John Fairfax Publications Pty Ltd v Hitchcock

In *John Fairfax Publications Pty Ltd v Hitchcock*, the Court of Appeal of New South Wales considered an appeal by John Fairfax Publications Pty Ltd (the appellant) against an order by Nicholas J striking out significant portions of the appellant's defence in a defamation proceeding brought by Hitchcock (the respondent). The dispute concerned imputations published by the appellant that the respondent alleged were defamatory.

The primary legal issues before the Court of Appeal were whether the primary judge erred in striking out parts of the appellant's defence, particularly concerning the defence of public interest and the pleading of alternative imputations. This involved determining whether the respondent had acted in a way that invited public criticism or discussion, and whether the imputations pleaded by the appellant differed in substance from those alleged by the respondent. The court also had to consider the application of sections 15, 16, and 31 of the *Defamation Act 1974* (NSW) in relation to the concept of "public interest".

The Court of Appeal reasoned that the primary judge had applied too stringent a test when considering the defence of public interest and the pleading of alternative imputations. The court held that the appellant was entitled to plead alternative imputations that did not differ in substance from those alleged by the respondent, and that the defence of public interest should not have been struck out so broadly. The court applied the principles that a defendant in defamation proceedings is entitled to plead alternative defences and that the defence of public interest is available where the plaintiff's conduct or circumstances are such as to invite public attention or comment.

The Court of Appeal allowed the appeal in part, setting aside the primary judge's order to strike out certain paragraphs of the appellant's defence. The court ordered that the respondent pay half of the appellant's costs of the appeal and remitted the matter for further directions regarding the progress of the proceeding.