The answer to that, on the authority of Jones , is no. But that is for a very specific reason. It is because the contextual imputation pleaded overlaps significantly with the imputation pleaded by the plaintiff. It is not, within s 26, an "other imputation". It is, in substance, nothing more than an alternative way of formulating the very imputation relied on by the plaintiff, although in more general terms, but based on exactly the same words in the matter complained of and applying those words in exactly the same way.
65 In the example given, as in Jones, the plaintiff confined the imputation pleaded to a very specific allegation of dishonesty, drawn directly from the matter complained of. The matter complained of could not be expanded to encompass other instances of dishonesty: the only dishonesty to be found in the matter complained of was that specified in the plaintiff's imputation. A could not expand the scope of its publication in order to draw in aspects of dishonesty in B that were not encompassed in the publication.
66 What the defendants here seek to do is to expand the scope of what it originally published. Relevantly, it originally alleged that the plaintiff owned more than 20 "adult shops", and that he had been fined in Queensland for selling certain banned items.
67 The association with pornography mentioned is confined - to the ownership of more than 20 "adult shops", and to having been fined in Queensland for the sale of banned items. Had the plaintiff pleaded an imputation asserting an association with pornography, he no doubt would have done so in narrow terms, confining himself to what was contained in the article, and thus restricting the area of discreditable conduct available to be explored by a defence of justification; but it is for that practical, pragmatic reason that he would so confine himself. There is nothing in law that would have prevented him from pleading an imputation that he is a pornographer.
68 Equally, there is nothing that prevents the defendants doing the same thing, by way of pleading a contextual imputation.
69 By pleading contextual imputation (i), and particularising it as it has, the defendants seeks to give the broadest possible scope to what they originally published, in order to expand, correspondingly, the scope of the inquiry into the plaintiff's conduct. They seek to prove that the plaintiff engaged in discreditable conduct well outside the confines of what it published. By pleading imputations of the most general kind, a defendant may - to use a somewhat loaded term - manipulate the proceedings to enable it to adduce evidence of misconduct going well outside anything alleged in the matter complained of.
70 The question is whether the defendants are permitted to do so. It was not submitted that there exists any discretionary basis upon which the defendants could be prevented from doing what they seek to do. I am not aware of any such discretion. Provided that an imputation is capable of being conveyed by the matter complained of, a judge has no supervisory role in its formulation (other than as to form).
71 A claim in defamation is directed to the damage done to a plaintiff's reputation by the publication of what is published by the defendant. A contextual truth defence is equally directed to what is published by the defendant. Subject to the manner in which the plaintiff pleads his/her case, a defamation claim does not ordinarily open up a full-scale inquiry into the plaintiff's character or conduct.
72 If the fairness of allowing contextual imputations so framed to be pleaded (and proved) were an issue, the outcome of this application may have been different. But no power to direct the manner of pleading by reference to fairness was identified and I know of no relevant power.
73 It may be that the answer lies in the determination by the tribunal of fact of the question whether the contextual imputation as pleaded was in fact conveyed. It is possible that an imputation framed so widely that it exceeds what was published would be found not to have been conveyed. It remains for the defendants to persuade the tribunal of fact that a contextual imputation framed as generally as is contextual imputation (i) is conveyed. If it is, then, in accordance with s 26, they are entitled to seek to prove that that imputation is true, by reference to facts well outside what it originally published.
74 The consequence of this decision may be significant for the parties.
75 Under the Act, all issues except damages are committed for jury determination, at the option of either party (and subject to a contrary order by the Court): s 21.
76 In this case, those issues will include:
o whether any of the imputations pleaded by the plaintiff was conveyed;
o if so, whether any of those imputations found to have been conveyed was defamatory;
o whether any of those imputations found to have been conveyed and defamatory was true;
o whether any contextual imputation pleaded by the defendants was conveyed;
o if so, whether any of those found to have been conveyed was defamatory;
o whether any of those found to have been conveyed and defamatory was true;
o whether, because of the truth of those contextual imputations found to have been true, the defamatory imputations pleaded by the plaintiff did not further harm the reputation of the plaintiff.
77 In order to prove the truth of the contextual imputations the defendants will tender evidence in accord with their particularised case. Examination of the particulars demonstrates, beyond any doubt, that evidence of those matters will be highly prejudicial to the plaintiff, probably irretrievably.
78 The jury will hear all the evidence the defendants are able to adduce to prove that the plaintiff is a pornographer. It is impossible to imagine that its members could then bring impartial and unclouded minds to the question of whether the imputations (or contextual imputations) were conveyed, and if so, whether they were defamatory.
79 But that is the way defamation proceedings were conducted for many years prior to the introduction, in 1995, of the s 7A procedure, and it is the way defamation proceedings are to be conducted under the Act.
80 For the reasons given above, I decline to strike out contextual imputation (i).