Besser v Kermode

Court of Appeal (NSW)|2011-04-19|Before: Beazley JA, Giles JA, McColl JA, Hunt J

Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667 Dougherty v Nationwide News Pty Ltd [1969] 1 NSWR 189 Federal Commissioner of Taxation v Murray [1990] FCA 69; (1990) 21 FCR 436 Hadzel v De Waldorf (1970) 16 FLR 174 Hall v Hannaford [1999] NSWSC 1197 Hall v Hannaford [1999] NSWSC 838 Hart v Wrenn & Australian Broadcasting Corporation (1995) 5 NTLR 17 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 Howden v "Truth" and "Sportsman" Limited and Another (No 2) (1938) 38 SR (NSW) 287 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108; (2006) 204 FLR 290 Kennett v Farmer [1988] VR 991 Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147; [1986] 1 All ER 177 Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 Newnham v Davis (No 2) [2010] VSC 94 Packer v Mirror Newspapers Ltd (1969) 90 WN (Pt 1) NSW 308 Perkins v Harris [1995] NSWCA 364 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 24 Plato Films Ltd v Speidel [1961] AC 1090 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000; [1986] All ER 84 Prager v Times Newspapers Ltd [1988] 1 WLR 77; [1988] 1 All ER 300 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Random House Australia Ltd v Abbott [1999] FCA 1538; (1999) 94 FCR 296 Robinson v Laws [2003] 1 Qd R 81 Rofe v Smiths Newspaper Ltd (1924) 25 SR (NSW) 4 Singleton v Ffrench (1986) 5 NSWLR 425 Sutherland v Stopes [1925] AC 47 Thompson v His Honour Judge Byrne [1999] HCA 16; (1999) 196 CLR 141 Viscount De L'Isle v Times Newspapers Ltd [1988] 1 WLR 49; [1987] 3 All ER 499 Waterhouse v Hickie (1995) Aust Torts Reports 81-347 West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028; (2002) 56 NSWLR 89 Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 Wookey v Quigley [2009] WASC 284 Texts Cited: P Milmo and W V H Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell

Defamation Bill 2005, Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates, (Hansard), 13 September 2005 Civil Law (Wrongs) Amendment Bill (No 2), Second Reading Speech, Australian Capital Territory Legislative Assembly, Parliamentary Debates (Hansard) 15 December 2005

Defamation Bill 2006, Second Reading Speech, Northern Territory, Legislative Assembly, Parliamentary Record No 5, (Hansard) Volume LXXVI, 22 February 2006 SCAG Working Group of State and Territory Officers, Proposal for Uniform Defamation Laws, July 2004

New South Wales Law Reform Commission, Discussion Paper 32, Defamation Category: Principal judgment Parties: Fairfax Media Publications Pty Ltd - First Appellant Fairfax Digital Australia & New Zealand Pty Ltd - Second Appellant Linton Besser - Third Appellant Reginald Lionel Kermode - Respondent Representation: Counsel: Mr R G McHugh SC with Mr M A Polden - appellants Mr K P Smark SC with Ms S T Chrysanthou and Mr P A Maddigan - respondent Solicitors: Johnson Winter & Slattery - appellants Pigott Stinson Lawyers - respondent File Number(s): 2010/297885 Decision under appeal Jurisdiction: 9111 Citation: Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 Date of Decision: 2010-08-04 00:00:00 Before: Simpson J File Number(s): SC 2009/297885

Headnote [This headnote is not to be read as part of the judgment] The appellants, Fairfax Media Publications Pty Ltd, Fairfax Digital Australia & New Zealand Pty Ltd and Linton Besser, published three publications concerning Mr Reginald Lionel Kermode, the respondent. He brought defamation proceedings alleging each publication carried two imputations, the second being expressed to be alternative to the first in each case. The appellants sought to defend three of the respondent's imputations on the ground that they were substantially true (s 25 Defamation Act 2005 (NSW) (the "2005 Act")) and also pleaded that each of the respondent's imputations found not to be substantially true was published contextually to such other imputations pleaded by the respondent as may be found to be substantially true (s 26, 2005 Act). The respondent moved pursuant to Uniform Civil Procedure Rules 2005 (NSW) 14.28(1) to strike out those paragraphs of the contextual truth defence which pleaded back his imputations. The primary judge acceded to that application. Held, per McColl JA (Beazley JA and Giles JA agreeing) granting leave to appeal and dismissing the appeal: 1 A defence of contextual truth pursuant to s 26 of the 2005 Act must defeat the whole defamatory matter. 2 Contextual imputations pleaded pursuant to s 26 of the 2005 Act must be in addition to those "of which the plaintiff complains". 3 On its proper construction, s 26 of the 2005 Act does not permit a defendant to plead back any of the plaintiff's imputations as a contextual imputation to establish a defence of contextual truth. Nature of cause of action in defamation at common law, pursuant to s 9 of the Defamation Act 1974 (NSW) (the "1974 Act") and pursuant to s 8 of the 2005 Act and common law defences of justification, partial justification and the pleading of nuance imputations and the defence of contextual truth under s 16 of the 1974 Act discussed.

ORDERS 1 Grant leave to appeal. 2 Appellant to file the draft notice of appeal in a form which conforms to the issue raised on appeal within 7 days of these orders. 3 Appeal dismissed with costs.

Judgment 1BEAZLEY JA: I agree with McColl JA. 2GILES JA: I agree with McColl JA. 3McCOLL JA: Fairfax Media Publications Pty Ltd, Fairfax Digital Australia & New Zealand Pty Ltd and Linton Besser seek leave to appeal from the decision of Simpson J in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852. They seek to complain about her Honour's conclusion that it was not open to defendants relying on the defence of contextual truth, for which s 26 of the Defamation Act 2005 (NSW) (the "2005 Act") provides, to "plead back" the plaintiff's imputations as part of that defence. 4The Court heard the argument on the question of whether leave to appeal should be granted and the substantive appeal concurrently. For the reasons which follow I am of the view that leave to appeal should be granted, but the appeal should be dismissed.

Legislative Scheme 5Section 26 of the 2005 Act provides: "26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations." 6In determining the proper construction of s 26 it is the duty of a court to give effect to the purpose of Parliament as expressed in the language of the Act. Consideration of that purpose is not confined to the provision being construed. As Allsop P explained (with Giles, Hodgson, Tobias and Macfarlan JJA's concurrence) in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 (at [12]) by careful analysis of extensive authority, the interpretation of s 26 must be approached as follows: (a) It is the language of Parliament that must be interpreted and construed. (b) A court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. (c) Fundamental to the task is giving close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. (d) General words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. 7With those observations in mind I turn first to the statutory context in which s 26 appears. 8The Long Title to the 2005 Act describes it as "An Act to enact in New South Wales provisions to promote uniform laws of defamation in Australia". The following provisions of the 2005 Act should be noted: " 3 Objects of Act The objects of this Act are: (a) to enact provisions to promote uniform laws of defamation in Australia... 6 Tort of defamation (1) This Act relates to the tort of defamation at general law. (2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication). (3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the following legislation had never been enacted: (a) the Defamation Act 1958, (b) the Defamation Act 1974. 8 Single cause of action for multiple defamatory imputations in same matter A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation about the person is carried by the matter. 24 Scope of defences under general law and other law not limited (1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability. (2) If a defence under this Division to the publication of defamatory matter may be defeated by proof that the publication was actuated by malice, the general law applies in defamation proceedings in which the defence is raised to determine whether a particular publication of matter was actuated by malice. 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true." (emphasis added) The phrase emphasised in s 25 prefaces each other defence under the 2005 Act, save that dealing with the defence of qualified privilege for the provision of certain information (s 30) where it appears in a form logical to the grammatical structure of the provision. 9Certain provisions of the Defamation Act 1974 (NSW) (the "1974 Act") should also be noted: "9 Causes of action ... (2) Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient: (a) in addition to any cause of action which the person defamed may have against the publisher for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication, and (b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient. 15 Truth generally (1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section. (2) It is a defence as to any imputation complained of that: (a) the imputation is a matter of substantial truth, and (b) the imputation either relates to a matter of public interest or is published under qualified privilege. 16 Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff."

Statement of the case 10The proceedings concern three publications made on 19 September 2009: (1)An article published in the print edition of the Sydney Morning Herald; (2)An article published on the internet version of the same newspaper which was in essentially identical terms; and (3)A film published on the website of the Sydney Morning Herald. The first two publications appeared under the heading "Free Ride: Mr Taxi's $20 million windfall". The third, the film, was entitled "The Taxi Tsar". The primary judge concluded (at [7]) that it was plain from the content of each publication that the respondent was the person referred to as "Mr Taxi" and "The Taxi Tsar". 11The respondent pleaded in paragraph 5 of his Statement of Claim that the first and second publications each carried the following imputations: "(a) The plaintiff had obtained a 20 million dollar windfall for his companies by improperly influencing public servants and politicians in his favour by conferring benefits upon them; (b) Alternatively to (a), the plaintiff had attempted improperly to influence public servants and politicians in his favour by conferring benefits upon them." 12The respondent pleaded in paragraph 6 of his Statement of Claim that the third publication carried the following imputations: "(a) The plaintiff had acted improperly in that he had caused large donations to be made to the Labor Party and thereby maintained his companies' rights in about 11 million dollars' worth of free taxi plates; (b) Alternatively to (a), the plaintiff had acted improperly in that he had caused large donations to be made to the Labor Party in an attempt to maintain his companies' rights in about 11 million dollars worth of free taxi plates." 13The appellants sought to defend the respondent's imputations 5(b), 6(a) and 6(b) on the ground that they were substantially true: s 25, 2005 Act. Next they pleaded in paragraphs 5(a)(i), 9(a)(i) and 13(a)(i) that each of the respondent's imputations found not to be substantially true was published contextually to such other imputations pleaded by the respondent as may be found to be substantially true. They also pleaded another seven contextual imputations. They contended that by reason of the substantial truth of one or more of the respondent's imputations and/or the contextual imputations they pleaded, such of the imputations as may be found to arise did not further injure the respondent's reputation. 14The respondent moved pursuant to Uniform Civil Procedure Rules 2005 ("UCPR"), 14.28(1) to strike out those paragraphs of the contextual truth defence which pleaded back his imputations and also three of the appellants' contextual imputations. As to the latter, the respondent contended that because they did not differ in substance from his imputations they were not "in addition to [his] imputations": s 26(a), 2005 Act; see primary judgment (at [62]). The primary judge conducted a separate trial to determine the issues raised by the strike-out application: UCPR 28.2.

Primary judgment 15The principal question raised by the strike-out application was whether the defence of contextual truth for which s 26 of the 2005 Act provides permits a defendant to "plead-back" any or all of a plaintiff's imputations. The primary judge concluded it did not. 16The primary judge observed (at [19]) that the appellants' defence was "apt to a pleading under s 16 of the 1974 Act ... [and] uses the language of that section, ... not the language of s 26." Her Honour then considered the genesis of the contextual imputation defence for which s 16 of the 1974 Act provided, including (at [22] - [23]) discussing the development of the form of plea on which the appellants sought to rely, "of signalling reliance, for the purposes of the contextual truth defence, upon imputations pleaded by the plaintiff" - a plea which became known as ''pleading-back". 17The primary judge said of this form of pleading (at [24]): "The 'pleading back' mechanism is an anticipatory measure. By 'pleading back' the defendant seeks to anticipate the outcome of a defence of truth to the imputations pleaded by the plaintiff, and to take advantage of any that are successfully justified by incorporating them in the catalogue of contextual imputations pleaded and proven true." 18Her Honour added: "26. ... The practice had the considerable benefit of achieving the objective of the enactment of s 16: ie after determination of the preliminary issues of: (i) whether the imputations pleaded by the plaintiff were conveyed and were defamatory; and (ii) whether the contextual imputations pleaded by the defendant were conveyed and were defamatory; and (iii) which (if any) of all of those imputations had been proven to be true, of putting before the jury the ultimate question: of all those imputations conveyed, and defamatory, and having regard to those proven to be true: was the plaintiff's reputation further injured by those imputations of which the defendant had not proved truth? The exercise was a balancing one; all true defamatory imputations were put in one side of the scale, all unproven defamatory imputations in the other. If the defamatory impact of those that were true equalled or outweighed those that were not true, then the defence of contextual truth would succeed - because the plaintiff's reputation would not be further injured by the publication of those that were untrue. If, on the other hand, the defamatory impact of those that were true did not equal or outweigh those that were untrue, it could not be said that the plaintiff's reputation was not further injured by the publication of the unproven defamatory imputations, the defence would fail, and the plaintiff would be entitled to a verdict. (Whether damages would be adjusted by reference to any proven imputations is a question not argued and to which I refer without attempting to decide.) 27. That was an eminently sensible way of achieving justice between the parties and of achieving the objects of the s 16 defence. It would have defeated the purpose of s 16 to exclude from the ultimate balance any imputations pleaded by the plaintiff, and successfully defended as true by the defendant." 19Having set out the position under the 1974 Act, the primary judge turned to consider whether the position remained the same under s 26 of the 2005 Act. Her Honour (at [29]) was in "no doubt that it was intended to do so". However, as she observed, there are "significant differences between the language of s 16 and that of s 26." It is those differences upon which the respondent relied to contend that the "pleading-back" practice was no longer available. 20The primary judge considered (at [30]) that the force of the proposition that s 26 was not intended to effect any substantive change in the manner in which the defence of contextual truth operated appeared from extrinsic materials to which she could have regard pursuant to s 34 of the Interpretation Act 1987 (NSW), being the Second Reading Speech to the Bill which became the 2005 Act and the Explanatory Note which accompanied its introduction. The primary judge commented (at [32]) that that Explanatory Note "suggest[ed] that the intention of the NSW legislature was, effectively, to re-enact s 16, with appropriate modifications to reflect the variations effected to the defence of truth." However, her Honour concluded (at [36]), that although the intention behind the enactment of s 26 was to maintain the status quo, an analysis of its language meant that "what was enacted failed to do so." 21The critical textual difference, according to her Honour was: "37. Section 26 provides a defence of contextual truth where the imputations pleaded by the defendant are ' in addition to the defamatory imputations of which the plaintiff complains '. That is to be contrasted with s 16, which provided a defence of contextual truth where ' an imputation is made by [a] publication ... and another imputation is made by the same publication ... ' 38 Section 16 required focus upon each imputation pleaded by the plaintiff, compared with 'another' (that is, any other) imputation made by the same publication. There is nothing in s 16 that precludes 'another imputation' being another imputation pleaded by the plaintiff. It may be that that was because by s 9 of the 1974 Act, each imputation published gave rise to a cause of action. Whether that was the explanation or not probably does not matter. By contrast with s 16, the words 'in addition to the defamatory imputations of which the plaintiff complains' in s 26 cannot be contorted to include imputations pleaded by the plaintiff." (emphasis in original) 22The primary judge was also of the view (at [44], [48]) that she could not avoid the conclusion for which the respondent contended by taking a purposive approach to the construction of s 26 because to do so would amount to an impermissible re-writing of the Act: see Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214 (at 235). 23The primary judge recognised (at [49]) the significance of the fact that s 26 was part of the enactment of uniform national defamation legislation and that while she might be persuaded that the New South Wales legislature did not intend to change the availability of the practice of "pleading-back", such an intention could not be attributed to the legislatures of other States and Territories which had no pre-existing equivalent. 24Her Honour departed (at [50] - [51]), with some diffidence, from the contrary view of s 26 which Nicholas J took in Corby v Channel Seven Sydney Pty Ltd (New South Wales Supreme Court, unreported, 20 February 2008) where his Honour held in an ex tempore judgment: "19 It seems to me that when one turns to the wording of s 26(a) Defamation Act 2005 that nothing can be taken from it which would preclude the continuation of that practice. As I construe the words of s 26(a), I hold that they specify the characteristics, or features, of a contextual imputation, and that these words effectively adopt and follow the language of Hunt J in the passages from Allen , to which I have referred. 20 What it comes down to, it seems to me, is that under the Defamation Act 2005 a defendant is required to defend each imputation of which the plaintiff complains, and that applies, as for example the verbiage of s 25, the defence of justification, and of s 26, the defence of contextual truth, makes plain. 21 As I have already indicated, it has long been accepted that a defendant may adopt other imputations of which the plaintiff complains, as contextual to the particular imputation to be defended, and that was the practice under the Defamation Act 1974. In such circumstances those other imputations are taken to be imputations in addition to the imputation defended on this ground. In my opinion that approach is one properly to be taken in dealing with the pleading of a defence under s 26 of the Defamation Act 2005, and what is open to a defendant under it." 25Finally, her Honour said (at [56]): "So strongly am I of the view: (i) that the construction I have adopted is not only correct, it is the only one open; (ii) that that result does not achieve what the Parliament had in mind; and (iii) that that result significantly diminishes the value of the s 26 defence; that I propose, through the avenues available, to draw these reasons to the attention of those charged with the responsibility of statutory reform." 26The primary judge then considered whether the contextual imputations pleaded by the appellants differed in substance from those the respondent pleaded. Although the appellants originally complained of her ruling adverse to them on this issue, they did not pursue this matter on appeal for reasons it is unnecessary to elaborate.

Consideration 27Mr R G McHugh of Senior Counsel, who appeared for the appellants with Mr M A Polden, substantially accepted that on a purely textual basis, s 26 of the 2005 Act admitted only of the primary judge's interpretation. His submissions tended to conform to the approach of the appellants' pleading of the s 26 defence which, as the primary judge observed (at [19]), was "apt to a pleading under s 16 of the 1974 Act." His argument rested heavily on the legislative and jurisprudential antecedents of s 16. While he accepted that the 2005 Act was legislated with the purpose of "promot[ing] uniform laws of defamation in Australia" (s 3(a), 2005 Act) he pressed upon the Court the proposition that it would be a manifestly absurd or unreasonable construction (see s 34(1)(b)(ii), Interpretation Act ; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (at [69], [78])) not to construe s 26 in a manner which preserved the scheme which existed under s 16 of the 1974 Act. 28Mr McHugh also sought to gain comfort from the primary judge's conclusion (at [32]) that the extrinsic materials to which her Honour referred "suggest that the intention of the NSW legislature was, effectively, to re-enact s 16, with appropriate modifications to reflect the variations effected to the defence of truth." 29Mr K P Smark of Senior Counsel, who appeared for the respondent with Ms S T Chrysanthou and Mr P A Maddigan, contended that the logic of the 2005 Act favoured the primary judge's construction of s 26. Such a construction, he submitted, accommodated the interests of the various States and Territories in achieving a uniform defamation law. 30In order to understand the changes wrought by the 2005 Act, it is necessary to have regard to its legal and historical context.

Legislative context 31The 2005 Act and its interstate counterparts were the product of an agreement between the Attorneys General of the States and Territories to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation. It is appropriate, in my view, in considering the construction of s 26 to have regard to extrinsic materials notwithstanding that they do not all fall within the description of extrinsic materials referred to in s 34(2) of the Interpretation Act . That list is inclusive, not exhaustive, and extends to any material capable of assisting in the ascertainment of the meaning of the provision: s 34(1), Interpretation Act ; Federal Commissioner of Taxation v Murray [1990] FCA 69; (1990) 21 FCR 436 (at 448 - 449) per Hill J (Sheppard J agreeing); Ametex Fabrics Inc v C & F Fabrics Pty Ltd [1992] FCA 529; (1992) 38 FCR 415 (at 424) per Wilcox J. Further, the extrinsic materials referred to below explain the background to the adoption throughout Australia of substantially uniform defamation legislation - all of which have a provision identical to s 26: see Thompson v His Honour Judge Byrne [1999] HCA 16; (1999) 196 CLR 141 (at [35]) per Gleeson CJ, Gummow, Kirby and Callinan JJ. 32The Attorneys General were concerned that "the defamation laws in each Australian jurisdiction had progressively diverged since the mid-nineteenth century", a situation which became unworkable as the borders between the States and Territories "collapsed" under the weight of interstate publication: New South Wales Attorney General, the Hon Bob Debus MP, Defamation Bill 2005, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates , (Hansard), 13 September 2005 (at 17638). In an attempt to bring those laws into alignment, they commissioned a report from law officers on defamation law reform options which was adopted by State and Territory Attorneys General in July 2004: Mr J Stanhope, Chief Minister of the Australian Capital Territory, Civil Law (Wrongs) Amendment Bill (No 2), Second Reading Speech, Australian Capital Territory Legislative Assembly, Parliamentary Debates (Hansard) 15 December 2005 (at 4883). 33The July 2004 Report was entitled "Proposal for Uniform Defamation Laws". It set out a proposed framework for uniform State and Territory defamation laws. In considering the defence of truth, the Report recorded (at 4.9.4) the differing positions in the various jurisdictions namely that truth alone was a defence in South Australia, Victoria, Western Australia and the Northern Territory, that in the Australian Capital Territory, Queensland and Tasmania it was necessary to prove both truth and public benefit, and in New South Wales a truth and that the public interest test applied. The Report did not refer to the alternative qualified privilege rider to New South Wales' truth defence: s 15(2)(b), 1974 Act. It suggested that having regard, apparently, to the "reality ... that truth is not in issue in the vast preponderance of matters that are litigated ... a defence of 'truth alone' may provide adequate protection against defamatory statements". There was no reference in the Report to a defence of contextual truth. 34According to Chief Minister Stanhope's Second Reading Speech, thereafter further consultation occurred, leading to the preparation of a model defamation bill which was supported by all State and Territory Attorneys General. The reference by the Chief Minister to a "model bill" was, presumably, to the Model Defamation Provisions prepared by the Parliamentary Counsel's Committee and approved by the Standing Committee of Attorneys General on 21 March 2005. The model provided for a defence of contextual truth in the terms of s 26 of the 2005 Act. 35The Model Defamation Provisions were accompanied by an Explanatory Note which was adopted verbatim as the Explanatory Memorandum to the Bill which became the 2005 Act. It was also adopted as the Explanatory Memorandum for the new defamation legislation in the Australian Capital Territory, Queensland, Victoria and Western Australia and was incorporated into Hansard in the Second Reading Speech in South Australia (South Australia, House of Assembly, Parliamentary Debates , 2 March 2005, 1834 at 1837 - 1838 (The Honourable M J Atkinson)). All Explanatory Memoranda adopted the same explanation of the relevant provision providing for the defence of contextual truth as follows: " Clause 26 provides for a defence of contextual truth. The defence deals with the case where there are a number of defamatory imputations carried by a matter but the plaintiff has chosen to proceed with one or more but not all of them. In that circumstance, the defendant may have a defence of contextual truth if the defendant proves: [The relevant provision dealing with the defence of contextual truth was set out)] There is a defence of contextual truth under the existing law of New South Wales. At general law, the truth of each defamatory imputation carried by the matter published that is pleaded by the plaintiff must be proved to make out the defence of justification unless it can be established that the imputations were not separate and distinct but, as a whole, carried a "common sting". In that case, the defence of justification is made out if the defendant can show that the "common sting" is true. See Polly Peck (Holdings) Plc v Trelfold [1986] QB 1000 at 1032. The defence of contextual truth created by the proposed Act, unlike the general law, will apply even if the contextual imputations are separate and distinct from the defamatory imputations of which the plaintiff complains." 36The same Memorandum referred to s 8 of the 2005 Act as "reflect[ing] the position at general law that the publication of defamatory matter is the foundation of a civil action for defamation and reflect[ing] the existing law in all of the States and Territories other than New South Wales. " 37In the Second Reading Speech (at 17638, 17639) the New South Wales Attorney General referred to cl 8 and cl 26 of the Defamation Bill 2005 as follows: "Clause 8 will bring a significant but very welcome change to New South Wales law. Under the present New South Wales law each defamatory imputation or meaning gives rise to a separate cause of action. In all other jurisdictions it is the publication of defamatory matter that gives rise to the action. In a speech to university students some years ago the former Supreme Court defamation list judge, the Hon. Justice David Levine, RFD, lamented the 'excruciating and sterile technicalities' that result from making the imputation the cause of action. His Honour said: 'Fortnight after fortnight I have to deal with arguments concerning whether a pleaded imputation is proper in form and is capable of arising from the relevant publication ... The amount of the court's time, let alone litigants' resources, expended profligately in the determination of what words, sentences and phrases mean is positively scandalous: and this is at the initiation of proceedings ... Matters of principle have been elevated to an obsessive preoccupation, the playthings of forensic ingenuity, fantasy and imagination at the expense of the early, quick and cheap litigation of real issues that affect the people involved in libel actions ... The question is not simply what does a publication mean and whether what it means is defamatory. The jury has to determine, in the no doubt novel environment for the jurors of the courtroom and the jury room, whether the words that constitute the imputation carefully crafted by lawyers are in fact carried by the publication complained of to ordinary reasonable people.' Clause 8 will finally put an end to the needless complexity that His Honour described. Clause 8 reflects the position at common law by making it clear that it is the publication of defamatory matter that is the basis for a civil action for defamation. ... Clause 25 sets out the defence of justification ... [which]... reflects the defence of justification at general law, where truth alone is a defence to the publication of defamatory matter. Perhaps the single greatest obstacle to uniform defamation laws over the past 25 years has been the inability of the States and Territories to reach agreement in relation to the truth defence. [The Attorney General then explained the divergence between the common law and statutory jurisdictions and why, '[d]efendants are much more likely to invoke other defences, such as fair comment or honest opinion, where the truth of the publication is not the central issue']. I fully expect that the proposed change to the law will pass largely unnoticed. Clause 26 provides for a defence of contextual truth. There is already a defence of contextual truth under the existing New South Wales Act. The purpose of the defence is basically to prevent plaintiffs from taking relatively minor imputations out of their context within a substantially true publication." The primary judge commented (at [31]), referring to the Attorney General's explanation of cl 26, that "[t]here is nothing in this to suggest that there was any intention to make any alteration to the manner in which the contextual truth defence operates." 38In due course the same defence of contextual truth was enacted in the defamation legislation of all other States and Territories: see Civil Law (Wrongs) Act 2002 (ACT) s 136; Defamation Act 2006 (NT) s 23; Defamation Act 2005 (Qld) s 26; Defamation Act 2005 (SA) s 24; Defamation Act 2005 (Tas) s 26; Defamation Act 2005 (Vic) s 26; and Defamation Act 2005 (WA) s 26. 39In the Northern Territory the Minister of Justice and Attorney General, Dr Peter Toyne, said (Defamation Bill 2006, Second Reading Speech, Northern Territory, Legislative Assembly, Parliamentary Record No 5 , (Hansard) Volume LXXVI, 22 February 2006 at 1757): "In addition, the bill provides for a new defence of contextual truth. This provides that where defamatory imputations arise from a publication, it is a defence for the defendant to show in the context where some of the defamatory statements are true or substantially true, and others are not true, that the plaintiff's reputation has not been further harmed by the untrue statements. An example is a publication which states that a person was a convicted murderer which was true and had a drink driving conviction which was false. The defendant could argue that in the context of the whole publication the plaintiff's reputation as a convicted murderer was not further harmed by the untrue statement that he or she was also a drink driver. This differs from the current position in the Territory where the plaintiff can separate statements in the publication and sue on the minor defamatory statement which, if considered in the wider context of the publication, does not actually harm the plaintiff's reputation. This state of affairs potentially operates unfairly. The plaintiff may recover damages for the untrue statement even though no further harm to the plaintiff's reputation occurred in the context of the publication as a whole. The new defence of contextual truth addresses this problem by ensuring courts have reference to wider circumstances and content of the publication." 40No other Second Reading speech made in the legislatures of the other States and Territory on the introduction of the new defamation legislation contained any discussion of the contextual truth defence .

The state of defamation law when the 2005 Act was enacted

The common law 41As is apparent from the explanation of s 8 of the 2005 Act set out in the Explanatory Memorandum (see [36]) prior to the introduction of the 2005 Act there was a fundamental difference between New South Wales and all other States and Territories as to what constituted the cause of action and other aspects of the law of defamation, relevantly for present purposes as to the defence of justification and the imputations a defendant could plead. 42Other than in New South Wales, the cause of action was the publication of words defamatory of and concerning the plaintiff. While a plaintiff could plead an article contained a number of "defamatory stings", those "defamatory stings" were not the cause of action: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 (at [311] per Gillard AJA (with whom Winneke ACJ and Warren AJA relevantly agreed); citing Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147; [1986] 1 All ER 177. 43At common law the defence in a defamation case was pleaded to the "matter alleged to be defamatory and not to the particular interpretations which the matter was alleged to convey": Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 24 (at 191-192) per Samuels JA; cited with approval in Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 (at [82]) per Gummow, Hayne and Heydon JJ (Gleeson CJ agreeing). 44At common law a plaintiff who relied on the natural and ordinary meaning of the defamatory words did not have to plead the false innuendos said to have been conveyed: Dougherty v Nationwide News Pty Ltd [1969] 1 NSWR 189 (at 191 - 192); see also Packer v Mirror Newspapers Ltd (1969) 90 WN (Pt 1) NSW 308 (at 309 - 310); cited with approval in Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 193 CLR 519 (at [14]) per Brennan CJ and McHugh J. 45However a practice developed in the 1960s in England of requiring a plaintiff to plead the defamatory imputations in such circumstances, although a plaintiff was not required to plead a defamatory imputation if the words could only mean one particular defamatory imputation, for example, that a person had murdered another person: Herald & Weekly Times Ltd v Popovic (at [306], [312]). The English practice was discussed in Chakravarti (at [15] - [19]). It is, if nothing else, a practice conducive to proper case management: Random House Australia Ltd v Abbott [1999] FCA 1538; (1999) 94 FCR 296 (at [25] - [27]) per Beaumont J (Miles J agreeing).

Justification at common law 46In an action for defamation at common law, the defendant can plead as an affirmative defence that the defamatory matter is true, a defence which is established by proving the "words employed were true in substance and in fact" (Sutherland v Stopes [1925] AC 47 (at 79)), that is to say, the defence meets the sting of the defamation: Herald & Weekly Times Ltd v Popovic (at [274]); see Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 (at [138]). 47As Gillard AJA explained in Herald & Weekly Times Ltd v Popovic (at [306], see also at [279]): "(i) The whole libel that is all the defamatory imputations must be proved as true; it is no defence to prove that part of the defamatory libel is true . The publisher must prove the truth of the defamatory sting. The general rule is that the publisher must prove every injurious imputation which the jury may find in the words complained of. See Digby v Financial News Ltd . (ii) The defence is that the words complained of were true in substance and in fact. This means that the publisher must prove the sting or stings of the libel are true. The publisher need not prove an irrelevant comment or any slight inaccuracy in the article is true. Errors or mistakes of no real substance do not defeat the defence provided they make 'no substantial difference to the quality of the alleged libel or in the justification pleaded for it'. See Alexander v The North Eastern Railway Co and Sutherland v Stopes . Every fact stated must be proven as true, unless immaterial or trivial and which in no way alters the defamatory sting of the article. (iii) A publisher may justify part only of the words complained of provided the part sought to be justified contains a distinct and separate imputation. What is important is that the particular defamatory imputation is severable from the other defamatory imputation and conveys a distinct and separate imputation. See Biddulph v Chamberlayne and Davis v Billing . The plaintiff must not be left in any doubt as to what the defendant seeks to justify. But importantly this partial justification is not a defence to the cause of action, which is the publication of defamatory words. However, it is relevant to the question of damages, and if proven, results in a reduction in damages ." (emphasis added) 48The logic of the principle to which Gillard AJA referred (at 306) that to establish a defence of justification "the publisher must prove every injurious imputation which the jury may find in the words complained of", was discussed by Street ACJ in Rofe v Smiths Newspaper Ltd (1924) 25 SR (NSW) 4 (at 21) when explaining why the New South Wales defence of truth was qualified, at that time, by the public benefit rider as follows: "In England it is a complete answer to a civil action that the defamatory matter complained of was true. The reason upon which this rule of law rests, as I understand, is that, as the object of civil proceedings is to clear the character of the plaintiff, no wrong is done to him by telling the truth about him. The presumption is that, by telling the truth about a man, his reputation is not lowered beyond its proper level, but is merely brought down to it. The law was altered in this respect in New South Wales many years ago. It was felt that to allow past misconduct, or discreditable episodes which were dead and gone, to be revived and dragged into the light of day at will by maliciously minded scandalmongers was too hard upon people who, whatever indiscretions they might have committed in the past, were leading respectable lives; and the Legislature, accordingly, provided that, in an action for defamation, the truth of the matters charged should not amount to a defence, unless it was for the public benefit that they should be published." His Honour's statement was quoted with approval by Gleeson CJ and Crennan J in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 (at [23]). 49However, it should be noted that the emphasis in Gillard J's 306 is on the publisher having to prove "the injurious imputation the jury may find ..." - that is to say, not necessarily the imputation pleaded. In Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 (at 263 - 264) Hunt J explained how a defendant pleading justification at common law could argue that the defamatory matter conveyed only "a lesser meaning inherent in the [plaintiff's] more serious imputation" in anticipation of the jury finding that was the high-water mark of the plaintiff's case, then seek to justify that lesser imputation. 50The defence to which Gillard AJA referred (at 306) was known as partial justification. Such a defence enables a defendant to seek to justify any one of several distinct defamatory meanings raised by a plaintiff's claim: Howden v "Truth" and "Sportsman" Limited and Another (No. 2) (1938) 38 SR (NSW) 287; Hadzel v De Waldorf (1970) 16 FLR 174 (at 179) per Fox J. The defence mitigates the damages the plaintiff might obtain in respect to the unproved material or meaning: Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028; (2002) 56 NSWLR 89 (at [77]) per Levine J; Prager v Times Newspapers Ltd [1988] 1 WLR 77; [1988] 1 All ER 300 (at 308) per Purchas LJ. 51At common law "a defendant taking the defence of justification, [could not] plead that he made some statement other than that complained of by the plaintiff, and then seek to show the truth of that statement, nor was it open to the defendant to plead that the words bore some meaning other than the meaning alleged in the statement of claim and then seek to justify that meaning": see David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667 (at [43]) per Charles JA (with whose analysis and conclusions Ormiston JA substantially agreed) ; Chakravarti (at [8] - [13]) per Brennan CJ and McHugh J. 52Nathan J explained the rationale for this position in Kennett v Farmer [1988] VR 991 (at 995 - 996) as being: "... founded upon the proposition that, as the plaintiff selects what the defamatory words mean, it should be for him to substantiate them. A plaintiff [neither] could nor should be obliged to fight the case upon meanings which the defendant may select. It is for the defendant upon receipt of the statement of claim to choose whether he will plead justification as to the meanings set out by the plaintiff and not for the defendant to seek alternative meanings which have the effect of casting back upon the plaintiff an obligation to displace the defendant's selected meanings. This may be referred to as the 'hijacking the plaintiff's claim' proposition." 53The logic of the common law position can also be seen in the joint reasons of Brennan CJ and McHugh J in Chakravarti in which their Honours considered, and rejected, the proposition that a defence in the form of that approved in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000; [1986] All ER 84 could be pleaded at common law. Such an approach in their Honours' view (at [8]) was "contrary to the basic rules of common law pleadings and in many contexts [would] raise issues which can only embarrass the fair trial of the action" because: "Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of Not Guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant's plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication ." (emphasis added) 54As Handley JA pointed out in John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 (at [42]), while their Honours' dicta did not receive the express endorsement of the other members of the Court, it was followed by intermediate appellate courts in Victoria, Western Australia and South Australia. In Kennett v Farmer (at 1000) Nathan J accepted that "a defendant, when pleading justification of a defamation, [should] be permitted or compelled to provide particulars specifying the ordinary and natural meanings of the words which it seeks to justify". In so doing his Honour followed Lucas-Box v News Group Newspapers Ltd , Polly Peck (Holdings) Plc v Trelford, Viscount De L'Isle v Times Newspapers Ltd [1988] 1 WLR 49; [1987] 3 All ER 499 and Prager v Times Newspapers Ltd . 55Nathan J (at 1000) regarded those decisions as "highly persuasive authority of at least three Courts of Appeal which, at the very lowest, conclude that a defendant is entitled and probably obliged to plead the meanings of the defamatory words he seeks to justify". The obligation to which his Honour referred arose from the necessity that, in accordance with conventional pleading rules, the defendants should "so ... plead their case that the plaintiff knew quite clearly what the defendants were purporting to justify": Lucas-Box v News Group Newspapers Ltd (at 183) per Ackner LJ. 56Nathan J did not consider the nature of the meanings a defendant could particularise by way of justification at common law. That issue was resolved in David Syme & Co Ltd v Hore-Lacey where Charles JA held (at [52] - [54], [58] - [59]) that a defendant could rely on "[a] meaning [which] was not substantially different from and was not more injurious than the meanings pleaded [by the plaintiff]." These are conveniently described as "nuance" meanings. Ormiston JA reached the same conclusion (at [19] - [22]) in agreeing (at [23]) in substance with Charles JA's analysis and conclusions. The author of the Explanatory Note to the Model Defamation Provisions (see [35]) does not appear to have appreciated the "nuance" approach to Polly Peck in Australian jurisprudence - at least insofar as that Note appears to suggest that the "pure" Polly Peck "common sting" position prevailed in common law jurisdictions. 57The practice of permitting a defendant to plead imputations did not alter the position that where a publication contained two or more separate and distinct defamatory statements, the plaintiff was entitled to select one for complaint, and the defendant was not entitled to assert the truth of the others by way of justification: Polly Peck (at 1032) per O'Connor LJ; Herald & Weekly Times Ltd v Popovic (at [318]). The defence was not available as a partial justification: Herald & Weekly Times Ltd v Popovic (at [324]). 58At the time the uniform defamation law was passed throughout Australia David Syme & Co Ltd v Hore-Lacey had been expressly accepted in most common law jurisdictions in this country as stating the extent to which a defendant might plead by way of justification imputations which "differed" from the plaintiff's: see Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314; Advertiser - News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206; John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108; (2006) 204 FLR 290; Betfair Ltd v Nason [2006] ACTSC 111; see also West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387; Hart v Wrenn & Australian Broadcasting Corporation (1995) 5 NTLR 17. The uncertainty of which Levine J wrote in Whelan v John Fairfax Publications Pty Ltd (at [40] - [52]) appears to have been resolved, at least at intermediate appellate level. Such a defence was not, however, available in Queensland, a decision based on ss 4 and 7 of the Defamation Act 1889 (Qld) and the rules of pleading under the Uniform Civil Procedure Rules 1999 (Qld): Robinson v Laws [2003] 1 Qd R 81. 59In summary, at common law in Australia: (a) a defendant seeking to justify defamatory matter had to prove all stings of the defamatory matter relied upon by the plaintiff were substantially true; (b) a defendant seeking to justify defamatory matter could not do so by seeking to plead and justify an imputation with a substantially different sting from that or those pleaded by the plaintiff; a defendant could only plead nuance imputations; and (c) if a defendant could only establish that one of two or more stings relied upon by the plaintiff was substantially true, the defence of justification failed, but the evidence led to establish that defence could be relied upon in mitigation of damages: Channel Seven Sydney Pty Ltd v Mahommed (at [158]); P Milmo and W V H Rogers, Gatley on Libel and Slander , 11th ed (2008) Sweet & Maxwell (at [35.14]) ("Gatley").

Defamation Act 1957 (Tas) 60Prior to the adoption of the uniform defamation laws, s 18 of the Defamation Act 1957 (Tas) (the "1957 Act") afforded a form of contextual truth defence. Section 18 was in substantially the same terms as s 5 of the Defamation Act 1952 (UK) (the "UK Act"), however under the 1957 Act a defendant seeking to justify had to prove it was for the public benefit that the publication complained of should have been made: s 15, 1957 Act. Section 18 provided: "In an action for defamation in respect of words containing two or more distinct charges against the plaintiff, a defence of justification does not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation, having regard to the truth of the remaining charges." 61In Polly Peck (at 1033), O'Connor LJ held that s 5 of the UK Act required the distinct charges against the plaintiff to be founded on separate words which had to be contained in the passages of which the plaintiff complained. Accordingly the provision did not apply if the plaintiff sued in respect of only one of a number of serious allegations in defamatory matter: Gatley (at [11.15]). It accordingly provided a "narrower form of contextual truth defence": New South Wales Law Reform Commission, Discussion Paper 32 , Defamation , (at [6.8]).

The 1974 Act: cause of action and justification 62Pursuant to s 9(2) of the 1974 Act the cause of action in a defamation case was the publication to any recipient of an imputation defamatory of another person. That cause of action was in addition to any cause of action which the person defamed might have had against the publisher for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication and in addition to any cause of action which the person defamed might have had against that publisher for any publication of that matter to any other recipient: s 9(2)(a) and (b), 1974 Act. 63Early in the history of the 1974 Act, it was established that s 9 provided a separate cause of action (subject to s 9(4)) for each defamatory imputation conveyed by the same matter, that is to say, a cause of action for publication of the matter in respect of each such imputation: Petritsis v Hellenic Herald Pty Ltd (at 190) per Samuels JA. The imputation, as an essential ingredient of the cause of action, had to be specified in the plaintiff's pleading: Singleton v Ffrench (1986) 5 NSWLR 425 (at 428) per Mahoney JA; see also Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 (at 162) per Hunt CJ at CL (Mason P and Handley JA agreeing). Each imputation was taken as including all imputations which did not differ in substance from it: Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 771). 64A defendant who sought to justify pursuant to s 15 of the 1974 Act had to answer the imputations specifically pleaded: Petritsis (at 192) per Samuels JA. The defendant had to prove, as well as the substantial truth of the imputation, that it related to a matter of public interest or was published under qualified privilege: s 15(2)(b).

The 1974 Act: contextual truth defence 65The defence of contextual truth under s 16 of the 1974 Act was intended to overcome the limitation on common law pleading to which I have referred (at [51]) precluding a defendant relying on a defence of justification from pleading that the publication complained of made some statement other than that complained of by the plaintiff, and then seeking to show the truth of that statement: Waterhouse v Hickie (1995) Aust Torts Reports 81-347 (at 62, 490), per Priestley JA ( with whose reasons Mahoney JA generally agreed, and Powell JA agreed) . Like the defence of justification under s 15 of the 1974 Act, a contextual imputation had to be not only substantially true, but also had to relate to a matter of public interest or have been published under qualified privilege: s 16(2)(b)(i). 66The changes s 16 wrought to the common law were succinctly explained by Mildren J in Hart v Wrenn & Australian Broadcasting Corporation (at 23) as follows: "It is clear that this statutory defence does significantly alter the common law. First, it abrogates entirely the rule that prohibits a defendant from pleading justification to a separate and several imputation of which the plaintiff does not complain as a defence to another imputation in the same broadcast of which the plaintiff does complain: see Becker v Smith's Newspapers Ltd ( 1929) SASR 469 at 471. Secondly, it establishes a new exception to the principle that where the defendant has published a libel, damage to the plaintiff's reputation is presumed and the plaintiff's cause of action is complete: see Ratcliffe v Evans (1892) 2 QB 524 at 528 per Bowen L.J. In Potts v Moran , supra at p 308 Wells J rejected a submission based on the same general idea. See also Bray CJ, (with whom Sangster J concurred), at p 305." 67Mildren J also considered the practical effects of the defence (at 25), by referring, in part, to Miles CJ's decision in Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1: "I have tried to demonstrate those differences in legal theory [between the defence of contextual truth in New South Wales and the principles that lie behind Polly Peck ], but there are also considerable practical differences, not the least of which is that because contextual truth enables the defendant to prove the truth of a severable assertion of which the plaintiff does not complain, longer (and more expensive) litigation is the inevitable result. As Miles CJ himself recognized, this defence is 'capable of converting a modest and narrow claim by a plaintiff into a wide-ranging expansive and expensive inquiry, the limits of which are set by the defendant's capacity to pay for it.' (p 21)." 68The operation of s 16 was worked out by Hunt J in a series of decisions - Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 and Allen v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, unreported, 2 December 1988) - in terms substantially approved in this Court in Waterhouse v Hickie , Perkins v Harris [1995] NSWCA 364, John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 and John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484. As explained in John Fairfax Publications Pty Ltd v Hitchcock (at [212]): "(a) the defence of contextual truth under s 16 was created to fill a lacunae in the common law by enabling a defendant to justify a meaning of the matter complained of upon which the plaintiff had not relied; (b) a contextual imputation must be another imputation from the plaintiff's imputation; the test of whether it differs in substance from the plaintiff's imputation is a necessary but not sufficient test for 'another' imputation, which requires a difference in kind ( Jones ); it must be a 'truly alternative' imputation ( Hepburn ); (c) a contextual imputation may plead a different 'sting' entirely from that relied upon by the plaintiff; and (d) a plea of contextual truth admits that the matter complained of conveyed the imputations relied upon by the plaintiff, does not seek to justify those imputations (save where a contextual imputation singly, or in combination, pleads back one of the plaintiff's imputations), but seeks to establish that by reason of the substantial truth of the contextual imputation(s), the imputation complained of does not further injure the reputation of the plaintiff." 69Proposition (b) emerges from the language of s 16 ("Where an imputation complained of is made by the publication ...and another imputation is made by the same publication") (emphasis added). In John Fairfax Publications Pty Ltd v Jones (at [15] - [16]) Spigelman CJ explained that that language met "the defect in the common law position [which] was identified in circumstances where the two imputations were of a different character, rather than different levels of generality of the same allegation, e.g. the allegation of murder, theft and failure to attend church referred to in Plato Films Ltd v Speidel [1961] AC 1090 at 1142". 70The concept of pleading back a plaintiff's imputation(s) referred to in proposition (d) (see [68]) appears first to have been approved by Hunt J in Allen v John Fairfax & Sons Ltd in terms which are of significance to the issue in this case. His Honour said: "A defendant is always entitled to adopt any of the plaintiff's imputations as a contextual imputation and to plead a defence of contextual truth based upon that imputation to the cause of action based upon another of the plaintiff's imputations . Similarly, the defendant is always entitled to adopt any of the plaintiff's imputations as one or more of its group of contextual imputations where it relies upon the combined effect of the truth of that group of imputations as so affecting the plaintiff's reputation that the plaintiff's imputation to which that group of contextual imputations is pleaded did not further injure that reputation..." (emphasis added) 71This interpretation of s 16 was said to be "clearly right" by Priestley JA (with whom Mahoney and Powell JJA agreed) in Perkins v Harris (at 6). In Waterhouse v Hickie , to which the primary judge referred (at [21]), which was decided the same day as Perkins v Harris (and concerned the same publication), Priestley JA was more expansive about the practice, saying (at 62,495): "It seems to me to follow from the terms of s 9 of the Defamation Act as interpreted in and since Petritsis ... that in a case such as the present where the plaintiff relies on two imputations, and thus two causes of action, the defendant may plead a s 16 defence to each cause of action relying on whatever contextual imputations the defendant undertakes to justify . The only restriction on imputations available from the material complained of (the publication) will be that the imputation sued on by the plaintiff as a cause of action can not be relied on in a s 16 defence to that cause of action. The reference in s 16(1) to 'another imputation' seems to make that clear (if it was not clear in any event). It would follow as a matter of logic from this approach that separate defences should be pleaded to each imputation (cause of action). However it will often be more convenient for all the contextual imputations to be included in the one paragraph, as here, so long as it is understood that the paragraph must be read distributively in regard to each of the plaintiff's imputations, and that the defendants cannot plead back the plaintiff's imputation in a s 16 defence to that imputation (cause of action)." (emphasis added) His Honour was not, with respect to the primary judge (at [25]), critical of the pleading back practice. 72Levine J considered the pleading-back practice in Hall v Hannaford [1999] NSWSC 1197 ("Hall (No 2) ") in the course of recanting from his earlier decision in the same case ( Hall v Hannaford [1999] NSWSC 838) in which he had held that there was no "statutory basis for the use by the defendant of 'unjustified' imputations 'complained of' by the plaintiff as 'contextual imputations' " - a position his Honour recognised was "heretical" and contrary to Allen v John Fairfax & Sons Ltd and Perkins v Harris. In Hall (No 2) (at [9]) Levine J accepted that "the expression 'another imputation' in s 16(1) is not limited to an imputation not pleaded by the plaintiff". His Honour found comfort for that conclusion (at [11]) in: "[T]he terms of s 16 itself when it isolates the 'imputation complained of', that is, one pleaded by the plaintiff, as the cause of action to which the s 16 defence can be applied. In other words, a defendant can plead back an imputation complained of by the plaintiff but not as a defence to that imputation. A defendant can plead back an imputation complained of by the plaintiff as a contextual imputation which by itself or in combination with others can be weighed against other imputations, (but not the imputation complained of), pleaded by the plaintiff." 73Determining whether by reason of the substantial truth of the contextual imputations any plaintiff's imputation did not further injure his or her reputation (s 16(2)(b), 1974 Act) required the tribunal of fact to weigh or measure the relative worth or value of the several imputations contended for by both parties. The defence failed if the plaintiff's imputations would still have some effect on his or her reputation notwithstanding the effect of the substantial truth of the defendant's contextual imputations: Channel Seven Sydney Pty Ltd v Mahommed (at [139]). 74In summary, under the 1974 Act: (a) The defamatory imputation constituted the plaintiff's cause of action. Each plaintiff's imputation was taken to include those which did not differ in substance from it. Each plaintiff's imputation had to differ in substance. A plaintiff had a cause of action for each imputation; (b) a defendant could seek to justify each imputation in the manner provided by s 15 and thereby defeat the cause of action constituted by that imputation; (c) a defendant could plead as a contextual imputation, and justify in the manner provided by s 16, another (or more) imputation(s) which differed in substance or kind from any imputation or imputations (causes of action) relied upon by the plaintiff and say that by reason of the substantial truth of that (or those) contextual imputation(s) the plaintiff's reputation was not further injured by any imputation not found to be substantially true; (d) a defendant could plead back as a contextual imputation, and justify in the manner provided by s 16, any or all of the plaintiff's imputations to any of the plaintiff's imputations (causes of action), other than the actual imputation to which that s 16 defence was pleaded and say that by reason of the substantial truth of that/those imputations the plaintiff's reputation was not further injured by any plaintiff's imputation found not to be substantially true. Such imputations were "another imputation" within the terms of s 16 because of the requirement that the plaintiff's imputations (cause(s) of action) differ in substance from each other; (e) a defendant could rely upon a combination of (c) and (d); and (f) a plaintiff could recover damages in respect of any imputation (cause of action) not "swamped" by all or any of the contextual imputation(s): Channel Seven Sydney Pty Ltd v Mahommed (at [140]).

Conclusion 75The history of the adoption of uniform laws of defamation in Australia makes it clear that the 2005 Act was a compromise between the common law and statutory jurisdictions. Significantly for present purposes, New South Wales gave up the s 9 imputation cause of action as well as the qualifications of public interest and qualified privilege attached to the defences of truth (s 15, 1974 Act) and contextual truth (s 16, 1974 Act). Without being exhaustive as to the changes the 2005 Act effected to the law of defamation in this State, the common law now governs the identification of the cause of action (s 8, 2005 Act) and all common law defences are retained (s 6(2), s 24). Section 26 uses different language from s 16, language repeated in the defence of contextual truth in all other States and Territories' defamation legislation. 76It is apparent from the foregoing analysis of the justification defence at common law and under the 1974 Act that it is not appropriate to seek to discern the purpose or proper construction of s 26 from s 16 jurisprudence. While the conceptual foundation for the contextual truth defence which became s 16 to some extent informs an understanding of s 26, it cannot be decisive as to its operation in the context of the 2005 Act. 77The shift from the defamatory imputation to the defamatory matter as the cause of action sets the context for understanding s 26. This is first apparent from the direction in s 26 to there being in the circumstances there provided a "defence to the publication of defamatory matter". This refers to the single cause of action constituted by the publication of such matter "even if more than one defamatory imputation about the person is carried by the matter": s 8, 2005 Act. It is language repeated, as I have earlier remarked, in each other defence under the 2005 Act. In contrast, a defence under s 16 (and s 15) of the 1974 Act went to the "imputation complained of". 78This markedly different language highlights the sea-change the 2005 Act has wrought to defamation law in this State. Although s 26 created a new defence for all Australian jurisdictions other than this State, it is framed by s 8 in terms of the common law cause of action. A defence of contextual truth must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings: see [ 47 ] above. Thus s 26 postulates that the defence of contextual truth must carry contextual imputations "in addition to" those "of which the plaintiff complains". 79Secondly, when the tribunal of fact comes to the weighing exercise the contextual truth defence entails (see [73], s 26(b)) it must be able to conclude that because of the substantial truth of the contextual imputations "the defamatory imputations" - that is to say the plaintiff's cause of action - do not further harm the plaintiff's reputation. One again the focus is on comparing the defendant's contextual imputations with the plaintiff's cause of action. 80Thirdly, the use of the definite article in both sub-paragraphs of s 26 (" the defamatory imputations") focuses attention on the plaintiff's imputations as a group - emphasising that the defence has to respond to all the plaintiff's imputations (cause of action). In contrast, s 16 of the 1974 Act used the indefinite article, directing the defence to "any imputation complained of", thus permitting the pleading-back of any other of a plaintiff's imputations to another. 81Fourthly, the words "in addition to ...", as the primary judge pointed out (at [38], [40]), correctly in my view, cannot be " contorted to include imputations pleaded by the plaintiff". To conclude that the phrase "in addition to...etc" connotes an imputation the plaintiff has not relied upon does no more than ascribe its ordinary meaning to it. This is reinforced by the use, in the same paragraph (s 26(a)) of further alternative language emphasising the distinction between the plaintiff's and the defendant's imputations: "one or more other imputations...", the latter being defined as the "contextual imputations". Kaye J took the same approach to the construction of s 26 in the Defamation Act 2005 (Vic) in Newnham v Davis (No 2) [2010] VSC 94 (at [48]) - where the point presently under consideration did not arise. 82Finally, I do not discern any legislative intention in the extrinsic materials to which I have referred that the s 26 defence was to continue the pleading-back practice which prevailed under s 16 of the 1974 Act. Rather, in my view, the structure of the 2005 Act and the language of s 26 belie any such intention. The New South Wales Attorney General said, in the Second Reading Speech to the Bill which became the 2005 Act, in reference to cl 26 that there would be a defence of contextual truth under the 2005 Act, that there had been one under the 1974 Act and that "[t]he purpose of the defence [was] basically to prevent plaintiffs from taking relatively minor imputations out of their context within a substantially true publication". That position is still open under s 26. 83Nor, with respect, would I take any comfort from the Explanatory Note to conclude, as did the primary judge (at [32]), that that note suggested "that the intention of the NSW Legislature was, effectively, to re-enact s 16, with appropriate modifications to reflect the variations effected to the defence of truth." Rather, the Explanatory Note (see [35]) suggested that the proposed contextual truth defence created a new position for States and Territories in which hitherto, as I have explained, only "nuance" imputations could be pleaded by defendants. That new position overcame the common law deficiency discussed above. 84Contrary to Mr McHugh's submission, this construction of s 26 does not lead to a manifestly absurd and unreasonable outcome, let alone ignore the mischief that section sought to achieve. Rather, it is consistent with the language and purpose of all the provisions of the 2005 Act and corresponds with the grammatical meaning of s 26: Project Blue Sky (at [68], [78]). 85Both the language of s 26, the context in which it appears and the extrinsic materials (in particular the explanation of s 26 in the Explanatory Note) make it apparent that the mischief to which the s 26 defence was directed was the defect in the common law position identified in Plato Films Ltd v Speidel (see [69]). Hasluck J understood that to be the purpose of s 26 as it appears in the Defamation Act 2005 (WA): see Wookey v Quigley [2009] WASC 284 (at [62]). A defendant will be able to defeat a plaintiff's cause of action if its substantially true contextual imputation(s) outweigh the plaintiff's defamatory imputations. A plaintiff will not be able to avoid serious stings in defamatory matter by selective pleading. This represents a substantial advance for all jurisdictions other than New South Wales which had no contextual truth defence. 86In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law: (a) prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25; (b) prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true; (c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification; and (d) to the extent the defendant can not prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26.

Pleading 87Two matters of pleading should be discussed. 88Mr McHugh repeated the argument advanced before the primary judge (primary judgment at [41]) that: "... in any case where a defence of contextual truth is pleaded by a defendant, a plaintiff may defeat that defence by simply adopting the contextual imputations as imputations of which he or she complains. In doing so, a plaintiff would lose nothing, because, by pleading the imputations as contextual imputations, the defendant has signalled an intention to prove their truth. By adopting (or, put more pejoratively, 'appropriating') the contextual imputations pleaded by the defendant, the plaintiff could deprive the defendant of a defence under s 26." 89The primary judge accepted that this proposition was correct, but said (at [41]) "it cannot be allowed to dictate the proper approach to statutory construction". I agree with her Honour. The defendant in this scenario will still be able to justify pursuant to s 25 the imputations it had pleaded as contextual imputations, but which the plaintiff has "adopted", but will be unable to defeat the plaintiff's cause of action entirely as it would have sought to do by seeking to have the tribunal of fact weigh its contextual imputations (proved to be substantially true) against the plaintiff's defamatory imputations. The defendant will still have the benefit of its justification of the imputations it had pleaded in mitigation of the plaintiff's damages. That outcome is a product of the new defamation model created by the 2005 Act. 90Mr McHugh raised a second pleading argument which was, in effect, a complaint about the manner in which the primary judge dealt with the respondent's "alternative imputations" (see [11] and [12] above). Her Honour (at [58]) held the respondent only complained of one imputation, even though he had pleaded an alternative in each case. Accordingly she concluded that it was not possible, for the purposes of the s 26 contextual truth defence, to set up the alternative imputations pleaded by the plaintiff against one another. Her Honour's reasoning, as I understand it, was that even though a plaintiff pleads alternative imputations, only one of which it will ultimately rely on if it persuades the jury it was conveyed, the other imputation remains a plaintiff's imputation and cannot, accordingly, be "in addition to" as s 26 requires. 91It may be that there is a flaw in her Honour's reasoning in this respect. If a jury finds that one imputation is conveyed, and as a result the plaintiff does not rely on an alternative imputation, it is arguable that the alternative imputation is no longer one "of which the plaintiff complains". If so, it is also arguable that it is open to the defendant to plead a s 26 defence in a manner which contingently "adopts" (and seeks to establish the substantial truth of) the alternative imputation which otherwise did not further come under the jury's consideration. While the practical utility of such a course for a s 26 defence, in circumstances where it might be thought the jury had found in the plaintiff's favour on a more serious imputation, might be debatable, it may be that s 26 permits such a course. However, her Honour did not express a concluded view, and nor do I.

Orders 92It will be necessary for the appellants to amend the draft notice of appeal in the Red Book to conform to the limited issue argued on appeal. I propose the following orders: 1 Grant leave to appeal. 2 Appellant to file the draft notice of appeal in a form which conforms to the issue raised on appeal within 7 days of these orders. 3 Appeal dismissed with costs.

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: 30 June 2011

Defamation Act 1974(NSW)

Defamation Act 1889(Qld)

Defamation Act 1957(Tas)

(UK) Interpretation Act 1987(NSW)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Legislation Cited (15)

Cases Cited (50)