Fierravanti-Wells v Channel Seven Sydney Pty Ltd

The circumstances in which this application is made 6The defendants maintain their defence of justification under s 25, but must now withdraw a defence of contextual truth (which "pleaded back" the plaintiff's imputations) under s 26 Defamation Act 2005 (NSW), following the Court of Appeal's decision in Besser v Kermode [2011] NSWCA 174, handed down on 30 June 2011. 7The affidavit of Mr Lynch sets out his explanation for this late amendment as arising from the determination of two appeals, one of which was Besser v Kermode , and the other of which related to the mode of trial in these proceedings ( Channel Seven Sydney Pty Ltd v Fierravanti-Wells [2011] NSWCA 246). When the proceedings were relisted, they were given a hearing date almost immediately (namely 27 February 2012 as a 5-day jury trial). Mr Lynch then forwarded a copy of the proposed Amended Defence to the solicitors for the plaintiff on 25 November 2011. Due to a change of personnel in the plaintiff's solicitors' office, this letter was overlooked by the plaintiff until these proceedings were listed on 8 December 2011 by myself, for appropriate directions concerning the jury questions, after I was allocated this trial for hearing. 8The defendants' prior defence (containing pleas under ss 25 and 26) was filed on 10 June 2010. On 1 July 2010, the defendants were ordered to file submissions as to why the Court should not order that the proceedings be tried by a jury. An appeal from the judgment of Levy SC DCJ dated 9 July was allowed on 24 August 2011. In the interim, the Court of Appeal handed down Besser v Kermode [2011] NSWCA 174 on 30 June 2011; the defendant's plea of contextual truth to the plaintiff's imputations was no longer available as a result of this decision. The combined impact of these two appeals caused what Mr Sibtain called a "hiatus" in case management. 9An additional problem for the defendants was that prior to this hiatus, they had issued a subpoena (28 July 2010) to Senator Ludwig for certain documents. Mr Sibtain advised that when the hiatus period ended, and preparation for trial began, it was necessary to press for production of further documents, following which a second subpoena was served on 25 November 2011. 10In addition, according to the affidavit of Mr Lynch, the parties advised the court on 20 September 2011 that they would be seeking a 10-day hearing in July 2012, to allow time for preparation for hearing. However, on 2 November, the parties were given a hearing date of 27 February 2012, by reason of the Court of Appeal costs order, which the defendants sought to enforce against the plaintiff. This meant that all preparation for hearing needed to be completed in a much shorter timeframe than that contemplated by either party. 11The proposed amendments do not add a new defence, nor are they likely to cause the trial date to be vacated (cf Fierravanti-Wells v Nationwide News Pty Ltd [2011] NSWSC 1338). 12I am satisfied that the defendants have a satisfactory explanation for not bringing the application to amend prior to 25 November 2011. The parties to this litigation have been caught up in issues of considerable legal difficulty, in circumstances in which neither is to blame, and this has overshadowed case management of these proceedings.

The plaintiff's submissions 13The plaintiff's reasons for opposing leave to amend, set out in a brief outline provided to the court, are: (1) The proposed new imputation does not allege any act or condition by the plaintiff and is therefore not capable of being defamatory of her; the sting of the imputation is aimed at the study trip, not the plaintiff. (2) There are no particulars of truth to support the proposed new imputation. (3) The plaintiff's imputation (j) refers to the study trip being "one of three examples of dubious study trips" whereas the imputation proposed by the defendants refers only to "study trips" without limiting their number. In addition, the proposed new imputation is virtually identical to imputation (h) which has been previously struck out (albeit by reason of the vagueness of the term "contributed to"). It is submitted that the new imputation, which substitutes the words "prompted" to replace "contributed to", does not cure this defect. The new imputation also fails to be conveyed in that it still suggests the plaintiff's study trip was one of the causes of the review. (4) The plaintiff also raised an estoppel argument on the basis that an imputation to the same effect pleaded by the plaintiff was struck out (for reasons related to its form). (5) The plaintiff additionally states: "As a general submission the Plaintiff says that the common law of Australia does not recognise a nuance or shades of meaning defence. It follows that the Defendants' so called Common Law Truth imputation should not be recognised." The first four objections relate to the form, capacity and particulars for the imputation; the fifth objection, which challenges whether the plea can be raised at all, needs to be dealt with first.

Defences of justification and partial justification prior the enactment of uniform legislation 14Prior to the enactment of the Defamation Act 2005 (NSW), there was powerful authority in support of the plaintiff's contentions. The New South Wales Court of Appeal held in Fairfax Publications v Zunter [2006] NSWCA 227 (" Zunter ") that the "Polly Peck"( Polly Peck (Holdings) plc v Trelford [1986] QB 1000 CA) defence and its variants were not recognised by the common law of Australia. 15Handley JA went further, stating that a Polly Peck defence was not recognized "at the present time" by the common law in Australia (at [41] - [42], citing Chakravarti v Advertiser Newspapers Ltd (1988) 193 CLR 519 at 526-30): "[41] The appellant pleaded a defence in respect of publications in Victoria, South Australia, Western Australia, the Northern Territory and the Australian Capital Territory that was sanctioned by Polly Peck (Holdings) plc v Trelford [1986] QB 1000 CA. It was based on a single imputation that "the plaintiff carried out an illegal backburn in circumstances of extreme fire danger". The defence alleged that this was not separate and distinct from the plaintiff's imputations and was true in substance and fact. [42] 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 (2000) 203 CLR 503, 514) does not recognise it. It was rejected in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 526-30 by Brennan CJ and McHugh J, 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 ( David Syme& Co Ltd v Hore-Lacy [2000] 1 VR 654), Queensland ( Robinson v Laws [2003] 1 Qd R 81), Western Australia ( Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314), and South Australia ( Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206). 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." 16In Mahommed v Channel Seven Sydney Pty Ltd [2009] NSWSC 631 (" Mahommed ") at [239], Kirby J held that, consistent with Zunter, such a defence was not available in New South Wales under the 1974 Act. The Court of Appeal noted, during the appeal from this decision, that a submission that Zunter was wrongly decided (put formally before Kirby J) was not argued: Channel Seven Pty Ltd v Mahommed [2010] NSWCA 335 at [74]. 17This approach changed with the impact of the uniform defamation legislation. The reasons are explained by Professor Kenyon ("Perfecting Polly Peck: Defences of Truth and Opinion in Australian Defamation Law and Practice", (2007) University of Sydney Law Review 651). These reasons include that, for trials conducted in New South Wales, if such a defence had been pleaded to publications in common law states and territories in Australia, the split-trial s 7A process in New South Wales under s 9, Defamation Act 1974 would mean that the trial judge determining defences would have to overrule the earlier jury determination as to what defamatory imputations were actually conveyed. Professor Kenyon considers (at 665) that "it could have been better for the Court of Appeal [in Zunter ] simply to note that under the Defamation Act 1974 (NSW) the defence was bound to the jury finding on meaning in relation to all states and territories". 18What Professor Kenyon is explaining is that the jury finding on meaning prevented the pleading of this defence in states and territories outside New South Wales (which may mean that s 7A, in preventing the pleading of this defence in other jurisdictions, operated ultra vires). However, this means that the judgment in Snedden v Nationwide News Pty Ltd [2011] NSWCA 262, and the issues Mr Evatt say will be raised in the High Court leave to appeal application, have no bearing on the application in question. 19The Court of Appeal's change of approach concerning the availability of this defence in common law jurisdictions can be seen in John Fairfax Publications Pty Ltd v Hitchcock ( 2007) 70 NSWLR 484. The Court held that a defendant seeking to justify under the common law may only plead an imputation by way of defence to the plaintiff's imputation if that imputation does not differ in substance from the pleaded imputation, and is one which the plaintiff would be permitted to put to the jury on the state of the imputations the plaintiff pleaded. The Court (at [233]) rejected a submission that decisions endorsing Hore-Lacy were plainly wrong and should not be followed.

The availability of the defence under the common law and under the 2005 uniform legislation 20The defence has now been extensively reviewed by McColl JA in Besser v Kermode [2011] NSWCA 174 at [46] - [59]. The condition imposed upon such a plea is that the meaning does not differ in substance from a meaning pleaded by the plaintiff and is one that is not more injurious than that pleaded by the plaintiff (at [59]). 21This is also the case in other jurisdictions in Australia. A submission very similar to that made by Mr Evatt in these proceedings was made, unsuccessfully, to Kelly J in Forrest v Chlanda [2011] NTSC 67 . Kelly J, relying upon the analysis of Professor Kenyon in his helpful explanatory review of the law, rejected ([at 8]) the claim that a defendant could not, as a matter of law, plead and justify an alternative meaning to that pleaded by the plaintiff. 22In JWH Group Pty Ltd v Buckeridge [2009] WASC 271 (" JWH Group" ), Le Miere J comprehensively reviews decisions dealing with the pleas (and noting Professor Kenyon's research) in relation to the defence. Although these proceedings relate to a publication dated 17 December 2003 (well before the uniform legislation), the principles discussed in these cases, not only before, but after the introduction of the uniform defamation legislation (such as Soultanov v Age Co Ltd [2009] VSC 145), are sufficiently similar for these cases to be discussed together. Le Miere J does not refer to Zunter or to Mahommed . Conclusions concerning the availability of the defence 23Whatever may have been the position of the New South Wales Court of Appeal in the past, Besser v Kermode makes it clear beyond doubt that this defence is now available. This will no doubt include Queensland, although prior to the new legislation, this defence was not available there: Robinson v Laws [2003] 1 Qd R 81 at 92 - 95, 99 - 1-2 and 106 - 8). The change of the cause of action to "matter" ( Defamation Act 2005 (Qld) ss 4, 6 and 8) means that the availability of this defence is likely to be revisited in Queensland, conformably with the principles enunciated by McColl JA in Besser v Kermode. 24I agree with the plaintiff's submission, however, that the position under the 1974 Act in New South Wales was that these defences were not (before Snedden ) available where proceedings were commenced in New South Wales under the 1974 Act, both for publications within the state as well as in the common law states and territories. As already noted, the split-trial s 7A process meant that the jury decided what imputations were conveyed; it would not be possible for a common sting or different meaning imputation to be raised at the trial of defences, because the judge would have to overrule the earlier jury finding as to what defamatory imputations were conveyed. This would deny the defendant the right to this defence in those common law jurisdictions. That is, however, no longer the case. 25The plaintiff's submissions that the common law of Australia does not recognise a nuance or shades of meaning defence must fail. Such a defence has long been available in common law jurisdictions, and is now available under the uniform defamation legislation. 26Before dealing with the remaining submissions of the plaintiff, I should briefly note the two different kinds of imputations likely to be pleaded in such a defence. Two different kinds of common law imputations 27The first kind of imputation is one where the level or degree of seriousness of the plaintiff's imputation is challenged. Professor Kenyon calls this the "Lucas-Box" defence ( Lucas-Box v News Group Newspapers [1986] 1 WLR 147) and adds that, in England, Lucas-Box meanings are no longer limited to a difference of degree, such as guilt and suspicion, but now extend to any meaning capable of arising from the publication where the imputation does not concern a separate and distinct allegation of which the plaintiff does not complain. The defendants say that the proposed new imputation is an imputation of this kind, and is pleaded as such. 28I shall, however, also note the second type of imputation identified by Professor Kenyon, namely that the multiple imputations pleaded by the plaintiff are not distinct but have a common sting, so that proving the truth of one aspect of the common sting will justify the entire publication. This second type of defence has, confusingly, been called "the first Polly Peck proposition" ( Woodger v Federal Capital Press (1997) 102 ACTR 1 at 23- 4), and also "the second Polly Peck proposition" ( John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [80]). 29What both these forms of the defence have in common is their close relationship to the imputations pleaded by the plaintiff. They differ, in this regard, from contextual imputations, the nature of which I should also briefly outline. 30A third type of imputation capable of being pleaded by a defendant is to be found in the contextual truth defence set out in the uniform Defamation Acts (see, for example, s 26 of the NSW Act). Contextual imputations arise in addition to and at the same time as the plaintiff's imputations, but have not been pleaded by the plaintiff ( Besser v Kermode [2011] NSWCA 174). The truth of the contextual imputations, when weighed against the falsity of one or more of the plaintiff's imputations, may amount to a complete defence. Since Besser v Kermode has restricted this defence to imputations not pleaded by the plaintiff, plaintiffs can now easily circumvent this defence by "pleading back" any contextual imputations identified by the defendant. However, the presence of s 26 does not deny the right of a defendant to plead what McColl JA calls "nuance" imputations; McColl JA at [58]-[59] notes the availability of the principles set out in David Syme & Co v Hore-Lacy [2000] VSCA 24 for defendants seeking to plead such a defence. 31The next issue to determine is the plaintiff's alternative application to strike out the proposed new imputation for reasons of form and capacity, lack of particularisation, and estoppel. I note the principles on a strike out application as set out by Le Miere J in JWH Group Pty Ltd at [18] - [19] and the manner in which such applications have been approached by the cases referred to in this decision.

The steps to take under the Hore-Lacy approach 32The questions which arise are as follows: (a)Is the defence meaning capable of arising from the publication? The plaintiff in these proceedings challenges the capacity of the imputation to be conveyed. (b)Is the defence meaning not substantially different from, and not more injurious, than the plaintiff's imputation? As Professor Kenyon points out, this is the additional question added by Hore-Lacy. What amounts to "not substantially different" is discussed below. The plaintiff submits the proposed new imputation fails this test. (c)Alternatively, does the defence meaning arise from a separate and distinct allegation in the publication about which the plaintiff does not complain? This is a question which must be answered "no". If the imputation is a separate and distinct meaning about which the plaintiff does not complain, it is a contextual imputation (s 26) and should be pleaded as such. (d)Are there particulars capable of going to the truth of the defendant's imputation? The plaintiff challenges the adequacy of the particulars provided. (e)An additional feature referred to in many of the judgments is whether the issues raised by the defendant's imputation may result in the raising of false issues at the trial, or that the trial may be "hijacked" ( Newnham v Davis (No 2) [2010] VSC 94 at [18]). The scope of the evidence to be admitted is, however, an issue of case management rather than grounds for refusing to permit the pleading.

Objections to form, capacity and defamatory meaning 33The plaintiff's first two objections are that the imputation alleges no act or condition of or concerning the plaintiff, and that the sting of the imputation is aimed at the study trip, not the plaintiff. However, the conduct the subject of attack is the plaintiff's activity of taking a study trip which is "dubious". Mr Evatt withdrew objections to capacity during argument, as well as claims that the imputation was incapable of being a "nuance". 34Although the objection to defamatory meaning was also not pressed, I note that the circumstances in which a member of parliament takes a study trip that is "dubious" is capable of being defamatory, as "dubious" has a pejorative overtone: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [142] ("dubious mortgages").

Is the imputation one which is not more serious and otherwise not substantially different from the imputations pleaded by the plaintiff? 35The plaintiff's attack on the Hore-Lacy requirement is limited; the plaintiff complains that imputation (j) is confined to one of three examples whereas the defendants' proposed new imputation refers to "study trips" without number. 36The fact that three study trips provoked the review is, as the defendants point out, not the issue. The question is the quality of those study trips. The defendants' imputation embraces the connection between the dubious study trips and the review, but does not claim that the plaintiff's dubious study trip caused this review. As such, it is a nuance, shade or gradation of the plaintiff's imputation (j), omitting the element of being the cause of the inquiry. The estoppel argument 37First, I note that the imputation pleaded by the plaintiff (imputation (h)) was struck out for "form" reasons, with leave to replead. The striking out of an imputation with leave to replead cannot give rise to estoppel, particularly where, even if that occurred, the vice leading to the striking out of the imputation has been cured by the use of more precise language. I note the plaintiff did in fact replead imputation (h) (it is now imputation (j)), but does not suggest that imputation (j) and the proposed new imputation of the defendants do not differ in substance. 38Secondly, and more importantly, the proposed new imputation differs from the imputation pleaded by the plaintiff that was struck out. The defendants' new imputation refers to the plaintiff's study trip as having a dubious character, but does not suggest that this led to the review by the Special Minister of State. It has the same character as those other dubious study trips, but is not asserted to be the cause.

Are there particulars to support the imputation? 39As can be seen from the particulars of justification already provided, the defendants have set out additional particulars for their existing plea of justification (see (h), (l)(i), (l1), (l2) and (m1)). 40During the hearing before me this morning the plaintiffs raised objections to the lack of connection between these particulars and the new pleading. I have made orders for the provision of further particulars which Mr Evatt says will substantially resolve the problem. 41The objections raised by the plaintiff to the form, capacity, defamatory meaning and particulars to the defendants' imputation are rejected. The defendants are granted leave to file the amended pleading. Additional matters 42When these proceedings were first before me for directions, Mr Evatt referred to potential difficulties at trial caused by a defence of this kind. 43Professor Kenyon's research project, the results of which are set out at pages 670 -673 of his article, shows that according to court statistics and interviews with practitioners in jurisdictions where this defence is used, trials have been run more efficiently, with fewer interlocutory proceedings, speedier hearing times and no increase in the time length of trials. 44Additional complexity or length of trial as a result of any amendment would be a matter for concern, particularly given the tight timetable and limited hearing length given to this trial by the court prior to its allocation to me as trial judge. The provision of additional particulars, and the experience and seniority of counsel on both sides, should ensure that this amendment to the pleadings will cause no additional delay or confusion. 45Two matters remain outstanding. The first is the issue of jury questions. There is one issue concerning the interaction between this defence and determination of the capacity of the plaintiff's imputations to which the plaintiff's submissions concerning Snedden may have relevance. A "jury question" issue for determination in defamation trials is whether the jury should retire early to consider issues concerning the plaintiff's imputations: Davis v Nationwide News Pty Ltd [2008] NSWSC 699. That may not be advisable in cases where a plea of justification at common law is made, for the reasons explained by Professor Kenyon in relation to the interaction of this defence with early determination of the meanings pleaded by the plaintiff. The parties tell me they do not propose to use this procedure in the trial. 46The second outstanding issue is the question of costs of this application. The defendants ask the court for an indulgence in the form of an amended pleading, and the costs thrown away by reason of the amendment would ordinarily be borne by them. In addition, the plaintiff's submissions that more particulars are required for this new pleading, which took up a substantial part of the hearing time, were well-founded. I have set a timetable for submissions and relisted the matter for 23 December for the purpose of giving judgment on this issue. Orders (1) The defendants provide further and better particulars by 4.00pm Friday 16 December 2011 of the following: (a) Further and better particulars of paragraphs (l2) and (m1) to include facts and matters relied upon in support of the assertion in the proposed new imputation that the plaintiff's study trip was an example of the kind of "dubious" study trips that prompted Senator Joe Ludwig's enquiry, identifying those study trips and stating how the plaintiff's study trip was an example comparable to them; (b) Further and better particulars for the material in (l2) asserted to be available in Australia and the material "of little substance"; and (c) How the conclusions failed to address the stated objectives in paragraph (m1). (2) Grant the defendants leave to file an amended defence in accordance with the draft pleading attached to the affidavit of Kevin Lynch dated 9 December 2011. (3) The defendants to provide written submissions by 4.00pm Friday 16 December 2011 as to why the defendants should not pay the costs of this application. (4) Plaintiff's submissions on costs by 4.00pm Monday 19 December 2011. (5) Matter stood over for further directions to Friday 23 December 2011 at 10:00am. (6) The plaintiff answer any outstanding interrogatories (if any) by 4.00pm Thursday 22 December 2011 - (note interrogatories were administered on 25 November 2011).

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: 14 December 2011