Kevin Waters v John Fairfax Publications Pty Limited

Allen v John Fairfax & Sons Limited [Unreported, NSWSC, 2 December 1988] Australian Broadcasting Corporation v McBride (2001) 53 NSWLR Dey v Victorian Railway Commissioners (1949) 78 CLR 62 Hall v Hannaford [1999] NSWSC 1197 Hepburn v TCN Channel 9 Pty Limited [1984] 1 NSWLR 386 CASES CITED : Jackson v John Fairfax & Sons Limited [1981] 1 NSWLR 36 John Fairfax Publications Pty Limited & Anor v Jones [2004] NSWCA 205 NRMA Insurance Limited v Amalgamated Television Services Pty Limited [Unreported, NSWSC, 14 July 1989] O'Shane v Fairfax Publications Pty Ltd [2002] NSWSC 807 Vacik Distributors Pty Limited v Australian Broadcasting Corporation [2000] NSWSC 732 Waterhouse & Anor v Hickie (1995) ATR 81-347

Kevin Waters - Plaintiff PARTIES : John Fairfax Publications Pty Limited - Defendant

M Richardson - Plaintiff COUNSEL : M Lynch - Defendant

Blessington Judd - Plaintiff SOLICITORS : Freehills - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20432/02 Kevin Waters v John Fairfax Publications Pty Limited JUDGMENT 1 His Honour: This is an application by the plaintiff for orders that the particulars of mitigation of damages pleaded in paras 9(a) and (b) of the amended defence be struck out, and to oppose any requirement to answer the defendant's interrogatories nos. 21A(b)(3) and 23A. The contextual imputation issue 2 The particulars in para 9(a) of the amended defence are in the following terms: "(a) the substantial truth of any one or more of the First Contextual Imputations and/or the Second Contextual Imputations and/or the Defendant's Imputation;" 3 Mr M Richardson, counsel for the plaintiff, submits that the defendant is not entitled to lead evidence of the substantial truth of the contextual imputations in mitigation of damages. He relies upon the passage of the judgment of Hunt, J in NRMA Insurance Limited v Amalgamated Television Services Pty Limited [Unreported, NSWSC, 14 July 1989] in which he said: "What must be emphasised is that this defence of contextual truth provides a defence to the plaintiff's causes of action. It does not provide the defendant with the opportunity of being able to do what it used to be able to do before, to put before the jury evidence which establishes in effect no more than that it almost got it right, with the object of reducing the amount of damages awarded. It is clear (for example, from s 47 of the Act) that a defendant is not entitled to lead such evidence merely in mitigation of damages. The only evidence of truth which it may lead for that purpose is evidence of the truth of the imputation or imputations pleaded by the plaintiff. In particular, it is important to emphasise that the defendant cannot succeed in this defence unless the truth of the contextual imputation (or imputations) is of such a nature that the plaintiff's imputations are incapable of causing further injury to his reputation. It has nevertheless become apparent over the years that some defendants who are regular litigants in defamation proceedings have been pleading defences of contextual truth which do not have any real prosect of success, in circumstances where it would seem that they were pleaded for no reason other than to put before the jury the evidence to which I have referred and for the purpose which I have identified. A plaintiff is entitled to insist upon such defences being removed from the issues for trial if it is clear either that that is the only purpose for which they have been pleaded or that that is the only effect which they will have". 4 He also relies upon the following passage from the judgment of Levine, J in Hall v Hannaford [1999] NSWSC 1197 para 20: "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". 5 Mr M Lynch, counsel for the defendant, argued that there is no reason in principle why evidence of the truth of a contextual imputation in support of an unsuccessful defence under s 16 should not be available in mitigation of damages. He contends that evidence of the truth of a contextual imputation should be available on this issue on the same basis as evidence of the truth in support of an unsuccessful defence under s 15 to an imputation pleaded by a plaintiff is available. As I understand it, he submits that the statutory defences under ss 15 and 16 are both defences of justification and hence evidence of truth in support of either, if unsuccessful, should be available in mitigation. 6 By s 9(2) of the Act a person defamed by the publication of an imputation has a cause of action against the publisher for which damages may be recovered. The award of damages is assessed with respect to the imputation complained of by a plaintiff, and it follows that any issue of mitigation arises only with respect to that imputation. 7 Section 15(2) provides a defence to any imputation complained by a plaintiff where it is shown to be a matter of substantial truth, and either relates to a matter of public interest or is published under qualified privilege. 8 Section 16 provides: "16 Truth: contextual imputations (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 Explanation of the scope and application of the contextual truth defence under s 16 is to be found in many cases and it is unnecessary to repeat what is said in them. (e.g., Jackson v John Fairfax & Sons Limited [1981] 1 NSWLR 36; Hepburn v TCN Channel 9 Pty Limited [1984] 1 NSWLR 386; Waterhouse & Anor v Hickie (1995) ATR 81-347; John Fairfax Publications Pty Limited & Anor v Jones [2004] NSWCA 205). 10 In John Fairfax Publications Pty Limited consideration was given to the proper construction of the words "another imputation" in s 16(1). For it to be "another imputation" within the sub-section it must be different in substance from the plaintiff's imputation and not merely an alternative to it (paras 19, 61, 63, 72). Spigelman, CJ referred with approval to the statement of Hunt, J in Allen v John Fairfax & Sons Limited [Unreported, NSWSC, 2 December 1988 p 12]. "12. The real questions in each such case in relation to each particular contextual imputation are whether that contextual imputation is conveyed to the same ordinary reasonable reader at the same time as and in addition to the plaintiff's imputation and whether they differ in substance one from the other". His Honour had earlier said (para 10) that by s 9 of the Act the imputation is the cause of action and that it is not open to a defendant to reinterpret the plaintiff's imputation and thereby reformulate the plaintiff's cause of action. 11 Under s 46 damages for defamation are limited to the relevant harm suffered by a plaintiff as a result of the publication of the imputation of which he complains. In an appropriate case an unsuccessful defendant may rely on matters adversely affecting a successful plaintiff's reputation to mitigate that plaintiff's damages. In Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 (para 82) Fitzgerald, AJA said: "For obvious reasons, only matters affecting the plaintiff's reputation which diminish the harm which he or she was caused by the defamation may be relied on in mitigation". The defamation to which he referred is, of course, that caused by the publication of the imputation complained of by a plaintiff. 12 His Honour made plain the position when he said: "86 McBride argued that the ABC is not entitled to make any allegations concerning his reputation in mitigation of his damages because its Defence does not plead that it was justified in publishing either of the imputations which he alleges. However, there is no inconsistency or other incongruity between the absence of a plea of justification and a plea by the ABC that, although neither of the imputations alleged can be justified, other matters affecting McBride's reputation diminish the damages which he suffered if either or both of those imputations was published: see Burstein v Times Newspapers Ltd [2001] 1 WLR 579, 600-601". 13 It should also be observed that the requirements for pleading particulars of matters relied upon by a defendant in mitigation are expressly directed to those relevant to the imputation complained of, and make no reference to another imputation pleaded under s 16. Part 67, r 18(2)(c) requires particulars of any apology for, or explanation or correction or retraction of, any imputation complained of. Rule 18(3) requires the defendant to identify the imputation complained of in respect of which its truth or substantial truth is to be relied upon in mitigation of damages and to provide the facts, matters and circumstances relied upon to establish that such imputation was true or a matter of substantial truth. 14 The foregoing demonstrates, with respect, that it is entirely correct that Hunt, J in NRMA Insurance and Levine, J in Hall, should hold that the only evidence of truth which may be led for the purpose of mitigation of damages is the truth of an imputation complained of by a plaintiff. 15 Once it is understood that damages are awarded to compensate a plaintiff for the harm done by the publication of the imputation of which he complains and not for the publication of another imputation within s 16(1) it will be readily seen that evidence of the truth of that other imputation is simply irrelevant on any issue of mitigation. 16 For the above reasons the particulars challenged are embarrassing and unfairly prejudicial to the plaintiff and, in my view, should be struck out pursuant to Pt 15, r 26(1)(b). Accordingly I propose to order that the words "… of the First Contextual Imputations and/or the Second Contextual Imputations" in para 9(a) of the amended defence be struck out. The s 48 issue 17 The particulars in para 9(b) are in the following terms: "(b) the fact that the plaintiff has brought proceedings for damages (Supreme (sic) of New South Wales Proceedings No. 20090 of 2002 against Australia Wide Towing Pty Ltd and Barry Lewis) for defamation in respect of the publication of a letter dated 8 February 2002 to Mr Michael Hawker, Chief Executive Officer of NRMA Insurance Limited (to the extent to which that publication is to the same effect of the first matter complained of and/or the second matter complained of), and/or has already recovered damages and/or has received or agreed to receive compensation in those proceedings, which were settled in or about March 2004". 18 In these proceedings the relevant imputations as published in the edition of "The Sydney Morning Herald" of 29 August 2002 and pleaded in para 5 of the further amended statement of claim are: "5(a)(i) The Plaintiff is corrupt in that, when appointed to the Tow Truck Industry Advisory Council, to help introduce a fair job allocation scheme and end the "law of the jungle on Sydney Streets", the Plaintiff employed the criminal Ian Clissold, as a licensed tow truck driver to work in the tow truck industry despite legal requirements that criminals be excluded. … (b) The Plaintiff is corrupt in that, when appointed to the Tow Truck Industry Advisory Council, to help introduce a fair job allocation scheme, he made a collusive deal with the NRMA". 19 The relevant imputations as published in the edition of "The Sydney Morning Herald" of 30 August 2002 and pleaded in para 6 of the further amended statement of claim is: "6(b)(ii)The Plaintiff, when an adviser to Mr Carl Scully, the Transport Minister, used the criminal Ian Clissold, a member of an outlaw motorcycle gang, to intimidate his rivals". 20 The relevant imputations in the plaintiff's proceedings in this Court in No. 20090/02 against Australia Wide Towing Pty Limited and Barry Lewis (the Lewis proceedings) as pleaded in para 4 of the statement of claim are: "4(h) The Plaintiff employs standover merchants as tow truck drivers. (i) The Plaintiff dishonestly obtained an NRMA Towing Contract because he colluded with members of a sub-committee with the TTA". 21 Section 48 provides: "48 Other recoveries In proceedings for damages for defamation in respect of the publication of any matter, evidence is admissible on behalf of the defendant, in mitigation of damages, that the plaintiff: (a) has already recovered damages, (b) has brought proceedings for damages, or (c) has received or agreed to receive compensation, for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings". 22 Mr Richardson submitted that, under s 48, in determining whether the other matter is to the same purport or effect as the matter complained of in the proceedings a court is required to consider

(1) whether the imputation in each matter is substantially the same, and

(2) the extent and nature of the injury caused to the plaintiff by each publication. 23 He argued that to evaluate the harm caused by each publication it is necessary for the purpose of deciding whether one is similar in effect to the other to take into account factors such as the manner and scope of publication, the persons to whom it is published, and the proximity of one publication to the other. 24 In this case it is put that the publication in the Lewis proceedings was a letter dated 8 February 2002 to Mr Michael Hawker, the chief executive officer of NRMA Insurance Limited, and to eight other persons whereas the publications complained of in these proceedings were made in prominent articles in the newspaper "The Sydney Morning Herald" of 29 and 30 August 2002 which has a national readership in excess of 300,000 as well as internet exposure. It is put that the circumstances and characteristics of the publication in the Lewis proceedings are so different from those of the publications in the present proceedings as to preclude a finding at the trial that they are of similar purport or effect within s 48. Therefore, it is submitted, the court should order the particulars in para 9(b) of the amended defence to be stuck out under Pt 15, r 26(1). 25 In response, Mr Lynch submitted that by the use of the word "matter" in s 48 the legislature intended to distinguish it from "imputation" as used in other sections of the Act. He submits that having regard to the definition of "matter" in s 9(1)(a) the distinction between "matter" and "imputation" should be recognised. 26 He submits that having regard to the use of the word "matter" in s 48 the court is obliged to consider not only the imputation conveyed by the other publication but also the terms of the other publication itself when determining whether the publication of that matter was to the same purport or effect as the matter complained of in the proceedings. 27 He argues that the only exercise required by s 48 is a consideration of whether the matter in each case was to the same purport or effect and that the form, nature and extent of the publication of each is irrelevant. Thus he submits that a court is not required to consider matters such as manner or scope of publication or to restrict the evidence admissible under s 48 to a publication which conveyed an imputation not substantially different from that complained of in the proceedings. Discussion 28 Levine, J undertook a review of the function and purpose of s 48 in O'Shane v Fairfax Publications Pty Ltd [2002] NSWSC 807 in which he said: "9 Section 48 reproduces the substance of s 24 of the 1958 Defamation Act which provision was the subject of consideration in Uren v John Fairfax & Sons Ltd (1965) 66 SR (NSW) 223. In that case (in which liability was admitted) the full court was concerned with directions given to the jury by the trial judge and at 229 Herron CJ said: "At the trial evidence was admitted of a copy of an issue of the Sunday Telegraph, also dated 10 February 1963, which is to the same purport as the articles sued upon, even though not in identical terms. The jury were also informed, as the fact was, that the respondent had recovered a verdict against Australian Consolidated Press Ltd, the publishers of the Sunday Telegraph for £15,000 in respect of the article in question. They were also told that an appeal was pending. His Honour rejected questions designed to show on what basis the former jury may have computed the damages. The appellant submits that, as to this, his Honour was in error and that he should have allowed evidence to be given that the respondent alleged malice against the defendant arising out of its conduct in the former action and that the former jury were not informed of the action brought against the present appellant. In my opinion his Honour was in no error in confining the issue as to s 24 as he did. The section is a difficult one to apply and more difficult still to explain to a jury. Its exact application in a given case is not easy even to a lawyer. One thing is clear to my mind and that is, that it is better to put the matter before the jury in general terms and not to make the difficult subject more complex still by attempting to speculate on possible considerations which could explain the first verdict. To explain the perspective of the former verdict is difficult enough without inviting the second jury to retry the issues of another action. The purpose of the section was correctly explained to the jury. They were directed in effect that the defendant must answer fully in damages to the extent that its publication has brought about damage to reputation, but for the damage solely caused by its publication. There may be an area where damage is suffered by the joint operation of two different libels. The section is designed to permit evidence to be given with the object of preventing a plaintiff receiving double compensation for that sort of damage. His Honour read to the jury the following passage from the speech of Lord Reid, delivered in the House of Lords in 1963, in the case of Lewis v Daily Telegraph Ltd [1964] AC 254 at 261. "In effect it requires that each jury shall be told about the other action, but the question is what each jury should be told. I do not think it is sufficient merely to tell each jury to make such allowance as they may think fit. They ought, in my view, to be directed that in considering the evidence submitted to them they should consider how far the damage suffered by the plaintiffs can reasonably be attributed solely to the libel with which they are concerned and how far it ought to be regarded as the joint result of the two libels. If they think that some part of the damage is the joint result of the two libels they should bear in mind that the plaintiffs ought not to be compensated twice for the same loss. They can only deal with this matter on very broad lines and they must take it that the other jury will be given a similar direction. They must do the best they can to ensure that the sum which they award will fully compensate the plaintiffs for the damage caused by the libel with which they are concerned, but will not take into account that part of the total damage suffered by the plaintiffs which ought to enter into the other jury's assessment." Lord Reid had prefaced this passage by the following statement: "Here there were similar libels published in two national newspapers on the same day and each has to be dealt with by a different jury. If each jury were to award damages without regard to the fact that the plaintiffs are also entitled to damages against the other newspaper, the aggregate of the damages in the two actions would almost certainly be too large. Section 12 of the Defamation Act 1952, is intended to deal with that" ". 10 Walsh J agreed with the Chief Justice as did Wallace J though not as to the issue of the jury being informed as to the amount. 11 The Law Reform Commission in its commentary on what became s 48 of the present Act, having referred to the many problems raised and the discussion in Uren's case remarked (LRC 11 p 120 para 246]: "However, short of some such solution as the Draconian one of imposing a very short limitation period and giving a right to consolidation of actions, no alteration of the provision has commended itself to us. The Draconian solution would itself produce many difficulties. We think that the best thing is simply to retain the substance of the present section". 12 The above (paragraphs 9 -11) reproduces what I said in Harris v Perkins , 1 April 1993 [1993] A Def R 42,537. 13 On 16 June 1993 the High Court handed down its judgment in Carson v John Fairfax & Anor (1992-3) 178 CLR 44. In the course of his judgment, by which his Honour dissented from the decision of the High Court, McHugh J, in the context of considering the structure of the New South Wales Defamation Act of 1974 said as follows (at 99-100): "Damages are awarded for the harm caused by a publication (s.46). The reasonableness of the verdict in respect of that publication can only be determined by reference to the harm which it has caused the plaintiff. In assessing damages in respect of a defamatory publication, a New South Wales jury is required to consider the effect of another defamatory publication only when the other publication is of "the same purport or effect" as the first publication (s.48). The common law is clear, rightly or wrongly, that the defendant cannot mitigate damages by tendering evidence of other defamatory publications concerning the plaintiff. A fortiori, at common law evidence is not admissible that the plaintiff has recovered damages in respect of other defamatory publications. A defendant must answer for the effect of its own circulation without regard to what others have published. If a defendant wishes to contend that the plaintiff's reputation was already damaged at the time of publication, it can do so by calling witnesses to prove the nature of the plaintiff's reputation at that time. But it cannot tender other publications for that purpose. They may or may not have damaged the plaintiff's reputation. In New South Wales, as in some other jurisdictions, however, the rigour of this common law rule has been qualified. Section 48 of the Act provides that evidence is admissible in mitigation of damages if the plaintiff has already recovered or brought proceedings for damages or has received or agreed to receive compensation "for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of". So, if a plaintiff is defamed on fifty-two successive weeks and brings a defamation action against any person, evidence is admissible in mitigation of damages that the plaintiff has already recovered or seeks to recover damages or compensation in respect of any of the other fifty-two articles "to the same purport or effect as the matter complained of". Consequently, the reasonableness of a verdict in respect of a defamatory publication must be assessed in the light of the evidence concerning that publication including any evidence which was admitted in mitigation of damages in respect of that publication. It is erroneous to consider the reasonableness of a verdict by determining whether the total sum awarded for a number of verdicts is reasonable. Each verdict must be considered separately. Except as provided for in s.48, absent evidence of a generally bad reputation at the time of the defamatory publication, damages are to be assessed in accordance with the common law rule that the plaintiff was a person of good reputation whose damages are not to be reduced by reason of any other publication". 14 His Honour made reference principally, in the course of this discussion, to Dingle v Associated Newspapers Ltd [1964] AC 371. 15 Miles CJ had occasion to consider an equivalent provision in s7 of the Defamation (Amendment) Act , 1909 of the ACT in Thompson v Australian Capital Television Pty Ltd & Ors (1997) 129 ACTR 14. To this decision I will return shortly, however, his Honour remarked, having referred to the decision of Uren : "All that can be gleaned, with respect, is that the section is to be applied in a broad way with the object of preventing a plaintiff from receiving double compensation and whilst requiring the defendant to answer fully in damages to the extent that its publication has brought about damage to reputation, to restrict those damages to the injury caused by the publication by the defendant sued upon by the plaintiff". (at 24.20) 16 Thus it can be observed that the purpose of s48, to put it very simply, is to prevent the plaintiff being doubly compensated. The following, also, can be observed about the section: first, that it enacts that evidence on the relevant subject is "admissible on the behalf of the defendant". Second, the section contains no limitation in terms of the timing of "any other publication" . The limitation expressed in the section relates to matters to the same purport or effect as the matter complained of in the subject action". 29 In Vacik Distributors Pty Limited v Australian Broadcasting Corporation [2000] NSWSC 732 Sperling, J considered the effect of s 48 with regard to the above-quoted passage from the judgment of McHugh, J in Carson and (para 95) held that it operates to prevent double damages for substantially the same imputation. 30 Earlier in this judgment I have referred to authorities which establish that damages are awarded to compensate a plaintiff for the harm caused by the publication of the defamatory imputation complained of. In s 48 the "matter" in respect of which the plaintiff (a) has already recovered damages, or (b) has brought proceedings for damages, or (c) has received or agreed to receive compensation, means or refers to the imputation(s) made by any publication other than that which made the imputation(s) complained of. 31 To render admissible evidence of any fact referred to in (a), or (b), or (c) of s 48 it is necessary to prove that it is in respect of matter to the same purport of effect as the matter complained of in the proceedings. As Levine, J held in O'Shane (para 16) the limitation expressed in the section relates to matters to the same purport or effect as the matter complained of in the subject action. 32 Thus where an issue of mitigation is raised by a defendant under s 48 it will require determination of the preliminary question whether the other matter is to the same purport or effect as the matter complained of in the subject action. If that question is determined in the defendant's favour, the requirement of admissibility will be met. Nevertheless, it may well be that at trial, notwithstanding the provisions of s 48, the relevance of the tendered material under s 55(1) Evidence Act 1995 may become the subject of consideration (O'Shane, para 20). 33 As the passages from Uren and Thompson cited in O'Shane illustrate, the court is required to approach the evaluation of the evidence to which s 48 refers in a broad way with the object of preventing a plaintiff from receiving double compensation for the same loss yet insuring he obtains proper compensation from a defendant for the defamatory publication sued upon. 34 In my judgment the submissions on behalf of each party raise substantial and arguable issues as to the proper application of s 48, including whether publication of the imputations in the Lewis proceedings is to the same purport and effect as those complained of in these proceedings and, if so, as to the weight (if any) to be given to the evidence in the overall assessment of damages. 35 Questions as to the admissibility of evidence in order to determine the issue of "same purport and effect" should properly be left to the trial judge. It should not be overlooked that this exercise necessarily requires evaluation of the purport and effect of the imputation complained of for the purpose of assessing damages, a task which only the trial judge can perform. Ultimately, of course, the weight to be given to such of the defendant's evidence as is admitted on the issue of mitigation is also a matter for the trial judge. Questions of admissibility, relevance, and weight are matters for the trial. 36 The discretionary power to summarily strike out a pleading will only be exercised in plain and obvious cases and is not to be used in cases of doubt or difficulty or where the pleading raises a debatable question of law. Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at p 91. The mere fact that the case is weak and not likely to succeed is not a ground for striking out a validly formulated pleading. (See generally: Ritchie. Supreme Court Procedure NSW paras 15.26.1-15.26.1AA). 37 The particulars challenged comply with the requirements of Pt 67, r 18(3). In my opinion there is no proper basis upon which the court should order that the particulars pleaded in para 9(b) of the amended defence be struck out. Accordingly, I decline to do so. Interrogatories nos. 21A(b)(3) and 23A 38 On 13 April 2005 I upheld the plaintiff's objections to interrogatory No. 21A(b)(3), and directed it be struck out. 39 Interrogatory No. 23A relates directly to the issues raised under para 9(b) of the amended defence. As these issues remain, I direct the plaintiff to answer this interrogatory and, failing agreement, to do so within fourteen days. Conclusion 40 I direct that these proceedings be stood over to the defamation directions list at 9.30am 16 May 2005 when submissions on the question of costs of this application may be made, and any outstanding pre-trial directions attended to. 41 I make the following orders:

(1) that the words "… of the First Contextual Imputations and/or the Second Contextual Imputations" in para 9(a) of the amended defence be struck out; and

(2) that interrogatory No. 21A(b)(3) be struck out. **********

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