Fairfax Digital Australia & New Zealand Pty Ltd v Kazal

Fairfax Digital Australia & New Zealand Pty Ltd (the appellant) appealed to the Court of Appeal of New South Wales against orders of the primary judge striking out certain defences and particulars pleaded in defamation proceedings brought by Mr Kazal (the respondent). The dispute concerned the proper pleading of the defence of contextual truth under section 26 of the *Defamation Act 2005* (NSW) and the adequacy of particulars relied upon for mitigation of damages and the defence of honest opinion.

The primary legal issues before the Court of Appeal were whether a defence of contextual truth could be pleaded contingently, such that the alleged contextual imputations were only relied upon if the tribunal of fact found the plaintiff's imputation to be substantially true, and whether the imputations relied upon for the contextual truth defence could change at trial. A further issue was whether particulars of reputation, which were also relied upon for the defence of honest opinion, lacked precision and were therefore inadequate.

The Court of Appeal held that the defence of contextual truth under section 26 of the *Defamation Act 2005* (NSW) requires the defendant to plead and prove that the defamatory imputations conveyed by the matter complained of were substantially true. It was not permissible to plead this defence contingently upon a finding that the plaintiff's imputation was substantially true, as this would undermine the certainty required in pleading defences. The court also found that the imputations relied upon for the contextual truth defence must be established at the time of pleading and could not be permitted to change at trial. Regarding the particulars of reputation, the court agreed with the primary judge that they lacked the necessary precision and were inadequate for the purposes of mitigation of damages and the defence of honest opinion.

Consequently, the Court of Appeal dismissed the appeal, upholding the primary judge's decision to strike out the contingent pleading of contextual truth and the inadequate particulars. The appellants were ordered to pay the respondent's costs of the appeal.