Carrey v ACP Publishing Pty Ltd [1998] VSC 78

5. I do not propose to traverse the whole of the proposed second further amended defence (hereinafter called the defence). I have on an earlier occasion focussed on the issues raised by the plaintiff's statement of claim in this matter and my reasons for decision in respect of this summons must be read in conjunction with my earlier reasons.

8. A key paragraph of the plaintiff's statement of claim (paragraph 6) alleges what the words contained in the relevant article meant and were understood to mean. Para 6 is in the following terms:

"6. In their natural and ordinary meanings, the words contained in the article meant and were understood to mean that:

(a) the plaintiff in his personal life is crude, lewd and disgusting;

(b) the plaintiff in his professional life deals with actresses in a crude, lewd and disgusting manner;

(c) the plaintiff in his personal and professional life behaves offensively towards women;

(d) the plaintiff is guilty of sexual harassment of Jennifer Tilley, Courteney Cox, Alicia Silverstone, Drew Barrymore and Courtney Love;

(e) as a result of the plaintiff's offensive behaviour, actresses have refused to work with him and are unwilling to work with him."

17. These are the imputations relied on by the plaintiff. The defendant denies that the words mean or are capable of conveying any of the imputations relied on. However, the defence proceeds to make allegations concerning the meanings alleged by the plaintiff under the heading "Truth - Common Law". This nomenclature was adopted in order to contrast allegations dealt with in the pleadings concerning legislation and codes.

20. Paragraph 7 of the defence alleges that even if the imputations relied on by the plaintiff in (a), (b) and (c) of paragraph 6 are open, the words are true in substance and fact. The defendant then sets out a group of nine particulars (lettered (a) to (i)) said to provide particulars of justification. No justification of the imputations in (d) and (e) is purported to be made. This led to claims by the plaintiff concerning aspects of partial justification and the consequences of it. This legal-intellectual debate quickly dissipated under my prompting, and the focus of argument in respect of the plea in paragraph 7 of the defence in relation to paragraph 6 of the statement of claim was on the form of the pleadings. This was primarily concerned with whether or not the defence was in such a form that in the relevant respects it was embarrassing in the pleading sense because the particulars given (which to say the least are not only unusual but wide-ranging) purported to be particulars in respect of imputations (a), (b) and (c) jointly instead of it being made clear by the pleading which particulars related to which imputation.

23. On a just reading of the imputations and the particulars it could not rationally be argued that each particular applied to each imputation. Mr. Sher, Q.C., who with Mr. M. Wheelahan appeared for the defendant, did not concede that this was a defect but in my judgment he ultimately offered no objection to an order being made that the defence be re-pleaded to meet the objection. To some extent his objection was also founded upon his contention that the effect of the decision of the Full Court in Barclay v. Cox [1968] VicRp 87; [1968] V.R. 664 was that the meanings assigned to the words by the plaintiff (that is, the imputations) do not give rise to separate causes of action and that the issue for the jury is whether the words were allegedly defamatory of the plaintiff. In Barclay this meant that the formulation by the trial judge of questions directed to whether the plaintiff had satisfied the jury that the words did have any of the meanings assigned to them by the plaintiff was incorrect. I have on other occasions expressed my view that that decision does not mean that courts are not able to strike out pleadings or order re-pleading prior to trial. Doubtless, as the Full Court in National Mutual Life Association of Australasia Ltd. v. GTV Corporation Pty. Ltd. & Ors [1989] V.R. 741 stated, the practice had grown up to plead the meanings for which the plaintiff contended (the appropriate imputations) because it was useful in delineating what the sphere of debate in that respect was and enabled the true issues to be perceived. The so-called Polly Peck sting or imputation alleged by the defendants was developed from 1986 on. These matters do not affect the question of how the ultimate issues will be put to the jury which must vary from case to case, so long as it is left to the jury to determine what is the true meaning of the words, among the possible meanings left to them for consideration. None of this, in my judgment, affects the responsibility of the Court, particularly in a hands-on specialist list, to make directions concerning the pleadings that will clarify the issues of meaning between the parties, and to introduce order into the chaos sometimes created by the inclination in one or both parties to have all of the issues thrown up and fall where they may.

26. After hearing counsel, and I am obliged to counsel for their candour in the positions they ultimately adopted, the defendant really acquiesced in the order which I indicated I was likely to make, namely that with respect to paragraph 7 that the pleading was not in appropriate form, but that I would grant immediate leave for the defendant to re-plead in a form by which the particulars relied on would be annexed to such of paragraphs 6(a), (b) and (c) as it is contended they relate.

29. Some submissions were made concerning those particulars and as to whether or not they could be viewed as supporting the imputations set forth in 6(a), (b) and (c). So I turn briefly to some matters in relation to the particulars, to indicate my views and the directions that I give in relation to this part of the pleading. With respect to particular (a) I reject Mr. Wilson's argument that it could not support any of the allegations being (other than possibly 6(a)) because that it all occurred too long ago and was too vague in terms of its meaning. In my view there is sufficient by way of particularity to enable (a) to survive. The real question is whether or not the incident, (now 15 years' old) is so distant from the imputations pleaded and relied on, which relate to the plaintiff's present personal and professional life, are irrelevant. The past is not hermetically sealed off from the present. Notwithstanding that, I have reached the conclusion that this incident is too long ago to be regarded as being capable of being viewed by a reasonable jury as a justification for the imputations as pleaded. It should not be concluded from this finding that other issues concerning alleged conduct by the plaintiff when he was a child would necessarily be regarded as irrelevant, because that issue is affected by some aspects relating to the plaintiff's own publication of the matters relied on to the press and to other matters to which I will later refer.

32. So far as particulars (b)(i) and (b)(ii) are concerned, other than the requirement that they be related to the plaintiff's imputations, these are matters that might properly be left for consideration by the jury. With respect to the allegation concerning the childhood masturbatory behaviour, the present form of the pleading relates to the plaintiff's admission of the matter in 1994, the particular arguably being concerned with his public admission rather than the fact that the event did occur so long ago. I have been concerned to some extent with (b)(iii) which is contextually threadbare and lacks balance. I am disinclined to make any orders about it. In my view, subject to the appropriate re-pleading for distribution, particulars (c), (d), (e) and (f) are all matters which can be arguably placed before the jury in support of the justification claimed in respect of some of the imputations.

35. As far as particular (g) is concerned, in my view no reasonable jury could conclude that the plaintiff was behaving offensively towards women in general because he did not tell his wife, when he was separated from her, that he had formed a relationship with another woman (whom he subsequently married) so that the former wife first discovered it when she found Ms Holly in the plaintiff's hotel room. It seems reasonable to assume that the plaintiff had not informed his former wife of the presence of his later wife in the hotel with him so that the inference might reasonably be drawn that the visit was unexpected. Be that as it may, in my view this matter could not be reasonably left to the jury and it will be struck out. I regard (h) as in the same position as (b) save for paragraph (h)(iii) which in my judgment could not support justification for any of the imputations and it will be struck out; (i) is a justifiable particular. It will be necessary to address recent judicial pronouncements concerning this defence later.

38. The next issue relates to paragraph 8 of the defence, the Polly Peck pleading. I gave some brief consideration to the Polly Peck issue in my reasons for my decision and directions on 6th February 1998 in the context of the then form of that defence and more significantly the particulars given, or not given, in connexion with it. At that time, however, the attack by the plaintiff was directed towards the inadequacy of the particulars given rather than whether the defence imputation was supportable. Moreover, it became clear at that hearing that the defence Polly Peck imputations were not settled. Some were abandoned; it was stated that others would be reformulated and re-pleaded.

41. At this hearing, however, the plaintiff's attack on the defence imputation is much more direct, namely, that the single meaning now desired to be pleaded by the defendant cannot reasonably arise form the words and that that part of the defence should not be permitted to stand, or be pleaded. The form of that pleading is, Mr. Wilson argued, embarrassing because it claims that "in its natural and ordinary meaning the article meant and was understood to mean that the plaintiff is lewd, crude and disgusting, is psychologically unstable, and behaves in a sexually offensive, erratic and childish manner" and in that meaning the article was "true in substance and fact". He argued that that language was meaningless because the component parts of the alleged meaning meant that there must be more than one meaning, or if there was only one, it had not been defined or stated. The consequence, he said, was that the relationship of the particulars to the sting or stings was impossible to discern. He submitted that the defendant either had separately to allege different "stings" or Polly Peck imputations or it must re- cast the pleading so as to denote the true meaning alleged, if there were only one. Indeed, in Polly Peck itself [1986] 1 Q.B. 1000 O'Connor, L.J. stated at 1032 that the effect of Lucas-Box v. News Group Newspapers Ltd. [1986] 1 W.L.R. 147 was that a defendant who pleads justification must state the meaning which he or she seeks to justify and that it followed from that case, and from Polly Peck, that in future, where differences of meaning are proposed by the parties, the issue as to the possible meanings of those words will be confined to those pleaded. In my judgment, this argument is a dispute separate from the issues raised by paragraph 6 of the statement of claim and paragraph 8 of the defence and it receded for reasons that will now appear.

44. Mr Sher, as he had on the previous hearing, seemed to me to make it clear that the meaning or common sting on which his client relied was not the three meanings as set forth in paragraph 8 of the defence but one meaning, namely, that the article meant that the plaintiff was psychologically unstable. He said that the allegations (lewd, crude and disgusting, behaving in a sexually offensive, erratic and childish manner) were manifestations of that. This approach conforms to the view expressed in Polly Peck that separate and distinct allegations cannot be linked. My expectation was, therefore, that if the imputation were permitted to stand, that paragraph 8 would be amended to make that allegation. If, contrary to my present belief, the defendant seeks to plead three meanings as different and separate stings, then, not only would other considerations arise, it would at least necessary for the defendant, as in respect to the previous part of the pleadings, to relate the particulars to the stings claimed to arise. I proceed on the basis that that will not occur and therefore address whether or not the particulars as pleaded will be sufficient in relation to the substance of the sting in the meaning which counsel put in argument ("psychologically unstable").

47. The next question in relation to this aspect arises from the submission of Mr. Wilson that on reading the article (not the particulars alleged) no reasonable jury could accept that the sting of the article was that the plaintiff was psychologically unstable, that that Polly Peck imputation should be rejected and thereby, in effect having regard to the debate concerning its amendment, the whole of paragraph 8 should go out.

50. However, it was argued for the defendant that there were other parts of the article which would admit of the defence imputation and Mr. Sher relied on them: cf. "acting like a horny high schooler and making a fool of himself"; reference "a pal of the manic funny guy"; the references to his "childish behaviour towards women"; "he drives me nuts with his constantly sexually explicit suggestions and the immature attitude towards women"; "Jim would come to the set in weird and wacky disguises, grope the female crew and cast members, then run away and think it was hysterical"; "Jim's fans got a glimpse of his erratic behaviour when he put his hands all over her butt and started licking her neck"; "it was like he was 15 and never been kissed - not a pretty sight in a man of Jim's age"; "Jim installed a huge library in the new home and filled it with pornographic magazines and crates full of sexy videos"; "Jim got even more juvenile and sexually silly after Lauren left him last month". Mr. Wilson strongly protested that the sting could not fairly arise from the article and that, having regard to its breadth, it had been seized upon by the defence into order to get in evidence any matter, however remote, which might fall under the rubric of indicating "psychological instability". That may be so, but the issue still remains as to whether it could be reasonably argued to the jury that this is really what the article meant, that this was the common sting, rather than the other matters relating to sexual misconduct and crude behaviour as individual defence meanings.

53. I will address these submissions shortly. It should be stated, however, that since the conclusion of the hearing of argument on this summons, the decision of the High Court of Australia in Chakravarti v. Advertisers Newspapers Ltd. [1998] H.C.A. 37 (20th May 1998) has been delivered. This has led to both parties making post-hearing written submissions. The defendant contends that Chakravarti is of no significance for the present purpose because only two of the judges (Brennan, C.J. as he then was and McHugh, J.) expressed the opinion that the so-called Polly Peck pleading in defence was not part of the pleadings and defamation law in Australia. It argues that the effect of the joint judgment of Gaudron and Gummow, JJ. was to support the continuation of the practice of permitting the defence in Australia, whilst Kirby, J. expressed no opinion. It was also submitted that the view of Brennan, C.J. and McHugh, J. with respect to Polly Peck pleading was obiter dicta, that I was not bound to follow it and I ought not follow it. On the other hand, the plaintiff argued that the effect of the decision is to virtually deny the validity of Polly Peck pleading in Australia and that it was necessary to decide it because of the context of whether or not the press report in that case was fair and accurate. I will further refer to Chakravarti in due course.

56. Leaving aside the issue of whether or not the Polly Peck plea is part of the law and practice in the State of Victoria, the test for determining whether a Polly Peck defence imputation is open is apparently no different to that of determining whether the plaintiff's claimed imputations are open to be considered by the tribunal of fact. In Watt v. General Television Corporation (unreported 23rd October 1997), when considering the Polly Peck imputation raised by the defendant that the program in that case conveyed that the plaintiff was "vulgar" I referred to the statements of Gleeson, C.J. in Drummoyne Municipal Council v. Australian Broadcasting Corporation (1990) 21 N.S.W.L.R. 135 and 137-138 which I here repeat:

"Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion and as to what constitutes the necessary specificity. If a problem arises, the solution will be usually found in considerations of practical justice rather than philology ... As I have indicated, the question is ordinarily one to be resolved by considerations of practical justice in the circumstances of the particular case, rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt, J. in Whelan v. John Fairfax & Sons Ltd. (1988) 10 N.S.W.L.R. 148 at 155 where his Honour said: '... The issue which has to be decided in the particular case is whether there is likely to be confusion either of the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.'"

60. Judicial expression of the test to determine whether or not a publication is defamatory has, not surprisingly, been varied and individual. It has been said that it should be viewed in a way that an ordinary reasonable person, not avid for scandal, reading it for the first time will understand it according to its natural and ordinary meaning. Such a person has been described as the reasonable reader, a right-thinking member of society, a reader of average intelligence. See the assembling of some of the tests or characteristics in the reasons for judgment of Kirby, J., Chakravarti paragraph 29. As the citation from Whelan indicates, the determination of whether or not the meaning contended for is open is capable of being determined at the pleading stage or at the trial stage. I hold the view, and have expressed it in decisions, that the decision of the Full Court of this State in Barclay v. Cox does not inhibit the power of the Court to determine that an articulated imputation cannot reasonably arise from the published words. The Court may strike out an imputation on that ground or in some cases because of the capacity of the permitted imputation to undermine the fair and orderly determination of the issue of defamation. The Court is not prevented from removing from consideration one or more of the alleged defamatory meanings. This is so even in jurisdictions such as Victoria in which the imputation is not the cause of action so that each separate imputation must be separately pleaded. The State of Victoria does not have legislation (for example, such as the New South Wales Act) which makes the imputation rather than publication the cause of action. In this State the pleading of imputations arises from the application of the modern rules of pleadings requiring particularity as devised by the common law and applied generally in defamation cases. Common law courts in Australia, including Victoria, have acquiesced in the procedure whereby plaintiffs plead and particularise the meanings for which they will contend at the trial arise from the published matter complained of, save in cases in which the defamatory meaning is beyond question, e.g. that the plaintiff is a murderer. See National Mutual Life (supra). The reason for permitting, perhaps even requiring the particularising of the meanings for which the plaintiff (or the defendant in the Polly Peck Case) contends is the practical one of facilitating and clarifying the sphere of debate for the trial. There has been some difference of view as to whether or not the plaintiff may rely upon meanings not pleaded by the plaintiff. The issue as to whether the plaintiff is to be confined to the meanings alleged to arise is a difficult one, later views being expressed that any conceivable meaning which a jury might find must be left for the jury's consideration whether or not the plaintiff argued for it. This was the view that drove Barclay v. Cox although, as I have indicated, that case is primarily concerned with the issue as to what might be left and the way in which it ought to be left to be considered by the jury. In Sungravure Pty. Ltd. v. Middle East Airlines Airliban S.A.L. [1971] HCA 4; (1975) 124 C.L.R. 1 Stephen, J. expressed the view that "having pleaded an innuendo the plaintiff was bound by it and was not free thereafter to rely upon some quite different meaning which he might seek to read into the words complained of, ... at least not one more injurious." In this State in National Mutual Life Association the Court expressed the view that the practice of pleading some specific meaning or meanings "could not alter the position that the judge was to decide what meanings were fairly open and was to leave to the jury all such meanings". This meant, and indeed it was said, that neither the judge nor the jury were confined to the meanings contended for by the parties. However that does not mean that there may be left to a jury meanings which the Court determines are not open. As Gleeson, C.J. stated, a practical approach to the dispensation of justice is significant in this area. In National Mutual Life Association the Full Court stated that it "would be most unlikely that the parties would between them fail to hit upon, at least approximately, all the reasonably open meanings".

63. Whether or not a party relying upon a meaning or imputation should be held at the trial to be confined to the imputation or imputations appears to have been an important point of difference between the reasons of Brennan, C.J. and McHugh and the approach of Gaudron and Gummow, JJ. An important feature of the former's reasons for judgment is that the plaintiff would be obliged to adhere to the case he or she had articulated by way of imputation so that if the plaintiff did not establish the meanings for which he or she contended because of another meaning for which the defendant argued, then the plaintiff would have failed, without the necessity for Polly Peck pleading, which draws in justification evidence to support the truth of a meaning for which the plaintiff did not contend and, in that context, might be ultimately found.

66. The approach of Gaudron and Gummow, J. appears to have been that modern pleadings support the identification of the legal issues to be determined, in particular specifying the case to be made at trial and that the Polly Peck practice conformed with that principle, being really no more than the statement of the case to be made at trial by the defendant. For my purposes in respect of the matter presently being considered, the issue of possible diversion from the pleaded imputations at trial is of no great significance. What is of importance is to whether or not the imputation contended for by the defendant, that the sting of the article is that the plaintiff was "psychologically unstable" is reasonably open to the tribunal of fact, the jury. I do not take the view that the determination of that issue cannot include consideration of some of the practical consequences of leaving it, such as the expansion of the matrix of evidence to lengths that make the trial likely to be over-long, over-expensive and dominated by irrelevances. As such, it is likely to be unfair. It was this aspect that clearly concerned Brennan, C.J. and McHugh, J. in condemning the Polly Peck practice. They stated "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. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a false issue which can only embarrass the fair trial of the actions". The issue for me is whether or not, in terms of the arguments advanced on either side, the sting or imputation contended for by the defendant that the article meant that the plaintiff was "psychologically unstable" ought, on the basis of the tests to which I have referred, be permitted to survive. I have already detailed some of the references indeed, all of them I believe, on which Mr Sher relied as indicating that meaning. Phrases such as manic, childish behaviour, immature attitudes, weird and wacky disguises and other matters to which he referred.

69. I note Mr Wilson's complaint that the Polly Peck imputation sought to be relied on not only does not reasonably arise out of the words of the articles as a whole but was spurious because it would, if permitted, enable the defendant to further damage the plaintiff's reputation under the rubric of the Polly Peck allegations by leading (and the particulars clearly indicate an intention to adduce) evidence of all or any conduct of the plaintiff, of which the defendant knows, which it might be said denotes "psychological instability" whatever it means. This is one of the vices of the Polly Peck defence that it draws within its necessary justification matters about the plaintiff which do not arise from the matters which the plaintiff claims entitle him to damages. This seems to me in many cases to be the natural consequence of the Polly Peck defence and it is a matter, if it is permitted under the common law, courts and parties have to live with. Whether that should not be so relates more to whether or not the defence should be permitted rather than as being the reason the plea is part of the law. While it is, the consequences of the accompanying particulars and evidence of the justification cannot be complained of.

72. But the issue is what does the phrase "psychologically unstable" mean? It is a phrase virtually without boundaries since it might arguably draw within it any behaviour that is unusual, eccentric, not "politically correct", all of which would answer the description to some minds of amounting to or denoting psychological instability. Assume an article published in a newspaper that arguably raised the meaning that the plaintiff was, say, ostentatious, obnoxious and gave offence to all that he or she met. It is simple enough to allege that someone behaving in that way was psychologically unstable because the words arguably connote such diversion from the norms of appropriate human behaviour that the person must be unstable. I note that Mr. Sher in his argument claimed that the imputation of "psychological instability" was virtually co-extensive with "abnormal behaviour". I note that also that another time he submitted that the imputation was the plaintiff suffered from a "condition" that caused him to behave as ordinary people would not, that is behave abnormally. In my judgment, "psychological instability", unattended by some appropriate defining and limiting criteria, would permit the dragging in of every variant in behaviour from some assumed norm, permitting the defendant to justify the use of the phrase by reference to postulated behaviour that did not conform to the assumed norm, with grotesque and insupportable consequences to a plaintiff suing in respect of commonplace imputations. The allowing of such a vague phrase as "psychologically unstable" as a separate and justifiable imputation has the capacity to expand the "behaviour" issues in a trial for defamation to unacceptable limits with the consequence of an inordinate consumption of trial time, client cost and with some serious impact upon the capacity of courts in the modern world to deliver the trial process appropriately concerned with the real issues. As such, a plea of such elusive imprecise meaning ought not be encouraged. This was doubtless the consequence that Brennan, C.J. and McHugh, J. had in mind in the passage to which I have already referred.

75. Notwithstanding Barclay v. Cox, I do not myself see any great difficulty in directing the tribunal of fact's attention to the meanings alleged by the plaintiff, although not requiring the jury to specifically find which of those meanings it finds established so long as it does find the publication defamatory. Perhaps it is desirable that Barclay v. Cox should be re-visited by an appellate court having regard to the considerable change in the expressions of the applicable law since it was decided. It has not, however, been doubted in any decision of which I am aware, and it was positively adopted and approved by the Full Court of the Supreme Court of Western Australia in Gumina v. Williams (1996) 3 W.A.R. 351.

78. The difficulty of the search for the meaning of the words in the article is one thing, the difficulties promoted by the selected sting "psychologically unstable", itself a word of absolute imprecision and limitless possibilities is another. Mr. Sher claimed "the real sting of this article is the man's a nut and this is the sort of behaviour that he indulges in as a consequence of that condition". This had more of a flavour that the plaintiff was suffering from a recognisable medical condition producing abnormal behaviour rather than the safely general psychological instability which, as I have already suggested, draws within it almost any variant in behaviour from some assumed norm as being justification for the assertion inherent in the imputation or sting.

81. The consequences of permitting the claimed sting (which does not arise from any express language in the article) are considerably wider than the specific case. I refer to the previous example given by me concerning the obnoxious, offence-giving plaintiff. The argument here being put would enable a defendant to claim that persons who generally gave offence by being obnoxious and ostentatious were abnormal and unstable. The consequence of permitting a general imputation of that kind to stand is that every facet of the plaintiff's life and conduct would fall to be examined to see whether or not it provided support for the justification of "psychologically abnormal". One is almost tempted to think that in this case it is the matters set out in the alleged particulars that have given rise to the claim of psychological instability, rather than the article itself.

84. The headline to the article described the plaintiff as "Groper Jim" not "Crazy Jim". The article was mainly concerned with three facets of the plaintiff's behaviour - his behaviour towards actresses with whom he worked (Groper Jim), his personal life and behaviour with his then-wife Lauren Holly and his then public behaviour. It is really the last of these matters that drives the claimed defence imputation. One cannot ignore that the plaintiff is apparently a comedy actor in the farce mould, rather than wit, and that the themes of the films in which he appears are of exaggerated conduct. Phrases such as "the manic funny guy" and the other matters to which I have already referred (p.6 of these reasons) do not seem to me to be sufficient to found any reasonable basis for the claim being made. Indeed, most of them seem to relate more towards the first of the two facets to which I have referred. The defendant does not admit the plaintiff's imputations but it is to be noted that no attempt to justify in respect of the other matters has survived in any serious form.

87. As I have suggested, the phrase "psychologically unstable" is so wide as to be virtually meaningless. The defendant is not asserting that the plaintiff suffers from a recognised psychiatric condition. Counsel for the defendant claimed that the words specifically relied on in the article as supporting the imputation amounted to descriptions of behaviour and events which ".. people are entitled to regard as symptomatic of a person who is not normal". However, notwithstanding the ease with which counsel described the behaviour alleged as amounting to abnormality, that is not the language of the imputation "psychologically unstable". I think it is correct to say that counsel for the defendant for the purpose of his submissions treated abnormality and psychological instability as being interchangeable phrases. This aspect is not capable of infinite elaboration. Bearing steadily in mind the principles which apply to this issue, and not forgetting for a moment my general inclination to leave issues that are even faintly arguable to the jury (which in this case is the tribunal of fact), I am not satisfied that this imputation could be said to arise from the article read as a whole and I do not propose to allow it. I have referred to the previous application and in the context of considering the particulars which were then being attacked, I proceeded on the assumption that if the imputation "psychological instability" stood, then certain of the particulars were adequate and others were inadequate. On this application the parties have directly confronted the issue of the defence imputation and I have had to do the same thing. Further consideration in this context has led me to reach the conclusion which I have just expressed. Accordingly I propose to disallow the defence imputation which was argued for and para. 8 of the proposed further amended defence will be struck out.

90. In those circumstances, is it unnecessary for me to consider whether or not the paragraph ought to be struck out on the basis that so-called Polly Peck imputation is not part of the law of Victoria, as a consequence of the statements of members of the High Court in Chakravarti. Nevertheless, I wish briefly to say something concerning it. There is no doubt that the Polly Peck plea has become firmly entrenched in virtually all jurisdictions in Australia and has been recognised and acted on as part of the common law. I refer to the cases cited in the judgment of Brennan, C.J. and McHugh, J. (para.7 footnote 4) and, with respect to the State of Victoria, the National Mutual Life Case (although the Court drew back from specifically stating that the principle was part of the common law in this State). See too Curran v. Herald & Weekly Times (Gobbo, J., unreported, 28th September 1993) a valuable and thoughtful analysis; and Kelly v. Special Broadcasting Service [1990] VicRp 6; [1990] V.R. 69 at 72. For a judge sitting at first instance, the judgments of the members of the High Court in Chakravarti generate uncertainty, not guidance nor binding authority on this aspect. The Victorian cases to which I have referred all proceed on the basis that the Polly Peck defence may be pleaded and raised. Until the Court of Appeal, or the majority of the High Court, declare that it is not the law, I regard myself bound to treat it as the law of Victoria. Moreover, since the present position in Victoria appears to be that in a jury trial the jury is free to find a publication defamatory, even on a basis not argued for, so long as not specifically withdrawn, the application of the views of Brennan and McHugh, JJ. may be doubted, as they appear to be underpinned by the concept that the plaintiff can only succeed on the case argued for, i.e. on the pleaded meanings.

93. Thus the substance of the orders is, with respect to the particulars, as indicated in paras. 3-5 of these reasons.

96. Paragraph 8 of the proposed second further amended defence is disallowed. This effectively means that para. 8 of the further amended defence must also be struck out. I grant leave to the defendant to re-plead its defence consistent with these reasons.

99. With respect to the submissions concerning truth and public interest, s.7A of the Defamation Act, contextual truth and public benefit, I do not propose to deal with these until the pleadings as a whole are in final form.