Charan v Nationwide News Pty Ltd [2019] VSCA 36

COSTS - Defamation - Unsuccessful plaintiff - Offer to settle by defendant - Offer requiring substantial capitulation by plaintiff - s 40(2)(3) Defamation Act 2005 - Order by trial judge that plaintiff pay indemnity costs from date of expiry of offer - Whether judge misconstrued or misapplied provisions of Defamation Act - Whether judge mistook the facts - Whether judge failed to take relevant circumstances into account - Errors alleged not reasonably arguable - Leave to appeal refused.

1 Atkinson Prakash Charan ('the plaintiff') brought a proceeding for defamation against Nationwide News Pty Ltd ('the defendant'), publisher of print and online editions of The Australian newspaper. The proceeding was commenced by writ filed on or about 22 December 2015. The plaintiff alleged that he had been defamed in an article published in the print and online editions of the newspaper on 20 November that year.

2 The proceeding came to trial in February 2017. It was heard by a judge of the Trial Division sitting without a jury. In all, the hearing occupied 34 days in the period February to September 2017. The plaintiff gave evidence on 13 of those days.

3 The judge published reasons ('Trial Reasons' or simply 'TR') on 25 January 2018.[1] He found that the plaintiff had established two defamatory imputations, but that the defendant had established the substantial truth of those imputations. He said also that, if he was wrong in holding that the defendant had justified the imputations, then he thought it was not possible to find that the plaintiff had an entitlement to an award of damages for vindication of his reputation or to provide reparation for injury.

4 There followed a contest as to what costs order should be made. The defendant relied upon a series of offers of a Calderbank[2] kind. In reasons published on 1 March 2018 ('Costs Reasons' or simply 'CR') the judge found that one of those offers was a 'genuine' offer of compromise, notwithstanding that it was an offer inviting the plaintiff to capitulate;[3] and he found that the plaintiff had unreasonably refused to accept it. He decided that the plaintiff should pay costs on the standard basis up until the time that the particular offer expired, and thereafter on an indemnity basis.

5 On 1 March 2018, the judge made orders in accordance with the Trial Reasons and Costs Reasons.

6 The plaintiff now seeks leave to appeal against the orders made in consequence of the principal judgment, the costs judgment, and several interlocutory orders.[4] The last-mentioned concern the circumstances in which the defendant was granted leave to amend its defence to raise the justification plea, and the rejection of a subsequent application by the defendant to strike out that defence.

7 In our opinion, for the reasons which follow, the plaintiff should have leave to appeal on ground 1, but the appeal should be dismissed. Leave to appeal should otherwise be refused.

The imputations as pleaded and as found. The grounds of the application

8 Broadly speaking, the article, the content of which was the same but with a different heading in the print and online editions,[5] concerned non-government provision of Vocational Education and Training ('VET'). It referred to unscrupulous practices by private providers. It referred to a company with which the plaintiff had previously been involved - Australian Careers Network Ltd ('ACN') - being under investigation. It stated that Phoenix Institute ('Phoenix'), a company acquired by ACN in January 2015, was to be taken to court in connection with alleged improprieties. It mentioned the plaintiff by name. It referred to the plaintiff having made a lot of money out of the float of ACN. Annexures A and B to these reasons are respectively the print and online editions of the article.

9 The article was admittedly wrong in one respect. It stated ACN was 'headed' by the plaintiff and a Mr Brown. In fact, the plaintiff had been, but was not at the time of publication, a director of and major shareholder in that company. Pausing, the plaintiff's position before and at trial was that he had never 'headed' ACN. The defendant's position was that he had done so, because he had headed companies in what was called the CTI Group. Of this dispute, more later.

10 The online edition corrected the error and offered an apology on the afternoon or evening of the day of publication. The print edition corrected the error the next day. It did not offer an apology.

11 The writ was filed, as we have said, on or about 22 December 2015.[6]

12 The plaintiff, by paragraph [5] of the statement of claim, pleaded that in their natural and ordinary meaning, the print and online articles were defamatory of him and meant and were understood to mean that:

(a) The Plaintiff as head of Australian Careers Network (ACN), has amassed a fortune by engaging in unscrupulous business practices that take advantage of vulnerable consumers and government funding schemes in the education and training sector.

(b) There are reasonable grounds to suspect that the Plaintiff, as head of ACN, has amassed a fortune by engaging in unscrupulous business practices that take advantage of vulnerable consumers and government funding schemes in the education and training sector.

(c) The Plaintiff, as head of ACN, has been marketing education and training courses to vulnerable consumers in a manner that constitutes misleading and deceptive and unconscionable conduct in breach of the law.

(d) There are reasonable grounds to suspect that the Plaintiff, as head of ACN, has been marketing education and training courses to vulnerable consumers in a manner that constitutes misleading and deceptive and unconscionable conduct in breach of the law.

(e) The Plaintiff, as head of ACN, has been carrying on business in a manner that involves unscrupulous door-to-door marketing practices in relation to vulnerable consumers in the training and education sector.

(f) There are reasonable grounds to suspect that the Plaintiff, as head of ACN, has been carrying on business in a manner that involves unscrupulous door-to-door marketing practices in relation to vulnerable consumers in the training and education sector.

(g) The Plaintiff, as head of ACN, has been carrying on business in a manner that involves significant non-compliance with the quality standards required from providers of vocational educational services.

(h) There are reasonable grounds to suspect that the Plaintiff, as head of ACN, has been carrying on business in a manner that involves significant non-compliance with the quality standards required from providers of vocational educational services.

13 Thus, in substance, the plaintiff pleaded four pairs of imputations, in each instance pleading that the meaning of the article was that the plaintiff had acted in a particular way; or that there were reasonable grounds to suspect that he had so acted.

14 By its defence filed 21 March 2016, the defendant denied that the article conveyed any of the pleaded imputations.

15 By paragraph [5A] of the defence, as amended pursuant to leave granted by an Associate Judge on 5 October 2016, the defendant alternatively sought to justify imputations 5(a)-(b) and (g)-(h).

16 The judge found that none of imputations (c), (d), (e) and (f) had been made out.[7] That finding is not now challenged.

17 It was common ground at trial that, with respect to each pair of imputations, only one meaning could be found by the judge.[8] That is, if the judge found that the meaning of the article was that the plaintiff had engaged in particular conduct, it could not also be found that the meaning of the article was that there was a reasonable suspicion that the plaintiff had acted in that way.

18 In the event, the judge found that the article conveyed imputations that -

(1) the plaintiff managed a VET organisation which engaged in unscrupulous business practices that took advantage of vulnerable consumers and, as a result of which, he made a large amount of money;[9] and

(2) the plaintiff managed a VET organisation that was significantly non-compliant with quality standards.[10]

19 The two imputations which the judge found to have been conveyed were not identical with imputations (a) and (g) as pleaded by the plaintiff. In each instance, the imputations found by the judge excluded the words 'as head of Australian Careers Network (ACN)'.[11] It might also have been said that the effect of imputation (a) - and possibly (g) - was that the plaintiff had personally engaged in disreputable conduct, whilst the imputations found by the judge were that the plaintiff had managed a VET company which engaged in disreputable conduct. But, as will be seen, neither party ultimately submitted in this Court that the meaning of the imputations as pleaded and as found differed in that way.

20 Proposed ground[12] 1 reads as follows:

The trial judge erred in finding that, in its ordinary and natural meaning, the Article was capable of conveying, and in fact conveyed, the following imputations of and concerning the applicant:

(a) at [53] and [762(b)(1)], that he managed a VET organisation which engaged in unscrupulous business practices that took advantage of vulnerable consumers and as a result of which he made a large amount of money; and

(b) at [71] and [762(b)(2)], that he managed a VET organisation that was significantly non-compliant with quality standards,

being imputations that were not confined to the applicant's management of ACN and Phoenix after ACN had acquired Phoenix in January 2015 (at [52] and [86]).

21 The gist of ground 1 is that the judge erred in finding imputations which were 'not confined to the applicant's management of ACN and Phoenix after ACN had acquired Phoenix in January 2015'.

22 Next, we refer to ground 2 which reads as follows:

As a consequence of the errors identified in proposed ground 1, the trial judge erred at [86] in rejecting the applicant's objection that the defence and particulars of justification raised false issues, going beyond:

(a) any meaning that the Article was capable of conveying; and

(b) the applicant's role as head, or as a director or manager of, ACN in the period after it acquired Phoenix in January 2015.

23 It is apparent that ground 2 is closely allied to ground 1. The gist of ground 2 is that the justification defence was irrelevant because the sting of imputations (a) and (g) as pleaded by the plaintiff confined allegations of misconduct on the plaintiff's part to his asserted role as head of ACN after its acquisition of Phoenix in January 2015.

24 It is a notable feature of grounds 1 and 2 that they highlight the acquisition of Phoenix by ACN in January 2015. The plaintiff's imputations (a) and (g) made no mention of Phoenix, its acquisition by ACN, or the year 2015; but the plaintiff submitted that these limitations upon subject-matter and time were imported into the imputations. This is a matter to which we must return.

25 We next refer to ground 2A. This is what it says:

2A. The Court erred in law in:

(a) permitting the defendant to amend its defence at a late stage of the proceeding to plead a justification defence that concerned conduct that had no connection with the operation of ACN or Phoenix in 2015, particularly where the defence was not properly particularised;

(b) refusing to strike out the justification defence pleaded by the defendant on the ground that it failed to properly particularise the applicant's knowing involvement in the alleged unscrupulous business practices of CTT;

(c) permitting the defendant to rely upon a document entitled Consolidated Particulars of Truth, and subsequently a further document entitled Second Consolidated Particulars of Truth, in support of its justification defence; and/or

(d) permitting the defendant in the course of the trial to rely upon new allegations and evidence of alleged misconduct in 2014 or earlier by the applicant, or by companies with which he had a connection, that had not formed part of the First or Second Consolidated Particulars of Truth.

26 Ground 2A(a) attacks the order of the Associate Judge made on 5 October 2016. It continues the theme set by grounds 1 and 2. Its gist is that the justification defence ought not to have been permitted because it had no connection with the operation of ACN or Phoenix in 2015.

27 Ground 2A(b) raises a complaint that the judge erred when, on 14 December 2016, he refused to strike out the justification defence. The gist of that application, as noted by his Honour in reasons delivered on 14 December 2016, was that the plaintiff argued that there had been such a failure to provide particulars of the justification defence, contrary to orders earlier made by the Associate Judge, that the defence in its entirety, should be struck out.

28 Ground 2A(c) complains that the judge erred because he permitted the defendant to rely upon a document entitled 'Consolidated Particulars of Truth', later redelivered in supplemented form, in support of its justification defence. At its heart lies the same notion: that particulars were irrelevant which travelled beyond the plaintiff's role as head of ACN in 2015 with respect to the activities of Phoenix.

29 Ground 2A(d) raises a complaint that the defendant was permitted to put in evidence travelling beyond matters set out in either version of the Consolidated Particulars of Truth.

2B In the course of addressing the defendant's justification defence, the trial judge erred in finding that in 2014 or earlier the plaintiff personally participated in, or knew and approved of, the falsification of student records (at [669] and [673]) and/or the offering of incentives to VET students (at [717]) by organisations other than ACN and Phoenix, in circumstances where those findings:

(a) had no connection with the operations of ACN and Phoenix in 2015 that were the subject of the Article; and

(b) depended on the following factual findings that did not support those conclusions:

(i) findings at [332]-[351] that the applicant maintained a significant involvement in the administration of the CTI companies until mid-December 2014;

(ii) findings at [532], [536], [554] and [568]-[570] that the applicant had attended a mass enrolment session in September or October 2014 and, while it did not proceed to a conclusion, this showed that the applicant was aware of a practice of endeavouring to enrol students regardless of their suitability for courses;

(iii) the finding at [515]-[516] that there was a necessity to increase enrolments in 2014 in preparation for the listing of ACN and that this provided a motive to engage in unscrupulous conduct;

(iv) the finding at [596] that the applicant had requested Ebejer to sign record of contact documents, although his Honour acknowledged that the applicant was not cross-examined as to his denial of any such request;

(v) the finding at [610] that Cage had observed CTI employees completing documentation on behalf of students; and

(vi) the acceptance at [667] of the evidence of Ebejer, Ottery and Cage as to the falsification of student records by CTI employees or agents in 2014, and the evidence of the students Ali and Maartens as to the falsification of the contents of their student files in 2014.

31 There are two distinct aspects to this ground. The gist of sub-ground (a) is that the judge erred by making findings at all with respect to the plaintiff's alleged misconduct when such conduct was unrelated to the operations of ACN and Phoenix in 2015. It thus continues the scheme of grounds 1, 2 and 2A(a).

32 Ground 2B(b) is of a different character. It attacks findings made by the judge that the plaintiff participated in, or knew and approved of, misconduct by entities other than ACN and Phoenix. The basis of the attack is that the judge's findings as to the plaintiff's involvement were unsupported by six identified evidentiary findings.

33 With respect to ground 2B(b) we immediately note that the six findings are not themselves put in issue. That is so despite, in some instances, the plaintiff having given evidence opposed to the six findings; and despite his evidence that he knew nothing of the misconduct.

34 The course which the plaintiff has taken is readily understandable. In finding that the plaintiff had personally participated in, or knew and approved of the falsification of records and the offering of incentives to students by VET organisations, the judge concluded that:[13]

Mr Charan was an entirely unreliable witness, not only on this issue but as to all matters relevant to his claim against Nationwide. For reasons I will now set out, I am satisfied that on issues central to the case he gave many untruthful answers and, in the main, dissembled, prevaricated or lied in an effort to advance his response to the justification defence. In particular, his evidence as to his lack of involvement in the management of CTI and associated companies was discredited by contemporaneous documentation and internal inconsistencies in his own evidence.

35 The judge provided many instances of what he concluded were untruthful answers, dissembling and prevarication.

36 The plaintiff does not seek to challenge the judge's assessment of his unreliability as a witness.

37 We need not set out ground 3. It proposes only that proof of one or more of the errors earlier identified would mean that the judge erred by finding the justification defence made out.

38 Grounds 4 to 7 attack the judge's order with respect to costs - specifically, that he ordered the plaintiff to pay indemnity costs from 7 February 2017 onwards. There are two distinct aspects to these grounds. Grounds 4, 6 and 7 attack findings made by the judge, in the case of paragraph 7 insofar as he failed to take into account certain allegedly relevant considerations. Ground 5, on the other hand, contends that the judge erred in his interpretation of s 40(3) of the Defamation Act 2005 ('the Act'), or else misapplied the statutory test. We will set out those grounds later in these reasons.

39 Although the sting of the article had to be determined in accordance with the principles which the judge correctly set out at [31]-[36] of the Trial Reasons, the contest between the parties, and particularly the justification defence, cannot be understood without both an understanding of the private VET sector at relevant times, and of what was variously called the 'CTI Group' and the 'ACN Group'.

40 For many years now, vocational education and training has been provided by both government and private institutions. The former are exemplified by TAFE colleges. The latter involve bodies approved as Registered Training Organisations ('RTOs') by either or both of the Commonwealth and a State educational body.

41 In Victoria, at relevant times, the relevant authority was the Department of Education and Training ('DET'). An institution, if approved as an RTO, could hope to enter into a contract for the provision of services to students. Such contracts, again speaking of Victoria,[14] at relevant times required a provider to act in a carefully structured way in enrolling students, in having them undertake courses, and in the submission to the Department of claims for payment. A provider was required to undertake and document steps designed to ensure that students were suitable for enrolment at all, were suitable for enrolment in particular courses, and had undertaken necessary work in those courses.

42 Speaking again of the Victorian situation, a provider raised claims for payment in respect of enrolled students who had undertaken necessary studies by uploading details onto a Department website. It appears that, subject to any red flags that the system might generate, payments would then be made in accordance with the claim raised. The only physical intervention was if, as it was entitled to do, the Department arranged for an audit of a provider's enrolments and work undertaken by students; or more broadly, had the performance of a funding contract reviewed to ensure that the provider had complied with its contractual obligations.

43 Whilst students received vocational education and training free of charge in the first instance, they faced the prospect of repaying the cost of the courses undertaken if, in employment, their earnings reached a certain threshold.

44 There was no legitimate point in enrolling students who were unable to understand or read English. For that reason, in the Victorian context, a prospective student was required to complete what was called a Language, Literacy and Numeracy ('LLN') form. To be clear, this was required by the funding contract struck between the Department and a VET provider.

45 The funding contract also required that there be a Pre-training Review ('PTR'). Such a review was required to be carried out before a student commenced training. It was another layer of ensuring that a student was capable of, and thus could usefully undertake, a training course.

46 At both the Commonwealth and State level, there were regulatory authorities whose purpose it was to ensure that registered training organisations provided courses of suitable quality. There was the Australian Skills and Quality Authority ('ASQA'), to which we have already referred, and the Victorian Skills and Quality Authority ('VSQA').

47 We mentioned earlier the computerised program by which a producer made claims for payment. The program was known as the Skills Victoria Training System ('SVTS'). Under this program, a provider would report what training had been provided to a student. It did so by uploading what was called a NAT file. This was a file required to be maintained by the provider with respect to the particular student.

48 We also mentioned earlier that the Victorian Department could require an audit of a provider's records. Once again, acronyms were to the fore. An 'EOE audit'[15] might be required. This was an audit as to the existence of a student's eligibility to participate in a program. Then there was an 'EOP audit'.[16] This was an audit whether a particular student had undertaken studies.

49 We have described the role of registered training organisations. It is clear that, at relevant times, such providers actively sought to identify and enrol students and then have them participate in training. The more students enrolled, and the more students undertaking training, the greater the income flowing to the provider.

50 There was also a kind of entity which, though not itself a registered training organisation, would canvass for students, and then, by an 'auspicing' arrangement with one or more TAFE colleges, provide relevant vocational and education training.

The plaintiff's involvement in the private VET sector

51 The plaintiff, according to the judge, began work in the sector in 2010, marketing for an RTO. He met Ivan Brown, who worked as a trainer and in sales and marketing.[17]

52 In 2012, a company entitled Community Training Initiatives Ltd ('CTI') was incorporated. Each of the plaintiff and Brown held 50 per cent of the shares in that company, the plaintiff through Sapra Enterprises Pty Ltd, of which he was the sole director and shareholder.

53 The plaintiff was a director of CTI from 7 September 2013 to 30 September 2014. Up until the end of November 2014, he described himself as the 'managing director' of CTI.

54 CTI was not itself a registered training organisation. It was, the judge said, 'spectacularly successful, obtaining contracts with a number of TAFEs for the delivery of training courses'.[18] This was done by entering into 'partnerships or auspicing arrangements with TAFE colleges, in particular Kangan and Chisholm Institute'.[19] That is, CTI was a body of the kind described at [50] above.

55 On 1 July 2013, a company named Consider This Training Pty Ltd ('CTT') was acquired, in substance by the plaintiff and Brown. The purchaser was Health Training Services Pty Ltd. Through Sapra, the plaintiff held a 50 per cent interest in Health Training Services.

56 An advantage of CTT was that, at the time of its acquisition, it had a funding contract with the Victorian Department.

57 From the date of its purchase, Brown became a director of CTT. Ms Celona, the previous owner of CTT, remained managing director of that company until December 2013. She left the company altogether in February 2014.[20]

58 No later than February 2014, the plaintiff and Brown formed the idea of incorporating a body which would gather under its wing the existing entities which they controlled. The idea also involved the acquisition of other entities operating in the VET private sector, which entities would also be brought under the wing of the new company. Then the new company would be floated. The more entities in the group, the greater would be its income, its profitability (by intent), and so its attractiveness in the initial public offering.

59 So it was that, on 17 March 2014, ACN was incorporated.

60 The plaintiff and Brown were, for practical purposes, the only shareholders in ACN at the time of its incorporation. They both became directors of ACN. A senior employee of CTI was also a director, but resigned her position on 30 September 2014.[21]

61 On 3 June 2014, the plaintiff and Brown purchased another RTO, Thoan Pty Ltd, from a Mr Stephenson. Thoan traded as Australian Management Academy ('AMA'). It operated in Queensland, New South Wales and Victoria. At the time of purchase, it also had a funding contract with the Victorian Department. This was an instance of the implementation of the plan described at [58] above.

62 From the time of its acquisition until 30 September 2014, the plaintiff was the sole director of Thoan. He then resigned that position. He remained company secretary until 21 October 2014.[22]

63 We have referred to the date 30 September 2014 on a number of occasions. It was on that date that ACN acquired all the shares in CTI, CTT, Thoan and other entities in what had hitherto been 'the CTI group'. ACN then became the 'holding company' for entities in the group. The plaintiff and Brown were each allocated a little less than 25 million shares in ACN.

64 As part of the new arrangements, the plaintiff resigned as a director of ACN, CTI and Thoan. It appears that his then intention was to largely exit the group at the time of the float, by selling down his shareholding.

65 Although in different ownership, the companies in the group continued to function after 30 September as they had done before that date. Entities such as CTT and Thoan had funding contracts. It was the performance of those companies which dictated the apparent income and profitability of the holding company.

66 A prospectus referable to the float of ACN issued in November 2014. It stated that, in addition to CTT and AMA, a number of other entities of the group - Cove, Heron Access and Smart - had government funding contracts. Three other entities which were stated to be part of the group - Haley College, Loka and ITC - were not said to have funding contracts at the time.[23]

67 The prospectus further stated that the plaintiff would sell down his shareholding by 21.5 million shares. At the issue price of $1.70 per share, he would receive about $36.55 million. The balance of his shareholding, about 4 per cent, would be held in escrow. He was to be required to execute a non-compete restraint deed.[24]

68 ACN listed on 14 December 2014. The plaintiff received $35 million for the sale of his 21.5 million shares.[25] Two matters complete the tale.

69 First, the judge made extensive findings - in the face of evidence of the plaintiff to the contrary - that the plaintiff had a continuing and wide-ranging role in the conduct of businesses in what had hitherto been the CTI group up until ACN was floated in mid-December 2014. His role was both managerial and hands-on. It was no different after 30 September 2014 to what it had been before that date. Further, what the plaintiff did involved knowledge of, encouragement of, and participation in what may compendiously be called improper practices.

70 Second, the ACN group soon failed. ACN was put into voluntary administration on 22 March 2016.

71 It was submitted in writing for the plaintiff that:

(1) The imputations found by the judge 'went far beyond the scope of the imputations that the article was capable of conveying'.[26]

(2) The imputations found by the judge were inconsistent with findings which he made in the course of his reasons.

(3) The reasoning relied upon by the judge did not support the width of the first imputation found.

(4) The judge applied a wrong test in holding that a reasonable reader would attach little or no importance to the reference to ACN in the article. The issue of meaning was not resolved by asking what an ordinary reasonable reader might consider significant, but what an ordinary reasonable reader would understand the article to mean.

(5) The first imputation found by the judge, insofar as it related to unspecified VET companies, was the product of a strained and unreasonable interpretation of the article. The article was not legally capable of conveying, and did not in fact convey, any imputation that was broad enough to include any VET organisation other than ACN.

(6) The first imputation found by the judge also had a temporal breadth which the article was legally incapable of conveying and did not in fact convey. Whilst the article contained a sentence about the listing of ACN, it did not state that the listing occurred in December 2014. The article was relevantly confined to the conduct of Phoenix after it was acquired by ACN in January 2015.

(7) The judge's reasoning in relation to the second imputation was also flawed. The judge himself had recognised that there was an unequivocal imputation that Phoenix was an ACN company of which the plaintiff was a director. The critical limitation on the meaning of the article was not affected by the judge's observation that a reader would not focus on ACN.

(8) The judge should have found that the article was incapable of conveying any imputations going wider than imputations that the plaintiff had, as head of ACN, after it acquired Phoenix in January 2015, managed Phoenix when it engaged in unscrupulous business practices and significant non-compliance with quality standards.

(9) The imputations found by the judge were not a permissible variant of the plaintiff's pleaded imputations.

72 The oral submissions of senior counsel for the plaintiff mainly emphasised these matters:

(1) The trial miscarried badly. It became a roving investigation into a series of false issues, in which the defendant was permitted to justify meanings which were unpleaded and disconnected from the article in every respect. This was, for the reason explained by Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Limited,[27] outrageous.

(2) The defendant did not plead alternative meanings. That was wrong, and it confused the trial. David Syme & Co Ltd v Hore-Lacy[28] requires a defendant to plead an alternative meaning alleged. Here, the defendant sought to justify a radically different (unpleaded) alternative to the meaning pleaded by the plaintiff. If Hore-Lacy and Setka v Abbott[29] permitted such a thing, those decisions should be reviewed.[30]

(3) What the judge described as permissible variants of imputations (a) and (g), omitting reference to ACN, removed the link in the article between the plaintiff, ACN, Phoenix and 2015.[31] The critical link with the plaintiff was the assertion in the article that at the time of misconduct by Phoenix, he headed ACN, which controlled Phoenix.

(4) Context must be given to the plaintiff's reference to ACN in the pleaded imputations. This was permissible. Thereby, the imputations were confined to the plaintiff's alleged wrongdoing, via ACN, in the activities of Phoenix in 2015. In this connection, counsel referred and relied upon ss 8 and 25 of the Act, passages in Setka,[32] Chakravarti,[33] Herald & Weekly Times Ltd v Popovic,[34] Habib v Nationwide News Pty Ltd,[35] Fairfax Media Publications Pty Ltd v Bateman,[36] Greek Herald Pty Ltd v Nikolopoulos,[37] and Defamation Law in Australia.[38]

(5) The judge's reasoning relevantly began at TR [38]. There, the judge set out what a reader would take from the article. The focus was on Phoenix as a subsidiary of ACN, and thereby the plaintiff. This was to be contrasted with the imputations found.

(6) The judge had erred at TR [38(f)] in referring to '2014' not '2015'. This was not a mere typographical mistake. It had fed into the judge's erroneous conclusion with respect to imputations conveyed by the article.

(7) The judge had also erred, at TR [38(j)], in that he had not tied the plaintiff's acquisition of a fortune to the misconduct of Phoenix. That link was made at TR [46].

(8) With these exceptions, what the judge said at TR [38]-[46] was embraced.

(9) Trial Reasons [46], [47] (although this paragraph did not refer to Phoenix by name), [48] and [49] followed on from TR [38] and focussed upon Phoenix.

(10) Trial Reasons [52] could not be reconciled with TR [46].

(11) Trial Reasons [52] and [53] inexplicably and impermissibly broke the link between ACN, Phoenix and the plaintiff.

(12) Trial Reasons [51] showed that imputation (a) was to be understood as meaning that the plaintiff, as manager of an RTO, had been 'knowingly involved' in its unscrupulous practices. This was the plaintiff's personal involvement. Thus there was a link with the practices of Phoenix.

(13) With respect to imputation (g), the judge was correct at TR [68], but impermissibly parted from this correct analysis at TR [70]-[71].

(12) The plaintiff had always submitted that the imputations were confined to ACN, Phoenix and 2015. Plaintiff's counsel had made the point when the defendant sought leave to plead the justification defence. At trial, senior counsel for the plaintiff had made the point when opening; likewise in closing address. The judge indeed, had said as much at TR [86].

73 It was submitted in writing for the defendant that:

(1) The plaintiff could have pleaded imputations with a high degree of specificity, limited both in terms of subject matter and time. But the imputations had been pleaded at a higher level of generality.

(2) The pleading decision made by the plaintiff determined the evidence which could be adduced in support of a justification defence.

(3) The effect of the Hore-Lacy line of authorities[39] is that a plaintiff is only entitled to a verdict if he or she establishes that the impugned publication carried a pleaded imputation, or an imputation that was not more serious than, and not substantially different in meaning from, a pleaded imputation.[40]

(4) The plaintiff's submission that the judge should have found that the article was incapable of conveying any imputations wider than imputations that the plaintiff had, as head of ACN after it acquired Phoenix in January 2015, managed Phoenix when it engaged in unscrupulous business practices and in significant non-compliance with quality standards - called by the defendant 'the new imputation' - were not the imputations pleaded. Further, the plaintiff did not submit at trial that the pleaded imputations were to be so understood.

(5) Moreover, the new imputation set new contextual and temporal elements.

(6) Again, whereas the pleaded imputations concerned conduct said to have been engaged in by the plaintiff himself, the plaintiff now contended for an imputation which asserted only that the plaintiff managed Phoenix when it engaged in disreputable conduct.

(7) The plaintiff could not have sought a verdict at trial on the new imputation because it was substantially different from the pleaded imputations in the three respects. But if the imputations which he did plead were not capable of being conveyed because they were wider than any imputation in fact conveyed by the article, then there should have been judgment for the defendant on that basis.

(8) The new imputation was an impermissible attempt to depart from the way in which the plaintiff's case was pleaded and prosecuted at trial.

(9) The imputations found by the judge were clearly permissible variants of the imputations pleaded by the plaintiff. They followed closely the language of the pleaded imputations, save for the reference to ACN. The judge explained why the difference was immaterial.

(10) Whether an imputation is a permissible variant of a pleaded imputation is determined by comparing the imputations. The plaintiff was incorrect to compare the imputation with the impugned article.

74 Orally, senior counsel for the defendant emphasised these submissions:

(1) The plaintiff went to trial on the pleaded imputations. He was entitled to succeed if the judge found that those imputations or permissible variants were established. The defendant had denied that the article conveyed the pleaded imputations or permissible variants. It had alternatively pleaded the substantial truth of the pleaded imputations or any permissible variants. This was not a Hore-Lacy defence.

(2) The defendant had always said that ACN was the embodiment of companies in the CTI group. Trial Reasons [88]-[102] showed that this was in fact the situation, and how it came to be so. The plaintiff had 'headed' ACN from its incorporation in March 2014, doing so as the head of companies in the CTI Group. This was clearer still from 30 September 2014.

(3) The justification defence engaged, as it must have done, with 'the imputations carried by the matter of which the plaintiff complains'.[41]

(4) If the narrow meaning of the article, set out (though incompletely) in paragraph 14 of the plaintiff's written case, had been pleaded, the defence would necessarily have been very different. A plea of justification could not have been raised. Consideration would have to have been given to pleading contextual truth, mitigation of damage, and perhaps partial justification. This demonstrated that what the plaintiff now claimed was the meaning of the imputations was not a permissible variant of what had actually been pleaded. Counsel cited passages in the judgments of Ormiston JA and Charles JA in Hore-Lacy[42] in support of this submission.

(5) The 'context' submission, as deployed in this Court to argue that the pleaded imputations imported limitations of content and time, was not advanced at trial. A number of the imputations pleaded were inconsistent with that submission,[43] as was the plaintiff's conduct of the trial.

(6) The judge was correct to conclude, as he evidently did, that the words 'as head of ACN' were not part of the sting of the imputations. But even if those words had been retained, invocation of 'context' would not permit the plaintiff to import limitations of time and content.

(7) The judge was correct in stating, at TR [37], that the article was both general and specific. It conveyed broad imputations, as his Honour noted at TR [38(i), (j) and (k)], to none of which plaintiff's counsel had referred.

(8) The article was capable of the broad imputations found by the judge, by reason, inter alia, of the references to a 'sector wide crackdown', 'unscrupulous ... practices', and a 'broader investigation into a number of colleges and their agents following complaints about behaviour in the training and education sector that affects consumers, particularly the vulnerable'. Further, the article had highlighted conduct of ACN other than in connection with Phoenix.

(9) The reference in plaintiff's imputation (a) to the plaintiff 'engaging in unscrupulous business practices' was to be understood as a reference to his knowing involvement in those practices. See TR [51]. There was no difference between what was pleaded and the variant meaning of imputation (a) found by the judge - relevantly, that the plaintiff managed an organisation which engaged in unscrupulous business practices.

75 The judge's full analysis with respect to the imputations was as follows:

In my opinion, the reasonable reader would have noted that the article was both general and specific: it refers to problematic issues in the VET sector as a whole and also singles out two companies: Phoenix and Unique - who have been the subject of investigation or prosecution by the ACCC. Of significance, the only persons mentioned are Mr Brown and Mr Charan.

With this in mind, I think the reader would have taken the following matters out of the article (including the headline) relevant to Mr Charan:

(a) That the relevant regulatory authorities (including the ACCC) were cracking down on VET organisations, and Phoenix was one of these organisations;

(b) That there were numerous allegations made about the conduct of a number of organisations in the VET sector;

(c) That ACN was one of those companies under investigation by the ACCC in relation to the conduct of its subsidiary, Phoenix;

(d) That ACN's director, Mr Brown, was comfortable with Phoenix's conduct;

(e) That Mr Charan with Mr Brown 'headed' the management of ACN at the time of the publication of the article;

(f) That, under Mr Charan and Mr Brown's watch, ACN had acquired Phoenix, which had during 2014 received over $100 million worth of government-backed loans;

(g) That Phoenix, whilst under the control of ACN, had grown enrolments significantly;

(h) That Phoenix, an ACN company, had pressured students into enrolling; had not complied with quality standards; and was in the process of being deregistered by ASQA;

(i) That the ACCC was investigating training colleges which engaged in behaviour that affected vulnerable consumers;

(j) That Mr Brown and Mr Charan made 'fortunes' as a result of the listing of ACN, which received significant government subsidies; and

(k) ACN, controlled by Mr Charan and Mr Brown, was under investigation.

There are three matters I should mention before I go to the individual imputations.

First, counsel for Mr Charan submitted that common to each imputation was the proposition that Mr Charan engaged in these practices in his capacity as a director of ACN.[44] It was then said that any broader imputation raised a false issue - namely that given the limited nature of the suggested imputation then the defence of justification could only be tenable if Mr Charan had engaged in such conduct as a director of ACN - which he never was. I do not accept this. In my view, when the article is viewed as a whole, the imputation is that Mr Charan personally, as a director of an RTO, was involved in the impugned conduct. A reasonable reader (even a sophisticated reader of the business section of The Australian) would attach little or no importance to the reference to ACN. Rather he or she would focus on the role of Mr Charan as the manager of an RTO which was said to be implicated in unscrupulous practices involving vulnerable consumers.[45]

Second, as I mentioned earlier, notwithstanding the headline of both versions, the substance of the article is concerned not only with the activities of Phoenix and Unique but also their conduct in the VET sector generally.[46]

76 The judge then considered six arguments advanced by the defendant in opposition to the meaning which the plaintiff contended for by imputations (a) and (b). His Honour noted those contentions and then answered each of them:

Nationwide contends that these imputations are strained as an ordinary, reasonable reader:

(a) will not have understood any allegations made by the ACCC against ACN to be proven facts, a matter which is fatal to imputation (a);

(b) will not have understood the article to be imputing that the ACCC's allegations against ACN were of misleading, deceptive or unconscionable conduct - the article expressly states that they were the allegations made in the previous month by the ACCC against Unique;

(c) will have observed that the ACCC's allegations against ACN are nowhere specified in the article - while, therefore, they might have wondered about whether there was any connection between the ACCC's announcement 'last month' and its separate announcement concerning ACN, it would involve an excessive degree of loose thinking or avidity for scandal to conflate the allegations against Unique with the allegations against ACN;

(d) will also have observed that the only reference to 'vulnerable' people in the article appears in paragraph 8, in connection with Unique, not ACN;

(e) will not have understood the article to be imputing that Mr Charan amassed a fortune as a result of unscrupulous business practices - the article expressly states that the amassing of fortunes was the result of the listing of ACN (and identifies, in paragraph 2, that the government funding apparently of concern to the ACCC had occurred 'this year'); and

(f) will not have understood the article to be imputing that Mr Charan had personally engaged in, or was personally suspected of engaging in, unscrupulous business practices - at highest, the article imputes that Mr Charan was the head of a very big company that was the subject of allegations by the ACCC.

For the following reasons, I do not accept any of these arguments.

As to (a), when the article is read as a whole and not dissected minutely, it is evident the article means more than the making of allegations, and conveys, indeed not too subtly, the following meaning: Phoenix, managed by a company controlled by Mr Charan, has in fact engaged in disreputable conduct and failed to comply with the regulator's quality standards. This has led to Mr Charan making a lot of money. I reject the proposition that the reader would conclude that these were allegations rather than assertions of fact.

As to (b), for reasons I set out subsequently, I accept that the article does not convey that ACN engaged in specific 'misleading and deceptive conduct'. However that does not resolve the matter. The article as a whole implies that a company under Mr Charan's control engaged in unscrupulous business practices that took advantage of vulnerable consumers. I also reject the proposition that the reader would confine that assumption to the conduct of Unique.

As to (c), whilst it is correct that there is no detail as to the ACCC allegations against ACN, there are specific allegations concerning Phoenix, which I have set out. The imputation does not result from loose thinking (which is permissible in any event provided it can be properly inferred from the article) - in the context of the reasonable reader trying to make sense of the article as a whole. Indeed I suspect that 'loose thinking' for a vigilant defamation lawyer may be exactly what the reasonable reader may legitimately take out of an article as the true meaning.

As to (d), it is correct that there is no specific reference to the conduct of Phoenix in dealing with vulnerable consumers. But the context of the reference to Phoenix sending sales staff into housing commission estates to pressure potential students is directly followed by a reference to a 'broader investigation' into colleges that 'affects consumers, particularly the vulnerable'. This means, I think, that a reader would conclude that Phoenix (and therefore Mr Charan) had engaged in such conduct.

As to (e), if this proposition is to be accepted, one might well question why there was any reference in the article to the listing of the company (ACN) and the fortunes realised by Mr Charan and Mr Brown. To any sensible reader the link is obvious - these men made a lot of money out of the listing that was facilitated by the use of unscrupulous business practices.

As to (f), whilst it is correct that Mr Charan was the head of the company, taken as a whole and particularly in light of the reference to the money made by Mr Charan out of the listing, it is patent that the imputation is that Mr Charan was knowingly involved in the unscrupulous practices of the companies.[47]

77 His Honour's summation with respect to imputation (a) as pleaded was as follows:

I repeat what I said previously: the imputation is not confined to Mr Charan's management of ACN. I do not think that a reader would take any real notice of the company name ACN; rather, he or she would identify Mr Charan as the manager of a VET organisation from which he made a lot of money when it floated in December 2014, and that he had been involved in its management prior to that date and, further, that he was still managing that company at the time Phoenix's conduct was detailed in the article.

As I see it, the relevant meaning is a permissible variant[48] of imputation (a): Mr Charan managed a VET organisation which engaged in unscrupulous business practices that took advantage of vulnerable consumers and, as a result of which, he made a large amount of money.[49]

78 With respect to pleaded imputations (g) and (h), the judge set out two arguments raised by the defendant in support of a submission that the article did not convey either such imputation:

Nationwide disputes that this meaning is conveyed and says that:

(a) Ordinary, reasonable readers of the article will not have understood the article to convey that Mr Charan was responsible for carrying on business in a manner that involves, or is reasonably suspected of involving, significant non-compliance with the quality standards required from providers of vocational educational services; and

(b) At highest, the article imputes that Mr Charan was the head of a very big company that had carried on, or was reasonably suspected of having carried on, business in that manner. [50]

The article refers to action being taken against Phoenix, and when combined with the reference to ASQA's findings in relation to significant non-compliance with quality standards and deregistration of that company, the imputation is unequivocal. Phoenix is an ACN company and the article nominates Mr Charan as a director of ACN.[51]

80 His Honour rejected the second argument, saying:

The reference to deregistration combined with non-compliance means far more than an investigation into practices. It readily implies that a company managed by Mr Charan was, in fact, non-compliant with the quality standards. The article conveys far more than 'reasonable suspicion'. It says positively that, as a fact, it is being deregistered because of significant non-compliance with quality standards.[52]

I repeat what I said at [40] in relation to the nature of the imputations. I think a reader would not focus on ACN but rather that Mr Charan was in a managerial/ownership role of a VET organisation.

Accordingly, I think the relevant meaning conveyed by the article, which is a slight variant of the pleaded imputation, is as follows: Mr Charan managed a VET organisation that was significantly noncompliant with quality standards.[53]

82 We address first the question of pleadings. The plaintiff has contended at various times that the defendant was required to plead a Hore-Lacy defence. Failure by the defendant to articulate an alternative meaning[54] explained, so it was argued for the plaintiff in this Court, why false issues infected the trial.

83 It is instructive to see the way in which the plaintiff developed its position. The defendant delivered a proposed amended defence together with its solicitors' letter of 23 September 2016. The proposed justification defence read this way:

5A Further or alternatively, if (which is denied) the Print Article and the Web Article are defamatory of the Plaintiff in the meanings alleged in sub-paragraphs 5(a)-(b) and 5(g)(h) of the SFSOC, or any permissible variant thereof, then in those meanings the Print Article and the Web Article are substantially true and accordingly the Defendant has a defence in respect of the publication of those meanings both at common law and pursuant to section 25 of the Defamation Act 2005 (Vic), and the equivalent provision in the other States and Territories of Australia.

PARTICULARS

(A) On or about 24 June 2013, the Plaintiff, together with Mr Ivan Brown, registered a company called The Community Initiatives Group Pty Ltd (ACN 164 432 053) (CIG). The Plaintiff and Mr Brown were the founding shareholders, with each holding half of the shares. The Plaintiff held his shares through a company called Sapra Enterprises Pty Ltd (ACN 130 980 817) (Sapra), of which he is the sole director and shareholder.

(B) On or about 29 November 2013, the Plaintiff, together with Mr Brown, acquired an interest in a second company called Consider this Training Pty Ltd (ACN 144 662 868) (CTT), through the purchase of all of its shares by a company called Health Training Services Pty Ltd (ACN 164 821 185) (HTS). The Plaintiff (through Sapra) owned half of the shares in HTS until 1 October 2014. Mr Brown owned the other half of the shares in HTS.

(C) On or about 17 March 2014, the Plaintiff, together with Mr Brown and others, registered a third company called Australian Careers Network Ltd (ACN 168 592 434) (ACN). The Plaintiff was a founding director, and until on or about 11 December 2014 he held 33% of the shares in ACN.

(D) On or about 3 June 2014, CIG purchased all of the shares in a fourth company called Thoan Pty Ltd (ACN 009 983 993) (Thoan). At the same time, the Plaintiff became the sole director of Thoan. The Plaintiff remained the sole director of Thoan until 30 September 2014. Thoan operated under the business name 'Australian Management Academy'.

(E) In the course of 2014, CTT and Thoan operated as private vocational education and training (VET) providers. They each had a 'VET Funding Contract' with the State of Victoria, pursuant to which the State made payments to them for the provision of education and training services.

(F) On 30 September 2014, ACN purchased all of the shares in CTT and Thoan (by purchasing all of the shares in CIG). ACN was then the holding company of the 'ACN Group', which included CTT and Thoan. At the same time, the Plaintiff ceased being a director of ACN, and on or about 11 December 2014 ceased being a major shareholder of ACN.

(G) On or about 24 November 2014, following widespread allegations of misconduct by VET providers, the Senate referred the operation, regulation and funding of VET providers to the Education and Employment References Committee for inquiry and report.

(H) In early to mid-2015, the Victorian Department of Education and Training (Department) appointed auditors to review student enrolments at both Thoan and CTT (Auditors).

(I) The Auditors reviewed student enrolments at Thoan and CTT for the 2014 period, being the period when the Plaintiff was the sole director of Thoan and owned half of the shares in CTT.

(J) The reviews identified material breaches by both CTT and Thoan of their VET Funding Contracts with the State, which resulted in the State suspending, and then terminating, the contracts.

(K) In respect of CTT, it had made claims for, and received, funds from the State under its VET Funding Contract for the delivery of training services in 2014 that it did not provide.

(L) Further, the Department reasonably believed that CTT's conduct was fraudulent on the basis that a significant number of students had informed the auditors that they had not enrolled or participated in courses contrary to data reported by CTT.

(M) In respect of Thoan, it breached clauses 4.6 and 4.10 of Schedule I to its VET Funding Contract in respect of all students enrolled in the Certificate IV in Building and Construction in 2014. Those clauses required it to conduct a Pre-Training Review of current competencies prior to accepting enrolments from students, and to document the review.

(N) It can be inferred from the following matters that the Plaintiff was knowingly involved in the conduct of CTT and Thoan:

(i) the particulars in paragraphs (A)-{F) and (I) above;

(ii) the Plaintiff, together with Mr Brown, was the founder of CTT and Thoan, as VET providers;

(iii) the Plaintiff, together with Mr Brown, was the 'driving force' behind the ACN Group at all material times;

(iv) as at 26 November 2014, the Plaintiffs shares in ACN were valued at approximately $36.55 million;

(v) as at 26 November 2014, the Plaintiff had such intimate knowledge of the operations of the ACN Group (which included the operations of CTT and Thoan) that he entered into the restraint referred to in paragraph 6(aa) below, which was to have effect from the sale of his majority shareholding in ACN.

(O) Contrary to the express representation that the Plaintiff instructed his solicitors to make to the Defendant in his Concerns Notice dated 27 November 2015 (page 5), the Plaintiff had been 'the subject of investigations by government regulatory authorities', and, further, serious findings had been made resulting in the termination of his companies' VET Funding Contracts, as set out in the above particulars.

(P) The Plaintiff received significant funds through the operations of CTT and Thoan. The Plaintiff, together with Mr Brown, are listed in the 2014 Edition of the 'BRW Young Rich List' as having wealth of $177 million.

84 The plaintiff's solicitors responded by letter dated 26 September. Relevantly, the letter in reply said this:

The imputations which your client now seeks to justify are focused upon the plaintiff's unscrupulous business conduct and his significant non-compliance with quality standards as the head of ACN. The particulars provided under paragraph 5A are entirely inadequate and are not capable of justifying those imputations.

85 The writer referred to certain particulars of paragraph 5A, and, in one case, questioned how described conduct could be sheeted home to the plaintiff, in another case referred to an apparent conflict internal to the particulars, and in a third case referred to an assertion that the plaintiff had been the subject of investigations by regulatory authorities when he knew nothing of such a thing.

86 Given that the letter was not exhaustive in describing the imputations which the plaintiff then pleaded, we note that there was no reference either to Phoenix or to 2015.

87 Next, we refer to written submissions made for the plaintiff on the application by the defendant for leave to plead the justification defence. The submissions, in part, said this:

In their present form, the particulars of justification in the proposed Amended Defence are not capable of justifying any of the imputations pleaded by the plaintiff in the Further Amended Statement of Claim, because inter alia they do not relate to his conduct as 'head of ACN'. This is not altogether surprising, as even the defendant appears to accept that he was not the head of ACN [at] the relevant times.

Given the particulars do not squarely meet the plaintiff's imputations, the plaintiff is left to guess whether the real purpose of paragraph 5A of the proposed Amended Defence is to justify 'any permissible variant' of the imputations pleaded in paragraphs 5(a)-(b) and 5(g)-(h) of the FASOC, which is pleaded as an alternative in paragraph 5A. If that is the case, the defendant must have taken the view (in accordance with the NSW authority of Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154) that a defendant need not actually plead alternative Hore Lacy imputations/meanings in its Defence.

The plaintiff submits that an Associate Judge of this Court could not accept such a proposition, in light of the binding precedent in this jurisdiction endorsing that 'rule' or 'practice': see eg Setka v Abbott & Anor [2014] VSCA 287; 44 VR 352; David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; [2000] 1 VR 667.

However, it does not wish to argue the merits of respective the pleading practices of NSW and Victoria, as even if it may be permissible not to positively plead an alternative meaning that is sought to be justified, this does not abrogate the obvious and 'unexceptionable principle' which continues to be referred to in relevant NSW authorities following the decision in Bateman, 'that a defendant, by its pleading and particulars, must put the plaintiff on notice of the case he or she is required to meet (they should "furnish a statement of the case sufficiently clear to allow the other party to fair opportunity to meet it": Dare v Pulham (1982) 148 CLR 658 at 664.2)'.

88 It is next convenient to refer to some of what was said by senior counsel for the defendant and counsel for the plaintiff on the hearing of the application to plead the justification defence.

Imputation (a)[55] is the plaintiff as head of ACN has amassed a fortune by engaging in unscrupulous business practices that take advantage of vulnerable consumers and government funding schemes in the education and training sector. Then (b) which [was] put in the alternative we infer. There are reasonable grounds to suspect that the plaintiff has so amassed a fortune.

And

Our friends as we read the only point of substance is whether we ought be denied from running a defence of justification because of the inclusion of the words, 'As head of Australian Careers Network' in imputations (a) and (b). We note the same point about imputations (g) and (h).

If one leaves aside the words, 'As head of ACN,' in our submission the documents we've taken Your Honour to provide a responsible basis for asserting that those imputations are matters of substantial truth. Now in our submission there is nothing in the point that there is significance to the inclusion of the words 'As head of ACN' in the imputations.

The difference is immaterial or at best is a matter to go to the tribunal of fact on the basis of all the evidence. The reason for that is it is trite law that to succeed in a defence or justification the defendant needs to prove only that the imputations is substantially true.

Now here the sting of the alleged [libel] relevantly is that the plaintiff has amassed a fortune as a result of his involvement in businesses that have or are reasonably suspected of having engaged in unscrupulous business practices or of having not complied with quality standards.

HIS HONOUR: What you're suggesting is that if those words, 'As head of ACN,' were not included in the statement of claim or in the imputations pleaded it would really make no difference.

Make no difference.

The sting here is an involvement in unscrupulous business practices and non-compliance with government contracts.

90 Next, we refer to some of what plaintiff's counsel submitted on that occasion.

91 Referring to the particulars of justification, counsel said this:

I don't submit that they're hopeless. I have not submitted that if these allegations were made at an earlier stage of the proceedings that they may not be arguable. What I submit is that at this stage of the proceedings, only one month out from trial the plaintiff was required to and as we understand it has put on a broad outline of all the evidence it has to support the allegations. That will not make good the claims. Most of it will not be admissible.

Today is the first time we know what the imputations or the meanings are that the defendant would attempt to justify at the trial. It's plain that they do not intend to justify the plaintiff's imputations.

Now we accept that an alternative meaning to both parties pleadings can be found by the judge. But in this case it's clear that our friends do not intend to justify the plaintiff's imputations as they are stated. They intend to justify what they say is a permissible variant of it.

HER HONOUR: What I thought the defendant is attempting to do is justify an imputation that would in effect be the same as what you have pleaded in relation to the ones that they seek to address. But as if the words, 'As head of ACN' were not there.

COUNSEL: Well Your Honour that's what has been stated from the Bar table today, that's not what is pleaded.

[Defendant's counsel] may say that the matters which he submits the defendant would be seeking to justify are clearly within the range of permissible variants. But with respect he should put those matters in a pleading.

If I may just go through some of the matters made in oral submissions by my friend. The point which seemed to be made was that we're taking a technical position that the plaintiff was not the head of ACN. That is not the position which is being adopted. The position which is being adopted is that he was not involved in any of this conduct. He had no knowledge of it and he was not involved in it.

92 It seems to us to be clear that, despite what senior counsel for the defendant had submitted, the plaintiff's understanding was that the defendant was not seeking to justify the pleaded imputations, but was in the territory of alleging some different imputations which it would then seek to justify.

93 In reply, senior counsel for the defendant said this:

We don't seek to advance what's become known as a permissible variant defence which derives from a decision of the Court of Appeal in a case called David Syme v Hore-Lacy. We are seeking to adduce a simple defence of truth [simpliciter] at common law and pursuant to the statute ... We say it's a matter for the tribunal of fact ultimate[ly] to decide whether the evidence which is adduced in support of that defence amounts to a proof of substantial truth or not. Now the Court might say it's not close enough it's not substantial enough. But as our friend concedes or we understood him to concede the defence is at least arguable.

94 A defence of truth simpliciter is a defence to the imputation(s) pleaded and any permissible variant. If such a defence is pleaded, it is always open to a plaintiff to seek to have the defence struck out on the grounds that, for one reason or another, it is unarguable. That is what the plaintiff might have sought to do on this occasion.[56] The solicitors' letter of 26 September 2014 and the first paragraph of the written submissions of plaintiff's counsel anticipated such an argument. But instead, on the hearing of the application on 5 October 2014, plaintiff's counsel focussed upon the idea that the defendant was not seeking to justify the pleaded imputations (and any permissible variants) but was instead setting up other imputations and seeking to justify them.

95 Other than that, it is notable that, whilst plaintiff's counsel focussed upon the words 'as head of ACN', this flowing from what defendant's counsel had earlier submitted, he made no reference either to Phoenix or to 2015.[57]

96 We have already referred to ground 2A(b), which complains that the judge erred when, on 14 December 2016, he refused to strike out the justification defence. It is apparent from his Honour's reasons that he was not asked to do so either because the justification defence was incapable of meeting the plaintiff's pleaded imputations or any permissible variant thereof; or because, consistently with the plaintiff's earlier stated position, it was necessary for the defendant to plead a Hore-Lacy defence.

97 By this time, we note, the defendant had provided Further and Better Particulars of Defence[58] and had delivered its first version of Consolidated Particulars of Truth.[59] It is convenient to set out the text of the latter, which developed and expanded the matters upon which the defendant relied:

Creation of the ACN Group for listing on the ASX

1. In 2012 the Plaintiff and his business partner, Mr Ivan Brown founded Community Training Initiatives Pty Ltd (CTI). CTI was involved in the educational and training sector.
2. On or about 24 June 2013, the Plaintiff, together with Mr Ivan Brown, registered a company called The Community Initiatives Group Pty Ltd (ACN 164 432 053) (CIG). The Plaintiff and Mr Brown were the founding shareholders, with each holding half of the shares. The Plaintiff held his shares through a company called Sapra Enterprises Pty Ltd (ACN 130 980 817) (Sapra), of which he is the sole director and shareholder.
3. On or about 29 November 2013, the Plaintiff, together with Mr Brown, acquired an interest in a company called Consider this Training Pty Ltd (ACN 144 662 868) (CTT), through the purchase of all of its shares by a company called Health Training Services Pty Ltd (ACN 164 821 185) (HTS). The Plaintiff (through Sapra) owned half of the shares in HTS until 1 October 2014. Mr Brown owned the other half of the shares in HTS.
4. At the time, CTT was the legal entity operating a training organisation (RTO) registered with the Victorian Registration and Qualifications Authority (VRQA) (registration number 21883).
5. After having acquired all of the shares in CTT, on 17 February 2014, the Plaintiff and Mr Brown sent a letter, signed by each of them, to the VRQA informing the VRQA that they were the 'new Directors and Owners of' CTT. The Plaintiff signed a 'Fit and Proper Person Requirements declaration' in which he described himself as a 'Director' of CTT, and he enclosed the declaration in the letter to the VRQA. He also signed, and enclosed in the letter, a statutory declaration. By his signed statutory declaration, the Plaintiff declared that he:

(i) understood the requirements of the Education and Training Reform Act 2006 and had sought legal advice to clarify any aspect that he did not understand; and

(ii) agreed to comply with the Act, the Australian Quality Training Framework Essential Standards for Registration and all guidelines approved by the VRQA.

1. Accordingly, from around late 2013 to early 2014, the Plaintiff and Mr Brown acquired CTT and commenced operating the RTO and were the driving forces behind it. They appointed a new Chief Executive Officer, Mr Michael Moffat, who reported to them. They made changes to the scope of registration by removing and adding courses.
2. By late 2013 to early 2014. the Plaintiff and Mr Brown had devised of 'Project Standard'. The ultimate objective was to establish a group of companies. With Australian Careers Network Ltd (ACN) as the holding company, and then have the group listed on the Australian Securities Exchange (ASX). The size of the operations of each of the companies that were to form part of the group would drive the value of the shares on the public listing.
3. On or about 17 March 2014, the Plaintiff, together with Mr Brown and others, registered ACN. The Plaintiff was a founding director and until on or about 15 December 2014 he held 33% of the shares in ACN.
4. On or about 3 June 2014, CIG purchased all of the shares in a fourth company called Thoan Pty Ltd (ACN 009 983 993) (Thoan). At the same time, the Plaintiff became the sole director of Thoan. The Plaintiff remained the sole director of Thoan until 30 September 2014. Thoan operated under the business name 'Australian Management Academy'.
5. At the time of the purchase, Thoan was the legal entity operating AMA, which was a training organisation registered with the Australian Skills Quality Authority (ASQA) (registration number 21621).
6. After having acquired all of the shares, on 6 June 2014, the ASQA was notified, in writing, of material changes to the management of AMA. A 'Notification of material change or event' form was submitted, in which the Plaintiff was described as the new Chief Executive Officer of AMA. It was accompanied by a statutory declaration signed by the Plaintiff in which he described himself as 'CEO' (after crossing out 'Man', being 'Managing Director' or 'Manager'). By his statutory declaration, the Plaintiff declared that he:

(i) had read and understood the VET Quality Framework; and

(ii) accepted responsibility for ensuring that AMA complied with the VET Quality Framework and the conditions of registration.

1. On 20 July 2014, the ASQA was notified, in writing, of material changes to the management of AMA. The ASQA was notified that the Plaintiff was the 'Managing Director' of AMA. The Defendant refers to the following documents provided to the ASQA:

(i) an organisational chart for AMA, which shows the Plaintiff and Mr Brown as the two senior managers at AMA. The Plaintiff is described as the 'Managing Director' and Mr Brown as the 'Chief Executive Officer';

(ii) a 'Fit and Proper Person Requirements declaration' signed by the Plaintiff in which he describes himself as a 'Director' of AMA; and

(iii) a 'Notification of material change or event' form in which the Plaintiff is described as the 'executive officer/high managerial agent' of AMA.

1. Accordingly, from early June 2014, the Plaintiff and Mr Brown acquired Thoan and commenced operating AMA and were the driving forces behind it. Changes were made to the scope of registration by adding courses.
2. In the course of 2014, CTT and Thoan operated as private vocational education and training (VET) providers. They each had a 'VET Funding Contract' with the State of Victoria, pursuant to which the State made payments to them for the provision of education and training services.
3. On 30 September 2014, ACN purchased all of the shares in CTT and Thoan (by purchasing all of the shares in CIG). ACN was then the holding company of the 'ACN Group', which included CTT and Thoan. At the same time, the Plaintiff ceased being a director of ACN.
4. On or about 15 December 2014, ACN Group was listed on the ASX. At that time, the Plaintiff sold his shareholding in ACN for approximately $36.55 million.
5. On or about 24 November 2014, following widespread allegations of misconduct by VET providers, the Senate referred the operation, regulation and funding of VET providers to the Education and Employment References Committee for inquiry and report.
6. In early to mid-2015, the Victorian Department of Education and Training (Department) appointed auditors to review student enrolments at both Thoan and CTT.
7. The auditors reviewed student enrolments at Thoan and CTT for the 2014 period. It was during the 2014 period that the Plaintiff was:

(i) the sole director and 50% owner of Thoan;

(ii) 50% owner of CTT; and

(iii) operated, was the driving force behind, and was intimately involved in the operation of, CTT and Thoan/AMA.

Audit of CTT

1. On a date presently unknown to the Defendant, but prior to 18 March 2015, the Department ·appointed Protiviti to conduct an Evidence of Eligibility audit (EOE Audit) and an Evidence of Participation audit (EOP Audit) of 2014 enrolments at CTT.
2. The objective and scope of the EOE Audit was to identify whether evidence of eligibility that met the requirements of CTT's 2014 VET Funding Contract was available to support claims that CTT had made for funding under its 2014 VET Funding Contract.
3. The objective and scope of the EOP Audit was to identify whether documentation that met the evidence of participation requirements of CTT's 2014 VET Funding Contract was available to support claims that CTT had made for funding under its 2014 VET Funding Contract.
4. The EOE Audit was conducted from 18 March 2015 to 7 April 2015. Further audit work was undertaken after 7 April2015 and up until 25 June 2015.
5. The EOE and EOP Audits involved interviews with at least 100 students across various courses, namely the Certificate II in Understanding and Management of Diabetes, Certificate III in Children's Services, Certificate III in Early Childhood Education and Care and the Diploma in Early Childhood Education and Care.
6. The EOE and EOP Audits also involved a review of a broad range of documentation, including student enrolments, Pre-Training Reviews, broker agreements, course materials, and trainer information. The documentation was in respect of courses with commencement dates ranging from 6 February 2014 to 6 December 2014.

1. On a date presently unknown to the Defendant, but prior to 7 July 2015, the Department appointed Ernst & Young to conduct a review of Thoan/AMA's contractual compliance and obligations under its 2014-16 VET Funding Contract (Review).
2. The scope and purpose of the Review was to consider the business processes and internal control environment employed by Thoan/AMA and all aspects of training delivery to achieve compliance with its contractual obligations under the 2014-16 VET Funding Contract. The Review considered five qualifications, namely the Certificate III in Aged Care, Certificate II in Understanding and Management of Diabetes, Certificate III in Early Childhood Education and Care, and the Certificate IV in Building and Construction.
3. The Review was conducted from 9 to 31 July 2015.
4. The Review involved interviews with 89 students, 20 trainers and 6 representatives of Thoan/AMA.
5. The Review also involved the examination of 390 student files and 72 trainer files.
6. The Review was in respect of 5 courses, namely the Certificate III in Aged Care, Certificate II in Understanding and Management of Diabetes, Certificate III in Early Childhood Education and Care, Diploma of Early Childhood Education and Care, and the Certificate IV in Building and Construction. The Review considered 2015 enrolments for each course. However, in respect of the Certificate IV in Building and Construction, it also considered enrolments from April 2014, as well as enrolments in 2015.

1. The EOE and EOP Audits of CTT identified a material breach by CTT of its VET Funding Contracts with the State, which resulted in the State suspending, and then terminating, the contract.
2. The material breach found was that CTT had made claims for, and received, funds from the State under its VET Funding Contract for the delivery of training services in 2014 that it did not provide.
3. Further, the Department reasonably believed that CTT's conduct was fraudulent on the basis that a significant number of students had informed the auditors that they had not enrolled or participated in courses contrary to data reported by CTT.
4. Of the 84 students interviewed between 7 April 2015 and 25 June 2015, 79 students (94%) told Protiviti that they had not enrolled, or participated, in the Certificate II in Understanding and Management of Diabetes.
5. Up to the termination of CTT's 2014 VET Funding Contract, the State had paid to CTT at least $1.73 million for training allegedly provided to students. A significant proportion of students had not, in fact, enrolled or participated in the training and, therefore, a significant part of the $1.73 million plus, paid to CTT was paid for training that was not delivered.
6. So far as the Defendant can presently say, the claims for payment were in respect of the purported provision of training services in respect of the Certificate II in Understanding and Management of Diabetes, Certificate III in Children's Services, Certificate III in Early Childhood Education and Care, Certificate III in Aged Care, and the Diploma in Early Childhood Education and Care.
7. The Review of Thoan/ AMA identified material breaches by Thoan/ AMA of its VET Funding Contract with the State, which resulted in the State suspending, and then terminating, the contract.
8. The material breaches were of clauses 4.6 and 4.10 of Schedule 1 to the VET Funding Contract in respect of every student enrolled in the Certificate IV in Building and Construction in 2014. Those clauses required Thoan/AMA to conduct a Pre-Training Review of current competencies prior to accepting enrolments from students, and to document the review. Thoan/AMA did not assess students' existing competencies, students' reasons for enrolling, future aspirations or assess students' current level of education and learning needs.
9. The Review also found a material breach as defined in clause 1.1(a)(vi) of the 2014-16 VET Funding Contract, namely failure to act ethically and engaging in conduct which may damage, ridicule or bring into disrepute or be detrimental, to the Department, the VET sector, the Victorian government subsidised training market, the Department or the State's name or reputation.
10. The above business practices of CTT and Thoan/AMA took advantage of vulnerable consumers and government funding schemes in the education and training sector. To claim State funding in respect of a consumer who did not receive training and to enrol people without assessing, inter alia, their existing competencies is to take advantage of consumers. RTOs do not provide higher education qualifications. They provide training and education to those parts of the community that have not had the benefit of such an education.
11. It can be inferred from the following matters that the Plaintiff was knowingly involved in the above business practises of CTT and Thoan in 2014:

(i) The Plaintiff was the sole director of Thoan and co-owned both CTT and Thoan with his business partner, Mr Brown.

(ii) The Plaintiff, together with Mr Brown, was the purchaser of CTT and Thoan, as VET providers.

(iii The Plaintiff was the driving force behind, and intimately involved in the operation of, CTT and Thoan.

(iv) The Plaintiff, together with Mr Brown, was the 'driving force' behind the ACN Group at all material times from the time that the Plaintiff and Mr Brown conceived of the ACN Group (being a date presently unknown to the Defendant but, at the latest, late 20 13) until ACN was listed on the ASX on 15 December 2014, alternatively until about 30 September 2014.

(v) As at 26 November 2014, the Plaintiffs shares in ACN were valued at approximately $36.55 million and, accordingly, he would have taken an interest in and had an intimate knowledge of the operations of the ACN Group, including CTT and Thoan/AMA.

(vi) As at 26 November 2014, the Plaintiff had such intimate knowledge of the operations of the ACN Group (which included the operations of CTT and Thoan) that he entered into the restraint, which was to have effect from the sale of his majority shareholding in ACN.

1. Contrary to the express representation that the Plaintiff instructed his solicitors to make to the Defendant in his Concerns Notice dated 27 November 2015 (page 5), the Plaintiff had been 'the subject of investigations by government regulatory authorities', and, further, serious findings had been made resulting in the termination of his companies' VET Funding Contracts, as set out in the above particulars. The investigations (being the EOE and EOP Audits and the Review) were in respect of a period during which the Plaintiff owned, operated, was the driving force behind, and was intimately involved in the operation of, CTT and Thoan/AMA. An investigation into the conduct of a company can aptly be described as comprehending an investigation into the conduct of those who own, operate, are the driving force behind, and are intimately involved in the conduct of, the company.
2. The Plaintiff received significant funds through the operations of CIT and Thoan. The Plaintiff, together with Mr Brown, are listed in the 2014 Edition of the 'BRW Young Rich List' as having wealth of $177 million. The estimated wealth of the Plaintiff and Mr Brown was derived in substantial part from their ownership of what became the ACN Group.
3. Further, on 15 December 2014, the Plaintiff sold 21.5 million shares in ACN for approximately $36.55 million. At the time of the sale of the shares, ACN owned and operated CIT and Thoan, and they were significant parts of the operations of ACN. It is therefore to be inferred that a significant proportion of the consideration received by the Plaintiff upon the sale of his shares in ACN was attributable to the operations of CIT and Thoan. The operations of CIT and Thoan were tainted by the impugned conduct.

98 Next, we should refer to submissions made by senior counsel for the plaintiff early on in the trial. Counsel submitted that the justification defence was not available to the defendant. She submitted that:

Because the imputations arise in the context of this article and the subject matter of this article are the facts that ought to be justified, we say the matters this defendant is relying upon do not justify those facts.

99 Counsel further submitted that the justification defence was 'so disconnected from the subject matter of the article, it makes the whole proceeding quite surreal for [the plaintiff] and it is a very unusual case in those circumstances'.

100 When the judge responded, 'I understand what you say about the article but it's the imputation they draw from it they seek to justify', counsel replied, '[t]hat's right'.

101 Counsel having submitted that '[t]he imputations that are drawn relate to conduct as head of ACN', the judge having observed that the imputations did not refer to Phoenix, and counsel having agreed that this was so, counsel then went on to say this:

The imputations are broadly drawn and perhaps one would say that given all that's transpired, that has allowed the defendant some wriggle room but they are cast because they focus on ACN. They are talking about the conduct of ACN and when Your Honour comes to look at what imputations are conveyed, Your Honour will give context to those imputations by reference to the article, in our submission.

So we say this article is not about the conduct of Community Training Initiatives, it is not about Mr Charan's conduct in relation to building and construction certificate IV; it's about specific conduct that's unscrupulous but it relates to unlawful marketing, misleading and deceptive conduct that will be the subject of a Federal Court proceeding brought by the ACCC.

102 The reference to 'context' anticipated in a way the submission which was advanced for the plaintiff in this Court.

103 What is clear is that senior counsel for the plaintiff did not pursue an argument that the defendant was required to plead a Hore-Lacy defence.

104 Finally, we should refer to submissions made by plaintiff's counsel at the conclusion of the trial. We were referred to a number of paragraphs of those submissions. They say nothing about the need for the defendant to have pleaded a Hore-Lacy defence. But they do bear upon the 'context' submission which was advanced in this Court. Thus:

1. By paragraph 5A of its Amended Defence Nationwide seeks to justify imputations 5(a), (b), (g) and (h). The particulars upon which it relies and the evidence that it has been permitted to lead at trial have, however, nothing to do with the subject matter of the Articles. Nor do they relate in any way to the conduct of the plaintiff 'as head of ACN'. Nationwide does not allege or seek to prove any conduct of Charan with respect to Phoenix or the proceedings instituted by ACCC against it or that were the subject of any investigation by ASQA or the federal Department of Education. Rather, its case at trial relates entirely to conduct in 2014 with respect to two other registered training organisations (RTOs), Consider This Training Pty Ltd (CTT) and Thoan Pty Ltd (trading as the Australian Management Academy) (Thoan) which is particularised in a document entitled Defendant's Second Consolidated Particulars of Truth (Consolidated Particulars).
2. Nationwide submitted that the plaintiff's imputations were so broadly drawn as to permit it to rely upon the matters set out in its Consolidated Particulars. But that ignores the words 'as head of ACN' contained in each of the pleaded imputations. Those words restrict the issues to the conduct of the plaintiff as head of ACN. The imputations are not divorced from the Articles, but must be understood in the context of the Articles.[60]
3. Nationwide's approach is a sleight of hand that ignores entirely the literal meaning of the Articles and the pleaded imputations because, of course, Nationwide cannot justify those meanings. Instead, it has used this proceeding to investigate Mr Charan and to make allegations against him which have not ever been the subject of any article that it has published or, more importantly, any investigation by the federal Education Department, ASQA or the ACCC. It relies entirely on matters said to have occurred in 2014 before ACN was listed and commenced operation. The Defence accordingly raises entirely false issues. This submission is developed below.

1. The reference in each of the imputations to 'as the head of ACN' restricts the issues raised by the plaintiff in this proceeding to the activities of that company. As ACN only became operational after 30 September, the inclusion of the words also place a temporal limit on the issues raised by the imputations.
2. More fundamentally, the Plaintiff was never the head, or a head of, ACN. ...

1. The defendant submits that there is no material difference between the group of companies that comprised CTI, CTT and AMA and, after 30 September 2014, ACN. The Court has permitted the defendant to pursue such a defence, but the plaintiff maintains that the approach adopted has caused the proceeding to be concerned with false issues.

1. The date by which Charan ceased to be involved in the business of CTT is critical to the resolutions of the issues in the proceeding with respect to the CTT allegations. That is because the material breaches alleged against CTT all occurred after 30 September 2014. If the Court concludes that at this date he was no longer effectively 'the head of ACN' then the justification defence must fail (although there are many other reasons why it should fail).
2. There is scant evidence of Charan's real involvement in the day to day management of the RTO's between 30 September and 15 December 2014 and no reasonable basis to suggest that he was knowingly involved in any business practice that commenced after 30 September 2014 (discussed further below).

105 In this Court, the plaintiff advanced the submissions noted at [72(2)] above. This appeared to be a return to the position advanced by plaintiff's counsel on the application by the defendant to plead the justification defence. We do not accept that it is correct.

106 The concept of particularising meanings in defamation proceedings was summarised in Setka.[61] The central notion of a Hore-Lacy defence is that it denies that an impugned publication conveyed the meaning or meanings[62] particularised by the plaintiff. It does not seek to justify that meaning. It sets up a different meaning, which must be a permissible variant of the meaning pleaded by the plaintiff. It is that meaning, and none other, which the defendant seeks to justify.[63] This is fundamentally different to the situation where, the defendant having denied that a publication conveys the meaning pleaded by the plaintiff, the defendant goes on to plead in the alternative that such meaning was substantially true. Because the plaintiff can succeed not only on the pleaded meaning but upon a permissible variant, it follows that a plea of justification to the pleaded meaning must necessarily extend to any permissible variant of that meaning.[64] The availability of such a plea is a matter to which Beach JA adverted in argument.

107 This is what the defendant essayed to do in the present case. Its starting point was that the words 'as head of ACN' were surplusage, in the sense that 'the sting of the libel was that the plaintiff amassed a fortune as a result of his involvement in businesses that ... engaged in unscrupulous business practices'.[65] Whether 'surplusage' quite accurately described the defendant's position is beside the point.[66] If the words 'as head of ACN' were not lined out, the question was still whether the justification defence engaged with the plaintiff's pleaded meaning or any permissible variant, and established the substantial truth thereof.

108 Whatever be the reason, the plaintiff did not make application to have the plea struck out as being unarguable. Complaint that the particulars raised false issues was not a satisfactory substitute for making such an application. On such an application, the judge would have been required to determine the meaning of the plaintiff's pleaded imputations. It would have been open to the plaintiff to pursue the 'context' argument as developed in this Court. If it was not arguable that the justification defence engaged with the pleaded imputations, that would have been the end of it. If, on the other hand, the application had failed, the plaintiff could have chosen to plead narrower meanings - specifically confined to the plaintiff/ACN/Phoenix/2015. In the overall scheme of things, the risk of an adverse outcome, a consequential costs order and the need to re-plead might have been thought to be a risk worth taking.

109 The judge did not in his reasons address the absence of a Hore-Lacy pleading. Such absence was not a live issue. His Honour did address, and in formulating the variants of imputations (a) and (g), in substance accepted, the defendant's surplusage submission, in the sense in which we have described it at [107] above.

110 We have set out at [98]-[101] above submissions made by senior counsel for the plaintiff at the outset of the trial; and at [104] above, certain closing written submissions for the plaintiff. Plainly, the pleaded words 'as head of ACN' were said to be of importance. It was submitted in writing that the inclusion of those words restricted the issues to the conduct of the plaintiff as head of ACN. This meant, it was submitted, that the issues raised by the plaintiff were confined to the activities of ACN. Because that company only became operational after 30 September 2014, the inclusion of the words 'as head of ACN' placed a temporal limit - that is, not earlier than 1 October 2014 - on the issues raised by the imputations. Fundamentally, it was submitted, the plaintiff was never the head of ACN. Further, it was submitted, if the Court concluded that after 30 September 2014 the plaintiff was no longer effectively the head of ACN, then the justification defence must for that reason fail.

111 It is correct to say that the submissions to which we have referred contended that the words 'as head of ACN' attached certain limitations to the meaning of the pleaded imputations. But we do not accept that the effect of the submissions was to limit the meaning of the imputations to the plaintiff's non-existent role as a head of ACN in 2015 with respect to the activities of Phoenix. We have pointed out that there were a number of opportunities for the plaintiff to so submit; and that such a submission was not advanced.

112 That is not, however, necessarily fatal to the plaintiff's submission in this Court. The plaintiff argued that, by reference to accepted principles in giving meaning to pleaded imputations, the words 'as head of ACN' imported the limitations as to time and content the subject of the submission noted at [72(4)] above.

113 We turn to the authorities relied upon by the plaintiff to make good that submission, and to examine the use of 'context'.

114 In Bateman, Basten JA observed that, 'as a practical matter', the meaning of an imputation will not be considered 'entirely in the abstract without reference to the matter complained of'.[67]

115 In that connection, his Honour cited two passages in the judgment of Mason P in Greek Herald. There, the President said that 'words, a fortiori words not found in the text, are necessarily to be read in context'.[68] His Honour was referring to words used in an imputation.

116 In Greek Herald, to give life to what was said by Mason P, the publication alleged that the plaintiff and other committee members of a soccer club had lied by telling the members that only one offer had been made to purchase a sports ground. The Defamation Act 1974 (NSW) ('the 1974 Act') was then operative. Each pleaded imputation constituted a cause of action. The plaintiff pleaded an imputation that 'the plaintiffs lied to members' of the club.

117 The defendant put defamatory meaning in issue. It did not plead justification.

118 At trial, defendant's counsel argued that merely to be accused of lying was not defamatory without specification of what the lie was about, why it was told, or its effect. Counsel made reference to an adult telling a child about Father Christmas, and about a fire officer telling people in a crowded theatre with an inferno behind the scenes that there was no cause for alarm.

119 The trial judge directed the jury that it should look at the imputations in the context of the publication as a whole. He rejected a submission for the defendant that the issue whether an imputation was defamatory had to be assessed by reference to its terms alone.

120 The Court of Appeal agreed that his Honour had been correct to reject the defendant's application. It was in that context that Mason P held that the meaning of the word 'lied', in context, carried a defamatory and not a benign meaning. Even so, it would have been better had the plaintiff spelled out the content of the lie imputed to the plaintiffs.[69]

121 Next we refer to Habib.[70] A jury, in the trial of a proceeding governed by the 1974 Act, held that an article published by the defendant conveyed an imputation that the plaintiff knowingly made some false claims, and that this imputation was defamatory of the plaintiff. The defendant had pleaded that the imputation was substantially true, relying upon things said by the plaintiff on occasions other than the occasion of the impugned publication. The trial judge found that the defence was made out. The plaintiff's appeal was successful, the New South Wales Court of Appeal holding that the defendant had not established three of the four matters upon which it relied.

122 Relevantly, the false claims the subject of the imputation were made in a '60 Minutes' interview. But the particulars of justification relevantly referred to alleged admissions extracted from the plaintiff by ASIO officers who interviewed him in Pakistan and later in Guantanamo Bay.

123 Having referred to an observation by the primary judge, the correctness of which was not in issue, 'that the meaning of a pleaded imputation was a matter to be determined by the court and that when determining the meaning it is important to consider the imputation in the context of the material by which the imputation was conveyed',[71] and having referred to the judgment of Mason P in Greek Herald at [19]-[24], the Court said this:

In our view there is force to the appellant's submission which was, in substance, that a statement cannot be a 'claim' if it is extracted in the circumstances in which the appellant found himself in Pakistan and Guantanamo Bay. The matter complained of was addressing the 'claims' it asserted that the appellant made during the 60 Minutes interview. There was no assertion that the appellant was under any compulsion when he participated in that interview. ... Accordingly, set in the context of the matter complained of, it was reasonable to conclude that the imputation, 'that the plaintiff knowingly made some false claims' conveyed that he had made such claims in a situation where he was capable of exercising a free will as to whether or not, and how, he made public statements and/or responded to questions.

There is also force in the appellant's submission that the appellant's denial in the second Pakistan interview that he had been to Afghanistan was not a claim. In criminal proceedings, an accused's denials are not capable of being regarded by the jury as admissions.[72]

124 Further in support of the 'context' submission, plaintiff's counsel referred to a general statement about pleadings by Gaudron and Gummow JJ in Chakravarti,[73] and to a sentence, or perhaps only a few words, in the judgment of Gillard AJA in Popovic.[74] We do not consider, with respect, that those references much advanced the submission.

125 Further again, counsel drew our attention to the fact that, under s 8 of the Act, a person sues on 'the publication of defamatory matter'. This formulation, as has often been pointed out, resolved the question whether the common law position or the position under the 1974 Act was to be preferred. It did not do away with what was by then well-established as the obligation to plead imputations, a matter reflected in a number of other sections in the Act, not least in s 25 with respect to the justification defence. All that can be said, we think, is that 'context' remains relevant in the setting of the Act.

126 Finally, to give additional life to the plaintiff's 'context' submission, we refer to authorities cited in Mr George's textbook. They show that some words employed in imputations have been considered ambiguous and confusing; but that context has been able to supply a meaning to words the meaning of which might otherwise be uncertain.

127 In Morris v Newcastle Newspapers Ltd,[75] there was a separate trial of the question whether the matters of which the plaintiff complained were capable of conveying the imputations pleaded. One imputation was that the plaintiff had improperly attempted to interfere in the affairs of a municipal council.

128 Hunt J observed that there are problems in the use of the word 'improper' in an imputation. It is of very uncertain import. It should not be used, his Honour said, unless the context made clear its intended meaning. Context removed the uncertainty in the present case.

129 In John Fairfax Publications v Rivkin,[76] the defendant appealed from an interlocutory decision. The plaintiff had pleaded an imputation that the father of a deceased woman had reason to suspect that the plaintiff was a person 'criminally liable in respect of her murder'.

130 It was argued for the defendant that the words 'in respect of' meant that the words 'criminally liable' became ambiguous. The argument was that, in all, the imputation could embrace remoter forms of criminal liability.

131 Handley JA, who gave the leading judgment in the Court of Appeal, observed that whilst the words 'in respect of' can have a very wide meaning, the context set by the impugned article showed that the words were narrowly focused and specific. In consequence, there was no ambiguity such as the defendant contended for.

132 In Reading v The ABC,[77] Shaw J gave reasons for interlocutory orders which he had made at trial.

133 There had been a broadcast in which, broadly speaking, it was said of the plaintiff that he had been corruptly bribed by Kerry Packer and dishonest in his role as director of a company.

134 At trial, the plaintiff applied to re-plead imputations. One proposed imputation was that he had 'dishonestly' cast a vote with respect to the sale of a company because Mr Packer had agreed to pay him $2 million.

135 Shaw J held that words such as 'incorrect' and 'dishonest' can contain ambiguities. But here, his Honour said, in the circumstances of the case, the terminology employed was 'reasonable'.[78]

136 In Wafawarova v The ABC,[79] there was an application at trial by the plaintiff to amend the imputations upon which he would rely. This was opposed by the defendant on the basis, inter alia, that the proposed amended imputations contained ambiguities and uncertainties.

137 Nicholas J rejected the defendant's attack on the proposed amended imputations. He observed that, 'Ordinarily, the sense in which an imputation is to be understood will be clear from its terms considered with regard to the context provided by the publication'.[80]

138 His Honour concluded that the words 'was responsible for', employed in one of the imputations, were, when the whole imputation was read, sufficiently precise. Any reasonable doubt evaporated when the imputation was read in the context of the program.[81]

139 His Honour reached the same conclusion with respect to the phrase 'was involved in' in another imputation. The imputation was clear in itself, the impugned program made the meaning plain.[82]

140 In all, in our opinion, it can be said that context may give certainty of meaning to pleaded words which are uncertain or ambiguous. But that is a very different thing to seeking to deploy the notion of context to enlarge or diminish a pleaded imputation. Particularly that must be so where the impugned publication contains more than one distinct defamatory meaning, and the pleader, on the face of it, chooses one of them.

141 The judge found that the article conveyed variants of imputations (a) and (g) which did not contain the words 'as head of ACN'. He described them as 'permissible variants' of the pleaded imputations.

142 As we have already noted, ground 1 contends that the judge erred in finding imputations 'that were not confined to the plaintiff's management of ACN and Phoenix after ACN had acquired Phoenix in January 2015'. It makes no complaint that the imputations found by the judge were that the plaintiff managed a VET organisation which engaged in disreputable conduct.

143 The plaintiff's submissions essentially advanced two propositions:

(1) The judge erred by finding impermissible variants of pleaded imputations (a) and (g), in that they omitted limitations as to time and content which were conveyed by the words 'as head of ACN'. The limitations could have been retained either by retaining the words 'as head of ACN', those words necessarily importing the limitations, or else by variant imputations which themselves retained those limitations.

(2) The judge himself recognised, in the Trial Reasons, that there was a necessary bond between the plaintiff, ACN, Phoenix and 2015. But, in an internal contradiction, he then omitted the necessary limitations in the meanings found. This demonstrated his Honour's erroneous reasoning.

144 Proposition 1 turns upon the submission as to context. That submission requires, as a starting point, that the article would be read by the reasonable reader such that reference to the plaintiff heading ACN necessarily carried with it - and only carried with it - reference to the activities of Phoenix in 2015 and to the plaintiff's knowing involvement in those activities.

145 We do not accept the starting point of the submission.

146 The beginning of the judge's reasoning was relevantly at TR [37]. There, his Honour referred to the article being, as a reasonable reader would perceive, both general and specific. We agree with that characterisation of the article.

147 Then, at TR [38], his Honour set out what the reader would have taken from the article 'relevant to Mr Charan'.

148 A number of the matters which his Honour then listed were specific to the relationship between ACN and Phoenix, and thereby the plaintiff. Thus, matters (c), (f), (g) and (h).

149 But a number of the matters which his Honour listed were not so limited. Thus, matters (b), (i) and (k). They were of broader import, both with respect to the plaintiff and ACN. So also, on its face, was matter (j).

150 With the exception of matter (f), which the plaintiff submitted was more than a mere typographical error, being a mistake which affected the balance of his Honour's reasoning, and matter (j), the plaintiff did not challenge what his Honour said at TR [38].

151 We pause to express two conclusions. First, in our opinion, contrary to the plaintiff's submission, the reference in matter (f) to '2014' was evidently a typographical error. See TR [22(k)], which goes into the Phoenix acquisition in some detail.[83] Second, we reject the plaintiff's submission, first raised in reply, that matter (j) was erroneous because it did not tie the acquisition of a fortune by the plaintiff to the misconduct of Phoenix in 2015. The fact that at TR [46], in a particular context, the judge referred to one meaning conveyed by the article, does not mean that the broad meaning noted by his Honour at TR [38(j)] was not also conveyed.

152 The matters which his Honour listed at TR [38] explained and justified his Honour's conclusion that the reader would understand the article to be both general and specific; that is, general and specific so far as it applied to the plaintiff, and (confining the matter, as the plaintiff would have it) general and specific as to his asserted role as a head of ACN.

153 Thereafter, on a number of occasions, the judge emphasised the dichotomy in what the reader would take from the article concerning the plaintiff. We will later address what the judge said, and in doing so address what the plaintiff submitted was the inconsistency in his Honour's findings. Anticipating our conclusion, we consider that there was no such inconsistency.

154 It follows from what we have said that we reject the plaintiff's submission that the words 'as head of ACN' in substance required, by reference to context, the recasting of either imputation (a) or (g) so as to create both temporal and content limitations which the imputations, on the face of things, did not contain. The effect of the plaintiff's submission, if it was correct, would have been to convert broadly framed imputations into imputations of much narrower content, which, in turn, would have affected the defences available to the defendant.

155 In a situation where the plaintiff was able to choose between pleading imputations which (to use the judge's language) were general or specific, it would be remarkable if the inclusion of the words 'as head of ACN' had the effect of permitting the plaintiff to move from pleading what appeared to be imputations in the broad to imputations confined by time and content; that is, from the general to the specific. We do not accept that principle, as exemplified by authorities to which we were referred, enables such a thing to be done.

156 We turn to the second proposition noted at [143] above.

157 The starting point is the judge's findings at TR [37]-[38], to which we have referred at [146]-[152] above. They established and then reinforced his Honour's conclusion that, concerning the plaintiff, the article would be read as both general and specific.

158 We next refer to TR [40]. There, 'viewing the article as a whole', the judge rejected the plaintiff's submission that common to each pleaded imputation was the proposition that the plaintiff engaged in disreputable practices 'as a director of ACN'; and that the justification defence could only be tenable 'if he engaged in such conduct as a director of ACN - which he never was'. The plaintiff's submission, as noted by his Honour, referred to the imputations which had been pleaded. His Honour's rejection of it was founded on the entire content of the article, read as a whole.

159 His Honour returned to his conclusion that the article would be read as being both general and specific at TR [41].[84] What his Honour there said, in our opinion, was correct, just as was what he said at TR [37], expanded upon at TR [38]. Trial Reasons [41] anticipated the conclusions which his Honour expressed at TR [52]-[53] and TR [71]-[72].

160 The judge then turned to consider the pleaded imputations. It must be understood that his focus was then directed to what the plaintiff has pleaded, whereas hitherto his Honour had been addressing what a reader would make of the entirety of the article.

161 It was first necessary for his Honour to address an attack mounted by the defendant upon imputations (a) and (b). The gist of the attack was that the article did not convey either of those imputations. What the judge said at TR [45]-[51] addressed, seriatim, the six bases of challenge. His Honour was not addressing the precise question whether the article conveyed imputations (a) or (b).

162 At TR [44], the judge set out the defendant's attack on plaintiff's imputations (a) and (b). At [76] above, we have set out the bases of attack, and his Honour's responses.

163 The heading which preceded TR [44] set out only parts of imputations (a) and (b). Presumably, that was because it was only those parts of the imputations which the defendant attacked.

164 The judge rejected defendant's submission (a). That was at TR [46]. His rejection shows that he had regard to the article as a whole, which is what the defendant submitted in this Court that he should have done. In explaining why the article asserted facts, rather than allegations by the ACCC, his Honour referred to one meaning of the article. But this was not to say that it was the only meaning conveyed by the article. So to have concluded would have been incompatible with his Honour's repeated reference to the article being both general and specific.

165 At TR [47], his Honour addressed and rejected defendant's submission (b). The defendant's specific criticism was, his Honour held, correct. But that was not the end of it when regard was had to the whole of the article. In that connection, his Honour repeated the thrust of what he had said at TR [37], [40] and [42].

166 At TR [48], his Honour addressed defendant's submission (c). Once again, the narrow criticism mounted was, his Honour held, correct. But sufficient had been said about the activities of Phoenix, a subsidiary of ACN, to enable rejection of the defendant's submission.

167 At TR [49], his Honour addressed defendant's submission (d). Once again, the narrow criticism, his Honour held, was correct. But once again, referring to the entire article, his Honour concluded that the reference in imputations (a) and (b) to 'vulnerable people' was able to be connected with Phoenix, and thus with the plaintiff.

168 The issue raised by defendant's submission (d) was that the reference to 'vulnerable people' was not connected, in the article, with ACN. That was the fact. The judge's reasoning was that Phoenix, and so the plaintiff, were implicated in disreputable conduct affecting vulnerable consumers because the article referred to a broader investigation into a number of colleges. This was, we think, somewhat generous to the plaintiff's position. The pleaded imputation, we bear in mind, said nothing about Phoenix.

169 We think that a more important consideration emerges from defendant's submission (d). The plaintiff pleaded by imputation (a) that the article imputed that he engaged in disreputable conduct - conduct which the article identified as being referable to Unique International College. Thus, the plaintiff can be seen to have incorporated into imputation (a) a circumstance drawn from the body of the article which, on its face, related to the activities of another RTO.

170 We go to TR [50]. There, the judge addressed and rejected defendant's submission (e). The rejection focused upon the sense of the article, considered in the broad. His Honour's analysis at TR [50] is another instance of the application of what his Honour characterised as the 'general' meaning of the article so far as it applied to the plaintiff.

171 At TR [51], the judge considered and rejected defendant's submission (f) - that is, that the reader would not understand the article to impute that the plaintiff had personally engaged in unscrupulous business practices. His Honour's answer was that the imputation meant that the plaintiff was knowingly involved in the unscrupulous practices of the companies.

172 Having disposed of the defendant's various challenges to imputations (a) and (b) as pleaded, the judge then had to consider whether the article conveyed one or other of those imputations and, if it did not, whether it conveyed a permissible variant in either instance.

173 It is quite apparent that the judge considered that the plaintiff had pleaded these imputations broadly. Indeed, plaintiff's senior counsel had said so much early on in the trial. An imputation might have been pleaded by reference to the plaintiff, ACN, Phoenix's disreputable activities, and 2015. But that is not what had been done.

174 The question then became whether the broadly expressed imputation which had been pleaded had been conveyed, and, in that connection, whether the words 'as head of ACN' were a part of the sting. Compatibly with what he had said in a number of earlier paragraphs to which we have referred, his Honour concluded that those words were not part of the sting. Rather, the imputation could and should be stated by reference to the plaintiff's role as manager of a VET organisation; this being within the limits of a permissible variant.

175 We do not accept that the judge's reasons reveal necessary tension between his reasoning and the conclusion noted in the preceding paragraph. References which his Honour made to Phoenix must be understood in the context which we have described. To say that the article linked the plaintiff, ACN and Phoenix in one connection was not to say that the link between the plaintiff and ACN was so confined; or to say that the plaintiff's role as a head of ACN was a part of the sting of the imputation.

176 The defendant's 'context' submission not requiring a different conclusion - that is, that the words 'as head of ACN' carried temporal and content limitations into the pleaded imputations - his Honour was entitled to reason in the way that he did. We do not mean any disrespect to counsel when we say that the arguments deployed by the parties in this Court, which respectively seized upon a paragraph here and a paragraph there, and words here and there, in the article, have not persuaded us that the judge's reasoning and conclusion with respect to imputation (a) was incorrect.

177 We must next refer to plaintiff's imputations (g) and (h) and to the judge's reasoning in that connection.

178 Imputation (g) was, in short, that the plaintiff, as head of ACN, had been carrying on business in a manner which involved significant non-compliance with relevant quality standards; whilst imputation (h) was the 'reasonable suspicion' alternative.

179 The defendant raised two arguments in support of a submission that neither imputation (g), or its 'reasonable suspicion' alternative, was conveyed. The judge set out those submissions at TR [66].

180 The defendant's first contention was that the reader would not understand the article to convey that the plaintiff was responsible for carrying on a business which acted in the impugned manner.

181 The judge's answer, at TR [68], was that the article, read overall, conveyed a meaning that Phoenix was not compliant, it was an ACN company, and the plaintiff was 'a director' of ACN.

182 That provided an answer to the defendant's challenge. It was a separate but related question whether the article conveyed either or both of imputations (g) and (h) as pleaded.

183 Then the judge addressed, at TR [69], so much of defendant's submission (b) as contended that the article went no further than imputing that the plaintiff was the head of a big company which was reasonably suspected of carrying on business in the impugned way. Referring to part of the text of the article, his Honour rejected that submission.

184 Having got to the point where he had rejected the defendant's challenge to the meaning of imputations (g) and (h), his Honour expressed conclusions, at TR [70]-[71], upon the question whether imputation (g), or a permissible variant, was conveyed. For reasons previously expressed, he concluded that the reader would not focus upon ACN, but rather upon the plaintiff's managerial role with respect to a VET. So to conclude was compatible with the broad, rather than specific, way in which imputation (g) had been framed. Again, in our opinion, the defendant's 'context' submission requiring no different conclusion, the judge was entitled to reason as he did. And again we reject the plaintiff's submission that the judge's reasoning was internally inconsistent.

185 In reaching our conclusion that the judge did not err in finding the imputations which he did, we have not ignored the plaintiff's written submission, made in a footnote under cover of ground 2, that the defendant 'must be taken to have known that the plaintiff's pleaded imputations were confined to unscrupulous business practices of ACN after it purchased Phoenix and that the issues for trial were so delimited'. The plaintiff cited the judgment of Doyle CJ in Manock[85] in support of that submission, and submitted that in Setka this Court cited with approval what the Chief Justice had said.[86]

186 In Setka, this Court did cite with approval the passage in Manock upon which the plaintiff relied. But neither case supports the plaintiff's submission. Indeed, in Manock, Doyle CJ said:

Once the plaintiff pleads a meaning on which the plaintiff relies, that pleading will identify the meaning of which the plaintiff complains, and delimit the boundaries within which the action is to be fought. [87]

That is so subject to a plaintiff's right to succeed upon a permissible variant.

187 There is a further matter which we should mention. We consider that if, contrary to our conclusions, the judge should have found that imputations (a) and (g) as pleaded had been made out, the justification defence as pleaded and particularised was almost certain to have been made out. As we have said, on their face the imputations were unlimited as to time, and did not identify Phoenix. We cannot accept that context led to the words 'as head of ACN' having the limiting impact for which the plaintiff contended. If the words 'as head of ACN' were retained, it is to be remembered that ACN assumed ownership of companies hitherto in the CTI group on 30 September 2014. Ultimately, it stood to gain from income received and profits generated by those businesses, as did the plaintiff as a major shareholder in ACN up until the company listed. Further, the judge found that the plaintiff engaged in and approved disreputable conduct in those businesses in the period beginning on 1 October and ending with the float in mid-December 2014, during which period, as his Honour found, the plaintiff managed and worked as he had done before 30 September. Further again, by reason of his shareholding and his work in businesses in the ACN group up until that company listed, the plaintiff could be described, in popular language, as a 'head' of ACN. The justification defence engaged with that non-technical descriptive noun.

188 It follows from our reasons that ground 1, as it was formulated, must be rejected.[88] As we have earlier foreshadowed, leave to appeal should be granted on this ground, but the appeal should be dismissed.

189 At one point in argument, plaintiff's senior counsel apparently accepted that, if ground 1 failed, then the appeal must fail. But at another point he submitted that certain factual findings made by the judge did not support the justification defence which his Honour found had been established. In our opinion, ground 1 having failed, grounds 2, 2A, 2B and 3 do fall away. To the extent that this conclusion depends upon the plaintiff's attack upon factual findings, we consider that, for reasons advanced by the defendant, that attack failed.

190 The plaintiff's written submissions with respect to these grounds are headed 'False Issues'. The broad thrust of the submissions is that the justification defence engaged non-existent imputations, and so was beside the point. In considerable measure, the submissions depend upon the success of the attack mounted by ground 1 - that is, that the article was incapable of conveying imputations any wider than that the plaintiff, as head of ACN after it acquired Phoenix in January 2015, managed Phoenix whilst it engaged in disreputable conduct. The grounds now under consideration do not contend, in the event that the findings made by the judge as to the imputations conveyed by the article were open, that the justification defence as particularised did not engage with those imputations.

191 We have concluded that, as ground 1 was formulated, it must fail. It follows that grounds 2 and 2A(a), which attack orders made on interlocutory applications with respect to matters of practice and procedure, and also ground 2B(a), must be rejected. It is not to the point to enquire whether, as the plaintiff pleaded the imputations, the justification defence engaged with them.

192 Not that it matters, we consider that there was no fault in the Associate Judge deciding the defendant's application for leave to plead the justification defence as she did. Because the pleaded imputations, on their face, were not limited in time, and made no reference to Phoenix, it was arguably open to the defendant to rely upon conduct allegedly engaged in by the plaintiff in connection with CTI, CTT and Thoan in order to make out the substantial truth of those imputations. That was so in the event that, as the defendant submitted before her Honour, the words 'as head of ACN' were surplusage.[89] But even if those words were to be retained, the justification defence addressed the substantial truth of the imputations, albeit that it in part called in aid events occurring outside the period 1 October 2014 to 14 December 2014.

193 We turn to ground 2A(b). It is a second of the attacks upon an order made on an interlocutory application with respect to a matter of practice and procedure. The particular complaint is that the judge should have struck out the justification defence because it failed to properly particularise the plaintiff's knowing involvement in the alleged unscrupulous business practices of CTT.

194 This ground is of no practical relevance. The judge, on 14 December 2016, was required to determine whether the justification defence which the defendant had been given leave to plead had been sufficiently particularised. He decided that it had, subject only to requiring the defendant to file new witness statements from three persons whose earlier witness statements had been, in his Honour's opinion, inadequate. His Honour was not considering whether the evidence which the defendant would seek to adduce at trial would in some part turn out to be inadmissible. As his Honour said, that was a matter for the trial,[90] not to be confused with the particulars of the matters upon which the defendant would rely.

195 The failed strike-out application was overtaken by the trial, by the imputations which his Honour found, and by the relationship between those imputations and the justification defence pursued by the defendant.

196 But even if it was correct to consider this sub-ground by reference to the plaintiff's pleaded imputations, to the defendant's submission that the words 'as head of ACN' were surplusage,[91] and to the particulars of the justification set out in the document headed 'Defendant's Consolidated Particulars of Truth', we see no fault in his Honour's disposition of the application.

197 We turn to ground 2A(c). As we understand it, the plaintiff argues that the defendant should not have been permitted to rely upon the particulars of truth in their initial and subsequent consolidated forms because they did not meet the plaintiff's imputations. Again, this sub-ground is academic because the judge did not err in finding the imputations which he did. Nor is the sub-ground supportable on the state of the pleadings at the time. That is either because, if the plaintiff's pleaded imputations were found to have been conveyed, the defendant's justification defence and particulars were relevant at very least with respect to the period 1 October to 14 December 2014; and were relevant to the entirety of 2014 if the defendant was correct in submitting, as it had intimated would be its position at trial, that the words 'as head of ACN' were surplusage.[92]

198 Ground 2A(d) contends that the judge erred by permitting the defendant to rely upon matters to which reference had not been made in the first or second consolidated particulars of truth. As we understand it, the plaintiff submitted that the judge made findings - and thus must have received evidence - concerning falsification of student records which 'was well outside the relevant particulars of justification that were confined to the making of false claims by CTT'.[93]

199 It appears that, in support of this sub-ground, the plaintiff relied upon a finding by the judge[94] that a practice of falsifying student records was rife throughout CTI companies in 2014. It was said that the relevant particulars of justification were confined to the making of false claims.

200 We agree with the plaintiff's submission that the Consolidated Particulars of Truth did not allege that there had been falsification of records other than by CTT. But that is not an end of it.

201 We turn to the way in which the trial unfolded. The judge dealt with the evidence of falsification of records at TR [571]-[674]. Some of the evidence which his Honour summarised involved falsification of records by CTT. But much of it concerned falsification of records by, simply, employees of the CTI Group. Some of it, again, implied the plaintiff's knowledge of and participation in falsification of records with respect to AMA.[95]

202 The judge's conclusions at TR [667]-[674] were, with respect, well open. The conclusion attacked by ground 2A(d) was one of those conclusions.

203 There is nothing to show that objection was taken to the receipt of the falsification evidence to which we have referred above. It is not at all infrequent that evidence is received at trial which travels beyond the parties' particular pleaded cases, the matter then being determined on the basis of the evidence which has been received. That seems to have been what happened here.

204 We have already observed that ground 2B(a) must be rejected because the plaintiff's imputations were not confined to the operations of ACN and Phoenix in 2015.

205 Ground 2B(b) contends that the judge erred in concluding that the plaintiff personally participated in or knew and approved of the falsification of student records and/or the offering of incentives to VET students by organisations other than ACN and Phoenix. It was submitted that six findings made by the judge - identified at ground 2B(b)(i)-(vi) - did not support those conclusions.

206 The findings to which the plaintiff refers in ground 2B(b) are not themselves challenged. The defendant correctly so submitted.

207 This sub-ground cannot be accepted. The relevant conclusions which the judge reached were founded upon a large body of evidence, and not simply the six findings identified by the plaintiff in ground 2B(b). There was a large body of evidence that student records of entities within the CTI Group had been falsified in 2014, not least in the period 1 October to 14 December. The evidence was summarised by the judge at TR [580]-[666]. His Honour's conclusions as to the extent of falsification and the understanding and involvement of the plaintiff are at TR [667]-[674]. Likewise, his Honour's conclusion - see TR [717]-[718] - that the plaintiff was aware of and complicit in the offering of incentives is unimpeachable. It was based upon a close analysis of the evidence set out at TR [677]-[716].

208 Whilst the body of evidence to which we have referred only identified a few instances where the plaintiff was personally involved in attempts to have records falsified, his Honour's conclusion was surely influenced by many other findings which he made as to the level of the plaintiff's involvement in the disreputable activities of companies in the CTI Group in 2014. For instance, his Honour convincingly explained, in our opinion, why it could be concluded that the plaintiff was aware of, and condoned, the mass enrolment of vulnerable persons.[96] Email correspondence to which the judge referred at TR [543]-[546], [552] and [564] show the plaintiff's cynical understanding and encouragement of a disreputable process that required CTI staff to fill out or complete enrolment documents which vulnerable persons were incapable of doing. His Honour cannot but have reasoned that it was grossly improbable that the plaintiff, a leading player in the CTI Group up until mid-December 2014, knew and approved of one disreputable activity requiring CTI staff to fill out or complete documents for vulnerable people who were themselves unable to do so, but did not know of and approve the falsification of records so as to make claims for persons who had never enrolled, or who, having enrolled, had not undertaken courses. Each of those activities had as its end point the making of claims for payment which were a distortion of what the private VET provider was intended to do.

209 In the event, grounds 2, 2A, 2B and 3, if and insofar as they remained alive following our rejection of ground 1, should be rejected. Leave to appeal on these grounds should be refused.

210 As we noted at [4] above, the judge found that the defendant had made an offer of compromise in the Calderbank form, which was 'genuine' and which the plaintiff had unreasonably refused to accept. In the event, his Honour ordered, on 1 March 2018, that:

... the plaintiff pay the defendant's costs on a standard basis up until 6 February 2017, and thereafter on an indemnity basis.

211 By grounds 4 to 7, the plaintiff challenges the judge's ruling with respect to indemnity costs and the order which then followed.

212 Before setting out grounds 4-7, it is necessary to set the stage. We begin with pertinent parts of s 40 of the Act:

Costs in defamation proceedings

(1) In awarding costs in defamation proceedings, the court may have regard to -

...

(b) any other matters that the court considers relevant.

(2) Without limiting subsection (1), a court must (unless the interests of justice require otherwise) -

...

(b) if defamation proceedings are unsuccessfully brought by a plaintiff and costs in the proceedings are to be awarded to the defendant - order costs of and incidental to the proceedings to be assessed on an indemnity basis if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer made by the defendant.

(3) In this section -

'settlement offer' means any offer to settle the proceedings made before the proceedings are determined, and includes an offer to make amends (whether made before or after the proceedings are commenced), that was a reasonable offer at the time it was made.

213 We should next recapitulate some of the chronology of the matter; and add a little to what we have so far said.

• The defamatory article was published on 20 November 2015.

• The correction and apology in the online edition was published on the same day.

• The correction in the print edition was published on the following day.

• A defence was filed on 21 March 2016 in which the pleaded imputations were denied.

• The defendant was granted leave to plead the justification defence on 5 October 2016.

• The defendant delivered Consolidated Particulars of Truth dated 12 December 2016. See [97] above.

• The plaintiff's application to strike out the justification defence was dismissed on 14 December 2016.

• In January 2017, the defendant delivered amended witness statements of two 'students'.

• On 9 February 2017, the defendant served an outline of evidence of Peter Cage.

• In the weeks thereafter, the defendant filed other outlines of evidence - for instance, of a third 'student' and of an auditor; and added many documents to the electronic court file.

• The defendant delivered Second Consolidated Particulars of Truth dated 13 February 2017.

• In December 2016, the trial had been fixed to commence on 21 February 2017. At its outset, the judge ruled, over the opposition of the plaintiff, that the defendant should be permitted to rely upon the amended Consolidated Particulars of Truth ('the Second Amendment Ruling'). His Honour delivered written reasons in that connection.[97]

214 In the Second Amendment Ruling, the judge stated, inter alia:

1. The new particulars are summarised below and can be broadly grouped into the following categories: paid scribes, mass enrolment of vulnerable migrants, enrolment incentives and Mr Charan's financial interest in Certificate II courses.
2. Paragraphs 35A and 35B assert that student workbooks in courses operated by Mr Charan had been fraudulently completed by paid scribes (rather than students) so that, in the event of an audit by the Department of Education, it would appear as though students had participated in the training course, when in fact they hadn't.
3. Paragraph 41A asserts that sometime in 2014, Mr Charan (at the very least) facilitated and/or participated in a mass enrolment of vulnerable new migrants from Africa and the Middle East into government-funded training courses.
4. Paragraphs 41B, 41C and 41D assert that various incentives were approved by Mr Charan in knowing breach of the funding contract with the Department of Education. According to the proposed particulars, Mr Charan approved the giving of various incentives to potential students, including iPads, SurfacePro laptops, Samsung tablets and cash incentives upon completion of certain courses (Certificate II and Diploma). In addition to the giving of incentives to students, it is also said that Mr Charan approved the payment of $1000 to clubs or organisations for each enrolment (after the first three enrolments) into the Diploma course and similarly, $200 per new enrolment into the Certificate II. It is further alleged that Mr Charan actively sought to conceal the giving of such incentives.
5. Paragraph 42A asserts that Mr Charan, via a complex corporate structure, concealed his 'special interest' in Certificate II at the relevant time and that Mr Charan did not disclose his interest to the Department of Education. It is asserted that it was this interest which drove Mr Charan to attempt to maximise student enrolments via the methods outlined above.
6. The nub of the argument put on behalf of Mr Charan is, in effect, that 'enough is enough'. If allowed, the amendments contained in the February particulars will inevitably result in the third adjournment of the case. This, it was said, was in the light of the late amendment to the defence to plead justification, and this is where all the trouble began. ...
7. There is some force in these submissions. However they need to be balanced against the following propositions.
8. First, I am satisfied that each of the new matters introduced by the February particulars are relevant to the justification defence. Each goes to the conduct of Mr Charan in his management of Community Training Initiatives ('CTI') and associated companies prior to the sale of his shares in ACN, the company which floated in December 2014. If made out, then that evidence may substantiate one or more of the allegations of justification covered in the February particulars.
9. Second, ... this is not a case in which there is any protracted delay between the publication and the trial date. ...
10. Third, there is, in my opinion, a reasonable explanation proffered by [the defendant's solicitor] as to the basis of the new matters contained in the February particulars. Nationwide has obtained information from a number of sources, including material provided under subpoena and an undisclosed source. Moreover, the information contained in the particulars does not come as a total surprise to Mr Charan -witness statements have been filed and a number of the allegations now contained in the February particulars are within some of those witness statements ...

1. Fourth, I am unable to discern any true prejudice to Mr Charan, other than the forensic disadvantage of having to meet a broader case than that which he previously had to meet. He will be given the opportunity, if he so wishes, to prepare his defence to the allegations and in particular to confer with witnesses and consider what other documents he may wish to rely upon at the trial.

1. Notwithstanding the new paradigm of the Civil Procedure Act, the overriding exercise is to ensure that the interests of justice prevail, within reason. I accept that there are cases where a court will shut a party out from running a defence (or a fresh claim) or adducing evidence because of its conduct - and particularly in circumstances where a fresh allegation is delivered on the eve of trial. On the other hand, the fundamental task of a court is to do justice between the parties and to shut a party out from maintaining what I regard as potentially significant arguments at trial would, when the balancing exercise is completed, be unjust.
2. It follows that Nationwide should be permitted to file its February particulars, but on certain conditions. The first is that it is inevitable that the trial will be adjourned, and I will give priority to any suggestion made by Mr Charan's lawyers as to the fixing of an adjourned trial date. The second is that, absent exceptional circumstances, Nationwide should not be allowed to amend its particulars of justification again. ...

215 As it turns out, the plaintiff did not take up what may be described as the judge's invitation to him to have the trial adjourned.[98]

216 Between 1 December 2015 and 22 February 2017, the defendant made seven offers of settlement to the plaintiff, in Calderbank form. The first of them was made before the plaintiff commenced the proceeding. The last of them was made on day three of the trial. The fourth of them ('offer 4') was made on 3 February 2017, that is, about two and a half weeks before the trial commenced. It was that offer which the judge held to be determinative. Headed 'Without Prejudice Save as to Costs', the letter of offer relevantly said this:

Your client's claim

We confirm that the trial of this proceeding is due to commence in 2 weeks. Our client has filed a list of the witnesses that it proposes to call. Your client has outlines of the evidence that is to be given by our client's witnesses. Your client also has access to the significant volume of documentary evidence that our client intends to rely upon at trial. Accordingly, your client is in a position to assess his prospects of success and the reasonableness of the settlement offer contained in this letter.

It is our firm view that your client's claim will fail at trial.

Since our client's previous offer of 23 September 2016, the following events have taken place which have considerably strengthened our client's prospects of successfully defending your client's claim at trial:

1. The Defendant obtained leave to raise a plea of justification;
2. Your client later brought a misconceived application to strike out the justification defence, which was dismissed by the trial judge with an order that your client pay our client's costs of the application.
3. Voluminous documents and correspondence have been obtained under subpoenas to Ferrier Hodgson, the Victorian Department of Education and Training, ASQA, VRQA and Petra Capital which substantiate the Defendant's plea of justification;
4. As of the date of this letter, outlines of evidence for 10 witnesses have been filed and served by our client;
5. Four of the witnesses for whom outlines of evidence have been filed and served are professional auditors who will give evidence at trial supporting the conclusions in the EOP and EOE Audit Reports in respect of Consider This Training and the Review in respect of Australian Management Academy. These witnesses are professional people who will give evidence about the work that they undertook in their professional capacity. They are not in the camp of either party. They have no reason to perjure themselves. Further, their evidence is corroborated by other witnesses to be called by our client;
6. At least 3 'student' witnesses will give evidence to the effect that they did not knowingly enrol with CTT, or participate in any training for which CTT claimed funding from the Department of Education and Training. We have spent considerable time with 2 of the witness. It was readily apparent to us, and will be to the trial judge, that they are vulnerable people who were taken advantage of;
7. Outlines of evidence have been provided for former employees and contractors of ACN Group entities who will give evidence, amongst other matters, that your client was intimately involved in CTT and AMA during the relevant period (contrary to your client's previous statement on oath), engaged in unscrupulous business practices and took advantage of vulnerable members of the community. Their evidence is corroborated by a large volume of documentary evidence.

Costs and consequences associated with pursuing the claim

If this matter proceeds to trial, and your client's claim fails as we expect, your client will be ordered to pay our client's costs of the proceeding.

Our client's current costs are substantial and they are set to increase further as the trial approaches. There is then the costs of the 15 days of hearing with both Senior and Junior counsel briefed. We estimate that by the end of the hearing, our client will have incurred costs of close to $1 million.

We do not see that your client has anything to gain in pursuing his claim. His prospects of success are poor. His costs exposure is enormous. His conduct in running two registered training organisations, CTT and AMA, is to be closely examined publicly.

Offer

The following is an offer made on a purely commercial basis. We note this offer is made notwithstanding our client's utmost confidence in its defence.

In the interests of attempting to resolve this matter without the parties having to incur the expense of going to trial, we are instructed to make the following offer in full and final settlement of the proceeding and any other claims relating to the publications complained of:

1. Your client pays to our client the fixed sum of $100,000 as a contribution to its legal costs to date;
2. Both parties otherwise bear their own legal costs of the proceeding;
3. Our client will not enforce its costs order against your client in relation to the failed strike out application;
4. Your client discontinues the proceeding against our client with no order made as to costs; and
5. The parties provide mutual and full releases in relation to the issues surrounding the publications complained of and the proceeding, in the form of a formal Deed of Settlement and Release.

We are instructed that this offer is to remain open until 4:00pm on Wednesday, 8 February 2017.

If your client does not accept this offer and his proceeding is unsuccessful, in part or in whole, then our client will rely upon this offer in seeking an order under section 40(2) of the Defamation Act 2005 (Vic). Otherwise, our client will rely upon this offer as a Calderbank offer pursuant to the principles in Calderbank v Calderbank [1973] 1 All ER 333 in seeking indemnity costs.

217 Reference was made in the letter to an offer made by the defendant on 23 September 2016. There, the defendant had proposed that the parties walk away. The plaintiff, on the same day, had made his own offer of compromise - that the defendant pay him $80,000 plus indemnity costs.

218 Offer 4, made by the defendant on 3 February, was left open until 4:00 pm on Wednesday 8 February 2017. The offer having been made on a Friday, the plaintiff had five days to consider his response, three of those days being business days.

219 In fact, the plaintiff responded to the defendant's offer by himself making, through his solicitors, an offer of compromise. That was on Monday 6 February 2017. The plaintiff's offer was that the defendant pay $120,000 compensation, pay costs on the standard basis, and give an apology.

220 The solicitors' letter of 6 February 2017 commenced by referring to the defendant's offer of 3 February. It said that the plaintiff had given instructions that it be rejected. It referred to 'baseless allegations' made against the plaintiff. The text of the apology which the plaintiff required, set out in the letter, in part said this:

... Mr Charan's role in the CTI/ACN group of companies reduced over the course of 2014, he ceased to be a director on 30 September 2014, and he had no involvement with ACN by December 2014, well before when Phoenix was acquired by ACN. The Australian accepts that there is no evidence that prior to Mr Charan's resignation from his roles in CTI and ACN in September 2014, CTI, ACN and their associated companies engaged in any unscrupulous business practices. On the contrary, the detailed evidence The Australian has seen during Mr Charan's defamation action against it indicates that Mr Charan was concerned to ensure businesses were always run in an ethical manner.

221 At CR [4]-[11], the judge set out some of the chronology of the matter. He recapitulated some of what he had said in his Second Amendment Ruling.

222 At CR [13], the judge set out the pertinent parts of s 40 of the Act.

223 At CR [15], the judge referred to Marriner v Australian Super Developments Pty Ltd.[99] There, this Court restated the principles (derived from Calderbank) which the Court had stated in Hazeldene. The critical question was said to be whether rejection of an offer was unreasonable in the circumstances.

224 At CR [16], his Honour said that two questions required consideration. First, had the defendant made a settlement offer as defined. Second, had the plaintiff unreasonably failed to accept that offer. If those matters were established in the defendant's favour, then the defendant would be entitled to an order for indemnity costs unless the plaintiff was able to satisfy the Court that the interests of justice required otherwise.

225 At CR [17]-[18], his Honour discussed 'offers to capitulate'. In the course of that discussion, his Honour referred to Commissioner of State Revenue v Challenger Listed Investments Ltd [No 2],[100] where this Court stated that:

There is authority to the effect where the offer does not involve a genuine compromise but is in fact either an invitation to capitulate or a derisory or nominal offer, it would not be unreasonable for the losing party to have rejected it.

226 This was the first of a number of occasions on which, in the Costs Reasons, his Honour adverted to whether an offer could be considered 'genuine'.

227 His Honour's reasons next revealed the link which he perceived between the genuineness of an offer and its reasonableness. Referring to offers to capitulate, his Honour said this:

These decisions do not mean that an offer to capitulate or to walk away will necessarily fail because of its terms. Rather, the reasonableness of the offer turns on the circumstances which surround it, and particularly whether it was truly designed to settle what may be a hopeless case.[101]

228 Then his Honour referred to two passages in the judgment of the New South Wales Court of Appeal in Leichhardt Municipal Council v Green[102] as follows:

It is clear that an offer with no real element of compromise in it, which is designed merely to trigger the costs sanctions, will not be treated as a genuine offer of compromise.[103]

Accepting that such an offer as was made is capable of being a genuine offer of compromise, the next step is to consider whether the particular offer in the circumstances represented a genuine attempt to reach a negotiated settlement, rather than merely to trigger any costs sanctions.[104]

229 The point being made by his Honour was evidently that some offers are not truly offers of compromise at all. They are not 'genuine', in that their purpose is really to trigger costs sanctions, rather than to reach a negotiated settlement. For that reason, they could not be reasonable. There, it may readily be said that failure to accept the offer is not unreasonable.

230 His Honour framed two primary questions for consideration:

(a) whether any of the offers made by Nationwide were, in truth, genuine offers of settlement; and

(b) if so, was Mr Charan's refusal of the offer, in the circumstances that applied at that time of the offer, unreasonable.

There was no question that the offers made by Nationwide were sufficiently clear and spelt out to Mr Charan the consequences of a failure to accept the compromise of his claim.

232 The judge readily concluded that the first offer, made soon after the article was published, was inadequate. At that time, there had been a clear defamatory imputation and there was no suggestion of a justification defence.

233 At CR [24]-[29], his Honour came to the conclusion that another five of the offers made by the defendant were not genuine offers to settle the case. It necessarily followed, as we apprehend his Honour's reasoning, that the plaintiff's failure to accept those offers was not unreasonable. With respect to four of the offers, the judge said this:

[A]n offer that requires a lay person (notwithstanding the best of legal advice) to withdraw his or her claim and, in the case of the last four offers, make a significant payment of money where he or she has been clearly defamed needs careful consideration. Offers 6, 7, 8 and 9 not only required payment of large sums of money (increasing virtually by the day) by Mr Charan, but also gave him only a very short period of time in which to decide whether to accept or reject the offer. ...[105]

234 Respecting offer 2, a walkaway offer made on 23 September 2016, the judge observed that:

It only permitted Mr Charan three business days for a decision and was made prior to Nationwide being granted leave to rely upon the justification defence.[106]

235 His Honour next made it clear that one matter to be considered in determining whether it is unreasonable to reject an offer of compromise is the period of time for which the offer is left open. He observed that, when offers 6, 7 and 8 were made, the plaintiff was in the throes of trial preparation; whilst offer 9 was made when the trial was proceeding. In the case of each of those four offers, very short time limits for acceptance were set. His Honour said this:

I think that the imposition of such stringent time limits reflects the lack of any genuine intention on the part of Nationwide to settle the case. I conclude by reference to the nature of the increasing amounts (in the case of the last four offers), and the limited time for acceptance (in the case of all the offers), that it is far more likely offers 2, 6, 7, 8 and 9 were motivated by Nationwide's desire to protect its position on costs, rather than to settle the case.[107]

I therefore conclude that offers 2, 6, 7, 8 and 9 were not genuine offers to settle the case, substantially because of the very tight time limits. I would also have held that offer 4 with a time limit of three business days, fell into the same category; however, that offer unlike the others, generated a response from Mr Charan within the stipulated period. That, it seems to me, indicates that Mr Charan was in a position to consider the offer and points to the time limit alone not being determinative of whether the offer was a genuine attempt to settle the case.[108]

237 Essentially, what his Honour was saying was that the plaintiff's speedy response to offer 4 showed that he was able to comprehend, consider and respond to that offer in the time allowed. What might otherwise have been characterised as an offer which was not genuine should not be so characterised in the events which occurred. The judge did not make the point, but it is the fact, as we have earlier noted, that the offer was made on a Friday, was left open until the following Wednesday, and that the plaintiff rejected it and made an offer of his own on the Monday.

238 Putting the time limit for acceptance to one side, his Honour then addressed the content of the letter which conveyed offer 4. He stated that:

[T]he contents of the letter identified much of the material relied upon in the judgment to uphold the justification defence.[109]

The letter, wildly optimistically as it turns out, identified a 15-day hearing and estimated that, by the end of the hearing, Nationwide's costs would be close to $1 million.[110]

239 His Honour then explained why it was that offer 4 should be considered a 'genuine offer of settlement'. He said this:

Importantly, in light of my other findings, even though the time allowed for acceptance of the offer was tight and the offer required the payment of a sum of money, it was nevertheless able to be considered and responded to by Mr Charan. As I mentioned earlier, this demonstrates that Mr Charan treated this offer seriously notwithstanding his rejection of it.

Equally as importantly, the contents of Nationwide's letter put Mr Charan squarely on notice that there was a large body of material available to it (much of which ultimately was adduced at trial) which went to the heart of the justification defence.[111]

240 Next, his Honour turned to the question whether it was unreasonable for the plaintiff to have rejected the offer. His Honour identified two issues for resolution:

(a) whether the offer, which required the payment of $100,000 by Mr Charan and withdrawal of his claim, should have been considered by him; and

(b) if so, whether it was unreasonable for Mr Charan to reject the offer, which involved a payment of money to Nationwide, albeit that he was the plaintiff and had been defamed.[112]

241 Addressing the first issue, his Honour said this:

[I] am satisfied that, in the scheme of things, this was an offer that merited reasonable consideration. True it is, that Mr Charan was the plaintiff in the proceeding and he had, on any view, been defamed by the publication. That said, once the justification defence was alive, the question of whether Mr Charan could succeed in the claim was very much in play. By February, as Nationwide's letter of 3 February 2017 pointed out, there was a large amount of information available to Mr Charan which needed to be processed by him. The case had got stronger by the day, if not by the week. I am satisfied that, by 6 February 2017, an offer to pay a contribution to Nationwide's costs but leaving it to meet a substantial part of its own costs required serious consideration. This is particularly so, given that it was abundantly clear that this was going to be a no holds barred trial, where both parties would expend hundreds of thousands of dollars in addition to having already incurred a significant amount of pre-trial costs.[113]

242 Then his Honour turned to the question whether it was unreasonable for the plaintiff to reject the offer. This is what he said:

I accept the submission made by counsel for Mr Charan that the lawyers were still endeavouring to piece together, exactly, the case that they had to meet at trial. Numerous documents and witness statements had been supplied and needed to be considered. The second consolidated particulars of truth had not yet been filed, although they merely inserted details into the existing particulars which were apparent from the material which had been provided by Nationwide. I accept counsel's submission that, even at the time of the opening of Nationwide's case, counsel did not have a complete handle on the case that had to be met. To some extent, this was of their client's own making, as Mr Charan declined the opportunity to adjourn the case.

Notwithstanding the lack of complete knowledge on the part of his lawyers as to the intricacies of the defence, I think that there is merit in Nationwide's submission that the person who must have known the real force of the allegations contained in the letter of 3 February 2017, was Mr Charan. The terms of the letter spelt out the material Nationwide proposed to adduce and the difficulties facing Mr Charan in responding to Nationwide's justification defence. The substance of the matters contained in the letter (which were ultimately established at trial and underpinned much of the defence of Nationwide) had to be within Mr Charan's knowledge. They are carefully identified and, as the documents show and to use the words of his former partner, Mr Brown, any investigation of the workings of the company and its documentation would demonstrate that Mr Charan's 'fingerprints are all over everything'.

Nationwide's letter spelt out, in clear terms, the material that it proposed to rely upon at trial and then gave Mr Charan the opportunity to get out of the case, albeit by paying a premium, but in the scheme of things a very small one given the combined costs that would be incurred if the trial went to verdict. It is to be borne in mind that Nationwide also offered to bear its own costs in relation to one of Mr Charan's interlocutory applications, in which Nationwide was represented by senior counsel. When this is taken into account I think a reasonable person in Mr Charan's position, armed with his own unique knowledge of the 'dodgy' practices at CTI and the prospective duration of the trial (even if only estimated at fifteen days), would have accepted the offer and finalised the litigation. Mr Charan did the opposite: he considered the offer, rejected it and provided a counter offer.

I am conscious that, in reaching this decision, it is unusual for a court to treat an offer to capitulate and pay money as being genuine and to hold that a party acts unreasonably in rejecting such an offer. But this case is highly unusual, as I hope my reasons for judgment demonstrate.

In summary, this was a genuine opportunity for Mr Charan to settle the case and avoid being liable for the massive costs order which would have inevitably followed the success of the justification defence. It was unreasonable for him to reject the offer, notwithstanding that it was an offer to capitulate. I think that Nationwide is entitled to indemnity costs: the remaining question being when should they run from.

Prima facie, section 40 would require payment of indemnity costs from the time of the initiation of the proceeding. However, that would be contrary to the interests of justice. Mr Charan's liability for indemnity costs should commence on 6 February 2017 - when he elected to reject the offer from Nationwide. To hold him liable for indemnity costs prior to that date would be unfair, because of the moving feast of Nationwide's defence and the provision of material substantiating it. As I have said, it is the contents of the letter of 3 February 2017 which he considered and rejected that triggers the liability for indemnity costs.[114]

243 The grounds of appeal referable to costs are as follows:

1. When considering the question of costs, the trial judge erred in finding that:

(a) at [41], offer 4 would have required the respondent to still 'meet a substantial part of its own costs';

(b) at [32], [38] and [44], offer 4 'spelt out, in clear terms, the material that [the respondent] intended to rely upon at trial' and put the applicant 'squarely on notice' of much of the material ultimately relied on in the judgment to uphold the justification defence; and

(c) at [42], the second consolidated particulars of truth merely inserted details into the existing particulars which were apparent from the material which had been provided by the respondent by 3 February 2017.

1. In relation to the trial judge's consideration of whether offer 4 was a 'genuine offer of settlement' [23]-[39]:

(a) the trial judge erred in his interpretation of s 40(3) of the Defamation Act by failing to consider whether 'offer 4' was a 'reasonable offer at the time it was made', and by substituting for that test a different test that considered whether the offer was a 'genuine offer to settle the case' [20], [29], [39], [48];

(b) further or alternatively, the trial judge misapplied the statutory test in s 40(3) of the Defamation Act.

1. The trial judge erred at [44] and [46], in finding that the applicant 'unreasonable failed to accept a settlement offer made by the defendant' within the meaning of s 40(2)(b) of the Defamation Act.
2. Further or alternatively to paragraph 6, the trial judge erred in law in making the finding referred to in paragraph 6, in that his Honour failed to take into account relevant considerations, including the stage of proceedings, the time allowed to the applicant to consider the offer, the extent of the compromise offered, the respondent's prospects of success assessed as at the date of the offer and the lack of clarity of the terms of the offer.

244 Grounds 4 to 7 challenge a discretionary decision respecting costs. Such a challenge can only succeed if the decision is infected with House v The King[115] error. This and other appellate courts have often restated the 'exceptional' nature of an appeal against a costs order.[116]

245 The test which an appellant must meet in order to obtain leave to appeal against a costs order was expressed this way by Maxwell P in Velissaris v Fitzgerald:[117]

Where leave is required to appeal against an order, the applicant for leave must show first that the order is wrong or at least attended with sufficient doubt to warrant its being reconsidered on appeal and, secondly, that the applicant would suffer substantial injustice if the order were allowed to stand. As the decision to order a party to pay costs in a particular way is a discretionary decision, the task of showing that the decision is wrong or attended with doubt involves showing that the exercise of the discretion has miscarried in one of the ways described in House v R. When reviewing the exercise of a judge's discretion, it is not enough that this Court considers that it might have made a different decision if it had been in the judge's position. It must be shown that the judge below made an error in the sense of acting on a wrong principle, taking irrelevant matters into account, making a mistake as to the facts or failing to take a material consideration into account.

246 Ground 4 contends that the judge erred in making certain findings. It is said that his Honour mistook the facts. Grounds 5 and 6 are related, and focus upon use by the judge of the adjective 'genuine' in respect of offer 4. Ground 7 is a variant of ground 4, it being contended that, in finding that the plaintiff unreasonably failed to accept a settlement offer made by the defendant, the judge failed to take into account relevant considerations. To make out that contention, the plaintiff must show not only that the judge failed to take the particular matters into account, but that they were considerations which he was bound to take into account.

247 We turn to ground 4. Sub-ground (a) contends that the judge erred in finding that offer 4 would have required the defendant to still meet a substantial part of its own costs.

248 According to the plaintiff's argument, the letter of offer did not specify what costs the defendant had actually incurred, and did not refer to the costs order made in the plaintiff's favour on 5 October 2016. So, it was submitted, if offer 4 required the plaintiff to forego his entitlement to costs under the 5 October order, payment of $100,000 to the defendant was likely to be a request to pay most, if not all, of the defendant's recoverable costs.

249 The defendant submitted that it was no more than speculation that $100,000 was likely to be not so much a contribution, but rather a request to pay most, if not all, of its costs. The defendant pointed out that the sum sought was described in the letter of offer as a 'contribution' to its costs to date; and that it described costs so far incurred by the defendant as being 'substantial'.

250 In our opinion, there is nothing to this sub-ground. The judge was seized not only with the text of the letter of offer, but also with the circumstances of the matter. They included the provision by the defendant of a considerable number of witness statements, the large mutual discovery that had been made by the parties, the large number of documents that had been produced in answer to subpoenas, and the fact that there had been preparation and presentation of the application for leave to plead the justification defence and the strike out application brought by the plaintiff.

251 In the event, his Honour was well equipped to determine whether the defendant was correct in describing $100,000 as a contribution to its costs to date. There was no reason for him to think that the defendant's solicitors had misstated the position in describing $100,000 as being a contribution to costs already incurred. Certainly, his Honour was better equipped to decide whether that description was apt than is this Court. We do not consider that the position is any different in the event that - which we consider to be the case - the offer contemplated that the parties should bear their own costs of the application made on 5 October 2016. That appears to be the plain intent of paragraphs [2] and [3] of the offer when considered together.

252 We turn to the contention, made by ground 4(b), that the judge erred in finding that the offer 'spelt out, in clear terms, the material that the defendant intended to rely upon at trial', so as to put the plaintiff 'squarely on notice' of much of the material ultimately relied upon in the Trial Reasons.

253 The plaintiff submitted that the judge provided examples from the Trial Reasons to support those findings. It was said that examples which he gave demonstrated that his Honour misunderstood the facts concerning the procedural history. So, it was submitted - (1) not all of the audit reports had been produced by the date of offer 4, and most of the related documents were not produced until a later time; (2) no outline of evidence was filed for any Department of Training witness; (3) the judge had required the defendant to provide more detailed outlines of the statements of 'student' witnesses by January 2017. Outlines had been provided in late January in respect of two of the students. But their evidence at trial differed from those outlines. Further, the defendant did not serve an amended outline of evidence with respect to the third 'student' until 22 February 2017; (4) the outline of Ms Ebejer's evidence, filed on 1 December 2016, was vague and did not relate to any particular justification. Her viva voce evidence went further: (5) Peter Cage was not on any witness list prior to the expiry of the offer. His outline of evidence was served on 8 February 2017 - that is, subsequent to the expiry of the time for acceptance of offer 4; and (6), many of the documents ultimately relied upon by the defendant at trial had not been discovered or subpoenaed when the offer was open for acceptance, and were only made available after the offer expired.

254 The defendant submitted that the trial judge's comments were correct. This was apparent from a comparison of the contents of the offer and the particulars of the justification defence as at that date.

255 The defendant particularly emphasised the judge's observation that the plaintiff was armed with his own unique knowledge of the 'dodgy' practices of CTI. He was uniquely in a position to know whether the imputations which the justification defence engaged were matters of substantial truth.

256 In our opinion, this sub-ground lacks force. The judge used a variety of language to express the state of the material at the time when offer 4 was made. He stated that the contents of the letter of offer 'identified much of the material relied upon in the judgment'.[118] He said that the letter put the plaintiff 'squarely on notice that there was a large body of material available to it, much of which ultimately was adduced at trial'.[119] He said also that the letter 'spelt out in clear terms the material that it relied upon at trial'.[120] It is quite unrealistic, and opposed to principle, to parse the judge's language as if it was a statute. It is the fact that the defendant had put on a large body of material to support its justification defence. It is also the fact that the plaintiff was uniquely well-equipped, as the Trial Reasons reveal, to know the substance and strength of what was being alleged against him. Accepting as we do that a footnote to the Costs Reasons may fairly be criticised, we are not at all persuaded that the judge mistook the facts in any relevant or material sense.

257 Ground 4(c) contends that the judge erred by finding that the Second Consolidated Particulars of Truth merely inserted details into the existing particulars which were apparent from the material that the defendant had provided by the time when offer 4 was made.

258 The plaintiff submitted that the Second Consolidated Particulars of Truth made entirely new, and significant, allegations. He submitted that:

(1) The concept of 'scribes', although it had been raised in an outline of evidence, had not been referred to in the first iteration of the Consolidated Particulars of Truth. Further, the concept was much developed in the outline of the witness Peter Cage, which was not provided to the defendant until after offer 4 had expired. Mr Cage's outline of evidence expanded the allegation of scribing so as to allege that the plaintiff was both aware of and participated in an illegitimate form of scribing.

(2) Whilst a mass enrolment allegation had been referred to in the outline of evidence of Ms Ebejer, it had not been referred to in the first iteration of the Consolidated Particulars of Truth. In December 2016, on the strike-out application, the judge had said that the plaintiff was entitled to ignore it when considering the justification defence.

(3) Whilst two emails had been produced before February 2017 referable to 'incentives', they were two emails amongst very many.

(4) Allegations relating to the plaintiff's involvement in disreputable activities remained a matter of inference only until the Second Consolidated Particulars of Truth were delivered.

259 The defendant submitted that the attack mounted by ground 4(c) lacked substance. It submitted that a number of the issues fastened upon by the plaintiff had indeed been raised between the parties by the time that offer 4 was made. It drew attention to the judge's ruling on the Second Amendment application where, at [31], reproduced at [214] above, the judge said that 'the information contained in the particulars does not come as a total surprise to Mr Charan - witness statements have been filed and a number of the allegations now contained in the February particulars are within some of those witness statements'.

260 The defendant drew our attention to a schedule subjoined to the Second Amendment Ruling. Provided by the defendant's solicitors, it cross-referenced matters newly raised in the Second Consolidated Particulars of Truth with the material of which the plaintiff had earlier been apprised, or of which he must have known.

261 The cross-referencing just mentioned showed that, whilst some information pertaining to the new particulars was itself new, very much of the material upon which the defendant proposed to rely was, in one way or another, known to the plaintiff before the second offer was made.

262 Further, to the extent that there was new material in the Second Consolidated Particulars of Truth - we refer to allegations relating to the nature of the plaintiff's involvement in discreditable conduct - the new particulars raised matters of which the plaintiff could not but have been aware.

263 In the event, we consider that ground 4(c) lacks substance. Very largely indeed, the impugned observation made by the judge reflected the fact of the matter.

264 We turn to ground 5. As we have earlier noted, on a number of occasions the judge considered whether an offer made by the defendant was 'genuine'. He characterised offer 4 as being genuine. According to the plaintiff's submission, that was not in point when the judge was considering what costs should be awarded in the context of s 40 of the Act. In particular, s 40(2)(b) creates the prima facie position that an unsuccessful plaintiff will pay costs on an indemnity basis 'if the court is satisfied that the plaintiff unreasonably failed to accept a settlement offer'. Then, by sub-s (3), a settlement offer, in short, must be 'a reasonable offer at the time it was made'.

265 The plaintiff's submissions recognised that the judge had determined that the plaintiff had unreasonably refused offer 4. But that finding, it was said, was not on point because his Honour had not found that the offer was reasonable at the time when it was made.

266 Further according to the plaintiff's submission, offer 4 could not be considered to be a reasonable offer at the time when it was made because of the time limit imposed, the defendant's failure to address the plaintiff's arguments as to why the justification defence would fail, and the capitulation which the offer required.

267 The defendant argued that there was nothing to the plaintiff's attempt to draw a distinction between a 'genuine' offer and a 'reasonable' offer. The judge had not misunderstood what the defendant must establish.[121] In determining whether an offer was genuine, his Honour was in fact investigating whether it was truly an offer of settlement or was advanced for a collateral purpose. Once his Honour determined that offer 4 was genuine, there was subsumed in that conclusion a finding that the offer was reasonable. His Honour's subsequent finding that the plaintiff had unreasonably refused to accept the offer would be nonsensical unless it related to an offer which was reasonable. One could hardly fail to accept an offer which was itself unreasonable.

268 In our opinion, the defendant's submissions were clearly correct. In determining that the offer was 'genuine', the judge considered the time at which it was made, the time allowed for acceptance, the state of the material then known to the plaintiff, the significance of the offer being an offer to capitulate,[122] these being matters which, according to the plaintiff's submission, were relevant to demonstrating that offer 4 was not reasonable. In our opinion, the judge's reasoning about these matters was persuasive. So, if in language the judge had substituted 'a reasonable offer' for 'a genuine offer', the analysis would have been the same and the outcome would have been the same.

269 In any event, if the judge was wrong to enquire whether the offer was 'genuine' rather than 'reasonable' in the context of s 40 of the Act - this assumes that the plaintiff was correct in submitting that the two enquiries differed in substance - nothing ultimately turns on it. That is because, rather than ordering indemnity costs in respect of the whole of the proceeding - the prima facie position under s 40(2)(b) - the judge ordered that indemnity costs be paid only after expiry of offer 4. To do so was in conformity with the principles stated in Calderbank and in this Court's decision in Hazeldene. Those principles relevantly require that the rejection of an offer be unreasonable.

270 We go to ground 6. It attacks findings at CR [44] and [46] that the plaintiff unreasonably failed to accept a settlement offer made by the defendant within the meaning of s 40(2)(b) of the Act. The plaintiff submitted that the judge committed this error because he had not found beforehand that the offer was a reasonable one. This ground raises a narrow issue, and must be rejected in light of the conclusion we have reached with respect to ground 5.

271 Ground 7 proposes that, further or alternatively to ground 6, the judge erred in law in finding that the plaintiff failed to accept, in the language s 40(3) of the Act, 'a reasonable offer at the time was made'.

272 This ground particularises the matters - inclusively rather than exclusively - which, it is said, the judge failed to take into account:

(2) the time allowed to the plaintiff to consider the offer;

(4) the defendant's prospects of success assessed at the date of the offer; and

273 In written submissions, the plaintiff contended that the judge failed to have regard to earlier statements he had made that the defendant would be confined at trial to its particularised justification defence. To the contrary, it was argued, the judge's interpretation of offer 4 adverted to numerous matters outside that particularised case. For that reason, it was not unreasonable for the plaintiff to take the view that they were irrelevant.

274 Then it was submitted that the plaintiff's prospects of success had to be assessed at the date of the offer, and not with hindsight. There was a mistake in the article which associated the plaintiff with Phoenix. The article was found to be defamatory. The plaintiff was entitled to defend his reputation. His claim could not have been regarded as hopeless or conducted in bad faith. But the judge had not considered the plaintiff's prospects of success on the case that was pleaded against him at the time. Rather, the judge appeared to have concluded that a reasonable person would have done whatever he could to avoid a damaging, risky and costly trial, regardless of the merits of the actual justification then pleaded against him.

275 Again, it was submitted that the judge failed to take into account that if offer 4 had been left open for a reasonable time, say 14 or 21 days, the plaintiff would have known that the justification defence had been or would be amended, and would have seen more of the evidence ultimately found by the Court to justify the article. He would also have known that the trial would take far longer and cost far more.

276 Finally, the plaintiff submitted that offer 4 was a true offer to capitulate. The judge ought not to have formed the view that it was unreasonable not to accept offer 4 unless the plaintiff's case was patently hopeless or brought in bad faith. The trial judge made no such ruling.

277 The defendant submitted that pertinent both to whether the offer was reasonable and whether the plaintiff's failure to accept it was unreasonable, were these circumstances:

(1) The offer was made about two weeks before trial, escalating costs were being incurred on both sides, and the value of any offer degraded with each passing day.

(2) The plaintiff was uniquely able to assess whether the imputations which were the subject of the justification defence were matters of substantial truth. By 3 February 2017, 'the writing was on the wall. If [the plaintiff] believed he could succeed at trial, that belief could have been founded only on delusion, or a vain hope that Nationwide would fail to prove what [he] knew to be the truth'. In that context, the three day time limit to respond was adequate and the contribution that was sought towards the defendant's costs was reasonable. An inference that the time limit was adequate could be comfortably drawn from, inter alia, the circumstance that the plaintiff was in fact able to respond to the offer before it expired.

(3) The plaintiff's written case adopted an overly technical approach, purporting to assess the plaintiff's prospects at trial as would a lawyer unarmed with the plaintiff's unique knowledge of the true facts, sufficient notice of which had been given by the defendant's particulars.

(4) Whilst offer 4 was less advantageous to the plaintiff than a walk-away, this was, as the judge observed, a highly unusual case.

(5) If, contrary to the foregoing submissions, the Court was of the view that the judge erred in his application of, or in the exercise of his discretion under s 40 of the Act, then it should exercise its general discretion as to costs as to achieve the same result. This was an extraordinary case. The Court should express its disapproval of the plaintiff's conduct and make orders that did not leave the defendant significantly out of pocket as from the expiry of offer 4.

278 We refer at the outset to the five matters which, according to ground 7 - see [272] above - the judge failed to take into account. The Costs Reasons amply demonstrate that his Honour, in terms, took into account matters 1, 2, 3 and 5 of those matters. He took into account matter 5 because he concluded that the terms of the offer were in fact clear. Further, it is implicit in what his Honour said at CR [41] - referable to matter (4) - that he considered that the justification defence had a very considerable prospect of success.

279 In the event, in the terms in which the ground was particularised, it must fail. It appears to us that the plaintiff's real complaint is that the judge should have weighed the circumstances differently. But that is not House v The King error, unless it can be said that the miss-weighting was so great as to constitute a failure to properly bring matters to account at all. That is not this case, by a long stretch.

280 The effect of the conclusions already expressed impact upon the arguments which we have noted at [274], [275] and [276] above.

281 Further with respect to the argument noted at [274] above, the judge was not obliged to conclude that the plaintiff's prospect of success as at early February 2017 had to be considered on the footing that his claim was not hopeless - because he had been defamed, and because it could not be said that his claim had been brought in bad faith. The fact that the plaintiff had been defamed in some way said nothing about the prospect of the justification defence succeeding. Further, at the time when offer 4 was rejected, the plaintiff was asserting through his solicitors, that the defendant was raising 'baseless allegations' against him, when the allegations as he must have known were far from baseless; and he was requiring an apology which was at odds with material upon which the defendant proposed to rely. It seems to us, contrary to his counsel's submission in this Court, that the stance which he adopted was not based upon the justification defence raising false issues, but rather addressed the substance of the allegations which had been raised.

282 The submission noted at [275] above lacks force. The question whether or not it was advanced at trial can be put to one side. The volume of material upon which the defendant intended to rely was expanding; but not the core of the justification defence. Further, the plaintiff, with his unique knowledge of the affairs of companies in the CTI group which ACN acquired, demonstrated, by his rejection of offer 4 on 6 February and the making of his own offer, that he had ample time to consider and respond to offer 4.

283 With respect to the argument noted at [276] above, it goes too far to say, as the plaintiff submitted, that the judge was precluded from concluding that failure to accept the offer was unreasonable unless the plaintiff's case was patently hopeless or brought in bad faith.

284 As to the submission noted at [273] above, it was perfectly clear, as the judge well knew, that events had moved on since his ruling in December 2016 on the strike-out application. Orders made on that occasion had required the defendant to put on further evidence. Further material had been put on. It is unrealistic to imagine that the plaintiff could have laboured under the belief that the entirety of the material which the defendant had disclosed was not going to be incorporated into particulars on which the defendant would proceed at trial.

285 In the event, we consider that ground 7 lacks force.

286 In all, as we earlier foreshadowed, leave to appeal should be refused on grounds 4 to 7.

287 We will make orders in accordance with the disposition foreshadowed at [7] above.

[1] Charan v Nationwide News Ply Ltd [2018] VSC 3.

[2] Calderbank v Calderbank [1975] 3 All ER 333; see Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority [No 2] [2005] VSCA 298; (2005) 13 VR 435.

[3] Charan v Nationwide News Pty Ltd [2018] VSC 89.

[4] And, if leave is granted, that the appeal be allowed and relief of one kind or another granted.

[5] And so we will call it simply 'the article'.

[6] A concerns notice had been sent to the defendant on 27 November. It evidently failed to evoke a response satisfactory to the plaintiff.

[11] For convenience, we use hereafter the words and acronym 'as head of ACN'.

[12] In what follows, we will refer, for simplicity, to a 'ground' rather than a 'proposed ground'.

[14] Victoria being particularly relevant to the justification defence.

[15] EOE was an acronym for 'Evidence of Eligibility'.

[16] EOP was an acronym for 'Eligibility of Participation'.

[26] Plaintiff's Amended Written Case [2].

[27] (1998) 193 CLR 519, 529 [11] ('Chakravarti').

[28] [2000] VSCA 24; (2000) 1 VR 667, 669 [3], 674-6 [20]-[21], [24] (Ormiston JA); 687-8 [56], [58]-[59] (Charles JA) ('Hore-Lacy').

[29] [2014] VSCA 287; (2014) 44 VR 352 ('Setka').

[30] Counsel then submitted that there was a lot to be said for the conclusion of Basten JA (at 127 [210]-[211]) and Macfarlan JA (at 133 [235]), McColl JA dissenting, in Bateman (citation at n 36 below), that no pleading of an alternative meaning is necessary. Those observations were made in the context of the Uniform Civil Procedure Rules 2005 (NSW).

[31] What his Honour did was akin, counsel submitted, to the defective justification pleading considered in Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206, 209 [13]-[14], 218-219 [72]-[74], 220 [79]-[81] (Doyle CJ) ('Manock').

[32] [2014] VSCA 287; (2014) 44 VR 352, 367 [47]-[50] and 380 [106]-[107] (Warren CJ and Ashley JA).

[33] (1998) 193 CLR 519, 545 [58] (Gaudron and Gummow JJ).

[34] [2003] VSCA 161; (2003) 9 VR 1, 62-3 [303]-[306] (Gillard AJA) ('Popovic').

[35] [2010] NSWCA 34 [291]-[293] ('Habib').

[36] [2015] NSWCA 154; (2015) 90 NSWLR 79, 115-116 [169]-[170] (Basten JA) ('Bateman').

[37] (2002) 54 NSWLR 165, 173 [26] (Mason P) ('Greek Herald').

[38] Patrick George, Defamation Law in Australia, (LexisNexis Butterworths, 3rd ed, 2017) paras 180, 181, 183 and 186.

[39] The submissions referred to Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 and Setka [2014] VSCA 287; (2014) 44 VR 352.

[40] Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667, 675-6 [22]-[24] (Ormiston JA), 688-9 [58]-[63] (Charles JA).

[41] Emphasis added; see s 25 of the Act. Counsel did not submit, contrary to what was said by Warren CJ and Ashley JA in Setka, that 'imputations' in s 25 did not extend to permissible variants of pleaded imputations. His point was that the limitations for which the plaintiff was now contending could not constitute, converted into an imputation, a permissible variant to which the justification defence must respond.

[42] [2000] VSCA 24; (2000) 1 VR 667, 676 [24] (Ormiston JA); 684-6 [47]-[52] (Charles JA). Counsel also relied upon passages in the judgments of Brennan CJ and McHugh J in Chakravarti (1998) 193 CLR 519, 532 [19] and of Gaudron and Gummow JJ at 546 [60].

[43] Counsel instanced imputations (e) and (f).

[44] Mr Charan's closing submissions [150]-[151] (citations in original).

[45] Although irrelevant to this consideration - namely the perception of the reasonable reader of the article, it is of some interest that Mr Charan's concern was that he was linked to a company being investigated by the ACCC (citations in original).

[48] Hore-Lacy v Cleary [2007] VSCA 314; (2007) 18 VR 562 [27] (citation in original).

[54] For simplicity, we will refer to 'alternative meaning' rather than 'alternative meaning or meanings'.

[55] The transcript used capital letters to describe the various imputations. We have corrected these inapt references.

[57] Although in his written outline he had referred to the defendant accepting that the plaintiff had not been head of ACN at the relevant times. See [87] above. That was said, however, in the context of a submission that the proposed justification defence did not relate to the plaintiff's conduct as head of ACN.

[59] Dated 12 December 2016. They were superseded by the Second Consolidated Particulars of Truth dated 13 February 2017.

[60] Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 [287]-[295] (Kaye J) (citations in original).

[61] [2014] VSCA 287; [2014] 44 VR 352, 367-71 [46]-[64].

[62] We will not keep repeating 'or meanings'.

[63] Setka [2014] VSCA 287; (2014) 44 VR 352, 368 [56], 370 [58], [60], 378 [93].

[64] Such a justification plea must be sufficiently particularised to enable the plaintiff to know what the defendant is setting up: see the discussion in Setka [2014] VSCA 287; (2014) 44 VR 352, 368 [51]-[54].

[65] See the submission noted at [89] above.

[66] For convenience only, at times in these reasons we will continue to describe it as the surplusage submission.

[67] Bateman [2015] NSWCA 154; (2015) 90 NSWLR 79 [169].

[68] Greek Herald (2001) 54 NSWLR 165, 172 [21] (Mason P, with whom Wood CJ at CL agreed). See also at 172-3 [18]-[22], [24], [26], [28].

[69] Greek Herald (2001) 54 NSWLR 165, 173 [29].

[70] [2010] NSWCA 34.

[75] (1985) 1 NSWLR 260.

[76] [1999] NSWCA 164.

[77] [2003] NSWSC 716.

[78] This case involved also what seemed to be a very odd jury verdict, and a decision by the judge, after taking the verdict, to order a retrial. The defendant's appeal with respect to the retrial order was upheld, and judgment was entered for the defendant: ABC v Reading [2004] NSWCA 411.

[79] [2007] NSWSC 1212.

[83] At TR [22], the judge précised the article. The précis was slightly different to the list of matters at TR [38]. But the differences were in form, rather than substance, with the exception that TR [22(l)] did not find its way into TR [38].

[84] The word 'their' is inapt. No activities of Phoenix or Unique, other than those identified, were referred to in the article. To make complete sense of TR [41], 'their' might be omitted, or else 'with' substituted.

[85] [2005] SASC 82; (2005) 91 SASR 206, 219 [76].

[86] [2014] VSCA 287; (2014) 44 VR 352, 367 [47].

[87] [2005] SASC 82; (2005) 91 SASR 206, 219 [76].

[88] This does not require inclusion of our observations at [187].

[90] At trial, the plaintiff did challenge the admissibility of some of the evidence adduced for the defendant - particularly 'business records' evidence. The judge resolved the objection in the Trial Reasons.

[93] Plaintiff's Amended Written Case [27].

[96] In oral argument, senior counsel for the plaintiff contended, as we understand it, that there was an inadequate factual basis for the judge's conclusion that the plaintiff was aware of and condoned mass enrolment of students. Except tangentially - see ground 2B(b)(ii) - this was not addressed by the grounds of appeal. In any event, the contention lacked force.

[97] Charan v Nationwide News Pty Ltd [2017] VSC 66.

[99] [2016] VSCA 141 [234]-[235].

[100] [2011] VSCA 398 [11].

[102] [2004] NSWCA 341.

[109] For example, [2018] VSC 3 [371]-[450] (in relation to the audit reports); [622]-[643] (in relation to the three student 'witnesses'); [266]-[271], [522]-[559], [579]-[596] (in relation to Ms Ebejer); [273]-[275], [562]-[567], [602]-[613] (in relation to Mr Cage) (citation in original).

[115] (1936) 55 CLR 499.

[116] See, eg, Velissaris v Fitzgerald [2008] VSCA 152 [8] (Maxwell P, Mandie AJA agreeing); 24 Hour Fitness Pty Ltd v W&B Investment Group Pty Ltd [2015] VSCA 216 [53] (Hansen, Ferguson and McLeish JJA); Bodycorp Repairers Pty Ltd v GDG Legal Pty Ltd [2018] VSCA 32 [18] (Ferguson CJ, Whelan and McLeish JJA). See also Mitchison v Bullock [1886] VicLawRp 111; (1886) 12 VLR 512, 520; McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434, 455; Gladstone Park Shopping Centre Pty Ltd v Wills [1984] FCA 166; (1984) 6 FCR 496; Wightman v Johnston [1995] VicRp 81; [1995] 2 VR 637, 639-40.

[117] [2008] VSCA 152 [9] (citations omitted).

[121] Reference was made to CR [15(c)], [16] and [18].

[122] It was at least close to such an offer.