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The Defence of Contextual Truth and Hore Lacy: Struggling but Still Standing

Table of Contents 1. Introductory ......................................................................................................... 2 2. Challenges to Contextual Imputations on the basis that they do not arise

“in addition” to the Plaintiff’s Imputations ....................................................... 3 2.1. Legal Principles ............................................................................................. 3 2.2. Recent Applications ....................................................................................... 7 2.3. The Appropriate Timing of an “in addition” Application ................................ 10 2.4. Challenges to the Orthodoxy ....................................................................... 12 2.5. The importance of the Defence of Contextual Truth and its Proper

Application ................................................................................................... 14 3. Challenges to the Form of Contextual Imputations ....................................... 15 4. The Decision in Kermode and a Defendant’s Inability to Plead Back the

Plaintiff’s Imputations as Contextual Imputations. ....................................... 17 5. The Pleading Back of Alternative Plaintiff’s Imputations as Contextual

Imputations ........................................................................................................ 19 6. The Appropriation by a Plaintiff of Contextual Imputations ......................... 22 7. Pre-Trial Challenges to the Particulars of Contextual Truth including

Challenges to the Capacity of Contextual Imputations to Swamp Plaintiff’s Imputations. ....................................................................................................... 25

8. The Application of the Defence of Contextual Truth at Trial ........................ 25 9. The Hore Lacy Defence and its Compatibility with NSW Practice and

Procedure .......................................................................................................... 27 9.1. The decision in Bateman v John Fairfax Publications ................................. 27 9.2. The decision in Setka v Abbott .................................................................... 29

10. Conclusion ..................................................................................................... 31 Schedule Recording Pre-Trial Challenges 2013-2014 to Contextual Imputations in SCNSW ................................................................................................................. 33

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1. Introductory

[1] The defence of contextual truth, never exactly a solid port in a storm for a

defamation defendant, is fraying. A large proportion of pre-trial challenges to

contextual imputations are succeeding, most commonly because of a failure to

adhere to the requirements of s 26 but also for reasons of form and capacity.

Even when a contextual imputation does survive, it can then be appropriated

by a plaintiff.

[2] Following the decision in Kermode1 which removed the right of a defendant to

plead back one or more of a plaintiff’s own imputations as a contextual, the

practical importance for a defendant of pleading and justifying a contextual

imputation has increased – otherwise, even if some but not all of the plaintiff’s

imputations can be justified (unless it be a rare case where comment or

qualified privilege is available), there will be no defence. It is indeed possible,

although probably unwise, for a plaintiff to deliberately plead a false imputation,

in an endeavour to “cover the field” and thereby eliminate the possibility of a

defence of contextual truth.

[3] In a parallel universe, the common law defence of Hore Lacy2 , scarcely

consistent with the defence of contextual truth, survives and prospers in the

jurisdictions outside of NSW. The NSW defamation list judge recently found the

defence to be inconsistent with NSW pleading practice (which with respect it

clearly is), and shortly thereafter the Victorian Court of Appeal unsurprisingly

disagreed, adding some unflattering observations about rules and practice

north of the border. There is an issue as to whether procedural dissimilarities in

the conduct of defamation trials should or will give way to the principle of

uniformity, nearly a decade after the introduction of the uniform legislation.

[4] This paper will examine recent developments in the law on the s 26 Defence

including strike outs for a failure to arise “in addition”, form challenges, the

appropriate timing of “in addition” challenges, the pleading of alternate

imputations as contextuals, and the appropriation of contextuals. It will also

deal with recent developments on the rule established in Kermode,3 as well as

                                                                                                               1 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852. 2 David Syme & Co Ltd v Hore Lacy [2000] VSCA 24 (2000) 1 VR 667 at esp. [52]-[53] and [69]. 3 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852.

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the application of s 26 in a trial context before briefly discussing the recent

Hore Lacy controversy.

2. Challenges to Contextual Imputations on the basis that they do not arise

“in addition” to the Plaintiff’s Imputations

2.1. Legal Principles

[5] Sections 25 and 26 of the Defamation Act 2005 (NSW) (“2005 Act”) are

in the following terms:

25 Defence of justification

It is a defence to the publication of defamatory matter if the

defendant proves that the defamatory imputations carried by

the matter of which the plaintiff complains are substantially

true.

26 Defence of contextual truth

It is a defence to the publication of defamatory matter if the

defendant proves that:

(a) the matter carried, in addition to the defamatory

imputations of which the plaintiff complains, one or

more other imputations ("contextual imputations")

that are substantially true, and

(b) the defamatory imputations do not further harm the

reputation of the plaintiff because of the substantial

truth of the contextual imputations.

[6] The starting point is John Fairfax Publications Pty Ltd v Jones4 where

Spigelman CJ and Ipp J held that under the 2005 Act a contextual

imputation that merely reformulated a plaintiff’s imputation at a higher

level of generality was impermissible.

                                                                                                               4 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [17]-[20] and [106]-[113].

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[7] In 2010 the issue resurfaced in Ange v Fairfax Media Publications Pty Ltd

& Ors,5 a decision of Simpson J. Her Honour rejected a challenge to a

contextual imputation – “the Plaintiff is a pornographer” on the basis that

the plaintiff had not pleaded an imputation associating him with

pornography. Her Honour, with respect, was completely alive to what was

at stake:

[67] The association with pornography mentioned is confined – to

the ownership of more than 20 “adult shops”, and to having been

fined in Queensland for the sale of banned items. Had the plaintiff

pleaded an imputation asserting an association with pornography,

he no doubt would have done so in narrow terms, confining himself

to what was contained in the article, and thus restricting the area of

discreditable conduct available to be explored by a defence of

justification; but it is for that practical, pragmatic reason that he

would so confine himself. There is nothing in law that would have

prevented him from pleading an imputation that he is a

pornographer.

[68] Equally, there is nothing that prevents the defendants doing the

same thing, by way of pleading a contextual imputation.

[69] By pleading contextual imputation (i), and particularising it as it

has, the defendants seeks to give the broadest possible scope to

what they originally published, in order to expand, correspondingly,

the scope of the inquiry into the plaintiff’s conduct. They seek to

prove that the plaintiff engaged in discreditable conduct well outside

the confines of what it published. By pleading imputations of the

most general kind, a defendant may – to use a somewhat loaded

term – manipulate the proceedings to enable it to adduce evidence

of misconduct going well outside anything alleged in the matter

complained of.

[70] The question is whether the defendants are permitted to do so.

It was not submitted that there exists any discretionary basis upon

which the defendants could be prevented from doing what they

                                                                                                               5 Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645.

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seek to do. I am not aware of any such discretion. Provided that an

imputation is capable of being conveyed by the matter complained

of, a judge has no supervisory role in its formulation (other than as

to form).

[71] A claim in defamation is directed to the damage done to a

plaintiff’s reputation by the publication of what is published by the

defendant. A contextual truth defence is equally directed to what is

published by the defendant. Subject to the manner in which the

plaintiff pleads his/her case, a defamation claim does not ordinarily

open up a full-scale inquiry into the plaintiff’s character or conduct.

[72] If the fairness of allowing contextual imputations so framed to

be pleaded (and proved) were an issue, the outcome of this

application may have been different. But no power to direct the

manner of pleading by reference to fairness was identified and I

know of no relevant power.

[8] The following year, in an application brought by the same plaintiff against

the same defendant but in separate proceedings involving another article,

the Court arrived at a different result. See Ange v Fairfax Media

Publications6 drawing in part on the decision of McColl JA in John Fairfax

Publications Pty Limited v Hitchcock.7 His Honour struck out four of the

five contextual imputations including “the Plaintiff is a pornographer.”8

The Court, following Jones, 9 held that an imputation pleaded as an

alternative or a more general formulation of the very imputation relied

upon by the plaintiff will not suffice. A difference in formulation is not

enough. Rather, the inquiry involves an evaluation process which is:

[28]…one of impression taking into account the defamatory quality

of each party's imputations with regard to the contents of the matter

complained of which conveys them. In order to consider whether

the defendants' contextual imputations are capable of being                                                                                                                6 Ibid at [24]-[28]. 7 John Fairfax Publications Pty Limited v Hitchcock (2007) 70 NSWLR 484 at [212]. 8 Unlike in the previous Ange case, this time the Plaintiff had pleaded an imputation “the Plaintiff is a pornographer in that he own the adult shops Pleasure Chest and Adult Shop which sell pornographic material.” The Plaintiff could thus say that he had covered off this topic. 9 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [17]-[20].

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conveyed by the matter complained of at the same time as and in

addition to the imputations pleaded by the plaintiff it is necessary to

establish "... just what is the precise act or condition which is

asserted of or attributed to the plaintiff both by the plaintiff's own

imputations and by the defendants' contextual imputations"

(Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, p 41E).

The scope of an imputation must be taken to include all imputations

which do not differ in substance, or are less injurious, or which are

but shades, nuances, and gradations of meaning of substantially

similar imputations (Morosi v Mirror Newspapers Ltd [1977] 2

NSWLR 749, p 771, Chakravati v Advertiser Newspapers Ltd

[1998] HCA 37; (1998) 193 CLR 519 pp 24, 60, 139.) Where the

plaintiff's imputations are more than one it will be necessary to

consider all of them, separately and in combination, to determine

whether a contextual imputation is carried in addition to them. The

exercise requires a commonsense approach to an understanding of

the publication which is expected of the ordinary reasonable

reader.10

[9] A subsequent decision of McCallum J emphasises the core purpose of

the defence must be borne in mind – that is, to enable a defendant to

justify a meaning upon which the Plaintiff has chosen not to rely.11 Is

there, to adopt her Honour’s words, an elephant in the room?

[10] Other indications include the following:

a. If the condition contained in a contextual imputation is necessarily

implicit in the act identified in the plaintiff’s imputation then the

contextual imputation will not arise “in addition”.12

                                                                                                               10 Ange v Fairfax Media Publications [2011] NSWSC 204 [28]. 11 Hyndes v Nationwide News Pty Limited (2011) NSWSC 633 at [28]. See also Ell v Milne (No 5) [2013] NSWSC 246 at [29]-[31] where the Court observed “a rare illustration of the use of the defence in the circumstances intended by Parliament, that is, where the plaintiff has sued on one defamatory sting and chosen not to sue on another”. The contextual imputation involved buying favours from government by making political donations, whereas all of the Plaintiffs imputations pertained to the murder of Michael McGurk or matters of violence. 12 Ibid at [34].

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b. An examination of what the defendant would need to prove by way

of justification might also be a useful task for determining whether

the contextual imputations differ in substance from the plaintiff’s

imputations.13

[11] Generally, interstate jurisdictions appear to have endorsed the NSW

jurisprudence on this issue.14

2.2. Recent Applications

[12] The attached schedule gives an overview of the recent decisions dealing

with this ground for challenge as well as capacity and form.

[13] Some examples of the many successful challenges:

a. In Jones v TCN Channel Nine15 the Court struck out a contextual

imputation “the Plaintiff is a conman.” The Plaintiff had pleaded a

number of more specific allegations including “The Plaintiff is a

conman in that he scams vulnerable and innocent customers of

his electrician business NRE Electrics out of their money”. Even if

the general imputation was capable of arising and accepting it

differed in substance from the specific, the Court found it could not

arise in addition.

b. In Bateman v John Fairfax (No 3), 16 the Court struck out a

contextual imputation “the Plaintiff runs his Primary Health Care

business without sufficient concern for the wellbeing of those who

work in it”. The relevant Plaintiff’s imputations included a number

of examples of poor treatment of staff such as harassment,

running sweatshops, being a cruel employer, and bringing

unwanted Court proceedings to force doctors to work longer

hours.17

                                                                                                               13 John Fairfax Publications Pty Ltd v Hitchcock (2007) NSWCA 364 at [188]. 14 Ives v the State of Western Australia (No 8) [2013] WASC 277 at [84]-[91], Newnham v Davis (No 2) [2010] VSC 94, Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375 at [49]-[52]. 15 Jones v TCN Channel Nine [2014] NSWSC 1453 at [8]-[20]. 16 Bateman v John Fairfax (No 3) [2014] NSWSC 1601 at [45]-[48]. 17 Ibid at [37] and [44].

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c. In Tauaifaga v TCN Channel Nine Pty Ltd18, the Court struck out

contextual imputations that “The Plaintiff was an accessory to the

theft of a plasma television” and “That the Plaintiff undertook

criminal activity in the presence of her young son.” The Court held

these imputations did not arise in addition to an imputation that the

“Plaintiff is a shoplifter”. The Court, in a strict application of the

authority in Jones19 and Ange,20 held the contextuals were “mere

alternatives” of the Plaintiff’s imputation. Further, that so far as the

ordinary reasonable viewer was concerned, all the imputations

were simply different formulations of the same thing, namely that

the Plaintiff was criminally responsible for the theft of a television.

d. In Trodden v Fairfax Media Publications Pty Ltd21 the Court struck

out a contextual imputation which included the phrase “took steps

to prevent members of Balmain Leagues Club from having a

reasonable opportunity to consider the content of a call option”.

The only difference to the Plaintiff’s imputation was that instead it

contained the words “took steps to conceal the content of a call

option.” Her Honour noted the subtle difference and after referring

to authorities dealing with the purpose of the Defence, noted it was

not “intended to allow a defendant to defeat a claim by merely

tinkering with the imputations upon which a plaintiff has chosen to

rely.”22 Her Honour struck out the contextual imputation, for both or

either of its not arising in addition or not being capable of being a

contextual imputation within the meaning of s 26(a).

[14] In terms of contextual imputations that have survived an “in addition” type

challenge, it is not uncommon in this situation for the Court to have

perhaps taken a view about a plaintiff attempting to quarantine some

aspect of his or her criminal history, or an aspect of adverse findings by a

public body:

                                                                                                               18 Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8. 19 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205. 20 Ange v Fairfax Media Publications [2011] NSWSC 204. 21 Trodden v Fairfax Media Publications Pty Ltd [2013] NSWSC 1148 22 Ibid at [16].

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a. In Walsh v Win NBN Television Pty Limited23 the Plaintiff had

pleaded imputations that he “was arrested by the police”, “charged

with various drug offences” and was “reasonably suspected by the

police of committing criminal offences.” In other words the Plaintiff

had carefully excised any imputation opening up any actual

conduct by him. The Court rejected a challenge to various

contextual imputations including “the Plaintiff had so acted as to

warrant being arrested by the police.”

b. In Liu v Fairfax Media Publications 24 the Court rejected a

challenge to the contextual imputation “there were reasonable

grounds to suspect that the Plaintiff acted illegally as manager of

an investment fund”. The relevant Plaintiff’s imputation was “The

Plaintiff behaved in such a way as to warrant ASIC filing charges

against him in the Equities Division of the NSW Supreme Court in

October 2009.” The Court held that the imputations not only

differed in substance, but that the contextual imputation was not a

mere reformulation. The Plaintiff had “selectively focused on the

part of the matter complained of which reports, in terms which lend

themselves to an argument of legal inaccuracy.”25 The contextual

imputation also relied upon other parts of the matter complained

of, and had the Plaintiff wished, he too could have pleaded an

imputation relying on those parts.

c. In MacDonald v Australian Broadcasting Corporation,26 the matter

complained of concerned findings by the ICAC and in particular

contained the following words:

Former Labor ministers Eddie Obeid and Ian McDonald made

millions over mining deals in NSW. They were found to be

corrupt and now face possible criminal charges.”

                                                                                                               23 Walsh v Win NBN Television Pty Limited (unreported, NSWSC, Nicholas J, 7 May 2012). 24 Liu v Fairfax Media Publications [2013] NSWSC 7 25 Ibid at [30]. 26 MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472.

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The publisher had an apparent difficulty on justification with the

“made millions” component but obviously had available to it a

wealth of material concerning the ICAC’s exposure of the

Plaintiff’s corrupt conduct.

The Plaintiff relevantly pleaded this imputation: “The ICAC has

found that the Plaintiff had made millions of dollars from corrupt

mining deals in NSW”. The Defendant pleaded contextual

imputations “the Plaintiff was found by ICAC to be dishonest” and

“the Plaintiff was found by ICAC to have abused his position as a

government minister.” The Plaintiff’s challenge to the contextual

imputations failed, the Court emphasizing other portions of the

matter complained of apart from the “made millions” component

and finding that the contextual imputations imputed “something of

a different character to the Plaintiff from the notion of ‘making

millions’ from corrupt deals captured in the Plaintiff’s

imputations”.27

2.3. The Appropriate Timing of an “in addition” Application

[15] A contest arises as to the appropriate timing of this application. Should

the point be taken pre-trial? Or is the appropriate time the moment the

jury answers the Questions concerning whether a plaintiff’s imputations

are conveyed and defamatory? It is only at this later point that the Court

and the parties may identify with certainty, the imputations actually faced

by a defendant.

[16] Plaintiffs want the issue settled pre-trial – in that way, any redundant

particulars of truth (often trawling beyond the subject matter of an article)

can be excised and, from a commercial perspective, the defendant is

forced to confront any mediation or settlement discussions without the

(very probably unwarranted) confidence inspired by a Defence of

contextual truth. Defendants want to wait – their chances of holding on to

their contextual can only increase if the jury knocks out one or more of

the plaintiff’s imputations, if for no other reason than there may then be

less surviving material against which the “in addition” question will be                                                                                                                27 Ibid at [14].

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applied. Furthermore, they can hold on to their Defence and particulars of

justification until trial – forcing a Plaintiff to run the gauntlet.

[17] In Jones v TCN Channel Nine,28 the Court decided against deferring the

decision on the “in addition” question until the trial. The Court considered

the theoretical possibility of the jury rejecting the relevant Plaintiff’s

imputation while finding the contextual imputation conveyed; such an

outcome was assessed as “very unlikely”. That, together with

considerations of fairness (including in this case the expansion of the

issues by interlocutory processes such as subpoenas and discovery

likely to flow from the retention of a contextual imputation framed in

general terms) led the Court to determine the issue pre-trial.

[18] In Bateman v John Fairfax (No 3),29 the Court would have permitted the

deferral of the determination of whether one of the contextual imputations

arose in addition to the Plaintiff’s imputations (but not for other

contextuals), until after the jury’s verdict. In the event that particular

contextual imputation failed on other grounds.

[19] Two complicating factors on this point:

a. The writer is not aware of any recent attempt to take a jury’s

verdict on the imputations and then adjourn for argument as to

whether the contextual imputations arose in addition to the

surviving plaintiff’s imputations.30 If the jury was only to be asked

whether the plaintiff’s imputations were conveyed and defamatory

before such an adjournment and argument, that would begin to

look awfully like a trial under Section 7A of the old Defamation Act

1974 (NSW) (“1974 Act”). Another option would be have the jury

deal with justification as well before any such adjournment.

                                                                                                               28 Jones v TCN Channel Nine [2014] NSWSC 1453 at [32]-[37]. 29 Bateman v John Fairfax (No 3) [2014] NSWSC 1601 at [55]-[58]. 30 In McMahon v John Fairfax Publications (No 6) at [4]-[6] and [49]-[78], McCallum J outlines a bifurcation of the jury’s task which did mean that the jury dealt with contextual truth separately and after dealing with the earlier issues. The “in addition” point does not seem to have been raised at this time, although there had been pre-trial determinations on this issue – see McMahon v John Fairfax Publications (No 3) [2012] NSWSC 196 at [61]-[65]. There was instead argument on the proper directions to be given to the jury about the defence of contextual truth. The Plaintiff pursued a cause of action in injurious falsehood meaning some degree of unusual complication in the questions required for the jury.

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However, assuming a defendant failed to justify, that would mean

there would be two addresses, one on justification and another on

contextual justification. It would also mean that the jury would not

be told of the contextual imputations until very late in the piece.

That is to say, that while it would certainly possible to conduct a

trial in this fashion, it does not seem a particularly convenient

course.

b. Perhaps the most compelling reason for deferring the

determination of whether a contextual imputation arises “in

addition” to a plaintiff’s imputations is when the plaintiff’s

imputation is frankly a stretch and where common sense would

suggest the jury is more, or at least as likely, to find the contextual

imputation arises. Unfortunately, a Court considering this factor

would need to make an assessment about the probability of

various results to be reached by a jury. That is no doubt possible,

but seems rather contrary to the philosophy underpinning the

determination of capacity arguments – namely the sacred

entitlement of a jury to have its say on whether any reasonably

arguable imputation arises and is defamatory.

2.4. Challenges to the Orthodoxy

[20] In Crosby v Kelly,31 Rares J in the Federal Court held that that the

authority of John Fairfax Publications Pty Ltd v Jones32 did not apply to s

26 of the Defamation Act 2005 and further that there was no requirement

under s 26 for a contextual imputation beyond the need to differ in

substance. His Honour accordingly allowed a general contextual

imputation “the Plaintiff is a hypocrite”, to stand next to a very specific

imputation concerning the misleading nature of push polling.33

[21] In Bateman v Fairfax Media Publications Pty Ltd (No 3),34 the Plaintiff

unsuccessfully challenged the traditional interpretation of John Fairfax

                                                                                                               31 Crosby v Kelly [2013] FCA 1343. 32 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205. 33 Crosby v Kelly [2013] FCA 1343 at [3] and [22]-[29]. 34 Bateman v Fairfax Media Publications Pty Ltd (No 3 [2014] NSWSC 1601.

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Publications Pty Ltd v Jones, 35 arguing that there was no additional

requirement for a contextual imputation beyond the need for it to differ in

substance from a Plaintiff’s imputation, and alternatively that if this was

wrong, there was no warrant for construing the findings in Jones36 (a

decision that dealt with s 16 of the 1974 Act) as applying to the

interpretation of s 26 of the 2005 Act. The Plaintiff, relying on the decision

in Crosby,37 also argued that the two Ange decisions38 were in error

insofar as they adopted Jones on this point. The Court at [8]-[35] in what

is with respect, a well-reasoned decision, analysed the history of the

jurisprudence and rejected the Plaintiff’s challenge, emphasising above

all the purpose of the defence – which is to stop a plaintiff avoiding

serious stings in defamatory matter by selective pleading.

[22] The Court of Appeal is presently reserved on an appeal against a

decision to strike out a contextual imputation as not arising “in addition” to

a plaintiff’s imputations. In Zeccola v Fairfax Media Publications Pty Ltd

[2014] NSWSC 227 at [20]-[28], McCallum J struck out the contextual

imputation that “the Plaintiff permitted Palace Films to default on its

payment obligations to producers of Australian films”. The relevant

Plaintiff’s imputation was “The Plaintiff acted wrongfully in permitting

Palace Films to withhold returns due to producers of successful films”.

[23] Apart from emphasising the qualitative difference between the two

imputations, the Defendant’s appeal papers raise arguments along the

following lines:

a. The inapplicability of John Fairfax Publications Pty Ltd v Jones39 to

s 26 and the 2005 Act;

b. The inappropriateness of the Court striking out contextual

imputations for not arising “in addition” prior to the trial. In

particular the inappropriateness in considering whether to strike

                                                                                                               35 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205. 36 Ibid. 37 Crosby v Kelly [2013] FCA 1343. 38 Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645 and Ange v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 204 39 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205.

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out a single contextual imputation (divorced from the other

contextuals) given the language of s 26;

[24] On this issue the Plaintiff’s response relied on the terms of her Honour’s

judgment. The Appeal was heard on 11 November 2014 and judgment is

reserved.

2.5. The importance of the Defence of Contextual Truth and its Proper

Application

[25] Finally, it is worth referring to an important decision in which the “in

addition” or “another imputation” requirement seems to have been

accorded a reduced importance.

[26] In NSW v Deren,40 a Plaintiff had pleaded two imputations alleging his

participation in sexual assaults. Each of his imputations was tied to “a

Sydney Kindergarten.” The Defendant had pleaded a contextual

imputation “the Plaintiff is a child molester.” It is plain from the judgment

that the Defendants had no evidence as to the assaults at the Sydney

Kindergarten but they alleged other specific sexual assaults against

children and also relied upon a televised admission by the Plaintiff of a

“need to touch young girls in their private parts.”

[27] The trial judge held that the contextual imputation was incapable of

arising at the same time and in addition to the Plaintiff’s imputations. The

Court of Appeal reversed the decision:

[85] In the appeal, it was argued for the second plaintiff that the

publication complained of was not capable of being understood as

making the contextual imputation (i). In my opinion it is so capable.

It seems to me that the words of the publication are quite capable

of bringing to the mind of the reasonable reader two ideas, one

being that the first plaintiff had committed five indecent assaults on

very young children from a Sydney kindergarten in the last ten

months and the other that such a man must be a habitual molester

of children. Of course, the two ideas have much in common but                                                                                                                40 New South Wales v Deren & Anor [1999] NSWCA 22.

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they nevertheless seem to me to be distinct ideas generated by the

same matter.

[28] The decision, with respect, is a sensible and fair application of the

defence. An ordinary reader reading that a man is alleged to have

molested five children in a Sydney kindergarten might have conveyed to

him both the meaning about the kindergarten, and a more general

meaning about a predilection for molesting children.

[29] However, the decision does not sit easily with some of the decisions

discussed above including John Fairfax v Jones41. Accepting the uniquely

serious subject matter of the decision in Deren42, and distinct community

views about the probability of recidivism amongst paedophiles, there

remains an issue as to why other forms of allegations of multiple offences

are somehow less likely to give rise to an independent general meaning.

If a broadcaster is alleged to have told a number of lies why would a

viewer or reader not have conveyed to them a general meaning of

dishonesty on top of the individual lies? If a man is the “largest distributor

of adult pornography on the east coast” and owns two adult shops why

would a reader not have conveyed to them a general meaning that he is

a pornographer? If a business person is accused of ripping off a half

dozen clients in separate transactions then why cannot such a matter

convey a general meaning that he is a conman?

3. Challenges to the Form of Contextual Imputations

[30] Concepts of precision in the pleading of a plaintiff’s imputations43 apply equally

to the pleading of contextual imputations.44

[31] An issue arises as to the extent, if any, as to which considerations of fairness

and/or practical justice should impact upon a Court’s determination of whether

a contextual imputation, particularly if it is general in nature, ought to be struck

                                                                                                               41 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205. 42 New South Wales v Deren & Anor [1999] NSWCA 22 . 43 See for instance Drummoyne v Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-138 per Gleeson CJ; at 155F per Priestley JA. 44 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 90 at [32]-[34] and [42]-[43].

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out as imprecise. In Ange v Fairfax Media Publications Pty Ltd,45 Simpson J

had observed in the context of her discussion of the principles in Jones46

affecting the pleading of general contextual imputations, that the fairness of

permitting a defendant to plead in this way was not a relevant consideration.

[32] Earlier in a different context, the Court of Appeal had considered that when

examining a challenge to the precision of a contextual imputation, issues of

fairness or practical justice did arise:

[31] But in my opinion, the question of whether the contextual imputation

is sufficiently precise and specific raises considerations of “practical

justice” as indicated by Drummoyne; and in this regard, it is relevant to

consider to what extent this contextual imputation is based on material

that supports it, otherwise than through the respondent’s imputations and

the appellants’ other contextual imputations. If it is not supported

otherwise than by inference from these other imputations, which the

appellants can address directly, it could well be unjust to allow the

appellants to defend on the basis of this contextual imputation by ranging

widely over alleged discreditable conduct of the respondent having

nothing to do with matters raised by the broadcast.47

[33] The Court of Appeal, relying in part on considerations of practical justice, then

upheld a decision to strike out as imprecise a contextual imputation “The

Plaintiff is not a fit and proper person to supervise other scientists”. The Court

observed that a “huge range of conduct” could be marshalled in support of a

truth defence to such an imputation, and that even if the particulars of truth

presently relied upon were confined to the broadcast, the possibility of an

amendment with particulars delving into fresh matters remained.48

[34] In King v Fairfax Media Publications (No 2)49 (“King”) the Plaintiff challenged all

seven contextual imputations pleaded by the Defendant on the basis of

imprecision. The Court upheld the challenge and struck out each of the

                                                                                                               45 Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 at [72]. 46 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205. 47 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 90 at [31]. 48 Ibid at [35]. 49 King v Fairfax Media Publications (No 2 [2014] NSWSC 1244.

  17  

contextuals. Her Honour referred to Hodgkinson,50 and noted the need for the

particulars of contextual justification to “bear a reasonable relationship both to

the contextual imputation itself and to the published material relied upon by the

Plaintiff.”51

[35] In King, the first matter complained of contained the prominent headline “Wal

King approved Iraq bribe”. The opening paragraphs included some general

allegations of bribery and corruption before later descending into specificity.

The Defendants had not pleaded truth to the central allegation and the

contextual imputations tended towards generality, and the lower range in terms

of seriousness e.g. “The Plaintiff conducted himself in such a corrupt manner

as to make him unfit to hold the office of CEO of a large international company”

and “The Plaintiff has engaged in serious corporate misconduct with respect to

Leighton Holdings’ international empire”.

[36] The Defendants have sought leave to appeal from the decision in King. The

nub of the submissions on appeal appears to be that once a general imputation

is capable of arising, questions of form fall away. A challenge is also made to

the Court’s consideration of notions of practical justice when dealing with form

challenges to contextual imputations.

[37] Generally speaking, aside from the notion of “practical justice” developed in

Hodgkinson52 and applied in King, form challenges to contextual imputations

appear to proceed in a comparable to form challenges against a plaintiff’s

imputations.53

4. The Decision in Kermode and a Defendant’s Inability to Plead Back the

Plaintiff’s Imputations as Contextual Imputations.

[38] In Besser v Kermode54, the Court of Appeal held that s 26, in contrast to its

predecessor in the 1974 Act55, did not permit a defendant to plead back as a

                                                                                                               50 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 90. 51 King v Fairfax Media Publications (No 2) [2014] NSWSC 1244 at [11]. 52 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 90. 53 See for instance Ell v Milne (No 2) [2012] NSWSC 259 at [7]-[28], Bateman v Fairfax Media Publications Pty Ltd (No 3) [2014] NSWSC 1601 at [41]-[43], [58], Trodden v Fairfax Media Publication Pty Ltd [2013] NSWSC 1148 (McCallum J) at [4]-[11]. 54 Besser v Kermode [2011] NSWCA 174 at [75]-[86]. 55 s 16 of the Defamation Act 1974 (NSW).

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contextual imputation, one or more of the Plaintiff’s imputations against those

other Plaintiff’s imputations ultimately found to be false. The Court relied on the

structure of the Act and the precise words of s 26 to support this conclusion.

There cannot, with respect, be much doubt that the literal meaning of s 26

supports the conclusion reached by the Court in Besser v Kermode and in that

sense the decision is clearly correct. What is (again with respect), perhaps

regrettable, is that the Court did not adopt or endorse the concerns of the

primary judge Simpson J,56 who held that the construction, whilst being the only

one reasonably available, was liable to work injustice, did not reflect the

intentions of the legislature and warranted being brought to the attention of

those responsible for statutory reform.

[39] There are many examples that could be employed to point up the difficulties

flowing from the Besser v Kermode construction of s 26. Put simply a plaintiff,

well advised57 and intent on covering the field, might be defamed as a serial

fraudster (true) and a person liable for a violent assault (false). He can himself

plead both imputations and benefit from a guaranteed win – as the truth of the

fraudster imputation may only be permissibly taken into account in mitigation of

damages, but not on any of the defences. Why is it not a matter for a jury as to

whether such a plaintiff deserves to win or lose by a simple application of s 26?

[40] Recently in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014]

NSWCA 369 (“Born Brands”), the Court of Appeal very tentatively posited an

alternate view of the structure of s 26:

[86] The reasoning in Kermode and Mizikovsky (which may not be

entirely consistent with each other) appears to assume that the defences

in ss 25 and 26 are to be applied sequentially and (at least in the case of

Besser) in the order in which they appear in the Act. However, there is an

alternative reading of the legislation, namely that the tribunal of fact must

                                                                                                               56 Kermode v Fairfax Media Publications [2010] NSWSC 852 at [54]-[56]. See also the similar comments of Gibson DCJ in Hughes v ISPT Pty Ltd (No. 2) [2010] NSWDC 282 at [20]-[21]. 57 An interesting question arises as to whether a responsible solicitor could sign a certificate on such a plea. In a technical sense, so long as the statement of claim does not allege the falsity of the imputations, there might be a dubious argument that the matter is the cause of action, and that even if it conveys true imputations, so long as it conveys false imputations there is an entitlement to claim damages. Accordingly it could be said there is nothing misleading about such a statement of claim. However when all is said and done, given the particulars of meaning or imputations are there first and foremost to point up how the Plaintiff says she is defamed – as the basis of the claim for damages, it would seem quite wrong for a true imputation to be deliberately pleaded.

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consider holistically the effect of the defamatory matter on the reputation

of the plaintiff, deciding at the end of the day whether, by reference to the

imputations pleaded by both plaintiff and defendant, any imputations

which have not been shown to be substantially true cause any further

harm to the reputation of the plaintiff once the effect of the substantially

accurate imputations has been assessed.

[87] As noted by McCallum J in McMahon, in different cases the positions

of the respective parties may differ. The position adopted by each party is

likely to depend upon the relative seriousness of the imputations pleaded

by each. That is illustrated by the claims of absurd results which might

flow from the adoption of one course or the other: McMahon at [67];

Mizikovsky at [16].

[88] It is not appropriate to say more about these issues in the present

case as neither party sought to expose any inconsistency in the

authorities, although the issue was raised in written submissions before

the trial judge …..58

[41] Basten JA at [82] of Born Brands went so far as to say that on one view Besser

v Kermode “was confined to a pleading point and did not need to answer the

separate question as to whether a defendant could nevertheless rely upon

imputations which it had proved to be substantially true as overwhelming the

defamatory effect of an imputation to which it had not pleaded or established a

defence of substantial truth.” That observation, with respect, seems at odds

with the quite determined reasoning in Besser v Kermode.59

[42] Ultimately in Born Brands the Court of Appeal held that the defence of

contextual truth succeeded against the sole surviving plaintiff’s imputation

found to be conveyed, defamatory and not justified.60

5. The Pleading Back of Alternative Plaintiff’s Imputations as Contextual

Imputations

                                                                                                               58 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [86]-[88]. 59 Besser v Kermode [2011] NSWCA 174 at [84]. 60 See Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [88]-[89].

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[43] One potential exception to the finding in Besser v Kermode, outlined in that

case, 61 was a situation where a plaintiff had herself pleaded alternate

imputations. The Court of Appeal observed if a jury found one was conveyed

and not the other, then the plaintiff ceased to rely on the alternative imputation

and that arguably it then ceased to become an imputation “of which the plaintiff

complains” in the language of s 26. Accordingly, it was arguable that a

defendant could plead the alternative imputation as a contextual. The Court of

Appeal did not express a concluded view but did observe the dubious practical

utility in a defendant adopting the less serious alternative imputation in

circumstances where the jury had found the more serious alternative arose.

[44] On three more recent occasions the issue of alternative imputations and

contextual truth defences have come before the defamation list judge:

a. In Zeccola v Fairfax Media Publications Pty Ltd62 the Court dealt

with a challenge by the Plaintiff to the pleading of two alternate

contextual imputations along the lines of guilt and suspicion. The

Court, although concerned by the complexity of the technique,

permitted the approach observing there was no reason in principle

why a contextual imputation of lesser seriousness could not be

pleaded as an alternative to a more serious contextual

imputation.63

b. In Kelly v Fairfax Media Publications Pty Ltd (No 2)64 the Plaintiff

challenged the Defendant’s adoption of one of its alternatives as a

contextual imputation. Her Honour expressed some doubt about

the obiter in Besser v Kermode but nonetheless proceeded on the

basis that a defendant would be entitled to plead a plaintiff’s

alternative imputation as a contextual so long as it was another

imputation arising in “addition” in accordance with the

                                                                                                               61Besser v Kermode [2011] NSWCA 174 at [90]-[91]. The imputations themselves were set out at [11] and [12]. One example of a pair of alternatives: “The Plaintiff had obtained a 20 million dollar windfall for his companies by improperly influencing public servants and politicians by conferring benefits upon them” and in the alternative “The Plaintiff had attempted to improperly influence public servants and politicians in his favour by conferring benefits upon them.” 62 Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 at [29]-[33]. 63 Ibid [34]-[37], where the Court went on to strike out the reasonable suspicion imputation as incapable of arising. That decision forms part of the appeal discussed at Section 2.4 above. 64 Kelly v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 166

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requirements of s 26. In this case, proceeding on that basis, the

contextuals were struck out as the only difference between the

alternates was “one of the degree of seriousness of the conduct in

question, which is in substance the same conduct”.65

c. In Hall v TCN Channel Nine Pty Ltd66 the Court dealt with an

application by the Defendant to strike out certain of the Plaintiff’s

imputations following the adoption by the Plaintiff of a number of

contextual imputations (the decision is dealt with in more detail

below). Her Honour accepted the Defendant’s argument that

following the Plaintiff’s appropriation of two of the contextuals, they

could only be relied upon as an alternative to an existing Plaintiff’s

imputation.67 However the Court rejected a submission (based on

Besser v Kermode) that having established the two Plaintiff’s

imputations as alternatives, the Defendant was entitled to plead

the fallback (in fact its former contextual) as a fresh contextual.68

Applying the same approach as in Kelly, 69 the Court held that

even though the Defendant had a legal entitlement to plead back

the alternative as a contextual, it would not here be permitted to do

so because the alternatives did not arise in addition to each other.

The reason was the imputations were true alternatives – if the first

was rejected only then the second would come to be considered -

and it would then be one of the imputations of which the Plaintiff

complained, and accordingly unavailable as a contextual.

Conversely, if the jury accepted the first alternative, they could not

find the alternative arose as a contextual as they were true

alternatives.

                                                                                                               65 Ibid at [24]. The two alternates were “the Plaintiff is corrupt in that, while a senior public servant, he provided favourable treatment to the Kazal family, a powerful property family, in connection with the granting and administration of leases by the Sydney Harbour Foreshore Authority in exchange for secret benefits, including lavish holidays in Abu Dhabi” and “the Plaintiff accepted bribes while he was a senior state public servant”. 66 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604. 67 By example, the Plaintiff’s imputation was that “The Plaintiff had so conducted himself in the conduct of his building business that the Department of Fair Trading refused to renew his building license”. The Defendant’s contextual, appropriated by the Plaintiff was “The Plaintiff had so conducted the business of his company the Extension Factory that the Department of Fair Trading refused to renew its building license.” The Defendant argued that the Plaintiff’s imputation conflated the individual and corporate entity, whereas as its contextual more accurately recorded he thrust of the allegation. 68 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 at [23]-[29]. 69 Kelly v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 166.

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[45] Practically speaking, an analysis of the reasoning in Kelly70 (where the pleading

of contextual based on an alternative Plaintiff’ imputation of lesser seriousness

was disallowed) and in Hall71 (where the pleading as a contextual of a true

alternative was disallowed) suggests that the fleeting and narrow crack in the

door left open at the tail end of the decision in Besser v Kermode has been

closed.

6. The Appropriation by a Plaintiff of Contextual Imputations

[46] The entitlement of a plaintiff to appropriate contextual imputations and thereby

deprive the defendant of a defence is now firmly established. See Besser v

Kermode72 where the Court observed that appropriation by a plaintiff of a

contextual imputation was an open course.73 See also Holt v TCN Channel

Nine74 citing this passage in Besser v Kermode.

[47] Two earlier decisions appeared to prohibit such appropriations:

a. In Waterhouse v The Age Company Ltd & Ors75 Nicholas J refused an

application by a plaintiff seeking to adopt contextual imputations into the

Statement of Claim. His Honour held as follows:

[26] By the amendment the issues as to truth or falsity of the

imputations, and resulting harm to reputation, would be raised on

the plaintiff's pleadings, which include the claim for aggravated

damages that harm was increased by the falsity of the imputations.

However, the defence already raises the same questions, and

includes the plea in mitigation that harm was reduced by the truth of

the imputations. It follows, in my opinion, that for the agitation of

questions as to truth or falsity of the imputations, and resulting

harm to reputation, it is not necessary to allow the amendment

sought by the plaintiff. The plaintiff did not identify any other

                                                                                                               70 Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9. 71 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604. 72 Besser v Kermode [2011] NSWCA 174, 81 NSWLR 157 at [88]-[89]. 73 Before this time in Creighton v Nationwide News Pty Ltd (No. 2) [2010] NSWDC 192 Gibson DCJ had permitted an appropriation relying on earlier dicta of] Simpson J in Kermode v John Fairfax Media Publications Pty Ltd [2010] NSWSC 852. 74 Holt v TCN Channel Nine [2014] NSWCA 90 at [23]. 75 Waterhouse v The Age Company Ltd & Ors [2012] NSWSC 9.

  23  

question in controversy which necessitated the grant of leave to

amend to include it in these proceedings. Accordingly, leave to

amend under s 64(2) CP Act should be refused.

…

[29] If the amendment was permitted, the defendants would be

deprived of the right to have the issue of harm under s 26

determined by the jury. In my opinion, such a result would work a

grave injustice to them in these proceedings.

[30] This is not a case in which the amendment would impede the

progress of the litigation or otherwise cause delay, or would waste

public resources. It is not required to avoid a multiplicity of

proceedings. The application stems only from the fact that the

imputations were pleaded in the defence of contextual truth.

[31] Taking into account all the circumstances of the case, I find the

plaintiff would suffer no injustice by the refusal of leave. It is

reasonable to suppose that at the time he learnt of the publications,

or soon thereafter, the plaintiff would have had a good idea of the

defamatory meanings which harmed his reputation and hurt his

feelings. There has been full opportunity to identify and plead them,

and those he chose were adhered to in opposition to the

defendants' challenge earlier referred to. In McMahon (par 49)

Giles JA referred to the importance of getting the framing of

imputations right the first time, at risk of refusal of leave to amend

at a later time.

b. See also Ahmed v Nationwide News.76

[48] However, more recently in Hall v TCN Channel Nine Pty Ltd77 the defamation

list judge permitted an appropriation:

                                                                                                               76 Ahmed v Nationwide News [2010] NSWDC 268. 77 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 at [30]-[36].

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[35] I confess I have not found this issue easy to determine. On the

one hand, it seems unsporting to pull the contextual truth rug from

underneath the defendants' feet. On the other hand, I accept, as

submitted by Ms Chrysanthou, that there is no property in an

imputation. Leaving aside the apparent unfairness of depriving the

defendants of an aspect of their defence, the application to amend

at this point would readily be granted in accordance with accepted

principle.

[36] In that context, I have also had regard to my view that,

although the plaintiff's original imputations and the adopted

contextual imputations technically meet the requirement of differing

in substance, I would consider that, on the strength of the

particulars provided in the amended defence, the defendants have

a respectable prospect of persuading the jury that even the

plaintiff's original imputations are substantially true.

[49] With great respect, her Honour’s chief point is sound – there is no property in

an imputation. If it arises as a contextual, it arises as a Plaintiff’s imputation and

as a starting point there does not seem to be any reason why a Plaintiff should

not be able to rely upon it if she or he wishes.

[50] However, the substantial difficulty with this appropriation issue stems again

from the wording of s 26 as exposed in the decision in Besser v Kermode. The

effect of the finding in that case allows a plaintiff to appropriate a true

contextual imputation for purely tactical reasons in order to pull the contextual

truth rug from underneath the defendant’s feet. Once the plaintiff owns the

imputation, even if it is proved true (assuming at least one other false

imputation is available) it cannot be employed in aid of a defence. This reality

will make some amendment applications by plaintiff’s of this kind very troubling,

but there will probably rarely be available any decent legal reason to refuse

them. One possibility is the Court’s consideration of limited evidence on

substantial truth – if after perusing such evidence it really looks as though the

plaintiff is appropriating an imputation that may very well be true (and had

earlier been ducked), then in those circumstances the reasons for refusing the

appropriation application would be compelling.

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7. Pre-Trial Challenges to the Particulars of Contextual Truth including

Challenges to the Capacity of Contextual Imputations to Swamp

Plaintiff’s Imputations.

[51] In former times,78 plaintiffs would not infrequently challenge the defence of

contextual truth on the basis that the contextual imputations were incapable of

“swamping” the Plaintiff’s imputations and/or that the particulars of truth

appended to the contextual imputations could not, even if made out, sustain the

imputation. Since the decision in Hayson v John Fairfax,79 in which the Court of

Appeal reminded parties that particulars are merely “topics on which evidence

may be lead” and declined to strike out a contextual truth defence on this

ground, challenges of this kind are now rare.

[52] In Zeccola v Fairfax Media,80 a challenge to the sufficiency of particularisation

of contextual imputations failed. In Ell v Milne (No 3)81 the Court did strike out a

contextual imputation on the basis that it could not be sustained by the

particulars. However, it was a third attempt and it seems to have been fairly

clear that the particulars in question had steadfastly declined to provide any

detail fleshing out a state of mind on the part of the Plaintiff, in circumstances

where that state of mind was critical to the terms of the contextual imputation.

8. The Application of the Defence of Contextual Truth at Trial

[53] In McMahon  v  John  Fairfax  Publications  Pty  Limited  (No  6)82  McCallum  J  

dealt  with  an  application  concerning  the  appropriate  direction  to  be  given  

to  a  jury  on  contextual  truth.  In  circumstances  where  the  jury  had  found  

that  one  of  the  Plaintiff’s  imputations  was  true,  the  issue  was  whether  

when  undertaking  the  balancing  exercise  prescribed  by  s  26  the  jury  should

                                                                                                               78 John Fairfax Publications Pty Limited v Blake [2001] NSWCA 434, McBride v Australian Broadcasting Corporation [2000] NSWSC 747 (also strike-outs on basis of form and incapacity to arise), Sutherland v ACP Publishing Pty Limited [2000] NSWSC 1139. 79 Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 at [20]. 80 Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 at [6]-[19]. The Plaintiff alleged that the fact that the particulars of justification were the same as the particulars of contextual truth meant the latter defence must fail. Her Honour, whilst noting that this structure was “inauspicious”, declined to strike out the Defence. 81 Ell v Milne (No 3) [2012] NSWSC 985 at [18]-[22]. See also McMahon v John Fairfax Publications (No 3) [2012] NSWSC 196 at [25]-[52] where the Court declined to strike out particulars of justification prior to trial. A challenge to a contextual imputation, at least partly based on its inability to swamp the Plaintiff’s imputations, was deferred; see [24]. 82 McMahon v John Fairfax Publications Pty Limited (No 6)82 [2012] NSWSC 224 at [51]-[78].

  26  

include the true imputation. Put another way is a jury to compare the facts,

matters and circumstances that have made out the truth of the contextual

imputations against all of a plaintiff’s imputations or only those which the jury

has found not to be substantially true? Her Honour took the view that jury

should exclude consideration of plaintiff’s imputations found to be a matter of

substantial truth.  

[54] In the course of her decision in McMahon (No 6),83 her Honour explored an

example proffered by the defendant’s counsel of an article conveying

imputations that a plaintiff was a murderer, a thief and a litterbug. Suppose a

plaintiff sued only on murderer and litterbug, and a defendant pleaded thief as

a contextual. Assuming that murderer and thief were true but litterbug was not,

the position taken by the plaintiff would compel a verdict in his favour. This is

because the allegation of murder – even though true – would have to be

balanced against the evidence establishing the plaintiff is a thief.

[55] Her Honour observed that this analysis would enable a plaintiff to avoid the

sting of the thief imputation by selective pleading.84 The example proffered is

with respect a compelling reason in favour of the conclusion her Honour

ultimately reached.

[56] In Mizikovsky v Queensland Television Limited85 the Queensland Court of

Appeal took a different approach and upheld a trial judge’s direction to a jury to

balance the evidence establishing the contextual imputation, against all of the

Plaintiff’s imputations, even those that were true. The decision does not with

respect, grapple with the careful analysis undertaken by McCallum J in

McMahon (No 6),86 a few weeks earlier. It has not been followed by two other

judges of the NSW Supreme Court in subsequent decisions.87 Furthermore, it

                                                                                                               83 Ibid at [68]-[71]. 84 Ibid at [71]. See also Besser v Kermode [2011] NSWCA 174 at [85]. 85 Mizikovsky v Queensland Television Limited [2013] QCA 68 at [14]. 86 McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224 at [51]-[78]. 87 Born Brands v Nine Network Australia Pty Ltd (No 6) [2013] NSWSC 1651 at [121] and Phillips v Robab Pty Limited [2014] NSWSC 1520 at [59]. In an appeal from Born Brands (No 6) - Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWSCA 369 at [80], the Court of Appeal noted the division between the single judges in NSW and the Court of Appeal in Qld but did not resolve the issue either way. However, the language of paragraph [86]-[87] arguably tends to indicate some discomfort with both Mizokovsky and Kermode whereas the reasoning of McMahon (No 6) is not even impliedly criticised.

  27  

arrives at an unreasonable result, which unlike the comparable finding in

Besser v Kermode, is not compelled by the language of the statute.

[57] There appears to be unanimity on the notion that neither judge nor jury is

required to find a contextual imputation is defamatory – that test is not part of

the defence.88

9. The Hore Lacy Defence and its Compatibility with NSW Practice and

Procedure

9.1. The decision in Bateman v John Fairfax Publications

[58] So far as the writer is aware not only has the defence of Hore Lacy89

never succeeded in NSW, it has also never gone to a jury. Nonetheless,

it appears periodically in defences, usually to be retired at a time when a

forthcoming trial focuses minds on less esoteric issues.

[59] At the outset the significant differences between a Hore Lacy and a

contextual truth defence should be noted. Hore Lacy requires imputations

that are not substantially different from the Plaintiff’s imputations (or

nuances), and imputations that are equal to or less serious than the

Plaintiff’s imputations – the rationale being that a Plaintiff herself may

succeed on such imputations even if she has not pleaded them.

Contextual Truth (in potted summary) requires imputations that do differ

in substance, and that are so serious (at least when considering the

evidence put forward to prove justification rather than the terms of the

contextual imputations themselves)90 that no further damage can be done

to the Plaintiff by the publication of the false imputations.91

                                                                                                               88 See McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 at [18] and Mizikovsky v Queensland Television Limited [2013] QCA 68 at [21]-[26]. 89 David Syme & Co Ltd v Hore Lacy [2000] VSCA 24 (2000) 1 VR 667 at esp. [52]-[53] and [69]. 90 John Fairfax Publications Py Ltd v Blake [2001] NSWCA 434 at [5] and [70]. 91 In Woodham v John Fairfax Publications [2005] NSWSC 1204 Nicholas J held that a defendant could not deploy a single imputation in both a contextual truth defence, and a Hore Lacy defence, because of these critical differences. The approach was approved in John Fairfax Publications Pty Limited v Hitchcock (2007) 70 NSWLR 484 at [235]-[237].

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[60] In Besser v Kermode92 the Court of Appeal, in obiter dealing with the

common law options available to defendants in search of a justification

defence, clearly implied that it considered the Hore Lacy defence to be

valid law. This is not surprising given the terms of s 24 of the Defamation

Act 2005 which expressly preserved the common law defences in

existence at the time of enactment.

[61] In Bateman v Fairfax Media Publications (No 2)93 the defamation list

judge struck out a Hore Lacy ‘Defence’ as having a tendency to cause

prejudice, embarrassment and delay in the proceedings.94 Her Honour

found that the defence “had no work to do having regard to the law and

practice in this state.”95 Her Honour observed that, having reached this

conclusion, ss 56 and 58 of the Civil Procedure Act 2005 militated

strongly in favour of the pleading being struck out. The following aspects

of the reasoning96 are significant:

a. In interstate jurisdictions more latitude is granted to a plaintiff to

contend at trial that nuance meanings or meanings other than she

has pleaded are conveyed. There is thus a risk that the defendant

will be confronted by an imputation not pleaded at the trial;

b. In NSW, the rules of pleading97 require greater precision in the

pleading of imputations. If a plaintiff wishes to advance a lesser or

nuance meaning then he or she must plead such a meaning. A

defendant is therefore not exposed to the risk of having to meet an

un-pleaded meaning and thus the rationale for the ‘defence’ falls

away;

c. In NSW, a jury is not asked whether the matter complained of has

defamed the defendant but instead whether the matter complained

                                                                                                               92 Besser v Kermode [2011] NSWCA 174 [58]-[59] and [86]. See also John Fairfax Publications Pty Limited v Hitchcock (2007) 70 NSWLR 484 at [21], [40] and [233] and John Fairfax Publications v Zunter [2006] NSWCA 227 at [42]. 93 Bateman v Fairfax Media Publications (No 2) [2014] NSWSC 1380. 94 See UCPR 14.28. 95 Bateman v Fairfax Media Publications (No 2) [2014] NSWSC 1380 at [50]. 96 Ibid at [33]-[57]. 97 See UCPR 14.30, 14.31 and 14.32.

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of conveys certain meanings. Those meanings are taken to

include all meanings which do not differ in substance;

d. Hore Lacy is not a defence but a principle relating to the proper

pleading of justification at common law;

e. The Plaintiff had no intention (in accordance with NSW practice) of

asking the judge or jury to find any alternative meaning that

differed in substance from his own meanings. Accordingly, there

being no suggestion that the Plaintiff would depart from the

pleaded case, the Defendant found itself obliged to defend the

pleaded case.

[62] Ultimately her Honour struck out the pleading. The Court did so with

some diffidence, mindful of the language of the decision in Besser v

Kermode, but distinguishing that decision as not having considered the

compatibility of Hore Lacy with NSW practice.

9.2. The decision in Setka v Abbott

[63] A month later in Setka v Abbot98 the Victorian Court of Appeal dismissed

an appeal by a Plaintiff against a decision to uphold a Hore Lacy pleading

the subject of a pre-trial challenge. The Court of Appeal emphatically

affirmed the Defence. In the course of its reasons the Court distinguished

Bateman v John Fairfax (No 2)99 as a decision confined to the law and

practice in NSW.100 However the Court of Appeal then criticised aspects

of the reasoning in Bateman v John Fairfax (No 2),101 observing:

a. Hore Lacy is a defence and not a pleading practice, and moreover

it is not a peculiarly Victorian defence, but also a defence forming

part of the common law of West Australia, South Australia and the

Australian Capital Territory.

                                                                                                               98 Setka v Abbott [2014] VSCA 287. 99 Bateman v Fairfax Media Publications (No 2) [2014] NSWSC 1380. 100 Setka v Abbott [2014] VSCA 287 at [130]. 101 Ibid at [131]-[141].

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b. The decision in Bateman (No 2)102 paid no or insufficient regard to

the sections in the Defamation Act 2005 preserving the common

law, including common law defences.103

c. UCPR 14.30, 14.31 and 14.32 are in effect remnants from the

1974 Act in which each imputation gave rise to a separate cause

of action. They have doubtful utility in the context of the 2005 Act.

d. Even if UCPR 14.30-14.32 are in play and even if the need for

precision in pleading stands unchanged in NSW, the defence of

Hore Lacy is still applicable. A Plaintiff can succeed in NSW on an

un-pleaded variant of a pleaded imputation as “each pleaded

imputation is taken to comprehend all imputations that do differ in

substance from it”.104 A defendant seeking to justify must plead the

defence before trial. The decision in Bateman 105 has the

consequence that defendants would have to plead justification “en

bloc” to meet “unidentified but permissible variants.”106 This would

generate unfairness to both parties.

[64] An application for special leave to appeal to the High Court in Setka is

pending. An application for leave to appeal to the NSW Court of Appeal

is also pending in Bateman (No 2). In one sense it would be a matter of

real gravity for the High Court to strike down a defence that has been

alive and prospering in a majority of States for more than a decade. It

may well be that a straightforward view is taken that if NSW pleading and

trial practice is inconsistent with the common law, then NSW will just

have to adjust.

                                                                                                               102 Bateman v Fairfax Media Publications (No 2) [2014] NSWSC 1380. 103 ss 6(2) and 24 of the Defamation Act 2004. 104 While this is certainly true, this may mean different things north and south of the border. There is no necessary consistency between the Hore Lacy assessment of what is a permissible “nuance” imputation, and the NSW assessment of whether an imputation would be struck out as not differing in substance. When one examines the plaintiff’s meanings and the defendants’ Hore Lacy variants at paragraph [5]-[8] of Setka, it has to be said that if those meanings were pleaded in NSW by the Plaintiff as additional meanings they would survive a differing in substance challenge – whatever other problems the Hore Lacy meanings might have they clearly differ in substance as that term is understood in this state. The plaintiff’s meanings are very specific and the defendant’s meanings are excessively general. 105 Bateman v Fairfax Media Publications (No 2) [2014] NSWSC 1380. 106 Setka v Abbott [2014] VSCA 287 at [109].

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[65] However, the most basic rationale underpinning Hore Lacy is the

entitlement of a plaintiff to succeed on meanings that are not pleaded. In

2014, this seems inconsistent with the policies of quick and cheap justice

that now appear in one manifestation or another in the various legislation

and rules of Court in the different States. Further, the notion of permitting

a jury to return with nuance meanings of its own does not seem terribly

practical. If a jury’s entitlement to do so is more theoretical than real, then

that is a further reason for suggesting Hore Lacy is not really necessary.

In the end what is the problem with confining a plaintiff to her pleadings?

And once a plaintiff is so confined, then a defendant may either justify the

pleaded imputation, or plead and justify its own imputations via

contextual truth and that can be the end of the matter.

10. Conclusion

[66] The decision in Besser v Kermode increased the importance for a defendant to

plead independent contextual imputations, without which it would have no truth

related defence, even if it could defend some or most of a plaintiff’s pleaded

imputations as matters of substantial truth. This appears to have generated a

considerable amount of activity and jurisprudence, in the course of which

plaintiffs have enjoyed considerable success in striking out contextual

imputations, most often on the basis that they do not arise “in addition” to the

imputations of the Plaintiff, or are otherwise incapable of arising or defective in

form. It may well be that without the impact of Besser v Kermode, many of

these contextual imputations would never have seen the light of day and

become susceptible to the scrutiny of the Court.

[67] Contextual imputations of a general kind have encountered particularly rough

waters. One can readily understand a long line of authority that seeks to

constrain defendant publishers from grasping for general meanings to justify,

when they cannot justify what they actually published. Apart from the

unfairness, this course can greatly increase the costs and length of defamation

proceedings, as they are opened up into a kind of roving inquest into a

plaintiff’s life and history. However, as the example of the Deren107 case shows,

there will be occasions when allowing a contextual truth defence that raises

issues of real gravity is what justice and fairness demands – even when that                                                                                                                107 New South Wales v Deren & Anor [1999] NSWCA 22.

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contextual truth defence lacks a very close identification with the published

matter.

[68] It is trite to say that each case will depend on its own facts. What is perhaps

regrettable is that considerations of fairness, while accorded a limited

relevance on questions of form, are not part of the Court’s overall supervisory

jurisdiction on the issue of whether a contextual imputation accords with the

requirements of s 26, or indeed of whether a s 26 defence should be allowed at

all. As an example, in circumstances where the particulars of contextual truth

raise fresh matters not contained within the particulars of justification, and

where those fresh matters are significant and (even if not relating to the precise

subject of the matter complained of) are substantially germane to the sting, a

Court should be able to examine big picture considerations of fairness on any

strike out application.

[69] In NSW, the defence of Hore Lacy has played no role of significance. It is

possible, that if the High Court grants special leave in the Setka matter, that

any substantive decision in that matter may have a real impact on practice and

procedure on defamation pleading and trials in this state. The appeal in

Bateman (No 2) may also generate such a result. The suggestion that juries,

dissatisfied with the pleaded meanings submitted to them, should be entitled to

find alternative meanings (especially meanings as resoundingly different as

those pleaded by the defendant in Setka), seems an anachronism and is

certainly at odds with at least 40 years of practice and procedure in NSW.

However, if Hore Lacy really is good law, things may need to change.

Matthew Richardson