Fairfax Media Publications Pty Ltd v Bateman

1. [1]

   McCOLL JA: The applicants, Fairfax Media Publications Pty Limited, Fairfax Digital Australia & New Zealand Pty Limited, Natasha Wallace, Vanda Carson and Jeremy Cumpston, seek leave to appeal from a decision of McCallum J of 9 October 2014 in which her Honour struck out that part of the applicants’ defence described as “Hore-Lacy Alternative Meanings” in defamation proceedings commenced by the first respondent, Edward Thomas Bateman. [1]

2. [2]

   In my view, for the reasons which follow, the appellants have established that the primary judge erred as a matter of legal principle, such that her Honour’s exercise of her discretion to accede to the first respondent’s strike-out application miscarried. Leave to appeal should be granted and the appeal allowed. [2] I will refer to the applicants as the appellants henceforth.

Statement of the case

1. [3]

   The first respondent brought proceedings against the appellants seeking to recover damages for defamation said to arise from the publication of four articles in The Sydney Morning Herald in October 2010, (both in print and online). One of the articles described the first respondent as “Australia’s richest doctor”, and credited him with having pioneered the corporatisation of general medical practice in this country. Generally the articles “discuss the advent of large, seven-day medical centres and report allegations complaining of the [first respondent’s] treatment of general practitioners engaged to work in such centres, his frequent and aggressive resort to litigation in the case of dispute and the adverse impact of the income-driven practices of such centres on the quality of the medical care they provide.” [3] The proceedings are governed by the Defamation Act 2005 (NSW) (the “2005 Act”).

2. [4]

   In their amended defence filed on 16 August 2013, the appellants pleaded defences of justification pursuant to s 25 of the 2005 Act and common law justification, contextual truth (s 26, 2005 Act), fair report (s 29, 2005 Act) and honest opinion (s 31, 2005 Act).

3. [5]

   In addition, in paragraphs 19 - 22, headed “Common Law – Hore-Lacy” (the “Hore-Lacy pleading”), the appellants pleaded in “further and alternative answer” to those paragraphs of the Statement of Claim pleading each matter complained of and the defamatory meanings each such matter was alleged to carry. The Hore-Lacy pleading set out what the appellants contended each matter complained of “meant and was understood to mean”, (defined as the “Alternative Meanings”) and pleaded that the Alternative Meanings were substantially true and did not differ in substance from the respondents’ meanings. [4]

4. [6]

   The first respondent applied to have parts of the amended defence, including the Hore-Lacy pleading, struck out pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) 14.28. The primary judgment dealt only with the strike-out application in respect of the Hore-Lacy pleading.

5. [7]

   At the heart of the first respondent’s strike-out application was his contention that Hore-Lacy pleading has no place in New South Wales having regard to practice and procedure in this State, and that such a pleading was apt to cause confusion at the hearing. [5] He submitted that what he described as the “Hore-Lacy defence” was not a substantive defence, but merely a pleading technique. He contended that that “defence” had developed “in jurisdictions where pleading practices grant latitude to a plaintiff to contend at trial for meanings falling ‘within’ his or her pleaded case, and without formally amending his or her imputations.” In contrast, he submitted, in New South Wales, “plaintiffs are strictly held to their imputations – if they seek at trial to advance lesser or variant meanings, they are required to amend (if permitted to do so).” Finally he contended that, assuming the submission that Hore-Lacy merely authorised a pleading technique was accepted, any such pleading had to conform to other aspects of the prevailing practice in New South Wales. He did not contend Hore-Lacy was wrongly decided, but rather that it had no application in this State based on current judicial practice. [6]

Primary Judgment

1. [8]

   The primary judge considered at the outset of her reasons the pre-2005 Act position concerning the law of defamation in this State and in other jurisdictions. [7] Her Honour accepted that one of the objects of the 2005 Act was to enact uniform laws of defamation in Australia. After referring to s 8 of the 2005 Act, her Honour observed that:

2. [9]

   The primary judge contrasted the position in New South Wales where, pursuant to s 9 of the Defamation Act 1974 (NSW) (the “1974 Act”), the imputation was the cause of action, carrying with it the concomitant requirement that a plaintiff “specify, in the pleading of the claim, the defamatory meanings contended for and to do so with precision”, with that in other jurisdictions where, although a practise evolved of a plaintiff specifying the meanings contended for in support of the claim, the “consequences of doing so were unclear”. [9]

3. [10]

   The primary judge observed that it was necessary to consider the defence of justification in that context and said:

4. [11]

   Based on her reading of s 25, her Honour said:

5. [12]

   Her Honour observed that the 2005 Act preserves defences at common law. [12] Her Honour then considered Hore-Lacy, concluding that that decision was “ultimately concerned with the content of the defendants’ pleading obligation rather than the scope of the defence of justification at common law.” [13] Her Honour identified the critical questions as being whether Hore-Lacy recognised a discrete species of the common law defence of justification or whether it was properly confined in its application to matters of pleading and practice in the State of Victoria or “whether it has national application, particularly in the context of uniform national law.” [14]

6. [13]

   The appellants accepted that if the Hore-Lacy pleading survived the strike-out application, they would have to link their Alterative Meanings to any individual imputation relied upon by the first respondent. [15] The primary judge regarded that concession as highlighting the force of remarks Callaway JA made in Hore-Lacy to the effect that a defendant prepared to plead justification and who “undertake[s] to prove that the words were true in any meaning that the jury properly finds”, should not also “be required to suggest meanings to the plaintiff that may not have occurred to the plaintiff's advisers, especially as that may have the effect of increasing the damages ultimately awarded”. [16] In her Honour’s view, where “[t]he defence of justification at common law requires proof that what was published was true in any meaning properly left to the jury … [t]he task contemplated by the parties of marrying imputation with alternative meaning would unnecessarily complicate that relatively simple proposition [and] … elevate considerations of procedural fairness and efficiency into a rule.” [17]

7. [14]

   The primary judge accepted the first respondent’s submission that “the vice to which the Hore-Lacy requirement is directed (the possibility that the tribunal of fact will proceed on a meaning different from that contended for by the plaintiff) does not arise in New South Wales because the prevailing practice in this State already addresses it”. [18] That was because pursuant to the UCPR “the requirement of precision in the pleading of imputations in New South Wales survived the enactment of the 2005 Act.” In her Honour’s view UCPR 14.30(2), 14.31(2) and 14.32(2) and also 15.22(2) contemplated “that the defence of justification at common law must, in this State, meet the case pleaded by the plaintiff as to the meaning of the matter complained of”. [19]

8. [15]

   Her Honour noted that the practice in New South Wales in the conduct of defamation trials reflected that proposition as the jury was asked as to each imputation complained of “whether that imputation or any imputation which does not differ in substance from that imputation was conveyed and, if so, whether it was defamatory of the plaintiff”. [20]

9. [16]

   The primary judge described the first respondent’s contention that Hore-Lacy did not create a specific defence as “plainly right”. Rather, her Honour held, Hore-Lacy established a principle relating to the proper manner of pleading the defence of justification at common law. [21]

10. [17]

    The primary judge referred to Brennan CJ and McHugh J’s judgment in Chakravarti, [22] and, in particular, to their Honours’ statement that “defences are either by way of denial or confession and avoidance” and that a plea of justification to a meaning which the plaintiff has not pleaded is not a good defence. [23] Her Honour observed that “[a] premise of that proposition is the equally unexceptionable proposition that the case to be defended is that pleaded by the plaintiff … a premise reflected in the rules of court that apply to defamation actions in this State”. [24]

11. [18]

    The primary judge identified the genesis of Hore-Lacy as lying in the fact that, in that case, the defendants had expressly asserted they would argue the matter complained of did not mean what the plaintiff said it meant, but would not say what they said it meant, albeit that they asserted what it meant was true. The plaintiff had pressed to know the alternative meanings for which the defendants contended. Her Honour acknowledged that there was accordingly, “some warrant, for fairness, for acceding to the plaintiff’s request.” [25]

12. [19]

    In circumstances where the first respondent did not wish to know the alternative meanings for which the appellants contended, the primary judge said “[i]t follows that the defendants are not required to plead them, as was held to be the case in Hore-Lacy”. [26]

13. [20]

    Notwithstanding that conclusion, her Honour considered whether the appellants could, as the first respondent argued, be precluded from pleading the Alternative Meanings. The first respondent submitted that the Alternative Meanings were “unnecessary because Dr Bateman will not, at the trial, ask the judge to leave to the jury any alternative meaning”, as he was “content to be confined to the approach adopted in this jurisdiction of obtaining answers to the question whether each of his imputations or imputations which are not substantially different from those imputations are conveyed and are defamatory.” [27]

14. [21]

    In her Honour’s view:

15. [22]

    In her Honour’s view, it followed:

16. [23]

    The primary judge then referred to the parties’ competing contentions as to whether authorities in this Court or those of intermediate appellate courts in other states of Australia precluded her from giving effect to that conclusion. [30]

17. [24]

    Of those authorities, the primary judge referred in detail only to Kermode, observing that the conclusions there expressed “that a defendant can justify at common law by pleading nuance imputations … were not specific to the practice in New South Wales, were not part of the ratio of the decision and were made in circumstances where the point now argued had not been raised for the assistance of the Court”. [31]

18. [25]

    Her Honour concluded that the mandatory considerations of ss 56 to 58 of the Civil Procedure Act 2005 (NSW) militated strongly in favour of disallowing a form of pleading which she had concluded made no sense in the context of the practice in this State. Accordingly she struck out the Alternative Meanings as having a tendency to cause prejudice, embarrassment or delay in the proceedings. [32]

19. [26]

    After the primary judgment was delivered, the Victorian Court of Appeal handed down judgment in Setka v Abbott. [33] In that case Warren CJ and Ashley JA held, in brief, that Hore-Lacy recognised a common law defence of justification which was preserved by reason of s 6(2) and s 24(1) of the Defamation Act 2005 (Vic) (the “Victorian Act”), or was a pleading available in pursuing a defence under s 25 of the Victorian Act. [34]

Legislative framework

1. [27]

   The following provisions of the 2005 Act are relevant:

2. [28]

   The provisions to which the primary judge referred in UCPR 14 Div 6 (“Pleadings concerning defamation”) require a plaintiff in defamation proceedings to “specify each imputation on which the plaintiff relies”, relevantly, a defendant pleading justification, to “specify to what imputation or imputations the defence is pleaded”, and provide that “a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true”. [35]

3. [29]

   UCPR 15 deals with “Particulars”. UCPR 15.1(1) requires a pleading to “give such particulars of any ... defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.” UCPR 15, Division 4 deals with “Defamation”.

4. [30]

   UCPR 15.21 relevantly requires “a defamation defence required by rule 15.1 [to] … include particulars of the facts, matters and circumstances on which the defendant relies to establish … that any imputation or contextual imputation was true or was a matter of substantial truth”. [36] UCPR 15.22(2) to which the primary judge also referred specifies the “Particulars in relation to defence of justification” as follows:

5. [31]

   It is also relevant to refer to UCPR 14.14(2)(a) requiring a party pleading a defence or subsequent pleading, to plead specifically any matter that, if not pleaded specifically, may take the opposite party by surprise.

Issues on Appeal

1. [32]

   In their written submissions the appellants identify the questions involved in the proposed appeal, should leave be granted, as whether:

2. [33]

   The first respondent submitted, by way of notice of contention, that Hore-Lacy was wrongly decided because:

3. [34]

   The first respondent also contended Setka CA was wrongly decided insofar as the majority concluded that Hore-Lacy created a substantive defence.

Appellants’ submissions

1. [35]

   The appellants submitted that by reason of Setka CA, leave to appeal should be granted and the appeal allowed. [39]

2. [36]

   The appellants submitted that the first respondent’s argument before the primary judge depended on reducing the decision in Hore-Lacy to a matter of practice and procedure. This was because, if Hore-Lacy established a substantive right in a defendant to plead alternative imputations by way of a defence to the claim of a plaintiff, no supposed “practice” of the New South Wales Supreme Court could prevent the exercise of that right. The appellants argued that the primary judge erred in accepting the first respondent’s argument, as Setka CA demonstrated. They submitted that Setka CA was correct insofar as it determined that Hore-Lacy established a different aspect to the defence of justification. However, they argued it was unnecessary to characterise their Alternative Meanings as a defence, once it was accepted that they were putting the Court and the plaintiff on notice of the way their case would be conducted at trial.

3. [37]

   The appellants submitted that central to the majority’s decision in Setka CA was their Honours’ characterisation of Hore-Lacy as being much more than a “mere matter of form” [40] and as having “wrought a substantial alteration to the way in which a justification defence might be pursued at common law”. [41] They further submitted that the majority regarded Hore-Lacy as having established a substantive defence, [42] that was otherwise preserved by s 25 of the 2005 Act. The appellants pointed out that the majority was not persuaded by the primary judge’s reasoning in this case to the contrary. Indeed, their Honours were critical of her Honour’s explanation of the relevant development of the law prior to Hore-Lacy and her description of that case as a “peculiarly Victorian (pleadings) manifestation of a justification defence” despite a clear line of interstate authority that it accurately stated the law in those jurisdictions. [43]

4. [38]

   Secondly, the appellants submitted that inter-state and New South Wales authority demonstrated that Hore-Lacy was not peculiar to Victoria.

5. [39]

   Thirdly, the appellants submitted that Hore-Lacy established a defence such that a defendant may justify a defamatory publication not merely by justifying it in the sense for which the plaintiff contends, but, alternatively, by denying the sense for which the plaintiff contends but proving the defamatory publication to be substantially true in a sense which is a nuance or variation of, and not more serious than, the plaintiff’s meaning. They argued that although there may be substantial conformity between the particulars of substantial truth to the plaintiff’s imputations and those pleaded to support the substantial truth of the Alternative Meanings, the latter should be made explicit to put the first respondent on notice of the nuance meanings the appellants contended they could demonstrate to be substantially true.

6. [40]

   Fourthly, the appellants submitted this Court could not depart from Setka CA unless convinced it was plainly wrong. They argued that whatever the practice was in this State, there was only one common law of Australia. Accordingly comity called for consistent decision-making between intermediate appellate courts. They contended that, as the majority said (with Whelan JA’s agreement) in Setka CA, “[i]f the position in New South Wales is as [the primary judge] held it to be, and if the conclusions which we have expressed are sound, then any prospect of uniformity of defamation law in Australia, in an important aspect, will be gone”. [44]

7. [41]

   Fifthly, the appellants contended that even if the Court concluded Setka CA was plainly wrong such that Hore-Lacy established only a pleading rule, nevertheless it related to the substantive defence of justification as established by Chakravarti and Hore-Lacy.

8. [42]

   Sixthly, the appellants contended that s 6(2) and s 24(1) of the 2005 Act preserved the operation of the general law in relation to the tort of defamation, which applied as if the Defamation Act 1958 (NSW) (the “1958 Act”) and the 1974 Act had never been enacted. In accordance with s 24(1) of the 2005 Act, the defences available were, relevantly, additional to any other defence available to a defendant apart from the 2005 Act and that each defence provided for did not of itself vitiate, limit or abrogate any other defence or exclusion of liability. In contrast, the appellants pointed out, under the 1974 Act the defence of truth was only that afforded by s 15.

9. [43]

   Accordingly, the appellants submitted that, whatever had been the New South Wales practice under the 1974 Act, the consequence of the enactment of the 2005 Act and the express prohibition on taking into account practice under either the 1958 or the 1974 Act, meant that common law principles such as those established in Chakravarti and Hore-Lacy had effect. The appellants contended that rules made under the Civil Procedure Act could not deprive them of their right to put forward their justification defence as the latter was “a substantive, not a procedural right”. [45]

First respondent’s submissions

1. [44]

   The first respondent first submitted that a plaintiff is bound by the pleaded imputations. Secondly, that defendants are bound by the case put by the plaintiff – meaning in the present context, by the plaintiff’s imputations. Thirdly, that if the plaintiff does not establish that those imputations, or imputations not substantially different, are conveyed and defamatory of and concerning him or her, the plaintiff fails. Fourthly, that where a defendant pleads truth the defendant is bound to particularise that plea with the precision of an indictment. Fifthly, that if the defendant complies with the obligation to give proper particulars of a defence of substantial truth, there is no occasion for any “so called” Lucas-Box v News Group Newspapers Ltd [46] or Hore-Lacy meaning, except perhaps in circumstances where there is some form of ambiguity because of imprecision of language or where, for example, a plaintiff seeks an additional particular to clarify the ambiguity. Sixthly, that the defendant does not have to plead any nuance meaning as the particulars of truth would make any such meaning clear.

2. [45]

   Seventhly, the first respondent submitted that the “Hore-Lacy ‘defence’ is a pleading technique, developed and maintained in jurisdictions where pleading practices grant latitude to a plaintiff to contend at trial for meanings falling ‘within’ his or her pleaded case, and without formally amending his or her imputations.” [47]

3. [46]

   In contrast, the first respondent submitted in NSW, “even under the 2005 Act, plaintiffs are held to their imputations – if they seek at trial to advance lesser or variant meanings, they are required to amend (if permitted to do so).” [48] Therefore, as the primary judge found, “the whole rationale for the so-called ‘defence’ identified in Hore-Lacy is missing in New South Wales, at least until such time (if ever) as plaintiffs are extended a latitude with regard to pleading meanings which gave rise to the need for the practice.” [49]

4. [47]

   Eighthly, the first respondent argued that the appellants were impermissibly seeking to rely upon an additional defence which was contradicted by Lucas-Box v News Group Newspapers Ltd and by Chakravarti, and was unknown to the common law.

5. [48]

   The first respondent accepted that if the Hore-Lacy “doctrine” had any work to do, it was limited to pleading or particularising imputations which did not differ in substance from the plaintiff’s imputations so that the plaintiff himself could rely upon them. If that was the case, he contended there could be no injustice to the first respondent in them being relied on at the trial without notice. He argued that unless that limitation applied, pleading alternative meanings would raise a false issue for the reasons given by Brennan and McHugh JJ in Chakravarti. [50]

6. [49]

   It was in this sense that the first respondent contended he informed the primary judge that he did not want to know the alternative meanings for which the appellants contended. [51] This was because as long as the appellants did not depart from their particulars of substantial truth, which he asserted contained no ambiguity, no nuance meaning for which they contended at trial could surprise him.

7. [50]

   Ninthly, the first respondent submitted that the fact that the common law and the 2005 Act apply uniformly throughout Australia made no difference once Hore-Lacy pleading is accepted to be only a matter of practice. Accordingly, even if, contrary to his submissions, the Court found Hore-Lacy was not wrongly decided, he contended it had no application in New South Wales and, further, that the language of s 25 of the 2005 Act left it with no work to do. [52]

8. [51]

   The first respondent did not submit that s 25 “repeals” the common law defence of justification. However, he did contend that s 25 was “insubstantially different” from the common law in a defamation world where “imputations have primacy”. In essence, he contended that, whether under the common law or defamation legislation, the defamatory imputation was always the focus.

9. [52]

   Finally, the first respondent submitted that Hore-Lacy and Setka CA were wrongly decided to the extent those decisions should be understood as concluding that the form of pleading nuance imputations Hore-Lacy condoned constituted a justification defence independent of that which hitherto operated at common law.

The pre-2005 Act position

1. [53]

   The 2005 Act and its interstate counterparts were the product of an agreement between the Attorneys General of the States and Territories to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation. [53]

2. [54]

   The common law position in Australia prior to the commencement of the 2005 Act was discussed in Kermode, a case which concerned the ambit of the defence of contextual truth for which s 26 of the 2005 Act provides. That case relevantly held, in summary, that the position concerning justification at common law in Australia, prior to the introduction of the 2005 Act, was that:

3. [55]

   In order to determine that question it was relevant to consider the legal and historical context in which the 2005 Act had been enacted. [55] Some aspects of that consideration warrant repetition.

4. [56]

   The cause of action at common law in defamation lay in the publication to a third person of matter conveying a defamatory meaning. Thus, the jury in a defamation case conducted in that context was charged that it was for it to determine the defamatory meanings, if any, a publication complained of conveyed. The jury was not limited to the meanings either the plaintiff or defendant suggested. [56]

5. [57]

   At common law a plaintiff who relied on the natural and ordinary meaning of the defamatory words did not have to plead the false innuendos said to have been conveyed. However, a practice developed in England in the 1960s, which was “settled practice” by 1986, of requiring a plaintiff to plead the defamatory imputations. [57]

6. [58]

   In like vein, the defendant justifying could merely plead, “the said words are true in substance and in fact”, in accordance with which the defendant had to “prove every injurious imputation which the jury may find in the words complained of”. [58] However, a practice also developed of requiring a defendant to identify the meanings of the defamatory publication it would seek to justify. This requirement appears to have been first stated in England in Lucas-Box.

7. [59]

   Lucas-Box was a defamation case in which justification was pleaded, but counsel for the defendant said “he wished to keep his options open, as to the defamatory meaning of the publication which he will seek to justify, until the last possible moment”. [59] The defendant’s entitlement to seek to justify a meaning other than that for which the plaintiff expressly contended was not debated in Lucas-Box. Presumably it was founded on the defendant’s right at common law “to justify only one of the lesser meanings inherent in the more serious imputation pleaded or identified by the plaintiff (to meet a finding by the jury that it was the only or the worst imputation which was in fact conveyed by the matter complained of)”. [60]

8. [60]

   The Court of Appeal in Lucas-Box rejected the defendant’s approach of keeping its options open. It held that “in future a defendant who is relying on a plea of justification must make it clear to the plaintiff what is the case which he is seeking to set up. The particulars themselves may make this quite clear, but if they are ambiguous then the situation must be made unequivocal.” [61]

9. [61]

   Underlying the court’s reasoning in Lucas-Box was the proposition (consistent with the practice which had developed of requiring a plaintiff to plead defamatory imputations) that defamation litigation should not be immune from ordinary pleading rules intended to “define the issues between the parties, so that both the plaintiff and defendant know what is the other side’s case and thus everyone, counsel, judge and jury, are able to focus on the real issue of the dispute”. [62]

10. [62]

    Lucas-Box was delivered while another division of the English Court of Appeal was considering in Polly Peck (Holdings) Plc v Trelford [63] the extent to which a defendant pleading justification or fair comment could particularise meanings of the defamatory publication other than those pleaded by the plaintiff. The Court approved the decision in Lucas-Box that “a defendant who pleads justification must state the meaning which he seeks to justify”, adding that “[i]t follows from that case and this that in future, where differences of meaning are proposed by the parties, the issue as to the possible meanings of the words will be confined to those pleaded”. [64]

11. [63]

    As Brennan CJ and McHugh J stated in Chakravarti, by 1998 it was common practice in the United Kingdom and in common law jurisdictions in Australia for defendants to plead and seek to justify meanings the plaintiff had not pleaded. [65] Their Honours acknowledged that:

12. [64]

    Gaudron and Gummow JJ referred to Lucas-Box without criticism, observing that since that decision “a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning. [67]

13. [65]

    In Chakravarti the Court held that “a plaintiff could, after pleading specific meanings by way of false innuendo, succeed at trial on a meaning other than the meanings pleaded, provided that the meaning was not substantially different from and was not more injurious than the meanings pleaded, and that the defendant was not in all the circumstances unfairly prejudiced by allowing that meaning to go to the jury”. [68]

14. [66]

    Chakravarti has been extensively analysed in subsequent authorities considering the question whether, and to what extent, defendants can plead meanings of the matter complained of which differ from the plaintiff’s meanings.

15. [67]

    The nature of the meanings a defendant could plead in this respect was resolved in Hore-Lacy. [69] In that case Charles JA (with whom Ormiston JA agreed) held that a defendant could rely on “[a] meaning [which] was not substantially different from and was not more injurious than the meanings pleaded [by the plaintiff].” [70] These were described as “nuance” meanings. [71] His Honour held that Brennan CJ and McHugh J’s criticisms in Chakravarti of “the practice sanctioned in Polly Peck, of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff … would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand”. [72]

16. [68]

    As was made clear in Kermode, “[a]t the time the uniform defamation law was passed throughout Australia David Syme & Co Ltd v Hore-Lacy had been expressly accepted in most common law jurisdictions in this country as stating the extent to which a defendant might plead by way of justification imputations which ‘differed’ from the plaintiff’s”. [73]

17. [69]

    I do not accept the first respondent’s contention that Hore-Lacy was wrongly decided. That submission depended on reading Lucas-Box as requiring a defendant to give particulars of the meanings contended for in cases of ambiguity. While that was said in Lucas-Box [74] that was only in circumstances where the particulars already given did not make “unequivocal” the case (in the sense of the meanings contended for) the defendant was propounding. As I have said, the underlying premise of Lucas-Box, as reflected in its endorsement in Polly Peck, was that a defendant must state any alternative meanings to be justified to ensure the issues were properly defined. But even if the first respondent’s submission concerning Lucas-Box be accepted, no such limitation can be found in Hore-Lacy, nor did counsel point to any such limitation in the Australian authorities which have applied it. Those cases focus upon pleadings ensuring the issues at trial are clear.

18. [70]

    Thus, in Hore-Lacy, Charles JA was of the view that requiring a defendant to plead nuance imputations avoided the plaintiff being caught by surprise and claiming “prejudice or other disadvantage”. [75] Ormiston JA thought it “reduce[d] the potential injustices to a minimum by providing both parties with an efficient but not excessive degree of flexibility”. [76] His Honour outlined, correctly in my view, why “fairness to both sides (and the rules of court) requires particularisation of a case which the defendant will seek to make out in answer to a case based on any meaning of a publication which the jury is entitled to place upon it”. [77] As his Honour said:

19. [71]

    Even Callaway JA, who disagreed with the principle the majority endorsed, accepted that “[i]t may occasionally be necessary for a defendant to specify a meaning … in order to make the particulars of justification intelligible.” [79]

20. [72]

    As I have said, the practice of both parties pleading imputations developed against the background to which I earlier referred whereby it was open to the jury to determine the defamatory meanings no matter what the parties contended. Nevertheless, it might be accepted that by the time the case is put to the jury, “in most cases … that point would not matter” as “[i]t would be most unlikely that the parties would between them fail to hit upon, at least approximately, all the reasonably open meanings”. [80] Further, it “would be unlikely that the judge would feel any necessity to put to the jury any meaning not covered by the pleadings”. [81]

21. [73]

    The position the High Court approved in Chakravarti that a plaintiff in defamation proceedings could succeed on an imputation not substantially different from, or more injurious than, that pleaded also reflected the practice under the 1974 Act. As much can be seen from Nicholas J’s reasons in Ron Woodham v John Fairfax Publications Pty Ltd. [82] While, as his Honour said, “[a]t trial the plaintiff is confined to the pleaded imputation and cannot seek a verdict on an imputation with a substantially different meaning”, nevertheless “[n]ecessarily, the plaintiff’s imputation comprehends imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations.” [83] It was no doubt for this reason that it was held that the former Supreme Court Rules 1970 (NSW) Pt 67 r 11(3), “preclude[d] the practice, formerly prevalent, of pleading many shades and gradations of substantially similar imputations”. [84]

22. [74]

    In accordance with this approach, the questions put to the jury in New South Wales under the 1974 Act asked the jury to determine whether the imputation the plaintiff relied upon, or one which was not substantially different (or like expression), was conveyed by the matter complained of.

23. [75]

    The position at common law whereby a defendant could plead justification to the matter complained of without being obliged to establish the truth of the specific imputation upon which the plaintiff relied was not open under the 1974 Act. The plaintiff was required to plead, and was bound by, the imputations relied upon which constituted the cause of action. The defendant was also bound by those imputations. [85]

Uniform defamation legislation

1. [76]

   As explained in Kermode, “[t]he 2005 Act and its interstate counterparts were the product of an agreement between the Attorneys General of the States and Territories to support the enactment in their respective jurisdictions of uniform model provisions in relation to the law of defamation”. [86] The discussion of the genesis of the uniform defamation legislation does not require repetition, save to emphasise that the agreement reflected the concern of the Attorneys General that “‘the defamation laws in each Australian jurisdiction had progressively diverged since the mid-nineteenth century’, a situation which became unworkable as the borders between the States and Territories ‘collapsed’ under the weight of interstate publication”. [87]

2. [77]

   Prima facie, “[i]ntermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on … [uniform national legislation or non-statutory law] unless they are convinced that the interpretation is plainly wrong”. [88] Nevertheless, in construing the 2005 Act, the Court must be guided by the statutory text and should not “slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation”. [89] That does not, however, preclude the Court seeing such decisions as “guides to the meaning of legislation in the court’s jurisdiction”. [90]

3. [78]

   This is particularly the case where “two” or as in this case, all, “Australian legislatures, largely contemporaneously, adopt similar or identical language in pursuit of a common statutory purpose [in which case] … the coherent development of the law within Australia would not be promoted by the courts of one jurisdiction adopting a different construction to those of another”. [91] The desire for a coherent national approach to defamation law was emphasised by the inclusion of s 6(3) in the 2005 Act applying the general law in relation to the tort of defamation as if the 1974 and 1958 Acts had never been enacted. That provision can be seen as an express instruction not to approach the new defamation paradigm the 2005 Act created from a pre-2005 New South Wales-centric perspective. [92]

4. [79]

   Since the enactment of uniform defamation legislation, Hore-Lacy pleading has continued under the new regime. [93] Prima facie, consistently with the principles of comity, this Court should permit that course to be followed in this jurisdiction.

5. [80]

   The availability of Hore-Lacy pleading under the Victorian Act was challenged in Setka CA.

6. [81]

   Setka CA was an application for leave to appeal from a decision of Beach J in which his Honour determined various pleading issues raised by Mr Setka, the plaintiff in defamation proceedings commenced against the Prime Minister, Mr Abbott (albeit at the material time, Leader of the Federal Opposition), and a television channel. [94] The defendants pleaded what his Honour described as “Polly Peck defences”, [95] setting out what they contended “in their natural and ordinary meaning the words meant and were understood to mean”. [96]

7. [82]

   The plaintiff moved to strike out those meanings among other aspects of the defences first, contending, relevantly that a “Polly Peck defence” was unavailable in law, and/or should be struck out as being embarrassing, and the “Polly Peck” imputations were bad in form. [97]

8. [83]

   It is unnecessary to analyse extensively Beach J’s careful reasons for dismissing that aspect of the application as they are, to a large extent, subsumed in the Court of Appeal’s reasons. However there are two aspects of his Honour’s reasons for concluding that “the Hore-Lacy defence remains an available defence following the commencement of the [Victorian] Act” [98] which warrant repetition.

9. [84]

   First, his Honour observed that the “additional layer of complexity added by Hore-Lacy defences is well known”, referring to French v Herald and Weekly Times Pty Ltd [99] and French v Herald and Weekly Times Pty Ltd (No 2). [100] However, he commented that “while the problems created by Hore-Lacy are well known, nothing in the Act suggests that one of the purposes of the Act was to deal in any substantive way with complexity generally or any complexity created by Hore-Lacy defences”. [101]

10. [85]

    Secondly, Beach J observed that:

11. [86]

    On appeal the Court of Appeal was asked to depart from its decision in Hore-Lacy which the plaintiff submitted did not survive the enactment of the Victorian Act. He argued that s 6(2) of the Victorian Act (in the same terms as s 6(2) of the 2005 Act) preserved common law defences, but not common law procedural matters, and that the Hore-Lacy ‘defence’ was “simply a common law defence of truth with an adjectival or procedural change”. [103] He also contended that Hore-Lacy was impliedly repealed by s 25 of the Victorian Act (in the same terms as s 25 of the 2005 Act), which allows a defendant to plead “truth in substance”. Further, the plaintiff argued, as did the respondent in this Court, that Hore-Lacy had “created ‘layers of complexity and technicality’, which are, in truth, unnecessary” and had articulated “a novel pleading rule, which was bad in law”. [104]

12. [87]

    The majority (Warren CJ and Ashley JA, with whom Whelan JA agreed in relation to Hore-Lacy justification, [105] subject to a qualification to which I refer below), rejected the submission that the Court should depart from Hore-Lacy. Their Honours considered the majority judgments were correct and also should be followed because it had been considered and applied in considered decisions of other intermediate courts of appeal. [106] Their Honours’ reasons were extensive. I repeat only salient points.

13. [88]

    The majority said that Hore-Lacy had been determined in the context of the decisions in Lucas-Box and Polly Peck, and “decided that a defendant should be able to plead a defamatory meaning which, viewed from the plaintiff’s standpoint, and though not pleaded by the plaintiff, would be a permissible variant of the pleaded meaning. Having identified that meaning, the defendant could then seek to justify it.” [107]

14. [89]

    Next, the majority held that “a common law defence in [the] form” of Hore-Lacy justification was preserved by the Victorian Act, alternatively “that a pleading in [Hore-Lacy] form is available in pursuing a defence under s 25 of the [Victorian] Act”. [108] Their Honours concluded that the former alternative was preferable because, by virtue of s 6(2) of the Victorian Act (in the same terms as s 6(2)of the 2005 Act), “the general law in relation to the tort of defamation” is given continued operation. [109]

15. [90]

    The logic of these conclusions lay first, in the fact that at common law a plaintiff had one cause of action based on a defamatory publication and was able to succeed on a meaning albeit that it was not pleaded as long as it was not substantially different from, or more injurious than, the meaning pleaded. [110] As the cause of action under s 8 of the Victorian Act is also the publication of defamatory matter about the plaintiff, it is implicit in that provision that a plaintiff must plead the imputation or imputations upon which he or she relies, but also be entitled to succeed on unpleaded variants, being “a nuance of”, “comprehended by”, “simply a variant of”, “less injurious than”, “not more injurious than”, or “not altering the substance of” the meanings pleaded. [111]

16. [91]

    Secondly, in the majority’s opinion, the expression “the defamatory imputations carried by the matter of which the plaintiff complains” in s 25 of the Victorian Act must be understood as embracing the imputations pleaded and also unpleaded variants in the nuance sense. [112]

17. [92]

    Thirdly, the majority was of the view that a defendant seeking to justify which could not plead the imputations it contended were conveyed by the defamatory matter, might be embarrassed if it had to plead substantial truth to all imputations “pleaded or not” which permissibly arose from the publication complained of, because it might have to justify a meaning it said was incapable of arising. Pleading Hore-Lacy imputations made the justification defence clear. [113]

18. [93]

    The majority considered the primary judge’s reasons in this case, but was not persuaded that their conclusions that Hore-Lacy justification was preserved as part of the operation of the general law were wrong. In particular, their Honours said they “should not be taken as accepting her Honour’s construction of s 25”. They also noted that her Honour had not referred to the phrase “the defence of justification at common law” in UCPR 14. 31.2(c). Had her Honour done so and concluded that phrase “was intended to and did include an HL justification defence”, they surmised she may have been able to reconcile the obligations imposed by UCPR 14.31(2)(b) and (c)”. [114] Their Honours also took issue with the primary judge’s conclusion that Hore-Lacy could “be explained by the idiosyncratic position taken by the defendants in that case”, [115] with her Honour’s characterisation, as their Honours understood it, of Hore-Lacy “as a peculiarly Victorian (pleadings) manifestation of a justification defence” (noting the case had been held “to accurately state the common law in West Australia, South Australia and the Australian Capital Territory as well as in Victoria” [116] ) and with her Honour’s “fleeting” reference to s 24(1) of the 2005 Act and failure to refer to s 6(2). [117]

19. [94]

    However, in the majority’s view, even assuming “that imputations are still central to defamation law under the 2005 legislation, that precision is required of a plaintiff in pleading imputations, and that the meaning given by her Honour to s 25 in their Honours’ view, Hore-Lacy pleading still had a role to play in New South Wales in circumstances where a plaintiff may succeed in this State upon an unpleaded variant of a pleaded imputation. [118]

20. [95]

    The majority rejected the plaintiff’s submission “that Hore-Lacy has led, in effect, to chaos in defamation law” as “not [in] accord with experience”, observing that “[j]udges in this State have been directing juries in accordance with Hore-Lacy for more than a decade” in which time there had been only one appeal from a jury verdict involving [Hore-Lacy] in a case with “unique features”. [119]

21. [96]

    Whelan JA agreed with the majority, relevantly, that the principles articulated in Hore-Lacy were part of the common law of Victoria prior to the passage of the Victorian Act and remained part of the law of defamation in that State. [120] However, in his Honour’s view, the issue Hore-Lacy addressed was one of pleading a justification defence, rather than establishing a separate defence. Accordingly, in his Honour’s view, s 24(1) of the Victorian Act had no relevant operation. [121]

22. [97]

    Because, in Whelan JA’s view, Hore-Lacy principles governed pleadings, if they were correctly applicable to justification at common law, they were applicable to s 25 of the Victorian Act for the same reasons. Accordingly, his Honour agreed with the plurality’s reasons for rejecting the submission that s 25 rendered Hore-Lacy principles unnecessary or otiose. In his Honour’s view, s 6(2) of the Victorian Act confirmed the conclusion that Hore-Lacy pleading principles continued to apply. [122]

Conclusion

1. [98]

   Lucas-Box reflected the fact that the “ambush theory of litigation” has long since had its day. [123] It emphasised the importance of the function pleading meanings had come to assume in defamation litigation. The decisions of intermediate courts of appeal referred to in these reasons which have developed the principle in Lucas-Box in its application in Australia have done so in recognition of that premise. Avoiding trial by ambush is of particular importance in the context of defamation litigation which, save as to matters of law reserved for judicial determination and the issue of damages, where a party elects for trial by jury pursuant to s 21 of the 2005 Act, is determined by a jury. [124]

2. [99]

   The Australian authorities decided before the uniform defamation legislation was enacted requiring a defendant to particularise alternative meanings to be advanced in support of a justification defence have also sought to accommodate the premise that a defence must meet the plaintiff’s case. Thus, Hore-Lacy was reasoned within acceptance of Brennan CJ and McHugh J’s strictures concerning a defence being a plea in confession and avoidance, but taking into account their Honour’s acknowledgment that a defendant may have to plead an alternative meaning to avoid the plaintiff being caught by surprise [125] and, too, Gaudron and Gummow JJ’s acceptance that a defendant may advance such meanings. [126]

3. [100]

   Accordingly, the underlying premise of Hore-Lacy pleading is that the alternative meanings the defendant advances are not substantially different from (being mere nuances of) the plaintiff’s imputations. The purpose of them being identified is to put the plaintiff on notice that these are the meanings the defendant will contend at trial were not substantially different from those of which the plaintiff complains (and are therefore imputations on which the plaintiff may prima facie succeed) but are those the defendant will contend are substantially true. Hore-Lacy pleading thus avoids trial by ambush and ensures that there can be no doubt about how a defendant’s justification case is to be advanced. It also reduces the risk of a defendant being left in the position outlined by Beach J [127] in effect, of winning the battle, but losing the war.

4. [101]

   This Court held in Hitchcock that Hore-Lacy was not “plainly wrong” insofar as it applied in Australian common law jurisdictions prior to the enactment of the uniform defamation legislation. [128] Following the commencement of the uniform defamation regime, the Court further held in Kermode that “a defendant seeking to justify the defamatory matter under the 2005 Act may … prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true”. [129] The first respondent did not directly challenge that conclusion, save to the extent that he challenged its underlying premise that Hore-Lacy was correctly decided. As I have said, I do not accept that submission. [130]

5. [102]

   What Kermode also sought to emphasise was the fact that the compromise reflected in the uniform defamation legislation entailed acceptance of the common law model of the cause of action in defamation. [131] The passage from the Second Reading Speech extracted in the reasons made it clear that the intention of this aspect of the compromise was, in substance, to shift the focus from the drafting of the imputation to the defamatory matter. [132] Notwithstanding that shift, it is also implicit in the uniform defamation legislation that the plaintiff will plead the imputations said to be conveyed by the matter complained of. [133]

6. [103]

   The UCPR reflects the new paradigm. UCPR 14.31(2)(c), 14.32(2) and 15.22(2) refer to the fact that a common law defence of justification may be pleaded. UCPR 14.31(2)(c) expressly recognises that both s 25 and common law justification defences will be pleaded to whatever imputations the plaintiff has pleaded. That was how the common law operated prior to the enactment of the uniform scheme. [134] Hore-Lacy pleading operated within that model, by, in substance, contending that there was an alternative, albeit nuanced, plaintiff’s imputation which was substantially true.

7. [104]

   The primary judge’s reasons do not, with respect, reflect an understanding of that conceptual framework of Hore-Lacy pleading.

8. [105]

   Thus, it was not to point that, on her Honour’s interpretation, s 25 of the 2005 Act referred to the “imputations of which the plaintiff complains rather than the imputations (whatever they maybe) conveyed by the matter of which the plaintiff complains”. [135]

9. [106]

   Even if that interpretation of s 25 were correct, it would not preclude the appellants from advancing the Alternative Meanings. Their intention in so pleading, as Hore-Lacy requires, was to put the first respondent on notice of the nuance meanings, being those within the range of an “imputation which does not differ in substance from” the plaintiff’s pleaded imputation which they will seek to justify. [136] A positive finding by a jury that a nuance meaning is conveyed defines the ambit of the justification defence, in the sense that it frames the plaintiff’s case to which that defence is pleaded. However, the “positive defence” [137] lies in proving, as s 25 and the common law require, that that nuance meaning is substantially true.

10. [107]

    The primary judge appears to have concluded that Hore-Lacy was “peculiar to the State of Victoria”, [138] having turned on the plaintiff’s desire to have particulars of what the defendant intended to assert at trial the matter complained of meant. However, while the issue whether the defendants could be compelled to provide particulars of the alternative meanings for which they contended was the vehicle by which the matter came before the Court of Appeal, it was the Court which decided to determine whether Lucas-Box and/or Polly Peck represented the common law in Victoria. [139]

11. [108]

    The fact that Hore-Lacy was not “peculiar to the State of Victoria” was apparent from the authorities in this Court and in intermediate appellate Courts of other States of Australia to which the primary judge referred. The appellants had submitted those authorities precluded her Honour from concluding that Hore-Lacy had no work to do in this State. Her Honour did not analyse those cases. As was apparent from, at least Hitchcock and Kermode, Hore-Lacy pleading “had been expressly accepted in most common law jurisdictions in this country as stating the extent to which a defendant might plead by way of justification imputations which ‘differed’ from the plaintiff’s”. [140]

12. [109]

    Her Honour distinguished Kermode insofar as that case concluded that “a defendant can justify at common law by pleading nuance imputations.” Her Honour did so on the basis that “those remarks were not specific to the practice in New South Wales, were not part of the ratio and were made in circumstances where the point argued had not been raised for the assistance of the Court.” [141]

13. [110]

    Her Honour did not refer to the conclusion in Kermode that a defendant justifying under the 2005 Act could, in substance, rely on nuance imputations. [142] That was a significant omission. Although that conclusion may not have been a part of the ratio of the decision, it was considered dicta applicable to this State which recognised that the 2005 Act adopted the common law model of the cause of action within which Hore-Lacy was decided. [143]

14. [111]

    The primary judge also said the appellants were not required to plead any Hore-Lacy meanings because the first respondent informed her that he did not wish to know the alternative meanings for which they contended. [144] That was not, with respect, an approach consistent with proper case management. It was implicit in the first respondent’s submission before her Honour, and made explicit in this Court, that as a matter of principle, the appellants could contend at trial for nuance. [145] However, in a rare display of restraint by a plaintiff, he said he did not want, or need, to know the alternative meanings for which the appellants would contend, as those should be discernible from the particulars of the justification defence.

15. [112]

    It cannot be assumed that all plaintiffs will take such a sanguine approach. Moreover the first respondent’s approach, if condoned, is a recipe for disaster. If identification of alternative meanings is left to the trial, debates such as whether a defendant’s alternative meanings are truly nuance meanings can be expected with concomitant disruption of an orderly trial. Such an approach would be both inconsistent with the requirements of ss 56 – 60 of the Civil Procedure Act 2005 (NSW) and, too, with the obligation in UCPR 14.42(2)(a) to plead matters to avoid the opposite party being taken by surprise. Further, as Beach J pointed out, Hore-Lacy pleading can add complexity to a defamation trial. [146] Any such potential complexity should be resolved, to the greatest extent possible, before any jury trial commences. Such complexity is clearly capable of being addressed, as is apparent from the Victorian Court of Appeal’s observation that there had been only one appeal involving such pleading. [147]

16. [113]

    Accordingly, in my view, the primary judge erred in striking out the Alternative Meanings. Her Honour was bound by both authorities in this Court (even if only seriously considered dicta) and by intermediate appellate authorities directly on point, to accept that Hore-Lacy meanings such as those the appellants contended they had pleaded could be advanced in defamation actions heard in this State. The Alternative Meanings were particulars which enabled the first respondent to identify the case the defence requires him to meet (UCPR 15.1). They are meanings the appellants rely upon to establish the first respondent’s imputations are substantially true as required by UCPR 15.21 and UCPR 15.22, the latter expressly recognising that UCPR 15.1 requires particulars to support both a s 25 and common law justification defence.

17. [114]

    Neither party addressed the Court on the question whether s 25 of the 2005 Act, either expressly or by necessary implication, affects the continued operation of the common law defence of justification. As is apparent from the foregoing, it was unnecessary to consider that matter for the purposes of resolving the appeal. It was also unnecessary to determine whether Setka CA was correctly decided to the extent it appeared to determine Hore-Lacy pleading constituted a defence additional to the common law defence of justification. It is sufficient to conclude that such pleading can operate within the common law defence of justification and s 25 of the 2005 Act and within the terms of the UCPR as understood to have permitted plaintiffs to rely upon imputations not substantially different from those pleaded.

18. [115]

    Finally I observe that there is an undertone in the submissions of the first respondent and, with respect, in the primary judgment, that practice in New South Wales, might, in some manner, lead to a substantively different approach to a defamation pleading from that adopted in other States. It is necessary when determining defamation cases in this State to bear in mind the importance of the States and Territories enacting uniform defamation legislation. [148]

19. [116]

    The New South Wales legislature was no doubt conscious of the possible yoke the 1958 and the 1974 Acts may become on defamation practice in this State under the uniform defamation regime. Accordingly, as I have said, the 2005 Act is explicit in directing courts in this State to apply the general law as if neither of those Acts had been enacted. [149] Defamation law in this State is now governed by the common law, save to the extent the 2005 Act provides otherwise. [150]

20. [117]

    Finally, I would add, having read the reasons of Basten JA with which Macfarlan JA agrees, that if the provisions of the UCPR to which his Honour refers have, contrary to my view, the effect of preventing defendants advancing Hore-Lacy meanings (and effectively returning the substantive law to that which prevailed under the 1974 Act), the rules should be revised to ensure they reflect the position at common law the 2005 Act is intended to achieve. As Kirby J said in Chakravarti, the “rules of pleading must, in those jurisdictions governed by the common law, adapt to the fair evaluation by the tribunal of fact of the matter complained of”. [151]

Orders

1. [118]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appellants to file the draft notice of appeal in the form it appears in the White Book within seven days.

   3. (3)

      Appeal allowed.

   4. (4)

      Set aside the orders made by McCallum J on 9 October 2014 and as to costs on 27 March 2015.

   5. (5)

      Grant the appellants leave to file a Second Further Amended Defence re-pleading the Hore-Lacy plea.

   6. (6)

      Respondents to pay the appellants’ costs of the hearings before McCallum J on 4 December 2013, 5 December 2013 and 8 April 2014 to the extent those hearings concerned the Hore-Lacy issue.

   7. (7)

      Respondents to pay the appellants’ costs of the application for leave to appeal and the appeal.

2. [119]

   BASTEN JA: Dr Bateman is the plaintiff in defamation proceedings presently pending in the Common Law Division of the Court. The claims allege defamatory imputations arising from articles published by the defendants in The Sydney Morning Herald (and on various websites) concerning the way in which the plaintiff, through his companies, ran a network of medical clinics. (There is also a corporate plaintiff but it has and could have no claim in defamation.)

3. [120]

   The matter before this Court is an application for leave to appeal from an interlocutory ruling by the primary judge, McCallum J: Bateman v Fairfax Media Publications Pty Ltd (No 2). [152] Dr Bateman had pleaded in a statement of claim the defamatory imputations which he said were conveyed by the articles. In response, the defendants said that the imputations were substantially true. However, they also sought to plead that other imputations, not substantially different from those pleaded by the plaintiff, were also substantially true. The primary judge held that for the defendant to plead other imputations was both unnecessary and embarrassing and the paragraphs of the defence relying upon such other imputations should be struck out. The defendants claim the primary judge was wrong because they had an entitlement to plead other imputations which they could justify.

Background

1. [121]

   The proceedings were commenced in the Supreme Court of the Australian Capital Territory, by an originating claim filed on 30 November 2010. A detailed statement of claim was filed on the same day. Over the past four and a half years, the progress of the proceedings has not been striking. This Court has not been troubled with a chronology, but it appears that the matter was cross-vested to the Common Law Division by order dated 26 April 2013. On 1 August 2013, a Registrar gave leave to the defendants to file an amended defence, which was filed on 16 August 2013.

2. [122]

   The first affirmative defence pleaded the truth of the plaintiff’s imputations, by way of “justification”, pursuant to s 25 of the Defamation Act 2005 (NSW) (“the 2005 Act”). Reference to s 25 appears as a heading in the amended defence, followed by four paragraphs alleging the substantial truth of specified imputations pleaded by the plaintiff. (The term “justification” is conventional in defamation law to refer to the defence of substantial truth: because the precise components of the defence are important in this case the term “truth” will be used on most occasions. The epithet “substantial” merely indicates that a degree of imprecision is accepted.)

3. [123]

   Secondly, the defence pleaded “contextual truth”, pursuant to s 26 of the 2005 Act. The defendants identified several imputations they said arose from the publications, being different imputations from those pleaded by the plaintiff; the defendants’ different imputations were said to be substantially true, so that the plaintiff’s imputations did not cause further harm to his reputation. No complaint is made about this part of the defence; it is significant only because the imputations pleaded by the defendants must each (if relied on severally) or in combination (if relied on as a whole) “differ in substance from the imputation[s] to which they are pleaded”. [153]

4. [124]

   Thirdly, and critically to the present application, the defendants pleaded under the heading “Common law – Hore-Lacy” further imputations which were said to be “not different in substance” from the plaintiff’s imputations and were substantially true. It was this last defence which was struck out by the primary judge and from which orders the defendants sought leave to appeal.

5. [125]

   There are three features of the present proceeding which are notable. First, it involves an interlocutory appeal on a point of pleading. Secondly, it involves an attempt by a plaintiff to strike out a defence which, on one view, merely gives notice as to precisely how the defendants seeks to run their case, without expanding the issues which can properly be raised. However, thirdly, if the pleading were to be reinstated, the jury will be faced with three sets of imputations, being the plaintiff’s, a further set of imputations pleaded by the defendants and said to be substantially different from the plaintiff’s, but nevertheless to reflect meanings within the material complained of and a third set of imputations, pleaded by the defendants, said to be substantially the same as the plaintiff’s imputations. That there might be at least a practical possibility of confusion could hardly be denied. That was (and is) the plaintiff’s complaint about the third pleaded defence.

6. [126]

   If the defendant can only plead meanings which fall within the meanings which are pleaded by the plaintiff (not being substantially different), how can the defendants insist on a right to plead (and prove) the truth of such meanings, on the hypothesis that they cannot prove the truth of the plaintiff’s meanings? The primary judge characterized such an exercise as “nonsense”; however, it was sufficient to conclude (as she did) that such a pleading was unnecessary and embarrassing, in the sense of being apt to confuse a jury and was, in this sense, subversive of an orderly and fair trial.

Defamation law in NSW

1. [127]

   Before turning to the reasoning of the primary judge in striking out the challenged defence, it is convenient to identify the basic principles to be applied. To that end, it is necessary to advert to a number of matters of history. That is because the defendants sought to assert that their defence depended on principles derived from the common law, rather than statute, and because they asserted an entitlement to plead a substantive defence which could not be removed by rules of procedure.

2. [128]

   The reference to “Hore-Lacy” in the title of the defence was a reference to a decision of the Victorian Court of Appeal, David Syme & Co Ltd v Hore-Lacy [154] which was recently followed and applied by the same Court in Setka v Abbott. [155] The principles so established, the submission continued, formed part of the common law of Australia and, there being only one common law in Australia, this Court was bound to apply those principles, unless there was compelling reason not to, a qualification which could not be established in the circumstances.

3. [129]

   As will be considered further below, the bland reliance upon “a common law” in Australia requires some refinement in a context where statute has, for more than 150 years, intruded upon judicial precedents. Further, care must be taken before accepting the apparent assumption that substantive common law principles cannot be affected by rules of procedure. Even if we do not now adopt Sir Henry Maine’s aphorism “that substantive law has at first the look of being gradually secreted in the interstices of procedure”, [156] the interrelationship of procedure and substantive law can hardly be denied.

4. [130]

   Where the tort upon which a plaintiff sues is committed within the jurisdiction of the court in which proceedings are brought no choice of law question arises. However, publication of defamatory material can and often does occur across jurisdictions. To the extent that a separate cause of action arises in each jurisdiction, choice of law questions do arise. With respect to tort, it has been established by John Pfeiffer Pty Ltd v Rogerson [157] that, statute aside, the law governing substantive issues, including the existence and extent of rights, obligations and remedies, will be the law of the place of the tort, [158] while procedural questions will be determined by the law of the forum, that is the place of trial. [159]

5. [131]

   That distinction may have been significant in some past cases dealing with interstate publication, although it was not always discussed in those terms. No such question arises in the present case: the choice of law rules are effectively prescribed by s 11 of the uniform legislation. New South Wales being the jurisdictional area with which the harm occasioned by the publication as a whole “has its closest connection”, [160] both the substantive law and procedural rules of this State apply. Nevertheless, in the course of submissions there were hints that, to the extent that the 2005 Act preserved the “general law”, it did so in a way which could not be diminished by procedural rules. Ultimately, that issue did not need to be addressed because the defendants eschewed any suggestion that the relevant rules under the Uniform Civil Procedure Rules 2005 (NSW) were invalid.

(a) preserving the common law

1. [132]

   Central to the defendants’ case was the proposition that a defence of justification (truth) arising under the general law was preserved by the 2005 Act. That proposition raised a number of questions, not all of which were fully explored in argument. Before identifying those questions, it is convenient to set out the provisions of the 2005 Act which are relied on.

2. [133]

   The 2005 Act includes a defence of substantial truth:

3. [134]

   However, the 2005 Act is not a Code: so much is clear from s 6 which reads as follows:

4. [135]

   Specifically with respect to defences, s 24(1) states:

5. [136]

   The term “general law” is defined to mean “the common law and equity.” [161] What might be encompassed by the term “equity” in this context is quite unclear: assuming some form of equitable principle might be applicable with respect to the tort of defamation, would it include equitable principles reflected in statutory provisions? If so, would a similar approach apply to “the common law”? Further, the operation of subs 6(3) is obscure: so far as the defence of justification is concerned, the Defamation Act 1958 (NSW) (“the 1958 Act”) qualified the common law defence of truth with a requirement that the publication be for the “public benefit”; the Defamation Act 1974 (NSW) (“the 1974 Act”), replaced this element with a “public interest” requirement. If those two Acts “had never been enacted”, that would leave in force the Defamation Act 1912 (NSW). Yet since Windeyer’s Libel Act of 1847, a defence of substantial truth was only made good when the publication was shown to be “for the public benefit”. [162] The requirement of public benefit was retained in the Defamation Act 1901 (NSW), [163] and by the Defamation Act 1912. [164] Needless to say, s 6(3) is a provision specific to NSW and is not found in the equivalent acts in other jurisdictions.

6. [137]

   As this consideration implies, the concept of “a common law”, like the phrase “the rule of law” is multifaceted and may mean different things in different contexts and at different times. For example, the “common law” is usually understood to refer to principles or rules of substantive law which are, in some sense, derived from, or sourced in, judicial decisions. Some such principles have a long pedigree in case-law; others may derive from statute, in which event there could be an issue as to the relationship between the statute and the judicial exegesis. Underlying that question is the doctrine of precedent, which is best seen as a principle underpinning the methodology of judicial decision-making in a “common law” system. [165]

7. [138]

   If ss 6 and 24 were intended to refer to some pristine condition of judge-made law, without statutory affectation, they may invoke little more than an historical artefact with little or no significant modern application. If they include judicial exegesis on statutory provisions, then care must be taken to ensure that the statutory provisions are uniform in all States. Prior to April 2006, they were not. [166]

8. [139]

   A similar issue arose with respect to the offence of murder in New South Wales, as found in the Criminal Law Amendment Act 1883 and as replaced by s 23 of the Crimes Act 1900. In Gammage v The Queen [167] Windeyer J stated: [168]

9. [140]

   Similar considerations apply with respect to the 2005 Act and defamation law in New South Wales.

10. [141]

    In the Native Title Act Case, [170] dealing with then s 12 of the Native Title Act 1993 (Cth), which purported to give “the common law of Australia in respect of native title … the force of a law of the Commonwealth” the joint reasons stated: [171]

11. [142]

    The Court then proposed that the “common law” could be understood to refer to either “the body of law which the courts create and define” [172] or “an organic developing but unwritten body of law”. [173] The joint reasons further stated:

12. [143]

    Putting to one side the language of “declaration” of the common law found in parts of this discussion, these passages recognise both the variability of the common law over time and affectation by statute. Nor should it be supposed that reference to “statute” is intended to be limited to acts of Parliament, to the exclusion of delegated legislation made under the authority of a statute, namely “instruments”, in the language of the Interpretation Act 1987 (NSW), s 3(1). Sections 6 and 24 of the 2005 Act address the issue of affectation by the Act itself: however, identification of the common law must take account of possible affectation by other Acts or statutory instruments.

13. [144]

    Sections 6 and 24 have two effects. First, they enact a principle of statutory interpretation which has waned in recent years, namely a presumption that a statute changes the common law only so far as it does so expressly or by necessary implication. [174] However, the sections have a second effect which the drafter had some difficulty identifying. Repeal of the 1974 Act did not revive the 1958 Act which it had repealed. [175] But the drafter appears to have foreseen a further problem in seeking to resurrect the common law, perhaps because the repeal of an act does not revive anything not in force or existing at the time at which the repeal takes effect, or affect the previous operation of the act. [176] It may have been for that reason that s 6(3) was inserted; nevertheless the effect remains unclear. It seems unlikely that the intention was to revive some pristine form of the defence of truth as it existed before the 1847 legislation; that would deny the force of the reasoning in Gammage. Nor should the words be treated as overriding the effect of laws of this State other than the repealed 1974 Act (and its predecessor). The better view is that these provisions conferred on the courts the power to determine relevant aspects of the non-statutory law of defamation, that is, the general law unaffected by current legislative instruments, as appropriate today in Australia.

14. [145]

    The combination of prescribed choice of law rules, together with the attempt to achieve uniformity of defamation law throughout Australia, reflected a common purpose of the “uniform” laws, namely to limit both the substantive and procedural opportunities for forum shopping within the country. Bearing that purpose in mind, the courts should construe the 2005 Act in a way which will pick up the common law in Australia so as to promote that purpose, even in areas where, for more than 150 years, it had had no operation in this State.

15. [146]

    However, there will remain questions as to the extent to which the 2005 Act itself affected common law principles and the extent to which other State legislation may have had such an effect. As recognised by the High Court in John Pfeiffer, even though there is “a single common law of Australia” [177] and “although the common law applies both in the law area in which a particular case is litigated and in the law area in which the relevant events occurred, it may have been modified in one of them in some relevant particular.” [178]

16. [147]

    Because the 2005 Act must be given effect, so far as possible, to ensure that common law principles will operate uniformly across the country, it may be necessary to disregard statutory variations of the common law in this State which have now been repealed, but which have affected practices and procedures in this State. On the other hand, where those procedures are contained in rules of court which continue to operate it is possible that the common law in this State will differ from the common law in other jurisdictions. There is nothing in the 2005 Act which seeks to prevent such an outcome. Indeed, the outcome is perhaps inevitable in so far as the 2005 Act does not prescribe procedures. Furthermore, variation is possible to the extent that legislation governing statutory interpretation varies from one jurisdiction to another.

17. [148]

    In principle, there are three questions which may need to be addressed, with respect to the defence of truth. First, does the 2005 Act expressly, or by necessary implication, affect or modify the general law defence? Secondly, is the general law defence affected or modified by any other law in force in New South Wales? Thirdly, are the answers to these questions affected by s 6(3)?

18. [149]

    In practice, these questions are inter-related. With respect to the first question, it is apparent from the terms of s 24(1) that the inclusion of a defence of truth in s 25 “does not of itself vitiate, limit or abrogate” a general law defence of truth. However, if s 25 accurately reflects the common law as it applies in this State, it may fairly be said to supersede the common law in the sense used by Sir Owen Dixon, writing extra-judicially, in a passage adopted in the Native Title Act Case. [179]

19. [150]

    The significant aspect of s 25 for present purposes is that the statutory defence requires proof by the defendant that the defamatory imputations of which the plaintiff complains are substantially true. Until modern pleading practices developed, a plaintiff did not strictly need to plead specific imputations which were conveyed by the natural and ordinary meaning of the publication unless they were necessary because an innuendo arose from extraneous facts. However, in accordance with the pleading requirements which operate in New South Wales, the plaintiff must identify the imputations upon which he or she sues. [180] The somewhat inflexible rule of pleading in New South Wales, may, at least in part, derive from the 1974 Act, in so far as it provided that each imputation constituted a separate cause of action. Although that approach has been abandoned with the repeal of the 1974 Act, the pleading rules remain. Subject to an appropriate amendment, the plaintiff will be held to his or her pleaded imputations, or to meanings which are not substantially different from those pleaded.

20. [151]

    The question then becomes whether there is room under the common law for a pleading which seeks to justify publication of the material complained of, either without identifying particular imputations or by identifying imputations in different terms from those relied upon by the plaintiff. Ultimately, it may be seen that the defendants, by relying on a single common law in Australia which permits them to plead the substantial truth of imputations other than those pleaded by the plaintiff, raise a false issue. Accepting, as they do, that their other imputations must be not substantially different from those pleaded by the plaintiff, the question becomes one of permissible pleading practice, which involves no right or entitlement, nor reliance upon the general law, but rather the discretionary application of rules relating to pleadings which tend to cause prejudice, embarrassment or delay or are otherwise an abuse of process.

21. [152]

    In order to explain why that is so brief reference may be made to the historical development of defamation law and procedure in New South Wales. However, before taking that step, the third question identified above should be addressed.

22. [153]

    On one view, none of these questions can arise in this State. That is because the general law defence of substantial truth was only available, prior to the 2005 Act, in the statutorily modified form which has already been noted. If the operation of s 6(3) is to require consideration of the common law as it arose prior to the enactment of the 1958 Act, then the common law defence of truth was not available in New South Wales.

23. [154]

    There are available reasons which support the view that, at least with respect to that particular defence, s 6(3) does not have that operation. First, subs (3) is said not to limit the operation of subs (2). Secondly, although it is said to assist in identifying the content of the general law as it applies “for the purposes of this Act”, it is not entirely clear that it was intended to limit the operation of s 24(1), although a literal reading of the statute might have that effect. Thirdly, and more importantly, a significant purpose of the 2005 Act, as part of the uniform defamation laws, was to overcome disagreement between the States and Territories as to the scope of the truth defence. [181] The apparent intention, on this important issue, was to adopt a simple truth defence, unconstrained by requirements of public benefit or public interest, contrary to the laws then in force in Queensland, Tasmania and the ACT, as well as New South Wales.

(b) historical considerations

1. [155]

   As noted above, Windeyer’s Libel Act of 1847 provided a defence of truth only when the publication was shown to be “for the public benefit”, a provision retained in the Defamation Act 1901 and the Defamation Act 1912. The next major statutory amendment occurred with the enactment of the 1958 Act. Publication for the public benefit remained a condition of the truth defence. [182] The statutory defence was preserved in the 1974 Act, although the language of “public benefit” was replaced by “public interest”.

2. [156]

   The 1847 Act applied in what became Victoria and Queensland (prior to their separation in 1856 and 1859 respectively); both repealed the 1847 Act, but Queensland replaced it with a Code. The pre-1912 law of New South Wales applied in the Australian Capital Territory. [183] Further details of this brief synopsis may be found in readily available publications. [184]

(c) pleading in NSW

1. [157]

   Pleading both a cause of action and a defence in defamation is governed by the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”). To the extent that the pleading in different jurisdictions is governed by different rules, and to the extent that the issue before the court is one of pleading, little assistance will be gained from case law in jurisdictions which have different rules.

2. [158]

   Pleadings generally are dealt with in Pt 14 of the UCPR; Div 6 deals specifically with defamation pleadings. Division 6, in its present form, was inserted in 2005 with effect from 1 January 2006, being the date of commencement of the 2005 Act. Nevertheless, as the note at the commencement of the division recognised, the 1974 Act would continue to apply to some proceedings after 1 January 2006. Accordingly, in dealing with the defences, the rules provided separately with respect to the 1974 and 2005 Acts.

3. [159]

   It is sufficient for present purposes to set out those parts of the rules dealing with claims and defences generally and with the defence of truth under the 2005 Act. They are as follows:

4. [160]

   These provisions reflect the terms of s 24 of the 2005 Act. Subsection 24(1) has a number of purposes. One is to recognise that the statement of defences is not an exclusive list. The note to the subsection refers to other legislation which provides protection from or defences to actions in defamation. Further, to the extent that there are other defences, including under the general law, none of the statutory defences limits such other defences.

5. [161]

   That this is a broad savings provision is not to be doubted; however, in its terms it has nothing to say as to the availability of some independent defence of justification under the general law.

6. [162]

   It is true that UCPR r 14.32(2) acknowledges the possibility that there is a separate defence of justification “at common law” it may be seen as a reflection of a possibility left open by the legislation. It too says nothing as to the legal availability of such a defence. That question must be determined as a matter of substantive law and, if s 25 should be treated as a full statement of the defence, that conclusion would not be inconsistent with s 24 or the rules.

7. [163]

   In its terms, s 25 requires justification of the specific defamatory imputations of which the plaintiff complains. While it is no longer true (as it was under the 1974 Act) that each imputation constitutes a cause of action, the 2005 Act nevertheless envisages that relevant defamatory imputations will be identified. [185] That is reflected in the requirement of r 14.30(2) that a statement of claim must “specify each imputation on which the plaintiff relies”. The defendants did not suggest that this rule was invalid; indeed they expressly eschewed that proposition. The further requirement that the plaintiff may only plead imputations which “differ in substance”, [186] each from the others, may well have been an essential requirement when each imputation constituted a separate cause of action, but its continued operation is self-evidently justifiable as good pleading practice consistent with the obligation of the pleader, pursuant to the overriding purpose, to identify the real issues in dispute so as to facilitate the just, quick and cheap resolution of them. [187]

8. [164]

   The rules expressly require that the pleading of a defence of justification (whether under the 2005 Act or at common law) “must specify to what imputation or imputations the defence is pleaded”. [188] That obligation arises where the plaintiff has pleaded two or more imputations. The ordinary grammatical understanding of that provision is that the imputation or imputations to which the defence is pleaded are those identified by the plaintiff. A suggestion made by the defendants that this provision permitted them to plead their own imputations, albeit imputations which were not substantially different from those pleaded by the plaintiff, does not conform to the ordinary meaning of the language. The rule addresses the confusion which might arise in the case of a plurality of plaintiff’s imputations; it would make no sense to allow the defendant to plead its own imputations, but only where the plaintiff had pleaded more than one. Similarly, the proposition in r 14.32(2) that a defence of justification is sufficiently pleaded if it alleges that “the imputation in question” was substantially true, picks up the language of s 25 which, as already noted, refers to the imputations of which the plaintiff complains.

9. [165]

   In short, the rules should not be understood as making provision expressly or by implication, for a defendant to plead its own version of the plaintiff’s imputations. That conclusion is not, of itself, sufficient to say that the practice is proscribed.

10. [166]

    Against this statutory and procedural background, it is necessary to turn to the nature of the complaint by the defendants that they have not been allowed to formulate their own version of the plaintiff’s imputations and plead the substantial truth of that version. Given the absence of support in the UCPR for such a course, support must be found elsewhere.

(a) modern NSW practice as to pleaded imputations

1. [167]

   Pleading imputations derived from defamatory publications is undoubtedly an art; however, it does not generally give rise to the precise use of language generally expected of the law. As noted by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Commission, [189] a requirement to specify a particular meaning will “in its practical application” raise questions of degree. He continued:

2. [168]

   The Chief Justice approved a test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd: [190]

3. [169]

   As to how one is to understand imputations pleaded by the plaintiff, there is an inevitable tension running through the case law. On the one hand, the language of a defamatory publication may well be imprecise and the pleader may have difficulty in identifying with precision the nature of the attack on the plaintiff’s character. Further, in a jury trial, that will be a matter to be determined by the jury. Nor, as a practical matter, will the meaning of the imputation be considered entirely in the abstract without reference to the matter complained of. On the other hand, procedural fairness requires that a defendant has notice of the thrust of the case against it, in part so that it can determine whether it can justify the imputation. The approach adopted in the very early days of the 1974 Act was reflected in the reasons of the Court in Morosi v Mirror Newspapers Ltd. [192] Dealing with an allegation of promiscuity, the Court referred to the rules requiring the pleading of imputations differing in substance and continued: [193]

4. [170]

   Some 25 years later, the point was repeated by Mason P (with the agreement of Wood CJ at CL) in Greek Herald Pty Ltd v Nikolopoulos [194] stating, “the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation”, referring to Morosi at 771. The President continued:

5. [171]

   That which does not differ in substance is sometimes described as a “nuance”; whether that word accurately identifies the positive scope for departure from a core, negatively reflected by the phrase “not substantially different”, is not a matter which need be pursued. For practical purposes, most imputations will have a core and a penumbra. Even quite precise imputations, such as ‘the plaintiff has been convicted of theft on 20 occasions’, will not fail if the facts support a limited degree of numerical disparity. How much disparity will be acceptable will depend on context, as noted by Gleeson CJ in the passage set out at [167] above.

(b) English practice as to pleaded imputations

1. [172]

   The modern history of pleading civil defamation cases in the UK can be said to commence with the judgments of the House of Lords in Lewis v Daily Telegraph Ltd. [196] However, the outcome of that case was somewhat indecisive. The next significant discussion occurred in Slim v Daily Telegraph Ltd. [197] All three members of the Court of Appeal in that case expressed their views as to the proper form of pleading. Each gave some historical context for his conclusions. Putting to one side true innuendoes which involved extraneous facts, Lord Denning MR stated: [198]

2. [173]

   The disfiguring complications to which Lord Denning referred appeared to be those identified by Diplock LJ in the following passage: [199]

3. [174]

   As Diplock LJ then explained, in considering justification, the trial judge identified the issue before him as whether the words in their natural and ordinary meaning bore the precise defamatory meaning alleged in the statement of claim, [200]

4. [175]

   The third member of the Court in Slim, Salmon LJ, provided a brief history of changes in pleading practice in defamation cases, noting that, whether it was necessary or not, plaintiffs now pleaded meanings upon which they relied. Salmon LJ stated: [201]

5. [176]

   The practice referred to by Salmon LJ is at least close to the accepted rule in New South Wales. Salmon LJ then noted a further complaint of possible prejudice to the defendants who might be precluded from justifying a meaning upon which the plaintiff had not relied in his pleading. He said in response: [202]

6. [177]

   These judgments reveal a tension inherent in defamation proceedings, between the desirability of having the plaintiff specify the meanings upon which he or she relies, thereby confining not merely the claim but the defences, and the need for damages to be assessed against the harm done by the publication. Ultimately, the relationship between an award of damages and what might be thought to be the ordinary and natural meaning of the publication has proved less powerful than the regulation of proceedings by holding the parties to their pleadings. Nevertheless, it is obviously undesirable, as Diplock LJ noted in Slim, that a new area of disputation is raised, that being the meaning of the pleaded imputations. It is also important to bear in mind that confining the plaintiff’s claim should also confine the scope of the available defences by way of justification and fair comment.

7. [178]

   The next noteworthy development in the UK arose in two cases decided almost simultaneously, namely Polly Peck (Holdings) Plc v Trelford, [203] and Lucas-Box v Newsgroup Newspapers Ltd. [204] Although decided some three weeks after Lucas-Box, it is convenient to deal first with Polly Peck, because it is accepted that it does not represent the law in Australia. It is nevertheless desirable to refer to it to identify the reason why it has not been accepted here.

8. [179]

   It is sufficient to refer to two passages in the judgment of O’Connor LJ (with whom Robert Goff and Nourse LJJ agreed). Dealing with the question of justification, O’Connor LJ made two statements, the inter-relationship of which is not entirely clear. He said: [205]

9. [180]

   The effect of these passages is understood to be that the defendant may plead an imputation not relied upon by the plaintiff and may seek to justify it, at least if it can be said that both have a “common sting”. O’Connor LJ then referred to Lucas-Box noting the ruling in that case that “the practice which dictated that a defendant does not state in his defence what he alleges is the natural and ordinary meaning of the words complained of is ill-founded and should not be followed.” Thus, O’Connor LJ concluded: [206]

10. [181]

    In Lucas-Box, [207] the English Court of Appeal said that “where an action in defamation is tried with a jury, it is for the jury to decide what meaning or meanings the words in fact bear, [but] [t]hey are not limited by the meanings which either the plaintiff or the defendant seeks to place upon the words.” As this passage does not accurately convey the current New South Wales approach to pleaded imputations, regardless of the statutory context in which they developed, it can hardly be relied upon in this jurisdiction to justify that which followed:

11. [182]

    It appears that something has gone astray in the reporting of this passage, but it has been taken to mean that, where the jury need not determine the case on the imputations pleaded by the plaintiff, the defendant is entitled to plead imputations for which it contends and justify them as substantially true.

(c) the Australian response

1. [183]

   Although in other circumstances it might be necessary to have close regard to the statutory provisions and rules of court relevant to the English cases, it will be sufficient for present purposes to consider how the principles they articulate might operate under the statutory provisions and rules applicable in this State. First, it is convenient to note authority in Australia. The first consideration of these cases in Australia, relevant for present purposes, was to be found in the High Court judgments in Chakravarti v Advertiser Newspapers Ltd. [208] That case was concerned with a newspaper report of proceedings before a Royal Commission, for which s 7(1) of the Wrongs Act 1936 (SA) provided a defence in certain circumstances. Each of the three judgments delivered by the Court made some reference to the issues relevant for present purposes. The principal judgment was that of Gaudron and Gummow JJ, with whose orders other members of the Court agreed. Brennan CJ and McHugh J wrote together in respect of two matters which were said to qualify their agreement with the joint reasons of Gaudron and Gummow JJ. The relevant matter concerned “a defendant pleading and justifying meanings which the plaintiff has not pleaded.” [209] The joint reasons set out an extensive extract from the judgment of O’Connor LJ in Polly Peck, parts of which have been set out above. Brennan CJ and McHugh J commented: [210]

2. [184]

   The joint reasons continued: [211]

3. [185]

   Gaudron and Gummow JJ took a different approach, referring to “common practice” with respect to pleading by plaintiffs. [212]

4. [186]

   There followed a discussion of the cases, including Slim and Polly Peck, as to the degree to which a party might be confined to its pleadings, concluding that “if a defendant seeks to justify a meaning which is different from that asserted by the plaintiff, it should plead that alternative meaning …”. [213]

5. [187]

   The precise scope of the principle identified at [52] (the passage set out at [185] above) is unclear. The suggestion that a plaintiff should plead substantially distinct or different meanings is followed by the reference to Lucas-Box and a defendant pleading a different meaning, whereas the current understanding is that the defendant is not able to plead the truth of a substantially different meaning from that pleaded by the plaintiff. However, the scope of these statements is not critical for present purposes as they dealt with “common practice” whereas it is necessary in this State to deal with specific pleading rules.

6. [188]

   The statement of principles by Kirby J [214] did not resolve the issue. Kirby J treated the rules of pleading as operating differently in New South Wales, where, at the time, each imputation constituted a separate cause of action. [215]

7. [189]

   Before turning to the Victorian decisions, it may be noted that Patrick George, writing about practice under the 1974 Act, stated: [216]

8. [190]

   One such jurisdiction was undoubtedly Victoria where the decision in Hore-Lacy upheld the entitlement of a defendant to plead an imputation not substantially different from that pleaded by the plaintiff and seek to justify that imputation. The primary judge in the present case held that such an approach was inapplicable in New South Wales, because of statutory and rule-based differences in this State. That finding being challenged, it is necessary to consider the bases upon which Hore-Lacy was decided. The Court was not unanimous, the majority being constituted by Ormiston and Charles JJA, with Callaway JA in dissent.

9. [191]

   The key to the case turns on the first sentence of the first judgment, Ormiston JA noting that “the solution to these appeals depends upon the extent to which the plaintiff should be allowed to travel beyond the strict confines of his pleadings.” The same point was made by Charles JA, who noted:

10. [192]

    Callaway JA approached the matter on a similar basis stating:

11. [193]

    How then did the majority approach the key question, namely the extent to which a plaintiff was confined by his or her pleadings? Ormiston JA stated at [2]:

12. [194]

    That approach was critical to the reasoning that followed. As Ormiston JA further noted, after referring to the authorities of Lucas-Box and Polly Peck:

13. [195]

    Charles JA applied the same reasoning based on National Mutual v GTV Corporation Pty Ltd. [218] In short, the premise on which the reasoning of the majority was expressly and unequivocally founded was inconsistent with practice in this State at least.

14. [196]

    Hore-Lacy was recently followed by the Victorian Court of Appeal in Setka v Abbott, but it is not necessary, subject to one qualification, for this Court to consider the reasoning in Setka. The qualification concerns a semantic convention adopted by the joint reasons which may have coloured the manner in which the issues were addressed in the pleading before this Court. Thus, after setting out in full the imputations pleaded by the defendant [219] the joint reasons stated: [220]

15. [197]

    The use of the label carried with it a number of implications, some of which were inconsistent. Thus the judgment continued:

16. [198]

    If by these passages the Court in Setka was implying that some different form of the defence of justification was upheld in Hore-Lacy, that proposition would be difficult to accept. Although the applicants in the present case sought to plead “Hore-Lacy justification” as a separate form of defence, they also sought to justify the imputations pleaded by the plaintiff. No question arose as to any election between these approaches (nor between a denial of the allegations that the imputations were conveyed and defamatory and the pleading of justification).

17. [199]

    Curiously, there was only a single passing reference in Setka to the judgment of the High Court in Channel Seven Adelaide Pty Ltd v Manock [221] and that to an entirely peripheral point in the dissenting judgment. [222] (Interestingly, Kirby J in that passage referred to “the dying hours of the common law of defamation in Australia”.)

18. [200]

    Manock may have been disregarded because it was concerned with the defence of fair comment and not truth. In particular it dealt with the distinction between fact and opinion in relation to that defence. However, the joint reasons of Gummow, Hayne and Heydon JJ, identified, under the heading “Is the meaning pleaded by the plaintiff relevant to the defence of fair comment pleaded by the defendant?” the following propositions: [223]

19. [201]

    The joint reasons held that the pleading did not meet the defendant’s criterion, but continued to identify “Flaws in defendant’s criterion.” [224] In a footnote the reasons noted that: [225]

20. [202]

    The reasons then noted that “[o]ne vice in the defendant’s argument was that it consisted of, and relied largely on, statements asserting the desired conclusion but without any explanation of why that conclusion followed in principle.” [226] In a lengthy passage, the joint reasons stated: [227]

21. [203]

    The reasoning in Chakravarti, picked up and elaborated upon by the joint reasons in Manock, stated that “[a] plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence.” [229] Further, the acceptance by the Court that the principle stated in Lloyd v David Syme by reference to the 1974 Act applies to a common law defence necessarily calls into question any attempt by a defendant to plead the truth of imputations other than those relied on by the plaintiff.

Reasoning of primary judge

1. [204]

   The reasoning of the primary judge for not allowing the defendant to plead imputations which it then sought to justify focused squarely on the rules and practice with respect to pleading imputations, and the manner in which they are left to the jury, in New South Wales. Noting that, despite the repeal of the 1974 Act, (i) a plaintiff is still precluded from pleading imputations which do not differ in substance (r 14.30(3)), (ii) the defendant is required to specify to what imputation the defence of truth is pleaded (r 14.31(2)) and (iii) in alleging that an imputation is true, the defence must include “particulars of the facts, matters and circumstances on which the defendant relies” to establish truth (r 15.22(2)) [230] concluded that the defendant was required to justify the case raised by the plaintiff. [231] That being so, there is no occasion to plead other meanings. [232]

2. [205]

   The trial judge rejected the contention that Hore-Lacy created a specific defence, concluding that it established a principle “relating to the proper manner of pleading the defence of justification at common law.” [233] The judge further noted that the principle accepted in Hore-Lacy arose in response to a complaint by the plaintiff that the defendants asserted that the matter complained of did not mean what the plaintiff said it meant, but would not specify what they said it meant, which they further alleged was true. [234] By contrast, the present case involved no lack of procedural fairness to the plaintiff, requiring further pleading by the defendant but rather a complaint by the plaintiff that the pleading of alternative imputations was embarrassing and likely to give rise to confusion at the trial. [235]

3. [206]

   The primary judge formulated the question to be determined in a number of ways at a reasonably high level of generality. That was done, at least in part, because there were other more specific problems identified by the plaintiff, namely that the defendants had not attempted to specify the imputations to which the alternative imputations related (and to which they were said to be substantially similar) [236] and that they may indeed have been so clearly different in substance that they should not be left to the jury in any event. [237]

4. [207]

   Putting those particular issues to one side, the primary judge identified “the question of principle” as “whether the approach approved in Hore-Lacy should have any operation in New South Wales.” [238] Responding to that question, she concluded that “the decision in Hore-Lacy has no work to do in New South Wales having regard to the law and practice in this State.” [239]

5. [208]

   Stating the issue in those terms, it was perhaps inevitable that the defendants would submit that a single judge could not and should not decline to follow intermediate appellate court authority from another State and that she was bound by statements of principle in this Court which approved that authority.

(a) application of principle

1. [209]

   It is commonplace for lawyers, especially those operating regularly in specialist areas, to refer to legal principles by the names of cases which are thought to establish them. At least where the precise scope and application of a principle is in question, that practice may lead to error. If the question had been more precisely defined it would have been apparent, as indeed it was from the primary judge’s own reasoning, that a condition for the engagement of the principle was not to be found in New South Wales. Under the UCPR, the plaintiff was required to specify each imputation on which he relied but could not allege two imputations which did not differ in substance. While the jury could travel beyond a strict reading of the plaintiff’s pleading, the jury could not be invited to decide any aspect of the case on a basis that did not conform in substance to the meanings pleaded. That was inconsistent with the premise on which the decision in Hore-Lacy was founded.

2. [210]

   Counsel for the plaintiff made some play in this Court on the fact that he had invited the defendants to formulate the question encapsulating their imputations which they would seek to leave to the jury. This, he submitted, they had palpably failed to do. The position of the defendants appeared to be as follows: we have sought to establish that imputation X as pleaded by the plaintiff was substantially true; if we have failed in that, we nevertheless say that imputation Y, which is not substantially different from imputation X, is substantially true. However, a jury which, as the primary judge noted, will be asked to decide first whether the plaintiff’s imputations, or imputations which are not substantially different, are conveyed and, if so, are defamatory, would inevitably be puzzled by a question in the form set out in the last sentence. As explained by the trial judge: [240]

3. [211]

   It follows that the primary judge was not bound to apply Hore-Lacy, not because Hore-Lacy was in any sense wrong, but because the principle it established, once identified by the reference to the condition of its engagement, was not engaged, given the practice and procedures in this State.

(b) whether binding authority to the contrary

1. [212]

   The primary judge was clearly concerned that, even if there were no strictly binding authority to the contrary, the conclusion she had reached was inconsistent with dicta in judgments in this Court and in other jurisdictions. However, her concern may be sourced, at least in part, to a second aspect of the manner in which the questions were stated. The principle she identified concerned the manner of pleading “the defence of justification at common law”. [241] That concern extended to the application of the principle “in the context of uniform national law.” However, that requires attention to what are the limits of precise uniformity. If the procedure for pleading varies, there may be a lack of uniformity in outcomes.

2. [213]

   The first case, chronologically, referred to by the primary judge was John Fairfax Publications Pty Ltd v Jones. [242] This case is of little relevance. It was primarily concerned with a defence of contextual truth and whether the imputations pleaded by the defendant were substantially different, as they were required to be, from those pleaded by the plaintiff. So far as interstate defences were concerned, Hodgson JA referred to Polly Peck as authority for two broad propositions: [243]

3. [214]

   Hodgson JA noted that the status of those propositions in Australia was “unclear”, referring to Chakravarti, Hore-Lacy and other authority. He did not find it necessary to decide whether the critical second proposition derived from Polly Peck was good law in Australia or whether it could apply to the case. [244] The majority, Spigelman CJ and Ipp JA, did not separately address that issue.

4. [215]

   The second case referred to by the primary judge was John Fairfax Publications Pty Ltd v Zunter. [245] This was another case in a line of authorities dealing primarily with a defence of contextual truth under the 1974 Act. With respect to publications in other jurisdictions, the defendant, relying on Polly Peck, alleged a single imputation which was said to be not separate and distinct from the plaintiff’s imputations and true in substance. [246] Handley JA (with whom Spigelman CJ and McColl JA agreed) stated: [247]

5. [216]

   This inconclusive statement took the matter no further.

6. [217]

   The third case was John Fairfax Publications Pty Ltd v Hitchcock. [252] The critical passage appeared under the heading “Polly Peck” and related to a finding by the primary judge that the publisher’s “inter-state common law defences should be struck out because they sought to justify the matter complained of by pleading the same imputations as were relied on for the purposes of the defence of contextual truth for the purposes of s 16 of the Defamation Act 1974.” [253] This issue did not require extended treatment: as the Court noted, a defendant could plead an imputation as part of a defence of contextual truth if it were substantially different from the plaintiff’s imputations; the possibility of pleading imputations in support of a defence of truth in accordance with Hore-Lacy involved an imputation not substantially different from the plaintiff’s imputations. The matter had been correctly identified and dealt with by the trial judge (Nicholas J) and the challenge was dismissed. [254] Accepting that a defence available under the general law could operate with respect to publication in a jurisdiction not governed by the 1974 Act, there was, nevertheless, no specific consideration of whether practice and procedure relating to pleading in New South Wales was to be determined according to New South Wales law or law of the other jurisdiction.

7. [218]

   Hitchcock was handed down one day after Manock in the High Court and, understandably, made no reference to it. Nevertheless, for the reasons indicated above, the support given by the judgment of a majority in Manock to the statement of Brennan CJ and McHugh J in Chakravarti requires that this Court accept the authoritative weight of that statement.

8. [219]

   Although the reasoning of McColl JA in Hitchcock contained a helpful summary of the authorities in other States, there was no occasion to consider whether those authorities had application in New South Wales. It has not been doubted that, under the 1974 Act, the pleading of imputations by defendants to establish their truth was not appropriate. The authority in support of that proposition was discussed by McColl JA in the next case referred to by the primary judge, namely Fairfax Media Publications Pty Ltd v Kermode. [255] Like Hitchcock, Kermode was ultimately concerned with pleading imputations for the purposes of a defence of contextual truth, albeit pursuant to s 26 of the 2005 Act. Although there was some discussion of principles relating to the defence of truth under the general law, the case turned upon an analysis of s 26. [256]

9. [220]

   The most recent decision of this Court relied upon by the appellant was Snedden v Nationwide News Pty Ltd. [257] The article in issue was published before the commencement of the 2005 Act and, accordingly, the proceedings were governed by the 1974 Act. The only part of the judgment relevant for present purposes was that dealing with “the defence of justification at common law – in relation to States and Territories outside NSW.” This discussion encompassed both contextual truth (which was not available outside New South Wales and Tasmania) and the defence of truth under the general law. Noting that “the ‘Polly Peck’ defence is not available in any Australian jurisdiction” [258] McClellan CJ at CL nevertheless considered what was described as “a variant of the Polly Peck defence, termed the ‘ [sic] defence”. [259] The judgment appeared to turn on a criticism of the trial judge for allowing the defendant to plead an imputation “which did not differ in substance from another [plaintiff’s] imputation.” [260] That was not properly a basis for a criticism of a “Hore-Lacy” imputation and hence this aspect of the appeal was dismissed. Again, it appears that terminology describing a form of pleading as a particular defence available in a common law jurisdiction was accepted without consideration of its appropriateness. That omission was understandable; nothing would have turned on such a discussion.

10. [221]

    Nothing in these authorities purported to address the issues which were raised before the primary judge. Each authority was relevantly directed to another issue, namely a defence of contextual truth in New South Wales or the availability of truth under the general law as a defence in another jurisdiction. None focused upon, because none needed to focus upon, the question whether Hore-Lacy created a new defence available under the general law separate from truth under the general law, nor as to how it should be pleaded in this State. There is an easy elision between discussion of a defence and discussion of pleading a defence. Had any of the cases referred to above been directed to the difference between substance and procedure for the purposes of choice of law rules, that elision would have become significant. However, none was concerned with that distinction and the elision was immaterial.

11. [222]

    Two further points follow from this conclusion. First, once the issue was raised, it was necessary for the primary judge to deal with the question of whether Hore-Lacy identified a defence or a manner of pleading the conventional defence. She understood it to fit the latter category (namely, a permissible manner of pleading) which, in choice of law terms, must be governed by the local law. Secondly, applying this jurisdiction’s rules with respect to pleading, the primary judge concluded, correctly, that nothing conferred on a defendant an unqualified entitlement to plead imputations which it claimed to be true. In that circumstance, it was open to the primary judge to conclude that the pleading had a tendency to cause prejudice, embarrassment or delay in the proceedings and to strike it out pursuant to r 14.28 of the UCPR.

12. [223]

    The submissions in this Court were directed to the question whether, because the reasoning in Hore-Lacy provided a specific defence, the defendants were entitled to plead that defence. Once that was rejected, no ground was identified which would demonstrate error in the exercise of discretion in making the impugned order.

(c) other authorities

1. [224]

   Decisions to similar effect to Hore-Lacy in other jurisdictions, even if found in judgments of intermediate courts of appeal, did not bind the primary judge to let the pleading stand. While it is true that a single judge should follow the decision of an intermediate court of appeal in respect of the operation of uniform legislation, unless convinced it is “plainly wrong”, [261] that principle should not be taken beyond its proper limits. No case dealt with the distinction between the defence and the manner of pleading the defence under the general law; no case dealt with the practice and procedure for pleading justification in New South Wales.

2. [225]

   There remains an issue which was not squarely addressed in this Court because it did not arise, namely the possibility that even where the plaintiff pleads imputations (as indeed he or she must) a defendant can nevertheless demonstrate that the publication, taken as a whole, was true. That is in substance the position expressly established by s 8(3) of the Defamation Act 1992 (NZ) considered by the New Zealand Court of Appeal in Television New Zealand Ltd v Haines. [262] That, like the present case, was an appeal from the decision of a trial judge refusing to permit the defendant (the appellant publisher) from pleading and justifying its own imputations. The judgment of the Court, delivered by Robertson J, upheld the approach of the trial judge in the following passages:

3. [226]

   That reasoning, although undertaken in a context in which the Court had previously (and prior to the statutory reforms) declined to follow Polly Peck and Lucas-Box, [263] involved an application of the fundamental principle identified by Brennan CJ and McHugh J in Chakravarti [264] and approved in Manock. That reasoning conforms to that adopted by the primary judge, finds support in the High Court and is persuasive.

(d) where plaintiff does not plead imputations

1. [227]

   One circumstance in which a common law defence of justification may be available is where the plaintiff has not identified particular defamatory imputations. Whether that course is permissible in this State and whether, if the plaintiff does not plead imputations, s 25 is not engaged are questions which need not be determined in this case. Dr Bateman did plead specific imputations and there is no dispute that s 25 is engaged.

Conclusions

1. [228]

   Although the application before this Court is for leave to appeal from an interlocutory decision on a question of pleading, the foregoing discussion demonstrates that the issues raised by the defendants involve matters of principle with potential significance to pleadings in defamation cases in this State which tended to arise only incidentally prior to the enactment of the 2005 Act. Accordingly, the defendants should have leave to appeal. Nevertheless, for the reasons explained above, the appeal should be dismissed.

2. [229]

   The Court should make the following orders:

3. [230]

   MACFARLAN JA: I agree with Basten JA that, essentially for the reasons that his Honour gives, leave to appeal should be granted but the appeal should be dismissed.

4. [231]

   As is apparent from his Honour’s judgment, the decision in Hore-Lacy was founded on the proposition that a plaintiff in defamation proceedings is entitled to rely upon unpleaded imputations so long as they do not differ in substance from those pleaded in his or her statement of claim ([190]-[195] above and, in particular, [2], [5], [23], [46] and [69] of Hore-Lacy). This proposition is unsound in the context of NSW practice as rule 14.30(2)(a) of the Uniform Civil Procedure Rules (NSW) (“UCPR”) requires a statement of claim to “specify each imputation on which the plaintiff relies”. That a degree of latitude is allowed to the plaintiff in the construction of his or her pleading of imputations is reflected in rule 14.30(3) which precludes a plaintiff from pleading imputations not differing in substance from each other. Those pleaded are thus taken to include others which are to substantially the same effect and the plaintiff is not confined to the precise terms of the imputations pleaded. This was the view that this Court took in Morosi v Mirror Newspapers Ltd in relation to proceedings under the 1974 Act (at 771C-D; see [169] above). It reflects the appropriate, commonsense approach to the construction of pleadings generally: rather than adopting a technical approach to their construction, regard should be had to the substance of the matters pleaded.

5. [232]

   This latitude does not detract from the basic requirement of the UCPR that the imputations upon which a plaintiff relies are to be pleaded. Once that is acknowledged, the rationale given in Hore-Lacy for allowing a defendant to plead imputations alleged to be not substantially different from the plaintiff’s pleaded imputations disappears. That rationale is that if the plaintiff can succeed on unpleaded imputations, the defendant should be able to plead and justify them.

6. [233]

   Rule 14.31(2) of the UCPR requires defences of justification and contextual truth to be related to particular imputations in the statement of claim and rule 15.21(1) requires a defence to provide particulars of “the facts, matters and circumstances on which the defendant relies” to establish truth and contextual truth defences. As proof of substantial truth suffices for a defence of justification, and for its pleading (see section 25 of the 2005 Act and rule 14.32(2)), full compliance with this obligation to provide particulars should make apparent any respect in which the defendant’s justification defence will be directed, not at a plaintiff’s imputation as precisely pleaded, but at an imputation to substantially the same effect. The defendant should ensure that its particulars achieve this so that it complies with its obligation under rule 15.1(1) to provide such particulars “as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet”.

7. [234]

   The defence filed in the present case did not conform to these principles as it pleaded, as a defence separate from the defences of justification under section 25 of the 2005 Act and the common law, and of contextual truth under section 26 of the 2005 Act, a defence described as “COMMON LAW – HORE-LACY”. This defence pleaded imputations alleged not to differ in substance from those pleaded by the first plaintiff and asserted that they were substantially true. The primary judge was thus correct to strike the defence out.

8. [235]

   Apart from its inconsistency with the UCPR, such a defence is liable to interfere with the orderly disposition of the proceedings by encouraging defendants to take too broad a view of what constitutes an imputation not differing in substance from one pleaded by the plaintiff. If alternative imputations sought to be relied upon by a defendant are truly to the same effect as those pleaded by the plaintiff, the defendant’s rights will be adequately protected by its ability to submit to the jury in address that the evidence establishes the substantial truth of the plaintiff’s imputations. The plaintiff will have been put on notice of the defendant’s case by the defendant’s compliance with its obligation under r 15.21(1) to provide particulars of the facts, matters and circumstances upon which it relies in support of its plea of justification. There is no warrant for complicating the proceedings by permitting the defendant to plead such alternative imputations separately, and requiring the jury to consider them separately from those upon which the plaintiff relies. The defendant’s rights are of course further protected by its ability to rely upon a defence of contextual truth where imputations differing in substance from those pleaded by the plaintiff arise out of the publication and it asserts that they are substantially true (see section 26 of the 2005 Act).