied on by the plaintiff) trump any damage caused by the imputations or ... ”
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“ At common law, certain defamatory material is privileged on the basis that the public interest in protecting the right to publish the material outweighs the public interest in the protection of reputation. The person or persons responsible for publishing the defamatory material has complete ... ”
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“ While absolute privilege at common law allows a defendant to abuse his or her privilege without incurring liability in defamation, the same is not true where the publication is protected by qualified privilege. The defence of common law qualified privilege will be lost where the defendant abuses ... ”
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“ Publication of public documents is given statutory protection under section 28 of the uniform Defamation Act The statute refers to the publication of public documents, or a fair copy of a public document, or a fair summary or a fair extract from a public document. Public documents are broadly ... ”
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“ In the United States of America, opinion attracts absolute privilege by virtue of the constitutional protection given to free speech in the First Amendment. American courts have found that there is no such thing as a false opinion. Other common law countries have not been so enamoured of free ... ”
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“ A defence of innocent dissemination at common law to the publication of defamatory material is available where the defendant has not participated in or authorised the publication. It is available to carriers or distributors of the published material such as newsagents, booksellers, librarians and ... ”
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“ There is no common law defence of triviality or unlikelihood of harm as the common law presumes that all forms of defamatory publication will result in harm or damage to the plaintiff’s reputation. A plaintiff’s responsibility can be limited to proving publication. The most the court can do in a ... ”
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“ All common law defences with the exception of truth and absolute privilege are defeated by malice. Only purveyors of the truth, politicians, lawyers, litigants and witnesses in parliamentary or judicial proceedings can defame a person with impunity. Malice at common law ‘included improper motive, ... ”
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“ Interlocutory procedures considered earlier in this practice manual include an application for interim injunction (p24), preliminary discovery (p68) and a strike out application in the context of objecting to the Statement of Claim (p94). Also considered was Part 7A of the Defamation Act 1974 ... ”
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“ The plaintiff is entitled to know the detail of the Defence to be relied on at trial by the defendant. Vague or general assertions in answer to the Statement of Claim will not be acceptable and should be the subject of a request for further and better particulars. Both parties have an obligation ... ”
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“ The plaintiff must answer the defences pleaded by the defendant in a formal Reply. If the plaintiff does not take issue with any of the defences then the plaintiff will be deemed to concede those defences. Where there are admissions in the Defence, they should be acknowledged generally by the ... ”
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“ Sometimes a plaintiff will attempt to insert into the proceedings new or fresh assertions in the Reply either as a pleading or in the particulars. For example, a plaintiff may include in particulars of malice the following: ‘The defendants’ express malice in publishing the matter complained of ... ”
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“ An application to the court to strike out an opponent’s pleadings or particulars can be made at any time after reasonable notice to withdraw the offending material. Most commonly the application relates to the form and capacity of the plaintiff’s imputations, failure to disclose a reasonable cause ... ”
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“ A defendant who is partly successfully in having the Reply struck out is entitled to ask the plaintiff to file an Amended Reply. Where there is no strike out application, the defendant will deal with any concerns about the Reply in a response or answer. The document is similar in form and content ... ”
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“ Disclosure or discovery of documents and answering of interrogatories are dealt with in court rules covering civil litigation. In New South Wales, the provisions are found in the Uniform Civil Procedure Rules 2005 (NSW) Parts 21 and 22. Earlier, I covered preliminary discovery (pp71-74) and the ... ”
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“ Interrogatories are specific questions addressed to the opposing party prior to trial. They are part of the discovery process, and like discovery, they must relate to issues in the proceedings. Unless the questions or interrogatories seek privileged information, or they are irrelevant, vexatious ... ”
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“ The court rules provide that a statement of answers to interrogatories must address each interrogatory. Set out the interrogatories in full and type the answer after each one. The answers must address the substance of each interrogatory and do so without evasion. If the party interrogated does not ... ”
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“ When the police sued me for defamation over my complaints about the way the murder of Janine Balding was investigated, I waited with fear and trepidation for a notice that the trial would take place before a jury. As the time for making arrangements for the trial approached, there was no word from ... ”
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“ The main problem for both the plaintiff and the defendant in a trial before a judge sitting alone is the constant risk that the judge and the lawyers make assumptions about defamation law and use jargon that denies the people involved in the case (at least one of whom will be eventually paying for ... ”
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“ The plaintiff must prove on the balance of probabilities that the matter complained of had a defamatory meaning, that it was communicated or published to a third party and that it was published of and concerning the plaintiff. In a case involving special damages, the plaintiff must also produce ... ”
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“ The defendant’s case will focus on deficiencies in the plaintiff’s case unless truth is pleaded by the defendant. Once the defendant says that the defamatory meanings pleaded by the plaintiff are true, the onus of proving this assertion according to the civil standard of the balance of ... ”
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“ Written submissions on behalf of the defendant at the end of a defamation trial are similar to the plaintiff’s final submissions except they argue the case for a verdict in favour of the defendant. Generally speaking, the parties will exchange submissions before handing them to the judge, and by ... ”
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“ At the closing stages of a defamation trial the judge will ask the parties for written submissions summarising the case and arguing in support of findings in favour of their clients. Diligent parties and their lawyers have been working on the final submissions since the opening day of the trial ... ”
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“ The uniform defamation laws provide that any award for damages in a defamation trial is to be decided by the judge and not the jury. This includes the amount of damages and any unresolved issues of fact that might have any bearing on the determination of the figure. General damages will be ... ”
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“ Interest will be added to a verdict in the normal course and the amount will reflect commercial rates. In periods of high inflation, the rate will be higher, although a party ordered to pay damages and interest may argue that any period of delay attributable to the successful party should be ... ”
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“ A photocopy of Channel Seven’s multi-million dollar settlement cheque in favour of John Marsden covering damages, interest and costs is apparently a treasured possession that adorns the chambers wall of at least one leading Sydney counsel involved in the case. Not that I have seen the copy cheque ... ”
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