Fairfax Media Publications v Zeccola [2015] NSWCA 329

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fairfax Media Publications v Zeccola [2015] NSWCA 329 Hearing dates: 11 November 2014, final submissions 14 April 2015 Date of orders: 23 October 2015 Decision date: 23 October 2015 Before: McColl JA at [1]; Macfarlan JA at [112]; Sackville AJA at [113]. Decision: (1) Grant leave to appeal; (2) Appellants to file the notice of appeal in the form of the draft appearing in the White Book at page 34 within seven days; (3) Appeal allowed in part; (4) Set aside order 1 made by McCallum J on 13 March 2014 insofar as her Honour struck out the appellants' contextual imputations 19(a)(i), and (v), 27(a)(i) and (v) and 35(a)(i) and (v); (5) Respondents to pay fifty per cent of the appellants' costs and have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified. Catchwords: TORTS – defamation – defence of contextual truth – s 26, Defamation Act 2005 (NSW) – plaintiffs pleaded imputations of not returning profits, withholding returns and dishonouring distribution commitments –defendants pleaded contextual imputations of general financial default – whether contextual imputations must differ from plaintiff's imputations in kind as well as in substance – whether "differ in substance test" is a sufficient exposition of s 26 – whether defendants' imputations capable of being "other imputations" carried "in addition to" appellants' imputations

TORTS – defamation – defence of contextual truth under s 26, Defamation Act 2005 (NSW) – whether imputation capable of being carried – imputation of "reasonable suspicion" – holder of "reasonable suspicion" not identified – matters complained of did not refer to any person or authority holding "reasonable suspicion"