Fairfax Media Publications Pty Ltd v Bateman

Fairfax Media Publications Pty Ltd and another sought leave to appeal to the Court of Appeal of New South Wales against orders made by McCallum J striking out the defendants' defence in defamation proceedings brought by Mr Bateman. The primary dispute concerned whether the defendants were entitled to plead and attempt to justify alternative imputations of fact in their defence, which were alleged to be not substantially different from those pleaded by the plaintiff.

The Court of Appeal was required to determine whether the common law defence of justification, as it existed prior to the Uniform Defamation Acts, permitted a defendant to plead and justify imputations that were not identical to those pleaded by the plaintiff, provided they were not substantially different. Further, the Court had to consider whether the Uniform Civil Procedure Rules 2005 (NSW), specifically rules 14.30-14.32, precluded such pleading, and how the Defamation Act 2005 (NSW) preserved the "general law" and its interrelationship with common law defences.

The Court reasoned that the decision in *David Syme & Co Ltd v Hore-Lacy* [2000] 1 VR 6 did not establish a separate common law defence of justification but rather affirmed the existing principles. It held that a defendant is not bound by the plaintiff's pleadings and may plead and justify alternative imputations, provided they are not substantially different from those alleged by the plaintiff. The Court found that the Uniform Civil Procedure Rules did not preclude such pleading and that the "general law" preserved by the Defamation Act 2005 (NSW) included the common law as it stood, including the ability to plead alternative imputations.

The Court of Appeal granted leave to appeal but ultimately dismissed the appeal, ordering the applicants to pay the respondent's costs.