Fairfax Media Publications Pty Ltd v Bateman

[2015] NSWCA 154

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154

Hearing dates:

20 and 21 April 2015

Decision date:

04 June 2015

Before:

McColl JA at [1];
Basten JA at [119];
Macfarlan JA at [230]

Decision:

(1)   Grant the applicants leave to appeal from the orders made by McCallum J in the Common Law Division on 9 October 2014.
(2)   Direct that the applicants file a notice of appeal in the form of the draft notice of appeal contained in the white book within seven days.
(3)   Dismiss the appeal.
(4)   Order the applicants to pay the respondent’s costs of the proceedings in this Court.

Catchwords:

APPEAL – interlocutory – defendant’s pleading struck out – whether defence available at law – whether pleading had tendency to prejudice, embarrass or cause delay

 

DEFAMATION – defences – whether David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 6 stated a separate common law defence of justification – whether defendant bound by plaintiff’s pleadings – whether defendant able to plead and justify alternative imputations not substantially different from plaintiff’s imputations – English authorities reviewed

 

PRACTICE AND PROCEDURE – defamation – defence – pleading imputation – whether defendant able to plead alternative imputations not substantially different from plaintiff’s imputations – whether Uniform Civil Procedure Rules 2005 (NSW), rr 14.30-14.32 preclude such pleading

 

STATUTORY INTERPRETATION – uniform defamation laws – interrelationship of statute and common law – effect of common purpose of uniform legislation in interpretation of Defamation Act 2005 (NSW) – meaning of “the general law” as preserved by the Defamation Act, s 6 and s 24 – whether reference to general law includes judicial exegesis of statutory provisions – whether preserved general law reflects modifications by legislative instruments or by acts of Parliament only – whether Uniform Civil Procedure Rules affected common law defence of justification

WORDS AND PHRASES – “the general law” – “the common law and equity” – Defamation Act 2005 (NSW)

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56-60
Crimes Act 1900 (NSW), s 23
Defamation Act 1901 (NSW), s 6
Defamation Act 1912 (NSW), s 7
Defamation Act 1958 (NSW), s 16
Defamation Act 1974 (NSW), s 15
Defamation Act 2005 (NSW), ss 4, 6, 8, 11, 21, 22, 24, 25, 26, 30
Defamation Act 2005 (Vic), ss 6, 8, 24, 25
Defamation Act 1992 (NZ), s 8
Defamation Act (WA) 2005
Interpretation Act 1987 (NSW), ss 3, 28, 30
Juries Act NT (1980), s 6A
Native Title Act 1993 (Cth), s 12
Slander & Libel Act 1847, 11 Vic c 13
Supreme Court Rules 1970 (NSW) Pt 67 r 11(3)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.14, 14.28, 14.30, 14.31, 14.32, 14.42, 15.1, 15.21, 15.22; Pt 14, Divs 2, 6; Pt 15 Div 4
Wrongs Act 1936 (SA), s 7

Cases Cited:

Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485
AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited (No 2) [2014] NSWCA 238
Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380
Broadcasting Corporation of New Zealand v Crush [1988] 1 NZLR 234
CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47; (2009) 239 CLR 390
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245
Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246; (2011) 81 NSWLR 315
Clarke v New South Wales [2015] NSWCA 27
Cripps & Anor v Vakras & Anor [2012] VSC 400
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667
Drummoyne Municipal Council v Australian Broadcasting Commission (1990) 21 NSWLR 135
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139
French v Herald and Weekly Times Pty Ltd [2010] VSC 127; (2010) 27 VR 140
French v Herald and Weekly Times Pty Ltd (No 2) [2010] VSC 155; (2010) 27 VR 171
Gammage v The Queen [1969] HCA 68; 122 CLR 444
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; 84 NSWLR 165
Gumina v Williams (No 2) (1990) 3 WAR 351
Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Herald & Weekly Times Ltd v Popovic [2004] HCATrans 180
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; 203 CLR 503
Kunoth-Monks v Healy & Anor [2013] NTSC 74
Lewis v Daily Telegraph Ltd [1964] AC 234
Lloyd v David Syme & Co Ltd [1986] AC 350
Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 177; [1986] 1 WLR 147
Madden v Seafolly Pty Ltd [2014] FCAFC 30
Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260
National Mutual v GTV Corporation Pty Ltd [1989] VicRp 66; [1989] VR 747
Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314
NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (1989) A Def R 50-055
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000
Ron Woodham v John Fairfax Publications Pty Ltd. [2005] NSWSC 1204
Setka v Abbott & Anor (No 2) [2013] VSC 726
Setka v Abbott [2014] VSCA 287
Slim v Daily Telegraph Ltd [1964] AC 234
Snedden v Nationwide News Pty Ltd [2011] NSWCA 262
Sutcliffe v Pessdram Ltd [1991] 1 QB 153
Sutherland v Stopes [1925] AC 47
Sweedman v Transport Accident Commission [2006] HCA 8; 226 CLR 362
TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682
Television New Zealand Ltd v Haines [2006] 2 NZLR 433
Trkulja v Yahoo! Inc & Anor [2010] VSC 215
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259
West Australian Newspapers Ltd v Elliott [2008] WASCA 172 (2008) 37 WAR 387
Western Australia v The Commonwealth [1995] HCA 47; 183 CLR 373
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028; (2002) 56 NSWLR 89
White v Overland [2001] FCA 1333

Texts Cited:

Alex C Castles, “The Transgressions of the ‘Satirist’ and Uniform Defamation Laws in Australia” (1992) 66 ALJ 167

 

Patrick George, Defamation Law in Australia (LexisNexis, 2006), pp xiv-xvii (the Hon R McColl) and pp 53-57, 138-139, 225-226

 

M Leeming, “Theories and Principles underlying the Development of the Common Law – The Statutory Elephant in the Room” (2013) 36(3) UNSWLJ 1002

 

H Maine, Dissertations on Early Law and Custom (John Murray, 1883) at 389

 

R Parkes et al, Gatley on Libel and Slander at [11-14] (Sweet & Maxwell, 12th ed, 2013)

 

D Rolph, “A critique of the national, uniform defamation laws” (2008) 16 Torts LJ 207 at 208

 

D Rolph, “The Sources of Defamation Law” in JT Gleeson, JA Watson and E Peden (eds), Historical Foundations of Australian Law, Vol II (Federation Press, 2013), Ch 5

  New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005, p 17639

Category:

Principal judgment

Parties:

Fairfax Media Publications Pty Ltd (First Applicant)
Fairfax Digital Australia and New Zealand Pty Ltd (Second Applicant)
Natasha Wallace (Third Applicant)
Vanda Carson (Fourth Applicant)
Jeremy Cumpston (Fifth Applicant)

  Edmund Thomas Gregory Bateman (First Respondent)
Idameneo (No 123) Pty Ltd (Second Respondent)

Representation:

Counsel:
Mr T D Blackburn SC/Mr A T S Dawson (Applicants)
Mr B R McClintock SC/Ms S T Chrysanthou (Respondents)

  Solicitors:
Banki Haddock Fiora (Applicants)
Gilbert + Tobin (Respondents)

File Number(s):

2014/321718

 Decision under appeal 

Court or tribunal:

Supreme Court

Citation:

Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380

Date of Decision:

09 October 2014

Before:

McCallum J

File Number(s):

2013/203163

HEADNOTE

[This headnote is not to be read as part of the judgment]

Dr Bateman (a plaintiff in defamation proceedings in the Common Law Division of the Supreme Court) alleged that a number of defamatory imputations arose from articles describing the way he ran his medical centres published in The Sydney Morning Herald (and on various websites) by the defendants. The defendants pleaded several common law and statutory defences under the Defamation Act 2005 (NSW), including justification. Additionally, they sought to plead separate imputations not substantially different from those pleaded by Dr Bateman which they claimed were also substantially true. This pleading was made in reliance on the Victorian case David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667 (“Hore-Lacy”) which the defendants stated formed an alternative way of pleading the common law defence of justification. The primary judge, McCallum J found that Hore-Lacy established a separate form of pleading that was not available in New South Wales where the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), in particular rr 14.31 and 14.32 require defendants to plead defences specifically by reference to the plaintiff’s imputations. Consequently, McCallum J struck out the Hore-Lacy defence as unnecessary and embarrassing. The defendants sought leave to appeal asserting that the judge had erred by not accepting that they were entitled to plead a Hore-Lacy defence was a defence which they were entitled to plead under the general law, preserved by the Defamation Act, ss 6 and 24. Additionally they contended that the Court was bound to follow the Victorian Supreme Court’s decision in Setka v Abbott [2014] VSCA 287 (“Setka”) that confirmed the availability of the Hore-Lacy defence under the common law in Australia, unless the Court was convinced the decision in Setka was plainly wrong.

The Court (Basten JA and Macfarlan JA; McColl JA dissenting) held, granting defendants leave to appeal but dismissing the appeal:

(per Basten JA; Macfarlan JA agreeing)

1.   In New South Wales defences in defamation actions are those available under the Defamation Act and the general law as preserved under ss 6 and 24 of the Act. However, the general law is not some pristine form of judge-made law, but a law that was variable over time and affected by statute or delegated legislation. Consequently, despite there being one common law in Australia, there may be differences between the jurisdictions arising from modifications effected by statutes and statutory instruments: [143].

Gammage v The Queen (1969) 122 CLR 444; Western Australia v The Commonwealth (1995) 183 CLR 373 referred to.

Interpretation Act 1987 (NSW), s 3(1) applied.

2. Pursuant to the UCPR and in particular r 14.31(1), in NSW all available defences have to be pleaded with respect to particular imputations asserted by the plaintiff (which also must be specific and differ in substance from each other: r 14.30(2). The rule, on its ordinary meaning, does not allow the defendants to plead their own, albeit not substantially different, versions of the imputations: [164].

Defamation Act 2005 (NSW), ss 2, 24, 25; Uniform Civil Procedure Rules 2005 (NSW) rr 14.30(2), 14.31(1), (2).

3. However, the UCPR should not be understood as proscribing a form of pleadings; if support may be found elsewhere: [165]-[166].

4.   Hore-Lacy was a Victorian response to English decisions allowing a defendant to plead separate imputations that the defendant could justify as substantially true: [182]. The reasoning of the majority in Hore-Lacy followed from the Victorian practice that plaintiffs were not strictly bound by the pleaded imputations, so that defendants were allowed to plead their version of the imputations: [189]-[190], [194].

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519; David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667; Lucas-Box v Newsgroup Newspapers Ltd [1986] 1 WLR 147 5; Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 discussed.

5. This was not the case in NSW: [189], [195]. In the absence of binding authority to the contrary ([221]), the primary judge was correct in striking out the defence as not complying with the pleading practice and procedures in this State: [92], [94].

Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157; John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262 discussed.

6.   The Court need not consider the correctness of the reasoning in Setka v Abbott [2014] VSCA 287: [196].

(per McColl JA dissenting)

7. The primary judge erred by striking out the Hore-Lacy defence: [113].

8. A defendant seeking to justify the defamatory matter under the Defamation Act 2005 (NSW) may prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true: [102].

Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157 applied.

David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; [2000] 1 VR 667 discussed.

9. David Syme & Co Ltd v Hore-Lacy meanings ("Hore-Lacy pleading") put the plaintiff on notice of the meanings the defendant will contend at trial were not substantially different from those of which the plaintiff complains (and are therefore imputations on which the plaintiff may prima facie succeed) but are those the defendant will contend are substantially true. Hore-Lacy pleading thus avoids trial by ambush: [100].

10. Hore-Lacy pleading had been approved by authorities in the Court of Appeal and by intermediate appellate Courts of other States of Australia prior to, and since, the enactment of the uniform defamation legislation. The primary judge was bound by those authorities to accept that Hore-Lacy meaning could be advanced in defamation actions heard in this State: [77], [110].

Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47; (2009) 239 CLR 390; Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603; Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 referred to.

Judgment

1. McCOLL JA:   The applicants, Fairfax Media Publications Pty Limited, Fairfax Digital Australia & New Zealand Pty Limited, Natasha Wallace, Vanda Carson and Jeremy Cumpston, seek leave to appeal from a decision of McCallum J of 9 October 2014 in which her Honour struck out that part of the applicants’ defence described as “Hore-Lacy Alternative Meanings” in defamation proceedings commenced by the first respondent, Edward Thomas Bateman. [1]

   1. Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 (the “primary judgment”).

2. In my view, for the reasons which follow, the appellants have established that the primary judge erred as a matter of legal principle, such that her Honour’s exercise of her discretion to accede to the first respondent’s strike-out application miscarried. Leave to appeal should be granted and the appeal allowed. [2] I will refer to the applicants as the appellants henceforth.

   2. See Clarke v New South Wales [2015] NSWCA 27 (at [18] – [21]).

Statement of the case

3. The first respondent brought proceedings against the appellants seeking to recover damages for defamation said to arise from the publication of four articles in The Sydney Morning Herald in October 2010, (both in print and online). One of the articles described the first respondent as “Australia’s richest doctor”, and credited him with having pioneered the corporatisation of general medical practice in this country. Generally the articles “discuss the advent of large, seven-day medical centres and report allegations complaining of the [first respondent’s] treatment of general practitioners engaged to work in such centres, his frequent and aggressive resort to litigation in the case of dispute and the adverse impact of the income-driven practices of such centres on the quality of the medical care they provide.” [3] The proceedings are governed by the Defamation Act 2005 (NSW) (the “2005 Act”).

   3. Primary judgment (at [1]). Idameneo (No 123) Pty Ltd, a company apparently associated with the first respondent, also brought proceedings in its case to recover damages for injurious falsehood in relation to the matters complained of, presumably because it did not qualify as an “excluded corporation” for the purposes of s 9 of the 2005 Act.

4. In their amended defence filed on 16 August 2013, the appellants pleaded defences of justification pursuant to s 25 of the 2005 Act and common law justification, contextual truth (s 26, 2005 Act), fair report (s 29, 2005 Act) and honest opinion (s 31, 2005 Act).

5. In addition, in paragraphs 19 - 22, headed “Common Law – Hore-Lacy” (the “Hore-Lacy pleading”), the appellants pleaded in “further and alternative answer” to those paragraphs of the Statement of Claim pleading each matter complained of and the defamatory meanings each such matter was alleged to carry. The Hore-Lacy pleading set out what the appellants contended each matter complained of “meant and was understood to mean”, (defined as the “Alternative Meanings”) and pleaded that the Alternative Meanings were substantially true and did not differ in substance from the respondents’ meanings. [4]

   4. See David Syme & Co Limited v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 (“Hore-Lacy”). In these reasons I refer to “nuance imputations” or “nuance meanings” to refer to those meanings Hore-Lacy established a defendant could plead at common law in Australia at the time the 2005 Act (and like legislation in all other States and Territories) was enacted: see Fairfax Media Publications Pty Ltd v Kermode ([2011] NSWCA 174; (2011) 81 NSWLR 157 (“Kermode”) (at [59](b)).

6. The first respondent applied to have parts of the amended defence, including the Hore-Lacy pleading, struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 14.28. The primary judgment dealt only with the strike-out application in respect of the Hore-Lacy pleading.

7. At the heart of the first respondent’s strike-out application was his contention that Hore-Lacy pleading has no place in New South Wales having regard to practice and procedure in this State, and that such a pleading was apt to cause confusion at the hearing. [5] He submitted that what he described as the “Hore-Lacy defence” was not a substantive defence, but merely a pleading technique. He contended that that “defence” had developed “in jurisdictions where pleading practices grant latitude to a plaintiff to contend at trial for meanings falling ‘within’ his or her pleaded case, and without formally amending his or her imputations.” In contrast, he submitted, in New South Wales, “plaintiffs are strictly held to their imputations – if they seek at trial to advance lesser or variant meanings, they are required to amend (if permitted to do so).” Finally he contended that, assuming the submission that Hore-Lacy merely authorised a pleading technique was accepted, any such pleading had to conform to other aspects of the prevailing practice in New South Wales. He did not contend Hore-Lacy was wrongly decided, but rather that it had no application in this State based on current judicial practice. [6]

   5.    Primary judgment (at [25]).

   6.    Primary judgment (at [33] – [34]).

Primary Judgment

8. The primary judge considered at the outset of her reasons the pre-2005 Act position concerning the law of defamation in this State and in other jurisdictions. [7] Her Honour accepted that one of the objects of the 2005 Act was to enact uniform laws of defamation in Australia. After referring to s 8 of the 2005 Act, her Honour observed that:

“So far as New South Wales is concerned, the effect of that section is to remove the focus on the imputation as the cause of action. The imputations contended for by a plaintiff nonetheless remain of critical importance, as explained below”. [8]

7.    Primary judgment (at [5] – [12]).

8.    Primary judgment (at [7]).

9. The primary judge contrasted the position in New South Wales where, pursuant to s 9 of the Defamation Act 1974 (NSW) (the “1974 Act”), the imputation was the cause of action, carrying with it the concomitant requirement that a plaintiff “specify, in the pleading of the claim, the defamatory meanings contended for and to do so with precision”, with that in other jurisdictions where, although a practise evolved of a plaintiff specifying the meanings contended for in support of the claim, the “consequences of doing so were unclear”. [9]

   9. Primary judgment (at [9] – [11]); referring to Chakravarti v Advertiser Newspapers [1998] HCA 37; (1998) 193 CLR 519 (“Chakravarti”) (at [53] – [58]) per Gaudron and Gummow JJ.

10. The primary judge observed that it was necessary to consider the defence of justification in that context and said:

“…Under the 2005 statute, notwithstanding its provision that the cause of action is the matter complained of (and not the imputation), it remains a critical requirement of fairness that the plaintiff specify the imputations contended for, since they are an element of some of the statutory defences, importantly including the defence of truth. Section 25 of the 2005 Act provides 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. I read that section as referring to the imputations of which the plaintiff complains rather than the imputations (whatever they may be) conveyed by the matter of which the plaintiff complains.” [10] (Emphasis in original)

10.    Primary judgment (at [13]).

11. Based on her reading of s 25, her Honour said:

“…it could form no part of that defence for a defendant to postulate an alternative meaning of the matter complained of and plead that the alternative meaning was substantially true. A plea of truth under the statute to any imputation other than those of which the plaintiff complains would be bad in law”. [11]

11.    Primary judgment (at [14]).

12. Her Honour observed that the 2005 Act preserves defences at common law. [12] Her Honour then considered Hore-Lacy, concluding that that decision was “ultimately concerned with the content of the defendants’ pleading obligation rather than the scope of the defence of justification at common law.” [13] Her Honour identified the critical questions as being whether Hore-Lacy recognised a discrete species of the common law defence of justification or whether it was properly confined in its application to matters of pleading and practice in the State of Victoria or “whether it has national application, particularly in the context of uniform national law.” [14]

    12.    Primary judgment (at [15]).

    13.    Primary judgment (at [16] – [22]).

    14.    Primary judgment (at [23]; [41]). The first respondent also contended the Alternative Meanings did not conform to Hore-Lacy as they differed in substance from his imputations, however the primary judge determined there was no utility in deciding that issue (primary judgment (at [31])), no doubt as, in due course, her Honour struck out the Alterative Meanings.

13. The appellants accepted that if the Hore-Lacy pleading survived the strike-out application, they would have to link their Alterative Meanings to any individual imputation relied upon by the first respondent. [15] The primary judge regarded that concession as highlighting the force of remarks Callaway JA made in Hore-Lacy to the effect that a defendant prepared to plead justification and who “undertake[s] to prove that the words were true in any meaning that the jury properly finds”, should not also “be required to suggest meanings to the plaintiff that may not have occurred to the plaintiff's advisers, especially as that may have the effect of increasing the damages ultimately awarded”. [16] In her Honour’s view, where “[t]he defence of justification at common law requires proof that what was published was true in any meaning properly left to the jury … [t]he task contemplated by the parties of marrying imputation with alternative meaning would unnecessarily complicate that relatively simple proposition [and] … elevate considerations of procedural fairness and efficiency into a rule.” [17]

    15.    Primary judgment (at [28] – [29]).

    16.    Primary judgment (at [30]); see Hore-Lacy (at [70]).

    17.    Primary judgment (at [30]).

14. The primary judge accepted the first respondent’s submission that “the vice to which the Hore-Lacy requirement is directed (the possibility that the tribunal of fact will proceed on a meaning different from that contended for by the plaintiff) does not arise in New South Wales because the prevailing practice in this State already addresses it”. [18] That was because pursuant to the UCPR “the requirement of precision in the pleading of imputations in New South Wales survived the enactment of the 2005 Act.” In her Honour’s view UCPR 14.30(2), 14.31(2) and 14.32(2) and also 15.22(2) contemplated “that the defence of justification at common law must, in this State, meet the case pleaded by the plaintiff as to the meaning of the matter complained of”. [19]

    18.    Primary judgment (at [34]).

    19.    Primary judgment (at [35] – [39]).

15. Her Honour noted that the practice in New South Wales in the conduct of defamation trials reflected that proposition as the jury was asked as to each imputation complained of “whether that imputation or any imputation which does not differ in substance from that imputation was conveyed and, if so, whether it was defamatory of the plaintiff”. [20]

    20.    Primary judgment (at [40]).

16. The primary judge described the first respondent’s contention that Hore-Lacy did not create a specific defence as “plainly right”. Rather, her Honour held, Hore-Lacy established a principle relating to the proper manner of pleading the defence of justification at common law. [21]

    21.    Primary judgment (at [41]).

17. The primary judge referred to Brennan CJ and McHugh J’s judgment in Chakravarti,[22] and, in particular, to their Honours’ statement that “defences are either by way of denial or confession and avoidance” and that a plea of justification to a meaning which the plaintiff has not pleaded is not a good defence. [23] Her Honour observed that “[a] premise of that proposition is the equally unexceptionable proposition that the case to be defended is that pleaded by the plaintiff … a premise reflected in the rules of court that apply to defamation actions in this State”. [24]

    22. [1998] HCA 37; (1998) 193 CLR 519 (“Chakravarti”).

    23. Chakravarti (at [8]); see primary judgment (at [42]).

    24.    Primary judgment (at [42]).

18. The primary judge identified the genesis of Hore-Lacy as lying in the fact that, in that case, the defendants had expressly asserted they would argue the matter complained of did not mean what the plaintiff said it meant, but would not say what they said it meant, albeit that they asserted what it meant was true. The plaintiff had pressed to know the alternative meanings for which the defendants contended. Her Honour acknowledged that there was accordingly, “some warrant, for fairness, for acceding to the plaintiff’s request.” [25]

    25.    Primary judgment (at [45] – [46]).

19. In circumstances where the first respondent did not wish to know the alternative meanings for which the appellants contended, the primary judge said “[i]t follows that the defendants are not required to plead them, as was held to be the case in Hore-Lacy”. [26]

    26.    Primary judgment (at [47]).

20. Notwithstanding that conclusion, her Honour considered whether the appellants could, as the first respondent argued, be precluded from pleading the Alternative Meanings. The first respondent submitted that the Alternative Meanings were “unnecessary because Dr Bateman will not, at the trial, ask the judge to leave to the jury any alternative meaning”, as he was “content to be confined to the approach adopted in this jurisdiction of obtaining answers to the question whether each of his imputations or imputations which are not substantially different from those imputations are conveyed and are defamatory.” [27]

    27.    Primary judgment (at [48]).

21. In her Honour’s view:

“[O]nce it is recognised that there is no occasion for the pleading of alternative meanings in accordance with the decision in Hore-Lacy, it follows that the pleading is embarrassing and should be struck out. As submitted on behalf of Dr Bateman, it remains the common law of Australia that, in the absence of any suggestion that a plaintiff will seek (or be permitted) to depart from his or her pleaded case, a defendant must defend the plaintiff’s pleaded case. That is, the defendant must either deny the plaintiff’s meanings or confess and avoid them.” [28]

28.    Primary judgment (at [49]).

22. In her Honour’s view, it followed:

“[T]hat the decision in Hore-Lacy has no work to do in New South Wales having regard to the law and practice in this State. Mr McClintock, senior counsel for Dr Bateman, asked rhetorically what question would be posed to the jury in respect of the alternative meanings contended for? With great respect to Mr Dawson, no satisfactory answer was given to that question. Upon analysis, having regard to the form of question posed in respect of the plaintiff’s meanings (and the consequent constraint on the plaintiff to be bound in substance to those meanings), the defendants’ reliance upon alternative meanings makes no sense.” [29]

29.    Primary judgment (at [50]).

23. The primary judge then referred to the parties’ competing contentions as to whether authorities in this Court or those of intermediate appellate courts in other states of Australia precluded her from giving effect to that conclusion. [30]

    30. Primary judgment (at [51] – [53]), referring to John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 (“Hitchcock”) (at [21], [40] and [233]); John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; Kermode; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262; Hore-Lacy; Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 (“Moodie”); Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387; see also the authorities to which Levine J referred in Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028; (2002) 56 NSWLR 89 (“Whelan”) (at [43]).

24. Of those authorities, the primary judge referred in detail only to Kermode, observing that the conclusions there expressed “that a defendant can justify at common law by pleading nuance imputations … were not specific to the practice in New South Wales, were not part of the ratio of the decision and were made in circumstances where the point now argued had not been raised for the assistance of the Court”. [31]

    31. Referring to Kermode (at [59] and [86]); primary judgment (at [55]).

25. Her Honour concluded that the mandatory considerations of ss 56 to 58 of the Civil Procedure Act 2005 (NSW) militated strongly in favour of disallowing a form of pleading which she had concluded made no sense in the context of the practice in this State. Accordingly she struck out the Alternative Meanings as having a tendency to cause prejudice, embarrassment or delay in the proceedings. [32]

    32.    Primary judgment (at [56] – [57]).

26. After the primary judgment was delivered, the Victorian Court of Appeal handed down judgment in Setka v Abbott. [33] In that case Warren CJ and Ashley JA held, in brief, that Hore-Lacy recognised a common law defence of justification which was preserved by reason of s 6(2) and s 24(1) of the Defamation Act 2005 (Vic) (the “Victorian Act”), or was a pleading available in pursuing a defence under s 25 of the Victorian Act. [34]

    33. [2014] VSCA 287 (“Setka CA”).

    34.    See Setka CA (at [110] – [116], [125]).

Legislative framework

27. The following provisions of the 2005 Act are relevant:

“6 Tort of defamation

(1) This Act relates to the tort of defamation at general law.

(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).

(3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the following legislation had never been enacted:

(a) the Defamation Act 1958,

(b) the Defamation Act 1974.

8 Single cause of action for multiple defamatory imputations in same matter

A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.

24 Scope 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.

25 Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”

28. The provisions to which the primary judge referred in UCPR 14 Div 6 (“Pleadings concerning defamation”) require a plaintiff in defamation proceedings to “specify each imputation on which the plaintiff relies”, relevantly, a defendant pleading justification, to “specify to what imputation or imputations the defence is pleaded”, and provide that “a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true”. [35]

    35. UCPR 14.30(2), 14.31(2) and 14.32(2).

29. UCPR 15 deals with “Particulars”. UCPR 15.1(1) requires a pleading to “give such particulars of any ... defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.” UCPR 15, Division 4 deals with “Defamation”.

30. UCPR 15.21 relevantly requires “a defamation defence required by rule 15.1 [to] … include particulars of the facts, matters and circumstances on which the defendant relies to establish … that any imputation or contextual imputation was true or was a matter of substantial truth”. [36] UCPR 15.22(2) to which the primary judge also referred specifies the “Particulars in relation to defence of justification” as follows:

“Defences under section 25 of Defamation Act 2005 and at common law

Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of justification under section 25 of the Defamation Act 2005 or at common law must (unless the court orders otherwise) include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation in question was substantially true.

Note: The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24 (1) of the Defamation Act 2005.”

36. UCPR 15.21(1)(c).

31. It is also relevant to refer to UCPR 14.14(2)(a) requiring a party pleading a defence or subsequent pleading, to plead specifically any matter that, if not pleaded specifically, may take the opposite party by surprise.

Issues on Appeal

32. In their written submissions the appellants identify the questions involved in the proposed appeal, should leave be granted, as whether:

“(a)   The decision of the Victorian Court of Appeal in Setka CA, that the decision in Hore-Lacy established a defence rather than a mere pleading practice or pleading rule, is ‘plainly wrong’ or is binding on this Court (Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135]; C.A.L No 14 Pty Ltd v Motor Accidents Insurance Board; C.A.L. No 14 Pty Ltd v Scott [2009] HCA 47 at [49-50]);

(b)   If Setka CA is plainly wrong, such that a Hore-Lacy plea is merely a pleading practice or pleading rule, what is the defence to which that practice or rule is directed?

(c)   If the defence to which the Hore-Lacy plea relates is available at common law by reason of the principles explained in Chakravarti v Advertiser Newspapers and ss 6 and 24 of the 2005 Act, is that defence available in New South Wales regardless of the correctness of Setka CA and current practice in this State?” [37]

37.    Appellants’ Consolidated Summary of Argument and Submissions on Appeal (“AWS”), 31 March 2015 (at [15]).

33. The first respondent submitted, by way of notice of contention, that Hore-Lacy was wrongly decided because:

“i.    defendants are (and have always been) required to plead particulars of truth which should put the plaintiff on notice of the case he or she has to meet, thus Hore-Lacy meanings serve no purpose;

ii.   the practice of permitting defendants to plead defamatory meanings is contrary to longstanding authority and principle, as well as unnecessary and embarrassing to the efficient conduct of litigation.” [38]

38.    RWS (at [4(e)]).

34. The first respondent also contended Setka CA was wrongly decided insofar as the majority concluded that Hore-Lacy created a substantive defence.

Appellants’ submissions

35. The appellants submitted that by reason of Setka CA, leave to appeal should be granted and the appeal allowed. [39]

    39.    AWS (at [16]).

36. The appellants submitted that the first respondent’s argument before the primary judge depended on reducing the decision in Hore-Lacy to a matter of practice and procedure. This was because, if Hore-Lacy established a substantive right in a defendant to plead alternative imputations by way of a defence to the claim of a plaintiff, no supposed “practice” of the New South Wales Supreme Court could prevent the exercise of that right. The appellants argued that the primary judge erred in accepting the first respondent’s argument, as Setka CA demonstrated. They submitted that Setka CA was correct insofar as it determined that Hore-Lacy established a different aspect to the defence of justification. However, they argued it was unnecessary to characterise their Alternative Meanings as a defence, once it was accepted that they were putting the Court and the plaintiff on notice of the way their case would be conducted at trial.

37. The appellants submitted that central to the majority’s decision in Setka CA was their Honours’ characterisation of Hore-Lacy as being much more than a “mere matter of form” [40] and as having “wrought a substantial alteration to the way in which a justification defence might be pursued at common law”. [41] They further submitted that the majority regarded Hore-Lacy as having established a substantive defence, [42] that was otherwise preserved by s 25 of the 2005 Act. The appellants pointed out that the majority was not persuaded by the primary judge’s reasoning in this case to the contrary. Indeed, their Honours were critical of her Honour’s explanation of the relevant development of the law prior to Hore-Lacy and her description of that case as a “peculiarly Victorian (pleadings) manifestation of a justification defence” despite a clear line of interstate authority that it accurately stated the law in those jurisdictions. [43]

    40.    See Setka CA (at [111]).

    41.    See Setka CA (at [121]).

    42.    See Setka CA (at [115] – [125]).

    43.    See Setka CA (at [131] – [132]); see also (at [44]).

35. Secondly, the appellants submitted that inter-state and New South Wales authority demonstrated that Hore-Lacy was not peculiar to Victoria.

36. Thirdly, the appellants submitted that Hore-Lacy established a defence such that a defendant may justify a defamatory publication not merely by justifying it in the sense for which the plaintiff contends, but, alternatively, by denying the sense for which the plaintiff contends but proving the defamatory publication to be substantially true in a sense which is a nuance or variation of, and not more serious than, the plaintiff’s meaning. They argued that although there may be substantial conformity between the particulars of substantial truth to the plaintiff’s imputations and those pleaded to support the substantial truth of the Alternative Meanings, the latter should be made explicit to put the first respondent on notice of the nuance meanings the appellants contended they could demonstrate to be substantially true.

37. Fourthly, the appellants submitted this Court could not depart from Setka CA unless convinced it was plainly wrong. They argued that whatever the practice was in this State, there was only one common law of Australia. Accordingly comity called for consistent decision-making between intermediate appellate courts. They contended that, as the majority said (with Whelan JA’s agreement) in Setka CA, “[i]f the position in New South Wales is as [the primary judge] held it to be, and if the conclusions which we have expressed are sound, then any prospect of uniformity of defamation law in Australia, in an important aspect, will be gone”. [44]

    44.    (at [132], [301]).

38. Fifthly, the appellants contended that even if the Court concluded SetkaCA was plainly wrong such that Hore-Lacy established only a pleading rule, nevertheless it related to the substantive defence of justification as established by Chakravarti and Hore-Lacy.

39. Sixthly, the appellants contended that s 6(2) and s 24(1) of the 2005 Act preserved the operation of the general law in relation to the tort of defamation, which applied as if the Defamation Act 1958 (NSW) (the “1958 Act”) and the 1974 Act had never been enacted. In accordance with s 24(1) of the 2005 Act, the defences available were, relevantly, additional to any other defence available to a defendant apart from the 2005 Act and that each defence provided for did not of itself vitiate, limit or abrogate any other defence or exclusion of liability. In contrast, the appellants pointed out, under the 1974 Act the defence of truth was only that afforded by s 15.

40. Accordingly, the appellants submitted that, whatever had been the New South Wales practice under the 1974 Act, the consequence of the enactment of the 2005 Act and the express prohibition on taking into account practice under either the 1958 or the 1974 Act, meant that common law principles such as those established in Chakravarti and Hore-Lacy had effect. The appellants contended that rules made under the Civil Procedure Act could not deprive them of their right to put forward their justification defence as the latter was “a substantive, not a procedural right”. [45]

    45. Whelan (at [53]); John Pfeiffer Pty Ltd v Rogerson [2000] HCA; (2000) 203 CLR 503 (at 99 – 100, 102).

First respondent’s submissions

44. The first respondent first submitted that a plaintiff is bound by the pleaded imputations. Secondly, that defendants are bound by the case put by the plaintiff – meaning in the present context, by the plaintiff’s imputations. Thirdly, that if the plaintiff does not establish that those imputations, or imputations not substantially different, are conveyed and defamatory of and concerning him or her, the plaintiff fails. Fourthly, that where a defendant pleads truth the defendant is bound to particularise that plea with the precision of an indictment. Fifthly, that if the defendant complies with the obligation to give proper particulars of a defence of substantial truth, there is no occasion for any “so called” Lucas-Box v News Group Newspapers Ltd [46] or Hore-Lacy meaning, except perhaps in circumstances where there is some form of ambiguity because of imprecision of language or where, for example, a plaintiff seeks an additional particular to clarify the ambiguity. Sixthly, that the defendant does not have to plead any nuance meaning as the particulars of truth would make any such meaning clear.

    46. [1986] 1 All ER 177; [1986] 1 WLR 147 (“Lucas-Box”).

45. Seventhly, the first respondent submitted that the “Hore-Lacy ‘defence’ is a pleading technique, developed and maintained in jurisdictions where pleading practices grant latitude to a plaintiff to contend at trial for meanings falling ‘within’ his or her pleaded case, and without formally amending his or her imputations.” [47]

    47.    Respondents’ Submissions, 14 April 2015 (“RWS”) (at [4(a)]).

46. In contrast, the first respondent submitted in NSW, “even under the 2005 Act, plaintiffs are held to their imputations – if they seek at trial to advance lesser or variant meanings, they are required to amend (if permitted to do so).” [48] Therefore, as the primary judge found, “the whole rationale for the so-called ‘defence’ identified in Hore-Lacy is missing in New South Wales, at least until such time (if ever) as plaintiffs are extended a latitude with regard to pleading meanings which gave rise to the need for the practice.” [49]

    48.    RWS (at [4(b)]).

    49.    RWS (at [4(c)]).

47. Eighthly, the first respondent argued that the appellants were impermissibly seeking to rely upon an additional defence which was contradicted by Lucas-Box v News Group Newspapers Ltd and by Chakravarti, and was unknown to the common law.

48. The first respondent accepted that if the Hore-Lacy “doctrine” had any work to do, it was limited to pleading or particularising imputations which did not differ in substance from the plaintiff’s imputations so that the plaintiff himself could rely upon them. If that was the case, he contended there could be no injustice to the first respondent in them being relied on at the trial without notice. He argued that unless that limitation applied, pleading alternative meanings would raise a false issue for the reasons given by Brennan and McHugh JJ in Chakravarti. [50]

    50.    Chakravarti (at [8]).

49. It was in this sense that the first respondent contended he informed the primary judge that he did not want to know the alternative meanings for which the appellants contended. [51] This was because as long as the appellants did not depart from their particulars of substantial truth, which he asserted contained no ambiguity, no nuance meaning for which they contended at trial could surprise him.

    51.    See primary judgment (at [47]).

50. Ninthly, the first respondent submitted that the fact that the common law and the 2005 Act apply uniformly throughout Australia made no difference once Hore-Lacy pleading is accepted to be only a matter of practice. Accordingly, even if, contrary to his submissions, the Court found Hore-Lacy was not wrongly decided, he contended it had no application in New South Wales and, further, that the language of s 25 of the 2005 Act left it with no work to do. [52]

    52.    RWS (at [4(d)]).

51. The first respondent did not submit that s 25 “repeals” the common law defence of justification. However, he did contend that s 25 was “insubstantially different” from the common law in a defamation world where “imputations have primacy”. In essence, he contended that, whether under the common law or defamation legislation, the defamatory imputation was always the focus.

52. Finally, the first respondent submitted that Hore-Lacy and Setka CA were wrongly decided to the extent those decisions should be understood as concluding that the form of pleading nuance imputations Hore-Lacy condoned constituted a justification defence independent of that which hitherto operated at common law.

Consideration

The pre-2005 Act position

53. The 2005 Act and its interstate counterparts were the product of an agreement between the Attorneys General of the States and Territories to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation. [53]

    53.    Kermode (at [31]).

54. The common law position in Australia prior to the commencement of the 2005 Act was discussed in Kermode, a case which concerned the ambit of the defence of contextual truth for which s 26 of the 2005 Act provides. That case relevantly held, in summary, that the position concerning justification at common law in Australia, prior to the introduction of the 2005 Act, was that:

“(a) a defendant seeking to justify defamatory matter had to prove all stings of the defamatory matter relied upon by the plaintiff were substantially true;

(b) a defendant seeking to justify defamatory matter could not do so by seeking to plead and justify an imputation with a substantially different sting from that or those pleaded by the plaintiff; a defendant could only plead nuance imputations …”. [54]

54.    Kermode (at [59]).

55. In order to determine that question it was relevant to consider the legal and historical context in which the 2005 Act had been enacted. [55] Some aspects of that consideration warrant repetition.

    55.    Kermode (at [6]) per McColl JA (Beazley and Giles JJA agreeing).

56. The cause of action at common law in defamation lay in the publication to a third person of matter conveying a defamatory meaning. Thus, the jury in a defamation case conducted in that context was charged that it was for it to determine the defamatory meanings, if any, a publication complained of conveyed. The jury was not limited to the meanings either the plaintiff or defendant suggested. [56]

    56.    Lucas-Box All ER (at 182); WLR (at 152 – 153).

57. At common law a plaintiff who relied on the natural and ordinary meaning of the defamatory words did not have to plead the false innuendos said to have been conveyed. However, a practice developed in England in the 1960s, which was “settled practice” by 1986, of requiring a plaintiff to plead the defamatory imputations. [57]

    57. Lucas-Box All ER (at 182); WLR (at 151); see generally Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 (“Popovic”) (at [299] – [324]) per Gillard AJA (Winneke ACJ and Warren AJA (as the Chief Justice then was) agreeing); special leave refused: Herald & Weekly Times Ltd v Popovic [2004] HCATrans 180.

58. In like vein, the defendant justifying could merely plead, “the said words are true in substance and in fact”, in accordance with which the defendant had to “prove every injurious imputation which the jury may find in the words complained of”. [58] However, a practice also developed of requiring a defendant to identify the meanings of the defamatory publication it would seek to justify. This requirement appears to have been first stated in England in Lucas-Box.

    58.    Popovic (at [303]; [306](i)).

59. Lucas-Box was a defamation case in which justification was pleaded, but counsel for the defendant said “he wished to keep his options open, as to the defamatory meaning of the publication which he will seek to justify, until the last possible moment”. [59] The defendant’s entitlement to seek to justify a meaning other than that for which the plaintiff expressly contended was not debated in Lucas-Box. Presumably it was founded on the defendant’s right at common law “to justify only one of the lesser meanings inherent in the more serious imputation pleaded or identified by the plaintiff (to meet a finding by the jury that it was the only or the worst imputation which was in fact conveyed by the matter complained of)”. [60]

    59.    Lucas-Box All ER (at 182); WLR (at 152).

    60. Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 (“Morris”) (at 264) per Hunt J (the reference to the “plaintiff” at the outset of this sentence should clearly have been to the “defendant”); NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (1989) A Def R 50-055 (at 40,371) per Hunt J.

60. The Court of Appeal in Lucas-Box rejected the defendant’s approach of keeping its options open. It held that “in future a defendant who is relying on 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.” [61]

    61.    Lucas-Box All ER (at 183); WLR (at 153).

61. Underlying the court’s reasoning in Lucas-Box was the proposition (consistent with the practice which had developed of requiring a plaintiff to plead defamatory imputations) that defamation litigation should not be immune from ordinary pleading rules intended to “define the issues between the parties, so that both the plaintiff and defendant know what is the other side’s case and thus everyone, counsel, judge and jury, are able to focus on the real issue of the dispute”. [62]

    62.    All ER (at 181); WLR (at 151) per Ackner LJ; see also Chakravarti (at [18]) per Brennan CJ and McHugh J; (at [56] – [58]) per Gaudron and Gummow JJ.

62. Lucas-Box was delivered while another division of the English Court of Appeal was considering in Polly Peck (Holdings) Plc v Trelford  [63] the extent to which a defendant pleading justification or fair comment could particularise meanings of the defamatory publication other than those pleaded by the plaintiff. The Court approved the decision in Lucas-Box that “a defendant who pleads justification must state the meaning which he seeks to justify”, adding that “[i]t follows from that case and this that in future, where differences of meaning are proposed by the parties, the issue as to the possible meanings of the words will be confined to those pleaded”. [64]

    63. [1986] QB 1000 (“Polly Peck”).

    64.    Polly Peck (at 1032 – 1033) per O’Connor LJ, Goff and Nourse LLJ agreeing.

63. As Brennan CJ and McHugh J stated in Chakravarti, by 1998 it was common practice in the United Kingdom and in common law jurisdictions in Australia for defendants to plead and seek to justify meanings the plaintiff had not pleaded. [65] Their Honours acknowledged that:

“Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant’s plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise.” [66]

65.    Chakravarti (at [6]).

66.    Chakravarti (at [8]).

64. Gaudron and Gummow JJ referred to Lucas-Box without criticism, observing that since that decision “a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning. [67]

    67.    Chakravarti (at [52]).

65. In Chakravarti the Court held that “a plaintiff could, after pleading specific meanings by way of false innuendo, succeed at trial on a meaning other than the meanings pleaded, provided that the meaning was not substantially different from and was not more injurious than the meanings pleaded, and that the defendant was not in all the circumstances unfairly prejudiced by allowing that meaning to go to the jury”. [68]

    68.    Hore-Lacy (at [52]) per Charles JA; see Chakravarti (at [21]) per Brennan CJ and McHugh J; (at [60]) per Gaudron and Gummow JJ; (at [139](4)) per Kirby J.

66. Chakravarti has been extensively analysed in subsequent authorities considering the question whether, and to what extent, defendants can plead meanings of the matter complained of which differ from the plaintiff’s meanings.

67. The nature of the meanings a defendant could plead in this respect was resolved in Hore-Lacy. [69] In that case Charles JA (with whom Ormiston JA agreed) held that a defendant could rely on “[a] meaning [which] was not substantially different from and was not more injurious than the meanings pleaded [by the plaintiff].” [70] These were described as “nuance” meanings. [71] His Honour held that Brennan CJ and McHugh J’s criticisms in Chakravarti of “the practice sanctioned in Polly Peck, of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff … would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand”. [72]

    69.    Kermode (at [55] – [56]).

    70.    Kermode (at [56]) referring to Hore-Lacy (at [52] – [54], [58] – [59]); per Ormiston JA (at [19] –[22]).

    71.    Kermode (at [56]).

    72.    Hore-Lacy (at [53]); see also Ormiston JA (at [21] – [22]); Hitchcock (at [213] – [236]) per McColl JA (Ipp JA (at [21]) and Tobias JA (at [40]) agreeing).

68. As was made clear in Kermode, “[a]t the time the uniform defamation law was passed throughout Australia David Syme & Co Ltd v Hore-Lacy had been expressly accepted in most common law jurisdictions in this country as stating the extent to which a defendant might plead by way of justification imputations which ‘differed’ from the plaintiff’s”. [73]

    73.    Kermode (at [58]).

69. I do not accept the first respondent’s contention that Hore-Lacy was wrongly decided. That submission depended on reading Lucas-Box as requiring a defendant to give particulars of the meanings contended for in cases of ambiguity. While that was said in Lucas-Box [74] that was only in circumstances where the particulars already given did not make “unequivocal” the case (in the sense of the meanings contended for) the defendant was propounding. As I have said, the underlying premise of Lucas-Box, as reflected in its endorsement in Polly Peck, was that a defendant must state any alternative meanings to be justified to ensure the issues were properly defined. But even if the first respondent’s submission concerning Lucas-Box be accepted, no such limitation can be found in Hore-Lacy, nor did counsel point to any such limitation in the Australian authorities which have applied it. Those cases focus upon pleadings ensuring the issues at trial are clear.

    74. See [60] above.

70. Thus, in Hore-Lacy, Charles JA was of the view that requiring a defendant to plead nuance imputations avoided the plaintiff being caught by surprise and claiming “prejudice or other disadvantage”. [75] Ormiston JA thought it “reduce[d] the potential injustices to a minimum by providing both parties with an efficient but not excessive degree of flexibility”. [76] His Honour outlined, correctly in my view, why “fairness to both sides (and the rules of court) requires particularisation of a case which the defendant will seek to make out in answer to a case based on any meaning of a publication which the jury is entitled to place upon it”. [77] As his Honour said:

“If no such plea and no particularisation were required, there would be endless arguments as to relevance and admissibility when the unannounced evidence was first called or when, as would seem more likely, the matters were put to the plaintiff or its witnesses during cross-examination.” [78]

75. Hore-Lacy (at [58] ] – [59]).

76.    Hore-Lacy (at [24]).

77.    Hore-Lacy (at [5]); see also (at [20] – [21]).

78. Hore-Lacy (at [5]); see also Gumina v Williams (No 2) (1990) 3 WAR 351 (at 355) per Malcolm CJ; (at 367) per Seaman J (with whom Malcolm CJ (his Honour adding some observations) and Pidgeon J agreed); Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 (“Moodie”) (at [9]; [13]) per Anderson J; (at [60]) per Steytler JA (with whom McClure JA agreed); Elliott (at [20]) per Steytler P.

71. Even Callaway JA, who disagreed with the principle the majority endorsed, accepted that “[i]t may occasionally be necessary for a defendant to specify a meaning … in order to make the particulars of justification intelligible.” [79]

    79.    Hore-Lacy (at [71]).

72. As I have said, the practice of both parties pleading imputations developed against the background to which I earlier referred whereby it was open to the jury to determine the defamatory meanings no matter what the parties contended. Nevertheless, it might be accepted that by the time the case is put to the jury, “in most cases … that point would not matter” as “[i]t would be most unlikely that the parties would between them fail to hit upon, at least approximately, all the reasonably open meanings”. [80] Further, it “would be unlikely that the judge would feel any necessity to put to the jury any meaning not covered by the pleadings”. [81]

    80. National Mutual Life Association of Australasia v GTV Corp Pty Ltd [1989] VicRp 66; [1989] VR 747 (“GTV”) (at 768) per Fullagar, Hampel and McDonald JJ; Gaudron and Gummow JJ referred to the second passage with approval in Chakravarti (at [58]).

    81. GTV (at 768); referred to with approval by Malcolm CJ in Gumina v Williams (No 2) (1996) 3 WAR 351 (at 355); see also Moodie (at [41]) per Steytler JA (McClure JA agreeing); Popovic (at [308]).

71. The position the High Court approved in Chakravarti that a plaintiff in defamation proceedings could succeed on an imputation not substantially different from, or more injurious than, that pleaded also reflected the practice under the 1974 Act. As much can be seen from Nicholas J’s reasons in Ron Woodham v John Fairfax Publications Pty Ltd. [82] While, as his Honour said, “[a]t trial the plaintiff is confined to the pleaded imputation and cannot seek a verdict on an imputation with a substantially different meaning”, nevertheless “[n]ecessarily, the plaintiff’s imputation comprehends imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations.” [83] It was no doubt for this reason that it was held that the former Supreme Court Rules 1970 (NSW) Pt 67 r 11(3), “preclude[d] the practice, formerly prevalent, of pleading many shades and gradations of substantially similar imputations”. [84]

    82. [2005] NSWSC 1204 (“Woodham”) (at [11] – [12]).

    83. Woodham (at [11] – [12]); see also Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 (at 676) per Hunt J.

    84. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 771).

72. In accordance with this approach, the questions put to the jury in New South Wales under the 1974 Act asked the jury to determine whether the imputation the plaintiff relied upon, or one which was not substantially different (or like expression), was conveyed by the matter complained of.

73. The position at common law whereby a defendant could plead justification to the matter complained of without being obliged to establish the truth of the specific imputation upon which the plaintiff relied was not open under the 1974 Act. The plaintiff was required to plead, and was bound by, the imputations relied upon which constituted the cause of action. The defendant was also bound by those imputations. [85]

    85.    Morris (at 263 – 264).

Uniform defamation legislation

76. As explained in Kermode, “[t]he 2005 Act and its interstate counterparts were the product of an agreement between the Attorneys General of the States and Territories to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation”. [86] The discussion of the genesis of the uniform defamation legislation does not require repetition, save to emphasise that the agreement reflected the concern of the Attorneys General that “‘the defamation laws in each Australian jurisdiction had progressively diverged since the mid-nineteenth century’, a situation which became unworkable as the borders between the States and Territories ‘collapsed’ under the weight of interstate publication”. [87]

    86.    (at [31] – [40]).

    87.    Kermode (at [31] – [32]).

77. Prima facie, “[i]ntermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on … [uniform national legislation or non-statutory law] unless they are convinced that the interpretation is plainly wrong”. [88] Nevertheless, in construing the 2005 Act, the Court must be guided by the statutory text and should not “slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation”. [89] That does not, however, preclude the Court seeing such decisions as “guides to the meaning of legislation in the court’s jurisdiction”. [90]

    88. Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [135]); see also CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47; (2009) 239 CLR 390 (at [50]) per Gummow, Heydon and Crennan JJ (French CJ and Hayne J agreeing).

    89. Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603 (“Marshall”) (at [62]) per McHugh J; app Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 (at [31]).

    90.    Marshall (at [62]).

78. This is particularly the case where “two” or as in this case, all, “Australian legislatures, largely contemporaneously, adopt similar or identical language in pursuit of a common statutory purpose [in which case] … the coherent development of the law within Australia would not be promoted by the courts of one jurisdiction adopting a different construction to those of another”. [91] The desire for a coherent national approach to defamation law was emphasised by the inclusion of s 6(3) in the 2005 Act applying the general law in relation to the tort of defamation as if the 1974 and 1958 Acts had never been enacted. That provision can be seen as an express instruction not to approach the new defamation paradigm the 2005 Act created from a pre-2005 New South Wales-centric perspective. [92]

    91. Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 (at [289]) per Allsop P, Beazley and Basten JJA.

    92.    See Kermode (at [75]ff) as to the sea-change the 2005 Act wrought to defamation law in this State.

79. Since the enactment of uniform defamation legislation, Hore-Lacy pleading has continued under the new regime. [93] Prima facie, consistently with the principles of comity, this Court should permit that course to be followed in this jurisdiction.

    93. In Madden v Seafolly Pty Ltd [2014] FCAFC 30, a case which applied the Defamation Act 2005 (Vic), the respondent relied on what Rares and Robertson JJ described (at [121]) as “the common law variant of the defence of justification … where both imputations have a common sting in the way developed by the decisions in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 and David Syme & Co Ltd v Hore-Lacy”. It was common ground at trial and on appeal that the respondent could rely on this defence. Their Honours commented that “its legal foundation need not be further considered”; see also Kunoth-Monks v Healy & Anor [2013] NTSC 74; Cripps & Anor v Vakras & Anor [2012] VSC 400; Trkulja v Yahoo! Inc & Anor [2010] VSC 215; Lucas-Box pleadings are clearly part of the defamation landscape in England: see Professor Alistair Mullis and Richard Parkes QC, Gatley on Libel and Slander, 12th ed, (2013) Sweet & Maxwell (at [11.14]).

80. The availability of Hore-Lacy pleading under the Victorian Act was challenged in Setka CA.

81. Setka CA was an application for leave to appeal from a decision of Beach J in which his Honour determined various pleading issues raised by Mr Setka, the plaintiff in defamation proceedings commenced against the Prime Minister, Mr Abbott (albeit at the material time, Leader of the Federal Opposition), and a television channel. [94] The defendants pleaded what his Honour described as “Polly Peck defences”, [95] setting out what they contended “in their natural and ordinary meaning the words meant and were understood to mean”. [96]

    94. Setka v Abbott & Anor (No 2) [2013] VSC 726 (“Setka (No 2)”).

    95.    As will be apparent from what follows, the reference to Polly Peck imputations and/or defences was treated as a reference to a pleading of a justification defence sanctioned in Hore-Lacy: see Setka (No 2) (at [19]).

    96.    Setka (No 2) (at [5]).

82. The plaintiff moved to strike out those meanings among other aspects of the defences first, contending, relevantly that a “Polly Peck defence” was unavailable in law, and/or should be struck out as being embarrassing, and the “Polly Peck” imputations were bad in form. [97]

    97.    Setka (No 2) (at [11]).

83. It is unnecessary to analyse extensively Beach J’s careful reasons for dismissing that aspect of the application as they are, to a large extent, subsumed in the Court of Appeal’s reasons. However there are two aspects of his Honour’s reasons for concluding that “the Hore-Lacy defence remains an available defence following the commencement of the [Victorian] Act” [98] which warrant repetition.

    98.    Setka (No 2) (at [48]).

84. First, his Honour observed that the “additional layer of complexity added by Hore-Lacy defences is well known”, referring to French v Herald and Weekly Times Pty Ltd  [99] and French v Herald and Weekly Times Pty Ltd (No 2). [100] However, he commented that “while the problems created by Hore-Lacy are well known, nothing in the Act suggests that one of the purposes of the Act was to deal in any substantive way with complexity generally or any complexity created by Hore-Lacy defences”. [101]

    99. [2010] VSC 127; (2010) 27 VR 140 (at [13]).

    100. [2010] VSC 155; (2010) 27 VR 171 (at [16]).

    101. Setka (No 2) (at [31]). Note, his Honour also observed (at [34] and see footnote [26]) that juries were asked to answer questions in relation to the pleaded imputations “because under s 22 of the [Victorian] Act damages are now a matter for the judge, and in order to assess damages one must know what imputations have been found by the jury to have been conveyed”.

85. Secondly, Beach J observed that:

“… [O]ne of the rationales for the Hore-Lacy defence is that a plaintiff can recover damages in relation to a permissible variant of a plaintiff’s pleaded imputation. That is, a defendant is at risk of a jury finding for a plaintiff on a permissible variant in circumstances where the jury has accepted the defendant’s argument that the imputation pleaded by the plaintiff was not conveyed. Thus it follows that if a plaintiff may succeed on a permissible variant, a defendant ought to be able to plead any available affirmative defence (in this case truth) to the permissible variant. It may be that a plaintiff could persuade a trial judge that a Hore-Lacy defence should not be left to the jury if the plaintiff specifically eschews any reliance upon the Hore-Lacy imputation as a permissible variant. While the Full Court in Barclay v Cox might not have permitted such a course (on the basis that the meaning of the matter complained of is within the jury’s province), modern trial management might permit of such an approach. Whether it would be realistic to expect a jury to engage in the necessary mental gymnastics may, however, be a different question.” [102]

102.    Setka (No 2) (at [37]).

86. On appeal the Court of Appeal was asked to depart from its decision in Hore-Lacy which the plaintiff submitted did not survive the enactment of the Victorian Act. He argued that s 6(2) of the Victorian Act (in the same terms as s 6(2) of the 2005 Act) preserved common law defences, but not common law procedural matters, and that the Hore-Lacy ‘defence’ was “simply a common law defence of truth with an adjectival or procedural change”. [103] He also contended that Hore-Lacy was impliedly repealed by s 25 of the Victorian Act (in the same terms as s 25 of the 2005 Act), which allows a defendant to plead “truth in substance”. Further, the plaintiff argued, as did the respondent in this Court, that Hore-Lacy had “created ‘layers of complexity and technicality’, which are, in truth, unnecessary” and had articulated “a novel pleading rule, which was bad in law”. [104]

    103.    Setka CA (at [76(2)]).

    104.    Setka CA (at [36] – [37]).

87. The majority (Warren CJ and Ashley JA, with whom Whelan JA agreed in relation to Hore-Lacy justification, [105] subject to a qualification to which I refer below), rejected the submission that the Court should depart from Hore-Lacy. Their Honours considered the majority judgments were correct and also should be followed because it had been considered and applied in considered decisions of other intermediate courts of appeal. [106] Their Honours’ reasons were extensive. I repeat only salient points.

    105.    Setka CA (at [301] – [312]).

    106.    Setka CA (at [42] – [44]).

88. The majority said that Hore-Lacy had been determined in the context of the decisions in Lucas-Box and Polly Peck, and “decided that a defendant should be able to plead a defamatory meaning which, viewed from the plaintiff’s standpoint, and though not pleaded by the plaintiff, would be a permissible variant of the pleaded meaning. Having identified that meaning, the defendant could then seek to justify it.” [107]

    107.    Setka CA (at [56]).

89. Next, the majority held that “a common law defence in [the] form” of Hore-Lacy justification was preserved by the Victorian Act, alternatively “that a pleading in [Hore-Lacy] form is available in pursuing a defence under s 25 of the [Victorian] Act”. [108] Their Honours concluded that the former alternative was preferable because, by virtue of s 6(2) of the Victorian Act (in the same terms as s 6(2)of the 2005 Act), “the general law in relation to the tort of defamation” is given continued operation. [109]

    108.    Setka CA (at [93]; see also [112] – [114]; [125]).

    109. Setka CA (at [114]; see s 6(2), Victorian Act and generally [110] – [116]).

90. The logic of these conclusions lay first, in the fact that at common law a plaintiff had one cause of action based on a defamatory publication and was able to succeed on a meaning albeit that it was not pleaded as long as it was not substantially different from, or more injurious than, the meaning pleaded. [110] As the cause of action under s 8 of the Victorian Act is also the publication of defamatory matter about the plaintiff, it is implicit in that provision that a plaintiff must plead the imputation or imputations upon which he or she relies, but also be entitled to succeed on unpleaded variants, being “a nuance of”, “comprehended by”, “simply a variant of”, “less injurious than”, “not more injurious than”, or “not altering the substance of” the meanings pleaded. [111]

    110.    See Chakravarti (at [21]) per Brennan CJ and McHugh J; (at [60]) per Gaudron and Gummow JJ; (at [139](4)) per Kirby J.

    111.    Setka CA (at [95], [96], [102], [103]; see also at [48]).

91. Secondly, in the majority’s opinion, the expression “the defamatory imputations carried by the matter of which the plaintiff complains” in s 25 of the Victorian Act must be understood as embracing the imputations pleaded and also unpleaded variants in the nuance sense. [112]

    112.    Setka CA (at [107]).

92. Thirdly, the majority was of the view that a defendant seeking to justify which could not plead the imputations it contended were conveyed by the defamatory matter, might be embarrassed if it had to plead substantial truth to all imputations “pleaded or not” which permissibly arose from the publication complained of, because it might have to justify a meaning it said was incapable of arising. Pleading Hore-Lacy imputations made the justification defence clear. [113]

    113.    Setka CA (at [108]).

93. The majority considered the primary judge’s reasons in this case, but was not persuaded that their conclusions that Hore-Lacy justification was preserved as part of the operation of the general law were wrong. In particular, their Honours said they “should not be taken as accepting her Honour’s construction of s 25”. They also noted that her Honour had not referred to the phrase “the defence of justification at common law” in UCPR 14. 31.2(c). Had her Honour done so and concluded that phrase “was intended to and did include an HL justification defence”, they surmised she may have been able to reconcile the obligations imposed by UCPR 14.31(2)(b) and (c)”. [114] Their Honours also took issue with the primary judge’s conclusion that Hore-Lacy could “be explained by the idiosyncratic position taken by the defendants in that case”, [115] with her Honour’s characterisation, as their Honours understood it, of Hore-Lacy “as a peculiarly Victorian (pleadings) manifestation of a justification defence” (noting the case had been held “to accurately state the common law in West Australia, South Australia and the Australian Capital Territory as well as in Victoria” [116] ) and with her Honour’s “fleeting” reference to s 24(1) of the 2005 Act and failure to refer to s 6(2). [117]

    114. Setka CA (at [140]).

    115. Setka CA (at [131]).

    116. Setka CA (at [132]).

    117. Setka CA (at [133]).

94. However, in the majority’s view, even assuming “that imputations are still central to defamation law under the 2005 legislation, that precision is required of a plaintiff in pleading imputations, and that the meaning given by her Honour to s 25 in their Honours’ view, Hore-Lacy pleading still had a role to play in New South Wales in circumstances where a plaintiff may succeed in this State upon an unpleaded variant of a pleaded imputation. [118]

    118. Setka CA (at [139]) referring to the primary judgment in this case (at [40]).

95. The majority rejected the plaintiff’s submission “that Hore-Lacy has led, in effect, to chaos in defamation law” as “not [in] accord with experience”, observing that “[j]udges in this State have been directing juries in accordance with Hore-Lacy for more than a decade” in which time there had been only one appeal from a jury verdict involving [Hore-Lacy] in a case with “unique features”. [119]

    119. Setka CA (at [66]). I note, however, that in French v Herald and Weekly Times Pty Ltd, to which Beach JA referred in Setka (No 2) (at [31]), his Honour acceded to the plaintiff’s application that a defamation case in which the defendant pleaded alternative meanings to those pleaded by the plaintiff should proceed as a judge-alone trial. The reason for his Honour’s decision appears to have lain in his conclusion (at [13] – [17]) that the questions the jury would have to be asked in the light of what he described as the Polly Peck defences, as well as a plea in mitigation, gave rise to “serious and difficult complexities”. There is no doubt that a case involving Lucas-Box/Hore-Lacy alternative meanings requires a “clear, detailed and careful summing up for the assistance of the jury”: see Sutcliffe v Pessdram Ltd [1991] 1 QB 153 (at 169) per Lord Donaldson of Lymington MR (Nourse LJ agreeing). That fact of itself cannot be a reason for concluding a defendant cannot plead nuance imputations.

96. Whelan JA agreed with the majority, relevantly, that the principles articulated in Hore-Lacy were part of the common law of Victoria prior to the passage of the Victorian Act and remained part of the law of defamation in that State. [120] However, in his Honour’s view, the issue Hore-Lacy addressed was one of pleading a justification defence, rather than establishing a separate defence. Accordingly, in his Honour’s view, s 24(1) of the Victorian Act had no relevant operation. [121]

    120.    Setka CA (at [302]).

    121. Setka CA (at [305] – [311]).

97. Because, in Whelan JA’s view, Hore-Lacy principles governed pleadings, if they were correctly applicable to justification at common law, they were applicable to s 25 of the Victorian Act for the same reasons. Accordingly, his Honour agreed with the plurality’s reasons for rejecting the submission that s 25 rendered Hore-Lacy principles unnecessary or otiose. In his Honour’s view, s 6(2) of the Victorian Act confirmed the conclusion that Hore-Lacy pleading principles continued to apply. [122]

    122. Setka CA (at [312]).

Conclusion

98. Lucas-Box reflected the fact that the “ambush theory of litigation” has long since had its day. [123] It emphasised the importance of the function pleading meanings had come to assume in defamation litigation. The decisions of intermediate courts of appeal referred to in these reasons which have developed the principle in Lucas-Box in its application in Australia have done so in recognition of that premise. Avoiding trial by ambush is of particular importance in the context of defamation litigation which, save as to matters of law reserved for judicial determination and the issue of damages, where a party elects for trial by jury pursuant to s 21 of the 2005 Act, is determined by a jury. [124]

    123. White v Overland [2001] FCA 1333 (at [4]) per Allsop J; see also AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited (No 2) [2014] NSWCA 238 (at [30]) per Hoeben JA (Barrett and Ward JJA agreeing).

    124. 2005 Act, s 22. Despite the uniform defamation regime, neither South Australia nor the Australian Capital Territory permit election for trial by jury in defamation proceedings, while the Northern Territory expressly prohibits trial by jury in such cases: Juries Act NT (1980), s 6A. Further, although election for trial by jury in defamation proceedings is available under the Defamation Act (WA) 2005 and in the Federal Court (see Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 (at [25] – [26]) per Rares J), juries are rarely used in either jurisdiction: Patrick George, Defamation Law in Australia (LexisNexis, 2006) (at [17.1]).

198. Curiously, there was only a single passing reference in Setka to the judgment of the High Court in Channel Seven Adelaide Pty Ltd v Manock [221] and that to an entirely peripheral point in the dissenting judgment. [222] (Interestingly, Kirby J in that passage referred to “the dying hours of the common law of defamation in Australia”.)

     221. [2007] HCA 60; 232 CLR 245.

     222.    Setka at fn 143, being an extract from the trial judgment, referring to Kirby J in Manock at [103]-[105].

199. Manock may have been disregarded because it was concerned with the defence of fair comment and not truth. In particular it dealt with the distinction between fact and opinion in relation to that defence. However, the joint reasons of Gummow, Hayne and Heydon JJ, identified, under the heading “Is the meaning pleaded by the plaintiff relevant to the defence of fair comment pleaded by the defendant?” the following propositions: [223]

“The defendant's argument rested on two propositions: (a)    unlike the position in New South Wales, under the now repealed Defamation Act 1974, s 9(2), which rendered each of the plaintiff's imputations a cause of action, at common law the cause of action lies in the words or matter published; (b) the defence of fair comment ‘is not directed to meaning (let alone the plaintiff's imputation). Comment is concerned with the form of expression, that is, comment attracts protection because of the form in which it is expressed. It follows logically that the defence of comment is, and should be, directed to the words or matter complained of, and not the imputations conveyed.’”

223. Manock at [77].

201. The joint reasons held that the pleading did not meet the defendant’s criterion, but continued to identify “Flaws in defendant’s criterion.” [224] In a footnote the reasons noted that: [225]

“There is authority against the defendant's contention. It is contradicted by the following dictum of Brennan CJ and McHugh J in Chakravarti … at [8]: ‘A plea of ... fair comment ... in respect of an imputation not pleaded by the plaintiff does not plead a good defence.’”

224. At [79].

225.    At [79, fn 154].

202. The reasons then noted that “[o]ne vice in the defendant’s argument was that it consisted of, and relied largely on, statements asserting the desired conclusion but without any explanation of why that conclusion followed in principle.” [226] In a lengthy passage, the joint reasons stated: [227]

“Hence the defendant's contention that in this case the meaning pleaded by the plaintiff is irrelevant to the defence of fair comment at common law is wrong. It is wrong because by the time the trial judge comes to consider the fair comment defence the question of meaning will have been decided adversely to the defendant. The meaning found is the comment to be scrutinised for its fairness. … If the defendant's contention were not wrong, it would be open to the defendant to contend that the promotion bore some meaning other than the defamatory meaning which the trial judge had already found, which is impossible. What the Privy Council said in Lloyd v David Syme & Co Ltd,[228] in a case on the Defamation Act 1974 (NSW), is equally applicable to the common law:

‘Comment must have a meaning, and ex hypothesi the [trier of fact is] proceeding on the footing that its meaning is defamatory in the sense of the pleaded imputations which have been found established.’”

226.    At [81] (footnotes omitted).

227. At [83].

228. [1986] AC 350 at 365 (Lords Keith of Kinkel, Elwyn-Jones, Roskill and Griffiths).

203. The reasoning in Chakravarti, picked up and elaborated upon by the joint reasons in Manock, stated that “[a] plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence.” [229] Further, the acceptance by the Court that the principle stated in Lloyd v David Syme by reference to the 1974 Act applies to a common law defence necessarily calls into question any attempt by a defendant to plead the truth of imputations other than those relied on by the plaintiff.

     229. Chakravarti at [8].

Reasoning of primary judge

204. The reasoning of the primary judge for not allowing the defendant to plead imputations which it then sought to justify focused squarely on the rules and practice with respect to pleading imputations, and the manner in which they are left to the jury, in New South Wales. Noting that, despite the repeal of the 1974 Act, (i) a plaintiff is still precluded from pleading imputations which do not differ in substance (r 14.30(3)), (ii) the defendant is required to specify to what imputation the defence of truth is pleaded (r 14.31(2)) and (iii) in alleging that an imputation is true, the defence must include “particulars of the facts, matters and circumstances on which the defendant relies” to establish truth (r 15.22(2)) [230] concluded that the defendant was required to justify the case raised by the plaintiff. [231] That being so, there is no occasion to plead other meanings. [232]

     230.    Judgment at [36]-[38].

     231. Judgment at [39].

     232. Judgment at [49].

205. The trial judge rejected the contention that Hore-Lacy created a specific defence, concluding that it established a principle “relating to the proper manner of pleading the defence of justification at common law.” [233] The judge further noted that the principle accepted in Hore-Lacy arose in response to a complaint by the plaintiff that the defendants asserted that the matter complained of did not mean what the plaintiff said it meant, but would not specify what they said it meant, which they further alleged was true. [234] By contrast, the present case involved no lack of procedural fairness to the plaintiff, requiring further pleading by the defendant but rather a complaint by the plaintiff that the pleading of alternative imputations was embarrassing and likely to give rise to confusion at the trial. [235]

     233. Judgment at [41].

     234. Judgment at [45].

     235.    Judgment at [46], [47] and [49].

206. The primary judge formulated the question to be determined in a number of ways at a reasonably high level of generality. That was done, at least in part, because there were other more specific problems identified by the plaintiff, namely that the defendants had not attempted to specify the imputations to which the alternative imputations related (and to which they were said to be substantially similar) [236] and that they may indeed have been so clearly different in substance that they should not be left to the jury in any event. [237]

     236. Judgment at [29].

     237. Judgment at [31].

207. Putting those particular issues to one side, the primary judge identified “the question of principle” as “whether the approach approved in Hore-Lacy should have any operation in New South Wales.” [238] Responding to that question, she concluded that “the decision in Hore-Lacy has no work to do in New South Wales having regard to the law and practice in this State.” [239]

     238. Judgment at [32].

     239. Judgment at [50].

208. Stating the issue in those terms, it was perhaps inevitable that the defendants would submit that a single judge could not and should not decline to follow intermediate appellate court authority from another State and that she was bound by statements of principle in this Court which approved that authority.

Assessing the appeal

(a)   application of principle

209. It is commonplace for lawyers, especially those operating regularly in specialist areas, to refer to legal principles by the names of cases which are thought to establish them. At least where the precise scope and application of a principle is in question, that practice may lead to error. If the question had been more precisely defined it would have been apparent, as indeed it was from the primary judge’s own reasoning, that a condition for the engagement of the principle was not to be found in New South Wales. Under the UCPR, the plaintiff was required to specify each imputation on which he relied but could not allege two imputations which did not differ in substance. While the jury could travel beyond a strict reading of the plaintiff’s pleading, the jury could not be invited to decide any aspect of the case on a basis that did not conform in substance to the meanings pleaded. That was inconsistent with the premise on which the decision in Hore-Lacy was founded.

210. Counsel for the plaintiff made some play in this Court on the fact that he had invited the defendants to formulate the question encapsulating their imputations which they would seek to leave to the jury. This, he submitted, they had palpably failed to do. The position of the defendants appeared to be as follows: we have sought to establish that imputation X as pleaded by the plaintiff was substantially true; if we have failed in that, we nevertheless say that imputation Y, which is not substantially different from imputation X, is substantially true. However, a jury which, as the primary judge noted, will be asked to decide first whether the plaintiff’s imputations, or imputations which are not substantially different, are conveyed and, if so, are defamatory, would inevitably be puzzled by a question in the form set out in the last sentence. As explained by the trial judge: [240]

“Upon analysis, having regard to the form of question posed in respect of the plaintiff's meanings (and the consequent constraint on the plaintiff to be bound in substance to those meanings), the defendants' reliance upon alternative meanings makes no sense.”

240. Judgment at [50].

211. It follows that the primary judge was not bound to apply Hore-Lacy, not because Hore-Lacy was in any sense wrong, but because the principle it established, once identified by the reference to the condition of its engagement, was not engaged, given the practice and procedures in this State.

(b)   whether binding authority to the contrary

212. The primary judge was clearly concerned that, even if there were no strictly binding authority to the contrary, the conclusion she had reached was inconsistent with dicta in judgments in this Court and in other jurisdictions. However, her concern may be sourced, at least in part, to a second aspect of the manner in which the questions were stated. The principle she identified concerned the manner of pleading “the defence of justification at common law”. [241] That concern extended to the application of the principle “in the context of uniform national law.” However, that requires attention to what are the limits of precise uniformity. If the procedure for pleading varies, there may be a lack of uniformity in outcomes.

     241.    Judgment at [39] and [41].

213. The first case, chronologically, referred to by the primary judge was John Fairfax Publications Pty Ltd v Jones. [242] This case is of little relevance. It was primarily concerned with a defence of contextual truth and whether the imputations pleaded by the defendant were substantially different, as they were required to be, from those pleaded by the plaintiff. So far as interstate defences were concerned, Hodgson JA referred to Polly Peck as authority for two broad propositions: [243]

“First, where the plaintiff selects words from the defendant’s publications and pleads that they have a certain meaning or meanings, the defendant can defend the case on the basis that, in their context, the words bear a different meaning and that in that meaning the words are true. The second proposition is that, where a plaintiff selects words from a the defendant’s publication and alleges that they bear a particular meaning, the defendant can defend on the basis that, even accepting that in their context the words selected by the plaintiff do bear that meaning, they are an inseverable part of an overall defamatory allegation contained in the whole publication, which has a sting common to all the allegations; and the defendant is then entitled to justify that sting, as distinct from the particular component allegation selected by the plaintiff.”

242. [2004] NSWCA 205 (Spigelman CJ, Hodgson and Ipp JJA).

243. At [80].

214. Hodgson JA noted that the status of those propositions in Australia was “unclear”, referring to Chakravarti, Hore-Lacy and other authority. He did not find it necessary to decide whether the critical second proposition derived from Polly Peck was good law in Australia or whether it could apply to the case. [244] The majority, Spigelman CJ and Ipp JA, did not separately address that issue.

     244. At [91].

215. The second case referred to by the primary judge was John Fairfax Publications Pty Ltd v Zunter. [245] This was another case in a line of authorities dealing primarily with a defence of contextual truth under the 1974 Act. With respect to publications in other jurisdictions, the defendant, relying on Polly Peck, alleged a single imputation which was said to be not separate and distinct from the plaintiff’s imputations and true in substance. [246] Handley JA (with whom Spigelman CJ and McColl JA agreed) stated: [247]

“There must be a real doubt as to whether that imputation could answer either of those pleaded by the plaintiff because it is comprised within them and is narrower. However there is no need to consider this defence in detail because at the present time the common law of Australia (John Pfeiffer Pty Ltd v Rogerson …) does not recognise it. It was rejected in Chakravarti,[248] … in dicta which did not receive the express endorsement of the other members of the Court. However those dicta have been followed by intermediate appellate courts in Victoria (… Hore-Lacy …), Queensland (Robinson v Laws [249] ), Western Australia (Nationwide News Pty Ltd v Moodie [250] ), and South Australia (Advertiser-News Weekend Publishing Co Ltdv Manock [251] ). This Court should follow this line of authority and it would be inappropriate for us to re-examine the question. The Judge rightly rejected this defence.”

245. [2006] NSWCA 227.

246. At [41].

247. At [42].

248.    At 526-30 by Brennan CJ and McHugh J

249. [2003] 1 Qd R 81.

250. (2003) 28 WAR 314.

251. (2005) 91 SASR 206.

216. This inconclusive statement took the matter no further.

217. The third case was John Fairfax Publications Pty Ltd v Hitchcock. [252] The critical passage appeared under the heading “Polly Peck” and related to a finding by the primary judge that the publisher’s “inter-state common law defences should be struck out because they sought to justify the matter complained of by pleading the same imputations as were relied on for the purposes of the defence of contextual truth for the purposes of s 16 of the Defamation Act 1974.” [253] This issue did not require extended treatment: as the Court noted, a defendant could plead an imputation as part of a defence of contextual truth if it were substantially different from the plaintiff’s imputations; the possibility of pleading imputations in support of a defence of truth in accordance with Hore-Lacy involved an imputation not substantially different from the plaintiff’s imputations. The matter had been correctly identified and dealt with by the trial judge (Nicholas J) and the challenge was dismissed. [254] Accepting that a defence available under the general law could operate with respect to publication in a jurisdiction not governed by the 1974 Act, there was, nevertheless, no specific consideration of whether practice and procedure relating to pleading in New South Wales was to be determined according to New South Wales law or law of the other jurisdiction.

     252. [2007] NSWCA 364; 70 NSWLR 484.

     253.    Hitchcock at [196] (McColl JA, Ipp and Tobias JJA agreeing).

     254.    Hitchcock at [236], [237] and [239].

218. Hitchcock was handed down one day after Manock in the High Court and, understandably, made no reference to it. Nevertheless, for the reasons indicated above, the support given by the judgment of a majority in Manock to the statement of Brennan CJ and McHugh J in Chakravarti requires that this Court accept the authoritative weight of that statement.

219. Although the reasoning of McColl JA in Hitchcock contained a helpful summary of the authorities in other States, there was no occasion to consider whether those authorities had application in New South Wales. It has not been doubted that, under the 1974 Act, the pleading of imputations by defendants to establish their truth was not appropriate. The authority in support of that proposition was discussed by McColl JA in the next case referred to by the primary judge, namely Fairfax Media Publications Pty Ltd v Kermode. [255] Like Hitchcock, Kermode was ultimately concerned with pleading imputations for the purposes of a defence of contextual truth, albeit pursuant to s 26 of the 2005 Act. Although there was some discussion of principles relating to the defence of truth under the general law, the case turned upon an analysis of s 26. [256]

     255. [2011] NSWCA 174; 81 NSWLR 157 at [62]-[64].

     256.    Kermode at [76]-[85].

220. The most recent decision of this Court relied upon by the appellant was Snedden v Nationwide News Pty Ltd. [257] The article in issue was published before the commencement of the 2005 Act and, accordingly, the proceedings were governed by the 1974 Act. The only part of the judgment relevant for present purposes was that dealing with “the defence of justification at common law – in relation to States and Territories outside NSW.” This discussion encompassed both contextual truth (which was not available outside New South Wales and Tasmania) and the defence of truth under the general law. Noting that “the ‘Polly Peck’ defence is not available in any Australian jurisdiction” [258] McClellan CJ at CL nevertheless considered what was described as “a variant of the Polly Peck defence, termed the ‘ [sic] defence”. [259] The judgment appeared to turn on a criticism of the trial judge for allowing the defendant to plead an imputation “which did not differ in substance from another [plaintiff’s] imputation.” [260] That was not properly a basis for a criticism of a “Hore-Lacy” imputation and hence this aspect of the appeal was dismissed. Again, it appears that terminology describing a form of pleading as a particular defence available in a common law jurisdiction was accepted without consideration of its appropriateness. That omission was understandable; nothing would have turned on such a discussion.

     257. [2011] NSWCA 262 (McClellan CJ at CL, McColl and Macfarlan JJA agreeing).

     258. At [152].

     259. Snedden at [153], referring to the decision of Simpson J in Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139.

     260. Snedden at [160].

221. Nothing in these authorities purported to address the issues which were raised before the primary judge. Each authority was relevantly directed to another issue, namely a defence of contextual truth in New South Wales or the availability of truth under the general law as a defence in another jurisdiction. None focused upon, because none needed to focus upon, the question whether Hore-Lacy created a new defence available under the general law separate from truth under the general law, nor as to how it should be pleaded in this State. There is an easy elision between discussion of a defence and discussion of pleading a defence. Had any of the cases referred to above been directed to the difference between substance and procedure for the purposes of choice of law rules, that elision would have become significant. However, none was concerned with that distinction and the elision was immaterial.

222. Two further points follow from this conclusion. First, once the issue was raised, it was necessary for the primary judge to deal with the question of whether Hore-Lacy identified a defence or a manner of pleading the conventional defence. She understood it to fit the latter category (namely, a permissible manner of pleading) which, in choice of law terms, must be governed by the local law. Secondly, applying this jurisdiction’s rules with respect to pleading, the primary judge concluded, correctly, that nothing conferred on a defendant an unqualified entitlement to plead imputations which it claimed to be true. In that circumstance, it was open to the primary judge to conclude that the pleading had a tendency to cause prejudice, embarrassment or delay in the proceedings and to strike it out pursuant to r 14.28 of the UCPR.

216. The submissions in this Court were directed to the question whether, because the reasoning in Hore-Lacy provided a specific defence, the defendants were entitled to plead that defence. Once that was rejected, no ground was identified which would demonstrate error in the exercise of discretion in making the impugned order.

(c)   other authorities

224. Decisions to similar effect to Hore-Lacy in other jurisdictions, even if found in judgments of intermediate courts of appeal, did not bind the primary judge to let the pleading stand. While it is true that a single judge should follow the decision of an intermediate court of appeal in respect of the operation of uniform legislation, unless convinced it is “plainly wrong”, [261] that principle should not be taken beyond its proper limits. No case dealt with the distinction between the defence and the manner of pleading the defence under the general law; no case dealt with the practice and procedure for pleading justification in New South Wales.

     261. Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492.

225. There remains an issue which was not squarely addressed in this Court because it did not arise, namely the possibility that even where the plaintiff pleads imputations (as indeed he or she must) a defendant can nevertheless demonstrate that the publication, taken as a whole, was true. That is in substance the position expressly established by s 8(3) of the Defamation Act 1992 (NZ) considered by the New Zealand Court of Appeal in Television New Zealand Ltd v Haines. [262] That, like the present case, was an appeal from the decision of a trial judge refusing to permit the defendant (the appellant publisher) from pleading and justifying its own imputations. The judgment of the Court, delivered by Robertson J, upheld the approach of the trial judge in the following passages:

     262. [2006] 2 NZLR 433.

“[57]   If the plaintiff succeeds on one or more specified imputations, then a defendant may defend itself, in terms of s 8(2)(a), by satisfying the trier of fact that the imputation is true or not materially different from the truth. It is insufficient for a defendant at this point to suggest that, even though the words are capable of bearing the defamatory meaning complained of, they also bear a lesser meaning, which may be proven to be true. This is for two reasons.

[58]   First, proving the truth of a lesser meaning would not have an effect on the defamatory meaning pleaded by the plaintiff, and the defamatory meaning would remain undefended. As a matter of logic, a defence must always be a defence to something. In cases of defamation that something is the defamatory imputations pleaded by the plaintiff.

[59]   Secondly, a parallel inquiry into something about which the plaintiff is not complaining is unhelpful and potentially confusing for the jury.

[60]   In his written submissions, Mr Akel contended:

‘It is wrong that a defamation case should be defined solely by a plaintiff when the publication is there for all to see. Requiring rigid adherence to the plaintiff’s pleaded imputations is to permit form to triumph over substance.’

[61]   There is a danger of becoming enmeshed in the nuances and semantic distinctions which have bedevilled this subject and for minute case analysis to be permitted to dominate. Rather, it is prudent to consider the conceptual framework which applies in all litigation.

…

[67]   We note that TVNZ still has the ability under s 8(3)(b) to mount as a defence the argument that the broadcast as a whole was true.”

226. That reasoning, although undertaken in a context in which the Court had previously (and prior to the statutory reforms) declined to follow Polly Peck and Lucas-Box,[263] involved an application of the fundamental principle identified by Brennan CJ and McHugh J in Chakravarti [264] and approved in Manock. That reasoning conforms to that adopted by the primary judge, finds support in the High Court and is persuasive.

     263. Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234 (Cooke P, Richardson, McMullin, Somers and Bisson JJ), a judgment delivered by Cooke P.

     264. See [29]-[31] and [63]-[64].

(d)   where plaintiff does not plead imputations

227. One circumstance in which a common law defence of justification may be available is where the plaintiff has not identified particular defamatory imputations. Whether that course is permissible in this State and whether, if the plaintiff does not plead imputations, s 25 is not engaged are questions which need not be determined in this case. Dr Bateman did plead specific imputations and there is no dispute that s 25 is engaged.

Conclusions

228. Although the application before this Court is for leave to appeal from an interlocutory decision on a question of pleading, the foregoing discussion demonstrates that the issues raised by the defendants involve matters of principle with potential significance to pleadings in defamation cases in this State which tended to arise only incidentally prior to the enactment of the 2005 Act. Accordingly, the defendants should have leave to appeal. Nevertheless, for the reasons explained above, the appeal should be dismissed.

229. The Court should make the following orders:

(1)   Grant the applicants leave to appeal from the orders made by McCallum J in the Common Law Division on 9 October 2014.

(2)   Direct that the applicants file a notice of appeal in the form of the draft notice of appeal contained in the white book within seven days.

(3)   Dismiss the appeal.

(4)   Order the applicants to pay the respondent’s costs of the proceedings in this Court.

230. MACFARLAN JA:   I agree with Basten JA that, essentially for the reasons that his Honour gives, leave to appeal should be granted but the appeal should be dismissed.

231. As is apparent from his Honour’s judgment, the decision in Hore-Lacy was founded on the proposition that a plaintiff in defamation proceedings is entitled to rely upon unpleaded imputations so long as they do not differ in substance from those pleaded in his or her statement of claim ([190]-[195] above and, in particular, [2], [5], [23], [46] and [69] of Hore-Lacy). This proposition is unsound in the context of NSW practice as rule 14.30(2)(a) of the Uniform Civil Procedure Rules (NSW) (“UCPR”) requires a statement of claim to “specify each imputation on which the plaintiff relies”. That a degree of latitude is allowed to the plaintiff in the construction of his or her pleading of imputations is reflected in rule 14.30(3) which precludes a plaintiff from pleading imputations not differing in substance from each other. Those pleaded are thus taken to include others which are to substantially the same effect and the plaintiff is not confined to the precise terms of the imputations pleaded. This was the view that this Court took in Morosi v Mirror Newspapers Ltd in relation to proceedings under the 1974 Act (at 771C-D; see [169] above). It reflects the appropriate, commonsense approach to the construction of pleadings generally: rather than adopting a technical approach to their construction, regard should be had to the substance of the matters pleaded.

232. This latitude does not detract from the basic requirement of the UCPR that the imputations upon which a plaintiff relies are to be pleaded. Once that is acknowledged, the rationale given in Hore-Lacy for allowing a defendant to plead imputations alleged to be not substantially different from the plaintiff’s pleaded imputations disappears. That rationale is that if the plaintiff can succeed on unpleaded imputations, the defendant should be able to plead and justify them.

233. Rule 14.31(2) of the UCPR requires defences of justification and contextual truth to be related to particular imputations in the statement of claim and rule 15.21(1) requires a defence to provide particulars of “the facts, matters and circumstances on which the defendant relies” to establish truth and contextual truth defences. As proof of substantial truth suffices for a defence of justification, and for its pleading (see section 25 of the 2005 Act and rule 14.32(2)), full compliance with this obligation to provide particulars should make apparent any respect in which the defendant’s justification defence will be directed, not at a plaintiff’s imputation as precisely pleaded, but at an imputation to substantially the same effect. The defendant should ensure that its particulars achieve this so that it complies with its obligation under rule 15.1(1) to provide such particulars “as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet”.

234. The defence filed in the present case did not conform to these principles as it pleaded, as a defence separate from the defences of justification under section 25 of the 2005 Act and the common law, and of contextual truth under section 26 of the 2005 Act, a defence described as “COMMON LAW – HORE-LACY”. This defence pleaded imputations alleged not to differ in substance from those pleaded by the first plaintiff and asserted that they were substantially true. The primary judge was thus correct to strike the defence out.

235. Apart from its inconsistency with the UCPR, such a defence is liable to interfere with the orderly disposition of the proceedings by encouraging defendants to take too broad a view of what constitutes an imputation not differing in substance from one pleaded by the plaintiff. If alternative imputations sought to be relied upon by a defendant are truly to the same effect as those pleaded by the plaintiff, the defendant’s rights will be adequately protected by its ability to submit to the jury in address that the evidence establishes the substantial truth of the plaintiff’s imputations. The plaintiff will have been put on notice of the defendant’s case by the defendant’s compliance with its obligation under r 15.21(1) to provide particulars of the facts, matters and circumstances upon which it relies in support of its plea of justification. There is no warrant for complicating the proceedings by permitting the defendant to plead such alternative imputations separately, and requiring the jury to consider them separately from those upon which the plaintiff relies. The defendant’s rights are of course further protected by its ability to rely upon a defence of contextual truth where imputations differing in substance from those pleaded by the plaintiff arise out of the publication and it asserts that they are substantially true (see section 26 of the 2005 Act).

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Endnotes

Decision last updated: 04 June 2015