David Syme & Co Ltd & Anor v Hore-Lacy [2000] VSCA 24

Court of Appeal (Vic)|2000-03-09|Before: ORMISTON, CHARLES & CALLAWAY, JJ.A.

Libel and slander - Pleadings - Innuendo - Statement of Claim complaining of certain imputations in newspaper article - Defendants justifying imputations not complained of - Whether and to what extent entitled to do so - Imputations not more serious than and not substantially different from those complained of - Particulars justifying imputations - Polly Peck (Holdings) PLC v. Trelford [1986] Q.B. 1000; Chakravarti v. Advertiser Newspapers Limited (1998) 193 C.L.R. 519. Libel and slander - Duty of defendant - Particulars of justification - Defendant required to particularize meanings to be justified in certain circumstances - Departure at trial - Attribution of meaning not pleaded - Lucas-Box v. News Group Newspapers Ltd. [1986] 1 W.L.R. 147.

It would seem that the solution to these appeals depends upon the extent to which the plaintiff should be allowed to travel beyond the strict confines of his pleadings. Plaintiffs in the general run of case cannot do that except to the extent that the trial of the case has been conducted on a different basis or has been affected by waiver by one party or the other. In libel there is ordinarily but one article or publication (or series of articles or publications) relied upon which, read as a whole, is the basis of the claim. Nevertheless, it has been accepted that the plain and ordinary meaning of a publication may be explained or expounded by pleading the imputations (or popular or false innuendoes) which may be taken to flow from it. If for the present one omits cases of true innuendo, plaintiffs may allege defamatory meanings which are not explicitly stated in the publication, for in each case the tribunal of fact is entitled to look to the true meaning of the publication and the true meaning may be implicit rather than explicit.

Nevertheless, authority accepted in this and other jurisdictions supports the proposition that it is for the judge to determine which meanings are fairly open but that, subject to that qualification, the judge ought to leave to the jury all meanings which are fairly open. In other words, neither judge nor jury are "confined to the meanings asserted by the parties": National Mutual Life Association v. GTV Corporation Pty. Ltd.[1] and Chakravarti v. Advertiser Newspapers Ltd.[2] That peculiarity of libel law, if correct, means in effect that the plaintiff may still succeed on a meaning or imputation of the publication which has not been put forward in the statement of claim.

In turn, this has the disadvantage that a defendant may be obliged to answer a case not relied on in terms by the plaintiff. If it were a mere matter of proof that would be one thing, but the problem is greater where, for example, a defendant would wish to plead truth in justification of the defamatory words relied upon. On one view it might do that without giving particulars of its plea to the plaintiff arguing that the principle just referred to entitled it to call evidence to prove truth of an unasserted imputation. That would be unfair if no such notice were required, at least where the allegation of truth was one not foreshadowed otherwise or not closely related to an existing plea of justification. The conclusions so far reached might suggest that the only solution would be to require the defendant to give proper particulars of its proposed case in justification of the unpleaded imputation. That solution could have required explicit pleas of the imputation sought to be justified or it could, in some way not immediately clear, have required only a general plea of justification and particularisation of all relevant facts including those facts which would go to justify the unpleaded imputation. The line chosen by authorities such as Lucas-Box v. News Group Newspapers[3] and Polly Peck (Holdings) Plc v. Trelford[4] is to require from the defendant both a plea of the additional meaning and particularisation of the claim in justification.

However, Brennan, C.J. and McHugh, J. in Chakravarti would see that approach as being contrary to the ordinary common law rules of pleading. They say,[5] with much force, that there ought to be no case where a defendant is required to set up a false hypothesis, in the sense of a hypothetical claim which the plaintiff does not presently rely upon but which it is open to the jury to find. They say it is for the plaintiff to allege what meanings should be given to the publication and the jury ought not to be entitled to go beyond them. One may agree that if the jury had no such entitlement there would be no point, indeed, it would be entirely mischievous, as they there suggested, in requiring or permitting the defendant to set up an imagined case. The defendant can, of course, contend in argument that the publication has a different meaning but, on that hypothesis, it would be asserting that in order to show that the plaintiff has not made out its case because the publication has a meaning different from that which the plaintiff has asserted.

I do not see the answer to this conundrum capable of resolution except by reconsideration of the rule that the jury is entitled to go beyond the meanings asserted by the plaintiff. If that rule be wrong, or can be confined in a practical way, the need for the defendant to plead alternative imputations will be overcome. If not, fairness to both sides (and the Rules of Court) requires particularisation of a case which the defendant will seek to make out in answer to a case based on any meaning of a publication which the jury is entitled to place upon it. If no such plea and no particularisation were required, there would be endless arguments as to relevance and admissibility when the unannounced evidence was first called or when, as would seem more likely, the matters were put to the plaintiff or its witnesses during cross-examination.

What therefore did Chakravarti say as to this problem? The issue appears to have been squarely raised, although some observations in the judgments suggest that a comprehensive resolution was not necessary. Nevertheless, one can see from the opening propositions of counsel's arguments how this issue was seen by them. The appellant's counsel[6] asserted that, when defamatory imputations are pleaded, the plaintiff "is not strictly bound to those meanings", some twelve cases being cited in support of the proposition. On the other side counsel for the respondent[7] asserted that a plaintiff is "bound by the imputations he pleads and may not rely, nor may the Court find, any that differ substantially from them."

One may start with a statement of the former practice which, though based on the provisions in the Queensland Criminal Code, was thought sufficiently expressive

of the common law to justify inclusion in the first edition in 1924 (and four later editions) of Gatley on Libel[8], and which was made by Griffith, C.J. in Ryan v. Ross[9]:

"When the plain and obvious meaning of words is defamatory an innuendo [scil. a false or popular innuendo] is unnecessary, and, if made, negligible. So, if words are open to several constructions each of which plainly and obviously bears a defamatory meaning, an innuendo by way of selection is equally unnecessary."

The first question, therefore, is whether in the light of the recent High Court decision in Chakravarti the plaintiff is, and to what extent, confined to the meanings, imputations or false innuendoes asserted at the trial, if for the present one were to ignore the extent to which notice should be given by pleadings or otherwise by the plaintiff of an intention to rely on any secondary meanings by way of imputation or false innuendo. As to the extent to which the jury (or the judge) is at large as to the possible meanings to be placed upon the publication relied upon by the plaintiff, it would seem that Kirby, J. would take the widest view,[10] which was thought in this State to be the conventional view, at least since Barclay v. Cox[11], namely that stated by the Full Court in National Mutual[12] to the effect that "the meaning of the words [is] ultimately a question for the jury, and that the jury must be at large in finding the true meaning amongst such possible meanings as [are] left to them by the judge, and that the judge [is] not bound to confine the jury to the false innuendoes asserted by the plaintiff": cited with approval by Kirby, J. in his Proposition 3.[13] Likewise, as I would understand it, this does not mean that his Honour does not think that fair notice of the meanings proposed to be asserted by the plaintiff ought to be given, for elsewhere he clearly does, but on this preliminary issue he is clearly against "strictly confining a plaintiff to the pleaded imputations" for that would "run the risk that the alleged wrong was forgotten or overlooked".[14]

A broad view may also be taken to be espoused by Gaudron and Gummow, JJ., but they would seem more firmly committed to holding the plaintiff to the pleadings and particulars of imputations, at least as a means of confining the dispute at trial.[15] On the other hand in the same paragraph they state that "words do not mean what the parties choose them to mean and, at least ordinarily, the defamatory meaning will, itself, sufficiently identify and, thus, confine the meanings on which they may rely." Likewise in discussing the extent to which the jury may be told that it can go beyond that which has been asserted, their Honours state that the jury must, to some extent, be constrained by the manner in which the case has been pleaded or conducted at trial. Thus, after citing a number of the authorities including the passage from National Mutual cited above, they turn to propositions which would confine parties to their pleadings but conclude that such views might be accepted "without supporting a general conclusion that, in a defamation action, the parties always should be held to the meanings they have pleaded".[16] They would therefore place a restriction on the relevant power of the jury (and the judge) by reference to the extent to which it is fair to permit the case to go beyond that which has been pleaded, saying:[17]

"As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meanings pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if the plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis."

They refer finally to the fact that these considerations are "particularly" relevant where the defendant has pleaded justification, but state[18] that disadvantage can only be assessed having regard to all the circumstances including the issues at the trial, not merely those raised by the pleadings.

At first blush it may seem that the other members of the Court, Brennan, C.J. and McHugh, J., though agreeing in the outcome on all issues before the Court, expressed themselves in quite different terms and in considerable detail on the question as to how far the plaintiff is confined to the meanings pleaded. In particular they criticised[19] the decision in Polly Peck[20] as contravening fundamental principles of "common law pleadings", inasmuch as it would allow the raising of false issues which could only embarrass the fair trial of defamation actions. Their Honours there suggest[21] that a defence which alleges a different meaning to that relied on by the plaintiff would be merely an argumentative plea and, at least under the old rules of pleading, could have been struck out as embarrassing. It may be that their Honours are confining themselves to strict "common law pleading", for they would appear to acknowledge that under the "modern system" such a plea might be supported as preventing surprise at the trial and later[22] that the South Australian rules recognise some other obligation to give notice of particular defences or the like. Nevertheless they would appear to assert:[23] "No injustice is done by holding a defendant to the fundamental principles of pleading by requiring a defence to respond to the statement of claim."

However, later observations in their joint judgment suggest that their Honours take a view of a plaintiff's rights which would in certain circumstances permit that party to go beyond the terms of the allegation and its particulars, which is, of course, with the greatest respect, the very difficulty which cases such as Polly Peck and Lucas-Box v. News Group Newspapers Ltd.[24] would attempt to ameliorate. They acknowledge[25] that the courts require plaintiffs now to plead false innuendoes so as to define the issues for determination at the trial, and so continue:[26] "A plaintiff who pleads a false innuendo thereby confines the meanings relied upon." (Emphasis added.) However, seemingly by way of qualification, they proceed:[27]

"The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis." (Emphasis added.)

The latter qualification, however, goes only to the manner in which plaintiffs may conduct their cases at trial for it deals only with restrictions on plaintiffs who might seek verdicts based on meanings different to those pleaded, not with what might occur if the jury (or judge) were to choose a meaning which, on the view of the majority, would appear to be open to them without the plaintiff having relied explicitly on that particular meaning. Their Honours appear to recognise this, for in describing the views of Salmon, L.J. in Slim v. Daily Telegraph Ltd.[28] who said the plaintiff was bound by his or her meaning, his Lordship was criticised[29] as advancing "too rigorous" a proposition, which appeared "to sacrifice form to substance and to elevate minute differences". They would recognise also that a "less injurious" meaning, which Stephen, J. would appear to have allowed a plaintiff to rely upon in his dissenting judgment in Sungravure Pty. Ltd. v. Middle East Airlines[30], is not always a distinction "without significance, for that meaning might have been capable of justification". So they say:[31] "But a different nuance of meaning from the meaning pleaded may go to, and be found by, the jury provided it is not unfair to the defendant to allow the plaintiff so to depart from the meaning pleaded" (emphasis added). They would justify this interpretation of the law by stating:[32]

"The critical consideration is whether it is prejudicial, embarrassing or unfair to the defendant to allow a plaintiff to amend the statement of claim or otherwise to raise as an issue or to seek a verdict on the basis that the matter complained of bears a meaning different from the meaning previously pleaded or relied on by the plaintiff."

That still leaves open the question how far the jury or judge may go beyond the meanings relied upon during the trial. For this purpose their Honours cite[33] a proposition by King, C.J. in Prichard v. Krantz[34] that: "A plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularised." After citation of authority consistent with that view, they then conclude:[35]

"If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meeting to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury." (Emphases added.)

Allowing for the fact that Brennan, C.J. and McHugh, J. would permit cases to go to verdict where there are differences in nuance of meaning not considered embarrassing or prejudicial, the questions which remained unresolved are how the jury should be instructed and how far a judge may go beyond either the pleaded imputations or those imputations which are explicitly relied on at trial which the judge permits to be considered either by the jury or by himself or herself as the tribunal of fact.

For the purpose of the present appeal, however, the largely dissenting expressions of opinion by Brennan, C.J. and McHugh, J., though pertinent in many respects, cannot overcome the view of the majority that the tribunal of fact in libel action is not confined strictly to the false innuendoes asserted by the plaintiff whether in pleading or in argument. The latter's views are consistent with at least recent authority in this country and in particular with the earlier expression of opinion by the Full Court in the National Mutual case.

Such a conclusion, however, requires one to revert to the question how the defendant may fairly deal with the possible finding of fact by jury or judge of a meaning which departs to some degree from that asserted in pleading or argument. It is not the conventional position for it derives essentially from the fact that it is the publication which gives rise to the cause of action, at least in this State, and the imputations or false innuendoes pleaded are merely exemplifications of how that publication was meant and should have been understood in its natural and ordinary meaning. So I would understand the basis behind leaving the true meaning to jury or judge, howsoever it has been pleaded or previously put in argument. How then does the defendant deal with that possibility when the essence of its case is, as it is in this case, that the words published could be justified as being true in substance and in fact?

Here, again, I believe that the majority views of the High Court provide an answer in the present case, for in substance I would believe they would accept[36] that the jury may properly be instructed that they can go beyond the meanings alleged, but only so long as the meaning they fix upon is comprehended by or is simply a variant of one of the meanings pleaded or otherwise relied upon. How that is appropriately converted into a suitable charge for a jury is not discussed, but doubtless the practical difficulties are not as great as might be imagined, as long as the trial is conducted upon the basis that departures from pleaded meanings are only exceptionally permitted where those departures go beyond mere nuances of expression or meaning.

If that be the case then there is no reason to disagree with the majority that modern rules of pleading contemplate that plaintiffs in defamation actions will plead not merely the terms of the publication but also those secondary meanings, popular or false innuendoes or imputations, howsoever one should describe them, as part of the obligation to make clear the case which the plaintiff proposes to make out at trial. Technically they may not be material facts although, for myself, I would be inclined to the conclusion that, since in defamation a decision as to the meaning of words is a question of fact, then the imputation or false innuendo to be inferred is a secondary material fact of which the plaintiff is obliged to give notice to the defendant. At all events in this State O.13.12(3) of the Rules of the Supreme Court[37] requires that where the defendant intends to prove facts other than those relied upon by the plaintiff "it shall not be sufficient for the party merely to deny or not to admit the facts so pleaded, but the party shall plead the facts he intends to prove". The paragraph introduced in 1986, though in part reflecting in the former practice at least in relation to claims in contract and the like[38], was intended to make clear the defendant's obligation to plead the factual basis of the denial of any material fact.[39] Moreover, pursuant to O.13.10, the pleadings should contain the necessary particulars of any fact or matter pleaded[40] and they should be given "if they are necessary to enable the opposite party to plead to or to define the questions for trial or to avoid surprise at trial".[41] The minority on these questions in Chakravarti would not appear to deny that that is necessary.

There would appear to be a difference in the High Court as to whether defendants should put forward in their pleadings their version of the imputations or false innuendoes they draw from the publication. As the minority said, it might be technically correct to say that a defendant need do no more than persuade the jury or judge that the plaintiff's allegations in this respect have not been made out. However, in terms of modern, "Judicature Act" and later, requirements for pleadings, very different from what were formerly the requirements of "common law" pleadings, the defendant's version of the imputations or false innuendoes would not appear unimportant, for mere denial is no longer thought satisfactory if more explicit pleading would show what the true issues at the trial will be. For such a proposition one can go back as far as Thorp v. Holdsworth[42] and Gould, Birbeck and Bacon v. Mt. Oxide Mines Ltd.[43], taking only two examples.

More particularly, because, on the authorities I have referred to, the meaning of the publication is at large, it might be thought important to know whether the various defences relied upon by the defendant relate to the plaintiff's case as pleaded or to a case which the plaintiff might seek to assert or be able to rely upon at the trial. Theoretically it is of no consequence what the defendant would say if a different case were relied upon by the plaintiff, but in my opinion it is not unimportant in practice for the plaintiff to understand whether a defendant's pleas made are a second line of defence after a complete denial of the plaintiff's imputations or whether they are to be taken as in effect by way of confession and avoidance of the plaintiff's case, albeit that it would ask the jury to place a different interpretation upon the publication. Moreover, the defendant's versions may well be open for the jury (or judge) to find albeit in terms not presently pleaded by the plaintiff. It is important to note that the minority in Chakravarti did not specifically hold Lucas-Box to be wrongly decided, although it was the direct progenitor of Polly Peck. Ackner, L.J. there[44] held that, since it had become the settled practice for plaintiffs to plead the meanings of the words relied upon, it was proper to require defendants in defamation actions, at least where they rely on the defence of justification, to state in their defences what were alleged to be the natural and ordinary meanings of the words which they would place on them. Thus it was also there held[45] that, not only is that necessary but also that a plea of justification made in such actions should condescend to particulars which make clear which meaning of the publication they are directed to. I cannot accept that it must be a mere oversight that the minority in Chakravarti did not deal explicitly with Lucas-Box, for it was relied upon or referred to by counsel on both sides[46] and was referred to twice in the judgment of Gaudron and Gummow, JJ., in that part of the judgment to which the minority took exception, where they made direct reference[47] to Lucas-Box as laying down a requirement that defendants should now state in their defences what they allege to be the natural and ordinary meaning of the words complained of.

It would therefore seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendoes which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff; in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff.

If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different. Unfortunately, defamation actions are frequently cases of considerable subtlety. Again, unfortunately, many articles in the press (or elsewhere) these days are devised on the "no smoke without fire" premise, so that many allegations take a form which might be construed by the jury as alleging highly improper activity though on detailed analysis the elements of the allegation would appear less serious. It is this sort of case which might go to the jury with the plaintiff pleading imputations of high impropriety and the defendant asserting that its meaning referred to less serious peccadillos which it wished to justify. The "smoke" could therefore be justified but it would remain for the jury (or judge) to decide whether the imputation was still one of "fire". Particulars of a plea of truth of the less serious imputations of "smoke" would appear to be either bad or irrelevant if the only allegations on the record are the plaintiff's imputations of "fire", unless the defendant's case of "smoke" explicitly forms part of its pleading.

It follows that in substance I would agree with the analysis and conclusions of Charles, J.A. in his judgment which I have had the benefit of reading. It also follows that, with regret, I cannot agree in the analysis of Callaway, J.A. which I have also had the benefit of reading. With many of his sentiments, especially as to precision of pleading, I would agree, but the Court is here dealing with certain rules of pleading and practice in defamation actions which seem in a number of respects to have required an approach different from that applicable to other proceedings. Lucas-Box cannot, in my opinion, be treated as wrongly decided, as I do not feel that this Court is free to overrule the rule which enables a plaintiff in a defamation action to take advantage of any meaning of a publication which is fairly open to the jury or judge, within the meaning of the authorities, even if we were inclined to disagree with it. Perhaps that rule still has its virtues inasmuch as the English language has never been precise in that there are so many synonyms and variants for every word and phrase, and looseness of expression, to the extent of permissiveness, has been recently encouraged by both educators and lexicographers. Not that the law of defamation ever assumed that people always said what they meant or meant what they said. In recognition of these difficulties it has always made allowances for human weakness by permitting the pleading of and reliance on imputations. In further concession to this weakness, the rules of practice may be seen to have been modified so as to prevent unmeritorious reliance on the specific words chosen by the plaintiff's pleader as that might unfairly prevent the Court from resolving the merits of the plaintiff's claim.

I must for the present purpose assume that the existing rule of trial practice is an appropriate concession to these vagaries of language. The pleading rule which Charles, J.A. and I would adopt from the authorities ought to reduce the present confusion so as to reduce the potential injustices to a minimum by providing both parties with an efficient but not excessive degree of flexibility. The plaintiff ought to be kept within the broad confines of his present complaint, although allowing the jury to work out the precise imputations for themselves, while the defendants will be able to say that the articles have a not more serious and not substantially different meaning which they are able to justify on the facts, if they wish to do so. At present I would not read the defendants as having gone beyond meanings which are essentially the same as those pleaded by the plaintiff inasmuch as they are not significantly different, nor are they more serious. They must, however, show in what way they propose to demonstrate that they are true by relating their particulars of justification to the various imputations pleaded on each side. Subject to what Charles, J.A. has to say on this matter, the appeals should therefore be dismissed.

In this action the respondent/plaintiff claims damages for defamation in relation to an article published by the first defendant (the first appellant) in The Age newspaper on 30 May 1996. The article was written by the second defendant (the second appellant) and was headed "Clubs have no right to mislead, misinform".

The article concerned activities relating to the possible merger or takeover of the Fitzroy Football Club, and referred to radio and television interviews given in the previous week by the plaintiff, who was then the President of the Fitzroy Football Club. It is sufficient for present purposes to say that the plaintiff contends that the article asserts that he was telling lies about the finances of the Fitzroy Football Club and alleges certain conduct by him in relation to voting by members of the Fitzroy Football Club in respect of the merger.

In the plaintiff's amended statement of claim dated 10 July 1996, he alleged that the article in its natural and ordinary meaning meant and was understood to mean that -

(a) the plaintiff had told lies concerning the Fitzroy Football Club's financial situation during the radio and television interviews referred to;

(b) the plaintiff had treated members of the Fitzroy Football Club who attended at their annual general meeting as credulous dupes or fools;

(c) the plaintiff had lied to the members of the Fitzroy Football Club who attended at the annual general meeting;

(d) the plaintiff had dishonestly misled and misinformed members of the Fitzroy Football Club and supporters concerning plans for the merger of the club;

(e) the plaintiff had deceived members of the Fitzroy Football Club by telling them that no decision would be made without them having a vote;

(f) the plaintiff had been guilty of sharp practice in obtaining proxies from shareholders of the Fitzroy Football Club.

The defendants, in their defence dated 16th August 1996, by paragraph 6 denied the imputations pleaded by the plaintiff and the paragraph continued "Further, in its natural and ordinary meaning the article was true in substance and in fact." By this pleading the defendants indicated their intention (which was confirmed in argument both at first instance and in this Court) to justify at least one meaning different from those stated by the plaintiff. The defence also pleaded fair comment on a matter of public interest and qualified privilege, but these defences are not relevant to the issues in these appeals.

The plaintiff then requested particulars of the defendants' justification defence and the defendants gave particulars in a document dated 18 September 1997. These particulars ranged over some two pages and there was no attempt made to relate the 23 substantial assertions of fact which were included to the form of the request. Each of the matters referred to apparently was intended to refer to all or any of the plaintiff's requests.

By summons dated 4 September 1998, the plaintiff then sought further and better particulars of paragraph 6 of the defence, or that it be struck out. The application was made to Hedigan, J., a judge of long experience in defamation actions. His Honour regarded the form of the further and better particulars as quite unsatisfactory, both from the viewpoint of the plaintiff and the court. The main issue on the summons was, however, not so much the form of the particulars, but whether or not the defendants were obliged to plead what they contended was the natural and ordinary meaning of the article, which they said they would prove to be true. The plaintiff argued that the defendants should be ordered to state what were the meaning or meanings they contended were the natural and ordinary meanings of the article. The defendants on the other hand argued that it was sufficient for them simply to deny the plaintiff's imputations and rely upon the natural and ordinary meaning of the words. The case made for the defendants to the judge was that the rules of pleading do not require a defendant in every case to plead the meanings which it asserts arise from the allegedly defamatory publication. As Hedigan, J. put it in his reasons dated 1 October 1998, the defendants were prepared to say that the plaintiff's meanings were wrong and were prepared to refer generally to the facts upon which they might rely for justification, but did not want the plaintiff to know what they were going to say at trial the words mean. His Honour said[48] -

" The defendant is clearly entitled to deny the plaintiff's imputation. Subject to the views expressed by Brennan, C.J. and McHugh, J. in Chakravarti[49], the defendant may set up his own imputations and justify those. The defendant can deny the plaintiff's imputations and do nothing else. The question here is whether he can deny the plaintiff's imputations and justify ones that remain unarticulated. I dismiss the particulars as amounting to a sufficient description. Moreover, I am firmly of the view that the place for the defendant to state alternative meanings or imputations is in the pleading, either accompanied by particulars or provided on request. But in my view, the alternative meanings contended for by the defendant must be pleaded."

The defendants served an amended defence dated 2 November 1998 which included in paragraph 6A two meanings which they proposed to justify and extensive particulars in support of the defence of justification. The further meanings pleaded were that

(a) the plaintiff had told lies in statements made by the plaintiff broadcast on radio and television in the previous week when he denied a report in The Age that the financial jig was up with the Fitzroy Football Club;

(b) the plaintiff had misled members of the Fitzroy Football Club who attended the annual general meeting.

The plaintiff then sought further particulars of the justification defence which the defendants declined to provide. By summons dated 16 December 1998 the plaintiff then sought an order for such particulars, which was heard by the same judge on 8 February 1999. On 24 February, Hedigan, J. ordered the defendants to give further particulars in accordance with the plaintiff's request, in effect requiring the defendants to identify in each of the numerous radio and television interviews given by the plaintiff on 21 May 1996, each lie told by the plaintiff, and to identify more precisely the "misleading" by the plaintiff of members of the Fitzroy Football Club.

The defendants then applied to the Court of Appeal for an extension of time to seek leave to appeal from the judgment of 1 October 1998 and leave to appeal from that judgment and the judgment given on 24 February 1999. On 9 April the Court of Appeal granted the extension of time sought and leave to appeal against both judgments.

The two judgments are directly related, in that the defendants' attempt to comply with the order made on 1 October 1998 led to the second application and the further orders made on 24 February 1999. The issue raised by both orders is whether a defendant in a defamation proceeding who denies that the words complained of bear the meanings alleged by the plaintiff, but also asserts that those words are true, without stating the meanings in which they are alleged to be true, should be ordered to plead the meanings on which it will rely at trial in support of the plea of justification.

Mr. Dreyfus, who appeared for the defendants in this Court, submitted that the defendant to an action in defamation may plead that in their natural and ordinary meaning the words complained of are true in substance and in fact. He accepted that such a plea required the defendant to prove that each material defamatory statement made in the words is substantially true. It was common ground that a defendant may be ordered to give particulars of its justification defence, thus giving the plaintiff notice of the facts to be relied on by the defendant at trial in establishing the truth of the words complained of. Mr. Dreyfus also accepted that in some cases defendants have been ordered to plead or to particularize the imputations in which it is alleged that the words complained of are true in substance and in fact. He submitted however that most of such orders have been made in cases where the plaintiff claims that the imputations arise from part of an article and the defendant pleads imputations said to arise from the whole of the article. The practice of permitting defendants to plead alternative imputations was, he submitted, expressly criticized and disapproved by Brennan, C.J. and McHugh, J. in Chakravarti[50], and accordingly, since Chakravarti, defendants should no longer be ordered to plead alternative imputations.

Mr. Dreyfus submitted that an order requiring the defendants to plead the imputations they intended to justify was wrong and would cause substantial injustice. He argued that the further particulars provided by the defendants specify the material facts relied on by them to support the truth of the article, and the defendants were bound by those particulars at trial. He submitted that it would be meaningless and costly for the defendants to plead alternative imputations and that although the plaintiff was required to plead imputations in order that his case may be known, the jury was not bound by such imputations. He submitted that the defence of justification was as broad as the words complained of and that if the facts established by the defendants at trial did not meet the substance of the words published, the defence would fail. Accordingly the pleading of imputations by the defendants was an unnecessary distraction and would artificially narrow the justification defence. The order made by the judge on 24 February 1999 required the defendants to comb through each statement made by the plaintiff and to identify the lies referred to in the alternative imputations. Mr. Dreyfus submitted that such a requirement was artificial when the imputations did not bind the jury; and also forced the defendants, by articulating theretofore unpleaded innuendoes, to provide new ammunition for the plaintiff's case, both in the form of additional defamatory meanings (of which the plaintiff may not have thought), as well, possibly, as increasing the plaintiff's damage.

Mr. Uren for the plaintiff submitted that paragraph 6 of the original defence clearly contained a justification of the words complained of in some meanings different from those pleaded by the plaintiff, a proposition which, as I have said, Mr. Dreyfus accepted in argument. Accordingly, so Mr. Uren submitted, an issue had been raised by the defendants which required that they specify those meanings, in order to make proper compliance with Orders 13.07(1), 13.10 and 13.12(3) of the Supreme Court Rules. The issue in the present case, Mr. Uren submitted, was whether a defendant who puts forward a positive case of justification should be required to specify the meanings which it intended to justify. Mr. Uren submitted that if a defendant is entitled to plead justification to a meaning other than those asserted by the plaintiff, then it cannot be a "false issue" for the defendant to be required to say what meaning it is justifying when it makes that plea of justification. He submitted that a defendant who pleads justification of published words is necessarily saying that "those words have a defamatory meaning which is true". Consequently, so the argument ran, the nature of the defamatory meaning which is said to be true is an issue which is raised by the defence.

Mr. Uren submitted that in so far as the defendants relied on the proposition that the jury might find the words are defamatory of the plaintiff in a meaning not pleaded by the plaintiff, and that this justifies the defendant in not stating what meanings it intends to justify at trial, then the authorities do not establish that proposition. He submitted that the jury might find for the plaintiff in a non-pleaded meaning only amongst such meanings as were left to the jury by the trial judge and that the pleaded meanings do circumscribe to a significant extent what may be left to the jury. Mr. Uren submitted that the cases do not justify the conclusions that the jury is "at large" with respect to the meanings which it finds that the words bear, and that accordingly the defendant is also at large with respect to its plea of justification, so that it can merely allege facts without stating the imputation which the facts are said to justify.

Before Lewis v. Daily Telegraph Ltd.[51] was decided, it was not thought necessary for a plaintiff relying on a false or "popular" innuendo to plead the ordinary and natural meaning of the words complained of. But in that case three members of the House of Lords[52] said that it was at least permissible, and desirable where the words did not speak for themselves, for a plaintiff to set out "those indirect meanings which go beyond the literal meaning of the words but which the pleader claims to be inherent in them"[53]. As Hedigan, J. said in his reasons for judgment on 1 October 1998[54], by the 1970s the courts in the United Kingdom and Australia had moved much more clearly to a position in which the plaintiff was obliged to give particulars of the meanings on which the plaintiff would rely as arising from the relevant part or parts of the publications in issue, saving only cases where the words referring to a plaintiff were capable of only one defamatory meaning; Slim v. Daily Telegraph Ltd.[55], Allsop v. Church of England Newspapers Ltd.[56], DDSA Pharmaceuticals v. Times Newspapers Ltd.[57], Kerney v. Optimus Holdings Pty. Ltd.[58].

These decisions clarified pleading practice in one important respect, but as Brooke, L.J. pointed out in Cruise v. Express Newspapers Pty. Ltd[59], two associated problems were left unresolved. The first was whether the same discipline was imposed also on defendants (that is, that they were obliged to plead the meaning on which they relied for their pleas of justification and fair comment, if their meanings differed from those relied on by the plaintiff). The other was whether, if a publication contained two or more separate and distinct stings and the plaintiff complained of one of them, the defendant could rely on the others and plead justification and fair comment.

As to these problems, the second edition of Duncan & Neill on Defamation in 1983, after referring to the pleading of popular innuendoes by the plaintiff, stated[60] that -

"It is to be remembered, however, that the question for the jury in each case where justification is set up by way of defence is whether the words are true in the meaning which the jury finds the words to bear. The defendant may therefore wish to contend that the words bear some different meaning from that put forward by the plaintiff and that in the meaning contended for by the defendant the words are true. It is submitted that the defendant is able to take this course and that the older authorities to the contrary would not now be followed. A defendant is not allowed, however, to set out in his defence what he says the words mean, though it is submitted that this rule needs re-examination; in many cases one of the crucial issues at the trial is the meaning of the words and it would clearly be convenient if the precise issue between the parties was placed on the record in the pleadings before the hearing."

(The "older authorities to the contrary", mentioned in footnotes, were Bremridge v. Latimer[61] and Watkin v. Hall[62].)

The first of the problems identified by Brooke, L.J. in Cruise was resolved in the United Kingdom by the decision of the Court of Appeal in Lucas-Box v. News Group Newspapers Ltd.[63]. In that case the court ruled that a defendant in defamation proceedings who wishes to rely on a plea of justification must make clear in the particulars of justification the case which he is seeking to set up and must accordingly state clearly and explicitly the meaning which he seeks to justify, if it differs from that pleaded by the plaintiff. The second of the problems was considered in Polly Peck (Holdings) Plc. v. Trelford[64]. Nourse, L.J. was a member of the Court of Appeal in both cases, and judgment in Lucas-Box was reserved while the judgments in Polly Peck were still being written. In Polly Peck, it was decided that where a plaintiff complained that the natural and ordinary meaning of selected words in the publication was defamatory of him, and pleaded the meaning which he contended they bore by way of false innuendo, the defendant was entitled to plead that in their context the words complained of were true in any meaning which it was open to the jury to find that they bore; and that where a publication contained several defamatory stings which in their context had a common sting and the plaintiff complained of one or more, but not all, of them, the defendant was entitled to justify that sting. O'Connor, L.J. said[65] -

"In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meaning which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea, as he is required to do by RSC, Ord.82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.

Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.

Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication. What I have said in the context of justification can be applied by a parity of reasoning to fair comment, subject to what I say at the end of this judgment."

Since the decision in Polly Peck, courts in England and Australia have permitted a defendant to plead a meaning different from that contended for by the plaintiff and then justify that different meaning; see e.g. in Australia, Gumina v. Williams [No. 2][66], Woodger v. Federal Capital Press of Australia Pty. Ltd[67], Raul Amon International Pty. Ltd. v. Telstra Corp. Ltd.[68], and in the United Kingdom, Viscount de L'Isle v. Times Newspapers Ltd.[69], Control Risks Ltd. v. New Library Ltd.[70]. But I do not think there is any decision which binds this Court to apply the decision in Polly Peck or treat it as governing defamation procedure in Victoria.

Before Polly Peck it had long been accepted as settled law that it was not open to a defendant taking the defence of justification, to plead that he made some statement other than that complained of by the plaintiff, and then seek to show the truth of that statement, nor was it open to the defendant to plead that the words bore some meaning other than the meaning alleged in the statement of claim and then seek to justify that meaning. The principle stated in the 2nd edition of Gatley on Libel and Slander[71], and which was approved by Evatt, J. in Howden v. Truth and Sportsmen[72] was in terms that -

"The plea of justification must be not only as broad as the literal language of the libel, but as broad as the inferences of fact necessarily flowing from the literal language."

The principle could be found stated in substantially the same terms as far back as Cooke's Treatise on the Law of Defamation[73], the 2nd edition of Odgers' Digest of the Law of Libel and Slander[74], or as recently as the 7th edition of Gatley in 1974[75].

In Templeton v. Jones[76], the plaintiff was a candidate in the 1984 general election in New Zealand in the electorate in which the defendant was the sitting member. The defendant had distributed to the press gallery copies of a speech he had made from which extracts, republished on national television news, stated that the defendant had described the plaintiff as a man who despised "bureaucrats, civil servants, politicians, women, Jews and professionals". The plaintiff brought proceedings claiming that the allegation published on television that he despised Jews was false, malicious and defamatory. The other allegations in the speech were ignored. The defendant pleaded justification for all the allegations. In interlocutory proceedings the judge struck out all the particulars of justification other than the one that related to the allegation that the plaintiff despised Jews. On appeal, Cooke, J., speaking for the Court of Appeal, said[77] that -

"In the present case, however, the allegation that the plaintiff despises Jews is not reasonably capable of being treated as other than a distinct charge. It is obviously different, for instance, from the allegation that he despises women. It is true that many of the allegations in the passage quoted in para. 5 of the statement of claim are variations on or illustrations of a theme: namely that the plaintiff indulges in the politics of hatred. They are specific and severable allegations nonetheless.

It is important to note that the plaintiff is not suing on all the words set out in para. 5. In para. 6 it is made clear that only the allegations about Jews is sued on. The defendant on the other hand, as is made plain by the opening words of para. 7 of the amended statement of defence, wishes to prove that all the words set out in para. 5 of the statement of claim are true. That is not permissible, because of the limited nature of the plaintiff's complaint."

In Chakravarti, Brennan, C.J. and McHugh, J. took vigorous issue with the passage quote above from the judgment of O'Connor, L.J. in Polly Peck, saying of it[78], that -

"Under the modern system [of pleading], articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant's plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a false issue which can only embarrass the fair trial of the actions."

Their Honours, after referring to Bremridge v. Latimer, and Watkin v. Hall, then quoted the passage from the judgment of Cooke, J. in Templeton v. Jones set out above and continued[79] that -

"This passage highlights what we regard as the fundamental defect in the reasoning in Polly Peck. Cooke, J. rejected the notion that the defendant can take severable parts of a publication each containing defamatory imputations, link them together, and give the publication a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts. That is, a defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded the shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact when it plainly was not. Yet that is the sort of finding that must result from applying the central proposition of Polly Peck. That proposition is that:

'The several defamatory allegations in their context may have a common sting in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting.'[80]."

The other members of the Court (Gaudron, Gummow and Kirby, JJ.) mentioned Polly Peck in their judgments in Chakravarti, but did not associate themselves with these highly critical comments.

The question whether and to what extent a defendant may justify meanings different from those asserted by the plaintiff is, in my view, necessarily bound up with the extent to which a plaintiff may be allowed to depart at trial from specific meanings pleaded in the statement of claim. The consequences of pleading specific meanings are, as Gaudron and Gummow, JJ. said in Chakravarti[81], far from settled. In Polly Peck, O'Connor, L.J. said[82] that "Where differences of meaning are proposed by the parties the issue as to the possible meanings of the words [is] confined to those pleaded." But in National Mutual Life Association of Australia Ltd. v. GTV Corporation Pty. Ltd.[83] the Victorian Full Court said that the practice of both parties pleading a specific meaning "did not and could not alter the position at law that the judge was to decide what meanings were fairly open and was to leave to the jury all such meanings, and only such meanings, of the words as were fairly open. ... Neither the judge nor the jury were thereby confined to the meanings asserted by the parties." The Court said this point would not in most cases matter, since it would be most unlikely that the parties would between them fail to hit upon all the reasonably open meanings of the words. The Court also left open the question whether Polly Peck correctly stated the law for Victoria. In Chakravarti the Full Court's decision in the National Mutual Case was mentioned without apparent disapproval by Gaudron and Gummow, JJ.[84] and approved by Kirby, J.[85].

It cannot, I think, be doubted that the plaintiff who pleads a false innuendo thereby at least to some extent confines the meanings relied on; see Slim v. Daily Telegraph[86], Prichard v. Kranz[87], Crampton v. Nugawela[88], Chakravarti[89], Gatley on Libel and Slander, 9th ed. (1998)[90].

The extent to which a plaintiff can thereafter depart from the pleaded meanings has been stated in a variety of ways. In Slim v. Daily Telegraph Diplock, L.J. said[91] that a plaintiff could rely on any meaning which was less injurious than the pleaded meaning. In Sungravure Pty. Ltd. v. Middle East Airlines Airliban SAL[92] Stephen, J. said that the plaintiff "was not free thereafter to rely upon some quite different meaning which he might seek to read into the words complained of ... at least not one more injurious." In Hadzel v. De Waldorf[93] Fox, J. said that "A judge can find for the plaintiff on a nuance of meaning not put by him." In Prichard v. Kranz, King, C.J. said[94] that -

"A plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularized. Modern judges, in any class of case, have a considerable discretion as to the rigour with which they will confine a case presented by a party to the precise language of the pleadings. In many cases, moreover, the more serious allegation can be regarded as including the less serious. In that sense, the Court is free to attribute to the words a less injurious meaning than that attributed to them in a pleading ... It seems to me, however, that it would be contrary to the purpose of pleadings and particulars if a plaintiff could obtain a judgment upon the basis of a meaning of the words used which was not merely a less serious form of the imputation pleaded, but amounted to an imputation of a substantially different kind."

Most recently, in Chakravarti, Brennan, C.J. and McHugh, J. said[95] that once a plaintiff pleads a false innuendo, the plaintiff -

"cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis."

The critical consideration, their Honours continued[96], was -

"whether it is prejudicial, embarrassing or unfair to the defendant to allow a plaintiff to amend a statement of claim or otherwise to raise as an issue or to seek a verdict on the basis that the matter complained of bears a meaning different from the meaning previously pleaded or relied on by the plaintiff."

In conclusion their Honours put it[97] that -

"If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning, or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury."

Gaudron and Gummow, JJ. said[98] -

"As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if a defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings."

"In an attempt to reconcile the desirable encouragement of particularisation of claims, the avoidance of 'trial by ambush' and the consideration of the entirety of the publication in question, courts will uphold the discretion of the trial judge, including a discretion to confine parties to the imputations pleaded where that is required by considerations of fairness. However, a more serious allegation will generally be taken to include a less serious one unless the latter is of a substantially different kind. It is true that dicta appear in decisions of this Court, other Australian courts and courts overseas which favour a strict approach: binding a plaintiff at the trial to the precise imputations pleaded. However, I do not consider that these dicta represent the law. The better view is that the rules of pleading must, in those jurisdictions governed by the common law, adapt to the fair evaluation by the tribunal of fact of the matter complained of. If the publisher claims surprise, prejudice or other disadvantage, the trial judge may protect it. No complaint can arise where additional imputations found represent nothing more than nuances or shades of meaning of those pleaded."

From these passages it would seem that all members of the Court in Chakravarti would take the view that a plaintiff could, after pleading specific meanings by way of false innuendo, succeed at trial on a meaning other than the meanings pleaded, provided that the meaning was not substantially different from and was not more injurious than the meanings pleaded, and that the defendant was not in all the circumstances unfairly prejudiced by allowing that meaning to go to the jury. Whether the meaning was substantially different would presumably be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis (Brennan, C.J. and McHugh, J. in Chakravarti[100]) or possibly whether the justification would be substantially different (Gaudron and Gummow, JJ.[101]). If, on the other hand, the plaintiff sought at trial to establish a substantially different or more injurious meaning, his action would fail unless the judge permitted him to reformulate his case with the usual consequences as to adjournment and costs. See, e.g. Gatley on Libel and Slander, 9th ed. (1998)[102].

The principal criticisms of the practice sanctioned in Polly Peck, of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff are that such an approach allows the defendant to raise false issues which can only embarrass the fair trial of the action and will on occasions unfairly prevent a plaintiff from pursuing a claim in defamation, in the manner explained by Brennan, C.J. and McHugh, J. in Chakravarti[103]. The setting up of false issues by the defendant in this way may well make admissible a substantial body of evidence that would otherwise be irrelevant and thus greatly lengthen proceedings. But it seems to me that the same criticisms would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.

Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a meaning which was sufficiently close (in the manner already suggested) to the plaintiff's meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined, to the benefit of the court and the parties. Of course, if the plaintiff cannot make good a meaning amongst those identified, his action must fail, and the defendant has no need to plead any other meaning.

The joint judgment of Brennan, C.J. and McHugh, J. in Chakravarti was discussed in a recent article entitled Pleading Defamatory Meaning, Fair Report Defences and Damages by Mr. A.T. Kenyon[104], who observed that their Honours had relied on Bremridge v. Latimer, Watkin v. Hall and the more recent Templeton v. Jones. Mr. Kenyon pointed out that O'Connor, L.J. in Polly Peck discussed at length these cases and that their Honours do not engage in detail with his Lordship's disapproval of the decisions. It is argued that their Honours may not have referred to all the reports of Bremridge v. Latimer, as O'Connor, L.J. clearly had done. I have suggested in [43] above that the law was regarded as settled in this respect since before the impugned decisions, and until at least as recently as the 7th edition of Gatley. The changes that have occurred in the last half-century, however, have included the acceptance of much greater precision in the pleading of imputations in Lewis v. Daily Telegraph, and the introduction of new Rules of Court designed to avoid trial by ambush and to achieve the precise identification of issues before the court, applicable just as much to actions in defamation as to any other civil cause. In these circumstances, I would doubt, with great respect, how much assistance is really to be gained by minute scrutiny of decisions on defamation practice in the 19th century.

The remaining question is whether the defendant should be required to plead meanings when the defendant intends to justify on a meaning which differs from those pleaded by the plaintiff. Even a less injurious meaning than the meaning pleaded may not be without significance, as Brennan, C.J. and McHugh, J. said in Chakravarti[105] in the context of the plaintiff's pleaded meanings. I note that their Honours said that even a different nuance of view might only go to, and be found by the jury, provided it was not unfair to the defendant to depart from the meaning pleaded.

No express criticism was made by any member of the Court in Chakravarti of the reasoning in Lucas-Box, although counsel for both parties relied on the decision in argument. The practice of requiring a defendant who seeks to justify meanings different from the plaintiff's, to give particulars of such meanings, was noted with apparent approval by Gaudron and Gummow, JJ.[106], and is consistent with the approach taken by Kirby, J.[107] But in the first passage from the judgment of Brennan, C.J. and McHugh, J. quoted in [ 45] above, their Honours say that the articulation of an alternative meaning (by the defendant) would only be supportable as a plea where it made explicit the ground for denying a pleaded imputation and prevented the plaintiff from being taken by surprise. And their Honours then point out that a plea of justification of an imputation not pleaded by the plaintiff would not be a good defence and, so, would be immaterial. In this respect therefore, their Honours are, I think, at least by implication, rejecting the reasoning in Lucas-Box.

There was plainly no majority in Chakravarti for the view that Lucas-Box is not to be followed in Australia. The reasoning of Brennan, C.J. and McHugh, J., in so far as it is critical of a requirement that the defendant should plead alternative meanings, was, I think, very much placed in the context of the practice approved in Polly Peck. I doubt whether their Honours' implied criticism of Lucas-Box can be taken as extending to a situation in which the defendant is not permitted to plead alternative meanings unless those meanings are not substantially different from, and no more injurious than, the meanings pleaded by the plaintiff. In that situation their Honours would, I think, accept that the articulation of an alternative meaning is supportable at least in the one respect noted above. But the defendant's plea may show that the defendant not only denies the plaintiff's pleaded imputations, but also seeks to justify in a meaning not substantially different from, nor more injurious than, the plaintiff's meanings. In that respect the issue raised would not be a false one, since the plaintiff might also seek to rely upon this meaning at trial. On the reasoning of all members of the Court in Chakravarti, the plaintiff would be allowed to do so, provided that course was not in all the circumstances unfair to the defendant. But so also the raising by the defendant of such a meaning for the first time at trial, for the purposes of justification, may be unfair to the plaintiff, who might also claim "surprise, prejudice or other disadvantage" (Kirby, J. in Chakravarti[108]) or that he might have adduced different evidence, or might have conducted the case on a different basis (Brennan, C.J. and McHugh, J.[109]). In this respect it seems to me that if the defendant by its pleading indicates an intention to justify a meaning different from those relied on by the plaintiff, the defendant should be required to state what that meaning is, with the necessary particulars of the facts on which the justification is based.

The plaintiff, faced with such a pleading, is, I think, entitled to know clearly what the defendants are intending to justify, and the failure to provide such particulars might well cause the plaintiff serious disadvantage at the trial, with the potential for the trial to be disrupted and the proceedings lengthened or delayed. I agree with Ormiston, J.A. therefore, for the reasons he gives, that a defendant which pleads that it proposes to justify meanings by way of false innuendo other than those alleged by the plaintiff, should plead those meanings and that it should plead justification in terms which make clear the version of meaning of the publication to which that justification is directed. In my view the defendant is obliged to do so, in order to comply with RSC Orders 13.07(1) and 13.10.

If a defendant is limited to justifying a meaning upon which the plaintiff might himself obtain a verdict, what course, then, should be taken by a defendant in the position of the present appellants? These defendants by their original pleading denied the defamatory meanings alleged by the plaintiff, but sought to justify the plaintiff's meanings, as well as other meanings which were not specified in paragraph 6 of the defence. In this Court, counsel for the defendants (like counsel for the defendant in Lucas-Box[110]) frankly admitted that "he wished to keep his options open as to the defamatory meaning of the publication which he will seek to justify, until the last possible moment" and contended that "the plaintiff is not entitled to know what the defence is purporting to justify".

If the defendants are limited to justifying a meaning on which the plaintiff might himself succeed, that meaning will not be substantially different from the plaintiff's pleaded meanings. In such a situation, articulating an alternative meaning may define the issues by making explicit the ground for denying a pleaded imputation, but may also be desirable from the defendants' viewpoint to avoid any risk of the plaintiff claiming that he has been taken by surprise, or that he has prepared the cases on a wrong basis, or that he would have called different evidence. For in that situation the defendants, in fairness and in just the same way as the plaintiff, may be prevented from raising the alternative meaning, or at least may be permitted to do so only on terms of an adjournment and costs.

The present appeal arose because the defendants pleaded, in light of the practice sanctioned in Polly Peck, that they would justify not only the plaintiff's meaning, but also other unspecified meanings. But although paragraph 6 of the original defence showed that the defendants intended at least to leave open the possibility of justifying a meaning of the allegedly defamatory publication which differed from the plaintiff's meanings, the amended defence of 2 November 1998 includes two meanings of which it must be said that they do not appear to differ substantially from the plaintiff's. The question was not argued before us, but at first impression the meanings pleaded by the defendants do not seem more injurious than the plaintiff's, and I doubt whether the plaintiff could reasonably have objected at trial if the defendants had raised, and sought to justify, such meanings without prior warning.

The original form of the defence in my view justified the order made by Hedigan, J. on 24 February 1999, requiring the defendants to state in the defence the alternative meanings which they intended to justify at trial. But in the light of the departure from Polly Peck which is proposed in this judgment and that of Ormiston, J.A. the defendants may now wish again to amend the defence, limiting themselves to justifying the plaintiff's meanings. The position then remains that at trial neither the plaintiff nor the defendants should be permitted to raise (nor should the defendants be permitted to justify) a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff. The defendants, in making their decision whether to seek to amend paragraph 6A of the amended defence will, no doubt, take into account any risk they run that, if they seek to advance at trial an unpleaded meaning, they may not be permitted to do so, weighing against this risk the possibility that the pleading of an alternative meaning might increase the damages awarded.

It follows that in substance I agree with both orders made by Hedigan, J., subject to the reservations I have stated as to the limits of the decision in Polly Peck. I agree with his Honour that the particulars presently supplied pursuant to the order made on 1 October 1998 lack clarity and are obscure and that the particulars pleaded do not amount to sufficient particulars of justification.

I have had the advantage of reading in draft the reasons for judgment prepared by the other members of the Court. With respect, I do not agree.

In some ways this case is an unsuitable vehicle to decide an important question of principle. The appellants always intended, by paragraph 6 of their defence, to foreshadow a meaning or meanings different from those articulated by the respondent. Technically, that was shown by the word "Further" at the beginning of the second sentence of that paragraph: the sentence would have begun with the word "Alternatively" if all that was intended was to justify the respondent's meanings if they could not be successfully traversed. Practically, the argument at first instance and on appeal dispelled any doubt on that question. The appellants maintained that stance, even more clearly, in paragraph 6A of their amended defence. As Mr. Uren pointed out, in both his written and oral submissions, the appellants assumed that they could plead that there were different meanings: the only question was whether they could be compelled to say what those meanings were. It was this Court which thought it expedient to decide, or at least consider, whether Lucas-Box and Polly Peck[111] represent the common law in Victoria. A different course would have been to rescind leave to appeal from the interlocutory orders made by the learned primary judge but, if Lucas-Box does not represent the law in Victoria, the case would then have gone to trial not according to law but according to rules mistakenly applied by the parties.

Were it not for one consideration, it would be crystal clear that a defendant in a defamation action should not be allowed to put forward a natural and ordinary meaning on which the plaintiff does not rely for the purpose of justifying it. I say "for the purpose of justifying it" because such a meaning might be put forward as no more than an elaborate or explanatory traverse of the meanings alleged by the plaintiff: the defendant might say, in effect, "I deny each and every meaning asserted by the plaintiff because the natural and ordinary meaning of the words was such and such." The words beginning "because" are surplusage but, under the modern system of pleadings, they would often be unobjectionable if they made clear the reason for the traverse.[112] There could, however, be no purpose in justifying the alternative meaning, for justification is a matter of defence rather than denial. Subject to the qualification to which I am about to come, if the meanings pleaded by the plaintiff cannot successfully be traversed, it is those meanings that must be justified if they can be justified. There is no point in justifying some other meaning.

The consideration referred to at the beginning of [68] is that the plaintiff may succeed on a meaning that he or she did not plead, provided that the judge considers that it is proper to leave it to the jury. That meaning must not be more injurious than the meanings pleaded and it must not be substantially different from them, but the point remains that the plaintiff may succeed on a different meaning. It follows that it cannot be said without qualification that there is no point in justifying a meaning which the plaintiff has not pleaded, because in the end the plaintiff may succeed on just such a meaning. It is the significance to be attached to that qualification that largely determines the correctness or otherwise of Lucas-Box.[113]

The error, as I perceive it, of requiring the defendant to set out an additional meaning which he or she would justify if that meaning were found by the jury lies not in any logical absurdity of meeting a case that the plaintiff has not made (for the reason that I have just explained), but in a misapprehension concerning the scope of the defence of justification. If the defendant pleads justification, he or she undertakes to prove that the words were true in any meaning that the jury properly finds. The particulars of justification amount to saying, "Whatever the words may properly be found to mean, these are the facts on which I rely."[114] A defendant willing to shoulder such a heavy burden should not, in addition, be required to suggest meanings to the plaintiff that may not have occurred to the plaintiff's advisers, especially as that may have the effect of increasing the damages ultimately awarded. To say that only those additional meanings may be pleaded on which the plaintiff could succeed as the pleadings stand shows, in my respectful opinion, that the proposed change is unnecessary, even if it were permissible. They are the very meanings that cannot, or should not, take the plaintiff unduly by surprise.

Moreover neither party would be confined to the meanings pleaded unless another change of practice were introduced as a corollary.[115] A proper understanding of the scope and burden of the defence of justification vitiates, it seems to me, the apparent symmetry of saying that, just as the plaintiff must plead the meaning or meanings on which he or she relies, so too must the defendant. It also shows that Rules 13.07(1) and 13.10(1) of the Supreme Court (General Civil Procedure) Rules 1996 are too general to resolve the issue. I do reserve one possibility, more out of caution than conviction. It may occasionally be necessary for a defendant to specify a meaning (not necessarily all the meanings for which the defendant would argue) in order to make the particulars of justification intelligible. Mr. Uren submitted, in effect, that this was such a case. I do not accept that submission.

The Polly Peck point[116] does not arise in this case, but, as at present advised, I do not think that a defendant should be allowed to justify at a higher level of generality for the purpose of escaping the imputation on which the plaintiff relies. I respectfully agree with what was said by Cooke, J. (as his Lordship then was) in Templeton v. Jones.[117] It would, as Brennan, C.J. and McHugh, J. observed at [11] of their Honours' judgment in Chakavarti, have been outrageous if the plaintiff could not have obtained redress for being falsely branded as an anti-Semite. If he had been a businessman, he might have failed in his claim, paid the costs and lost his Jewish customers as well simply because the defendant was able to side-step the real issue.

I have reached the foregoing conclusions completely without regard to policy considerations. To the extent, if at all, that it is proper to take them into account, I believe that they point in the same direction. The common law of defamation shields the wicked from criticism almost as much as it protects the reputation of the innocent. It is part of the common experience of life that one believes or suspects on reasonable grounds that a person deserves condemnation and that his or her misconduct might be curbed by public exposure but one dare not speak because the onus of proving truth lies on the defendant. Just as Polly Peck places an unfair weapon in the hands of defendants in "common sting" cases, so Lucas-Box further alters the balance in the opposite direction between the interests of the community in free speech and reputation. That in turn raises large questions with which it is, fortunately, unnecessary to deal in the present case.

For these reasons, in my opinion, the appeals should be allowed and the orders made below varied to require the appellants to provide clear and adequate particulars of justification but not to plead the additional meaning or meanings that they would justify if they had to.

[12] At 768. See also Lucas-Box [1986] 1 All E.R. at 182 and cf. Polly Peck at 1033.

[14] At 579-580 (in Proposition 3 of para.139): see also Proposition 4 at 580-581.

[19] At 527-528 para.8. See also at 529 para.11.

[37] Supreme Court (General Civil Procedure) Rules 1996.

[38] Cf. Gordon v. Gordon [1948] VicLawRp 14; [1948] V.L.R. 57. I am not aware of the current rules and practice in N.S.W. and the other States, other than that referred to in Chakravarti.

[39] See Williams Supreme Court Practice (3rd ed.) para.I 13.12.1.

[42] (1876) 3 Ch.D. 637 at 641 per Lord Esher, M.R.

[43] [1916] HCA 81; (1916) 22 C.L.R. 490 at 517-518 per Isaacs and Rich, JJ.

[47] At 543 para.52 and at 544 para.56.

[49] Chakravarti v. Advertiser Newspapers Ltd. (1998) 193 C.L.R. 519.

[52] Lord Morris of Borth-y-Guest at 265, Lord Hodson at 273, and Lord Devlin at 280.

[80] Per O'Connor, J. in Polly Peck [1986] 1 Q.B. at 1032.

[86] [1968] 2 Q.B. 157 per Diplock, L.J. at 175

[87] (1984) 37 S.A.S.R. 379, per King, C.J. at 386.

[88] [1996] NSWSC 651; (1996) 41 N.S.W.L.R. 176, per Mahoney, A.C.J. at 183.

[89] 193 C.L.R. at [19] per Brennan, C.J. and McHugh, J.

[111] In this judgment I treat Lucas-Box v. News Group Newspapers Ltd. [1986] 1 W.L.R. 147 as deciding the first issue, and Polly Peck (Holdings) Plc. v. Trelford [1986] Q.B. 1000 as deciding the second issue, identified by Brooke, L.J. in Cruise v. Express Newspapers Plc. [1998] EWCA Civ 1269; [1999] Q.B. 931 at 947-948. See [39] and [41] above.

[112] Compare Chakravarti v. Advertiser Newspapers Ltd. (1998) 193 C.L.R. 519 at [8] and [56].

[113] As the High Court has not decided the point and there are opposing dicta, I feel obliged to state the law as I conceive it to be. If I am wrong, my error will be corrected.

[114] In these sentences I use "properly" to mean having properly been left to the jury.

[115] That is what appears to have happened in England: see Polly Peck at 1033A.

Supreme Court (General Civil Procedure) Rules 1996

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