PERKINS v HARRIS [1995] NSWCA 364

PERKINS v HARRIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and POWELL JJA 17-18 October 1994, 26 May 1995 [1995] NSWCA 364

S16 DEFAMATION ACT 1974 (NSW) — DEFENCE OF TRUTH — CONTEXTUAL IMPUTATIONS — defendant in defamation proceedings pleads defences (inter alia) based on s15 (para4 of defence — justification) and s16 (para5 defence — contextual imputations) of Defamation Act 1974 — plaintiff files notice of motion asking that para5 be struck out — trial judge holds defendant's imputations did sufficiently differ in substance from the plaintiff's imputations — nevertheless strikes out defence pursuant to Supreme Court Rules Pt15 R26(1)(b) on basis that defendant's pleadings had a tendency to cause prejudice, embarrassment or delay and defence was raising nothing under s16 not already raised under s15.

ON APPEAL — his Honour's conclusion inconsistent with his premises — if defendant's imputations different in substance from plaintiff's, then in justifying those imputations the defendant would necessarily be proving more than he would prove in justifying the imputations relied on by the plaintiff; further, in answer to plaintiffs submission on appeal that a defendant could not, under s16 plead plaintiff's imputations 2, 3, etc against plaintiffs imputation 1, held, defendant may plead a s16 defence to each cause of action relying on whatever contextual imputations the defendant undertakes to justify except only the imputation comprising the cause of action to which the defence is being pleaded; further, if it becomes clear at a pre-trial stage that a s16 defence without any real prospect of success has been pleaded simply to put before the jury evidence intended to mitigate damages which the defendant would not otherwise be entitled to lead, then the court should accede to a plaintiff's pre-trial application that such defence be struck out.