McBride v ABC

DLJ: 2 CAV [2000] NSWSC 747 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 15135 of 1988

JUDGMENT (Contextual imputations - capacity - form - s 13 - insufficiency of particulars - mitigation of damages - bad reputation - insufficiency of particulars) 1 On 6 November 1998 the defendant was unsuccessful in seeking to have dismissed for want of prosecution this action for defamation instituted in October 1988. 2 An Amended Statement of Claim, pursuant to leave, was filed on 22 December 1998. The action is based upon a "Four Corners" program telecast on 8 August 1988 the transcript of which bears the heading "Report on New Zealand Medical Service Scandal". 3 The imputations pleaded by the plaintiff are: "4. (a) That the plaintiff deliberately exposed women patients to danger. (b) That the plaintiff had so acted as to warrant him being accused of conduct which endangered the lives and health of women patients. (c) That the plaintiff had no regard for the rights of patients to know what he as a doctor was doing to them and why. (d) That the plaintiff had no regard for the welfare of women patients who came to him for treatment". 4 Pursuant to s 16 of the Defamation Act 1974 (contextual truth) the defendant pleads that the matter complained of bears, in its natural and ordinary meaning, the following contextual imputations: "6(a) (1) The plaintiff, as a medical practitioner, engaged in scientific fraud.

(2) The plaintiff sought to conceal his scientific fraud in order to avoid its detection". 5 In addition to defences of qualified privilege at common law and pursuant to s 22 of the Defamation Act 1974, the defendant also pleads that the circumstances of the publication of the matter complained of were such that the plaintiff was not likely to suffer harm (s 13). The following particulars are provided: "8. (a) The public knowledge from December 1987 that the plaintiff had engaged in scientific fraud. (b) The public findings in November 1988 of the 'Committee of Inquiry into Dr McBride' constituted by the Right Honourable Sir Harry Gibbs, a former Chief Justice of the High Court of Australia, and other persons eminent in science and medical research that the plaintiff had engaged in scientific fraud. (c) The public findings of the Medical Tribunal in 1993 that the plaintiff, by reason his of scientific fraud, lacked good character and the Tribunal's order that the plaintiff's name be removed from the Register of Medical Practitioners in New South Wales (sic). (d) The public finding of the Medical Tribunal in 1996 that the plaintiff should not be re-admitted as a medical practitioner in New South Wales. (e) From December 1987 there was public knowledge of the plaintiff's misconduct as a medical practitioner". 6 In the alternative the defendant gives notice of its intention to make a case in mitigation of damages (SCR Pt 67 r 18(2)(b)) by reference to "the plaintiff prior to the date of publication of the matter complained of and since that time" did not have a good reputation in the practice of his profession. The defendant relies on the particulars (a) - (e) set out above. 7 By letter dated 18 February 1999 the solicitors for the plaintiff sought the usual particulars in relation to the defences of contextual truth and other matters. In relation to the s 13 defence and the proposed case in mitigation of damages, the plaintiff's solicitors asserted, essentially, that no case in relation to each component was available as particularised. 8 By letter dated 8 April the solicitor for the defendant provided particulars of the passages in the matter complained of relied upon in support of the availability of each contextual imputation, and joined issued with the plaintiff's solicitors assertion with regard to s 13 and the particularised case in mitigation of damages. 9 By its letter dated 8 April 1999 the defendant also provided particulars in support of the truth of the contextual imputations. In relation to the first contextual imputation, particulars are given with respect to experimentation on rabbits and chickens and publications concerning it. Reference is also made to certain evidence the plaintiff is alleged to have given in litigation in the United States. As to the second contextual imputation, the particulars point to "the Gibbs inquiry" in 1988 and evidence given by the plaintiff to it as well as to the 1991 Medical Tribunal and the 1995 Medical Tribunal. 10 By Notice of Motion filed on 30 April 1999 the plaintiff seeks to have the contextual imputations struck out or alternatively that there be a separate trial pursuant to SCR Pt 31 r 2 as to capacity of the matter complained of to bear the second contextual imputation. Orders are sought also to have struck out the particulars in relation to the s 13 defence and the particulars relied upon in mitigation of damages. An affidavit sworn by Mr Maurice May on 30 April 1999 was read in support of the Motion and to that affidavit is annexed the exchange of correspondence to which I have referred. 11 The first order sought in the Notice of Motion as I perceive it seeks relief under SCR Pt 15 r 26 to have the contextual imputations struck out as embarrassing in that, to put it shortly, each contextual imputation is "bad in form".

Striking Out of Contextual Imputations 12 The plaintiff's submissions were predicated on the proposition that the defendant is not obliged to exercise the same amount of care and precision in the drafting of contextual imputations as is required of the plaintiff in the framing the plaintiff's causes of action (the imputations). This is not and was not at the time of submissions the state of the law. In Marsden v Amalgamated Television Services Pty Limited (unreported, 4 May 1998: DLJ 1) I had held that there was a requirement for the same degree of precision in the formulation of contextual imputations as for the plaintiff's imputations. 13 It is desirable to repeat the substance of what I said in that judgment in Marsden. 14 The history of the requirement of difference in substance between contextual imputations and the imputations pleaded as causes of action by the plaintiff can be traced through a series of judgments at first instance and in the Court of Appeal. 15 The first is Jackson v John Fairfax & Sons Limited (1981) 1 NSWLR 36 at 39G - 40 where Hunt J said: "It is in my view basic to the scheme of s 16 that both of the imputations in question (that is, the imputation pleaded by the plaintiff and the contextual imputation pleaded by the defendant) must be conveyed by the matter complained of at the same time and that each must differ in substance from the other. This is fundamental to the whole operation of the 1974 Act. If the plaintiff's imputation to which the defence of contextual truth is pleaded is rejected by the jury as not being the sense in which the matter complained of was understood by the ordinary reasonable reader, there must be judgment for the defendant (assuming that that is the only imputation relied upon by the plaintiff), and the defence of contextual truth never arises for consideration. It follows, therefore, that both imputations must be conveyed by the matter complained of before any question of contextual truth can arise. Unless both imputations are conveyed at the same time to the same ordinary reasonable reader, the jury will be unable to weigh or to measure the relative worth or value of the several imputations contended for by both parties. Moreover, as the imputation pleaded by the plaintiff must be taken to include all other imputations which do not differ from it in substance (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, at p 771), it follows that each party's imputation must differ in substance from that relied upon by the other. From this discussion, it is apparent that the following issues of law will arise in relation to a defence of contextual truth (it having already been found that the matter complained of is capable of conveying the imputation pleaded by the plaintiff to which the defence of contextual truth is pleaded by the defendant): (1) Does the contextual imputation relied upon by the defendant differ in substance from that pleaded by the plaintiff?

(2) Is the contextual imputation capable of being conveyed by the matter complained of at the same time as and in addition to the imputation pleaded by the plaintiff?

(3) Is the nature of the contextual imputation such that its substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the imputation of which the plaintiff complains did not further injure that reputation?

(4) Is there evidence upon which the jury could find that the contextual imputation is substantially true?

(5) Does the contextual imputation relate to a matter of public interest or was it published under qualified privilege?" 16 In Hepburn v TCN Channel Nine Pty Limited (1984) 1 NSWLR 386, the issues were posed thus by Hunt J at 400: "(1) Does the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) differ in substance from the plaintiff's imputations to which it is or they are pleaded as a defence?

(2) Is the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence?

(3) Is the nature of the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the plaintiff's imputation to which it is or they are pleaded did not further injure that reputation?" 17 In Allen v John Fairfax & Sons Limited (unreported, 2 December 1988) at pp 8-9 Hunt J further formulated the questions as follows: "The following issues arise for the judge in relation to a defence of contextual truth: (1) Whether the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) differs in substance from the plaintiff's imputations to which it is or they are pleaded as a defence. (2) Whether the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) is or are capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence. (3) Whether the nature of the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) is or are such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the plaintiff's imputation to which it is or they are pleaded did not further injure that reputation. (4) Whether there is evidence upon which the jury could find that the contextual imputation or imputations is or are substantially true. (5) Whether the contextual imputation or imputations relates or relate to a matter of public interest or whether it was or they were published under qualified privilege." 18 The issues were re-stated by Priestley JA in Waterhouse & Anor v Hickie (1995) Aust. Tort Reports 81-347 as follows (at 62,488): "(1) Does the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be combined) differ in substance from the plaintiff's imputations to which it is or they are pleaded as a defence?

(2) Is the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) capable of being conveyed by the matter complained at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence? (3) Is the nature of the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's imputation to which it is or they are pleaded did not further injure that reputation? ( Hepburn at 400) (4) Is there evidence upon which the jury could find that the contextual imputation is substantially true? (5) Does the contextual imputation relate to a matter of public interest or was it published under qualified privilege? ( Jackson at 40). 19 The defence under s 16 accepts that the matter complained of conveys the plaintiff's imputations (Jackson at 39A) and as Hunt J said in NRMA Insurance Limited v Amalgamated Television Services Pty Limited (unreported, 14 July 1989) at 4 "… 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". 20 It is desirable to restate some further fundamental principles. 21 Section 9(2) of the Defamation Act, 1974 (as amended) provides as follows: "(2) Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient: (a) in addition to any cause of action which the person defamed may have against the publisher for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication, and (b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient".

22 SCR Part 67 r 11(2) and (3) provide as follows: (2) A statement of claim:

(a) shall, subject to subrule (3), specify each imputation on which the plaintiff relies; and

(b) shall allege that the imputation was defamatory of the plaintiff.

(3) A plaintiff shall not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same report, article, letter, note, picture, oral utterance or thing, unless the imputations differ in substance" [emphasis added]. 23 In Feros v West Sydney Radio Pty Limited & Anor (Court of Appeal unreported, 22 June 1982) Samuels JA said, having quoted the above rules: "it follows that it was necessary here for the plaintiff to specify, that is to state categorically, explicitly or particularly, the defamatory meaning or meanings which he alleged the matter in its natural and ordinary meaning would convey to an ordinary reasonable reader" (at p 3). 24 In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 the Chief Justice at 136 after referring to the rule stated; "furthermore, ordinary principles of pleading, fairness to a defendant, and the need for clarity of issues at a trial, all require adequate specification by a plaintiff of the imputation or imputations sued upon" and at 137: "the requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. 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". 25 It will be seen that the combination of s 9(2) which provides that the imputation be the cause of action and SCR Pt 67 r 11(2) which states the pleading requirements has lead to this body of law as to the requirement for precision in a plaintiff in pleading the imputations sued upon. 26 Section 16 of the Defamation Act, 1974 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". 27 SCR Pt 67 r 15 (contextual imputations) provides as follows: "15. Subject to rule 13 (2), a defence under section 16 of the Defamation Act 1974 is sufficiently pleaded if it: (a) alleges either: (i) that the imputation in question related to a matter of public interest; or (ii) that the imputation in question was published under qualified privilege; (b) specifies one or more imputations on which the defendant relies as being contextual to the imputation in question; (c) as to each imputation on which he so relies: (i) alleges either that it related to a matter of public interest or that it was published under qualified privilege; and (ii) alleges that it was a matter of substantial truth; and (d) alleges that, by reason that the imputations on which he so relies are matters of substantial truth, the imputation in question did not further injure the reputation of the plaintiff" (emphasis added). 28 The proposition advanced for the plaintiff in Marsden was that the requirements for precision in the pleading of imputations as causes of action by a plaintiff are applicable to the pleading by a defendant of contextual imputations. 29 It is not as if the notion of precision in relation to contextual imputations has gone without judicial attention. In Jackson (supra) Hunt J said at 41E in relation to the question numbered (2) cited above, "in order to consider the more limited question it becomes imperative to establish just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff's own imputations and by the defendant's contextual imputations" (his Honour cites Monte v Mirror Newspapers Limited (1979) 2 NSWLR 663 at 678). 30 This certainly accords with what the Chief Justice said in Drummoyne (supra) as to the necessity for clarity in the pleading. 31 In Hepburn (supra) at 389 Hunt J confirmed that his judgment in Jackson was "of course, based upon the proposition that both the plaintiff's imputations and the defendant's contextual imputations must be expressed in the pleadings with sufficient precision as to enable such issues to be determined". Further at p 390B his Honour said: "If the plaintiff is, as Hutley JA suggests in the present case, entitled to include within the one imputation a number of 'defamations of different seriousness', there would be no realistic way in which it could be determined whether the contextual imputations upon which the defendant relied were different in substance from that pleaded by the plaintiff or any of the other issues identified in Jackson's case, for it would be next to impossible to identify with precision just what imputation each party relied upon". At 403D his Honour made it clear in a fairly general statement that he did not propose to change the views which he had previously expressed concerning the form in which imputations must be expressed. 32 More pertinently at 404E his Honour was dealing with contextual imputations and said: "In the present case, if the defendant's contextual imputation lettered (a) is left in its present form, and the jury is invited to deal with it upon the basis that the abortions were either legal or illegal, precisely the same type of confusion may arise. In my view, it would be quite wrong to permit that possibility. I therefore strike out that contextual imputation, with leave to the defendant to replead two imputations in the alternative (if it be so advised) - one based upon the abortions being understood to have been legal, the other based upon them being understood to have been illegal". 33 The context provided by the observations of Hunt CJ at CL in Hepburn for the purposes of the requirement for precision in contextual imputations is something to which I will return. 34 In my judgment in Marsden of 13 November 1995 I held that while the form in which a contextual imputation can be pleaded does not require the same precision as that required of the plaintiff's imputation as a cause of action, where, as in the later Marsden, the contextual imputation was inherently ambiguous and so imprecise so as to give rise to prejudice in itself and so as to be capable of constituting a vehicle for the introduction by the defendant of prejudicial evidence in circumstances where the defendant can be said not to have "got it right," the contextual imputation will be struck out as embarrassing. I further held that a contextual imputation which is ambiguous and imprecise cannot be cured as to form by the supply of particulars. More pertinently however I held that there is an obligation on the defendant properly to particularise its case in support of the truth of a contextual imputation the more so when a charge of criminal conduct is made and the contextual imputation must be clear and unambiguous in its form and meaning. I further went on to hold that where a contextual imputation is criminal in its import then the leniency that otherwise is allowable in relation to the form of contextual imputations must be "held under tight rein". 35 It is the next step that I was asked to take in Marsden namely, to eliminate the reservations referred to in what I held in my earlier judgment and to pronounce that contextual imputations must be pleaded with the same precision as the imputations relied upon by a plaintiff as causes of action. 36 Attention therefore was given to the unreported judgment of Hunt J in Hansen v Border Morning Mail (unreported, 24 October 1986). 37 At p 3 his Honour said: "The form in which a defendant's contextual imputation must be pleaded does not require the same precision as that which is required for an imputation upon which the plaintiff relies. Subject to the provisions of Pt 15 r 26(1)(b) (which are directed to pleadings which have a tendency to cause prejudice, embarrassment or delay), the form in which the defendant's contextual imputation is expressed is treated with greater leniency than is the form in which the plaintiff's imputation must be expressed: Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 400-401". 38 The passage in Hepburn which his Honour cites, presumably in support of what his Honour said, is concerned with the question of whether the defendant's contextual imputations are required to differ in substance one from the other (400D). That is not precisely the same issue as to whether contextual imputations should be pleaded with the precision of the plaintiff's causes of action. His Honour goes on to say: "The Defamation Act, s 9(4), and Pt 67, r 11(3), are the only provisions in either the Act or the rules which concern the need for imputations to differ in substance one from the other. Neither is directed expressly to the defendant's contextual imputations. The plaintiff submits that this was a mere oversight on the part of the legislature and the rule committee, and argues that they should be read as referring also to the form of the defendant's contextual imputations. Where, however, is there any need for the defendant's contextual imputations to differ in substance one from the other? The reason for the requirement that the plaintiff's imputations differ in substance one from the other is clear. Section 9(2) of the Act altered the common law rule that every imputation which is conveyed by an article in its natural and ordinary meaning is included within the one cause of action; instead, each imputation now creates a separate cause of action. The provisions of Pt 67, r 11(3), are designed to control any proliferation of such causes of action (see, generally, Singleton v John Fairfax and Sons Ltd [1982] 2 NSWLR 38 at 41, 42), and to enable the defendant to identify with precision the cause of action to which he is obliged to plead. The defendant's contextual imputations do not create any cause of action. Nor is the plaintiff required to do more than join issue with them. There is therefore no need for the defendant's contextual imputations to differ in substance one from the other, at least where it is their combined effect which the defendant seeks to have weighed and measured against the plaintiff's imputation to which they are pleaded. Where the contextual imputations are pleaded as true alternatives, however, the position may well be different: it is unnecessary for me to determine that point in the present case. It is also to be hoped that pleaders will attempt to plead contextual imputations with the same precision as the plaintiff's imputations are to be pleaded - if for no other reason than that to do so will be conducive to clarity at the trial. The provisions of Pt 15, r 26(1)(b), permitting pleadings which have a tendency to cause prejudice, embarrassment or delay in the proceedings to be struck out, should also be kept firmly in mind. But I am unable to say that contextual imputations which do not differ in substance one from the other are defective in form where, as in this case, it is their combined effect which the defendant seeks to be considered by the jury under s 16". 39 It will be seen that it was in the course of discussing the issue of the question of difference in substance, one from the other, in contextual imputations that his Honour did remark to the effect that the requirement of difference in substance pursuant to Pt 67 r 11(3) was to enable the defendant to identify with precision the cause of action to which the defendant is required to plead. In Hansen at pp 3 - 4 his Honour goes on to further develop this theme, as it were, when his Honour says: "The reasons for the distinction are simple. The plaintiff's imputation identifies the cause of action upon which he relies. The defendant is obliged to plead any defence of truth or contextual truth to it. Precision is therefore needed to enable the defendant to know the case which it has to meet and to prepare the case which it must prove. On the other hand, the plaintiff is required to do no more than simply join issue with the defendant's contextual imputation. It is the defendant who must prove the truth of that contextual imputation, and the plaintiff may obtain particulars of the facts and matters upon which the defendant relies in order to do so. Those particulars will enable the plaintiff to know the case which he has to meet. That is their very purpose. Any imprecision in the contextual imputation should therefore be cured by the supply of proper particulars". 40 It is in this context that the headnote should be understood as to its first part, namely, "the form in which a defendant's contextual imputation must be pleaded does not require the same precision as that which is required to the imputation upon which the plaintiff relies, and the form in which it is pleaded is treated with greater leniency. That is not to say, however, that sloppy pleading by defendant's will be encouraged". 41 In Hepburn his Honour made clear at p 400F-G that his Honour was not deciding where the contextual imputations are pleaded as true alternatives that they must differ in substance one from the other. 42 What turned out to be of importance in Hepburn was that to which I have already referred from p 404 of the judgment (supra) where his Honour stated that the relevant contextual imputation "left in its present form" would bring it about that the jury would be confused as to whether or not the abortions referred to were legal or illegal. Confusion would arise and it was on that basis that his Honour struck out the relevant contextual imputation in Hepburn. 43 In Hansen however his Honour was concerned with the issue reserved from Hepburn as to contextual imputations being pleaded as true alternatives. 44 Having cited the passage from p 400 - 401 referred to above, his Honour goes on in Hansen at p 7 to state: "As explained in Hepburn's Case, the reason for the requirement that the plaintiff's imputations differ in substance is the need to control any proliferation of the causes of action upon which the plaintiff relies. That need does not apply to the defendant's contextual imputations, whether true alternatives or not. The only need for truly alternative contextual imputations to differ in substance one from the other arises when the trial judge comes to explain the nature of the defence of contextual truth to the jury and to apply those directions to the contextual imputations which have in fact been pleaded. It will be quite impossible for him to do so if those imputations intended to be true alternatives do not differ in substance one from the other. There would thus be a breach of Pt 15 r 26(1)(b), although the problem would not arise until the trial. As was said in Hepburn's Case, it is to be hoped that pleaders will attempt to plead contextual imputations with the same precision as the plaintiff's imputations are to be pleaded - if for no other reason than that to do so will be conducive to clarity at the trial. As the problem which is caused by the defendant's failure to do so in any particular case is unlikely to prejudice the plaintiff, it would be a very rare case that the plaintiff would succeed in having such imputations struck out pursuant to Pt 15 r 26(1)(b) prior to the trial. Some specific and serious prejudice would have to be demonstrated before action were taken at that stage. At the trial, of course, the judge is in a position to force the defendant to knock its contextual imputations into shape". 45 This as I read the judgment is the nub of it. Again, his Honour is not focussing upon, for the purpose of coming to his decision on the issue in relation to truly alternative contextual imputations, the degree of specificity required in their pleading. His Honour merely reiterates what is stated to be no more than a reason for the lack of requirement of precision in contextual imputations as compared to the requirement therefor in the plaintiff's imputations. 46 In Hansen in the end, his Honour was persuaded by Mr Shand Q.C. that notwithstanding the sloppy pleading in terms of form, the three relevant contextual imputations were different in substance and were true alternatives and therefore were not to be struck out pursuant to Pt 15 r 26(1)(b). Thus, the second component of the headnote: "contextual imputations which are intended to be true alternatives (where they differ in degree of seriousness) should differ in substance one from the other. As the problem caused by a defendant's failure to comply with such an obligation in any particular case is unlikely to prejudice the plaintiff, it would be a very rare case that the plaintiff would succeed in having such imputations struck out pursuant to SCR Pt 15 r 26(1)(b) prior to the trial. Some specific and serious prejudice would have to be demonstrated before action were taken at that stage". 47 The first component I held to be no more than obiter. 48 The position is reached, so it seems to me, that from Hansen any imprecision in the contextual imputation can be cured by the supply of proper particulars. In my first decision in Marsden I, as it were, advanced the position to a point beyond a mere imprecision which could be cured by the supply of particulars to an ambiguous and imprecise contextual imputation which cannot be cured by the supply of particulars: such a contextual imputation would be amenable to being struck out under SCR Pt 15 r 26(1)(b). 49 When however one approaches this matter afresh, the following propositions can be stated. 50 The word "imputation" in s 16 has no different meaning to the word "imputation" in s 9. The word "specify" in Pt 67 r 11(2) can have no different meaning to the word "specify" in SCR Pt 67 r 15(b). 51 Next, the requirement for precision in the plaintiff in pleading imputations as causes of action is necessary to enable the defendant to know precisely what case it has to meet. The fact that the defendant as a defence (as opposed to a cause of action) specifies an imputation constitutes no basis for what hitherto has been described as leniency in terms of the form of such specified contextual imputation. The plaintiff pleads an imputation as a cause of action entitling that plaintiff to damages by reason of the injury to reputation by the publication of that imputation. The defendant pleads an imputation injurious to the plaintiff's reputation (that is, a defamatory imputation) with a view to precluding, at best, the plaintiff's recovery of any damages for injury to reputation caused by the plaintiff's imputations or at least, to minimise the quantum of damages in circumstances where the s 16 defence does not meet all the plaintiff's imputations. It can be seen therefore that a plaintiff's imputation and a defendant's contextual imputation operate to different ends but both vis-a-vis the plaintiff's reputation. 52 In NRMA Insurance Limited (supra) prior to the passage which I have already cited, Hunt J 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 prospect 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 defence being removed from the issues for trial if it is clear either that is the only purpose for which they have been pleaded or that that is the only effect which they will have." 53 One would think that it is desirable that the vice to which his Honour is referring in this passage, ("almost getting it right") will the more easily be eliminated by a requirement of precision in the pleading of contextual imputations to the same extent as for a plaintiff's imputation. Equivalent precision in a contextual imputation will make more easy the resolution of issues as to capacity of the matter complained of to convey such contextual imputations, the question of whether those imputations differ in substance one from the other or differ in substance from the imputations pleaded by the plaintiff and will serve to avoid embarrassment both at the trial and at the interlocutory level with which his Honour dealt in the "knocking into shape" passage I have cited above from Hansen. 54 Therefore, when one takes into account the wording of the relevant sections and the relevant rules together with the common role each of the plaintiff's imputation and a contextual imputation plays vis-a-vis injury to the plaintiff's reputation, and being of the view that Hansen's case is authority only for the second proposition (contextual imputations pleaded as true alternatives being required to differ in substance) I can see no reason not to hold that there is a requirement in the defendant to plead with the same precision a contextual imputation as is required in a plaintiff to plead an imputation as a cause of action. 55 What are described by Hunt J as the "simple" reasons for the distinction (Hansen p 3) are available mutatis mutandis as between the plaintiff's imputation(s) and the defendant's contextual imputation(s). The fact that the plaintiff is required to do no more than simply join issue with the defendant's contextual imputation is, in my very respectful view, neither here nor there. There may be every reason for the plaintiff to require precision and specificity in a contextual imputation: not the least to avoid the "almost getting it right" device but also upon the joinder of issue to compel the issues particularly to be clarified before the trial. 56 There will, of course, always be available for operation Pt 26 r 15(b) but in my view the statutory foundation, the precision of the Rule and the "common role" of the imputations as I have described it are sufficient to formulate the proposition I have enunciated as to the requirements of precision being the same for both the plaintiff and the defendant.

Strike Out Contextual Imputation 6 (a)(1) 57 That contextual imputation is: 'The plaintiff, as a medical practitioner, engaged in scientific fraud". 58 Even allowing for the less stringent test upon which the plaintiff's submissions were advanced, I am not persuaded that the first contextual imputation is "imprecise". 59 The plaintiff contends that this contextual imputation is "so vague as to cover a multitude of disparate sins". It is also said that the adjective "scientific" does not much reduce the problem. The wrongs covered by the term "fraud" vary widely both in character and degree. A reference to the lexicography illustrates this with definitions stretching in all directions including simple deception, false representations, dishonest artifice or trick, intending to deceive, not fulfilling what is claimed or expected and so on. It is submitted that it would be difficult to imagine a charge more apt to be misleading than "fraud". 60 The plaintiff then goes on to submit that avoidance of confusion in this case requires the defendant to make it clear to the jury from the wording of the imputation itself precisely what conduct is alleged. It is submitted that if it be the defendant's position that the plaintiff "falsified test results" and that is all it seeks to raise, then the plaintiff submits that the imputation "should say so" rather than leave open the opportunity for the type of confusion as occurred in the Singleton v Ffrench (1986) 5 NSWLR 418 at 433-436. 61 The provision of the particulars should not be permitted to cure what is said to be this defect. If a general imputation involving fraud is so serious and so ambiguous as to generally require specific pleading, it is an imputation which ought not be "corrected" by particulars but should require specific pleading. 62 For the defendant it was submitted that the plaintiff can be in no doubt as to what the defendant's position is as to this imputation (see the particulars). 63 The defendant goes on further to submit and quite pertinently, in my view, that the term "scientific fraud" is well understood as constituting a precise reference to deceit or deception carried out with respect to scientific data and experimental results. The matter complained of makes it clear that the plaintiff is being accused of scientific fraud in his work as a medical practitioner. 64 The imputation arises from the matter complained of itself; the defendant cannot be required to plead an imputation which is more precise and more particular than that capable of being conveyed by the words used in the matter complained of itself. 65 It is contended that there is no vagueness or ambiguity as to the meaning of this imputation and certainly none (presumably in the light of the particulars) such as to confuse a jury. 66 It is important to bear in mind the context in which the specific term "scientific fraud" is used. The relevant passage in the matter complained of (page 38 of Schedule A) is as follows: "Peter Couchman: There were striking parallels between what happened in New Zealand and allegations about Dr William McBride in Australia. They were aired by the ABC Broadcaster Norman Swan last year. Norman Swan (previous recording): This is a program about the conduct of science and how misconduct can escape detection, be covered up or just ignored. It is also about the way … Peter Couchman: In this case, McBride was accused of scientific fraud, but otherwise the circumstances are the same. Colleagues knew about it. One or two tried to do something but failed because there was no outside control. It means Professor Green's research probably could have happened anywhere, and Norman Swan thinks that is important". 67 It seems to me from this part of the matter complained of (but for which there would probably have been no action taken by the plaintiff), the availability of the contextual imputation in the form pleaded is made abundantly clear. The particulars provided make it abundantly clear what the defendant's case will be. There is, in my view, no room for doubt, ambiguity, imprecision or any other form of uncertainty. 68 I decline to strike out contextual imputation 6(a)(1).

Strike Out Contextual imputation 6( a )(2) 69 This contextual imputation is as follows: "The plaintiff sought to conceal his scientific fraud in order to avoid its detection ". 70 Again the plaintiff relies upon the ambiguity in relation to the expression "scientific fraud". This I reject. 71 It is also submitted that the contextual imputation is tautological. The tautology is involved in the notion "why else would one conceal fraud other than to avoid its detection?" 72 It is complained that it is vague in terms of not identifying from whom there was concealment or the manner of concealment. It is simply submitted that the charge contained in this contextual imputation is simply so broad that the imputation should be narrowed so that its meaning is clear to the jury. 73 For the defendant it is submitted that the matter complained of simply refers to "the conduct of science and how misconduct can escape detection, be covered up or just ignored … in this case McBride was accused of scientific fraud - but otherwise the circumstances are the same". 74 It is said by the defendant in a submission akin to that relevant to the first contextual imputation that the matter complained of does not disclose the nature of the concealment. What is said here however is that the particulars of truth relied upon in support of this allegation do. 75 It is argued by the defendant that the imputation is not a tautology as suggested. It is put forward that a person may seek to conceal misconduct for a variety of purposes including, for example, to avoid detection, to avoid embarrassment, to avoid prosecution, to obtain financial benefit, to obtain continued enjoyment of status. It is argued that the stated purpose, "in order to avoid detection" provides an ingredient of the precision which the plaintiff wrongly asserts the imputation is lacking. 76 In my view, misconduct is concealed to avoid the feared consequences of exposure. The person may seek to conceal misconduct to ensure that its exposure does not cause embarrassment; to avoid prosecution upon exposure, to maintain financial benefits of which that person would be deprived upon exposure; to continue to enjoy a status that would be taken away from that person upon exposure. 77 In other words it is clear to me that it is inherent in the proposition that one conceals misconduct, that one does so in order to avoid its being detected. The second part of the contextual imputation is an epexegesis, the only thing which it adds being tautological as submitted by the plaintiff. To that extent the imputation warrants being struck out as bad in form. It would not be bad in form if the latter part was excluded. 78 Contextual imputation 6(a)(2) is struck out.

The Matter Complained of is Incapable of Bearing Contextual Imputation 6( a )(2) 79 For the plaintiff it is contended that there is no mention in the telecast of any attempts by Dr McBride to cover up research. Whatever the form of the imputation the notion of Dr McBride attempting to cover up the fraud is simply not available. 80 It is contended that, to the contrary, Dr McBride's colleagues knew about his research. 81 An essential part of the New Zealand story, if I might put it that way, is set out at page 8 of the transcript: "But for twenty years, women here were used in a potentially dangerous study of cervical cancer, without ever being consulted or even told what was going on. And that study was carried out with the full knowledge and approval of the hospital administration. What happened here is a terrible indictment of the medical profession. There were doctors in this hospital who knew what was going on; who knew women's lives were at risk; who even knew women were dying in the end - but did nothing publicly to blow the whistle on their colleagues. Now, I suppose it could be said that too much could be made of all this, that this was one incident in one hospital in the North Island of New Zealand. But it's not as simple as that. Because what happened here raises all sorts of questions about the way medicine is being practised - and about the ethics of medical research - and especially the rights of patients to know what doctors are doing to them and why". 82 Preceding the extract from page 38 quote above, there is a reference (page 35) to the failure of the system and the absence of control over medical research, the exposed fallibility of the medical profession and the necessity for an independent organisation to be available to monitor research. Immediately preceding the extract there is attributed to Dr Alan Gray the following words: "there was no impartial, independent organisation outside of National Women's that could compulsorily investigate it using peer review". 83 Further, on page 23 there is the statement in relation to a Professor Bonham and his relationship with Dr Green and what was happening in New Zealand as follows: "He was also head of the Medical Committee and later the Ethics Committee. He was the one who pulled the strings in the hospital and controlled most of the research. He knew exactly what Green was doing but refused to act against him despite the protests of doctors involved in the project". 84 The program, in my view, is incapable of conveying vis-a-vis the plaintiff any suggestion that he intentionally and directly "sought to conceal his scientific fraud". Indeed, the point is made in the context of accountability in the context of knowledge of others, that Dr Green was able to do what he did notwithstanding the knowledge of others and failures on the part of some to "blow the whistle". This might involve some sort of institutionalised "cover-up" but is not available, in my view, to attribute to the plaintiff active and personal concealment. 85 The defendant, as the plaintiff submits correctly, being in possession (it is assumed) of material that would establish the truth of a contextual imputation, seeks merely to plead that contextual imputation, without regard to the fundamental question of whether or not the ordinary reasonable viewer would understand the program to have conveyed it. 86 The test is "reasonableness" (Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158). I am firmly of the view that applying that test the matter complained of is incapable of conveying the contextual imputation of the substance of seeking to conceal scientific fraud as is sought to be pleaded by the defendant. 87 Though I have found that the imputation is defective in form by reason of the addition of the word "in order to avoid its detection", its substance namely, "the plaintiff sought to conceal his scientific fraud" is incapable of being conveyed as a matter of law and I so determine pursuant to Pt 31 r 2.

Is The Defence of Contextual Justification Available As a Matter of Law? 88 The plaintiff seeks to have the whole defence "struck out". The basis upon which this relief is sought is the application of what is described as the third criterion of a s 16 defence as referred to by Hunt J in Jackson v John Fairfax (supra) and Priestley JA in Waterhouse v Hickie (supra) namely: is the nature of the defendant's contextual imputation (with the combined effect of those contextual imputations where more than one, and where appropriate to be so combined), such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's imputation to which it or they are pleaded do not further injure that reputation. 89 This criterion is founded in s 16(2)(c) of the Defamation Act 1974. 90 It seems to me that the proper approach is whether or not as a matter of law the contextual imputation, which I found to have been capable of being conveyed namely, 6(a)(1) should be left to the jury (see Jackson (supra)). This is a question for separate determination under SCR Pt 31 r 2. 91 In Hepburn at 406 it was held that the then pleaded contextual imputations should not go to the jury in circumstances where to leave it to trial would create a high risk of prejudice. In Warren v Nationwide News Pty Limited (unreported, Levine J, 14 May 1999) - page 4 - I held that except in the clearest of cases it is unlikely that a Court in the Defamation List would intervene in a way that in reality pre-empts the litigation of issues at trial after the jury has performed its function. That comment was made in respect to publications to which the 1994 amendments to the Defamation Act apply (the "7A trial"). It is still of general relevance. 92 The following trite assumptions must be made. If none of the plaintiff's imputations is found as a matter of fact to be conveyed by the matter complained of, the defence under s 16 becomes irrelevant. If one or more of the plaintiff's imputations are found to be conveyed and the defendant's contextual imputation(s) is/are not found to be conveyed, the defence is irrelevant. If one or more of the plaintiff's imputations is/are found to be conveyed as is the defendant's contextual imputation(s) then its (or their) effect in accordance with the terms of the section and authority is gauged in relation to each of the plaintiff's imputations (see TCN Channel 9 Pty Limited v Antoniadis (1998) 44 NSWLR 682 at 688 sqq). 93 It is here submitted for the plaintiff that the imputations relied upon by him after perfectly clear in their import in themselves and in the light of the program that gave rise to them. They are concerned with a relationship of the plaintiff and female patients and exposure to danger of their lives and health and the absence of regard to the rights of those patients in those circumstances. These are allegations of the gravest kind to be made against a member of the medical profession. The defendant has not sought to justify them. The defendant's contextual imputation (that is, the surviving one to the effect that the plaintiff engaged in scientific fraud), if proved to be true by the production of evidence in support of the particulars, relates to dishonesty in relation to the reporting of experiments on animals. It is "scientific" fraud which can be contrasted with clinical treatment. 94 The plaintiff's position is that assuming that the plaintiff's imputations are carried, they are not proved to be true (and presumably the plaintiff will assert that they are false), they will be damaging to the plaintiff's reputation in such a way that the truth of an imputation that the plaintiff engaged in scientific fraud could not operate as a complete defence, that is, to deprive the plaintiff of any verdict on those causes of action. The application of reason must bring it about that the imputations pleaded by the plaintiff and not proved to be true did further injure that reputation notwithstanding the truth of the defendant's contextual imputation. 95 The nature of the contextual imputation is a charge relating to scientific research and dishonesty or fraud in respect to its conduct and reporting. Is the truth of that assertion capable of being rationally considered by the jury as so affecting the plaintiff's reputation that imputations with respect to the clinical treatment of women and placing their health and lives in danger (which are not proved to be true) do not further injure the reputation of the plaintiff to the point of the defendant's being entitled to a verdict? 96 It is contended that the answer to this question must be in the negative - that is, the substantial truth of the contextual imputation cannot be rationally considered by the jury in the face of the "untrue" imputations pleaded by the plaintiff with the effect the section provides. 97 It is argued for the plaintiff that this is a clear case of the defendant seeking to "get it right". That being so there is immense risk of prejudice to a trial arising from the admission into evidence of material on not what could be, but presently can be held to be, a false issue. 98 In this case I am persuaded by the submissions for the plaintiff that the third criterion cannot be met with regard to the remaining (and I would add the unsuccessful) contextual imputation and accordingly rule that the defence under s 16 of the Defamation Act 1974 shall not go to the jury.

Section 13 Defence Particulars 99 The plaintiff seeks to have the particulars of the defence under s 13 struck out. 100 A defence under s 13 is a complete defence to the publication of matter which is defamatory in the sense of carrying imputations. 101 The matter complained of was published on 8 August 1988. The particulars in support of the defence under s 13 are set out above and it is to be noted that two of the particulars of what are said to be "the circumstances of publication" are matters that occurred in 1993, five years after publication of the matter complained of (particular 8(c)), and 1996, eight years after the matter complained of (particular 8(d)). 102 Further, particular 8(b) relies upon what are said to be public findings in November 1988 of the Gibbs inquiry, something that occurred after publication of the matter complained of. The only particulars that pre-date the publication, as-it-were, are (a) and (e) which refer to the public knowledge from December 1987 that the plaintiff had engaged in scientific fraud and from December 1987 that there was public knowledge of the plaintiff's misconduct as a medical practitioner. 103 The plaintiff relies upon the decisions of the Court of Appeal in Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 at 800F; Chappell v Mirror Newspapers Limited (1985) Aust Torts Rep 80-691 and King & Mergen Holdings v McKenzie (1991) 24 NSWLR 305. 104 The defendant's position in relation to the plaintiff's application to have these particulars struck out was by of a formal submission that each of the above cases was wrongly decided. 105 Each of the above cases is binding upon me. None of them support, in my view, particulars of "circumstances of publication" of the matter complained of founded in post-publication events. 106 The remaining two particulars point to pre-publication events, but are not otherwise specified. It was not sought to be argued before me, for example, that whatever particulars (a) and (e) might mean, they could fall within what Mahoney JA said in King & Mergen at 301F, that is, where the defendant is suggesting that prior to the publication, the persons to whom the defamatory matter was published already knew the material that was contained in it (see 301B). 107 The particulars as framed do not even support this contention. Arguably there would even be difficulty in relation to it by reason of the stark difference between the publication concerned in King & Mergen (a notice of very limited circulation) and the publication here on a mass medium. 108 Accordingly, I hold that the particulars set out in paragraph 8 are embarrassing and struck out. None of them in the light of the authorities to which I have referred, in their terms could sustain the complete defence constituted by s 13.

Particulars in Mitigation of Damages 109 Pursuant to SCR Pt 67 r 18(2) the defendant has given notice of its intention to make a case in mitigation of damages by reference to the bad reputation of the plaintiff. 110 The particulars are prefaced by the words "the plaintiff prior to the date of publication of the matter complained of and since that time did not have a good reputation in the practice of his profession". 111 The defendant then relies upon the same particulars as are set out in relation to the s 13 defence. 112 For the plaintiff it is submitted that the "modern" line of authority commences with the decision of Cave J in Scott v Sampson (1882) 8 QBD 491 at 503-505. 113 The modern line of authority establishes that what the defendant has to establish is that the plaintiff had (a) at the time of the publication complained of (b) an established or settled general bad reputation and (c) in the relevant sector. 114 What evidence is admissible in support of a case under this rule is somewhat circumscribed. In Cairns v John Fairfax & Sons Pty Limited (1983) 2 NSWLR 708 Samuels JA adopted the words of Lord Denning in Associated Newspapers Limited v Dingle [1964] AC 371 at 410-411: "These cases make it clear that the Court will reject 'evidence of rumours or suspicions to the same effect as the defamatory matter complained of …' and, '… evidence of particular facts tending to show the character and disposition of the plaintiff' … I do not consider the discussion in the media, or the statements made by the appellants themselves, are capable of constituting evidence of bad reputation" ( at 716C-E ). 115 In Kelly v John Fairfax & Sons Pty Limited (1982) 2 NSWLR 478 Hunt J at 479 said: "The witness to be called by the defendant as to reputation can be asked in chief only what they knew of the general reputation of the plaintiff in the relevant sector: Plato Films Limited v Speidel (1961) AC 1090 at 1123, 1139, 1400 & 1147. Those witnesses may, of course, be cross-examined by counsel for the plaintiff as to the grounds on which they say that the plaintiff's reputation was bad in that sector and as to what their belief is based upon: ibid, at 1140. But in the absence of a defence of truth or particulars pursuant to Pt 67, r 18(3), a defendant is never entitled to lead evidence of specific instances of misconduct. It is, however, open to a defendant to cross-examine the plaintiff as to specific instances of misconduct where they go to his credit as a witness: Hobbs v Tinling & Co Ltd [1929] 2 KB 1 at 18,19. But once the plaintiff has denied those matters, the defendant is bound by those denials and is not entitled to lead evidence to contradict them: see also Associated Newspapers Ltd v Dingle [1964] AC 371; Wishart v Mirror Newspapers Ltd [1963] SR (NSW) 745; 80 WN 1567". 116 Reliance was also placed on the decision of the Court of Appeal in Chappell (supra) and of Hunt J in Hughes v Mirror Newspapers Limited (1985) 3 NSWLR 504 here his Honour held that the evidence of a witness who heard of the plaintiff after the publication and swore that his reputation then was bad was inadmissible to prove and establish bad or settled reputation as at the time of the publication complained of or prior thereto (512F). 117 There is clear authority in support of the proposition that it is not only a person whose reputation is spotless who is entitled to be vindicated (see Cairns (supra) at 714D). 118 What is here contended for the plaintiff is that this another "back door" means of trying to get before the jury evidence of truth in the absence of an available defence of justification (and also the absence of an available defence under s 13). 119 The particulars are deficient. Sub-particular 9(a) is a particular concerning a specific instance namely, an alleged "knowledge" of scientific fraud. That is the type of material that could be elicited in cross-examination of a reputation witness who gave relevant and admissible evidence that at the time of the publication complained of the plaintiff had a bad reputation in the relevant sector. 120 The remaining particulars (b) - (d) are again both specific instances and matters that have occurred subsequent to the publication of the matter complained of and would not be available to establish as at the time of that publication either, by way of evidence, a settled bad reputation in the relevant sector. 121 For the defendant it is acknowledged that a plaintiff's entitlement to damages is generally said to compensate a plaintiff who has been injured in his reputation as from the date of publication until the date of the act of vindication, namely the verdict, but generally not after verdict: John Fairfax & Sons Pty Limited v Kelly (1987) 8 NSWLR 131 at 143. 122 It is submitted that if, as here, that period is extended over a longer than usual period during which the plaintiff is said to suffer substantial damage to his reputation as a result of his own proven misconduct (which misconduct it is contended he ultimately admits), then the plaintiff in an appropriate case may argue that even if he had a bad reputation at the time of the defamatory publication his reputation is likely to deteriorate after that publication so as to entitle him to some damages. It is said that the question is what the reduction if any in damages should be by a jury in such a case because of that plaintiff's developing bad reputation due to his misconduct. Similarly, if a plaintiff seeks compensation for having been injured in his reputation over a long period which includes a time when his reputation was generally bad, the particulars of bad reputation in the relevant period may justify a jury in reducing damages that might otherwise be awarded. 123 I am not prepared to accept these submissions insofar as I can understand them. They are contrary to well established principle and an endeavour, as was remarked for the plaintiff, again to introduce prejudicial material on the basis of a false issue. 124 Insofar as reliance is sought to be placed on the statement of Lord Hailsham in Broome v Cassell & Co Limited (1972) AC 1027 at 1071, what his Lordship there said, in context, was: "In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitution in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimate sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by the jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J. well said in Uren v John Fairfax & Sons Pty Ltd 117 CLR 115, 150: 'It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money'. This is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply . What is awarded is thus a figure which cannot be arrived by any purely objective computation. This is what is meant when the damages in defamation are described as being 'at large'" (emphasis added). 125 I do not see any of the matters presently sought to be particularised as capable on a rational basis of falling within what his Lordship there said. The conduct to which his Lordship was referring was conduct of the plaintiff in connection with the publication of the libel. 126 I am not persuaded the defendant can make out any case by tendering admissible evidence in mitigation of damages on the issues as particularised. No authority or principle supports such an approach. 127 The particulars will be struck out. 128 Accordingly, the formal orders are:

I decline to strike out contextual imputation 6(a)(1) on the basis that it is embarrassing by reason of being bad in form.

I strike out contextual imputation 6(a)(2) as embarrassing by reason of defects in form in accordance with these reasons.

I otherwise hold as a matter of law that the matter complained of is incapable of conveying a contextual imputation of the substance of that sought to be pleaded in 6(a)(2).

I hold as a matter of law, in accordance with these reasons, that the defence pursuant to s 16 of the Defamation Act 1974 will not go to the jury in that I hold, as a matter of law, that the nature of the contextual imputation is such that its substantial truth is incapable of being rationally considered by the jury as so affecting the plaintiff's reputation that the plaintiff's imputations to which it is pleaded did not further injure that reputation.

The particulars appended to paragraph 8 of the Defence in support of the plea under s 13 of the Defamation Act 1974 are struck out.

The particulars appended to paragraph 9 of the Defence in mitigation of damages is struck out.

8. The matter is listed for directions in the Defamation List on 18 August 2000.

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