Australian Broadcasting Corporation & Ors v Chau

[2019] HCATrans 245

[2019] HCATrans 245

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S263 of 2019

B e t w e e n -

AUSTRALIAN BROADCASTING CORPORATION

First Applicant

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED ACN 003 357 720

Second Applicant

NICK McKENZIE

Third Applicant

and

CHAK WING CHAU

Respondent

Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 13 DECEMBER 2019, AT 9.34 AM

Copyright in the High Court of Australia

MR M.J. COLLINS, QC:   May it please the Court, I appear with my learned friend, MR M.J. LEWIS, for the applicants.  (instructed by ABC Legal Services and Minter Ellison Lawyers)

MR B.R. McCLINTOCK, SC:   May it please the Court, I appear with my learned friend, MR M.F. RICHARDSON, for the respondent.  (instructed by Mark O’Brien Legal)

GAGELER J:   Yes, Mr Collins.

MR COLLINS:   Your Honours, this application concerns a question of general importance in defamation actions.  The question is the extent to which a defendant is entitled to plead and seek to justify substantial truth of an imputation that has not been pleaded by the plaintiff but which has two characteristics about it ‑ that it is capable of being carried by the impugned publication and, secondly, it has a common sting with an imputation pleaded by the plaintiff.

GAGELER J:   That is a term of art.  Is that a Polly Peck term of art?

MR COLLINS:   It is a Polly Peck term of art and in substance, to cut to the chase, what we seek to do is to challenge a line of authorities that traces back to an obiter statement in a judgment of Chief Justice Brennan and Justice McHugh in 1998.

GORDON J:   In Chakravarti.

MR COLLINS:   In Chakravarti.  That statement of obiter has been criticised in the academic literature.  It has not been followed in any other common law country.  It has been expressly rejected in Ireland.  It has not been followed uniformly in each of the Australian States and Territories despite the fact that we now have a uniform system of defamation laws and, as this case illustrates, the test has been applied inconsistently by intermediate appellate courts to reach diametrically opposite results on materially identical facts.

GAGELER J:   That is the Western Australian case and this case, but are there other inconsistencies?

MR COLLINS:   Yes, the original case, Hore‑Lacy v David Syme, which was the first case after Chakravarti, is not quite identical but it is in the same dimension.  In Hore‑Lacy’s Case the plaintiff had relied on imputations of guilt that the plaintiff had engaged in misconduct.  The defendant sought to rely on imputations of mere suspicion that the plaintiff had engaged in misconduct.

The Full Court in the Court of Appeal in Hore‑Lacy’s Case held that the defendant could not set up in answer to a high‑level imputation an imputation of suspicion.  In West Australia Newspapers Ltd v Elliott the comparison was between an imputation of guilt - the plaintiff engaged in misconduct - and an imputation that there were reasonable grounds to believe that the plaintiff had engaged in misconduct.  That is this case.

GAGELER J:   So will you be saying Hore‑Lacy was wrongly decided?

MR COLLINS:   Yes.  What we say, we say the obiter in Chakravarti ought not be followed, but the obiter in Chakravarti has led to Australian defamation law being plunged into a state of muddle now for 20 years.

GORDON J:   Is that right?

MR COLLINS:   Yes.

GORDON J:   Explain this to me.  At the moment, the plaintiff has pleaded its case in a way where all chips are on black.

MR COLLINS:   Yes.

GORDON J:   They either win or they lose.  On what view, either as to proof or to damage, does the pleading of a – as you would call it – common sting but lower order allegation assist you?

MR COLLINS:   Because the cause of action for defamation in the common law jurisdictions, and now since the advent of the uniform defamation laws, the cause of action is the publication of defamatory matter, not the publication of an imputation.

GORDON J:   It does not affect damage.

MR COLLINS:   Well, it can, with respect, your Honour, because if one is entitled to set up and seek to prove the truth of a second level imputation, reasonable grounds to believe that the plaintiff has engaged in misconduct, and the defendant succeeds in that, it goes to a mitigation of damages.  One can have a mixed outcome where, take, for example, this case, there are seven imputations pleaded by the plaintiff.  Some of them might be found to be guilt imputations.  Some of them might be found to be reasonable grounds imputations.  Because the plaintiff has put all of his chips on black, the defendant is precluded from setting up any evidence in answer to any of the imputations, even fairly.  Each of the imputations the defendant seeks to set up is capable of being conveyed by the publication.

GAGELER J:   What do you mean by “mitigation of damages”?  You are not using that in a technical sense, are you?

MR COLLINS:   Yes, we are.  We are saying that, yes – or a partial justification is another way of putting it – that if a defendant proves that part of the defendant’s publication is true and fails in proving that other parts of it are true, one is entitled to rely on the true parts in mitigation of damages.

In the English authorities – the authorities which have been applied since Polly Peck – without retreat now for more than 30 years – they are replete with statements of principle to the effect that a defence of justification engages with the meanings conveyed by the publication, not with the imputations pleaded by the plaintiff.  This is where Australian law has departed because of that statement of obiter in Chakravarti’s Case.

We say, with respect, that that statement of obiter is a slightly quaint approach towards the sanctity of pleadings in respect of a cause of action which has some quite unique features about it.  It is about the meaning of words which are inherently ambiguous and what has happened because of the focus on imputations – and there is academic literature bearing this out – is it is now very much in the interests of both parties to engage in tactical interlocutory game playing, in the plaintiffs’ case, to plead an imputation which is as difficult as possible for the defendant to justify so long as it is capable of being conveyed by the publication; on the defendant’s side, to seek to knock out imputations pleaded by the plaintiff to force the plaintiff to plead an imputation closer to the natural and ordinary meaning.

GORDON J:   So you wish to add to the complexity of it?

MR COLLINS:   No, we wish to do away with it.  With respect, we wish to do the exact opposite.  We wish to make it much simpler and to say – as occurs in England – to say without retreat for more than 30 years now that the focus of a defence of justification should be on the meanings conveyed by the publication, not the way in which those meanings have been pleaded by an ingenious plaintiff’s counsel.

GAGELER J:   So do you say the Australian approach is a carry‑over of an earlier phase of our defamation rule?

MR COLLINS:   Yes, we do.  So, prior to 2005, the cause of action for defamation in New South Wales, Queensland and Tasmania was by statutory prescription.  The publication of an imputation in the common law States – which was Victoria, South Australia, Western Australia and the Territories – the cause of action was always the publication of defamatory matter.  Notoriously, the position in New South Wales, in particular, led to interlocutory disputation about the excessive refinement of imputations.

With the advent of the uniform defamation laws in 2005 by section 8, the common law position prevailed, but that line of authorities, which owes its origins to Chakravarti in the pre‑uniform defamation age, continues to be applied, albeit inconsistently between different States.  So this is why we say that the law is in a muddle. 

Despite the fact that we have uniform defamation laws, we have a different test applying for New South Wales, Queensland and Tasmania from the test which applies elsewhere, and even in respect of the test that applies in the old common law jurisdictions we have inconsistent outcomes on the same facts, as this matter illustrates.  Now, this point has been before this Court on special leave applications ‑ ‑ ‑

GORDON J:   The last time it was suggested it was premature.  Do you want to say something about that argument, or that contention?

MR COLLINS:   I do, yes.  In three previous applications - none of those was a suitable vehicle, this one was.  In two of the previous applications, and that was West Australian Newspapers v Setka, the appeals were sought to be brought by plaintiffs, so they were appeals from a refusal of an intermediate appellate court to strike out a defence, so the consequence of the fact that special leave was not granted was that the trials could proceed with the impugned defences intact.

In this case - it was an application by the defendant - we have lost our defence unless the matter is - if we are right and there is an error, unless it is corrected at this point the matter will go to trial without the defendant’s impugned defences and the defence will be precluded from adducing evidence in support of the impugned defences, with the consequence that if the plaintiff wins and we are right and the decision below is wrong, the matter would have to go to a retrial because not all of the evidence would be before the Full Court.

GORDON J:   Can I ask, is that right?  In answering the contention or the pleading of guilt which is, in a sense, what is put here, the evidence that you would adduce to meet that would be evidence that would either be sufficient to answer that, that is to meet it completely or meet it in part.  It would have to be adduced anyway, would it not?

MR COLLINS:   No, because the particulars of truth have been struck out in respect of the guilt imputations.  Just because one cannot establish that a person has engaged in a crime does not mean they cannot establish that they cannot establish that there were reasonable grounds to believe that the person had engaged in the crime.  So, we lost our particulars of truth in respect of the plaintiffs’ imputations and we have lost our defence.  We

seek to reinstate our reasonable grounds defence which would then lead to the revival of the particulars in support of that defence or an application for amended particulars in support of that.

GORDON J:   You would have to amend, would you not?

MR COLLINS:   We would want to amend because there has been further activity in the underlying proceeding since the striking out of the defences and there are additional factors which would want to be relied on but ‑ ‑ ‑

GORDON J:   Do we need those?

MR COLLINS:   No, there has been no adjudication below in respect of whether the particulars that were struck out were capable of establishing the substantial truth of the defendant’s imputations - that is paragraph 133 of the Full Court decision.  As I said, there were three previous applications which had failed, two of them failed because they were plaintiff’s appeals and it was held they were not suitable vehicles.  The third one failed, that was Robinson v Laws, because the defence there had been struck out independently on other grounds.  So, the Court had found that in addition to the point that we seek to agitate the defence was bad because some of the meanings pleaded by the defendants were said not to be tenable and there was a complaint of prolixity which was a quirk of the Queensland rules. 

GAGELER J:   You would say that this point is always going to be raised most starkly at the pleading stage, I suppose.

MR COLLINS:   Yes, that is right, with respect, your Honour.  The other feature is it is only likely to arise in that way because in all of the other three cases none of them, in fact, proceeded to a trial.  We looked into this during the course of the week.  One of them was discontinued and two of them have sat dormant now for years and so the practical reality is this point tends to stop the action in its tracks.

GAGELER J:   All right.

MR COLLINS:   May it please the Court.

GAGELER J:   Thank you.  Mr McClintock, are we still concerned with an old New South Wales practice?

MR McCLINTOCK:   No, we are not, but they are similar since the 2005 uniform legislation.  The decisions like Chakravarti and Hore‑Lacy are now applicable, on my learned friend’s case, to the position as it pertains now because the matter complained of is, as he says, the cause of action rather than the individual imputation. 

What difference that actually makes is a little elusive because as I can recall Justice Gummow saying once defamatory matter does not have an existence independent of the defamatory imputation that it conveys because there must be a defamatory meaning in the matter for it to be defamatory. 

Could I say this, your Honours?  There are six reasons why this special leave application should be refused.  The first is that what my learned friend now seeks to rely on to obtain special leave was not taken below.  There was no submission that Chief Justice Brennan and Justice McHugh in Chakravarti were wrong.  There was no submission that Polly Peck was right and should be followed.  There was no debate about those matters whatever below.  In my submission, it is inappropriate and unfair for a litigant to be allowed to raise those matters on a special leave application.  In relation to that ‑ ‑ ‑ 

GAGELER J:   Do you say you have difficulty meeting a case put in those terms?

MR McCLINTOCK:   It is an argument – it is an argument as a matter of law so in that sense I weigh it.  But it is a little unfair on my client for reasons I will come back to.  The publications here on which he sues occurred in June 2017.  He commenced the proceedings in July 2017.  A hearing date was fixed by Justice Rares in April this year which he lost because of the appeal to the Full Court. 

It has been fixed again for hearing in front of Justice Rares in April 2020, April next year.  If he loses that date, as he probably will if there is not a grant of special leave, it will mean that he will not achieve his vindication until at least probably 2021, that is more than four years after the publications in question, which have been doing him real damage.

But could I go back to my first point, and add the additional point that it is absolutely clear, in my submission, on any analysis, that the approach of Chief Justice Brennan and Justice McHugh in Chakravarti was right.  I might also say that I do remember, because I was for the respondent in that matter, Justice Gummow expressing agreement with their approach in strong terms in argument but which, of course, was not carried forward to the judgment.

But, your Honours, the reason why they are right is this.  If one thinks about what would happen if a matter such as this was tried before a jury, imagine that the imputations go to the jury, the two sets:  actual guilt and reasonable grounds to believe – to suspect.  Just assume that the jury finds that the first lot are not conveyed.  Case is over, the plaintiff loses.  Just assume, though, on the other hand, that the jury finds that they are both conveyed.  What then is the instruction that the judge gives to the jury as to the effect of the second ones?

That is something that has never been teased out in these authorities and there is no apparent answer.  The judge cannot say to the jury, “Members of the jury” – well, what is the point?  It is not a defence, it is a pleading rule intended under Hore‑Lacy – which I might also say my learned friends never submitted below was wrong – intended to give fair notice to a plaintiff of what the contention of the defendant is about the meanings, nothing more than that.

GAGELER J:   I might be wrong, but it seems to be put in terms of the measure of damages as being the difference, in effect, of the two imputations on the reputation of the plaintiff.

MR McCLINTOCK:  In many ways, your Honour, as in so much in this, the answer to that question comes back to the question, is that is there a difference between an imputation of guilt and an imputation of suspicion?  And the reason why is, if you said that someone, as in this case – if it accused, as they did, my client of being a spy – my client, an Australian citizen, of being a spy for a foreign nation, how does it ameliorate, reduce or lessen the damage to his reputation, or the hurt to his feelings, that there may have been reasonable grounds for thinking that?

When one thinks of it, they are two completely different things.  Police charge people on the basis of reasonable grounds, put slightly differently I know.  Judges and juries convict on the basis of actual guilt.  That is the distinction here.  That was one of my subsequent points.

GAGELER J:   Mr McClintock, how does Polly Peck deal with that precise scenario?  What is the English answer here?

MR McCLINTOCK:   The English, again, have never actually thought it through, in what actually happens.  The reason why it was necessary in England, your Honour, goes back to – I say this with respect, with great respect, a mistake by Lord Diplock in a case, the name has just slipped my mind – Slim v Daily Telegraph ‑ where what happened was Lord Diplock and I think Lord Denning, who was Master of the Rolls at the time, it was in the Court of Appeal, said that a jury was entitled to find any defamatory imputation in the matter complained of, regardless of whether it was pleaded by the plaintiff.  Lord Salmon dissented and said that was wrong and the parties were stuck with…..should be fixed to their pleadings.  I find it very hard to see why defamation law should be different from every other area of the law ‑ ‑ ‑

GORDON J:   Well, that is the principle which underpins what Chief Justice Brennan and Justice McHugh said, in a sense.

MR McCLINTOCK:   Exactly, your Honour.

GORDON J:   They adopt the Salmon approach.

MR McCLINTOCK:   Exactly, and it is the correct approach.  But the English needed some - because it was impossible for a defendant, or for that matter a plaintiff, to know what the jury had done, if they were entitled to roam far and wide in the bounds of the matter complained of and come up with anything, it was necessary to come to some mechanism.  But that has never been the case in Australia, not in Victoria, not in New South Wales under the 1974 Act and certainly not under the 2005 Act.  Parties are held to their pleadings.

I accept that if we go to the jury on the imputations of guilt that we have pleaded and they reject - sorry, if we go to the trial judge, it being the Federal Court, and the trial judge thinks we are wrong, we lose.  I cannot turn around and say, well, there is a secondary basis, reasonable grounds.  We are stuck with the pleadings.  That is how these cases run.

It is crucially important in defamation cases because they are tried by juries.  It is a recipe for disaster, and I can witness it - there is a case called Singleton v Ffrench (1986) 5 NSWLR, where the parties just abandon the pleadings, and it was chaos at the trial, and the Court of Appeal ordered the new trial, Justice McHugh gave the majority judgment.  That is what would happen, if this approach was allowed.  But, in my submission, Chief Justice Brennan and Justice McHugh are clearly and uncontroversially correct in what they said, with no disagreement from Justices Gaudron and Gummow in that case, your Honour. 

The second point, the second reason why special leave would be refused is, contrary to my learned friend’s submissions, the appeal, if successful, would have no utility.  The reason why is, as he said correctly, the particulars of truth have all been struck out.  They were not struck out for reasons having anything to do with the form of his alternative imputations.  They were struck out for reasons dealing with the form of the particulars.

I will give your Honours the references, I will not take your Honours to them, because the point is good:  paragraph 154 of the Full Court judgment, application book 137, struck out because they were ambiguous; paragraph 160, application book 139, inadequate particularisation under Federal Court rule 16.43(2); paragraph 162, application book 157, no allegations of material fact.  Those are all things that would apply.

Then we have, for example, the material about what Mr Hastie said in Parliament.  How what a politician says in the House of Representatives can ever be evidence in a defamation case is a little hard to see, but those particulars were struck out for reasons having nothing to do with the form of those imputations, and they remain struck out. 

I might also say that in October, Justice Rares declined a further attempt by the applicant to put on further particulars of justification of truth.  His Honour rejected that application for similar reasons and also for that matter, on an Aon basis as well.

GAGELER J:   I am sorry, are these the particulars of the truth of the variant imputations you are saying have been struck out?

MR McCLINTOCK:   The particulars – all imputations have been struck out.  My learned friend put one set on for – put one set of imputations on supporting the truth of our imputations and their variant imputations.  They were struck out – and I accept that, in an exercise of complete frankness, your Honours, at paragraph 132 on page 130 of the application book, that their Honours said that they were restricting submissions in relation to the particulars on the basis that the particulars should be capable of justifying the applicants’ imputations alone but the reasons they actually gave were of general application. 

But, in any event, the fact is that even if there was an appeal to this Court, the appeal was allowed, the variant imputations were reinstated, there would then have to be another application to amend to put some particulars back in.

GORDON J:   That is what I put to Mr Collins.  It seems to me that there would need to be a further application for amendment in order – even if success was obtained – to amend - take advantage of the appeal.  Is that right?

MR McCLINTOCK:   That is correct, your Honour.  With great respect, your Honour has put it precisely.  It reveals the lack of utility of this because it depends upon “something may happen later”.  As I said to your Honours, also, the particulars that have been struck out went for reasons having nothing to do with the variant imputations.  As I said, they were ambiguous.  Some of them were – your Honours can see from Justice Rares’ judgment – and, indeed, from the judgment of the Full Court – how – I am looking for the right adjective – “outlandish” will do, your Honours; I will restrain myself - how way out these particulars actually were. 

As I said, your Honours, to put up against us something said under absolute privilege in the House of Representatives as if it were a particular of something my client had done is a little unusual, shall I say.  But going further, your Honour, my third point is this – I should also point out…..the second point – there was no appeal brought from the striking out of the particulars of justification on no application for special leave.  So, that decision stands unchallenged.

Third, your Honour – third reason – the Full Court, in my submission, was unarguably correct in its determination of the issues actually raised before it.  That came down to the question of whether an imputation of reasonable grounds to suspect was a nuance of – to use the jargon – “or not substantially different from the imputation of guilt”. 

There is a string of authorities in Victoria starting with Justice Bongiorno saying that they are different and they are clearly so.  It does violence to language, as I said earlier – I did not quite say that – but it does violence to language to say that because someone suspects the plaintiff or the applicant of guilt that they are guilty, which is what it comes down to.  It is the difference between the standard that a judge or jury applies in a criminal trial and the standard that an arresting officer applies in arresting and bringing a charge.  They are not the same. 

The authorities which the Full Court sets out, with Harrison v Mirror Newspapers in this Court, are clearly to that effect.  Cases like West Australian Newspapers v Elliott are outliers, and the Full Court was, in my submission, completely correct in saying that they were plainly wrong.  They are plainly wrong.

The line behind this, again though, is another fallacy, which is this.  If their variant imputation is not substantially different it is something that you can raise by way of a direct plea of truth to the imputations.  That is because both at common law and under section 25 of the Act the defence actually is a matter of substantial truth.

Lord Shaw said in Sutherland v Stopes in the 1920s that if I say the plaintiff stole a bridle from the stable on a Friday and it was valued at £90, and it turns out that he stole a saddle from the tack room on a Thursday and it was valued at £95 ‑ ‑ ‑

GAGELER J:   That is a rather dated example, I think.

MR McCLINTOCK:   Well, it does have a certain quaintness about it, your Honour.

GAGELER J:   Yes.

MR McCLINTOCK:   But then there are very many aspects of defamation law that could be described as quaint, your Honour.  But I have always rather liked it, it is a ‑ ‑ ‑

GAGELER J:   I am sorry, I cut you off.

MR McCLINTOCK:   No, your Honour.  It is a picture of bygone days.

GAGELER J:   You should finish the story.

MR McCLINTOCK:   It is like a BBC story involving dukes and duchesses and so on.  Your Honours, the point about that is if it did not differ in substance there is plenty of – there is scope under the existing regime for a defendant to rely upon it.  They can rely upon any matter that proves the substantial truth of it.  But that really reveals the fallacy in the argument here that – because it shows you can never rely upon an imputation of reasonable grounds to prove an imputation of actual guilt.

The fourth point, your Honour, which I have touched upon already, is that there is a very substantial measure of unfairness in this to my client.  He is being held out – I am not allocating blame in that sense – or he will be held out if special leave is granted, probably to 2021.

Fifth, what my learned friend says in his submissions about plaintiffs having tactical reasons for choosing imputations – and that really means in this case, me, because ultimately I settled the imputations, as counsel usually do in these situations – my client wants vindication because he believes he was accused of, for example, being a spy for a foreign power.  That is what he brings the proceedings over.  There is nothing tactical in that at all.  

May I also say that in any case, under our system, being an adversary system, the plaintiff in fact chooses the battleground.  He chooses the causes of action he wishes to bring.  He does not have to bring a case that he thinks is weak.  He does not have to sue over every article.  Just assume there was another article published that, for example, might have had a defence under section 32 of reasons – he does not have to sue over that.

He does not have to choose any particular imputation.  There is nothing tactical about that.  May I say, and this probably is the – well, I will say one thing, one further thing.  The tactical reasons have really been on the side of the defendants in these matters because media defendants have used these defences to delay and hamper and run up costs of plaintiffs in these cases by using these so‑called Polly Peck/Hore‑Lacy defences.

Finally, your Honours, point 6.  If my learned friends wanted to do this, there was a readily open avenue under the law to do so.  Section 26 of the Act enables a defendant to plead an imputation as a contextual imputation arising from the same matter and rely upon that if it has the effect of overcoming the defamatory effect of the plaintiffs’ imputations.

They chose – they have never pleaded it, they would be too late now – they chose not to prove that when on their theory it was readily open for them to do so.  That starkly reveals the tactical choices or who is really making the tactical choices in this litigation, your Honour.

In circumstances where there is another way they could have done it, it reveals that they are now paying the penalty, we would say, for their tactical choices.  In my submission, special leave should be refused.  Thank you, your Honours.

GAGELER J:   Mr Collins.

MR COLLINS:   May it please the Court.  Could I address our learned friend’s points in order?  He started by saying that we had not taken the point below.  With respect, that is not correct.  The entirety of the debate below was about whether the defendant could seek to justify an imputation that differed from the plaintiffs’ imputation. 

GAGELER J:   Within the Hore‑Lacy parameters.

MR COLLINS:   That is true and because, as we said, we had pleaded a defence which accorded precisely with the practice endorsed by the Full Court of the Supreme Court of Western Australia.

GAGELER J:   And you now wish to say Hore‑Lacy was wrong.

MR COLLINS:   That is right.

GAGELER J:   You are expanding the battleground.

MR COLLINS:   Exactly, and having got through – assuming we get through the gateway on that it would be entirely artificial for the Court then not…..correctness or otherwise of the starting point of the line of authorities that we seek to challenge.

The second point our friend raised was what was said to be the practical difficulty for juries.  This poses no problem whatsoever in England.  It posed no problem whatsoever in the common law jurisdictions before the uniform defamation legislation.  There is empirical research in respect of this matter by Professor Kenyon of the University of Melbourne who found absolutely no support for the proposition that the concern raised by Chief Justice Brennan and Justice McHugh in Chakravarti posed practical problems. 

All that happens is the jury is asked which imputations do you find conveyed and do you find them to be substantially true or not?  In fact, in England it is even easier than that.  The jury is simply asked do you find for the plaintiff or for the defendant, having had the benefit of counsel’s addresses and the directions from the jury, and if for the plaintiff, what damages do you award?  So the practical difficulties are illusory, in our respectful submission.

On the futility point, our friend is right; the matter is dealt with in paragraph 133 of the Full Court judgment.  It is dealt with in paragraph 110 of the primary judgment.  The particulars have been considered only in respect of their capacity to prove the substantial truth of the plaintiffs’ imputations.

Even if there were a problem with the revival of those particulars in support of the defendant’s imputations, the difficulty these defendants face is that the impugned defence, having been struck out, they cannot bring an application to amend the particulars to bring them into order to meet any technical defects of the kind that our friend has adumbrated.

The fourth matter, our friend said that the decision below was unarguably correct.  With respect, that simply does not grapple with the fact that to get to this decision the Full Court of the Federal Court had to find that West Australian Newspapers was plainly wrong. 

GAGELER J:   They might be plainly right.

MR COLLINS:   They might be, but it rather highlights the problem that we have a position of irreconcilable intermediate appellate judgments in this country.  Can I tell your Honours as well – we pick this up in our written submissions – that there is some recent Irish authority which expressly declines to follow that which the Chief Justice and Justice McHugh had said in Chakravarti. 

What was said in that case was that the concerns raised by their Honours in this Court were based upon a traditional approach towards pleadings that reflected the practices of past times but needed to yield in the interests of the prompt and frugal disposition of litigation.  It was highlighting the very points that we identify.  This has led to equal pleading.  Professor Kenyon finds that.  It has led to interlocutory disputation and additional costs.  It does lead to delays in matters coming on for final disposition.

GAGELER J:   What court is that?  Is that an appellate decision?

MR COLLINS:   It went to the Irish Court of Appeal earlier this year.  The decision is Ganley.  It is in our written submissions, paragraph 6, note 14.  The Court of Appeal decision is [2019] IECA 18.  There the Irish Court of Appeal upheld the first instance decision and said that the position which had been rejected by Chief Justice Brennan and Justice McHugh – that is, the Polly Peck line of authorities – had been followed in England “without retreat”, and the Court of Appeal said it had “survived repeated scrutiny in English courts for more than 30 years” and the Irish Court of Appeal said there was nothing oppressive about its application.

So, it is just not right to say that there is no controversy about the correctness of the decision below.  It has been expressly rejected in Ireland and not followed in any other common law country and criticised in the academic literature.  It also deals with the tactical questions our learned friend raised. 

Could I finally just deal with section 26?  Section 26 was not available to the defendants in this case.  The section 26 defence is a contextual – sorry, I see my light is on – the contextual justification defence depends upon a defendant identifying an imputation which is in addition to the statutory language imputations pleaded by the plaintiff.  It is not available in a case where the defendant seeks to rely on an imputation with a common sting that is not in addition to the plaintiffs’ imputation.  May it please the Court.

GAGELER J:   Having regard to the state of the pleadings and to the manner in which the matter was argued before the Full Court of the Federal Court, we are not persuaded that this is a suitable vehicle for the agitation of the point of general principle which the applicant now seeks to raise.  Special leave to appeal is refused with costs. 

AT 10.09 AM THE MATTER WAS CONCLUDED