Setka v Abbott (No 2)
[2013] VSC 726
•20 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No S CI 2012 2780
| JOHN SETKA | Plaintiff |
| v | |
| THE HONOURABLE TONY ABBOTT MP | First Defendant |
| and | |
| AUSTRALIAN NEWS CHANNEL PTY LTD (ACN 068 954 478) | Second Defendant |
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JUDGE: | BEACH JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2013 | |
DATE OF JUDGMENT: | 20 December 2013 | |
CASE MAY BE CITED AS: | Setka v Abbott & Anor (No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 726 | |
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DEFAMATION – Practice and Procedure – Pleadings – Defences – Polly Peck imputations – Contextual truth imputations – Whether imputations bad in form – Whether Polly Peck defence a defence known to law – David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 considered – Whether Polly Peck defences embarrassing – Whether defendant required to specify to which plaintiff’s imputation a Polly Peck imputation relates – Whether existence of Polly Peck defence necessitates striking out contextual truth defence – Defamation Act 2005, ss 6, 8, 24, 25 and 26.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G O’L Reynolds SC with Ms R L Enbom | Slater & Gordon |
| For the First Defendant | Mr M F Wheelahan SC with Dr T J F McEvoy | Arnold Bloch Leibler |
| For the Second Defendant | Mr S A O’Meara SC with Mr A T Strahan | Johnson Winter Slattery |
HIS HONOUR:
Introduction and Background
The plaintiff is and was at all relevant times Divisional Branch Assistant Secretary of the Victorian Divisional Branch of the Construction and General Division of the Construction, Forestry, Mining and Energy Union (“CFMEU”) and Divisional Senior Vice-President of the Construction and General Division of the CFMEU. On 10 February 2012, the first defendant was the Leader of the Federal Opposition in the House of Representatives. The second defendant is the operator of a subscription television service accessible by subscribers in Sydney, Melbourne, Brisbane, Gold Coast, Canberra, Adelaide and Western Australia in which subscribers may select and thereby view items including items titled “Sky News”.
This proceeding concerns the following words (“the words”), alleged to have been spoken by the first defendant at a conference of the Master Builders Association of Victoria on 10 February 2012, and alleged to have been re-published on the same day by the second defendant on Sky News:
Question: How do you propose the MBA actually move forward with, some sort of campaign to support the ABCC?
First defendant: 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]As spoken by the first defendant.
[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]As spoken by the first defendant.
In this proceeding, the plaintiff claims damages for defamation from the defendants in respect of the publication of the words. The plaintiff alleges 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 3(a) and (b) above.
As part of their defences, each defendant has pleaded Polly Peck[4] and contextual truth[5] defences in identical form.
[4]Polly Peck (Holdings) Plc v Trelford [1986] 1 QB 1000.
[5]Section 26 of the Defamation Act 2005.
By their Polly Peck defences, the defendants allege that 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.
Particulars of the truth of these meanings are given by both defendants (again in identical terms). In pleading their contextual truth defences, both defendants rely upon the same imputations they pleaded in their Polly Peck defences.
On 31 October 2013, the plaintiff sought, amongst other things, to strike out the defendants’ Polly Peck defences and contextual truth defences. The plaintiff sought to strike out the Polly Peck defences on two bases. First, he contended that the Polly Peck imputations were incapable of arising; and secondly, he contended that the Polly Peck imputations were not permissible variants of the plaintiff’s pleaded meanings. In respect of the contextual truth defences, the plaintiff submitted that if the defendants’ Polly Peck imputations were not struck out, then the contextual meanings (and the contextual truth defences) should be struck out because a jury could not reasonably conclude that the plaintiff’s meanings did not further harm the plaintiff’s reputation because of the substantial truth of the defendants’ meanings.
On 12 November 2012, I dismissed the plaintiff’s application.[6] On that day I published reasons setting out further detail about this proceeding.[7]
[6]Setka v Abbott & Anor [2012] VSC 534.
[7]Ibid.
On 26 November 2012, the plaintiff filed an application for leave to appeal the decision to dismiss his strike out application. By a proposed notice of appeal dated 20 March 2013, the plaintiff limited his complaint (which had previously been wider) to the decision not to strike out the defendants’ Polly Peck and contextual truth defences.
On 28 November 2013, the plaintiff’s application for leave to appeal came on before the Court of Appeal. The plaintiff’s application for leave to appeal was dismissed on that day, for reasons published on 3 December 2013.[8] In the order dismissing the plaintiff’s application for leave to appeal, the Court of Appeal noted in other matters that the plaintiff was not precluded from bringing a further application for leave to appeal based upon ground 2 of his proposed notice of appeal of 20 March 2013.
[8]Setka v Abbott & Anor [2013] VSCA 345.
In its reasons for dismissing the plaintiff’s application for leave to appeal, the Court of Appeal noted that the plaintiff wished to pursue five grounds, four of which were new and had not been argued at first instance. As it was put by the Court of Appeal:
Essentially, the plaintiff sought to argue –
§By ground 1, which is new … that a Polly Peck 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.[9]
[9]Setka v Abbott & Anor [2013] VSCA 345 [15].
By an amended summons dated 9 December 2013, the plaintiff now seeks to pursue the grounds which he wished to pursue before the Court of Appeal. However, in addition to seeking to pursue grounds 1, 3, 4 and 5 referred to above, the plaintiff also seeks to pursue what was ground 2 before the Court of Appeal, namely that the defendants’ pleaded imputations were materially different from those pleaded by the plaintiff. This was an argument pursued by the plaintiff and ruled upon in the plaintiff’s original application.[10]
[10]Setka v Abbott & Anor [2012] VSC 534 [20] (although when I say ruled upon, I mean ruled upon in a pleadings sense, as it is not part of this Court’s function at this stage to make any actual findings of fact – that will be for the trier of fact (presently a jury)).
Before proceeding to deal with the plaintiff’s arguments, it is necessary to say a little more about the true nature of a Polly Peck defence.
PollyPeck defences
While the Polly Peck defence got its name from the decision in Polly Peck (Holdings) PLC v Trelford,[11] in truth the defence is no longer an application of the principle in that case. In Victoria the form and content of the Polly Peck defence is to be found in the Court of Appeal’s decision of David Syme & Co Ltd v Hore-Lacy (“Hore-Lacy”).[12] Indeed, in argument, the common law truth defence recognised in Hore-Lacy was described as “the Hore-Lacy defence”. As is now well known, the Hore-Lacy defence has to date permitted a defendant to plead a variant of a plaintiff’s meaning and to justify that meaning, provided that the meaning is not substantially different from the plaintiff’s meaning and provided that the defendant’s variant is no more injurious or serious than the plaintiff’s pleaded meaning.
[11][1986] 1QB 1000.
[12](2000) 1 VR 667.
In pursuing ground 1, the plaintiff submitted first that the Court of Appeal’s decision in Hore-Lacy was wrong. This submission involved the contention that Polly Peck was wrong (and/or never the law in Victoria[13]), and that the Court of Appeal was wrong in Hore-Lacy to recognise the more limited Hore-Lacy defence. In essence, the plaintiff submitted that at law there is no Polly Peck or Hore-Lacy defence.
[13]Or indeed in any State or Territory of Australia.
However, and recognising that this Court is bound by Hore-Lacy, the plaintiff made a second submission which was in substance that the Hore-Lacy defence has not survived the commencement of the Defamation Act 2005 (Vic).
Dealing with the plaintiff’s first submission, I need not linger long on the question of whether Hore-Lacy was correctly decided. Being a decision of the Court of Appeal, I am bound to follow it in any event.
As to the plaintiff’s argument that the Hore-Lacy defence has not survived the enactment of the Defamation Act, it is necessary now to note a number of relevant provisions in that Act.
The Defamation Act 2005
The Hore-Lacy defence is a truth defence. That is, the Hore-Lacy defence permits a defendant to defend a plaintiff’s claim by proving the truth of permissible variants of the plaintiff’s meanings. The Defamation Act 2005 (“the Act”) provides for defences of justification and contextual truth in ss 25 and 26. Sections 25 and 26 provide:
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.
26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that—
(a)the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b)the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
The expression “substantially true” is defined in s 4 of the Act to mean:
true in substance or not materially different from the truth.
Section 6 of the Act provides:
6 Tort of defamation
(1) This Act relates to the tort of defamation at general law.
(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).
Note
The Limitation of Actions Act 1958 provides a general limitation period of 1 year for defamation actions extendable by a court in certain circumstances to up to 3 years.
The expression “general law” is defined in s 4 of the Act to mean:
the common law and equity.
Section 8 of the Act provides:
8Single 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.
The word “matter” is defined in s 4 of the Act to include:
(a)an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical; and
(b)a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication; and
(c) a letter, note or other writing; and
(d) a picture, gesture or oral utterance; and
(e)any other thing by means of which something may be communicated to a person.
Section 24 of the Act provides:
24 Scope of defences under general law and other law not limited
(1)A defence under this Division[14] 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.
[14]Sections 25 and 26 of the Act are contained in the Division in which s 24 appears.
Note
A number of Acts contain provisions providing protection from, or a defence to, defamation actions in respect of certain publications or other documents or proceedings. For example, section 19 of the Constitution Act 1975 confers certain privileges and immunities on members of Parliament. That Act also protects the authorised publication of, or the publication of a copy of, a report, paper, votes or proceedings of the Council or the Assembly or of a parliamentary committee or the authorised broadcasting of proceedings of such a body (see sections 73, 74 and 74AA). Section 24(1) of this Act continues the operation of all such provisions in addition to any defence that may be available under this Act, for example, a defence of absolute privilege under section 27.
(2)If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice.
Ground 1: Does the Hore-Lacy defence survive the commencement of the Defamation Act?
The plaintiff submitted that if the Hore-Lacy defence was ever a defence known to the law then, properly understood, the Defamation Act did away with the defence. Specifically, the plaintiff said that, as is provided for in s 6(2) of the Act, the Act “by necessary implication” abolished the Hore-Lacy defence.
In seeking to make out his argument on this point, senior counsel for the plaintiff said:
Your Honour, I have a series of propositions that I want to put to your Honour on the question of canalisation or ousted by necessary implication and this does require some focus really on a few things.[15]
[15]T 13.28-T 13.31.
Senior counsel for the plaintiff then put his foreshadowed series of propositions. The propositions that he relied upon were put in the following terms:
1. Imputations are a key concept under “this new Act” (see ss 8, 25, 26 and 30(3)(c))[16].
[16]Section 30(3)(c) is a section that deals with the statutory qualified privilege defence and the issue of reasonableness. This section makes “the seriousness of any defamatory imputation carried by the matter published” relevant in respect of the issue of reasonableness as it relates to that defence.
2. The plaintiff under “this new Act” has to plead imputations (see particularly the operation of ss 25 and 26 of the Act).
3. The determination of whether the imputation is conveyed must be made on the basis of the substance of the plaintiff’s imputation, not its form.
4. In determining whether an imputation is conveyed, the tribunal of fact can only find it conveyed if all the relevant elements are conveyed.
5. As a matter of pleading practice, imputations have to be pleaded clearly and specifically so as to state the relevant act or condition (not vaguely).
6. If any portion of the plaintiff’s imputation is surplusage and does not affect the meaning then it will be struck out.
7. The defence in s 25 of the Act operates as a defence to the plaintiff’s imputations.
8. Section 25 of the Act also creates a regime where if the defendant proves the plaintiff’s imputations true he wins, and if he does not prove them true then that defence of truth fails.
9. The defence in s 25 depends upon the defendant proving the plaintiff’s imputation is substantially true (see s 4).
10. Section 25 requires every element of the plaintiff’s imputation to be proved to be substantially true.
11. The s 25 defence operates with great clarity and simplicity.
12. At common law, the practice was for the plaintiff to plead imputations and not seek a verdict on imputations that were different in substance.
13. The defence of comment at common law also operates in relation to the plaintiff’s pleaded imputations (see Channel Seven Adelaide Pty Ltd v Manock[17] and Pervan v The North Queensland Newspaper Co Ltd & Anor[18]).
[17](2007) 232 CLR 245, 287-88 [83].
[18](1993) 178 CLR 309.
14. The common law qualified privilege defence operates in relation to the plaintiff’s pleaded imputations (Bellino v Australian Broadcasting Corporation).[19]
[19](1996) 185 CLR 183, 228.
15. The Hore-Lacy defence operates in substance identically to s 25.
16. There is no necessity for the Hore-Lacy defence under “the new Act”.
17. There is no utility or desirability in having the Hore-Lacy defence under the new regime – nor any prejudice to a defendant in not having it.
18. Section 26 permits the defendant to plead imputations which are substantially different from the plaintiff’s imputations and justify them. So between them, ss 25 and 26 cover the field (s 25 substantially the same; s 26 substantially different).
19. Section 26 operates in relation to the plaintiff’s pleaded imputations.
20. There is no reference in s 26 to the defendant pleading any other imputation other than a contextual imputation. As it was put by counsel, “and in particular s 26 does not bite down on Hore-Lacy imputations”.
21. There is no equivalent defence at common law to s 26. Nor is there any defence at common law in Australia to the same effect as Polly Peck. Again, as put by senior counsel for the plaintiff, “Hore-Lacy is a different and much more narrow creature”.
22. Section 25 alone, and/or the combined operation of ss 25 and 26, will provide defences in every situation covered by a Hore-Lacy defence.
23. The Act “does not create two parallel universes, one where things are imputation based and truth is considered under ss 25 and 26, and another parallel universe where meaning is considered by reference to the matter complained of and whether that (the matter complained of) has been in some way shown to be true”.
24. There is no necessity for the Hore-Lacy defence at common law.
25. The s 25 defence operates in precisely the same way as a traditional strict common law defence as noted by Brennan CJ and McHugh J,[20] “albeit minus the Hore-Lacy form of pleading”.
[20]See Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519.
While some of these propositions overlap, depending upon their precise content, almost all of them (and particularly those that do not expressly suggest the answer to the present question) may be accepted as correct. Specifically, it is difficult to quibble with propositions 1 to 3, 5, 7 to 10, 12 to 14, 19 to 21 and 25.
However, propositions 4 and 6 may be expressed too broadly. Hore-Lacy contemplates that a plaintiff might succeed on a permissible variant of an imputation pleaded by the plaintiff. A permissible variant is, according to Hore-Lacy, one that is not substantially different from a pleaded meaning and one which is no more injurious or serious than the pleaded meaning. It may be possible to envisage a permissible variant that satisfies these criteria and which does not contain every element of the pleaded meaning. Similarly, what might be surplusage insofar as a permissible variant is concerned may be an additional defamatory element of the pleaded meaning.
So far as proposition 11 is concerned, one might accept that on its face s 25 appears to operate with “great clarity and simplicity”. This is to be contrasted with the area of defamation generally, which has been described as “the Galapagos Islands Division of the law of torts”.[21] And, as has also been said before, pleadings in defamation actions are as complex, pedantic and as technical as anything known to Dickens.[22] The fact that s 25 may be an island of simplicity amongst a sea of complexity and technicality says little in my view about whether the Hore-Lacy defence has been abrogated by necessary implication upon the commencement of the Act. The additional layer of complexity added by Hore-Lacy defences is well known.[23] However, while the problems created by Hore-Lacy are well known, nothing in the Act suggests that one of the purposes of the Act was to deal in any substantive way with complexity generally or any complexity created by Hore-Lacy defences.[24]That said, it should be noted that senior counsel for the plaintiff described proposition eleven as “only a very subsidiary argument”.
[21]“Themes in the Law of Torts”, Justice David Ipp AO (2007) 81 ALJ 609, 615.
[22]In Burrows v Knightley (1987) 10 NSW LR 651, 654, Hunt J said:
“In Polly Peck (Holdings) PLC v Trelford … , O’Connor LJ somewhat despairingly described pleadings in libel actions as having become as artificial as the minuet. If the point taken by the defendants in the present matters is correct, such pleadings have also become as complicated as a quadrille. I am reminded somewhat of Charles Dickens’ description of lawyers as ‘tripping one another upon precedents, groping knee deep in technicalities [and making mountains of costly nonsense]’: Bleak House (Ch 1).”
See further, Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, 167 [37].
[23]See French v Herald and Weekly Times Pty Ltd (2010) 27 VR 140, 143[13]. See further, French v Herald and Weekly Times Pty Ltd (No 2) (2010) 27 VR 171, 176[16].
[24]See ss 24(1) and 26 of the Act. But cf the Second Reading Speech of the Defamation Bill 2005 (NSW) extracted in Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, 167[37]. But note also the Second Reading Speech of the Defamation Bill 2005 (Vic) (Hansard, Legislative Assembly, 7 September 2005, pages 633 to 635), in which the Attorney-General Mr Hulls said that following the enactment of that bill, Victoria would have for the first time “a new self-contained Act which consolidate[d] and simplifie[d] the substantive law of civil defamation while providing for the continued development of the common law”.
Propositions 15 to 17 deny the Hore-Lacy defence any operation outside the operation of s 25. In truth, if one thought that the Hore-Lacy defence added nothing to a s 25 defence then it might be wondered why the plaintiff wishes to contend that the Hore-Lacy defence no longer exists. As the arguments that have been put by the parties show, the Hore-Lacy defence permits a defendant to plead a permissible variant of the plaintiff’s pleaded imputations and to justify that permissible variant. The problem with the plaintiff’s argument in respect of this part of his submissions is perhaps the use of the words “in substance” in proposition 15. An additional problem may be that propositions 15 to 17 depend upon propositions 4 and 6 being accepted as propositions of universal application (that is, absent Hore-Lacy).
Proposition 18 suffers from the same problems from which propositions 15 to 17 suffer. The very arguments of the parties in the present application demonstrates that s 25 is not an equivalent of the Hore-Lacy defence. The same may be said of proposition 22.
There is much about proposition 23 to commend it. Since Barclay v Cox[25] was decided by the Full Court of this Court in 1965, imputations have assumed a greater importance in the conduct of defamation proceedings. So much is borne out by the fact that we now ask juries to answer questions in relation to the pleaded imputations.[26] That said, for present purposes, proposition 23 may be accepted in that the Act “does not create two parallel universes”. Rather, each provision of the Act falls to be construed in accordance with ordinary and well known principles of statutory construction.
[25][1968] VR 664.
[26]This is because under s 22 of the Act damages are now a matter for the judge, and in order to assess damages one must know what imputations have been found by the jury to have been conveyed: see Trkulja v Yahoo! Inc LLC & Anor [2012] VSC 88; Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 [43]; and Trkulja v Google Inc LLC (No 5) [2012] VSC 533.
Proposition 24 comes very close to inviting this Court to say that Hore-Lacy was wrongly decided. In the absence of relevant Court of Appeal authority, I might have concluded that there was much to commend itself in what was said by Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd,[27] when their Honours discussed O’Connor LJ’s decision in PollyPeck in the following terms:
With respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, the defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of not guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant’s plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a false issue which can only embarrass the fair trial of the actions.
[27](1998) 193 CLR 519.
It might be observed that in a case where a defendant pleads only truth defences, if the plaintiff establishes an imputation which the defendant cannot justify then the establishing by the defendant of the truth of a permissible variant that is also conveyed by the relevant publication will not (subject to mitigation of damages in respect of a permissible partial justification)[28] afford the defendant a defence. On the other hand, if the plaintiff fails to establish the imputation pleaded by the plaintiff (that is the substance of the plaintiff’s imputation) then the plaintiff’s claim fails immediately, and it is not necessary to address any imputation contended for by the defendant.
[28]As to which see Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 63 [306] and Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, 169-170 [47]-[50].
It is to be remembered that one of the rationales for the Hore-Lacy defence is that a plaintiff can recover damages in relation to a permissible variant of a plaintiff’s pleaded imputation. That is, a defendant is at risk of a jury finding for a plaintiff on a permissible variant in circumstances where the jury has accepted the defendant’s argument that the imputation pleaded by the plaintiff was not conveyed.[29] Thus it follows that if a plaintiff may succeed on a permissible variant, a defendant ought to be able to plead any available affirmative defence (in this case truth) to the permissible variant. It may be that a plaintiff could persuade a trial judge that a Hore-Lacy defence should not be left to the jury if the plaintiff specifically eschews any reliance upon the Hore-Lacy imputation as a permissible variant. While the Full Court in Barclay v Cox might not have permitted such a course (on the basis that the meaning of the matter complained of is within the jury’s province), modern trial management might permit of such an approach.[30] Whether it would be realistic to expect a jury to engage in the necessary mental gymnastics may, however, be a different question.
[29]See David Syme & Co Ltd & Anor v Hore-Lacy (2000) 1 VR 667, 674[20].
[30]Cf Hore-Lacy v Cleary & Anor (2007) 18 VR 562, 569[27] (Ashley JA, with whom Neave and Redlich JJA agreed). See further, s 23 of the Civil Procedure Act 2010.
All of that said, I am bound by Hore-Lacy. Until an appellate court says otherwise, Hore-Lacy is the law in Victoria - subject to the resolution of the plaintiff’s argument that the Act has abolished the defence “by necessary implication”.
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.
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.
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.[31] 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.
[31]See for example Corporation of Yarmouth v Simmons (1878) 10 Ch D 518; Chief Commissioner for Railways and Tramways v Attorney-General (NSW) (1909) 9 CLR 547; The Wik Peoples v The State of Queensland & Ors (1996) 187 CLR 1; and Northern Territory of Australia & Anor v Arnhem Land Aboriginal Land Trust & Ors (2008) 236 CLR 24.
In a different statutory context from the present case, in The Wik Peoples v The State of Queensland & Ors,[32] Gummow J discussed the judgment of Fry J in Corporation of Yarmouth v Simmons[33] in the following terms:
… The case [Corporation of Yarmouth v Simmons] concerned a pier, constructed under statutory authority, which obstructed what was said to have been a previously existing public right of way. Fry J rejected the submission that a public right of way could only have been abrogated by express words in the legislation. His Lordship put the matter as follows:
‘I think that, when the Legislature clearly and distinctly authorise the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, because the thing cannot be done without abrogating the right.’
The expression ‘clearly and distinctly’ emphasises the burden borne by a party seeking to establish the extinguishment of subsisting rights not by express legislative provision but by necessary implication from the provisions of a statute. The phrase ’physically inconsistent’ does not suggest the question of inconsistency between rights is answered by regard, as a matter of fact in a particular case, to activities which are or might be conducted on the land. Rather, it requires a comparison between the legal nature and incidents of the existing right and of the statutory right. The question is whether the respective incidents thereof are such that the existing right cannot be exercised without abrogating the statutory right. If it cannot, then by necessary implication, the statute extinguishes the existing right.[34]
[32](1996) 187 CLR 1.
[33](1878) 10 Ch D 518.
[34]The Wik Peoples v The State of Queensland & Ors (1996) 187 CLR 1, 185.
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.[35]
[35]As to the status of the note at the end of s 24(1) of the Act, and use that may be made of it, see ss 35(b)(i) and 36(3A) of the Interpretation of Legislation Act 1984.
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”).[36] In that case, McColl JA[37] 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:
[36](2011) 81 NSWLR 157.
[37]With whom Beazley JA (as her Honour then was) and Giles JA agreed.
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.
59 In 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’).[38]
[38]Ibid 172 [58]-[59].
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.[39]
[39]Ibid 172[56].
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.[40] 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.
[40]A defendant who pleads back the plaintiff’s imputations in a contextual truth defence usually pleads that in respect of any of the plaintiff’s imputations found to be true, those imputations are contextual imputations to any remaining plaintiff’s imputations not found to be true, and by reason of the truth of the plaintiff’s imputations found to be true the imputations not found to be true did no further harm to the plaintff’s reputation.
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).
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.[41] 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.
[41]Cf r 47.04 of the Supreme Court (General Civil Procedure) Rules 2005.
Ground 2: Are the defendants’ imputations materially different from the plaintiff’s imputations?
I have already resolved this issue, at a pleading level, against the plaintiff.[42] I should say for the sake of clarity that the issue has only been decided at a pleading level. That is, in my earlier judgment I concluded that it was sufficiently arguable that the defendants’ pleaded imputations were within the Hore-Lacy principle to permit what I described as the defendants’ Polly Peck defences to go forward to trial.[43]
[42]See Setka v Abbot & Anor [2011] VSC 534.
[43]It was no part of my function in hearing the plaintiff’s original pleading summons to make findings of fact which were, and are, within the province of the trier of fact (in this case a jury).
The plaintiff has now put forward a document which purports to identify the differences between each of the plaintiff’s imputations with each of the defendants’ imputations. This involves 16 comparisons. In making these 16 comparisons a total of 104 differences have been identified. I do not propose to set out all of the asserted differences, one example suffices. In comparing Polly Peck imputation (a) with plaintiff’s imputation (a), the plaintiff identifies the differences as “defendants’ imputation is general, plaintiff’s imputation is particular”; “no mention of home visits in defendants’ imputation”; “no mention of unlawful behaviour in defendants’ imputation”; “no mention of construction industry victims in defendants’ imputation (when plaintiff is union official)”; and “acts of intimidation in defendants’ imputation as opposed to purpose of intimidation in plaintiff’s imputation”.
One might immediately say that it is the very nature of Polly Peck (Hore-Lacy) imputations that differences of the kind identified by the plaintiff can be pointed to. Specifically, one often finds elements of a plaintiff’s imputation missing from a defendant’s imputation – that can be the nature of an imputation (variant) which is sufficiently similar (not substantially different), and no more serious than the plaintiff’s imputation.
As to the plaintiff’s complaint concerning the level of generality in the defendants’ imputations, again, it is the very nature of the defence that there will often be differences in the levels of particularity or generality in respect of the parties’ competing imputations. What falls to be considered at this stage is whether the defendants’ meanings are open. That is, whether it is open for the defendants to contend to the trier of fact (a jury) that the defendants’ meanings are not substantially different from, and no more serious than, the plaintiff’s meanings. If it is so open to the defendants, then these issues are within the province of the jury and involve the jury making judgments of the very kind it is required to make when considering what meaning was conveyed (and whether that meaning was defamatory of the plaintiff) by the words that they find were published by the defendants.
Finally (on this point), I should say that the difference between “visit for the purpose of intimidation” and “act of intimidation” is again one which in my view is capable of being left (if not best left) to the jury. A reasonable jury might not see much (if any) difference between saying that a person went somewhere for the purpose of intimidating another on the one hand, and saying on the other hand that the person intimidated another or engaged in intimidation. The short point at this stage is that the matter is arguable.
While the plaintiff’s identified differences may be accepted, the questions that need to be determined in relation to the present issue are whether any of the identified differences (individually or collectively) are sufficient or of such magnitude as to take the defendants’ imputations outside those permitted by a proper application of Hore-Lacy, and whether any such difference (or differences) as might arguably be identified is (or are) so clear at the pleading stage to deny the defendants the defences they seek to pursue.
Having considered the matter afresh, I remain of the view I expressed in my earlier judgment that it is not so clear that the defendants’ imputations are materially different so as to deny the trier of fact (in this case a jury) the opportunity of considering the defendants’ Hore-Lacy defences. That is, I remain of the view that it is open to the defendants to contend at trial that their imputations are not substantially different from the plaintiff’s imputations in the way described in Hore-Lacy. In relation to this issue what was said by McPherson JA in Favell v Queensland Newspapers Pty Ltd,[44] is (although in a different context) apposite. His Honour said:
Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.[45]
Ground 3: Are the Polly Peck defences embarrassing?
[44][2004] QCA 135 [2].
[45]Cited with approval by Gleeson CJ, McHugh, Gummow and Heydon JJ in Favell v Queensland Newspapers (2005) 79 ALJR 1716, at paragraph [6].
The plaintiff contended that the Polly Peck (Hore-Lacy) defences are embarrassing because “the pleaders of both defences have pleaded four imputations without specifying to which of the plaintiff’s imputations each defendants’ imputation is pleaded.”[46] The plaintiff then submitted:
The defendants can only plead one defendants’ imputation against any one plaintiff’s imputation and that any defendants’ imputation can only be relied on once. That is for two reasons. First, each of the defendants’ imputations is certainly different in substance. Secondly, each of the plaintiff’s imputations is certainly different in substance. It therefore follows that, at best, only one of the defendants’ imputations can be pleaded in relation to any one of the plaintiff’s imputations.[47] For the defendants to lump all of their imputations together in relation to all of the plaintiff’s imputations is embarrassing and productive of confusion (particularly at the trial).[48]
[46]Paragraph 4.1 of the plaintiff’s outline of argument in the Court of Appeal dated 30 April 2013.
[47]It might be noted that this is only one reason, albeit based upon the necessary acceptance of two propositions.
[48]Paragraph 4.2 of the plaintiff’s outline of argument in the Court of Appeal dated 30 April 2013.
These were not complaints the plaintiff sought to make in his initial application to strike out the Polly Peck defences. I do not think there is any substance in these complaints. To date, there is no authority in this jurisdiction which requires a defendant to, in effect, line up the Polly Peck imputations with the plaintiff’s imputations. This is because, while imputations may be a key concept under the Act,[49] Polly Peck (Hore-Lacy) defences are not defences to imputations, but rather are defences to the matter published and in respect of which complaint is made.[50] That said, in an appropriate case, there may be good reason to require a defendant to provide further particulars of a Polly Peck defence by requiring the defendant to specify which of the Polly Peck imputations is said to align with which of the plaintiff’s imputations. One such reason might be to facilitate consideration of whether a defendant’s imputations are permissible variants of the plaintiff’s imputations. However, and in any event, the plaintiff has not sought that relief in the present case.
[49]See plaintiff’s proposition 1.
[50]Cf s 9 of the Defamation Act 1974 (NSW).
Further, I do not think that there is any real doubt in the present case as to which Polly Peck imputations relate to which of the plaintiff’s imputations. Polly Peck imputation (a) is a permissible variant[51] of plaintiff’s imputations (a), (c) and (d); Polly Peck imputation (b) is a permissible variant of plaintiff’s imputation (a) and (d); Polly Peck imputation (c) is a permissible variant of plaintiff’s imputations (c) and (d); and Polly Peck imputation (d) is a permissible variant of plaintiff’s imputation (b) and (d).
[51]By permissible variant in this paragraph I mean pleadable as such (it then being for the jury whether in fact the meaning is not substantially different from the plaintiff’s meaning and is no more injurious or serious than that meaning).
The proposition that the defendants can only plead one of their Polly Peck imputations against any one of the plaintiff’s imputations must be rejected. It does not follow from the premises in the plaintiff’s argument that “at best only one of the defendants’ imputations can be pleaded in relation to any one of the plaintiff’s imputations”. This is so for two reasons. First, merely because both the plaintiff’s and the defendants’ imputations are “different in substance”[52] does not mean that there cannot be a common permissible variant of two or more of the plaintiff’s imputations - that is, an identical Polly Peck imputation that is not substantially different from a number of the plaintiff’s meanings, and no more serious than any of them. Secondly, the plaintiff’s imputations, while perhaps being epexegetical imputations[53] in one sense, arguably are capable of being regarded by the trier of fact (jury) as containing multiple defamatory elements (any one of which might be singled out in a permissible variant).[54]
[52]See paragraph 4.2 of the plaintiff’s outline of argument in the Court of Appeal dated 30 April 2013.
[53]Cf Watt v General Television Corporation Pty Ltd [1998] 3 VR 501, 505; and Australian Broadcasting Corporation & Anor v Hodgkinson [2005] NSWCA 190, [40].
[54]See for example the reference to intimidation in plaintiff’s imputations (a) and (c) and Polly Peck imputation (a).
Ground 4: Are the defendants’ imputations bad in form?
The plaintiff contends that the defendants’ imputations (both Polly Peck and contextual truth) should be struck out as being bad in form – that is “entirely vague and general”. This was not a complaint made by the plaintiff in his original strike out application.
The principles to be applied when determining whether an imputation has been properly pleaded on the one hand, or is too vague and imprecise on the other hand, were discussed by Kaye J in Trkulja v Google Inc Llc & Anor.[55] His Honour said:[56]
First, the question, whether an imputation has been properly pleaded, is to be determined as a matter of practical justice, rather than as an exercise of close semantic or linguistic refinement. Secondly, the question whether a particular imputation is sufficiently specific depends, essentially, on the context in which it is pleaded. In some publications, the allegation about a plaintiff may be so unspecific as to give rise only to the most general imputation. For example, a billboard alleging that a particular plaintiff is “corrupt” may, in an appropriate case, only give rise to an imputation pleaded in the most general form. On the other hand, and by contrast, a publication may, by its context, give rise to one or more possible meanings of a particular condition attributed to the plaintiff. In such a case, where the plaintiff pleads that the publication imputed that condition to him, the plaintiff is obliged to specify how and in what respects that condition is conveyed in the imputation.
Those two propositions can be derived from the leading judgment of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation. In that case, the primary judge had struck out three imputations in a statement of claim, which alleged “corrupt” conduct or acts of the plaintiff council. The Court of Appeal (by majority) upheld that decision. In doing so, Gleeson CJ stated the principle as follows:
‘The requirement that a plaintiff must ‘specify’ the act or condition which he claims was attributed to him, that is to say, the statement which he says is made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. ... Furthermore, whilst the principles relevant to the plaintiff’s obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. ... If a defendant has posted in a public place a sign that simply says ‘X is disgusting’, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter’.[57]
[55][2010] VSC 226.
[56]Ibid [19]-[20].
[57]Citations omitted.
In argument, the plaintiff’s submissions on this point were reduced to the proposition that the defendants could have (and should have) pleaded their meanings with greater precision by confining their imputations to the plaintiff’s actions “as a union official”. It may be accepted that the defendants could have done this. However, as was pointed out by senior counsel for the first defendant (whose submissions were adopted by senior counsel for the second defendant), the failure by the defendants to refine their imputations so as to make it clear that the imputations related to the plaintiff “as a union official” was not, and has not been, productive of any confusion or ambiguity. All of the particulars relied upon by the defendants in support of their Polly Peck and contextual truth defences relate to the plaintiff’s activities as a union official. The defendants’ imputations are not, and have not been, productive of any confusion in this proceeding. Doubtless, this was the reason this complaint was not made by senior counsel who appeared for the plaintiff on the plaintiff’s original strike out application.
In my view, there being no confusion about the ambit of the defendants’ defences, nothing useful would be served in requiring the defendants at this stage to replead, or to refine, their imputations. To accede to the plaintiff’s submissions on this ground might only encourage other parties in similar cases where there is no real confusion to engage in the very kind of skirmishes deprecated by Kirby P in Drummoyne Municipal Council v Australian Broadcasting Corporation.[58]
Ground 5: Are the Polly Peck and contextual truth defences mutually exclusive?
[58](1990) 21 NSWLR 135, 149. See also, Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245, 294 [103]-[105] (Kirby J). See further, s 19 of the Civil Procedure Act 2010.
The plaintiff submits that if the defendants’ imputations satisfy Hore-Lacy in that they are not substantially different from the plaintiff’s imputations and are no more serious than the plaintiff’s imputations, then they cannot be imputations which satisfy s 26 of the Act – s 26 of the Act requiring the contextual imputations to be additional to the plaintiff’s imputations and ones the substantial truth of which mean that the plaintiff’s imputations do not further harm the reputation of the plaintiff.
While this argument was not specifically put before me during the plaintiff’s first strike out application, in my earlier judgment I said:
28As was said by Kaye J in Newnham v Davis (No. 2), there is “some conflict in the authorities as to the correct test, which should be applied by the Court, in undertaking the comparison required by s 26(b) of the Act”. His Honour identified the conflict as follows:
On the one hand, the decisions of Hunt J in Jackson v John Fairfax & Sons Ltd, and of the New South Wales Court of Appeal in Australian Broadcasting Corporation v Hodgkinson, are authorities for the proposition that the correct approach is by weighing the imputations pleaded by the plaintiff against the imputations pleaded by the defendant. On the other hand, in John Fairfax Publications Pty Ltd v Blake Spigelman CJ disagreed with that approach. His Honour considered that, in considering the application of s 26(b), the Court must focus on the facts, matters and circumstances which are said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself. That conclusion was based on the terms of s 26(b), namely, that the defamatory imputations do not further harm the reputation because of the “substantial truth of the contextual imputations”.
29As in Newnham v Davis, the question of the correct test to be applied by the Court, in undertaking the comparison required by s 26(b) of the Defamation Act, was not the subject of argument. Like Kaye J in Newnham v Davis, I think it desirable in the circumstances that I refrain from expressing any view on it. Accordingly, I shall decide the issues relating to s 26(b) by reference to both tests.
30Applying both tests, I am not satisfied that a jury could not reasonably conclude that because of the truth of the contextual imputations, the plaintiff’s imputations do not further harm the reputation of the plaintiff. While the plaintiff advanced arguments before me (including the argument concerning the temporal differences in each side’s imputations) which are capable of supporting an argument that even if the contextual imputations are found to be substantially true, the plaintiff’s imputations further harm his reputation, the point is not incapable of debate. I cannot say that a reasonable jury might not conclude that because of the substantial truth of the contextual imputations, the plaintiff’s pleaded imputations do not further harm his reputation. Accordingly, I will not strike out the contextual imputations or the contextual truth defences.[59]
[59]Setka v Abbot & Anor [2012] VSC 534 [28]-[30] (citations omitted).
The plaintiff submits that I now need to resolve the conflict identified by Kaye J in Newnham v Davis (No 2). In support of this submission, the plaintiff contends that, properly analysed, s 26 requires a comparison of the plaintiff’s imputations with the contextual truth imputations. If this is accepted then the plaintiff submits that the plaintiff’s imputations cannot be used to support both a Polly Peck defence and a contextual truth defence. This is because the defendants cannot on the one hand say that the defendants’ imputations are no more serious than the plaintiff’s imputations (Polly Peck) and then on the other hand say that the truth of the defendants’ imputations obliterates any harm caused by the publication of the plaintiff’s imputations.
For present purposes, the plaintiff’s submissions that s 26 of the Act requires a comparison to be made between the plaintiff’s imputations and the defendants’ imputations may be accepted.[60] The short answer to the plaintiff’s submissions is that, again, we are only at the pleading stage. For the reasons I gave in respect of the plaintiff’s first strike out application, I am not satisfied that a jury could not reasonably conclude that because of the truth of the contextual imputations, the plaintiff’s imputations do not further harm the reputation of the plaintiff.[61]
[60]I should say for the sake of completeness that the decisions referred to by Kaye J in Newnham, being the decision of Hunt J in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 and the decisions of the New South Wales Court of Appeal in Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 and John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541, were decisions which concerned the contextual truth defence contained in s 16 of the Defamation Act 1974 (NSW) – not the contextual truth defence found in s 26 of the Act and its NSW equivalent (the Defamation Act 2005 (NSW)). Additionally, it should be noted that Spigelman CJ’s decision in Blake makes no reference to the earlier decision of Hunt J which had stood for some twenty years at that time. Additionally, in Blake, while Rolfe AJA agreed with Spigelman CJ, Hodgson JA expressed a view consistent with Hunt J’s earlier decisions (Blake at 556 [61]).
All of that said, it may be that upon a proper application of the text of s 26 of the Act such differences (if any) as there might have been in some of the New South Wales’ authorities concerning the proper application of s 16 of the Defamation Act 1974 (NSW) may be of little (if any moment); alternatively, they may have now been resolved in favour of the view that it is the imputations that fall to be compared: see Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 264 [139] (McColl JA); and Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, 176 [73] and 177[76]. But cf McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 [20]-[24] (McCallum J) and the recent decision of the Queensland Court of Appeal in Mizikovsky v Queensland Television Ltd & Ors [2013] QCA 68 [22]-[25] (Fraser JA, with whom Holmes JA and Fryberg J agreed).
[61]While I have assumed in the plaintiff’s favour for the purpose of this argument that it is the imputations that fall to be compared when dealing with a contextual truth defence, in Mizikovsky v Queensland Television Ltd & Ors [2013] QCA 68 [22]-[25], Fraser JA (with whom Holmes JA and Fryberg J agreed) appears to have accepted that in a contextual truth case the comparison required should focus on the facts, matters and circumstances said to establish the truth of the contextual imputations. See further, McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 [20]-[24] (McCallum J).
That said, I accept that, for practical purposes, the Polly Peck defences and contextual truth defences are alternative defences. It is hard to imagine a case in which a jury might find that the issues of difference and seriousness are so finely balanced when comparing a plaintiff’s imputations with a defendant’s imputations that both defences can succeed.[62] However, that is not to say that such a case is impossible – merely that it would be a rare case.[63] Depending on what view the jury takes of the publication in this case, I cannot foreclose the possibility that this may be such a case. More usually though, one imagines a jury would conclude in respect of a defendant’s imputations either that they were not substantially different from the plaintiff’s imputations and were no more injurious or serious than those imputations (Hore-Lacy defence) or that the defendant’s imputations satisfy s 26 of the Act. In the present case, for the reasons I have already expressed, both defences are in my view open to be pleaded and relied upon.[64] It would be at least unfortunate, and productive of injustice, if one of the defences was to be struck out at a pleading stage, and then the plaintiff, taking the opposite approach at trial, contended that the remaining defence was not made out.
[62]Although note that Hore-Lacy requires the defendant’s imputation to be no more serious or injurious (not less serious or injurious), and s 26(b) of the Act is framed in terms of “do not further harm” suggesting at least the possibility of an equivalence.
[63]Note that the precise content of the terms “in addition” and “other imputations” in s 26(a) of the Act has not yet been authoritatively ruled upon; and, again, for completeness I should note McColl JA’s judgment in Kermode wherein her Honour said at 81 NSWLR 177[76] that “it is not appropriate to seek to discern the purpose or proper construction of s 26 [of the 2005 Act] from s 16 [of the 1974 Act] jurisprudence”.
[64]Cf r 13.09 of the Supreme Court (General Civil Procedure) Rules 2005.
For these reasons, the plaintiff’s application to strike out the defendants’ contextual truth defences must fail. This result is all the more certain if, contrary to the plaintiff’s submissions about comparing imputations, one adopts the approach taken by McCallum J in McMahon v John Fairfax Publications Pty Limited[65] where her Honour held that the correct approach in a strike out application in respect of a contextual truth defence involves a comparison between the particulars of contextual truth and the least serious of the plaintiff’s imputations (on the assumption that the defendant’s case should be taken at its highest and it should not be assumed that all of the plaintiff’s imputations will be found to have been conveyed).[66]
[65][2012] NSWSC 196.
[66]Ibid [22].
Conclusion
The plaintiff’s amended summons dated 9 December 2013 will be dismissed. I will hear the parties on any question of costs.
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