Al Sesalim v The Herald and Weekly Times Pty Ltd
[2018] VSC 264
•25 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2017 01092
| DEAN AL SESALIM | Plaintiff |
| v | |
| THE HERALD AND WEEKLY TIMES PTY LTD (ACN 004 113 937) | First Defendant |
| VANDA CARSON | Second Defendant |
---
JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 May 2018 |
DATE OF JUDGMENT: | 25 May 2018 |
CASE MAY BE CITED AS: | Al Sesalim v The Herald and Weekly Times Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2018] VSC 264 |
---
DEFAMATION – Application by defendants for leave to amend defence to provide further particulars of contextual truth defence and to add a fourth contextual imputation – Plaintiff claimed article published by defendants gave rise to defamatory imputation that plaintiff was a shameless cheat who had fraudulently obtained a disability support pension – Article concerned plaintiff’s appeal to the Administrative Appeals Tribunal (‘AAT’) in respect of decision of the Department of Social Services to refuse his application for indefinite portability of his Disability Support Pension – Defendants relied on defences under ss 26 and 29(4) of the Defamation Act 2005 (Vic) (‘Act’) – Plaintiff sought orders under Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) striking out the contextual truth defence – Whether particulars to imputations support truth of contextual imputations alleged in defence – Whether particulars to imputations are confusing and embarrassing, likely to cause delay or prejudicial to the plaintiff – Whether defendants’ pleaded contextual imputations are capable of ‘swamping’ the plaintiff’s pleaded imputation so as to establish a defence under s 26 of the Act – Whether permissible to justify an imputation by relying upon a finding of another person – Section 91 of the Evidence Act 2008 (Vic) – Hunt v Times Newspapers Ltd [2012] EWHC 110 (QB), referred to – Whether defendants’ allegations are not so untenable or foredoomed to fail that the proposed amendments ought not be allowed – EWC Payments Pty Ltd v Commonwealth Bank of Australia [2014] VSC 4, applied – Defendants granted leave to amend in part - Defendants’ summons adjourned for further hearing – Costs reserved
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms G Schoff QC with Ms M Marcus | Slater + Gordon |
| For the Defendants | Mr H R Hassan | M & K Lawyers Group Pty Ltd |
HER HONOUR:
This proceeding concerns the publication of an article by the defendants, Herald & Weekly Times Pty Ltd (‘HWT’) and a journalist employed by HWT, in the Herald‑Sun on 29 March 2016. The article was headed ‘Cash cheat cut off’, and included a picture of the plaintiff. The subject matter of the article is succinctly summarised in the first paragraph, which states as follows:
A refugee and former poster boy for asylum seeker activists who morphed into a taxpayer funded jetsetting invalid pensioner has had his payments slashed and has been criticised by a tribunal for giving misleading evidence.
The tribunal concerned was the Commonwealth Administrative Appeals Tribunal (‘AAT’), where the plaintiff challenged the decision of the Department of Social Services (‘Centrelink’) to refuse his application for indefinite portability of his Disability Support Pension (‘DSP’), and to cancel his DSP. On 22 March 2016, Senior Member Cremean of the AAT upheld Centrelink’s decision, and in his reasons made a number of remarks concerning the credibility of the plaintiff’s evidence.
The plaintiff issued this proceeding on 28 March 2017. The plaintiff claimed that the article was defamatory and meant and was understood to mean that the plaintiff was a shameless cheat who had fraudulently obtained a disability support pension.
The defendants denied that the article carried the meaning asserted by the plaintiff, and that it was defamatory of the plaintiff. In the alternative, the defendants relied upon the following defences, being, among other things:
(a) the article complained of was a fair report of a proceeding of public concern within the meaning of s 29(4) of the Defamation Act 2005 (Vic) (‘Act’);
(b) the article carried, in addition to the meaning alleged by the plaintiff, a number of additional imputations, which are substantially true, and accordingly, the defendants are entitled to rely upon the defence of contextual truth under s 26 of the Act.
The defence of contextual truth and its availability and operation has been the subject of a number of single judge and appeal court decisions of this Court and in New South Wales.[1] In short, in order to rely upon a defence of contextual truth, a defendant must establish that the alleged contextual imputations are different from those complained of by the plaintiff, that the contextual imputations are substantially true, and the negative impact of those imputations upon the plaintiff’s reputation is equal to or exceeds the negative impact of the imputation or imputations pleaded by the plaintiff upon the plaintiff’s reputation. It is often said that in order to make out a defence under s 26 of the Act, the contextual imputations pleaded by a defendant must ‘swamp’ the imputations pleaded by the plaintiff.
[1]See, for example, Newnham v Davis (No 2) [2010] VSC 94; Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228; and Fenn v ABC (No 2) [2018] VSC 60.
The current application, being the defendants’ application to amend their defence to provide further particulars of its contextual truth defence, and to add a further contextual imputation, arose out of a dispute between the parties concerning the adequacy of the plaintiff’s discovery and of his answers to interrogatories, where the plaintiff resisted the defendants’ complaints on the grounds of relevance. This dispute drew the defendants’ attention to some inadequacies in their pleading of their defence of contextual truth, which they have sought to remedy in the proposed pleading which is the subject of the application.
There was no dispute between the parties concerning the relevant principles governing the application to amend,[2] and the plaintiff does not oppose the application to amend on ‘case management’ related grounds. Rather, the plaintiff contends that the particulars provided by the defendants are incapable of supporting the truth of the defendants’ contextual imputations, and further, if the matters alleged in the particulars are shown to be true, they are incapable of ‘swamping’ the plaintiff’s pleaded imputation, such as to establish a defence under s 26 of the Act. In short, the plaintiff submitted that proposed amendments are untenable. Further, if they are not allowed, the plaintiff would be entitled to strike out the defendants’ defence of contextual truth under s 26 of the Act, on the basis that there are no relevant facts pleaded to support the truth of those imputations.
[2]See Charan v Nationwide News Pty Ltd [2017] VSC 66, [17]-[18].
Counsel for the defendants relied upon the decision of Derham AsJ in EWC Payments Pty Ltd v Commonwealth Bank of Australia (No 2),[3] where his Honour stated as follows (omitting citations):[4]
It needs to be remembered, however, that on an application to amend a statement of claim the Court will not engage in an examination of the merits of the case foreshadowed by the proposed amendment, save where that amendment introduces a patently hopeless issue for determination or if the amendment has no reasonable prospect of success at trial. This means that when deciding whether a party should be allowed to amend it is not the function of the Court to decide arguable and difficult questions of law or mixed law and fact, even though it may appear that the proposed added claim or defence has little chance of success. The determination of the arguable and difficult claims and defences is for the judge at trial, where, as the oft cited dictum of Kirby P (as he then was) in Wickstead v Brown recognises, it is more efficient and just to consider the viability of causes of action when the suggested action can be judged with a full understanding of the facts and the evidence.
[3][2014] VSC 4.
[4]Ibid, [37].
The defendants submitted that the authorities indicate that the Court should be cautious to refuse a defendant in a defamation action the opportunity to take any viable defences to trial, and that the ultimate adjudicator of whether the defences are made out should be left, in this case, to the jury. Counsel for the defendants also submitted that, in the event some or all of the proposed amendments were not allowed to proceed, the defendants be given an opportunity to replead. Further, during the course of argument, counsel for the defendants conceded that the particulars to the fourth contextual defence do not support the truth of that imputation, but sought leave to replead.
Senior counsel for the plaintiff submitted that leave should not be granted, as the particulars to the imputations do not support the truth of the alleged contextual imputations. The contextual imputations alleged in the defence, along with the additional contextual imputation for which leave is sought, are set out below:
(a) the plaintiff is a person who the AAT found was prepared to advance a misleading picture of himself and his activities (‘first contextual imputation’);
(b) the plaintiff is a person whose evidence was not accepted as truthful by the AAT (‘second contextual imputation’);
(c) the plaintiff provided misleading evidence to the AAT (‘third contextual imputation’); and
(d) the plaintiff is a person who has worked the system by using his taxpayer funded DSP to help fund overseas travel to seek medical treatment when he was not entitled to do so and in circumstances where similar treatment was available in Australia (‘fourth contextual imputation’).
Given the defendants’ concession in relation to the fourth contextual implication, it is not necessary to deal with the parties’ submissions in relation to the viability of that pleading, save to observe that, given what has transpired, at least the words ‘when he was not entitled to do so’ would have to be deleted from the text of the fourth contextual imputation. I also note the observation of senior counsel for the plaintiff that it remains to be seen as to whether any other particulars which could be provided to a re‑pleaded fourth contextual imputation could satisfy the requirements of s 26.
Senior counsel for the plaintiff accepted that the Court ought exercise caution before striking out a defence (or not granting leave, as the case may be), but relied upon a statement of the High Court in Howden v Truth & Sportsman Ltd:[5]
there are some cases where the court will simply fail in its duty if it does not interfere, and that at the earliest possible moment.
[5](1937) 58 CLR 416, 424-425.
Senior counsel for the plaintiff submitted, in relation to the first and second contextual imputations, which are essentially of the same character, in summary, as follows:
(a) the recitation of the ‘Background Matters’ in 5C.1 and 5C.2 of the particulars to the first contextual imputation, which refer to factual matters summarised in an earlier hearing before the AAT, are irrelevant and ‘raise false issues’;
(b) it is impermissible to justify an imputation by relying upon a finding of another person. The terms of s 91 of the Evidence Act 2008 (Vic) will render the findings made by Senior Member Cremean referred to in the particulars to the first and second contextual imputations (‘reasons’) inadmissible at trial;
(c) the statement by Eady J in Hunt v Times Newspapers Ltd (‘Hunt’)[6] that:
[6][2012] EWHC 110 QB, [27].
it is impermissible to plead as a primary fact the proposition that some person or persons (e.g. law enforcement authorities) announced, suspected or believed the claimant to be guilty,
supports the proposition that it is not possible for the defendants to rely upon the statements of Senior Member Cremean in support of its defence under s 26 of the Act;
(d) in relation to that part of the reasons relied upon to support the imputation that Senior Member Cremean did not accept the plaintiff’s evidence as truthful, the plaintiff submitted that the reasons do not go that far; and
(e) the first and second imputations are simply not proper imputations.
As for the third contextual imputation, the plaintiff commenced by submitting as follows:
The particulars at paragraph 5C.5 are embarrassing and likely to prejudice the plaintiff. Re-stating section 62A of the Administrative Appeals Act 1985 (Cth)[7] does not establish the truth of the Third Contextual Imputation. In any event, the Third Contextual Imputation is not that the plaintiff knowingly gave false or misleading evidence.
[7]This section provides that it is an offence to knowingly give false or misleading evidence before the AAT.
The plaintiff’s written submissions (as elaborated upon by the oral submissions) go on to criticise the particulars of the alleged misleading evidence said to have been given before Senior Member Cremean under certain categories to support the truth of the third contextual imputation, being:
(a) misleading evidence about overseas travel;
(b) misleading evidence about the plaintiff’s ability to afford overseas travel;
(c) misleading evidence about the plaintiff’s physical capacity to undertake overseas travel; and
(d) misleading evidence about the plaintiff’s reliance upon public transport and his holding of a driver’s licence.
In relation to (a) above, the plaintiff submitted that, properly analysing the issues in the hearing before Senior Member Cremean, the material which was clearly before Senior Member Cremean, and the transcript of the evidence given by the plaintiff at the hearing before him, the particulars provided do not support the allegation that the plaintiff gave misleading evidence about his overseas travel. It was apparent from the transcript that Senior Member Cremean knew all about the plaintiff’s overseas trips. The particulars provided are also confusing, and in some cases, tendentious, in particular the reference to ‘popular tourist destinations’ such as Bali and Phuket.
In relation to (b) above, the plaintiff submits that the particulars provided are ‘confusing and embarrassing, likely to delay the proceedings and are prejudicial to the plaintiff.’ Further, the defendants do not assert that the plaintiff did not pay for his overseas travel from his DSP, and the particulars provided to support the truth of the third contextual imputation in this regard are vague and imprecise, and constitute ‘mere guesswork’. The plaintiff submitted that a schedule to the proposed pleading, being a table seeking to reconcile information from the financial records discovered by the plaintiff and documents concerning travel expenses, supports the plaintiff’s contention that he was able to fund his overseas travel from his DSP, rather than the defendants’ assertion that his evidence to the AAT in that regard was misleading.
The plaintiff relied upon the following statement by Eady J in Hunt[8] to support the submission that the particulars provided under this heading were vague, and did not meet the burden imposed upon a defendant pleading a defence of justification:[9]
Mr Tomlinson also referred to the guidance given by the Court of Appeal in McDonald’s Corp v Steel [1995] 3 All ER 615. In order to plead a defence of justification, a defendant needs to believe that the words complained of are true in the relevant defamatory meaning or meanings, must intend to support that defence at trial, and have reasonable evidence to support the plea or reasonable grounds to suppose that sufficient evidence will be available by the time of trial. It would seem to follow that, if a defendant has no evidence at the time of pleading the defence, and there is no solid basis for assuming that evidence will emerge by way of disclosure of documents or the supply of further information pursuant to a request, the court should be astute to prevent a weak plea going forward and thus wasting everyone’s time and money. There must be something going beyond bare Micawberism.
More generally, this is a libel action in which the words are obviously defamatory, and the central issues relate to defences in respect of which the burden lies on the Defendant. In such cases, the court may well direct in due course that the Defendant should open and prove its case first. If no admissible evidence is available to support any of the pleaded allegations, there is likely to be a corresponding submissions of no case at the close of the Defendant’s case. Even if no such direction is given, and the Claimant goes first, the Defendant would be in no better position. That is because it is not a legitimate tactic to proceed to court on vague allegations of wrongdoing in the hope that cross‑examination will elicit some bonus admission. (That principle, again, would appear compatible with Article 6.) It is necessary to remember these practicalities when assessing whether any pleaded allegation should be allowed to stand.
[8][2012] EWHC 110 QB.
[9]Ibid, [28]-[29].
In relation to (c) above, the plaintiff submitted that the particulars do not identify the relevant part of the plaintiff’s evidence that is said to be misleading, and further:
That the plaintiff had undertaken long-haul travel, despite medical evidence about his physical impairments, is not capable without more of proving the truth of the Third Contextual Imputation.
In relation to (d) above, once again, the plaintiff submitted that the particulars provided by the defendants do not identify the evidence given by the plaintiff to Senior Member Cremean which was said to be misleading. The plaintiff submitted:
5C.19 identifies a hearsay statement that purports to record something that the plaintiff may have said in a job capacity assessment interview. It is incapable of justifying an imputation about sworn evidence given to the AAT.
The defendants’ response to the plaintiff’s attacks on the proposed pleading in relation to the first, second and third imputations was to repeat the submissions that the Court should exercise its discretion, insofar as the exercise of such discretion would take away tenable defences from a jury, with great caution. Further, the question of whether the sting of the contextual imputations, if true, outweighs the impact of the plaintiff’s pleaded imputation upon the plaintiff’s reputation, is quintessentially a matter for the jury at trial.
Notwithstanding the above, the defendants’ submissions in reply addressed the specific criticisms levelled by the plaintiff against the proposed amendments, as follows:
(a) in relation to the first and second contextual imputations the factual matters set out in 5C.1 and 5C.2 provide relevant background, and do not raise any false issues. There is no dispute as to their accuracy;
(b) the defendants are entitled to rely upon the findings of a statutory tribunal. It is arguable that an imputation that a statutory tribunal made adverse findings against the plaintiff (which is conveyed by the defendants’ article) would cause an ordinary reasonable person to think less of the plaintiff;
(c) there is no substance to the plaintiff’s complaint concerning the proper construction of the reasons;
(d) in relation to the third contextual imputation, the reference to the legislation is provided to demonstrate the seriousness of misleading the AAT;
(e) in relation to the alleged misleading evidence about overseas travel, the defendants rejected the plaintiff’s contention that the particulars were confusing. The particulars provided show the plaintiff the case he will have to meet at trial, being that his evidence that he was not interested in tourism related travel, and that he engaged in travel unrelated to his primary justification for travelling overseas, was misleading;
(f) in relation to the alleged misleading evidence concerning the plaintiff’s ability to afford overseas travel, the particulars set out what evidence the plaintiff asked Senior Member Cremean to accept, the Australian Bureau of Statistics data which establishes that the plaintiff was receiving what is considered to be a low income, and the facts, matters and circumstances from which the jury will be asked to infer that the plaintiff has recurrent expenses that made it impossible for him to fund his overseas travel solely from his DSP. Further, the defendants have been hampered in their ability to provide fulsome particulars in relation to this aspect of their defence because of the plaintiff’s refusal to provide proper discovery and answers to interrogatories;
(g) in relation to the alleged misleading evidence concerning the plaintiff’s physical capacity, the defendants submitted that the plaintiff’s submissions sought to confine the defendants’ contextual imputation to the sworn evidence given by the plaintiff. The defendants rely upon not only the plaintiff’s sworn evidence, but also the documents before Senior Member Cremean. The defendants say they are entitled to rely upon inconsistencies in all of the evidence before the Senior Member to identify the inconsistencies from which a jury would be able to find that the third contextual imputation is substantially true;
(h) further in that regard, the defendants submitted as follows:
the fact that Sesalim was able to indulge in extensive and repeated overseas travel provides a proper basis for concluding the evidence advanced on his behalf about his medical conditions was in fact misleading.
(i) made no submissions in relation to the plaintiff’s complaints concerning the alleged misleading evidence concerning the plaintiff’s reliance upon public transport and his holding of a driver’s licence; and
(j) in relation to the fourth imputation, the defendants accepted, in response to the plaintiff’s submissions concerning changes to the portability of the DSP between 2014 and 2015, that there would need to be a repleading. It was noted that the New South Wales Court of Appeal has held that the word ‘rort’ is an ordinary English word, the meaning of which falls to the jury having regard to the context in which it is used.[10]
[10]Gibson v Nationwide News Pty Limited [2007] NSWCA 284.
Counsel for the defendants submitted that, notwithstanding the concession made, it was still open for the defendants to plead as a defence that the plaintiff was rorting the system by travelling overseas while receiving the DSP, as behaviour which is widely regarded as ‘rorting’ may be within the law or the rules.
Finally, the defendants submitted that in this application, particularly with respect to the third contextual imputation, the plaintiff has attempted to encourage me to do what is not permitted by the authorities: that is, to meticulously parse the particulars in order to evaluate the merits of the defendants’ defence of contextual truth.
I shall grant leave to the defendants to amend their defence in relation to the first and second contextual imputations. The imputations are capable of being conveyed by the defendants’ article. The imputations pleaded here are that there have been certain findings made by Senior Member Cremean concerning the credibility of the plaintiff, not that the plaintiff was in fact not a credible witness. Having considered the terms of s 91 of the Evidence Act 2008 (Vic), I agree that the question of whether the reasons would be admissible at trial is not clear cut. The question as to whether the statement made by Senior Member Cremean in paragraph 20 of the reasons supports the second contextual imputation ought be a matter for the jury.
As for the inclusion of the ‘Background Matters’ particulars in paragraph 5C.1, I believe that such background matters are probably more conveniently contained in a statement of agreed facts, but would not refuse leave on what is really an issue of presentation. However, regardless of how they are ultimately presented at trial, it seems to me that in order for them not to be misleading and/or prejudicial to the plaintiff, some reference needs to be made to the charges in the DSP portability requirements between 2014 and 2015, and there may be other minor factual errors which need to be addressed.
As for the third contextual imputation, first, I agree that the reference in 5C.5 to there being penalties for knowingly giving false or misleading evidence to the AAT is unnecessary and prejudicial.
As for 5C.6, while this was not the subject of submissions under this heading, I have some concerns as to how it is said that the plaintiff ‘provided a misleading picture to the AAT about himself and activities’ by way of the ‘T documents’ provided to the AAT. The difficulty I have with that pleading is that the evidence is not clear as to the provenance of the documents provided to the AAT. Indeed, it appears from the reasons provided after an earlier AAT hearing that the documents before the member in that hearing (and subsequently, Senior Member Cremean) were provided to the AAT by Centrelink, not the plaintiff. Further, two of the documents which were clearly of significance at the hearing before Senior Member Cremean (the Job Capacity Assessment Report and the Health Professional Advisory Unit report) were commissioned by Centrelink. This is not to say that the defendants would not be able to rely upon documents before the AAT, regardless of their provenance, to support a contention that the plaintiff had given misleading evidence before Senior Member Cremean. However, it seems to me that the defendants cannot say that the plaintiff ‘presented’ the ‘T documents’ before the AAT as his own evidence.
This raises questions as to whether 5C.6.3 should be permitted to proceed in its current form. I agree with senior counsel for the plaintiff that, on a similar basis, 5C.19 and 5C.20 should not be permitted to proceed, as the portions of the documents relied upon by the defendants to support the truth of this aspect of the third imputation were not the subject of any sworn evidence given by the plaintiff before Senior Member Cremean.
That leaves to be considered the particulars under the headings:
(a) misleading evidence about overseas travel;
(b) misleading evidence about the plaintiff’s ability to afford overseas travel; and
(c) misleading evidence concerning the plaintiff’s physical capacity to undertake overseas travel.
In relation to (a) above, senior counsel for the plaintiff had a number of persuasive arguments in support of her contention that, when the transcript of the evidence before Senior Member Cremean, along with the documents before Senior Member Cremean is properly analysed, it could not be said that the plaintiff gave misleading evidence before Senior Member Cremean regarding the extent and purpose of the plaintiff’s overseas travel. However, I do not consider that the allegation is so untenable, or foredoomed to fail, such that the proposed amendment ought not be allowed. Those arguments can be advanced again before the jury, and I ought not descend to evaluating the merits of this aspect of the defendants’ defence in any detail.
As for (b) above, subject to some observations below, I also consider that the proposed pleading is tenable. While I accept that a plaintiff is not required to justify his or her whole life in prosecuting a proceeding for defamation, this aspect of his life is sufficiently connected with the issues in this proceeding such that I would not preclude the defendants from making and pursuing allegations of this nature. However, in my view, the proposed pleading in relation to this matter creates an aura of suspicion and innuendo concerning the source of the funds used by the plaintiff to fund his overseas travel, without setting out in reasonably precise terms how the defendants propose to put their case at trial. Is it contended by the defendants that the plaintiff must have had alternative sources of funding for his overseas travel? If so, is it contended that the plaintiff received money from undisclosed employment, or was supported by a partner? If so, is it suggested that he gave false information to Centrelink in support of his application for a DSP? I appreciate that the defendants assert that they have been hampered by the plaintiff’s failure to make discovery of certain documents, but at some stage the defendants have to nail their colours to the mast in relation to this issue. An allegation of this nature must be clear, reasonably precise, and have a proper basis.
In relation to (c) above, if it had not been for the submissions of counsel for the defendants to the effect that the defendants submitted that the plaintiff gave misleading evidence about the gravity of his physical impairments, rather than his ability to undertake overseas travel, I would not have permitted the amendment to proceed. After all, there is no dispute as to the fact that the plaintiff did undertake extensive overseas travel. Whether long haul travel caused him physical discomfort is neither here nor there. However, if the defendants wish to contend that the plaintiff gave misleading evidence before Senior Member Cremean concerning the severity of his physical condition, they should say so directly. Such a contention is not immediately apparent from the current form of the proposed pleading.
In the circumstances, given what transpired during the course of the hearing concerning the pleading of the fourth contextual imputation, the fact that the question of whether, in its final form, the defendants’ contextual imputations can ‘swamp’ the plaintiff’s pleaded imputation remains at large, and my observations concerning the proposed pleading with respect to the third contextual imputation, I propose to make the following orders:
(a) I will adjourn the further hearing of the defendants’ summons and the plaintiff’s summons to a date in the week commencing 12 June 2018;
(b) I will order that by 4.00pm on 6 June 2018 the defendants file and serve a further proposed amended defence consistent with the terms of this ruling, and, for the avoidance of doubt, consistent with the concession made during the course of the hearing on 18 May 2018;
(c) I will order that the parties’ costs be reserved.
I appreciate that this ruling and the proposed orders leave at large the defendants’ application for further discovery and further and better answers to interrogatories, and I would encourage the parties to attempt to reach agreement on those matters. I also appreciate that, given that the proposed pleading is not in its final form, the question of whether the defendants’ contextual imputations are capable of swamping the plaintiff’s pleaded imputations remains undetermined. However, given the caution urged by the authorities[11] upon taking away defences from the jury, my preliminary view would be that for such a submission to succeed it would have to be established that the contextual defences pleaded by the defendants are patently incapable of swamping the plaintiff’s pleaded imputation.
[11]See Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223, [24]-[27], referring to John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 521.
---
0
7
0