Creighton v Nationwide News Pty Ltd

District Court of NSW|2010-09-06|Before: Simpson J, Nicholas J, Higgins J

CITATION: Creighton v Nationwide News Pty Ltd (No. 2) [2010] NSWDC 192

HEARING DATE(S): 20 August, 31 August, 6 September 2010

(1) Plaintiffs' application to amend the statement of claim to plead back the defendants' contextual imputations granted. (2) Order 1 subject to leave being granted to both parties to bring any application to adjourn the proceedings pending legislative consideration of the issues raised by Simpson J in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852. DECISION: (3) Plaintiffs' Third Further Amended Statement of Claim to be filed in 7 days. (4) Defence to the Third Further Amended Statement of Claim to be filed 14 days thereafter. (5) Liberty to apply generally to Gibson DCJ as the trial judge in the proceedings listed to commence on 6 December, or to the Defamation List Judge. (6) Costs reserved.

CATCHWORDS: TORT - defamation - defendant pleads three contextual imputations - plaintiffs seek leave to "plead back" imputations - judgment of Simpson J in Kermode v John Fairfax Media Publications Pty Ltd [2010] NSWSC 852 holding that s 26 Defamation Act 2005 (NSW), due to a drafting oversight, fails to permit a defendant to rely on the truth of one or more of a plaintiff's imputations in the defence of contextual truth, entitling a plaintiff who "pleads back" contextual impuations thereby to defeat this defence - application by defendants to refuse plaintiffs leave to amend on the basis of abuse of process and pursuant to ss 56 - 62 Civil Procedure Act 2005 (NSW) - principles of comity - Simpson J's judgment inconsistent with Corby v Channel Seven Sydney Pty Ltd (Nicholas J, 20 February 2008, unreported) - principles of statutory interpretation - Simpson J's decision not clearly or plainly wrong - plaintiffs' application for leave to amend granted - plaintiffs bring application to join two additional defendants after expiry of the limitation period - application fails under s 56A Limitation Act 1969 (NSW) - alternative finding that plaintiffs' application to join two additional parties in a trial set down for hearing in three months would fail because of considerations of case management - plaintiffs' application to join two additional parties refused

Civil Procedure Act 2005 (NSW), ss 56 - 62 Defamation Act (NZ), s 7 Defamation Act 1952 (UK), s 5 LEGISLATION CITED: Defamation Act 1957 (Tas), s 18 Defamation Act 1974 (NSW), s 16 Defamation Act 2005 (NSW), ss 26 and 31 Defamation Act 2005 (Qld), Div 1 of Pt 3 Limitation Act 1969 (NSW), ss 14 and 56A

Ahmadi v Fairfax Media Publications Pty Ltd (Supreme Court of NSW, 289438/2008, 1 July 2010) Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 Allen v John Fairfax & Sons Pty Ltd, (Supreme Court of New South Wales, 2 December 1988, BC8801264) Anderson v Gregory [2008] QCA 419 Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645 AON Risk Services Australia Ltd v Australian National University(2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27 Baffsky v Johan Fairfax & Sons Ltd (Supreme Court of the ACT, Higgins J, 20 September 1990) Bank of Western Australia v The Federal Commissioner of Taxation (1994) 125 ALR 605 Caccavo, Ralph & Anor v Daft & Anor [2006] TASSC 36 Carey v Australian Broadcasting Corporation [2010] NSWSC 709 Chamberlain v R (1983) 46 ALR 493 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Cinevest v Yirandi [2001] Aust Torts Reports 81 - 160 Coleman v Power & Ors (2004) 209 ALR 182 Corby v Channel Seven Sydney Pty Ltd (Supreme Court of NSW, Nicholas J, 20 February 2008) Dering v Uris [1964] 2 QB 669 Elliott v West Australian Newspapers Pty Ltd [2009] HCA Trans 153 Fleming v Advertiser-New Weekend Publishing Co Pty Ltd [2010] SASC 255 Greek Herald v Nikolopoulos (2001) 54 NSWLR 165 Habib v Nationwide News Pty Ltd [2009] NSWCA 231 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Harrison v Melhem (2008) 72 NSWLR 380 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 James v Faddoul [2008] NSWSC 176 K Mart Australia Limited v Commissioner of Taxation [1995] FCA 1507 Keramianakis v Regional Publishers Pty Ltd (2009) 239 CLR 268 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 CASES CITED: Larach v Urriola [2009] NSWDC 97 Lindholt v Hyer [2008] 258 ALR 514 Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 Marr v Australian Telecommunications Corporation (1991) 25 ALD 473 McBride v John Fairfax Group Pty Ltd [2007] NSWSC 384 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 Newnham v Davis (No 2) [2010] VSC 94 Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 Noonan v MacLennan [2010] QCA 50 NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (Supreme Court of New South Wales, Hunt J, 14 July 1989) Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Plato Films Ltd v Speidel [1961] AC 1090 Polly Peck (Holdings) Plc v Trelfold [1986] QB 1000 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 R v Young (1998-99) 46 NSWLR 681 Rayney v State of Western Australia (No 3) [2010] WASC 83 Rodgers v Nine Network Australia Pty Ltd (No 2) (2008) 8 DCLR (NSW) 157; [2008] NSWDC 275 Saeed v Minister for Immigration and Citizenship (2009) 108 ALD 4 Soultanov v The Age Ltd & Anor [2009] VSC 145 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; 141 ALR 353; [1997] HCA 1 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; (1981) 37 ALR 66; (1981) 55 ALJR 614; (1981) ATPR 40-234; [1981] HCA 48 Upperedge v Bailey [1994] FCA 1142; (1994) 13 ACSR 541 Vajda v Nine Network Australia Pty Ltd (Supreme Court of NSW, 1 November 1996, unreported) Wade v Josa [2007] NSWDC 184 Wookey v Quigley [2009] WASC 284 Wookey v Quigley (No 2) [2010] WASC 209

Hansard of Western Australia, House of Assembly, 13 September 2005 Hansard of South Australia, House of Assembly, Wednesday 2 March 2005 TEXTS CITED: Hansard of Tasmania, Legislative Council, Tuesday 29 November 2005 Kirby J, "Judicial Activism"? A Riposte to the Counter - Reformation (2004) 24:3 Australian Bar Review 219 Lockhart J, "The Doctrine of Precedent - Today and Tomorrow" (1987) 3 ABR 1 New South Wales Law Reform Commission report of April 1971

First plaintiff: Wayne Creighton PARTIES: Second plaintiff: Cheryl Lee Creighton First defendant: Nationwide News Pty Ltd Second defendant: News Digital Media Pty Ltd

FILE NUMBER(S): 338265 of 2009 (previously 5239 of 2009)

COUNSEL: Plaintiffs: Mr C A Evatt / Mr R Rasmussen Defendants: Mr D Sibtain

SOLICITORS: Plaintiffs: Nyman Gibson Stewart Defendants: Blake Dawson

[1] These proceedings for defamation, in relation to a publication dated 12 July 2009, were commenced on 14 September 2009. The proceedings were conducted with speed and efficiency by the parties and, after the defendants filed a defence on 14 April 2010, the parties agreed the matter was ready for hearing. On 16 April 2010 the matter was listed for hearing for two weeks commencing 6 December 2010.

[2] This defence included a plea of contextual justification pursuant to s 26 Defamation Act 2005 (NSW). In addition to relying upon the truth of any imputations pleaded by the defendants, the defendants relied upon the following three imputations ("the contextual imputations"): (A) The first plaintiff, a senior prison officer, was so incompetent that he failed to detect that his own son was involved in illegal drug activity.

(B) The first plaintiff cannot be trusted to manage the State's most notorious criminals in Goulburn's Supermax because he did not even detect criminal activity taking place in his own immediate family.

(C) The first plaintiff has no credibility as a staunch anti-drugs campaigner because he can't even stop his own son's involvement in illegal activity. [3] The plaintiffs brought an application to amend the statement of claim to "plead back" these imputations and to join two additional defendants.

[4] The parties restored the matter to the defamation list for argument on 4 August 2010 following a series of decisions in the NSW Supreme Court defamation list, and were allocated a hearing date for the application on 20 August 2010 in the defamation list. After I heard argument on 20 August 2010 and reserved in order to hand down judgment on 31 August 2010, the defendants asked for time to make further submissions, an application I acceded to because these applications raise significant problems concerning the defences of contextual truth and comment. I have heard further argument this morning and by reason of the hearing of another trial at 10 am will email this judgment to the parties later today.

[5] The applications before me are as follows: (a) An application by the plaintiffs to plead back the defendants' contextual imputations. The defendants were prepared to consent to this step until Simpson J handed down Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 on 4 August 2010. Consent was then withdrawn because, as Simpson J points out at [41], granting such consent would deprive the defendant of the defence of contextual truth. Counsel for the defendants submits that although leave to amend would generally be granted, leave should not be granted where the effect is to deprive the defendants of the defence, and that the application to amend should be struck out as an abuse of process or pursuant to ss 56 - 62 Civil Procedure Act 2005 (NSW).

(b) An application by the plaintiffs to join two further parties, namely Yoni Bashan and Linda Silmalis, one or both of whom were the journalists who wrote the matter complained of. This is asserted to be necessary because it is possible that the defendants propose to plead a defence of comment of a servant or agent or comment of a stranger, in which case it is claimed that it is necessary to join the person who held the opinion. The limitation period expired on 12 July 2010. The defendants neither consent to, nor oppose, such an application. However, both sides draw to my attention the recent decisions of Simpson J in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 (25 June 2010) and of McCallum J in Carey v Australian Broadcasting Corporation [2010] NSWSC 709 (30 June 2010).

[6] In order to deal with the applications, it is necessary to commence with a summary of the issues raised between the parties in correspondence.

Correspondence between the parties prior to this application

[7] Prior to the application being brought, the parties exchanged correspondence concerning both the pleading back of the contextual imputations and the proposed joinder of the journalists. This correspondence is attached to the affidavit of Ms Foldvary, a solicitor in the employ of the solicitors for the plaintiffs.

[8] On 13 May 2010 the solicitors for the plaintiffs wrote to the solicitors for the defendants enclosing a proposed Third Further Amended Statement of Claim including the three contextual imputations which were to be pleaded back.

[9] On 31 May 2010, the solicitors for the defendants replied, stating that they would not object to the amendment to plead back the defendants' imputations, on the proviso that the plaintiffs would pay costs thrown away by reason of the amendment and adding: "We note that should your client's application be successful, our clients will naturally seek leave to amend their defence."

[10] On 9 June 2010, before the limitation period expired, the solicitors for the plaintiffs wrote to the solicitors for the defendants as follows: "5. Proposed Third Further Amended Statement of Claim. We note your statement that if we file a Third Further Amended Statement of Claim your clients will "naturally" seek leave to amend their defence. Would you please advise by return whether the Defendants propose to plead a defence of comment of a servant or agent or comment of a stranger in the new defence. If so it will be necessary for the Plaintiff [sic] to add the relevant servants and agents or strangers as defendants. The additional new defendants appear to be Yoni Bashan and Linda Silmalis.

The matter complained of was published on 12 July 2009 (in "The Sunday Telegraph"). The Plaintiff [sic] would need to add the additional defendants before 12 July 2010. Would you please advise by return whether the Defendants propose to plead defences of comment of [sic] servant and [sic] agent and the strangers [sic]. We require this information within 7 days. If not received we will add Yoni Bashan and Linda Silmalis to the new Statement of Claim and if necessary the Plaintiff [sic] will seek leave to add any further persons nominated as servants or agents or strangers even if after the expiration of the limitation period."

[11] On 22 June 2010 the solicitors for the defendants replied on 22 June 2010: "In answer to paragraph 5 of your letter, our clients will plead to any further amended statement of claim your client is minded to serve. We do not propose to otherwise answer this request." [12] Counsel for both parties have told me that during June and July, no motions were being heard in the Defamation List and that they were unaware who the judge allocated to hear the matter would be until the Notice of Motion returnable on 20 August was, with the permission of the registry, transferred to me. Counsel for the plaintiffs submits that to start fresh proceedings, as opposed to seeking leave to join the journalists, would amount to abuse of process (Maple v David Syme & Co Ltd [1975] 1 NSWLR 97).

[13] On 6 July 2010 the solicitors for the plaintiffs wrote enclosing a copy of the third further amended statement of claim adding the two additional parties, and requesting consent to the filing of this document "prior to Monday 12 July 2010". This letter was not replied to by the date requested by the plaintiffs, which I note was the expiry date for limitation purposes.

[14] On 5 August 2010 the solicitors for the defendants replied. They first reminded the plaintiffs' solicitors that they would not oppose an application for leave "subject to certain conditions". In relation to the proposed application for leave to join the journalists as parties, the defendants wrote: "We are instructed that should your clients bring an application for leave to file the 6 July 2010 TFASOC [Third Further Amended Statement of Claim], our clients will not oppose it provided that:

(a) The 6 July 2010 TFASOC is marked up to reflect all [writer's emphasis] of your clients' proposed amendments to the Second Further Amended Statement of Claim filed 11 March 2010, including any amendments joining Ms Silmalis and Mr Bashan as defendants as well as those amendments proposed by your clients in their letter dated 13 May 2010 pleading back our clients' contextual truth imputations.

(b) The paragraph numbering of the 6 July 2010 TFASOC is rectified so that it replicates that of the Second Further Amended Statement of Claim (SFASOC) filed 11 March 2010. For example, paragraph 5 of the SFASOC now erroneously appears as paragraph 1 in the 6 July 2010 TFASOC.

(d) Should your clients' application be successful, your clients will not oppose the defendants seeking leave of the court to amend their Defence."

[15] The solicitors for the defendants went on to note that they had instructions to accept service of the amended pleading on the two journalists "should your clients' application for leave to file the 6 July 2010 TFASOC be successful." A draft timetable was provided for other matters.

[16] On 5 August 2010, the same day, the solicitors for the plaintiffs replied that they were seeking to relist the matter and enclosing a draft timetable of their own.

[17] However, later on that same day, the solicitors for the defendants changed their position and wrote: "We refer to our letter of this morning.

In that letter, we indicated that our clients would not, subject to certain conditions, oppose and application by your clients for leave to file the proposed Third Further Amended Statement of Claim attached to your letter of 6 July 2010 (the proposed TFASOC).

To the extent that the Proposed TFASOC seeks to plead back our clients' contextual truth imputations, our clients withdraw from their position set out in that letter and reserve the right to oppose these amendments.

We refer to the judgment of Simpson J in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 delivered yesterday.

Our clients reserve their right to further consider Her Honour's judgment in arising at their position in respect of any application brought by your clients."

[18] The solicitors for the plaintiffs replied, also on 5 August 2010, as follows: "Kermode v Fairfax Media Publications Pty Ltd has no application to a plaintiff being permitted to plead back defendant's [sic] contextual imputations. It applied only to the defendant using the plaintiff's imputations contextually - which is now impermissible - and we note that your defence will require to be amended notwithstanding the Third Further Amended Statement of Claim.

Given your unreasonable change of position regarding the consent to the Third Further Amended Statement of Claim we withdraw our consent to paying the defendant's [sic] costs thrown away by the amended Statement of Claim. Once we have your amended defence, we will consider what if any contextual imputations should be pleaded back." [19] As it is the most pressing problem, I shall first deal with the plaintiffs' application to plead back the defendants' imputations. The plaintiffs' application to amend to "plead back" the defendants' contextual imputations [20] The entitlement of a plaintiff to "plead back" a defendant's contextual imputations is uncontroversial. This is why the solicitors for the defendants took the position that they did in their correspondence prior to 5 August. The reason for the change was the decision of Simpson J in Kermode v Fairfax Media Publications Pty Ltd, supra. What was it about this decision that caused their problem? To answer this question, it is first necessary to trace the history of the statutory defence of contextual truth in New South Wales, a defence unique in its structure, and one which was intended to be adopted as one of the major reforms in the passing of uniform defamation legislation in the States and Territories of Australia

[21] Simpson J sets out in Kermode v Fairfax Media Publications Pty Ltd, supra, at [20] that the problem caused by a defence of partial justification received serious consideration in Plato Films Ltd v Speidel [1961] AC 1090. There was earlier legislation concerning a plea of partial justification in England, in the form of s 5 Defamation Act 1952 (UK), as well as in Australia and New Zealand; the Defamation Act 1952 (UK) was enacted as s 18 Defamation Act 1957 (Tas) and s 7 Defamation Act (NZ). This provided a limited extension to plead partial justification where there were two or more distinct charges. However, the limitation of this defence became apparent in cases where a defendant is partially successful in relation their portion of the defamatory publication relied upon by the plaintiff.

[22] This led to the enactment of s 16, the rationale for which the New South Wales Law Reform Commission report of April 1971 explained as follows: " Section 16: truth: contextual imputations

Suppose that the defendant has published an imputation that the plaintiff has been convicted of simple larceny and an imputation that the plaintiff has been convicted of fraudulently converting trust property to his own use. Suppose that the first imputation is false but the second is true. If the plaintiff sues for damages for defamation in respect of both imputations a defence of truth will fail because the truth of both charges cannot be proved. In England the effect of the Defamation Act 1952, section 5, is that in such a case a defence of truth will succeed if the first imputation did not materially injure the plaintiff's reputation having regard to the truth of the second imputation. We agree with the object of this section, as far as it goes.

But if on facts such as these the plaintiff sues only in respect of the first imputation he will still succeed notwithstanding a provision along the lines of section 5 of the English Act of 1952: Plato Films Ltd v Speidel ([1961] A.C. 1090) A bill (the Freedom of Publication Protection Bill) was introduced in Parliament at Westminster in 1966 with a view, amongst other things, to substitute a new section 5 of the 1952 Act. The new section would have embraced the case where the plaintiff sues on such imputations only as cannot be proved to be true. We agree also with the object of this proposed substitution. Section 16 is intended to carry this object into effect. Its expression has to be more elaborate than that of the English proposals because place must be given to questions of public interest and qualified privilege. The Freedom of Publication Protection Bill was not passed: this was, we believe because of the controversial nature of other provisions of the Bill."

[23] The operation of s 16 is explained by Hunt J in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386. However, Hunt J also warned that a defendant could not plead minor variants of the plaintiff's imputation on the basis that the defendant had "almost got it right" (NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (Supreme Court of New South Wales, Hunt J, 14 July 1989)). This warning was probably the reason why the defence was rarely used.

[24] With the introduction of uniform defamation legislation in all States and Territories, two changes were proposed to the defence of justification. The first was the removal of the requirement of proof of public interest and the second was the introduction of a defence of contextual truth, which was intended to replace the inconsistent provisions for contextual justification in the various States and Territories.

[25] Some information about the ambit of this defence can be gained, as Simpson J notes in Kermode (at [31]), from the second reading speech of Mr Debus MLA. It was intended the new provisions for this defence in each State and Territory would provide a defence which functioned the same way as the provision of s 16 Defamation Act 1974 (NSW).

[26] What was said in jurisdictions where s 26 effected a significant change? As to judicial consideration, Simpson J refers in Kermode at [33] to Wookey v Quigley [2009] WASC 284 and at [35] to Newnham v Davis (No 2) [2010] VSC 94.

[27] As to what was said in Parliament, I would add, in addition to the material in Simpson J's judgment, that in Western Australia, the Hon. J A McGinty MLA, Attorney General, speaking on the Second Reading speech on 13 September 2005, said: "Clause 26 deals with contextual truth and provides it as a defence. Defence deals with a case in which there are a number of defamatory imputations carried by a matter but the plaintiff has chosen to proceed with one or more, but not all, of them. In that circumstance, the defendant may have the defence of contextual truth if the defendant proves two things: firstly, that the matter carried, in addition to the defamatory imputations of which the plaintiff complains , one or more other imputations that are substantially true; and, secondly, that the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. This reflects the current law in New South Wales, which carries a defence of contextual truth . That is an additional defence that now becomes available. There is some discussion of that issue at page 55 of the Western Australian Law Reform Commission report." (emphasis added)

[28] In South Australia, the proposed explanation of the new legislation put before the House on 2 March 2005 was: " 24 - Defence of contextual truth

This proposed section provides for a defence of contextual truth. The defence deals with the case where there are a number of defamatory imputations carried by a matter, but the plaintiff has chosen to proceed with one or more, but not all of them. In that circumstance, the defendant may have a defence of contextual truth if the defendant proves -

· the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ( contextual imputations ) that are substantially true; and

· the defamatory imputations about which the plaintiff complains do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

There is a defence of contextual truth under the existing law of New South Wales.

At general law, the truth of each defamatory imputation carried by the matter published that is pleaded by the plaintiff must be proved to make out the defence of justification unless it can be established that the imputations were not separate and distinct but, as a whole, carried a "common sting". In that case, the defence of justification is made out if the defendant can show that the "common sting" is true. See Polly Peck (Holdings) Plc v Trelfold [1986] QB 1000 at 1032. The defence of contextual truth created by the proposed Act, unlike the general law, will apply even if the contextual imputations are separate and distinct from the defamatory imputations of which the plaintiff complains." (Hansard of South Australia, House of Assembly, Wednesday 2 March 2005 at p 1837)

[29] I note a very recent case in South Australia, Fleming v Advertiser-New Weekend Publishing Co Pty Ltd [2010] SASC 255. In the course of his judgment, Burley J analyses s 24 (the South Australian version of s 26) in the same way as s 16 of the NSW Act (at [38] - 43]), indicative of an understanding as to how the defence was intended to operate.

[30] No mention was made of this change to the contextual truth defence in Tasmania by Mr Parkinson, Deputy Leader of the Government in the Council in Tasmania, which suggests that the extension of the Tasmanian contextual truth defence to reflect s 16 of the NSW repealed Act had not been appreciated. The only reference to change in the truth defence was to the removal of the public interest component: Hansard of Tasmania, Legislative Council, Tuesday 29 November 2005: ).

[31] There is some consideration of the defence of contextual truth in Tasmania in Caccavo, Ralph & Anor v Daft & Anor [2006] TASSC 36 but the definition of the defence at [2] is ambiguous.

[32] Finally, I note there are passing comments in Elliott v West Australian Newspapers Pty Ltd [2009] HCA Trans 153 (25 June 2009) where it was put to the High Court by counsel that s 26 was "a separate and distinct defence coming from the now repealed section 16 of the 1974 New South Wales Act". This is no more than an indication of the opinion of a particular counsel, but it would be fair to say it was an opinion widely held.

[33] Other references to analysis of the defence can be seen in Anderson v Gregory [2008] QCA 419, Wookey v Quigley [2009] WASC 284, Soultanov v The Age Ltd & Anor [2009] VSC 145 and Newnham v Davis (No 2) [2010] VSC 94 at [48], but in none of these was this point taken.

[34] Extracts from Hansard, like passing comments by judges (or counsel) in judgments where the point is not under consideration, should be used with great caution. As to Hansard, the reasons for caution were explained by Kirby J in Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at [82]. I set out this passage with the endorsement of it from Beazley JA's judgment in Harrison v Melhem (2008) 72 NSWLR 380 at [170]: "[170] I would respectfully adopt and apply the following passage in the judgment of Kirby J in Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at 555 [82]:

"[82] This court has repeatedly insisted that the Second Reading and other speeches in Parliament may only be used to throw light on the meaning of legislative words, to the extent that such speeches are sustained by the legislative text as subsequently adopted. It is in the nature of parliamentary speeches that they commonly lack the precision of statutory language. They can sometimes be motivated by forensic and political factors. They occasionally stray into hyperbole. The rule of law requires that this Court give effect to the purpose of Parliament expressed in the law made by or under an enactment. It is not part of a court's function, as such, to give effect to parliamentary speeches, ministerial media releases or other informal statements unless, validly, they have the specific endorsement of a parliamentary enactment. Saying this is not to discourage the proper use of such materials. It is simply to insist on the primacy of the enacted law." (Citations omitted)." [35] Having noted what was said in Hansard, I shall next set out an analysis of the defendant's argument concerning the proper construction for s 26. I shall then analyse the conflicting views of Simpson J in Kermode with the decision of Nicholas J in Corby v Channel Seven Sydney Pty Ltd (Supreme Court of NSW, 20 February 2008), a decision which derives some support from another decision of Simpson J, Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645 at [50] ff.

The defendant's argument about statutory interpretation

[36] In the defendants' further written submissions at [3] - [5], the defendants submit while that the canons of construction require a purposive approach to the construction of legislation, only the legislature can rectify the poor wording of a section as an attempted expression of legislative intention, citing Harrison v Melhem (2008) 72 NSWLR 380 at [1] - [17] per Spigelman CJ and at [159] - [188] per Mason P.

[37] Harrison dealt, inter alia, with the tension between common law principles and legislation; Spigelman CJ noted at [3] that many of the earlier decisions concerning statutory interpretation related to an era when judges regarded statutes as an intrusion into the common law. That is not the case here; the predecessor to s 26, s 16, was a creature of statute.

[38] As I have noted above, the role of the court is to interpret the words of Parliament, not to divine its intent; the court must determine what Parliament meant by the words that it used, and not to determine what Parliament intended to say (Melhem at [16]).

[39] However, realism has led courts to a principle of 'purposive' construction of legislation, as Kirby J noted extra-curially (at (2004) 24 Aust Bar Rev 219), citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-2 per McHugh, Gummow, Kirby and Hayne JJ; 53 ALR 490. Kirby J considered the judge should ascertain what the purpose of the legislation is, in order to help give effect to it. Project Blue Sky has been cited, on issues of interpretation of defamation law, in Lindholt v Hyer [2008] 258 ALR 514 at [124] per McColl JA and by the High Court (in the context of freedom of speech rather than defamation) in Coleman v Power & Ors (2004) 209 ALR 182.

[40] In interpreting the statute, it is permissible to add words. In Cinevest v Yirandi [2001] Aust Torts Reports 81 - 160 at [18] ff, Spigelman CJ considered a defect in the drafting to the predecessor to this legislation, namely the Defamation Act, 1974 (NSW). The question for determination was whether issues of identification in s 7A trials were disputed issues of fact for the jury. Spigelman CJ said at: " [18] This aspect of the appeal arises because of the concluding words of s7A(3) which, to repeat, are: "The jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory". The Appellant's case is that the jury is given only two tasks to perform: whether the publication "carries the imputation" and "whether the imputation is defamatory". In neither respect is there any express reference to the jury deciding anything about the person who is the plaintiff. That is to say the phrase "carries the imputation" does not extend to the issue of determining about whom the imputation is conveyed. Similarly the determination of whether the imputation is defamatory does not extend to a determination of whether or not the imputation is defamatory of a particular person.

[19] The first difficulty with the Appellants' construction is that in the very next subsection the legislature has acted on the basis that the issues of both publication and of identification have in fact been determined by the jury. To repeat the introductory words of s7A(4):

"If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff , the court and not the jury is ..."

[20] The two sets of italicised words - "published by the defendant" and "of the plaintiff" - do not appear expressly as matters for jury determination in subs(3). However, they are assumed to have been so determined on the face of the immediately succeeding subsection.

[21] In my opinion the context of the legislation requires the concluding words of subs(3) to be construed as if they read:

"The jury is to determine whether the matter complained of carries the imputation pleaded by the plaintiff and if it does, whether the imputation is defamatory of the plaintiff ."

[22] When the legislature used the words "carries the imputation" in the concluding part of subs(3), the definite article "the" was intended to be a reference back to the phrase in subs(3)(a) "the matter is reasonably capable of carrying the imputation pleaded by the plaintiff ".

[23] There is no similar reference to the plaintiff in subs3(b) which, of itself, would justify the addition of the words "of the plaintiff" after the words "whether the imputation is defamatory". However, the same conclusion arises by reason of the use of the phrase "the matter complained of" in the part of subs(3) which qualifies both of the issues for jury determination.

[24] By subs 9(2) a "person defamed" is given "a cause of action" for publication of "matter" and that is so "in respect of that imputation". The reference to "that" in this part of subs (2) is a reference to the immediately preceding words of that subsection namely: "an imputation defamatory of another person ". Accordingly, in this respect the reference to the person defamed is part of the definition of the cause of action encompassed, where second appearing, by the word "imputation" unadorned by repetition of the words "of another person".

[25] Furthermore, a cause of action is given to "the person defamed" for publication of "matter". That word is defined in s 9(1) for purposes of s9 in terms of a publication by means of which "the publisher makes an imputation defamatory of another person ". Again, the words "of another person" are not repeated when the word "matter" is used subsequently in subs (2).

[26] When, in s 7A(3), the words "matter complained of" are employed, they are intended to encompass proceedings by a person who asserts that an imputation is conveyed about him/her/itself and that that imputation is defamatory of that same person. It was on that basis that the legislature inserted the reference "of the plaintiff" in s 7A(4).

[27] For these reasons the text of s7A(3) should be construed as if it contained the additional words I have emphasised in para[21] above. This is not to add words to the subsection but to construe the section with a particular effect, which is more readily expressed by rewriting the section in a form containing additional words. (See R v Young (1998-99) 46 NSWLR 681 at [6], [12] to [16]. Identification is an issue for the jury."

[41] There was no information as to the legislative intention concerning s 7A(3); the likelihood was that this was one of many issues (contextual imputations being another) the drafters of this section did not consider. However, Spigelman CJ's construction of this section meant that no statutory alteration was necessary. The approach taken by Spigelman CJ was adopted in all s 7A trials, and the method of interpretation used was referred to with approval by the Court of Appeal in Greek Herald v Nikolopoulos (2001) 54 NSWLR 165 at [47] per Young JA.

[42] In addition, statutory interpretation may involve a detailed consideration of the anterior legal and historical context of the legislation (Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 112 per McHugh J). The Court may also have regard to reports of law reform bodies to ascertain the mischief a statute is intended to cure (CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384) and consider the context of the statute including well-established principles of defamation law, as well as the inconvenience and improbability caused by an over-literal interpretation of a statute (Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 at [10] - [41] per McHugh ACJ, Gummow and Lehane JJ, interpreting provisions in copyright law (noting the dissenting remarks of Kirby J at [86] - [89]); see also Keramianakis v Regional Publishers Pty Ltd (2009) 239 CLR 268).

[43] I have set out theses discussions of the correct method of judicial interpretation because counsel for the defendants has formally submitted that Simpson J's decision in Kermode was wrong (paragraph 4 of the defendants' further written submissions), and that the decision of Nicholas J in Corby should be preferred, the defendants concede the decision of Simpson J is not "plainly wrong" (paragraph 5). This brings me to a consideration of the reasoning in these apparently inconsistent judgments and to other judgments where this issue has been touched upon, although without any definitive ruling.

[44] As Simpson J notes in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676 at [18], the 2005 Defamation Act is still in relative infancy, so the case law on s 26 is limited. Nevertheless, this potential problem with s 26 was directly addressed in two previous Supreme Court decisions.

[45] The first of these was, as her Honour notes, an unreported decision of Nicholas J in Corby v Channel Seven Sydney Pty Ltd (Supreme Court of New South Wales, Nicholas J, 20 February 2008). Nicholas J rejected the submission that was successful before Simpson J namely a submission that the wording of s 26 precluded a defendant from relying upon the truth of the plaintiff's imputations, and held: "12. In other words, if the plaintiff's submission was correct, it would follow that it would not be open to a defendant to follow the practice in respect of the pleading of contextual imputations under s 16 of the Defamation Act 1974, by adopting them, and pleading them back.

I think this issue raised by the plaintiff can be determined with regard to the principles relevant to the application of s 16 of the Defamation Act 1974. Those principles were explained by Hunt J in a number of cases, the most recent of which, relevantly, is Allen v John Fairfax & Sons Pty Ltd , (Supreme Court of New South Wales, 2 December 1988, BC8801264).

It is sufficient to observe that [Hunt J]'s statement have been cited with approval in the Court of Appeal in a number of cases since then, and as far as I am aware they remain good law.

Turning to the situation in this case, it will be seen that the defendant in para 5, 6, 7 and 8 raises defences under s 26 of the Defamation Act 2005. It will also be seen that the pleader adopts, consistently with practice under the Defamation Act 1974, the opportunity of pleading back as contextual imputations, imputations that were and are relied upon by the plaintiff.

It seems to me that when one turns to the wording of s 26(a) Defamation Act 2005 that nothing can be taken from it which would preclude the continuation of that practice. As I construe the words of s 26(a), I hold that they specify the characteristics, or features, of a contextual imputation, and that these words effectively adopt and follow the language of Hunt J in the passages from Allen , to which I have referred."

[46] Following this decision, the defences of justification and partial justification in Corby v Channel Seven Sydney Pty Ltd proceeded before Simpson J and a jury of four, resulting in findings on liability in favour of the plaintiff. [47] The second decision was Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645 where Simpson J noted: "50 As I have indicated, Jones was decided under the 1974 Act. While the sense of s 16 is not different from that of s 26 of the Act, the language is slightly different. Sub-section (1) of s 16 provided that:

"Where an imputation complained of is made … and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of." (italics added)

51 Section 26 of the Act provides that it is a defence to the publication of defamatory matter if the defendant proves that:

"(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations … that are substantially true …" (italics added)

52 I mention this only in order to note that I see no difference between "another imputation" and "one or more other imputations", and to explain the reference in the next paragraph of the Chief Justice's judgment which I am about to quote."

[48] Simpson J's analysis of s 26 in this judgment, handed down shortly before Kermode, does not refer to this argument. It was clearly not raised. However, that does tend to reinforce the impression I had, when reading s 26, namely that the problem is only there when one looks for it. If s 26 is read as an adjunct to a defence of truth, and only operates for those of the imputations for which all other defences have failed, the truth of the other imputations might be presumed, and therefore not need to be stated in specific terms.

[49] This was in fact my view in Larach v Urriola [2009] NSWDC 97, a decision not referred to by Simpson J in Kermode, probably because the argument of potential difference in construction between s 16 and s 26, although raised, did not need to be dealt with, because of my finding that none of the contextual imputations pleaded was conveyed. This meant that the defence of justification for all of the plaintiff's imputations also failed. I did, however, briefly note the issues as follows: "135. The new Act (which refers to imputations "in addition" to the plaintiff's imputations) may result in a situation similar to the role of imputations under s 5 Defamation Act 1952 (UK) ("the UK Act"). The use of these words may have the result (whether intended or not) that the pleading back of one of the plaintiff's imputations may be relevant as to mitigation, but cannot defeat the action in the same way as was possible under the 1974 Act.

In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff ' s reputation having regard to the truth of the remaining charges."

Thus, if a publication asserts that the plaintiff is a swindler, a liar and entered the country illegally (to use the well-known example cited in Hepburn v TCN Channel Nine P/L [1984] 1 NSWLR 386 at 397), a plaintiff may now be obliged to plead all three imputations in order to avoid the loss of the action through "swamping". If a plaintiff pleads only the imputations of illegal entry, the imputation of swindling and lying can be pleaded by the defendant to defeat the action. However, if a plaintiff pleads all three imputations and the defendant successfully proves the truth of one or both of the others (swindling and lying), the argument would be that the truth of these imputations would only go to mitigation of damages.

The language of s 26 has not yet been the subject of consideration by other courts. The pleadings in this case, however, give a good example of imputations which the plaintiffs could have pleaded but failed to do so. If one or more of the defendants' imputations were to succeed (assuming they could outweigh the plaintiffs' imputations) the plaintiffs may lose the action. Would that occur if the defence of one of the plaintiff's imputations succeeded? This is a question of statutory interpretation which, by reason of my findings of fact in this case, is not necessary for me to determine, but it is an argument that has been raised in submissions and I must accordingly refer to it. Although it is not necessary for me to determine the issue, I note my view that "another" (the 1974 Act) and "additional" (the 2005 Act) mean the same thing, and that the regime under the 1974 Act applies to the 2005 Act defence."

[50] Corby was never published on the Supreme Court's Caselaw website, and a number of trials in the Supreme Court were conducted on the basis that the defence under s 26 operated in the same fashion as s 16. These include proceedings brought by a Mr Ahmadi, which were heard by Rothman J and a jury of four persons, where the jury rejected a defence that the truth of six of the eight imputations outweighed the truth of the other two imputations; Rothman J went on to assess damages of $7,500 in a judgment of 1 July 2010. At least one other trial in this court currently being heard is proceeding on the basis of s 26 being interpreted as the same as s 16, and Mr Evatt (who appears for one of the parties) tells me this point has not been raised in that trial. It would appear, from Simpson J's reference to judgments in other States of Australia, that trials there are being conducted on the basis that s 26 should be interpreted on the same basis as s 16.

[51] Simpson J's analysis of the wording of the statute, and the application of the principles of statutory interpretation applied, makes a very strong argument that the wording of the statute does not pick up the imputations pleaded by the plaintiff. Her Honour is of the view that this is not a matter that can be resolved by the adding of a few words in the manner that occurred in Cinevest. Nicholas J's judgment in Corby does not refer to principles of statutory interpretation, or analyse the language of s 26 in any detail. It is, however, a judgment of the Defamation List Judge in the Supreme Court of New South Wales, and great weight should be given to it.

[52] Simpson J's carefully reasoned judgment is not only contrary to Corby but contrary to the established practice of the Supreme Court of NSW in a number of defamation trials, including Ahmadi v Fairfax Media Publications Pty Ltd (Supreme Court of NSW, 289438/2008; see the judgment of Rothman J on assessment of damages of 1 July 2010).

[53] I do not have to, for the purposes of this application, prefer one decision over another. The application before me is not one to strike out the defence of contextual truth; it is to refuse to permit the plaintiffs to amend, and the question is whether Simpson J's judgment is clearly or plainly wrong: Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 190; Saeed v Minister for Immigration and Citizenship (2009) 108 ALD 4.

[54] I would not have the temerity to say that Simpson J's judgment is clearly or plainly wrong; it is, in fact, the first proper analysis of the drafting of s 26. In particular, her Honour's comments at [41] concerning the impact of such a ruling upon the entitlement of the plaintiff to defeat the defence by pleading back the contextual imputations must be correct, no matter what view any appellate court may take about the wording of s 26. The entitlement of the plaintiff to plead back the imputations is clear. Indeed, this may have been the whole point of the limited English defence - to force the plaintiff to air in court all of the allegations in the matter complained of, with the risk that damages might accordingly be derisory, like the famous "farthing" damages in the "QBVII" case, Dering v Uris (reported as to costs at [1964] 2 QB 669; see Levine J's instructive discussion of the relationship between s 16 and contemptuous damages, using Dering as an example, in Vajda v Nine Network Australia Pty Ltd (Supreme Court of NSW, 1 November 1996, unreported)).

[55] In the absence of an application to strike out the defence, all that I should say is that it is very likely that the defence of contextual truth would not be available to the defendants were I to permit the plaintiffs to plead back the defendant's imputations. This brings me to the defendants' application that I should refuse to grant such an application, firstly because it would amount to abuse of process, and secondly by reason of the provisions of ss 56 - 62 Civil Procedure Act 2005 (NSW).

[56] Mr Sibtain submits that to permit this amendment would amount to an abuse of process. Abuse of process is recognized as a basis upon which courts should not have regard to issues of comity: see for example Baffsky v Johan Fairfax & Sons Ltd (Supreme Court of the ACT, Higgins J, 20 September 1990 at 10). It is conceded that the refusal of Simpson J in Kermode at [41] to take into account the ability of a plaintiff to defeat a s 26 defence by pleading back a plaintiff's imputations is a finding which, by reasons of comity, I should not disregard.

[57] Simpson J in Kermode stated (at [41]): "[41] Senior counsel who appeared for the defendants advanced a pragmatic argument against this construction. It was that, in any case where a defence of contextual truth is pleaded by a defendant, a plaintiff may defeat that defence by simple adopting the contextual imputations as imputations of which he or she complains. In doing so, a plaintiff would lose nothing, because, by pleadings the imputations as contextual imputations, the defendant has signaled an intention to prove their truth. By adopting (or, put more pejoratively, "appropriating") the contextual imputations pleaded by the defendant, the plaintiff could deprive the defendant of a defence under s 26. that has, in fact, occurred on at least one occasion: Corby v channel Seven Pty Ltd (NSWSC, 20086/2007). Senior counsel's proposition is correct, but it cannot be allowed to dictate the proper approach to statutory construction."

[58] Mr Sibtain does not cite any authority concerning the entitlement of a party to press a defence which, by reason of judicial interpretation, was either no longer available or where a subsequent legal decision gave a party a right it did not have at trial.

[59] It is still open to the defendants to plead the truth of the imputations, and to rely upon the truth of those imputations to reduce the claim for damages to a nominal sum (as occurred in Ahmadi). What the defendants want to retain is the forensic opportunity of relying upon imputations which it will be able to put to the jury have not been pleaded by the plaintiffs, and to rely upon the truth of these imputations to "swamp" those of the plaintiffs' imputations for which the defence fails. In order to do so, the defendants asks me to refuse to permit the plaintiffs to plead these imputations, notwithstanding the plaintiffs' stated intention (as soon as these imputations were identified by the defendants) of doing so.

[60] The circumstances in which a plaintiff's entitlement to plead back imputations would be struck out as an abuse of process would have to be exceptional. Courts have refused to strike out s 26 contextual truth pleas as an abuse of process where the abuse is asserted to be the form or content of the pleading: McBride v John Fairfax Group Pty Ltd [2007] NSWSC 384; James v Faddoul [2008] NSWSC 176. The same rules should apply to the entitlement of a plaintiff to plead back the imputations asserted to arise.

[61] Whether or not tactical considerations (such as who to sue, and in which court) may amount to abuse of process has been discussed in Habib v Nationwide News Pty Ltd [2009] NSWCA 231 at [200]. A litigant cannot be shut out from pleading an otherwise legitimate defence or claim by reason of a change in the law, or of judicial interpretation, especially when that change is in favour of the party seeking to make the amendment. The fact that there is a conflict of judicial opinion concerning the correct interpretation of s 26 is not such a circumstance.

[62] Just as such a proposition should not influence the proper approach to statutory construction, it should not influence the proper approach to the elements of abuse of process. Simpson J's analysis of s 26 may be unwelcome to the defendants, in that it may be deprived of one of its defences, but that does not mean the court should refuse to permit the plaintiffs to make an amendment which is otherwise a legitimate entitlement of a plaintiff in defamation proceedings.

[63] In addition to assertions of abuse of process, the defendants rely upon ss 56 - 62 Civil Procedure Act as a basis for refusing to make the amendment.

[64] The overriding purpose of the Civil Procedure Act 2005 (NSW) is for litigation to be "just, quick and cheap" (s 56). Section 58 provides that in granting any applications for the amendment of pleadings, the court is to follow the dictates of justice. Questions of amendment and adjournment of trials are relevant and the principles are set out by the High Court in AON Risk Services Australia Ltd v Australian National University(2009) 239 CLR 175; (2009) 258 ALR 14; (2009) 83 ALJR 951; [2009] HCA 27.

[65] One of the relevant factors is the stage of proceedings. An application made six months before the hearing in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; 141 ALR 353; [1997] HCA 1 was permitted; roughly the same amount of time is involved here. While the principles for which this decision stand had been subject to both judicial and legislative review, an application to amend pleadings made six months before the trial (as is the case here), especially if made promptly after a defence raises an issue for the first time, should be viewed with a greater degree of sympathy than an application made at or during a trial, as occurred in AON Risk Services Australia Ltd v Australian National University, supra.

[66] Nor is it the case that it has been an application to seek to reintroduce matters that have previously been abandoned, as was the case in Dennis v Australian Broadcasting Corporation, supra.

[67] Nor is it the case that there is any delay or inefficiency by the plaintiffs in bringing this application; the defendants were promptly notified shortly after the plaintiffs' legal advisors received the defence pleading a defence pursuant to s 26.

[68] The concession by the solicitors for the defendants concerning the circumstances in which they were prepared to agree to this amendment, although later withdrawn, is of some relevance. As counsel for the defendants frankly admitted, if it had not been for the decision in Kermode, the application would not have been brought.

[69] There are no provisions under the Civil Procedure Act designed to assist a party who has lost a defence or a claim for damages by reason of judicial re-interpretation of the law, or by a statutory amendment. For example, differing judicial interpretations about whether accidents which occurred while a workman was unloading a truck were, or were not, a motor vehicle injury, caused disadvantage to plaintiffs; submissions about these difficulties were made to me as an explanation of delay in commencing proceedings in Wade v Josa [2007] NSWDC 184 at [56]. Parties who are deprived of rights by a change in the law, or a change in judicial interpretation, may feel justifiably aggrieved, but there are no provisions in the Civil Procedure Act for parties to seek orders from the court to protect themselves from the impact of these changes.

[70] The defendant's application to strike out the plaintiffs' application to amend is therefore refused.

[71] In the course of the hearing of this application I made a suggestion (following upon similar conduct by McClellan CJ at CL in the Davis defamation trial) that the parties could agree to interpret s 26 as if Nicholas J, and not Simpson J, was correct. This would mean that the defendant's defence of contextual justification would still be on foot.

[72] The latest set of written submissions from the defendants take exception to this course. It is claimed that, if the plaintiffs and defendants consented to the trial proceeding on the basis that s 26 should be interpreted in the same way as s 16, and Simpson J's interpretation of s 26 is correct, then "the judgment of this court, notwithstanding consent, would be ultra vires". No authority is cited for this proposition, but in argument this morning Mr Sibtain has referred me to Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; (1981) 37 ALR 66; (1981) 55 ALJR 614; (1981) ATPR 40-234; [1981] HCA 48.

[73] However, the order itself was ultra vires in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; (1981) 37 ALR 66; (1981) 55 ALJR 614; (1981) ATPR 40-234; [1981] HCA 48. The High Court went on to note specific examples where courts could make orders of this kind, such accepting undertakings to publish an apology in defamation cases; see also the comments of the High Court at (1981) 148 CLR 150 at 163-164. All the material here points to the legislature having an intention which it has failed to achieve and which requires legislative amendment. If Simpson J's interpretation of s 26 appears not to be what the drafters intended, and Simpson J has taken steps, as her Honour notes in the judgment, to draw these omissions to the attention of the relevant authorities. There is every likelihood that such an amendment would be expressed to be retrospective, to take into account the many cases where this defence has been pleaded or run at trial. If the parties want to keep the trial date, and are prepared to accept the likelihood of amendment to reflect the intention of the legislature, consent by the parties as to how to interpret s 26 would be one way for the parties to heed the maxim "just, cheap and quick" in s 56 Civil Procedure Act.

[74] However, my suggestion that the parties consent was simply that - a suggestion. Now that I have made it, it is up to the parties to decide how they would like to conduct this litigation. Many variable factors, including the possibility of prompt action concerning Simpson J's judgment, the mediation the court has arranged for the parties on November 11 and the professional competence and skill of counsel and their instructing solicitors on both sides mean that I can leave these important decisions to them. Judges should be careful not to impose their own views of how litigation should be run on experienced practitioners, especially in such a complex area of the law as defamation.

Conclusions concerning application by the plaintiffs to amend

[75] I grant leave to the plaintiffs to amend the statement of claim to plead back the defendants' imputations, with a liberty to apply to in relation to any application to adjourn the hearing.

[76] I shall not, however, make any order for the striking out of the defendant's defence of contextual truth at this time. Other events, such as a rapid amendment of the legislation, or an application to adjourn the hearing pending the enactment of such legislation, are likely to render such a step (which I note is not sought by the plaintiffs) unnecessary.

[77] If the defendants file an amended defence, are the defendants entitled to plead a defence of comment? It is the plaintiffs' fears that a comment defence will now be added which has led to the second application that is before me, namely an application to join the journalists who wrote the articles.

[78] The application to join additional defendants, namely the journalists, if a defence of comment was pleaded, would presumably be the persons who held the relevant opinion for the purposes of s 31 Defamation Act 2005 (NSW), is neither consented to nor opposed by the defendants. As the correspondence set out above makes clear, the defendants have taken the view that it is a matter for the court.

[79] The questions before the court are as follows: (a) Where an opponent neither consents to nor opposes an application to join additional parties to existing proceedings, and indicates that it has instructions to accept service for those parties, to what extent should the court either of its own motion or pursuant to ss 56-62 Civil Procedure Act 2005 (NSW) impose upon the parties seeking the relief restrictions that the other party does not actively seek? Although not providing me with submissions other than in a very general fashion, the defendants have in fact resisted the application, so I do not need to resolve this question.

(b) Where a party give notice within the limitation period, in circumstances where it is necessary to seek the leave of the court (as opposed to simply commence proceedings within the limitation period), is this sufficient to comply either with ss 14 and 56A Limitation Act 1969 (NSW) or with ss 64 and 65 Civil Procedure Act 2005 (NSW)? I have set out below my reasons for rejecting the plaintiffs' submissions to this effect.

[80] I note the parties have not raised with me any issue as to whether it is necessary for the journalists to be joined as parties for the plaintiffs to be able to defeat the defence of comment.

[81] The background to this application is as follows. The second jury trial to be heard in Australia under the uniform defamation provisions (Defamation Act 2005 (NSW)) was Davis v Nationwide News Pty Ltd. The quantum issues arising from this trial are set out at [2008] NSWSC 693.

[82] This was the first trial at which the defence of comment under the Defamation Act 2005 (NSW) was considered. In the course of submissions to me in Rodgers v Nine Network Australia Pty Ltd (No 2) (2008) 8 DCLR (NSW) 157; [2008] NSWDC 275, counsel for the parties tendered part of the transcript of a discussion between McClellan CJ at CL and the counsel in Davis v Nationwide News Pty Ltd, which led to the parties entering into consent orders in which the defendant effectively waived any reliance upon failure to join the journalists (see [5] of Rodgers v Nine Network Australia Pty Ltd (No 2), supra).

[83] McClellan CJ at CL heard from the parties on the issue, but handed down no judgment. Although there was no judgment exposing the reasoning for this finding, as I indicated in my judgment in Rodgers v Nine Network Australia Pty Ltd (No 2), supra, I considered I should accept the concluded views of a Supreme Court trial judge in the course of a trial should still be followed. In the interests of comity, such a ruling should be accepted by other judges unless it was clearly or plainly wrong, for reasons of comity: see for example Marr v Australian Telecommunications Corporation (1991) 25 ALD 473 per Hill J at 475; Upperedge v Bailey [1994] FCA 1142; (1994) 13 ACSR 541 per Jenkinson J at 543; Bank of Western Australia v The Federal Commissioner of Taxation (1994) 125 ALR 605 per Lindgren J at 627); K Mart Australia Limited v Commissioner of Taxation [1995] FCA 1507; Chamberlain v R (1983) 46 ALR 493 at 498 per Bowen CJ and Foster J; see also the extra-judicial comments of Lockhart J in "The Doctrine of Precedent - Today and Tomorrow" (1987) 3 ABR 1 at 10).

[84] Prior to McClellan CJ at CL's ruling in Davis, journalists had rarely been joined as parties (for the reasons enunciated by Hunt J in "Defamation - Pre-Trial Practice" (referred to in Rodgers v Nine Network Australia Pty Ltd (No 2), supra, at [6]). After Davis, this practice began to change. In particular, an application was made to join journalists as parties after the limitation period has expired in Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. That application was rejected by Simpson J having regard to the way in which s 56A Limitation Act 1969 has been interpreted in a number of recent decisions, notably Noonan v MacLennan [2010] QCA 50.

[85] The application in Ahmed was brought more than two years after the broadcast. In the present case, notification was given of the intention to join the journalists within the limitation period, and the question is whether that notification of a party who "ought to have been joined" (UCPR Pt 6 r 6.24). That rule does not apply if the limitation period has expired.

[86] The defendants have pointed out that the limitation period having expired, the plaintiffs cannot seek leave to join further parties unless they satisfy this test. No submissions were made concerning the facts upon which the plaintiffs sought to distinguish Ahmed, namely that notification of the intention to amend was given prior to the expiry of the limitation period, and no opposition taken to that course by the defendant.

[87] Whether correspondence between solicitors during and after the expiry of a limitation period amounted to circumstances for extending time was considered in Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175. The plaintiff, who was not named in a publication, sent a notice of concerns letter under Div 1 of Pt 3 Defamation Act 2005 (Qld) and entered into negotiations for an offer of amends. An offer of amends was made before the twelve month limitation period had expired, and the parties continued their negotiations until after the limitation period had expired. The offer of amends remained on foot until shortly after the limitation period expired. The plaintiff sought leave to commence proceedings out of time, asserting the defendant had indicated a willingness to settle the matter without the institution of proceedings.

[88] In setting aside the decision of the District Court of Queensland extending time Fraser JA, with whom Fryberg JA agreed, noted the plaintiff's delay in initiating these discussions, noting that the effect of the delay was "artificially to compress the time available both for completion of the processes under Div 1 of Pt 3 of the Defamation Act and for any settlement of the litigation before expiry of the limitation period" (at [37]. While the publisher had been content to participate in those processes, it did not waive reliance, nor did it encourage the plaintiff to delay. Fraser JA noted at [56] the correctness of Ahmed (although on issues other than the joinder of journalists) and Fryberg J noted at [79] the correctness of Carey.

[89] In his dissenting judgment, Applegarth J notes at [89] that the Act does not list the kinds of cases where it will be unreasonable, or the factors that might be taken into account, adding that "whether it will be unreasonable to disrupt those processes and to incur expense by commencing proceedings must depend on the circumstances of the particular case, having regard to the policies the Act seeks to advance" (at [89]. Applegarth J was referring to the offer of amends negotiations on foot. There is much force in his Honour's view that the limitation legislation needs to be seen in the wider context of the law. However, the bringing of an application to join additional parties to existing proceedings is an entirely different kind of application, in that it is not dependent upon negotiations, as the litigation has already been commenced.

[90] The plaintiffs submit that no thought was given to the defence of comment until the defendants refused to say (in the correspondence set out above) whether comment would be pleaded or not, and that in those circumstances it would not be reasonable to have joined the journalists as parties prior to the expiry of the limitation period.

[91] I do not accept this submission. The plaintiffs were on notice of this potential problem in the interpretation of s 31 since Corby v Channel Seven Sydney Pty Ltd, supra, and Rodgers v Nine Network Australia Pty Ltd (No 2), supra, and could have joined the journalists when proceedings were first commenced. It was not necessary for there to be a defence of comment on foot, as they were jointly liable as publishers. Alternatively, the plaintiffs could have sought to join them as parties after litigation commenced, on the basis that their joinder was relevant to determine disputed issues of fact which are "subadjacent to the pleadings" which cannot be determined without their being a party: Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 38 per Glass JA. The relevant date is not the date when the defendants refused to say whether a defence of comment would be pleaded, but the date when the plaintiffs' legal advisers were aware that if a defence of comment was likely to be pleaded, consideration would have to be given to the joinder of the journalist. That date was in 2009 when commencing proceedings, or at least after the imputations were settled,

[92] The test for commencing proceedings out of time for defamation is a very difficult one to succeed upon; more than one judge has commented on its harshness: Rayney v State of Western Australia (No 3) [2010] WASC 83; Wookey v Quigley (No 2) [2010] WASC 209; Noonan v MacLennan [2010] QCA 50; Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175. It was not reasonable, in these circumstances, for the plaintiffs not to have joined the journalists as defendants prior to the expiry of the limitation period.

[93] In making this finding, I am conscious of the serious implications this has for journalists who, as a result of decisions such as Ahmed, may be joined as defendants as a matter of course until a court gives a decision of binding effect as to whether or not it is indeed necessary for the journalist to be a party. If this results in journalists being joined as parties in case the defence of comment is pleaded, that will be a significant chilling on freedom of journalistic expression because, as Hunt J noted in Hanrahan v Ainsworth (1985) 1 NSWLR 370 at 377 - 8: "Anyone who has had to act for personal defendants (even where any damages to be awarded are to be paid by their employers) will recognize the impact which the defamation proceedings against them personally make upon such defendants."

[94] A second reason why such an order should not be made might be that any judicial view that the journalist should be joined for the defence of comment to be defeated is clearly or plainly wrong. I am conscious of my "temerity" (Kermode v Fairfax Media Publications Pty Ltd, supra, at [51]) in disagreeing with the views which appear to have been expressed by McClellan CJ at CL in Davis, however informally made. I note there has been no subsequent judicial decisions in support of this interpretation of the defence. It would have a significant chilling upon freedom of speech if journalists must be joined as a defendant in case a defence of comment is pleaded.

[95] However, I express no concluded view on whether such joinder is necessary; as with the contextual truth defence, that is a matter for argument, probably at the trial. I merely note these comments because, if legislators are considering the drafting of s 26 and are of the view that s 31 requires revision to prevent the joinder of journalists from being required, then suitable amendments to the drafting of this defence could be added at the same time.

[96] The joinder of two additional parties to complex litigation which was set down for trial five months ago, for a two-week trial commencing 6 December 2010, is an additional case management reason why, even if I had been satisfied that it is was not reasonable for the journalists to be joined as parties prior to the expiry of the limitation period, I would not have made the orders sought: AON Risk Services Australia Ltd v Australian National University, supra. There is no or no sufficient explanation offered for not considering this problem when litigation was first contemplated. There must be some finality in defamation pleadings: Dennis v Australian Broadcasting Corporation, supra.

[97] Leave to join the proposed additional defendants is refused.

[98] The parties agreed that the costs of this application should be reserved to the trial judge.

The impact of this ruling upon the trial in these proceedings

[99] Unless the parties can come to an agreement between themselves to overcome the legislative drafting problem identified by Simpson J in Kermode, there is a very real likelihood that the hearing set down for 6 December will have to be adjourned. I will leave it up to the parties to consider this, and other, issues, noting that the matter is shortly going to mediation.

Orders (1) Plaintiffs' application to amend the statement of claim to plead back the defendants' contextual imputations granted. (2) Order 1 subject to leave being granted to both parties to bring any application to adjourn the proceedings pending legislative consideration of the issues raised by Simpson J in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852. (3) Plaintiffs' Third Further Amended Statement of Claim to be filed in 7 days. (4) Defence to the Third Further Amended Statement of Claim to be filed 14 days thereafter. (5) Liberty to apply generally to Gibson DCJ as the trial judge in the proceedings listed to commence on 6 December, or to the Defamation List Judge. (6) Costs reserved.

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Defamation Act 1957(Tas)

Defamation Act 1974(NSW)

(Defamation Act 2005(NSW)

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