Rose v Allen & Unwin Pty Limited

HER HONOUR: Rosleigh Rose is the mother of Schapelle Corby, a well-known Australian woman who served a lengthy term of imprisonment in Bali for drug offences. Ms Corby has always maintained her innocence of the offences of which she was convicted. This is one of a number of defamation actions brought by members of Ms Corby's family arising from the publication of material purporting to reveal the "true" story of the events leading to her conviction.

The matter complained of in the present action is a book entitled Sins of the Father. The book claims to tell "the untold story behind Schapelle Corby's ill-fated drug run". Ms Rose's statement of claim alleges that the book was defamatory of her, imputing conduct ranging from dishonest denials and lies to the media; being part of a drug syndicate run by Schapelle's father; damaging Schapelle's chances of early release from prison and caring more about money and celebrity than comforting Schapelle in prison. To that action, the publisher has pleaded defences of truth, contextual truth and honest opinion.

Ms Rose has moved the Court for an order striking out the defence of contextual truth pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) on the grounds that the matter pleaded in para 6.2 of the defence discloses no real defence. This judgment determines that application.

Paragraph 6.2 of the defence contends:

The plaintiff’s application fixes upon a conundrum in the operation of the defence of contextual truth provided for in s 26 of the Defamation Act 2005 (NSW). As may be seen from para 6.2 of the defence set out above, the defendants plead no contextual imputations of their own but rather seek to rely upon such of the plaintiff’s imputations in the case as are proved true at the conclusion of the trial.

Section 8 of the Defamation Act provides that a person has a single cause of action in defamation even if, as alleged here, more than one defamatory imputation is conveyed by the matter complained of. The apparent simplicity of that section is spoiled to a degree by the operation of the statutory defences of justification and contextual truth, each of which is directed to “imputations” rather than to the cause of action. There thus appears the prospect that a single cause of action can be met by a several defence.

The section does not explicitly address the practical operation of that possibility in a case such as the present, where diverse defamatory stings are pleaded. In the present case, it follows from s 8 of the Act that Ms Rose has a single cause of action arising from being called a liar, a member of a drug syndicate and an uncaring mother. It is a defence to that cause of action if each of those imputations is substantially true (see s 25) or if the matter complained of is what might be termed “contextually true”, as provided for in s 26.

The combination of ss 25 and 26 suggests the possibility that, although there is a single cause of action, that cause of action may be amenable to an attritional defence. It may also be observed that the Act assumes the existence of a finite, certain and ascertainable set of imputations arising from any matter complained of, a concept which is evidently alien to some practitioners in this field. Having regard to the terms of ss 25 and 26, in practice, a defendant who cannot prove the plaintiff's imputations to be substantially true (or is uncertain as to the fate of such a defence) has an obvious incentive to discern additional meanings arising from the matter complained of. There is, in that context, a natural contest for imputations.

The conundrum to which I referred at the outset of this judgment lies in the wording of s 26, which provides:

According to its terms, the statutory defence proceeds in two stages.

First, it allows a defendant, apparently at the pleading stage, to complain of imputations other than those complained of by the plaintiff. In that respect the Act appears to contemplate a dichotomy: an imputation of which the plaintiff complains cannot, at the same time, be an “other” imputation carried in addition to itself.

Secondly, the defence directs the tribunal of fact to an inquiry as to what was referred to in argument in this application as the “swamping effect”. If a plaintiff complains of (pleads) an imputation, a defendant can justify it under s 25. If a plaintiff does not plead an imputation, the defendant can plead it and justify it (prove it to be substantially true) under s 26. As a matter of fairness, one might expect the combined effect of those provisions to be that the plaintiff's cause of action lies in respect of those defamatory imputations carried by the matter complained of which stand at the end of the trial as not having been proved true.

There is authority binding on me that a defendant cannot "plead back" any imputation that has been pleaded by the plaintiff. In Besser v Kermode [2011] NSWCA 174 (reported as Fairfax Media Publications Pty Ltd v Kermode (2001) 81 NSWLR 157), the defendants sought to appeal the conclusion of the primary judge that it was not open to a defendant relying on the defence of contextual truth under s 26 to "plead back" the plaintiff's imputations as part of that defence. The appeal was dismissed.

Viewed as an argument about pleadings and beginning at the beginning of the litigious process, that is a conclusion which, with respect, makes sense. However, the law can develop in an organic way. The consideration of the second stage of the defence under s 26 (the issue of the swamping effect) has arisen in a number of trials where the defence has been pleaded.

For present purposes, it is appropriate to refer to the first in time as being the decision of Dalton J in Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375. In that judgment, her Honour published her reserved reasons for a series of rulings made during the trial as to the defence of contextual truth. In a trial in this Court over which I presided, I had occasion to refer to her Honour's analysis of the contextual truth defence. In one judgment, published during the trial, I recorded that I had found her Honour's analysis helpful and I adopted it: see McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 at [18]. Later in the same trial, however, the occasion arose for me to consider the manner in which the s 26 defence should be left to the jury in circumstances where one of the imputations complained of by the plaintiff had been found by the jury to be substantially true. On that issue, I disagreed with one aspect of Dalton J’s judgment: see McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224.

Dalton J had held, at [40] to [41]:

In McMahon (No 6), after citing those remarks, I said at [58]:

The matter of Mizikovsky went to the Court of Appeal in Queensland: Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68. That Court upheld her Honour's approach. In doing so, the Court considered my judgment in McMahon (No 3) in which I had (in general terms) approved her Honour's analysis, but did not refer to my judgment in McMahon (No 6) in which I had expressly disagreed with her Honour's analysis on the critical point before the Court of Appeal.

The decision of the Court of Appeal in Mizikovsky nonetheless stands as authority which must be regarded as binding on that issue (that is, the swamping issue), having regard to the fact that the Defamation Act is national uniform legislation.

During the course of argument in these proceedings, I was referred in that context to the remarks of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135]:

The Court was there focusing on the rule (that an authority of an intermediate appellate court on national uniform legislation should be regarded as binding) rather than the exception (unless “plainly wrong”). It is not a direction to trial judges to undertake in every case an analysis as to whether they think the appellate authority is right or wrong. Appellate authority is correct, not as a matter of the analysis of trial judges but as a matter of orthodox law. I would refer in that context also to the remarks of the Court of Appeal in Gett v Tabet [2009] NSWCA 76 at [261] to [295] (in the context of a discussion as to when an intermediate court of appeal should depart from its own earlier authority), especially at [294] to [295] as follows:

In any event, the swamping issue is not the precise issue raised by the present application and it is not necessary for me to determine or articulate any view as to the correctness of the decision of the Court of Appeal in Mizikovsky. My purpose in referring to that jurisprudence is that it invites attention, in hindsight, to the issue considered in Kermode from a different perspective.

In that context Mr Dawson, who appears for the defendants, relied on the remarks of Basten JA (in a judgment with which Meagher JA and Tobias AJA agreed) in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369. To put the remarks in context, it is necessary to begin at [82] to [83] of the judgment, as follows:

Basten JA continued, at [86]:

Approaching the issue from the perspective of the trial rather than the pleadings, as informed by the issues I had to determine in McMahon (No 6), there is, in my view, much force in the analysis suggested by Basten JA. Mr Smark submitted that Basten JA was, in that paragraph, “floating an idea” rather than confining or changing the true ratio of Kermode. After a careful analysis of that passage of the judgment in Born Brands, I think it is clear that his Honour is, to adopt Mr Smark's term, floating the idea of an alternative reading of the legislation in which there is, in my respectful opinion, much force. Why should an imputation complained of by a plaintiff that has been proved to be true fall to the floor (as it was put in argument in the present case) rather than being able to be relied upon by a defendant?

Ultimately, however, the question is one of judicial obedience to the law as it presently stands. With some reluctance, I have concluded that I am bound by the decision of the Court of Appeal in Kermode to accede to the plaintiff's present application. Paragraph 6.2 of the defence does precisely that which the Court of Appeal in Kermode held cannot be done in a pleading. However, simply by way of making clear the extent of the ruling I will presently make, I would not regard this decision as foreclosing the defendant from raising at the trial the matters canvassed in argument before me yesterday. The plaintiff is, by reason of the argument in the present application, well on notice of the fact that the defendant proposes, depending upon how the trial falls out, to invite the trial judge to determine the question of the defences "holistically" on the reading of the legislation suggested by Basten JA in Born Brands. At this point of the proceedings, however, I think I am compelled to make the order sought by the plaintiff, for the reasons I have stated.

The order of the Court is accordingly that para 6.2 of the defence to the amended statement of claim filed 21 November 2014 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules.