Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172

District Court New South Wales

Medium Neutral Citation: Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172 Hearing dates: 13 August 2015 Date of orders: 19 August 2015 Decision date: 19 August 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Leave to the defendants to file an amended defence conformably with the proposed amended defence. (2) Plaintiff's application to strike out the defence of contextual truth and all the particulars to it dismissed. (3) Plaintiff's application to strike out the defence of common law qualified privilege and all the particulars to it dismissed. (4) Imputation (a) in the Statement of Cross Claim will go to the jury. (5) Parties have liberty to bring in Short Minutes of Order for a timetable in these proceedings, including a requirement that, at the close of proceedings, the legal representatives serve on their respective clients a Smyth order notice in accordance with UCPR r 42.32. (6) Plaintiff pay defendants' and cross-claimant's costs, with liberty to apply. (7) Proceedings adjourned to the Defamation List on 17 September 2015 at 9 a.m., with liberty to amend this date in the Short Minutes of order referred to above. Catchwords: TORT - defamation - defence of contextual truth pursuant to s 26 Defamation Act 2005 (NSW) - whether contextual imputations capable of being conveyed - whether imputations conveyed "in addition to" - whether contextual imputation (iv) capable of "swamping" the plaintiff's imputations - application for summary dismissal of defence of qualified privilege at common law - whether the defence is unavailable as a "reply to attack" where the attacker is a third party and not the plaintiff - reluctance of courts to strike out defences at the interlocutory level - application to strike out defences of contextual truth and qualified privilege at common law dismissed - cross-claim by third defendant against plaintiff for defamation - whether imputation pleaded in cross-claim capable of being defamatory Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Defamation Act 2005 (NSW), ss 25, 26 and 30 Uniform Civil Procedure Rules 2005 (NSW), r 42.32 Cases Cited: Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 Bateman v Fairfax Media Publications Pty Ltd (No 3) [2014] NSWSC 1601 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Combe v Santamaria (1986) 84 FLR 292 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Coward v Wellington [1837] E R 58; 7 Car & P 59 Cruise and Another v Express Newspapers plc & Another [1999] QB 931 Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 Jones v Skelton (1963) SR (NSW) 644 Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 Loveday v Sun Newspapers (1938) 59 CLR 503 McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224 McNicol v The ACT Health Authority [1988] ACTSC 55 Mizikovsky v Queensland Television Ltd [2014] 1 Qd R 197 Palmer v Belan [1999] NSWSC 187 Sutherland v ACP Publishing Pty Ltd [2000] NSWSC 1139 Tancic v. Times Newspaper Ltd., [1999] E.W.J. No. 6510 Trad v Harbour Radio Pty Ltd (2011) 279 ALR 183 Waterhouse v Perkins [2000] NSWSC 641 Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 Category: Procedural and other rulings Parties: Plaintiff/Cross-Defendant: Bassem Abou Lokmeh First Defendant: Harbour Radio Pty Ltd (ACN 010 853 317) Second Defendant: Ray Hadley Third Defendant/Cross-Claimant: Mahassen Issa Representation: Counsel: Plaintiff/Cross-Defendant: Mr C J Dibb Defendants/Cross-Claimant: Mrs L Barnett