Fleming v Advertiser-News Weekend Publishing Company Pty Limited - [2010] SASC 255

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LIMITED AND ANOR
[2010] SASC 255
Judgment of Judge Burley a Master of the Supreme Court
18 August 2010
DEFAMATION
Application to strike out defence - sufficiency of particulars - conduct rule - repetition rule - defence of contextual truth - whether contextual imputations capable of constituting the defence.
Defamation Act 2005 (SA) s 24, referred to.
Channel Seven Adelaide Pty Ltd v S, D J (2007) 248 LSJS 75; Sands v Channel Seven Adelaide Pty Ltd & Anor (2009) 104 SASR 452; Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, considered.

FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LIMITED AND ANOR
[2010] SASC 255

JUDGE BURLEY. These are defamation proceedings. The plaintiff has made an interlocutory application for an order that the defence of the defendants be struck out. At the hearing of the application Mr Heywood-Smith QC appeared for the plaintiff and Mr Harris QC for the defendants.
Prior to the commencement of submissions, Mr Harris sought leave to amend the current defence. That application was initially opposed but, at my suggestion, the plaintiff agreed to the amendments being introduced into the defence subject to the plaintiff’s right to contend, on the strike out application, that those amendments should be struck out.
The plaintiff alleges that on five separate occasions between August 2008 and August 2009, the first defendant published articles referring to alleged sexual activity (or investigations relating to such allegations) between the plaintiff and two females and one male. The publications allege the commission by the plaintiff of criminal offences (underage sex) and immoral sexual activity (taking sexual advantage of persons in the pastoral care of the plaintiff).
Mr Harris provided me with a copy of the newspaper articles which contain the allegedly defamatory material. It is apparent that the plaintiff, in identifying allegedly defamatory material, has picked out a few passages from what is a relatively lengthy series of articles.
It is common ground that there were five publications by the first defendant in “The Sunday Mail”, four of which were published by the second defendant on its website.
By paragraph 14 of the Amended Statement of Claim the plaintiff pleads:
14.In their natural and ordinary meaning, the words in the first to the fifth publications published by the first Defendant and the first to the fourth web publications published by the second Defendant meant and were understood to mean:
(1) that the Plaintiff had committed criminal offences of unlawful sexual intercourse; alternatively
(2) that there were reasonable grounds to suspect that the plaintiff had committed criminal offences of unlawful sexual intercourse.
Those assertions are denied in paragraph 14 of the amended defence.
Paragraph 15 of the amended defence pleads:
15.In the alternative, [sic] to the denial set forth in paragraph 10 [sic] herein if the imputations …
I think there are typographical errors in that passage. It should read:
15.In the alternative to the denial set forth in paragraph 14 herein, if the imputations …
Read in this manner paragraph 15 of the amended defence pleads:
15.In the alternative to the denial set forth in paragraph 14 herein, if the imputations alleged in paragraph 14(1) and 14(2) of the Further Amended Statement of Claim arise, then the Defendants say such imputations are true in substance and in fact.
Particulars of this assertion are contained in subparagraphs 15.1 to 15.14 of the amended defence. It constitutes the defence of justification to the plaintiff’s imputations.
From paragraph 16 onwards the defendants raise the further alternative defence based on s 24 of the Defamation Act 2005 (SA), which is as follows:
24—Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
Paragraph 16 of the amended defence is as follows:
16.In the further alternative, if the first publication or the first web publication conveyed either of the imputations alleged in paragraph 14 of the Further Amended Statement of Claim, then the Defendants say the first publication and the first web publication in their natural and ordinary meaning additionally carried the following contextual imputations :- (‘the First Article Contextual Imputations’).
There are then pleaded in subparagraphs 16.1 to 16.7 the contextual imputations in relation to the first article.
Paragraph 17 of the amended defence asserts that the First Article Contextual Imputations are substantially true. In paragraph 18 particulars are given in 17 subparagraphs as to the factual basis upon which it is said that the contextual imputation referred to in paragraph 16.1 is substantially true.
Paragraphs 19, 20, 21, 22, 23 and 24 set out the particulars upon which the defendants rely to establish that the contextual imputations referred to in paragraphs 16.2 to 16.7 are substantially true.
By paragraph 26 of the amended defence the defendants plead:
26.In the alternative to the denial set forth in paragraph 14 herein, if the second publication or the second web publication conveyed the imputations alleged in paragraph 14(1) and 14(2) of the Further Amended Statement of Claim, then the Defendants say that such imputations are true in substance and in fact.
This is a plea of justification of the plaintiff’s imputations, but confined to the second publication. This is hard to follow because, as I understand it, paragraph 15 of the amended defence seems to be a plea of justification of the plaintiff’s imputations in respect of all publications.
Particulars are then given (at subparagraphs 26.1 and 26.2) in relation to subparagraph 14(1) of the Further Amended Statement of Claim. (The defence refers to subparagraph 14.1 but I take this to be reference to subparagraph 14(1) of the Further Amended Statement of Claim.) Under the heading “Particulars” in paragraph 26 of the amended defence, reference is made to subparagraph 14.2 of the Further Amended Statement of Claim. (Again, I take this to be a reference to subparagraph 14(2) of the pleading.) The particulars provided consist of a repeat of what is alleged in subparagraphs 15.1 to 15.14 of the amended defence.
It seems to me that the cumulative effect of paragraphs 15 and 26 of the amended defence is that two sets of particulars are provided in relation to the contention that the imputations asserted by the plaintiff in subparagraphs 14(1) and 14(2) of the Further Amended Statement of Claim are true in substance and in fact by reference respectively to subparagraphs 15.1 to 15.14 and subparagraphs 26.1 to 26.2 of the amended defence. This sequence of paragraphs is repeated as the amended defence progresses: paragraph 37 is a plea of justification (confined to the third publication) of the plaintiff’s imputations; paragraph 47 is a plea of justification (confined to the fourth publication) of the plaintiff’s imputations; and so on. There is no such plea relating to the first publication. This is confusing and, although the difficulty was not raised by Mr Heywood-Smith, I consider that whatever the result of this strike-out application, the various paragraphs should, in due course, be amended to remove the confusion.
The plaintiff made other criticisms of these paragraphs which it will be necessary to deal with later in these reasons.
By paragraph 27 of the amended defence the defendants have pleaded their contextual imputation defence in relation to the second article. Between paragraphs 27 and 31 the defendants have adopted the same pleading approach taken in relation to their defence of contextual imputations in respect of the first article.
Unlike the contextual imputations defence maintained in respect of the first article, the defendants in respect of the second article, also raise a defence based on “the Second Article Contextual Imputations by Innuendo”. The pleading of this defence has not been directly challenged. The imputations by innuendo are pleaded and particulars of how the imputations by innuendo are said to arise are given (at subparagraph 32.3). Paragraph 33 asserts that those imputations are substantially true and particulars are given in relation to subparagraphs 32.1 and 32.2.
The balance of the amended defence adopts the same sequencing of paragraphs to raise the alternative defence of justification and the further alternative defence of contextual imputations between paragraphs 37 and 58 of the amended defence. Imputations by innuendo are only raised in relation to the second publication.
It is against this background that the plaintiff makes four complaints in respect of the pleading as a whole:
First, it was contended that the particulars of justification of the pleaded imputations are in breach of the “conduct” and “repetition” rules;
Secondly, the defence based on contextual imputation is not available to the defendants;
Thirdly, that the defendants have not disclosed the identity of the persons referred to by way of pseudonym in the pleading; and
Fourthly, in relation to particulars provided, some of the particulars are insufficient and, in relation to others, do not support the contextual imputation in respect of which they are given.
The Conduct and Repetition Rules
The first point pursued by the plaintiff involves an examination of concepts referred to as the conduct rule and the repetition rule. Whether they actually are rules is probably not important. They are, at the least, a statement of the approach to be taken to particular types of pleading in defamation proceedings.[1] The conduct rule relates to the plea of an imputation that “there were reasonable grounds to suspect” the occurrence of a given act. This is the pleading in subparagraph 14(2) of the Further Amended Statement of Claim. A particular pleaded to support such a plea must be focused on the conduct of the plaintiff as opposed to the opinion of a third party.[2] Circumstantial evidence of conduct is permitted.[3]
[1] Channel Seven Adelaide Pty Ltd v S, D J (2007) 248 LSJS 75 at [40] per Perry J.
[2] Ibid at [41] per Perry J.
[3] Sands v Channel Seven Adelaide Pty Ltd & Anor (2009) 104 SASR 452 at [113].
The repetition rule may also arise for consideration where an allegation is made that there were reasonable grounds to suspect the occurrence of a given act. Perry J said:[4]
A claim that the plaintiff has been defamed can never be answered by an assertion that the defendant is only repeating what others have said. …
[4] Channel Seven Adelaide Pty Ltd v S, D J (2007) 248 LSJS 75 at [43].
At paragraph 2.3 of the plaintiff’s written submissions, reference is made to subparagraphs 15.3 – 15.6 of the amended defence. The relevant parts of paragraph 15 are as follows:
15.In the alternative, to the denial set forth in paragraph 14 herein, if the imputations alleged in paragraph 14(1) and 14(2) of the Further Amended Statement of Claim arise, then the Defendants say such imputations are true in substance and in fact.
PARTICULARS
As to paragraph 14(1) of the Further Amended Statement of Claim:
15.1. Between about 1970 and 1975, the Plaintiff on multiple occasions had oral sexual intercourse with a girl aged between 13 and 18 (‘Jane’).
15.2. The conduct referred to in paragraph 15.1 occurred at the plaintiff’s flat at St Mark’s College, North Adelaide and in the plaintiff’s car at South Brighton.
As to paragraph 14(2) of the Further Amended Statement of Claim
15.3. Jane alleged that between about 1970 and 1975, the plaintiff on multiple occasions had oral sexual intercourse with her.
15.4. The conduct referred to in paragraph 15.3 was alleged to have occurred at the plaintiff’s flat at St Mark’s College, North Adelaide and in the Plaintiff’s car at South Brighton.
15.5. Jane was credible.
15.6. Jane’s account of the relationship was consistent with complaints of sexual misconduct concerning the Plaintiff as set out in paragraphs 18 and 20 herein.
I put to one side for the moment the confusion (referred to above) arising from a comparison of paragraphs 15 and 26 of the amended defence. Subparagraphs 15.3 – 15.6 purport to be particulars relating to the defendants’ contention that the imputations in subparagraph 14(2) of the Further Amended Statement of Claim are true. Subparagraph 14(2) is the “reasonable grounds to suspect” imputation. If justification is relied upon, the defendants must prove the primary facts giving rise to the reasonable grounds for suspicion. Such facts are to be viewed objectively.[5]
[5] Ibid at [41].
If the particulars in subparagraphs 15.3 – 15.4 are allowed to stand, the defendants could adduce evidence, as part of their defence of justification, of allegations made by Jane as opposed to allegations focusing on the plaintiff’s alleged conduct. In addition, subparagraphs 15.3 – 15.4 are a repetition of allegedly defamatory statements. In my opinion, these particulars fall foul of both the conduct and repetition rules. They would not do so if the word “alleged” is removed but that observation merely emphasises the defect in the particular. The assertion is not focused on the plaintiff’s conduct and it repeats an allegedly defamatory statement. For those reasons, I consider that subparagraphs 15.3 and 15.4 should be struck out.
As to subparagraph 15.6, it refers to “Jane’s account of the relationship”. Whilst the particular may not offend the repetition rule, it does offend the conduct rule. It is focused, not on the plaintiff’s alleged conduct, but on an account by Jane. It should be struck out.
Subparagraph 15.5 is dependent upon subparagraphs 15.3, 15.4 and 15.6. It should also be struck out.
Mr Heywood-Smith submitted, and I agree, that where, in the other parts of the amended defence, reference has been made either generally to paragraph 15 or specifically to subparagraphs 15.3 – 15.6, that part of the pleading should be struck out. This applies to subparagraphs 26.3 and 37.3, paragraph 45, subparagraphs 47.3 and 56.3, and paragraph 60.
When referring later in these reasons to the particulars which purport to support the contextual imputations, I make it clear that I do not take into account references to paragraph 15 or any of the subparagraphs thereof which have been the subject of a determination by me that they must be struck out.
Mr Heywood Smith, in his oral submissions, referred to parts of paragraph 41 of the amended defence which he contended contravened the conduct and/or repetition rules. This paragraph does not deal with the plaintiff’s imputations set out in paragraph 14 of the Further Amended Statement of Claim. It deals with contextual imputations pleaded by the defendants.
The plaintiff submitted that parts of paragraph 41 should be struck out because the pleading contravened either or both of the repetition and conduct rules. Mr Heywood-Smith referred specifically to subparagraphs 41.1, 41.2, 41.4, 41.5 and 41.6. In my opinion, these subparagraphs offend both rules because they purport to be particulars supporting the plea in subparagraph 38.2 that a contextual imputation arose from the third article, namely:
38.2.The plaintiff was suspected on reasonable grounds of, while an Anglican priest, being sexually involved with two girls – one underaged – and of having had a homosexual affair;
The defect consists of a repetition of allegations. Mr Heywood-Smith referred generally to paragraph 41. He submitted that where, in the particulars, the defendants repeated allegations, those subparagraphs should be struck out. I agree with that submission. Consequently, subparagraphs 41.7, 41.8, 41.9, 41.10, 41.17, 41.18, 41.20, 41.21, 41.23, 41.24 and 41.25 should be struck out.
Defence – Contextual Truth
Both parties referred to Jackson v John Fairfax & Sons Ltd[6]. In that case, Hunt J dealt with s 16 of the Defamation Act 1974 (NSW), part of which is contained in s 24 of the Defamation Act 2005 (SA). The following passage is about the provisions common to both sections:
The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff’s imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant’s contextual imputation upon the plaintiff’s reputation that the publication of the imputation of which he complains did not further injure his reputation.[7]
[6] [1981] 1 NSWLR 36.
[7] Ibid at 39A.
This passage is equally applicable to s 24 of the South Australian Act. In the amended defence, where the defence of contextual truth is relied upon, it is pleaded as a further alternative and on the assumption that “the plaintiff’s imputation is otherwise indefensible”.
Section 24 refers to “one or more other imputations”. The effect of this passage is that the contextual imputations relied upon by the defendant must be different from the imputations alleged by the plaintiff. This was accepted by Hunt J when he said[8]:
It is, in my view, basic to the scheme of s 16 that both of the imputations in question (that is, the imputation pleaded by the plaintiff and the contextual imputation pleaded by the defendant) must be conveyed by the matter complained of at the same time and that each must differ in substance from the other. …
[8] Ibid at 39G.
Hunt J discussed, by providing examples, the concept of the plaintiff’s defamatory imputations doing no “further harm [to] the reputation of the plaintiff because of the substantial truth of the contextual imputations”. He said[9]:
An easy example is the publication which describes the plaintiff (falsely) with having been charged with a criminal offence and which, by reason of additional material, also imputes (truly) that he is guilty of such offence. If the plaintiff sued and complained only of the imputation conveyed by the assertion that he had been charged with that offence, it would be open to the defendant, in accordance with s 16, to plead the contextual imputation that the plaintiff was in fact guilty of such an offence and that such contextual imputation was substantially true. … [T]he defendant would succeed in the action complaining of the publication of the imputation pleaded by the plaintiff (and based upon the untrue assertion that he had been charged) if the jury were satisfied that, by reason of the substantial truth of the defendant’s contextual imputation, the untrue imputation pleaded by the plaintiff did not further injure his reputation.
In coming to that decision, the jury would be required to weigh or to measure the relative worth or value of the several imputations pleaded by both the plaintiff and the defendant. There is little doubt that in this example the jury would find that, by reason of the substantial truth of the contextual imputation pleaded by the defendant, that pleaded by the plaintiff did not further injure his reputation.
At the other end of the scale is the publication which describes the plaintiff (falsely) as a blackmailer and (truly) as having unlawfully remained in the country on an expired visa. If the plaintiff sued and complained only of the assertion that he was a blackmailer, a defence of contextual truth based upon the imputation that the plaintiff was an illegal immigrant would be doomed to failure. It would, in my view, be open to the trial judge in such circumstances to take such a defence away from the jury because there would be no rational basis upon which the jury could find in favour of the defendant. …
In between these two extremes there must, of course, be many degrees. If the publication described the plaintiff (falsely) as a share swindler and (truly) as a rapist, the jury could well have considerable difficulty in weighing or measuring the relative worth or value of the two imputations conveyed. In those circumstances, it seems that the trial judge would be obliged to leave the issue to the jury.
[9] Ibid at 39B.

It seems to me that what his Honour said in relation to a trial judge leaving or not leaving a particular matter to the jury applies with equal force to an application to strike out a pleading on the basis that the contextual imputations are not capable of supporting the defence of contextual truth.
It goes without saying that the defendants must establish the substantial truth of those imputations. The sufficiency of the pleadings is judged by reference to the content of the pleading and proceeds on the assumption that the defendants are able to establish the substantial truth of the imputations.
Paragraph 16 of the amended defence is as follows:
16.In the further alternative, if the first publication or the first web publication conveyed either of the imputations alleged in paragraph 14 of the Further Amended Statement of Claim, then the Defendants say the first publication and the first web publication in their natural and ordinary meaning additionally carried the following contextual imputations :- (‘the First Article Contextual Imputations’).
16.1. The plaintiff engaged in sexual misconduct while an Anglican priest in that he had a homosexual relationship for years with a young male who had sought counselling from him over his sexuality;
16.2. The plaintiff abused his position of trust as an Anglican priest and engaged in immoral behaviour by having a lengthy homosexual relationship with a young male who had sought counselling from him over his sexuality.
16.3. The plaintiff was sexually predatory in that while an Anglican priest he engaged in sexual activity with a woman and a man who had sought counselling from him;
16.4. The plaintiff while an Anglican priest, engaged in sexual misconduct with two girls, one underaged, in the 1970’s;
16.5. The plaintiff was a hypocrite in that he held himself out as a moral, trustworthy and righteous man when the truth was that he was immoral, untrustworthy and sinful.
16.6. The plaintiff engaged in reprehensible sexual misconduct while an Anglican priest.
16.7. The plaintiff engaged in unlawful sexual behaviour while an Anglican priest.
It is clear that subparagraph 16.4 of the amended defence cannot stand because it cannot be said to be an imputation different from that contended for by the plaintiff. Paragraph 21 supports subparagraph 16.4 and must fall with it.
Paragraph 16 consists of the defence of contextual truth sought to be raised by the defendants in respect of the first publication. It is therefore necessary to make a comparison between the plaintiff’s imputations and the contextual imputations. The former are set out in subparagraphs 14(1) and 14(2) of the Further Amended Statement of Claim.
The plaintiff’s imputations arise from all five articles, but the defence in paragraph 16 of the amended defence is confined to the first of those articles. This means that, for the purposes of this application, the comparison to be made is between the plaintiff’s imputations by reference to the first article and the contextual imputations said by the defendants to arise from the first article. I express a certain unease in taking such an approach because the plaintiff’s imputations are derived from all of the articles taken cumulatively, whereas the defendants have pleaded the contextual truth defence in relation to each of the articles. It may be artificial (even incorrect) to approach the arguments respectively put by the plaintiff and defendants in this way, but it is nevertheless necessary to adopt such an approach given the structure of the amended defence and the manner in which argument was presented at the hearing.
The plaintiff selected three passages from the first article as being defamatory: firstly, an allegation that he was being investigated for sexual involvement with teenage girls; secondly, that there was misconduct involving two girls, one of whom was underaged; and, thirdly, that the revelations came six weeks after a Papal apology to Australian victims of sexual abuse. Because contextual truth is a defence based on an acceptance that the plaintiff’s imputations have been made out, the defendants assert that the effect of the alleged conduct referred to in subparagraphs 16.1 to 16.7 of the amended defence is such that “the publication of the imputation of which he [the plaintiff] complains did not further injure his reputation”[10]. Mr Heywood-Smith said that the comparison was between unlawful sexual intercourse and lawful sexual activity.
[10] Ibid at 39B.
In considering these arguments, it is necessary to bear in mind that the question of whether or not the defence of contextual truth is made out is a jury question. The judge, in that capacity, must make an assessment as to whether or not the contextual imputations are such that the plaintiff’s imputations do not further harm the reputation of the plaintiff. This is not a case of the type referred to by Hunt J in Jackson where it could be said that a jury, if it were satisfied as to the substantial truth of the contextual imputations, would undoubtedly find that the defence had been made out. The comparison in this case is between, on the one hand, the plaintiff’s imputations that the plaintiff had committed a criminal offence or that there were reasonable grounds to suspect the plaintiff of having committed a criminal offence, namely unlawful sexual intercourse with an under-age girl, and, on the other hand, the cumulative effect of allegations of predatory sexual misconduct, both heterosexual and homosexual, with a man and a woman in his pastoral care. When the comparison is put in those terms, it does not seem to me that the defence of contextual truth should be withdrawn from the jury in relation to the first article or, as in this case, removed from the defence. The alleged conduct referred to in the contextual imputations, is, in my view, capable of coming within the requirements of s 24.
In arriving at that conclusion, I have taken into account that the plaintiff’s imputations set out in paragraph 14 of the Further Amended Statement of Claim are alternatives. The imputation that a criminal offence has been committed is more injurious than one that asserts there are reasonable grounds to suspect the commission of that crime. If that is correct, the contextual imputations must at least be capable of having the effect of rendering the lesser of the plaintiff’s imputations non-injurious in the sense contemplated by s 24. In order to make it clear, I consider that, in relation to the first article, the contextual imputations are capable of meeting the s 24 requirements in respect of the first (more serious) of the plaintiff’s imputations and it follows that the second is also covered.
Mr Heywood-Smith submitted that the reference in paragraph 16 of the amended defence to the plaintiff as an Anglican priest added nothing to the comparative gravity of the plaintiff’s imputations and the contextual imputations because the former include consideration of the fact that the plaintiff was, at the material time, an Anglican priest. I agree with that submission but that does not mean that it supports the contention that the contextual imputations are incapable of meeting the requirements of s 24. In my opinion, the contextual imputations are capable of fulfilling the requirements of s 24 even where the fact that the plaintiff was an Anglican priest is common to both sides of the equation.
The Second Article - Contextual Imputations
This plea commences at paragraph 27 of the amended defence, which is as follows:
27.In the further alternative, if the second publication or the second web publication conveyed either of the imputations alleged in paragraph 14 of the Further Amended Statement of Claim, then the Defendants say that the second publication and the second web publication, in their natural and ordinary meaning additionally carried the following contextual imputations:- (‘the Second Article Contextual Imputations’).
27.1. The plaintiff engaged in morally reprehensible and deceitful conduct in that he encouraged the former wife of a man with whom he had had a homosexual affair to deny it.
27.2. The plaintiff, while a Catholic priest, falsely denied engaging in sexual or inappropriate behaviour with a minor.
27.3. The plaintiff, while a Catholic priest, falsely denied having had a homosexual relationship with a young man.
27.4. The plaintiff engaged in an immoral, adulterous homosexual affair with a young male.
Paragraph 6 of the Further Amended Statement of Claim sets out the passages complained of by the plaintiff taken from the second article. It is as follows:
6.On 7 September 2008, the first Defendant published in its edition of The Sunday Mail newspaper an article of and concerning the Plaintiff under the title “Fleming Told Me to Deny Affair” containing the words, defamatory of the Plaintiff:
“The revelation follows Father Fleming’s denial of… two other sexual encounters with teenage girls in the 1970s – one of which is the focus of a Paedophile Task Force investigation. The inquiry into the improper conduct by Father Fleming involving a teenager…”
and
“The woman at the centre of the PTF investigation, Jane, said Father Fleming’s denial was no surprise. ‘I didn’t think he’d have the courage to confess’ she said”.
and
“Jane said Father Fleming’s denial of their sexual liaison had ‘hit me hard’. ‘I understand this pain is labelled re-victimisation’, she said. ‘He has stirred up in me again those feelings of worthlessness and desperation. I could have coped with silence, but this denial feels like a threat’.”
(the second publication)
The Plaintiff will rely upon the full text of the article to establish the relevant imputations.
In my opinion, the contextual imputations referred to in subparagraphs 27.1, 27.2 and 27.3, even taken cumulatively, could not be said to be capable of coming within s 24 of the Defamation Act. Morally reprehensible and deceitful conduct of the type referred to in those paragraphs could not be said to equate with or exceed the gravity of alleged conduct involving the commission of a serious offence or there being reasonable grounds to suspect the commission by the plaintiff of that offence. However, subparagraph 27.4 asserts that the plaintiff engaged in an immoral, adulterous homosexual affair with a young male, the particulars of which are set out in paragraph 18 and subparagraph 22.5 of the amended defence. It is clear that the defendants allege, by subparagraphs 18.1 and 18.2, that the relationship commenced when the other person in the alleged relationship sought counselling from the plaintiff at St Mark’s College. That being the case, the comparison then becomes one between the commission of a serious criminal offence or, alternatively, an allegation that there are reasonable grounds to suspect the commission of that offence and allegedly immoral conduct on the part of the plaintiff, the immorality arising from a serious breach of trust. Put in those terms, it seems to me that the combined effect of the contextual imputations referred to in paragraph 27 is capable of coming within the requirements of s 24 of the Defamation Act.
The Third Article – Contextual Imputations
Paragraph 38 of the amended defence sets out the contextual imputations in relation to the third article. The paragraph is as follows:
38.In the further alternative, if the third publication or the third web publication conveyed either of the imputations alleged in paragraph 14 of the Further Amended Statement of Claim, then the Defendants say the third publication and the third web publication in their natural and ordinary meaning additionally carried the following contextual imputations :- (“the Third Article Contextual Imputations”)
38.1. The plaintiff had a homosexual relationship while an Anglican priest and prior to being ordained as a Catholic priest;
38.2. The plaintiff was suspected on reasonable grounds of, while an Anglican priest, being sexually involved with two girls – one underaged – and of having had a homosexual affair;
38.3. The plaintiff was sexually involved with two girls and had a homosexual affair while an Anglican priest;
38.4. The plaintiff was a hypocrite in that he held himself out as a moral, trustworthy and righteous man when the truth was that he was immoral, untrustworthy and sinful;
38.5. The plaintiff was reasonably suspected of engaging in reprehensible sexual misconduct while an Anglican priest;
38.6. The plaintiff engaged in reprehensible sexual misconduct while an Anglican priest.
As with the first two articles, the contextual imputations are supported by particulars given between paragraphs 40 and 45 of the amended defence. The determination required of the Court in respect of this aspect of the application is whether or not the contextual imputations set out in paragraph 38 of the amended defence are capable of satisfying the requirements of s 24 of the Defamation Act. In my opinion, the cumulative effect of the contextual imputations is capable of satisfying a jury that the defamatory imputations set out in subparagraphs 14(1) and 14(2) of the Further Amended Statement of Claim do not further harm the reputation of the plaintiff.
The Fourth Article – Contextual Imputations
The contextual imputations in relation to the fourth article are set out at paragraph 48 of the amended defence, which is as follows:
48.In the further alternative, if the fourth publication or the fourth web publication conveyed either of the imputations alleged in paragraph 14 of the Further Amended Statement of Claim, then the Defendants say the fourth publication and the fourth web publication, in their natural and ordinary meaning, additionally carried the following contextual imputations : (“the Fourth Article Contextual Imputations”).
48.1. The plaintiff, while an Anglican priest, had a homosexual affair with one of his parishioners;
48.2. The plaintiff, while an Anglican priest, had a sexual relationship with a teenage girl;
48.3. The plaintiff, while a Catholic priest, had falsely denied engaging in a sexual relationship with a teenage girl;
48.4. The plaintiff was a moral coward in that he would not take responsibility for his actions;
48.5. The plaintiff was a hypocrite in that he held himself out as a moral, trustworthy and righteous man when the truth was that he was immoral, untrustworthy and sinful.
Again, these imputations are supported by particulars provided between paragraphs 50 and 54 of the amended defence.
As with the other articles, I have concluded that when the imputations referred to in paragraph 14 of the Further Amended Statement of Claim are compared with the contextual imputations referred to in paragraph 48 of the amended defence, the latter are capable of fulfilling the requirements of s 24 of the Defamation Act (SA).
The Fifth Article – Contextual Imputations
These are set out at paragraph 57 of the amended defence, which is as follows:
57.In the further alternative, if the fifth publication or the fifth web publication conveyed either of the imputations alleged in paragraph 14 of the Further Amended Statement of Claim, then the Defendants say that the fifth publication and the fifth web publication, in their natural and ordinary meaning, additionally carried the following contextual imputations :- (“the Fifth Article Contextual Imputations”)
57.1. The plaintiff was the subject of allegations by three people of sexual misconduct while he was an Anglican priest and was the target of a police investigation;
57.2. The plaintiff was suspected on reasonable grounds of sexual misconduct with three people while he was an Anglican priest;
57.3. The plaintiff engaged in sexual misconduct with three people while he was an Anglican priest;
57.4. The plaintiff was the subject of a Paedophile Task Force investigation over alleged sexual misconduct with an underaged girl while he was an Anglican priest;
57.5. The plaintiff was suspected on reasonable grounds of sexual misconduct with an underaged girl while he was an Anglican priest;
57.6. The plaintiff engaged in sexual misconduct with an underaged girl while he was an Anglican priest;
57.7. The plaintiff was the subject of allegations of illegal, immoral and unprofessional behaviour while he was an Anglican priest;
57.8. The plaintiff was suspected on reasonable grounds of illegal, immoral and unprofessional behaviour while he was an Anglican priest;
57.9. The plaintiff engaged in illegal, immoral and unprofessional behaviour while he was an Anglican priest;
57.10. The plaintiff was a hypocrite in that he held himself out as a moral, trustworthy and righteous man when the truth was that he was immoral, untrustworthy and sinful.
In my opinion, these imputations are capable of satisfying the requirements of s 24 of the Defamation Act (SA).
The Use of Pseudonyms
This was the third basis of challenge to the pleading relied upon by Mr Heywood-Smith. As the hearing progressed, I thought it appropriate to defer ruling on this aspect of the matter so that the parties might attempt to reach agreement as to the use of pseudonyms in the amended defence. After I reserved my decision, the parties, through their respective solicitors, communicated with my personal assistant and advised that they had been unable to reach agreement. I thereupon requested my personal assistant to inform the solicitors that I thought it appropriate to defer ruling on the question until they had seen my decision in relation to the other aspects of the application. The parties through their solicitors agreed to this. For what it is worth, I tentatively consider that the defendants should apply for directions relating to the use of pseudonyms.
Inadequate Particulars
This was the fourth ground relied upon by Mr Heywood-Smith.
He contended that subparagraph 15.8 was insufficient because it did not specify the nature of the position of trust referred to therein. I agree that this should be specified. Accordingly, subparagraph 15.8 will be struck out.
The same criticism is made of subparagraph 15.11, which is as follows:
15.11.The plaintiff was subsequently the priest in charge of a church youth group of which Jane was a member between about 1970 and 1975 and in relation to whom he was in a position of trust.
In my opinion, this subparagraph sufficiently specifies the nature of the position of trust.
Next, Mr Heywood-Smith referred to subparagraph 15.12. I agree with his submission that this particular does not support either by itself or in conjunction with the other particulars the defence of justification set out in paragraph 15 of the amended defence. It should be struck out.
Subparagraph 15.13 incorporates by reference the pleading in paragraph 18 of the amended defence. That paragraph consists of particulars given in relation to the contextual imputation defence concerning the first article. The alleged conduct referred to concerns the alleged relationship between the plaintiff and a young man. I agree with Mr Heywood-Smith’s submission that this paragraph cannot support the defence of justification raised in paragraph 15. Consequently, reference to paragraph 18 in subparagraph 15.13 should be struck out.
The next paragraph complained of is paragraph 20 of the amended defence, which alleges a relationship between the plaintiff and a female. There is no suggestion in the pleading that the alleged sexual interaction between the female and the plaintiff was unlawful and so, it was argued, such an allegation could not support the defence of justification referred to in paragraph 15. It seems to me that such evidence, if it is adduced, could indirectly support a defence of justification. A jury might be entitled to draw inferences from evidence given of alleged misconduct of the type referred to in paragraph 20 as having a bearing on whether or not the plaintiff engaged in more serious criminal sexual misconduct. I therefore consider that paragraph 20 should stand.

As to subparagraph 22.5 of the amended defence, for the reasons given in relation to subparagraph 15.13, I consider that the reference to paragraph 20 in this subparagraph should be struck out.
The plaintiff attacked subparagraph 15.14. It was that paragraph which was inserted by amendment at the commencement of the application. It is as follows:
15.14.The plaintiff’s conduct concerning Jane, Jenny and Richard bore striking similarities in that it involved:
15.14.1. An abuse of power by the plaintiff;
15.14.2.The plaintiff being masturbated by the complainant;
15.14.3.Vulnerable young people.
The allegations in this subparagraph are provided as particulars in relation to the defence of justification contained in paragraph 15 of the amended defence. In my opinion, the paragraph is defective not necessarily for the reasons advanced by Mr Heywood-Smith but certainly on the basis that it consists more of a series of submissions as opposed to allegations of fact. For that reason I consider that subparagraph 15.14 should be struck out. The same conclusion applies to subparagraph 41.27.
For the above reasons, the following parts of the amended defence should be struck out:
15.3, 15.4, 15.5, 15.6, 15.8, 15.12, 15.13 (reference to paragraphs 18 and 20), 15.14, 16.4, 21, 22.5, 26.3, 37.3, 40, 41.1, 41.2, 41.4 - 41.10, 41.17, 41.18, 41.20, 41.21, 41.23 - 41.25, 41.27, 45, 47.3, 56.3 and 60.
The application should be otherwise dismissed. I will hear the parties as to costs.