Day 178 - 27 Oct 95 - Page 03
1 MS. STEEL: Certainly, in respect of G and H -- I mean, it was
2 recognised yesterday that G was not defamatory, both by
3 Mr. Rampton and by yourself; and, therefore, it should not
4 be in the Statement of Claim and, therefore, it ought to
5 be struck out. I would say that certainly, also, on the
6 face of it as it stands now, the pleaded meaning by the
7 Plaintiffs at H is not defamatory either and, therefore,
8 ought to be struck out.
9
10 MR. JUSTICE BELL: I am not hearing a striking out application
11 today. You must address me on what the meaning is. It
12 may be that part of your submission will be that the
13 meaning, whatever it is, is not defamatory, and I will
14 listen to that, but I am not hearing a striking out
15 application.
16
17 MS. STEEL: I mean, I have prepared an argument on meaning.
18
19 MR. JUSTICE BELL: Yes. You must deliver that to me. Now is
20 your opportunity to deliver that argument.
21
22 MR. MORRIS: I think it is confusion over terminology. We are
23 talking about whether they are defamatory or not.
24
25 MR. JUSTICE BELL: Yes. What you must do -----
26
27 MS. STEEL: The only reason I am using -----
28
29 MR. JUSTICE BELL: Just listen to me for a moment, because
30 I think Mr. Morris is right; it is just terminology. If
31 you look at divider 1, Skuse, page 1D, the reason
32 Otton J.-- who is a judge who is extremely experienced in
33 these matters -- ordered that preliminary issue to be
34 determined was that it was convenient to the litigation
35 for the judge to decide what the meaning was, which is
36 whether they bear the defamatory meaning complained of by
37 the plaintiff or some lesser defamatory meaning and, if
38 so, what. He put in "whether the words complained of are
39 defamatory of the plaintiff", and he used the adjective
40 "defamatory" twice before the noun "meaning", because if
41 the meaning of the words is not defamatory then one can
42 forget the proceedings altogether. One is only
43 interested, in so far as proceedings are concerned, in a
44 meaning which is defamatory. But that does not complicate
45 the matter.
46
47 What you have to do -- and I am sure you are prepared to
48 do it; I think I was just thrown by the words "strike out"
49 is this -- you have to address me on what you say the
50 meaning of the words complained of by McDonald's is. You
51 can then address me on the basis that if that is the
52 meaning it is not defamatory. That is the simplest way
53 I can put it.
54
55 MS. STEEL: I just think the reason it is relevant is that if
56 the words as pleaded by the Plaintiffs are defamatory or
57 the meanings that they interpret the leaflet as having,
58 then it ought not to have been allowed as a cause of
59 action; and, if we had known about this sooner, then we
60 could have made that application.
