John Fairfax Publications Pty Ltd v Hitchcock - [2007] NSWCA 364

NEW SOUTH WALES COURT OF APPEAL

CITATION: John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364

FILE NUMBER(S):
40085 of 2007

HEARING DATE(S): 2 November 2007

JUDGMENT DATE: 14 December 2007

PARTIES:
John Fairfax Publications Pty Ltd - Appellant
Shari-Lea Hitchcock - Respondent

JUDGMENT OF: Ipp JA Tobias JA McColl JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20245 of 2005

LOWER COURT JUDICIAL OFFICER: Nicholas J

LOWER COURT DATE OF DECISION: 29 January 2007

LOWER COURT MEDIUM NEUTRAL CITATION:
[2007] NSWSC 7

COUNSEL:
Mr TD Blackburn SC with Mr DR Sibtain - Appellant
Mr TEF Hughes QC with Mr TDF Hughes - Respondent

SOLICITORS:
Freehills - Appellant
Johnson Winter & Slattery - Respondent

CATCHWORDS:
Practice — summary power to terminate action — principles applicable. Defamation — public interest — whether respondent acted in a way which inherently, expressly or inferentially invited public criticism or discussion — whether imputations related to matters of public interest. Defamation — whether contextual imputation differed in substance from plaintiff’s imputation. Defamation — common law pleading — imputations — whether defendant entitled to plead alternative imputations which do not differ in substance from the plaintiff’s meanings. Words & phrases — “public interest” — Defamation Act 1974, ss 15, 16 and 31

LEGISLATION CITED:
Defamation Act 1974
Defamation (Amendment) Act 1994
Defamation Act 2005
Suitor’s Fund Act 1951
Animal Welfare Act (NT)
Defamation Act 1901 (ACT)
Defamation Act 1889 (Qld)
Defamation Act 1957 (Tas)
Human Rights Act 1998 (UK)
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005
Uniform Civil Procedure Rules 1999 (Qld)

CASES CITED:
Advertiser – News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206
Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552
Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238
Allworth v John Fairfax Group Pty Ltd and Others (1993) 113 FLR 254
Anderson v Ah Kit [2004] WASC 194
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Baltinos v Australian Consolidated Press Ltd (Supreme Court of New South Wales, Sully J, 21 July 1995, unreported)
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256
Bellino v Australian Broadcasting Corporation [1995] HCA 34; (1996) 185 CLR 183
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Bonnard v Perryman [1891] 2 Ch 269
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
Bruce v Odhams Press Ltd [1936] 1 KB 697
Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1988) 193 CLR 519
Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153
Crowley v Glissan (No 2) [1905] HCA 13; (1905) 2 CLR 744
David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667
Davis v Duncan (1873-74) LR 9 CP 396
Dwyer v Esmonde (1877) 11 Ir R (CL) 542
Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524
Green v Schneller [2000] NSWSC 548
Griffith v Australian Broadcasting Corporation [2002] NSWSC 86
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386
Howden v Truth and Sportsman Ltd [1937] HCA 73; (1937) 58 CLR 416
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36
John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; (2001) 52 NSWLR 373
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108; (2006) 204 FLR 290
Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133; (2005) 67 NSWLR 434
Lion Laboratories v Evans [1985] QB 526
Lloyd v Express Newspapers plc [1997] EWCA Civ 1319
London Artists Ltd v Littler [1969] 2 QB 375
Loo v Rural Press Pty Ltd [2003] NSWSC 107
Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112
Loveday v Sun Newspapers [1938] HCA 28; (1938) 59 CLR 503
McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Murphy v Halpin (1874) Ir R 8 Cl 127
Mutch v Sleeman (1929) 29 SR (NSW) 125
Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314
Northern Australian Aboriginal Legal Aid Service Inc v Bradley [2000] NTCA 13; (2000) 136 NTR 1
Ollis v New South Wales Crime Commission [2007] NSWCA 311
O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210
Parker v Laws [2002] NSWSC 311
Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000
Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245
Reynolds v Times Newspapers Ltd [2001] 2 AC 127
Robinson v Laws [2001] QCA 122; [2003] 1 Qd R 81
Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4
Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204
Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312
Shari-Lea Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 30 July 1982, unreported)
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980, unreported)
Waterhouse v Hickie (1995) Aust Torts Reports 81-347
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

DECISION:
1. Appeal allowed in part; 2. Set aside the Order (1) of Nicholas J made on 29 January 2007 insofar as his Honour struck out paras 4, 5 (except for para 5(a)(i) and 5(a)(vii)), 6, 7(b), 8, 9(a)(vii), 10, 11, 13 and 14 of the Further Amended Defence filed on 24 October 2006; 3. The respondent to pay one half of the appellant’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951, if otherwise qualified; 4. Remit the question of the costs of the respondent’s notice of motion to Nicholas J to be determined in the light of his Honour’s Order (1) as varied by the orders of this Court; 5. Otherwise remit the proceeding to the Defamation List for directions as to their further progress.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40085/07
SC 20245/05
IPP JA
TOBIAS JA
McCOLL JA
Friday 14 December 2007

John Fairfax Publications Pty Ltd v Shari-Lea Hitchcock

Shari-Lea Hitchcock, the respondent, brought an action for defamation in respect of an article, “Hitchcock classic”, published by John Fairfax Publications Pty Ltd, the appellant, in “the diary” section of the Sun-Herald (“the matter complained of”). At a trial conducted pursuant to s 7A of the Defamation Act 1974 the jury found that the matter complained of conveyed a number of imputations of and concerning the respondent and that each was defamatory of her. The fourth imputation was that the respondent had “gatecrashed a social function knowing she was not invited”.

The appellant pleaded a number of defences including truth (s 15), contextual truth (s 16) and comment (s 33) which turned, in part, on whether certain imputations related to matters of public interest. Insofar as the matter complained of was published in the Australian Capital Territory, Queensland and Tasmania, the appellant contended that it conveyed imputations in identical terms to those it relied upon for the purposes of its s 16 defence and, further, pleaded defences which turned, in part, on concepts of public interest and public benefit. The appellant contended that the imputations and publications were matters of public interest because the respondent had acted in a way which inherently, expressly or inferentially invited public criticism or discussion.

The respondent sought an order pursuant to Uniform Civil Procedure Rules 2005, r 14.28 striking out almost the entirety of the defence on the grounds that it disclosed no reasonable defence and/or was embarrassing.

Nicholas J acceded to that application. He struck out the truth, contextual truth and comment defences on the basis that the matters particularised by the appellant were not matters of public interest within the meaning of the relevant sections of the Act. This conclusion also led to his Honour striking out the inter-state defences which depended on the concept of public interest or public benefit. His Honour also concluded that the imputations did not relate to the matters of public interest on which the appellant relied.

The seventh contextual imputation on which the appellant relied was that the respondent “gatecrashed a social function”. The respondent objected to this contextual imputation on the basis that it did not differ in substance from her fourth imputation. The primary judge acceded to that application and struck out the seventh contextual imputation.

Finally, the primary judge struck out the inter-state defences which pleaded the same imputations relied upon in relation to the s 16 defence. He did so on the basis that a s 16 contextual imputation was one which was substantially different from the plaintiff’s imputation and, therefore, outside the ambit of alternative imputations available to the defendant under Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 as explained in Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204.

The appellant appealed by leave.

Held, allowing the appeal in part, and dismissing it in part:

As to the strike-out test:

(per McColl JA, Tobias JA agreeing, Ipp JA to like effect)

Before a pleading, or part thereof, can be struck out summarily, it is necessary that there be a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: ([29], [106]-[109], [6] – [7]).
Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 applied
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598; Agar v Hyde [2001] HCA 41;(2000) 201 CLR 552 referred to

The public interest issue:

(per McColl JA, Tobias JA generally agreeing)

The appellant had an arguable case that by courting public attention the respondent had acted in a way which inherently, expressly or inferentially invited public criticism or discussion.
Bellino v Australian Broadcasting Corporation [1995] HCA 34; (1996) 185 CLR 183 applied
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 referred to
Lloyd v Express Newspapers plc [1997] EWCA Civ 1319 discussed
Green v Schneller [2000] NSWSC 548; Anderson v Ah Kit [2004] WASC 194 distinguished

(per Ipp JA)

Whether the activities of a particular individual are a matter of public interest is a question of fact that turns on evidence. The ultimate issue can only be decided once the issues are seen against the penumbra of all the factual circumstances that may be relevant. Without having heard all the evidence a court could not have the requisite high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial: ([8]).
Australian Broadcasting Corporation v Lenah Game Meats Pty Limited [2001] HCA 63; (2001) 208 CLR 199 referred to

Whether the seventh contextual imputation differed in substance from the respondent’s imputation:

(per Tobias JA, Ipp JA agreeing)

The appellant’s seventh contextual imputation did not differ in substance from the respondent’s fourth imputation; it was only a shade or gradation of the respondent’s fourth imputation: ([19], [37]).

(per McColl JA dissenting)

The appellant’s seventh contextual imputation differed in substance from the respondent’s fourth imputation as, in justifying it, the appellant would rely on different evidence to that needed to justify the respondent’s fourth imputation: ([191]).
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 30 July 1982, unreported) applied
Loo v Rural Press Pty Ltd [2003] NSWSC 107; Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312; Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 referred to

The inter-state defences:

(per McColl JA, Ipp and Tobias JJA agreeing)

A defendant seeking to justify in the common law jurisdictions may only plead an imputation by way of defence to the plaintiff’s imputation, if that imputation does not differ in substance from the pleaded imputation, and is one which the plaintiff would be permitted to put to the jury on the state of the imputations the plaintiff pleaded.
David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667, Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314, Advertiser – News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206 applied
Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204 approved
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1988) 193 CLR 519; Waterhouse v Hickie (1995) Aust Torts Reports ¶81-347; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205; John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; Robinson v Laws [2001] QCA 122; [2003] 1 Qd R 81 referred to

(per Tobias JA, Ipp JA agreeing)

Because the appellant’s seventh contextual imputation was only a shade or gradation of the respondent’s fourth imputation the primary judge erred in striking out that imputation in the common law defences

Orders

(1) Appeal allowed in part;
(2)Set aside the Order (1) of Nicholas J made on 29 January 2007 insofar as his Honour struck out paras 4, 5 (except for para 5(a)(i) and 5(a)(vii)), 6, 7(b), 8, 9(a)(vii), 10, 11, 13 and 14 of the Further Amended Defence filed on 24 October 2006;

(3)The respondent to pay one half of the appellant’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951, if otherwise qualified;

(4)Remit the question of the costs of the respondent’s notice of motion to Nicholas J to be determined in the light of his Honour’s Order (1) as varied by the orders of this Court;

(5)Otherwise remit the proceeding to the Defamation List for directions as to their further progress.

**********

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40085/07
SC 20245/05
IPP JA
TOBIAS JA
McCOLL JA
Friday 14 December 2007

John Fairfax Publications Pty Ltd v Shari-Lea Hitchcock

IPP JA: I have had the benefit of reading the reasons of Tobias and McColl JJA.
Three principal points were argued on behalf of the appellant, namely, the primary judge (Nicholas J) erred:
(a)in striking out those parts of the appellant’s defences that were based on the element of public interest;
(b)in finding that the appellant’s contextual imputation (vii) (namely, “the plaintiff gatecrashed a social function”) is merely a shade or gradation of meaning of, and does not differ in substance from, the respondent’s imputation (d) (namely, “the plaintiff had gatecrashed a social function knowing she was not invited”); and
(c)in finding that the imputations pleaded by the appellant as part of its interstate common law defences should be struck out because they differed in substance from the respondent’s imputations and were not “nuances or variations” of those imputations.
In its further amended defence, the appellant pleaded particulars of the facts and matters it relied upon to establish that the respondent’s imputations and its own contextual imputations related to matters of public interest. Nicholas J held that the imputations did not relate to any activity of the respondent that was of concern to the public. His Honour was of the opinion that the imputations alleged concerned allegations of misconduct on the part of the respondent in respect of activities which did not affect the public at large and which had no public importance. His Honour, with respect, expressed his reasons in a clear and succinct way and these were supported by a most cogent argument by Mr T E F Hughes QC, who together with Mr T D F Hughes, appeared for the respondent.
I have, however, and not without some hesitation, come to a different conclusion.
The overriding consideration is that the issue before the Court concerns a strike out application, not a final hearing.
In Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ observed (at 575 to 576, [57]) that contested issues should not be decided except in the clearest of cases. Their Honours said:
“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways [Dey v VictorianRailways Commission (1949) 78 CLR 62 at 91, per Dixon J; General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125 at 130, per Barwick CJ], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”
This statement was repeated recently by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at 275, [46]).
Whether the activities of a particular individual are a matter of public interest is quintessentially a question of fact that turns on evidence. It is sufficient in this regard to refer to the remarks of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 226, [42]. The circumstances that are capable of bearing on this issue are notionally infinite. It is true that, in this case, the circumstances are limited by the pleaded particulars. Nevertheless, the ultimate issue can only be decided once the issues are seen against the penumbra of all the factual circumstances that may be relevant. For this reason, in my opinion, without having heard all the evidence a court could not have the requisite high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial.
In my respectful opinion, it is not desirable to say anything more about this issue than what I have said. The legal principles applicable can only be determined once the factual issues are crystallised and, in my view, it is premature and undesirable to express any opinions about those legal principles at this stage. True it is that those principles were debated in detail before this Court. That was necessary in order to enable the Court to decide whether or not the appellant’s contentions should be upheld. Having determined that they should be upheld, nothing more should be said.
I turn now to contextual imputation (vii).
In John Fairfax Publications Pty Limited v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541, Spigelman CJ (with whom Rolfe AJA agreed) struck out two imputations “because their combined effect is not capable of equalling [the plaintiff’s] imputation … in terms of injury to reputation” (see at 546, [26]). The Chief Justice was of the opinion (at 546, [26], see also 546, [21]), for that reason, that “the essential element of the defence prescribed in s 16(2)(c) is not capable of being established”.
Section 16(2)(c) of the Defamation Act 1974 (NSW) (which was the statute applicable) provided:
“It is a defence to any imputation complained of that -
…
(c)by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.”

The contextual imputation that the plaintiff gatecrashed a social function is but an element of the respondent’s imputation that the plaintiff had gatecrashed a social function knowing she was not invited. Linguistically, the difference between the two imputations is that while the respondent’s imputation alleges a gatecrashing by the respondent with knowledge that she was not invited, the appellant’s contextual imputation asserts simply a gatecrashing on her part. The contextual imputation differs only to the extent that a lack of knowledge is not alleged. The contextual imputation alleges a less reprehensible act than that pleaded in the respondent’s imputation.
The question arises whether the term “gatecrash” covers the situation where a person attends a social function without knowing that she was not invited. It is true that the Oxford English Dictionary defines a “gatecrasher” as “one who enters a sports ground or a private party, reception, entertainment, etc, without an invitation or tickets”. Nevertheless, the examples given of the usage of the term all involve the gatecrasher gaining admittance with knowledge that he or she was not invited. Tobias JA (at [36]) expresses the opinion that a person who erroneously, but bona fide, believes that she has been invited to a party and attends it with that belief is not a gatecrasher unless, on her belief being corrected, she refuses to leave. I agree.

I accept that the term “gatecrasher” may be appropriate to describe a person who attends a party to which she has not been invited but does so uncertain as to whether she is invited or not. In my view, however, the term could only be said to be appropriate if the person in question remains at the party without making certain that she is welcome.
It is well established that a defendant will only be able to plead a contextual imputation if it differs in substance from the imputation pleaded by the plaintiff: John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205. This means that for contextual imputation (vii) to stand it must differ in substance from the respondent’s imputation (d).
If contextual imputation (vii) is to be construed simply as meaning that the respondent attended the party in the erroneous belief that she was invited, an imputation in those terms, whether considered alone or in combination with the other contextual imputations relied upon by the appellant, is not capable of equalling the injury to the respondent’s reputation which arises by reason of her imputation (b). Accordingly, at best for the appellant, contextual imputation (vii) must be taken to assert that the respondent (who was not invited to the party) attended it even though she was uncertain whether or not she had been invited.
I am of the view that contextual imputation (vii) should also be taken to mean that the respondent, knowing of her lack of certainty as to whether she was invited, stayed at the party without inquiring whether she had been invited. That is because, as I have explained, I do not think that the term “gatecrasher” is apt to describe a person who attends a party, uncertain as to whether she has been invited or not, and who, at a reasonably early stage, makes certain that she has, in fact, been invited.
Tobias JA (at [37]) expresses the opinion that there is no difference in substance between contextual imputation (vii) and imputation (d). His Honour comes to this conclusion without having regard to the element of contextual imputation (vii) that I have suggested, namely, that the respondent stayed on at the party without making certain that she was invited. I agree with his Honour’s views. The additional element to which I have referred simply reinforces the conclusion to which his Honour comes.
Accordingly, I would not uphold the appeal in relation to contextual imputation (vii).
I agree with McColl JA’s consideration of the legal issues which arise in relation to ground 8. However because I agree with Tobias JA that contextual imputation (vii) is only a shade or gradation of meaning of the respondent’s fourth imputation, I also agree with his conclusion that the primary judge erred in striking out that imputation in the common law defences.
The appellant should succeed in regard to its argument based on the public interest issue. Otherwise, the appeal should be dismissed.
I agree with what Tobias JA has written about costs and I agree with the orders his Honour proposes.
TOBIAS JA: In this matter I have had the benefit of reading in draft the thoroughly researched and detailed judgment of McColl JA. I agree with her Honour that Ground 8 should be rejected for the reasons articulated by the primary judge supplemented by those of her Honour.
I also agree that Grounds of Appeal 1, 2, 3, 4, 5 and 6 should be allowed generally for the reasons advanced by her Honour in [114], [166] to [172] and [174] to [185] of her judgment.
Her Honour has set out and discussed in great detail the authorities relevant to the issue of public interest. However, as the application by the respondent to which the primary judge acceded was one governed by the well established principles relating to the summary striking out of a defence, for that application to succeed it was necessary for the respondent to demonstrate that the relevant defences were untenable. In particular, it was necessary for her to establish that the imputations found by the jury in the s 7A hearing, if the particulars relied on by the appellant to establish that those imputations related to matters of public interest were proven, could not even arguably relate to such matters. This was a high bar which the respondent was required to overcome, the onus being upon her to do so.
The authorities on the subject of public interest identified by her Honour enable the only relevant question requiring an answer by the primary judge to be put in a number of different ways. Those questions in many respects overlap and the differences between them are in some cases only a matter of semantics. Nor are they necessarily exhaustive.
Accordingly, upon the assumption that the particulars relied on by the appellant and which are set out in [52] of McColl JA’s judgment are proven, it was necessary for the respondent to demonstrate that none of the following questions could be answered in the affirmative, namely, was it arguable that at the time of the publication of the matter complained of the respondent:
►was the subject of public interest in that she was engaged in activities which were of such a nature as to invite public criticism or discussion;
►had assumed by her own activities a public persona in which the public could be legitimately interested or concerned;
►had by her own conduct assumed a public persona which either inherently, expressly or inferentially invited public criticism or discussion;
►had exposed her private life to the public in a manner which invited public criticism or discussion;
►had engaged in activities, the conduct of which either inherently, expressly or inferentially invited public criticism or discussion;
►had engaged in public conduct that either inherently, expressly or inferentially invited public criticism or discussion;
►had placed her conduct before the public for its approval or attention being conduct in which the public could be legitimately interested?
For the reasons set out by McColl JA in the paragraphs of her judgment to which I have referred in [25] above, in my opinion the respondent has not established that none of those questions could have been answered by the primary judge in the affirmative. That was all that was required for the purpose of rejecting the respondent’s strike out application in accordance with the test established in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR as discussed in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 and Batistatos v Roads & Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR referred to by her Honour in [106]-[109] of her judgment.
The primary judge referred to the relevant authorities and principles necessary for his decision in [8] to [14] of his judgment. They were not in dispute. However the critical paragraph in his Honour’s reasons was [18] set out by McColl JA in [166] of her judgment. It is clear to me that his Honour’s references in the opening sentence of that paragraph to the appellant’s particulars in para (d) was intended to include those referred to in paras (a), (b) and (c) (as they are incorporated by reference by para (d)). It is also my view that his Honour stated the correct principle in the last sentence of that paragraph.
It is that part of [18] italicised by McColl JA in [166] of her judgment that, with respect, bespeaks error in the context of a strike out application although I would agree with the primary judge that “it does not flow that the conduct and activities of a person who is a creature of [self] publicity or has become famous for being famous should automatically be taken to be such as to affect the public at large”.
But the fact that the conduct or activities in question should not “automatically” be taken to relate to a matter of public interest does not mean that it never can be so taken. Again, his Honour’s observation in the same paragraph that the “fact that the conduct in public does not, without more, make it a matter of public interest” may be so but will depend on whether there is “more”: that is, it will depend upon the nature and extent of the conduct in question which is ultimately a question for the trial judge in the light of the facts established by the evidence.
Although there is some force in the observations by the primary judge in [19] of his judgment, I cannot, with respect, agree that it is “self evident” that the matters particularised by the appellant could never be matters of public interest. If it is not self evident, then it must be arguable that they can and that was a sufficient basis to reject the respondent’s strike out application with respect to the defences dependant on the public interest issue.
Although McColl JA (at [117 et seq) analyses in detail cases concerning applications for an interlocutory injunction to restrain the publication of allegedly defamatory matters, I do not myself consider that the statements of principle in those authorities require a different slant or emphasis to be placed upon the application of the General Steel test when dealing with an application to strike out a defence in a defamation action compared to any other type of action. In this context, I note that the authorities referred to by her Honour seem to draw a distinction between an exercise of jurisdiction to restrain a publication prior to and in advance of the determination by a jury that the publication is in fact defamatory of the applicant for relief (for it is only then that one can say that the applicant’s rights have been infringed) and an exercise of jurisdiction to strike out a defence subsequent to a finding that the applicant has in fact been defamed by the publication. Caution in the exercise of the relevant jurisdiction is required in both situations but if extra caution is required before an injunction against publication is granted, I do not accept that that mandates a different or more stringent approach to that which is well established with respect to a strike out application governed by the General Steel test.
I also regret that I cannot agree with McColl JA with respect to Ground 7 in the Notice of Appeal This is because I cannot accept the distinction referred to by her Honour in [192] of her judgment between a person who attends a function knowing he or she has not been invited and such a person who has no belief one way or another. The person who attends a function without knowing whether he or she has been invited would, in my view, be a gatecrasher.
As the primary judge observed at [45] of his judgment, to gatecrash a function is ordinarily understood as referring to attending the function knowing that one has not been invited or, I would add, not knowing whether or not one has been invited. On the other hand, a person who erroneously but bona fide believes that he or she has been invited to a function and attends it with that belief is not, in my opinion, a person ordinarily referred to as a gatecrasher unless, on his or her belief being corrected, he or she refuses to leave.
As contextual imputation (vii) asserts that the respondent had “gatecrashed” the relevant function, it follows in my opinion that that imputation is asserting that the respondent either knew she was uninvited or did not know that she had not been invited. In my view there is no difference in substance between that contextual imputation and imputation (d) that the respondent gatecrashed the subject function “knowing she was not invited”. There is only a shade or gradation of meaning between that imputation and contextual imputation (vii) insofar as it is, at the very least, inherent in the latter that the respondent attended the relevant function without knowing whether or not she had been invited.
Further, for the purpose of s 16(2)(c) of the Defamation Act 1974 and as McColl JA implies in [192] of her reasons, I would observe that the reputation of a person who attends a function without knowing whether or not he or she has been invited thereto would be less injured than that of a person who actually knows that he or she has not been invited.
For the foregoing reasons I would reject Ground 7 of the Notice of Appeal and confirm the decision of the primary judge to strike out contextual imputation (vii).
The consequence of this conclusion is that, while I agree with McColl JA as to the legal principles to be applied in considering the inter-state defence, because I have concluded that contextual imputation (vii) is only a shade or gradation of meaning, it is a permissible imputation in those jurisdictions. Accordingly his Honour erred in striking out that imputation in the common law defences. This means that ground 8 should be allowed in part.
As I am differing from McColl JA with respect to the fate of Ground 7 in the Notice of Appeal, it follows that the respondent has had greater success on the appeal than that noted by her Honour. In these circumstances I am of the view that the respondent should bear one-half of the costs of the appeal.
The costs of the motion before the primary judge are more difficult to determine as no appeal was brought against his Honour’s striking out of paras 5(a)(i), 7(a) and 12 of the Further Amended Defence and the appeal against his Honour’s order striking out paras 5(a)(vii) and 9 has in my view failed. In these circumstances it would be more appropriate for the question of costs of the motion before the primary judge be remitted to his Honour to determine in light of the final result of the respondent’s motion as a consequence of his Honour’s strike out orders as varied by the orders of this Court.
I would therefore propose the following orders:
(a)Appeal allowed in part;
(b)Set aside the Order (1) of Nicholas J made on 29 January 2007 insofar as his Honour struck out paras 4, 5 (except for para 5(a)(i) and 5(a)(vii)), 6, 7(b), 8, 9 (vii), 10, 11, 13 and 14 of the Further Amended Defence filed on 24 October 2006;
(c)The respondent to pay one half of the appellant’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951, if otherwise qualified;
(d)Remit the question of the costs of the respondent’s notice of motion to Nicholas J to be determined in the light of his Honour’s Order (1) as varied by the orders of this Court;
(e)Otherwise remit the proceeding to the Defamation List for directions as to their further progress.
McCOLL JA:      On 26 June 2005 the appellant published an article, “Hitchcock classic” in “the diary” section of the Sun-Herald. Shari-Lea Hitchcock, the respondent, brought an action for defamation in respect of that article. At a trial before Howie J pursuant to s 7A of the Defamation Act 1974 (the “1974 Act”), the jury found that the article conveyed the following imputations of and concerning the respondent and that each was defamatory of her:
“(a)        That the plaintiff had behaved in a nauseating manner with a married man at a social function;
(b)          That the Plaintiff had performed an obscene dance at a social function;
(c)          That the Plaintiff had made a lying assertion that the organisers of a social function to celebrate the commencement of a new TV series had invited her to attend the function as a guest; and
(d)          That the Plaintiff had gatecrashed a social function knowing she was not invited.”
Following the s 7A hearing the appellant filed its defence. Without descending, to particularity at this stage, it is sufficient to note that it relied on the defence of substantial truth to the respondent’s imputation (a) (s 15, 1974 Act), contextual truth in relation to each of the respondent’s imputations (s 16, 1974 Act), comment of a servant or agent of the defendant in relation to the respondent’s imputations (a) and (b) (s 33, 1974 Act) and qualified privilege at common law and/or pursuant to s 22 of the 1974 Act. Insofar as its defences under s 15 and s 16 were concerned, the appellant pleaded that the respondent’s imputations and its contextual imputations related to matters of public interest. Insofar as its defence under s 33 was concerned, the appellant pleaded that the respondent’s imputations (a) and (b) related to matters of public interest.

Insofar as the matter complained of was published in the Australian Capital Territory, Queensland and Tasmania, the appellant contended that the matter complained of conveyed imputations in identical terms to those relied upon for the purposes of s 16 of the 1974 Act (which it described as either the “Defendant’s Imputations” or the “Defendant’s Alternative Imputations”), and, further, relevantly, that it was for the public benefit that the matter complained of be published: Defamation Act 1901 (ACT), s 6, Defamation Act 1889 (Qld), s 15, Defamation Act 1957 (Tas), s 15.
The appellant also pleaded that it would rely, in mitigation of damages, on the substantial truth of the respondent’s imputation (a), its contextual imputations and the Defendant’s Imputations and/or the Defendant’s Alternative Imputations as well as a matter particularised as:
“(b)…the plaintiff had at the time of the publication of the matter complained of, a reputation as a person who is notorious as the long term mistress of a prominent married man.”
The respondent applied by notice of motion filed on 5 February 2006 for an order under Uniform Civil Procedure Rules 2005 r 14.28 striking out almost the entirety of the further amended defence on the grounds that it disclosed no reasonable defence and/or was embarrassing. She complained that the defences of truth, contextual truth, and comment could not be maintained as neither the imputations nor the comment related to matters of public interest and/or public benefit. Next, she asserted that some of the appellant’s contextual imputations were incapable of being conveyed by the matter complained of, an argument which proceeded as a separate question for decision pursuant to UCPR 28.2. Finally, she asserted that to the extent the defence pleaded truth in respect of publication in the Australian Capital Territory, Queensland, and Tasmania pursuant to Polly Peck (Holdings) Plc v Trelford [1986] QB 1000, those defences were unsustainable.
Nicholas J ordered that effectively all of the appellant’s substantive defences be struck out: Shari-Lea Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7. The appellant appeals by leave from that decision.
Statement of the case

The matter complained of stated:
“SHARI-LEA Hitchcock’s impromptu solo dirty dancing at a function celebrating the new INXS Rock Star TV series last week may have successfully raised the profile of Richard Pratt’s former mistress for a nanosecond, but it has done little to commend the ex-North Wollongong Hotel bikini model to pay TV executives.
Well, actually that’s not entirely true.
One married pay TV executive was very impressed indeed.
So much so that the grey-haired Lothario exchanged saliva with Hitchcock in a nauseating display that turned the stomachs of pretty much everyone in the room on Tuesday night.
As fellow guests at the Civic Hotel diverted their eyes to prevent themselves from being transformed into pillars of salt, Hitchcock’s behaviour became increasingly erratic as the night wore on.
Even though she told one publication she had been invited to the event, organisers claim she was not on the official guest list.
Must just be an INXS fan, we suppose. I’m sure there’s a name for that …
[Photograph of Plaintiff] DIRTY DANCING: Shari-lea Hitchcock”.
The primary judge summarised the appellant’s defence (at [6]) as follows:
“(1)        Imputation (a) is a matter of substantial truth, and relates to a matter, or matters of public interest (s 15 of the Act);
(2)          To the plaintiff’s imputations, each of which relates to matters of public interest, were published contextual imputations which are matters of substantial truth and relate to matters of public interest (s 16 of the Act). The contextual imputations are in these terms:
(i)           the plaintiff has engaged in a long-running public affair with a married man
(ii)          the plaintiff was the mistress of a married man
(iii)         the plaintiff is prepared to engage in sexual misconduct, including adultery, with married men
(iv)         the plaintiff engages in exhibitionist behaviour in public of a sexual nature
(v)          the plaintiff is an exhibitionist
(vi)         the plaintiff is a person who is prepared to lie
(vii)        the plaintiff gatecrashed a social function.
(3)          The matter complained of, insofar as it gave rise to imputations (a) and (b), amounted to comment of the defendant’s servant or agent relating to matters of public interest which was based on proper material for comment (s 33 of the Act).
(4) The matter complained of was published on an occasion of qualified privilege, (a) at common law and/or, (b) pursuant to s 22 of the Act.”
The appellant relied upon the following particulars of the facts and matters to establish that the plaintiff’s imputations and the contextual imputations related to matters of public interest:
“The Plaintiffs [sic] Imputations and the Contextual Imputations relate to matters of public interest by reason of the following facts and matters:
(a)          the plaintiff has, over a period of a number of years, actively sought publicity and, in particular, has invited publicity and public attention which would not have been accorded to her were it not for her adulterous relationship with a prominent married man, Richard Pratt. Her seeking publicity and public attention is evidenced by:
(i)           the plaintiff’s willingness to be photographed in suggestive or alluring poses for magazines and newspapers including:
(A)         The Australasian Post;
(B)          Who Weekly;
(C)          The Sunday Telegraph;
(ii)          the plaintiff having posed naked as a subject for artist Charles Billich’s erotic portrayal of her and having permitted (and approved of) herself to be identified as the model for the resulting erotic pictures at the artist’s exhibition ‘Erotica’ at a time when she was already a well known public figure because of her adulterous relationship with Mr Pratt and when she well knew that the interest generated in the fact of her having so posed (and in the public display of the erotic pictures she had posed for) arose out of that relationship;
(iii)         the plaintiff having attended the opening of the ‘Erotica’ exhibition at the Billich Gallery and having posed at that opening for the media in front of at least one of the erotic pictures she had posed naked for;
(iv)         the plaintiff appeared as a panellist on the television program ‘Beauty and the Beast’. This program consists of a panel of celebrities who give advice and opinions on various issues with heavy emphasis on sexual matters, which program is conducted in a spirit of levity and contains many double-entendres and jokes about sex. The plaintiff in the course of that program alluded to her relationship with Mr Pratt in a vulgar manner, making a pun on his Christian name which she knew to be synonymous with slang terms for the male sexual organ and the practice of fellatio, and offered her advice on how to conduct an ‘open marriage’;
(v)          the plaintiff has, for financial gain, sought publicity for her business enterprises ‘E Baby’ and ‘babylife.com.au’, and for her acting career, including in the following publications:
(A)         The Sunday Telegraph, 7 May 2000;
(B)          The Sunday Telegraph, 30 July 2000;
(C)          The Sunday Telegraph, 12 November 2000;
(D)         The Sydney Morning Herald, 27 December 2000;
(E)          Who Weekly, 8 January, 2001;
(E)          [sic] The Sunday Telegraph, 27 May 2001;
(F)          The Sunday Telegraph, 14 October 2001;
which she was able to do by reason of her notoriety and celebrity as the mistress of Richard Pratt;
(vi)         the plaintiff availed herself of her celebrity status deriving from her relationship with Mr Pratt, by accepting invitations to high profile social and promotional functions and by allowing herself to be photographed and interviewed on such occasions;
(vi)(a)     the plaintiff invited, or at least allowed, media coverage of her private functions including:
(A)         her birthday parties on 2000, 2001, 2004 and 2005;
(B)          her daughter’s birthday parties in 2001, 2003, 2005;
(C)          her Moulin Rouge themed party at her home in 2001;
(vii)        the plaintiff sought publicity for herself by giving interviews in which she discussed inter alia aspects of her relationship with Mr Pratt including financial support received from him, and characteristics her daughter had inherited from him;
(b)          it may be inferred from the fact that the plaintiff would not have attracted publicity and attention to herself (as set out in (a) above) had she not carried on an adulterous relationship with Richard Pratt, that the plaintiff used or took advantage of that relationship to attract such publicity and attention;
(c)          in her public appearances, such as on the ‘Beauty and the Beast’ program and in magazine interviews, the plaintiff has put herself forward as a person whose views are of significance and interest;
(d)          the matter complained of related to:
(i)           the behaviour in public of a person who occupied the public spotlight by reason of her past behaviour and by reason of her own invitation of publicity and public attention in reliance on her relationship with Richard Pratt as referred to in (a), (b) and (c) above;
(ii)          the behaviour in public of a person who has conducted a long-running affair with a married man who is a leading public figure in Australia;
(iii)         the behaviour in public of a person who has enjoyed a certain celebrity as a result of her long-running public affair with a married man;
(iv)         the behaviour in public of a person who has courted media attention, in particular, arising out of her long running adulterous affair with one of Australia’s richest men;
each of which is inherently a matter of proper and legitimate interest to the public, particularly in the circumstances set out in paragraphs (a)(i)–(viii), (b) and (c) above.”
The primary judge observed (at [8]) that to succeed in establishing its defences, the appellant was required to establish “a nexus between the imputation or comment and a matter of public interest … [t]hat is to say, the act or condition of the plaintiff identified in the imputation or comment must be shown to relate to a matter of public interest.” His Honour then turned to consider the treatment of the issue of a matter of public interest in “oft-quoted cases”:
“9           In London Artists Ltd v Littler [1969] 2 QB 375, Lord Denning said (p 391):
‘… There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. A good example is South Hetton Coal Co Ltd v North-Eastern News Association Ltd. A colliery company owned most of the cottages in the village. It was held that the sanitary conditions of those cottages — or rather their insanitary condition — was a matter of public interest. Lord Esher MR said ([1894] 1 QB at p 140) that it was “a matter of public interest that the conduct of the employers should be criticised”. There the public were legitimately concerned. Here the public are legitimately interested. Many people are interested in what happens in the theatre. The stars welcome publicity. They want to be put at the top of the bill. Producers wish it too. They like the house to be full. The comings and goings of the performers are noticed everywhere. When three top stars and a satellite all give notice to leave at the same time — thus putting a successful play in peril — it is to my mind a matter of public interest on which everyone, press and all, are entitled to comment freely.’
10           In Chappell v TCN Channel Nine Pty Limited (1988) 14 NSWLR 153, Hunt, J (p 165) observed that the mischief which was sought to be remedied by the statutory requirement that the imputation relate to a matter of public interest was the gratuitous destruction of reputation permitted by the defence of truth alone which is available at common law. He noted that this country does not have the ‘public figure’ defence afforded by the First Amendment in the United States recognised in New York Times Co. v Sullivan (1964) 376 US 254. He held that ‘… unless the public figure makes his private activity a matter of public interest himself … that private activity can be a matter of public interest only if it has some bearing upon his capacity to perform his public activities’. He said (p 167):
‘A public figure's private behaviour or character can become a matter of public interest in one of two ways — either because it affects the performance of his public duties (a proposition which I discussed earlier) or because he makes it such a matter himself. If the plaintiff had in fact deliberately put himself forward to the public as subscribing to such high standards in his private behaviour, so that he could be taken as having appealed to the public for its judgment on that private behaviour, he cannot then be heard to say that the public does not have the right to pronounce the judgment which he asked of it: cf Dwyer v Esmonde (1877) 11 Ir R (CL) 542 at 550 and Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532; 51 WN 178’.
11           In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 the majority, Dawson, McHugh, Gummow, JJ authoritatively stated (p 215) ‘… a subject of public interest meant the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion’. Their Honours emphasised (pp 218-220) that a subject of public interest is to be understood to refer to the conduct or performance of a person engaged in such activities.
12           Relevantly, in Mutch v Sleeman (1929) 29 SR (NSW) 125, Ferguson, J held that it could not be said that a libel related to a matter of public interest merely because the plaintiff was a public figure. He said (p 137):
‘It is not enough that the plaintiff was a public man. The mere fact that a man is a politician, or is engaged in some occupation which brings him into public notice, is not of itself enough to make his private life a matter of public interest, so as to justify the kind of defamatory comment to which, so far as his public activities are concerned, he must submit as one of the incidents of his position’.”
Having cited these authorities his Honour said:
“13 It follows, in my understanding, that to obtain a finding that a plaintiff’s conduct relates to a matter of public interest it is necessary for a defendant to show that such conduct occurred in the course of the plaintiff’s engagement or participation in an activity which is of legitimate concern to the public at large or to a substantial section of it. That is to say, in an activity which is of significance to the Australian public, which is to be distinguished from an activity which is personal or private in nature. The plaintiff’s objection in this case raises the question whether the act or condition encapsulated in each of the imputations relates to a matter of concern to the public at large.”
The primary judge referred with approval (at [14]) to Simpson J’s statement in Green v Schneller [2000] NSWSC 548 (at [24]) that “having regard to the test imposed in Bellino, it is insufficient for the defendant to establish that members of the public reading the article might find themselves interested in its assertions about the conduct of the plaintiff”.
His Honour then recorded the appellant’s submission:
“15 … that the case it intends to make at the trial is that the plaintiff has deliberately put herself before the public as a person whose views are significant and worthy of attention, and who was the mistress of Mr Pratt, a well known industrialist. It was put that in such circumstances the plaintiff has become a public figure with the consequence that, expressly or inferentially, she should be taken as having invited public criticism of her conduct at the INXS function as described in the article and specified in the imputations.”
Having summarised (at [17]) the particulars of the facts, matters and circumstances the appellant relied upon to establish that the plaintiff’s imputations and the contextual imputations were, or related to, a matter of public interest, his Honour said:
“18 In my opinion none of the matters specified in para (d) is a matter of public interest within the meaning of the relevant sections of the Act. The particulars refer only to the public behaviour of the plaintiff who is described, in effect, as a person who has invited and obtained public attention, mainly through media publicity. I do not accept that because the plaintiff’s behaviour is brought before the public gaze from time to time it becomes a matter of public interest. In this field of discourse it does not follow that the conduct and activities of a person who is a creature of publicity or has become famous for being famous should automatically be taken to be such as to affect the public at large. The fact that the conduct is public does not, without more, make it a matter of public interest. What is required is that it is conduct of a kind which concerns the public and either inherently, expressly, or inferentially invites its criticism or discussion. (Mutch p 137; Chappell p 167; Bellino p 215).
19 It is self evident, in my opinion, that the matters referred to are not matters of public interest in that they are not such as to affect the public at large, and are not matters with which the public would be concerned in any legitimate way. Indeed it is difficult to see any basis upon which it could be said that there is a public interest in having information on any of the subjects. As Simpson, J said in Green (para 22): ‘Not every subject on which the interest of some members of the public might be whetted, is a matter of public interest’.” (emphasis added)
Against the possibility that this conclusion was wrong, the primary judge then considered whether the imputations related to the matters specified in par (d). He concluded they did not, saying:
“21         The plaintiff’s imputations and the contextual imputations are imputations about her conduct and behaviour in the course of what were described to be her activities during the INXS party. According to the particulars of truth of imputation (vii) that the plaintiff gatecrashed a function, the INXS party was not open to the general public and admission was limited to invited guests (para H(b), (e), (f), and (g)).
22           In my opinion the conduct described in each of the imputations does not relate to any activity of the plaintiff which is of concern to the public either as specified in para (d), or at all. None of the imputations allege misconduct in respect of any activity which affects the public at large, or which has any public importance whatsoever. The imputations are directed to her relationship with Mr Pratt as his former mistress, and to her behaviour at a social function which was not open to the public. I find that the conduct so described relates only to affairs and activities which are of a private and personal kind (cf: e.g. Baltinos v Australian Consolidated Press Limited [Unreported, NSWSC, 21 July 1995], p 27) and is remote from the matters described in para (d) however widely they may be construed.
23           In my opinion the defendant’s contention that the imputations relate to matters of public interest is untenable. The relevant pleadings, taken at their highest, do not demonstrate the necessary nexus between the imputations and comment and any specified matter, or matters, of public interest. The inevitable consequence is that the defences of truth, contextual truth, and comment as pleaded in paras 4, 5, and 6 of the further amended defence should be struck out.”
The primary judge then went on to consider the respondent’s complaint that all but the second of the contextual imputations were not capable of being conveyed by the article. He found (at [30]) that contextual imputation (i) was not capable of being conveyed by the matter complained of and (at [46]) concluded that if it were necessary to do so he would order that that imputation be struck out. The appellant does not complain about this aspect of his Honour’s reasons.
The respondent’s objection to contextual imputation (vii) was that it did not differ in substance from her fourth imputation (d). Of this his Honour said:
“45 The defendant contended that the phrase ‘knowing she was not invited’ in imputation (d) rendered its defamatory sting more serious than that carried by imputation (vii). In my opinion, however, the plaintiff’s objection should be upheld. To gatecrash a party or an event is ordinarily understood to mean to attend it uninvited. I find imputation (vii) to be merely a shade or gradation of meaning of, and does not differ in substance from, imputation (d). Accordingly, this imputation should be struck out.”
The appellant complains that his Honour erred in so finding.
The primary judge expressly concluded that contextual imputation (v) differed in substance from contextual imputation (iv). Subject to that, it appears to have been accepted that, if the contextual imputations were conveyed, then, with the exception of contextual imputation (vii), they differed in substance from the respondent’s imputations.
The next matter of relevance in the primary judgment was his Honour’s consideration of the defence of qualified privilege. The appellant accepted that his Honour was bound to strike out its defence of common law qualified privilege because it depended upon Reynolds v Times Newspapers Ltd [2001] 2 AC 127, which does not apply in New South Wales: John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; (2001) 52 NSWLR 373. As I understand that concession, it applies to par 7(a) of the Amended Defence which pleaded common law qualified privilege in New South Wales, and to par 12, which pleaded common law qualified privilege in the Australian Capital Territory.

His Honour then turned to the defence under s 22 of the 1974 Act to which the respondent objected on the basis (see [50]) that it was not open to the appellant to assert that the recipients of the matter complained of had any interest or apparent interest in having published to them information which included the imputations found by the jury. The respondent also complained about particulars relating to the issue of reasonableness which his Honour resolved (at [54]) in the appellant’s favour. Relevantly, however, his Honour struck out the s 22 defence, saying:
“51 As I have found that it is not open for the defendant to assert that the plaintiff’s imputations relate to matters of public interest, in my opinion the plaintiff’s objection on the first ground should be upheld. The necessary interest for the purposes of s 22(1)(a) of the Act includes any matter of genuine interest to the readership of the newspaper, and connotes an interest in knowing a particular fact, not simply as a matter of curiosity, but as a matter of substance apart from its mere quality as news (Barbaro v Amalgamated Television Services Pty Limited (1985) 1 NSWLR 30, p 40; Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354, p 359). In my opinion there is no reasonable basis for maintaining that the readership of the article has an interest or an apparent interest in information on the plaintiff’s conduct as encapsulated in the imputations. Accordingly I propose to order that para 7(b) be struck out.”
The effect of the primary judge’s conclusion that the appellant could not rely upon the matters of public interest it advanced in support of its New South Wales defences was that the defences to the publications in the Australian Capital Territory, Queensland and Tasmania to which a subject or matter of public interest was a necessary component should also be struck out. The same conclusion followed to the extent that the appellant relied upon public benefit as a necessary component of its defences: see par [55] and par [56]. This led to par 10, par 13(b), and par 14(b) being struck out.
Paragraph 9(a) of the defence, which related to defences for publications in the Australian Capital Territory, Queensland and Tasmania, pleaded, as the Defendant’s Imputations, the same imputations relied upon in relation to the s 16 defence. The primary judge dealt with par 9(a) as follows:
“59 I reviewed the principles concerning the approach to be taken to issues under a Polly Peck defence in Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204. I held that an imputation which is a contextual imputation under s 16 of the Act is one which is substantially different from, and separate and distinct from, the plaintiff’s imputation and, therefore, outside the ambit of alternative imputations available to the defendant under Polly Peck. To preserve its position the defendant formally submitted that Ron Woodham was wrongly decided. In response, it is sufficient to state that I find there is no reason for me not to adhere to my decision and, accordingly, I propose to order para 9(a) be struck out.”
It is implicit in his Honour’s ruling, and as I earlier indicated it appears to have been accepted, that the appellant’s contextual imputations, other than (vii), differed in substance from the respondent’s imputations.
In reliance on Polly Peck (Holdings) Plc v Trelford, par 9(b), par 9(c) and par 9(d) of the defence pleaded three Defendant’s Alternative Imputations which were said to be substantially true and not “separate or distinct from the Plaintiff’s Imputations”. The primary judge (at [60]) followed John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 (at [42]) in which this Court held that a Polly Peck defence based on an imputation not separate and distinct from the plaintiff’s imputation was not recognised by the common law of Australia. The appellant formally challenges this ruling.
Grounds of appeal
The appellant relies on the following grounds of appeal:
“1.          His Honour erred in holding that neither the respondent’s imputations, the appellant’s contextual imputations nor the matter complained of related to any matter of public interest, and that accordingly the defences of truth, contextual truth, comment and qualified privilege/qualified protection were untenable.
2.            His Honour erred in holding that in order for a plaintiff’s conduct to relate to a matter of public interest, it is necessary for such conduct to occur in the course of the plaintiff’s engagement or participation in an activity which is of significance to the Australian public, as opposed to an activity which is personal or private in nature. His Honour should have held that where a plaintiff, either expressly or inferentially, invites public criticism or discussion of any activity or conduct engaged in by the plaintiff, including conduct of a private or personal nature, that activity or conduct is a matter of public interest.
3.            His Honour erred in holding that none of the matters specified by the appellant in paragraph (d) of the appellant’s particulars of public interest was a matter of public interest by reason of the fact that they were not such as to affect the public at large and were not matters with which the public would be concerned in any legitimate way.
4.            His Honour erred in apparently failing to consider whether the facts, matters and circumstances specified by the appellant in paragraphs (a), (b) and (c) of the appellant’s particulars of public interest were sufficient to sustain an arguable contention that the respondent’s imputations, the contextual imputations and the comment of the appellant related to a matter of public interest.
5.            Further and alternatively, his Honour erred in failing to hold that the facts, matters and circumstances specified by the appellant in paragraphs (a), (b) and (c) of the appellant’s particulars of public interest were sufficient to sustain an arguable contention that the respondent’s imputations, the contextual imputations and the comment of the appellant related to a matter of public interest, in that the imputations and the comment related to activities and affairs in respect of which the respondent had invited public criticism and discussion.
6.            His Honour erred in holding that [the] conduct of the respondent described in the respondent’s imputations and the contextual imputations was remote from the matters described in paragraph (d) of the appellant’s particulars of public interest, for the reason that such conduct related to affairs and activities which were of a private and personal kind. His Honour should have held that the matters in particulars (a) to (c) of public interest set out the particulars of the facts and matters establishing why the matters set out in (d) had become matters of public interest.
7.            His Honour erred in holding the imputation pleaded by the appellant in paragraph 5(a)(vii) of the further amended defence was merely a shade or gradation of meaning of, and did not differ in substance from, the imputation pleaded by the respondent and referred to in paragraph 4(d) of his Honour’s reasons for judgment.
8.            His Honour erred in striking out the appellant’s defences of truth and contextual truth, pleaded in paragraphs 4 and 5 of the further amended defence, and erred in striking out the corresponding interstate defences pleaded in paragraphs 8 and 9 of the further amended defence.
9.            His Honour erred in striking out the appellant’s defences of comment, pleaded in paragraph 6 of the further amended defence, and erred in striking out the corresponding interstate defences pleaded in paragraphs 10 and 11 of the further amended defence.
10. His Honour erred in striking out the appellant’s defence of qualified privilege under s 22 of the Defamation Act 1974 (NSW), pleaded in paragraph 7(b) of the further amended defence, and erred in striking out the corresponding defences of qualified protection in Queensland and Tasmania, pleaded in paragraphs 13 and 14 of the further amended defence.”
Appellant’s submissions
Mr T D Blackburn of Senior Counsel, who appeared with Mr D R Sibtain for the appellant, submitted that the primary judge ought to have concluded that the particulars of the facts, matters and circumstances it provided in relation to public interest supported an arguable case that the imputations and the appellant’s comment related to matters of public interest.

Mr Blackburn submitted that the primary judge artificially or wrongly confined the ambit of the concept of public interest. He contended that his Honour fell into error in holding (at [13]) that in order to obtain a finding that the respondent’s conduct related to a matter of public interest it was necessary for the appellant to show that such conduct occurred in the course of the respondent’s engagement or participation in an activity which was of legitimate concern to the public at large or to a substantial section of it as opposed to an activity which was personal or private in nature. Mr Blackburn also argued his Honour erred in holding (at [18]) that what was required was conduct of a kind which concerned the public and either inherently, expressly, or inferentially invited its criticism or discussion. He contended that the primary judge had not engaged with the proposition that the conduct of a person who engaged in public conduct which invited public criticism or discussion could be a matter of public interest: Bellino v Australian Broadcasting Corporation [1995] HCA 34; (1996) 185 CLR 183 (at 217).
While Mr Blackburn accepted that activities of significance to the Australian public will plainly satisfy the test prescribed in Bellino (at 215) per Dawson, McHugh and Gummow JJ he submitted that the activities which might satisfy the test were not so limited.
Mr Blackburn submitted that where a person placed his or her private conduct before the public eye and, either expressly or implicitly, invited public criticism or discussion of that conduct, the mere fact that the conduct would otherwise be considered to be inherently private in nature did not make it a matter which fell outside the public interest test. He contended that there was an available inference that the relevant person would not have deliberately exposed his or her private affairs to the public spotlight had he or she not invited comment upon them.
Mr Blackburn also submitted that although the primary judge set out the particulars of the facts, matters and circumstances it relied upon in par (a), par (b), par (c) and par (d) to establish that the respondent’s imputations and its contextual imputations related to matters of public interest, when he reached his conclusion that the identified subjects were not matters of public interest, he referred only to par (d) of the particulars. He contended that his Honour apparently failed to consider all of the facts and matters relevant to the determination of the public interest issue.
Mr Blackburn next challenged the primary judge’s conclusion that the imputations and comment did not relate to all or any of the matters of public interest. He noted that in reaching that conclusion the primary judge seemed to have placed considerable reliance upon the fact that because the function referred to in the matter complained of was not open to the public, the respondent’s conduct at that function was not public conduct.
Mr Blackburn complained that in finding the conduct described in each of the plaintiff’s imputations related only to affairs and activities of a private and personal kind, the primary judge drew improbable conclusions about the nature of the INXS function. He argued out that although entry to the function was by invitation, it was not open to the primary judge to conclude that for that reason the respondent’s conduct was “of a private or personal kind”. He contended that there was no evidence to support such a conclusion noting that the appellant’s particulars asserted that the respondent’s behaviour was in public.
Mr Blackburn relied in this respect upon the particulars the appellant gave in support of the contention that contextual imputation (vii), “the plaintiff gatecrashed a social function”, was a matter of substantial truth. Those particulars asserted that the function referred to in the matter complained of was a media event to promote the Foxtel reality TV show, Rock Star: INXS which was not open to the general public. Entry was closely monitored with names being crossed off the two guest lists for the function, one for Foxtel and one for the INXS band. Although the function was not open to the general public, Mr Blackburn submitted the evidence would demonstrate that it was a publicity event designed to attract the maximum publicity to the programme, a fact of which the respondent was aware. It argued that by its nature the function was one that would, and did, attract significant media coverage. He contended that the primary judge pre-judged an issue for trial in finding the respondent’s activities were “of a private and personal kind”.
Mr Blackburn next contended that the primary judge’s reliance upon Baltinos v Australian Consolidated Press Ltd (Supreme Court of New South Wales, Sully J, 21 July 1995, unreported) was misplaced. He argued that in Baltinos the defence of truth failed in respect of three of the plaintiff’s imputations because they related only to the plaintiff’s private and personal life, which he had never put into the public arena. He drew attention to Sully J’s observation (at 60):
“The position could well have been different had the plaintiff himself been responsible for making these aspects of his private life and affairs the subject of public attention; but I do not see that there is any evidence of the plaintiff in fact having done so.”
Mr Blackburn submitted that Sully J’s observation captured the distinction between Baltinos and the instant case.
Mr Blackburn contended that the conduct in which the appellant asserted the respondent had engaged at the INXS function was a matter of legitimate public interest because she had put herself forward as an arbiter of sexual and moral matters, and had frequently and deliberately invited public attention to herself and her conduct at private celebrations. He argued that even assuming, contrary to its submissions, that the INXS function was a “private” party, the respondent could hardly be heard to say that her behaviour at such a party, designed to attract media publicity, was not a matter of public interest when she had previously invited public interest in her conduct at private events.
Returning to the contextual imputations, Mr Blackburn submitted that contextual imputations (i) – (iii) related to the matters which the respondent had put before the public gaze and which were the fons et origo of her fame. He contended that the idea that that was not an arguable proposition so that those defences should be struck out was startling. Next he argued that contextual imputations (iv) – (vii) related to matters of public interest because they related, in substance, to the manner in which the respondent had presented herself to the world as a person whose views and activities were worth noticing in a manner which deliberately invited public attention to her private life, her views on sexual relations and other matters.
Underlying Mr Blackburn’s arguments in this respect was the proposition that the particulars to which the primary judge referred in striking out the appellant’s defences insofar as the public interest issue was concerned were not evidence and served only to provide the respondent with sufficient information to inform her of the case she had to meet to enable her to prepare for trial: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712. Mr Blackburn argued there may be “a world of difference” between the evidence given at trial and the particulars previously supplied: Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 (at 123).
Mr Blackburn noted that the primary judge’s decision to strike out its defence of comment in the Australian Capital Territory and parts of its defences of qualified privilege in Queensland and Tasmania, as well as his Honour’s conclusion that the s 22 defence did not run, all turned, in substance, on the view he reached about public interest. Accordingly, Mr Blackburn relied upon the same arguments he advanced on public interest in relation to the defences of truth, contextual truth and comment to argue that his Honour also erred in striking out these defences.
Mr Blackburn noted that the primary judge struck out the defence of qualified privilege pursuant to s 22 of the 1974 Act and of qualified protection in the Code States because he concluded the public interest plea was bad. He argued that the question whether his Honour was correct in reaching this conclusion stood or fell on the correctness of his Honour’s decision on the public interest issue.
Mr Blackburn next submitted that the primary judge erred in concluding that contextual imputation (viii) was merely a shade or gradation of meaning of the plaintiff’s imputation (iv). He argued that in determining whether two imputations differed in substance, the Court may consider what must be proved in order to justify each imputation: Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980, unreported). He contended that the plaintiff’s imputation (iv) included an additional element, her state of mind. Mr Blackburn submitted it was conceivable that a person might gatecrash a function, not knowing it had a restricted attendance and believing that he or she had been invited or believing he or she was entitled to attend or in a range of other circumstances. Accordingly, he argued, the words additional to those in contextual imputation (vii) conveyed an additional element which would require different evidence to that required to justify contextual imputation (vii).
Turning to the Defendant’s Alternative Imputations (par 9(b), par 9(c) and par (d)), Mr Blackburn formally submitted that Polly Peck was good law and should be followed, but acknowledged that in the present state of Australian authorities, a defendant was only permitted to plead contextual imputations which were “nuances or variations” of a plaintiff’s imputations: David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667, Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314, Advertiser – News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206 (the “interstate cases”), all of which were approved in John Fairfax Publications v Zunter.
Mr Blackburn submitted, however, that the primary judge should have permitted the Defendant’s Imputations in par 9(a)(iv), par (v) and par (vii) to stand on the basis that they were no more than nuances or variations of the respondent’s imputations (i) and (ii). He argued that Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204 was wrongly decided insofar as it held that the only contextual imputations that might be pleaded at common law were ones which did not differ in substance from the plaintiff’s imputations, as that expression is understood in case law determined in New South Wales.
Mr Blackburn argued that the term “differ in substance” in New South Wales case law was used more as a legal term of art than an ordinary English phrase. Accordingly, it could comprehend a small variation between a plaintiff’s imputation and a contextual imputation, whereas the same concept was used in the interstate cases to denote a wider permissible variation between a plaintiff’s and a defendant’s imputations.
Mr Blackburn pointed out that in addition to the test formulated by Hunt J in Singleton v John Fairfax & Sons Ltd to determine whether imputations differed in substance, Kirby J had suggested that imputations might differ in substance even if they could be proved true by the same facts: Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 at [11] – [12]; Parker v Laws [2002] NSWSC 311 at [12] - [13]; Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [44]-[47]. In addition, Simpson J, in Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 (at [67]) held that on occasions, in order to determine whether a plaintiff’s imputations differed in substance, it was permissible to look at the matter complained of in order to determine what the plaintiff was “really asserting”.

In Jackson v John Fairfax & Sons Ltd (at [39 - 40]), Hunt J held that a contextual imputation must differ in substance from the plaintiff’s imputation. In his Honour’s view it was fundamental to the operation of s 16 of the 1974 Act that “the imputation pleaded by the plaintiff and the contextual imputation … must be conveyed by the matter complained of at the same time and that each must differ in substance from the other”. He explained (at 40):
“… as the imputation pleaded by the plaintiff must be taken to include all other imputations which do not differ from it in substance (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, at p 771), it follows that each party’s imputation must differ in substance from that relied upon by the other.”
His Honour formulated (at 40) the issues of law which arise in a s 16 defence, the first being that to which I have referred, while the second was whether the contextual imputation was capable of being conveyed by the matter complained of “at the same time as and in addition to the imputation pleaded by the plaintiff”. Although his Honour did not refer to the statutory basis for the latter issue, it was clearly the requirement in s 16(1) that the contextual imputation be “another imputation made by the same publication” as the plaintiff’s imputation.
In Hepburn v TCN Channel Nine Pty Ltd, Hunt J accepted (at 399) that the effect of s 16(2)(c) was that a defendant was entitled to have contextual imputations which were “truly alternative” to the plaintiff’s imputations considered together to see if the combined effect of their substantial truth was capable of being rationally considered by the jury as so affecting the plaintiff’s reputation that the imputations of which the plaintiff complained, and to which the contextual imputations were pleaded as a defence, did not further injure that reputation. He also accepted that a defendant was entitled to rely upon the combined effect of contextual imputations (which might include one of the plaintiff’s imputations) in defence to one of the plaintiff’s imputations, as long as their combined effect differed in substance from the plaintiff’s imputation and was such that their substantial truth was capable of being rationally considered by a jury as so affecting the plaintiff’s reputation that the plaintiff’s imputation to they were pleaded did not further injure that reputation.
In reaching this conclusion, his Honour considered the nature of the imputations a plaintiff, and correspondingly a defendant, might plead. He observed (at 397 – 398) that both a plaintiff and a defendant were entitled to plead imputations which are “different gradations of different seriousness of the same basic assertion”. The plaintiff’s entitlement to plead imputations which were different gradations of different seriousness of the same basic assertion stemmed from the two requirements to which I earlier referred: the requirement that the plaintiff plead separately each imputation which founded his or her cause of action and plead imputations which differed in substance. He added (at 398):
“The plaintiff’s entitlement to plead imputations which are contradictory one with the other also rests upon his need to anticipate (and the defendant’s need to prepare for) whichever interpretation of the matter complained of is accepted by the jury as having been the way in which that matter was in fact understood by the ordinary reasonable reader. In some cases, too, the trial judge will need to know the precise meaning which was in fact conveyed in order to determine whether the publication took place upon an occasion of qualified privilege...”
He said (at 399):
“The defendant must be placed in the same situation as the plaintiff so far as concerns the pleading of imputations. But, where the defendant has taken advantage of his entitlement to plead contextual imputations which are either contradictory or but different gradations of seriousness of the same basic assertion, he obviously will not be entitled to ask the jury to consider the combined effect of all of his contextual imputations when weighing or measuring his contextual imputations against the plaintiff's imputation to which they are pleaded. Similarly, when the issue of law arises with which I am presently concerned, it will be necessary for the defendant to nominate which of the truly alternative imputations he wishes to have considered together to see whether the combined effect of their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff’s reputation that the imputation of which the plaintiff complains and to which the contextual imputations are pleaded as a defence did not further injure that reputation.” (emphasis added)
His Honour then formulated (at 400) three issues of law which arise when a defence of contextual truth is considered:
“(1) Does the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) differ in substance from the plaintiff's imputations to which it is or they are pleaded as a defence?
(2) Is the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence?
(3) Is the nature of the defendant’s contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff’s reputation that the plaintiff’s imputation to which it is or they are pleaded did not further injure that reputation?”
This was a reformulation of three of the five issues relevant to a s 16 defence his Honour had first devised in Jackson (at 40)
.
In John Fairfax Publications Pty Ltd v Jones Spigelman CJ referred to the history of s 16 as analysed by Priestley JA in Waterhouse (at 61,490) and said:
“15 … It does appear that the defect in the common law position was identified in circumstances where the two imputations were of a different character, rather than different levels of generality of the same allegation, e.g. the allegation of murder, theft and failure to attend church referred to in Plato Films Ltd v Speidel [1961] AC 1090 at 1142. This concern is reflected in the word ‘another’, where appearing in the clause ‘another imputation is made by the same publication’ in s 16(1).
16 In my opinion, the words ‘another imputation’ are not satisfied where a defendant relies on a contextual imputation which is, in substance, nothing more than an alternative way of formulating the same imputation relied on by the plaintiff, based on exactly the same words in the matter complained of and applying those words in exactly the same way. Such is not a case where, to use Hunt J’s formulation, the contextual imputation is ‘capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff’s imputation’. (Allen v John Fairfax supra and Hepburn v TCN Channel Nine supra.)
…
18 The issue is the proper construction of the words ‘another imputation’ in s 16 …
19 It may well be that the imputation found by the jury differs in substance from the contextual imputation. Plainly, the Claimant is correct to submit that a single publication may convey two or more imputations of different degrees of seriousness. It is also correct to say that what may be proved by way of justification of the imputation found by the jury differs from what may be proved by way of justification of the contextual imputation. None of this determines the proper meaning of the words in s 16. Whether or not an imputation is a permissible alternative if pleaded by a plaintiff does not mean it is ‘another’ imputation for purposes of the s 16 defence. The test for plaintiff’s imputations – differ in substance – is a necessary but not sufficient test for ‘another’ imputation, which requires a difference in kind.
20 In my opinion, the purpose of s 16 was directed to a situation in which the same publication conveyed imputations which differ in their character, not merely a different way of formulating the same imputation at a higher level of generality. The examples outlined in Plato Films supra are the former. The contextual imputations in issue here are the latter.” (emphasis added)
Hodgson JA agreed (at [99]) with Spigelman CJ that:
“… a formulation of the same imputation at a higher level of generality is not ‘another imputation’ within s 16(1); … However, if a formulation at a higher level of generality makes the imputation different in substance, then this is not a formulation of the same imputation at a higher level of generality…”
These authorities can be summarised as follows:
(a)          the defence of contextual truth under s 16 was created to fill a lacunae in the common law by enabling a defendant to justify a meaning of the matter complained of upon which the plaintiff had not relied;
(b)          a contextual imputation must be another imputation from the plaintiff’s imputation; the test of whether it differs in substance from the plaintiff’s imputation is a necessary but not sufficient test for ‘another’ imputation, which requires a difference in kind (Jones); it must be a “truly alternative” imputation (Hepburn);
(c)          a contextual imputation may plead a different “sting” entirely from that relied upon by the plaintiff; and
(d)          a plea of contextual truth admits that the matter complained of conveyed the imputations relied upon by the plaintiff, does not seek to justify those imputations (save where a contextual imputation singly, or in combination, pleads back one of the plaintiff’s imputations), but seeks to establish that by reason of the substantial truth of the contextual imputation(s), the imputation complained of does not further injure the reputation of the plaintiff.
I turn then to consider the extent to which a defendant may plead imputations different to those relied upon by the plaintiff in common law jurisdictions.

In Chakravarti (at [8]) Brennan CJ and McHugh J, albeit in obiter, strongly rejected the proposition that a defence in the form of that approved in Polly Peck could be pleaded at common law. As Handley JA pointed out in John Fairfax Publications Pty Ltd v Zunter (at [42]), their Honours’ dicta did not receive the express endorsements of the other members of the Court, but has been followed by intermediate appellate courts in Victoria, Western Australia and South Australia.

The appellant’s inter-state defences rely, however, upon the line of authority which has evolved from Chakravarti, which, while accepting that what I will call a pure Polly Peck defence may not be run in Australia, accepts that there are circumstances in which a defendant in common law jurisdictions may plead imputations in support of a defence of justification.
The Polly Peck heresy which so offended Brennan CJ and McHugh J was that that case “sanctioned a practice of permitting a defendant to plead a meaning different from that contended for by the plaintiff and then justifying that different meaning”: Chakravarti (at [6]). As their Honours explained (at [8]), at common law, a defence of justification is one of confession and avoidance. Allowing a defendant to seek to justify a meaning the plaintiff had not pleaded raised a false issue.
Nevertheless, their Honours entertained the possibility (at [8]) 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. 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. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication.” (emphasis added)
After explaining (at [14] – [18]) the virtues of requiring a plaintiff in a common law jurisdiction to plead the false innuendos relied upon where necessary to define the issues for determination, their Honours said (at [19]):
“A plaintiff who pleads a false innuendo thereby confines the meanings relied on. The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.” (emphasis added)
However, they qualified this statement (at [24]) by saying:
“If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury.”
Gaudron and Gummow JJ observed that:
“52 Although there is no requirement in that regard, it is now common practice for a plaintiff to specify in his or her Statement of Claim the meaning or meanings which, as a matter of ordinary language, are said to be conveyed by the material upon which he or she sues. Whilst the pleading of different shades of meaning is not to be encouraged, distinct or specific meanings should be pleaded and one indication of distinctness or specificity ‘would be whether the justification would be substantially different’. And since the decision in Lucas-Box v News Group Newspapers Ltd, a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning.
…
56 In the authorities concerned above, there has been a tendency to translate into rules what are best seen as considerations going to fair and efficient practice. More cogently, it has been said that, if a defendant seeks to justify a meaning which is different from that asserted by the plaintiff, it should plead that alternative meaning because ‘[l]ibel law ought not to be an exception to the modern rules of pleading which are directed to precisely defining the issues between the parties, providing the benchmarks against which the relevance of evidence is to be assessed and deciding those issues on their merits’. The alternative meaning pleaded by the defendant may make plain the ground upon which the defendant denies the imputation pleaded by the plaintiff. But the view quoted may be accepted without supporting a general conclusion that, in a defamation action, the parties always should be held to the meanings they have pleaded.” (footnotes omitted)
(and, at [60])
“As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her Statement of Claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.”
Their Honours referred (at [53]) to Polly Peck without criticism, and accepted (at [56]), that it was open to the defendant to seek to justify a different meaning to that relied upon by the plaintiff.
Kirby J did not address the issue whether a defendant could plead imputations which differed from a plaintiff’s. He did, however, recognise (at [139]) that the trial judge had a discretion to confine parties to the imputations pleaded where that was “required by considerations of fairness”. He added:
“… However, a more serious allegation will generally be taken to include a less serious one unless the latter is of a substantially different kind. It is true that dicta appear in decisions of this Court, other Australian courts and courts overseas which favour a strict approach: binding a plaintiff at the trial to the precise imputations pleaded. However, I do not consider that these dicta represent the law. The better view is that the rules of pleading must, in those jurisdictions governed by the common law, adapt to the fair evaluation by the tribunal of fact of the matter complained of. If the publisher claims surprise, prejudice or other disadvantage, the trial judge may protect it. No complaint can arise where additional imputations found represent nothing more than nuances or shades of meaning of those pleaded. The position will be otherwise in jurisdictions which, by statute, provide that each imputation is a cause of action upon which the plaintiff may sue.” (emphasis added)
Chakravarti was considered in David Syme & Co Ltd v Hore-Lacey which, relevantly, concerned the question whether a defendant which pleaded justification could justify meanings different from those pleaded by the plaintiff. The defendant had given particulars of the matters it intended to rely upon to support its plea of justification, but had not specified the meanings it intended to justify. It was apparent, however, from the particulars, and counsel for the defendant accepted (see [36]), that it intended to justify meanings different from those pleaded by the plaintiff.

Charles JA (at [43]) recognised the departure Polly Peck represented from the “settled law” in the passage I have earlier cited. His Honour (at [46]) considered that the question “whether and to what extent a defendant may justify meanings different from those asserted by the plaintiff is … necessarily bound up with the extent to which a plaintiff may be allowed to depart at trial from specific meanings pleaded in the statement of claim.”
His Honour concluded (at [52]) that Chakravarti supported the proposition:
“[52] … [T]hat 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. Whether the meaning was substantially different would presumably be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis (Brennan CJ and McHugh J in Chakravarti) or possibly whether the justification would be substantially different (Gaudron and Gummow JJ). If, on the other hand, the plaintiff sought at trial to establish a substantially different or more injurious meaning, his action would fail unless the judge permitted him to reformulate his case with the usual consequences as to adjournment and costs. See, eg Gatley on Libel and Slander, 9th ed (1998).
[53] The principal criticisms 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 are that such an approach allows the defendant to raise false issues which can only embarrass the fair trial of the action and will on occasions unfairly prevent a plaintiff from pursuing a claim in defamation, in the manner explained by Brennan CJ and McHugh J in Chakravarti. The setting up of false issues by the defendant in this way may well make admissible a substantial body of evidence that would otherwise be irrelevant and thus greatly lengthen proceedings. But it seems to me that the same criticisms 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.
[54] Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a meaning which was sufficiently close (in the manner already suggested) to the plaintiff’s meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined, to the benefit of the court and the parties. Of course, if the plaintiff cannot make good a meaning amongst those identified, his action must fail, and the defendant has no need to plead any other meaning.
…
63 … The position then remains that at trial neither the plaintiff nor the defendants should be permitted to raise (nor should the defendants be permitted to justify) a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff.” (emphasis added)

Ormiston JA (who as I have earlier observed agreed with Charles JA) also advanced his understanding of the proper application of Chakravarti as follows:
“[21] It would therefore seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendoes which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff; in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff.
[22] If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different. …” (emphasis added)
In Robinson v Laws [2001] QCA 122; [2003] 1 Qd R 81 (Special Leave Refused, Laws v Robinson (2002) 23(7) Leg Rep SL1, HCA, 19/3/2002), the Court of Appeal held that a defendant in a defamation action could not plead a Polly Peck defence, a conclusion which turned substantially on the Defamation Act 1889 and the rules of pleading under the Uniform Civil Procedure Rules 1999 (Qld): see de Jersey CJ (at [44], [50]), Williams JA (at [90] – [91], [95]; MacKenzie J (at [122]- [125]), the latter apparently reserving (at [123]) the question whether a defendant in Queensland can plead in justification defamatory meanings as contemplated in Hore-Lacy.
Hore-Lacy was followed by the Western Australian Court of Appeal in Nationwide News Pty Ltd v Moodie. Anderson J (at [9]) said he understood Chakravarti to mean that a defamation case would not be permitted to go to the jury, or to judgment, on an alternative meaning which was substantially different from or more serious than the false innuendos pleaded in the statement of claim. He agreed (at [13] –[14]) with Charles JA’s statements in Hore-Lacy (at [46], [52], and [54]) that the defendant was limited to pleading a meaning on which the plaintiff would be permitted to go to the jury.
Steytler J noted (at [43]) that Polly Peck had been applied in Western Australia prior to Chakravarti. Having analysed that case, he concluded that the practice of pleading “so-called ‘Polly Peck’ defences” should be permitted to continue, but that the extent to which a defendant was permitted to plead defamatory meanings different from those pleaded by the plaintiff depended upon, and was governed by, the extent to which the plaintiff might be permitted to rely, at the trial, upon imputations other than those pleaded. Accordingly he said:
“[60] No purpose can be achieved by allowing a defendant to plead, and seek to justify, a meaning different from that or those which might be found by a jury in favour of the plaintiff. If the plaintiff cannot succeed on a particular imputation which is different to that pleaded by him or her, then, to allow a defendant to plead that imputation, and seek to justify it, can only result in the creation of a false issue and prejudice to the proper trial process. On the other hand, if the defendant is able to justify a defamatory meaning which differs from that pleaded by the plaintiff but which might be found by a jury on the strength of the plaintiff's own pleading, then there is a basis for saying that the defendant can, and should, plead that alternative meaning and also the matters upon which it relies in contending that it is able to justify it. … I should add, as regards the concept of ‘fairness’ or ‘disadvantage’, that it can never be fair or advantageous to a plaintiff, or to the trial process itself, to permit a defendant to plead, and seek to justify, a meaning which could plainly not be found by a jury on the plaintiff's pleading.”
McLure J (at [88]) noted that her view that Ormiston JA’s formulation in Hore-Lacey was arguably unduly narrow. Her Honour also observed (at [94]) that on her reading of Chakravarti “disadvantage to the defendant is an additional limiting factor on the extent to which a plaintiff can depart from his pleaded imputations not a factor that it is intended to widen the plaintiff’s (and in turn the defendant’s) opportunities to depart from them.” However, it was unnecessary on the facts of the instant case to determine that issue as her Honour agreed with Steytler J’s reasons that the defendant’s imputations satisfied the Hore-Lacey test – i.e. they were “not substantially different or more serious from the imputations pleaded by the plaintiff.”
In Advertiser – News Weekend Publishing Co Ltd v Manock, Doyle CJ (with whom Vanstone and White JJ agreed) considered the authorities to which I have referred indicated “substantial (although not complete) support for the propositions formulated by Charles JA in Hore-Lacey (at [53] – [54])”. His Honour regarded Charles JA’s analysis, insofar as it dealt with the ability of a plaintiff to rely on a meaning other than that pleaded to be consistent with what was said by all members of the High Court in Chakravarti (at [71]). He also doubted whether Charles JA’s propositions were inconsistent with Brennan CJ and McHugh J’s observations in Chakravarti about pleading a Polly Peck defence because:
“…to the extent that a plaintiff may be permitted to depart from the meaning pleaded, fairness requires that the defendant be permitted to anticipate and deal with the alternative meaning. In that context the expression ‘alternative meaning’ is something of a misnomer. An alternative meaning that can be pleaded and justified by the defendant can be no more than a shade or nuance of the meaning pleaded by the plaintiff, and so in substance (as it seems to me) the alternative meaning must be close to or the same as the meaning pleaded by the plaintiff.” (emphasis added)
His Honour added:
“[77] It appears to be generally accepted that once the plaintiff has pleaded the meaning on which the plaintiff relies, the plaintiff will not be entitled to seek a verdict on a different imputation. On that all members of the High Court agreed in Chakravarti. That is subject to the qualification that another defamatory meaning might be relied on by the plaintiff, when it is a mere shade or nuance of meaning, provided that the defendant suffers no prejudice, embarrassment or unfair disadvantage as a result: Brennan CJ and McHugh J at [24] – [25], Gaudron and Gummow JJ at [60] and Kirby J at [139] subparas 3 and 4.
[78] Accordingly, there can be no unfairness to the defendant in not allowing the defendant to justify a meaning that, because it differs from the meaning pleaded by the plaintiff, the plaintiff would not be permitted to advance a trial. That is what the Judge has decided here.” (emphasis added)
The ACT Supreme Court has also rejected the pure Polly Peck approach, but followed Hore-Lacy: John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108; (2006) 204 FLR 290 (Connolly J).
The authorities in the Australian Capital Territory and Western Australia accordingly support the proposition that a defendant seeking to justify may only plead an imputation by way of defence to the plaintiff’s imputation, if that imputation is one which the plaintiff would be permitted to put to the jury on the state of the imputations the plaintiff pleaded. In other words, if it is an imputation which does not differ in substance from the pleaded imputation. The question whether the same approach applies in Queensland has not, as far as my researches reveal, been decided. This issue was approached on the basis that the Hore-Lacy jurisprudence governed that State as well, a position I am prepared to adopt, while recognising that, at least prior to the adoption of the 2005 Act, the relevant Queensland legislation would have determined the question. As I earlier noted, Mr Hughes submitted that Hore-Lacy (and, presumably its progeny) was wrongly decided but did not develop the submission. I am not convinced those judgments are “plainly wrong”. They should be followed in New South Wales: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 (at [135]).
In Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133; (2005) 67 NSWLR 434 (at [54] – [55]) Simpson J explained:
“54 Put another way, and using language more familiar in the NSW defamation law, what Polly Peck permits a defendant to do is to seek to justify an imputation or imputations not different in substance from that or those pleaded by the plaintiff. This can have no application in NSW. By SCR Part 67 Rule 11(3) a plaintiff is not permitted to rely upon two or more imputations ‘unless the imputations differ in substance’. In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771 the Court of Appeal held:
‘Upon the proper construction of the rules, an imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance.’
55 This leaves no room in NSW for the application of Polly Peck principles. Just as a plaintiff may rely upon the different shades and gradations of meanings in imputations so long as those shades and gradations do not differ in substance, so, too, may a defendant seek to justify the various shades and gradations of meaning of those imputations.” (emphasis in original)
In Ron Woodham v John Fairfax Publications Pty Ltd (at [11]) the defendant sought to sustain interstate defences of justification on the same basis as in the instant case i.e. by relying on the s 16 imputations in the common law jurisdictions, but arguing, unsuccessfully, that “in deciding whether [in the common law jurisdictions] the defendant’s imputation was different in substance from the plaintiff’s imputation, the court should take a more liberal approach than that ordinarily taken in deciding whether for the purposes of New South Wales pleading requirements the plaintiff’s imputations differ in substance from each other”: judgment (at [53]). Nicholas J rejected that argument.
Nicholas J followed Jones (at [52]), describing a Polly Peck defence as “one of justification of an alternative meaning not substantially different from the plaintiff’s meaning”. He rejected (at [61]) the defendant’s submission that “a different approach is to be taken in deciding the question of ‘substantially different from’ for the purposes of a Polly Peck defence to the approach taken in New South Wales in respect of the plaintiff’s imputations.” In his Honour’s view:
“The verbiage used in e.g. Chakravarti (paras 24, 60, 139) including ‘nuance’, ‘less serious’, ‘variant’, ‘shades’, referable to a Polly Peck imputation is identical to that used in e.g. Morosi (p 771) referable to the plaintiff’s imputations. Indeed, in Manock, (paras 63, 64, 81, 82) Doyle CJ describes the approach taken in Chakravarti, David Syme and other cases as a good deal narrower to the approach taken in Polly Peck.”
In my view, Nicholas J was correct to reject the defendant’s argument in Ron Woodham and in the present case.

It is a superficial approach, in my view, for the appellant to argue that because under s 16 a defendant may plead imputations which are “different gradations of different seriousness of the same basic assertion” (Hepburn at 397) and because the Hore-Lacy approach recognises a defendant may plead imputations which are a nuance or variant or not more serious than the plaintiff’s imputations, that a s 16 contextual imputation may be pleaded in the common law jurisdictions.

The critical point is that the conceptual underpinnings of the defences are entirely separate. The s 16 defence requires a defendant to plead a truly alternative imputation to the plaintiff’s imputation to satisfy the requirement that it be “another imputation” for the purposes of s 16(1). The Hore-Lacy approach entitles a defendant to plead imputations not substantially different from, or, as I would put it, not truly alternative to a plaintiff’s imputations. If a s 16 contextual imputation is truly alternative to the plaintiff’s imputation, it cannot be one on which a plaintiff in a common law jurisdiction would have been entitled to get a verdict from a jury.
Finally, against the possibility that the approach I have taken is erroneous, I would not regard the appellant’s contextual imputations (iv) and (v) as only a nuance or variation of the respondent’s imputations (a) and (b). I my view it would not be open to a tribunal of fact to find that an imputation that the respondent engaged in exhibitionist behaviour in public of a sexual nature (contextual imputation (iv)) or was an exhibitionist (contextual imputation (v)) was only a nuance or variation of the imputations that she had behaved in a nauseating manner with a married man at a social function (respondent’s imputation (a)) or had performed an obscene dance at a social function (respondent’s imputation (a)).
I accept that there is an attraction in the argument that contextual imputation (vii) (the plaintiff gatecrashed a social function) is a nuance or gradation of the respondent’s imputation (d) (“the Plaintiff had gatecrashed a social function knowing she was not invited”). However if, as the appellant has argued, and as I have accepted, contextual imputation (vii) is truly alternative to the respondent’s imputation (d), it cannot be one on which a plaintiff in a common law jurisdiction would have been entitled to get a verdict from a jury.
Ground 8 in the Notice of Appeal should be rejected.
Orders
The appellant has succeeded on the substantial issue on appeal, but has failed in part. In my view it is appropriate that the respondent bear two-thirds of the costs of appeal and of the motion below.
I propose the following orders:
1. Appeal allowed in part.
2.Set aside the order of the Court, striking out par 4, par 5, par 6, par 7(b), par 8, par 10, par 11, par 13, and par 14 of the further amended defence filed 24 October 2006.
3.Respondent to pay two-thirds of the appellant’s costs of the appeal and of the motion to strike out the appellant’s defence in the Court below.
4. Remit the matter to the Defamation List for further directions.
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LAST UPDATED: 14 December 2007