Setka v Abbott
[2014] VSCA 287
•18 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0231
| JOHN SETKA | Applicant |
| v | |
| THE HONOURABLE TONY ABBOTT MP and AUSTRALIAN NEWS CHANNEL PTY LTD (ACN 068 954 478) | First Respondent Second Respondent |
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| JUDGES | WARREN CJ, ASHLEY and WHELAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 May 2014 |
| DATE OF JUDGMENT | 18 November 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 287 |
| JUDGMENT APPEALED FROM | Setka v Abbott & anor [2012] VSC 534; Setka v Abbott & anor (No 2) [2013] VSC 726 |
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DEFAMATION – Defences – Pleadings – Justification – Contextual truth – Application for leave to appeal against refusal by judge to strike out justification defence pleaded in reliance upon David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667 (‘Hore-Lacy’) and contextual truth defence pleaded in reliance on s 26, Defamation Act 2005 – Whether Hore-Lacy wrongly decided – Whether justification defence pleaded in reliance upon Hore-Lacy part of ‘general law’ preserved by ss 6(2) or 24(1), Defamation Act – Whether such defence available under s 25, Defamation Act – Whether imputations pleaded by defendants permissible variants of plaintiff’s imputations in accordance with Hore-Lacy – Whether judge required to determine as question of fact if defendant’s imputations permissible variants – Whether justification defence should be struck out as embarrassing – Whether defendants required to indicate, with respect to each plaintiff’s imputation, which defendants’ imputation or imputations relied upon as permissible variant(s) – Whether defendants required to plead only one imputation in response to any one plaintiff’s imputation – Whether justification defence should be struck out as bad in form, being ‘entirely vague and general’ – Whether contextual truth defence must be struck out – Imputations relied upon in justification and contextual truth defences the same – Whether judge decided that imputations pleaded in justification defence same in substance as plaintiff’s imputations – Leave to appeal granted on some grounds, refused on others – Appeal dismissed – David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 667 – Defamation Act 2005, ss 6, 8, 24, 25 and 26.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr G O L Reynolds SC with Ms R L Enbom | Slater & Gordon Lawyers |
| For the First Respondent | Mr M F Wheelahan QC with Mr T J F McEvoy | Arnold Bloch Leibler |
| For the Second Respondent | Mr S O’Meara QC with Mr A T Strahan | Johnson Winter & Slattery |
WARREN CJ:
ASHLEY JA:
The application and appeal
John Setka, the plaintiff, who is and was at the material time a union official, has brought a proceeding for defamation against the Hon Tony Abbott, now Prime Minister and, at the material time, Leader of the Federal Opposition, and against Australian News Channel Pty Ltd.
The application for leave to appeal now before this Court, and, if leave be granted, the appeal, raises various pleadings issues. The plaintiff has twice made unsuccessful application by summons to strike out three paragraphs of the defences. Those paragraphs, in the case of each defendant, are in identical terms. The plaintiff now challenges most of the adverse orders.
The pleadings
The words the subject of the proceeding were spoken by the first defendant in answer to a question which he was asked at a conference of an employer’s organisation on 10 February 2012. The question and answer were allegedly republished by the second defendant on the same day. The parties have now agreed upon the text of the question and answer, although there is a certain dispute as to punctuation. The text reads:
Q: How do you propose the MBA actually move forward with, some sort of campaign to support the ABCC?
A: Well thanks Luke. This is where your representative bodies are so important, because so many of you have got to go onto sites every day. You’ve got to deal with the John Setkos[1] of this world every day and the last thing you need is home visits from some of the gentlemen associated with some of the industrial organisations that you have to deal with every day and those home visits we know take place.[2] We know they take place because people like Mr Setko[3] have told us that they take place. Now the MBA is one step removed from that and it’s very very important that the MBA takes a forthright and uncompromising position and I’m pleased to say that in all my dealings with the Victorian MBA, particularly with your Executive Director Brian Welch, that is exactly what we’ve had. I can remember when I first proposed the establishment of the Cole Royal Commission, senior building industry managers who knew just how bad things were, who knew just how much intimidation their workforce were exposed to, who knew how many tens and hundreds of millions of cost overruns their projects were liable to because of unlawful behaviour and thuggery were against it. They were against the establishment of the Cole Royal Commission. They said this was a problem that could not be fixed. Well it was fixed, if not entirely, then in large measure and it was getting better all the time. It was getting better all the time and in some ways it was getting better because the companies themselves were being told ‘You’ve got to lift your game’ as well the union officials being told ‘You’ve got to lift your game’. If the manager says ‘Look I just can’t do this anymore because I will go to jail if I do it’ well then it’s that much harder for the union official to get away with demands bordering, or indeed that are in fact, extortion, so I think the MBA has a very important role and I’m confident that Brian Welch knows exactly what it is. Welch by name but not Welch by nature.
[1]This was the speaker’s mispronunciation of the plaintiff’s name.
[2]As is the way with some spoken word cases, while there is agreement between the parties as to the words spoken, there is still some dispute as to how part of the words should be punctuated. However, it is not necessary to specifically consider that issue further at this stage.
[3]See footnote 1 above.
By their defences, the defendants admit, subject to production of an audio or video recording of the publication of the words spoken, the text set out above. [4]
[4]In late 2012, when the matter was first before Beach J, the first defendant proposed to amend his defence so as to highlight a dispute which then existed both as to text and punctuation. The foreshadowed amendment has not yet been effected. Before this Court, counsel for the first defendant did not definitely state whether or not it would be pursued.
The plaintiff pleads that in their natural and ordinary meaning, the words were defamatory of him, and meant and were understood to mean that:
(a)the plaintiff engages in unlawful behaviour by visiting the homes of people working in the construction industry for the purpose of intimidating them;
(b)the plaintiff visits the homes of people working in the construction industry for the purpose of making demands that amount to extortion;
(c)the plaintiff is a thug in that he visits the homes of people working in the construction industry for the purpose of intimidating them;
(d)the plaintiff is a self-confessed thug who has admitted visiting the homes of people working in the construction industry for the purpose of engaging in the conduct referred to in paragraphs 8(a) and (b) above.
Those paragraphs set up the imputations upon which the plaintiff relies.
As will later be discussed, although by s 8 of the Defamation Act2005 (Vic) (‘the 2005 Act’) there is a single cause of action for defamation in relation to the publication of defamatory ‘matter’ – ‘matter’ being defined to include, relevantly, an oral utterance and a report communicated by means of television – it is necessary for a plaintiff to specify the imputations – that is, meanings – which he claims are conveyed by the matter. But this is not to say – contrast s 9 of the Defamation Act1974 (NSW) (‘the 1974 Act’) – that each imputation constitutes a cause of action. It does not do so.
By paragraphs 11 and 12 of their defences, which are in the same form, the defendants plead as follows:
11.Further, or alternatively, if the words alleged in paragraph 4 of the statement of claim were defamatory of the plaintiff then in their natural and ordinary meaning the words meant and were understood to mean that the plaintiff was a person who had engaged in -
(a)intimidation;
(b)unlawful behaviour;
(c)thuggery; and
(d)extortion.
12.In the meanings alleged in paragraph 11 above, the words were true in substance and in fact.
Particulars
(a)On or about 20 July 2010 at a rally outside the offices of the Australian Building and Construction Commission in Melbourne, the plaintiff spoke the following words through a public address system to those assembled at the rally -
If you look across the road at this crane over here you’ll see the CFMEU flag flying in the jib. On this other side of the road where the Rats are, that’s what they’ve got to look at every morning, all day. So if you’re one of them you’d be wondering who’s winning this battle, not them Rats. If they were winning the battle, if they had any balls or any guts, they wouldn’t be hiding up where they’re hiding. Their place would be North Melbourne lost dog’s home, that’s where they should be. Now just remember one thing fella’s, we went through a Royal Commission. Some of you younger blokes might not remember only a few years ago we went through the Cole ‘kangaroo’ Royal Commission where they alleged thuggery and a whole heap of other things. Proved nothing in the end but during that Royal Commission we embarked on a 36 hour week campaign because a lot of construction workers here and some of youse it’s a distant memory but you remember, you used to work on a shopping centre, you had every second Monday off and then you’d go back to a normal job and it was only once a month. How dreary was that? Well we promised, we had a poll and the members all said we want a 36 hour week. We had the blue, we had a big battle in the middle of a Royal Commission and everyone said youse are absolutely crazy, you’ll never win, they will destroy you. Well guess what - you have got a 36 hour week for a number of years now. These Fuckers up here would like to take it off ya. There’s no other nice way of putting it, they are Fuckers. There’s an old saying, my mum used to use this saying and I’ve said it once before, she used to say the more you touch shit the more it smells, well that’s them, they are shit. They’re the shit that they are. We’re proud, we’re construction workers, every one of youse goes to work every day in dangerous conditions. It’s a dangerous industry, you risk your lives, you’re not working in some warm office like them fuckers up there are doing, right. And they’ve got balls to try and prosecute us. That building they’re sitting is was built by union members, right, so they got no right at all. So John Lloyd, that fuckin’ John Lloyd who’s no longer there, who’s gone, see you later, there’ll be another fucker to replace him, he’s gone and I hope the last thing he sees was that union flag flying on that crane over there. And just the task force, or rats, dogs whatever they are, just to remember one thing, when this is all over and they don’t exist anymore they’ve got to work elsewhere and we’ll remember them because we know every fuckin’ one of them. We will never forget them.
(b)The words which the plaintiff spoke at the rally were calculated to threaten and intimidate the officers and staff of the Australian Building and Construction Commission, and to encourage those at the rally themselves to engage in threatening and intimidatory conduct towards the officers and staff of the Australian Building and Construction Commission.
(c)On 12 December 2008 the plaintiff participated in a blockade of the construction site of the Royal Children’s Hospital (RCH) in Melbourne. The plaintiff, together with other persons parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH site. The blockade prevented trucks from delivering concrete, steel and other building materials to the RCH site between 7.10am and 1.00pm on 12 December 2008. In consequence, some employees at the RCH site were prevented from performing work that required the use of the concrete, steel and other building materials that were unable to be delivered due to the blockade. When engaged in the blockade the plaintiff acted with an intent to coerce a contractor on the RCH site, Caelli Construction, to reverse a decision to direct an employee and member of the CFMEU, one Joe Angelino, to attend for work at its yard. By engaging in the blockade the plaintiff breached s 43(1) of the Building and Construction Industry Improvement Act2005 (Cth).
(d)On 18, 20 and 22 February 2009 the plaintiff participated in another blockade (the second blockade) of the RCH construction site. The plaintiff, together with other persons again parked their vehicles or vehicles belonging to the CFMEU such as to block the front entrance gate to the RCH site. The second blockade prevented trucks from delivering concrete, steel and other building materials to the RCH site on 18, 19, 23, 24, 25, 26, and 27 February 2009 and on 2 March 2009. In consequence, some employees at the RCH site were prevented from performing work that required the use of the concrete, steel and other building materials that were unable to be delivered due to the second blockade. When engaged in the second blockade the plaintiff acted with an intent to coerce a contractor on the RCH site, Caelli Construction, to reverse a decision to terminate the employment of a member of the CFMEU, one Joe Angelino. By engaging in the second blockade the plaintiff breached s 43(1) of the Building and Construction Industry Improvement Act2005 (Cth).
(e)On or about 3 November 2003 the plaintiff was convicted in the Melbourne Magistrates’ Court of intimidation, an offence under the Workplace Relations Act1996 (Cth), in that the plaintiff had made threats against a manager of the construction company, Grocon, who had made statements to the Australian Industrial Relations Commission.
(f)On 13 December 1990 the plaintiff was found guilty in the Supreme Court of Victoria of contempt of court in consequence of which he was sentenced to a term of four months imprisonment suspended for a period of three months. The contempt was constituted by the breach of an order the Supreme Court made on 20 November 1990, the terms of which, inter alia, restrained the plaintiff from entering certain prohibited areas in and around construction sites operated by Leighton Contractors Pty Ltd. Smith J held that the plaintiff had entered on to prohibited areas on and around these construction sites, in breach of the terms of the order. In particular, his Honour found that -
(i)the plaintiff attempted forcibly to enter a site office after being requested to leave;
(ii)the plaintiff then left the site, but returned shortly afterward with three others in an attempt to frighten truck drivers who were in the site office;
(iii)the plaintiff then confronted one of the truck drivers, pushed him and started throwing punches at him, and also kicked the driver;
(iv)the plaintiff was then involved in a stand-off with another driver in which the plaintiff armed himself with a steel bar and the other man armed himself with a ‘twitch’;
(v)upon being escorted off the site, the plaintiff yelled words to the effect, ‘I’ll get you. I know where you all live. It doesn’t matter where you move to, I’ll get you’;
(vi)the plaintiff had entered the site with an intention to harass and, if the opportunity arose, fight with the drivers present at the site;
(vii)on a separate occasion, the plaintiff approached another site and threw liquid at a security guard, hitting the guard on his hard hat, and on his shirt.
(g)On 26 September 1990 the plaintiff was found guilty in the Supreme Court of Victoria of contempt of court and was ordered to be placed in custody for a period of 60 days before being brought back before the court. The contempt was constituted by -
(i)the plaintiff’s breach of an order of that Court dated 4 July 1990, the terms of which, inter alia, restrained the plaintiff from entering certain areas of a construction site situated at 417 St Kilda Road, Melbourne; and
(ii)the plaintiff’s assault on a process server in Broadmeadows while attempting to avoid service of documents, which Hampel J held to be a serious interference with the administration of justice.
(h)On 24 August 1988 the plaintiff, when he was an official of the Builder’s Labourers Federation, was convicted at the Melbourne Magistrate’s Court of wilfully trespassing a building site at the intersection of Palmer Street and Royal Lane Fitzroy on 19 August 1987 in that he refused to leave being warned to do so.
This raises a truth defence, the form and content of which derives from David Syme & Co Ltd v Hore-Lacy.[5] We will describe it hereafter as ‘HL justification’.
[5](2000) 1 VR 667 (‘Hore-Lacy’).
Beginning with a denial that the words were defamatory of and carried the meanings pleaded by the plaintiff, such a defence sets up different (defamatory) meanings, which are alleged to be true in substance and in fact. Those different meanings, it must immediately be said, must be meanings upon which the plaintiff could succeed at trial, notwithstanding that the plaintiff has not in fact pleaded them.
Paragraph 13 of the defences reads as follows:
13.Further, or alternatively, if, which is denied, the words bore any one or more of the plaintiff’s imputations then -
(a)in their natural and ordinary meaning the words also meant and were understood to mean that the plaintiff was a person who had engaged in -
(i)intimidation;
(ii)unlawful behaviour;
(iii)thuggery; and
(iv)extortion -
(“the contextual imputations”);
(b)the contextual imputations were substantially true;
(c)the plaintiff’s imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations; and
(d)accordingly, the first defendant has a defence pursuant to s 26 of the Defamation Act2005 and corresponding uniform legislation.
Particulars
The first defendant refers to and repeats the particulars under paragraph 12 above.
This is a contextual truth defence, the requirements of which are specified by s 26 of the 2005 Act.
Pausing, HL justification takes as its starting point a denial of the meanings ascribed to a publication by the plaintiff. It then asserts other meanings. If it succeeds, the only available meanings have been justified and the plaintiff fails. A contextual truth defence, on the other hand, takes as its starting point a finding by the trier of fact that one or more of the plaintiff’s pleaded imputations has been established. There are then pleaded additional meanings, which are alleged to be substantially true, and such as do not further harm the plaintiff.[6] If, as here, the defendants plead HL justification and contextual truth, and particularise the same imputations, it follows (at least in any practical sense) that they cannot establish both defences. Assuming that HL justification remains an available defence, that the pleadings of HL justification and contextual truth are not embarrassing or bad in form, and that the defendants have any success, it will be upon one or other of those defences.
[6]See, for instance, Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157.
Both defendants alternatively plead, in mitigation of damages, what is alleged to be the plaintiff’s diminished reputation. The second defendant additionally pleads statutory qualified privilege[7] and Lange qualified privilege. Nothing turns on those pleadings for present purposes.
[7]See s 30 of the 2005 Act.
The plaintiff sought further and better particulars of the particulars provided by the defendants in support of the HL justification and contextual truth defences. The defendants provided further and better particulars in the same form. Two sample requests for particulars, and particulars provided by the defendants, are as follows:
Sample 1:
Under paragraph 12(a), state which paragraphs of the particulars are relied upon for the truth of the meaning alleged in paragraph 11(a).
(a)The first defendant relies on particulars (a), (b), (c), (d), (e), (f) and (g)(ii) to paragraph 12 of his defence …
Sample 2:
State which paragraphs of the particulars are relied upon for the truth of the meaning alleged in paragraph 11(d).
(d)The first defendant relies on particulars (c) and (d) to paragraph 12 …
Thus, a course of conduct allegedly engaged in by the plaintiff is in a number of instances alleged to constitute more than one kind of relevant misbehaviour.
The plaintiff’s summons and its progress
The summons by which the plaintiff initially sought that the HL justification and contextual truth defences and the second defendant’s Lange qualified privilege defence be struck out was first heard by Beach J on 31 October 2012. By his first reasons for judgment,[8] his Honour dismissed the application on 12 November 2012,[9] and reserved costs.
[8]Setka v Abbott [2012] VSC 534 (‘first judgment’).
[9]The attack upon the Lange qualified privilege defence ended there.
The plaintiff sought leave to appeal to this Court. His proposed grounds of appeal were in time amended so as to radically alter the argument which had been conducted before Beach J. This Court described the new case which the plaintiff sought to advance in this way:
The plaintiff in fact filed and served an outline dated 30 April. Essentially, the plaintiff sought to argue -
· By ground 1, which is new … that a Polly Peck[10] defence is unavailable in law.
· By ground 3, which is new, that the Polly Peck defences should be struck out as being embarrassing. It was contended that the defendants must specify to which one of the plaintiff’s pleaded imputations the imputations pleaded by the defendants respectively relate.
· By ground 4, which is new, that the Polly Peck and contextual truth imputations should be struck out for being bad in form - that is, ‘entirely vague and general’.
· By ground 5, which is new, that if it be the case that the plaintiff’s pleaded imputations and the defendants’ pleaded imputations were the same, then necessarily the contextual truth imputations must be struck out.
[10]The reference being to Polly Peck Holdings Plc v Trelford [1986] QB 1000 (‘Polly Peck’).
There was one ground, ground 2, which was not new. It was that:
The respondents’ imputations in paragraph 11 of their defences are different in substance from the imputations in paragraph 8 of the statement of claim.
The issue raised by ground 2 had been argued before Beach J. It is an issue upon which an HL justification defence, from time to time, has been attacked.
On 28 November 2013, in the circumstances which had arisen, this Court refused to hear the application for leave to appeal from the order made consequent upon the first judgment. It reserved leave, in effect, to the plaintiff to bring a further application for leave to appeal based upon ground 2. It made it clear that if the plaintiff wished to pursue the other arguments, he should make application before a single judge.
The plaintiff then amended his summons, so as to seek relief as follows:
Orders pursuant to r 23.02(a) and/or (c) of the Supreme Court (General Civil Procedure) Rules 2005 that
(a) [11], [12] and [13] of the first defendant’s defence be struck out
(b) [11], [12] and [13] of the second defendant’s defence be struck out
That formulation was so imprecise as to admit of almost any argument that might be formulated. But, as it turned out, plaintiff’s counsel advanced before Beach JA (sitting in the Trial Division) each of the submissions set out at [18] above; and also a submission founded upon ground 2, the text of which we have set out at [19] above.[11]
[11]But note that, on the present application, ground 2 was expressed in significantly different language.
On 20 December 2013, by his second reasons for judgment,[12] Beach JA rejected all of the plaintiff’s submissions, and he dismissed the summons.
[12]Setka v Abbott [2013] VSC 726 (‘second judgment’).
The grounds of appeal
In support of his application for leave to appeal, and his appeal if leave is granted, the plaintiff relies upon the following grounds:
(1)The primary judge erred in:
(a)finding that [11] of the respondents’ defences is a good defence;
(b)not striking out [11] of the respondents’ defences;
(c)not striking out [13] of the respondents’ defences.
(2)The primary judge erred in:
(a)determining that the issue for his determination was whether the imputations in [11] of the respondents’ defences were arguably not different in substance from the imputations in [8] of the appellant’s statement of claim when the correct test is whether or not the imputations are actually different in substance;
(b)failing to find that the imputations in [11] of the respondents’ defences are different in substance from the imputations in [8] of the statement of claim;
(c)finding that the imputations in [11] of the respondents’ defences are arguably not different in substance from the imputations in [8] of the statement of claim.
(3)The primary judge erred in not striking out [11] of the defences of both respondents on the basis that [11] is embarrassing and/or may prejudice and/or delay the fair trial of the proceedings.
(4)The primary judge erred in not striking out the imputations in [11] and [13] of the defences of both respondents on the basis that they are bad in form.
(5)The primary judge erred in failing to strike out the imputations in [13] of the respondents’ defences despite his prior determination that those imputations were the same in substance as those in [8] of the statement of claim.
The approach to the application
The interlocutory orders now challenged were made on summonses in which the plaintiff sought that the paragraphs in the defences to which we have previously referred be struck out in reliance upon rr 23.02(a) and/or (c) of ch 1 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’). Thus, it was contended that those parts of the defences should be struck out because they ‘did not disclose … a defence’ or ‘may prejudice, embarrass or delay the fair trial of the proceeding’.
The predecessor of sub-r (a) was O 25, r 4 of the former Rules, about which the law was that a pleading (or part thereof) would only be struck out when it could clearly be seen that the claim or answer was, on its face, ‘clearly unsustainable’, or ‘so manifestly faulty that it does not admit of argument’.[13]
[13]A v Ipec Aust Limited [1973] VR 39, 53.
The predecessor of sub-r (c) was O 19, r 27 of the former Rules, about which it was said that:
As is shown by numerous authorities on this Rule, which takes its place in an order dealing with pleadings generally, matter in a pleading will be struck out under this Rule only where there is some defect in the pleading attacked, e.g. where the pleading is unintelligible, ambiguous, vague or too general, so as to embarrass the opposite party who does not know what is alleged against him. The Rule is one to ensure compliance with the rules of pleading and nothing else.[14]
[14]Meckiff v Simpson [1968] VR 62, 70 (Full Court).
Speaking generally, leave to appeal from an interlocutory order will be refused unless the applicant can show that the decision was wrong, or at least attended with sufficient doubt to warrant grant of leave, and that substantial injustice would be done if the decision were to stand.[15]
[15]Niemann v Electronic Industries Limited [1978] VR 431, 441-2.
Most often, an interlocutory appeal pertains to practice and procedure and involves the exercise of a discretion, and in such circumstances, appellate courts exercise particular caution in reviewing such decisions. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc,[16] Gibbs CJ, Aickin, Wilson and Brennan JJ cited with approval this passage from the judgment of Jordan CJ in In Re the Will of FB Gilbert (decd):
I am of opinion that … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. [17]
[16](1981) 148 CLR 170, 177 (‘Adam Brown’).
[17](1946) 46 SR (NSW) 318, 323 (‘Gilbert’).
In the present matter, ground 1, in part ground 2, ground 3 and in part ground 4 raise issues which fell for consideration by his Honour in the realm of r 23.02(a). Otherwise, the issues which were agitated fell within the purview of r 23.02(c).
If error of the kind relevant to r 23.02(a) was revealed, then not only should leave to appeal be granted, but the appeal in that respect should be allowed. The kind of errors otherwise complained of, falling within the purview of r 23.02(c), involve the kind of discretionary judgment on a matter of practice and procedure in respect of which the caution sounded by Jordan CJ in Gilbert, endorsed by the High Court in Adam Brown, applies.
Proposed Ground 1
Plaintiff’s counsel submitted before the judge that paragraphs 11 and 12 of the defences should be struck out for two reasons. First, because Polly Peck, as confined by Hore-Lacy, should not be followed. Polly Peck was wrongly decided, and had never, in any event, been part of the common law of Australia. The same must be said of Hore-Lacy. Second, if that was wrong, because by necessary implication from s 25 of the 2005 Act (which provides a truth defence), the common law defence now has no operation.
The first argument
His Honour was bound to follow Hore-Lacy, and so he rejected the first argument.
In this Court, senior counsel for the plaintiff renewed his submissions that Hore-Lacy should not be followed. In written submissions, the plaintiff relied upon the observations of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Limited.[18] It was submitted that Kirby J had not dealt with the issue in that case, and that Gummow and Hayne JJ had done so ‘only in passing’.[19]
[18](1998) 193 CLR 519, 526-30 [6]-[13] (‘Chakravarti’).
[19]This observation was made by Doyle CJ in Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206, 216 [62].
Further in written submissions, counsel argued that Hore-Lacy was not supported by any High Court decision, or by any decision of an intermediate Court of Appeal – whether before or after Hore-Lacy was itself decided. The decision, counsel submitted, has created ‘layers of complexity and technicality’, which are, in truth, unnecessary. So far as other intermediate Courts of Appeal had adopted the decision, it had only been, counsel submitted, for sake of conformity. Again, the reasons for judgment of McColl JA in Fairfax Media Publications Pty Ltd v Kermode,[20] so far as they refer to the existence of an HL defence at common law, were criticised by counsel as being ‘very wide obiter and [having] absolutely nothing to do with the issue for decision’.[21]
[20](2011) 81 NSWLR 157 (‘Kermode’).
[21]Counsel was principally attacking, as we understand it, her Honour’s conclusion that the Hore-Lacy defence has operation in the context of the Defamation Act2005. But his criticism could equally apply to her Honour’s acceptance that such a defence was part of the common law preceding the introduction of that Act.
Orally, senior counsel for the plaintiff submitted that nothing in Hore-Lacy suggested that the concept of justification at common law – that is, that the defence of truth must meet the entirety of the allegedly defamatory matter and that the plea is one of confession and avoidance – was wrong. What the majority judges had done was to articulate a novel pleading rule, which was bad in law.
Counsel further submitted that Hore-Lacy has ‘created a swathe of complexity and uncertainty’. He asked, rhetorically, how are the necessarily increased number of questions which a jury must answer to be dealt with by directions? He accepted, however, that there appeared to be only one instance where the application of Hore-Lacy had been an issue on appeal after trial.[22] But he submitted that interlocutory applications had thrown up various problems.
[22]The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 (‘Popovic’).
According to the plaintiff’s submission, counsel for the first defendant was wrong in contending that Brennan CJ and McHugh J had erred, in Chakravarti, in referring to the centrality of imputations in defamation cases. The importance of imputations was at least as old as 1852.[23] Counsel for the first defendant was also wrong in submitting, according to plaintiff’s counsel, that their Honours’ reasons in Chakravarti in fact supported the majority position later adopted in Hore-Lacy.
[23]Counsel directed us to Bullen & Leake’s Precedents of Pleadings (3rd ed, 1868), (footnote at 725) referring to the Common Law Procedure Act 1852, s 61.
We should mention also that counsel called in aid an observation by the author of Collins on Defamation[24] that, with Hore-Lacy, Australian defamation law has taken ‘a wrong turn’.
[24]Matthew Collins, Collins on Defamation, (Oxford University Press 1st ed, 2014) 179.
In our opinion, for two reasons, the submission for the plaintiff that this Court should depart from Hore-Lacy should be rejected.
First, even if what was before the Court were an appeal, and not an application for leave to appeal from an interlocutory judgment upon an application made under r 23.02(a) of ch 1,[25] this Court would only depart from one of its own previous decisions if it considered that decision to be plainly wrong.[26] We are not persuaded that the decision in Hore-Lacy was plainly wrong. To the contrary, we respectfully consider that the majority judgments were correct.
[25]As to which, see [27] above.
[26]See, for instance, Commissioner of State Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617, 621-22 [20]-[25], and the discussion of principle by Weinberg JA in R v Roussety (2008) 24 VR 253, 282-84 [67]-[81], a case in which a Court of five was convened.
Second:
Intermediate appellant courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia, rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.[27]
[27]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151-52 [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). See also CAL No 14 Pty Ltd v Motor Accidents Board (2009) 234 CLR 390, 412-13 [49]-[50] (Gummow, Heydon and Crennan JJ).
Applying that principle to the present case, Hore-Lacy has been considered and applied by other intermediate courts of appeal; and it is wrong to say, as counsel for the plaintiff submitted, that such application was only for the sake of conformity. The considered reasons of Doyle CJ in Advertiser News Weekend Publishing Co Ltd v Manock,[28] and of members of the Western Australian Court of Appeal in Nationwide News Pty Ltd v Moodie[29] and in West Australian Newspapers Ltdv Elliott[30] demonstrate the contrary. Although not decisions of appellate courts, we mention also the reasoned decisions of Connolly J in John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd,[31] of Gray J in Betfair Ltd v Nason,[32] and of Kaye J in Soultanov v The Age Co Ltd[33] and in Newnham v Davis (No 2).[34] Robinson v Laws,[35] a decision of the Queensland Court of Appeal, was decided in the particular context of the Defamation Act1889 (Qld), as understood by the Court, and of the Uniform Civil Procedure Rules1999. Hore-Lacy was scarcely mentioned. The central point was that the meanings which the defendant sought to rely upon were so remote from the plaintiff’s pleaded meanings as to be ‘not available’ and ‘such as could not be advanced rationally’.
[28](2005) 91 SASR 206 (‘Advertiser’).
[29](2003) 28 WAR 314 (‘Moodie’).
[30](2008) 37 WAR 387 (‘Elliott’).
[31](2006) 204 FLR 290.
[32][2006] ACTSC 111.
[33](2009) 23 VR 182 (‘Soultanov’).
[34][2010] VSC 94, [14]-[19] (‘Newnham’).
[35][2003] 1 Qd R 81 (‘Robinson’).
We have expressed our opinion that Hore-Lacy was not plainly wrong; and, indeed, that it was correctly decided. We should explain why that is so.
The purity of the common law was that a plaintiff sued on an allegedly defamatory publication and could succeed on any defamatory meaning which the publication could bear. Particularisation was not required.
But courts both in England and Australia progressively imposed limits upon that absolute position. Particularisation came to be required – at least in almost every case. In Advertiser, Doyle CJ, with whose reasons Vanstone and White JJ agreed, said this with respect to the common law of defamation:
Once the plaintiff pleads a meaning on which the plaintiff relies, that pleading will identify the meaning of which the plaintiff complains, and delimit the boundaries within which the action is to be fought. Although it is the publication of the defamatory material that is the tort, the function of the pleading is to identify the field of inquiry at the trial.[36]
[36]Advertiser (2005) 91 SASR 206, 219 [76].
Nonetheless, because at common law a plaintiff sued on the publication, and because the trier of fact was not constrained to find for a plaintiff only upon meanings which had been particularised, it was held in a number of cases that a plaintiff could succeed on an unpleaded meaning, so long as it was, as was variously said, ‘a nuance of’, ‘comprehended by’, ‘simply a variant of’, ‘less injurious than’, ‘not more injurious than’, or ‘not altering the substance of’ the meanings pleaded. As can be seen from those formulations, the extent of permitted deviation was not expressed with precision.
In Hore-Lacy, in the context of a plaintiff being able to succeed at trial on a meaning which had not been pleaded, Charles JA used the language ‘not substantially different from and not more injurious than’ the pleaded meanings.[37] That formulation has been applied in later cases in this State and in other common law jurisdictions.
[37](2000) 1 VR 667, 686 [52].
At common law, and before particularisation of a plaintiff’s case became the norm, a defendant could always plead justification – that is, truth[38] –as a defence. It was a plea that, whatever defamatory meanings were conveyed by the publication, they were true. It was thus a plea of confession and avoidance. Obviously, ‘whatever defamatory meanings were conveyed’ did not embrace any meaning which was not truly conveyed. But, before particularisation, neither the statement of claim nor the defence cast any light on the true area of contest.
[38]Before the Act, in some jurisdictions, truth per se was not a sufficient defence. ‘Public interest’ or the like was an additional requirement before the defence could succeed.
With particularisation, and recognition that a plaintiff might nonetheless succeed upon unpleaded meanings which met the criteria mentioned above, a question arose. Where then stood justification?
In Cruise v Express Newspapers Plc,[39] Brooke LJ pointed out that obliging a plaintiff (in most instances) to give particulars of meanings relied upon had left two problems unresolved. In Hore-Lacy, Charles JA identified them as follows:
… The first was whether the same discipline was imposed also on defendants (that is, that they were obliged to plead the meaning on which they relied for their pleas of justification and fair comment, if their meanings differed from those relied on by the plaintiff). The other was whether, if a publication contained two or more separate and distinct stings and the plaintiff complained of one of them, the defendant could rely on the others and plead justification and fair comment.[40]
[39][1999] QB 931, 947-48.
[40]Hore-Lacy (2000) 1 VR 667, 680-81 [39].
Charles JA noted also that the English answer to the first problem had been given by the Court of Appeal in Lucas-Box v News Group Newspapers,[41] and that the second problem had been answered by that Court in Polly Peck.
[41][1986] 1 WLR 147 (‘Lucas-Box’).
His Honour described the decision in Lucas-Box this way:
In that case the court ruled that a defendant in defamation proceedings who wishes to rely on a plea of justification must make clear in the particulars of justification the case which he is seeking to set up and must accordingly state clearly and explicitly the meaning which he seeks to justify, if it differs from that pleaded by the plaintiff.[42]
[42]Hore-Lacy (2000) 1 VR 667, 681 [41].
In Advertiser, Doyle CJ summarised the decision in Polly Peck as follows:
A defendant is entitled to refer to the whole publication of which the plaintiff complains. If the publication contains two or more “separate and distinct defamatory statements”, the plaintiff can sue on one or some of them. The defendant is not entitled to assert the truth of the others by way of justification. But (perhaps often rather than always), if separate defamatory allegations have a common sting, they are not to be regarded as separate and distinct allegations. The defendant will then be entitled to plead the truth of the common sting, and that will be treated as proof of the truth of the statement or imputation of which the plaintiff complains.[43]
[43]Advertiser (2005) 91 SASR 206, 215 [57].
Against that background, the majority in Hore-Lacy decided that a defendant should be able to plead a defamatory meaning which, viewed from the plaintiff’s standpoint, and though not pleaded by the plaintiff, would be a permissible variant of the pleaded meaning. Having identified that meaning, the defendant could then seek to justify it. Charles JA said this:
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.[44]
[44]Hore-Lacy (2000) 1 VR 667, 686-7 [53]-[54] (citations omitted).
His Honour also said this:
57.No express criticism was made by any member of the Court in Chakravarti of the reasoning in Lucas-Box, although counsel for both parties relied on the decision in argument. The practice of requiring a defendant who seeks to justify meanings different from the plaintiff’s, to give particulars of such meanings, was noted with apparent approval by Gaudron and Gummow JJ, and is consistent with the approach taken by Kirby J. But in the first passage from the judgment of Brennan CJ and McHugh J quoted in [45] above, their Honours say that the articulation of an alternative meaning (by the defendant) would only be supportable as a plea where it made explicit the ground for denying a pleaded imputation and prevented the plaintiff from being taken by surprise. And their Honours then point out that a plea of justification of an imputation not pleaded by the plaintiff would not be a good defence and, so, would be immaterial. In this respect therefore, their Honours are, I think, at least by implication, rejecting the reasoning in Lucas-Box.
58.There was plainly no majority in Chakravarti for the view that Lucas-Box is not to be followed in Australia. The reasoning of Brennan CJ and McHugh J, in so far as it is critical of a requirement that the defendant should plead alternative meanings, was, I think, very much placed in the context of the practice approved in Polly Peck. I doubt whether their Honours’ implied criticism of Lucas-Box can be taken as extending to a situation in which the defendant is not permitted to plead alternative meanings unless those meanings are not substantially different from, and no more injurious than, the meanings pleaded by the plaintiff. In that situation their Honours would, I think, accept that the articulation of an alternative meaning is supportable at least in the one respect noted above. But the defendant’s plea may show that the defendant not only denies the plaintiff’s pleaded imputations, but also seeks to justify in a meaning not substantially different from, nor more injurious than, the plaintiff’s meanings. In that respect the issue raised would not be a false one, since the plaintiff might also seek to rely upon this meaning at trial. On the reasoning of all members of the Court in Chakravarti, the plaintiff would be allowed to do so, provided that course was not in all the circumstances unfair to the defendant. But so also the raising by the defendant of such a meaning for the first time at trial, for the purposes of justification, may be unfair to the plaintiff, who might also claim “surprise, prejudice or other disadvantage” (Kirby J in Chakravarti)or that he might have adduced different evidence, or might have conducted the case on a different basis (Brennan CJ and McHugh J) In this respect it seems to me that if the defendant by its pleading indicates an intention to justify a meaning different from those relied on by the plaintiff, the defendant should be required to state what that meaning is, with the necessary particulars of the facts on which the justification is based.
59.The plaintiff, faced with such a pleading, is, I think, entitled to know clearly what the defendants are intending to justify, and the failure to provide such particulars might well cause the plaintiff serious disadvantage at the trial, with the potential for the trial to be disrupted and the proceedings lengthened or delayed. I agree with Ormiston JA therefore, for the reasons he gives, that a defendant which pleads that it proposes to justify meanings by way of false innuendo other than those alleged by the plaintiff, should plead those meanings and that it should plead justification in terms which make clear the version of meaning of the publication to which that justification is directed. In my view the defendant is obliged to do so, in order to comply with RSC O13.07(1) and O13.10.[45]
[45]Ibid 687-688 [57]-[59] (citations omitted).
There is no doubt that this was a departure from what had been said by O’Connor LJ in Polly Peck. Its effect was to substantially confine the ability of a defendant to plead meanings other than those pleaded by the plaintiff.
Charles JA recognised that he was proposing a departure from Polly Peck.[46] So also, in Advertiser, Doyle CJ made the point that:
The decisions in Hore-Lacy, Robinson and Nationwide News [Pty Ltd v Moodie] reflect the rejection of the law as stated in Polly Peck, at least to the extent that Polly Peck is authority for the proposition that, provided different meanings have a common sting, they are not separate and distinct and the defendant may justify the common sting by way of a defence of truth in relation to the meaning pleaded by the plaintiff. I consider that these decisions also indicate substantial (although not complete) support for the propositions formulated by Charles JA in Hore-Lacy.[47]
[46]Ibid 689 [63].
[47]Advertiser (2005) 91 SASR 206, 218 [70].
Thus, by an HL justification defence, a defendant denied that the publication had the meanings relied upon by the plaintiff and did not seek to justify them. A defendant did not seek to do so because it would be anomalous to confess and avoid to a meaning which, according to the defendant the publication was incapable of conveying.
Assuming that the defence succeeded to that point, assuming that the plaintiff would have been entitled to rely, as permissible variants, upon the meanings proposed by the defendant, and assuming that the defendant justified those meanings, the plaintiff would fail.
Pleadings structured in the way approved by the majority in Hore-Lacy addressed what Ormiston JA described as the special position of defamation actions, most particularly the ability of the plaintiff to go outside his pleaded case and yet succeed.[48] That ability was a consequence of the evolution of practice described at [47]-[48] above. It is unlike those cases in which, because the trial departs from the pleadings, a party may succeed on an unpleaded case.
[48]Hore-Lacy (2000) 1 VR 667, 675 [21], 676 [23] (Ormiston JA).
Pleadings so structured also avoided the prospect of a defendant raising a false issue, a matter which Brennan CJ and McHugh J addressed in Chakravarti.[49]
[49](1998) 193 CLR 519, 527-28 [8].
The pleading of a justification defence in conformity with the reasons of the majority in Hore-Lacy necessarily operated to define, together with the statement of claim, the substance of the issues to be litigated at trial. In our opinion, to treat such a defence as being no more than a matter of form, an example of the pleader’s art (or subterfuge), was to erroneously confine its importance. Rather, the statement of claim and defence set the framework for trial – what could be opened, what would be admissible evidence, how the judge should charge in a jury trial, and what issues the judge must consider in a trial by judge alone.
Next, the passages in the reasons of Brennan CJ and McHugh J in Chakravarti upon which plaintiff’s counsel relied were not necessarily inconsistent with Hore-Lacy. Each of Ormiston and Charles JJA explained how their approach could be reconciled with what Brennan and McHugh JJ had said in in Chakravarti.
The submission for the plaintiff that Hore-Lacy has led, in effect, to chaos in defamation law – if it could be decisive – does not accord with experience. The decision has produced a certain amount of interlocutory disputation in this and other jurisdictions; but not of great extent. Judges in this State have been directing juries in accordance with Hore-Lacy for more than a decade now. As we earlier noted, only one appeal from a jury verdict in all that time in this State has involved the decision, and that was a case which had unique features.[50] Counsel did not refer us to any other relevant post-trial decision in any other state or territory.
[50]The case was The Herald & Weekly Times ltd v Popovic (2003) 9 VR 1. Its unique features are adequately described in the headnote at 1-7.
We turn to Dr Collins’ opinion[51] that Hore-Lacy has involved a ‘wrong turn’. Interestingly, his criticism focuses on the way in which the decision has led to plaintiff’s cases over-reaching. We are not persuaded that any potential for misuse overcomes the wisdom of requiring pleadings and particularisation which should illuminate the issues for determination.
[51]See Matthew Collins, Collins on Defamation, n 24 above.
In all, for reasons which we have attempted to explain, Hore-Lacy was a soundly principled and very useful expression of the common law of defamation.
The second argument
Counsel for the plaintiff submitted below that what he described as the Hore-Lacy defence ‘was in substance completely covered by the s 25 defence and thus rendered otiose’. Because s 25 differed from the Hore-Lacy defence ‘only as a matter of pleading form’, by necessary implication, s 25 had ‘otherwise provided’ – see s 6(2) of the 2005 Act. The 2005 Act provided a defence identical in substance to the common law defence.
The reasons of the primary judge
In his second judgment, rejecting the submission that by necessary implication HL justification had not survived the enactment of the Act, the judge, inter alia:
(1)referred to 28 propositions which had been advanced by plaintiff’s counsel in support of his overall submissions, and explicitly accepted many of them;
(2)expressed the opinion, for reasons which he gave, that several propositions may have been expressed too broadly;
(3)observed that the alleged ‘great clarity and simplicity’ of operation of s 25 said little about whether HL justification had been abrogated by necessary implication;
(4)questioned why the attack was being made on the continued operation of HL justification if, in fact, it did not travel outside the operation of s 25; and observed that the problem may lie in the use of the words ‘in substance’ in a proposition which asserted that s 25 and HL justification operated identically; and in other propositions to similar effect;
(5)stated the gist of the plaintiff’s submissions, and his Honour’s response, this way:
39.In substance, the plaintiff contends that the Act works perfectly well without the Hore-Lacy defence, and that a defendant can legitimately defend a claim using the provisions of the Act - because the Act permits a defendant to do what the proper application of the common law (including Hore-Lacy) permits. It is then said by the plaintiff that, as a result, Hore-Lacy has been ousted by necessary implication. I reject these submissions.
40.While it might be arguable that the proper application of the provisions of the Act makes the Hore-Lacy defence otiose, that does not mean that the defence is ousted by necessary implication. There is nothing in the provisions of the Act that prevents the Hore-Lacy defence from being taken and relied upon - even if it might be said to be very similar (if not identical) in some cases to the way in which s 25 might also operate.
41.The defendants submit that s 24(1) of the Act on its face preserves the Hore-Lacy defence. While the plaintiff accepts the terms of s 24(1), he submits that the section only preserves those defences which have not been abrogated by necessary implication in accordance with s 6(2) of the Act. Questions of necessary implication have been the subject of many decisions in different areas. The common thread of these authorities is that for a statute to abrogate a right or defence by necessary implication, the implication must in truth be necessary - rather than merely reasonable or convenient. Mere difficulty of application or inconvenience will not ordinarily lead to a conclusion that a pre-existing right or defence, to which reference has not been explicitly made (or which has not expressly been abrogated) in an Act, has been ousted by necessary implication.
…
43.In the present case, when one looks at the whole of the Act, one can see that merely because a provision of the Act might cover substantially the same territory as a part of the general law covers does not mean that that part of the general law is ousted by necessary implication. For example, in the note immediately following s 24(1) reference is made to the overlapping operation of, and defences provided by, sections of the Constitution Act 1975, with the absolute privilege defence provided for by s 27 of the Act.
44.A further reason for holding that the Hore-Lacy defence has not been ousted by the commencement of the Act is the New South Wales Court of Appeal’s decision in Fairfax Media Publications Pty Ltd v Kermode (“Kermode”). In that case, McColl JA analysed the Defamation Act 2005 (NSW) in some detail before then analysing the common law - with particular reference to the issues of truth and contextual truth. In the course of her Honour’s analysis, McColl JA said:
58At the time the uniform defamation law was passed throughout Australia David Syme & Co Ltd v Hore-Lacy had been expressly accepted in most common law jurisdictions in this country as stating the extent to which a defendant might plead by way of justification imputations which ‘differed’ from the plaintiff's: see 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; John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108; (2006) 204 FLR 290; Betfair Ltd v Nason [2006] ACTSC 111; see also West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387; Hart v Wrenn & Australian Broadcasting Corporation [1995] NTSC 107; (1995) 5 NTLR 17. The uncertainty of which Levine J wrote in Whelan v John Fairfax Publications Pty Ltd (at [40] - [52]) appears to have been resolved, at least at intermediate appellate level. Such a defence was not, however, available in Queensland, a decision based on ss 4 and 7 of the Defamation Act 1889 (Qld) and the rules of pleading under the Uniform Civil Procedure Rules 1999 (Qld): Robinson v Laws [2003] 1 Qd R 81.
59In summary, at common law in Australia:
(a)a defendant seeking to justify defamatory matter had to prove all stings of the defamatory matter relied upon by the plaintiff were substantially true;
(b)a defendant seeking to justify defamatory matter could not do so by seeking to plead and justify an imputation with a substantially different sting from that or those pleaded by the plaintiff; a defendant could only plead nuance imputations; and
(c)if a defendant could only establish that one of two or more stings relied upon by the plaintiff was substantially true, the defence of justification failed, but the evidence led to establish that defence could be relied upon in mitigation of damages: Channel Seven Sydney Pty Ltd v Mahommed (at [158]); P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell (at [35.14]) (‘Gatley’).
45.The reference to “nuance imputations” in paragraph [59(c)] of McColl JA’s judgment in Kermode was a reference to permissible variants as described in Hore-Lacy.
46.The plaintiff submitted that I was not bound to follow Kermode. Kermode, it was submitted, was a case that dealt solely with the question of whether under s 26 of the Defamation Act 2005 (NSW) a defendant could “plead back” any or all of the plaintiff’s imputations as part of a contextual truth defence. While the practice of pleading back the plaintiff’s imputations under the contextual truth defence provided for in s 16 of the Defamation Act 1974 (NSW) had been permitted, the Court in Kermode concluded that this course was not permissible under the terms of s 26 of the 2005 Act. That being the issue in Kermode, the plaintiff submitted that McColl JA’s analysis of Hore-Lacy and her Honour’s conclusion that the Hore-Lacy defence was now available in New South Wales was mere obiter dicta on an issue that was not argued and was not the subject of any submissions by the parties.
47.It can be accepted that statements in Kermode concerning the applicability of the Hore-Lacy defence to New South Wales causes of action were obiter. Nevertheless, with respect, and for the reasons I have already given, I see no error in McColl JA’s analysis or conclusions. In my respectful view, her Honour’s analysis is correct. Even if I had any doubt (which I do not), having regard to the uniform nature of the Defamation Acts, I would not depart from the conclusions in Kermode unless I was satisfied that they were clearly wrong (which I am not).
48.It follows that I reject the plaintiff’s submissions that a Hore-Lacy defence is unavailable in law. Further, I should say that I have not found against the plaintiff on this issue merely on the basis that the existence of the defence is sufficiently arguable to allow the defendants to maintain the defence at this stage. During argument, senior counsel for the plaintiff submitted that I should determine, not at a pleadings level, but at a trial of a preliminary question level, whether the Hore-Lacy defence is an available defence following the commencement of the Act. The defendants resisted that course saying that the issue was not appropriate for the trial of a preliminary question. While that may be so, I have in any event concluded that the Hore-Lacy defence remains an available defence following the commencement of the Act.[52]
Legislation
[52]Second judgment [39]-[41], [43]-[48] (citations omitted).
It is next convenient to set out the text of ss 6(2) and 25 of the 2005 Act, upon which plaintiff’s counsel relied in this connection:
6. Tort of defamation
6(2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication).
25 Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
Other sections are also of relevance. We should set out ss 8 and 24(1):
8 Single cause of action for multiple defamatory imputations in same matter
A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter.
Scope of defences under general law and other law not limited
24(1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.
We should mention also the definitions, in s 4, of ‘general law’ and ‘substantially true’. The former is defined to mean ‘the common law and equity’. The latter is defined to mean ‘true in substance or not materially different from the truth’.
‘Matter’ – used in s 8 in the composite term ‘defamatory matter’ – is also defined by s 4. Relevantly, ‘matter’ includes ‘an oral utterance’ and ‘a report … communicated by means of television’.
Submissions for the plaintiff
We return to counsel’s submissions. Below, plaintiff’s counsel relied upon 28 propositions, which the judge set out in his reasons.[53] We will not repeat them. Before this Court, counsel complained, in written submissions, that the judge had not unequivocally accepted or rejected each of his propositions. According to the submission, ‘the propositions needed to be either accepted or rejected unless they could be said to have been irrelevant (for reasons stated)’. That proposition overstates his Honour’s obligation, which was to consider the gist of the competing submissions and resolve the dispute joined. Important as counsel may consider each of their submissions to be, a judge is not obliged to slavishly mention and finally dispose of each of them, if to do so would not assist resolution of the dispute before the Court.
[53]Second judgment [28].
In this Court, counsel further submitted in writing that:
(1)It was essential for the judge to demonstrate that what he called the Hore-Lacy defence (we will use counsel’s description rather than ‘HL justification’ whilst summarising his argument) gave a defence not existing in substance under s 25 of the 2005 Act. That, the judge had failed to do.
(2)Section 6(2) of the 2005 Act preserves common law defences, but not common law procedural matters. The Hore-Lacy defence is ‘simply a common law defence of truth with an adjectival or procedural change’.
(3)Because the Hore-Lacy defence must be no different in substance from the plaintiff’s meanings, the only permissible differences are differences in form. They do not amount to differences in substance. Under s 25, a defendant can plead ‘truth in substance’, leaving nothing for a Hore-Lacy defence to do.
(4)Section 25 operates simply. The Hore-Lacy defence provides no additional substantive defence. That is a good indication that the Hore-Lacy defence has been impliedly repealed by s 25. The observation of the judge that because a plaintiff may succeed not only on his pleaded imputation but also on one that is the same in substance, it follows that a defendant can plead a truth defence not only to the plaintiff’s imputation in form, but also to that imputation as a matter of substance, does not advance any argument as to why the Hore-Lacy defence is different in substance from the s 25 defence. That is because s 25 provides a defence of ‘truth in substance’ to any plaintiff’s imputation. Thus, in substance, s 25 operates identically with the Hore-Lacy defence.
(5)The judge had failed to fully summarise the arguments for the plaintiff at [39] in his reasons.
(6)The judge adopted too onerous a test in deciding whether the Hore-Lacy defence had been impliedly repealed. Substantial difficulties of application or inconvenience can be a subsidiary factor pointing towards necessary implication. Further, in adopting an onerous test of necessary implication, the judge erred. The 2005 Act can be said to provide otherwise by necessary implication if the Hore-Lacy defence is rendered otiose by provisions of the Act which wholly supplant its operation as a matter of substance.
(7)The reasons for judgment of McColl JA in Kermode, so far as they state that the Hore-Lacy defence is an operative part of the common law, were ‘very wide obiter’, having ‘nothing to do with the issue for decision’. For this and for six other reasons, most of which appear to us to be closely interrelated, the judge was wrong to rely upon her Honour’s conclusion.
What we have set out above appear to us to be the key aspects of counsel’s written submissions. We have avoided, so far as possible, the repetition which is present in them.
Orally, counsel emphasised his submission that all the majority judges did in Hore-Lacy was to articulate a pleading rule which was bad practice, as this Court should now hold. The decision was ‘plainly wrong’. The rule was ‘novel’ and ‘wholly contrary’ to the rules of pleading. The judgments of Brennan and McHugh JJ in Chakravarti, and the dissenting judgment of Callaway JA in Hore-Lacy, showed why that was so. The primary judge had recognised that the rule gave rise to problems. The rule gave rise to problems in pre-trial management of cases. In any event – and importantly for the second argument which counsel pursued – even if it was sound, it was only a pleading rule, and hence was not preserved by the 2005 Act.
Submissions for the first defendant
Counsel for the first defendant submitted in writing that HL justification remains part of the law because:
(1)The 2005 Act preserves the common law. The cause of action is the publication of defamatory matter, not imputations. Compare s 9 of the 1974 Act.
(2)At the time when the 2005 Act was enacted, most common law jurisdictions in Australia recognised that a defence of the Hore-Lacy kind pleaded common law truth.
(3)The plaintiff’s submissions focused on s 6(2) of the 2005 Act, rather than s 24(1), the latter of which specifically relates to defences. Those defences should be taken to include truth at common law.
(4)The Explanatory Memorandum to the 2005 Act suggests an intention of preserving common law truth defences which pick up variant meanings (albeit that reference to Polly Peck in connection with the defence of contextual truth was inapposite).
In oral submissions, counsel took the Court to a number of provisions in the 2005 Act which revealed, he argued, the way in which aspects of the common law of defamation co-exist with provisions of the statute. He submitted that his analysis showed, relevantly for present purposes, that many statutory and common law defences co-exist. Common law justification and statutory justification exemplify such co-existence. His analysis, counsel contended, was fortified by the Explanatory Memorandum, to which reference could be had without there being a pre-requisite of textual uncertainty. He submitted that if the 2005 Act had been intended to do away with common law defences, that could have been done by clear language as in the Defamation Act 2013 (UK).
Counsel pointed to the existence, in the Defamation Act 2005 (NSW) of s 6(3), a provision not found in the 2005 Act. That subsection provides, in substance, that without limiting sub-s (2) – which is the same as the Victorian sub-s (2):
The general law as it is from time to time applies … as if the following legislation had never been enacted:
(b) the Defamation Act 1974
…
This was an attempt to ensure, counsel submitted, that the ‘dead hand of the 1974 Act’ – by which each pleaded imputation was a separate cause of action – did not re-surface.
Counsel made it clear that his primary submission was that common law HL justification may still be pleaded, as the judge had held. Counsel did not rely upon the availability of HL justification under s 25 of the 2005 Act. But he submitted that, if s 25 permits a plaintiff to succeed on unpleaded variants of pleaded imputations, then a defence in the same form as an HL justification defence should be permitted under that section.
Counsel submitted also that nothing could be made of Bremridge v Latimer,[54] an old authority to which Brennan CJ and McHugh J had referred in Chakravarti, and which plaintiff’s counsel had called in aid of his criticism of Hore-Lacy. He argued that Charles JA had been correct to say in Hore-Lacy that:
I would doubt, with great respect, how much assistance is really to be gained by minute scrutiny of decisions of defamation practice in the nineteenth century.[55]
Submissions for the second defendant
[54](1864) 12 WR 878 (‘Bremridge’). Plaintiff’s counsel referred to Bullen & Leake’s Precedents of Pleadings (3rd ed, 1868), where Bremridge was cited at page 762 for the proposition that ‘[I]t is not allowable to add to the words in the declaration, or to assert a different meaning, and to justify in a sense different to that alleged’.
[55]Hore-Lacy (2000) 1 VR 667, 687 [55].
Counsel for the second defendant submitted in writing that:
(1)the 2005 Act provides additional statutory defences. By s 24(1), it expressly does not intend to vitiate, limit or abrogate any other defences, including defences under the general law. Section 24 is the leading provision against which the intention of s 25 is to be discerned, not s 6(2); and
(2)the plaintiff had never clearly stated that s 25 replicates a Hore-Lacy justification defence in every respect and in every case. If that had been the plaintiff’s contention, counsel could have been expected so to submit.
Resolution
There are four possible approaches to resolving the question whether HL justification may be pursued under the 2005 Act. Any of the first three yields an outcome favourable to the defendants. The fourth would yield an outcome favourable to the plaintiff.
The first approach lies in the submission for the defendants that s 24(1) of the 2005 Act, by specifically preserving defences under the general law, preserves an HL justification defence. That submission is met by the argument, advanced for the plaintiff, that a defence preserved by s 24(1) is subject to its exclusion by necessary implication – see s 6(2); and that there is a necessary implication because s 25 covers the field which an HL justification defence addressed.
An additional argument against the defendants’ submission – which the plaintiff at its highest advanced tangentially, because counsel said virtually nothing about s 24 – was that, for the purposes of s 24, a defence under the general law, so far as it could be relevant, must be understood as the defence of justification; and that HL justification is a pleading formula of that defence, and so is not independently preserved.
The second possible approach to resolving the issue under consideration focuses on s 6(2) of the 2005 Act. Let it be assumed that s 24 does not preserve an HL justification defence. Section 6(2) is broader than s 24. Subject to exception, ‘the general law in relation to the tort of defamation’ is given continued operation. So, it may be argued, HL justification is preserved.
The answers for the plaintiff are twofold. First, that the common law is only preserved as to substantive – not adjectival[56] – law. Second, that s 25 covers the field, for which reason HL justification is excluded by necessary implication.
[56]Or, as it may be called, ‘procedural’.
The third possible approach is that HL justification is neither preserved by s 24 nor by s 6(2), but that s 25 does not cover the field, HL justification remaining an available pleading in a s 25 defence. The plaintiff’s response is that s 25 does cover the field.
The fourth possible approach is that HL justification is not preserved by s 24 or by s 6(2), and that s 25 does cover the field.
In our opinion, for the reasons which follow, HL justification can be pleaded in a proceeding brought under the 2005 Act. The preferable explanation is that a common law defence in that form is preserved by that Act. But otherwise it should be concluded that a pleading in that form is available in pursuing a defence under s 25 of the 2005 Act.
We will first explain that conclusion without reference to the recent decision of McCallum J in Bateman v Fairfax Media Publications Pty Ltd (No 2),[57] and then explain why that decision has not caused us to change the opinion which we had otherwise formed.
[57][2014] NSWSC 1380 (‘Bateman’).
Before the 2005 Act was enacted, the common law had reached the point that a plaintiff was required to plead meanings of a defamatory publication.[58]
[58]At least in all but a case in which the defamation was singular and evident – as by accusing the plaintiff of murder.
The common law also recognised that, because the plaintiff sued on the publication, the single cause of action residing in the defamatory publication, he or she should be able to succeed on a meaning which was not pleaded but which was not substantially different from and not more injurious than the meanings pleaded.
Under the 1974 Act, each imputation sued upon constituted a separate cause of action. By Pt 67 r 11(3) of the Supreme Court Rules 1970 (NSW) (‘the 1970 Rules’) a plaintiff was prohibited from relying upon more than one imputation allegedly made by the defendant by means of the same publication unless the imputations differed in substance. The need for precise definition of the imputations complained of was held to be a matter of prime importance in the conduct of defamation litigation. There were, as we understand it, two reasons why that should be so. The first was that each imputation gave rise to a cause of action. Not only did r 67.11(2) provide that each imputation should be specified, but:
Ordinary principles of pleading, fairness to a defendant, and the need for clarity of issues at a trial, all require adequate specification by a plaintiff of the imputation or imputations sued upon.[59]
The second was that precision in specification enabled an understanding whether the pleaded imputations differed in substance – vide r 67.11(3).
[59]Drummoyne Municipal Council v Australian Broadcasting Commission (1990) 21 NSWLR 135, 136 (Gleeson CJ) (‘Drummoyne’).
In this setting, there were numerous interlocutory disputes over the years which turned upon the precise language in which imputations were framed.
The Attorney-General for New South Wales, in his Second Reading Speech on what became the Defamation Act2005 (NSW), referred to a speech by the former Defamation List judge in the Supreme Court of that State. There, extra-judicially, his Honour had lamented the ‘excruciating and sterile technicalities’ that resulted from making the imputation the cause of action. His Honour had said that:
Fortnight after fortnight I have to deal with arguments concerning whether a pleaded imputation is proper in form and is capable of arising from the relevant publication … The amount of the court’s time let alone litigants’ resources, expended profligately in the determination of what words, sentences and phrases mean is positively scandalous; and this is at the initiation of proceedings. … Matters of principle have been elevated to an obsessive preoccupation, the playthings of forensic ingenuity, fantasy and imagination at the expense of the early, quick and cheap litigation of real issues that affect the people involved in libel actions.
The Attorney-General stated that:
Clause 8[60] will finally put an end to the needless complexity that his Honour described. Clause 8 reflects the position at common law by making it clear that it is the publication of defamatory matter that is the basis for a civil action for defamation.
[60]Which is the same as s 8 of the NSW Act as passed, and s 8 of the Victorian Act.
The Attorney-General evidently supposed that the 2005 legislation,[61] by entrenching the common law position that a plaintiff sued on the defamatory matter published, rather than suing separately in respect of each meaning allegedly conveyed, would resolve the problems perceived as resulting from the contrary position under the 1974 Act. Whether, in New South Wales, such a resolution has in fact been achieved is another matter.[62]
[61]Its form was very largely replicated in other jurisdictions - inter alia, by the 2005 Act - in order to achieve the purpose of promoting uniform laws of defamation in Australia.
[62]See, for instance, the reasoning in Bateman discussed at [135] below, our observations at [138]-[139], the concession in Bateman noted at [127] and our discussion at [226] and [232].
By s 8 of the 2005 Act, a plaintiff sues on the defamatory matter. Consistently with the development of the common law, however, it is implicit in s 8 that a plaintiff must plead the imputation or imputations upon which he or she relies. ‘Imputation’ where used in s 8 connotes what the common law sometimes referred to as ‘meaning’; and sometimes, interchangeably, ‘imputation’. The common law has a part to play in giving meaning to words used in the Act. Sections 6(1) and (2) of the Act are in point.
It would not be consistent with the common law if a plaintiff was confined to the imputations pleaded.[63] It must be accepted that a plaintiff will be entitled to succeed on unpleaded variants which meet the description noted at [48] above.
[63]Nor would it be consistent, not that it is decisive, with Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, 771 (‘Morosi’), where the New South Wales Court of Appeal held that a plaintiff could succeed, in respect of the cause of action constituted by a particular imputation, upon a meaning which did not differ in substance from the imputation pleaded.
The same conclusion was reached, on this occasion in an appeal after trial, by the Queensland Court of Appeal in Mizikovsky. That was a case decided under s 26 of the Defamation Act 2005 (Qld). Fraser JA, who gave the leading judgment, referred approvingly to the judgment of Spigelman CJ in Blake. Although his Honour referred to Kermode in another connection, he said nothing about it in relation to the present issue.
There would be logic, we think, in treating the use of particulars in a pleadings dispute concerning the specificity of a contextual imputation, and in resolving the success or failure of a contextual truth defence at trial, in the same way. To do so would seem to be the consequence of the approach of Spigelman CJ in Blake. If that be the correct analysis, then it can certainly be said that the passage from Blake cited at [284] above has been followed in later decisions of the New South Wales Court of Appeal, was cited with apparent approval in Mahommed, and has been applied by the Queensland Court of Appeal in the context of the 2005 legislation. In those circumstances, it certainly cannot be said that the authorities are all one way except for Blake, which was the plaintiff’s submission; and, on balance, the learning can be said to support a conclusion that particulars can be used to give specificity to a defendant’s contextual truth imputation. Even so, for the reasons which follow, we do not consider it necessary to attempt a final resolution of the question.
Having set out the way in which the primary judge disposed of the vagueness issue, having outlined counsel’s submissions, and having discussed the authorities which were cited, we can now express our conclusions in respect of ground 4.
Neither counsel differentiated between the HL justification defence and the contextual truth defence in their submissions upon this ground. There may, however, be reasons why the approach should not be exactly the same in the two situations. The HL justification defence, we have concluded, is properly regarded as a common law defence which is still available under the regime established by the 2005 Act. We were not referred to any case, and we know of none, where it has been distinctly held that what would otherwise be an impermissibly vague imputation could be rendered sufficiently precise by recourse to particulars of truth.[192] Such particulars are not particulars of a defendant’s imputations. Illustrating the point, at trial the jury never gets to the particulars of truth in the context of the HL justification defence unless it first determines that the defendant’s imputations were permissible variants of the plaintiff’s imputations, this requiring that meaning be given to the defamatory publication.
[192]In Watt, as we understand it, Hedigan J referred only to the possibility that particulars of an imputation might render it sufficiently precise. But it seems very likely that the matter was not fully argued, and in any event we do not think that his Honour was referring to particulars of truth.
On the other hand, the requirement of specificity of an imputation in respect of a contextual truth defence, and the possible use of particulars in that connection, have been the subject of specific consideration. Resolution of that question was informed by s 16 of the 1974 Act; and will be informed by s 26 of the 2005 Act. The same can be said of the ‘no further harm’ provision, which was s 16(2)(c) of the 1974 Act and which is s 26(b) of the 2005 Act.
Notwithstanding that the HL justification defence is, in our view, still to be characterised as a common law defence, and notwithstanding that a contextual truth defence is a statutory concept, we think that there would be a good deal to be said for treating the defences similarly with regard to the use of particulars in pleadings disputes. The present case shows why that could be so, the same imputations and particulars being deployed for different purposes. If the true position is that particulars may be used to give specificity to a contextual truth imputation, it would be discordant if that were not also the case with an HL justification defence.[193]
[193]Whether the analogy could be stretched to use of particulars at trial in the context of the two defences is another matter, and we say nothing about it.
But to decide now that particulars of truth could be used to give precision to an HL justification defence which was otherwise impermissibly vague would be to develop the law in the absence of discrete submissions touching on that matter. We would not do so. We therefore approach consideration of ground 4 on the footing that the sufficiency of precision of an HL justification defence depends upon the imputation itself.
So approached, we are not at all persuaded that the judge erred in concluding that the imputations pleaded by the HL justification defences were not impermissibly vague. What the imputations do is to use words spoken by the first defendant, and expressed very generally by him. The case is not one in which the imputations make use of words not used in the defamatory matter. Nor is it a case in which, whatever possible dictionary definitions there may be of ‘intimidation’, ‘thuggery’ and ‘extortion’, the first defendant’s spoken words evoked some particular variant meaning. Again, whilst ‘unlawful behaviour’ could be used to describe conduct of various kinds, the words spoken by the first defendant did not assign a particular meaning to the term which made it obligatory for the defendants to delimit the imputation by which the HL justification defence pleads unlawful conduct.
Insofar as it was submitted for the plaintiff below, as the judge noted, that the defendants should have pleaded their imputations with greater precision by confining them to the plaintiff’s actions ‘as a union official’, we do not accept that this would give precision where it was otherwise lacking. To take an example, the various dictionary definitions of ‘intimidation’ to which plaintiff’s counsel referred the Court have nothing to do with the context in which intimidation takes place.
We turn to the contextual truth imputations. What we have thus far said about the imputations in the context of the HL justification defence equally applies.
We should next say that the text of [63] in the second judgment leaves it very doubtful whether the judge in fact had regard to particulars for the purpose of giving specificity to imputations which might otherwise have been too vague. That doubt is magnified when regard is had to his Honour’s later assumption that s 26 of the 2005 Act requires a comparison of imputations.[194] This is not to say unequivocally that his Honour would have been wrong to do so. There is respectable authority for the proposition that it is permissible, in some circumstances, to give specificity to what would otherwise be an impermissibly vague contextual truth imputation.[195] If the need arose, this would seem to us to be such a case. The particulars upon which the defendants rely are squarely wedded to the plaintiff’s alleged conduct in the industrial sphere, and the risk of which Hodgson JA spoke in Hodgkinson – of a broadly expressed imputation permitting particularisation travelling well beyond the compass of the impugned publication – demonstrably does not arise.
[194]Second judgment [67], n 60.
[195]But saying nothing about the use of particulars for a s 26(b) purpose - although the statute would suggest that the same situation should apply.
In all, a factual basis for the plaintiff’s attack under cover of ground 4 is absent.
Ground 5
Submissions for the plaintiff
At the heart of the plaintiff’s submissions on proposed ground 5 were the propositions that: (1) in a defence reliant upon s 26 of the 2005 Act, a defendant’s contextual truth imputations must differ in substance from the plaintiff’s imputations or permissible variants thereof; (2) the judge had stated, in the context of the HL justification defence, that the defendants’ pleaded imputations (which were the same in the case of each of the HL justification and contextual truth defences) were not different in substance from the plaintiff’s imputations (or permissible variants); (3) it was for the judge, not the jury, to decide whether imputations differed in substance, so the matter could not be left to the jury at trial; and (4) that being so, the contextual truth defences must fail, and should be struck out.
Defendants’ submissions
It was submitted for the first defendant that: (1) the judge had dealt with a pleadings dispute; (2) his Honour had rightly dealt with the strike out application referable to the HL justification defence by concluding that it would be open to a jury to find that there was not a substantial difference in the imputations pleaded by the plaintiff and by the defendants; (3) his Honour, correctly, had not determined the question whether there was in fact a substantial difference between those imputations. That was for the jury; (4) the HL justification defence and the contextual truth defence are, for practical purposes, alternatives. In the defences, they are pleaded as ‘further, or in the alternative’; (5) an HL justification defence might fail because the jury concluded that the defendants’ imputations were not a permissible variant of the plaintiff’s imputations. That would leave open the prospect that the jury would conclude that the defendants’ imputations, being different in substance, were additional imputations, were substantially true and met the test set by s 26(b) of the 2005 Act – (in which circumstances the contextual truth defence would succeed); (6) it was unnecessary, at this time, to consider divergent views expressed in Blake[196] as to the correct methodology for establishing the ‘further harm’ aspect of a contextual truth defence.
[196](2001) 53 NSWLR 541.
Resolution
There is nothing to this ground. The defendants’ submissions are correct. The judge did not decide that the plaintiff’s and the defendants’ imputations were not substantially different in the context of his consideration of the HL justification defence. Having regard to the argument pursued under proposed ground 5 it is ironic, indeed, that the complaint raised by the first argument pursued for the plaintiff under cover of ground 2 was that his Honour failed to make such a finding when he was obliged to do so. The HL justification and contextual truth defences are, at the very least in a practical sense, alternatives. All that the judge did, in a
strike-out application on a pleading summons, was to conclude, in substance, that the jury might properly find one or other defence made out. That provides no
occasion for striking out the contextual truth defence.
Orders
Under cover of grounds 1, 2(a) and (b), 3 and 4 the plaintiff advanced both legal and factual submissions. Although we have rejected those submissions for the reasons which we have given, we would grant the plaintiff leave to appeal on those grounds but would dismiss the appeal. We would refuse the plaintiff leave to appeal on grounds 2(c) and 5.
WHELAN JA:
I agree with Warren CJ and Ashley JA in relation to grounds 3, 4 and 5. Subject to the qualification below, I also agree with them in relation to grounds 1, 2(a) and 2(b). I agree with their conclusion concerning ground 2(c) for the reasons I set out below.
As to grounds 1, 2(a) and (b), I agree with Warren CJ and Ashley JA that:
(1)the principles articulated by the majority in David Syme & Co Ltd v Hore-Lacy (‘Hore-Lacy’)[197] were part of the common law of Victoria prior to the passage of the Defamation Act 2005 (‘the Act’);
(2)those principles remain part of the law of defamation in this State; and
(3)where a defendant pleads a variant meaning pursuant to the principles articulated in Hore-Lacy, the role of the judge is to determine whether that variant meaning is capable of falling within those principles.
[197](2000) 1 VR 667.
The qualification which I would add to the reasons they have given for these
conclusions is the following.
The principles set out by the majority in Hore-Lacy regulate the way in which a defendant must plead its case in a circumstance where it seeks to justify a meaning which is not the meaning pleaded by the plaintiff but which is a meaning upon which the plaintiff might obtain a verdict on the plaintiff’s pleading as it stands. The majority in Hore-Lacy decided that a defendant in that position must not only give particulars of the justification but must also plead the variant meaning.
It seems to me to be clear in all of the judgments in Hore-Lacy that the issue addressed was one of pleading.
Ormiston JA repeatedly articulated the relevant issue as being how a defendant should ‘plead’ or ‘deal with’ the issue.[198] He referred to the Victorian pleading rules,[199] and in particular Order 13.[200] He described the nature of the problem in the following terms:
[T]he Court is here dealing with certain rules of pleading and practice in defamation actions …[201]
[198]Ibid 669 [5], 673 [16], 675 [21].
[199]General Rules of Procedure in Civil Proceedings 1996 the relevant provisions of which have since been repealed and replaced with identical provisions in the Supreme Court (General Civil Procedure) Rules 2005.
[200]Ibid 674 [18].
[201]Ibid 676 [23].
As to the solution, he described it as:
The pleading rule which Charles JA and I would adopt …[202]
[202]Ibid 676 [24].
Charles JA dealt with the issue in the same way.[203] He made the nature of the principles articulated clear in his conclusion that a defendant was ‘obliged’ to plead its defence in the manner explained ‘in order to comply with RSC rr 13.07(1) and 13.10’.[204] Rule 13.07 is the Victorian rule which regulates matters which must be pleaded and r 13.10 regulates particulars.
[203]Ibid 678–9 [33], 680–1 [39], 686–7 [54], 688 [58].
[204]Ibid 688 [59].
The point of disagreement between the majority and Callaway JA was not as to any issue of the substantive law of defamation but rather as to whether as a matter of pleading a defendant should ‘be required to suggest meanings’.[205] Callaway JA also expressly addressed rr 13.07(1) and 13.10, finding them to be too general to resolve the issue.[206]
[205]Ibid 691 [70].
[206]Ibid 691 [71].
Thus, it seems to me that there is no such thing as a separate ‘defence’ based on the principles set out in Hore-Lacy. The defence is justification. Prior to the Act, Hore-Lacy regulated the way in which that defence may, and indeed, where the principles apply, must be pleaded. As Warren CJ and Ashley JA point out, however, the pleadings are important. They set the framework for the trial.
Given these conclusions, it seems to me that there is no sense in which any ‘Hore-Lacy defence’ exists separately to the defence now provided for in s 25 of the Act. There never was any separate ‘Hore-Lacy defence’ and there is no such separate defence now. My conclusion is that s 24(1) of the Act has no relevant operation in this regard.
Warren CJ and Ashley JA have concluded that the principles set out in Hore-Lacy are either preserved as part of the continuing operation of the general law independently of the Act or else are an available pleading in the defence under s 25 of the Act. They prefer the former alternative. I prefer the latter. My reason is that the Hore-Lacy principles are principles which govern pleadings. If they were correctly applicable to justification at common law, they are applicable under s 25 of the Act for the same reasons. I agree with the reasons Warren CJ and Ashley JA have given for rejecting the submission that the terms of s 25 have rendered the Hore-Lacy principles unnecessary or otiose. To the extent it is necessary to have recourse to s 6(2) of the Act, that provision confirms and fortifies the conclusion the Hore-Lacy pleading principles continue to apply.
I turn to ground 2(c) in which it is contended that the primary judge erred in finding that the defendants’ imputations are arguably not different in substance from the plaintiff’s imputations.
It became clear in the course of argument before us that the critical issues in this litigation all arise out of the references made by the first defendant to ‘home visits’.
The plaintiff advances an interpretation of what was said whereby, what I might call the ‘home visits’ component, is a part of each defamatory meaning alleged. The defendants advance an interpretation of what was said whereby the ‘home visits’ component is absent from each alleged variant meaning.
The defendants’ particulars of justification are detailed. If established by evidence, they are capable of justifying the defendants’ alleged variant meanings. No conduct is particularised which involves any ‘home visits’. If the ‘home visits’ component is significant, as matters stand it seems that the defendants cannot justify it.
On the other hand, when it was put to the plaintiff’s counsel that the ‘home visits’ component seemed to be the only aspect of what was said that the defendants could not justify, senior counsel did not contest that proposition but rather submitted, in effect, that defendants who went too far would and should be held to account for that.
Senior counsel for the plaintiff sought to preclude reliance upon the alleged variant meanings (without the ‘home visits’ component), by conceding before us, for the first time according to counsel for the defendants, that if the plaintiff failed to establish that the ‘home visits’ component was a part of what was said about the plaintiff (properly interpreted), then the plaintiff would fail at the outset. Thus, it was said that the variant meanings could not be meanings upon which the plaintiff might obtain a verdict, and the defendants could not purport to justify them under Hore-Lacy.
Warren CJ and Ashley JA refer to this submission suggesting that it was perhaps counsel’s way of emphasising the significance of the ‘home visits’ aspect of each of the imputations. It seems to me to go further than that. In the course of argument senior counsel for the plaintiff was articulating a case whereby the ‘home visits’ component of what was allegedly said is fundamental and essential to the plaintiff’s claim. This position is not clear on the pleadings as they currently stand, and the matter does not seem to have been put that way to the primary judge at either of the two prior hearings. Indeed, the catalogues of differences which have been produced and relied upon by counsel for the plaintiff tend to obscure that central point.
If it were accepted that the ‘home visits’ component was fundamental and essential, in the way in which I think the matter was put by senior counsel for the plaintiff before us, then the defendants’ variant meanings could not fall within the ambit of the principles dealt with in Hore-Lacy because they would not be meanings upon which the plaintiff could succeed.
The concession made is relevant to ground 2(c). In ground 2(c) the plaintiff contends that the primary judge erred in finding that the respondents’ imputations are arguably not different in substance from the plaintiff’s. The ground is an alternative to grounds 2(a) and (b). It assumes (contrary to the plaintiff’s primary submission) that the judge’s role is to decide whether the defendants’ imputations are capable of falling within the Hore-Lacy principles.
In my view leave to appeal should be refused on ground 2(c) for the following reasons:
(1)Absent the concession made, the judge’s conclusion that the variant meanings were capable of falling within the Hore-Lacy principles was one which was reasonably open on the pleadings.
(2)The concession was not made to the primary judge and would not bind the plaintiff. An oral concession, whose meaning and effect can be later debated, is not a satisfactory means of defining and limiting issues in litigation.
(3)The issue can and should be addressed again at trial. In that context the concession, if repeated before the jury, might well be determinative of the matter.
(4)The matters particularised by the defendants in relation to justification are also relied upon in relation to the defence of contextual truth and mitigation of damages. Striking out the justification defence will not have any significant practical effect on the evidence to be led at trial.
For these reasons, in my view whilst there is doubt as to the correctness of the decision below it is insufficient to warrant a grant of leave to appeal, and substantial injustice will not occur if leave is refused supposing the decision to be wrong.
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