Contextual truth defence
48 Section 26 of the Act provides a defence to the publication of a defamatory matter if a respondent proves that the matter carried one or more other imputations (contextual imputations) that are substantially true, and the defamatory imputations of which the applicant complains (that are not contextual imputations) and are also carried by the matter, do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations. Section 26(2) (as amended on 1 July 2021) permits a respondent to rely on an imputation about which the applicant complains as a contextual imputation.
49 In Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157, referring to a similar provision in the Defamation Act 2005 (NSW), McColl JA (with whom Beazley and Giles JJA agreed) stated (at [85]) that the mischief to which the contextual truth statutory defence was directed was the defect in the common law position identified by Lord Denning in Plato Films Ltd v Speidel [1961] AC 1090. Lord Denning articulated that defect (at 1142) as follows:
Suppose a newspaper said of a man: "He has murdered his … father, stolen from his mother and does not go to church on Sundays," and the plaintiff brings a libel action complaining only of the imputation that he does not go to church. The defendants, said Mr. Gardiner, cannot justify the major charges of murder and theft, because the plaintiff has not complained of them. They cannot give evidence of them in mitigation of damages because they are only specific instances. What is, then, the position? It would, says Mr. Gardiner, be most unjust that the plaintiff should get damages for the minor matter when, if the jury had had the whole before them, they would have given him nothing. I agree it would.
50 In Kermode, McColl JA went on to observe (at [85]) that the effect of the contextual truth statutory defence was as follows:
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.
51 The elements of a defence of contextual truth have recently been considered by this Court in Palmer v McGowan (No 5) [2022] FCA 893 at [317]-[321] (Lee J) and Nassif v Seven Network (Operations) Ltd [2021] FCA 1286 at [120]-[127] (Abraham J). Those cases make clear that there are four elements to the defence of contextual truth (Palmer No 5 at [318]; Nassif at [121]):
(a) firstly, that the matter carried one or more other imputations;
(b) secondly, those other imputations are conveyed in addition to the applicant's defamatory imputations.
(c) thirdly, the contextual imputations are substantially true; and
(d) fourthly, the applicant's defamatory imputations do not further harm the reputation of the applicant because of the substantial truth of the contextual imputations.
52 With respect to the first and second of these elements, the applicant relies on authorities which are to the effect that contextual imputations must "differ in substance" from the imputations pleaded by an applicant, albeit, they need not differ in kind: Fairfax Media Publications v Zeccola (2015) 91 NSWLR 341 at [42], [70]-[74] (McColl JA, McFarlan JA agreeing, and Sackville AJA agreeing on this point); Palmer at [17].
53 In response, the respondents note that a matter may convey a contextual imputation of a general nature, which differs in substance from the specific imputations of which the applicant complains: Palmer No 5 at [319], citing Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [62] (Gleeson JA, with whom McColl JA and MacFarlan JA agreed). As noted by McColl JA in Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [319], the question of whether a particular charge of wrongdoing carries a general charge "may depend on the context in which the words are used" and the "gravity of the misconduct imputed in the particular charge".
54 An overview of the authorities was provided by Lee J in Palmer No 5 (at [319]) as follows (citations omitted):
[I]t is well-established that a matter may convey a contextual imputation of a general nature, which differs in substance from one or more specific imputations of which the applicant complains … Indeed, in some cases, "a single alleged instance of misconduct will be so serious that it may, at the same time, convey a general charge" … The question of whether a particular charge of wrongdoing carries a general charge "may depend on the context in which the words are used" and the "gravity of the misconduct imputed in the particular charge
55 As to the fourth element of the contextual truth defence, the applicant notes that a defence of contextual truth must defeat the whole defamatory matter of which the applicant complains. That is, the Court must find that, because of the substantial truth of the contextual imputations, the defamatory imputations complained of by the applicant do not further harm the applicant's reputation: Abou-Lokmeh at [29].
56 In response, the respondents note that Spigelman CJ said of a very similar section in the Defamation Act 1974 (NSW) in John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434 at [5]:
Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a "matter of substantial truth". It is "by reason" of such "substantial truth" that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not "further injure the reputation of the plaintiff". For the purposes of determining whether the s 16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself.
57 The respondents emphasise that the Court does not engage in a comparison of individual imputation against individual contextual imputation. The Court's focus is, instead, on the evidence relied on to establish the truth of the contextual imputations: Blake at [4]-[6]; see also Palmer No 5 at [321]; Abou-Lokmeh at [29] (McColl JA). Thus, as noted by Lee J in Palmer No 5, "[t]he question is whether the truth, as so established by that evidence of the contextual imputations (not the language in which they are expressed), is such that [the applicant's] reputation is 'not further harmed' by any of his imputations which are not defensible": at [321].
58 The judicial approach to analysing whether a matter carries an additional contextual imputation (the first and second elements of the contextual truth defence) is illustrated by McColl JA's judgment in Abou-Lokmeh. In that case, the plaintiff had pleaded that a broadcast conveyed an imputation that, amongst other things: "[The plaintiff] paid to have [his wife, Ms Issa] murdered". In response, the defendant pleaded, amongst other things, the following contextual imputation: "[The plaintiff] wanted [Ms Issa] to be killed". The plaintiff sought to strike out the pleaded contextual imputation. McColl JA declined to do so.
59 McColl JA relevantly observed that the Court should not strike out the pleaded contextual imputation unless it was "obviously untenable" or "unarguably bad": at [28].
60 McColl JA stated that in order for a contextual imputation to be carried "in addition to" the plaintiff's defamatory imputations, the contextual imputation must "differ in substance" from the alleged defamatory imputations: at [30]. McColl JA accepted that the "differ in substance" test was able to be satisfied by a defendant pleading a contextual imputation in general terms: at [32].
61 McColl JA was satisfied that, in this case, the general contextual imputation relied on by the defendant (that the plaintiff wanted Ms Issa to be killed) differed in substance from the alleged defamatory imputation relied on by the plaintiff (that the plaintiff paid for Ms Issa to be murdered). McColl JA noted that:
(a) the particulars in support of the contextual imputation ranged over a greater factual matrix than the incident referred to in the matter complained of, and were unrelated to the specific instance identified in the matter complained of (at [42]);
(b) the alleged defamatory imputation was specific in nature, whereas the contextual imputation, although related to the same subject matter, conveyed a different, potentially broader sting (at [43]);
(c) in most cases, a general allegation will differ in substance from a particular allegation (at [44]); and
(d) the gravity of the defamatory imputation differed to that of the contextual imputation (at [45]).
62 McColl JA (at [47]-[48]) relevantly concluded:
I am conscious that the question whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care, to avoid unduly opening up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant and thus prolong the hearing of defamation cases.
However, in my view [the plaintiff] has not established that contextual imputation (i) is obviously untenable or unarguably bad. It is at least arguable that the jury could find that [the plaintiff's alleged defamatory imputation and the defendant's contextual imputation] differed in substance. That is sufficient at the strike-out stage to make it inappropriate to strike it out.
63 In Palmer, White J also considered an application by an applicant, Mr McGowan, to strike out various contextual imputations pleaded by the respondent, Mr Palmer. Mr McGowan pleaded that Mr Palmer had published various statements which conveyed, amongst other things, the defamatory imputation that:
As Premier, Mr McGowan had corruptly attempted to cover up the personal involvement of himself and others in criminal acts by overseeing the passing of laws designed to provide exemptions [for] them from the criminal law.
64 In response, Mr Palmer pleaded that the publications conveyed seven contextual imputations, one of which was that "Mr McGowan is a dishonourable man".
65 Mr McGowan sought to have this contextual imputation struck out on the basis that, inter alia, it was not capable of being conveyed, given the specific nature of the allegations in the impugned matter. White J rejected this submission and relevantly stated (at [90]):
by a series of rhetorical questions in the impugned matters, Mr Palmer made accusations about Mr McGowan breaking the law ([1]), covering up his own conduct ([1] and [11]), enacting legislation which took away the rights of the Press, the rights of the people of the State to make FOI requests so as to find out what Mr McGowan had done, and the rights to natural justice and access to legal process, betraying the rule of law ([1], [2], [7] and [10]), and enacting legislation to subvert the effect of two arbitral awards ([8]). It cannot reasonably be concluded that these statements are not capable of conveying the [Contextual Imputation 14].
66 White J went on to assess whether other defamatory imputations of which Mr McGowan complained were capable of conveying an equivalent contextual imputation that "Mr McGowan is a dishonourable man". In one further case, White J held that it was at least arguable that this contextual imputation was conveyed (at [115]). In another case, White J struck out the contextual imputation on the basis that, having read, and reread the impugned statements by Mr Palmer, he was not able to discern on even an arguable basis that the imputation was conveyed (at [131]).