Defence of contextual truth
49On the twentieth day of the hearing, the jury returned with answers to the first set of questions. As to the first article, the jury found that two of the four imputations complained of by the plaintiff were conveyed and were defamatory. The jury further found that one of those imputations was substantially true:
That the plaintiff behaved in a dishonourable way by permitting his old firm to go into administration and, on the same day, opening a new firm (imputation (b) complained of in respect of the first article).
50As to the second article, the jury found that all four imputations complained of by the plaintiff were conveyed and were defamatory. Of those, the jury found that the following imputation was substantially true:
That the plaintiff had conducted his firm's affairs dishonourably and so as to permit it to avoid payment of the debts which it owed (imputation (e) complained of in respect of the second article).
51In light of those answers, a dispute arose between the parties as to whether, in its consideration of the defence of contextual truth under s26 of the Defamation Act, the jury should in each case exclude consideration of the true imputation.
52Section 26 provides:
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ( "contextual imputations") that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
53Mr Andronos, who argued this issue on behalf of the plaintiff, submitted that, when making the determination as to "further harm" under s26(b), the jury should be directed to consider all of the imputations complained of by the plaintiff which the jury found were conveyed and were defamatory. He submitted that their consideration of that issue should in each case include consideration of the harm done by the imputation found to be substantially true. On behalf of the defendants, it was submitted that the question posed by s26 should be determined in each case disregarding the imputation the jury found to be substantially true.
54I ruled in favour of the defendants on that issue (at T1685.35). I directed the jury accordingly, including by giving them a written direction as to the defence of contextual truth with the following paragraph:
As to the third issue, you are not asked to compare imputation with imputation. On the one hand, you must consider all of the facts, matters and circumstances that establish that the contextual imputations are substantially true. On the other hand, you must consider all of the plaintiff's defamatory imputations (disregarding any which you have found to be substantially true).
55The jury's task under s26(b) was left in the form of a written question as follows (in respect of the first article):
Have the first and second defendant, Fairfax Publications Pty Ltd and Marcus Priest, established that the publication of the following meaning:
(a) The plaintiff so failed to meet his tax obligations that he was a major scalp in a crackdown on unpaid tax by the Australian Taxation Office.
Did not further harm the reputation of the plaintiff because of the substantial truth of the additional meanings (that is, those you have answered Yes in Question 2).
56These are my reasons for taking that approach.
57The plaintiff's position finds support in the decision of the Supreme Court of Queensland in Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375 at [39] to [43] per Dalton J. Her Honour said (at [40]-[41]):
In my view it follows from the principles in Besser that all the plaintiff's imputations found to be conveyed and defamatory are considered against the substantial truth of all the contextual imputations. Under the previous legislative regime in New South Wales, where the imputation was the cause of action, a finding by the jury that one of several plaintiff's imputations was substantially true, in effect, removed it from the jury's consideration. It was not to be further considered, including in the comparative process involved in the contextual truth defence. Under the Act, as explained in Besser, to succeed on a defence of substantial truth - s 25 of the Act - it is necessary for a defendant to show that all the imputations in the matter complained of are substantially true. It does not avail a defendant to prove that some, but not all, imputations conveyed by defamatory matter are true, although that may go in reduction of damages (partial justification).
If a defendant fails to prove a defence pursuant to s 25 of the Act, the question becomes whether or not there is a defence available pursuant to s 26 of the Act, and in performing the exercise required by that section, it seems to me there can be no warrant for excluding from consideration some of a number of imputations made which the jury consider to be substantially true.
58The decision in Mizikovsky provides a careful and helpful analysis of the complexities of the defence of contextual truth under s26 of the Defamation Act and was applied by me (on a different issue) in this trial (see McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 at [18]). However, with great respect to Dalton J, I do not agree with her Honour's conclusion on this issue. Accordingly, acknowledging the proper constraints on declining to follow the decision of the superior court of another state dealing with nationally uniform legislation, I determined that I should not follow Mizikovsky on this point.
59In reaching her conclusion, Dalton J placed considerable emphasis on statements of this court in respect of the former defence of contextual truth under s16 of the Defamation Act 1974. In particular, her Honour noted that the defence under that section stood as an independent and alternative defence to the defence of substantial truth.
60A number of statements to that effect have been made by Hunt J, the former Defamation List Judge of this Court, whose expertise and wisdom in this field are legendary. Dalton J cited the following extract from his Honour's judgment in Allen v John Fairfax & Sons (NSW Court of Appeal, 2 December 1988, unreported). The emphasis (both underlining and italics) is that of Dalton J:
The defence of contextual truth afforded by s 16 accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence is available to the cause of action based upon that imputation. It asserts that the imputations pleaded by the defendant (the contextual imputations) are also conveyed by the matter complained of and that, even though the plaintiff's imputation is otherwise indefensible, such was the effect of the substantial truth of the defendant's contextual imputations upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation (in the sense that it did not cause additional injury to that reputation.)
61As observed by Dalton J in Mizikovsky, those remarks have been cited by Nicholas J, the present Defamation List Judge, in Con Ange v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 204 at [15] and are echoed in similar remarks of Hunt J in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWSC 364.
62Dalton J acknowledged that, contrary to the position under the 1974 Act, it is no longer the case that the cause of action in defamation is the imputation itself. On that basis, her Honour suggested that the italicized words "based upon that imputation" in the remarks of Hunt J in Allen (set out above) ought to be ignored.
63I would interpret the significance of those words differently. In my respectful opinion, consideration of the fact that a defendant now has to defend the matter complained of rather than individual imputations reveals that the high level description of the defence of contextual truth offered by Hunt J in Allen should not inform the proper construction of s26 of the 2005 Act so far as the present issue is concerned.
64The remarks of Hunt J in Allen were directed to explaining the logic of the 1974 Act. Under that Act, since the imputation was the cause of action, the defence of contextual truth only arose for consideration on the assumption that no other defence was available to the cause of action based upon that imputation.
65The introduction of the 2005 Act brought NSW in line with other States in providing that there is a single cause of action in relation to the publication of defamatory matter even if more than one defamatory imputation is conveyed (s8 of the Act). The significance of that change and its impact upon defences of justification (both under the 2005 Act and at common law) are carefully analysed in the judgment of McColl JA in Besser v Kermode [2011] NSWCA 174 especially at [75] to [86]; Beazley and Giles JJA agreeing at [1] and [2] respectively.
66However, the defamatory imputations complained of by the plaintiff retain some significance, for example under Part 3 in respect of offers to make amends (see especially s14(3)) and in respect of the defences of truth (s25), contextual truth (s26) and qualified privilege (s30).
67Turning to the terms of s26 itself, Mr Andronos noted that the words "the defamatory imputations" in subsection (b) refer back to the words "the defamatory imputations of which the plaintiff complains" in subsection (a). He relied upon that aspect of the section to support the contention that the jury must consider all of the plaintiff's imputations that they have found to be conveyed and defamatory when determining whether the defendant has proved the requirement of subsection (b). I accept that is a possible construction of the section. However, I do not think that, on a purely textual basis, that is the only possible construction of the section. Further, in my view, that construction could produce absurd results and is unlikely to be what was intended by Parliament.
68To adopt the example given by Mr Dawson in argument, suppose an article conveyed the imputations that the plaintiff was a murderer, a thief and a litterbug. If the plaintiff chose not to cover the field, and sued only on the imputations that he was a murderer and that he was a litterbug, it should be open to the defendant to plead the defence of contextual truth on the strength of the imputation that the plaintiff was a thief.
69Suppose the defendant was able to prove that the imputation that the plaintiff was a murderer was substantially true, but was unable to prove the substantial truth of the imputation that the plaintiff was a litterbug. Suppose, further, that the defendant was able to prove the substantial truth of the contextual imputation that the plaintiff was a thief.
70According to the analysis propounded on behalf of the plaintiff in this case, the defendant in that example would have no defence under the Act. The defendant would have failed to prove the substantial truth of all of the plaintiff's defamatory stings. Further, the plaintiff would have defeated the contextual truth defence, since the task for the jury would be to enquire whether, by reason of the truth of the thief imputation, the murderer imputation (albeit true) and the litterbug imputation taken together did not further harm the plaintiff's reputation.
71As submitted by Mr Dawson, that analysis would enable the plaintiff to avoid the serious sting of the thief imputation by selective pleading: cf Besser v Kermode at [85] per McColl JA.
72At the conclusion of her judgment in Besser v Kermode, McColl JA summarized the courses of action open to a defendant seeking to justify defamatory matter under the 2005 Act as follows (at [86]):
In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law:
(a) prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25;
(b) prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true;
(c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification; and
(d) to the extent the defendant can not prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26.
73Mr Dawson emphasized the words chosen by McColl JA in paragraph (d) above ("to the extent the defendant can not prove"). He submitted that, rather than the supporting the plaintiff's position, as Dalton J thought it did, the decision in Besser v Kermode lends support to the defendants' position. He submitted that there is no reason for not allowing s26 to be relied upon to defend the balance of the defamatory stings that remain following consideration of a defence of substantial truth under s25.
74I think it must be acknowledged that the decision in Besser v Kermode does not determine the present issue one way or the other. The ratio of that decision is that any plaintiff's imputations that are true cannot be taken into account on the defendant's side of the test in s26(b), since they are not "other imputations" within the meaning of s26(a). The question in the present case is whether any plaintiff's imputations that are true can be taken into account on the plaintiff's side of that test in determining the "further harm" issue.
75Besser v Kermode does not answer the latter question. I was concerned at one point that the matters considered in that decision at [88] to [89] implicitly prohibit the ruling I gave but, after further consideration, I do not think that is the case.
76Separately, although not determinative, the decision in Besser v Kermode does provide some comfort in support of the view I reached. First, the language of 86 relied upon by Mr Dawson does suggest that a defendant may defend the matter relying on defences of truth and contextual truth cumulatively. In my view, although defences under the act (including those under s25 and s26) are defences to "the publication of defamatory matter", and require the defendant to defeat all of the plaintiff's defamatory stings, nothing in the language of the Act precludes defence by a process of attrition. This is not to revert to the thinking of the 1974 Act. It merely reflects common sense, in my view, that the plaintiff's remedy should lie in respect of the combination of untrue defamatory stings of which he complains.
77Further, I note that the second reading speech of the Minister of Justice and Attorney General in the Northern Territory recorded by McColl JA at [39] assumed that the issue of further harm was concerned only with harm done by untrue statements in the matter complained of.
78For those reasons, I concluded that the construction contended for on behalf of the defendants does no violence to the language of s26 and accords with the objects of the Act. Accordingly, I concluded that the defence should be left to the jury on the basis indicated.