Bateman v Fairfax Media Publications Pty Ltd

What is truth? 13It is necessary to consider the defence of truth (or "justification", as it is known) in that context. Under the 2005 statute, notwithstanding its provision that the cause of action is the matter complained of (and not the imputation), it remains a critical requirement of fairness that the plaintiff specify the imputations contended for, since they are an element of some of the statutory defences, importantly including the defence of truth. Section 25 of the 2005 Act provides a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. I read that section as referring to the imputations of which the plaintiff complains rather than the imputations (whatever they may be) conveyed by the matter of which the plaintiff complains. 14Based on my reading of the section, it could form no part of that defence for a defendant to postulate an alternative meaning of the matter complained of and plead that the alternative meaning was substantially true. A plea of truth under the statute to any imputation other than those of which the plaintiff complains would be bad in law. 15As already noted, however, the 2005 Act also preserves the defences at common law. 16The issue that arose in Hore-Lacy related to the entitlement of a defendant at common law to defend a defamation action by proving the substantial truth of some meaning other than the meanings pleaded by the plaintiff. The Court unanimously understood the common law to permit a plaintiff to succeed at trial on a meaning other than those contended for in the pleadings. Ormiston JA considered that the jury could go beyond the meanings alleged, "but only so long as the meaning they fix upon is comprehended by or is simply a variant of one of the meanings pleaded or otherwise relied upon" (at [17]). Charles JA considered the requirement to be "that the meaning was not substantially different from and was not more injurious than the meanings pleaded" (at [52]), as did Callaway JA (at [69]). However, the Court was divided as to the implications of that proposition for the defence of justification. 17The majority held that, similarly, a defendant can defend a defamation action by justifying a meaning different from those contended for by the plaintiff, provided that the defendant is limited to justifying "a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand" (at [53] per Charles JA; Ormiston JA agreeing at [23]). 18The point on which the Court was split was the content of the defendant's obligation to plead such a case. The defendants had indicated their intention to justify at least one meaning different from those specified by the plaintiff, but submitted that they were not obliged to specify what meaning they contended for which they would seek to prove to be true. 19The majority held that the defendants were, in the circumstances of that case, required to particularise the meanings they proposed to justify (at [21] per Ormiston JA; Charles JA agreeing at [59]). 20Callaway JA dissented. His Honour considered that the error of requiring a defendant to plead any additional meaning he would seek to justify lay in "a misconception" concerning the scope of the defence of justification. His Honour said (at [70]): "If the defendant pleads justification, he or she undertakes to prove that the words were true in any meaning that the jury properly finds. The particulars of justification amount to saying, "Whatever the words may properly be found to mean, these are the facts on which I rely". A defendant willing to shoulder such a heavy burden should not, in addition, be required to suggest meanings to the plaintiff that may not have occurred to the plaintiff's advisers, especially as that may have the effect of increasing the damages ultimately awarded. To say that only those additional meanings may be pleaded on which the plaintiff could succeed as the pleadings stand shows, in my respectful opinion, that the proposed change is unnecessary, even if it were permissible. They are the very meanings that cannot, or should not, take the plaintiff unduly by surprise." 21It may be noted, in passing, that the risk of increasing damages referred to by his Honour is not a concern revealed in the amended defence in the present case. 22Callaway JA's analysis of that issue is not inherently inconsistent with the analysis adopted by the majority. As already noted the decision was (in my view) ultimately concerned with the content of the defendants' pleading obligation rather than the scope of the defence of justification at common law. Ormiston JA expressly described the case as one concerned with "certain rules of pleading and practice in defamation actions" (at [23]). Charles JA noted that counsel for the defendants had frankly admitted that "he wished to keep his options open as to the defamatory meaning of the publication which he will seek to justify, until the last possible moment" and had contended that "the plaintiff is not entitled to know what the defence is purporting to justify" (at [60]). In the face of such an admission, the view reached by the majority that further particulars were appropriate is perhaps not surprising. 23The critical question in the present case is whether the decision in Hore-Lacy recognises a discrete species of the common law defence of justification or whether it is properly confined in its application to matters of pleading and practice in the State of Victoria.

Pleading objected to in the present case 24Under the heading "Common Law - Hore-Lacy", the defence pleads four "alternative meanings" the justification of which is clearly intended to be relied upon by way of defence. 25Dr Bateman submits that the form of pleading approved in Victoria by the decision in Hore-Lacy has no place in New South Wales, having regard to the different practice and procedure in this State. He further submits that such a pleading is indeed apt to cause confusion at the hearing and, accordingly, that those paragraphs of the pleading should be struck out. 26It is convenient to consider the argument by reference to the first matter complained of. Dr Bateman has identified 15 imputations allegedly conveyed by that article (paragraphs 7 and 8 of the Statement of Claim). The Hore-Lacy defence is pleaded in the following terms: "In further and alternative answer to paragraphs 7 and 8 of the Statement of Claim, the first, third and fifth defendants say as follows: (a) that the first matter complained of meant and was understood to mean: (i) The first plaintiff used his wealth to exploit doctors working at Primary Health medical centres by forcing them to work longer hours against their will; (ii) The first plaintiff, as Managing Director of Primary Health Care, makes unwarranted threatening demands against doctors working at Primary Health Care Centres; (iii) The first plaintiff, as Managing Director of Primary Health Care, treated doctors who were leaving Primary Health Care unreasonably; (iv) The first plaintiff is a callous employer. (the "First Alternative Meanings"); (b) that the First Alternative Meanings were substantially true; (c) that the First Alternative Meanings are not different in substance from [the meanings relied upon by Dr Bateman]." 27The pleading follows the same form in respect of each of the other matters complained of and the alternative meanings are in each case the same. 28As a preliminary point, Dr Bateman submitted that the defence is bad in form because it fails to link any individual Hore-Lacy meaning with any individual imputation relied upon by Dr Bateman. It was submitted that, as presently pleaded, the defence asserts that each alternative meaning does not differ in substance from each other and also does not differ in substance from each of the 15 imputations relied upon by Dr Bateman in respect of the first and second matters complained of or the nine imputations relied upon by him in relation to the third and fourth matters complained of. 29While there was some uncertainty at the hearing as to whether the defendants had already provided particulars addressing that complaint, Mr Dawson, who appears for the defendants, responded by accepting that, if the Hore-Lacy pleading is to stand, such particulars will have to be provided (T46-47). 30In my view, that exchange only serves to highlight the force of the remarks of Callaway JA set out above. The defence of justification at common law requires proof that what was published was true in any meaning properly left to the jury. The task contemplated by the parties of marrying imputation with alternative meaning would unnecessarily complicate that relatively simple proposition. It would elevate considerations of procedural fairness and efficiency into a rule (cf Chakravati at [56]). 31Separately, it was submitted on behalf of Dr Bateman that the pleading was liable to be struck out on the "factual basis" that the contention that the alternative meanings relied upon by the defendants are not different in substance from those relied upon by Dr Bateman (which is pleaded in accordance with the requirements of the decision in Hore-Lacy) is manifestly unarguable. On a cursory comparison of the defendants' Hore-Lacy meanings with the plaintiff's imputations, that submission appears to have some force, but having regard to the concession that the defendants should link each individual Hore-Lacy meaning to the relevant imputation relied upon by Dr Bateman, there is no utility in deciding that issue at this point. 32The main issue argued on behalf of Dr Bateman was the question of principle whether the approach approved in Hore-Lacy should have any operation in New South Wales. 33The argument in respect of the Hore-Lacy pleading was helpfully summarised in the written submissions prepared by junior counsel for Dr Bateman, as follows: "(a) The Hore-Lacy defence is not a substantive defence at all. (b) It is a pleading technique, developed and maintained in jurisdictions where pleading practices grant latitude to a plaintiff to contend at trial for meanings falling "within" his or her pleaded case, and without formally amending his or her imputations. (c) As a matter of fairness defendants faced with that possibility (but not otherwise) ought to be permitted to anticipate such possible lesser meanings in advance and to meet them, but if they do so, then they ought to have to re-plead them. (d) In New South Wales, under the old Act, imputations were the cause of action. However even under the new Act, despite the change in the substantive law, plaintiffs are strictly held to their imputations - if they seek at trial to advance lesser or variant meanings, they are required to amend (if permitted to do so). (e) It is no answer to this point to note (correctly) that both the statutory provisions of the Act and the common law of defamation apply uniformly throughout Australia. Once the practice in question is seen as just that - a practice - it must take into account other aspects of the prevailing practice in the jurisdiction in which it is applied. Put another way, Hore-Lacy is not wrongly decided; it simply has no application in New South Wales based on current judicial practice." 34Dr Bateman submitted that the vice to which the Hore-Lacy requirement is directed (the possibility that the tribunal of fact will proceed on a meaning different from that contended for by the plaintiff) does not arise in New South Wales because the prevailing practice in this State already addresses it. 35In particular, it was noted that the requirement of precision in the pleading of imputations in New South Wales survived the enactment of the 2005 Act. Of particular importance in the present case are the following provisions of the Uniform Civil Procedure Rules (the parties did not address me as to whether those rules are nationally uniform). 36Rule 14.30(2) requires the plaintiff to specify each imputation on which he or she relies. Rule 14.30(3) prohibits a plaintiff from relying on two or more imputations unless they differ in substance. 37Rule 14.31(2) requires a defendant pleading the defence of justification, whether under s 25 of the Defamation Act 2005 or at common law, to specify what imputation or imputations the defence is pleaded to. 38Rule 14.32(2) provides that a defence of justification under the Act or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true. The requirement as to particulars of such a defence is to include "particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation in question was substantially true" (r 15.22(2)). 39In my view, those rules plainly contemplate that the defence of justification at common law must, in this State, meet the case pleaded by the plaintiff as to the meaning of the matter complained of. 40The practice in this State in the conduct of defamation trials reflects that proposition. Since they must differ in substance, each pleaded imputation is taken to comprehend all imputations that do not differ in substance from it. On that understanding, the jury is not asked "has the plaintiff been defamed by the matter complained of?" but, as to each imputation complained of by the plaintiff, whether that imputation or any imputation which does not differ in substance from that imputation was conveyed and, if so, whether it was defamatory of the plaintiff. Unless each of those questions is answered "yes", the plaintiff fails and no occasion arises to consider any positive defences. 41The contention that the decision in Hore-Lacy does not create a specific defence is plainly right, in my view. What the decision establishes is a principle relating to the proper manner of pleading the defence of justification at common law. The critical question is whether that principle is peculiar to the State of Victoria, having regard to the laws and usages of that State, or whether it has national application, particularly in the context of uniform national law. 42As explained in the judgment of Brennan CJ and McHugh J in Chakravarti, defences are either by way of denial or confession and avoidance. Their Honours explained, on that basis, that a plea of justification to a meaning which the plaintiff has not pleaded is not a good defence. A proper defence will either deny the meaning contended for or confess and avoid it (by proving it to be substantially true). A premise of that proposition is the equally unexceptionable proposition that the case to be defended is that pleaded by the plaintiff. As already noted, that is a premise reflected in the rules of court that apply to defamation actions in this State. 43The decision in Chakravati acknowledges however that a plaintiff may succeed on an alternative meaning without amending his pleading, provided that it is not substantially different from the pleaded imputations (a qualification which comprehends the proposition that the alternative meaning must not be more serious than the pleaded imputations). But that is because, as I would understand it, success on that basis would fall more or less within the scope of the pleaded case. If it did not, amendment would be necessary. 44How did those principles give rise to the perception that it could be necessary or appropriate for a defendant to defend the pleaded case by re-pleading the meanings pleaded by the plaintiff so as to plead alternative or "nuance" meanings that are not substantially different from those pleaded? At first blush, as Lord Hoffmann put it in a different context, it is a notion that would be taken seriously only by a lawyer: Berezovsky v Michaels [2000] 1 WLR 1004 at 1023. 45The explanation probably lies in the fact that, in Hore-Lacy, the defendants had expressly asserted that they would argue that the matter complained of did not mean what the plaintiff said it meant. They would not say what they said it meant but asserted that what it meant was true. 46Taking a different approach from that taken by Dr Bateman in the present case, the plaintiff pressed to know the alternative meanings contended for. In the circumstances, there was some warrant, for fairness, for acceding to the plaintiff's request. 47Dr Bateman does not wish to know the alternative meanings contended for by the defendants in the present case. It follows that the defendants are not required to plead them, as was held to be the case in Hore-Lacy. 48The more difficult question is whether the defendants can be precluded from pleading such alternative meanings. Dr Bateman's argument is, in short, that they are unnecessary and embarrassing. They are unnecessary because Dr Bateman will not, at the trial, ask the judge to leave to the jury any alternative meaning (not substantially different from and not more injurious than the imputations he has pleaded). He is content to be confined to the approach adopted in this jurisdiction of obtaining answers to the question whether each of his imputations or imputations which are not substantially different from those imputations are conveyed and are defamatory. 49In my view, once it is recognised that there is no occasion for the pleading of alternative meanings in accordance with the decision in Hore-Lacy, it follows that the pleading is embarrassing and should be struck out. As submitted on behalf of Dr Bateman, it remains the common law of Australia that, in the absence of any suggestion that a plaintiff will seek (or be permitted) to depart from his or her pleaded case, a defendant must defend the plaintiff's pleaded case. That is, the defendant must either deny the plaintiff's meanings or confess and avoid them. 50It follows, in my view, that the decision in Hore-Lacy has no work to do in New South Wales having regard to the law and practice in this State. Mr McClintock, senior counsel for Dr Bateman, asked rhetorically what question would be posed to the jury in respect of the alternative meanings contended for? With great respect to Mr Dawson, no satisfactory answer was given to that question. Upon analysis, having regard to the form of question posed in respect of the plaintiff's meanings (and the consequent constraint on the plaintiff to be bound in substance to those meanings), the defendants' reliance upon alternative meanings makes no sense. 51That is the firm conclusion I have reached on the strength of my analysis of the principles outlined above. The defendants submitted, however, that I am precluded by authority from giving effect to that conclusion. In particular, it was submitted that the Hore-Lacy defence has been approved by the Court of Appeal of New South Wales in the following authorities: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [21], [40] and [233] in which McColl JA concluded that Hore-Lacy was not "plainly wrong" and "should be followed in New South Wales"; Ipp and Tobias JJA agreeing; John Fairfax Publications v Zunter [2006] NSWCA 227; Fairfax Media Publications v Kermode (2011) 81 NSWLR 157 at [41]-[59] per McColl JA; Beazley and Giles JJA agreeing. See also John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 and Snedden v Nationwide News Pty Ltd [2011] NSWCA 262. 52It was further submitted that the defence has been approved by intermediate appellate courts in other states of Australia: Hore-Lacy itself [(2000) 1 VR 667]; Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387. 53Mr Dawson also drew my attention to my own decision in Hyndes v Nationwide News [2011] NSWSC 633 at [37]-[49] where, he submitted, I recognised the availability of the defence "independently of a pure defence of justification at common law". He submitted that none of those courts has understood the Hore-Lacy defence to be a mere "pleading technique". 54Dr Bateman submitted that none of those authorities is binding on this issue. The submission was principally directed to the decisions in Hitchcock and Kermode. It was submitted that neither decision decided anything about whether the Hore-Lacy practice could apply consistently with the New South Wales practice that a plaintiff is confined to his pleaded imputations. 55I confess I have not found this issue easy to determine. Although not binding, there can be little doubt that the decision in Kermode sets out the considered view of probably the most experienced defamation lawyer on the Court of Appeal, McColl JA, whose judgment enjoyed the concurrence of the President and Giles JA. After a careful review of the authorities, her Honour expressly concluded (at [59] and [86]) that a defendant can justify at common law by pleading nuance imputations. However, it may be accepted that those remarks were not specific to the practice in New South Wales, were not part of the ratio of the decision and were made in circumstances where the point now argued had not been raised for the assistance of the Court. 56In determining the present application, I must also have regard to the mandatory considerations of ss 56 to 58 of the Civil Procedure Act. Those considerations militate strongly in favour of disallowing a form of pleading which I have concluded makes no sense in the context of the practice in this State. 57In some trepidation, I have concluded that the appropriate course is to strike out the parts of the pleading objected to as having a tendency to cause prejudice, embarrassment or delay in the proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2014