Fairfax Media Publications Pty Ltd v Kermode

The appeal before the New South Wales Court of Appeal concerned a defamation action brought by the respondent, Mr Kermode, against the appellant, Fairfax Media Publications Pty Ltd. The dispute centred on the application of the defence of contextual truth under the *Defamation Act 2005* (NSW).

The primary legal issue was the extent to which a defendant, in raising the defence of contextual truth, could plead and seek to justify imputations that were not the primary imputations relied upon by the plaintiff. Specifically, the court had to consider whether the wording of section 26 of the *Defamation Act 2005* (NSW) permitted a defendant to "plead back" imputations beyond those central to the plaintiff's claim, in order to establish that the defamatory matter, when considered as a whole, did not further harm the plaintiff's reputation.

The Court of Appeal, in dismissing the appeal, reasoned that the defence of contextual truth under section 26 of the *Defamation Act 2005* (NSW) operates by requiring the defendant to demonstrate that the defamatory matter, when taken as a whole, did not further harm the reputation of the plaintiff because of the presence of other substantially true imputations. The court interpreted the phrase "in addition to" within the context of the section to mean that the defendant could rely on other imputations that were substantially true, even if those imputations were not the ones the plaintiff primarily relied upon. This interpretation was informed by the legislative intent behind the uniform defamation laws, which sought to balance common law principles with statutory provisions, and by the jurisprudence developed under the previous *Defamation Act 1974* (NSW). The court concluded that the appellant had not established grounds for appeal.