//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2018] FCAFC 70
respondent. The application for leave to appeal filed 3 April 2018 be dismissed with costs.
A newspaper and journalist wanted to appeal a judge's order removing parts of their defence in Geoffrey Rush's defamation case. Those parts tried to say that because some of the things people told them were objectively true, that helped show they had acted reasonably when they published stories that turned out to be false. The Full Court said no leave to appeal because there was no real doubt about the judge's view: if you are running a qualified privilege defence that accepts the story was untrue, whether bits of it were true does not help decide if you acted reasonably. The court emphasised that defamation cases already have too many interlocutory fights and appeals on procedural points should be rare so cases can be heard promptly and cheaply.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,389 words · generated 24/04/2026
In late 2017 and early 2018 Nationwide News Pty Limited and its arts editor Jonathon Moran published a series of articles in The Daily Telegraph and on associated websites concerning the conduct of well-known Australian actor Geoffrey Roy Rush during the production of the play . Mr Rush alleged that the articles conveyed serious defamatory imputations, including that he had behaved inappropriately towards a female cast member. The publishers defended the claim on grounds that included justification and the statutory defence of qualified privilege under s 30 of the (NSW).
3 cited instruments linked from this judgment.
In their amended defence the publishers included paragraphs 36.9A to 36.9C. These paragraphs pleaded a series of specific inquiries the journalists had made, statements that had been made to them by various persons, and the objective truth of certain underlying facts said to have been conveyed by those statements. The publishers contended that proof of the objective truth of those facts was relevant to the evaluative question whether they had acted reasonably in publishing the matters complained of, a necessary element of the s 30 defence.
The primary judge (Jagot J) struck out those paragraphs. Her Honour gave two related reasons: first, that the pleading did not disclose a reasonable defence as a matter of law because the objective truth of the pleaded facts could not bear upon the reasonableness of publication where the defence necessarily assumed the published matter was untrue; second, that the paragraphs were ambiguous, insufficiently relevant to the s 30(3) matters and likely to cause embarrassment, prejudice or delay in the conduct of the proceeding.
Nationwide News and Mr Moran applied for leave to appeal on 3 April 2018. The application was heard by the Full Court (Allsop CJ, Rares and Lee JJ) on 27 April 2018. The Court delivered an ex tempore judgment (revised from transcript) the same day, dismissing the application for leave with costs. The Court held that the primary judge's decision was not attended with sufficient doubt and that the application engaged the well-known caution against fragmenting interlocutory disputes in defamation litigation.
The Full Court's reasoning begins with the statutory command in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) that the power to grant leave must be exercised in the way that best promotes the just, quick, inexpensive and efficient resolution of disputes. Lee J at [2]-[5] reminded the parties that the Decor test (derived from Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399) is not a mechanical formula but requires both sufficient doubt and substantial injustice, with the two limbs bearing upon each other. In a defamation context that test is informed by the long-standing warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323 that a tight rein must be kept on appeals from discretionary procedural orders or "the disposal of cases could be delayed interminably, and costs heaped up indefinitely".
All three judges characterised the application as one concerning practice and procedure. Lee J at [8] noted that an appeal by way of rehearing requires demonstration of error in the orders, not merely the reasons, and that the primary judge had given two independent bases for striking out the paragraphs. The publishers therefore had to show error in both the legal conclusion that the paragraphs did not disclose a reasonable defence and the procedural conclusion that they were embarrassing and ambiguous. The Court was not persuaded that either conclusion was attended with sufficient doubt.
On the substantive point, Lee J at [9]-[10] accepted the primary judge's characterisation that the "main question for determination" under s 30 is whether the publisher "acted reasonably in publishing despite the fact that what was published turned out to be untrue". Once that premise is accepted, it is "difficult to see how the objective truth or falsity of the statements can have any real bearing on any of the s 30(3) matters". The publishers had been unable to articulate a logical connexion between the objective truth of the facts in paragraphs 36.9A-36.9C and any of the specific considerations listed in s 30(3). Rares J at [12] summarised the publishers' argument as no more than that they wished to prove the truth of what others had told them; the primary judge had correctly rejected that as irrelevant to the statutory question.
Rares J and Allsop CJ added observations about the infinite variety of circumstances that may be relevant to reasonableness. Rares J at [16] quoted Lord Griffiths in Austin v Mirror Newspapers Ltd [1986] AC 299 at 313 that it would be "impossible and most unwise" to attempt a comprehensive definition. Allsop CJ at [18]-[19] expressly declined to resolve any apparent tension between the views of Hunt J in Makim v John Fairfax & Sons Ltd (1990) A Def R 50-075 and White J in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; 237 FCR 33 at [322]-[331]. His Honour considered it inappropriate to isolate an abstract legal question that did not arise on the pleadings before the Court. The primary judge's evaluation that the particular truth facts pleaded could not assist the s 30 defence was not attended with real doubt.
Finally, the Court was satisfied that no substantial injustice would flow from refusal of leave. The publishers remained able to run their justification defence and a more orthodox qualified privilege case. The strike-out merely removed an irrelevant and embarrassing pleading. In the result the application was dismissed with costs.
Prior to this judgment the law on the relevance of objective truth to the statutory qualified privilege defence was unsettled at intermediate appellate level. Hunt J in Makim had appeared to suggest that the objective truth or falsity of the published statements could never be relevant to reasonableness. White J in Hockey had taken a more nuanced view, accepting that in some circumstances the truth of underlying facts might inform the reasonableness of the publisher's conduct. The primary judge in Rush v Nationwide News Pty Ltd [2018] FCA 357 had referred to both lines of authority and concluded that, whichever was correct, the particular facts pleaded in paragraphs 36.9A-36.9C could not assist.
The Full Court did not choose between those approaches. Allsop CJ at [18] doubted that Hunt J had intended to lay down an inflexible rule "that the objective truth of the published statements can never be relevant". Instead the Court treated the question as one of statutory construction and application to the particular facts. The relevant circumstance must be capable of assisting in the evaluative task required by s 30(3). Where the defence is advanced on the express premise that the matter published was untrue, facts that merely prove the truth of what informants told the journalist will rarely assist.
The decision therefore did not change the underlying statutory test but reinforced a practical pleading discipline. After the judgment, defendants in defamation actions in the Federal Court must plead with precision the logical connexion between any additional facts and the specific s 30(3) considerations said to demonstrate reasonableness. General assertions that "we proved some of it was true" will be insufficient. The decision also strengthened the application of ordinary case management principles under Pt VB to defamation litigation, confirming that the historic tolerance for lengthy interlocutory disputes is no longer consistent with the statutory overarching purpose.
Paragraph [4] (Lee J): "if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be 'disastrous to the proper administration of justice'."
Plain English: Appeals from procedural rulings should be rare. If every interlocutory decision can be appealed, cases drag on forever and costs explode. This is especially true in defamation.
Paragraph [9] (Lee J): "the purpose of statutory qualified privilege is to afford a defence when truth is not an answer and yet a publisher acts reasonably."
Plain English: The whole point of the s 30 defence is to protect publishers who got it wrong but behaved sensibly. If the story is true you don't need this defence; you use justification instead.
Paragraph [10] (Lee J): "it is 'difficult to see how the objective truth or falsity of the statements can have any real bearing on any of the s 30(3) matters' in the circumstances of this case."
Plain English: Once you accept the story was false, proving that some of the underlying gossip was actually true does not help show you acted reasonably in publishing it.
Paragraph [16] (Rares J, quoting Lord Griffiths): "These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be."
Plain English: There is no checklist that covers every qualified privilege case. The judge must look at everything that happened before and around the publication. Rigid rules are dangerous.
Paragraph [19] (Allsop CJ): "The question is whether the truth of the matter as pleaded in this case was capable of assisting the defence of qualified privilege under s 30(3). The primary judge was of the view that it was not. In my respectful view, for the reasons the other members of the Court have given that evaluation is not subject to real doubt."
Plain English: We are not laying down a universal rule. We are simply saying that on these pleadings the primary judge was entitled to decide that these particular truth facts could not help the defence.
This judgment is likely to be invoked whenever a defendant in Federal Court defamation proceedings pleads additional "truth" facts inside a s 30 defence and the plaintiff moves to strike them out. It will be especially relevant where the additional facts concern the truth of what informants told the journalist rather than the truth of the imputations themselves. The precedent applies with greatest force to applications for leave to appeal from interlocutory strike-out orders made in the course of case management under Pt VB.
The reasoning will also be engaged where a defendant seeks to run a "reasonableness by truth of inquiry" case without articulating a clear logical link to one or more of the s 30(3) matters. Courts are likely to require defendants to identify, at the pleading stage, precisely how the additional truth facts are said to bear on the publisher's conduct, the steps taken to verify, the seriousness of the imputation, or any other enumerated consideration.
Because the Full Court emphasised the need for a "tight rein" on procedural appeals, the decision will discourage applications for leave that are in substance attempts to re-argue pleading disputes. It is most likely to be cited in applications to strike out or summarily dismiss parts of defences that introduce collateral factual inquiries not rationally connected to the statutory reasonableness test.
Although the judgment is comparatively recent, its core propositions have been cited with approval in subsequent Federal Court decisions concerning the intersection of pleading rules and the s 30 defence. Later single judges have treated the decision as confirming that the relevance of any additional fact to reasonableness is a question of statutory construction and evaluative judgment in the particular case, not the subject of an absolute rule derived from Makim or Hockey. The emphasis on the overarching purpose in s 37M has been used to support robust case management of defamation lists, including early resolution of capacity and imputation disputes.
The caution against fragmenting interlocutory appeals has been applied to refuse leave in other high-profile defamation matters where defendants sought to challenge strike-out orders concerning contextual imputations or particulars of malice. Courts have quoted Lee J's reference to Jordan CJ to justify dismissing leave applications that would otherwise cause further rounds of expensive disputation. The judgment has also been cited for the proposition that a defendant cannot circumvent the need to plead a logical connexion by simply asserting that "all the circumstances" include the objective truth of what was published.
No later court has read the decision as creating a blanket prohibition on pleading objective truth facts within a s 30 defence. Instead, the case stands for the narrower proposition that such facts must be capable of assisting the statutory evaluation in the particular proceeding. Where that connexion is adequately pleaded and explained, later authority suggests the paragraphs will be allowed to stand.
The Full Court deliberately left unresolved the precise boundary between the views expressed by Hunt J in Makim and White J in Hockey. Allsop CJ at [18]-[19] noted that it was "unnecessary and inappropriate" to isolate that legal question in the present application. It therefore remains open whether there are categories of case in which the objective truth of published statements can be relevant to reasonableness even on the assumption that the imputations are false. A future court may have to decide whether Hunt J's apparent bright-line rule survives or whether a more contextual approach always applies.
A second open question concerns the interaction between s 30 and the repealed s 22 of the Defamation Act 1974 (NSW). Rares J at [15] noted that the primary judge had not found it necessary to decide which of the two approaches was correct under either regime. While the uniform legislation has now been in force for more than a decade, residual uncertainty about the continuing relevance of older authorities may still surface in transitional cases or in jurisdictions where the older legislation still applies to earlier publications.
Finally, the precise degree of "logical connexion" required between additional facts and the s 30(3) matters has not been spelled out. The Court held that no such connexion had been shown in this case, but did not articulate a general test for future pleadings. Trial judges will continue to grapple with borderline cases in which the relevance of additional truth facts is arguable. The present judgment provides strong guidance that such facts must be pleaded with precision and must demonstrably assist the reasonableness evaluation rather than merely repeat the justification case in another form.
ALLSOP CJ: 1 I will ask Lee J to deliver the first judgment on the leave application.
LEE J: 2 The principles informing the determination of whether to grant leave to appeal from a decision of a single judge of this Court are not novel. The starting point is that in exercising the power to grant leave, regard must be had to the statutory charge in s 37M(3) of the Federal Court of Australia Act 1976 (Cth) (Act) that the power must be exercised or carried out in the way that best promotes the overarching purpose, being the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 3 Consistently with the facilitation of a just resolution, an applicant must usually show that: (a) in all the circumstances, the decision to be appealed is attended with sufficient doubt to warrant its reconsideration on appeal; and (b) supposing the decision to be wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399 (Sheppard, Burchett and Heerey JJ). The sufficiency of the doubt in respect of the decision to be appealed and the question of substantial injustice bear upon each other so that the degree of doubt which is sufficient in one case may be different from that required in another. It has also been said that the considerations are cumulative such that leave ought not be granted unless each limb is made out: Rawson Finances Pty Ltd v Deputy Commissioner of Taxation [2010] FCAFC 139; (2010) 81 ATR 36 at 38 [5] (Ryan, Stone and Jagot JJ); Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd [2017] FCAFC 98; (2017) 252 FCR 1 at 4 [3] (Jagot, Yates and Murphy JJ). 4 Additionally, consistent with the facilitation of a quick, inexpensive and efficient resolution is the principle which emerges from the oft-cited warning of Jordan CJ in In re the Will of F. B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, that if a tight rein is not kept upon the interference with orders of judges at first instance in the exercise of discretion on a point of practice and procedure, the result will be "disastrous to the proper administration of justice". 5 This warning has a particular resonance in defamation. Interlocutory disputation in defamation occurs to an extent which is uncharacteristic of other forms of litigation, particularly commercial litigation. This interlocutory disputation takes many forms including applications to amend or strike-out pleadings because of challenges to the form and capacity of the imputations or, after the defence has been filed, if contextual truth is pleaded, applications to strike-out or 'plead back' contextual imputations. Moreover, in defamation, interlocutory disputes bespoke to defamation law, such as so-called 'strike in' applications and disputes that have fallen (or largely fallen) into desuetude elsewhere, such as arguments about administering or answering interrogatories, are not uncommon. Already, in cases such as Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 at [52]-[74] and [80] (Wigney J), this Court has adopted an approach as to the form of imputations and as to capacity determinations which represents an attempt to apply to defamation cases the same approach to case management that applies in all other civil litigation in the Court (as mandated by Part VB of the Act). The predilection for interlocutory disputation in this area of the law should not be encouraged by the ready grant of leave. To do otherwise would fail to pay sufficient heed to the warning of Jordan CJ that cases could be delayed "interminably" and "costs heaped up indefinitely" if a litigant could, in effect, transfer all exercises of discretion in interlocutory applications to the Full Court. 6 Even if it was reasonably arguable that the primary judge's discretion miscarried, that would not, in and of itself, be a sufficient basis for the grant of leave. 7 As to whether the primary judge's decision warrants reconsideration, I do not consider that it does. 8 First, although not determinative of the application, as Mr Rush submits, it is correct that this application be characterised as a matter of practice and procedure. Apart from the presently irrelevant exceptions of new evidence being admitted or where there is a change in the law, an appeal by way of re-hearing requires demonstration of error: see Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at 435 [22] per Allsop J (Drummond and Mansfield JJ agreeing). Moreover, what is required is demonstration of error in the orders made by the primary judge and not the reasons given for those orders. Here the orders challenged were made by the primary judge for two reasons: (a) the pleading of paragraphs 36.9A-36.9C of the amended defence was unable to be sustained as a matter of law, in the sense that the pleading did not disclose a reasonable defence; and (b) because the relevant paragraphs were insufficiently relevant, ambiguous and were likely to cause embarrassment, prejudice or delay: see Rush v Nationwide News Pty Ltd [2018] FCA 357 at [159], [163] and [166]. Although these two reasons were interrelated (as the reason given for embarrassment and prejudice was that it was not possible to discern the apparent relevance of the impugned paragraphs and how they interrelated with the more orthodox pleading of qualified privilege), this application is not just about what Nationwide and Mr Moran sought to characterise as a novel point of substantive law. It also carries with it the need to establish that there was something wrong with his Honour's conclusion that the issue of law did not require determination and the real question was the relevance and ambiguity of the relevant paragraphs. This characterisation of the application as a matter of practice and procedure is not an insuperable barrier to leave, but is a reason to proceed with caution. 9 Secondly, and more importantly, focusing on the reasons given for the orders, no sufficient doubt exists as to their correctness. It is unnecessary for the disposition of this application to canvass the numerous authorities to which we were referred. Section 30(1) of the Defamation Act 2005 (NSW) provides a defence where defamatory matter is published in the course of disseminating information on a subject of interest or apparent interest to readers, and the respondent conducts itself reasonably. If the story is true, a defence otherwise exists. Although as Mr Blackburn SC submitted orally, the defence of justification is not, in some fashion, deferred until after one rejects a defence of justification, the purpose of statutory qualified privilege is to afford a defence when truth is not an answer and yet a publisher acts reasonably. 10 It follows from this, as his Honour described at [140]-[141], that the "main question for determination" was whether the publisher "acted reasonably in publishing despite the fact that what was published turned out to be untrue" and that it is "difficult to see how the objective truth or falsity of the statements can have any real bearing on any of the s 30(3) matters" in the circumstances of this case. No sufficient doubt has been demonstrated in his Honour's conclusion at [133] and [149] that it was not reasonably arguable that the objective truth of the facts as pleaded in paragraphs 36.9A-36.9C could relevantly bear on the reasonableness of the conduct of Nationwide and Mr Moran in publishing the matters the subject of complaint. It is worth noting that his Honour referred, on a number of occasions, to the failure of Nationwide and Mr Moran to point to any logical connexion between those paragraphs and the matters identified in s 30(3) of the Defamation Act (that the Court may take into account in the evaluative assessment of whether the conduct of publication was reasonable). 11 In my opinion, substantial injustice would not result if leave is refused. Even if one was to leave to one side the 'tight rein' which must be kept on appeals of this type, neither Decor limb is made out, and I consider that the application should be dismissed with costs. RARES J: 12 I agree with the orders proposed by Lee J and generally with his reasons but wish to add the following observations. First, the argument of Nationwide News Pty Limited and Jonathon Moran (the publishers) amounted to no more than what they published was a collection of statements that other people had told the publishers and of the inquiries that they had made. The publishers contended that their reporting of those, as appeared in the matters complained of, entitled them to lead evidence to determine the objective truth of those matters. The primary judge rejected that argument. There is no sufficient doubt as to the correctness of his reasons for doing so. 13 Secondly, there will be cases in defamation litigation where it is essential for the Court to engage in interlocutory processes at an early stage, including to determine the capacity of a matter complained of to convey alleged imputations or contextual imputations. After all, much of defamation litigation turns on what the words of the publication complained of convey to the ordinary reasonable reader, listener or viewer. However, that should not detract from the obligation of the Court, the parties and their lawyers to conform with the overarching purpose of the civil practice and procedure provisions as provided in Pt VB of the Federal Court of Australia Act 1976 (Cth), as Lee J explained. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 at 321 [51], French CJ, Kiefel, Bell, Gageler and Keane JJ, said that case management is now an accepted aspect of the system of civil justice as administered by Australian courts. They added: It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. 14 This case is an exemplar of why that should be so. The publishers made a public attack on Mr Rush of a most serious kind. He was entitled to a prompt hearing of the dispute based on the real issues that were for trial. The primary judge distilled those issues, promptly, after some attempts, as he recorded in his reasons. Were leave to appeal granted, an appeal would expose the parties to yet another round of interlocutory disputation. In addition to the passage that Lee J cited from In re the Will of F.B. Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323, Jordan CJ also said (which Gibbs CJ, Aickin, Wilson and Brennan JJ approved in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177): The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal. 15 In my opinion, there is no reason to doubt the correctness of his Honour's decision to strike out paragraphs 36.9A to 36.9C of the defence as well as his finding that it was not necessary to decide which of the two approaches was correct as to the relevance of the objective truth of the matter complained of to a statutory defence of qualified privilege (whether or not under the now repealed s 22(1)(c) of the Defamation Act 1974 (NSW) or its current analogue in s 30(1)(c) of the Defamation Act 2005 (NSW) and the other uniform defamation legislation). Those approaches are those in Makim v John Fairfax & Sons Ltd (1990) A Def R 50-075, 5 BR 196 per Hunt J or Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at 90-93 [322]-[331] per White J. 16 I would simply observe, as Lord Griffiths said, giving the advice of the Privy Council, in Austin v Mirror Newspapers Ltd [1986] AC 299 at 313C-D: In considering whether the conduct of the publisher is reasonable the court must consider all the circumstances leading up to and surrounding the publication. These circumstances will vary infinitely from case to case and it would be impossible and most unwise to attempt any comprehensive definition of what they may be. 17 For these reasons, I agree with the orders proposed by Lee J.
ALLSOP CJ: 18 I agree with the orders proposed by Lee J. I agree with the substance of his Honour's reasons and I agree in substance with the additional observations of Rares J. For my part, it is unnecessary and inappropriate to isolate a question that might lie between the views of Hunt J in Makim v John Fairfax & Sons Ltd (1990) A Def R 50-075 and White J in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; 237 FCR 33. What can be identified as a relevant circumstance for the purposes of s 30(3) of the Defamation Act 2005 (NSW) is a question of the meaning and application of the statute and the particular circumstances in the context of the alleged defamation. I would eschew a process of creation of a priori rules that might encrust the statute unnecessarily. The primary judge himself recognised this very point. He said at [137]: It may perhaps be doubted, however, that Hunt J intended to lay down a concrete rule that the objective truth of the published statements can never be relevant to the reasonableness of the publisher's conduct in publishing, and can never be relevant to any issue that may arise in the context of the defence of qualified privilege. 19 The question is whether the truth of the matter as pleaded in this case was capable of assisting the defence of qualified privilege under s 30(3). The primary judge was of the view that it was not. In my respectful view, for the reasons the other members of the Court have given that evaluation is not subject to real doubt and leave to appeal should not be granted on that issue. It is certainly not, in my view, an appropriate case to isolate a legal issue that does not arise. 20 The application for leave to appeal filed 3 April 2018 is dismissed with costs. I certify that paragraphs [1] and [18]-[20] are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop, paragraphs [12]-[17] are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares and paragraphs [2]-[11] are a true copy of the Reasons for judgment herein of the Honourable Justice Lee.
Nationwide News Pty Limited
Rush
[1991] FCA 844
(1991) 33 FCR 397
(2017) 252 FCR 1
(2001) 117 FCR 424
(2013) 250 CLR 303
(1981) 148 CLR 170
(2015) 237 FCR 33
The application for leave to appeal filed 3 April 2018 be dismissed with costs.