Caccavo, Ralph & Anor v Daft & Anor

[2006] TASSC 36

[2006] TASSC 36

CITATION:              Caccavo & Anor v Daft & Anor [2006] TASSC 36

PARTIES:  CACCAVO, Ralph
  RALPH'S TASMANIAN SEAFOOD PTY LTD
  v
  DAFT, Mark
  TAS LIVE ABALONE PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  61/2006
DELIVERED ON:  30 May 2006
DELIVERED AT:  Hobart
HEARING DATE:  17 May 2006
DECISION OF:  Master S J Holt

CATCHWORDS:

Defamation – Action for defamation – Pleading – Tasmania – Defence of justification.
Polly Peck(Holdings) PLC v Trelford [1986] 1 QB 1000 considered.
Defamation Act 2005 (Tas), s25.
Aust Dig Defamation [119]

REPRESENTATION:

Counsel:
             Plaintiffs:  L W Maher
             Defendants:  M E O'Farrell
Solicitors:
             Plaintiffs:  Page Seager
             Defendants:  Ware & Partners

Judgment Number:  [2006] TASSC 36
Number of paragraphs:  20

Serial No 36/2006
File No 61/2006

RALPH CACCAVO and
RALPH'S TASMANIAN SEAFOOD PTY LTD ACN 072 609 879 v
MARK DAFT and TAS LIVE ABALONE PTY LTD ACN 069 500 714

REASONS FOR DECISION  MASTER S J HOLT
  30 MAY 2006

1. The defendants in a defamation action have applied for leave to amend their defences.  The only aspect of the amendment application which is in controversy is the proposed plea of justification.  The publications about which the plaintiffs complain were alleged to have been made on 12 January 2006.  Tasmania adopted the Uniform Defamation Law by the enactment of the Defamation Act 2005 ("the Act"), which by virtue of statutory rule No 139 of 2005 came into effect on 1 January 2006.

1. Relevantly, as to the defence of justification, the Act includes the following:

"s4      Interpretation

'substantially true' means true in substance or not materially different from the truth;

s6 Tort of defamation

(2)This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).

s24Scope of defences under general law and other law not limited

(1)A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.

s25Defence 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.

s26Defence 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."

1. Before turning to the proposed plea in detail there are some matters which have a bearing on pleading justification, which need to be mentioned.  They are as follows:

(i)It has become modern practice for the plaintiff to plead the defamatory meanings intended to be asserted at the trial to have arisen from the impugned publication.    Hadzel v De Waldorf (1970) 16 FLR 174 at 179; S K Holdings Ltd v Throgmorton Publications (1972) 1 WLR 1036 at 1039; Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at 166 – 7. DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21 at 26.

(ii)Where the meaning complained of is the natural and ordinary meaning of the words (the false innuendo) it must be so stated in the plea, and if the true meaning is only apparent to persons having knowledge of facts going outside facts specified in the publication and general knowledge (the true innuendo), this must be pleaded along with the facts and matters going to the special knowledge. Supreme Court Rules 2000, r239(3). In true innuendo cases, unlike false innuendo cases, the plaintiff is strictly bound by the terms in which the imputation has been pleaded. Truth (NZ) Ltd v Holloway (1960) 1 WLR 997 at 1000.

(iii)The plaintiff, in a false innuendo case, at trial may show a meaning which varies a shade from that pleaded, but is nonetheless broadly within the pleaded meaning.  That is to say a meaning which in substance does not differ from the pleaded meaning.  Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 185 (per Salmon LJ) and Hadzel v De Waldorf (supra) at 182.  It may be that the plaintiff can go further and rely on meanings different to those pleaded provided that they are not more injurious, but this proposition is yet to be clearly established in Australia.  In Slim v Daily Telegraph Ltd (supra) Diplock LJ said at 175:

"But the averment does not of itself prevent the plaintiff from contending at the trial that even if the words do not bear the defamatory meaning alleged in the statement of claim to be the natural and ordinary meaning of the words, they nevertheless bear some other meaning less injurious to the plaintiff's reputation but still defamatory of him, nor does it relieve the adjudicator of the duty of determining what is the right natural and ordinary meaning of the words, though nice questions may arise as to whether one meaning is more or less injurious than another."

(iv)Where a publication contains separate and distinct charges of a specific nature, the plaintiff may sue on some only.  But if the charge is a general one the defendant can justify it notwithstanding that the plaintiff has attempted to frame what is in reality a general charge as if it were a specific charge.  " … notwithstanding that the defendants may not be able to prove the particular affair complained of, they will be able to adduce evidence which will justify the sting of the article and the sting of that statement on the footing, I suppose, that it is not more defamatory to have an extra-marital affair with one person rather than another in the circumstances of this case."  Khashoggi v IPC Magazines (1986) 1 WLR 1412 at 1417.

(v)The justification plea does not need to allege the truth of every last meticulous detail of the plaintiffs' drafted imputation, but sufficient must be alleged so that if proved the truth of the sting of the imputation will have been established.  "If I write that the defendant on 6 March took a saddle from my stable and sold it the next day and pocketed the money, all without notice to me and that in my opinion he stole the saddle and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room and that he did not sell it the next day, but a week afterwards, but nevertheless he did without my knowledge or consent sell my saddle so taken and pocketed the proceeds, then the whole sting of the liable may be justifiably affirmed by a jury notwithstanding these errors in detail."  Sutherland v Stopes [1925] AC 47 at 79.

(vi)Where there are separate and distinct meanings alleged by the plaintiff the defendant may justify some, but not all so as to reduce the damages.  Howden v Truth & Sportsman Ltd(No 2) (1938) 38 SR (NSW) 287 at 290 – 1. Plato Films Ltd v Speidel (1961) AC 1090 at 1141 – 2. Prager v Times Newspapers Ltd (1988) 1 WLR 77 at 95. Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at par80.

(vii)A defendant, in a false innuendo case, may plead a meaning on which the plaintiff might within the ambit of the plaintiffs own pleadings obtain a verdict and justify that meaning.  Morrell v International Thomson Publishing Ltd (1989) 3 All ER 733 at 737 – 8 and 740. David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667, Ormiston JA at par22 and Charles JA at pars53 – 54. Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 at par72.

(viii)There is authority for the proposition that, in a false innuendo case in certain circumstances, a defendant can go outside the meaning pleaded by the plaintiff and formulate a different meaning with a view to justifying that different meaning.  Polly Peck (Holdings) PLC v Trelford [1986] 1 QB 1000. Obviously (leaving aside shades and nuances of meaning) the plaintiff could only succeed on a meaning different to that pleaded if the proposition of Diplock LJ in Slim v Daily Telegraph Ltd (supra), that all less injurious meanings are open is a correct statement of the law.  This proposition is yet to be firmly entrenched as part of Australian common law.  If it is not part of Australian common law, then neither is the Polly Peck defence because the plaintiff would lose the case, not because a different meaning had been established and justified, but solely because it would not have been found that the publication contained the plaintiff's pleaded meaning (ie the substance of the plaintiff's meaning taking into account shades and nuances).  It would of course be absolutely pointless for a defendant to prove to be true a meaning on which the plaintiff could not have succeeded anyway.

(ix)There is doubt about the availability of a Polly Peck defence at all as part of the common law in Australia.  In Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, Brennan CJ and McHugh J said at par11:

"This passage highlights what we regard as the fundamental defect in the reasoning in Polly Peck. Cooke J rejected the notion that the defendant can take severable parts of a publication each containing defamatory imputations, link them together, and give the publication a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts. That is, a defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded the shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact when it plainly was not. Yet that is the sort of finding that must result from applying the central proposition of Polly Peck. That proposition is that [1986] QB 1000 at 1032:

'The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting.'"

(x)The position has continued to be the subject of debate.  In Herald & Weekly Times Ltd v Popovic [2003] 9 VR 1, Gillard AJA said at par320:

"It can be seen that the criticism is directed at the common sting rule. As O'Connor, L.J. said, whether or not the defamatory statements are separate and distinct from each other is a question of fact and degree in each case. I would with respect query whether the example given by Brennan, C.J. and McHugh, J. is a classic example of the common sting. In my opinion, it is arguable that the two allegations are separate and distinct, do not contain a common sting and it would not be open to a defendant to plead a common sting if the plaintiff only relied upon one of the defamatory imputations."

(xi)See also Whelan v John Fairfax Pty Ltd (supra) at pars51 and 52, where Levine J said that at least for pleading purposes a Polly Peck defence should not be regarded as never being available unless and until there is such a determination by the High Court or by each of the appropriate appellate courts in each State and Territory.

(xii)There has been a suggestion that the Polly Peck principle is broad enough to create at common law the statutory defence of contextual truth (see the Act, s26 quoted earlier). Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1. This proposition has not, however, received acceptance and was rejected by Mildren J in Hart v Wrenn (1995) 124 FLR 135.

(xiii)In the case of publications being made on or after 1 January 2006, it would appear for pleading purposes that debate about the permissibility or allowable extent of a Polly Peck defence may in practical terms be sterile because of the Act, s26 defence of contextual truth. Under the Polly Peck defence a defendant puts up a meaning different to the meaning complained about by the plaintiff but which the defendant says in the context of the publication is the sting of the part of the publication about which the plaintiff complains, and then as a complete defence justifies that meaning often by reference to charges in the publication about which the plaintiff had not complained.  The statutory defence of contextual truth differs in that the defendant can go to quite separate and distinct defamatory statements in the publication and identify them, prove the substantial truth of them and without traversing the plaintiff's meaning claim as a complete defence that because of the truth of the matters put forward by the defendant the plaintiff was not further harmed by the imputation or imputations the subject of the plaintiff's claim.  It would appear that if the defendant cannot plead a meaning under Polly Peck because the plaintiff has not attempted to avoid the real meaning or real sting or because the plaintiff's case is based on a separate and distinct defamatory statement in the publication or because the defence is not part of Australian common law it can nonetheless be pleaded under the contextual truth provision in the Act. That is, provided it is coupled with the simple assertion that in light of its truth the plaintiff is not further harmed.

1. I now turn to consider the proposed justification plea. It must be put in context. According to the statement of claim the first plaintiff, Ralph Caccavo, is a director and the person having the day-to-day control and management of the second plaintiff, Ralph's Tasmanian Seafood Pty Ltd, a company engaged in the export of Tasmanian abalone. (A company is allowed to sue under the Act, s9(2), if it has less than ten employees or is a not for profit organisation and is not a public body.) The first defendant, Mark Daft, is a director of the second defendant, Tas Live Abalone Pty Ltd, a company also engaged in the export of Tasmanian abalone . The relevant paragraphs of the statement of claim for present purposes are pars6, 8, 9, 10 and 11. They are as follows:

"First Publication of the offending message

6         In Tasmania on or about 12 January 2006, the First defendant acting for himself and on behalf of the Second Defendant and with its authority published or caused to be published of and concerning the First Plaintiff and of and concerning the Second Plaintiff the following e-mail message ('the offending message') by transmitting it from the uniform resource locator address ('url'), [email protected], to Anthony J Harrison, Chairman of the Tasmanian Abalone Council ('the TAC'), at the url, [email protected]:

'Hi Tony

This is the problem with companies trying to push the market to hard.   This e-mail came thought about the market situation with the build up of the Chinese New Year.  It is very bad new.

regards Mark

…Original Message …From: [email protected]
To:[email protected]
Sent:  Wednesday, January 11, 2006 7.2_PM

Subject: abalone situation

Hi Mark

Please be advised that currently we have a lot of pressure for selling our abalone to local buyers here.

For this couple of days Ralph's … sold several consignments of abalone to 4 corporations here with extremely high mortality level thus ruined the market and made the buyers here withdraw and didn't care to buy abalone.

Because of that, demand for Tasmanian Abalone will be very much influenced.

We will do our best to discuss with local buyers for purchasing your brand abalone and try to convince them with good quality.

Thank you for your kind attention.

Best regards

Miranda'

…

Second Publication of the offending message

8         In Tasmania, on or about 12 January 2006, the First Defendant acting for himself and on behalf of the Second Defendant and with its authority published or caused to be published the offending message, or a message in substantially the same terms as the offending message, to Dean Lisson, President of the TAC Abalone Future Committee.

Republication

9         On or about 12 January 2006, Anthony J Harrison published the offending message to:

(a)the Tasmanian Department of Primary Industries, Water and Environment, and

(b)the TAC Processors Subcommittee.

10       Each of the republications alleged in paragraph 9 above was an intended result, or further or alternatively, the natural and probable result of the publication of the offending message by the Defendants to Anthony J Harrison.

Imputations

11       In its ordinary and natural meaning, the offending message meant and was understood to mean that:

(a)A short time before the transmission of the offending message, the First Plaintiff had acted to the detriment of the Tasmanian abalone industry by causing the Second Plaintiff to despatch to purchasers in China shipments of defective or substandard abalone which had been rejected by the purchasers;

(b)By reason of his conduct in causing the Second Plaintiff to despatch to purchasers in China shipments of defective or substandard abalone which had been rejected by the purchasers, the First Plaintiff had ruined the market in China for live Tasmanian abalone;

(c)The First Plaintiff had behaved badly when seeking customers in China by exploiting the accentuated demand for abalone in the Chinese New Year period in that he caused the Second Plaintiff to despatch to purchasers in China shipments of defective or substandard abalone which had been rejected by the purchasers.

(d)By reason of its conduct in despatching to purchasers in China shipments of defective or substandard abalone which had been rejected by the purchasers, the Second Plaintiff had ruined the market in China for live Tasmanian abalone;

(e)The Second Plaintiff had behaved badly in seeking customers in China by exploiting the accentuated demand for abalone in the Chinese New Year period in that it despatched to purchasers in China shipments of defective or substandard abalone which had been rejected by the purchasers."

1. The email does not expressly state that at the time of despatch the abalone was defective or substandard and does not expressly state that consignments were rejected by the purchasers.  Nonetheless these meanings are attributed by the plaintiffs to the words contained in the email and the defendants have not applied to strike out the pleaded imputations on the ground that they are not open for a jury to find. 

1. The impugned plea is effectively the same for both defendants.  I set out below the first defendant's justification plea.

"17 … in so far as the matter complained of carried the meanings pleaded in paragraph 11 of the Statement of Claim, they were substantially true in that:

(a)shortly prior to 11 January 2006 the Second Plaintiff had supplied a market in China namely the Yantian market in Shenzhen ("the Chinese market") with consignments of abalone with extremely high mortality rates;

(b)as a result of the supply of those consignments:

(i)the traders in the Chinese market were not prepared to purchase further consignments of abalone from the Second Plaintiff or other consignments of abalone from Tasmanian suppliers (including the Defendants);  and

(ii)the market for the supply of live abalone from Tasmania was substantially damaged;

(c)the supply of abalone by the Plaintiffs in the Chinese market was to exploit the accentuated demand for abalone in the Chinese New Year;

(d)at all material times the First Plaintiff was responsible for the Second Plaintiff's operations and conduct.

17A     Further, or alternatively, the first defendant says that in their natural and ordinary meaning, the matters complained of in paragraph 6 and 8 of the statement of claim meant and were understood to mean that:

(a)A short time before the transmission of the offending message the first Plaintiff had acted to the detriment of the Tasmanian Abalone Industry by causing the second plaintiff to despatch to purchasers in China shipments of abalone with extremely high mortality rates;

(b)By reason of his conduct in causing the Second Plaintiff to despatch to purchasers in China shipments of abalone with extremely high mortality rates the market for the supply of live abalone from Tasmania was substantially damaged causing buyers to the Chinese market not to buy Tasmanian abalone;

(c)The first Plaintiff had sought to exploit the accentuated demand for abalone in the Chinese New Year period in that he caused the Second Plaintiff to despatch to purchasers in China shipments of abalone with extremely high mortality rates;

(d)By reason of its conduct in despatching to purchasers in China shipments of abalone with extremely high mortality rates the Second Plaintiff had substantially damaged the market causing buyers in the Chinese market not to buy Tasmanian abalone;

(e)The Second Plaintiff had sought to exploit the accentuated demand for abalone in the Chinese New Year period in that it despatched to purchasers in China shipments of abalone with extremely high mortality rates.

17B     The first defendant repeats the matters pleaded in paragraph 17 (a) to (d) inclusive and says that the imputations pleaded in paragraph 17A were substantially true."

1. The plaintiffs' submissions are as follows.  Firstly, the plaintiffs say that the defendants have proceeded as if they can "just step aside from our pleaded meanings in paragraph 11 and try and justify something else".  For example, the plaintiffs say that at the heart of each pleaded imputation is the element of rejection of specific shipments.  The plaintiffs argue that the defendants' proposed plea is defective because the particulars of justification do not include identification of the shipments and rejections to be referred to as the justification.  Secondly, the plaintiffs say that in any event the particulars lack appropriate specificity.  For example, they are not enlightening as to what is an acceptable mortality rate and as to what constitutes the "extremely high" mortality rates referred to.  They are not enlightening as to the significance of the Yantian market in Shenzhen in showing the truth of the imputation that the Chinese market had been ruined or substantially damaged.  Is the Yantian market the only market, or the major market, for Tasmanian abalone in China?  What are the facts showing the lack of willingness to purchase Tasmanian abalone from other suppliers?  The plea does not state with precision the case which the plaintiffs must meet.  Thirdly, as to the plea of the defendants' meanings in the proposed par17A, it was submitted that it purports to be a Polly Peck defence and that defence if it ever was part of Australian common law, has been excluded by necessary implication by the Act, s25, and the s3 purpose of creating uniformity. In particular because between the States and Territories there has been disagreement as to the availability of the defence (eg, in Robinson v Laws (2003) 1 Qd R 81 at pars 44, 94 and 126, it was held that the defence did not apply in Queensland), uniformity will not have been achieved at the time of the enactment of the uniform law unless ss25 and 26 cover the field. Fourthly, the plaintiffs contend that even if the Polly Peck defence does form part of the common law of Australia and has survived the Act the proposed plea in the defences, par17A, would not in any event have been permissible because the imputations put forward by the defendants do not satisfy the Polly Peck pre-condition of application.  Namely the condition that the real imputation has not been pleaded by the plaintiff but is identifiable when the words complained of are interpreted in the context of those parts of the publication, including the part relied upon by the plaintiff, which parts do not contain separate and distinct defamatory statements. 

1. There are some pleading practices to which the defendants should adhere.  Firstly, it is obvious that the proposed plea in par17 is not intended to justify the precise meanings complained of by the plaintiffs.  For example, in the particulars of justification there is no reference whatsoever to the truth of the charge that consignments had been "rejected".  If at the trial the defendants want to advance a meaning in different terms they should say what it is.  For example, if at trial they wish to say that the meaning of the matter complained of is that shortly prior to 12 January 2006 the plaintiffs, in order to exploit increased demand at around the time of the Chinese New Year caused to be exported to China Tasmanian abalone for sale in the live fish market which they knew or ought to have known to have been susceptible to high mortality rates and which did in fact have high mortality rates with the result that potential purchasers became reluctant to buy Tasmanian abalone they should specify the proposed meaning in their plea.  The plaintiffs would then know well in advance of the trial what meaning is proposed and if they considered it not to be capable of arising from the publication or for other reasons to be impermissible to advance such a meaning they could oppose the amendment;  bring a strike-out application or ask the Court to rule on the matter in advance of the trial, as the circumstances of the case may require.  The defendants must make clear the meaning which they intend to justify.  In Lucas-Box v Newsgroup Newspapers Ltd (1986) 1 WLR 147 at 153, the Court said:

" … the court should not, in our judgment, have hesitated in ordering the defendants so to plead their case that the plaintiff knew quite clearly what the defendants were purporting to justify.  … whatever may have been the practice to date, in future a defendant who is relying upon a plea of justification must make it clear to the plaintiff what is the case which he is seeking to set up.  The particulars themselves may make this quite clear, but if they are ambiguous then the situation must be made unequivocal."

1. Some of the particulars of justification in the proposed par17 are vague and imprecise and there are gaps as submitted by counsel for the plaintiffs.  They ought not be permitted to stand in that form.  The particulars must make plain the defendants' case so that the plaintiffs may know the issues of fact to be investigated at the hearing.  In Sims v Wran (1984) 1 NSWLR 317, Hunt J speaking of particulars generally said at 321:

"The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet ….  The object of particulars is to save expense in preparing to meet a case which may never be put … and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing … It is not a question of whether one party has adequate knowledge of the actual facts;  it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet …"

1. In Tasmania the facts and matters relied upon to show substantial truth should be in the pleading itself and not left for the delivery of particulars at a future time.  This has been and continues to be the practice in relation to defamation actions where the cause of action accrued before the commencement of the 2005 Act.  The Supreme Court Rules 2000, r239(2), concerns the plea of justification under the Defamation Act 1957, s15.  That rule provides in part:

"A defendant in an action for defamation who pleads a defence under section … 15 of the Defamation Act 1957 is to plead:

(a)       …

(b)       the facts and matters relied on for the allegation that the words are true."

Although there is no rule as yet to similar effect in relation to a plea under the 2005 Act, s25, there is no reason to justify the Court having different practices on the matter depending upon whether the cause of action attracting the justification plea arose before or after the commencement of the 2005 Act. There is also r227(3) which requires: "Every pleading … to be expressed so as to give reasonably explicit notice … of all grounds of action or all defences on which the party pleading intends to rely at the trial".

1. In short, the particulars of justification contained in the proposed plea, par17, are defective and should not be allowed.  This is because they do not go far enough to allege justification of the meanings in the terms specified by the plaintiffs and so either the defendants' meanings must be stated or, alternatively, further allegations of facts and matters to meet the plaintiff's pleaded meanings must be set out.  In addition, the facts and matters alleged as particulars of justification must make plain the case which the plaintiffs are required to meet at the hearing, and they do not.  Leave will not be given to include par17.

1. The proposed defence, par17B, without alteration or addition repeats the particulars under par17.  One of the reasons for not permitting par17 was that the particulars of justification lack the necessary specificity.  Accordingly, proposed par17B will not be allowed. 

1. Proposed par17A which in combination with par17B is a plea of justification based on imputations formulated by the defendants cannot be permitted without precision in the supporting par17B particulars of justification.  It follows that leave to include it cannot be given until after there has been formulated an adequate plea containing particulars which justify the meanings put forward by the defendants. 

1. Had the particulars of justification been precise I would have allowed proposed par17A as I do not accept the plaintiffs' contention that Polly Peck is not part of Australian law and I do not accept the plaintiffs' contention that even if it was, the plea would still be bad.

1. The Act, s24(1), which I have set out earlier in these reasons, makes it clear that defences available at common law continue to be available in proceedings to which the Act applies. There may be conflicting authorities about the availability or the allowable extent of a Polly Peck defence in the various States and Territories.  There is the s3 stated purpose of achieving uniform law.  But these factors are not sufficient, on this a pleading application, to cause me to conclude with the necessary certainty that notwithstanding s24, the Polly Peck defence, if it applied in Australia, has been excluded under s6 by necessary implication.  I see no reason to adopt an approach different from that of Levine J in Whelan v John Fairfax Pty Ltd (supra), where after considering a number of cases including what was said by Brennan CJ and McHugh J in Chakravarti (supra), he said at pars51 and 52:

"Until there are enunciated clear and authoritative statements from the appropriate appellate courts in each State and Territory in which the problem arises (compare Robinson v Laws [2003] 1 Qd R 81), the ultimate decision as to the availability of the Polly Peck  defence will have to be determined by the High Court.

In the meantime, I propose to conform with what I perceive to be the more generally held view that a defendant in an appropriate State or Territory is entitled to plead a Polly Peck defence and thus will decline to strike out the pleading of it."

1. I do not in any event agree with the plaintiffs' submission that the plea purports to be a Polly Peck plea.  A Polly Peck defence is where a defendant pleads a meaning which is "different from that alleged by the plaintiff".  It is said that this is permissible if when the publication is looked at as a whole it is found that there are several defamatory allegations not all of which are necessarily the subject of complaint by the plaintiff, but which nevertheless contain a sting in common with the sting of the part of the publication about which the plaintiff complains.  The defendant can then plead the general sting and seek to justify it by reference to charges in the publication in respect of which the plaintiff has chosen not to complain.  In Polly Peck (supra), O'Connor LJ said at 1032 :

"In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff.  The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea, …It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.

Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.

Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case.  The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations.  The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication." 

1. It seems to me that the imputations in proposed par17A(a) - (e) are meanings which are arguably not different to the meanings alleged by the plaintiffs, but are merely shades or nuances of the plaintiffs' meanings so that those meanings would be open to a jury to find on the plaintiffs' own plea.  That being so, Polly Peck does not even need to be called in aid because the defendants would not be alleging meanings different to those proposed by the plaintiffs.

1. I would not refuse leave for the defendants to plead imputations unless it was manifestly clear that the plea was unsustainable as a matter of law.  In Commonwealth of Australia v Verwayen (1990) 170 CLR 394, Dawson J said at 456:

"In granting leave to amend, a court is concerned with the raising of issues and not with their merits.  Of course, an amendment which is futile because it is obviously bad in law will not be allowed."

I would not regard proposed par17A (when coupled with appropriately specific particulars of the facts and matters relied upon to justify the alleged meanings) as being a plea which is bad in law.

1. In summary:

(1)Leave to plead proposed par17 will not be given because the plea does not meet the imputations as framed by the plaintiffs.  Also, the particulars of the facts and matters relied upon to justify have not been set out in a way which makes the defendants' case plain so that the plaintiffs may know what issues of fact are to be investigated at the hearing.

(2)Leave to plead proposed par17A will not be given but only because the plea is not accompanied with a satisfactory plea containing precise particulars of the facts and matters relied upon to justify the meanings which the defendants allege.

(3)Leave to plead proposed par17B will not be given because it repeats the particulars in proposed par17 which I have found do not set out the facts and matters relied upon in support of the justification plea with appropriate precision.

1. I have given reasons for not allowing pars17, 17A and 17B and the defendants have advised me that they are not pursuing 17C and 17D as presently drafted.  The plaintiffs do not object to the rest.  Accordingly, the order will be that the defendants have leave to amend their defences in terms of the documents handed up and dated 17 May 2006 with the exception of pars17, 17A, 17B, 17C and 17D.