John Fairfax Publications Pty Ltd v Hitchcock

IPP JA: I have had the benefit of reading the reasons of Tobias and McColl JJA.

Three principal points were argued on behalf of the appellant, namely, the primary judge (Nicholas J) erred: (a) in striking out those parts of the appellant’s defences that were based on the element of public interest; (b) in finding that the appellant’s contextual imputation (vii) (namely, “the plaintiff gatecrashed a social function”) is merely a shade or gradation of meaning of, and does not differ in substance from, the respondent’s imputation (d) (namely, “the plaintiff had gatecrashed a social function knowing she was not invited”); and (c) in finding that the imputations pleaded by the appellant as part of its interstate common law defences should be struck out because they differed in substance from the respondent’s imputations and were not “nuances or variations” of those imputations.

In its further amended defence, the appellant pleaded particulars of the facts and matters it relied upon to establish that the respondent’s imputations and its own contextual imputations related to matters of public interest. Nicholas J held that the imputations did not relate to any activity of the respondent that was of concern to the public. His Honour was of the opinion that the imputations alleged concerned allegations of misconduct on the part of the respondent in respect of activities which did not affect the public at large and which had no public importance. His Honour, with respect, expressed his reasons in a clear and succinct way and these were supported by a most cogent argument by Mr T E F Hughes QC, who together with Mr T D F Hughes, appeared for the respondent.

I have, however, and not without some hesitation, come to a different conclusion.

The overriding consideration is that the issue before the Court concerns a strike out application, not a final hearing.

In Agar v Hyde [2001] HCA 41; (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ observed (at 575 to 576, [57]) that contested issues should not be decided except in the clearest of cases. Their Honours said: “Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways [ Dey v Victorian Railways Commission (1949) 78 CLR 62 at 91, per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, per Barwick CJ], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

This statement was repeated recently by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at 275, [46]).

Whether the activities of a particular individual are a matter of public interest is quintessentially a question of fact that turns on evidence. It is sufficient in this regard to refer to the remarks of Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199 at 226, [42]. The circumstances that are capable of bearing on this issue are notionally infinite. It is true that, in this case, the circumstances are limited by the pleaded particulars. Nevertheless, the ultimate issue can only be decided once the issues are seen against the penumbra of all the factual circumstances that may be relevant. For this reason, in my opinion, without having heard all the evidence a court could not have the requisite high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial.

In my respectful opinion, it is not desirable to say anything more about this issue than what I have said. The legal principles applicable can only be determined once the factual issues are crystallised and, in my view, it is premature and undesirable to express any opinions about those legal principles at this stage. True it is that those principles were debated in detail before this Court. That was necessary in order to enable the Court to decide whether or not the appellant’s contentions should be upheld. Having determined that they should be upheld, nothing more should be said.

I turn now to contextual imputation (vii).

In John Fairfax Publications Pty Limited v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541, Spigelman CJ (with whom Rolfe AJA agreed) struck out two imputations “because their combined effect is not capable of equalling [the plaintiff’s] imputation … in terms of injury to reputation” (see at 546, [26]). The Chief Justice was of the opinion (at 546, [26], see also 546, [21]), for that reason, that “the essential element of the defence prescribed in s 16(2)(c) is not capable of being established”.

Section 16(2)(c) of the Defamation Act 1974 (NSW) (which was the statute applicable) provided: “It is a defence to any imputation complained of that - … (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.”

The contextual imputation that the plaintiff gatecrashed a social function is but an element of the respondent’s imputation that the plaintiff had gatecrashed a social function knowing she was not invited. Linguistically, the difference between the two imputations is that while the respondent’s imputation alleges a gatecrashing by the respondent with knowledge that she was not invited, the appellant’s contextual imputation asserts simply a gatecrashing on her part. The contextual imputation differs only to the extent that a lack of knowledge is not alleged. The contextual imputation alleges a less reprehensible act than that pleaded in the respondent’s imputation.

The question arises whether the term “gatecrash” covers the situation where a person attends a social function without knowing that she was not invited. It is true that the Oxford English Dictionary defines a “gatecrasher” as “one who enters a sports ground or a private party, reception, entertainment, etc, without an invitation or tickets”. Nevertheless, the examples given of the usage of the term all involve the gatecrasher gaining admittance with knowledge that he or she was not invited. Tobias JA (at [36]) expresses the opinion that a person who erroneously, but bona fide, believes that she has been invited to a party and attends it with that belief is not a gatecrasher unless, on her belief being corrected, she refuses to leave. I agree.

I accept that the term “gatecrasher” may be appropriate to describe a person who attends a party to which she has not been invited but does so uncertain as to whether she is invited or not. In my view, however, the term could only be said to be appropriate if the person in question remains at the party without making certain that she is welcome.

It is well established that a defendant will only be able to plead a contextual imputation if it differs in substance from the imputation pleaded by the plaintiff: John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205. This means that for contextual imputation (vii) to stand it must differ in substance from the respondent’s imputation (d).

If contextual imputation (vii) is to be construed simply as meaning that the respondent attended the party in the erroneous belief that she was invited, an imputation in those terms, whether considered alone or in combination with the other contextual imputations relied upon by the appellant, is not capable of equalling the injury to the respondent’s reputation which arises by reason of her imputation (b). Accordingly, at best for the appellant, contextual imputation (vii) must be taken to assert that the respondent (who was not invited to the party) attended it even though she was uncertain whether or not she had been invited.

I am of the view that contextual imputation (vii) should also be taken to mean that the respondent, knowing of her lack of certainty as to whether she was invited, stayed at the party without inquiring whether she had been invited. That is because, as I have explained, I do not think that the term “gatecrasher” is apt to describe a person who attends a party, uncertain as to whether she has been invited or not, and who, at a reasonably early stage, makes certain that she has, in fact, been invited.

Tobias JA (at [37]) expresses the opinion that there is no difference in substance between contextual imputation (vii) and imputation (d). His Honour comes to this conclusion without having regard to the element of contextual imputation (vii) that I have suggested, namely, that the respondent stayed on at the party without making certain that she was invited. I agree with his Honour’s views. The additional element to which I have referred simply reinforces the conclusion to which his Honour comes.

Accordingly, I would not uphold the appeal in relation to contextual imputation (vii).

I agree with McColl JA’s consideration of the legal issues which arise in relation to ground 8. However because I agree with Tobias JA that contextual imputation (vii) is only a shade or gradation of meaning of the respondent’s fourth imputation, I also agree with his conclusion that the primary judge erred in striking out that imputation in the common law defences.

The appellant should succeed in regard to its argument based on the public interest issue. Otherwise, the appeal should be dismissed.

I agree with what Tobias JA has written about costs and I agree with the orders his Honour proposes.

TOBIAS JA : In this matter I have had the benefit of reading in draft the thoroughly researched and detailed judgment of McColl JA. I agree with her Honour that Ground 8 should be rejected for the reasons articulated by the primary judge supplemented by those of her Honour.

I also agree that Grounds of Appeal 1, 2, 3, 4, 5 and 6 should be allowed generally for the reasons advanced by her Honour in [114], [166] to [172] and [174] to [185] of her judgment.

Her Honour has set out and discussed in great detail the authorities relevant to the issue of public interest. However, as the application by the respondent to which the primary judge acceded was one governed by the well established principles relating to the summary striking out of a defence, for that application to succeed it was necessary for the respondent to demonstrate that the relevant defences were untenable. In particular, it was necessary for her to establish that the imputations found by the jury in the s 7A hearing, if the particulars relied on by the appellant to establish that those imputations related to matters of public interest were proven, could not even arguably relate to such matters. This was a high bar which the respondent was required to overcome, the onus being upon her to do so.

The authorities on the subject of public interest identified by her Honour enable the only relevant question requiring an answer by the primary judge to be put in a number of different ways. Those questions in many respects overlap and the differences between them are in some cases only a matter of semantics. Nor are they necessarily exhaustive.

Accordingly, upon the assumption that the particulars relied on by the appellant and which are set out in [52] of McColl JA’s judgment are proven, it was necessary for the respondent to demonstrate that none of the following questions could be answered in the affirmative, namely, was it arguable that at the time of the publication of the matter complained of the respondent: ► was the subject of public interest in that she was engaged in activities which were of such a nature as to invite public criticism or discussion; ► had assumed by her own activities a public persona in which the public could be legitimately interested or concerned; ► had by her own conduct assumed a public persona which either inherently, expressly or inferentially invited public criticism or discussion; ► had exposed her private life to the public in a manner which invited public criticism or discussion; ► had engaged in activities, the conduct of which either inherently, expressly or inferentially invited public criticism or discussion; ► had engaged in public conduct that either inherently, expressly or inferentially invited public criticism or discussion; ► had placed her conduct before the public for its approval or attention being conduct in which the public could be legitimately interested?

For the reasons set out by McColl JA in the paragraphs of her judgment to which I have referred in [25] above, in my opinion the respondent has not established that none of those questions could have been answered by the primary judge in the affirmative. That was all that was required for the purpose of rejecting the respondent’s strike out application in accordance with the test established in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR as discussed in Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 and Batistatos v Roads & Traffic Authority of New South Wales ; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR referred to by her Honour in [106]-[109] of her judgment.

The primary judge referred to the relevant authorities and principles necessary for his decision in [8] to [14] of his judgment. They were not in dispute. However the critical paragraph in his Honour’s reasons was [18] set out by McColl JA in [166] of her judgment. It is clear to me that his Honour’s references in the opening sentence of that paragraph to the appellant’s particulars in para (d) was intended to include those referred to in paras (a), (b) and (c) (as they are incorporated by reference by para (d)). It is also my view that his Honour stated the correct principle in the last sentence of that paragraph.

It is that part of [18] italicised by McColl JA in [166] of her judgment that, with respect, bespeaks error in the context of a strike out application although I would agree with the primary judge that “ it does not flow that the conduct and activities of a person who is a creature of [self] publicity or has become famous for being famous should automatically be taken to be such as to affect the public at large ”.

But the fact that the conduct or activities in question should not “ automatically ” be taken to relate to a matter of public interest does not mean that it never can be so taken. Again, his Honour’s observation in the same paragraph that the “ fact that the conduct in public does not, without more, make it a matter of public interest ” may be so but will depend on whether there is “ more ”: that is, it will depend upon the nature and extent of the conduct in question which is ultimately a question for the trial judge in the light of the facts established by the evidence.

Although there is some force in the observations by the primary judge in [19] of his judgment, I cannot, with respect, agree that it is “ self evident ” that the matters particularised by the appellant could never be matters of public interest. If it is not self evident, then it must be arguable that they can and that was a sufficient basis to reject the respondent’s strike out application with respect to the defences dependant on the public interest issue.

Although McColl JA (at [117 et seq) analyses in detail cases concerning applications for an interlocutory injunction to restrain the publication of allegedly defamatory matters, I do not myself consider that the statements of principle in those authorities require a different slant or emphasis to be placed upon the application of the General Steel test when dealing with an application to strike out a defence in a defamation action compared to any other type of action. In this context, I note that the authorities referred to by her Honour seem to draw a distinction between an exercise of jurisdiction to restrain a publication prior to and in advance of the determination by a jury that the publication is in fact defamatory of the applicant for relief (for it is only then that one can say that the applicant’s rights have been infringed) and an exercise of jurisdiction to strike out a defence subsequent to a finding that the applicant has in fact been defamed by the publication. Caution in the exercise of the relevant jurisdiction is required in both situations but if extra caution is required before an injunction against publication is granted, I do not accept that that mandates a different or more stringent approach to that which is well established with respect to a strike out application governed by the General Steel test.

I also regret that I cannot agree with McColl JA with respect to Ground 7 in the Notice of Appeal This is because I cannot accept the distinction referred to by her Honour in [192] of her judgment between a person who attends a function knowing he or she has not been invited and such a person who has no belief one way or another. The person who attends a function without knowing whether he or she has been invited would, in my view, be a gatecrasher.

As the primary judge observed at [45] of his judgment, to gatecrash a function is ordinarily understood as referring to attending the function knowing that one has not been invited or, I would add, not knowing whether or not one has been invited. On the other hand, a person who erroneously but bona fide believes that he or she has been invited to a function and attends it with that belief is not, in my opinion, a person ordinarily referred to as a gatecrasher unless, on his or her belief being corrected, he or she refuses to leave.

As contextual imputation (vii) asserts that the respondent had “gatecrashed” the relevant function, it follows in my opinion that that imputation is asserting that the respondent either knew she was uninvited or did not know that she had not been invited. In my view there is no difference in substance between that contextual imputation and imputation (d) that the respondent gatecrashed the subject function “knowing she was not invited”. There is only a shade or gradation of meaning between that imputation and contextual imputation (vii) insofar as it is, at the very least, inherent in the latter that the respondent attended the relevant function without knowing whether or not she had been invited.

Further, for the purpose of s 16(2)(c) of the Defamation Act 1974 and as McColl JA implies in [192] of her reasons, I would observe that the reputation of a person who attends a function without knowing whether or not he or she has been invited thereto would be less injured than that of a person who actually knows that he or she has not been invited.

For the foregoing reasons I would reject Ground 7 of the Notice of Appeal and confirm the decision of the primary judge to strike out contextual imputation (vii).

The consequence of this conclusion is that, while I agree with McColl JA as to the legal principles to be applied in considering the inter-state defence, because I have concluded that contextual imputation (vii) is only a shade or gradation of meaning, it is a permissible imputation in those jurisdictions. Accordingly his Honour erred in striking out that imputation in the common law defences. This means that ground 8 should be allowed in part.

As I am differing from McColl JA with respect to the fate of Ground 7 in the Notice of Appeal, it follows that the respondent has had greater success on the appeal than that noted by her Honour. In these circumstances I am of the view that the respondent should bear one-half of the costs of the appeal.

The costs of the motion before the primary judge are more difficult to determine as no appeal was brought against his Honour’s striking out of paras 5(a)(i), 7(a) and 12 of the Further Amended Defence and the appeal against his Honour’s order striking out paras 5(a)(vii) and 9 has in my view failed. In these circumstances it would be more appropriate for the question of costs of the motion before the primary judge be remitted to his Honour to determine in light of the final result of the respondent’s motion as a consequence of his Honour’s strike out orders as varied by the orders of this Court.

I would therefore propose the following orders: (a) Appeal allowed in part; (b) Set aside the Order (1) of Nicholas J made on 29 January 2007 insofar as his Honour struck out paras 4, 5 (except for para 5(a)(i) and 5(a)(vii)), 6, 7(b), 8, 9 (vii), 10, 11, 13 and 14 of the Further Amended Defence filed on 24 October 2006; (c) The respondent to pay one half of the appellant’s costs of the appeal but to have a certificate under the Suitor’s Fund Act 1951, if otherwise qualified; (d) Remit the question of the costs of the respondent’s notice of motion to Nicholas J to be determined in the light of his Honour’s Order (1) as varied by the orders of this Court; (e) Otherwise remit the proceeding to the Defamation List for directions as to their further progress.

McCOLL JA: On 26 June 2005 the appellant published an article, “Hitchcock classic” in “the diary” section of the Sun-Herald. Shari-Lea Hitchcock, the respondent, brought an action for defamation in respect of that article. At a trial before Howie J pursuant to s 7A of the Defamation Act 1974 (the “1974 Act”), the jury found that the article conveyed the following imputations of and concerning the respondent and that each was defamatory of her: “(a) That the plaintiff had behaved in a nauseating manner with a married man at a social function; (b) That the Plaintiff had performed an obscene dance at a social function; (c) That the Plaintiff had made a lying assertion that the organisers of a social function to celebrate the commencement of a new TV series had invited her to attend the function as a guest; and (d) That the Plaintiff had gatecrashed a social function knowing she was not invited.”

Following the s 7A hearing the appellant filed its defence. Without descending, to particularity at this stage, it is sufficient to note that it relied on the defence of substantial truth to the respondent’s imputation (a) (s 15, 1974 Act), contextual truth in relation to each of the respondent’s imputations (s 16, 1974 Act), comment of a servant or agent of the defendant in relation to the respondent’s imputations (a) and (b) (s 33, 1974 Act) and qualified privilege at common law and/or pursuant to s 22 of the 1974 Act . Insofar as its defences under s 15 and s 16 were concerned, the appellant pleaded that the respondent’s imputations and its contextual imputations related to matters of public interest. Insofar as its defence under s 33 was concerned, the appellant pleaded that the respondent’s imputations (a) and (b) related to matters of public interest.

Insofar as the matter complained of was published in the Australian Capital Territory, Queensland and Tasmania, the appellant contended that the matter complained of conveyed imputations in identical terms to those relied upon for the purposes of s 16 of the 1974 Act (which it described as either the “Defendant’s Imputations” or the “Defendant’s Alternative Imputations”), and, further, relevantly, that it was for the public benefit that the matter complained of be published: Defamation Act 1901 (ACT), s 6, Defamation Act 1889 (Qld), s 15, Defamation Act 1957 (Tas), s 15.

The appellant also pleaded that it would rely, in mitigation of damages, on the substantial truth of the respondent’s imputation (a), its contextual imputations and the Defendant’s Imputations and/or the Defendant’s Alternative Imputations as well as a matter particularised as: “(b)…the plaintiff had at the time of the publication of the matter complained of, a reputation as a person who is notorious as the long term mistress of a prominent married man.”

The respondent applied by notice of motion filed on 5 February 2006 for an order under Uniform Civil Procedure Rules 2005 r 14.28 striking out almost the entirety of the further amended defence on the grounds that it disclosed no reasonable defence and/or was embarrassing. She complained that the defences of truth, contextual truth, and comment could not be maintained as neither the imputations nor the comment related to matters of public interest and/or public benefit. Next, she asserted that some of the appellant’s contextual imputations were incapable of being conveyed by the matter complained of, an argument which proceeded as a separate question for decision pursuant to UCPR 28.2. Finally, she asserted that to the extent the defence pleaded truth in respect of publication in the Australian Capital Territory, Queensland, and Tasmania pursuant to Polly Peck (Holdings) Plc v Trelford [1986] QB 1000, those defences were unsustainable.

Nicholas J ordered that effectively all of the appellant’s substantive defences be struck out: Shari-Lea Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7. The appellant appeals by leave from that decision. Statement of the case

The matter complained of stated: “SHARI-LEA Hitchcock’s impromptu solo dirty dancing at a function celebrating the new INXS Rock Star TV series last week may have successfully raised the profile of Richard Pratt’s former mistress for a nanosecond, but it has done little to commend the ex-North Wollongong Hotel bikini model to pay TV executives. Well, actually that’s not entirely true. One married pay TV executive was very impressed indeed. So much so that the grey-haired Lothario exchanged saliva with Hitchcock in a nauseating display that turned the stomachs of pretty much everyone in the room on Tuesday night. As fellow guests at the Civic Hotel diverted their eyes to prevent themselves from being transformed into pillars of salt, Hitchcock’s behaviour became increasingly erratic as the night wore on. Even though she told one publication she had been invited to the event, organisers claim she was not on the official guest list. Must just be an INXS fan, we suppose. I’m sure there’s a name for that … [Photograph of Plaintiff] DIRTY DANCING: Shari-lea Hitchcock”.

The primary judge summarised the appellant’s defence (at [6]) as follows: “(1) Imputation (a) is a matter of substantial truth, and relates to a matter, or matters of public interest (s 15 of the Act); (2) To the plaintiff’s imputations, each of which relates to matters of public interest, were published contextual imputations which are matters of substantial truth and relate to matters of public interest (s 16 of the Act). The contextual imputations are in these terms: (i) the plaintiff has engaged in a long-running public affair with a married man (ii) the plaintiff was the mistress of a married man (iii) the plaintiff is prepared to engage in sexual misconduct, including adultery, with married men (iv) the plaintiff engages in exhibitionist behaviour in public of a sexual nature (v) the plaintiff is an exhibitionist (vi) the plaintiff is a person who is prepared to lie (vii) the plaintiff gatecrashed a social function. (3) The matter complained of, insofar as it gave rise to imputations (a) and (b), amounted to comment of the defendant’s servant or agent relating to matters of public interest which was based on proper material for comment (s 33 of the Act). (4) The matter complained of was published on an occasion of qualified privilege, (a) at common law and/or, (b) pursuant to s 22 of the Act.”

The appellant relied upon the following particulars of the facts and matters to establish that the plaintiff’s imputations and the contextual imputations related to matters of public interest: “The Plaintiffs [sic] Imputations and the Contextual Imputations relate to matters of public interest by reason of the following facts and matters: (a) the plaintiff has, over a period of a number of years, actively sought publicity and, in particular, has invited publicity and public attention which would not have been accorded to her were it not for her adulterous relationship with a prominent married man, Richard Pratt. Her seeking publicity and public attention is evidenced by: (i) the plaintiff’s willingness to be photographed in suggestive or alluring poses for magazines and newspapers including: (A) The Australasian Post; (B) Who Weekly; (C) The Sunday Telegraph; (ii) the plaintiff having posed naked as a subject for artist Charles Billich’s erotic portrayal of her and having permitted (and approved of) herself to be identified as the model for the resulting erotic pictures at the artist’s exhibition ‘Erotica’ at a time when she was already a well known public figure because of her adulterous relationship with Mr Pratt and when she well knew that the interest generated in the fact of her having so posed (and in the public display of the erotic pictures she had posed for) arose out of that relationship; (iii) the plaintiff having attended the opening of the ‘Erotica’ exhibition at the Billich Gallery and having posed at that opening for the media in front of at least one of the erotic pictures she had posed naked for; (iv) the plaintiff appeared as a panellist on the television program ‘Beauty and the Beast’. This program consists of a panel of celebrities who give advice and opinions on various issues with heavy emphasis on sexual matters, which program is conducted in a spirit of levity and contains many double-entendres and jokes about sex. The plaintiff in the course of that program alluded to her relationship with Mr Pratt in a vulgar manner, making a pun on his Christian name which she knew to be synonymous with slang terms for the male sexual organ and the practice of fellatio, and offered her advice on how to conduct an ‘open marriage’; (v) the plaintiff has, for financial gain, sought publicity for her business enterprises ‘E Baby’ and ‘babylife.com.au’, and for her acting career, including in the following publications: (A) The Sunday Telegraph, 7 May 2000; (B) The Sunday Telegraph, 30 July 2000; (C) The Sunday Telegraph , 12 November 2000; (D) The Sydney Morning Herald, 27 December 2000; (E) Who Weekly , 8 January, 2001; (E) [sic] The Sunday Telegraph , 27 May 2001; (F) The Sunday Telegraph, 14 October 2001; which she was able to do by reason of her notoriety and celebrity as the mistress of Richard Pratt; (vi) the plaintiff availed herself of her celebrity status deriving from her relationship with Mr Pratt, by accepting invitations to high profile social and promotional functions and by allowing herself to be photographed and interviewed on such occasions; (vi)(a) the plaintiff invited, or at least allowed, media coverage of her private functions including: (A) her birthday parties on 2000, 2001, 2004 and 2005; (B) her daughter’s birthday parties in 2001, 2003, 2005; (C) her Moulin Rouge themed party at her home in 2001; (vii) the plaintiff sought publicity for herself by giving interviews in which she discussed inter alia aspects of her relationship with Mr Pratt including financial support received from him, and characteristics her daughter had inherited from him; (b) it may be inferred from the fact that the plaintiff would not have attracted publicity and attention to herself (as set out in (a) above) had she not carried on an adulterous relationship with Richard Pratt, that the plaintiff used or took advantage of that relationship to attract such publicity and attention; (c) in her public appearances, such as on the ‘Beauty and the Beast’ program and in magazine interviews, the plaintiff has put herself forward as a person whose views are of significance and interest; (d) the matter complained of related to: (i) the behaviour in public of a person who occupied the public spotlight by reason of her past behaviour and by reason of her own invitation of publicity and public attention in reliance on her relationship with Richard Pratt as referred to in (a), (b) and (c) above; (ii) the behaviour in public of a person who has conducted a long-running affair with a married man who is a leading public figure in Australia; (iii) the behaviour in public of a person who has enjoyed a certain celebrity as a result of her long-running public affair with a married man; (iv) the behaviour in public of a person who has courted media attention, in particular, arising out of her long running adulterous affair with one of Australia’s richest men; each of which is inherently a matter of proper and legitimate interest to the public, particularly in the circumstances set out in paragraphs (a)(i)–(viii), (b) and (c) above.”

The primary judge observed (at [8]) that to succeed in establishing its defences, the appellant was required to establish “a nexus between the imputation or comment and a matter of public interest … [t]hat is to say, the act or condition of the plaintiff identified in the imputation or comment must be shown to relate to a matter of public interest.” His Honour then turned to consider the treatment of the issue of a matter of public interest in “oft-quoted cases”: “9 In London Artists Ltd v Littler [1969] 2 QB 375, Lord Denning said (p 391): ‘… There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. A good example is South Hetton Coal Co Ltd v North-Eastern News Association Ltd . A colliery company owned most of the cottages in the village. It was held that the sanitary conditions of those cottages — or rather their insanitary condition — was a matter of public interest. Lord Esher MR said ([1894] 1 QB at p 140) that it was “a matter of public interest that the conduct of the employers should be criticised”. There the public were legitimately concerned . Here the public are legitimately interested . Many people are interested in what happens in the theatre. The stars welcome publicity. They want to be put at the top of the bill. Producers wish it too. They like the house to be full. The comings and goings of the performers are noticed everywhere. When three top stars and a satellite all give notice to leave at the same time — thus putting a successful play in peril — it is to my mind a matter of public interest on which everyone, press and all, are entitled to comment freely.’ 10 In Chappell v TCN Channel Nine Pty Limited (1988) 14 NSWLR 153, Hunt, J (p 165) observed that the mischief which was sought to be remedied by the statutory requirement that the imputation relate to a matter of public interest was the gratuitous destruction of reputation permitted by the defence of truth alone which is available at common law. He noted that this country does not have the ‘public figure’ defence afforded by the First Amendment in the United States recognised in New York Times Co. v Sullivan (1964) 376 US 254. He held that ‘… unless the public figure makes his private activity a matter of public interest himself … that private activity can be a matter of public interest only if it has some bearing upon his capacity to perform his public activities’. He said (p 167): ‘A public figure's private behaviour or character can become a matter of public interest in one of two ways — either because it affects the performance of his public duties (a proposition which I discussed earlier) or because he makes it such a matter himself. If the plaintiff had in fact deliberately put himself forward to the public as subscribing to such high standards in his private behaviour, so that he could be taken as having appealed to the public for its judgment on that private behaviour, he cannot then be heard to say that the public does not have the right to pronounce the judgment which he asked of it: cf Dwyer v Esmonde (1877) 11 Ir R (CL) 542 at 550 and Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532; 51 WN 178’. 11 In Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 the majority, Dawson, McHugh, Gummow, JJ authoritatively stated (p 215) ‘… a subject of public interest meant the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion’. Their Honours emphasised (pp 218-220) that a subject of public interest is to be understood to refer to the conduct or performance of a person engaged in such activities. 12 Relevantly, in Mutch v Sleeman (1929) 29 SR (NSW) 125, Ferguson, J held that it could not be said that a libel related to a matter of public interest merely because the plaintiff was a public figure. He said (p 137): ‘It is not enough that the plaintiff was a public man. The mere fact that a man is a politician, or is engaged in some occupation which brings him into public notice, is not of itself enough to make his private life a matter of public interest, so as to justify the kind of defamatory comment to which, so far as his public activities are concerned, he must submit as one of the incidents of his position’.”

Having cited these authorities his Honour said: “13 It follows, in my understanding, that to obtain a finding that a plaintiff’s conduct relates to a matter of public interest it is necessary for a defendant to show that such conduct occurred in the course of the plaintiff’s engagement or participation in an activity which is of legitimate concern to the public at large or to a substantial section of it. That is to say, in an activity which is of significance to the Australian public, which is to be distinguished from an activity which is personal or private in nature. The plaintiff’s objection in this case raises the question whether the act or condition encapsulated in each of the imputations relates to a matter of concern to the public at large.”

The primary judge referred with approval (at [14]) to Simpson J’s statement in Green v Schneller [2000] NSWSC 548 (at [24]) that “having regard to the test imposed in Bellino , it is insufficient for the defendant to establish that members of the public reading the article might find themselves interested in its assertions about the conduct of the plaintiff”.

His Honour then recorded the appellant’s submission: “15 … that the case it intends to make at the trial is that the plaintiff has deliberately put herself before the public as a person whose views are significant and worthy of attention, and who was the mistress of Mr Pratt, a well known industrialist. It was put that in such circumstances the plaintiff has become a public figure with the consequence that, expressly or inferentially, she should be taken as having invited public criticism of her conduct at the INXS function as described in the article and specified in the imputations.”

Having summarised (at [17]) the particulars of the facts, matters and circumstances the appellant relied upon to establish that the plaintiff’s imputations and the contextual imputations were, or related to, a matter of public interest, his Honour said: “18 In my opinion none of the matters specified in para (d) is a matter of public interest within the meaning of the relevant sections of the Act. The particulars refer only to the public behaviour of the plaintiff who is described, in effect, as a person who has invited and obtained public attention, mainly through media publicity . I do not accept that because the plaintiff’s behaviour is brought before the public gaze from time to time it becomes a matter of public interest. In this field of discourse it does not follow that the conduct and activities of a person who is a creature of publicity or has become famous for being famous should automatically be taken to be such as to affect the public at large. The fact that the conduct is public does not, without more, make it a matter of public interest. What is required is that it is conduct of a kind which concerns the public and either inherently, expressly, or inferentially invites its criticism or discussion. ( Mutch p 137; Chappell p 167; Bellino p 215). 19 It is self evident, in my opinion, that the matters referred to are not matters of public interest in that they are not such as to affect the public at large, and are not matters with which the public would be concerned in any legitimate way . Indeed it is difficult to see any basis upon which it could be said that there is a public interest in having information on any of the subjects. As Simpson, J said in Green (para 22): ‘Not every subject on which the interest of some members of the public might be whetted, is a matter of public interest’.” (emphasis added)

Against the possibility that this conclusion was wrong, the primary judge then considered whether the imputations related to the matters specified in par (d). He concluded they did not, saying: “21 The plaintiff’s imputations and the contextual imputations are imputations about her conduct and behaviour in the course of what were described to be her activities during the INXS party. According to the particulars of truth of imputation (vii) that the plaintiff gatecrashed a function, the INXS party was not open to the general public and admission was limited to invited guests (para H(b), (e), (f), and (g)). 22 In my opinion the conduct described in each of the imputations does not relate to any activity of the plaintiff which is of concern to the public either as specified in para (d), or at all. None of the imputations allege misconduct in respect of any activity which affects the public at large, or which has any public importance whatsoever. The imputations are directed to her relationship with Mr Pratt as his former mistress, and to her behaviour at a social function which was not open to the public. I find that the conduct so described relates only to affairs and activities which are of a private and personal kind (cf: e.g. Baltinos v Australian Consolidated Press Limited [Unreported, NSWSC, 21 July 1995], p 27) and is remote from the matters described in para (d) however widely they may be construed. 23 In my opinion the defendant’s contention that the imputations relate to matters of public interest is untenable. The relevant pleadings, taken at their highest, do not demonstrate the necessary nexus between the imputations and comment and any specified matter, or matters, of public interest. The inevitable consequence is that the defences of truth, contextual truth, and comment as pleaded in paras 4, 5, and 6 of the further amended defence should be struck out.”

The primary judge then went on to consider the respondent’s complaint that all but the second of the contextual imputations were not capable of being conveyed by the article. He found (at [30]) that contextual imputation (i) was not capable of being conveyed by the matter complained of and (at [46]) concluded that if it were necessary to do so he would order that that imputation be struck out. The appellant does not complain about this aspect of his Honour’s reasons.

The respondent’s objection to contextual imputation (vii) was that it did not differ in substance from her fourth imputation (d). Of this his Honour said: “45 The defendant contended that the phrase ‘knowing she was not invited’ in imputation (d) rendered its defamatory sting more serious than that carried by imputation (vii). In my opinion, however, the plaintiff’s objection should be upheld. To gatecrash a party or an event is ordinarily understood to mean to attend it uninvited. I find imputation (vii) to be merely a shade or gradation of meaning of, and does not differ in substance from, imputation (d). Accordingly, this imputation should be struck out.”

The appellant complains that his Honour erred in so finding.

The primary judge expressly concluded that contextual imputation (v) differed in substance from contextual imputation (iv). Subject to that, it appears to have been accepted that, if the contextual imputations were conveyed, then, with the exception of contextual imputation (vii), they differed in substance from the respondent’s imputations.

The next matter of relevance in the primary judgment was his Honour’s consideration of the defence of qualified privilege. The appellant accepted that his Honour was bound to strike out its defence of common law qualified privilege because it depended upon Reynolds v Times Newspapers Ltd [2001] 2 AC 127, which does not apply in New South Wales: John Fairfax & Sons Ltd v Vilo [2001] NSWCA 290; (2001) 52 NSWLR 373. As I understand that concession, it applies to par 7(a) of the Amended Defence which pleaded common law qualified privilege in New South Wales, and to par 12, which pleaded common law qualified privilege in the Australian Capital Territory.

His Honour then turned to the defence under s 22 of the 1974 Act to which the respondent objected on the basis (see [50]) that it was not open to the appellant to assert that the recipients of the matter complained of had any interest or apparent interest in having published to them information which included the imputations found by the jury. The respondent also complained about particulars relating to the issue of reasonableness which his Honour resolved (at [54]) in the appellant’s favour. Relevantly, however, his Honour struck out the s 22 defence, saying: “51 As I have found that it is not open for the defendant to assert that the plaintiff’s imputations relate to matters of public interest, in my opinion the plaintiff’s objection on the first ground should be upheld. The necessary interest for the purposes of s 22(1)(a) of the Act includes any matter of genuine interest to the readership of the newspaper, and connotes an interest in knowing a particular fact, not simply as a matter of curiosity, but as a matter of substance apart from its mere quality as news ( Barbaro v Amalgamated Television Services Pty Limited (1985) 1 NSWLR 30, p 40; Austin v Mirror Newspapers Limited (1985) 3 NSWLR 354, p 359). In my opinion there is no reasonable basis for maintaining that the readership of the article has an interest or an apparent interest in information on the plaintiff’s conduct as encapsulated in the imputations. Accordingly I propose to order that para 7(b) be struck out.”

The effect of the primary judge’s conclusion that the appellant could not rely upon the matters of public interest it advanced in support of its New South Wales defences was that the defences to the publications in the Australian Capital Territory, Queensland and Tasmania to which a subject or matter of public interest was a necessary component should also be struck out. The same conclusion followed to the extent that the appellant relied upon public benefit as a necessary component of its defences: see par [55] and par [56]. This led to par 10, par 13(b), and par 14(b) being struck out.

Paragraph 9(a) of the defence, which related to defences for publications in the Australian Capital Territory, Queensland and Tasmania, pleaded, as the Defendant’s Imputations, the same imputations relied upon in relation to the s 16 defence. The primary judge dealt with par 9(a) as follows: “59 I reviewed the principles concerning the approach to be taken to issues under a Polly Peck defence in Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204. I held that an imputation which is a contextual imputation under s 16 of the Act is one which is substantially different from, and separate and distinct from, the plaintiff’s imputation and, therefore, outside the ambit of alternative imputations available to the defendant under Polly Peck . To preserve its position the defendant formally submitted that Ron Woodham was wrongly decided. In response, it is sufficient to state that I find there is no reason for me not to adhere to my decision and, accordingly, I propose to order para 9(a) be struck out.”

It is implicit in his Honour’s ruling, and as I earlier indicated it appears to have been accepted, that the appellant’s contextual imputations, other than (vii), differed in substance from the respondent’s imputations.

In reliance on Polly Peck (Holdings) Plc v Trelford , par 9(b), par 9(c) and par 9(d) of the defence pleaded three Defendant’s Alternative Imputations which were said to be substantially true and not “separate or distinct from the Plaintiff’s Imputations”. The primary judge (at [60]) followed John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 (at [42]) in which this Court held that a Polly Peck defence based on an imputation not separate and distinct from the plaintiff’s imputation was not recognised by the common law of Australia. The appellant formally challenges this ruling. Grounds of appeal

The appellant relies on the following grounds of appeal: “1. His Honour erred in holding that neither the respondent’s imputations, the appellant’s contextual imputations nor the matter complained of related to any matter of public interest, and that accordingly the defences of truth, contextual truth, comment and qualified privilege/qualified protection were untenable. 2. His Honour erred in holding that in order for a plaintiff’s conduct to relate to a matter of public interest, it is necessary for such conduct to occur in the course of the plaintiff’s engagement or participation in an activity which is of significance to the Australian public, as opposed to an activity which is personal or private in nature. His Honour should have held that where a plaintiff, either expressly or inferentially, invites public criticism or discussion of any activity or conduct engaged in by the plaintiff, including conduct of a private or personal nature, that activity or conduct is a matter of public interest. 3. His Honour erred in holding that none of the matters specified by the appellant in paragraph (d) of the appellant’s particulars of public interest was a matter of public interest by reason of the fact that they were not such as to affect the public at large and were not matters with which the public would be concerned in any legitimate way. 4. His Honour erred in apparently failing to consider whether the facts, matters and circumstances specified by the appellant in paragraphs (a), (b) and (c) of the appellant’s particulars of public interest were sufficient to sustain an arguable contention that the respondent’s imputations, the contextual imputations and the comment of the appellant related to a matter of public interest. 5. Further and alternatively, his Honour erred in failing to hold that the facts, matters and circumstances specified by the appellant in paragraphs (a), (b) and (c) of the appellant’s particulars of public interest were sufficient to sustain an arguable contention that the respondent’s imputations, the contextual imputations and the comment of the appellant related to a matter of public interest, in that the imputations and the comment related to activities and affairs in respect of which the respondent had invited public criticism and discussion. 6. His Honour erred in holding that [the] conduct of the respondent described in the respondent’s imputations and the contextual imputations was remote from the matters described in paragraph (d) of the appellant’s particulars of public interest, for the reason that such conduct related to affairs and activities which were of a private and personal kind. His Honour should have held that the matters in particulars (a) to (c) of public interest set out the particulars of the facts and matters establishing why the matters set out in (d) had become matters of public interest. 7. His Honour erred in holding the imputation pleaded by the appellant in paragraph 5(a)(vii) of the further amended defence was merely a shade or gradation of meaning of, and did not differ in substance from, the imputation pleaded by the respondent and referred to in paragraph 4(d) of his Honour’s reasons for judgment. 8. His Honour erred in striking out the appellant’s defences of truth and contextual truth, pleaded in paragraphs 4 and 5 of the further amended defence, and erred in striking out the corresponding interstate defences pleaded in paragraphs 8 and 9 of the further amended defence. 9. His Honour erred in striking out the appellant’s defences of comment, pleaded in paragraph 6 of the further amended defence, and erred in striking out the corresponding interstate defences pleaded in paragraphs 10 and 11 of the further amended defence. 10. His Honour erred in striking out the appellant’s defence of qualified privilege under s 22 of the Defamation Act 1974 (NSW), pleaded in paragraph 7(b) of the further amended defence, and erred in striking out the corresponding defences of qualified protection in Queensland and Tasmania, pleaded in paragraphs 13 and 14 of the further amended defence.” Appellant’s submissions

Mr T D Blackburn of Senior Counsel, who appeared with Mr D R Sibtain for the appellant, submitted that the primary judge ought to have concluded that the particulars of the facts, matters and circumstances it provided in relation to public interest supported an arguable case that the imputations and the appellant’s comment related to matters of public interest.

Mr Blackburn submitted that the primary judge artificially or wrongly confined the ambit of the concept of public interest. He contended that his Honour fell into error in holding (at [13]) that in order to obtain a finding that the respondent’s conduct related to a matter of public interest it was necessary for the appellant to show that such conduct occurred in the course of the respondent’s engagement or participation in an activity which was of legitimate concern to the public at large or to a substantial section of it as opposed to an activity which was personal or private in nature. Mr Blackburn also argued his Honour erred in holding (at [18]) that what was required was conduct of a kind which concerned the public and either inherently, expressly, or inferentially invited its criticism or discussion. He contended that the primary judge had not engaged with the proposition that the conduct of a person who engaged in public conduct which invited public criticism or discussion could be a matter of public interest: Bellino v Australian Broadcasting Corporation [1995] HCA 34; (1996) 185 CLR 183 (at 217).

While Mr Blackburn accepted that activities of significance to the Australian public will plainly satisfy the test prescribed in Bellino (at 215) per Dawson, McHugh and Gummow JJ he submitted that the activities which might satisfy the test were not so limited.

Mr Blackburn submitted that where a person placed his or her private conduct before the public eye and, either expressly or implicitly, invited public criticism or discussion of that conduct, the mere fact that the conduct would otherwise be considered to be inherently private in nature did not make it a matter which fell outside the public interest test. He contended that there was an available inference that the relevant person would not have deliberately exposed his or her private affairs to the public spotlight had he or she not invited comment upon them.

Mr Blackburn also submitted that although the primary judge set out the particulars of the facts, matters and circumstances it relied upon in par (a), par (b), par (c) and par (d) to establish that the respondent’s imputations and its contextual imputations related to matters of public interest, when he reached his conclusion that the identified subjects were not matters of public interest, he referred only to par (d) of the particulars. He contended that his Honour apparently failed to consider all of the facts and matters relevant to the determination of the public interest issue.

Mr Blackburn next challenged the primary judge’s conclusion that the imputations and comment did not relate to all or any of the matters of public interest. He noted that in reaching that conclusion the primary judge seemed to have placed considerable reliance upon the fact that because the function referred to in the matter complained of was not open to the public, the respondent’s conduct at that function was not public conduct.

Mr Blackburn complained that in finding the conduct described in each of the plaintiff’s imputations related only to affairs and activities of a private and personal kind, the primary judge drew improbable conclusions about the nature of the INXS function. He argued out that although entry to the function was by invitation, it was not open to the primary judge to conclude that for that reason the respondent’s conduct was “of a private or personal kind”. He contended that there was no evidence to support such a conclusion noting that the appellant’s particulars asserted that the respondent’s behaviour was in public.

Mr Blackburn relied in this respect upon the particulars the appellant gave in support of the contention that contextual imputation (vii), “the plaintiff gatecrashed a social function”, was a matter of substantial truth. Those particulars asserted that the function referred to in the matter complained of was a media event to promote the Foxtel reality TV show, Rock Star: INXS which was not open to the general public. Entry was closely monitored with names being crossed off the two guest lists for the function, one for Foxtel and one for the INXS band. Although the function was not open to the general public, Mr Blackburn submitted the evidence would demonstrate that it was a publicity event designed to attract the maximum publicity to the programme, a fact of which the respondent was aware. It argued that by its nature the function was one that would, and did, attract significant media coverage. He contended that the primary judge pre-judged an issue for trial in finding the respondent’s activities were “of a private and personal kind”.

Mr Blackburn next contended that the primary judge’s reliance upon Baltinos v Australian Consolidated Press Ltd (Supreme Court of New South Wales, Sully J, 21 July 1995, unreported) was misplaced. He argued that in Baltinos the defence of truth failed in respect of three of the plaintiff’s imputations because they related only to the plaintiff’s private and personal life, which he had never put into the public arena. He drew attention to Sully J’s observation (at 60): “The position could well have been different had the plaintiff himself been responsible for making these aspects of his private life and affairs the subject of public attention; but I do not see that there is any evidence of the plaintiff in fact having done so.” Mr Blackburn submitted that Sully J’s observation captured the distinction between Baltinos and the instant case.

Mr Blackburn contended that the conduct in which the appellant asserted the respondent had engaged at the INXS function was a matter of legitimate public interest because she had put herself forward as an arbiter of sexual and moral matters, and had frequently and deliberately invited public attention to herself and her conduct at private celebrations. He argued that even assuming, contrary to its submissions, that the INXS function was a “private” party, the respondent could hardly be heard to say that her behaviour at such a party, designed to attract media publicity, was not a matter of public interest when she had previously invited public interest in her conduct at private events.

Returning to the contextual imputations, Mr Blackburn submitted that contextual imputations (i) – (iii) related to the matters which the respondent had put before the public gaze and which were the fons et origo of her fame. He contended that the idea that that was not an arguable proposition so that those defences should be struck out was startling. Next he argued that contextual imputations (iv) – (vii) related to matters of public interest because they related, in substance, to the manner in which the respondent had presented herself to the world as a person whose views and activities were worth noticing in a manner which deliberately invited public attention to her private life, her views on sexual relations and other matters.

Underlying Mr Blackburn’s arguments in this respect was the proposition that the particulars to which the primary judge referred in striking out the appellant’s defences insofar as the public interest issue was concerned were not evidence and served only to provide the respondent with sufficient information to inform her of the case she had to meet to enable her to prepare for trial: Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712. Mr Blackburn argued there may be “a world of difference” between the evidence given at trial and the particulars previously supplied: Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 (at 123).

Mr Blackburn noted that the primary judge’s decision to strike out its defence of comment in the Australian Capital Territory and parts of its defences of qualified privilege in Queensland and Tasmania, as well as his Honour’s conclusion that the s 22 defence did not run, all turned, in substance, on the view he reached about public interest. Accordingly, Mr Blackburn relied upon the same arguments he advanced on public interest in relation to the defences of truth, contextual truth and comment to argue that his Honour also erred in striking out these defences.

Mr Blackburn noted that the primary judge struck out the defence of qualified privilege pursuant to s 22 of the 1974 Act and of qualified protection in the Code States because he concluded the public interest plea was bad. He argued that the question whether his Honour was correct in reaching this conclusion stood or fell on the correctness of his Honour’s decision on the public interest issue.

Mr Blackburn next submitted that the primary judge erred in concluding that contextual imputation (viii) was merely a shade or gradation of meaning of the plaintiff’s imputation (iv). He argued that in determining whether two imputations differed in substance, the Court may consider what must be proved in order to justify each imputation: Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980, unreported). He contended that the plaintiff’s imputation (iv) included an additional element, her state of mind. Mr Blackburn submitted it was conceivable that a person might gatecrash a function, not knowing it had a restricted attendance and believing that he or she had been invited or believing he or she was entitled to attend or in a range of other circumstances. Accordingly, he argued, the words additional to those in contextual imputation (vii) conveyed an additional element which would require different evidence to that required to justify contextual imputation (vii).

Turning to the Defendant’s Alternative Imputations (par 9(b), par 9(c) and par (d)), Mr Blackburn formally submitted that Polly Peck was good law and should be followed, but acknowledged that in the present state of Australian authorities, a defendant was only permitted to plead contextual imputations which were “nuances or variations” of a plaintiff’s imputations: David Syme & Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667, Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314, Advertiser – News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206 (the “interstate cases”), all of which were approved in John Fairfax Publications v Zunter .

Mr Blackburn submitted, however, that the primary judge should have permitted the Defendant’s Imputations in par 9(a)(iv), par (v) and par (vii) to stand on the basis that they were no more than nuances or variations of the respondent’s imputations (i) and (ii). He argued that Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204 was wrongly decided insofar as it held that the only contextual imputations that might be pleaded at common law were ones which did not differ in substance from the plaintiff’s imputations, as that expression is understood in case law determined in New South Wales.

Mr Blackburn argued that the term “differ in substance” in New South Wales case law was used more as a legal term of art than an ordinary English phrase. Accordingly, it could comprehend a small variation between a plaintiff’s imputation and a contextual imputation, whereas the same concept was used in the interstate cases to denote a wider permissible variation between a plaintiff’s and a defendant’s imputations.

Mr Blackburn pointed out that in addition to the test formulated by Hunt J in Singleton v John Fairfax & Sons Ltd to determine whether imputations differed in substance, Kirby J had suggested that imputations might differ in substance even if they could be proved true by the same facts: Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 at [11] – [12]; Parker v Laws [2002] NSWSC 311 at [12] - [13]; Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [44]-[47]. In addition, Simpson J, in Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 (at [67]) held that on occasions, in order to determine whether a plaintiff’s imputations differed in substance, it was permissible to look at the matter complained of in order to determine what the plaintiff was “really asserting”.

Mr Blackburn submitted that it was apparent from Hunt J and Kirby J’s approaches that extremely small variations between two imputations would be sufficient for them to be regarded as different in substance for the purposes of s 16.

Mr Blackburn next argued that the interstate cases established a rule that a defendant was entitled to particularise and justify a meaning that was not “substantially different” from the meaning particularised by the plaintiff. However, he contended that the use of the expression “substantially different” in the interstate cases did not turn on the way that expression was used in the New South Wales context. Rather, the common law rule contemplated a defendant relying on imputations which were “comprised within” or “of lesser seriousness” than a plaintiff’s imputations.

As I understood Mr Blackburn’s contention, it was that the common law jurisdictions would regard an imputation to be “comprised within” or “of lesser seriousness” than a plaintiff’s imputations which, if pleaded in New South Wales as a contextual imputation, would be regarded as differing in substance from the plaintiff’s imputations.

Accordingly, Mr Blackburn argued imputations 9(a)(iv) and (v) should have been permitted to stand as defences in the Australian Capital Territory, Western Australia and Queensland on the basis that they were no more than nuances or variations of the respondent’s imputations (a) and (b).

Mr Blackburn drew attention to one apparent error on the primary judge’s part which was that even if Ron Woodham v John Fairfax Publications Pty Ltd was correctly decided, he should not have struck out contextual imputation (vii) in the common law defences. Having already held that it did not differ in substance from plaintiff’s imputation (iv) for the purposes of the New South Wales defences, Mr Blackburn submitted his Honour ought to have held it was a nuance or variation of the respondent’s fourth imputation. He also submitted, that if contextual imputation (vii) did differ in substance for the purposes of s 16, it nevertheless satisfied the interstate test as being a permissible gradation of the respondent’s fourth imputation. Respondent’s submissions

Mr T E F Hughes of Queen’s Counsel, who appeared with Mr T D F Hughes for the respondent, submitted the theory underlying the particulars of public interest was that the activities of a person having neither a public office nor public duties to perform could become a matter of public interest by a process of self-advertisement, even when those activities had no intrinsic public interest in the sense defined by the authorities.

Mr Hughes argued that the appellant’s approach would debase the concept of “a matter of public interest”, extending it to the protection of gossip about people who, although in the public eye, had no public duties to perform. Even if the appellant’s particulars were factual, the conduct particularised would not expose the respondent’s non-public conduct to defamatory scrutiny as a matter of public interest. He contended that admission to the INXS party was by invitation and that this emphasised its “non-public” character.

Mr Hughes submitted that the particulars of public interest did not support the proposition that the respondent was a person with public duties to perform, nor that she had put herself forward to the world as proclaiming a good character she did not possess. He pointed out that even in the case of a person holding public office, there were clear limits to the permissible defamatory exposure of private conduct: Mutch v Sleeman (1929) 29 SR (NSW) 125 at 137; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153.

Mr Hughes submitted the case was a paradigm of the critical difference between on the one hand a matter of public interest as defined by Lord Denning in London Artists Ltd v Littler [1969] 2 QB 375, and a matter of interest to the public. He relied on Griffiths LJ’s observation in Lion Laboratories v Evans [1985] QB 526 (at 553) that there was “a world of difference between what is in the public interest and what is of interest to the public”, as well as on Simpson J’s statement in Green v Schneller (at [22]); that “[n]ot every subject on which the interest of some members of the public might be whetted is a matter of public interest” for the purposes of defences under the 1974 Act and on Anderson v Ah Kit [2004] WASC 194 (at [27]), to which I will return. Mr Hughes contended that the primary judge perceived that difference and applied it with rigorous correctness.

Mr Hughes submitted that a person whose activities in the community were not such as to make himself or herself a public figure, did not become such a figure for the purposes of the law of defamation by publicising his or her behaviour. He argued that the test propounded in London Artists v Littler (at 391) for determining whether conduct related to a matter of public interest was to ask whether that conduct affected the public at large. He submitted that on no reasonable view could the conduct imputed to the respondent by the appellant in the matter complained of pass this test. He contended that sexual behaviour of a non-criminal nature in a private context was not a matter of public interest.

Mr Hughes contended that to rely on the long past events set out in the appellant’s particulars of public interest stretched the concept of public interest beyond reason. He argued that to contend that past alleged indiscretions of such vintage were capable of creating a relationship between the respondent’s reputation and the defence and any legitimate matter of public interest was clearly untenable.

Mr Hughes submitted that a fundamental and pervasive error which affected the appellant’s argument was the assumption that by allegedly publicising her conduct, the respondent had elevated it to a matter of public interest. He argued that nothing in the majority, or other judgments, in Bellino supported such an assumption. He contended that the former mistress of a well-known man did not open up that relationship to defamatory public scrutiny by letting it be publicly known that she had engaged in that relationship.

Mr Hughes argued that, properly understood, the joint judgment in Bellino (at 215) did not mean that a person made his or her activities a matter of public interest by calling attention to them. Rather, it meant that the plaintiff’s activities themselves must be of such a character as to invite public criticism or discussion, even of a defamatory nature. He argued that the alleged activities set out in the particulars did not pass this test and too, that the appellant’s attempt to invest the description in the matter complained of, of the alleged activities of the respondent with an aura of public interest, was “an impermissible attempt to create a defamation-free Alsatia for social gossip writers”.

Mr Hughes submitted that there was nothing in Bellino which warranted a conclusion that the non-criminal behaviour of a citizen who neither occupied a public office nor had duties of a public nature to perform was exposed to a range of defamatory imputations about his or her private life under the pretext that such private life was a matter of public interest.

Finally on this point, Mr Hughes contended that it was fanciful in considering the s 22 defence, for the appellant to assert that the recipients of the matter complained of had any interest or apparent interest in having purveyed to them information on the subjects dealt with by the imputations which the jury found to have been conveyed by the matter complained of.

Turning to the common law imputations, Mr Hughes submitted that the Court should follow Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1988) 193 CLR 519 (at [8]) and rule that the appellant was not entitled to plead a meaning different from the respondent’s. There was no Notice of Contention seeking to raise that point and it was not pursued. Alternatively Mr Hughes submitted that Hore-Lacy was wrong. In the event that that argument failed, he did not challenge Mr Blackburn’s submission that if Ron Woodham was correctly decided, and if contextual imputation was but a variation of the respondent’s fourth imputation, it should not have been struck out of the inter-state defences. Legislative framework

As the respondent’s cause of action accrued on 26 June 2005, the case falls to be determined pursuant to the 1974 Act and the rules of general law that applied in New South Wales to the determination of civil liability for the publication of defamatory matter immediately before the commencement of the Defamation Act 2005 (the “2005 Act”) on 1 January 2006: Sch 4, cl 2, 2005 Act.

I set out below relevant parts of the 1974 Act: “15 Truth generally … (2) It is a defence as to any imputation complained of that: (a) the imputation is a matter of substantial truth, and (b) the imputation … relates to a matter of public interest …. 16 Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest … (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest ... and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff. 22 Information (1) Where, in respect of matter published to any person: (a) the recipient has an interest or apparent interest in having information on some subject, (b) the matter is published to the recipient in the course of giving to the recipient information on that subject, and (c) the conduct of the publisher in publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication. … Division 7 - Comment 29 General (1) The defence or exclusion of liability in cases of fair comment on a matter of public interest: (a) is modified as appears in this Division, and (b) is not available except in accordance with this Division. … 30 Proper material (1) For the purposes of this section, but subject to subsection (2), ‘proper material for comment’ means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest. (2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest. … 31 Public interest The defences under this Division are not available to any comment unless the comment relates to a matter of public interest. … 33 Comment of servant or agent of defendant (1) Subject to sections 30 and 31, it is a defence as to comment that the comment is the comment of a servant or agent of the defendant.”

Finally, UCPR 14.28, the power invoked by the respondent, provides: “Circumstances in which court may strike out pleadings 14.28 Circumstances in which court may strike out pleadings (cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3) (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1).” Jurisdiction

The jurisdiction the primary judge exercised under UCPR 14.28 to strike out the appellant’s defence was, as his Honour recognised (at [2]) to be exercised in accordance with the test articulated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. His Honour described that test as requiring “demonstration that the matter pleaded is so obviously untenable that it cannot possibly succeed, or is manifestly groundless [and that] if reasonable minds may differ about the conclusion to be drawn the issue must be left for trial”.

Before considering the substantive issues, it is worthwhile to consider more recent articulations of General Steel . Consideration should also be given to the application of that test when one of the issues at stake is freedom of the press.

In Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602 – 3 Mason CJ, Deane and Dawson JJ observed (some footnotes omitted): “The power to order summary judgment must be exercised with ‘exceptional caution’ and ‘should never be exercised unless it is clear that there is no real question to be tried … Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that ‘great care … be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal’. ” [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130; see also Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J] (emphasis added)

In Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at [44]) after noting that the trial judge had applied a strike-out test drawn from General Steel that the claim by the plaintiff “was so obviously untenable that it could not succeed”, Gleeson CJ, Gummow, Hayne and Crennan JJ observed (footnotes omitted): “[46] The statements in General Steel should not be given canonical force. More recently, in Agar v Hyde , Gaudron, McHugh, Gummow and Hayne JJ observed: ‘It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant (most often by service of process on that defendant within the geographic limitations of the court’s jurisdiction) should not decide the issues raised in those proceedings in a summary way except in the clearest of cases . Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way .’ ” (emphasis added)

These observations echo Starke J’s statement in Howden v Truth and Sportsman Ltd [1937] HCA 73; (1937) 58 CLR 416 (at 418) that the jurisdiction to strike out a defence in a defamation case “should be exercised with great care and a plea should not be struck out unless it is perfectly clear that it cannot succeed - that it ‘has not a solid basis capable of proof’…” and Evatt J’s statement (at 424) that “[w]here the defendant in a libel action pleads truth and public benefit the defence cannot be struck out unless the case presents exceptional features”.

In Ollis v New South Wales Crime Commission [2007] NSWCA 311 (at [32]) Beazley JA (with whom Hodgson and Tobias JJA agreed) observed: “The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no arguable defence or that a defence is manifestly groundless is demanding: Air Services Australia v Zarb (NSWCA, 26 August 1998, unreported).”

Although an argument about whether or not a pleading may be struck out may involve extensive argument to demonstrate that the challenged case is so clearly untenable that it cannot possibly succeed ( General Steel (at 130) per Barwick CJ), because the power to strike out should only be exercised in clear cases, the court will not make an interim inquiry into the merits of the plaintiff’s (or defendant’s) case: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937. Accordingly, the allegations of fact in the pleading under challenge will ordinarily be taken as accepted: Northern Australian Aboriginal Legal Aid Service Inc v Bradley [2000] NTCA 13; (2000) 136 NTR 1 at [21] (Priestley J, Doyle and Brooking AJJ). Evidence may, however, be admitted to explain the allegations in the pleading: UCPR 14.28(2). In the present case, the appellant tendered a number of examples of the documentary evidence it would rely upon to support its contention that the respondent had exposed her private life to the public in a manner which arguably invited public criticism or discussion.

There was no challenge to the appellant’s particulars of the nature of the INXS function. Accordingly, it must be accepted, for the purposes of the strike out application, that the activities in which the respondent engaged which are described in the matter complained of, took place at a media event to promote the Foxtel reality TV show, Rock Star: INXS , which while not open to the general public, might be expected to be extensively reported upon in those media outlets concerned with promoting such events to those sectors of the public interested in their subject. Accordingly, to the extent the primary judge appears to have reached his decision, in part, upon the basis that of a finding that the INXS function was not open to the public (primary judgment at [21] - [22]), in my view, he misdirected himself. Mr Hughes also acknowledged that the nature of the INXS event was “sufficiently rubbery” to make it not his best point.

It is appropriate too, in my view, when considering whether a defence should be struck out in defamation proceedings, to bear in mind the implications curtailing a media defendant’s defence of defamation proceedings might have for freedom of the press. This issue has been considered most recently in cases concerning applications for interlocutory injunctions to restrain the publication of allegedly defamatory matter.

Before turning to more recent cases, it is expedient to recall Bonnard v Perryman [1891] 2 Ch 269 (at 284 - 285) which concerned an application for an interlocutory injunction to restrain an allegedly defamatory publication. Lord Coleridge CJ (with whom Lord Esher MR and Lindley, Bowen, and Lopes LJJ concurred) said: “ But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel . Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher, M.R., in Coulson v. Coulson , ‘To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable.’ In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable. Moreover, the decision at the hearing may turn upon the question of the general character of the Plaintiffs; and this is a point which can rarely be investigated satisfactorily upon affidavit before the trial,--on which further it is not desirable that the Court should express an opinion before the trial. Otherwise, an injunction might be granted before the trial in a case in which at the trial nothing but nominal damages, if so much, could be obtained.” (emphasis added)

The continuing relevance of Lord Coleridge’s words was acknowledged in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. In that case, the High Court by majority (Gleeson CJ, Gummow, Hayne and Crennan JJ, Kirby and Callinan JJ dissenting) quashed an interlocutory injunction granted by the Tasmanian Supreme Court restraining the ABC from broadcasting a documentary which relevantly alleged that O'Neill was a suspect in the unsolved disappearance of certain children; that he was a suspect in their murder and that he was a multiple killer of children. At the time he sought the injunction, O'Neill was serving a life sentence of imprisonment for the murder of another child.

Gleeson CJ and Crennan J said (footnotes omitted): “[16] In his widely quoted judgment in Bonnard v Perryman , in which Lord Esher MR, and Lindley, Bowen and Lopes LJJ concurred, Lord Coleridge CJ explained why ‘the subject matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong’ and why, when there is a plea of justification, it is generally wiser, in all but exceptional cases, to abstain from interference until the trial and determination of the plea of justification. First, there is the public interest in the right of free speech. Second, until the defence of justification is resolved, it is not known whether publication of the matter would invade a legal right of the plaintiff. Third, a defence of justification is ordinarily a matter for decision by a jury, not by a judge sitting alone as in an application for an injunction. Fourth, the general character of the plaintiff may be an important matter in the outcome of a trial; it may produce an award of only nominal damages. [17] In one respect, what Lord Coleridge CJ said, in its application to this case, requires qualification. His Lordship was dealing with a context in which truth of itself amounted to justification. Here, in the state of the law at the time of the proceedings before Crawford J and the Full Court, the appellant needed the added element of public benefit. Subject to that significant matter, what his Lordship said is directly in point. The general public interest in free speech is involved. The trial judge was prepared to accept that there was a strong possibility that the imputations could be shown to be true. The defence of justification remains unresolved. The respondent's general character, or if the difference be material, reputation, is such that, even if he succeeded at trial, the damages awarded for the publication the subject of the interlocutory application could well be nominal. [18] Lord Coleridge CJ's conclusion was that ‘it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial’. That form of expression does not deny the existence of a discretion. Inflexibility is not the hallmark of a jurisdiction that is to be exercised on the basis of justice and convenience. Formulations of principle which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked. Nevertheless, so long as that misunderstanding is avoided, there are to be found, in many Australian decisions, useful reminders of the principles which guide the exercise of discretion in this area. One of the best known statements of principle is that of Walsh J, before he became a member of this Court, in Stocker v McElhinney (No 2). After referring to the 5th edition of Gatley on Libel and Slander, and citing Bonnard v Perryman, he said: ‘(1) Although it was one time suggested that there was no power in the court, under provisions similar to those contained in [the Act governing procedure in the Supreme Court of New South Wales] to grant an interlocutory injunction, in cases of defamation, it is settled that the power exists in such cases. (2) In such cases, the power is exercised with great caution, and only in very clear cases. (3) If there is any real room for debate as to whether the statements complained of are defamatory, the injunction will be refused. Indeed, it is only where on this point, the position is so clear that, in the judge's view a subsequent finding by a jury to the contrary would be set aside as unreasonable, that the injunction will go. (4) If, on the evidence before the judge, there is any real ground for supposing that the defendant may succeed upon any such ground as privilege, or of truth and public benefit, or even that the plaintiff if successful, will recover nominal damages only, the injunction will be refused.’ [19] The principles were discussed, for example, in Chappell v TCN Channel Nine Pty Ltd (a decision referred to by Crawford J in a passage quoted above), National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd , and Jakudo Pty Ltd v South Australian Telecasters Ltd. As Doyle CJ said in the last-mentioned case, in all applications for an interlocutory injunction, a court will ask whether the plaintiff has shown that there is a serious question to be tried as to the plaintiff's entitlement to relief, has shown that the plaintiff is likely to suffer injury for which damages will not be an adequate remedy, and has shown that the balance of convenience favours the granting of an injunction. These are the organising principles, to be applied having regard to the nature and circumstances of the case, under which issues of justice and convenience are addressed. We agree with the explanation of these organising principles in the reasons of Gummow and Hayne JJ, and their reiteration that the doctrine of the Court established in Beecham Group Ltd v Bristol Laboratories Pty Ltd should be followed. In the context of a defamation case, the application of those organising principles will require particular attention to the considerations which courts have identified as dictating caution. Foremost among those considerations is the public interest in free speech. A further consideration is that, in the defamation context, the outcome of a trial is especially likely to turn upon issues that are, by hypothesis, unresolved. Where one such issue is justification, it is commonly an issue for jury decision. In addition, the plaintiff's general character may be found to be such that, even if the publication is defamatory, only nominal damages will be awarded.” (emphasis added)

Their Honours then considered the defence of truth available under s 15 of the Defamation Act 1957 (Tas) under which it was lawful to publish defamatory matter first, if the matter was true and secondly, if it was for the public benefit that the publication should be made and said: “[21] These were both questions of fact (s 20). However, para (b) called for a value judgment as to whether the public would benefit from the publication in issue – here the publication of the documentary. [22] In London Artists Ltd v Littler, Lord Denning MR said: ‘Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.’ The contexts of fair comment, and qualified privilege, are somewhat different from the context of justification. However, it may be noted that, in Bellino v Australian Broadcasting Corporation, where this Court was concerned with a Queensland statutory defence of publication in good faith in the course of the discussion of some subject of public interest, the public discussion of which is for the public benefit, Dawson, McHugh and Gummow JJ said that "[i]n the great majority of cases, the public discussion of a subject of public interest must be for the public benefit". There are some obvious exceptions, such as public discussion that might imperil national security. [23] The requirement of public benefit, as an element of the defence of justification in a number of Australian jurisdictions, had a long history. [Their Honours then set out an extract from Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 at 21-22 in which Street A-CJ sought to explain that the defence of justification in New South Wales required proof of public benefit whereas that was not a requirement of that defence in England because NSW legislators thought it inappropriate that people leading respectable lives should be allowed to live untrammelled by past indiscretions unless publication was for the public benefit]. [24] The matter in question in this case goes far beyond the reporting of the past indiscretions of a person of otherwise good reputation, whose privacy ought to be respected . The unsolved mystery of the disappearance of the Beaumont children, the presence within the Tasmanian prison system of a convicted murderer who is suspected of responsibility, the respondent's confession to another murder with which he has never been charged, and the political controversies concerning release on licence or parole of serious offenders are all matters of public interest in the relevant sense. It would have been open to a tribunal of fact to find that the public discussion of those matters, with particular reference to the respondent, is for the public benefit. What might be thought to stand in need of explanation is how suppression of public discussion of those matters could serve the public interest. [30] It is difficult to resist the conclusion that, in their natural and proper concern for fairness to the respondent, the judges who decided the case in his favour have fallen into the error of treating the criminal trial process as the only proper context in which matters of the kind presently in question may be ventilated. More fundamentally, however, it is apparent that they failed to take proper account of the public interest in free communication of information and opinion, which is basic to the caution with which courts have approached the topic of prior restraint of allegedly defamatory matter. [31] The public interest in free speech goes beyond the public benefit that may be associated with a particular communication. The failure to recognise this was an error of principle on the part of the judges who found in favour of the respondent. As Auld LJ pointed out in Holley v Smyth, Blackstone, in his Commentaries, as long ago as 1769 distinguished between prior restraint of publication and subsequent legal consequences: ‘The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity’ (emphasis in original). What lay behind Blackstone's remarks was the conclusion in the late 17th century of the controversy between Parliament and the Crown over free speech and freedom of the press. From Tudor times, the House of Commons appreciated that its role in public life would be seriously curtailed without such freedoms. This explains the House’s repeated assertions, over the century, of a ‘liberty’ to ‘speak freely their consciences without check or controlment’. This liberty found its way into The Bill of Rights, 1689. The ‘check or controlment’ complained about came from the Crown or its councillors. A freedom to speak on behalf of the commons became a freedom, as Blackstone notes of ‘[e]very freeman’. Hand in hand with these developments went the dismantling of the Crown's control, or censorship, of the press, first asserted generally by Ordinance in 1534, and requiring all manuscripts to be scrutinised and licensed by the Stationers' Company. Decrees in Star Chamber reinforced that control or censorship in respect of both printers and books. As explained in the joint reasons of Gummow and Hayne JJ, the dismantling of the licensing system was effectively completed by 1695. The public interest in free speech is explained not least by reference to the fact that freedom of speech and freedom of the press were important aspects of the constitutional struggles which came to rest with the Act of Settlement of 1701. Subsequently, courts of equity were not willing to enjoin publication of defamatory matter, not only because that would usurp the authority of juries, but also because they were most reluctant to be asked ‘to exercise the powers of a censor’. This latter consideration remains important in our democracy. [32] It is one thing for the law to impose consequences, civil or criminal, in the case of an abuse of the right of free speech. It is another matter for a court to interfere with the right of free speech by prior restraint. In working out the consequences of abuse of such freedom, the law strikes a balance between competing interests, which include an individual's interest in his or her reputation. When, however, a court is asked to intervene in advance of publication wider considerations are involved. This is the main reason for the ‘exceptional caution’ [Bonnard v Perryman] with which the power to grant an interlocutory injunction in a case of defamation is approached…”. (emphasis added)

Gummow and Hayne JJ (at [79] ff) also emphasised the competing rights of the plaintiff to protect his or her reputation and freedom of the press and the caution against equitable intervention to impose a prior restrain on publication, commenting, too that: “[87] The stance taken by the courts against prior restraint was not adopted in innocence of the malign influence, on occasion, which may be exerted by media of mass communication. Indeed, in R v Shipley , Lord Mansfield, after speaking of the liberty to print without previous licence, continued: ‘The licentiousness of the press is Pandora’s Box, the source of every evil. Miserable is the condition of individuals, dangerous is the condition of the State, if there is no certain law, or, which is the same thing, no certain administration of law, to protect individuals, or to guard the State.’ As in other fields, the policy of the law struck here represents a particular balance between competing interests. With respect to tortious liability to be determined at trial, that balance for this case is struck by statute, the 1957 Act . With respect to interlocutory restraint by injunction, attention must be paid to the case law as analysed in these reasons.” (footnotes omitted, emphasis added)

The question whether the press should be restrained from publishing allegedly defamatory material will readily bring into stark relief the issue of freedom of the press. Any analogy between the equitable jurisdiction to grant interlocutory injunctions and the power the Court exercises to strike out a pleading pursuant to UCPR 14.28 is necessarily imperfect. However, in my view, the reasoning in O’Neill has force in the context of an application to strike out a defence which, if granted, means the question whether the publisher invaded the plaintiff’s legal right ( O’Neill at [16]) will never be determined by the tribunal of fact. Public Interest

The foregoing discussion demonstrates the significance the public interest in free speech plays in considering whether to curtail by interlocutory injunction, a defendant’s ordinary right to have a defence in defamation proceedings considered at a final hearing. Similar issues come into play when a plaintiff seeks to strike out a defence in defamation proceedings, in which, as here, the concept of public interest plays a central role. In this context it is important to bear in mind the role the concept of public interest plays in “the continual challenge of reconciling freedom of speech and the right of individuals to protect their reputation”: John Fairfax Publications Pty. Ltd v Jones [2004] NSWCA 205 per Spigelman CJ (at [7]).

It is necessary, too, to bear in mind the role privacy issues play in the law of defamation. Australian common law does not recognise a tort of privacy, although some members of the High Court have tentatively acknowledged that such a tort may emerge, at least for individuals rather than corporations: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [132] per Gummow and Hayne JJ; at [335] per Callinan J. However it cannot be gainsaid that the right to privacy “is in a general sense one of the values” which underlies the tort of defamation: Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457 (at [43]) per Lord Hoffmann (with whom Lord Nicholls of Birkenhead agreed).

There is an inevitable tension between privacy and freedom of speech: Campbell v MGN Ltd (at [28]) per Lord Nicholls of Birkenhead. To paraphrase Lord Hoffmann in the same case (at [55]), both freedom of the press and the common law right of the individual to protect personal information “reflect important civilised values, but …neither can be given effect in full measure without restricting the other”. Or, as Gleeson CJ and Crennan J said in O’Neill (at [32]), “[i]n working out the consequences of abuse of … freedom [of speech], the law strikes a balance between competing interests, which include an individual's interest in his or her reputation”.

Accepting that Lord Hoffmann was speaking in a different context, breach of confidence and rights of privacy as affected by the Human Rights Act 1998 (UK), and the question whether there was a public interest in publishing information about Naomi Campbell attending meetings of Narcotics Anonymous, his remarks nevertheless have a resonance in seeking to determine at what stage it might be appropriate to strike out a defence in defamation proceedings which turns on the concept of public interest. The concept of “public interest” is a critical mechanism for the purposes of the law of defamation by which the law seeks to resolve the tension between privacy and freedom of speech.

The concept of “public interest” is undefined, save by usage, to which I will come. However in considering how the “public interest” is identified in any given context, it is useful to recall the observations of Mason CJ, Brennan, Dawson and Gaudron JJ in O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 (at 216) that: “[T]he expression ‘in the public interest’, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only ‘in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view.’ ”

In McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 (at [55]), Hayne J (who formed the majority with Callinan and Heydon JJ) quoted the passage from O'Sullivan v Farrer set out above as supporting the proposition that “most questions about what is in ‘the public interest’ will require consideration of a number of competing arguments about, or features or ‘facets’ of, the public interest” and that “a question about ‘the public interest’ will seldom be properly seen as having only one dimension.” Gleeson CJ and Kirby J (at [16], albeit in dissent) also recognised that the concept of public interest is multi-faceted.

In McKinnon (at [93]), Callinan and Heydon JJ quoted with approval Jacobson J’s statement in the Full Federal Court ( McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 at [243], [246]) that: “First, it seems to me that the entire question is predicated upon an assumption that the concept of the public interest can be defined within precise boundaries. That proposition was rejected by Lockhart J in Right to Life Association (NSW) Inc v Secretary , Department of Human Services and Health (1995) 56 FCR 50 at 59 . His Honour there observed that opinions have differed and will always differ as to what is or is not in the public interest. ... It is plain that the categories of public interest are not closed and that different minds will differ as to what is, or what is not, in the public interest. …”

Their Honours (at [130]) were not, however, “certain that it is apt to describe the public interest as multifaceted”. They gave as an illustration the fact that juries in defamation cases had performed the task of deciding “whether the publication of defamatory matter is in the public interest … upon the basis of their understanding of what the public interest was at the relevant time” and that: “Judges have usually not found it necessary to direct juries at length as to the meaning of the expression, except to warn them that it is not enough that the matter might be of some personal or prurient interest, or merely something about which they may be curious.” It is difficult, with respect, to understand this example. The question of what is in the public interest was, at common law, a matter for the court, a situation preserved in New South Wales by s 12 of the 1974 Act, until that provision was repealed by the Defamation (Amendment) Act 1994, which also inserted s 7A, and confined the role of juries to the issues that provision posed. It is possible their Honours were speaking of the concept of “public benefit” which, being an issue of fact, was a question for the jury: Crowley v Glissan (No 2) [1905] HCA 13; (1905) 2 CLR 744 (at 756) per Griffiths CJ (Barton and O'Connor JJ concurring).

The primary judge set out many of the hallowed passages in which consideration has been given to the concept of public interest in the context of defamation proceedings. Of those he cited, emphasis should be given, in my view, to Lord Denning MR’s statement in London Artists Ltd v Littler (at 391), which echoes the observations in both O’Sullivan v Farmer and McKinnon , that there is no definition of what is a matter of public interest and that the concept should not be “confine[d] … within narrow limits”.

It is worth recalling the facts in Littler . The plaintiffs, who were all actors, wrote private letters to the defendant giving one month’s notice that they were determining their engagements in a play he was staging at Her Majesty's Theatre, London. The defendant, who was convinced there was a plot to stop the play, wrote a letter to each of them in which he suggested that they had participated in what appeared to be a plot to force the end of a successful play. He also held a press conference at which he distributed the letter to the press. In defamation proceedings brought by each of the plaintiffs, the defendant relied, inter alia, on the defence of fair comment on a matter of public interest, being the fate of the play. The trial judge held that “since all four actors did no more than they were entitled to do, and did it privily, no matter of public interest arose even though it was established that the probable result of their synchronising their notices would be the abrupt termination of public presentation of the play”. All members of the Court of Appeal ruled that the reason for the play’s closure was a matter of public interest, to which the defendant’s publication related, even though it concerned the plaintiffs’ private withdrawal of their services: Lord Denning MR (at 391), Edmund Davies LJ (at 394); Widgery LJ (at 399).

An example of what is regarded as a narrower view of the concept of public interest than that expressed in Littler (see Australian Defamation Law and Practice , Butterworths, at [11.115]), is Blackburn J’s conclusion in Allsopp v Incorporated Newsagencies Co Pty Ltd (1975) 26 FLR 238 (at 244 – 245), where the publication in question concerned the alleged dismissal of a newspaper editor, that the competence of the editor of a newspaper was not, per se, a matter of public interest. This was because, in his Honour’s view, “[a] newspaper editor does not offer himself for public appraisal [and] usually … is in principle anonymous [and] [i]t is the quality of the product, not the personal competence of that person, which is the matter of public interest”. Blackburn J did not refer to authority for this proposition but it is, in my view, consistent with the conclusion reached in Bellino v Australian Broadcasting concerning the circumstances in which an individual’s activities might become a subject of public interest.

In Bellino , Dawson, McHugh and Gummow JJ traced the development of the concept of public interest in the context of the defence of comment. It was uncontroversial that their Honours’ observations applied to whatever defence in this case depended upon the issue of public interest.

They pointed out (at 215 – 216) that, in its early stages of development in the second half of the nineteenth century: “…the early cases on fair comment contain few references to a ‘subject of public interest’. The ‘defence’ was discussed in more concrete terms by referring, for example, to the ‘acts of public men’ which concerned the public or by reference to specific classes of public conduct. But by the second half of the century , the courts had come to see all the various public activities that gave rise to the right of fair comment as simply particular instances of a general right to comment on subjects of public interest. Thus, in Turnbull v Bird [84], Erle CJ directed the jury: ‘The defence, on the present occasion, comes under the last head, as a matter necessary to the protection of the public interests, or the exercise of a public right. And the law is, that a man may publish defamatory matter of another, holding any public employment, if it is a matter on which the public have any interest, within the limits I will lay down, in accordance with decided cases. 'Every person has a right to comment on the acts of a public man, which concern him as a subject of the realm, if he do not make his comments the vehicle of malice or slander.' The defendant, in this case, contends that he comes within this rule; that he, as a subject of the realm, having an interest in the Foreign State papers, with which the plaintiff was entrusted, had a right to refer to, and comment on, the plaintiff's employment, and the plaintiff's character in that office.’ In the following year in Popham v Pickburn [(1862) 7 H and N 891 at 898 (158 ER 730 at 733)], Mr Baron Wilde entered judgment for the defendant and said: ‘It was further contended, that this libel might be justified as a matter of public discussion on a subject of public interest. The answer is: This is not a discussion or comment. It is a statement of fact. To charge a man incorrectly with a disgraceful act, is very different from commenting on a fact relating to him truly stated, - there, the writer may by his opinion, libel himself rather than the subject of his remarks.’ These cases show that , although the right was described as a right to comment on a matter or subject of public interest, what was meant was a right to comment on the acts or omissions of persons whose conduct was a matter or subject of public interest . …” (some footnotes omitted, emphasis added) In the footnote to the reference to Turnbull v Bird , their Honours observed: “84 (1861) 2 F and F 508 at 523-524 (175 ER 1163 at 1170). Other parts of his Lordship's summing up indicate that even at this late date, he saw fair comment as a branch of the law of qualified privilege.”

As their Honours explained (at 218), those who held public office or administered public institutions “invite[d] criticism and discussion of their conduct in carrying out that office or managing those institutions”. But this was not a closed class. The conduct of “people who publicly exhibited their work or advertised or sold goods or services to the public … while engaged in those activities was [also] regarded as a subject of public interest. The footnotes to this passage illustrate the range of those whose conduct fell into the latter category: “103 Dibdin v Swan and Bostock (1793) 1 Esp 28 (170 ER 269) (running a place of public entertainment); Carr v Hood (1808) 1 Camp 355 (170 ER 983) (writing books); cf Gardiner v John Fairfax and Sons Pty Ltd (1942) 42 SR(NSW) 171 (writing a novel ); Stuart v Lovell (1817) 2 Stark 93 (171 ER 583) (publishing a newspaper); Dunne v Anderson (1825) 3 Bing 88 (130 ER 447) (petitioning Parliament); Soane v Knight (1827) M and M 74 (173 ER 1086) (architectural works ); Thompson v Shackell (1828) M and M 187 (173 ER 1126) (painting a portrait); Macleod v Wakley (1828) 3 Car and P 311 (172 ER 435) (editing a medical journal); Green v Chapman (1837) 4 Bing (NC) 92 (132 ER 724) (exhibiting at a flower show); Gathercole v Miall (1846) 15 M and W 319 (153 ER 872) (preaching a sermon).”

They regarded (at 219) the matter as accurately summarised in the first edition of Dr Blake Odgers's work on the law of defamation in discussing the defence of "Fair and bona fide Comment": “Every one of the public is entitled to pass an opinion on everything which in any way invites public attention ... True criticism differs from defamation in the following particulars: 1. Criticism deals only with such things as invite public attention, or call for public comment. 2. Criticism never attacks the individual, but only his work . Such work may be either the policy of a government, the action of a member of Parliament, a public entertainment, a book published, or a picture exhibited. In every case the attack is on a man's acts , or on some thing , and not upon the man himself. A true critic never indulges in personalities.” (emphasis in original)

Their review of the authorities led their Honours to the conclusion (at 219 -220) that when the law of defamation in Queensland was codified in the Defamation Act 1889 (Qld): “…a ‘subject of public interest’ was understood in the law of defamation to refer to the conduct of a person engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion.” (emphasis in original) a meaning they concluded the words "subject of public interest" in s 377(8) or its predecessor was intended to bear when the Queensland legislation was passed.

They concluded (at 221): “Accordingly, s 377(8) protects the publication of a defamatory imputation made in the course of or for the purposes of discussing the conduct of any person whose conduct, inherently, expressly or inferentially, invites public criticism or discussion . Thus, the discussion of the conduct of any person holding public office, participating in the administration of justice or public affairs, offering goods or services to the public or otherwise engaging in public conduct that invites public criticism or discussion comes within the protection of s 377(8) .” (emphasis added)

As their Honours’ explained (at 222), the meaning attributed to "a subject of public interest" by the common law doctrine of fair comment struck “an appropriate balance between protection of reputation and freedom of discussion”.

An illustration of the application of the balancing exercise can be seen in Mutch v Sleeman , which underlines the proposition that not all conduct of a person holding public office is a matter of public interest. The plaintiff was a Member of Parliament who asked a question in Parliament drawing attention to the “salacious pictures and disgusting letterpress of the publication known as ‘Beckett’s Budget’.” The defendants published an article in Beckett’s Budget purporting to be about the question, but including allegations that the plaintiff was a “brutal wife-basher”. In proceedings for defamation, the defendants defended the allegation that the plaintiff was a “brutal wife-basher” as fair comment. The trial judge held that, in the circumstances, the matter was not one of public interest. The jury awarded the plaintiff £3500. On appeal the Court (Street CJ, Ferguson and Campbell JJ) agreed with the trial judge, saying (at 137): “It is not enough that the plaintiff was a public man. The mere fact that a person is a politician, or engaged in some occupation which brings him into public notice, is not of itself enough to make his private life a matter of public interest, so as to justify the kind of defamatory comment to which he must submit as one of the incidents of his position.”

Bellino demonstrates that there are circumstances in which the conduct of a person who does not hold public office or perform public duties can become a matter of public interest. Mr Hughes’ submission that a person whose activities in the community were not such as to make himself or herself a public figure, did not become such a figure for the purposes of the law of defamation by publicising his or her behaviour, must be rejected.

The critical question is to determine when the conduct of a person expressly or inferentially invites public criticism or discussion. This may not always be an easy question to resolve. Although, in Lion Laboratories v Evans (at 553), Griffiths LJ said, “there is a world of difference between what is in the public interest and what is of interest to the public”, the line, in my view is not so clear. As Gleeson CJ observed in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd : “42 There is no bright line which can be drawn between what is private and what is not. Use of the term ‘public is often a convenient method of contrast, but there is a large area in between what is necessarily public and what is necessarily private. An activity is not private simply because it is not done in public. It does not suffice to make an act private that, because it occurs on private property, it has such measure of protection from the public gaze as the characteristics of the property, the nature of the activity, the locality, and the disposition of the property owner combine to afford. Certain kinds of information about a person, such as information relating to health, personal relationships, or finances, may be easy to identify as private; as may certain kinds of activity, which a reasonable person, applying contemporary standards of morals and behaviour, would understand to be meant to be unobserved. The requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private.”

It is useful to give content to the circumstances in which a person’s conduct may become a matter of public interest to explore the development of this aspect of the defence of fair comment.

In W B Odgers, A Digest of the Law of Libel and Slander , 6th ed (1929) Stevens and Sons Limited at 178–179, Odgers described the circumstances in which an individual may, by his or her conduct, bring him or herself within the rule relating to matters of public interest. After dealing with specific illustrations, he said: “And generally when a man puts himself prominently forward in any way, and acquires for a time a quasi -public position, he cannot escape the necessary consequence - the free expression of public opinion. Whoever seeks notoriety, or invites public attention, thereby challenges public criticism; and he cannot resort to the law Courts if that criticism be less favourable than he anticipated.” (emphasis in original)

The fact that the question whether a person’s private conduct is properly a matter of public interest depends on the circumstances rather than upon whether or not the person is a public figure was demonstrated by Spencer Bower in his work The Law of Actionable Defamation , 2nd ed (1990) Legal Books at 99. The learned author explored the development of the concept of public interest and listed as one of the recognised categories: “(iii) Any other act or expression of the human will or intellect which is done publicly, or made public, or submitted to public judgment or opinion , or given to the public…” (emphasis added) In a footnote to this passage, Spencer Bower observed (at 99): “These are the true tests: at one time the distinction drawn was between public men and private men . This is clearly wrong; the law knows no such distinction. At a later period the distinction was between the public acts of public men or of public servants on the one hand, and the private life of private men on the other. This is still an incomplete statement of the law; for it is now well –established that the public act or work of the most retiring hermit, if for that purpose he chooses to emerge from his seclusion, is amenable to public censure, and that the private life, character, or conduct, or the privately circulated work, of the most notorious politician, or the most widely known author is not .” (emphasis added) The balance of the passage I have first quoted in this paragraph is: “… or which, in the circumstances of the particular case, may be held to be a subject of legitimate interest or concern to the public .” (emphasis added) In a footnote to this passage, Spencer Bower wrote (at 100): “These last words are inserted in order not to impair the salutary elasticity of the rule as stated in the best authorities.”

Spencer Bower expanded on what he described as the “true tests” for public interest in Appendix XII, Section 2 (at 354), saying: “The dubious expressions alluded to are those which seem to imply that a ‘public man’ (whatever that may mean) is fair game for the critic, whilst a ‘private man’ is not, whereas the real distinction of course is between public conduct , and private conduct. … It is not difficult to say whether a particular act, or course of conduct, is public, but it would be almost impossible to define a ‘public man’, or, in any particular case, to determine with any confidence whether the person complaining of defamation is ‘public’. How many appearances, or performances, or speeches, or acts in public, constitute a public man? Apart, however, for this practical inconvenience, any rule which emphasises a supposed distinction between personal publicity and personal privacy would manifestly work the greatest injustice. It would prohibit all comment on the isolated performance of a ‘Single - Speech’ Hamilton, or the solitary appearance on the public stage of such an amateur as the individual who played Hamlet ‘for one night only’ and was the plaintiff in Gregory v Brunswick, No.2 (1844) 6 M. & G. 953. On the other hand, it would licence any busybody, or newspaper interviewer, to spy into the domestic life of a Disraeli or a Gladstone, and to censure or ridicule his most intimate and private concerns. No doubt, this was not really intended to be conveyed by the eminent judges who employed this lax phraseology, but it is right to point out that it was in fact used, and that, as used, it tended to mislead, and, perhaps, rendered possible, or gave encouragement to, such arguments as were addressed to the Court in Davis v Duncan .”

Spencer Bower describes the decision of the Court of Common Pleas (Brett and Denman JJ, Lord Coleridge CJ) in Davis v Duncan (1873-74) LR 9 CP 396 as: “…[disposing] … of any false theories which might be based upon, or countenanced by, the equivocal language referred to; and it is now settled that when persons, however ‘private’ in ordinary life, ‘make themselves publicists’ … for the nonce, their conduct in so doing is the legitimate subject of animadversion and criticism .” (emphasis added)

In Davis v Duncan , the plaintiff and two other clergymen of the Church of England went to an election meeting addressed by the Liberal candidate. The defendant was the proprietor of the South Wales Daily News. He published an article which, inter alia, reported on the plaintiff’s attendance at the meeting, describing the appearance of two of them as “consistent with the belief that they had imbibed rather freely of the cup that inebriates” and that they behaved in a manner which incensed the crowd which was “anxious … to give them some punishment, which they unquestionably deserved”. The article concluded: “Such a proceeding on the part of ministers of the gospel cannot be too highly condemned, and it is to be hoped that the reverend gentlemen alluded to will receive such a reprimand from their superiors as will prevent similar disgraceful occurrences.”

The trial judge, in summing up, directed the jury to consider (inter alia) whether the statement in the paper exceeded the limits of a fair and bonâ fide discussion by a writer in a public newspaper of a matter of public interest. He left three questions to the jury: whether the statement was a libel; whether the fair limits, of the right of discussion of a matter of public interest, had been exceeded; and, if so, whether the statement was true. The jury found generally for the defendant.

The plaintiff moved for a rule nisi for a new trial on the ground of misdirection, complaining that comments on the conduct of private persons attending a meeting in a private capacity could not fall within the defence of fair comment on a matter of public interest. Brett J (with whom Lord Coleridge CJ concurred) said: “I am clearly of opinion that a meeting assembled to hear a candidate at a parliamentary election discuss subjects of general importance is a meeting of public interest, and that the conduct at such meeting of persons who take part in it may be made the subject of fair bonâ fide discussion by a writer in a public newspaper. I do not think the conduct of such persons is exempt from such discussion because they do not go there in any public capacity… ” (emphasis added) Denman J also agreed that there should be no rule, concluding that if the words complained of were a fair comment on the conduct of a person at an election meeting, they were privileged.

The primary judge extracted (at [10]) a passage from Hunt J’s decision in Chappell v TCN Channel Nine Pty Ltd (at 167) in which his Honour explained the circumstances in which a plaintiff’s private behaviour could become a matter of public interest if the individual made it such a matter. Although his Honour was speaking of an accepted public figure (a Test cricketer), the first case upon which he relied, Dwyer v Esmonde (1877) 11 Ir R (CL) 542, concerned the circumstances in which a private individual’s private conduct could become a matter of legitimate public comment. I repeat for convenience the passage from Hunt J’s decision: “A public figure's private behaviour or character can become a matter of public interest in one of two ways — either because it affects the performance of his public duties … or because he makes it such a matter himself. If the plaintiff had in fact deliberately put himself forward to the public as subscribing to such high standards in his private behaviour, so that he could be taken as having appealed to the public for its judgment on that private behaviour, he cannot then be heard to say that the public does not have the right to pronounce the judgment which he asked of it: cf Dwyer v Esmonde (1877) 11 Ir R (CL) 542 at 550 and Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 532; 51 WN 178’”

In Dwyer v Esmonde , the plaintiff had been a tenant of the defendant’s farm, from which he had been evicted. The defendant was a candidate for election as a Member of Parliament for the County of Waterford. The plaintiff and some others caused to be published inter alia, in “The Freeman’s Journal” a statement imputing gross misconduct and harshness as a landlord against the defendant. The document focussed on the defendant’s conduct vis-à-vis the plaintiff. The defendant then published, in a later edition of the same journal, the matter complained of which purported to describe the circumstances in which the plaintiff had been evicted, had forcibly re-entered the property, had acted criminally in removing hay from the defendant’s property and had wrongly deprived his sisters of monies due to them under their father’s will, leaving them penniless and compelling them to emigrate to New Zealand or Australia.

The plaintiff brought defamation proceedings against the defendant, who pleaded that the matter complained of was published on a privileged occasion. The plaintiff demurred to the defence on the basis that the facts as disclosed did not show the occasion of publishing the matter complained of was privileged.

Palles CB (with whom Fitzgerald and Dowse BB concurred) described the circumstances in which the conduct of a private person could become a matter of public criticism as follows: “In general, no doubt, the right of criticism and judgment in the public is restricted to matters of public interest; but he who appeals to the public for their judgment upon a matter not public cannot, for the purpose of preventing his adversary’s defence, be heard to say that the public have not the right to pronounce the judgment which he so asked.”

The appellant drew attention to the citation of this passage from Dwyer v Esmonde in Gatley on Libel and Slander , 10th ed (2004) at [12.40], in that section of the work dealing with the defence of fair comment. The respondent criticises Gatley’s treatment of Dwyer v Esmonde , asserting, in the first instance, that it is wrong to treat that case as one about fair comment and that it is, in fact, a case about qualified privilege. Hunt J treated Dwyer v Esmonde as a case concerning qualified privilege in Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 (at 497), however he also cited it as authority in relation to the defence of comment in Chappell .

The explanation, in my view, is that Dwyer v Esmonde was decided at a time when “the law of fair comment was regarded as part of the newly invented doctrine of qualified privilege”: Bellino (at 215). It is apparent from the passage cited that Palles CB was addressing the circumstances in which a private person’s conduct (in that case the plaintiff’s publication relating to the defendant’s conduct) might become the subject of public comment (being the defendant’s response to the plaintiff’s allegations against him). In the passage immediately preceding that which I have extracted, Palles CB referred with approval to the statement in Murphy v Halpin (1874) Ir R 8 Cl 127 that: “In truth, every libel, sustained as a fair criticism, supposes the existence of such a right of judgment in the public.”

In my view, Dwyer v Esmonde is a useful illustration of the circumstances in which private persons may conduct themselves publicly so as to expose their private conduct for public comment.

Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 (at 532-533), the second case Hunt J cited in Chappell , concerned an action in defamation in which the plaintiff complained about a letter to the editor which referred to a decision in a recent case in which the plaintiff had been a party. It did not appear the plaintiff had otherwise been in the public eye. Jordan CJ discussed the circumstances in which the defence of fair comment on a matter of public interest could be available, saying: “Lastly, in order that the defence of fair comment may be available, it is necessary that circumstances should exist which make it in the public interest that the plaintiff’s ability, integrity, morality, or other qualifications, which are criticised by the defamatory matter complained of, should be made the subject of public criticism. The circumstances must be concerned with some matter connected with the plaintiff in which the public has some substantial concern, or at least with something which he has placed before the public for its approval or attention. This is a matter for the judge: Gatley on Libel and Slander , 2nd ed. 405. If, for instance, the circumstances are that the plaintiff is seeking some public position calling only for financial integrity, it is in the public interest that his honesty should be discussed. For this purpose, it would be material to instance acts of corruption of which he had been guilty, and in the public interest to express the opinion that they showed him to be unfit for the position; but the circumstances would not warrant a discussion of his sexual morality. Hence, it would not be in the public interest to comment on this or to instance facts for the purpose of such comment . It is in every case necessary to look at the circumstances and consider what class of criticism they warrant. When this has been determined, the facts reasonably germane to this class of criticism may be stated as a foundation for the criticism .” (emphasis added)

Mr Hughes submitted the respondent’s conduct was, at best, of interest to the public, and that such conduct was not necessarily a matter of public interest. He referred to Green v Schneller , a case which may truly be described as a “backyarder”, in which the plaintiff sued the defendant for publishing statements about his conduct in allegedly throwing raw sewerage at the defendant in the course of a neighbourhood dispute. The statements were broadcast on a television station which was not joined in the proceedings. The defendant pleaded truth and public interest, contextual truth and public interest and comment.

Simpson J (at [26]) rejected the proposition that the plaintiff had behaved in a way which made him “a public figure such that his conduct towards and in relation to his neighbours [had] become a matter of public interest”. In her Honour’s view, “[a] salacious interest by members of the public in a particular subject matter, of which they had no previous knowledge and which was introduced to them by the very publication in question, does not translate the subject matter of the publication into a matter of public interest…”. I would agree with her Honour’s first proposition which was sufficient to dispose of that case, but not with the second, which would seem to fall foul of Spencer Bower’s “retiring hermit” or “single speech Hamilton” test. It is not necessary to pursue the latter issue. Green is clearly distinguishable from the present case where it is alleged that the respondent had a public profile before the publication, the only question being its nature and extent.

Mr Hughes also sought to draw support from Master Newnes’ decision in Anderson v Ah Kit striking out a defence of fair comment. That case concerned a publication by the defendant, the Minister for Local Government, stating, in substance, that legal action was pending under the Animal Welfare Act (NT) against the plaintiff, the owner of the Tipperary Wildlife Sanctuary over his failure to properly care for over 2200 animals and that the animals had been “left to starve”. In support of his defence of public comment, the defendant pleaded: “PARTICULARS OF PUBLIC INTEREST The welfare of animals at the Wildlife Sanctuary was the subject of extensive media coverage in 1996 when 36 deer were reported to have died of starvation. As a consequence of that media coverage, and the public concern engendered by it, questions were asked in the Northern Territory Parliament. On 22nd October 1996, the Northern Territory Minister for Primary Industry and Fisheries declared that animals at the Wildlife Sanctuary were stock for the purposes of the Stock Diseases Act (NT), so as to enable the Government to exercise statutory powers to inspect and feed them. In 1999 the Parliament enacted the Animal Welfare Act so as to provide for the protection of animals in the Northern Territory including those at the Wildlife Sanctuary.”

In support of his application to strike out the defence, the plaintiff argued that the matters relied upon were not matters of public interest, but related simply to his private affairs: judgment (at [17]). The defendant argued that the welfare of animals was a matter of legitimate public interest: judgment (at [20]).

Master Newnes (at [25]) accepted that animal welfare was an important of legitimate interest to the community at large but rejected the proposition that “any concern expressed in relation to any specific animal or animals is a matter of public interest, as that concept is used in the law of defamation.” He observed (at [26]) that it was not disputed that the animals concerned were not available for public viewing or entertainment, nor was it suggested that, prior to the publication, the plaintiff had engaged in activities in relation to the Sanctuary or the animals kept there that inherently, expressly or inferentially invited public criticism or discussion, nor did it appear that the activities of the plaintiff in respect of the Sanctuary, or the animals kept there, affected people at large in the relevant sense. He struck out the defence of comment, saying: “27 The animals were the private property of the plaintiff and kept on his own land. It appears from the words complained of that there were a relatively large number of animals involved and that they included a number of exotic animals. But in the present case it does not seem to me that the number or nature of the animals concerned bears upon the issue. No doubt the number and nature of the animals is a reason (if not the reason) their welfare has generated the extensive interest referred to by the defendant, but the fact a person's activities have excited the interest of others, including the media, does not of itself make those activities a matter of public interest in the sense that that concept is used in the defence of fair comment. The media cannot by extensive reporting of a private matter thereby convert it into such a matter of public interest . 28 Nor does the fact that the activity concerned is regulated by legislation of itself make that activity a matter of public interest. A vast range of activities of innumerable sorts and descriptions are regulated by legislation. The fact that an activity is so regulated cannot, without more, make the conduct of any person who engages in the activity a matter of public interest.” (emphasis added)

In my view, the facts in Anderson are far removed from the present case. Here, the appellant wishes to advance an argument that the respondent herself acted in a manner which invited public interest and discussion. The appellant’s argument does not involve a suggestion that it was the mere reporting of the respondent’s conduct which made her a legitimate subject of public interest, but rather her activities in soliciting such attention which did so.

I would also add that it is difficult to understand Master Newnes’s second reason for striking out the defence. In my view, a public statement by the responsible Minister announcing a prosecution concerned the administration of justice and would, without more, be a matter of public interest. The administration of justice brings to public attention a wide array of activities, most of which took place in private and in circumstances where the individuals involved wished to conceal, indeed usually took active steps to conceal, their conduct. It could hardly be suggested that a public statement by the responsible Minister that such people were the subject of prosecution was not a matter of public interest. The public has a legitimate interest in the enforcement of the law, at whatever stage of the process a prosecution is reported. The public statement of the commencement of a prosecution, albeit that it related to matters which took place in private, assisted in demonstrating to the public the long arm of the law.

Nicholas J concluded that none the appellant’s particulars in par (d) were matters of public interest because they: “18 … refer only to the public behaviour of the plaintiff who is described, in effect, as a person who has invited and obtained public attention, mainly through media publicity. I do not accept that because the plaintiff’s behaviour is brought before the public gaze from time to time it becomes a matter of public interest. In this field of discourse it does not follow that the conduct and activities of a person who is a creature of publicity or has become famous for being famous should automatically be taken to be such as to affect the public at large. The fact that the conduct is public does not, without more, make it a matter of public interest . What is required is that it is conduct of a kind which concerns the public and either inherently, expressly, or inferentially invites its criticism or discussion. ( Mutch p 137; Chappell p 167; Bellino p 215).” And because: “19 It is self evident … that the matters referred to are not matters of public interest in that they are not such as to affect the public at large, and are not matters with which the public would be concerned in any legitimate way….”

His Honour, with respect, arrived at this view without having considered the appellant’s particulars to determine whether it was even arguable that the respondent had acted in a way which inherently, expressly or inferentially invites public criticism or discussion.

The primary judge appears to have concluded that these particulars did not support a plea of “public interest” because the respondent was “a creature of publicity or has become famous for being famous”. This, with respect, did not do justice to the case the appellant sought to advance, not on the merits, but on a strike out application. But, even if it did, his Honour’s conclusion that the conduct of such a person “should [not] automatically be taken to be such as to affect the public at large [and that] [t]he fact that the conduct is public does not, without more, make it a matter of public interest” is also, in my view, infected with error in misapprehending the appellant’s case on the issue before the Court. The appellant was not saying the respondent’s conduct, whether or not in public, “automatically” made her activities a matter of public interest. However, it said it had an arguable case that she had made her activities the subject of public interest by the way she had courted public attention. That was, in my view, an orthodox approach to the issue of public interest and one it was entitled to have tested at trial unless there was “a high degree of certainty” ( Batistatos (at [46])) that that argument would fail. In my view, there was not that degree of certainty. The appellant’s particulars, if proved at trial, were capable of supporting the proposition that the respondent had acted in such a manner as to expressly, or inferentially, invite public criticism or discussion.

Secondly, it is not clear what his Honour meant by the expression “concerns the public”, but if it was intended to narrow the concept of public interest created by a person acting in a way which either inherently, expressly, or inferentially invited public criticism or discussion, then it was, in my view, erroneous.

Thirdly, his Honour used the passive tense in the passage I have emphasised. The appellant’s particulars did not assert that the respondent’s activities had become a matter of public interest because she had been the subject of occasional publicity. It is accepted that the media cannot, by publishing material about a person frequently, make their conduct a matter of public interest: Loveday v Sun Newspapers [1938] HCA 28; (1938) 59 CLR 503 (at 513) per Latham CJ.

In my view, the appellant’s particulars demonstrated an arguable case of public interest. It was not alleged that the respondent was a “retiring hermit” who emerged from seclusion to engage in the conduct attributed to her in the matter complained of – conduct I hasten to add has yet to be proven to have occurred.

The case the appellant seeks to advance in its defence is that the respondent’s conduct as referred to in the matter complained of is a legitimate subject of public interest, because she has courted publicity and has, thereby, invited criticism and discussion in relation to the matters she has exposed. It alleges that the respondent has acquired “celebrity status”, through a combination of exploiting her notoriety as the mistress of a prominent man, through being the subject of an erotic portrait, through being a panellist in a television program in which participants advance their views on various topics, including sexual matters, as worthy of consideration, who had actively sought to promote in public her business enterprises, who accepted invitations to, and permitted herself to be photographed and interviewed at, “high profile social and promotional functions”, who invited the media to cover private functions such as her own, and her daughter’s, birthday parties and who had, by such means, promoted herself as a person whose views were of significance and interest. By reason of this behaviour, the appellant alleges the respondent “occupied the public spotlight”.

A recent illustration of this proposition can be seen in Lloyd v Express Newspapers plc [1997] EWCA Civ 1319, which concerned an appeal from an order striking out particulars pleaded in support of a defence of fair comment. The plaintiff was a television presenter and journalist who presented weather reports on Independent Television. The defendants were the publisher, editor and columnist respectively who published what Lord Bingham of Cornhill (with whom Peter Gibson and Phillips LLJ agreed) described as “an extremely unflattering article” about the plaintiff which criticised her in a number of respects. In particular, the article suggested that the plaintiff had exploited certain features of her private life for the purposes of attracting publicity. The defence relied, in part, on Polly Peck (Holdings) plc v Trelford and, accordingly, pleaded the meanings the defendants contended were conveyed and contended that, further, to the extent that those meanings were conveyed they were fair comment on matters of public interest. Lord Bingham dealt with the plaintiff’s complaint about the ground of public interest as follows: “The plaintiff submits that the ground of public interest relied on in the defence is unsustainable insofar as it refers to ‘statements made by the Plaintiff as a comparatively well-known television personality to the press about her love life’. That, Mr Shields [counsel for plaintiff] submits is simply not a matter of public interest, although I understand him to accept that the plaintiff’s performance as a television presenter may well be so. For my part, I see force in that submission … on the other hand , I would have great difficulty in accepting that the plaintiff can put her personal life in the public domain by describing it to the newspapers (if indeed that is what she did), and then resist disparaging comment on the ground that the matter is not one of public interest. That would appear to me to be a hurdle that the plaintiff must overcome, but it seems to me an issue that is best resolved at the trial by the judge who is seized of the conduct of the case. ” (emphasis added)

Similarly the respondent had, on the appellant’s particulars, frequently put her personal life into the public domain, and had exploited the position she came to occupy by virtue of the notoriety acquired through her relationship with a wealthy man which, it is alleged, she was apparently prepared to discuss in public, to obtain a “celebrity” profile, including a television role commenting on sexual mores. It is arguable that, like the plaintiff in Lloyd , she can hardly be heard to say that comment on the private life she had made an open book was not a matter of public interest.

It is arguable, on the appellant’s particulars, that the respondent was as much a “performer” as the actors in Littler or the various categories of those who publicly exhibited their works referred to in Bellino . Her “celebrity”, if established, may not be of the more conventional kind, of artist, author or actor, but it is arguably of the same genre: a public performer, who uses her private life as the vehicle by which she attracts public attention, whether by way of approval or opprobrium. This is not a case where the respondent was a performer whose private life was not connected with her public persona. Rather, the appellant seeks to argue that she had made much of her private life her public persona. A person who exposes their personal life to the media for comment, has a different relationship with the media than those who do not do so: cf Campbell v MGN Ltd (at [43]) per Lord Hoffmann.

Mr Hughes pointed to the antiquity of the facts relied upon in some of the appellant’s particulars. Clearly the element of time is relevant to the question whether it is in the public interest or for the public benefit that defamatory imputations be published: Howden (at 430) per Evatt J; see also Rofe v Smith's Newspapers Ltd (1924) 25 SR (NSW) 4 (at 21 – 22) per Street ACJ; O’Neill (at [24]). However, this is an issue which can only properly be evaluated when all the circumstances are considered.

Whether, and to what extent, the respondent has made her private life a matter of public interest is as with all a discretionary value judgments clearly a matter about which minds may differ. In such a case, it is essential where, as here, there is arguably a factual basis for the appellant’s argument, that it not be deprived of the opportunity to place its case before the court in the ordinary way so as to argue after all the evidence is presented, that (if the relevant imputations are proved to be true) they related to matters of public interest.

This is not a case where there can be “a high degree of certainty” ( Batistatos ) about the outcome of the public interest/public benefit issues required to exercise the exceptional jurisdiction to prevent a defendant being given the opportunity before the court in the ordinary way.

In my view, the appellant also has an arguable case that the imputations relate to matters of public interest. As I noted earlier in these reasons, the primary judge’s conclusion that the imputations did not relate to matters of public interest was clearly influenced by his conclusion that the INXS function was not open to the public. The nature of the function, and the bearing that had on the issues raised by the particulars of public interest, were matters for trial. His Honour’s conclusion (at [22]) that the respondent’s “conduct so described relates only to affairs and activities which are of a private and personal kind” also prejudged an issue for trial.

The matter was argued on the basis that if the Court was of the view that the particulars of public interest should not have been struck out, neither should the corresponding defences in the inter-state jurisdictions of which not only the concept of public interest, but also public conduct, public affairs and public benefit were a component, they being the inter-state defences of truth (par 9, Amended Defence), comment (par 10, Australian Capital Territory, Amended Defence), fair comment (par 11, Queensland and Tasmania, Amended Defence), and qualified protection (par 13 and par 14, Queensland and Tasmania, Amended Defence).

That was a sensible approach. In Bellino v Australian Broadcasting Corporation , which concerned the Queensland statutory defence of publication in good faith in the course of the discussion of some subject of public interest, the public discussion of which is for the public benefit (the defences pleaded in par 13 and par 14 of the Amended Defence, in respect to Queensland and Tasmania respectively), Dawson, McHugh and Gummow JJ said (at [21]) that "[i]n the great majority of cases, the public discussion of a subject of public interest must be for the public benefit".

Further, in Allworth v John Fairfax Group Pty Ltd and Others (1993) 113 FLR 254 (at 262 –263), Higgins J considered whether “public benefit” is a different concept from “public interest” and concluded that “it [was] difficult to conceive of a situation where one criterion would be satisfied but not the other”.

The primary judge (at [51]) correctly stated the test of the interest necessary for the purposes of s 22 of the 1974 Act, approved most recently in Echo Publications Pty Ltd v Tucker; Fast Buck$ v Tucker (No 3) [2007] NSWCA 320 (at [7] – [8]). However, his conclusion that there was no reasonable basis for maintaining that the readership of the article had an interest or an apparent interest in information on the plaintiff’s conduct as encapsulated in the imputations was clearly influenced by his conclusion in relation to the public interest issue.

Again, in my view, the question whether the readership had an “interest in knowing a particular fact … not simply [as] a matter of curiosity, but [as] a matter of substance apart from its mere quality as news” ( Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 40) could not, in the circumstances, be determined at the pre-trial stage. There could not be a proper appreciation of the extent to which the recipients of the matter complained of had the relevant interest or apparent interest until the factual basis for that plea was fully explored.

Grounds of appeal 1, 2, 3,4, 5 and 6 should be allowed. Whether contextual imputation (vii) differed in substance from imputation (d)

In order to be sustainable as contextual imputations for the purposes of s 16, it was necessary that the appellant’s contextual imputation differ in substance from the respondent’s imputations: Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 (at [39-40]); applied Waterhouse v Hickie (1995) Aust Torts Reports ¶81-347 (at 62,493-62,494) (per Priestley JA, with whose reasons Mahoney JA generally agreed, and Powell JA agreed); John Fairfax Publications Pty Ltd v Jones (at [16]) per Spigelman CJ.

In Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 30 July 1982, unreported) Hunt J identified one test for determining whether imputations, in that case a plaintiff’s, differed in substance as turning on the question, what would the defendant need to prove in order to justify the imputation? This test is equally applicable to determining whether a contextual imputation differs in substance from a plaintiff’s imputations: John Fairfax Publications Pty Ltd v Jones (per Hodgson J at [61]). However, that test is one way, but not the only way, of determining the issue: Loo v Rural Press Pty Ltd [2003] NSWSC 107 (at [10] - [11]) per Levine J; Saint v John Fairfax Publications Pty Ltd (at [11] – [12]) per Kirby J; Purcell v Cruising Yacht Club of Australia Pty Ltd (at [45]) per Kirby J.

In Purcell (at [47]), a contextual imputation “significantly overlapp[ed]” with the plaintiff’s imputation. However, it differed in two respects, only one of which it is necessary to identify: the plaintiff’s imputation identified who held the suspicion (that the First Plaintiff was guilty of gross misconduct in that he failed to stop and render assistance to the crew of that yacht), namely, the Committee investigating the 1998 Sydney to Hobart Yacht Race, whereas the defendants’ contextual imputation did not. Kirby J held (at [48]) that the defendants’ contextual imputation differed in substance from the plaintiff’s imputation because the latter dealt with the belief of the Investigating Committee, whereas the defendants’ contextual imputation had no such point of reference.

It should be recalled, at this stage, that the respondent’s fourth imputation was that she had “gatecrashed a social function knowing she was not invited”, whereas the appellant’s seventh contextual imputation was merely that she had “gatecrashed a social function”.

Mr Blackburn submitted that contextual imputation (vii) differed in substance from the respondent’s imputation (d) on the basis that a person might arrive at a party (to which he or she was not invited) with other people believing that they were invited, or suffered to be there or without turning their mind one way or the other but nevertheless be a gatecrasher. He submitted that there was a substantial distinction between that position and that of a person who went to a party knowing that they were not invited.

To gatecrash a function is to attend it uninvited or, in the case of a public event, without a ticket: The Macquarie Dictionary (2nd revision, 1987). In the ordinary course, one would expect that a gatecrasher would know that he or she was uninvited to a given function. I accept, however, that there may be circumstances in which a partygoer attended a function erroneously believing that they had been invited, or without holding a belief one way or another as to that matter. That person would clearly be a gatecrasher but, it might be thought, more excusably so than the person who entered a function knowing they had not been invited.

If one applied Hunt J’s test in Singleton v John Fairfax , it can be seen that, in justifying contextual imputation (vii), the appellant would rely on different evidence to that needed to justify the respondent’s imputation (d). It would be sufficient for the appellant to demonstrate that the respondent was an uninvited guest at the INXS function, whereas the respondent’s imputation (d) turned, in part at least, on her state of mind when she attended the function. Thus, while there is clearly a significant overlap between the two imputations, there is a point of difference in relation to the respondent’s state of mind similar to that which impressed Kirby J in Purcell .

For my part, I have difficulty in seeing how contextual imputation (vii), even if it is true and relates to a matter of public interest, is capable of being rationally considered as so affecting the respondent’s reputation that her fourth imputation did not further injure that reputation: s 16(2)(c); Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 (at 399). However, this point was not argued on appeal. It must also be recalled that the appellant has pleaded that by reason of the substantial truth of “any one or more of the Contextual Imputations each of the Plaintiff’s Imputations did not further injure [her] reputation … ”. The appellant is entitled to rely on its contextual imputations in combination (to the extent to which it has proved their substantial truth and the public interest issue) in defence to any one of the respondent’s imputations: Hepburn (at 399). It may well be that the combined effect of such of the appellant’s contextual imputations as may be held to be appropriately combined may so effect the respondent’s reputation that, for example, her fourth imputation did not further injure it.

Ground 7 of the notice of appeal should be allowed. Polly Peck

The appellant’s third complaint concerns the primary judge’s conclusion that its 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 1974 Act. In his Honour’s view, the fact that s 16 contextual imputations must as a matter of law, and did in fact, differ in substance from the respondent’s imputations precluded them being regarded, at common law, as imputations which were “nuances or variations” of the respondent’s imputations, the later being the permissible range of imputations a defendant might plead by way of justification in Australian common law jurisdictions.

In order to resolve this complaint, it is necessary to understand the nature of the defence of contextual truth pursuant to s 16 of the 1974 Act, and the nature of the imputations a defendant might plead by way of justification in Australian common law jurisdictions.

In David Syme & Co Ltd v Hore-Lacey (at [43]) Charles JA (with whose analysis and conclusions Ormiston JA substantially agreed) explained that prior to the decision in Polly Peck : “… it had long been accepted as settled law that it was not open to a defendant taking the defence of justification, to plead that he made some statement other than that complained of by the plaintiff, and then seek to show the truth of that statement, nor was it open to the defendant to plead that the words bore some meaning other than the meaning alleged in the statement of claim and then seek to justify that meaning. The principle stated in the 2nd edition of Gatley on Libel and Slander , and which was approved by Evatt J in Howden v Truth and Sportsmen was in terms that - ‘The plea of justification must be not only as broad as the literal language of the libel, but as broad as the inferences of fact necessarily flowing from the literal language.’ The principle could be found stated in substantially the same terms as far back as Cooke’s Treatise on the Law of Defamation , the 2nd edition of Odgers’ Digest of the Law of Libel and Slander , or as recently as the 7th edition of Gatley in 1974.” (footnotes omitted)

It was this limitation on common law pleading which, as Priestley JA explained in Waterhouse v Hickie (at 62, 490, referring to the New South Wales Law Reform Commission, Defamation , Report 11 (1971) at [73]–[74] led to the adoption of s 16 of the 1974 Act which: “… was directed to cases which, in England, were of the following kind. A publication made a number of defamatory imputations about a person (the plaintiff). The plaintiff sued. The plaintiff, being of opinion that the publisher (the defendant) would be able to justify (that is, in England, prove the truth of) one or more of the imputations, but not all, sued on one or more imputations which the plaintiff thought the defendant could not justify. The imputations which the plaintiff thought the defendant could justify (and on which the plaintiff had not sued) might be of such weight (if justified) that the plaintiff's reputation could not really have been affected by the imputation or imputations on which the plaintiff had sued, and to which the defendant had no defence. Nevertheless the plaintiff might still get judgment. S 16 was intended to prevent this by allowing the defendant in such a case to rely in defence on all or some of the imputations not sued on…So, the Act, which retained the previously existing defence of justification to imputations sued on (in s 15), added by s 16 a further defence by reference to defamatory imputations not sued on .” (emphasis added)

The nature of the s 16 contextual imputations a defendant may plead turns, in part, on the nature of the imputations a plaintiff may plead.

Under the 1974 Act, each plaintiff’s imputation is a different cause of action: s 9, 1974 Act; Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174. Part 67 r 11(2) of the Supreme Court Rules 1970 reflected this by requiring that a statement of claim in defamation proceedings specify each imputation on which the plaintiff relied (see now UCPR 14.30(2)), while Pt 67 r 11(3) (see now UCPR 14.30(3)) required the imputations to differ in substance. In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 771) the Court (Moffitt P, Hope and Reynolds JJA) explained that the purpose of these requirements was: “… not so to confine a plaintiff that, unless the precise imputations pleaded are found, he will fail, any more than it is to impose on a defendant an obligation to justify precisely those imputations, or to fail. Rule 11(3) precludes a practice, formerly prevalent, of pleading many shades and gradations of substantially similar imputations. …”

In Morosi, the plaintiff had pleaded an imputation to the effect that she was a “promiscuous person”. On appeal, the appellant complained that this imputation was not capable of being conveyed by the matters complained of, and ought not to have been left to the jury. The Court concluded (at 770) that the matters complained of were capable of imputing that the respondent had a low standard of sexual morality and that that was the sense in which the word “promiscuous” was used and understood at the trial. However, the Court was also of the view (at 770–771) that the manner in which the matter complained of described the plaintiff’s conduct as a married woman continuing to live with her husband and having an affair with another man was “properly … described as promiscuous.”

The Court considered that even apart from those considerations (at 771): “… the imputation that [the plaintiff] was promiscuous gave notice that it was alleged that the matter complained of reflected on [her] sexual morality. … To say of a woman that she is of loose sexual morals is, in substance, similar to saying that she is promiscuous. Upon the proper constructions of the rules, an imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance . Accordingly, it is not open to the appellant to claim that the imputations as to promiscuity should have been taken from the jury, because the publications bore imputations of sexual immorality of a slightly lesser degree.” (emphasis added)

In Jackson v John Fairfax & Sons Ltd (at [39 - 40]), Hunt J held that a contextual imputation must differ in substance from the plaintiff’s imputation. In his Honour’s view it was fundamental to the operation of s 16 of the 1974 Act that “the imputation pleaded by the plaintiff and the contextual imputation … must be conveyed by the matter complained of at the same time and that each must differ in substance from the other”. He explained (at 40): “… as the imputation pleaded by the plaintiff must be taken to include all other imputations which do not differ from it in substance ( Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, at p 771), it follows that each party’s imputation must differ in substance from that relied upon by the other.”

His Honour formulated (at 40) the issues of law which arise in a s 16 defence, the first being that to which I have referred, while the second was whether the contextual imputation was capable of being conveyed by the matter complained of “at the same time as and in addition to the imputation pleaded by the plaintiff”. Although his Honour did not refer to the statutory basis for the latter issue, it was clearly the requirement in s 16(1) that the contextual imputation be “another imputation made by the same publication” as the plaintiff’s imputation.

In Hepburn v TCN Channel Nine Pty Ltd, Hunt J accepted (at 399) that the effect of s 16(2)(c) was that a defendant was entitled to have contextual imputations which were “truly alternative” to the plaintiff’s imputations considered together to see if the combined effect of their substantial truth was capable of being rationally considered by the jury as so affecting the plaintiff’s reputation that the imputations of which the plaintiff complained, and to which the contextual imputations were pleaded as a defence, did not further injure that reputation. He also accepted that a defendant was entitled to rely upon the combined effect of contextual imputations (which might include one of the plaintiff’s imputations) in defence to one of the plaintiff’s imputations, as long as their combined effect differed in substance from the plaintiff’s imputation and was such that their substantial truth was capable of being rationally considered by a jury as so affecting the plaintiff’s reputation that the plaintiff’s imputation to they were pleaded did not further injure that reputation.

In reaching this conclusion, his Honour considered the nature of the imputations a plaintiff, and correspondingly a defendant, might plead. He observed (at 397 – 398) that both a plaintiff and a defendant were entitled to plead imputations which are “different gradations of different seriousness of the same basic assertion”. The plaintiff’s entitlement to plead imputations which were different gradations of different seriousness of the same basic assertion stemmed from the two requirements to which I earlier referred: the requirement that the plaintiff plead separately each imputation which founded his or her cause of action and plead imputations which differed in substance. He added (at 398): “The plaintiff’s entitlement to plead imputations which are contradictory one with the other also rests upon his need to anticipate (and the defendant’s need to prepare for) whichever interpretation of the matter complained of is accepted by the jury as having been the way in which that matter was in fact understood by the ordinary reasonable reader. In some cases, too, the trial judge will need to know the precise meaning which was in fact conveyed in order to determine whether the publication took place upon an occasion of qualified privilege...”

He said (at 399): “The defendant must be placed in the same situation as the plaintiff so far as concerns the pleading of imputations. But, where the defendant has taken advantage of his entitlement to plead contextual imputations which are either contradictory or but different gradations of seriousness of the same basic assertion, he obviously will not be entitled to ask the jury to consider the combined effect of all of his contextual imputations when weighing or measuring his contextual imputations against the plaintiff's imputation to which they are pleaded. Similarly, when the issue of law arises with which I am presently concerned, it will be necessary for the defendant to nominate which of the truly alternative imputations he wishes to have considered together to see whether the combined effect of their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff’s reputation that the imputation of which the plaintiff complains and to which the contextual imputations are pleaded as a defence did not further injure that reputation. ” (emphasis added)

His Honour then formulated (at 400) three issues of law which arise when a defence of contextual truth is considered: “(1) Does the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) differ in substance from the plaintiff's imputations to which it is or they are pleaded as a defence? (2) Is the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence? (3) Is the nature of the defendant’s contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff’s reputation that the plaintiff’s imputation to which it is or they are pleaded did not further injure that reputation?” This was a reformulation of three of the five issues relevant to a s 16 defence his Honour had first devised in Jackson (at 40) .

In John Fairfax Publications Pty Ltd v Jones Spigelman CJ referred to the history of s 16 as analysed by Priestley JA in Waterhouse (at 61,490) and said: “15 … It does appear that the defect in the common law position was identified in circumstances where the two imputations were of a different character, rather than different levels of generality of the same allegation , e.g. the allegation of murder, theft and failure to attend church referred to in Plato Films Ltd v Speidel [1961] AC 1090 at 1142. This concern is reflected in the word ‘another’, where appearing in the clause ‘another imputation is made by the same publication’ in s 16(1). 16 In my opinion, the words ‘another imputation’ are not satisfied where a defendant relies on a contextual imputation which is, in substance, nothing more than an alternative way of formulating the same imputation relied on by the plaintiff, based on exactly the same words in the matter complained of and applying those words in exactly the same way. Such is not a case where, to use Hunt J’s formulation, the contextual imputation is ‘capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff’s imputation’. (Allen v John Fairfax supra and Hepburn v TCN Channel Nine supra.)… 18 The issue is the proper construction of the words ‘another imputation’ in s 16 … 19 It may well be that the imputation found by the jury differs in substance from the contextual imputation. Plainly, the Claimant is correct to submit that a single publication may convey two or more imputations of different degrees of seriousness. It is also correct to say that what may be proved by way of justification of the imputation found by the jury differs from what may be proved by way of justification of the contextual imputation. None of this determines the proper meaning of the words in s 16. Whether or not an imputation is a permissible alternative if pleaded by a plaintiff does not mean it is ‘another’ imputation for purposes of the s 16 defence. The test for plaintiff’s imputations – differ in substance – is a necessary but not sufficient test for ‘another’ imputation, which requires a difference in kind. 20 In my opinion, the purpose of s 16 was directed to a situation in which the same publication conveyed imputations which differ in their character, not merely a different way of formulating the same imputation at a higher level of generality. The examples outlined in Plato Films supra are the former. The contextual imputations in issue here are the latter.” (emphasis added)

Hodgson JA agreed (at [99]) with Spigelman CJ that: “… a formulation of the same imputation at a higher level of generality is not ‘another imputation’ within s 16(1); … However, if a formulation at a higher level of generality makes the imputation different in substance, then this is not a formulation of the same imputation at a higher level of generality…”

These authorities can be summarised as follows: (a) the defence of contextual truth under s 16 was created to fill a lacunae in the common law by enabling a defendant to justify a meaning of the matter complained of upon which the plaintiff had not relied; (b) a contextual imputation must be another imputation from the plaintiff’s imputation; the test of whether it differs in substance from the plaintiff’s imputation is a necessary but not sufficient test for ‘another’ imputation, which requires a difference in kind ( Jones ); it must be a “truly alternative” imputation ( Hepburn ); (c) a contextual imputation may plead a different “sting” entirely from that relied upon by the plaintiff; and (d) a plea of contextual truth admits that the matter complained of conveyed the imputations relied upon by the plaintiff, does not seek to justify those imputations (save where a contextual imputation singly, or in combination, pleads back one of the plaintiff’s imputations), but seeks to establish that by reason of the substantial truth of the contextual imputation(s), the imputation complained of does not further injure the reputation of the plaintiff.

I turn then to consider the extent to which a defendant may plead imputations different to those relied upon by the plaintiff in common law jurisdictions.

In Chakravarti (at [8]) Brennan CJ and McHugh J, albeit in obiter, strongly rejected the proposition that a defence in the form of that approved in Polly Peck could be pleaded at common law. As Handley JA pointed out in John Fairfax Publications Pty Ltd v Zunter (at [42]), their Honours’ dicta did not receive the express endorsements of the other members of the Court, but has been followed by intermediate appellate courts in Victoria, Western Australia and South Australia.

The appellant’s inter-state defences rely, however, upon the line of authority which has evolved from Chakravarti , which, while accepting that what I will call a pure Polly Peck defence may not be run in Australia, accepts that there are circumstances in which a defendant in common law jurisdictions may plead imputations in support of a defence of justification.

The Polly Peck heresy which so offended Brennan CJ and McHugh J was that that case “sanctioned a practice of permitting a defendant to plead a meaning different from that contended for by the plaintiff and then justifying that different meaning”: Chakravarti (at [6]). As their Honours explained (at [8]), at common law, a defence of justification is one of confession and avoidance. Allowing a defendant to seek to justify a meaning the plaintiff had not pleaded raised a false issue.

Nevertheless, their Honours entertained the possibility (at [8]) that: “… Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant’s plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. 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. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. ” (emphasis added)

After explaining (at [14] – [18]) the virtues of requiring a plaintiff in a common law jurisdiction to plead the false innuendos relied upon where necessary to define the issues for determination, their Honours said (at [19]): “A plaintiff who pleads a false innuendo thereby confines the meanings relied on. The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.” (emphasis added)

However, they qualified this statement (at [24]) by saying: “If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury.”

Gaudron and Gummow JJ observed that: “52 Although there is no requirement in that regard, it is now common practice for a plaintiff to specify in his or her Statement of Claim the meaning or meanings which, as a matter of ordinary language, are said to be conveyed by the material upon which he or she sues. Whilst the pleading of different shades of meaning is not to be encouraged, distinct or specific meanings should be pleaded and one indication of distinctness or specificity ‘would be whether the justification would be substantially different’. And since the decision in Lucas-Box v News Group Newspapers Ltd , a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning. … 56 In the authorities concerned above, there has been a tendency to translate into rules what are best seen as considerations going to fair and efficient practice. More cogently, it has been said that, if a defendant seeks to justify a meaning which is different from that asserted by the plaintiff, it should plead that alternative meaning because ‘[l]ibel law ought not to be an exception to the modern rules of pleading which are directed to precisely defining the issues between the parties, providing the benchmarks against which the relevance of evidence is to be assessed and deciding those issues on their merits’. The alternative meaning pleaded by the defendant may make plain the ground upon which the defendant denies the imputation pleaded by the plaintiff. But the view quoted may be accepted without supporting a general conclusion that, in a defamation action, the parties always should be held to the meanings they have pleaded.” (footnotes omitted) (and, at [60]) “As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her Statement of Claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.” Their Honours referred (at [53]) to Polly Peck without criticism, and accepted (at [56]), that it was open to the defendant to seek to justify a different meaning to that relied upon by the plaintiff.

Kirby J did not address the issue whether a defendant could plead imputations which differed from a plaintiff’s. He did, however, recognise (at [139]) that the trial judge had a discretion to confine parties to the imputations pleaded where that was “required by considerations of fairness”. He added: “… However, a more serious allegation will generally be taken to include a less serious one unless the latter is of a substantially different kind. It is true that dicta appear in decisions of this Court, other Australian courts and courts overseas which favour a strict approach: binding a plaintiff at the trial to the precise imputations pleaded. However, I do not consider that these dicta represent the law. The better view is that 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. If the publisher claims surprise, prejudice or other disadvantage, the trial judge may protect it. No complaint can arise where additional imputations found represent nothing more than nuances or shades of meaning of those pleaded. The position will be otherwise in jurisdictions which, by statute, provide that each imputation is a cause of action upon which the plaintiff may sue. ” (emphasis added)

Chakravarti was considered in David Syme & Co Ltd v Hore-Lacey which, relevantly, concerned the question whether a defendant which pleaded justification could justify meanings different from those pleaded by the plaintiff. The defendant had given particulars of the matters it intended to rely upon to support its plea of justification, but had not specified the meanings it intended to justify. It was apparent, however, from the particulars, and counsel for the defendant accepted (see [36]), that it intended to justify meanings different from those pleaded by the plaintiff.

Charles JA (at [43]) recognised the departure Polly Peck represented from the “settled law” in the passage I have earlier cited. His Honour (at [46]) considered that the question “whether and to what extent a defendant may justify meanings different from those asserted by the plaintiff is … necessarily bound up with the extent to which a plaintiff may be allowed to depart at trial from specific meanings pleaded in the statement of claim.”

His Honour concluded (at [52]) that Chakravarti supported the proposition: “[52] … [T]hat 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. Whether the meaning was substantially different would presumably be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis (Brennan CJ and McHugh J in Chakravarti ) or possibly whether the justification would be substantially different (Gaudron and Gummow JJ). If, on the other hand, the plaintiff sought at trial to establish a substantially different or more injurious meaning, his action would fail unless the judge permitted him to reformulate his case with the usual consequences as to adjournment and costs. See, eg Gatley on Libel and Slander , 9th ed (1998). [53] The principal criticisms 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 are that such an approach allows the defendant to raise false issues which can only embarrass the fair trial of the action and will on occasions unfairly prevent a plaintiff from pursuing a claim in defamation, in the manner explained by Brennan CJ and McHugh J in Chakravarti . The setting up of false issues by the defendant in this way may well make admissible a substantial body of evidence that would otherwise be irrelevant and thus greatly lengthen proceedings. But it seems to me that the same criticisms 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. [54] Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a meaning which was sufficiently close (in the manner already suggested) to the plaintiff’s meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined, to the benefit of the court and the parties. Of course, if the plaintiff cannot make good a meaning amongst those identified, his action must fail, and the defendant has no need to plead any other meaning. … 63 … The position then remains that at trial neither the plaintiff nor the defendants should be permitted to raise (nor should the defendants be permitted to justify) a meaning substantially different from, or more injurious than, the meanings alleged by the plaintiff.” (emphasis added)

Ormiston JA (who as I have earlier observed agreed with Charles JA) also advanced his understanding of the proper application of Chakravarti as follows: “[21] It would therefore seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendoes which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff; in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff. [22] If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different. …” (emphasis added)

In Robinson v Laws [2001] QCA 122; [2003] 1 Qd R 81 (Special Leave Refused, Laws v Robinson (2002) 23(7) Leg Rep SL1, HCA, 19/3/2002), the Court of Appeal held that a defendant in a defamation action could not plead a Polly Peck defence, a conclusion which turned substantially on the Defamation Act 1889 and the rules of pleading under the Uniform Civil Procedure Rules 1999 (Qld): see de Jersey CJ (at [44], [50]), Williams JA (at [90] – [91], [95]; MacKenzie J (at [122]- [125]), the latter apparently reserving (at [123]) the question whether a defendant in Queensland can plead in justification defamatory meanings as contemplated in Hore-Lacy .

Hore-Lacy was followed by the Western Australian Court of Appeal in Nationwide News Pty Ltd v Moodie . Anderson J (at [9]) said he understood Chakravarti to mean that a defamation case would not be permitted to go to the jury, or to judgment, on an alternative meaning which was substantially different from or more serious than the false innuendos pleaded in the statement of claim. He agreed (at [13] –[14]) with Charles JA’s statements in Hore-Lacy (at [46], [52], and [54]) that the defendant was limited to pleading a meaning on which the plaintiff would be permitted to go to the jury.

Steytler J noted (at [43]) that Polly Peck had been applied in Western Australia prior to Chakravarti. Having analysed that case, he concluded that the practice of pleading “so-called ‘Polly Peck’ defences” should be permitted to continue, but that the extent to which a defendant was permitted to plead defamatory meanings different from those pleaded by the plaintiff depended upon, and was governed by, the extent to which the plaintiff might be permitted to rely, at the trial, upon imputations other than those pleaded. Accordingly he said: “[60] No purpose can be achieved by allowing a defendant to plead, and seek to justify, a meaning different from that or those which might be found by a jury in favour of the plaintiff. If the plaintiff cannot succeed on a particular imputation which is different to that pleaded by him or her, then, to allow a defendant to plead that imputation, and seek to justify it, can only result in the creation of a false issue and prejudice to the proper trial process . On the other hand, if the defendant is able to justify a defamatory meaning which differs from that pleaded by the plaintiff but which might be found by a jury on the strength of the plaintiff's own pleading, then there is a basis for saying that the defendant can, and should, plead that alternative meaning and also the matters upon which it relies in contending that it is able to justify it. … I should add, as regards the concept of ‘fairness’ or ‘disadvantage’, that it can never be fair or advantageous to a plaintiff, or to the trial process itself, to permit a defendant to plead, and seek to justify, a meaning which could plainly not be found by a jury on the plaintiff's pleading.”

McLure J (at [88]) noted that her view that Ormiston JA’s formulation in Hore-Lacey was arguably unduly narrow. Her Honour also observed (at [94]) that on her reading of Chakravarti “disadvantage to the defendant is an additional limiting factor on the extent to which a plaintiff can depart from his pleaded imputations not a factor that it is intended to widen the plaintiff’s (and in turn the defendant’s) opportunities to depart from them.” However, it was unnecessary on the facts of the instant case to determine that issue as her Honour agreed with Steytler J’s reasons that the defendant’s imputations satisfied the Hore-Lacey test – i.e. they were “not substantially different or more serious from the imputations pleaded by the plaintiff.”

In A dvertiser – News Weekend Publishing Co Ltd v Manock , Doyle CJ (with whom Vanstone and White JJ agreed) considered the authorities to which I have referred indicated “substantial (although not complete) support for the propositions formulated by Charles JA in Hore-Lacey (at [53] – [54])”. His Honour regarded Charles JA’s analysis, insofar as it dealt with the ability of a plaintiff to rely on a meaning other than that pleaded to be consistent with what was said by all members of the High Court in Chakravarti (at [71]). He also doubted whether Charles JA’s propositions were inconsistent with Brennan CJ and McHugh J’s observations in Chakravarti about pleading a Polly Peck defence because: “…to the extent that a plaintiff may be permitted to depart from the meaning pleaded, fairness requires that the defendant be permitted to anticipate and deal with the alternative meaning. In that context the expression ‘alternative meaning’ is something of a misnomer. An alternative meaning that can be pleaded and justified by the defendant can be no more than a shade or nuance of the meaning pleaded by the plaintiff, and so in substance (as it seems to me) the alternative meaning must be close to or the same as the meaning pleaded by the plaintiff .” (emphasis added)

His Honour added: “[77] It appears to be generally accepted that once the plaintiff has pleaded the meaning on which the plaintiff relies , the plaintiff will not be entitled to seek a verdict on a different imputation . On that all members of the High Court agreed in Chakravarti . That is subject to the qualification that another defamatory meaning might be relied on by the plaintiff, when it is a mere shade or nuance of meaning, provided that the defendant suffers no prejudice, embarrassment or unfair disadvantage as a result: Brennan CJ and McHugh J at [24] – [25], Gaudron and Gummow JJ at [60] and Kirby J at [139] subparas 3 and 4. [78] Accordingly, there can be no unfairness to the defendant in not allowing the defendant to justify a meaning that, because it differs from the meaning pleaded by the plaintiff, the plaintiff would not be permitted to advance a trial. That is what the Judge has decided here.” (emphasis added)

The ACT Supreme Court has also rejected the pure Polly Peck approach, but followed Hore-Lacy : John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108; (2006) 204 FLR 290 (Connolly J).

The authorities in the Australian Capital Territory and Western Australia accordingly support the proposition that a defendant seeking to justify may only plead an imputation by way of defence to the plaintiff’s imputation, if that imputation is one which the plaintiff would be permitted to put to the jury on the state of the imputations the plaintiff pleaded. In other words, if it is an imputation which does not differ in substance from the pleaded imputation. The question whether the same approach applies in Queensland has not, as far as my researches reveal, been decided. This issue was approached on the basis that the Hore-Lacy jurisprudence governed that State as well, a position I am prepared to adopt, while recognising that, at least prior to the adoption of the 2005 Act, the relevant Queensland legislation would have determined the question. As I earlier noted, Mr Hughes submitted that Hore-Lacy (and, presumably its progeny) was wrongly decided but did not develop the submission. I am not convinced those judgments are “plainly wrong”. They should be followed in New South Wales: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 (at [135]).

In Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133; (2005) 67 NSWLR 434 (at [54] – [55]) Simpson J explained: “54 Put another way, and using language more familiar in the NSW defamation law, what Polly Peck permits a defendant to do is to seek to justify an imputation or imputations not different in substance from that or those pleaded by the plaintiff. This can have no application in NSW. By SCR Part 67 Rule 11(3) a plaintiff is not permitted to rely upon two or more imputations ‘ unless the imputations differ in substance’ . In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771 the Court of Appeal held: ‘Upon the proper construction of the rules, an imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance.’ 55 This leaves no room in NSW for the application of Polly Peck principles. Just as a plaintiff may rely upon the different shades and gradations of meanings in imputations so long as those shades and gradations do not differ in substance, so, too, may a defendant seek to justify the various shades and gradations of meaning of those imputations.” (emphasis in original)

In Ron Woodham v John Fairfax Publications Pty Ltd (at [11]) the defendant sought to sustain interstate defences of justification on the same basis as in the instant case i.e. by relying on the s 16 imputations in the common law jurisdictions, but arguing, unsuccessfully, that “in deciding whether [in the common law jurisdictions] the defendant’s imputation was different in substance from the plaintiff’s imputation, the court should take a more liberal approach than that ordinarily taken in deciding whether for the purposes of New South Wales pleading requirements the plaintiff’s imputations differ in substance from each other”: judgment (at [53]). Nicholas J rejected that argument.

Nicholas J followed Jones (at [52]), describing a Polly Peck defence as “one of justification of an alternative meaning not substantially different from the plaintiff’s meaning”. He rejected (at [61]) the defendant’s submission that “a different approach is to be taken in deciding the question of ‘substantially different from’ for the purposes of a Polly Peck defence to the approach taken in New South Wales in respect of the plaintiff’s imputations.” In his Honour’s view: “The verbiage used in e.g. Chakravarti (paras 24, 60, 139) including ‘nuance’, ‘less serious’, ‘variant’, ‘shades’, referable to a Polly Peck imputation is identical to that used in e.g. Morosi (p 771) referable to the plaintiff’s imputations. Indeed, in Manock , (paras 63, 64, 81, 82) Doyle CJ describes the approach taken in Chakravarti , David Syme and other cases as a good deal narrower to the approach taken in Polly Peck .”

In my view, Nicholas J was correct to reject the defendant’s argument in Ron Woodham and in the present case.

It is a superficial approach, in my view, for the appellant to argue that because under s 16 a defendant may plead imputations which are “different gradations of different seriousness of the same basic assertion” ( Hepburn at 397) and because the Hore-Lacy approach recognises a defendant may plead imputations which are a nuance or variant or not more serious than the plaintiff’s imputations, that a s 16 contextual imputation may be pleaded in the common law jurisdictions.

The critical point is that the conceptual underpinnings of the defences are entirely separate. The s 16 defence requires a defendant to plead a truly alternative imputation to the plaintiff’s imputation to satisfy the requirement that it be “another imputation” for the purposes of s 16(1). The Hore-Lacy approach entitles a defendant to plead imputations not substantially different from, or, as I would put it, not truly alternative to a plaintiff’s imputations. If a s 16 contextual imputation is truly alternative to the plaintiff’s imputation, it cannot be one on which a plaintiff in a common law jurisdiction would have been entitled to get a verdict from a jury.

Finally, against the possibility that the approach I have taken is erroneous, I would not regard the appellant’s contextual imputations (iv) and (v) as only a nuance or variation of the respondent’s imputations (a) and (b). I my view it would not be open to a tribunal of fact to find that an imputation that the respondent engaged in exhibitionist behaviour in public of a sexual nature (contextual imputation (iv)) or was an exhibitionist (contextual imputation (v)) was only a nuance or variation of the imputations that she had behaved in a nauseating manner with a married man at a social function (respondent’s imputation (a)) or had performed an obscene dance at a social function (respondent’s imputation (a)).

I accept that there is an attraction in the argument that contextual imputation (vii) (the plaintiff gatecrashed a social function) is a nuance or gradation of the respondent’s imputation (d) (“the Plaintiff had gatecrashed a social function knowing she was not invited”). However if, as the appellant has argued, and as I have accepted, contextual imputation (vii) is truly alternative to the respondent’s imputation (d), it cannot be one on which a plaintiff in a common law jurisdiction would have been entitled to get a verdict from a jury.

Ground 8 in the Notice of Appeal should be rejected. Orders

The appellant has succeeded on the substantial issue on appeal, but has failed in part. In my view it is appropriate that the respondent bear two-thirds of the costs of appeal and of the motion below.

I propose the following orders: 1. Appeal allowed in part. 2. Set aside the order of the Court, striking out par 4, par 5, par 6, par 7(b), par 8, par 10, par 11, par 13, and par 14 of the further amended defence filed 24 October 2006. 3. Respondent to pay two-thirds of the appellant’s costs of the appeal and of the motion to strike out the appellant’s defence in the Court below. 4. Remit the matter to the Defamation List for further directions.