(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.