Defamation - Practice - Procedure - Pleading of imputations - Whether facts capable of supporting justification plea - Availability of Polly Peck defence - Turns on its own facts

Application to strike out amended defence successful

Godman v Times Publishing Co Ltd [1926] 2 KB 273

Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440

Jones v Skelton (1963) 1 WLR 1362

Leslie v Mirror Newspapers Ltd [1971] HCA 66; (1971) 125 CLR 332

Moir v Flint & Anor [2001] WASC 183

Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1

Sutherland v Stopes [1925] AC 47

1 McLURE J: The second plaintiff ("plaintiff") applies to strike out parts of the first and second defendant's amended defence in this defamation action. The plaintiff's attack is directed to the defendants' plea of truth and their Polly Peck defences.

2 The plaintiff complains of the publication of two letters. In order to understand his contentions, it is necessary to set out the words complained of and the imputations relied on by the plaintiff. The first letter ("first publication") complained of is in the following terms:

"Dear Parents of Year 12 Students

I regret deeply my need to write this letter, but the College is dismayed and angered by the behaviour of groups of Year 12 students in the last few days.

Essentially, behaviour has occurred which has brought public disgrace to the College through dangerous use of motor vehicles, vandalism, interference with property, and personal insult to others. In the early hours of Tuesday 2 November 1999 and then the following day, public disquiet became so serious that the police became involved.

We are also aware of other thoughtless and wanton acts of disrespect towards the College which occurred, sometimes through the actions of Wesley boys, but also through the presence on the campus of other individuals. The whole experience has been immensely distressing to my colleagues and I who thought the Year Group had better standards than all this represented. It has also been distressing to a significant number of the students who had negotiated with me a sensible arrangement which gave the students scope for good fun as well as celebration through the Valedictory activities. They were completely taken advantage of by some of their peers.

The vast majority of our Year 12 group are sensible and honourable young men. They would be the first to understand that our confidence in them as a year group has been severely shaken by these incidents. I am anxious that they are given the opportunity to demonstrate to their teachers and to the rest of the school that they understand the seriousness of what has occurred. Accordingly, I am asking every Year 12 student in the College to observe the following:

1. When they come onto the school campus between 8.30am and 3.30pm to seek the assistance of teachers with exam preparation etc, they must be in full and correct school uniform.

2. When they come onto the campus to sit their TEE examinations, again their uniform must be clean and correct. I include in that request that their hair and general presentation be neat and consistent with school expectations.

I have decided it will also be necessary for me to write to all parents advising of the situation and also indicating that I am reviewing current regulations regarding the use of motor vehicles by students when they are under the legal duty of care requirements of the College.

I would be grateful if you would make sure your son understands the spirit in which this letter is written."

3 The plaintiff then pleads the imputations relied on and extrinsic evidence of identification. The pleas (in pars 6 and 7) are as follows:

"6. By way of innuendo the First Publication was understood to refer to, and be of and concerning, the Second Plaintiff and meant and was understood to mean to those persons described at paragraph 7 herein and knowing the facts, matters and circumstances set out in paragraph 7 herein, that:

6.2 the Second Plaintiff had driven motor vehicles in a dangerous manner with reckless disregard for the safety of the road-using public.

6.3 the Second Plaintiff had personally insulted members of the public.

7. The First Publication was understood to refer to and be of and concerning the Second Plaintiff, and conveyed the meanings described at paragraph 6 herein, to those parents, staff and students of the Second Defendant with knowledge of the fact that the Second Plaintiff was 1 of 4 students (alternatively a small number of students) who had been identified and disciplined by the Defendants for their alleged misbehaviour during unofficial Year 12 end-of-year celebrations."

4 The second letter complained of ("second publication") is in the following terms:

"Dear Parents

I regret deeply my need to write this letter but the College has been dismayed and angered in recent days by the behaviour of groups of Year 12 students.

Each year, senior staff negotiate with Year 12 boys the appropriate ways by which they can rightfully and sensibly celebrate the end of their school careers at Wesley. We tolerate a degree of excessive fun, trying to keep the spirit good natured and relaxed. Unfortunately some sections of the Year Group completely disregarded the spirit of these guidelines. Consequently, behaviour occurred which has brought some public disgrace to the College through dangerous use of motor vehicles, vandalism, interference with property and personal insult to others.

The vast majority of our Year 12 students are sensible and honourable young men. It is out of respect for them that I have taken the very strongest action against the few of their number who have let us down so seriously. Four Year 12 students have been advised that should they decide to sit any TEE subject, Wesley will not provide that facility and the student will need to make alternative arrangements through the Curriculum Council.

I have also decided that it is now necessary to review current school regulations concerning the use of motor vehicles by students in circumstances where the school holds the responsibility for legal duty of care. At the core of this problem has been immature and irresponsible behaviour concerning motor vehicles. I am also asking senior staff to review throughout the College, issues to do with personal courtesies, deportment and the appropriateness of verbal language. The outrageous nature of this recent behaviour has its origins in boys who are insensitive to social conventions and hence behave in a crass and immature way.

The school cannot address either of these issues and achieve lasting outcomes without the full understanding and support of its parents; that is why I write openly and frankly about the problems which we have had to confront in recent days and to assure parents of my determination to instill [sic] into the students of Wesley qualities of civilised self control, social grace and a commitment to a relationship of honour with the College."

5 The imputations and extrinsic facts of identification in relation to the second publication are pleaded in pars 13 and 15 of the amended statement of claim as follows:

"13. By way of innuendo meaning the Second Publication was understood to refer to and be of and concerning the Second Plaintiff and meant and was understood to mean to those persons referred to at paragraph 15 herein and knowing the facts, matters and circumstances described at paragraph 15 herein, that:

13.2 the Second Plaintiff had, as a driver of motor vehicles, reckless disregard for the safety of the public;

13.3 the Second Plaintiff has personally insulted members of the public during unofficial Year 12 end-of-year celebrations;

13.4 the Second Plaintiff had conducted himself so disgracefully during unofficial Year 12 end-of-year celebrations as to be unfit to remain a student at Wesley College;

13.5 the Second Plaintiff is so lacking in social values as to be unfit to remain a student at Wesley College.

15. The Second Publication was understood to refer to and be of and concerning the Second Plaintiff and conveyed the meanings described at paragraph 13 herein to those parents, staff and students of the Second Defendant with knowledge of the fact that the Second Plaintiff was 1 of 4 (alternatively a small number of students) who had been identified and disciplined by the Defendants for their alleged misbehaviour during unofficial end-of-Year 12 celebrations."

6 The plaintiff applies to strike out pars 5, 6, 7, 17 and 18 of the amended defence which are in the following terms:

"5 Further or alternatively, if, which is denied, the First Publication meant and was understood to mean to those persons pleaded in paragraph 7 of the Claim, who are alleged to have known the facts, matters and circumstances pleaded in paragraph 7 of the Claim, that the second plaintiff used motor vehicles in a dangerous manner with reckless disregard for the safety of the road-using public, that meaning was true in substance and in fact.

Particulars of Truth

The second plaintiff, as a passenger in a motor vehicle being driven on a public road in the early hours of 2 November 1999, used that motor vehicle in a dangerous manner by projecting his upper body out of the motor vehicle's compartment, and by remaining a passenger in that vehicle when it was driven dangerously.

6 Further or alternatively, if, which is denied, the First Publication meant and was understood to mean to those persons pleaded in paragraph 7 of the Claim, who are alleged to have known the facts, matters and circumstances pleaded in paragraph 7 of the Claim, that the second plaintiff had personally insulted members of the public, that meaning was true in substance and in fact.

Particulars of Truth

In the early hours of 2 November 1999, in or about the vicinity of Wesley College, South Perth, the second plaintiff personally insulted police officers by being argumentative towards them and accusing them of police harassment, without any proper or reasonable basis for such behaviour.

7 Further or alternatively, if those persons pleaded in paragraph 7 of the Claim knew the facts, matters and circumstances pleaded in paragraph 7 of the Claim, such that they understood the First Publication to have been referring to and to have been of and concerning the second plaintiff then, by way of true innuendo, the First Publication meant and was understood to bear the meanings set out herein, to which extent it was true in substance and in fact:

(a) the second plaintiff was one of a group of 1999 Year 12 students who had brought disgrace to the second defendant by being a party to acts of vandalism;

(i) The second plaintiff was one of a group of 1999 Year 12 students travelling in a convoy of motor vehicles from which eggs were thrown at the first defendant's residence in Coode Street, South Perth, on 4 separate occasions in the early hours of 2 November 1999.

(ii) The second plaintiff was one of a group of 1999 Year 12 students travelling in a convoy of motor vehicles from which eggs were thrown at the second defendant's Chapel situate in Coode Street, South Perth in the early hours of 2 November 1999.

(iii) The second plaintiff was one of a group of 1999 Year 12 students travelling in a convoy of motor vehicles from which eggs were thrown within the Penrhos College campus, Como, during the afternoon of 2 November 1999.

(iv) The second plaintiff was one of a group of 1999 Year 12 students travelling in a convoy of motor vehicles being driven dangerously through the Penrhos College campus, Como, which caused damage to the lawns of that College.

(b) the second plaintiff was one of a group of 1999 Year 12 students who had brought disgrace to the second defendant by the dangerous use of motor vehicles;

(i) The second plaintiff was one of a group of 1999 Year 12 students travelling in a convoy of motor vehicles which were driven in a dangerous manner along Coode and Angelo streets, South Perth in the early hours of 2 November 1999.

(ii) The second plaintiff was one of a group of 1999 Year 12 students travelling in a convoy of motor vehicles which were driven in a dangerous manner through the Penrhos College campus, Como during the afternoon of 2 November 1999.

(iii) The conduct to which the second plaintiff was a party required the intervention of the police.

(c) the second plaintiff was one of a group of 1999 Year 12 students whose conduct had caused such a degree of public disquiet that it was necessary for the police to become involved in investigating such conduct.

particulars to paragraphs (a) and (b) hereof and further say that as a consequence of the conduct particularised therein it was necessary for the police to investigate, and they did investigate, such conduct.

(d) the second plaintiff was guilty of breaching the second defendant's school rules;

The second plaintiff's conduct and behaviour as particularised in this paragraph breached the rules of the second defendant set forth in the 1999 Handbook for Students and Parents (1999 Handbook) and in particular Rule 1, which requires that the students must act honourably, be loyal to the College and show commonsense and good manners.

(e) the second plaintiff had acted disrespectfully; and

The first and second defendants repeat the particulars pleaded elsewhere in this paragraph.

The first and second defendants repeat the particulars pleaded elsewhere in this paragraph.

...

17 Further or alternatively, if, which is denied, the Second Publication meant and was understood to mean to those persons pleaded in paragraph 15 of the Claim, who are alleged to have known the facts, matters and circumstances pleaded in paragraph 15 of the Claim, that the second plaintiff had personally insulted members of the public during unofficial Year 12 end-of-year celebrations, that meaning was true in substance and in fact.

Particulars of Truth

The first and second defendants repeat the particulars pleaded in paragraph 6 herein.

18 Further or alternatively, if those persons pleaded in paragraph 15 of the Claim knew the facts, matters and circumstances pleaded in paragraph 15 of the Claim, such that they understood the Second Publication to have been referring to and to have been of and concerning the second plaintiff then, by way of true innuendo, the Second Publication meant and was understood to bear the meanings set out herein, to which extent it was true in substance and in fact:

(a) the second plaintiff was one of a group of 1999 Year 12 students who had brought disgrace to the second defendant by being a party to acts of vandalism;

The defendants repeat the particulars to paragraph 7(a) herein.

(b) the second plaintiff was one of a group of 1999 Year 12 students who had brought disgrace to the second defendant by the dangerous use of motor vehicles;

The defendants repeat the particulars to paragraph 5 and 7(b) herein.

(c) the second plaintiff was guilty of breaching the second defendant's school rules;

The defendants repeat the particulars to paragraph 7(c) herein.

(d) the second plaintiff had acted disrespectfully;

The defendants repeat the particulars to paragraph 7(e) herein.

The defendants repeat the particulars to paragraph 7(f) herein.

(f) the second plaintiff was one of a group of 1999 Year 12 students who had completely disregarded the spirit of the guidelines issued by the second defendant with respect to the behaviour of students between the cessation of reaching and the 1999 TEE exams;

The defendants repeat the particulars to paragraphs 5, 6, 7 and 8(b) herein.

The defendants repeat the particulars to paragraph 6 herein.

(h) the second plaintiff had not behaved sensibly and honourably;

The defendants repeat the particulars to paragraphs 5, 6 and 7 herein.

(i) the second plaintiff had acted in an immature and irresponsible way concerning motor vehicles; and

The defendants repeat the particulars to paragraphs 5 and 7(a) and (b) herein.

(j) the second plaintiff had behaved in a crass and immature way.

The defendants repeat the particulars to paragraphs 5, 6 and 7 herein."

7 The tests to be applied in a strike-out application are not in dispute. There will be no reasonable defence if the case is so obviously untenable it cannot possibly succeed or is manifestly groundless: General Steel Industries Inc v Commissioner for Railways of NSW [1964] HCA 69; (1964) 112 CLR 125 at 130. That test applies in determining whether the words complained of are capable (as a matter of law) of supporting a pleaded imputation: Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 675; Smith v Littlemore (1996) 15 WAR 289 at 294.

8 There are technical rules relating to the pleading of imputations. Distinct meanings should be pleaded and the test for distinctiveness is whether the evidence required to justify each meaning would be substantially different: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 543; Lewis v Daily Telegraph Ltd [1964] AC 234 at 282. In addition, distinct meanings must be distinctly pleaded (because of the potential for a rolled up plea to cause confusion): Taylor v Jecks (1993) 10 WAR 309 at 321. An imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff is charged: Birmingham v West Australian Newspapers Ltd [1999] WASC 19 at 7. An imputation must represent the final distillation of the alleged defamatory meaning: Sungravura Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 at 13 - 14. Sometimes there is a tension in attempting to accommodate the latter two requirements.

9 The Polly Peck defence was approved by the Full Court in Gumina v Williams (No 2) (1990) 3 WAR 351. Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd (above) expressed the opinion (obiter) that it is not a good defence. Gaudron and Gummow JJ referred to the defence but made no criticism of it. Kirby J did not refer to the issue. This area of the law was subsequently reviewed by the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667. The court in Hore-Lacy held that a defendant can plead a different meaning from that contended for by the plaintiff and then justify it, provided the meaning is not substantially different from nor more injurious than those pleaded by the plaintiffs. Ormiston JA said (at 675):

"It would ... seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority [in Chakravarti] levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendos which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff, in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff.

If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different."

10 That statement of the rule has been adopted and applied in this jurisdiction: Wallis & Ors v Wallis [2001] WASC 134; Reynolds v Nationwide News Pty Ltd [2001] WASC 90; Jackson & Ors v ACP Publishing Pty Ltd [2001] WASC 121.

11 I will return to the Polly Peck principles when considering the parties' submissions in relation to the pleading.

12 At the commencement of the hearing, counsel for the plaintiff applied to amend the imputation pleaded in par 6.2 of the amended statement of claim to read:

"The Second Plaintiff used had driven a motor vehicle in a dangerous manner with reckless disregard for the safety of the road - using public."

13 The amendment would bring par 6.2 into line with the imputation currently pleaded in par 13.2 which refers to the plaintiff driving a motor vehicle. The defendants do not justify the imputation of the plaintiff driving. If the amendment is allowed, par 5 of the amended defence would be deleted and the objections to that paragraph fall away.

14 The defendants opposed the application to amend. They say the proposed amended imputation is incapable of arising from the words complained of. No such objection had previously been taken to par 13.2 notwithstanding the words complained of in the Second Publication also refer to the use of motor vehicles.

15 It was also suggested that the proposed amendment was inconsistent with the position taken by the plaintiff when the defendants applied to strike out the plaintiff's imputations. That application was dealt with by Hasluck J and is reported in Vitale v Bednall [2000] WASC 207. Hasluck J considered and rejected the defendants' submission that the words complained of were incapable of conveying an imputation of guilt in relation to each member of the group. I see nothing arising from the defendants' application or Hasluck J's reasons which prevents or affects the plaintiff's application to amend.

16 The words complained of refer to the "use" of motor vehicles. Use is a term of very wide import and arguably includes driving a motor vehicle. I do not regard the amended imputation as manifestly untenable or unarguable. Accordingly, I propose to accede to the plaintiff's application for leave to amend. In those circumstances, it is unnecessary to deal with the plaintiff's objections to par 5 of the amended defence.

17 The plaintiff's objections to par 6 of the amended defence also apply to par 17 because the two are in materially the same terms. The plaintiff says the term "argumentative" is to be read disjunctively with what follows and is an independent ground of justification. His complaint is that the word "argumentative" states a conclusion and in order to assess whether it is capable of justifying the imputation, it is necessary to know the substance of what was said.

18 The defendants say the particulars are to be read conjunctively and any lack of relevant detail can be supplied by way of particulars. If read conjunctively, it is the conduct as a whole which is material rather than the words used. I agree with the defendants' contentions. Accordingly, I do not propose to strike out pars 6 and 17 of the amended defence.

19 Paragraphs 7(a) and 18(a) of the amended defence are in materially the same terms. The plaintiff advanced a number of objections to the pleading including:

(b) the pleading does not identify the precise act or condition with which the plaintiff is charged and is not the final distillation of the sting;

(c) it is unclear whether the charge is bringing disgrace to the second defendant or involvement in acts of vandalism or both and if both, the plea is rolled up;

(d) the particulars of truth are incapable of justifying the imputation.

20 There is merit in the plaintiff's complaints. The reference in the imputation to the plaintiff "being a party to acts of vandalism" prima facie attributes a level of culpability to the plaintiff whether by means of willing participation in the group activity or encouragement or common purpose or design or preconceived plan or conduct of a similar nature. Culpability can attach to a person's involvement in group activity notwithstanding the person does not physically perform the relevant act (such as vandalism or of dangerous driving). However, the use of the word "party" covers a wide range of conduct with different degrees of moral culpability. Accordingly, it is a "weasel" word as that term is explained by Hunt J in Armitage v Double Bay Newspapers Pty Ltd, unreported; SCt of NSW; 29 September 1991. Weasel words generally only survive in an imputation if the word is accompanied by, in effect, a definition. The plaintiff's complaints identified in (b) and (c) above flow from the plaintiff interpreting "party" in the imputation as not imputing any charge beyond mere presence in the group. The complaints have merit if "party" is read in this way.

21 Further, the particulars pleaded by the defendants are not capable of justifying an imputation of culpability attaching to the plaintiff's involvement as a member of a group of students.

22 It was suggested on behalf of the defendants that as the words complained of were capable of imputing culpability according to Hasluck J's ruling, it was sufficient to justify the defendants' plea by reference to the literal truth of the words complained of. That is not so. In any justification plea, whether it be of the imputations complained of by the plaintiff or Polly Peck imputations, the particulars of justification must be capable of proving the truth of the imputation. The plea of justification must be "not only as broad as the literal language of the libel, but as broad as the inferences of fact necessarily flowing from the literal language": Howden v Truth and Sportsman [1937] HCA 74; (1937) 58 CLR 416 and 425.

23 In this case the particulars go no further than establishing the presence of the plaintiff as a member of the group. Mere presence without more is, or can be, benign (and thus not defamatory). There is nothing to indicate that the plaintiff's presence was as a willing participant or otherwise in the group activities. For these reasons the particulars are incapable of supporting an imputation of culpability in whatever degree is intended (and which must be pleaded). Accordingly, subparagraph (a) of pars 7 and 18 of the amended defence will be struck out.

24 The plaintiff's objections to these subparagraphs of the amended defence are similar to those he has to subparagraph (a) of pars 17 and 18. It is said the imputation does not identify the precise act or condition with which the plaintiff is charged and is not the final distillation of the sting, that the particulars do not justify a defamatory inference about the plaintiff and that the purported particulars of dangerous use of motor vehicles simply restate the imputation.

25 It is not pleaded as a material fact in subparagraph (b) that the plaintiff was a party to the specified conduct (although it appears in the particulars). In those circumstances the defendants have failed to identify the precise act or condition complained of or to plead the final distillation of the sting. If the reference to "party" in the particulars is intended to connote culpability, it must be properly particularised. It is not.

26 Further, the particulars of justification of the dangerous use of motor vehicles are, in effect, an assertion of the truth of the statement. That is inadequate: Gumina v Williams (No 2) at 371. For these reasons, subparagraphs (b) of pars 7 and 18 will be struck out.

27 This plea suffers from some of the same defects as subparagraphs (a) and (b). The imputation does not express the precise act or condition attributed to the plaintiff and the particulars go no further than mere presence in a group. Par 7(c) will also be struck out.

28 These are imputations that the plaintiff acted disrespectfully and irresponsibly.

29 The plaintiff has two complaints, one technical and one substantive. The first is that the defendants failed to identify with sufficient precision the particulars relied on and, second, that the imputations are not capable of being pleaded as a Polly Peck defence. The first objection can be overcome by a request for particulars. It does not justify striking out. The substantive complaint raises more difficult issues.

30 The plaintiff relies on Anderson J's statement of the ratio of David Syme & Co Ltd v Hore-Lacy in Jackson v ACP Publishing Pty Ltd. Anderson J said at 30:

"... the court held that the question whether, and to what extent, a defendant may justify meanings different from those asserted by the plaintiff is bound up with the extent to which a plaintiff may be allowed to depart at trial from specific meanings pleaded in the statement of claim ... In other words, the defendant's right to rely on a different meaning for the purposes of justification should be treated as co-extensive with the plaintiffs' right to have the tribunal of fact bring in a verdict on imputations other than those pleaded. On this approach, the defendant should not be permitted to raise and justify a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff."

31 The defendants submit that they can plead and justify any imputation which the words are (as a matter of law) capable of bearing. This formulation is, on its face, too wide. It has always been the case that where a publication contains two or more separate and distinct defamatory statements, a plaintiff is entitled to select and rely on one in its claim and a defendant is not entitled to assert the truth of the others by way of a Polly Peck justification defence. By way of example, if a plaintiff is accused of being a liar and a thief and sues only in relation to the accusation of being a thief, a defendant cannot, by way of Polly Peck defence, justify the accusation of the plaintiff being a liar. However, it is not always clear whether defamatory statements are separate and distinct. O'Connor LJ in Polly Peck Holdings v Trelford [1986] QB 1000 said (at 1032):

"Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication."

32 The question in issue in this case and which was considered in Gumina v Williams is whether the principle which applies to different and distinct charges within a publication should also apply to different and distinct imputations arising out of a single and distinct charge.

33 Whether or not there is any practical difference in the formulations advanced by the plaintiff and the defendants depend upon the extent to which a plaintiff can depart from specific meanings pleaded in the statement of claim.

34 In this regard, Seaman J in Gumina v Williams (with whom Pidgeon J agreed) cited with approval the following passage in the judgment of Diplock LJ (as he then was) in Slim v Daily Telegraph Ltd (1968) 2 QB 157 at 175:

"The plaintiffs, as they were entitled to do, chose to set out in their statement of claim the particular defamatory meaning which they contended was the natural and ordinary meaning of the words. Where this manner of pleading is adopted, the defamatory meaning so averred is treated at the trial as the most injurious meaning which the words are capable of bearing, and the plaintiff is, in effect, estopped from contending that the words do bear a more injurious meaning and claiming damages on that basis. But the averment does not of itself prevent the plaintiff from contending at the trial that even if the words do not bear the defamatory meaning alleged in the statement of claim to be the natural and ordinary meaning of the words, they nevertheless bear some other meaning less injurious to the plaintiff's reputation but still defamatory of him ..."

35 The issue was specifically addressed in Seaman J's reasons in the following terms (at 370):

"A difference is drawn between the principles to be applied in interlocutory applications to strike-out imputations and those to be applied by the trial Judge ...

It may therefore be a matter of debate whether the straightforward test expressed by Purchas LJ in Prager v Times Newspapers Ltd ... applies to interlocutory applications to strike out. His Lordship there said that it is open to the defendant to plead so as to justify any reasonable meaning which a jury, properly directed, might find to be the real meaning.

That passage is consistent with Lord Reid's reasons in Lewis v Daily Telegraph (at 260) and with the reasons of O'Connor LJ in Polly Peck v Trelford (at 1032). In the latter case his Lordship simply said that particulars justifying a meaning which the words are capable of bearing will not be struck out.

...

Having regard to the time allotted to this application in the Full Court list, it was not possible for counsel to develop full oral argument on the question and in my view it is neither appropriate or necessary for us to decide the issue on this occasion. In any event the Full Court may, if it thinks fit, dispose finally of a point of law which has arisen on an interlocutory application ... and in my view it should apply the principles outlined by Purchas LJ ... whatever be the position of a single Judge or a Master."

36 Anderson J in Taylor v Jecks considered the role of the Judge and jury in relation to the plaintiff's imputations. He said at 316 - 317:

"Usually the jury will be asked to find whether the words complained of bear all or any of the meanings set out for them by the Judge. Usually the Judge, in formulating the various imputations for the jury to consider, will have close regard to the pleadings or, at all events, to those imputations on which issue has been fairly joined at trial. Of course, it is accepted that the plaintiff is not tied to the precise meaning set out in his pleading, nor is the jury confined to the precise meaning as formulated for them by the Judge. This latitude is usually conveyed to the jury by the addition to the questions put to the jury of the phrase "or any similar meaning defamatory of the plaintiff" ... I think it is more often than not the case that the jury will be asked to find for or against specific imputations that will have been formulated for them by the Judge with the assistance of counsel and by reference to the pleadings, or any imputations similar to those imputations, rather than that they will be asked simply to say at large whether the materials are defamatory to the plaintiff."

37 The High Court in Chakravarti also dealt with the question of the extent to which a plaintiff is bound by his pleaded imputations. Brennan CJ and McHugh J (who expressed the opinion that a Polly Peck plea is not a good defence) did not agree with the statement of Diplock LJ in Slim v Daily Telegraph Ltd that a plaintiff can rely on any meaning which is less injurious than the pleaded meaning. They said a less injurious meaning is not always without significance in that a defendant may be able to justify a less injurious imputation. Brennan CJ and McHugh J were of the view that a plaintiff could rely on a different nuance of meaning from the meaning pleaded provided it is not unfair to the plaintiff to depart from the pleaded meanings.

38 Gaudron and Gummow JJ observed that the consequences of a plaintiff pleading a specific meaning are far from settled. After considering the English and Australian authorities they concluded:

"As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be a disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial are not simply by reference to the pleading."

39 Gaudron and Gummow JJ appear to uphold the general correctness of Lord Diplock's statement in Slim v Daily Telegraph Ltd. They disagreed with the conclusion of the majority of the Full Court of South Australia that the plaintiff (who relied on an imputation of "guilt" of criminal or civil misconduct) could not rely on the lesser imputation which the defendant had asserted (namely, the plaintiff "was suspected" of being involved in criminal or civil misconduct) because there could have been no disadvantage to the defendant in allowing the plaintiff to do so.

40 Kirby J addressed the issues in a separate judgment. He approved the wide view taken by the Full Court of the Supreme Court of Victoria in National Mutual Life Association of Australia Ltd v GTV Corporation Ltd [1989] VicRp 66; (1989) VR 747 at 768 which reflects the view expressed in Gumina v Williams. The Supreme Court of Victoria said (at 768):

"But the practice [of pleading false innuendoes] did not, and in our opinion could not, alter the position at law that the meaning of the words was ultimately a question for the jury, and that the jury must be at large in finding the true meaning amongst such possible meanings as were left to them by the Judge, and that the Judge was not bound to confine the jury to the false innuendoes asserted by the plaintiff."

41 It is arguable that the statement in the extract from the reasons of Ormiston JA in Hore-Lacy cited above concerning the majority view in Chakravarti as to the extent to which a plaintiff can depart from pleaded imputations, is too narrowly formulated. It appears to be very close to that advanced by Brennan CJ and McHugh.

42 Whatever be the correct legal position, in the current state of the authorities it cannot be said that the defendants' pleading of less injurious imputations based on the facts the subject of the words complained of (which are capable of arising and relate to the same separate and distinct charge) satisfy the General Steel test of being manifestly untenable or unarguable. Accordingly, I decline to strike out subparagraphs (e) and (f) of pars 7 or subparagraph (d) and (e) of par 18 of the amended defence.

43 The plaintiff objects to these imputations on the basis that they are a rolled up plea and cannot be the subject of a Polly Peck defence. The defendants accept that the imputations are rolled up and need to be separately pleaded. Accordingly, the subparagraphs will be struck out on that basis.

44 For the reasons given earlier, I am not prepared to strike out the imputations on the ground that they cannot be the subject of a Polly Peck defence.

45 During the hearing the defendants conceded the criticisms levelled at pars 7(d), 18(c) and 18(f). Accordingly, I propose to order that pars 7(a), (b), (c), (d) and 18(a), (b), (c), (f), (h), (i) and (j) of the amended defence be struck out. As the defects appear to be capable of being remedied, I propose to give the defendants leave to amend pars 7 and 18 of the amended defence.