The Defence of Contextual Truth and Hore Lacy: Struggling but Still Standing
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The Defence of Contextual Truth and Hore Lacy: Struggling but Still Standing Table of Contents 1. Introductory ......................................................................................................... 2 2. Challenges to Contextual Imputations on the basis that they do not arise “in addition” to the Plaintiff’s Imputations ....................................................... 3 2.1. Legal Principles ............................................................................................. 3 2.2. Recent Applications ....................................................................................... 7 2.3. The Appropriate Timing of an “in addition” Application ................................ 10 2.4. Challenges to the Orthodoxy ....................................................................... 12 2.5. The importance of the Defence of Contextual Truth and its Proper Application ................................................................................................... 14 3. Challenges to the Form of Contextual Imputations ....................................... 15 4. The Decision in Kermode and a Defendant’s Inability to Plead Back the Plaintiff’s Imputations as Contextual Imputations. ....................................... 17 5. The Pleading Back of Alternative Plaintiff’s Imputations as Contextual Imputations ........................................................................................................ 19 6. The Appropriation by a Plaintiff of Contextual Imputations ......................... 22 7. Pre-Trial Challenges to the Particulars of Contextual Truth including Challenges to the Capacity of Contextual Imputations to Swamp Plaintiff’s Imputations. ....................................................................................................... 25 8. The Application of the Defence of Contextual Truth at Trial ........................ 25 9. The Hore Lacy Defence and its Compatibility with NSW Practice and Procedure .......................................................................................................... 27 9.1. The decision in Bateman v John Fairfax Publications ................................. 27 9.2. The decision in Setka v Abbott .................................................................... 29 10. Conclusion ..................................................................................................... 31 Schedule Recording Pre-Trial Challenges 2013-2014 to Contextual Imputations in SCNSW ................................................................................................................. 33 1 1. Introductory [1] The defence of contextual truth, never exactly a solid port in a storm for a defamation defendant, is fraying. A large proportion of pre-trial challenges to contextual imputations are succeeding, most commonly because of a failure to adhere to the requirements of s 26 but also for reasons of form and capacity. Even when a contextual imputation does survive, it can then be appropriated by a plaintiff. 1 [2] Following the decision in Kermode which removed the right of a defendant to plead back one or more of a plaintiff’s own imputations as a contextual, the practical importance for a defendant of pleading and justifying a contextual imputation has increased – otherwise, even if some but not all of the plaintiff’s imputations can be justified (unless it be a rare case where comment or qualified privilege is available), there will be no defence. It is indeed possible, although probably unwise, for a plaintiff to deliberately plead a false imputation, in an endeavour to “cover the field” and thereby eliminate the possibility of a defence of contextual truth. 2 [3] In a parallel universe, the common law defence of Hore Lacy , scarcely consistent with the defence of contextual truth, survives and prospers in the jurisdictions outside of NSW. The NSW defamation list judge recently found the defence to be inconsistent with NSW pleading practice (which with respect it clearly is), and shortly thereafter the Victorian Court of Appeal unsurprisingly disagreed, adding some unflattering observations about rules and practice north of the border. There is an issue as to whether procedural dissimilarities in the conduct of defamation trials should or will give way to the principle of uniformity, nearly a decade after the introduction of the uniform legislation. [4] This paper will examine recent developments in the law on the s 26 Defence including strike outs for a failure to arise “in addition”, form challenges, the appropriate timing of “in addition” challenges, the pleading of alternate imputations as contextuals, and the appropriation of contextuals. It will also deal with recent developments on the rule established in Kermode,3 as well as 1 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852. 2 David Syme & Co Ltd v Hore Lacy [2000] VSCA 24 (2000) 1 VR 667 at esp. [52]-[53] and [69]. 3 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852. 2 the application of s 26 in a trial context before briefly discussing the recent Hore Lacy controversy. 2. Challenges to Contextual Imputations on the basis that they do not arise “in addition” to the Plaintiff’s Imputations 2.1. Legal Principles [5] Sections 25 and 26 of the Defamation Act 2005 (NSW) (“2005 Act”) are in the following terms: 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 4 [6] The starting point is John Fairfax Publications Pty Ltd v Jones where Spigelman CJ and Ipp J held that under the 2005 Act a contextual imputation that merely reformulated a plaintiff’s imputation at a higher level of generality was impermissible. 4 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [17]-[20] and [106]-[113]. 3 [7] In 2010 the issue resurfaced in Ange v Fairfax Media Publications Pty Ltd & Ors,5 a decision of Simpson J. Her Honour rejected a challenge to a contextual imputation – “the Plaintiff is a pornographer” on the basis that the plaintiff had not pleaded an imputation associating him with pornography. Her Honour, with respect, was completely alive to what was at stake: [67] The association with pornography mentioned is confined – to the ownership of more than 20 “adult shops”, and to having been fined in Queensland for the sale of banned items. Had the plaintiff pleaded an imputation asserting an association with pornography, he no doubt would have done so in narrow terms, confining himself to what was contained in the article, and thus restricting the area of discreditable conduct available to be explored by a defence of justification; but it is for that practical, pragmatic reason that he would so confine himself. There is nothing in law that would have prevented him from pleading an imputation that he is a pornographer. [68] Equally, there is nothing that prevents the defendants doing the same thing, by way of pleading a contextual imputation. [69] By pleading contextual imputation (i), and particularising it as it has, the defendants seeks to give the broadest possible scope to what they originally published, in order to expand, correspondingly, the scope of the inquiry into the plaintiff’s conduct. They seek to prove that the plaintiff engaged in discreditable conduct well outside the confines of what it published. By pleading imputations of the most general kind, a defendant may – to use a somewhat loaded term – manipulate the proceedings to enable it to adduce evidence of misconduct going well outside anything alleged in the matter complained of. [70] The question is whether the defendants are permitted to do so. It was not submitted that there exists any discretionary basis upon which the defendants could be prevented from doing what they 5 Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645. 4 seek to do. I am not aware of any such discretion. Provided that an imputation is capable of being conveyed by the matter complained of, a judge has no supervisory role in its formulation (other than as to form). [71] A claim in defamation is directed to the damage done to a plaintiff’s reputation by the publication of what is published by the defendant. A contextual truth defence is equally directed to what is published by the defendant. Subject to the manner in which the plaintiff pleads his/her case, a defamation claim does not ordinarily open up a full-scale inquiry into the plaintiff’s character or conduct. [72] If the fairness of allowing contextual imputations so framed to be pleaded (and proved) were an issue, the outcome of this application may have been different. But no power to direct the manner of pleading by reference to fairness was identified and I know of no relevant power. [8] The following year, in an application brought by the same plaintiff against the same defendant but in separate proceedings involving another article, the Court arrived at a different result. See Ange v Fairfax Media Publications6