Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419

Animal Liberation (Vic) Inc & Anor v Gasser & Anor [1991] VicRp 5; [1991] 1 VR 51

Associated Newspapers Ltd v Dingle [1964] AC 371

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430

Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183

Brown v Marron, unreported; SCt of WA (Steytler J); Library No 980686; 1 December 1998

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1211

London Artists Ltd v Littler [1968] EWCA Civ 3; [1969] 2 QB 375

Middendorp Electrical Co Pty Ltd v Sonneveld [2001] VSC 312

Morton v Arbuckle [1918] VicLawRp 101; [1918] VLR 657

National Mutual Life Association of Australasia Ltd v G T V Corporation Pty Ltd [1989] VicRp 66; [1989] VR 747

Nationwide News Pty Ltd v Moodie [2003] WASCA 273

Plato Films Ltd v Speidel [1961] AC 1090

Rochfort v John Fairfax & Sons (1972) 1 NSWLR 16

Roux v Australian Broadcasting Commission [1992] VicRp 87; [1992] 2 VR 577

Scott v Sampson (1882) 8 QBD 491

Television New Zealand Ltd v Quinn (1996) 3 NZLR 24

Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 WLR 1232

Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305

Chan v Trevor [2004] WASC 53

Cock v Hughes [2001] WASC 24

David Syme & Co Ltd v Hore­Lacey [2000] VSCA 24; (2000) 1 VR 667

Goody v Odhams Press Ltd [1967] 1 QB 333

Gumina v Williams (No 1) (1990) 3 WAR 342

Heytesbury Holdings Pty Ltd v City of Subiaco (198) 19 WAR 440

John Fairfax Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77

Jones v Skelton [1963] 1 WLR 1362

O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302

Polly Peck (Holdings) Plc v Trelford [1986] QB 1000

Sims v Wran [1984] 1 NSWLR 317

Taylor v Jecks (1993) 10 WAR 309

The Governors of Hale School v Commercial & General Acceptance Pty Ltd, unreported; SCt of WA; Library No 960687; 4 December 1996

Tucker v Echo Publications Pty Ltd [2003] NSWSC 554

1 MASTER NEWNES: The defendant has applied for leave to amend his defence in this action. The plaintiff opposes leave being granted and, in addition, seeks to strike out certain earlier amendments to the defence made pursuant to O 21 r 3 of the Rules of the Supreme Court 1971 (WA).

2 In the statement of claim, the plaintiff alleges that the defendant caused to be published on the World Wide Web the following words of and concerning him:

"Minister for Local Government John Ah Kit today said that legal action was pending under the Animal Welfare Act against the owner of the Tipperary Wildlife Sanctuary, Mr Warren Anderson, over his failure to properly care for over 2200 animals.

I have been advised by the Animal Welfare Authority that it was called to the Wildlife Sanctuary on 9 October by its manager after food supplies had run out. The Sanctuary was visited by two Animal Welfare officers and a Parks and Wildlife officer that afternoon. Since that time, officers from the Department of Business Industry and Resource Development and my department have been supplying feed to ensure the animals would not starve.

The Animal Welfare Authority has written to Mr Anderson at a number of addresses on two occasions advising that action would be taken under the Animal Welfare Act.

No response has been received from Mr Anderson other than from an intermediary, who advised that he had passed on the correspondence and had spoken to Mr Anderson about the seriousness of the issue, said Mr Ah Kit.

The Tipperary Wildlife Sanctuary holds 1764 animals that are listed on the Prohibited Entrant Permit. They include three Amphibious Hippopotamus; four Pygmy Hippopotamus; two Southern White Rhinoceros, tapir, and a variety of deer. There is also a large number of water buffalo and banteng cattle.

Food has been supplied to the animals at the rate of four tonnes of hay, six bags of horse pellet; ½ a bag of chicken pellets; 1/3 bag of bran and 36 pieces of fruit a day. Over 100 tonnes of feed hay has been supplied to keep the animals alive.

I have been advised that the new owners of Tipperary had purchased all of Mr Anderson's interests in the property and that Mr Anderson had two years in which to remove the animals. The station has provided a house for the Sanctuary Manager under this arrangement.

Despite numerous requests for feed supplies from the Sanctuary Manager, Mr Anderson had not responded and the situation had become very serious indeed for the animals, a number of which were in pens requiring specialist feed.

It is very distressing to think that so many animals appear to have been left to starve, and I can only praise the public servants involved for their swift response to what could have been a tragedy, said Mr Ah Kit.

A spokesman from the Department Community Development, Sport and Cultural Affairs has advised that Mr Anderson faced prosecution under the Animal Welfare Act for failure to feed his animals, and that the animals may need to be seized. The penalty under the Act is 100 penalty units ($11,000) or 12 months imprisonment and 5 penalty units ($550) per day for a continuing offence. The Government will seek reimbursement for the feed that has been supplied to the Sanctuary animals."

3 The plaintiff alleges in par 5 of the statement of claim that, in their ordinary and natural meaning, the words meant and were understood to mean that:

"5.1 the plaintiff had left 2,200 animals, for which the plaintiff was responsible, to starve;

5.2 due to the plaintiff leaving 2,200 animals to starve, the Northern Territory government had been required to feed those animals to prevent those animals from starving;

5.3. the Northern Territory Animal Welfare Authority, with reasonable cause, considered the plaintiff had breached the Animal Welfare Act (NT) by failing to feed animals he was responsible for."

4 The defendant denies that the words bore those meanings and goes on in par 9 of the defence to plead that, in their ordinary and natural meaning, the words complained of meant and were understood to mean:

"(a) despite requests from his manager, the Plaintiff had failed to provide adequate food supplies for animals at Tipperary Wildlife Sanctuary (the Wildlife Sanctuary) for which he was responsible;

(b) despite requests from the Northern Territory Government, the Plaintiff had failed to provide adequate food supplies for animals at the Wildlife Sanctuary for which he was responsible;

(c) because the Plaintiff had failed to provide adequate food supplies for animals for which he was responsible, a number of the animals at the Wildlife Sanctuary would, or may well, have suffered, had the Northern Territory Government not provided feed for them."

5 The defendant then pleads in par 9A of the defence that if the words complained of bore the meanings contended for by plaintiff they were true in substance and in fact, and sets out the particulars relied upon for that plea. In the alternative, the defendant pleads in par 10 of the defence that the words complained of, in the meanings pleaded in par 9 of the defence, were true in substance and in fact and particulars are provided of the matters relied upon for that plea. Those particulars consist of some, but not all, of the matters particularised in support of the plea of justification in par 9A.

6 The plaintiff objected to the "Polly Peck" defence in pars 9 and 10 of the amended defence. The plaintiff accepted that the defendant was entitled to plead a Polly Peck defence: Nationwide News Pty Ltd v Moodie [2003] WASCA 273. I understood it was also common ground that, in Western Australia, a defendant who pleads a Polly Peck defence is limited to meanings upon which the plaintiff himself would be entitled to a verdict on the pleadings as they stand; that is, meanings which are not substantially different from or more serious than the imputations pleaded in the statement of claim: Nationwide News Pty Ltd v Moodie (supra) per Anderson J at [10] - [14], Steytler J at [60].

7 Counsel for the plaintiff submitted that the imputations pleaded in par 9 of the minute do not arguably arise from the words complained of. It was argued that the import of the article was that the plaintiff had left the animals to starve, not simply that he had failed to provide adequate food supplies for them. The latter may mean that food was supplied but was of an insufficient quantity, or that the food was of a sufficient quantity but of the wrong quality, but it does connote animals at, or approaching, the point of death from starvation from a failure to be fed at all. It was submitted that to say the plaintiff had failed to provide adequate food supplies did not mean, as the plaintiff contended the article did, that the animals were left to starve. I should mention that no complaint was made that the word "adequate" as it was used in par 9 was vague or ambiguous.

8 Counsel submitted that, accordingly, the words complained of were not capable of conveying the "more neutral" meanings pleaded in par 9 that the plaintiff had failed to provide adequate food supplies for the animals. That, it was argued, placed a strained, forced or unreasonable interpretation on the words.

9 The plaintiff's counsel submitted, in the alternative, that the imputations pleaded by the defendant were different in substance from those pleaded by the plaintiff. Counsel argued that it was one thing to say that the animals had been left to starve and quite another to say simply that the plaintiff had failed to provide adequate food supplies for them.

10 Counsel for the defendant argued that the meanings pleaded in par 9 of the amended defence were clearly capable of being conveyed and were not substantially different from those pleaded by the plaintiff. Those meanings were open on the plaintiff's own pleading and, accordingly, were open to the defendant to plead as a Polly Peck defence. They did not enlarge the factual issues or result in any unfairness to the plaintiff. Counsel pointed out that, to justify the meanings pleaded in par 9 of the defence, the defendant relied in substance only upon factual matters relied upon by the defendant in par 9A of the defence to justify the meanings pleaded by the plaintiff, so the facts relied upon for the Polly Peck defence would be canvassed at the trial in any event.

11 It is necessary to consider in a little more detail the position in relation to the pleading of a Polly Peck defence in Western Australia.

12 In Nationwide News Pty Ltd v Moodie (supra), Steytler J said [at 59 - 61]:

"... the extent to which a defendant will be permitted to plead defamatory meanings different from those pleaded by the plaintiff will be constrained by the extent to which the plaintiff might himself or herself be permitted to rely, at the trial, upon imputations other than those pleaded by him or her.

No purpose can be achieved by allowing a defendant to plead, and seek to justify, a meaning different from that or those which might be found by a jury in favour of the plaintiff. If the plaintiff cannot succeed on a particular imputation which is different to that pleaded by him or her, then, to allow a defendant to plead that imputation, and seek to justify it, can only result in the creation of a false issue and prejudice to the proper trial process. On the other hand, if the defendant is able to justify a defamatory meaning which differs from that pleaded by the plaintiff but which might be found by a jury on the strength of the plaintiff's own pleading, then there is a basis for saying that the defendant can, and should, plead that alternative meaning and also the matters upon which it relies in contending that it is able to justify it. In this way the issues might be defined more precisely and there would be clear benchmarks against which the relevance of evidence might be assessed. I should add, as regards the concept of 'fairness' or 'disadvantage', that it can never be fair or advantageous to a plaintiff, or to the trial process itself, to permit a defendant to plead, and seek to justify, a meaning which could plainly not be found by a jury on the plaintiff's pleading.

An approach of this kind would, if I may adopt the language of Ormiston JA in Hore-Lacy (at [24]), 'reduce the potential injustices to a minimum by providing both parties with an efficient but not excessive degree of flexibility'."

13 Steytler J had earlier canvassed the authorities dealing with the extent to which a plaintiff would be permitted to depart from his or her pleaded imputations, and in particular the decision of the High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. His Honour observed [at 58] that in that case Brennan CJ and McHugh J (albeit they would not allow a defendant to plead justification in respect of an imputation not pleaded by the plaintiff) considered that a different nuance of meaning, or one less serious, to that pleaded by the plaintiff should be allowed to go to the jury provided that was not unfair to the defendant. Gaudron and Gummow JJ appeared to use as their touchstone "disadvantage" to the defendant and considered that, as a general rule, there would be no disadvantage to the defendant in allowing the plaintiff to rely upon meanings comprehended in, or less injurious than, the meanings pleaded by the plaintiff or meanings which are simply a variant of those meanings, but there may be disadvantage if a plaintiff is allowed to rely on meanings which are substantially different or which focus on some different factual basis. Kirby J adopted the notion of fairness and considered that this would generally permit imputations to go to the jury that are less serious than, but not substantially different from, those pleaded or which are merely nuances or shades of meaning of those pleaded.

14 In Moodie, Anderson J concluded, "at the risk of over-simplification", that, at the least, a case will not be permitted to go to the jury, or to judgment, on an alternative meaning which is substantially different from or more serious than the false innuendos pleaded in the statement of claim. Steytler J concluded that the meanings pleaded by the defendant were comprehended in the meanings pleaded by the plaintiff and were less injurious and not substantially different from those pleaded by the plaintiff, nor did they focus on a different factual basis. Accordingly they were meanings that might be found by a jury on the plaintiff's pleading and there was no unfairness or disadvantage to the plaintiff in allowing the defendant to plead and to seek to justify them. McLure J agreed with Steytler J and expressly left for another day a final decision as to the role of "disadvantage" in determining the extent to which there could be a departure from the pleaded imputations.

15 In my view, the meanings pleaded in par 9 of the defence are meanings that are capable of being conveyed by the words complained of and are comprehended in the meanings pleaded by the plaintiff. I accept that they are of a lesser order of seriousness than the meanings pleaded by the plaintiff, but I do not consider that they are substantially different. Nor do I consider that they focus on a different factual basis. The allegations of fact relied upon by the defendant to justify the meanings pleaded in par 9 of the defence are encompassed within the allegations of fact pleaded in support of his plea of justification to the meanings pleaded by the plaintiff, so the ambit of the factual enquiry at trial would not be expanded by the Polly Peck plea. There would be no disadvantage or unfairness to the plaintiff in allowing the defendant to plead and to seek to justify the meanings pleaded in par 9.

16 The next substantive complaint by the plaintiff related to par 10A of the amended defence which pleads a defence of fair comment in, so far as relevant, the following terms:

"10A. Further, or alternatively, the ... words complained of were fair comment on a matter of public interest, namely the welfare of animals at the Wildlife Sanctuary and other private wildlife sanctuaries and zoos.

SUBSTANCE OF THE COMMENT

The substance of the comment was that:-

(1) the Plaintiff appeared to have left animals at the Wildlife Sanctuary to stare; and/or

(2) the Plaintiff appeared not to care properly for the animals at the Wildlife Sanctuary.

PARTICULARS OF PUBLIC INTEREST

The welfare of animals at the Wildlife Sanctuary was the subject of extensive media coverage in 1996 when 36 deer were reported to have died of starvation. As a consequence of that media coverage, and the public concern engendered by it, questions were asked in the Northern Territory Parliament. On 22nd October 1996, the Northern Territory Minister for Primary Industry and Fisheries declared that animals at the Wildlife Sanctuary were stock for the purposes of the Stock Diseases Act (NT), so as to enable the Government to exercise statutory powers to inspect and feed them. In 1999 the Parliament enacted the Animal Welfare Act so as to provide for the protection of animals in the Northern Territory including those at the Wildlife Sanctuary."

17 The plaintiff argued that the matters relied upon were not matters of public interest, but related simply to the private affairs of the plaintiff. The fact that the welfare of animals at the Wildlife Sanctuary had been the subject of extensive media coverage in 1996 was irrelevant. It was not alleged that the plaintiff had sought or courted publicity on the issue and a private matter does not become a matter of public interest simply because it becomes the subject of unsolicited media attention. It is equally irrelevant that, as a consequence of the media coverage, questions were asked in the Northern Territory Parliament.

18 Counsel argued that the facts that the Minister for Primary Industries and Fisheries had declared the animals at the Wildlife Sanctuary were stock for the purposes of the Stock Diseases Act and that, in 1999, the Parliament had enacted the Animal Welfare Act to provide for the protection of animals in the Northern Territory, including those at the Wildlife Sanctuary, were similarly irrelevant. The fact that the Wildlife Sanctuary was regulated by legislation made it no different to any other business or activity that was regulated in that way. The fact that a business or undertaking was regulated by legislation did not of itself make the activities of the business a matter of legitimate public interest.

19 It was argued on behalf of the plaintiff that whether or not a matter is one of public interest depends upon whether it affects "people at large" so that they may be legitimately interested in, or concerned at, what is going on. Counsel referred to London Artists Ltd v Littler [1968] EWCA Civ 3; [1969] 2 QB 375 at 391; Bellino v Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 CLR 183 at 214 - 219. The welfare of animals kept at a private sanctuary does not affect "people at large".

20 The defendant argued that the welfare of animals is, and is acknowledged to be, a matter of legitimate public interest. Counsel referred to Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [217] - [220] and Animal Liberation (Vic) Inc & Anor v Gasser & Anor [1991] VicRp 5; [1991] 1 VR 51 at 56. It was submitted that it was at least arguable that the subject matter of the comment was a matter of legitimate public interest and, accordingly, the plea should not be struck out at an interlocutory stage: Gatley on Libel and Slander**,** 10th ed at par 30.33, Morton v Arbuckle [1918] VicLawRp 101; [1918] VLR 657.

21 In Bellino v Australian Broadcasting Corporation (supra), the majority, consisting of Dawson, McHugh and Gummow JJ, described [at 220] a matter of public interest as referring to the conduct of a person engaged in activities that either inherently, expressly or inferentially invite public criticism or discussion. Brennan CJ, on the other hand, considered that description to be too limited and referred, with approval, to what was said by Denning MR in London Artists Ltd v Littler (supra) at 391, as follows:

"There is no definition in the books as to what is a matter of public interest. All that we are given is a list of examples, coupled with the statement that it is for the judge and not the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment."

Gaudron J, in a separate judgment, expressed a similar view to Brennan CJ.

22 The defendants relied on Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (supra) and Animal Liberation (Vic) Inc & Anor v Gasser & Anor (supra) for the proposition that the welfare of animals is recognised as a matter of public interest. It does not seem to me, however, that either case establishes such a proposition.

23 In Animal Liberation (Vic), the appellants had demonstrated outside a circus operated by the respondents that was offering, among other things, performances by trained animals for public entertainment. In the course of the demonstrations, the appellants had made statements alleging they had proof of the respondents' cruelty to animals. The respondents obtained an interlocutory injunction restraining the appellants, among other things, from publishing the allegations. The decision was reversed on appeal. The Appeal Division referred to its decision in National Mutual Life Association of Australasia Ltd v G T V Corporation Pty Ltd [1989] VicRp 66; [1989] VR 747 where it said that, in the case of an application for an injunction to restrain a libel, society and the law have always accorded a very great importance to free speech, which means that equity exercises great care in granting injunctive relief and does so only where it is very clear that it should be granted. The Appeal Division went on to say that it appeared the Judge at first instance had not given proper weight to the right of the appellants to make statements that they believed to be true alleging conduct by the respondents of their business in a way that was cruel to animals. In the absence of a finding that the appellants had no honest belief in the truth of the statements, appropriate weight had not been given to the right of the appellants to free speech or to the importance to the community of exposing acts of cruelty to animals.

24 In Lenah Game Meats Pty Ltd, hidden video cameras were installed by trespassers in the respondent's abattoir and footage of animals being killed was obtained and supplied to the appellant for broadcasting on television. The respondent applied to the Supreme Court of Tasmania for an injunction restraining the appellant from broadcasting or distributing the video material. An injunction was refused at first instance but granted on appeal to the Full Court. The decision of the Full Court was reversed by the High Court. Gleeson CJ, Gaudron, Gummow and Hayne JJ held that where an injunction is sought, it is necessary to identify the legal or equitable rights to be determined at trial and in respect of which final relief is sought. In this case, no legal or equitable rights had been asserted which might be enforced by final judgment and, accordingly, the Supreme Court had no power to grant the injunction. Kirby J held that the Supreme Court did have power to grant the injunction, but in doing so the Full Court erred in the exercise of its discretion because it did not give appropriate consideration to the constitutional principle in Lange v Australian Broadcasting Corporation protecting freedom of communication concerning governmental and political matters. It was in that context that Kirby J made the following statement [at 287], upon which the defendant's counsel relied on this application:

"... concerns about animal welfare are clearly legitimate matters of public debate across the nation. ... Many advances in animal welfare have occurred only because of public debate and political pressure from special interest groups. ... Parliamentary democracies such as Australia, operate effectively when they are stimulated by debate promoted by community groups. To be successful, such debate often requires media attention. Improvements in the conditions of circus animals, in the transport of live sheep for export, and in the condition of battery hens followed such community debate." [footnotes omitted]

25 Animal welfare is undoubtedly an important issue of legitimate interest to the community at large. But that is not to say that any concern expressed in relation to any specific animal or animals is a matter of public interest, as that concept is used in the law of defamation. I do not understand his Honour's comments as being intended to state a general principle to that effect. Nor, in my view, is there anything in the decision in Animal Liberation (Vic) that supports such a proposition. In that case, the Court was concerned with the principles applicable to the grant of an interlocutory injunction to restrain an alleged defamation, in the context of comments alleged to have been made in respect of a circus offering public entertainment in the form of performing animals.

26 As is clear from the views expressed by the High Court in Bellino, in a particular case whether a matter is a matter of public interest in the relevant sense will turn on the circumstances of the case. It was not disputed that, in the present case, the animals concerned were not available for public viewing or entertainment. There is nothing before me to suggest that, prior to the alleged publication, the plaintiff had engaged in activities in relation to the Sanctuary or the animals kept there that inherently, expressly or inferentially invited public criticism or discussion. Nor, to adopt the approach favoured by Brennan CJ and Gaudron J in Bellino (supra), does it appear that the activities of the plaintiff in respect of the Sanctuary, or the animals kept there, affected people at large in the relevant sense.

27 The animals were the private property of the plaintiff and kept on his own land. It appears from the words complained of that there were a relatively large number of animals involved and that they included a number of exotic animals. But in the present case it does not seem to me that the number or nature of the animals concerned bears upon the issue. No doubt the number and nature of the animals is a reason (if not the reason) their welfare has generated the extensive interest referred to by the defendant, but the fact a person's activities have excited the interest of others, including the media, does not of itself make those activities a matter of public interest in the sense that that concept is used in the defence of fair comment. The media cannot by extensive reporting of a private matter thereby convert it into such a matter of public interest.

28 Nor does the fact that the activity concerned is regulated by legislation of itself make that activity a matter of public interest. A vast range of activities of innumerable sorts and descriptions are regulated by legislation. The fact that an activity is so regulated cannot, without more, make the conduct of any person who engages in the activity a matter of public interest.

29 In the present case, no other factors are relied upon by the defendant. It follows, in my view, that the defence of fair comment pleaded in par 10A cannot stand and should be struck out.

30 The next substantive complaint by the plaintiff related to par 12 of the defence where the defendant pleads as follows:

"12. Further or alternatively, the Defendant relies on the following in mitigation or extinction of damages:-

12.1 in a telephone conversation with John Tobin, the Defendant's Chief of Staff, on 11th November 2003, the Defendant threatened to shoot the animals at the Wildlife Sanctuary;

12.2 as a consequence of the threat referred to at paragraph 12.1, the Defendant sought, and was granted, an interlocutory injunction in the Supreme Court of the Northern Territory restraining the Plaintiff from (inter alia) shooting the animals;

12.3 the interlocutory injunction proceedings, and the threat referred to at paragraph 12. 1, were widely reported on television, radio and in the press;

12.4 on 12th November 2003, at Darwin Airport, the Plaintiff informed members of the press (inter alia) that he owned the animals at the Wildlife Sanctuary and he could shoot them if he wished;

12.5 the statement referred to at paragraph 12.4 was also reported widely on television, radio and in the press."

31 The general rule is that whilst a defendant may plead the plaintiff's general bad reputation in mitigation of damages, the defendant cannot plead and seek to rely on specific acts of misconduct: Scott v Sampson (1882) 8 QBD 491, Plato Films Ltd v Speidel [1961] AC 1090. However, in Burstein v Times Newspapers Ltd [2001] 1WLR 579, the Court of Appeal held that evidence of background context directly relevant to the damage which the plaintiff claims has been caused by the words complained of is admissible for the purpose of mitigating damages. That decision was referred to with approval by the Court of Appeal of New South Wales in Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430.

32 Although the matter was not specifically canvassed by counsel in the course of argument on this application, it appears that for the purposes of this application the plea in par 12 of the defence was treated by both sides as being a plea in the nature of that referred to in Burstein v Times Newspapers Ltd (supra). In any event, the plaintiff's complaint in his written outline of submissions that the plea was not a proper plea of general bad reputation was expressly not pursued. The only issue argued on this application was whether events occurring after the publication of the matter complained of could be pleaded by the defendant in mitigation of damages. It was in that light, as I understood it, that the plaintiff's counsel did not pursue an objection to par 21 of the defence, where the matters pleaded in par 12 are relied on in mitigation of damages in respect of a later publication, as the matters pleaded occurred before that publication. I will therefore deal with the objection to par 12 on that basis.

33 It is necessary then to turn to the question of whether it is arguable that the defendant can rely on matters occurring after the words complained of were published.

34 The plaintiff's counsel argued that, where a defendant pleads evidence in mitigation of damages, that evidence must be confined to matters occurring prior to, or at the time of publication of, the defamatory matter. He referred, in support of that submission, to Gatley (supra) at 33.33, Rochfort v John Fairfax & Sons (1972) 1 NSWLR 16 at 22 - 23 and Associated Newspapers Ltd v Dingle [1964] AC 371 at 396 - 399.

35 Counsel acknowledged that doubts have been expressed as to whether that rule should survive and referred to Australian Broadcasting Corporation v McBride (supra) per Ipp AJA at [75]. He also acknowledged that there have been cases where a defendant has been permitted to plead "post-publication" events affecting the reputation of a plaintiff in mitigation of damages and I was referred to Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1211 and Middendorp Electrical Co Pty Ltd v Sonneveld [2001] VSC 312. It was submitted, first, that in light of the decision in Rochfort v John Fairfax & Sons (supra) those cases should not be followed and, secondly, that in any event the latter cases had been concerned with adverse findings of fact by a court or tribunal against the plaintiff and were not authority for the proposition that a defendant can plead post-publication conduct of any other kind.

36 The defendant's counsel submitted that a defendant was entitled to plead post-publication conduct in mitigation of damages and referred to Roux v Australian Broadcasting Commission [1992] VicRp 87; [1992] 2 VR 577, at 603 and to Australian Broadcasting Commission v McBride (supra) at [96] - [97], The Law of Torts in Australia, Fleming, 9th ed at 662 and Gatley 10th ed at par 27.25.

37 It was argued by counsel for the defendant that there was no reason in principle why the entitlement to plead and prove post-publication conduct or events in mitigation of damages should be limited to some form of judicial or quasi-judicial finding. The fact that the position on the authorities was unclear meant that the defendant should not be precluded at this stage from pleading the defence.

38 I accept that submission. I would not regard it as clearly established that the circumstances in which a defendant may be entitled to rely on post-publication events in mitigation of damages is as limited as was submitted by the plaintiff's counsel. It is the case that in Rochfort v John Fairfax & Sons (supra), the Court of Appeal of New South Wales held that only the reputation of the plaintiff up to the time of the defamation complained of might be put in issue, following Associated Newspapers Ltd v Dingle (supra). It must be said, however, with respect, that that view has not continued to command universal assent.

39 In Television New Zealand Ltd v Quinn (1996) 3 NZLR 24, it was held that post-publication publicity of corruption charges against the plaintiff was properly left to the jury on the question of damages. McGechan J said (at 66) that it was a matter of commonsense that a defendant "may plead the windfall of post defamation damage by extraneous causes to a plaintiff's reputation as a factor in mitigation of compensatory damage."

40 In Middendorp Electric Co (supra), it was held that the plaintiff's post-publication convictions on criminal charges could be taken into account on the question of damages. Gillard J said (at 338 - 339):

"In my opinion, to exclude evidence of relevant convictions, which affect the reputation of the plaintiff, prior to the assessment of damages, is to deprive the tribunal of fact of a material matter relevant to the vindication of the plaintiff's reputation. In my view, it is logical to extend what was said in Goody's case to pre-trial convictions, and to do otherwise would fail to take into account one of the objects of damages, which is to restore the plaintiff's reputation in the eyes of those who know him and the public generally.

This happens at the time judgment is delivered, and it seems incongruous to award substantial damages to a plaintiff whose reputation, by reason of the commission of a relatively serious offence, has been destroyed prior to the judgment being pronounced. The Court is telling the world the plaintiff has a good reputation at the date of judgment, yet the truth is that he has no reputation. Such a result defies logic and common sense, and brings the law into contempt."

41 In Australian Broadcasting Corporation v McBride (supra), the defendant pleaded in mitigation of damages that the plaintiff did not have a good reputation and sought to rely on post-publication findings, by a committee of enquiry, of fraud by the plaintiff in relation to scientific experiments. The Court of Appeal held that such evidence was not relevant to that part of the plaintiff's reputation capable of being harmed by the defamatory matter. It was therefore unnecessary for the Court to decide the issue of post-publication material, but Ipp AJA (with whom Beazley JA agreed), after noting that Rochfort was authority for the proposition that such evidence could not be led, said that it "must be acknowledged, however, that a powerful argument can be mounted to the contrary." His Honour, having reviewed some of the authorities, said he would be inclined to follow the reasoning of Gillard J in Middendorp Electric Co, but, as the matter did not call for decision, it should be left for another day.

42 In Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419, the Court of Appeal said (at 1403) that evidence of matters going to diminish reputation occurring after the publication of defamatory matter can be given in mitigation of damages, although findings adverse to the plaintiff's reputation made in the actual proceedings in which the plaintiff claims damages cannot be taken into account.

43 In the light of the present state of the authorities, whether or not the defendant is entitled to rely on post-publication events in mitigation of damages is, in my view, not a matter to be determined on an interlocutory application of this nature. While the cases which have supported the proposition that such evidence can be led have been concerned with convictions or the findings of tribunals, there is nothing in the reasoning in those cases which would require that the evidence be limited to those circumstances, nor is it obvious that logic or principle require that it be so limited.

44 I would therefore refuse the plaintiff's application to strike out par 12 of the defence.

45 The last matter complained of by the plaintiff related to par 13.3 of the amended defence, which pleads to an allegation in the statement of claim of a publication by the defendant in the course of an interview broadcast by the ABC and published on the ABC's website. The defendant, in effect, admits in par 13.2 of the defence that he spoke the words alleged and goes on to plead in par 13.3 "that the interview was given, and the ... words complained of, spoken in the context of the events referred to at paragraphs 12.1 to 12.5".

46 The plaintiff says that par 13.3 is irrelevant and embarrassing.

47 The defendant says he is entitled to plead the context in which the words complained of were spoken, either in support of a plea that the allegedly defamatory matter must be understood in a wider context (Brown v Marron, unreported; SCt of WA (Steytler J); Library No 980686; 1 December 1998 at 4), or in mitigation of damages: Gatley at par 27.25.

48 In Brown v Marron (supra), the plaintiff alleged that he had been defamed by a letter sent by the defendant to the manager of a golf club. The defendant pleaded that attached to the letter were certain newspaper cuttings and, further, that he orally explained and qualified certain parts of the letter to the manager at the time the manager read it. The plaintiff applied to strike out that plea. The application was refused.

49 Steytler J, after reviewing the authorities, said [at 7]:

"... it seems to me to be plain that a defendant should be entitled to raise contextual material in the defence where that contextual material has not been pleaded by the plaintiff and where it might affect the meaning put upon the words complained of by the ordinary reasonable reader."

50 Although in the present case the defendant alleges that the matters sought to be relied upon were widely reported on television, radio and in the press, it is not alleged that they were known to viewers who saw the words complained of, nor does the defendant assert that that is properly to be inferred. In the absence of such a plea, it does not seem to me that a basis has been established for the contention that the matters alleged in pars 12.1 to 12.5 are contextual matters. Unless the contextual material was known to the viewers to whom the words complained of were published, it could not affect the meaning that would be placed upon those words by such viewers.

51 To the extent that the defendant seeks only to rely on those matters on the question of damages, I take it that that is as "background contextual material bearing on the plaintiff's reputation": see Gatley at par 27.25. That is not, at least on its face, the way the matter is currently pleaded.

52 The plaintiff also objected to pars 4 to 7 of the defence, but that issue has been stood over pending consideration by the plaintiff's solicitors of possible amendments to the relevant pleas in the statement of claim.

53 It follows from what I have said that I would strike out pars 10A and 13.3 of the defence, but would dismiss the application so far as it relates to pars 9 and 12.

54 I will hear the parties on the form of orders and costs.