Kermode v Fairfax Media Publications Pty Ltd

In the matter of Kermode v Fairfax Media Publications Pty Ltd, the defendant published an article alleging the plaintiff had engaged in improper conduct related to her business. The plaintiff initiated legal proceedings for defamation, asserting that the publication had caused her harm. The defendant defended the action by invoking the contextual truth defence under the Defamation Act 2005 and sought to rely on imputations initially pleaded by the plaintiff. The primary legal issue before the court was whether section 26 of the Defamation Act 2005 permits defendants to rely on imputations pleaded by the plaintiff as part of their contextual truth defence. The court also considered whether the form of imputations should be interpreted in a manner that allows pleading back.

The court examined the statutory language of section 26 and its legislative history to ascertain the intent behind the provision. It determined that the literal and grammatical meaning of the section did not permit pleading back, meaning that the defendant could not rely on the plaintiff's imputations as part of their defence. The court held that a purposive approach, aimed at promoting the purpose or object of section 26, did not alter the outcome derived from the words of the section. The court emphasised that the language of section 26 did not allow defendants to plead back, and any construction that would permit this would diminish the value of the contextual truth defence. The court concluded that section 26 was clear and unambiguous and did not provide for pleading back, thus affirming the plaintiff's position.