Hall v Hannaford

DLJ: 5 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 205090 of 1995

JUDGMENT ( Defamation Act 1974 ss 15 & 16 - contextual imputations - re-consideration of judgment 20 August 1999 (NSWSC 838)) 1 On 20 August 1999 (NSWSC 838: DLJ: 3) I delivered a ruling in relation to then pleaded defence under s 16 of the Defamation Act 1974. 2 The ruling was delivered in the context of an application concerning, inter alia, the adequacy of particulars of justification and comment. It was contended for the plaintiff that the form of the Defence then pleaded by the defendant (see paragraph 43 of the judgment) did not plead an available defence under s 16 of the Act because it "pleaded back" the plaintiff's imputations. The relevant part of my judgment set out in paragraphs 45 to 49 as follows: It seems to me that this submission is well founded. The structure of the defence provided for by s 16 has been considered by the Court of Appeal in Perkins v Harris (26 May 1995); Waterhouse & Anor v Hickie (26 May 1995) (1995) Aust Torts Reports 81-347; and, TCN Channel Pty Limited v Antoniadis (1998) 44 NSWLR 682. I considered the matter in Hall & Anor v Nationwide News Pty Limited (5 November 1998, unreported (DLJ: 2)).

Contextual imputations are imputations not pleaded by the plaintiff. They are imputations that are not "imputation(s) complained of" by the plaintiff. They are "other" imputations.

Section 15 provides the defence of truth in relation to imputations "complained of" by the plaintiff. Section 16 provides a defence whereby a defendant can plead "other" imputations than those "complained of" by the plaintiff which arise at the same time and in addition to those "complained of" by the plaintiff and provided they differ in substance from those pleaded by the plaintiff.

Where a defendant justifies some but not all of the imputations "complained of" by the plaintiff (that is, justifies pursuant to s 15) I do not see any statutory basis for the use by the defendant of "unjustified" imputations "complained of" by the plaintiff as "contextual imputations". It might be considered that this position is heretical and contrary to the observations of Hunt J in Allen v John Fairfax & Sons Pty Limited (2 December 1988, unreported) expressly said to be correct by Priestley JA in Perkins v Harris at 9-10.

In the absence of any "other" imputations being relied by the defendant strictly in accordance with s 16 as contextual imputations, the defendant can still plead truth to the plaintiff's " complained of" imputations or some of them and as to the balance in respect of which there is no plea of justification pursuant to s 15, rely upon the truth of the " complained of" imputations in mitigation of damages. In other words, the ultimate objective sought to be attained by the use of s 16 can be attained in mitigation of damages when the only defence is in fact a defence under s 15. It is open to the defendant to argue that by reason of the truth being established of imputations 1, 2 and 3 the damages to the plaintiff's reputation in respect of the unproved imputation 4 and 5 is zero. No damage to the plaintiff's reputation has in fact been proved by reason of the truth of imputations 1, 2 and 3 and indeed the case is such that any presumption of damage arising from unproved imputations 3 and 4 has been rebutted. 3 The defendant has sought leave of the Court of Appeal to appeal so much of my judgment of 20 August 1999 as is set out above and I understand that that Court's dealing with the application has been stood over. 4 On 14 October 1999 the plaintiff filed a Notice of Motion seeking various forms of relief in relation to the particulars of justification and comment thitherto and on 24 November ([1999] NSWSC 1132: DLJ: 4) I dealt with the then outstanding matter of the sufficiency of particulars. It was in the course of the argument in connection with the matters the subject of the Notice of Motion that the correctness of my decision of 20 August was re-argued. It was re-argued by leave and, in effect, at my suggestion. As explained to the parties it was my anticipation that in concurrent but unrelated litigation (Marsden v Amalgamated Television Services Pty Limited) an occasion would arise for me to re-consider my decision in this matter. That occasion did not eventuate and thus my suggestion that it might be opportune to re-argue it in this litigation itself if costs of an appeal to the Court of Appeal could be avoided and time spent in that Court eliminated. 5 For the purposes of the conduct of the re-consideration of the issues the subject of my earlier judgment I have had the benefit of the submissions in writing provided by the parties to the Court of Appeal. 6 Having considered the matters raised orally and in writing by way of submission in re-argument I have come to the conclusion that my decision of 20 August 1999 is wrong. 7 Section 15 of the Defamation Act 1974 (truth) provides as follows: "(1) Notwithstanding section 11, the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section.

(2) It is a defence as to any imputation complained of that:

(a) the imputation is a matter of substantial truth, and (b) the imputation either relates to a matter of public interest or is published under qualified privilege". 8 Section 16 (contextual truth) provides as follows: "(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.

(2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff". 9 As matter of construction I am persuaded on reading the terms of the two sections that the expression "another imputation" in s 16(1) is not limited to an imputation not pleaded by the plaintiff. The only limitation as to the proper meaning of that phrase arises from the concept that a defendant cannot plead back by way of a contextual imputation the plaintiff's pleaded imputation as a defence to that pleaded imputation. This is clear from the judgment of Priestley JA in Waterhouse & Anor v Hickie (1995) Aust Torts R 81,347. 10 Insofar as in the course of my earlier judgment I described my approach as "heretical" it certainly was, and the more so, as it was contrary to his Honour's reasoning leading, in my view, to the judgment of that Court (that is, it was not obiter), at 62,490 - 62,491. 11 That a defendant cannot plead back as a contextual imputation an imputation pleaded by the plaintiff is made clear by the terms of s 16 itself when it isolates the "imputation complained of", that is, one pleaded by the plaintiff, as the cause of action to which the s 16 defence can be applied. In other words, a defendant can plead back an imputation complained of by the plaintiff but not as a defence to that imputation. A defendant can plead back an imputation complained of by the plaintiff as a contextual imputation which by itself or in combination with others can be weighed against other imputations, (but not the imputation complained of), pleaded by the plaintiff. 12 In the principal cases dealt with by the Court of Appeal on the subject of contextual imputations that Court has been concerned with cases where the defendant has pleaded imputations not pleaded by the plaintiff: Perkins v Harris; Waterhouse & Anor v Hickie; TCN Channel Pty Limited v Antoniadis (1998) 44 NSWLR 682. I do not consider it to be open to distinguish those cases on that basis. 13 The issue is not a bare one of what the plaintiff has pleaded. The question is not resolved by considering such issues as to whether the plaintiff has pleaded "all available imputations". The matters of construction apply, in my view, whether the defendant has pleaded additional imputations as contextual imputations or, relies only upon the plaintiff's imputations for the purposes of s 16. 14 In Allen v John Fairfax & Sons Pty Limited (unreported, 2 December 1988) Hunt J said at pages 10-11: "A defendant is always entitled to adopt any of the plaintiff's imputations as a contextual imputation and to plead a defence of contextual truth based upon that imputation to the cause of action based upon another of the plaintiff's imputations. Similarly, the defendant is always entitled to adopt any of the plaintiff's imputations as one or more of its group of contextual imputations where it relies upon the combined effect of the truth of that group of imputations as so affecting the plaintiff's reputation that the plaintiff's imputation to which that group of contextual imputations is pleaded did not further injure that reputation". 15 This was expressly said to be correct by Priestley JA in Perkins v Harris. Whilst it is not, to me, clear why his Honour came to this view, an examination of the rationale of the defence of s 16 does provide the relevant reasoning. This rationale was discussed by Priestley JA in Waterhouse v Hickie by reference to the report of the Law Reform Commission (LRC 11 (1971)) especially paragraphs 73 and 74. 16 What the Law Reform Commission said is: "73. Suppose that the defendant has published an imputation that the plaintiff has been convicted of simple larceny and an imputation that the plaintiff has been convicted of fraudulently converting trust property to his own use. Suppose that the first imputation is false but the second is true. If the plaintiff sues for damages for defamation in respect of both imputations a defence of truth will fail because the truth of both charges cannot be proved. In England the effect of the Defamation Act 1952, section 5, is that in such a case a defence of truth will succeed if the first imputation did not materially injure the plaintiffs reputation having regard to the truth of the second imputation. We agree with the object of this section, as far as it goes. 74. But if on facts such as these the plaintiff sues only in respect of the first imputation he will still succeed notwithstanding a provision along the lines of section 5 of the English Act of 1952: Plato Films Ltd v Speidel [1972] AC 1090). A Bill (the Freedom of Publication Protection Bill) was introduced in Parliament at Westminster in 1966 with a view, amongst other things, to substitute a new section for section 5 of the 1952 Act. The new section would have embraced the case where the plaintiff sues on such imputations only as cannot be proved to be true. We agree also with the object of this proposed substitution. Section 16 is intended to carry this object into effect. Its expression has to be more elaborate than that of the English proposals because place must be given to questions of public interest and qualified privilege. The Freedom of Publication Protection Bill was not passed: this was, we believe, because of the controversial nature of other provisions of the Bill." 17 Shortly stated, the objective of s 16 was to provide the defendant with an opportunity to obtain judgment in its favour in circumstances where a plaintiff has pleaded more than one imputation, or the defendant can plead contextual imputations, but in respect of the plaintiff's imputations not all those complained of by the plaintiff can be proved to be true. 18 Section 5 of the United Kingdom legislation provided: "In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges". When one takes into account the wording of the then provision of the United Kingdom Act it can be seen why the Commissioners took the view that they did in paragraphs 73 and 74 of their Report. The more so in the context of the imputation constituting the cause of action to which the defence is pleaded. 19 I do not see s 47 of the Defamation Act 1974 to be relevant. That section is concerned with damages and the elimination of any presumption as to falsity. It provides that evidence of the substantial truth of an imputation may be lead on the question of damages where it is relevant. The plaintiff in a defamation action in New South Wales is awarded damages for "relevant harm" (s 46). 20 A defendant is entitled to lead evidence of the truth of an imputation pleaded by the plaintiff (and only an imputation pleaded by the plaintiff) in mitigation of damages. In what circumstances? When the defendant cannot prove a defence under s 15 or s 16 by reason of a defendant being unable to prove that the imputation related to a matter of public interest or was published under qualified privilege. There is no inconsistency between the operation of s 47 and the operation of ss 15 and 16. There may be practical problems that confront a trial judge in any remaining case where that trial judge has to sum up to the jury on such issues: that is merely the product of the legislation. It can be overcome in any given trial. When the operation of s 47 is properly understood, especially that consideration which limits it, as it must be limited, to the substantial truth of an imputation complained of by a plaintiff, any asserted tension between that section and the justification sections does not exist. 21 For these reason I am of the view that Order 4 made on 20 August 1999 striking out paragraph 8 of the Defence to the Amended Statement of Claim should not have been made and I revoke that Order to the extent that the reasoning founding it is in error, as-it-were, and to that extent withdraw the earlier judgment. 22 The question of costs is not easy of resolution. The plaintiff succeeded substantially on the Motion leading to the judgment of 20 August 1999. It appears from the plaintiff/opponent's submissions to the Court of Appeal that he does not contend that a "defendant who pleads a contextual imputation cannot rely upon the truth of one or more of the plaintiff's imputations" (page 5) which is not quite consistent with what I ultimately and incorrectly held to be the position in my judgment of 20 August. The order for costs I would propose therefore in relation to proceedings leading to the judgment of 20 August 1999 is that the defendant will pay two-thirds of the plaintiff's costs. As to the remaining one-third of the costs, each party should either bear its own costs and have the benefit of a certificate under the Suitor's Fund if eligible or alternatively, that those costs be costs in the cause. 23 As to the proceedings leading to this judgment I am of the view that costs should be costs in the cause. These are not final orders and I will hear counsel further on them. 24 The formal order I make in this instance is that Order 4 made on 20 August 1999 is revoked. ***********

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