//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2019] FCAFC 125
respondent. The applicants have leave to appeal the orders of the primary judge made 31 August 2018. The appeal be dismissed. The applicants pay the respondent's costs of the application and of the appeal.
The Full Federal Court held that media defendants in a defamation case about alleged Chinese espionage and bribery could not defend the claim by proving only that there were reasonable grounds to suspect the plaintiff had done those things. The plaintiff's imputations accused him of actually doing them, and suspicion is a different and less serious allegation. The court also ruled that the defendants' lengthy particulars were too vague, relied on hearsay and circular reasoning, and did not give the plaintiff fair notice of the case he had to meet. The strike-out of the defences was upheld and the appeal dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,638 words · generated 24/04/2026
The respondent, Dr Chau Chak Wing, commenced proceedings in the Federal Court claiming damages for defamation arising from two matters published on 5 June 2017: a "Four Corners" television program broadcast by the first applicant and an internet article published on the first applicant's website that included video of the program. The second and third applicants were said to have been involved in the joint investigation. The respondent alleged that each matter conveyed six natural and ordinary meaning imputations and one true innuendo based on the citizenship pledge. The imputations included that the respondent had betrayed Australia by engaging in espionage for China and the Chinese Communist Party, was a member of the CCP and the CPPCC carrying out the work of the United Front Work Department, had donated enormous sums to Australian political parties as bribes, had paid a known corrupt espionage agent to assist in infiltrating the Australian government, had paid a $200,000 bribe to the President of the UN General Assembly, and had been knowingly involved in a corrupt bribery scheme. The true innuendo was that he had broken his pledge of loyalty to Australia by secretly advancing foreign interests.
10 cited instruments linked from this judgment.
The applicants denied that the imputations were conveyed. In the alternative they pleaded truth under s 25 of the Defamation Act 2005 (NSW), common law justification, and statutory qualified privilege under s 30. The truth defences alleged that each of the respondent's imputations was substantially true and, in addition, pleaded seven variant imputations each prefaced by the words "There are reasonable grounds to believe that…". The variant imputations corresponded to the respondent's imputations but alleged only the existence of reasonable grounds for belief rather than the underlying conduct. Particulars of the truth defences were set out in a schedule ultimately running to 80 paragraphs. These particulars were divided into general allegations about the CCP, the United Front Work Department and the CPPCC, allegations of the respondent's "deep connections" to those entities, his donations and meetings with Australian politicians, ASIO's concerns, parliamentary consideration of national security legislation, and his alleged involvement with Sheri Yan in a UN bribery scheme.
The respondent applied to strike out the truth defences. The primary judge heard that application together with an oral application by the applicants for leave to file an amended defence containing revised particulars. On 31 August 2018 the primary judge struck out the variant imputations on the ground that they were not permissible variants of the respondent's imputations and struck out the particulars on the ground that they were imprecise, embarrassing, conclusory, hearsay and could not support the defences of truth. Leave to file the amended defence was refused. The applicants sought leave to appeal those interlocutory orders. The Full Court granted leave but, after hearing the appeal on 21 February 2019, dismissed it on 2 August 2019 with costs. The court emphasised caution in interfering with interlocutory pleading decisions but considered that the potential shutting out of arguable defences warranted appellate scrutiny.
The Full Court decided that the primary judge had not erred in striking out the variant imputations or the particulars. On the variant imputations the court began by restating the modern pleading practice derived from Chakravarti at [17]-[21] and Hore-Lacy at [17] and [52]. Once a plaintiff pleads specific meanings, those pleadings delimit the field of inquiry at trial. A defendant may justify only a meaning on which the plaintiff would be entitled to obtain a verdict. That requires the variant to be comprehended in, less injurious than, or a mere shade or nuance of the plaintiff's meanings and to cause no unfair prejudice to the defendant. The court held that an imputation of actual betrayal or espionage is conceptually distinct from an imputation that there are reasonable grounds to believe the same conduct occurred. Drawing on Lord Devlin in Lewis v Daily Telegraph at 284-286, Mason J in Mirror Newspapers Ltd v Harrison at 302-303 and the joint judgment in George v Rockett at 112, the court emphasised the difference between suspicion, however well founded, and proven fact. The respondent had "nailed his colours to the mast" by pleading guilt rather than suspicion. He would not be entitled at trial to succeed on the lesser meanings, and therefore the applicants could not justify those lesser meanings.
The court rejected the applicants' reliance on West Australian Newspapers v Elliott. It analysed Chakravarti in detail, noting that the High Court's references to lesser meanings were obiter and turned on the absence of unfair prejudice where the defendant had itself pleaded and defended a suspicion meaning. The court distinguished the present case because the respondent had not pleaded or accepted the lesser meanings and would suffer no disadvantage if they were excluded. It also noted that the single objective meaning rule means a court must decide one meaning, not allow a plaintiff to succeed on a meaning a substantial proportion of the audience might have taken but which the plaintiff had disclaimed. Permitting the variants would allow the applicants to litigate false issues that did not meet the sting of the respondent's case.
On the particulars the court held that the primary judge had correctly applied the principle that justification must be pleaded with the precision of an indictment. The 80 paragraphs were criticised as containing sweeping general allegations about Chinese entities expressed in vague terms such as "deep connections", "close links" and "close association". Inferences about the respondent's knowledge, intentions and conduct were said to be circular, resting on the very connections alleged rather than on specific facts. No particulars were given of what was said or done in meetings with 11 named Australian politicians, rendering the inference that he had attempted to influence trade policy or advance Chinese interests speculative. The definition of "espionage" in paragraph 14 was held embarrassing because it expanded the ordinary meaning of spying to include vague concepts of influence and subversion not conveyed by the respondent's imputation. The UN bribery allegations relied on hearsay from a foreign court complaint, Sheri Yan's guilty plea and a parliamentary speech by Andrew Hastie MP. The latter was held impermissible under s 16(3) of the Parliamentary Privileges Act 1987 (Cth) because it invited the drawing of inferences from proceedings in Parliament. Taken cumulatively the particulars did not address the sting of the imputations and left the respondent unable to know the case he had to meet. The court acknowledged the circumstantial nature of the applicants' case but held that even a circumstantial case must still plead material facts capable of supporting the inferences alleged. Because the variant imputations had been struck out, the particulars were assessed solely against the respondent's imputations and found wanting.
The court granted leave to appeal because the questions raised matters of principle concerning the Hore-Lacy doctrine and the adequacy of justification particulars, but it found no error in the primary judge's conclusions. The appeal was therefore dismissed.
Before this judgment the law was settled by Chakravarti and Hore-Lacy that a defendant could plead justification to a meaning that was a variant of, comprehended in, or less injurious than the plaintiff's meanings provided there was no unfair prejudice. Courts had recognised that suspicion and guilt could shade into each other and that a strong suspicion might be practically indistinguishable from guilt for damages purposes. West Australian Newspapers v Elliott had held that a "reasonable grounds to suspect" imputation could be a permissible Polly Peck plea where the published facts were essentially the same and the difference was one of degree. Particulars of justification were required to be precise, but there was debate about how much detail was needed before trial, especially in circumstantial cases.
After the judgment the law is clearer that "reasonable grounds to believe" or suspicion is not a permissible variant of a direct allegation of guilt or betrayal when the plaintiff has deliberately chosen to plead the higher meaning. The court has rejected any rigid tripartite classification of meanings and emphasised the single objective meaning rule. A plaintiff who pleads guilt cannot be taken to have pleaded suspicion, and a defendant cannot justify the lesser meaning. On particulars the judgment reinforces that the standard is high: sweeping, conclusory or circular allegations will not suffice, even in a circumstantial foreign influence case. Reliance on hearsay from foreign proceedings or parliamentary speeches is tightly constrained. The judgment also confirms that a justification plea cannot be used as a vehicle to adduce mitigation evidence that would otherwise be inadmissible under Scott v Sampson principles. The pre-existing distinction between guilt and suspicion has been sharpened for pleading purposes, while the flexibility recognised in Chakravarti at [60] is confined to cases where no unfair prejudice arises.
At [24] the court stated: "The primary judge held that the respondents' imputations of reasonable grounds for belief were not permissible variants of the applicant's meanings. That was because his Honour considered that there was a substantive distinction between a suspicion, however well-founded, and a fact." In plain English this means the trial judge saw a real legal difference between saying "we think he probably did it" and saying "he did it". That difference prevented the media from defending the stronger accusation by proving only the weaker one.
At [86] the court held: "The applicant has 'nailed his colours to the mast', and the points on which he seeks to have his reputation vindicated are the underlying substance of his imputations, and not the conceptually distinct respondents' imputations that there were 'reasonable grounds to believe' the substance of the applicant's imputations. This is an instance where the respondents' variant imputations, if permitted, would have the consequence that the respondents could hijack the applicant's case by litigating false issues that do not meet the sting of the imputations relied on by the applicant." Plain English: the plaintiff has chosen to fight on the ground that he is innocent of actual spying and bribery. He cannot be forced to defend a watered-down version of the allegation. Allowing the media to run the lesser case would let them change the fight into something the plaintiff never complained about.
At [110] the primary judge's reasoning, adopted by the Full Court, was that the bespoke definition of espionage in paragraph 14 "sought to expand espionage to encompass vague and imprecise concepts which were not within the natural and ordinary meaning of the word 'espionage'". The Full Court agreed at [173] that the applicant's imputation used "espionage" in the sense of spying, not broader influence activities. Plain English: you cannot redefine a serious word like "espionage" in your defence to mean something much milder like lobbying or donating money, then claim you have justified the original accusation.
At [13] the court summarised the defects in the particulars: they were "imprecise, embarrassing, conclusory, hearsay, did not provide a basis for the inferences that were alleged to arise from the facts alleged in the particulars, did not provide proper particulars of allegations of knowledge, and otherwise failed to comply with the rules of pleading in r 16.41 and r 16.43". Plain English: the defence papers were full of vague claims, guesses dressed up as inferences, second-hand gossip and sweeping statements that did not give Dr Chau a clear roadmap of the evidence he would have to answer.
This precedent is triggered in any defamation proceeding under the uniform Defamation Acts where a plaintiff pleads imputations of actual misconduct (guilt, betrayal, bribery, espionage) and a defendant seeks to plead and justify a lesser meaning that there were reasonable grounds to believe or suspect that misconduct. It applies with particular force where the plaintiff has deliberately chosen not to plead the lesser meaning and where the publication itself draws a distinction between suspicion and guilt. The precedent also applies to any justification defence, common law or statutory, whose particulars are expressed in general, conclusory or circular language, rely on hearsay from foreign court documents or parliamentary speeches, fail to identify specific acts or words said in meetings, or attempt to redefine ordinary English words such as "espionage" to encompass broader influence activities. It is especially relevant in cases involving allegations of foreign interference, political donations or national security where the defendant seeks to build a circumstantial case from associations, memberships and inferences of knowledge without pleading primary material facts capable of supporting those inferences. The requirement for indictment-level precision is engaged whenever the imputations allege serious criminal or disloyal conduct.
The judgment itself demonstrates how the Full Court treated the authorities it cited. It followed Hore-Lacy at [20] and [22] by confirming that the doctrine is simply a pleading rule for the common law defence of justification and is not a separate defence. It applied Chakravarti at [34]-[55] by undertaking a detailed analysis of both the Full Court and High Court reasons, extracting the principle that unfair prejudice is the touchstone and that obiter remarks about lesser meanings turned on the defendant having itself pleaded suspicion. The court distinguished West Australian Newspapers v Elliott at [97] on the basis that its reading of Chakravarti at [60] elided the distinction between guilt and suspicion and that the decision was not compelled by High Court authority. It cited Setka v Abbott at [18] with approval for the proposition that the plaintiff's pleaded meanings delimit the field of inquiry. It treated Gutnick v Dow Jones & Co Inc (No 4) at [56] and Hore-Lacy v Cleary at [60] as consistent authorities against allowing reasonable suspicion imputations as variants of guilt. The judgment's treatment of Lewis v Daily Telegraph, Mirror Newspapers Ltd v Harrison and George v Rockett at [24] and [28] reinforces that those authorities establish a substantive distinction that survives contextual nuance. Parliamentary privilege under s 16(3) was applied strictly at [129] to prohibit reliance on a parliamentarian's speech as a particular of truth. The court's refusal to expand the Burstein principle at [84] shows a cautious approach to mitigation evidence that remains consistent with Scott v Sampson and Speidel v Plato Films Ltd. Overall the judgment narrows the availability of lesser-meaning justifications while maintaining the high pleading standard previously set in Rush v Nationwide News Pty Ltd and Wootton v Siever.
The judgment leaves open the precise boundaries of when a disclaimer of a lesser meaning by a plaintiff might be regarded as contrived or artificial so as to justify striking out the plaintiff's higher imputation. It notes at [86] that in some cases a plaintiff might be prevented from avoiding a fairly arising variant, but on the facts before the court the respondent's choice was legitimate. The metes and bounds of the Burstein "directly relevant background context" exception for mitigation evidence are expressly left for another day at [84], with the court listing a series of earlier authorities that would require detailed reconciliation. The interaction between the single objective meaning rule and multiple distinct imputations pleaded in the alternative remains open in borderline cases where the line between suspicion and guilt is especially fine. The judgment does not decide whether a plaintiff could ever succeed on a "reasonable grounds to believe" meaning if that meaning were pleaded in the alternative from the outset. It also leaves unresolved the extent to which evidence of ASIO briefings or parliamentary consideration of legislation could be relevant to damages if properly admitted on another basis. Finally, the circumstances in which a circumstantial foreign influence case might be adequately particularised without descending into the detail of every conversation or document are not exhaustively mapped, although the court has made clear that vague associations and circular inferences will not suffice. These questions will require further appellate guidance in future matters.
Introduction 1 Before the Court is an application for leave to appeal and, if leave is given, an appeal from interlocutory orders of the primary judge made 31 August 2018 in a defamation proceeding. By the orders, parts of the respondents' defence in the proceeding were struck out, and an application for leave to file an amended defence was dismissed. 2 To avoid confusion, we shall refer to the parties by reference to their designation in the substantive proceeding, that is, as the applicant and the respondents. We shall also from time to time refer to claimants generally in defamation proceedings as plaintiffs, which is the term used in the Defamation Act 2005 (NSW) (Act) and the corresponding provisions in the defamation legislation of the other states and territories. Because of the uniform nature of that legislation, we shall refer to the New South Wales Act. In referring to the respondents' pleadings, we shall refer principally to the proposed amended defence, and references to paragraphs of the respondents' particulars shall be to the paragraph numbers appearing in that document. 3 Caution should be exercised by an appellate court in reviewing interlocutory decisions on matters of practice and procedure, including the adequacy of pleadings: see the observations of Lee J in the Full Court in Nationwide News Pty Limited v Rush [2018] FCAFC 70, and his Honour's reference at [4] to In re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at p 323 (Jordan CJ). These considerations are relevant not only to whether leave to appeal should be given, but also to any appeal itself. On any appeal from interlocutory orders, it is necessary for an appellant to demonstrate error in the orders under challenge, and not merely the reasons for decision: King v Lintrose Nominees Pty Ltd [2001] VSCA 140; 4 VR 619 at [22] (Callaway JA). In addition, the extent of injustice flowing from interlocutory orders that are challenged will generally be a relevant and necessary consideration: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ). In this case, the potential extent of injustice is to be evaluated on the footing that the effect of the primary judge's orders was to shut the respondents out from pursuing defences of justification at trial that they submitted were arguable: see Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [14] (McColl JA, Bathurst CJ and Gleeson JA agreeing), citing Berezovsky v Forbes Inc [2001] EMLR 45 at [16] (Sedley LJ). However, any injustice of this type may not necessarily be irremediable, because at least in some circumstances an appeal may be brought from final orders at trial on the ground of some error in an interlocutory decision that affected the final result: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [4]-[8] (Gaudron, McHugh and Hayne JJ).
Background 4 The applicant has commenced a proceeding in the Court claiming damages for defamation in respect of the publication of two matters. The first matter is a "Four Corners" television program that was published on television channels of the first respondent (ABC), initially on 5 June 2017. The second matter is an internet article that was published on the ABC's website, which included video of the Four Corners program, and which was available for downloading from 5 June 2017. A transcript of the Four Corners program is attached to the primary judge's reasons. The applicant relies on publication in each State and Territory of Australia. He alleges that the two matters were promoted and published as a joint investigation between the ABC and the second respondent (Fairfax) and that the third respondent (Mr McKenzie) presented the two matters. The ABC and Mr McKenzie admit publication of the two matters, but Fairfax denies publication. 5 By his amended statement of claim the applicant alleges that each of the two matters in its natural and ordinary meaning conveyed the following six imputations - (a) The Applicant betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf. (b) [Deleted] (c) [Deleted] (d) The Applicant is a member of the Chinese Communist Party and of an advisory group to that party the People's Political Consultative Conference (CPCCC) and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department. (e) The Applicant donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party. (f) The Applicant paid Sheri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in infiltrating the Australian government on behalf of the Chinese Communist Party. (g) The Applicant paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe. (h) The Applicant was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations. 6 The applicant also alleges that each of the two matters conveyed the following true innuendo based upon extrinsic facts, namely the terms of the pledge of loyalty taken by all persons upon becoming Australian citizens - The applicant broke the pledge of loyalty he took to Australia on becoming an Australian citizen by secretly advancing the interests of a foreign power at the expense of the interests of Australia. 7 The primary judge recorded at [2] that he had found that the applicant's imputations were capable of being conveyed during the course of oral argument on 18 August 2017. In this application for leave to appeal interlocutory orders, there was no challenge to the capacity of the Four Corners program to convey the imputations alleged by the applicant: whether any of the imputations alleged by the applicant was conveyed is a matter for trial. 8 By their defence, the respondents denied that any of the imputations or the true innuendo alleged by the applicant was reasonably capable of being conveyed, or was in fact conveyed by the matters. In the alternative, the respondents alleged three defences: (i) truth under s 25 of the Act; (ii) truth at common law; and (iii) statutory qualified privilege under s 30 of the Act. 9 By their truth defences the respondents alleged that each of the applicant's imputations was substantially true. In addition, the respondents alleged seven variant imputations, and alleged that the variant imputations were substantially true. Each variant imputation corresponded to one of the applicant's imputations, prefaced by the words, "There are reasonable grounds to believe that…". The variant imputations that corresponded to the applicant's imputations based upon the natural and ordinary meaning of the matters were as follows - Variant Imputation 5(a): There are reasonable grounds to believe that the Applicant betrayed his country, Australia in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf. Variant Imputation 5(d): There are reasonable grounds to believe that the Applicant is a member of the People's Political Consultative Conference (CPCCC), an advisory group to the Chinese Communist Party, and which carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department. Variant Imputation 5(e): There are reasonable grounds to believe that the Applicant donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the People's Republic of China, the Chinese government and the Chinese Communist Party. Variant Imputation 5(f): There are reasonable grounds to believe that the Applicant paid Sherri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in advancing the interests of the Chinese Communist Party in his dealings with the Australian government. Variant Imputation 5(g): There are reasonable grounds to believe that the Applicant paid a $200,000 bribe to the President of the United Nations, John Ashe. Variant Imputation 5(h): There are reasonable grounds to believe that the Applicant was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations. 10 The variant imputation that corresponded to the applicant's true innuendo was as follows - Variant Imputation 7(a): There are reasonable grounds to believe that the Applicant broke the pledge of loyalty he took to Australia on becoming an Australian citizen by secretly advancing the interests of a foreign power at the expense of the interests of Australia. 11 Particulars of the truth defences were set out in schedules to the defence and the proposed amended defence. 12 The applicant made an interlocutory application to have the truth defences struck out. That application was heard together with an oral application by the respondents to file an amended defence which proposed amendments to the particulars supporting the truth defences. By orders made 31 August 2018 the primary judge struck out the truth defences and their particulars, and dismissed the application for leave to file an amended defence. From those orders the respondents seek leave to appeal. 13 There were two grounds on which the truth defences were struck out and on which the application to file an amended defence was dismissed. First, the primary judge held that each of the so-called variant imputations was not a permissible variant of the applicant's imputations, and that there was no reasonable basis to hold that proof of the truth of the variant imputations would be a defence to any of the applicant's imputations. Second, the particulars of truth in the schedule to the defence and the proposed amended defence were, in a number of respects, imprecise, embarrassing, conclusory, hearsay, did not provide a basis for the inferences that were alleged to arise from the facts alleged in the particulars, did not provide proper particulars of allegations of knowledge, and otherwise failed to comply with the rules of pleading in r 16.41 and r 16.43 of the Federal Court Rules 2011 (Cth) and the principles of pleading essayed in the authorities. The primary judge held that the particulars could not reasonably support the respondents' plea of truth to the applicant's imputations. 14 The application for leave to appeal relied on a draft notice of appeal containing 14 grounds, which fell into two categories. Proposed grounds 1 to 4 challenged the primary judge's decision to strike out the respondents' so-called variant imputations, and proposed grounds 5 to 14 challenged the primary judge's conclusions supporting the orders striking out the respondents' particulars of truth. It is convenient to consider the issues raised on the application in two parts, reflecting the division in the draft notice of appeal.
The variant imputations - proposed grounds 1 to 4 15 The publication of a matter, such as a feature television program or newspaper article, may convey a range of different imputations about a person. Some imputations might be defamatory, while others may not. Some imputations might rest upon matter which is fair comment, or honest opinion. Some imputations might be substantially true. General principles of pleading now invariably require that a defendant to a defamation proceeding is entitled to know what defamatory imputations are relied upon by a plaintiff: Hadzel v De Waldorf (1970) 16 FLR 174 at p 179; Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at p 167; DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] QB 21 at p 26; Kerney v Optimus Holdings Pty Ltd [1976] VR 399; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519 (Chakravarti) at [16], [52]; David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 (Hore-Lacy) at [18]; cf, Lewis v Daily Telegraph [1964] AC 234 at p 265, 273; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at p 168-9, 176, 177 and 185-6. In some jurisdictions, the rules of procedure require that a statement of claim in a defamation proceeding specify the imputations that are relied upon: Uniform Civil Procedure Rules 2005 (NSW), r 14.30(2)(a); Supreme Court Rules 2000 (Tas), r 263B(2)(a). The requirement in the New South Wales Uniform Civil Procedure Rules that an imputation be specified has its origins in the practice rules that existed when the now-repealed Defamation Act 1974 (NSW) was in force, where s 9(2) of that Act provided for a cause of action in respect of each imputation: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at p 136-7; Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154; 90 NSWLR 79 at [150]. Now, s 8 of the Defamation Act 2005 provides that a person has a single cause of action in relation to the publication of a defamatory matter even if more than one defamatory imputation is carried, which is consistent with the common law position in relation to imputations based upon the natural and ordinary meaning of words. Nonetheless, the statutory defences of truth and contextual truth under s 25 and s 26 of the Defamation Act respond to imputations alleged by a plaintiff, and afford a further reason as to why general rules and principles of pleading require that a plaintiff should plead imputations. 16 Generally speaking, it is open to a plaintiff in a defamation proceeding to choose upon what imputations he or she relies: Templeton v Jones [1984] 1 NZLR 448; Cruise v Express Newspapers plc [1999] QB 931; Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [22]. This is an area of choice which, within proper limits, is available to a plaintiff: John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 (Mahoney JA). There is a statement to the contrary in the reasons of Seaman J in Gumina v Williams (No 2) (1990) 3 WAR 351 (Gumina v Williams (No 2)) at p 364. There, Seaman J, with whom Malcolm CJ and Pidgeon J agreed, stated that a tribunal of fact may still find for a plaintiff, even though the plaintiff does not make out the meanings for which the plaintiff contends, and rejected a submission that a plaintiff may confine the issues in the proceeding by the selection of meanings so as to prevent the defendant pleading other meanings and justifying them. In our view, these statements in Gumina v Williams (No 2) do not reflect modern pleading and trial practice in defamation proceedings. Seaman J relied on the decision of the Full Court of the Supreme Court of Victoria in Barclay v Cox [1968] VR 664 at p 666 for the proposition that a jury should not be asked whether the words were understood to have the meanings alleged by the plaintiff. That is no longer the practice in Victoria. As Beach JA noted in Setka v Abbott (No 2) [2013] VSC 726 at [34], under s 22 of the Defamation Act 2005 (Vic) damages are now a matter for the judge, and in order to assess damages the judge must know what imputations have been found by the jury to have been conveyed. For this reason also, the statement by Ormiston JA in Hore-Lacy at [2] that neither judge nor jury are "confined to the meanings asserted by the parties", is no longer correct in the broad terms stated, but is subject to the current practice in Victoria that meanings are now left to juries, and otherwise to the limitations referred to by Charles JA in Hore-Lacy at [52], which are derived principally from the judgments of Brennan CJ and McHugh J, and Gaudron and Gummow JJ, in Chakravarti. 17 Under modern pleading practice, the plaintiff's case will be shaped by the meanings alleged in the statement of claim, which will generally confine the questions of meaning for determination: Chakravarti at [17]-[21]. In Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82; 91 SASR 206 (Advertiser-News) at [76] Doyle CJ (with whom Vanstone J and White J agreed) stated the position as follows - Once the plaintiff pleads a meaning on which the plaintiff relies, that pleading will identify the meaning of which the plaintiff complains, and delimit the boundaries within which the action is to be fought. Although it is the publication of the defamatory material that is the tort, the function of the pleading is to identify the field of inquiry at the trial. 18 The above statement was cited with approval by the Victorian Court of Appeal in Setka v Abbott [2014] VSCA 287; 44 VR 352 at [47]. The field of inquiry at trial to which Doyle CJ referred in Advertiser-News, at least as far as the plaintiff's meanings are concerned, may extend to meanings that are comprehended in, or are less injurious than, or are a mere shade or nuance of the pleaded meaning: Chakravarti at [21]-[22], [60], [139] at points 3 and 4; Advertiser-News at [77]. Whether, and to what extent, a plaintiff may be permitted at trial to depart from the pleaded meanings will be resolved by considerations of fairness and practical justice. Even in relation to imputations pleaded in support of causes of action arising under s 9(2) of the Defamation Act 1974 (NSW) there was some support for a degree of flexibility. In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at p 771D the New South Wales Court of Appeal held that upon a proper construction of the rules, an imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance. See also, Crampton v Nugawela (1996) 41 NSWLR 176 at p 183C-D (Mahoney A-CJ). 19 The significance of words is their meaning. Until meaning is determined, it is not possible to evaluate whether a publication is justified, or whether other defences such as honest opinion, or common law comment are established. The defence of justification at common law requires that the publisher establish that the words are true in substance and in fact, which involves demonstrating that the sting, or stings conveyed by the matter are made out: Sutherland v Stopes [1925] AC 47 at p 79 (Lord Shaw). Immaterial aspects of the matter that make no difference to the quality of the imputation need not be justified: Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 at p 20 (Street ACJ); Sutherland v Stopes at p 79; Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 at p 420-421 (Dixon J). And because the defence of justification is a defence of confession and avoidance, in order to succeed it must respond to the meanings found by the court: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 at [83] (noting that the observations there were made in relation to the common law defence of comment). The statutory defence of truth under s 25 of the Defamation Act makes this explicit, because it requires that the defendant prove that the imputations carried by the matter of which the plaintiff complains are substantially true. Likewise, the pleading of a common law defence of justification should respond to the case alleged by the plaintiff: Chakravarti at [8], [13]; Fenn v Australian Broadcasting Corporation [2018] VSCA 166 at [48]. 20 In Hore-Lacy, the Victorian Court of Appeal sanctioned the practice of defendants pleading justification to alternate meanings. However, consistently with what the Court considered was the majority view in Chakravarti, it held that a defendant was permitted to justify an alternate meaning only if it is comprehended by, or it is a variant of one of the meanings relied on by the plaintiff: Ormiston JA at [17]. That is because the questions whether, and to what extent a defendant may justify meanings different from those alleged by a plaintiff are necessarily bound up with the extent to which a plaintiff may be allowed at trial to depart from specific meanings alleged in the statement of claim: Charles JA at [46], with whom Ormiston JA at [23] agreed. Charles JA stated at [52] that it would seem that - … all members of the court in Chakravarti would take the view that a plaintiff could, after pleading specific meanings by way of false innuendo, succeed at trial on a meaning other than the meanings pleaded, provided that the meaning was not substantially different from and was not more injurious than the meanings pleaded, and that the defendant was not in all the circumstances unfairly prejudiced by allowing that meaning to go to the jury. 21 At [60], Charles JA described the limitation as being that a defendant is limited to justifying a meaning on which the plaintiff might obtain a verdict. A justification defence that complies with this limitation will be a plea in respect of the imputations pleaded by a plaintiff: cf, Chakravarti at [8] (Brennan CJ and McHugh J). In formulating the principles in this way, the Court in Hore-Lacy necessarily rejected the broader approach in the English cases, represented by Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at p 1032, and the earlier case of Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 which it applied, and which approach was so strongly criticised by Brennan CJ and McHugh J in Chakravarti at [8]-[13]. 22 In Setka v Abbott, the Victorian Court of Appeal confirmed that Hore-Lacy was correctly decided, and held that it continued to apply to the pleading of common law justification defences in proceedings subject to the uniform Defamation Acts. It is apt to mislead to describe a pleading in a form sanctioned by Hore-Lacy as a common law defence. Hore-Lacy sanctions only a form of pleading of the common law defence of justification. In this respect, we agree with the separate views of Whelan JA in Setka v Abbott at [310]-[312] that there is no separate Hore-Lacy defence at common law, and that the defence is one of justification. See also, Fairfax Media Publications Pty Ltd v Bateman at [147], [198] (Basten JA), and at [231]-[232] (McFarlane JA), and see contra, Setka v Abbott at [116], [121] (Warren CJ and Ashley JA). The foundation for pleading justification of permissible variant imputations is statute, namely the rules of pleading which in this Court relevantly include rr 16.02, 16.08, and 16.41 of the Federal Court Rules. Those rules are calculated to avoid trial by ambush, and to promote the precise identification of the issues that are before the Court, and as such, may require a respondent to plead any variant of a meaning alleged by an applicant that the respondent proposes to justify at trial: Hore-Lacy at [58] (Charles JA). However, whatever the shape of a defence of justification as permissibly pleaded, in order that a justification defence succeed at trial in respect of the publication of a matter, the common law requires that a respondent establish the substantial truth of all the meanings that are fairly within the imputations that are the subject of the applicant's claim and which are found by the Court to have been conveyed and to have been defamatory of the applicant. 23 In this case, the parties accepted that it was open to a respondent in this Court to plead a common law justification defence consistently with the principles essayed in Hore-Lacy. The dispute, however, turned on whether in applying those principles the respondents' variant imputations of the existence of reasonable grounds for belief were permissible variants of, and therefore responsive to the applicant's pleaded meanings. 24 The primary judge held that the respondents' imputations of reasonable grounds for belief were not permissible variants of the applicant's meanings. That was because his Honour considered that there was a substantive distinction between a suspicion, however well-founded, and a fact. The primary judge relied on the speeches of Lord Devlin and Lord Reid in Lewis v Daily Telegraph at p 284 and p 260, the reasons for judgment of Mason J in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at p 302-303, and the reasons of the Court in George v Rockett (1990) 170 CLR 104 at p 112 to demonstrate the distinction. The respondents had relied on a decision of the Western Australian Court of Appeal in West Australian Newspapers v Elliott [2008] WASCA 172; 37 WAR 387 to support their submission that an imputation that there were reasonable grounds to believe a fact was a permissible variant of an imputation alleging the fact. The primary judge held that West Australian Newspapers v Elliott was plainly wrong, and inconsistent with Mirror Newspapers Ltd v Harrison, and George v Rockett. 25 In this Court, the respondents submitted that the primary judge erred in his analysis in a number of respects. Central to the respondents' case was a submission that there is no bright line distinguishing an allegation of guilt from an allegation that there are reasonable grounds to support a belief of guilt, and that publications will very often be capable simultaneously of conveying both allegations. Senior counsel for the respondents argued that the primary judge's decision was inconsistent with the reasons of three of the five judges in Chakravarti, and was directly inconsistent with the decision of the Western Australian Court of Appeal in West Australian Newspapers v Elliott. 26 As to gradations of meaning, the respondents referred to a passage in the speech of Lord Devlin in Lewis v Daily Telegraph at p 285-286 - Just as a bare statement of suspicion may convey the impression that there are grounds for belief in guilt, so a bare statement of the fact of an inquiry may convey the impression that there are grounds for suspicion. I do not say that in this case it does; but I think that the words in their context and in the circumstances of publication are capable of conveying that impression. But can they convey an impression of guilt? Let it be supposed, first, that a statement that there is an inquiry conveys an impression of suspicion; and, secondly, that a statement of suspicion conveys an impression of guilt. It does not follow from these two suppositions that a statement that there is an inquiry conveys an impression of guilt. For that, two fences have to be taken instead of one. While, as I have said, I am prepared to accept that the jury could take the first, I do not think that in a case like the present, where there is only the bare statement that a police inquiry is being made, it could take the second in the same stride. If the ordinary sensible man was capable of thinking that where-ever there was a police inquiry there was guilt, it would be almost impossible to give accurate information about anything: but in my opinion he is not. 27 The respondents submitted that in this passage Lord Devlin differentiated between what has become known in the English authorities as a "level 1" meaning (guilt); a "level 2" meaning (reasonable grounds for belief in guilt); and a "level 3" meaning (grounds for suspicion, or grounds for investigation): Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 at [45]; Flood v Times Newspapers Ltd [2012] UKSC 11; 2 AC 273 at [8]. Counsel submitted that the authorities support the proposition that Lord Devlin's speech in Lewis v Daily Telegraph should be understood so that a "level 1" meaning is often capable of conveying a "level 2" meaning, and that a "level 2" meaning is often capable of conveying a "level 1" meaning, but a "level 1" meaning is not capable of conveying a "level 3" meaning because it involves jumping two fences. Counsel submitted that the speech of Lord Devlin is to be understood as saying that while there is a difference between guilt, and reasonable grounds for a belief in guilt, an imputation of one can very often be understood to convey the other. Counsel submitted that if a plaintiff pleaded a "level 1" meaning, but a trial court found only that a "level 2" meaning was conveyed, then the plaintiff would nonetheless be entitled to a verdict on the "level 2" meaning, and that this was supported by the reasons for judgment of Mason J in Mirror Newspapers Ltd v Harrison at p 300-301, by the passage from Lord Devlin's speech in Lewis v Daily Telegraph set out above, by Chakravarti at [60] (Gaudron and Gummow JJ), and by West Australian Newspapers v Elliott, which it shall be necessary to address. At the heart of the respondents' submissions was the proposition that in the present case the applicant could succeed at trial on "level 2" meanings as being comprehended within his "level 1" meanings, and that therefore the justification defences alleging that "there are reasonable grounds to believe" the subject-matter of the applicant's imputations raised valid defences. 28 In Lewis v Daily Telegraph at p 286 Lord Devlin gave examples of different forms of words, and hypothesised that a statement that there is an inquiry conveys an impression of suspicion, and that a statement of suspicion conveys an impression of guilt, and stated that it does not follow that a statement that there is an inquiry conveys an impression of guilt. Lord Devlin amplified this last proposition, and stated that in a case like that before the House, where there was only a bare statement that a police inquiry was being made, the jury could not take the leap and find that the bare statement of an inquiry conveyed the impression of guilt. So much is not controversial: Mirror Newspapers Ltd v Harrison at p 300-301 (Mason J). But meaning is so much dependent upon the words used and context, and whether a matter is capable of conveying imputations of both suspicion and guilt, or grades of meaning in-between, including whether the suspicion imputation is one of strong suspicion, reasonable suspicion, or mere suspicion, or whether it is objective or subjective, active or passive, will depend upon the terms and the context of the matter: see John Fairfax & Sons Ltd v Foord at p 714-715 (Mahoney JA), p 719, 723-725, 727-728 (Clarke JA, Hope JA agreeing); Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10 at [26]-[29] (Levine J); Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182; 91 SASR 466 at [41] (White J, at first instance); on appeal, Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10; 94 SASR 296 at [17]-[24] (Debelle J, Anderson J agreeing); Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [121]-[122] (Gray J, with whom Nyland J and Vanstone J agreed). In our opinion, it is undesirable to seek to identify limited distinct categories of imputations, and to advance this as a taxonomy into which all imputations are to be placed. We respectfully agree with the following statement of White J at first instance in Sands v Channel Seven Adelaide Pty Ltd at [45] - My present view is that the passage from Chase and the other English authorities should not be regarded as stating exhaustively all the possible imputations and shades of meaning which a statement of the existence of a suspicion may convey. I consider it desirable to avoid converting classification developed in some cases into strict categories. … 29 The decision of White J was affirmed on appeal in Channel Seven Adelaide Pty Ltd v S, DJ. In Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [120] Gray J (with whom Nyland J and Vanstone J agreed) stated that the three-level categorisation of meanings, even if rigidly applied in the United Kingdom, has not been so embraced by the Australian courts. Even in the United Kingdom, caution has been expressed in relation to the rigid categorisation of degrees of meaning in the way suggested by the respondents. In Fallon v MGN Ltd [2006] EWHC 783 at [1], Eady J referred to the tripartite scale as being somewhat artificial, because words are capable of bearing an infinite variety of meanings and implications and, correspondingly, a range of levels of gravity which do not necessarily lend themselves to classification in one or other of the three categories. Eady J thought, however, that the categorisation was useful primarily because it represented a convenient way of identifying what should be pleaded if it is sought to advance a defence of justification to some defamatory allegation falling short of a direct attribution of guilt, and noting that it appeared to have had the imprimatur of Lord Devlin in Lewis v Daily Telegraph. The Supreme Court of New Zealand in APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93; [2010] 1 NZLR 315 at [16] also cautioned against the tripartite classification being allowed to dictate meaning - This tripartite classification provides a convenient general description of different forms of meaning. Care must, however, be taken lest classification be allowed to dictate meaning. The crucial first step is to identify the precise meaning of the words in issue, rather than attempting to force that meaning into one of the three "tiers". Meanings in different tiers may shade into each other, rather than always falling neatly into one compartment or another. The precise meaning of the words in question is crucial to whether truth or honest opinion defences are made out. Furthermore, it does not necessarily follow that a "tier one" meaning is always more serious than a "tier two" meaning, or a "tier two" meaning more serious than a "tier three" meaning. Everything depends on the precise words used, and the context in which they are used. 30 As we have explained, the rationale behind permitting a respondent to plead and rely upon variant meanings in accordance with the principles of pleading essayed in Hore-Lacy, is that a respondent should be permitted to plead a defence of justification to a meaning on which the applicant is entitled to judgment at trial. Further, where a respondent proposes at trial to justify such meaning, that course should be the subject of a pleading. To state the principles in these terms frames one of the issues in this case: would the applicant be entitled to judgment at trial if the Court rejected the applicant's imputations, but found that one of the lesser meanings alleged by the respondents was conveyed, namely that "there were reasonable grounds to believe" the material facts the subject of the corresponding imputation alleged by the applicant? That question is to be answered by an examination of the parties' pleadings against considerations of fairness and practical justice. 31 We do not accept the respondents' submission that the applicant in this case will be entitled to succeed at trial on the respondents' imputations. The applicant has not pleaded those imputations, they are not bound within the applicant's imputations, and they will not be in issue at trial. A convenient starting point is to recognise that the Court at trial is required to determine the meaning which the two matters conveyed to an audience or readership composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who bring to the question their general knowledge and experience of worldly affairs: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at [4]-[6], [39]-[40]; Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 at [54]. In the case of the true innuendo alleged by the applicant, the question of meaning remains an objective one, even though there are statements in the authorities that evidence from persons with knowledge of the extrinsic facts is admissible: Hough v London Express Newspaper Ltd [1940] 2 KB 507 at p 513-514 (Slesser LJ) and p 515 (Goddard LJ). The requirement to prove, whether by direct evidence or inference, knowledge amongst some recipients of the publication of the extrinsic facts goes to proof of publication of the innuendo: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at p 89 (Jordan CJ). In the case of a true innuendo the question of defamatory meaning is concerned with the objective understanding of the hypothetical ordinary reasonable reader or audience member with knowledge of the extrinsic facts: Duncan and Neill on Defamation (Butterworths, 1983) at [4.18(b)]. 32 Upon the hypothesis that meaning is to be determined objectively, the audience is taken to have a uniform view of meaning. Although different people might in fact have understood the meanings conveyed by a matter in different ways, the Court must arrive at a single objective meaning: Slim v Daily Telegraph Ltd at p 171-175 (Diplock LJ); Hockey v Fairfax Media [2015] FCA 652; 237 FCR 33 at [73] (White J); Ten Group Pty Ltd v Cornes [2012] SASCFC 99; 114 SASR 46 at [34], [43]-[50] (Kourakis CJ), [192]-[197] (Blue J); Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 71-72 (Lord Bridge). Using the potential different meanings identified by Lord Devlin in Lewis v Daily Telegraph Ltd to illustrate the point, if an applicant alleged that a matter imputed guilt, and the respondent contended that the matter went no further than to impute reason to investigate, there would likely be an issue at trial as to the meaning of the matter. But it would not be sufficient for the applicant to demonstrate that some members of the audience, or even a considerable proportion of the audience understood the matter to impute guilt, for that is not the issue. The issue at trial is the single meaning that an objective audience composed of ordinary decent persons should have collectively understood the matter to bear. 33 What we have said above in relation to a single meaning should not be understood as saying that an applicant is precluded from alleging more than one imputation. An applicant may allege that a published matter conveys two or more distinct defamatory imputations, and may allege imputations in the alternative (Federal Court Rules, r 16.06), and subject to any defences, will succeed if one or more of those imputations is found to be conveyed. But in evaluating whether any individual imputation is conveyed, an applicant is precluded from succeeding merely because a substantial number or proportion of persons in the audience would have understood the words to have that defamatory meaning: Ten Group Pty Ltd v Cornes at [193] (Blue J). 34 As we have stated, the respondents relied upon Chakravarti, and West Australian Newspapers v Elliott to support their submission that their variant imputations of "reasonable grounds to believe" were permissible. In order to evaluate the respondents' submissions, and the decision of the Western Australian Court of Appeal in West Australian Newspapers v Elliott, it is necessary to identify what was decided in Chakravarti. In order to do this, it is necessary to have regard to the reasons for judgment of the members of the Full Court in Chakravarti v Advertiser Newspapers Ltd (1996) 65 SASR 527, as well as the reasons of the members of the High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. 35 The relevant facts in Chakravarti were as follows. The plaintiff sued on two articles that were published by the defendant: 15 July 1992; and 18 July 1992. The first article concerned evidence that was given before a Royal Commission into the near-collapse of the State Bank of South Australia, and referred to the plaintiff by name. In relation to the first article, the plaintiff alleged that the following two imputations were conveyed (CLR at [47]) - (a) The plaintiff was involved in criminal or civil misconduct, whilst an executive of Beneficial Finance, in respect of loans from Beneficial Finance to himself. (b) The plaintiff's conduct in receiving loans direct to himself as an executive of Beneficial Finance which loans were in excess of his entitlement was such as to render him not a fit and proper person to be or remain a Beneficial Finance executive or to be or remain in any other position of trust. 36 In its defence, the defendant alleged that if the first article was defamatory of the plaintiff, it meant no more than that the plaintiff was suspected of being involved in criminal or civil misconduct in respect of loans, and that a Mr Simmons had told the Premier of South Australia that he suspected the plaintiff and three others may have been guilty of criminal or civil misconduct (SASR at p 539). The plaintiff, by his reply, denied that this was the natural and ordinary meaning of the words used, but alleged that if it was, the words used "carried the further imputation that the suspicion was well founded" (SASR at p 539). There is nothing in any of the reports of Chakravarti to indicate that the defendant's imputation of suspicion was challenged by the plaintiff in the interlocutory stages. 37 At trial, the trial judge (Cox J) found that the first article was defamatory of the plaintiff, but without reference to the specific imputations alleged by the plaintiff. The trial judge's failure to make findings as to which if any of the plaintiff's imputations arose was the subject of an application in the South Australian Full Court for leave to amend the notice of appeal (SASR at p 558). 38 On appeal to the South Australian Full Court, Doyle CJ held that the first article conveyed two of four imputations that had been identified by the trial judge, and which Doyle CJ held to be within the scope of the plaintiff's pleadings: SASR at p 542-543. Doyle CJ understood that the defendant had not sought to justify the two imputations that he held were conveyed, but had sought to justify an imputation of suspicion based on reasonable cause which his Honour held it had no reason to justify: SASR at p 545. 39 Perry J held that the plaintiff's claim based on the first article should have been dismissed because the imputations alleged by the plaintiff could not fairly be attributed to the article: SASR at p 555. Further, Perry J held that the plaintiff could not rely on the defendant's imputation of suspicion because it would be unfair to the defendant (SASR at p 556) - As to par 4(a) of the statement of claim, the respondent clearly advanced a case based on an inference of actual "criminal or civil misconduct", whereas the article imputed no more than a question or suspicion of such conduct. While it is true that there are cases where a meaning not pleaded but which is of the same kind but less injurious than the pleaded meaning may properly be found in favour of a plaintiff, that course should not be followed where to do so would be unfair to the defendant. In my opinion, an allegation that the respondent was actually involved in criminal or civil misconduct is so different from an allegation of mere suspicion that it would be unfair to the appellant to find for the respondent on such a basis. It is true that the appellant pleaded in its defence that the words meant and were understood to mean only a suspicion of criminal or civil misconduct, but the respondent was not entitled to rely on an allegation in the defence as an alternative basis on which to assert a basis of liability not asserted in his own pleading. Indeed, the respondent in his reply joined issue with the assertion that the meaning was restricted to suspicion only of criminal and civil misconduct, and asserted that the article "carried the further imputation that the suspicion was well founded". The respondent cannot be permitted to eschew the meaning suggested by the appellant but then be permitted to recover on the basis of that meaning, when the only meaning which he asserts in his own pleading is not made out. On the other hand, if the respondent had accepted the more limited meaning suggested by the appellant, and made it part of his case against the appellant, the course of the trial may well have been radically different. 40 Williams J held that the first article made relevant allegations only in terms which alleged a suspicion, and that on this basis the statutory defence of a fair and accurate report of the proceedings before the Royal Commission was made out: SASR at p 559-560. 41 The High Court reversed the Full Court's findings in relation to whether the first article conveyed the plaintiff's pleaded imputations. Brennan CJ and McHugh J held that both imputations alleged by the plaintiff in respect of the first article were made out: CLR at [1], [5]. Gaudron and Gummow JJ held that the first article conveyed the first of the plaintiff's pleaded imputations: CLR at [48]. As to the second of the plaintiff's imputations, Gaudron and Gummow JJ held that the first article conveyed a variant of that imputation, namely the plaintiff's second imputation but shorn of the words, "in excess of his entitlement": CLR at [50]. This variation was said to be slight. It was this slight variation which led Gaudron and Gummow JJ to consider the extent to which a plaintiff might depart from pleaded imputations at trial. It is important to note that the plaintiff did not in the High Court succeed on the defendant's suspicion imputation, but on his own imputations. At [59] Gaudron and Gummow JJ stated - There can be no disadvantage to the Advertiser in allowing Mr Chakravarti to rely, even at this stage, on an innuendo that, by reason of loans received from Beneficial, he was not a fit and proper person to be or remain an executive of that company, notwithstanding the more specific meaning pleaded in his amended statement of claim, namely, that he was unfit by reason of the receipt of loans in excess of his entitlement. The more specific meaning simply limits the innuendo to a factual basis which the Advertiser itself particularised in relation to its plea of justification with respect to the first article. And although the majority in the Full Court held that Mr Chakravarti could not rely on the lesser meaning which the Advertiser asserted, namely, that he was suspected of being involved in criminal or civil misconduct, which lesser meaning it sought to justify and defend, there could have been no disadvantage to the Advertiser in allowing him to do so. 42 The main point made in this passage is that there could be no disadvantage to the defendant if the plaintiff was permitted to rely, even at the stage of appeal to the High Court, on the slight variant of the plaintiff's second imputation in respect of the first article that Gaudron and Gummow JJ had identified at [50]. The reference to the defendant's suspicion imputation was obiter, because that was not an imputation that was upheld in the High Court. The reason there could have been no disadvantage to the defendant in permitting the plaintiff to rely on the defendant's suspicion imputation was that the defendant had alleged the imputation, and had sought to defend it at trial. This was a particular feature of Chakravarti. A likely corollary of the reasons of Gaudron and Gummow JJ is that if the defendant had not pleaded and defended the suspicion imputation, the plaintiff would not have been able to rely on it, because there would have been unfair prejudice to the defendant. At [60] Gaudron and Gummow JJ continued - As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings. 43 This passage emphasises that the extent to which a plaintiff might be entitled to rely on different meanings will be governed by whether there is any disadvantage to the defendant. 44 Brennan CJ and McHugh J agreed with the orders proposed by Gaudron and Gummow JJ, and subject to two points, with their reasons. The two points concerned the need to identify what defamatory meanings were conveyed by a publication before a defence of fair and accurate report can be evaluated, and secondly, their Honours' criticism of the Polly Peck form of pleading. In relation to the extent to which a plaintiff might depart from pleaded meanings, Brennan CJ and McHugh J at [23] cited a passage from the reasons of King CJ in Prichard v Krantz (1984) 37 SASR 379 at p 386, which included the following - … a plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularised. Modern judges, in any class of case, have a considerable discretion as to the rigour with which they will confine a case presented by a party to the precise language of the pleadings. 45 Brennan CJ and McHugh J also cited at [23] the following passage from the reasons of Mahoney A-CJ in Crampton v Nugawela at p 183 - … where the imputation specified by the plaintiff is not the imputation made by the published material, the plaintiff will fail, even though another and different imputation was made by the published material and the plaintiff could have pleaded that imputation. But, in my respectful opinion, that should not mean that the plaintiff should fail where the published material is before the jury, the imputation which it makes may be seen from it, and the plaintiff's error is merely that his pleading of the imputation errs in that it does not with complete accuracy state in the pleading the imputation that is in the published material . . . Where . . . the complaint is not that the published material conveys one imputation and the pleading pleads a quite different one, but that the pleader has erred in attempting to translate the imputation from the published material to the pleading, I do not think the law to be that a plaintiff's claim must necessarily fail. It would be sad if the law held the plaintiff's claim defeated because, in pleading, he did not precisely translate from the letter to the pleading the imputation as precisely as should have been done. 46 Brennan CJ and McHugh J then stated at [24]-[25] - If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury. The defendant suffered no prejudice, embarrassment or unfair disadvantage in this case. The plaintiff was entitled to a favourable finding on the meanings attributed to the first and second articles by Gaudron and Gummow JJ. 47 By these passages, especially when read in the context of the quotations from Prichard v Krantz and Crampton v Nugawela, Brennan CJ and McHugh J acknowledged that a plaintiff may be permitted to depart from pleaded meanings at trial, but only if there is no unfair disadvantage to a defendant. 48 Kirby J found that both imputations pleaded by the plaintiff in relation to the first article were available, and regarded it as almost impossible to deny that the first imputation was made out: CLR at [140]. While Kirby J sought to identify some general principles concerning the extent to which parties will be held to their pleadings in defamation cases (CLR [139] at points 3 and 4), his Honour did not venture any view about whether it would have been permissible for the plaintiff to rely on the defendant's suspicion imputation. 49 In relation to the second article sued on in Chakravarti, the plaintiff had alleged six imputations, as follows (CLR at [71]) - (a) the plaintiff had engaged in criminal conduct in connection with a loan or loans made to him; (b) the plaintiff was a party to a conspiracy within the State Bank group in connection with multimillion dollar unauthorised loans; (c) the plaintiff had received one or more loans which were not approved or authorised and which provided greater benefits to him than those to which he was entitled and that the plaintiff had been involved in criminal, or at least civil, misconduct in connection with obtaining those loans; (d) the plaintiff had received a loan which had not been approved or authorised and which provided benefits in excess of his entitlement, in relation to a joint venture with a Melbourne developer, which loan was $37 million in default; (e) the plaintiff had engaged in criminal, or at least civil, misconduct in connection with that loan; (f) [t]he plaintiff's conduct in relation to the stated loans was such as to render him not a fit and proper person to be or remain a Beneficial Finance executive or to be or remain in any other position of trust. 50 By majority, the Full Court (Doyle CJ at SASR p 549-550, and Perry J at SASR p 557) held that the second article conveyed imputations (b) to (f), but not (a). Doyle CJ stated (at SASR p 549) - In my opinion the first of the pleaded imputations does not arise. I do not consider that the article imputes criminal conduct, even by its reference to a conspiracy. In my opinion it does no more, read as a whole, than report evidence about conduct which Mr Simmons considered "may be criminal". The distinction between "may be" and "is" is significant. In my opinion the article observes it. In my opinion it does not state or imply that any suspicions were well founded. However, in my opinion the article does impute a suspicion of criminal conduct in connection with loans, and this lesser imputation is within the scope of the plaintiff's pleading. … In my opinion the third of the pleaded imputations is conveyed by the article. It reports the obtaining of unapproved and unauthorised loans, and that that conduct raised the suspicion of criminal rather than civil misconduct. The article does suggest that the misconduct is at least civil misconduct, the question being whether it is criminal. 51 As indicated by the above passages, Doyle CJ considered that the imputation of suspicion of criminal conduct was within the plaintiff's pleading. By his imputation (c), the plaintiff had pleaded that the second article meant that "the plaintiff had been involved in criminal, or at least civil, misconduct". Imputation (c) fell short of a charge of guilt of criminal misconduct, spanning civil and criminal misconduct, and thereby having within it suspicion of criminal conduct. 52 In the High Court, Gaudron and Gummow JJ (with whom Brennan CJ and McHugh J at CLR [1] agreed) held that the Full Court was clearly correct in holding that imputation (a) was not conveyed, stating (at CLR [72]) - As pointed out by Doyle CJ, "[t]he distinction between 'may be' and 'is' is significant" and the article is consistent in its statement that the conduct in issue "may be criminal rather than civi[l]". Accordingly, Mr Chakravarti cannot succeed on this issue. 53 The defendant newspaper conceded that the second article bore the plaintiff's imputation (c), but cross-appealed in relation to imputations (b), (d), (e) and (f). Gaudron and Gummow JJ (with whom Brennan CJ and McHugh J agreed) held at CLR [73]-[76] that it was open to the Full Court to conclude that the second article conveyed imputations (b), (e), and (f), but that it was not open to find that the second article bore imputation (d). 54 Kirby J held at CLR [143] that Doyle CJ was right to find that all of the pleaded imputations except the plaintiff's imputation (a) were conveyed by the second article. 55 It has been necessary to undertake this lengthy analysis of Chakravarti to demonstrate that it formed no part of the ratio of Chakravarti that there is any general principle that a plaintiff who alleges an imputation equating to guilt will be entitled to succeed at trial on a lesser imputation that equates to reason to believe, or suspicion. Whether that course is permissible will turn on the terms of the imputations, and considerations of fairness. In relation to the first article the subject of Chakravarti, the defendant had been permitted to plead and defend a suspicion imputation, which led Gaudron and Gummow JJ to remark that there would have been no disadvantage to the defendant in allowing the plaintiff to rely upon it. In relation to the second article, it was not in dispute in the High Court that imputation (c) was conveyed, and suspicion of criminal conduct had been held by Doyle CJ and Perry J in the Full Court to be within the plaintiff's pleading. 56 Subsequent to Chakravarti and Hore-Lacy, Bongiorno J in Gutnick v Dow Jones & Co Inc (No 4) [2004] VSC 138; 9 VR 369 struck out the defendant's imputations which alleged that the plaintiff was "reasonably suspected" of money-laundering, and that there was "reason to investigate" whether the plaintiff had been money-laundering. In doing so, Bongiorno J stated at [8] - The defendant's imputations are, in each case, imputations of reasonable suspicion. But the issue raised by the plaintiff's imputations is not whether he was merely suspected of particular arguably reprehensible conduct but rather whether he engaged in that conduct. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid expressed himself as being firmly of the view that there is a great difference between saying that someone has behaved in a suspicious manner and saying that he is guilty of an offence (at 260). Lord Hodson, in the same case, acknowledged that whilst it might be defamatory to say that someone is suspected of an offence, such a statement does not carry with it an allegation that he has committed the offence (at 275). Simon Brown LJ (with whom Sir Ralph Gibson agreed) in Stern v Piper [1997] QB 123 at 138 accepted that Lewis' case decided that an allegation that someone is suspected of guilt is different to and less serious than an allegation that he is actually guilty. See also Corse v Robertson (Unreported, WA Full Court, 8 December 1997) and Singleton v Hudson (1998) 20 WAR 191 at 199. 57 Bongiorno J referred to the following passage from the reasons of May LJ in Shah v Standard Chartered Bank [1999] QB 241 at p 266 - A publication that a person is guilty of something differs from a publication that there are reasonable grounds to suspect that he is guilty. Each is normally capable of being defamatory. The second will usually be less serious than the first. To justify the first publication, you have to establish that the person is guilty. To justify the second publication, you have to establish that there are objectively reasonable grounds for suspicion. 58 At [11]-[12] Bongiorno J stated - [Counsel for the defendant] contended that the plaintiff in this case could obtain a verdict in his favour if the tribunal of fact found, not that the article conveyed an imputation of guilt but merely that it contained an imputation of reasonable suspicion of guilt. I cannot agree. As the cases to which I have referred make clear, whilst both allegations might be libellous they are not variants of each other as that term is used in Hore-Lacy. The two sets of imputations raise quite different cases. 59 Bongiorno J then referred to the defendant's particulars of justification to demonstrate that the defendant was seeking to raise quite a different case. 60 In Hore-Lacy v Cleary [2007] VSCA 314; 18 VR 562, the defendants to the proceeding submitted that Gutnick v Dow Jones & Co Inc (No 4) was wrong. Hore-Lacy v Cleary did not concern a justification defence, but a defence of common law comment where the defendants had provided particulars of the substance of the comment. The plaintiff had pleaded four imputations and a true innuendo equating to "guilt" of certain conduct, and the defendants pleaded as the substance of their comment that "there is a serious question to be investigated". The Court of Appeal applied the principle that a comment defence must address the sting of the alleged libel, or a permissible variant, citing Chakravarti at p 528 (Brennan CJ and McHugh J) and Channel Seven Adelaide Pty Ltd v Manock at [83] (Gummow, Hayne and Heydon JJ). The Court held that the comment did not address the sting of the libel alleged by the plaintiff, and in the course of his reasons at [54] Ashley JA (with whom Neave JA and Redlich JA agreed) stated that Gutnick v Dow Jones & Co Inc (No 4) provided a useful analogy. In Cunliffe v Woods [2012] VSC 254 at [11], Beach J considered that the approach taken by Bongiorno J in Gutnick had been endorsed by the Court of Appeal in Hore-Lacy v Cleary. 61 To support their submission that justification of their variant imputations was permissible, the respondents relied on the decision of the Western Australian Court of Appeal, comprising two members (Steytler P and McLure JA), in West Australian Newspapers v Elliott [2008] WASCA 172; 37 WAR 387, which the primary judge held at [43] was plainly wrong. In West Australian Newspapers v Elliott the plaintiff had alleged meanings which included imputations that he had - 4.1 dishonestly profited from using information concerning contracts between Fortescue and Chinese investors which would have an adverse effect upon the price of Fortescue shares when made available to the market, by selling Fortescue shares just prior to the release of that information; 4.2 illegally profited from using information concerning contracts between Fortescue and Chinese investors which would have an adverse effect upon the price of Fortescue shares when made available to the market, by selling Fortescue shares just prior to the release of that information; 62 The defendants alleged the following imputation that the plaintiff challenged successfully before the primary judge, but which the Court of Appeal allowed - 6.3 there were reasonable grounds to suspect that the plaintiff as a director of [Fortescue] had illegally profited from using information concerning contracts between [Fortescue] and Chinese investors which would have an adverse effect upon the price of [Fortescue] shares when made available to the market, by selling [Fortescue] shares, just prior to the release of that information; 63 Steytler P at [19] treated the issues that arose as raising the following questions - (1) How far may a Polly Peck plea depart from the imputations relied upon by a plaintiff before being struck out as irrelevant? (2) Does the appellant's plea in para 6.3 of the defence fail the test enunciated in answer to question (1)? (3) Is the answer to question (2) influenced by the fact (raised by the respondent in answer to grounds 1 and 2) that the respondent expressly disclaims (and will, at the trial, expressly disclaim) any reliance upon the imputation pleaded in para 6.3 of the defence? 64 In answering question (1), Steytler P at [20] confirmed that a defendant cannot plead a "Polly Peck" imputation that was outside the extent to which a plaintiff would be permitted to depart from his or her pleaded imputations. Steytler P reviewed the relevant authorities, including Chakravarti and Hore-Lacy, and at [31] of his reasons stated - This review of the cases suggests that there is general, although not universal, support for the proposition that a plaintiff who has pleaded specific meanings by way of false innuendo may only succeed at trial on some other meaning if it is not substantially different from and not more injurious than the meanings pleaded. If that is correct then, as Charles JA pointed out in Hore-Lacy (at [52]), the issue of whether the meaning was substantially different might be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis or, possibly, whether the justification would be substantially different. If the Polly Peck imputation pleaded by the defendant is one that would have satisfied the test enunciated, had it been pleaded by the plaintiff, it will be allowed. If it would not have satisfied that test, it will not be allowed: Buckeridge (at [20]). At least in the absence of further authority, that is the approach that should, in my opinion, be followed by the present two-judge court. 65 For the purposes of answering question (2), Steytler P considered the judgments of the South Australian Full Court and the High Court in Chakravarti at some length, and set out the last sentence of [59], and the whole of [60] of the reasons for judgment of Gaudron and Gummow JJ. We have set out the whole of [59] at [41] above, and we have set out [60] at [42] above. In relation to [59] and [60] of Chakravarti, Steytler P stated at [40] - Although their conclusion in this respect is obiter (see [61]), the two paragraphs that I have quoted nevertheless make it plain that Gaudron and Gummow JJ regarded the lesser meaning to which they referred as being one that was comprehended in, or less injurious than, the meaning pleaded in the statement of claim. 66 For our part, we do not read the obiter in [60] of Chakravarti in that way. In the first two sentences of [59] Gaudron and Gummow JJ referred to allowing the plaintiff to rely on the variation to the plaintiff's second imputation with respect to the first article, to which we referred at [41] above. When it came to the suspicion imputation, Gaudron and Gummow JJ referred to that imputation at [59] as a lesser meaning, but stated that there could have been no disadvantage to the defendant in allowing the plaintiff to succeed on that imputation which the defendant had sought to justify and defend. In our view, the question of unfair disadvantage lies at the heart of both [59] and [60] in relation to whether the plaintiff might have been allowed to rely on the suspicion imputation. The same can be said in relation to the reasons of Brennan CJ and McHugh J at [25] - The defendant suffered no prejudice, embarrassment or unfair disadvantage in this case. The plaintiff was entitled to a favourable finding on the meanings attributed to the first and second articles by Gaudron and Gummow JJ. 67 Steytler P referred to other cases that have discussed the difference between an imputation of suspicion on the one hand, and an imputation of guilt on the other, including Gutnick v Dow Jones & Co Inc (No 4), Mickelberg v Hay [2006] WASC 285, Hyams v Peterson [1991] 3 NZLR 648, and Hore-Lacy v Cleary. In Hyams v Peterson, which was also cited by Hasluck J in Mickelberg v Hay, Cooke P stated at p 655 - It is also plain that to say there are grounds for suspecting a person of fraud or other discreditable conduct is, although defamatory, often different from and less serious than an assertion of his guilt: Lewis v Daily Telegraph Ltd [1964] AC 234; Truth (NZ) Ltd v Bowles [1966] NZLR 303; Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234, 239-240; Mirror Newspapers Ltd v Harrison (1982) 42 ALR 487. These judgments also recognise that for practical purposes there can be an imputation of suspicion so strong as to be indistinguishable from guilt; it must always be a question of fact how far the defamatory meaning goes. 68 While the above passage from the reasons of Cooke P was referred to by Hasluck J in Mickelberg v Hay, and also by Steytler P in West Australian Newspapers v Elliott at [70], the passage was not set out in full in either judgment. Steytler P stated at [70] - As Cooke P observed in Hyams (at 655), cases such as Lewis and Mirror Newspapers recognise that for practical purposes there can be an imputation of suspicion so strong as to be indistinguishable from guilt and that it must always be a question of fact how far the defamatory meaning goes. 69 However, the reference by Cooke P to an "imputation of suspicion so strong as to be indistinguishable from guilt", reflected the reasons of the trial judge, Woodhouse J, in Truth (NZ) Ltd v Bowles [1966] NZLR 303, which Cooke P cited. Neither Hasluck J nor Steytler P referred to Truth (NZ) Ltd v Bowles where, in awarding damages in a defamation case where it appears from the report that no imputations were pleaded by the plaintiff, Woodhouse J stated - In my opinion these words carry so high a level of suspicion that they would convey to normal fair-minded readers an impression indistinguishable from guilt. 70 On appeal, the New Zealand Court of Appeal reduced the trial judge's award of damages, holding at p 308 - … we think the learned Judge went a little too far in the opinion he expressed that the words carried so high a level of suspicion that they would convey to normal fair-minded readers an impression indistinguishable from guilt. We agree that fair-minded readers of the paper might well say there is seldom smoke without fire, but we do not think they would necessarily conclude that she was guilty in respect of the various allegations made against her in view of her denials. 71 In the context of the trial judge's reasons in Truth (NZ) Ltd v Bowles the "practical purposes" for which an imputation of suspicion might be so strong as to be indistinguishable from an imputation of guilt concerned injury to reputation and the assessment of damages. However, it is noteworthy that the New Zealand Court of Appeal, in reducing the award of damages, acted on the distinction between suspicion and guilt. 72 In the passage from Hyams set out at [67] above, Cooke P also cited the judgment of the Court of Appeal which he delivered in Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234, and which is illuminating. At p 239-240 the Court of Appeal stated - … As we see it, [the jury] cannot be entitled to find for the plaintiff on a basis which he has disclaimed or never put forward and which the defendant has not been called upon to meet. If the plaintiff has nailed his colours to the mast as to the meaning of which he complains, it does not seem rational to suppose that the jury can legitimately give a verdict for him on finding some different and less serious meaning. 73 The Court of Appeal in Crush then stated that this point had been virtually settled by the decision of the Privy Council in Truth (New Zealand) Ltd v Holloway [1961] NZLR 22, and at p 240 set out two paragraphs from the advice of the Privy Council, which concerned the extent to which a jury might depart from a true innuendo. We set out one of those paragraphs - No exception was taken to that direction which was clearly right and, indeed, favourable to the defence. Once the plaintiff had acknowledged that the words were not defamatory of him when taken in their natural and ordinary meaning, then it was absolutely incumbent on him to prove they bore the meaning alleged in the innuendo. If he only proved a lesser meaning, he would fail. A good illustration was given in the course of the argument. The innuendo in this case imputed that the plaintiff "has acted and is prepared to act dishonourably". That is an imputation of guilt. If the jury thought that the words conveyed, not an imputation of guilt, but only of suspicion, the plaintiff would fail to prove his innuendo, with the result that he would fail in his action: see Mountney v Watton (1831) 2 B & Ad. 673, 678; 109 E.R. 1293, 1296 by Lord Tenterden, Simmons v Mitchell (1880) 6 App Cas 156. The reason is this: If the plaintiff had by his innuendo said the words only imputed suspicion, it would be open to the defendant to plead justification if it had sufficient evidence at its disposal to warrant suspicion: but as the plaintiff says that the words impute guilt, the defendant cannot justify that meaning unless it has sufficient evidence to prove guilt, which is, of course, a higher burden than proving suspicion. So as a matter of pleading, in order not to put the defendant to any disadvantage, the plaintiff is pinned to his innuendo. (emphasis in original) 74 In Crush the plaintiff pleaded imputations arising from the ordinary and natural meaning of the words, and the Court of Appeal after citing the above passage from Truth (New Zealand) Ltd v Holloway stated at p 240 - It is difficult to see any relevant distinction between an acknowledgment by the plaintiff that the words were not defamatory of him when taken in their natural and ordinary meaning and an acknowledgment that he complains of them only in the defamatory meanings which he alleges. The guilt - suspicion illustration referred to by the Privy Council seems to confirm this. 75 We note that "R B Cooke" had appeared as counsel for the appellant before the Privy Council in Truth (New Zealand) Ltd v Holloway. We would not understand what Cooke P said in Hyams as endorsing the idea that a plaintiff who had pleaded an imputation of guilt, and thereby "nailed his colours to the mast", could succeed at trial in establishing an imputation of reasonable suspicion, or reasonable grounds to believe. That would not be consistent with the Court of Appeal's reasons in Crush, which was cited in Hyams. Furthermore, we do not understand Hyams to be authority for the proposition that for the purposes of making findings of fact at trial as to meaning, an imputation of suspicion may be "so strong as to be indistinguishable from guilt", when that observation was originally made by the trial judge in Truth (NZ) Ltd v Bowles in the context of the assessment of damages. In Lewis v Daily Telegraph Ltd at p 267, Lord Morris in his dissenting speech referred to a similar consideration - It is a grave thing to say that someone is fraudulent. It is a different thing to say that someone is suspected of being fraudulent. How much less wounding and damaging this would be must be a matter of opinion depending upon the circumstances. 76 Since Crush was decided, the Defamation Act 1992 (NZ) was enacted, s 8(2)(a) of which has been held to have the consequence that, consistently with Crush, a defendant must justify the plaintiff's imputations, and not some lesser meaning: Television New Zealand Ltd v Haines [2006] 2 NZLR 433 at [57]-[58]. 77 Returning to West Australian Newspapers Ltd v Elliott, at [49] Steytler P stated, correctly in our view - There can be no doubt that an imputation that a person has engaged in criminal or reprehensible conduct is different from one that there are reasonable grounds for suspecting that the plaintiff has engaged in such conduct. The distinction between suspicion and guilt is obvious and important. However, an imputation of guilt will always be more serious than one of suspicion on reasonable grounds. 78 Steytler P then continued at [49] - Also, ordinarily, a plea of justification of an imputation that there are reasonable grounds for suspicion that a plaintiff engaged in criminal or reprehensible conduct will require proof of the same published facts as are said by the plaintiff to give rise, in the context of the publication, to an imputation that he or she has engaged in that conduct. It is only the conclusion to be drawn from those facts (in the context of the publication) that is different and, even then, the difference will be one of degree, depending upon the strength of the imputation of suspicion to which the publication is said to give rise. In that circumstance, and given my understanding of what was said by the majority in Chakravarti (High Court) and by the court in Gumina (No 2), it seems to me that this court should continue to follow what was said in those cases until further guidance is provided by the High Court. … 79 Steytler P then held that unless question (3) which he posed (see [63] above) was answered in favour of the respondent, the decision of the primary judge to strike out para 6.3 of the appellant's defence could not stand. 80 In our view, at [49] Steytler P elided the distinction between guilt and reasonable grounds for suspicion, which his Honour had recognised as obvious and important. There were three reasons supporting his Honour's conclusions. First, Steytler P considered that ordinarily guilt, and reasonable grounds for suspicion, will require proof of the same published facts. For our part, we cannot accept that as a general proposition. A justification defence that fails to establish guilt, and rises no higher than reasonable grounds to suspect, may fail because necessary elements of proof are absent. Further, often what is to be justified are not "published facts", but an imputation that is conveyed by a matter: facts that may have to be proven in order to justify an imputation do not have to be referred to in the publication. 81 The second reason supporting Steytler P's conclusions was that his Honour considered that the difference between guilt and reasonable grounds for suspicion was one of degree, depending upon the strength of the imputation of suspicion to which the publication is said to give rise. This may be correct in two senses. First, the strength of an imputation of suspicion may be so great that the extent of injury to reputation approaches that which results from an imputation of guilt so that the difference in damage is one of degree: Truth (NZ) Ltd v Bowles. Secondly, the strength of an imputation of suspicion might be so strong that there arises a question of degree as to whether the matter crosses the line so as to impute guilt: Lewis v Daily Telegraph Ltd at p 285 (Lord Devlin); Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 at [11]-[14] (Gleeson CJ, McHugh, Gummow and Heydon JJ). However, it is for the trier of fact to determine meaning on the basis that the court must arrive at a single objective meaning, as discussed at [32] above. The existence of a triable issue in relation to the meaning conveyed by a matter should not ordinarily invalidate the distinction between guilt, and reasonable grounds for a belief in, or suspicion of guilt. And if the trier of fact finds that a matter imputes guilt, it is no answer for a defendant seeking to rely on a defence of justification to prove no more than reasonable grounds to believe. The fact that imputations of suspicion and guilt may cause similar harm, or that there is the capacity for both to be conveyed, does not mean that one is a variant of the other. 82 The third reason given by Steytler P included his Honour's understanding of what was said by the majority in Chakravarti. For the reasons we have given at [35] to [55] above, we do not understand Chakravarti as endorsing a general proposition that a plaintiff who alleges imputations amounting to guilt would be entitled to succeed if the matter was held to impute no more than reasonable grounds to believe or suspect. Whether that would be so would depend on the state of the pleadings, considerations of fairness, and whether there would be any unfair disadvantage to the defendant. Further, Chakravarti does not support the general idea that in a case where a plaintiff pleads imputations amounting to guilt, a defendant will be permitted to justify by alleging reasonable grounds to believe. The subsequent decision in Channel Seven Adelaide Pty Ltd v Manock at [83] tells against that proposition, because if the trial judge in this case comes to assess the respondents' defence of justification, the question of meaning will have been determined favourably to the applicant. 83 Steytler P then addressed question (3) (set out at [63] above) and accepted a submission of the appellant that a defence would be weakened if the defendant was able to do no more than deny that the imputation pleaded by the plaintiff arose from the publication. Steytler P acknowledged that Scott v Sampson (1882) LR 8 QBD 491 and Speidel v Plato Films Ltd [1961] AC 1090 stood for the proposition that evidence of general reputation may not relate to specific acts of misconduct. However, Steytler P stated that the law had shifted direction in this respect, and referred to the decision of the Court of Appeal in Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579 where May LJ (with whom Sir Christopher Slade and Aldous LJ agreed) said at [47] that it is open to a defendant to accept that there is no proper plea of justification, but to seek to rely in reduction of damages on particulars which Scott v Sampson and Speidel v Plato Films Ltd do not exclude. His Lordship said that, if this were not so, there would be a danger that the jury would be required to assess damages in ignorance of background context that was directly relevant to the damage which the plaintiff claimed had been caused by the defamatory publication. May LJ went on to say at [47] - Thus, in my view, a defendant is not prevented from taking the sensible course of accepting that the publication means what it says and that it is not on the facts justified, and yet putting in evidence directly relevant facts which in other circumstances might have been ingredients of a defence of justification. It would, I think, be illogical and unfair if this were not so. Evidence in support of a plea of justification which fails is admissible in reduction of damages. But the very same evidence would not be admissible to a sensible defendant who acknowledges that it will not support a plea of justification. What is not permissible is to plead a defence of partial justification which in truth is no defence at all. 84 In West Australian Newspapers v Elliott, Steytler P also identified at [63] that Burstein was to some extent uncertain, and its application may be difficult in particular cases. As Wigney J identified in Rush v Nationwide News (No 2) [2018] FCA 550; 359 ALR 564 at [32]-[46], that uncertainty remains, and in particular, there is uncertainty as to what is captured by May LJ's reference at [42] to "directly relevant background context". This is not the occasion to consider the metes and bounds or indeed the applicability of the Burstein principle, because it is unnecessary for us to do so, and it was not the subject of argument. Any detailed consideration of Burstein would require an analysis of other authorities, including Scott v Sampson, Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1, Speidel v Plato Films Ltd, Associated Newspapers Ltd v Dingle [1964] AC 371, and the principles summarised by Wigney J in Faruqi v Latham [2018] FCA 1328 at [160]-[164]. In particular, it would be necessary to consider how Burstein can be reconciled with other principles, including those applied by the House of Lords in Speidel v Plato Films Ltd where the defendant sought unsuccessfully to rely on a number of extraneous facts about the plaintiff, including matters depicted in the film about which the plaintiff did not complain, as going to "particulars of circumstances under which the alleged libel was published", which at that time were admissible in order to disprove malice: see Gatley on Libel and Slander (4th ed, Sweet & Maxwell, 1953) at p 574 to 577 and 634-641, cited in argument in the Court of Appeal at [1964] AC at p 1094-1095; but cf, Gatley on Libel and Slander (11th ed, Sweet & Maxwell, 2008) at [35.48], footnote (193). The common law position, in which the defendant's state of mind was relevant to the assessment of damages, is modified by s 36 of the Defamation Act, under which in awarding damages the court is to disregard the malice or other state of mind of the defendant at the time of publication. 85 After referring to Burstein and some other cases that had considered it, Steytler P stated at [64] - It is consequently arguable, in the present case, that, if the defence pleaded in para 6.3 should be struck out, the defendant would anyway be permitted to lead the evidence it would otherwise have advanced in support of that plea as evidence of "directly relevant background context". However, if the defendant is unable to do so (and the point cannot be determined at this stage as it has not been fully addressed in the submissions of the parties), it seems to me that there is much to be said for the proposition that it would be wrong, as a matter of principle, to allow the plaintiff, by disclaiming an imputation that might otherwise be fairly thought to arise from the offending publication and to fall within the ambit of a permissible Polly Peck defence, to deny to the defendant the very real advantage of having proof of the lesser imputation mitigate the damages awarded (if the greater imputation is made out). 86 At [79], McLure JA stated that her Honour agreed with Steytler P that it was not open to a plaintiff to disclaim an imputation that might properly be the subject of a Polly Peck defence. This invites attention to what in a given case might properly be the subject of a permissible variant imputation. There is much to be said for the proposition that a plaintiff should not be able to advance imputations that are contrived with the consequence that permissible variant imputations that otherwise fairly arise are avoided. Imputations that emerge only as "the product of some strained, or forced, or utterly unreasonable interpretation" may be struck out: Favell v Queensland Newspapers Pty Ltd at [9], citing Jones v Skelton [1963] 1 WLR 1362 at p 1370-1. On like reasoning, there may be cases where, having regard to settled principles relating to identification of meaning, including those relating to a single meaning referred to at [32] above, a disclaimer by a plaintiff of a variant imputation might be regarded as contrived, or artificial, with the consequence that the plaintiff's imputation might be struck out. However, this is not such a case. The applicant has "nailed his colours to the mast", and the points on which he seeks to have his reputation vindicated are the underlying substance of his imputations, and not the conceptually distinct respondents' imputations that there were "reasonable grounds to believe" the substance of the applicant's imputations. This is an instance where the respondents' variant imputations, if permitted, would have the consequence that the respondents could hijack the applicant's case by litigating false issues that do not meet the sting of the imputations relied on by the applicant: Soultanov v The Age Company Ltd (2009) 23 VR 182 at [24] (Kaye J). 87 Otherwise, we do not agree with what Steytler P said in [64] as set out under [85] above. To permit the maintenance of a plea of justification to prove the truth of a lesser imputation for the sole purpose of adducing evidence in mitigation of damage would be to permit the maintenance of a plea that does not go to justification at all, but for a collateral purpose: Atkinson v Fitzwalter [1987] 1 WLR 201 at p 214 (Parker LJ). See also, Moore v Mitchell (1886) 11 OR 420; Prager v Times Newspapers [1988] 1 WLR 77 at p 93 (Russell LJ); Burstein v Times Newspapers Ltd at [47] (May LJ). We do not agree that, under the guise of a defence of justification that is bound to fail because it does not address the sting of the matter alleged by the applicant, a respondent may be permitted to allege material facts for the purposes of mitigating damage. Such a plea would not be consistent with what was said by Lord Shaw in Sutherland v Stopes at p 79, which requires that the sting of the defamation be justified. Further, to adapt the words of Lord Radcliffe in Associated Newspapers Ltd v Dingle [1964] AC 371 at p 396, a defamation action is fundamentally an action to vindicate a person's reputation on some point as to which the person has been falsely defamed, and the damages awarded are regarded as the demonstrative mark of that vindication. 88 The respondents made some novel submissions in further support of the maintenance of their variant imputations. The respondents submitted that justification of the variant imputations was relevant to the assessment of damages. It is desirable to set out the submissions verbatim, as to summarise them would not accurately capture them. The respondents submitted as follows - 14. The perversity of the primary decision, if it were allowed to stand, can be illustrated by considering the different outcomes that could result, on the same facts, dependent wholly upon the pleading decision made by the plaintiff, in any case involving a publication that is capable of imputing that the plaintiff has engaged in misconduct (guilt imputation) and that there are reasonable grounds to believe that the plaintiff has engaged in that misconduct (reasonable grounds imputation), where the guilt imputation cannot be justified but there are arguable grounds to justify the reasonable grounds imputation: (a) If the plaintiff pleads both a guilt imputation and, in the alternative, a reasonable grounds imputation, and the tribunal of fact at trial finds the guilt imputation to be conveyed, then the plaintiff will win; but the defendant will have been entitled at trial to adduce evidence in support of the reasonable grounds imputation; and that evidence, having been properly admitted, will be taken into account on the assessment of damages. (b) If, on the other hand, the plaintiff pleads only a guilt imputation, and the tribunal of fact at trial finds that imputation to be conveyed, the plaintiff will win; the defendant will not have been entitled to adduce any evidence in support of the reasonable grounds imputation; and the plaintiff will therefore be entitled to damages as if the allegations were wholly unfounded, even if there were in fact reasonable grounds to believe that the plaintiff had engaged in the misconduct alleged. The plaintiff's damages will be higher than in the first case, on identical facts, because of a pleading decision made by the plaintiff that was wholly outside the control or influence of the defendant. (c) If the plaintiff pleads both a guilt imputation and, in the alternative, a reasonable grounds imputation, and the reasonable grounds imputation is found by the tribunal of fact at trial to be conveyed, and not able to be justified, then the plaintiff will win and be entitled to damages. (d) If, on the other hand, the plaintiff pleads only a guilt imputation, and the tribunal of fact at trial finds that that imputation is not conveyed, the plaintiff will fail entirely, even if the publication conveyed the reasonable grounds imputation and even if that imputation could not have been justified by the defendant. (e) If the plaintiff pleads only a reasonable grounds imputation and, at trial, the tribunal of fact finds that that imputation is not conveyed, because the publication conveys a guilt imputation, then the plaintiff will fail entirely, despite having been defamed without lawful excuse. 15. That such different outcomes could occur on the same facts based entirely upon a matter within the control of only one party ought not to be countenanced. 16. The injustice can be entirely overcome by treating an imputation that there are reasonable grounds to believe that a plaintiff has engaged in misconduct as not being substantially different from an imputation that the plaintiff has engaged in the misconduct. So doing acknowledges the reality that there is no bright line distinguishing an allegation of guilt from an allegation that there are reasonable grounds to support a belief of guilt, and that publications will very often be capable simultaneously of conveying both allegations; would ensure that in cases of this kind, where the plaintiff succeeds, damages are not assessed in blinkers; and would mitigate the often decried criticism that the "over-nice attention to the pleading of imputations" has led to Australian defamation law becoming "extremely convoluted and unacceptably confusing". 89 In Chalmers v Shackell (1834) 6 Car & P 475; 172 ER 1326, the defendant sought to justify a publication by alleging that the plaintiff was guilty of forgery. On the topic of damages, Tindall CJ directed the jury that, should they think that the allegation of forgery was not satisfactorily proved, the circumstances might be considered in mitigation of the damages. 90 In Hicks v Gregory (1904) 6 WALR 100 at p 104, Stone CJ stated - It does not follow that because the jury has found a verdict in favour of the plaintiff, that they have come to the conclusion that the defendant failed to prove all the acts of justification on which he relied. A jury may think that justification has been proved very nearly to its fullest extent; but not quite sufficiently proved to entitle them to take the case as wholly against the plaintiff. In such a case, one would not expect them to give the same amount of damages as they would have given if the plea of justification was wholly unproved. 91 To similar effect, in Prager v Times Newspapers at p 93 Russell LJ stated - If the plea of justification is directed to the real sting of the libel, then facts in support of the plea may reduce the damages even though the plea fails. 92 In John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [51] the Court of Appeal held that the principle extended to reliance upon evidence adduced in support of a defence of contextual truth. The principle has been held to extend to evidence admitted on a plea of fair comment that ultimately fails: Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 at [43] (Keene LJ). It has even been held to extend to evidence admitted in support of a plea of justification that is subsequently struck out: Jones v Pollard [1997] EMLR 233. Indeed, the evidence may be before the Court as being relevant to any other issue: Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120 (Neill LJ); Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1 at [118] (Nicklin J). 93 There is also a line of authority that refers to "partial justification" which holds that where a defamatory matter contains distinct charges, a severable part may be justified, and the justification of a severable part may be relied upon in mitigation of damage in the event that the plaintiff succeeds on another distinct part which is not justified: Wilson v The Mutual Store Ltd (1899) 25 VLR 262 at p 268; Sutherland v Stopes at p 78 (Lord Shaw); Howden v "Truth" and "Sportsman" Ltd (No. 2) (1938) 38 SR (NSW) 287 at p 291 (Jordan CJ); Speidel v Plato Films Ltd at p 1141-1142 (Lord Denning); Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at p 627 (Jacobs and Manning JJA); Woodger v Federal Capital Press of Australia Pty Ltd (1992) 106 FLR 183 at p 200-201 (Miles CJ); The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [279] (Gillard AJA); Cruddas v Calvert [2015] EMLR 16 at [135]-[138] (Jackson LJ); Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547 at [12]-[15] (McColl JA). An example of a plea of partial justification is where a defendant pleads justification to one or more of several imputations or distinct elements of imputations alleged by the plaintiff, but not to the whole of the plaintiff's imputations. A plea of justification to a distinct imputation or element may contribute to a complete defence to the plaintiff's claim if the other meanings about which the plaintiff complains are held not to be conveyed, or are the subject of other defences. It is therefore not correct always to treat a plea of partial justification as going to damages alone: cf, Fenn v Australian Broadcasting Corporation at [16] (Ashley JA); Burstein v Times Newspapers Ltd at [47] (May LJ). Some of the older cases admitting a plea of partial justification by way of defence are to be understood against the background of the absence of a general practice of a plaintiff pleading imputations. Nothing in the older cases concerning partial justification should be understood as permitting a plea of partial justification outside the scope of the plaintiff's pleaded imputations in accordance with the modern principles essayed in Hore-Lacy. 94 To the applicant's submissions that are set out under [88] above, there are two answers. The first is that it is speculative to suggest that, on the hypothesis the applicant establishes that a "guilt" imputation is conveyed, that the damages to which the applicant would be entitled might be reduced should the respondents be able to maintain and justify a corresponding "reasonable grounds to believe" imputation. It is not clear why that should necessarily follow. It is equally open to think that the maintenance of such a plea at trial by the respondents might support an increased award of damages on the ground that a higher award is necessary to vindicate the applicant's reputation, the respondents having failed to justify the "guilt" imputation. Whether that is the case would depend on the issues raised, and the evidence adduced at trial. But the point is that we do not accept the premises of the respondents' submissions as arising. Second, the submissions invite a departure from established principle. There are limited circumstances in which a respondent may rely upon facts in mitigation of damage. Those circumstances were referred to by Neill LJ in Pamplin v Express Newspapers at p 119-120. They were also referred to more recently by Gleeson JA in the New South Wales Court of Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Kazal at [176]-[180] - 176 It is necessary to say something first about the admissibility of evidence of reputation in mitigation of damages in a defamation trial. The starting point is the common law rule in Scott v Sampson. While a defendant may seek to rely upon evidence of the plaintiff's bad reputation in mitigation of an award of damages, evidence of specific acts of misconduct on the part of the plaintiff tending to show his or her character or disposition, as distinct from general bad reputation, is inadmissible. 177 The justification for this exclusionary rule is pragmatism and fairness. It has been said that the exclusionary rule reflects the need to prevent trials becoming extended by the investigation of new allegations about the plaintiff's past life, and also a concern about the lack of relevance of evidence which has "but a very remote bearing on the question in dispute". The concern is "to prevent [defamation] trials from becoming roving inquiries into the plaintiff's reputation, character or disposition". 178 However, there are exceptions or limitations to the exclusionary rule in Scott v Sampson. The exclusionary rule does not apply to evidence of past criminal convictions. 179 Nor does the exclusionary rule apply to evidence of facts directly relevant to the contextual background of the publication. In Burstein, the English Court of Appeal held that evidence of specific acts of misconduct on the part of the plaintiff tending to show his or her character and disposition is admissible where it is directly relevant to the context in which a defamatory publication came to be made. The stated rationale in Burstein for this exception is to avoid the danger that the jury would be required to assess damages in blinkers. 180 Nor does the exclusionary rule apply to evidence properly admitted in relation to a defence of partial justification. In Turner, Keene LJ referred to Pamplin, where the defendants were allowed to rely, in mitigation of damage, on evidence adduced in support of a plea of justification which ultimately failed, and observed that it has long been established that evidence of "specific acts properly admitted on such a plea may [nonetheless] be taken into account by the jury when assessing damages even though the plea has failed". However, Keene LJ also noted that to be used for this purpose, the evidence must relate to "the relevant sector of the plaintiff's life". [footnotes omitted] 95 As we have stated at [87], the respondents cannot maintain pleas of justification of variant imputations that are bound to fail for the collateral purpose of adducing evidence of facts for the purposes of mitigating damage. We otherwise observe that the respondents have by paragraph 14(b) of their defence alleged that if they are liable to the applicant (which they deny), the respondents will rely upon the circumstances in which it is proved the matters complained of were published in mitigation of damage. 96 In summary, we do not accept that the respondents' submissions that the primary judge was in error in striking out the respondents' so-called variant imputations. Our principal reasons are that the applicant's imputations are conceptually distinct from the respondents' "reason to believe" imputations. The fact that, in terms of capacity, both the applicant's imputations and the respondents' variant imputations might arguably be conveyed by the publications does not undermine the distinction between them. Nor does the fact that the consequences of injury to reputation might be similarly serious undermine the distinction. The point on which the applicant seeks vindication is whether he engaged in the conduct that is the subject of his imputations, and not whether there is reason to believe that he engaged in such conduct. The primary judge referred to authorities, including Mirror Newspapers Ltd v Harrison, George v Rockett, Lewis v Daily Telegraph, and Gutnick v Dow Jones & Co Inc (No 4) to demonstrate the distinction. In light of the conceptual distinction, the respondents' imputations are not a variant of, or comprehended by the applicant's imputations. 97 We respectfully decline to follow the decision of the Western Australian Court of Appeal in West Australian Newspapers v Elliott for the reasons we have set out at [61] to [87]. At one level, the subject-matter of that decision may be regarded as being concerned with questions of practice and procedure relating to the form of pleadings, the identification of issues for trial, and involving issues of procedural fairness and practical justice rather than with any substantive common law principles that might attract the full force of what was stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]; see also, CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [49]-[51]. Further, to the extent that West Australian Newspapers v Elliott rests upon the Western Australian Court of Appeal's understanding of what was stated by Gummow and Gaudron JJ by way of obiter in Chakravarti at [60], the principles in Farah Constructions Pty Ltd v Say-Dee Pty Ltd are not attracted, and whilst we accord respect to what the Western Australian Court of Appeal has stated as a matter of comity, we are not obliged to form the same understanding: Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [149] (Edelman J, Besanko J agreeing); Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; 87 NSWLR 609 at [97]- [101] (Leeming JA, Gleeson JA agreeing); Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; 53 VR 546 at [132]-[133] (Redlich, Santamaria and McLeish JJA); Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172 at [239(3)] (Leeming JA, Bell P and Gleeson JA agreeing). 98 Another consideration is that, weighing against West Australian Newspapers v Elliott is Gutnick v Dow Jones & Co Inc (No 4), and its endorsement by the Victorian Court of Appeal in Hore-Lacy v Cleary. Moreover, to the extent that West Australian Newspapers v Elliott would suggest that the respondents' "reason to believe" imputations are permissible variants of the applicant's imputations for the purposes of the application of the pleading principles essayed in Hore-Lacy, for the reasons we have given, we consider that conclusion to be plainly wrong, and we are convinced that West Australian Newspapers v Elliott should not be followed by this Court. In this case, which is to be tried by judge alone, on the amended statement of claim as it currently stands there is no prospect that the applicant will be permitted to rely on the respondents' so-called variant imputations. The respondents' imputations are therefore not responsive to the applicant's claim. Further, we would not allow an untenable plea of justification of alternative imputations to be advanced for the collateral purpose of adducing evidence in mitigation of damage. 99 Before concluding, we mention that by proposed ground of appeal 2 the respondents made a discrete challenge to a passage in the primary judge's reasons at [63], where his Honour stated - In any event, if an imputation is less injurious than the one that the plaintiff alleges, it must be substantially different from the one it is less serious than. They are just not the same. 100 The respondents submitted that it was plainly wrong to say that any imputation that is less injurious than another will necessarily differ in substance, and cited the reasons of Brennan CJ and McHugh J in Chakravarti at p 533. The respondents submitted that in practice, variant meanings are often less injurious than the primary meanings alleged. The respondents pointed to the fact that the formulation of the relevant principles in Hore-Lacy permits variant meanings that must satisfy the dual criteria that they are not substantially different from, and are not more serious than those proposed by the plaintiff: Ormiston JA at [24]; Charles JA at [52], [58]. The respondents submitted that if what the primary judge said was correct, a party could not succeed on any meaning that is less injurious than a pleaded meaning. 101 We accept the respondents' submissions in relation to proposed ground 2. The dual criteria in Hore-Lacy to which we have referred above indicate that permissible variant imputations may be less serious and yet be not substantially different from the primary imputations that are alleged. It follows that it is not correct to say that merely because a variant imputation is less serious, it must be substantially different. However, the error in the primary judge's formulation in [63] is not material to the outcome in this Court. For the other reasons we have stated, there was no error in the primary judge's orders striking out the variant imputations. 102 Proposed grounds of appeal 1 to 4 raised questions of principle that were appropriate for consideration by a Full Court, and we will grant leave to appeal in relation to those grounds. However, we do not uphold grounds 1 to 4, and we affirm that part of the primary judge's orders by which paragraph 13.2 of the respondents' defence, which pleaded justification of the variant imputations, was struck out.
The particulars of truth - proposed grounds 5 to 14 103 The particulars of truth in the schedule to the proposed amended defence extended to 80 paragraphs, and were structured by division into sections - (1) paragraphs 1 to 31 - a general section comprising allegations concerning the Chinese Communist Party (CCP), a body named the United Front Work Department (UFWD), another body named the Chinese People's Political Consultative Conference (CPPCC), and the applicant; (2) paragraphs 32 to 59 - material facts alleged in support of the justification of imputations 5(a), 5(d), 5(e) and 7(a), and the corresponding variant imputations, which were divided as follows - (a) paragraphs 32 to 49 - material facts alleged to support allegations of the applicant's "deep connections" to the CCP, the CPPCC and the UFWD; and (b) paragraphs 50 to 59 - allegations concerning the applicant's activities in Australia, including financial donations to political parties and universities, and meetings with prominent politicians, allegations that ASIO had concerns about the applicant's activities, and that as a result of the applicant's activities, Parliament had considered amendments to national security legislation; (3) paragraphs 60 to 81 - material facts alleged in support of the justification of imputations 5(f), 5(g), 5(h), and the corresponding variant imputations which make allegations concerning the applicant's involvement with one Sheri Yan in relation to a conspiracy to bribe a United Nations official.
The primary judge's reasons 104 The primary judge summarised the particulars of truth at [14] to [39]. As we mentioned in [13] above, the primary judge struck out the particulars of truth, and disallowed the proposed amendments to them. 105 The primary judge stated at [78] that a defendant in a defamation proceeding must specify the particulars of truth to support a plea of justification with the same precision as an indictment, citing Wootton v Siever [1913] 3 KB 499 at 503. At [79], the primary judge stated that the reason for this principle is - that a person who publishes a serious allegation that he or she seeks to defend as true, must know, at the time of publication, the facts that justify the charge that the publisher makes about the plaintiff in it. 106 His Honour referred to the general principle that the pleadings and particulars must identify with sufficient clarity the case the parties have to meet, and that conduct such as fraud must be pleaded specifically and with particularity. 107 At [83], the primary judge referred to paragraph 14 of the particulars of truth where the respondents alleged what the primary judge described as a bespoke meaning of the word "espionage" - (14) Espionage (Espionage) includes, in relation to the PRC, attempting to advance the United Front Strategy and the interests of the CCP and the PRC globally by, inter alia: (a) obtaining confidential information or documents of another country so as to provide them to the PRC; or (b) conduct which achieves or is intended to achieve, or is intended to make possible, influencing and/or subverting and/or otherwise interfering with, covertly and/or deceptively (in the sense that the Agent's role as such Agent is not disclosed), the policies of foreign governments and/or the political and democratic processes of foreign countries. 108 The ideas of seeking to influence the policies of foreign governments, and the political and democratic processes of foreign countries, and the advancement of interests of the CCP and the PRC, were elaborated in paragraphs 15 to 17 of the respondents' particulars - (15) One of the ways Agents seek to influence policies of foreign governments and/or the political and democratic processes of foreign countries, as part of the United Front Strategy, is by donating, or promising or indicating a willingness to donate, significant sums of money to political parties abroad, so as to encourage political parties to favour policies supporting the interests of the CCP, and/or to accept and/or promote the PRC's agenda and foreign policy goals. (16) Agents may also seek to advance the interests of the CCP and the PRC, and the United Front Strategy, by (for example) offering or providing, to present or former politicians and businesspeople, free trips to China or other gifts, access to political and business leaders in China, or positions on boards of entities connected to the CCP and/or the PRC, so as to encourage such persons and/or the political parties with which they are associated to favour policies supporting the interests of the CCP, and/or to accept and/or promote the PRC's agenda and foreign policy goals. (17) Agents may also seek to advance the interests of the CCP and the PRC, and the United Front Strategy, by (for example) making significant donations to universities abroad, so as to encourage universities to accept and/or promote the PRC's agenda and foreign policy goals. 109 The primary judge held that the applicant had used the word "espionage" in his imputation 5(a) in its ordinary and natural meaning, namely the practice of spying, or of employing spies, citing the Oxford English Dictionary Online and the Macquarie Dictionary. His Honour stated that - [A] spy is someone who spies upon, or watches, someone secretly or who is employed by a government to obtain information or intelligence relating to the military or naval or governmental affairs of one or more other countries, or to collect intelligence of any other kind. 110 His Honour held at [85]-[87] that paragraph 14(a) of the respondents' particulars might have been unobjectionable were it not accompanied by the alternative in (b), which is not a natural or ordinary meaning of "espionage". His Honour held that paragraph 14 was embarrassing because it sought to expand espionage to encompass vague and imprecise concepts which were not within the natural and ordinary meaning of the word "espionage". His Honour further observed that the activities alleged in paragraphs 15 to 17 of the particulars, such as the making of donations, offers, provision of trips, or access to persons of influence in China, were not within the ordinary meaning of the word "espionage" either. His Honour stated that he did not consider that the respondents could justify an imputation of "espionage" by redefining that word in their particulars and then using that bespoke sense to justify the imputation as redefined. However, his Honour stated that it was not necessary to decide the question, because his Honour considered that the particulars had more fundamental flaws. 111 At [89]-[90] the primary judge directed attention to paragraphs 53 to 57 of the respondents' particulars, which his Honour described as the high point of the respondents' allegations of espionage. We set out paragraphs 51 to 59 of the respondents' particulars - (51) From about 2010 to 2016, the Applicant made donations to Australian Universities totalling about of $45 million (Applicant's University Donations). A schedule of the Applicant's University Donations is attached to this Defence and marked "B". (52) By about 2016, the Director-General of the Australian Security Intelligence Organisation (ASIO) had briefed at least three Australian federal political parties, namely the Liberal and National Parties and the Australian Labor Party, and various Australian Universities including the Australian National University, about the national security risks posed by foreign-linked donations (ASIO Briefings). (53) In the ASIO Briefings, the Applicant was named as a donor that ASIO was concerned about because it suspected that he engages in espionage on behalf of the CCP. Among other things, ASIO was concerned: (a) that the Applicant was closely connected to the CCP; (b) that the Applicant's donations may be connected to the CCP and its objectives, including influencing Australian trade policy to the advantage of the CCP; (c) that the Applicant had otherwise engaged in intelligence-related activities on behalf of the CCP. (54) The ASIO Briefings were a most unusual if not unprecedented step for ASIO to take. (55) Following the ASIO Briefings at least one Australian political party stopped accepting donations from the Applicant. (56) Until approximately 2015, the Applicant has enjoyed privileged access to, and met with, many of Australia's most prominent politicians including: (a) former Prime Minister, John Howard; (b) former Prime Minister, Kevin Rudd; (c) former Prime Minister, Tony Abbott; (d) former Prime Minister, Julia Gillard; (e) former Treasurer, Wayne Swan MP; (f) former Foreign Affairs Minister, Stephen Smith MP; (g) Foreign Affairs Minister, Julie Bishop MP; (h) former Foreign Affairs Minister, Bob Carr MP; (i) Leader of the House of Representatives, Christopher Pyne MP; (j) former Agriculture Minister, Tony Burke MP; (k) former Leader of the Opposition and Minister, Simon Crean, MP. (57) It is to be inferred that the Applicant, in those meetings: (a) did not disclose his connections to the CCP, the CPPCC and the UFWD; (b) [(b) was deleted] (c) discussed and learned about the policies of the Australian government and opposition; and (d) attempted to influence those Australian politicians in relation to trade policy and/or in relation to the CCP Australian Objections, so as to advance the interests of the PRC, the UFWD and the CCP in priority to Australia's interests. (58) During 2017 and 2018, by reason of, amongst other things, the Applicant's activities in Australia and ASIO's concerns about them, as outlined above, the Australian Government and Parliament have been considering proposed amendments to the nation's National Security Legislation, now in the form of the national Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017. (59) It is to be inferred that the Applicant: (a) made the Applicant's Political Donations and the Applicant's University Donations in order to establish for himself a reputation in Australia as a person able to make substantial donations to political and other causes; (b) intended that, by making those donations and/or establishing such a reputation, he would be able to gain privileged access to politicians and businesspeople and university leaders; (c) made the Applicant's Political Donations intending that the recipient political party would thereby be induced into favouring the policies and/or position of the PRC and/or the CCP; (d) intended to use that privileged access to attempt to gather information about the policies of the Australian government and opposition, and/or to influence Australian politicians and businesspeople and university leaders, so as to advance the interests of the PRC, the UFWD and the CCP; (e) is an Agent of the CCP; (f) has engaged in UFWD work within Australia by making the Applicant's Political and University Donations; (g) has engaged in Espionage on behalf of the CCP and/or the UFWD by, at least attempting to influence the Australian political parties named in Schedule A in relation to Australian trade policy and/or in relation to the CCP Australian Objectives so as to advance the interests of the PRC, the UFWD and the CCP; and (h) is loyal to, and serves the interests of, the CCP in priority to the interests of Australia. 112 The primary judge stated at [90] that despite alleging that the applicant had met with 11 present and past prominent Australian politicians, the respondents had pleaded not one word of what was said, done or gleaned in those meetings. Instead, their particulars suggested that, because the applicant made large donations to political parties and ASIO had suspicions about him, one could draw an inference that, somehow, he must have spied on, or betrayed, Australia and advanced some interest of the Chinese State at each of those meetings. His Honour held that there was no basis to draw such an inference, because the particulars reveal that the respondents have no information about what happened at any of those meetings. His Honour stated that perhaps one could infer that the participants in the meetings exchanged pleasantries but, beyond that lay only speculation, since the respondents had not served any outline of evidence of any witness present at, or particularised anything that occurred in, any of those meetings. His Honour held that the particulars in paragraphs 53 to 57 were embarrassing because they were conclusory and had no content or substance. 113 At [91] the primary judge referred to paragraph 31 of the respondents' particulars, where the respondents alleged - (31) By reason of the Applicant's background, business acumen and general knowledge, he knew, and/or it is to be inferred that he knew, the facts, matters and circumstances set out in particulars (1) to (28). 114 The reference in paragraph 31 of the particulars to paragraphs 1 to 28 is to the general allegations to which we have referred in [103] above, which the primary judge described as sweeping and imprecise particulars that covered a vast range of matters and which were expressed in vague and general terms. The primary judge held that the allegation as to state of mind in paragraph 31 of the particulars did not comply with r 16.43(2) of the Federal Court Rules, or the principles essayed in Dare v Pulham (1982) 148 CLR 658 at p 664, or the principles summarised by Wigney J in Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473, because it failed to identify any facts, matters or circumstances from which the applicant ought to have acquired the supposed knowledge of the various alleged roles of the CCP, UFWD and CPPCC which were alleged in paragraphs 1 to 28 of the respondents' particulars, or how the applicant engaged in espionage simply because he "knew or it is to be inferred" to have known some or all of what paragraphs 1 to 28 alleged. 115 The primary judge at [92] then addressed paragraphs 32, 34, and 35 of the respondents' particulars, which were in the following terms - (32) In about 2004, the Applicant became a standing committee member of the (Guangdong) Tianhe District CPPCC. … (34) By no later than about January 2010, the Applicant had become a National Committee member of the CPPCC. (35) The Respondents repeat particulars (18) to (22) (above) and say that it is to be inferred that, at all material times since at least 2004, the Applicant has carried out the work of the UFWD and the CCP, including seeking to implement the United Front Strategy in Australia. 116 By paragraphs 18 to 22 of their particulars which are referred to in the above extract, the respondents alleged - (18) The Chinese People's Political Consultative Conference (CPPCC): (a) is a consultative body of the Chinese party-state tasked with co-ordinating and integrating non-party elites into the everyday work of CCP and Government agencies at all levels; (b) collaborates with the CCP and the UFWD in implementing the United Front Stategy; (c) is a core agency of CCP united front work; (d) is used by the CCP in foreign policy by, inter alia, providing status to its representatives when they are engaging in united front activities on behalf of the CCP outside of China; (e) provides funds to overseas UFWD-associated bodies, such as national councils promoting the reunification of China, for the purpose of enabling donations to be made to foreign political parties. (19) Members of the CPPCC: (a) may be, but need not be, members of the CCP; (b) may be foreign nationals; (c) must be approved for such membership by the UFWD. (20) Becoming a member of the CPPCC: (a) is considered a reward for United Front work; (b) provides Agents with business opportunities by, inter alia, conferring status and prestige; (c) reduces the risk for Agents of business and reputational damage. (21) The CPPCC establishes and oversees local committees in China. (22) The CPPCC forms and maintains contact with partner institutions in foreign nations, which institutions are typically established with the support of the CCP and/or the UFWD. 117 His Honour held at [92] that paragraphs 32 and 34, and paragraphs 18 to 22 of the respondents' particulars were conclusory, circular, and unrevealing of any facts, matters and circumstances to connect the applicant to the CPPCC. 118 The primary judge at [93] then addressed paragraphs 37 to 40 of the respondents' particulars, which were in the following terms - (37) The Applicant has organised or actively taken part in high-profile conferences and events that further the interests of the CCP, the CPPCC and the UFWD, including: (a) the 2011 China Australia Economic and Trade Friendship and Exchange Conference, held at the Applicant's Imperial Springs Resort; (b) the November 2012 Australia-China Desert Adventure (Australia stage) Kick-Off Ceremony, held in the Sun Yat-sen's Memorial Hall, Guangzhou; (c) the July 2014 China Australia Economic Forum held at the Imperial Springs Resort; (d) the October 2015 International Forum held at the Imperial Springs Resort; and (e) the May 2016 International Forum on Cities and Development, held at the Imperial Springs Resort. (38) In about 2005, the Applicant established, and subsequently became the head of, the Association of Australia China Friendship and Exchange which, amongst other things, promotes events at the Imperial Springs Resort together with the Chinese People's Association for Friendship with Foreign Countries, an association with close links to the CCP. (39) By no later than about 2008, the Applicant became an Executive Director of the Fourth Council of the China Overseas Exchange Association, an association with deep connections to the UFWD. (40) It is further to be inferred from the Applicant's leadership roles in the ACPPRC, the Fourth Council of the China Overseas Exchange Association and the Association of Australia China Friendship and Exchange, that at all material times he was engaged in CCP united front activities including seeking to implement the United Front Strategy in Australia. 119 The primary judge held that the respondents had not identified any facts or matters to support the assertion that the applicant had allegedly organised or taken part in conferences and events "that further the interests of the CCP, the CPPCC and the UFWD". His Honour held that similar conclusory assertions appeared in paragraphs 38-39 of the respondents' particulars, which alleged that the applicant had a role in associations that had "close links" or "deep connections" to the CCP or UFWD. The primary judge held at [94] that the particulars to this point did not satisfy the respondents' obligations under r 16.43(2) to specify facts, matters and circumstances from which the applicant ought to have acquired alleged knowledge. His Honour stated that the particulars in many instances made bare assertions of a connection or association that a body had with what the respondents alleged was an organ of the Chinese State which pursued some agenda of that State and that, somehow, the applicant, was or must have been, aware of both that connection or association, and that the body advanced the asserted agenda. 120 At [95], the primary judge addressed paragraph 42 of the respondents' particulars where the respondents alleged that it was to be inferred that the applicant was permitted by the CCP to own and operate a newspaper in Guangzhou, Guangdong Province, China, because of "his connections to and/or membership of the CCP, the CPPCC and the UFWD". His Honour stated that membership of the CCP was a critical allegation in the applicant's imputation (a), and that the respondents had not specified anywhere in their particulars any fact or circumstance on which the allegation that the applicant was a member of the CCP was based, and that the applicant was entitled to be apprised of the facts and circumstances on which they rely to assert those facts, such as when, where and how he acquired the membership or what demonstrated that he had it. 121 In paragraph 44 of their particulars, the respondents alleged - (44) In about February 2016, the Applicant met with senior members of the UFWD at the Applicant's business, Kingold Group in Guangzhou, China for the purpose of, amongst other things, discussing Chinese interests in Australia and, specifically, the role that overseas Chinese leaders such as the Applicant play and can play in promoting exchanges and cooperation in countries such as Australia. 122 At [96] the primary judge stated that there was no allegation in this paragraph that there were any discussions at this meeting, or what the substance of the discussions was, that went any way to establishing that the applicant had acted in such a way as to betray Australia, or to advance China's interests. 123 In paragraph 47 of their particulars, the respondents alleged - (47) In or about late 2017, the Applicant was received in Beijing (along with others) by the Chinese President and CCP General Secretary, Xi Jinping. It is to be inferred that this honour was bestowed upon him because of the Applicant's deep connections to the CCP and/or the CPPCC and/or the UFWD as set out above. 124 At [97] the primary judge stated that given that the respondents alleged that the applicant was a very rich businessman with large commercial interests in China, the alleged inference was speculative and, like much of the particulars, was based on circular inferential reasoning. 125 At [98] the primary judge was critical of paragraph 49 of the respondents' particulars, which was in the following terms - (49) It is to be inferred from particulars (32) to (48) that the Applicant deliberately attempted to conceal his connections to the CCP, the CPPCC and the UFWD, so as to secretly advance their interests by engaging in the activities set out below. 126 His Honour described this paragraph as a non-sequitur, because the activities on which the allegations relied, such as ownership of a newspaper, participation in associations, and meetings appeared to have been public and open. 127 At [100] the primary judge held that allegations in the respondents' particulars at paragraph 53 that ASIO had concerns, and at paragraph 59 that as a result of those concerns the Parliament had during 2017 and 2018 considered amendments to the national security legislation, were relevant, at best, to the variant imputations. 128 Paragraphs 60 to 79 of the respondents' particulars culminate in allegations in paragraph 80 of the particulars, the substance of which is that the applicant was a co-conspirator of Sheri Yan in a corrupt scheme to bribe a United Nations official, Mr John Ashe, that the applicant "must have known" that Yan was corrupt, and that the applicant knowingly participated in the payment of a $200,000 bribe. The particulars relied upon by the respondents included - (1) bribery allegations said to have been made in a complaint filed in the United States District Court for the Southern District of New York including that - (a) Yan, together with other co-conspirators, had corruptly conspired as part of a scheme to pay bribes to Ashe; (b) that a wire transfer of US$200,000 to Ashe's bank account was made by a co-conspirator of Yan; (c) that a co-conspirator was identified in the complaint as "CC-3"; (d) that Ashe received the US$200,000 by way of wire transfer from one of CC-3's companies; (2) a claim that Yan had pleaded guilty to the bribery allegations, and had made some admissions in open court; (3) an allegation on 22 May 2018, Andrew Hastie MP, Chair of the Parliamentary Joint Committee on Intelligence and Security (JCIS), revealed in a speech in the Federal Parliament that - (a) he had travelled to the US with other members of the JCIS with whom he had attended a meeting with a US intelligence agency controlled by the Department of Justice; and (b) in that meeting, "CC-3" was identified by the US intelligence personnel as the applicant 129 The primary judge at [36] stated that the particulars of what was alleged to have been said by Mr Hastie MP in the Federal Parliament were in breach of s 16(3)(a) of the Parliamentary Privileges Act 1987 (Cth), and held that the respondents were prohibited from relying on Mr Hastie's speech as a submission, or as a particular of truth that the applicant was the person named as "CC-3" in the bribery allegations. 130 At [103] and [109] the primary judge held that there was no properly particularised basis for the serious allegations against the applicant in paragraph 80 of the respondents' particulars. His Honour stated at [104] that the complaint and Yan's plea were hearsay, generalised allegations that did not provide the applicant with a sufficiently clear statement of the case against him. At [107] his Honour stated that the striking feature of the respondents' particulars was the absence of any allegation about what the applicant did, when he did it, or how he knew anything about any of the matters alleged.
The challenges to the primary judge's decision 131 Before we consider the submissions concerning the primary judge's findings in relation to the adequacy of the respondents' particulars, we make some observations. 132 First, the principles concerning the pleading of justification in defamation cases, and the adequacy of particulars in support, have been stated on many occasions. Recently, in Rush v Nationwide News Pty Ltd at [42]-[54], [99], and [172]-[174] Wigney J reviewed a number of the authorities and principles, and we express agreement with, and gratefully adopt that review. 133 Second, in the way that the respondents' particulars of truth were framed, no distinction was drawn between justification of the applicant's imputations, and justification of the respondents' alternative imputations. Because we affirm the primary judge's decision to strike out the alternative imputations, we shall consider the parties' submissions in relation to the primary judge's decision concerning the adequacy of the respondents' particulars on the basis that the particulars should be capable of justifying the applicant's imputations alone. 134 Third, it is evident that the respondents were attempting to plead a circumstantial case in support of the justification of the applicant's imputations. In assessing a circumstantial case, it is important to bear in mind that the facts ultimately to be proven are those that are in issue, and not necessarily all the circumstantial facts themselves. As Dawson J observed in Shepherd v The Queen (1990) 170 CLR 573 at p 580, "[T]he probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately." This invites consideration of the combined weight of circumstantial facts, for it is the essence of a circumstantial case that the combined force of its components should be considered, and proof of some circumstantial facts may be affected by the court's assessment of other circumstantial facts: Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at p 535 (Gibbs CJ and Mason J). Courts may fall into error by compartmentalising circumstantial facts, rather than standing back and assessing the broader picture. In Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at p 141 Tadgell JA observed that a true picture is to be derived from an accumulation of detail - The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details: cf. Hall (Inspector of Taxes) v Lorimer [1992] 1 WLR 939 at 944; Shepherd v R (1990) 170 CLR 573 at 579-80. 135 For these reasons, in assessing the sufficiency of particulars of a circumstantial case, it is necessary to have regard to the cumulative effect of the particulars: Rush v Nationwide News Pty Ltd at [51] (Wigney J), citing Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475 at [54] (Kenneth Martin J), and Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074 at [11] (McCallum J). 136 Having made the above observations, it remains the case that a respondent attempting to plead a circumstantial case to justify imputations, particularly where serious allegations are made, should address the sting of the imputations, providing the necessary particulars, to make clear the case that the applicant has to meet. 137 We shall now address the respondents' submissions concerning their challenge to the primary judge's findings concerning the adequacy of their particulars.
(1) Paragraph [79] of the primary judge's reasons 138 The respondents challenged the primary judge's statement at [79] that a person who publishes a serious allegation that he or she seeks to defend as true must know, at the time of publication, the facts that justify the charge that the publisher makes about the plaintiff. The respondents submitted that the primary judge's statement was unsupported by authority, and was contrary to principle, and submitted that the state of mind of the publisher at the time of publication is irrelevant to the defence of justification. 139 It is trite that a publisher's state of mind at the time of publication is not relevant to the defence of justification, and that a matter may be justified as being true by reference to facts not known to the publisher at the time of publication, but which have been ascertained by subsequent inquiries: eg, Associated Leisure Ltd v Associated Newspapers Ltd [1970] 2 QB 450 at p 456 (Lord Denning MR). We do not think that by [79] of the primary judge's reasons his Honour intended to suggest otherwise. What his Honour said at [79] is to be understood in the context of the cases that his Honour cited, including Zierenberg v Labouchere [1893] 2 QB 183 cited by his Honour at [80], where the Court of Appeal rejected a submission that the defendant should be allowed discovery before being required to give particulars of a defence of justification. Kay LJ stated at p 189 - If the defendant says that he is unable to state any such facts without discovery, the answer is simple and conclusive - he ought not to have published the libel, and cannot plead any justification for having done so. 140 The above passage was cited by Wigney J in Rush v Nationwide News Pty Ltd at [172], and finds refection in the rules of conduct that provide that a legal practitioner should not allege any fact in a court document unless there is a belief on reasonable grounds that the factual material already available provides a proper basis to do so: Legal Profession Uniform Conduct (Barristers) Rules 2015, r 64; Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, r 21.3. See also, Federal Court Rules, r 16.01(c). However, as other authorities cited by Wigney J in Rush v Nationwide News Pty Ltd make clear, proof of a defence of justification which has a sufficiently pleaded underlying factual basis may be augmented after invoking processes of discovery and production of documents by subpoena: Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 at [40] (Kenneth Martin J); Pahuja v TCN Channel Nine (No. 2) [2016] NSWSC 1074 at [19] (McCallum J). Further, nothing said in Zierenberg v Labouchere should be understood as denying to a respondent the ability to apply on proper material for leave to amend a defence when that application is made at the earliest opportunity after the material has become available. The outcome of any such application to amend will turn on the circumstance of the individual case. However, an application to amend a defence to introduce a plea of justification close to trial, may be met with resistance, including by reference to the need to balance the considerations referred to in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175, and the overarching purpose of the civil practice and procedure provisions of this Court specified in s 37M of the Federal Court of Australia Act 1976 (Cth), and the parties' obligation prescribed by s 37N to conduct litigation consistently with that purpose. 141 For the above reasons, we do not consider that when read in context there is any substantial error in the primary judge's observations at [79]: a person who publishes a serious allegation and who seeks to defend it as being true will have to be in a position to specify by way of particulars to a defence the factual material that justifies the allegation. That is the only context in which the primary judge's observation was made. His Honour did not otherwise act on any incorrect assumption that the respondents had to establish their knowledge at the time of publication of the facts alleged in support of a justification defence, or that the respondents were confined to pleading facts that were within their knowledge at that time.
(2) The degree of particularity required 142 The respondents submitted that the primary judge had placed inappropriate emphasis on the observations of the Court of Appeal in Wootton v Siever at p 503 referred to at [104] above, had overlooked the purpose of particulars, conflated particulars with evidence, had overlooked the applicant's inadequate discovery, and had overstated the degree of particularity required in an indictment. The respondents submitted as an example the primary judge's consideration at [105] of paragraphs 32 to 35 of the respondents' particulars - Next, the particulars asserted in pars 32 and 34 that [the applicant] was a member of the standing Committee of the Guangdong Tianhe District CPPCC and the National Committee of the CPPCC without identifying any facts, matters or circumstances to support that allegation. Then, par 35 asserted an inference, that [the applicant] carried out the work of the UFWD and CCP in seeking to implement the united front strategy in Australia, based on the earlier particulars in pars 18-22 about the CPPCC. In other words pars 32 and 34 and pars 18-22, like much of the balance of the particulars, are conclusory, circular and unrevealing of any facts, matters and circumstances to support the drawing of an inference to connect [the applicant] to the CPPCC: Zierenberg [1893] 2 QB at 187 …. 143 The respondents submitted that it was a matter for evidence whether they can establish that the applicant was a member of those organisations, and that it was not necessary to particularise, for example, how the applicant became a member of those organisations and that, if material, such matters could be the subject of further requests for particulars. The respondents made a similar submission in relation to [95] of the primary judge's reasons, where his Honour held that the applicant was entitled to be apprised of when, where, and how he had acquired membership of the CCP, or what demonstrated that he had acquired membership. 144 The respondents submitted that the primary judge had not identified what degree of particularity was required in an indictment, and that the amount of detail in an indictment in criminal cases may be spare, citing the reasons of McCallum J in Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 at [12]. The respondents submitted that having regard to the content of the respondents' particulars, and the written notice of the respondents' evidence which had been filed, it could not be said that the applicant did not know the case he was required to meet. 145 In Wootton v Siever at p 508 Kennedy LJ referred to the requirements for pleading justification in the following terms - The degree of fullness and precision which ought to be required in an action for libel from a defendant, who has pleaded a justification and has been ordered to give particulars under that plea, is not infrequently a matter which admits of reasonable debate. Certain general propositions are now, I think, not open to controversy. In every case in which the defence raises an imputation of misconduct against him, a plaintiff ought to be enabled to go to trial with knowledge not merely of the general case he has to meet, but also of the acts which it is alleged that he has committed and upon which the defendant intends to rely as justifying the imputation. This rule of justice is not limited in its application to actions of libel, although, of course, it includes them (see per Kay LJ, Zierenberg v Labouchere [1893] 2 QB at p 190), and its propriety is most evident in a libel case where the defendant has chosen to put the character of the plaintiff in serious jeopardy by the heinousness of the charges which are asserted or involved in the defendant's plea of justification. In such a case, at all events, the pronouncement of Alderson B in Hickinbotham v Leach (1842) 10 M & W 361, 364, approved of and explained in reference to the modern system of pleading by Lord Esher M.R. in Zierenberg v Labouchere [1893] 2 QB at p 187, is not one whit too strong: "The plea ought to state the charge with the same precision as in an indictment." 146 What underlies these observations is that if a defendant makes a defamatory statement about a plaintiff that is general in nature, any particulars of justification must descend to specific facts on which the defendant will rely, and in the case of serious conduct including criminal offences, a plaintiff should have fair notice of the case to the same degree as a criminal indictment. In Rush v Nationwide News at [53], Wigney J pointed to a particular feature of defamation cases that supports a requirement that particulars of justification be given with precision, which is that ordinarily the plaintiff gives evidence first - Like an accused in a criminal proceeding, who is entitled to be put on notice of the particulars of the Crown case in respect of each element of the offence with which he or she is charged, a plaintiff in a defamation action is entitled to be put on notice of the precise particulars of the facts or allegations that are said to be true. Indeed, the need for precision in a defamation case is perhaps even more acute, given that ordinarily the plaintiff gives evidence first. 147 All of the above is consistent with the general observations about the purpose of pleadings in Dare v Pulham at p 664, and with the content of r 16.02(d), 16.03(1), and 16.41-16.43 of the Federal Court Rules. Those purposes extend beyond putting a party on notice as to the evidence that is to be led, and include framing the issues for the purposes of informing any discovery obligations, and for the purpose of identifying the material facts that a party will rely upon or seek to establish, and therefore the issues against which rulings on evidence might be made. The respondents called in aid their outlines of evidence and expert reports which they have served. But these documents are not a substitute for pleadings, which should set out succinctly and clearly the material facts on which the party relies in accordance with r 16.02 and 16.41-16.43 of the Federal Court Rules. There is a degree of circuity in relying on statements of evidence as identifying the issues by reference to which questions of admissibility will be determined. 148 There are some serious allegations captured by the applicant's imputations which the respondents sought to justify, including - (1) engaging in espionage on behalf of China and the Chinese Communist Party; (2) paying bribes to Australian political parties; (3) paying a person whom he knew to be a corrupt espionage agent to assist him in infiltrating the Australian government; (4) that the applicant is a member of the Chinese Communist Party and of the CPPCC who carries out the work of a secret lobbying arm of the CCP, the United Front Work Department; (5) paying a bribe to the President of the United Nations General Assembly; and (6) knowing involvement in a corrupt scheme to bribe the President of the United Nations General Assembly. 149 These allegations are of a seriousness that fairly attracts the type of considerations referred to by Kennedy LJ in Wootton v Siever, and there was no error by the primary judge in referring to, and giving effect to those principles. 150 However, we think that there is some substance to the respondents' criticisms of the first sentence of the primary judge's reasons at [92]. In paragraphs 32 and 34 of the respondents' particulars, the material facts that the respondents allege are, respectively, that in about 2004 the applicant became a standing committee member of the Guangdong Tianhe District CPPCC, and that by no later than about January 2010, the applicant had become a National Committee member of the CPPCC. These facts are relied upon together with other allegations to support a number of inferences alleged by the respondents. In our view, there is nothing on the face of the pleading that would indicate that any further particulars of these allegations concerning the fact of membership of the committees are required at this stage. We would make a similar point in relation to [89] of the primary judge's reasons which criticised the failure of the respondents to plead what was said at meetings between the applicant and 11 past and present prominent Australian politicians. Depending on the type of case that is advanced, it may not be necessary to plead anything of what was said at these meetings if it is only the fact that the meetings occurred that is relied upon, together with other facts, as supporting the circumstantial case. The fact of the meetings may have a greater relevance to a foreign influence case than to a spying case. 151 At [95] the primary judge stated that another substantive inadequacy of the respondents' particulars was paragraph 42, which was in the following terms - (a) In about 2001, the Applicant acquired a newspaper in Guangzhou, Guangdong Province, China called the New Express by way of a joint venture with a provincial government newspaper called the Yangcheng Evening News. (b) Media ownership in China is controlled and must be approved by the CCP and, in particular, the Propaganda Department. (c) The CCP retains editorial control over publications by Chinese media outlets; (d) At the time of acquiring the New Express, and since that time, the Applicant was and remains an Australian citizen. (e) At all material times, pursuant to the PRC government's official policy document on foreign investment restrictions in China, foreigners have not been, and are not, permitted to publish newspapers in China. (f) It is to be inferred that the Applicant was permitted by the CCP to own and operate the New Express because of his connections to and/or membership of the CCP, the CPPCC and the UFWD. 152 Allegations similar to those in paragraph 42(f) were made by the respondents in paragraph 43(c) of the particulars - (a) In about 2004, the Applicant launched a Chinese language newspaper, the Australian New Express Daily in Australia (Australian Express) with the assistance of the CPPCC and Mr Jia Qinglin, who is China's fourth highest ranking leader and Chairman of the National Committee of the CPPCC. (b) At the time the Applicant launched the Australian Express, and subsequently, the Applicant was an Australian citizen. (c) It is to be inferred that the Applicant was so assisted in starting the Australian Express because of his connections to and/or membership of the CCP, the CPPCC and the UFWD. 153 The primary judge at [95] stated in relation to paragraph 42 of the respondents' particulars - There, for the first time, the particulars asserted that [the applicant] was a member of the CCP. That was a critical allegation in [the applicant's] imputation (a). But the respondents never specified, anywhere in the 80 paragraphs, including par 53, any fact or circumstance on which that allegation was based. Given that justification of [the applicant's] imputation (a) requires that the respondents establish that he was, indeed, a member of the CCP, he is entitled to be apprised of the facts and circumstances on which they rely to assert those facts, such as when, where and how he acquired the membership or what demonstrated that he had it. 154 There is an obvious slip in [95] of his Honour's reasons, in that the applicant's membership of the CCP is an element of the applicant's imputation 5(d), rather than 5(a). Subject to this, in our view there is merit in the primary judge's criticisms of these allegations. The respondents did not allege squarely that the applicant was a member of the CCP. The suggestion that he was a member of the CCP was made in ambiguous terms that were rolled up inside paragraphs 42 and 43 of the particulars as one of a number of alternatives in support of other allegations. If the respondents had sought to justify the allegation that the applicant is a member of the CCP, which is the first element of the applicant's imputation 5(d), then the starting point should have been to make that allegation clearly and distinctly, supported by any necessary particulars. Such particulars would not necessarily have to extend to "when, where, and how" the applicant acquired membership of the CCP, but would have to set out in a clear fashion the material facts on which the respondents relied.
(3) Particulars of knowledge 155 The respondents challenged the primary judge's conclusions at [94] and [107] that they had not provided particulars to the extent required by r 16.43 of the Federal Court Rules of the applicant's knowledge of the connection or association between various organisations and the Chinese State and the pursuit of State agendas by those organisations. 156 As we stated at [103] above, by paragraphs 1 to 31 of their particulars the respondents made a range of general allegations concerning various bodies and organisations alleged to be associated with each other and with the Chinese State and the CCP. And as we stated at [113]-[114] above, the primary judge described the respondents' allegation of the applicant's knowledge of those facts in paragraph 31 of the particulars as sweeping and imprecise. We agree with the primary judge's characterisation. The respondents' indiscriminate, omnibus allegation of knowledge of the broad array of matters alleged in paragraphs 1 to 28 depended on no more than the applicant's "background, business acumen, and general knowledge", and was thus essentially circular. 157 One of the other difficulties with the respondents' particulars is the use of vague words and phrases to associate various persons and organisations, without identifying material facts to support those associations. Examples include the following - (1) "close links" used at 38; (2) "connections" used at 42(f), 43(c), 49 and 57(a); (3) "connected" used at 53(b); (4) "closely connected" used at 53(a) and 60(d); (5) "deep connections" used in the heading above 32, and at 39; and (6) "close association", used at 48. 158 The primary judge referred to these features of the particulars at [93], [94] and [97]. At [93] the primary judge also referred to the allegations that were made by the respondents at paragraph 37 of the particulars, which were as follows - (37) The Applicant has organised or actively taken part in high-profile conferences and events that further the interests of the CCP, the CPPCC and the UFWD, including: (a) the 2011 China Australia Economic and Trade Friendship and Exchange Conference, held at the Applicant's Imperial Springs Resort; (b) the November 2012 Australia-China Desert Adventure (Australia stage) Kick- Off Ceremony, held in the Sun Yat-sen's Memorial Hall, Guangzhou; (c) the July 2014 China Australia Economic Forum held at the Imperial Springs Resort; (d) the October 2015 International Forum held at the Imperial Springs Resort; and (e) the May 2016 International Forum on Cities and Development, held at the Imperial Springs Resort. 159 At [93] the primary judge referred to paragraph 37 of the respondents' particulars as containing conclusory assertions, and we agree. That is particularly the case in relation to the vague allegations that the conferences and events furthered the interests of the CCP, the CPPCC and the UFWD. Paragraph 37 is not supported by any material facts that would be necessary to sustain the high-level conclusions that it contains. 160 We therefore agree with the primary judge's conclusion at [94] that the respondents' particulars up to that point do not specify the facts, matters and circumstances from which the applicant ought to have acquired the alleged knowledge as required by r 16.43(2). 161 In relation to the respondents' particulars relating to the applicant's knowledge of Sheri Yan's activities, it is desirable to set out paragraphs 70 to 80 of the respondents' particulars, as we shall need to refer to them - The New York Bribery Complaint (70) In about October 2015, a complaint was filed in the United States District Court for the Southern District of New York (Complaint), and Yan was arrested by the Federal Bureau of Investigation in New York in relation to the allegations contained in the Complaint. (71) By the Complaint, Yan was charged, together with Heidi Park (also known as Heidi Hong Piao) and others, with, amongst other things, offences relating to the bribery of John Ashe, who was then the permanent representative to the United Nations from Antigua and the President of the UN General Assembly (Ashe), from about August 2013 in violation of the United States Code. (72) The Complaint relevantly alleged that: (a) Yan and Piao, together with other co-conspirators, corruptly conspired as part of a scheme to pay, and to facilitate payment of, bribes to a United Nations Official namely, Ashe; (b) Yan and Piao arranged for a US$200,000 wire transfer to a US bank account belonging to Ashe in exchange for him attending, in his official capacity, a conference in Guangdong, Guangzhou, China on 17 November 2013; (Guangzhou Conference); and (c) The wire transfer to Ashe's bank account was made by a co-conspirator of Yan and Piao. (d) The Guangzhou Conference was organised by an "old friend" of Yan's who was an extremely wealthy Chinese real estate developer only identified in the Complaint by the pseudonym as co-conspirator "CC-3"; (e) Ashe received the US$200,000 by way of wire transfer from one of CC-3's companies; and (f) Ashe subsequently attended the Guangzhou Conference and delivered a speech (the Bribery Allegations). Guangzhou Conference (73) The Guangzhou Conference was: (a) organised or co-organised by the Kingold Group; (b) held at the Applicant's Imperial Springs Resort in 2013; and (c) hosted by the Applicant. (74) John Ashe, in his capacity as President of the UN General Assembly, attended and delivered a speech at the Guangzhou Conference. Yan pleads guilty to the Bribery Allegations (75) On about 20 January 2016, Yan pleaded guilty to the Bribery Allegations before his Honour Judge Vernon Broderick of the United States District Court, Southern District of New York. (76) At the hearing, Yan orally admitted in open court that: (a) she, along with other people, i.e. co-conspirators, agreed to pay money to Ashe; (b) numerous such payments (one of them being the $200,000) were made so that, in exchange, Ashe would: (i) persuade officials in Antigua to enter into business contracts with foreign companies; and (ii) use his position as the President of the General Assembly to assist Yan and "others", i.e. co-conspirators, to promote business ventures from which they would profit. (77) In the circumstances outlined in particulars (70)-(76), Yan is corrupt. (78) On about 29 July 2016, Yan was sentenced to 20 months' imprisonment and a fine of US$12,500. She was ordered to forfeit the sum of US$300,000. (79) On 22 May 2018, Andrew Hastie MP, Chair of the Parliamentary JCIS, revealed in a speech in the Federal Parliament that: (a) he had travelled to the US with other members of the JCIS with whom he had attended a meeting with a US intelligence agency controlled by the Department of Justice. (b) In that meeting, "CC-3" was identified by the US intelligence personnel as the Applicant. Conclusion in relation to Yan and the Bribery Allegations (80) It is to be inferred from particulars (70) to (79): (a) that "CC-3" is the Applicant and a co-conspirator of Yan and others in the corrupt scheme to bribe Ashe; (b) that the Applicant must have known that Yan was corrupt; (c) that the Applicant knowingly participated in the payment of the $200,000 bribe to a US bank account in the name of the Ashe; (d) that the Applicant did so in order to profit from Ashe's activities on behalf of the co-conspirators in return for the bribe. 162 The primary judge's reference at [78] to Wootton v Siever was fitting. What is remarkable about the allegations in paragraphs 70 to 79 of the respondents' particulars is that, apart from the allegation in paragraph 73(c) that the applicant hosted a conference, there are no direct allegations of material fact made in relation to any conduct of the applicant. Rather, the particulars allege as material facts: (1) allegations in court documents in a foreign court proceeding; (2) the hearing and outcome of a proceeding against Sheri Yan; and (3) statements made by Mr Hastie MP to the Federal Parliament. No material facts alleged in paragraphs 70 to 79, either alone or in combination, are capable of supporting the very serious allegations that are made in paragraph 80. The respondents' attempt to justify the applicant's imputations 5(f), (g), and (h) is untenable.
(4) The definition of espionage 163 The respondents challenged what the primary judge stated at [83]-[87] in relation to the respondents' definition of "espionage" in paragraph 14 of their particulars. We have set out paragraph 14 of the respondents' particulars under [107] above. As we noted at [110] above, the primary judge held that the definition of "espionage" in paragraph 14 of the respondents' particulars was embarrassing because it sought to expand espionage to encompass vague and imprecise concepts that were not within the natural and ordinary meaning of the word "espionage". However, his Honour also stated that it was not necessary to decide the question whether the respondents could justify an imputation of "espionage" by redefining that word in their particulars and then using that bespoke sense to justify the imputation as redefined. Nonetheless, before this Court the respondents squarely argued that the primary judge's rejection of their definition of "espionage" in paragraph 14 of their particulars disclosed an error of approach, and we shall therefore address the parties' submissions. 164 The respondents submitted that whether what they alleged constituted espionage was a question of fact to be assessed by reference to the evidence adduced at trial and the standards of the hypothetical viewer or reader of the matters complained of. The primary judge was in error, according to the respondents, in having recourse to dictionary meanings, because the meaning of the word "espionage" was a question for the trier of fact. According to the respondents, that meaning was not to be equated with a dictionary meaning, but with "espionage" in the sense conveyed by the matters complained of. Senior counsel for the respondents submitted that the matters had not accused the applicant of being "James Bond" but, if the imputation of espionage was conveyed, of engaging in naked influence to the detriment of Australian domestic and foreign policy. The respondents submitted that conduct of the kind in which they alleged the applicant had engaged had, in part, resulted in new legislation: National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth). Further, the respondents submitted that at this stage of the proceeding the question was one of capacity, and the primary judge was wrong to foreclose a conclusion by the Court at trial, after having heard all the evidence, that the conduct in which the applicant was alleged to have engaged constituted espionage in the sense conveyed by the matters complained of. 165 In response, the applicant submitted that the primary judge was correct at [86] of the reasons for judgment in holding that the definition of "espionage" in paragraph 14 of the particulars was embarrassing because it did not describe espionage as alleged by the applicant, and embraced vague and imprecise concepts. Further, the applicant submitted that the meaning of the applicant's imputation was not a question for the trier of fact, but was a question of law, citing Singleton v Ffrench (1986) 5 NSWLR 425. 166 Singleton v Ffrench was an appeal following a jury trial in a proceeding where the alleged causes of action were the publication of imputations because the proceeding was subject to the now-repealed Defamation Act 1974 (NSW). The plaintiffs were the trustees of a trust fund called the John Farragher Trust Fund. By their statement of claim the plaintiffs alleged that the matter complained of meant that they had acted "in breach of their trust to John Farragher". At trial, at the close of evidence an issue arose as to the basis on which the plaintiffs' case had been put. The plaintiffs submitted that the pleaded imputation meant that the plaintiffs were morally blameworthy, while the defendants alleged that the imputation meant that, in an objective sense, the plaintiffs had breached the terms or duties of their trust, irrespective of their state of mind. The trial judge decided to leave the meaning of the imputation to the jury. On appeal, McHugh JA, with whose reasons Samuels JA agreed, held that the trial judge was in error in allowing the jury to determine the meaning of the imputation. This was because if the trial judge had thought that the matter was capable of bearing the meaning in the sense which the plaintiffs had argued, he should have required the plaintiffs to make an application to amend the pleadings, and if an amendment to the statement of claim had been allowed, then the original imputation should have been deleted, and the defendant given an opportunity to plead justification to the new imputation. However, in the circumstances of the case, McHugh JA was of the opinion that it would not have been proper to allow such an amendment at the close of the evidence, because: (1) it would radically change what had been the battleground of the case; (2) such an imputation was too vague and imprecise to go to the jury; and (3) McHugh JA did not see anything in the matter complained of that would have justified a finding that the publication meant that the plaintiffs were acting in breach of faith, as distinct from breach of the terms or duties of their trust. 167 We do not accept that the meaning of an imputation is a question of law in the broad terms submitted by the respondents. Singleton v Ffrench involved at least two relevant issues for the Court. The first issue was the management of the trial, and the error that McHugh JA identified was that the trial judge left issues to the jury that were not correctly formed, and which resulted in unfairness to the defendant. That was an error by the judge in directing the jury, which in the context of a jury trial may be referred to as an error of law: cf, the discussion in Glass, McHugh and Douglas, The Liability of Employers (Law Book Co, 1979) at p 209-210. The Court of Appeal's consideration of the first issue involved a second issue, which was whether the matter complained of was capable of bearing the imputation in the sense that had been advanced by the plaintiffs. That was an issue of capacity which is a question of law: Trkulja v Google LLC [2018] HCA 25; 356 ALR 178 at [30] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). 168 The significance of pleading imputations in cases that are subject to the uniform legislation is slightly different from that in cases that were the subject of the Defamation Act 1974 (NSW). Under s 9 of the 1974 New South Wales legislation, each imputation was a separate cause of action (Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at p 190), whereas under s 8 of the current legislation there is a single cause of action in relation to the publication of defamatory matter, even if more than one defamatory imputation is conveyed. The purposes of pleading imputations in cases subject to the current legislation include the conventional purpose of identifying the field of inquiry for trial, and to enable a defendant to raise defences, including statutory defences in circumstances where the defences under s 25 and s 26 of the Defamation Act are responsive to imputations. 169 The matter complained of may inform the meaning of a pleaded imputation: an imputation is not to be considered in a way that is divorced from its subject-matter. In Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at [20]-[22] Mason P stated - 20 The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-196). 21 These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 at 455; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 634). Holmes J, in Towne v Eisner 245 US 418 (1918) at 425, reminds us that: "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used". 22 Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see J G Fleming, The Law of Torts, 7th ed (1987) Sydney, Law Book Co Ltd, at 588). 170 However, context cannot be deployed to change the meaning of an imputation that has been clearly chosen by the pleader: see, Charan v Nationwide News Pty Ltd [2019] VSCA 36 at [140] (Beach, Niall and Ashley JJA). 171 A consideration of the way in which an imputation is to be understood may occur at different stages. First, in considering the legal question of the capacity of a matter to convey an imputation, it will be necessary to have an understanding of the meaning of the imputation alleged by a party for the purpose of evaluating the question of capacity. A question of capacity may arise in relation to an applicant's imputations, and any imputations alleged by a respondent as variant imputations, or as contextual imputations. At that stage, the enquiry as to the meaning of an imputation might expose a question as to whether the imputation is sufficiently precise, or is ambiguous, which is a question to be resolved by the parties or the Court as an interlocutory issue either before or during the trial. Second, if a respondent pleads variant imputations or "other" imputations for the purposes of a contextual truth defence, and as in this case, there is a challenge to the respondent's imputations, the resolution of any such challenge will involve the Court having an understanding as to the meaning of the alternative imputations. At this stage also, ambiguity may be exposed which may require an amendment of the pleadings to remedy. Third, at trial a relevant question for the trier of fact will be whether the matter is defamatory in any meaning about which the applicant complains, or a permissible variant of such a meaning in the sense explained in the authorities to which we have referred. In order to make that judgment, it will be necessary for the trier of fact, whether it be judge alone or jury, to have an understanding of the meaning of the imputations which the parties allege. That meaning may be informed by the matter complained of, which is the context for the imputations. However, the point of Singleton v Ffrench is that the trier of fact should not have to resolve any ambiguity in the pleaded imputations: Greek Herald Pty Ltd v Nikolopoulos at [24]; Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 at [68]; Fenn v Australian Broadcasting Corporation at [47]. That is because the issue before the trier of fact is the meaning of the matter complained of, and not the meaning of the parties' pleadings, which are the parties' statements of the cases they seek to advance. Any substantial dispute in relation to the meaning of the parties' pleadings should ordinarily be determined as a question of practice and procedure before the determination at trial of the facts in issue. The resolution of any such dispute will usually turn on considerations of practical justice: Drummoyne Municipal Council v Australian Broadcasting Corporation at p 137 (Gleeson CJ). 172 Before the primary judge, the applicant submitted that "espionage" meant "spying". The primary judge accepted that submission, holding that "spying" was the natural and ordinary meaning of "espionage". His Honour did not say anything to suggest that there was any relevant ambiguity in the applicant's imputation 5(a) and its employment of the term "espionage". If his Honour had thought there was ambiguity, then he could have required the applicant to amend further the statement of claim to make the meaning of espionage explicit in the pleading. Before this Court, senior counsel for the applicant continued to submit that "espionage" in the applicant's imputation (a) meant "spying", and accepted that in confining the imputation to espionage in this way, the applicant had made a forensic choice. 173 The amendments made to the Criminal Code (Cth) by the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (Cth), to which the parties referred in argument, draw a distinction between espionage (Division 91), and foreign interference (Division 92). For the purposes of the Criminal Code, the content of both concepts is found in the statute, and they are different. In this case, we are not concerned with a statutory concept of "espionage", but with the content of the imputation alleged by the applicant. Whatever possible views there might be of the meaning of the word "espionage" generally, or in particular contexts, it is tolerably clear that for the purposes of the applicant's imputation (a), the applicant's case is that "espionage" has a meaning akin to "spying", and does not extend to the broader concepts such as those that were alleged by the respondents in their bespoke definition of "espionage" in paragraph 14(b) of their particulars which extend to influence, and attempted influence. We agree with the primary judge's opinion that the concepts into which the respondents sought to extend the meaning of espionage were vague and imprecise. In accordance with the relevant principles in Sutherland v Stopes, Chakravarti, and Hore-Lacy, the respondents' defence of justification should be directed to the substance or sting of the applicant's meaning, or a permissible variant of it. We consider that there is a substantial difference between "espionage" as it is employed in the applicant's imputation 5(a), and the breadth of the respondents' case, with the consequence that the respondents' case relating to "espionage" is not responsive. The breadth of the respondents' case is manifested in paragraph 59(g) of their particulars which we set out at [111] above, which contains the only direct allegation of espionage by the applicant. That allegation is descriptive of political influence, and is far removed from the sense in which the applicant's imputation 5(a) is to be understood.
(5) Particulars of espionage 174 The respondents submitted that in holding at [89]-[90] that the particulars provided no basis for inferring that the applicant had engaged in espionage, the primary judge erred by confining his attention to paragraphs 53 to 57 of the particulars, rather than directing attention to the accumulation of circumstances that had been alleged. In support of this submission, the respondents relied on Rush v Nationwide News Pty Ltd at [51] (Wigney J), Pahuja v TCN Channel Nine Pty Ltd (No 2) at [11] (McCallum J), and Transport Industries Insurance v Longmuir at 141 (Tadgell JA). 175 At [134]-[135] above we referred to the nature of a circumstantial case, and we accept the respondents' submission that particulars in support of such a case should not be evaluated in isolation. As we indicated at [150] above, we also accept that to allege a circumstantial case of foreign influence, it may not be necessary for the respondents to allege actual words spoken at particular meetings. But there are many serious problems with the way the respondents' case has been pleaded. The problems include the following. The first is the bespoke definition of "espionage", which we have already addressed, and which has the consequence that the proposed amended defence fails to engage with the applicant's imputation 5(a). The second is that there is a sting in the applicant's imputation 5(e) that the respondents' particulars do not address, namely that the applicant paid enormous sums of money to Australian political parties as "bribes". The third is that the allegations in paragraphs 53 to 55 and 58 of the particulars are not directed to any conduct of the applicant, but to opinions attributed to others, such as ASIO, an unnamed political party, the Australian government, and even the Australian Parliament. The fourth is the employment in the particulars of vague words or phrases of association such as "deep connections" without identifying sufficient supporting material facts, which we have already addressed. The fifth is the imprecise way in which many allegations of primary material fact are made, including the allegations about conferences and events in paragraph 37, and the indirect way in which the applicant's membership of the CCP appears to have been alleged in paragraphs 42 and 43. The sixth is the high-level circular allegation of knowledge in paragraph 31 of the particulars, to which we have referred. A circumstantial case may paint a picture, but in this case it is not clear what picture is being portrayed. If the respondents were to make a further application for leave to amend their defence to plead justification to some or all of the imputations alleged by the applicant, there would need to be some, and possibly substantial revision of the pleading in order that it be viable.
(6) The allegation that the applicant was a member of the Chinese Communist Party 176 The respondents submitted that the primary judge erred at [95] by referring to the applicant's alleged membership of the Chinese Communist Party as a "critical allegation" in the applicant's imputation (a), when the imputation did not allege membership, but referred to the applicant "serving the interests" of the Chinese Communist Party. We have addressed this submission at [154] above. His Honour's reference to the applicant's imputation 5(a) was an obvious slip, and the reference is to be construed as being to 5(d).
(7) The allegations in paragraphs 72 and 76 of the particulars 177 The respondents submitted that the primary judge erred at [104] in treating the allegations in paragraphs 72 and 76 of their particulars as hearsay, and therefore not affording any basis for the serious allegations against the applicant in paragraph 80 that he was a co-conspirator of Yan. The respondents submitted that the primary judge confused particulars with evidence, and assumed that evidence would not be admissible at trial. 178 There is nothing in this submission. There is no confusion between particulars and evidence. As we have indicated at [162] above, paragraphs 72 and 76 of the respondents' particulars do not make any allegations about the applicant's conduct, but allege the content of a court document and the hearing and outcome of a proceeding against Ms Yan.
(8) Parliamentary Privileges Act 1987 (Cth), s 16(3) 179 In paragraph 79 of their particulars, which we have set out paragraph under [161] above, the respondents rely upon statements made by Mr Hastie MP to the Federal Parliament. In relation to the primary judge's finding that s 16(3) of the Parliamentary Privileges Act 1987 (Cth) prohibited the respondents from relying on what Mr Hastie MP had said in Parliament, the respondents submitted that s 16(3) precluded the tendering or receipt of evidence, and had nothing to say about pleadings or particulars, and that the time to determine whether there was a breach of the Parliamentary Privileges Act was at trial, citing Hanson-Young v Leyonhjelm [2018] FCA 1688 at [55]-[58] (White J). 180 Section 16(3) of the Parliamentary Privileges Act is not confined in its operation to the receipt of evidence. As its text indicates, it extends to submissions and comments for the purpose of relying on the truth of anything forming part of proceedings in Parliament, and drawing, or inviting the drawing of inferences - (3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament. 181 Paragraph 79 of the respondents' particulars alleges as the relevant material fact the statements by Mr Hastie MP in the Federal Parliament, but not the underlying facts. Paragraph 80 of the respondents' particulars relies on paragraph 79 in support of the inferences that are alleged therein. In our view, putting aside s 16(3) of the Parliamentary Privileges Act, if the material fact is no more than the fact of Mr Hastie's statements to the Parliament, that fact is not capable of supporting the inferences alleged in paragraph 80, and the primary judge was correct to hold at [103] that there was no properly particularised basis for the serious allegations against the applicant in paragraph 80 of the particulars. That is a sufficient reason to affirm the primary judge's decision to strike out paragraph 79 of the particulars.
Particulars of truth - conclusions 182 We give the respondents leave to appeal the orders striking out their particulars of truth and otherwise disallowing the proposed amendments to their defence. We give leave to appeal having regard to application in respect of the particulars of truth globally, and not by reference to the individual arguments advanced on behalf of the respondents, some of which lacked merit. However, the respondents have not shown that the primary judge's orders were in error.
Disposition 183 The respondents have leave to appeal, but the appeal is dismissed. 184 The respondents accepted that if unsuccessful, there is no reason why an order for costs should not be made in favour of the applicant, so we will order that the respondents pay the applicant's costs of the application for leave to appeal, and the appeal. I certify that the preceding one hundred and eighty-four (184) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Besanko, Bromwich and Wheelahan.
Australian Broadcasting Corporation
Chau Chak Wing
Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234 Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579 CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390 Chakravarti v Advertiser Newspapers Ltd (1996) 65 SASR 527 Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519 Chalmers v Shackell (1834) 6 Car & P 475; 172 ER 1326 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10; 94 SASR 296 Charan v Nationwide News Pty Ltd [2019] VSCA 36 Charleston v News Group Newspapers Ltd [1995] 2 AC 65 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Crampton v Nugawela (1996) 41 NSWLR 176 Cruddas v Calvert [2015] EMLR 16 Cunliffe v Woods [2012] VSC 254 Cruise v Express Newspapers plc [1999] QB 931 Dare v Pulham (1982) 148 CLR 658 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] QB 21 Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1 Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; 53 VR 546 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547 Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154; 90 NSWLR 79 Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172 Fallon v MGN Ltd [2006] EWHC 783 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 Faruqi v Latham [2018] FCA 1328 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 Fenn v Australian Broadcasting Corporation [2018] VSCA 166 Flood v Times Newspapers Ltd [2012] UKSC 11; [2012] 2 AC 273 Gacic v John Fairfax Publications Pty Ltd [2011] NSWCA 362 Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475 George v Rockett (1990) 170 CLR 104 Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 Gumina v Williams (No 2) (1990) 3 WAR 351 Gutnick v Dow Jones & Co Inc (No 4) [2004] VSC 138; 9 VR 369 Hadzel v De Waldorf (1970) 16 FLR 174 Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 Hanson-Young v Leyonhjelm [2018] FCA 1688 Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; 87 NSWLR 609 Hicks v Gregory (1904) 6 WALR 100 Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1 Hockey v Fairfax Media [2015] FCA 652; 237 FCR 33 Hore-Lacy v Cleary [2007] VSCA 314; 18 VR 562 Hough v London Express Newspaper Ltd [1940] 2 KB 507 Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 Howden v "Truth" and "Sportsman" Ltd (No. 2) (1938) 38 SR (NSW) 287 Hyams v Peterson [1991] 3 NZLR 648 In re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 Jones v Pollard [1997] EMLR 233 Jones v Skelton [1963] 1 WLR 1362 Kerney v Optimus Holdings Pty Ltd [1976] VR 399 King v Lintrose Nominees Pty Ltd (2001) 4 VR 619 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 Lewis v Daily Telegraph [1964] AC 234 Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 Mickelberg v Hay [2006] WASC 285 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Moore v Mitchell (1886) 11 OR 420 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Nationwide News Pty Limited v Rush [2018] FCAFC 70 Pahuja v TCN Channel Nine Pty Ltd (No 2) [2016] NSWSC 1074 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 Polly Peck (Holdings) plc v Trelford [1986] QB 1000 Prager v Times Newspapers [1988] 1 WLR 77 Prichard v Krantz (1984) 37 SASR 379 Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10 Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 Rush v Nationwide News (No 2) [2018] FCA 550; 359 ALR 564 Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182; 91 SASR 466 Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 Scott v Sampson (1882) LR 8 QBD 491 Setka v Abbott [2014] VSCA 287; 44 VR 352 Setka v Abbott (No 2) [2013] VSC 726 Shah v Standard Chartered Bank [1999] QB 241 Shepherd v R (1990) 170 CLR 573 Singleton v Ffrench (1986) 5 NSWLR 425 Slim v Daily Telegraph Ltd [1968] 2 QB 157 Soultanov v The Age Company Ltd (2009) 23 VR 182 Speidel v Plato Films Ltd [1961] AC 1090 Sutherland v Stopes [1925] AC 47 Television New Zealand Ltd v Haines [2006] 2 NZLR 433 Templeton v Jones [1984] 1 NZLR 448 Ten Group Pty Ltd v Cornes [2012] SASCFC 99;114 SASR 46 The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 Trkulja v Google LLC [2018] HCA 25; 356 ALR 178 Truth (NZ) Ltd v Bowles [1966] NZLR 303 Truth (New Zealand) Ltd v Holloway [1961] NZLR 22 Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 West Australian Newspapers v Elliott [2008] WASCA 172; 37 WAR 387 Wilson v The Mutual Store Ltd (1899) 25 VLR 262 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 106 FLR 183 Wootton v Siever [1913] 3 KB 499 Zierenberg v Labouchere [1893] 2 QB 183 Duncan and Neill on Defamation (2nd ed, Butterworths, 1983) Gatley on Libel and Slander (4th ed, Sweet & Maxwell, 1953) Gatley on Libel and Slander (11th ed, Sweet & Maxwell, 2008) Glass, McHugh and Douglas, The Liability of Employers (Law Book Co, 1979)
The applicants have leave to appeal the orders of the primary judge made 31 August 2018. The appeal be dismissed. The applicants pay the respondent's costs of the application and of the appeal.
[2005] SASC 82
[1998] HCA 37
[2006] SASC 10
[2019] VSCA 36
[2012] VSC 254
[2000] VSCA 24
[2016] VSCA 237
[2018] VSCA 166
[2015] WASC 475
[2004] VSC 138
[2007] VSCA 314
[2013] WASC 347
[2006] WASC 285
[2005] SASC 182
[2010] SASC 202
[2014] VSCA 287
[2013] VSC 726
[2012] SASCFC 99
[2008] WASCA 172
[2001] VSCA 140
(1981) 148 CLR 170
(2005) 91 SASR 206
(2009) 239 CLR 390
(1996) 65 SASR 527
(1984) 153 CLR 521
(2007) 232 CLR 245
(1996) 41 NSWLR 176
(1982) 148 CLR 658
(1990) 21 NSWLR 135
(2018) 97 NSWLR 547
(1990) 170 CLR 104
(2002) 54 NSWLR 165
(1990) 3 WAR 351
(1970) 16 FLR 174
(1937) 58 CLR 416
(1988) 12 NSWLR 706
(2001) 4 VR 619
(1982) 149 CLR 293
(1984) 37 SASR 379
(1990) 170 CLR 573
(1986) 5 NSWLR 425
(2009) 23 VR 182
(2003) 9 VR 1
(1992) 106 FLR 183
(1998) 193 CLR 519
(1998) 20 WAR 191
(1982) 42 ALR 487
(1925) 35 CLR 449
(1999) 197 CLR 611
[2009] HCA 27
[2009] HCA 16