KELLY v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 586

New South Wales Supreme Court

CITATION : KELLY v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 586 revised - 30/06/2003 HEARING DATE(S) : 27 June 2003 JUDGMENT DATE : 27 June 2003

JUDGMENT OF : Levine J DECISION : 1 Imputations (a), (b), (d) as amended to read "the plaintiff is an exhibitionist", (e) and (f) are capable of being carried by the matter complained of, capable of being defamatory as imputations arising from the natural and ordinary meaning.; 2 Imputations (g) and (h) will go to the jury only as true innuendos.; 3 Imputation (c) is struck out with leave to amend.; 4 The defendant is to pay the plaintiff's costs.; 5 I direct that the plaintiff file an amended statement of claim in accordance with these reasons within seven days. The defendant is to file its 7A defence within seven days.; 6 Pursuant to Pt 31 r 2, I order the trial by jury of the issues joined by the parties on those pleadings and place the matter in the list to be called up.; 7 Exhibit A will be kept with the Court file until further notice.

CATCHWORDS : Imputations - natural and ordinary meaning/true innuendo - capacity - "the plaintiff is a homosexual" - capacity to defame - mistaken identity - irrelevant to the question of capacity Australian Broadcasting Corporation v Hanson, (28 September 1998, BC9805224) Ettingshausen v Australian Consolidated Press (1991) 23 NSWLR 443 Greek Herald v Nikolopolous (2002) 54 NSWLR 165 Horner and Anor v Goulburn City Council and Anor (unreported, Levine J, 5 December 1997) CASES CITED : John Fairfax Publications v Rivkin NSWSC 18 April 2001 Nick Scali & Co Pty Ltd v John Fairfax Publications Pty Ltd (unreported, Levine J, 15 April 1993) Quilty v Windsor (1999) SLT 346 Readers Digest Services Pty Ltd v Lamb (1981-1982) 150 CLR 500 Rivkin v Amalgamated Television Services Pty Limited (2001) NSWSC 432 Rivkin v John Fairfax Publications (2002) NSWCA 87 ROBERT KELLY (Plaintiff)