Fairfax Media Publications Pty Ltd v Bateman

Defamation law in NSW

1. Before turning to the reasoning of the primary judge in striking out the challenged defence, it is convenient to identify the basic principles to be applied. To that end, it is necessary to advert to a number of matters of history. That is because the defendants sought to assert that their defence depended on principles derived from the common law, rather than statute, and because they asserted an entitlement to plead a substantive defence which could not be removed by rules of procedure.
2. The reference to "Hore-Lacy" in the title of the defence was a reference to a decision of the Victorian Court of Appeal, David Syme & Co Ltd v Hore-Lacy [154] which was recently followed and applied by the same Court in Setka v Abbott. [155] The principles so established, the submission continued, formed part of the common law of Australia and, there being only one common law in Australia, this Court was bound to apply those principles, unless there was compelling reason not to, a qualification which could not be established in the circumstances.
3. As will be considered further below, the bland reliance upon "a common law" in Australia requires some refinement in a context where statute has, for more than 150 years, intruded upon judicial precedents. Further, care must be taken before accepting the apparent assumption that substantive common law principles cannot be affected by rules of procedure. Even if we do not now adopt Sir Henry Maine's aphorism "that substantive law has at first the look of being gradually secreted in the interstices of procedure", [156] the interrelationship of procedure and substantive law can hardly be denied.
4. Where the tort upon which a plaintiff sues is committed within the jurisdiction of the court in which proceedings are brought no choice of law question arises. However, publication of defamatory material can and often does occur across jurisdictions. To the extent that a separate cause of action arises in each jurisdiction, choice of law questions do arise. With respect to tort, it has been established by John Pfeiffer Pty Ltd v Rogerson [157] that, statute aside, the law governing substantive issues, including the existence and extent of rights, obligations and remedies, will be the law of the place of the tort, [158] while procedural questions will be determined by the law of the forum, that is the place of trial. [159]
5. That distinction may have been significant in some past cases dealing with interstate publication, although it was not always discussed in those terms. No such question arises in the present case: the choice of law rules are effectively prescribed by s 11 of the uniform legislation. New South Wales being the jurisdictional area with which the harm occasioned by the publication as a whole "has its closest connection", [160] both the substantive law and procedural rules of this State apply. Nevertheless, in the course of submissions there were hints that, to the extent that the 2005 Act preserved the "general law", it did so in a way which could not be diminished by procedural rules. Ultimately, that issue did not need to be addressed because the defendants eschewed any suggestion that the relevant rules under the Uniform Civil Procedure Rules 2005 (NSW) were invalid.

(a) preserving the common law

1. Central to the defendants' case was the proposition that a defence of justification (truth) arising under the general law was preserved by the 2005 Act. That proposition raised a number of questions, not all of which were fully explored in argument. Before identifying those questions, it is convenient to set out the provisions of the 2005 Act which are relied on.
2. The 2005 Act includes a defence of substantial truth: 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
3. However, the 2005 Act is not a Code: so much is clear from s 6 which reads as follows: 6 Tort of defamation (1) This Act relates to the tort of defamation at general law. (2) This Act does not affect the operation of the general law in relation to the tort of defamation except to the extent that this Act provides otherwise (whether expressly or by necessary implication). (3) Without limiting subsection (2), the general law as it is from time to time applies for the purposes of this Act as if the following legislation had never been enacted: (a) the Defamation Act 1958, (b) the Defamation Act 1974.
4. Specifically with respect to defences, s 24(1) states: 24 Scope of defences under general law and other law not limited (1) A defence under this Division is additional to any other defence or exclusion of liability available to the defendant apart from this Act (including under the general law) and does not of itself vitiate, limit or abrogate any other defence or exclusion of liability.
5. The term "general law" is defined to mean "the common law and equity." [161] What might be encompassed by the term "equity" in this context is quite unclear: assuming some form of equitable principle might be applicable with respect to the tort of defamation, would it include equitable principles reflected in statutory provisions? If so, would a similar approach apply to "the common law"? Further, the operation of subs 6(3) is obscure: so far as the defence of justification is concerned, the Defamation Act 1958 (NSW) ("the 1958 Act") qualified the common law defence of truth with a requirement that the publication be for the "public benefit"; the Defamation Act 1974 (NSW) ("the 1974 Act"), replaced this element with a "public interest" requirement. If those two Acts "had never been enacted", that would leave in force the Defamation Act 1912 (NSW). Yet since Windeyer's Libel Act of 1847, a defence of substantial truth was only made good when the publication was shown to be "for the public benefit". [162] The requirement of public benefit was retained in the Defamation Act 1901 (NSW), [163] and by the Defamation Act 1912. [164] Needless to say, s 6(3) is a provision specific to NSW and is not found in the equivalent acts in other jurisdictions.
6. As this consideration implies, the concept of "a common law", like the phrase "the rule of law" is multifaceted and may mean different things in different contexts and at different times. For example, the "common law" is usually understood to refer to principles or rules of substantive law which are, in some sense, derived from, or sourced in, judicial decisions. Some such principles have a long pedigree in case-law; others may derive from statute, in which event there could be an issue as to the relationship between the statute and the judicial exegesis. Underlying that question is the doctrine of precedent, which is best seen as a principle underpinning the methodology of judicial decision-making in a "common law" system. [165]
7. If ss 6 and 24 were intended to refer to some pristine condition of judge-made law, without statutory affectation, they may invoke little more than an historical artefact with little or no significant modern application. If they include judicial exegesis on statutory provisions, then care must be taken to ensure that the statutory provisions are uniform in all States. Prior to April 2006, they were not. [166]
8. A similar issue arose with respect to the offence of murder in New South Wales, as found in the Criminal Law Amendment Act 1883 and as replaced by s 23 of the Crimes Act 1900. In Gammage v The Queen [167] Windeyer J stated: [168] "As the Privy Council recognised in Parker v The Queen, [169] the legislation of 1883 has to be considered against its common-law background. But, for present purposes, it is misleading to speak glibly of the common law in order to compare and contrast it with a statute. In any consideration of common-law rules it is necessary to take one's stand at some point of time. It is necessary too to be clear whether what is being spoken of as the common law at that point of time comprehends all statutory modifications of it then in force or only its pristine form. This is especially true when the law of homicide is under discussion. Its growth, elaboration and development over centuries has been the result of the work of Parliament as well as of courts and of the great and authoritative writers."
9. Similar considerations apply with respect to the 2005 Act and defamation law in New South Wales.
10. In the Native Title Act Case, [170] dealing with then s 12 of the Native Title Act 1993 (Cth), which purported to give "the common law of Australia in respect of native title … the force of a law of the Commonwealth" the joint reasons stated: [171] "But the common law is not found in a text; its content is evidenced by judicial reasons for decision."
11. The Court then proposed that the "common law" could be understood to refer to either "the body of law which the courts create and define" [172] or "an organic developing but unwritten body of law". [173] The joint reasons further stated: "The content of the common law will, in the ordinary course of events, change from time to time according to the changing perceptions of the courts."
12. Putting to one side the language of "declaration" of the common law found in parts of this discussion, these passages recognise both the variability of the common law over time and affectation by statute. Nor should it be supposed that reference to "statute" is intended to be limited to acts of Parliament, to the exclusion of delegated legislation made under the authority of a statute, namely "instruments", in the language of the Interpretation Act 1987 (NSW), s 3(1). Sections 6 and 24 of the 2005 Act address the issue of affectation by the Act itself: however, identification of the common law must take account of possible affectation by other Acts or statutory instruments.
13. Sections 6 and 24 have two effects. First, they enact a principle of statutory interpretation which has waned in recent years, namely a presumption that a statute changes the common law only so far as it does so expressly or by necessary implication. [174] However, the sections have a second effect which the drafter had some difficulty identifying. Repeal of the 1974 Act did not revive the 1958 Act which it had repealed. [175] But the drafter appears to have foreseen a further problem in seeking to resurrect the common law, perhaps because the repeal of an act does not revive anything not in force or existing at the time at which the repeal takes effect, or affect the previous operation of the act. [176] It may have been for that reason that s 6(3) was inserted; nevertheless the effect remains unclear. It seems unlikely that the intention was to revive some pristine form of the defence of truth as it existed before the 1847 legislation; that would deny the force of the reasoning in Gammage. Nor should the words be treated as overriding the effect of laws of this State other than the repealed 1974 Act (and its predecessor). The better view is that these provisions conferred on the courts the power to determine relevant aspects of the non-statutory law of defamation, that is, the general law unaffected by current legislative instruments, as appropriate today in Australia.
14. The combination of prescribed choice of law rules, together with the attempt to achieve uniformity of defamation law throughout Australia, reflected a common purpose of the "uniform" laws, namely to limit both the substantive and procedural opportunities for forum shopping within the country. Bearing that purpose in mind, the courts should construe the 2005 Act in a way which will pick up the common law in Australia so as to promote that purpose, even in areas where, for more than 150 years, it had had no operation in this State.
15. However, there will remain questions as to the extent to which the 2005 Act itself affected common law principles and the extent to which other State legislation may have had such an effect. As recognised by the High Court in John Pfeiffer, even though there is "a single common law of Australia" [177] and "although the common law applies both in the law area in which a particular case is litigated and in the law area in which the relevant events occurred, it may have been modified in one of them in some relevant particular." [178]
16. Because the 2005 Act must be given effect, so far as possible, to ensure that common law principles will operate uniformly across the country, it may be necessary to disregard statutory variations of the common law in this State which have now been repealed, but which have affected practices and procedures in this State. On the other hand, where those procedures are contained in rules of court which continue to operate it is possible that the common law in this State will differ from the common law in other jurisdictions. There is nothing in the 2005 Act which seeks to prevent such an outcome. Indeed, the outcome is perhaps inevitable in so far as the 2005 Act does not prescribe procedures. Furthermore, variation is possible to the extent that legislation governing statutory interpretation varies from one jurisdiction to another.
17. In principle, there are three questions which may need to be addressed, with respect to the defence of truth. First, does the 2005 Act expressly, or by necessary implication, affect or modify the general law defence? Secondly, is the general law defence affected or modified by any other law in force in New South Wales? Thirdly, are the answers to these questions affected by s 6(3)?
18. In practice, these questions are inter-related. With respect to the first question, it is apparent from the terms of s 24(1) that the inclusion of a defence of truth in s 25 "does not of itself vitiate, limit or abrogate" a general law defence of truth. However, if s 25 accurately reflects the common law as it applies in this State, it may fairly be said to supersede the common law in the sense used by Sir Owen Dixon, writing extra-judicially, in a passage adopted in the Native Title Act Case. [179]
19. The significant aspect of s 25 for present purposes is that the statutory defence requires proof by the defendant that the defamatory imputations of which the plaintiff complains are substantially true. Until modern pleading practices developed, a plaintiff did not strictly need to plead specific imputations which were conveyed by the natural and ordinary meaning of the publication unless they were necessary because an innuendo arose from extraneous facts. However, in accordance with the pleading requirements which operate in New South Wales, the plaintiff must identify the imputations upon which he or she sues. [180] The somewhat inflexible rule of pleading in New South Wales, may, at least in part, derive from the 1974 Act, in so far as it provided that each imputation constituted a separate cause of action. Although that approach has been abandoned with the repeal of the 1974 Act, the pleading rules remain. Subject to an appropriate amendment, the plaintiff will be held to his or her pleaded imputations, or to meanings which are not substantially different from those pleaded.
20. The question then becomes whether there is room under the common law for a pleading which seeks to justify publication of the material complained of, either without identifying particular imputations or by identifying imputations in different terms from those relied upon by the plaintiff. Ultimately, it may be seen that the defendants, by relying on a single common law in Australia which permits them to plead the substantial truth of imputations other than those pleaded by the plaintiff, raise a false issue. Accepting, as they do, that their other imputations must be not substantially different from those pleaded by the plaintiff, the question becomes one of permissible pleading practice, which involves no right or entitlement, nor reliance upon the general law, but rather the discretionary application of rules relating to pleadings which tend to cause prejudice, embarrassment or delay or are otherwise an abuse of process.
21. In order to explain why that is so brief reference may be made to the historical development of defamation law and procedure in New South Wales. However, before taking that step, the third question identified above should be addressed.
22. On one view, none of these questions can arise in this State. That is because the general law defence of substantial truth was only available, prior to the 2005 Act, in the statutorily modified form which has already been noted. If the operation of s 6(3) is to require consideration of the common law as it arose prior to the enactment of the 1958 Act, then the common law defence of truth was not available in New South Wales.
23. There are available reasons which support the view that, at least with respect to that particular defence, s 6(3) does not have that operation. First, subs (3) is said not to limit the operation of subs (2). Secondly, although it is said to assist in identifying the content of the general law as it applies "for the purposes of this Act", it is not entirely clear that it was intended to limit the operation of s 24(1), although a literal reading of the statute might have that effect. Thirdly, and more importantly, a significant purpose of the 2005 Act, as part of the uniform defamation laws, was to overcome disagreement between the States and Territories as to the scope of the truth defence. [181] The apparent intention, on this important issue, was to adopt a simple truth defence, unconstrained by requirements of public benefit or public interest, contrary to the laws then in force in Queensland, Tasmania and the ACT, as well as New South Wales.

(b) historical considerations

1. As noted above, Windeyer's Libel Act of 1847 provided a defence of truth only when the publication was shown to be "for the public benefit", a provision retained in the Defamation Act 1901 and the Defamation Act 1912. The next major statutory amendment occurred with the enactment of the 1958 Act. Publication for the public benefit remained a condition of the truth defence. [182] The statutory defence was preserved in the 1974 Act, although the language of "public benefit" was replaced by "public interest".
2. The 1847 Act applied in what became Victoria and Queensland (prior to their separation in 1856 and 1859 respectively); both repealed the 1847 Act, but Queensland replaced it with a Code. The pre-1912 law of New South Wales applied in the Australian Capital Territory. [183] Further details of this brief synopsis may be found in readily available publications. [184]

(c) pleading in NSW

1. Pleading both a cause of action and a defence in defamation is governed by the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"). To the extent that the pleading in different jurisdictions is governed by different rules, and to the extent that the issue before the court is one of pleading, little assistance will be gained from case law in jurisdictions which have different rules.
2. Pleadings generally are dealt with in Pt 14 of the UCPR; Div 6 deals specifically with defamation pleadings. Division 6, in its present form, was inserted in 2005 with effect from 1 January 2006, being the date of commencement of the 2005 Act. Nevertheless, as the note at the commencement of the division recognised, the 1974 Act would continue to apply to some proceedings after 1 January 2006. Accordingly, in dealing with the defences, the rules provided separately with respect to the 1974 and 2005 Acts.
3. It is sufficient for present purposes to set out those parts of the rules dealing with claims and defences generally and with the defence of truth under the 2005 Act. They are as follows: 14.30 Allegations in statements of claim generally (1) A statement of claim seeking relief in relation to the publication of defamatory matter must not include any allegation that the matter or its publication was false, malicious or unlawful. (2) Any such statement of claim must: (a) subject to subrule (3), specify each imputation on which the plaintiff relies, and (b) allege that the imputation was defamatory of the plaintiff. (3) A plaintiff in proceedings for defamation must not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance. 14.31 Defamation defences generally (1) Subject to rules 14.32-14.40, a defendant in proceedings for defamation must plead any defamation defence specifically. (2) If the plaintiff in defamation proceedings complains of two or more imputations, the pleading of any of the following defences must specify to what imputation or imputations the defence is pleaded: (a) …, (b) a defence under section 25 or 26 of the Defamation Act 2005, (c) the defence of justification at common law. … 14.32 Defence of justification generally … (2) Defences under Defamation Act 2005 and at common law Subject to rule 14.31(2), a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true. Note: The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24(1) of the Defamation Act 2005.
4. These provisions reflect the terms of s 24 of the 2005 Act. Subsection 24(1) has a number of purposes. One is to recognise that the statement of defences is not an exclusive list. The note to the subsection refers to other legislation which provides protection from or defences to actions in defamation. Further, to the extent that there are other defences, including under the general law, none of the statutory defences limits such other defences.
5. That this is a broad savings provision is not to be doubted; however, in its terms it has nothing to say as to the availability of some independent defence of justification under the general law.
6. It is true that UCPR r 14.32(2) acknowledges the possibility that there is a separate defence of justification "at common law" it may be seen as a reflection of a possibility left open by the legislation. It too says nothing as to the legal availability of such a defence. That question must be determined as a matter of substantive law and, if s 25 should be treated as a full statement of the defence, that conclusion would not be inconsistent with s 24 or the rules.
7. In its terms, s 25 requires justification of the specific defamatory imputations of which the plaintiff complains. While it is no longer true (as it was under the 1974 Act) that each imputation constitutes a cause of action, the 2005 Act nevertheless envisages that relevant defamatory imputations will be identified. [185] That is reflected in the requirement of r 14.30(2) that a statement of claim must "specify each imputation on which the plaintiff relies". The defendants did not suggest that this rule was invalid; indeed they expressly eschewed that proposition. The further requirement that the plaintiff may only plead imputations which "differ in substance", [186] each from the others, may well have been an essential requirement when each imputation constituted a separate cause of action, but its continued operation is self-evidently justifiable as good pleading practice consistent with the obligation of the pleader, pursuant to the overriding purpose, to identify the real issues in dispute so as to facilitate the just, quick and cheap resolution of them. [187]
8. The rules expressly require that the pleading of a defence of justification (whether under the 2005 Act or at common law) "must specify to what imputation or imputations the defence is pleaded". [188] That obligation arises where the plaintiff has pleaded two or more imputations. The ordinary grammatical understanding of that provision is that the imputation or imputations to which the defence is pleaded are those identified by the plaintiff. A suggestion made by the defendants that this provision permitted them to plead their own imputations, albeit imputations which were not substantially different from those pleaded by the plaintiff, does not conform to the ordinary meaning of the language. The rule addresses the confusion which might arise in the case of a plurality of plaintiff's imputations; it would make no sense to allow the defendant to plead its own imputations, but only where the plaintiff had pleaded more than one. Similarly, the proposition in r 14.32(2) that a defence of justification is sufficiently pleaded if it alleges that "the imputation in question" was substantially true, picks up the language of s 25 which, as already noted, refers to the imputations of which the plaintiff complains.
9. In short, the rules should not be understood as making provision expressly or by implication, for a defendant to plead its own version of the plaintiff's imputations. That conclusion is not, of itself, sufficient to say that the practice is proscribed.
10. Against this statutory and procedural background, it is necessary to turn to the nature of the complaint by the defendants that they have not been allowed to formulate their own version of the plaintiff's imputations and plead the substantial truth of that version. Given the absence of support in the UCPR for such a course, support must be found elsewhere.

(a) modern NSW practice as to pleaded imputations

1. Pleading imputations derived from defamatory publications is undoubtedly an art; however, it does not generally give rise to the precise use of language generally expected of the law. As noted by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Commission, [189] a requirement to specify a particular meaning will "in its practical application" raise questions of degree. He continued: "Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology."
2. The Chief Justice approved a test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd: [190] "The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends." [191]
3. As to how one is to understand imputations pleaded by the plaintiff, there is an inevitable tension running through the case law. On the one hand, the language of a defamatory publication may well be imprecise and the pleader may have difficulty in identifying with precision the nature of the attack on the plaintiff's character. Further, in a jury trial, that will be a matter to be determined by the jury. Nor, as a practical matter, will the meaning of the imputation be considered entirely in the abstract without reference to the matter complained of. On the other hand, procedural fairness requires that a defendant has notice of the thrust of the case against it, in part so that it can determine whether it can justify the imputation. The approach adopted in the very early days of the 1974 Act was reflected in the reasons of the Court in Morosi v Mirror Newspapers Ltd. [192] Dealing with an allegation of promiscuity, the Court referred to the rules requiring the pleading of imputations differing in substance and continued: [193] "The purpose of these provisions is not so to confine a plaintiff that, unless the precise imputations pleaded are found, he will fail, any more than it is to impose on a defendant an obligation to justify precisely those imputations, or to fail. Rule 11(3) precludes the practice, formerly prevalent, of pleading many shades and gradations of substantially similar imputations. … To say of a woman that she is of loose sexual morals is, in substance, similar to saying that she is promiscuous. Upon the proper construction of the rules, an imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance. Accordingly, it is not open to the appellants [the publishers] to claim that the imputations as to promiscuity should have been taken from the jury, because the publications bore implications of sexual immorality of a slightly lesser degree."
4. Some 25 years later, the point was repeated by Mason P (with the agreement of Wood CJ at CL) in Greek Herald Pty Ltd v Nikolopoulos [194] stating, "the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation", referring to Morosi at 771. The President continued: "[20] The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text …. [21] These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction …. Holmes J, in Towne v Eisner [195] reminds us that: 'A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used'."
5. That which does not differ in substance is sometimes described as a "nuance"; whether that word accurately identifies the positive scope for departure from a core, negatively reflected by the phrase "not substantially different", is not a matter which need be pursued. For practical purposes, most imputations will have a core and a penumbra. Even quite precise imputations, such as 'the plaintiff has been convicted of theft on 20 occasions', will not fail if the facts support a limited degree of numerical disparity. How much disparity will be acceptable will depend on context, as noted by Gleeson CJ in the passage set out at [167] above.

(b) English practice as to pleaded imputations

1. The modern history of pleading civil defamation cases in the UK can be said to commence with the judgments of the House of Lords in Lewis v Daily Telegraph Ltd. [196] However, the outcome of that case was somewhat indecisive. The next significant discussion occurred in Slim v Daily Telegraph Ltd. [197] All three members of the Court of Appeal in that case expressed their views as to the proper form of pleading. Each gave some historical context for his conclusions. Putting to one side true innuendoes which involved extraneous facts, Lord Denning MR stated: [198] "In the first place, I think that, when a plaintiff complains of the words in their natural and ordinary meaning, he must accept that meaning as it is with all the derogatory imputations that it conveys. He cannot select some of the imputations and reject others as he pleases. The reason is because, when he complains of libel, he complains of the injury which the words do to his reputation in the minds of the ordinary reader. … When the defendant comes to plead his defence, he cannot select some of the imputations and reject others. If he justifies, he pleads in the customary form: 'The said words in their natural and ordinary meaning were true in substance and in fact' without specifying any particular imputations. So we see that, in the customary form of pleading, neither plaintiff nor defendant is allowed to make selections of some of the derogatory imputations. Each must accept the words as conveying all such imputations as the jury think they bear: and make his claim or defence accordingly. Only in this way can we avoid the complications which have disfigured this case."
2. The disfiguring complications to which Lord Denning referred appeared to be those identified by Diplock LJ in the following passage: [199] "The natural and ordinary meaning which the plaintiffs alleged the words bore was stated with great precision in the statement of claim. The defendants conceded that they could not justify the defamatory meaning so alleged, but did seek to justify the actual words complained of in what they, the defendants, contended was the natural and ordinary meaning of those words - a meaning which, incidentally, the rules of pleading prohibit the defendants from stating in their defence."
3. As Diplock LJ then explained, in considering justification, the trial judge identified the issue before him as whether the words in their natural and ordinary meaning bore the precise defamatory meaning alleged in the statement of claim, [200] "…but he nevertheless goes on to consider what is a different issue viz whether the words bore a defamatory meaning which he expresses in a number of different phrases, all of them less precise than those used in the statement of claim, but which he apparently regarded as paraphrases of the relevant paragraphs of the statement of claim. To do so introduces into the proceedings a new complication about the meaning of words - this time not about the meaning of the words used in the alleged libel but about the meaning of the words used in the paragraph of the statement of claim to plead the defamatory meaning which the plaintiffs alleged was the natural and ordinary meaning of the words used in the alleged libel. Any paraphrase of that paragraph which was less precise than the actual words used in the paragraph could not bear the same meaning as the words themselves …".
4. The third member of the Court in Slim, Salmon LJ, provided a brief history of changes in pleading practice in defamation cases, noting that, whether it was necessary or not, plaintiffs now pleaded meanings upon which they relied. Salmon LJ stated: [201] "Without committing myself to any concluded view, I am inclined to think that the plaintiff is bound by his pleading - otherwise it may prove to be nothing but a snare for the defendant. I do not mean, of course, that the plaintiff is strictly confined to the very shade or nuance of meaning which he has pleaded - but what he sets up at the trial must come broadly within the meaning he has pleaded. Nor do I think that, without any amendment of his statement of claim, it would be permissible for him to set up any entirely different meaning, even if it were less injurious to the plaintiff than the meaning pleaded."
5. The practice referred to by Salmon LJ is at least close to the accepted rule in New South Wales. Salmon LJ then noted a further complaint of possible prejudice to the defendants who might be precluded from justifying a meaning upon which the plaintiff had not relied in his pleading. He said in response: [202] "But if the plaintiff cannot recover damages in respect of such a meaning, no plea of justification in respect of it could be relevant. I can imagine a case in which the words bore two indirect defamatory meanings and the plaintiff chose to confine himself to the one because he was afraid of justification in respect of the other. But this manoeuvre could do him no good. The defendants may always invite the Court to consider the words complained of in their context and can also serve a notice in diminution of damage. If the matters which could have been pleaded by way of justification of meaning B are not relevant by way of diminution of damage in respect of meaning A, then the fact that the plaintiff does not seek to recover damages in respect of meaning B, and that accordingly there has been no plea of justification in relation to it, cannot prejudice the defendant in respect of the claim founded on meaning A."
6. These judgments reveal a tension inherent in defamation proceedings, between the desirability of having the plaintiff specify the meanings upon which he or she relies, thereby confining not merely the claim but the defences, and the need for damages to be assessed against the harm done by the publication. Ultimately, the relationship between an award of damages and what might be thought to be the ordinary and natural meaning of the publication has proved less powerful than the regulation of proceedings by holding the parties to their pleadings. Nevertheless, it is obviously undesirable, as Diplock LJ noted in Slim, that a new area of disputation is raised, that being the meaning of the pleaded imputations. It is also important to bear in mind that confining the plaintiff's claim should also confine the scope of the available defences by way of justification and fair comment.
7. The next noteworthy development in the UK arose in two cases decided almost simultaneously, namely Polly Peck (Holdings) Plc v Trelford, [203] and Lucas-Box v Newsgroup Newspapers Ltd. [204] Although decided some three weeks after Lucas-Box, it is convenient to deal first with Polly Peck, because it is accepted that it does not represent the law in Australia. It is nevertheless desirable to refer to it to identify the reason why it has not been accepted here.
8. It is sufficient to refer to two passages in the judgment of O'Connor LJ (with whom Robert Goff and Nourse LJJ agreed). Dealing with the question of justification, O'Connor LJ made two statements, the inter-relationship of which is not entirely clear. He said: [205] "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 meanings 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 …. 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 …."
9. The effect of these passages is understood to be that the defendant may plead an imputation not relied upon by the plaintiff and may seek to justify it, at least if it can be said that both have a "common sting". O'Connor LJ then referred to Lucas-Box noting the ruling in that case that "the practice which dictated that a defendant does not state in his defence what he alleges is the natural and ordinary meaning of the words complained of is ill-founded and should not be followed." Thus, O'Connor LJ concluded: [206] "That case has decided that a defendant who pleads justification must state the meaning which he seeks to justify. It follows from that case and this that in future, where differences of meaning are proposed by the parties, the issue as to the possible meanings of the words will be confined to those pleaded."
10. In Lucas-Box, [207] the English Court of Appeal said that "where an action in defamation is tried with a jury, it is for the jury to decide what meaning or meanings the words in fact bear, [but] [t]hey are not limited by the meanings which either the plaintiff or the defendant seeks to place upon the words." As this passage does not accurately convey the current New South Wales approach to pleaded imputations, regardless of the statutory context in which they developed, it can hardly be relied upon in this jurisdiction to justify that which followed: "Accordingly a defendant, who seeks to rely upon the defence of justification, does not wish to tie himself to a potential defamatory meaning which may turn out to be more serious than that which a jury ultimately conclude to be the true defamatory meaning."
11. It appears that something has gone astray in the reporting of this passage, but it has been taken to mean that, where the jury need not determine the case on the imputations pleaded by the plaintiff, the defendant is entitled to plead imputations for which it contends and justify them as substantially true.

(c) the Australian response

1. Although in other circumstances it might be necessary to have close regard to the statutory provisions and rules of court relevant to the English cases, it will be sufficient for present purposes to consider how the principles they articulate might operate under the statutory provisions and rules applicable in this State. First, it is convenient to note authority in Australia. The first consideration of these cases in Australia, relevant for present purposes, was to be found in the High Court judgments in Chakravarti v Advertiser Newspapers Ltd. [208] That case was concerned with a newspaper report of proceedings before a Royal Commission, for which s 7(1) of the Wrongs Act 1936 (SA) provided a defence in certain circumstances. Each of the three judgments delivered by the Court made some reference to the issues relevant for present purposes. The principal judgment was that of Gaudron and Gummow JJ, with whose orders other members of the Court agreed. Brennan CJ and McHugh J wrote together in respect of two matters which were said to qualify their agreement with the joint reasons of Gaudron and Gummow JJ. The relevant matter concerned "a defendant pleading and justifying meanings which the plaintiff has not pleaded." [209] The joint reasons set out an extensive extract from the judgment of O'Connor LJ in Polly Peck, parts of which have been set out above. Brennan CJ and McHugh J commented: [210] "With great respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of not guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, 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."
2. The joint reasons continued: [211] "A plaintiff who pleads a false innuendo thereby confines the meanings relied on. 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."
3. Gaudron and Gummow JJ took a different approach, referring to "common practice" with respect to pleading by plaintiffs. [212] "Although there is no requirement in that regard, it is now common practice for a plaintiff to specify in his or her statement of claim the meaning or meanings which, as a matter of ordinary language, are said to be conveyed by the material upon which he or she sues. Whilst the pleading of different shades of meaning is not to be encouraged, distinct or specific meanings should be pleaded and one indication of distinctness or specificity 'would be whether the justification would be substantially different'. And since the decision in Lucas-Box v News Group Newspapers Ltd, a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning." (Footnotes omitted.)
4. There followed a discussion of the cases, including Slim and Polly Peck, as to the degree to which a party might be confined to its pleadings, concluding that "if a defendant seeks to justify a meaning which is different from that asserted by the plaintiff, it should plead that alternative meaning …". [213]
5. The precise scope of the principle identified at [52] (the passage set out at [185] above) is unclear. The suggestion that a plaintiff should plead substantially distinct or different meanings is followed by the reference to Lucas-Box and a defendant pleading a different meaning, whereas the current understanding is that the defendant is not able to plead the truth of a substantially different meaning from that pleaded by the plaintiff. However, the scope of these statements is not critical for present purposes as they dealt with "common practice" whereas it is necessary in this State to deal with specific pleading rules.
6. The statement of principles by Kirby J [214] did not resolve the issue. Kirby J treated the rules of pleading as operating differently in New South Wales, where, at the time, each imputation constituted a separate cause of action. [215]
7. Before turning to the Victorian decisions, it may be noted that Patrick George, writing about practice under the 1974 Act, stated: [216] "While plaintiffs in New South Wales and Queensland were bound to their pleaded imputations and defendants were generally bound to defend those imputations, in other Australian jurisdictions it appeared that defendants could assert and defend 'alternative' meanings."
8. One such jurisdiction was undoubtedly Victoria where the decision in Hore-Lacy upheld the entitlement of a defendant to plead an imputation not substantially different from that pleaded by the plaintiff and seek to justify that imputation. The primary judge in the present case held that such an approach was inapplicable in New South Wales, because of statutory and rule-based differences in this State. That finding being challenged, it is necessary to consider the bases upon which Hore-Lacy was decided. The Court was not unanimous, the majority being constituted by Ormiston and Charles JJA, with Callaway JA in dissent.
9. The key to the case turns on the first sentence of the first judgment, Ormiston JA noting 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." The same point was made by Charles JA, who noted: "[53] 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, CJ and McHugh, J in Chakravarti. 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. [54] 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. … [56] 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, CJ and McHugh, J said in Chakravarti 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." (Footnotes omitted.)
10. Callaway JA approached the matter on a similar basis stating: "[68] 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. 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. [69] 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. [70] 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.' 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." (Footnotes omitted.)
11. How then did the majority approach the key question, namely the extent to which a plaintiff was confined by his or her pleadings? Ormiston JA stated at [2]: "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 [217] and Chakravarti …. 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."
12. That approach was critical to the reasoning that followed. As Ormiston JA further noted, after referring to the authorities of Lucas-Box and Polly Peck: "[4] However, Brennan, CJ and McHugh, J in Chakravarti would see that approach as being contrary to the ordinary common law rules of pleading. They say, 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. [5] I do not see the answer to this conundrum is 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. …"
13. Charles JA applied the same reasoning based on National Mutual v GTV Corporation Pty Ltd. [218] In short, the premise on which the reasoning of the majority was expressly and unequivocally founded was inconsistent with practice in this State at least.
14. Hore-Lacy was recently followed by the Victorian Court of Appeal in Setka v Abbott, but it is not necessary, subject to one qualification, for this Court to consider the reasoning in Setka. The qualification concerns a semantic convention adopted by the joint reasons which may have coloured the manner in which the issues were addressed in the pleading before this Court. Thus, after setting out in full the imputations pleaded by the defendant [219] the joint reasons stated: [220] "This raises a truth defence, the form and content of which derives from [Hore-Lacy]. We will describe it hereafter as 'HL justification'."
15. The use of the label carried with it a number of implications, some of which were inconsistent. Thus the judgment continued: "[10] Beginning with a denial that the words were defamatory of and carried the meanings pleaded by the plaintiff, such a defence sets up different (defamatory) meanings, which are alleged to be true in substance and in fact. Those different meanings, it must immediately be said, must be meanings upon which the plaintiff could succeed at trial, notwithstanding that the plaintiff has not in fact pleaded them. … [13] Pausing, HL justification takes as its starting point a denial of the meanings ascribed to a publication by the plaintiff. It then asserts other meanings. If it succeeds, the only available meanings have been justified and the plaintiff fails. … … [60] Thus, by an HL justification defence, a defendant denied that the publication had the meanings relied upon by the plaintiff and did not seek to justify them. A defendant did not seek to do so because it would be anomalous to confess and avoid to a meaning which, according to the defendant the publication was incapable of conveying."
16. If by these passages the Court in Setka was implying that some different form of the defence of justification was upheld in Hore-Lacy, that proposition would be difficult to accept. Although the applicants in the present case sought to plead "Hore-Lacy justification" as a separate form of defence, they also sought to justify the imputations pleaded by the plaintiff. No question arose as to any election between these approaches (nor between a denial of the allegations that the imputations were conveyed and defamatory and the pleading of justification).
17. Curiously, there was only a single passing reference in Setka to the judgment of the High Court in Channel Seven Adelaide Pty Ltd v Manock [221] and that to an entirely peripheral point in the dissenting judgment. [222] (Interestingly, Kirby J in that passage referred to "the dying hours of the common law of defamation in Australia".)
18. Manock may have been disregarded because it was concerned with the defence of fair comment and not truth. In particular it dealt with the distinction between fact and opinion in relation to that defence. However, the joint reasons of Gummow, Hayne and Heydon JJ, identified, under the heading "Is the meaning pleaded by the plaintiff relevant to the defence of fair comment pleaded by the defendant?" the following propositions: [223] "The defendant's argument rested on two propositions: (a) unlike the position in New South Wales, under the now repealed Defamation Act 1974, s 9(2), which rendered each of the plaintiff's imputations a cause of action, at common law the cause of action lies in the words or matter published; (b) the defence of fair comment 'is not directed to meaning (let alone the plaintiff's imputation). Comment is concerned with the form of expression, that is, comment attracts protection because of the form in which it is expressed. It follows logically that the defence of comment is, and should be, directed to the words or matter complained of, and not the imputations conveyed.'"
19. The joint reasons held that the pleading did not meet the defendant's criterion, but continued to identify "Flaws in defendant's criterion." [224] In a footnote the reasons noted that: [225] "There is authority against the defendant's contention. It is contradicted by the following dictum of Brennan CJ and McHugh J in Chakravarti … at [8]: 'A plea of ... fair comment ... in respect of an imputation not pleaded by the plaintiff does not plead a good defence.'"
20. The reasons then noted that "[o]ne vice in the defendant's argument was that it consisted of, and relied largely on, statements asserting the desired conclusion but without any explanation of why that conclusion followed in principle." [226] In a lengthy passage, the joint reasons stated: [227] "Hence the defendant's contention that in this case the meaning pleaded by the plaintiff is irrelevant to the defence of fair comment at common law is wrong. It is wrong because by the time the trial judge comes to consider the fair comment defence the question of meaning will have been decided adversely to the defendant. The meaning found is the comment to be scrutinised for its fairness. … If the defendant's contention were not wrong, it would be open to the defendant to contend that the promotion bore some meaning other than the defamatory meaning which the trial judge had already found, which is impossible. What the Privy Council said in Lloyd v David Syme & Co Ltd, [228] in a case on the Defamation Act 1974 (NSW), is equally applicable to the common law: 'Comment must have a meaning, and ex hypothesi the [trier of fact is] proceeding on the footing that its meaning is defamatory in the sense of the pleaded imputations which have been found established.'"
21. The reasoning in Chakravarti, picked up and elaborated upon by the joint reasons in Manock, stated that "[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." [229] Further, the acceptance by the Court that the principle stated in Lloyd v David Syme by reference to the 1974 Act applies to a common law defence necessarily calls into question any attempt by a defendant to plead the truth of imputations other than those relied on by the plaintiff.

Reasoning of primary judge

1. The reasoning of the primary judge for not allowing the defendant to plead imputations which it then sought to justify focused squarely on the rules and practice with respect to pleading imputations, and the manner in which they are left to the jury, in New South Wales. Noting that, despite the repeal of the 1974 Act, (i) a plaintiff is still precluded from pleading imputations which do not differ in substance (r 14.30(3)), (ii) the defendant is required to specify to what imputation the defence of truth is pleaded (r 14.31(2)) and (iii) in alleging that an imputation is true, the defence must include "particulars of the facts, matters and circumstances on which the defendant relies" to establish truth (r 15.22(2)) [230] concluded that the defendant was required to justify the case raised by the plaintiff. [231] That being so, there is no occasion to plead other meanings. [232]
2. The trial judge rejected the contention that Hore-Lacy created a specific defence, concluding that it established a principle "relating to the proper manner of pleading the defence of justification at common law." [233] The judge further noted that the principle accepted in Hore-Lacy arose in response to a complaint by the plaintiff that the defendants asserted that the matter complained of did not mean what the plaintiff said it meant, but would not specify what they said it meant, which they further alleged was true. [234] By contrast, the present case involved no lack of procedural fairness to the plaintiff, requiring further pleading by the defendant but rather a complaint by the plaintiff that the pleading of alternative imputations was embarrassing and likely to give rise to confusion at the trial. [235]
3. The primary judge formulated the question to be determined in a number of ways at a reasonably high level of generality. That was done, at least in part, because there were other more specific problems identified by the plaintiff, namely that the defendants had not attempted to specify the imputations to which the alternative imputations related (and to which they were said to be substantially similar) [236] and that they may indeed have been so clearly different in substance that they should not be left to the jury in any event. [237]
4. Putting those particular issues to one side, the primary judge identified "the question of principle" as "whether the approach approved in Hore-Lacy should have any operation in New South Wales." [238] Responding to that question, she concluded that "the decision in Hore-Lacy has no work to do in New South Wales having regard to the law and practice in this State." [239]
5. Stating the issue in those terms, it was perhaps inevitable that the defendants would submit that a single judge could not and should not decline to follow intermediate appellate court authority from another State and that she was bound by statements of principle in this Court which approved that authority.

(a) application of principle

1. It is commonplace for lawyers, especially those operating regularly in specialist areas, to refer to legal principles by the names of cases which are thought to establish them. At least where the precise scope and application of a principle is in question, that practice may lead to error. If the question had been more precisely defined it would have been apparent, as indeed it was from the primary judge's own reasoning, that a condition for the engagement of the principle was not to be found in New South Wales. Under the UCPR, the plaintiff was required to specify each imputation on which he relied but could not allege two imputations which did not differ in substance. While the jury could travel beyond a strict reading of the plaintiff's pleading, the jury could not be invited to decide any aspect of the case on a basis that did not conform in substance to the meanings pleaded. That was inconsistent with the premise on which the decision in Hore-Lacy was founded.
2. Counsel for the plaintiff made some play in this Court on the fact that he had invited the defendants to formulate the question encapsulating their imputations which they would seek to leave to the jury. This, he submitted, they had palpably failed to do. The position of the defendants appeared to be as follows: we have sought to establish that imputation X as pleaded by the plaintiff was substantially true; if we have failed in that, we nevertheless say that imputation Y, which is not substantially different from imputation X, is substantially true. However, a jury which, as the primary judge noted, will be asked to decide first whether the plaintiff's imputations, or imputations which are not substantially different, are conveyed and, if so, are defamatory, would inevitably be puzzled by a question in the form set out in the last sentence. As explained by the trial judge: [240] "Upon analysis, having regard to the form of question posed in respect of the plaintiff's meanings (and the consequent constraint on the plaintiff to be bound in substance to those meanings), the defendants' reliance upon alternative meanings makes no sense."
3. It follows that the primary judge was not bound to apply Hore-Lacy, not because Hore-Lacy was in any sense wrong, but because the principle it established, once identified by the reference to the condition of its engagement, was not engaged, given the practice and procedures in this State.

(b) whether binding authority to the contrary

1. The primary judge was clearly concerned that, even if there were no strictly binding authority to the contrary, the conclusion she had reached was inconsistent with dicta in judgments in this Court and in other jurisdictions. However, her concern may be sourced, at least in part, to a second aspect of the manner in which the questions were stated. The principle she identified concerned the manner of pleading "the defence of justification at common law". [241] That concern extended to the application of the principle "in the context of uniform national law." However, that requires attention to what are the limits of precise uniformity. If the procedure for pleading varies, there may be a lack of uniformity in outcomes.
2. The first case, chronologically, referred to by the primary judge was John Fairfax Publications Pty Ltd v Jones. [242] This case is of little relevance. It was primarily concerned with a defence of contextual truth and whether the imputations pleaded by the defendant were substantially different, as they were required to be, from those pleaded by the plaintiff. So far as interstate defences were concerned, Hodgson JA referred to Polly Peck as authority for two broad propositions: [243] "First, where the plaintiff selects words from the defendant's publications and pleads that they have a certain meaning or meanings, the defendant can defend the case on the basis that, in their context, the words bear a different meaning and that in that meaning the words are true. The second proposition is that, where a plaintiff selects words from a the defendant's publication and alleges that they bear a particular meaning, the defendant can defend on the basis that, even accepting that in their context the words selected by the plaintiff do bear that meaning, they are an inseverable part of an overall defamatory allegation contained in the whole publication, which has a sting common to all the allegations; and the defendant is then entitled to justify that sting, as distinct from the particular component allegation selected by the plaintiff."
3. Hodgson JA noted that the status of those propositions in Australia was "unclear", referring to Chakravarti, Hore-Lacy and other authority. He did not find it necessary to decide whether the critical second proposition derived from Polly Peck was good law in Australia or whether it could apply to the case. [244] The majority, Spigelman CJ and Ipp JA, did not separately address that issue.
4. The second case referred to by the primary judge was John Fairfax Publications Pty Ltd v Zunter. [245] This was another case in a line of authorities dealing primarily with a defence of contextual truth under the 1974 Act. With respect to publications in other jurisdictions, the defendant, relying on Polly Peck, alleged a single imputation which was said to be not separate and distinct from the plaintiff's imputations and true in substance. [246] Handley JA (with whom Spigelman CJ and McColl JA agreed) stated: [247] "There must be a real doubt as to whether that imputation could answer either of those pleaded by the plaintiff because it is comprised within them and is narrower. However there is no need to consider this defence in detail because at the present time the common law of Australia (John Pfeiffer Pty Ltd v Rogerson …) does not recognise it. It was rejected in Chakravarti, [248] … in dicta which did not receive the express endorsement of the other members of the Court. However those dicta have been followed by intermediate appellate courts in Victoria (… Hore-Lacy …), Queensland (Robinson v Laws [249] ), Western Australia (Nationwide News Pty Ltd v Moodie [250] ), and South Australia (Advertiser-News Weekend Publishing Co Ltd v Manock [251] ). This Court should follow this line of authority and it would be inappropriate for us to re-examine the question. The Judge rightly rejected this defence."
5. This inconclusive statement took the matter no further.
6. The third case was John Fairfax Publications Pty Ltd v Hitchcock. [252] The critical passage appeared under the heading "Polly Peck" and related to a finding by the primary judge that the publisher's "inter-state common law defences should be struck out because they sought to justify the matter complained of by pleading the same imputations as were relied on for the purposes of the defence of contextual truth for the purposes of s 16 of the Defamation Act 1974." [253] This issue did not require extended treatment: as the Court noted, a defendant could plead an imputation as part of a defence of contextual truth if it were substantially different from the plaintiff's imputations; the possibility of pleading imputations in support of a defence of truth in accordance with Hore-Lacy involved an imputation not substantially different from the plaintiff's imputations. The matter had been correctly identified and dealt with by the trial judge (Nicholas J) and the challenge was dismissed. [254] Accepting that a defence available under the general law could operate with respect to publication in a jurisdiction not governed by the 1974 Act, there was, nevertheless, no specific consideration of whether practice and procedure relating to pleading in New South Wales was to be determined according to New South Wales law or law of the other jurisdiction.
7. Hitchcock was handed down one day after Manock in the High Court and, understandably, made no reference to it. Nevertheless, for the reasons indicated above, the support given by the judgment of a majority in Manock to the statement of Brennan CJ and McHugh J in Chakravarti requires that this Court accept the authoritative weight of that statement.
8. Although the reasoning of McColl JA in Hitchcock contained a helpful summary of the authorities in other States, there was no occasion to consider whether those authorities had application in New South Wales. It has not been doubted that, under the 1974 Act, the pleading of imputations by defendants to establish their truth was not appropriate. The authority in support of that proposition was discussed by McColl JA in the next case referred to by the primary judge, namely Fairfax Media Publications Pty Ltd v Kermode. [255] Like Hitchcock, Kermode was ultimately concerned with pleading imputations for the purposes of a defence of contextual truth, albeit pursuant to s 26 of the 2005 Act. Although there was some discussion of principles relating to the defence of truth under the general law, the case turned upon an analysis of s 26. [256]
9. The most recent decision of this Court relied upon by the appellant was Snedden v Nationwide News Pty Ltd. [257] The article in issue was published before the commencement of the 2005 Act and, accordingly, the proceedings were governed by the 1974 Act. The only part of the judgment relevant for present purposes was that dealing with "the defence of justification at common law - in relation to States and Territories outside NSW." This discussion encompassed both contextual truth (which was not available outside New South Wales and Tasmania) and the defence of truth under the general law. Noting that "the 'Polly Peck' defence is not available in any Australian jurisdiction" [258] McClellan CJ at CL nevertheless considered what was described as "a variant of the Polly Peck defence, termed the ' [sic] defence". [259] The judgment appeared to turn on a criticism of the trial judge for allowing the defendant to plead an imputation "which did not differ in substance from another [plaintiff's] imputation." [260] That was not properly a basis for a criticism of a "Hore-Lacy" imputation and hence this aspect of the appeal was dismissed. Again, it appears that terminology describing a form of pleading as a particular defence available in a common law jurisdiction was accepted without consideration of its appropriateness. That omission was understandable; nothing would have turned on such a discussion.
10. Nothing in these authorities purported to address the issues which were raised before the primary judge. Each authority was relevantly directed to another issue, namely a defence of contextual truth in New South Wales or the availability of truth under the general law as a defence in another jurisdiction. None focused upon, because none needed to focus upon, the question whether Hore-Lacy created a new defence available under the general law separate from truth under the general law, nor as to how it should be pleaded in this State. There is an easy elision between discussion of a defence and discussion of pleading a defence. Had any of the cases referred to above been directed to the difference between substance and procedure for the purposes of choice of law rules, that elision would have become significant. However, none was concerned with that distinction and the elision was immaterial.
11. Two further points follow from this conclusion. First, once the issue was raised, it was necessary for the primary judge to deal with the question of whether Hore-Lacy identified a defence or a manner of pleading the conventional defence. She understood it to fit the latter category (namely, a permissible manner of pleading) which, in choice of law terms, must be governed by the local law. Secondly, applying this jurisdiction's rules with respect to pleading, the primary judge concluded, correctly, that nothing conferred on a defendant an unqualified entitlement to plead imputations which it claimed to be true. In that circumstance, it was open to the primary judge to conclude that the pleading had a tendency to cause prejudice, embarrassment or delay in the proceedings and to strike it out pursuant to r 14.28 of the UCPR.
12. The submissions in this Court were directed to the question whether, because the reasoning in Hore-Lacy provided a specific defence, the defendants were entitled to plead that defence. Once that was rejected, no ground was identified which would demonstrate error in the exercise of discretion in making the impugned order.

(c) other authorities

1. Decisions to similar effect to Hore-Lacy in other jurisdictions, even if found in judgments of intermediate courts of appeal, did not bind the primary judge to let the pleading stand. While it is true that a single judge should follow the decision of an intermediate court of appeal in respect of the operation of uniform legislation, unless convinced it is "plainly wrong", [261] that principle should not be taken beyond its proper limits. No case dealt with the distinction between the defence and the manner of pleading the defence under the general law; no case dealt with the practice and procedure for pleading justification in New South Wales.
2. There remains an issue which was not squarely addressed in this Court because it did not arise, namely the possibility that even where the plaintiff pleads imputations (as indeed he or she must) a defendant can nevertheless demonstrate that the publication, taken as a whole, was true. That is in substance the position expressly established by s 8(3) of the Defamation Act 1992 (NZ) considered by the New Zealand Court of Appeal in Television New Zealand Ltd v Haines. [262] That, like the present case, was an appeal from the decision of a trial judge refusing to permit the defendant (the appellant publisher) from pleading and justifying its own imputations. The judgment of the Court, delivered by Robertson J, upheld the approach of the trial judge in the following passages: "[57] If the plaintiff succeeds on one or more specified imputations, then a defendant may defend itself, in terms of s 8(2)(a), by satisfying the trier of fact that the imputation is true or not materially different from the truth. It is insufficient for a defendant at this point to suggest that, even though the words are capable of bearing the defamatory meaning complained of, they also bear a lesser meaning, which may be proven to be true. This is for two reasons. [58] First, proving the truth of a lesser meaning would not have an effect on the defamatory meaning pleaded by the plaintiff, and the defamatory meaning would remain undefended. As a matter of logic, a defence must always be a defence to something. In cases of defamation that something is the defamatory imputations pleaded by the plaintiff. [59] Secondly, a parallel inquiry into something about which the plaintiff is not complaining is unhelpful and potentially confusing for the jury. [60] In his written submissions, Mr Akel contended: 'It is wrong that a defamation case should be defined solely by a plaintiff when the publication is there for all to see. Requiring rigid adherence to the plaintiff's pleaded imputations is to permit form to triumph over substance.' [61] There is a danger of becoming enmeshed in the nuances and semantic distinctions which have bedevilled this subject and for minute case analysis to be permitted to dominate. Rather, it is prudent to consider the conceptual framework which applies in all litigation. … [67] We note that TVNZ still has the ability under s 8(3)(b) to mount as a defence the argument that the broadcast as a whole was true."
3. That reasoning, although undertaken in a context in which the Court had previously (and prior to the statutory reforms) declined to follow Polly Peck and Lucas-Box, [263] involved an application of the fundamental principle identified by Brennan CJ and McHugh J in Chakravarti [264] and approved in Manock. That reasoning conforms to that adopted by the primary judge, finds support in the High Court and is persuasive.

(d) where plaintiff does not plead imputations

1. One circumstance in which a common law defence of justification may be available is where the plaintiff has not identified particular defamatory imputations. Whether that course is permissible in this State and whether, if the plaintiff does not plead imputations, s 25 is not engaged are questions which need not be determined in this case. Dr Bateman did plead specific imputations and there is no dispute that s 25 is engaged.

Conclusions

1. Although the application before this Court is for leave to appeal from an interlocutory decision on a question of pleading, the foregoing discussion demonstrates that the issues raised by the defendants involve matters of principle with potential significance to pleadings in defamation cases in this State which tended to arise only incidentally prior to the enactment of the 2005 Act. Accordingly, the defendants should have leave to appeal. Nevertheless, for the reasons explained above, the appeal should be dismissed.
2. The Court should make the following orders: (1) Grant the applicants leave to appeal from the orders made by McCallum J in the Common Law Division on 9 October 2014. (2) Direct that the applicants file a notice of appeal in the form of the draft notice of appeal contained in the white book within seven days. (3) Dismiss the appeal. (4) Order the applicants to pay the respondent's costs of the proceedings in this Court.
3. MACFARLAN JA: I agree with Basten JA that, essentially for the reasons that his Honour gives, leave to appeal should be granted but the appeal should be dismissed.
4. As is apparent from his Honour's judgment, the decision in Hore-Lacy was founded on the proposition that a plaintiff in defamation proceedings is entitled to rely upon unpleaded imputations so long as they do not differ in substance from those pleaded in his or her statement of claim ([190]-[195] above and, in particular, [2], [5], [23], [46] and [69] of Hore-Lacy). This proposition is unsound in the context of NSW practice as rule 14.30(2)(a) of the Uniform Civil Procedure Rules (NSW) ("UCPR") requires a statement of claim to "specify each imputation on which the plaintiff relies". That a degree of latitude is allowed to the plaintiff in the construction of his or her pleading of imputations is reflected in rule 14.30(3) which precludes a plaintiff from pleading imputations not differing in substance from each other. Those pleaded are thus taken to include others which are to substantially the same effect and the plaintiff is not confined to the precise terms of the imputations pleaded. This was the view that this Court took in Morosi v Mirror Newspapers Ltd in relation to proceedings under the 1974 Act (at 771C-D; see [169] above). It reflects the appropriate, commonsense approach to the construction of pleadings generally: rather than adopting a technical approach to their construction, regard should be had to the substance of the matters pleaded.
5. This latitude does not detract from the basic requirement of the UCPR that the imputations upon which a plaintiff relies are to be pleaded. Once that is acknowledged, the rationale given in Hore-Lacy for allowing a defendant to plead imputations alleged to be not substantially different from the plaintiff's pleaded imputations disappears. That rationale is that if the plaintiff can succeed on unpleaded imputations, the defendant should be able to plead and justify them.
6. Rule 14.31(2) of the UCPR requires defences of justification and contextual truth to be related to particular imputations in the statement of claim and rule 15.21(1) requires a defence to provide particulars of "the facts, matters and circumstances on which the defendant relies" to establish truth and contextual truth defences. As proof of substantial truth suffices for a defence of justification, and for its pleading (see section 25 of the 2005 Act and rule 14.32(2)), full compliance with this obligation to provide particulars should make apparent any respect in which the defendant's justification defence will be directed, not at a plaintiff's imputation as precisely pleaded, but at an imputation to substantially the same effect. The defendant should ensure that its particulars achieve this so that it complies with its obligation under rule 15.1(1) to provide such particulars "as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet".
7. The defence filed in the present case did not conform to these principles as it pleaded, as a defence separate from the defences of justification under section 25 of the 2005 Act and the common law, and of contextual truth under section 26 of the 2005 Act, a defence described as "COMMON LAW - HORE-LACY". This defence pleaded imputations alleged not to differ in substance from those pleaded by the first plaintiff and asserted that they were substantially true. The primary judge was thus correct to strike the defence out.
8. Apart from its inconsistency with the UCPR, such a defence is liable to interfere with the orderly disposition of the proceedings by encouraging defendants to take too broad a view of what constitutes an imputation not differing in substance from one pleaded by the plaintiff. If alternative imputations sought to be relied upon by a defendant are truly to the same effect as those pleaded by the plaintiff, the defendant's rights will be adequately protected by its ability to submit to the jury in address that the evidence establishes the substantial truth of the plaintiff's imputations. The plaintiff will have been put on notice of the defendant's case by the defendant's compliance with its obligation under r 15.21(1) to provide particulars of the facts, matters and circumstances upon which it relies in support of its plea of justification. There is no warrant for complicating the proceedings by permitting the defendant to plead such alternative imputations separately, and requiring the jury to consider them separately from those upon which the plaintiff relies. The defendant's rights are of course further protected by its ability to rely upon a defence of contextual truth where imputations differing in substance from those pleaded by the plaintiff arise out of the publication and it asserts that they are substantially true (see section 26 of the 2005 Act).

Endnotes

1. Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 (the "primary judgment").
2. See Clarke v New South Wales [2015] NSWCA 27 (at [18] - [21]).
3. Primary judgment (at [1]). Idameneo (No 123) Pty Ltd, a company apparently associated with the first respondent, also brought proceedings in its case to recover damages for injurious falsehood in relation to the matters complained of, presumably because it did not qualify as an "excluded corporation" for the purposes of s 9 of the 2005 Act.
4. See David Syme & Co Limited v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 ("Hore-Lacy"). In these reasons I refer to "nuance imputations" or "nuance meanings" to refer to those meanings Hore-Lacy established a defendant could plead at common law in Australia at the time the 2005 Act (and like legislation in all other States and Territories) was enacted: see Fairfax Media Publications Pty Ltd v Kermode ([2011] NSWCA 174; (2011) 81 NSWLR 157 ("Kermode") (at 59).
5. Primary judgment (at [25]).
6. Primary judgment (at [33] - [34]).
7. Primary judgment (at [5] - [12]).
8. Primary judgment (at [7]).
9. Primary judgment (at [9] - [11]); referring to Chakravarti v Advertiser Newspapers [1998] HCA 37; (1998) 193 CLR 519 ("Chakravarti") (at [53] - [58]) per Gaudron and Gummow JJ.
10. Primary judgment (at [13]).
11. Primary judgment (at [14]).
12. Primary judgment (at [15]).
13. Primary judgment (at [16] - [22]).
14. Primary judgment (at [23]; [41]). The first respondent also contended the Alternative Meanings did not conform to Hore-Lacy as they differed in substance from his imputations, however the primary judge determined there was no utility in deciding that issue (primary judgment (at [31])), no doubt as, in due course, her Honour struck out the Alterative Meanings.
15. Primary judgment (at [28] - [29]).
16. Primary judgment (at [30]); see Hore-Lacy (at [70]).
17. Primary judgment (at [30]).
18. Primary judgment (at [34]).
19. Primary judgment (at [35] - [39]).
20. Primary judgment (at [40]).
21. Primary judgment (at [41]).
22. [1998] HCA 37; (1998) 193 CLR 519 ("Chakravarti").
23. Chakravarti (at [8]); see primary judgment (at [42]).
24. Primary judgment (at [42]).
25. Primary judgment (at [45] - [46]).
26. Primary judgment (at [47]).
27. Primary judgment (at [48]).
28. Primary judgment (at [49]).
29. Primary judgment (at [50]).
30. Primary judgment (at [51] - [53]), referring to John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 ("Hitchcock") (at [21], [40] and [233]); John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227; Kermode; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262; Hore-Lacy; Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 ("Moodie"); Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387; see also the authorities to which Levine J referred in Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028; (2002) 56 NSWLR 89 ("Whelan") (at [43]).
31. Referring to Kermode (at [59] and [86]); primary judgment (at [55]).
32. Primary judgment (at [56] - [57]).
33. [2014] VSCA 287 ("Setka CA").
34. See Setka CA (at [110] - [116], [125]).
35. UCPR 14.30(2), 14.31(2) and 14.32(2).
36. UCPR 15.21(1)(c).
37. Appellants' Consolidated Summary of Argument and Submissions on Appeal ("AWS"), 31 March 2015 (at [15]).
38. RWS (at [4(e)]).
39. AWS (at [16]).
40. See Setka CA (at [111]).
41. See Setka CA (at [121]).
42. See Setka CA (at [115] - [125]).
43. See Setka CA (at [131] - [132]); see also (at [44]).
44. (at [132], [301]).
45. Whelan (at [53]); John Pfeiffer Pty Ltd v Rogerson [2000] HCA; (2000) 203 CLR 503 (at 99 - 100, 102).
46. [1986] 1 All ER 177; [1986] 1 WLR 147 ("Lucas-Box").
47. Respondents' Submissions, 14 April 2015 ("RWS") (at [4(a)]).
48. RWS (at [4(b)]).
49. RWS (at [4(c)]).
50. Chakravarti (at [8]).
51. See primary judgment (at [47]).
52. RWS (at [4(d)]).
53. Kermode (at [31]).
54. Kermode (at [59]).
55. Kermode (at [6]) per McColl JA (Beazley and Giles JJA agreeing).
56. Lucas-Box All ER (at 182); WLR (at 152 - 153).
57. Lucas-Box All ER (at 182); WLR (at 151); see generally Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 ("Popovic") (at [299] - [324]) per Gillard AJA (Winneke ACJ and Warren AJA (as the Chief Justice then was) agreeing); special leave refused: Herald & Weekly Times Ltd v Popovic [2004] HCATrans 180.
58. Popovic (at [303]; 306).
59. Lucas-Box All ER (at 182); WLR (at 152).
60. Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 ("Morris") (at 264) per Hunt J (the reference to the "plaintiff" at the outset of this sentence should clearly have been to the "defendant"); NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (1989) A Def R 50-055 (at 40,371) per Hunt J.
61. Lucas-Box All ER (at 183); WLR (at 153).
62. All ER (at 181); WLR (at 151) per Ackner LJ; see also Chakravarti (at [18]) per Brennan CJ and McHugh J; (at [56] - [58]) per Gaudron and Gummow JJ.
63. [1986] QB 1000 ("Polly Peck").
64. Polly Peck (at 1032 - 1033) per O'Connor LJ, Goff and Nourse LLJ agreeing.
65. Chakravarti (at [6]).
66. Chakravarti (at [8]).
67. Chakravarti (at [52]).
68. Hore-Lacy (at [52]) per Charles JA; see Chakravarti (at [21]) per Brennan CJ and McHugh J; (at [60]) per Gaudron and Gummow JJ; (at 139) per Kirby J.
69. Kermode (at [55] - [56]).
70. Kermode (at [56]) referring to Hore-Lacy (at [52] - [54], [58] - [59]); per Ormiston JA (at [19] -[22]).
71. Kermode (at [56]).
72. Hore-Lacy (at [53]); see also Ormiston JA (at [21] - [22]); Hitchcock (at [213] - [236]) per McColl JA (Ipp JA (at [21]) and Tobias JA (at [40]) agreeing).
73. Kermode (at [58]).
74. See [60] above.
75. Hore-Lacy (at [58] ] - [59]).
76. Hore-Lacy (at [24]).
77. Hore-Lacy (at [5]); see also (at [20] - [21]).
78. Hore-Lacy (at [5]); see also Gumina v Williams (No 2) (1990) 3 WAR 351 (at 355) per Malcolm CJ; (at 367) per Seaman J (with whom Malcolm CJ (his Honour adding some observations) and Pidgeon J agreed); Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 ("Moodie") (at [9]; [13]) per Anderson J; (at [60]) per Steytler JA (with whom McClure JA agreed); Elliott (at [20]) per Steytler P.
79. Hore-Lacy (at [71]).
80. National Mutual Life Association of Australasia v GTV Corp Pty Ltd [1989] VicRp 66; [1989] VR 747 ("GTV") (at 768) per Fullagar, Hampel and McDonald JJ; Gaudron and Gummow JJ referred to the second passage with approval in Chakravarti (at [58]).
81. GTV (at 768); referred to with approval by Malcolm CJ in Gumina v Williams (No 2) (1996) 3 WAR 351 (at 355); see also Moodie (at [41]) per Steytler JA (McClure JA agreeing); Popovic (at [308]).
82. [2005] NSWSC 1204 ("Woodham") (at [11] - [12]).
83. Woodham (at [11] - [12]); see also Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 (at 676) per Hunt J.
84. Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 771).
85. Morris (at 263 - 264).
86. (at [31] - [40]).
87. Kermode (at [31] - [32]).
88. Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 (at [135]); see also CAL No 14 Pty Ltd v Motor Accidents Insurance Board; CAL No 14 Pty Ltd v Scott [2009] HCA 47; (2009) 239 CLR 390 (at [50]) per Gummow, Heydon and Crennan JJ (French CJ and Hayne J agreeing).
89. Marshall v Director-General, Department of Transport [2001] HCA 37; (2001) 205 CLR 603 ("Marshall") (at [62]) per McHugh J; app Walker Corp Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; (2008) 233 CLR 259 (at [31]).
90. Marshall (at [62]).
91. Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 (at [289]) per Allsop P, Beazley and Basten JJA.
92. See Kermode (at [75]ff) as to the sea-change the 2005 Act wrought to defamation law in this State.
93. In Madden v Seafolly Pty Ltd [2014] FCAFC 30, a case which applied the Defamation Act 2005 (Vic), the respondent relied on what Rares and Robertson JJ described (at [121]) as "the common law variant of the defence of justification … where both imputations have a common sting in the way developed by the decisions in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 and David Syme & Co Ltd v Hore-Lacy". It was common ground at trial and on appeal that the respondent could rely on this defence. Their Honours commented that "its legal foundation need not be further considered"; see also Kunoth-Monks v Healy & Anor [2013] NTSC 74; Cripps & Anor v Vakras & Anor [2012] VSC 400; Trkulja v Yahoo! Inc & Anor [2010] VSC 215; Lucas-Box pleadings are clearly part of the defamation landscape in England: see Professor Alistair Mullis and Richard Parkes QC, Gatley on Libel and Slander, 12th ed, (2013) Sweet & Maxwell (at [11.14]).
94. Setka v Abbott & Anor (No 2) [2013] VSC 726 ("Setka (No 2)").
95. As will be apparent from what follows, the reference to Polly Peck imputations and/or defences was treated as a reference to a pleading of a justification defence sanctioned in Hore-Lacy: see Setka (No 2) (at [19]).
96. Setka (No 2) (at [5]).
97. Setka (No 2) (at [11]).
98. Setka (No 2) (at [48]).
99. [2010] VSC 127; (2010) 27 VR 140 (at [13]).
100. [2010] VSC 155; (2010) 27 VR 171 (at [16]).
101. Setka (No 2) (at [31]). Note, his Honour also observed (at [34] and see footnote [26]) that juries were asked to answer questions in relation to the pleaded imputations "because under s 22 of the [Victorian] Act damages are now a matter for the judge, and in order to assess damages one must know what imputations have been found by the jury to have been conveyed".
102. Setka (No 2) (at [37]).
103. Setka CA (at [76(2)]).
104. Setka CA (at [36] - [37]).
105. Setka CA (at [301] - [312]).
106. Setka CA (at [42] - [44]).
107. Setka CA (at [56]).
108. Setka CA (at [93]; see also [112] - [114]; [125]).
109. Setka CA (at [114]; see s 6(2), Victorian Act and generally [110] - [116]).
110. See Chakravarti (at [21]) per Brennan CJ and McHugh J; (at [60]) per Gaudron and Gummow JJ; (at 139) per Kirby J.
111. Setka CA (at [95], [96], [102], [103]; see also at [48]).
112. Setka CA (at [107]).
113. Setka CA (at [108]).
114. Setka CA (at [140]).
115. Setka CA (at [131]).
116. Setka CA (at [132]).
117. Setka CA (at [133]).
118. Setka CA (at [139]) referring to the primary judgment in this case (at [40]).
119. Setka CA (at [66]). I note, however, that in French v Herald and Weekly Times Pty Ltd, to which Beach JA referred in Setka (No 2) (at [31]), his Honour acceded to the plaintiff's application that a defamation case in which the defendant pleaded alternative meanings to those pleaded by the plaintiff should proceed as a judge-alone trial. The reason for his Honour's decision appears to have lain in his conclusion (at [13] - [17]) that the questions the jury would have to be asked in the light of what he described as the Polly Peck defences, as well as a plea in mitigation, gave rise to "serious and difficult complexities". There is no doubt that a case involving Lucas-Box/Hore-Lacy alternative meanings requires a "clear, detailed and careful summing up for the assistance of the jury": see Sutcliffe v Pessdram Ltd [1991] 1 QB 153 (at 169) per Lord Donaldson of Lymington MR (Nourse LJ agreeing). That fact of itself cannot be a reason for concluding a defendant cannot plead nuance imputations.
120. Setka CA (at [302]).
121. Setka CA (at [305] - [311]).
122. Setka CA (at [312]).
123. White v Overland [2001] FCA 1333 (at [4]) per Allsop J; see also AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited (No 2) [2014] NSWCA 238 (at [30]) per Hoeben JA (Barrett and Ward JJA agreeing).
124. 2005 Act, s 22. Despite the uniform defamation regime, neither South Australia nor the Australian Capital Territory permit election for trial by jury in defamation proceedings, while the Northern Territory expressly prohibits trial by jury in such cases: Juries Act NT (1980), s 6A. Further, although election for trial by jury in defamation proceedings is available under the Defamation Act (WA) 2005 and in the Federal Court (see Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148 (at [25] - [26]) per Rares J), juries are rarely used in either jurisdiction: Patrick George, Defamation Law in Australia (LexisNexis, 2006) (at [17.1]).
125. Chakravarti (at [8]); a concern consistent with their Honours' observation (at [18]) that "It would be an invitation to return to the days of 'trial by ambush' in defamation actions if courts did anything which might discourage plaintiffs from pleading such innuendoes."
126. Chakravarti (at [56]).
127. Setka (No 2) (at [37]), see above (at [85]).
128. Hitchcock (at [233]) per McColl JA (Ipp JA agreeing (at [21]); Tobias JA agreeing (at [40]).
129. Kermode (at 86).
130. See [69] above.
131. Section 8, 2005 Act; Kermode (at [75]).
132. Kermode (at [37]).
133. See the reference to "the defamatory imputations … of which the plaintiff complains", in s 25 (justification) and s 26 (contextual truth), even though those defences are "to the publication of defamatory matter".
134. See [59] above.
135. Primary judgment (at [13]).
136. See primary judgment (at [40]); see also Setka CA (at [139]). Whether, of course, they were correct in contending that the Alternative Meanings were not substantially different from the first respondent's meanings is a matter yet to be determined prior to the trial.
137. Primary judgment (at [40]).
138. Primary judgment (at [41]).
139. Hore-Lacy (at [67]) per Callaway JA; see also Setka CA (at [131]).
140. Kermode (at [58]).
141. Primary judgment (at [55]); see Kermode (at [59]), cf under the 2005 Act (at 86).
142. Kermode (at 86).
143. Kermode (at [78]).
144. Primary judgment (at [47]).
145. A concession compelled by Brennan CJ and McHugh J's acceptance that a defendant could plead a meaning to avoid the plaintiff being taken by surprise: Chakravarti (at [8]).
146. Setka (No 2) (at [31]).
147. Setka CA (at [66]). It is always open to a party to apply for a jury to be dispensed with as occurred in French v Herald and Weekly Times Pty Ltd (see footnote 119); s 21(3) 2005 Act; see generally Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246; (2011) 81 NSWLR 315.
148. See the discussion in Kermode (at [31] - [40]); Setka CA (at [132], [301]).
149. 2005 Act, s 6(3), [78] above.
150. 2005 Act, s 8.
151. Chakravarti (at 139.
152. [2014] NSWSC 1380.
153. Cf TCN Channel Nine Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 693D, dealing with the equivalent defence in the Defamation Act 1974 (NSW).
154. [2000] 1 VR 667.
155. [2014] VSCA 287.
156. H Maine, Dissertations on Early Law and Custom (John Murray, 1883) at 389.
157. [2000] HCA 36; 203 CLR 503.
158. John Pfeiffer at [102].
159. John Pfeiffer at [99].
160. Defamation Act 2005, s 11(2).
161. Section 4 Definitions, general law.
162. Slander & Libel Act 1847, 11 Vic c 13, also known as the Injuries to Character Act 1847.
163. Section 6(1).
164. Section 7(1).
165. For a recent extra-judicial discussion of these issues, see M Leeming, "Theories and Principles Underlying the Development of the Common Law - The Statutory Elephant in the Room" (2013) 36(3) UNSWLJ 1002.
166. D Rolph, "A critique of the national, uniform defamation laws" (2008) 16 Torts LJ 207 at 208, fn 1.
167. (1969) 122 CLR 444.
168. At 462.
169. (1964) 111 CLR 665 at 677.
170. Western Australia v The Commonwealth (1995) 183 CLR 373 at 485-486.
171. At 485.
172. Ibid.
173. Ibid at 486.
174. Cf McHugh J in Malika Holdings Pty Ltd v Stretton [2001] HCA 14; 204 CLR 290 at [30].
175. Interpretation Act, s 28.
176. Interpretation Act, s 30 (1)(a) and (b).
177. John Pfeiffer at [15].
178. Ibid at [16]; see also Sweedman v Transport Accident Commission [2006] HCA 8; 226 CLR 362 at [20] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
179. Native Title Act Case at 487.
180. UCPR, r 14.30(2)(a).
181. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 September 2005, p 17639.
182. Section 16.
183. See Patrick George, pp 56-57.
184. See, eg, Alex C Castles, "The Transgressions of the 'Satirist' and Uniform Defamation Laws in Australia" (1992) 66 ALJ 167; D Rolph, "The Sources of Defamation Law" in JT Gleeson, JA Watson and E Peden, eds, Historical Foundations of Australian Law, Vol II Federation Press, 2013), Ch 5; Patrick George, pp xiv-xvii (the Hon R McColl) and pp 53-57.
185. The 2005 Act, ss 8, 25 and 26.
186. Rule 14.30(3).
187. Civil Procedure Act 2005 (NSW), s 56.
188. Rule 14.31(2).
189. (1990) 21 NSWLR 135 at 137B.
190. (1988) 12 NSWLR 148 at 155.
191. Drummoyne Municipal Council at 138E.
192. [1977] 2 NSWLR 749 (Moffat P, Hope and Reynolds JJA).
193. Morosi at 771C-D.
194. [2002] NSWCA 41; 54 NSWLR 165.
195. 245 US 418 (1918) at 425.
196. [1964] AC 234.
197. [1968] 2 QB 157.
198. At 168F-169C.
199. At 176F.
200. At 177C.
201. At 185B.
202. At 185G.
203. [1986] QB 1000.
204. [1986] 1 WLR 147.
205. Polly Peck at 1032B.
206. At 1032-1033.
207. At 152H (judgment of the Court comprised of, Ackner, Mustill and Nourse LJJ, delivered by Ackner LJ).
208. [1998] HCA 37; 193 CLR 519.
209. Chakravarti at [6].
210. Chakravarti at [8].
211. Chakravarti at [19].
212. Chakravarti at [52].
213. Chakravarti at [56].
214. Chakravarti at [139].
215. See principle 4 at pp 580-581.
216. Patrick George, Defamation Law in Australia, pp 138.
217. [1989] VR 747 at 768.
218. Hore-Lacy at [46].
219. Setka at [8].
220. Setka at [9].
221. [2007] HCA 60; 232 CLR 245.
222. Setka at fn 143, being an extract from the trial judgment, referring to Kirby J in Manock at [103]-[105].
223. Manock at [77].
224. At [79].
225. At [79, fn 154].
226. At [81] (footnotes omitted).
227. At [83].
228. [1986] AC 350 at 365 (Lords Keith of Kinkel, Elwyn-Jones, Roskill and Griffiths).
229. Chakravarti at [8].
230. Judgment at [36]-[38].
231. Judgment at [39].
232. Judgment at [49].
233. Judgment at [41].
234. Judgment at [45].
235. Judgment at [46], [47] and [49].
236. Judgment at [29].
237. Judgment at [31].
238. Judgment at [32].
239. Judgment at [50].
240. Judgment at [50].
241. Judgment at [39] and [41].
242. [2004] NSWCA 205 (Spigelman CJ, Hodgson and Ipp JJA).
243. At [80].
244. At [91].
245. [2006] NSWCA 227.
246. At [41].
247. At [42].
248. At 526-30 by Brennan CJ and McHugh J
249. [2003] 1 Qd R 81.
250. (2003) 28 WAR 314.
251. (2005) 91 SASR 206.
252. [2007] NSWCA 364; 70 NSWLR 484.
253. Hitchcock at [196] (McColl JA, Ipp and Tobias JJA agreeing).
254. Hitchcock at [236], [237] and [239].
255. [2011] NSWCA 174; 81 NSWLR 157 at [62]-[64].
256. Kermode at [76]-[85].
257. [2011] NSWCA 262 (McClellan CJ at CL, McColl and Macfarlan JJA agreeing).
258. At [152].
259. Snedden at [153], referring to the decision of Simpson J in Fawcett v John Fairfax Publications Pty Ltd [2008] NSWSC 139.
260. Snedden at [160].
261. Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492.
262. [2006] 2 NZLR 433.
263. Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234 (Cooke P, Richardson, McMullin, Somers and Bisson JJ), a judgment delivered by Cooke P.
264. See [29]-[31] and [63]-[64]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 June 2015