Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44

Supreme Court New South Wales

Medium Neutral Citation: Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 Hearing dates: 19 August 2016 Decision date: 10 February 2017 Jurisdiction: Common Law Before: McCallum J Decision: Defence of contextual truth struck out; particulars of mitigation struck out; leave granted to the plaintiff to discontinue the proceedings as against the first defendant on terms that each of those parties bear his or its own costs. Catchwords: DEFAMATION – defences – defence of contextual truth – whether able to be pleaded in the future subjunctive – whether open to a defendant at trial to rely upon an imputation relied upon by the plaintiff but proved true as a contextual imputation

DEFAMATION – damages – particulars of mitigation –general particulars relating to the plaintiff's "family" said to be directly relevant to "the contextual background against which the alleged defamatory publications were made" – tenuous connection with the reputation of the plaintiff – whether particulars liable to be struck out

COSTS – discontinuance against a party after late objection to pleading of the issue of publication – court's expectation that defendants will comply with the spirit of the Defamation List Practice Note SC CL 4 Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26 Cases Cited: Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 Dank v Nationwide News Pty Ltd [2016] NSWSC 295 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224 Mizikovsky v Queensland Television Ltd [2013] QCA 68 Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991 The Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285 Category: Procedural and other rulings Parties: Oscar Kazal (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Fairfax Digital Australia & New Zealand Pty Ltd (second defendant) Linton Besser (third defendant) Kate McClymont (fourth defendant) Representation: Counsel: B McClintock SC, S Chrysanthou (plaintiff) T Blackburn SC, M Polden (defendants)