District Court New South Wales Medium Neutral Citation: Burrows v Houda (No. 2) [2021] NSWDC 127 Hearing dates: 25 March 2021 Date of orders: 25 March 2021 Decision date: 16 April 2021 Jurisdiction: Civil Before: Gibson DCJ Decision: Orders (1) The Plaintiff's application to strike out paragraphs 13(a)(i) - (iii) and 13 (b)(i) - (iii) and particulars [1 ] – [102] of the defence of justification and contextual truth, as well as the defence of justification, is dismissed. (2) Pursuant to UCPR rule 28.2, contextual imputations (i) and (iii) are reasonably capable of being conveyed; the plaintiff's challenges to their form are dismissed. (3) Contextual imputation (ii) is struck out as not differing in substance from the plaintiff's imputations 8(b) & 14(b). (4) Leave to the plaintiff to amend the further Amended Statement of Claim to appropriate contextual imputation (i) and (iii) is granted, but that leave to amend shall be revoked nunc pro tunc in respect of any imputation proved by the defendants to be substantially true, such that, at trial, the defendants may rely upon any such imputation for the purposes of the defence under s 26 of Defamation Act 2005 (NSW); such amended pleading to be filed in seven days. (5) Leave to the defendant to file an amended defence 21 days after service of the Further Amended State of Claim. (6) The plaintiff is to provide submissions as to court's asserted lack of power to make nunc pro tunc orders by 5pm Friday 26 March 2021. (7) The defendant is to reply by Tuesday 30 March 2021. (8) The defendant to answer the plaintiff's email dated 2 March 2021 in seven days; the plaintiff is to reply 14 days thereafter. (9) Plaintiff to pay defendant's costs of the application. (10) Matter stood over to the Defamation List for further directions Thursday 29 April 2021 at 9am. Catchwords: TORT – defamation – application to strike out defences of justification and contextual truth on the basis of wholly inadequate particularisation – challenges to the form and capacity of the contextual imputations – application to "plead back" the contextual imputations – whether the court has power to grant leave to plead back but as a conditional nunc pro tunc order Legislation Cited: Broadcasting Services Act 1992 (Cth) cl 91 Civil Procedure Act 2005 (NSW) ss 56 - 64 Competition and Consumer Act 2010 (Cth) ss 18(1), s19 Defamation Act 2005 (NSW) ss 25, 26, 28, 29, 31 and 32 Evidence Act 1995 (NSW) s 91 Limitations Act 1985 (ACT) ss 11(1) and 36 Royal Commissions Act 1902 (Cth) s 6DD Cases Cited: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Allen v John Fairfax and Sons Ltd ((Unreported, NSWSC, 2 December 1988) Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81 Burk v The Commonwealth (No 2) [2002] VSC 464 Burrows v Houda [2020] NSWDC 485 Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232 Chel v Fairfax Media publications Pty Ltd [2015] NSWSC 171 Clark v Richards [2002] WASC 5 Eardley v Nine Network Australia Pty Ltd [2017] NSWCA 1374 Emanuele v ASC (1997) 188 CLR 114 Esso Australia Pty Ltd v Australian Workers Union (2017) 263 CLR 551 Fairfax Media Publications v Zeccola [2015] NSWCA 329 Feldman v Nationwide News Pty Ltd [2020] NSWCA 260 Herron v HarperCollins Pty Ltd (No 3) [2020] FCA 1687 Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 Hutley v Cosco [2021] NSWCA 17 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 Jones v TCN Channel 9 Pty Ltd (No 3) [2016] NSWSC 922 Kelly v Harbour Radio [2013] NSWSC 9 Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 Liu v Fairfax Media Publications [2013] NSWSC 7 Maisel v Financial Times Ltd [1915] 3 KB 336 Rennie Gollege Pty Ltd v Ballard [2012] NSWCA 376 Rush v Nationwide News Pty Ltd [2018] FCA357 State of New South Wales v Wraydeh [2019] NSWCA 192. Tauaifaga v TCN Channel 9 Pty Limited [2013] NSWSC 8 Category: Procedural rulings Parties: Plaintiff: Zali Burrows Defendant: Adam Houda Representation: Counsel: Plaintiff: Mr R Rasmussen Defendant: Mr C Parkin Solicitors: Plaintiff: Zali Burrows Lawyers Defendant: Mark O'Brien Legal File Number(s): 2020/00213348 Publication restriction: nil Judgment The applications before the court 1. The plaintiff has commenced proceedings seeking damages for defamation and for conduct asserted to be misleading or deceptive contrary to the provisions of s 18(1) of Schedule 2 of the Competition and Consumer Act 2010 (Cth). The publications the subject of these claims are two Twitter posts dated 29th July 2019 and 27th May 2020, the contents of which are set out in Burrows v Houda [2020] NSWDC 485. 2. The defences pleaded in relation to the defamation claim are justification, contextual truth, fair extract of a public document, fair report innocent dissemination and honest opinion (ss 25, 26, 28, 29, 31 and 32 of the Defamation Act 2005 (NSW)) as well as Schedule 5, clause 91 of the Broadcasting Services Act 1992 (Cth). The defences pleaded to the claim under the Competition and Consumer Act 2010 include a defence that the defendant made the publication as an information provider in the course of carrying on a business of providing information within the meaning of s 19 of Schedule 2 of the Competition and Consumer Act 2010 and that s 18(1) of that Act accordingly precludes the bringing of the claim. 3. On 25 March 2021, the plaintiff made the following applications: 1. The striking out of paragraphs 13(a)(i) – (iii) and 13 (b)(i) – (iii) (contextual justification) and the defence of justification as supported by particulars [1] – [102] in the defence filed on 10 November 2020. 2. In the event that the defence of contextual justification and its particulars survive, a challenge to the form and capacity of the contextual imputations pleaded. 3. In the event that any of the contextual imputations survive the challenges to form and capacity, an application to appropriate or "plead back" any such contextual imputations. 4. Although not part of the written submissions, Mr Rasmussen additionally submitted that the Court did not have power to make a conditional nunc pro tunc order in relation to his application to "plead back". 1. The defendant opposed the applications. He also sought a self-executing order in relation to particulars asserted to be outstanding (this issue was resolved during argument by consent timetable orders). 2. After hearing the parties' submissions, I made the orders set out at the end of this judgment. As no authority was cited by either party in relation to the conditional orders submission described in 3(d) above, I gave leave to the parties to provide additional written submissions. 3. These are my reasons for the rulings made on 25 March 2021 and for rejecting the submission that a conditional nunc pro tunc order cannot be made. The imputations pleaded by the plaintiff 1. The plaintiff pleads the following imputations in relation to the first matter complained of: (a) The plaintiff is facing a potential legal battle after a judge made scathing remarks about her competency as a Lawyer (paragraph 6). (b) The plaintiff so misconducted herself during a Court case that the judge recommended that she be referred for possible disciplinary action (paragraph 5 and 6). (c) That plaintiff is a criminal who signs false affidavits (paragraph 5 and 6). 1. The plaintiff pleads the following imputations in relation to the second matter complained of: (a) The plaintiff is facing a potential legal battle after a judge made scathing remarks about her competency as a Lawyer (paragraph 2, 3, 11 and 13) (b) The plaintiff so misconducted herself during a Court case that the judge recommended that she be referred for possible disciplinary action (paragraph 2, 3, 11 and 13) (c) The plaintiff was disciplined by the lawyers' professional body for her conduct in representing her client's including Bonshaw Pty Ltd in Court proceeding (paragraphs 6, 7 and 8). (d) The plaintiff's conduct as a lawyer during Court proceedings over which Judge Wilson presided was so poor that the Judge recommended that her clients be banned for life by ASIC and prosecuted for signing affidavits that they knew to be false (paragraphs 7 and 8). (e) That the plaintiff's conduct as a lawyer during Court proceedings over which Judge Wilson presided was criminal (paragraph 2, 6, 7 and 8). The contextual imputations pleaded by the defendant 1. The contextual imputations pleaded by the defendant are: "a. The First Matter complained of carried, in addition to the Plaintiff's imputations, the following imputations: (i) That the Plaintiff has so acted as a lawyer that she should be referred for possible disciplinary action; (ii) That the Plaintiff so conducted herself as a lawyer as to cause a Judge to recommend that she be referred for possible disciplinary action. (iii) That the Plaintiff acted incompetently as a lawyer. b. The Second Matter complained of carried, in addition to the Plaintiff's imputations, the following imputations: (i) That the Plaintiff has so acted as a lawyer that she should be referred for possible disciplinary action; (ii) That the Plaintiff so conducted herself as a lawyer as to cause a Judge to recommend that she be referred for possible disciplinary action. (iii) That the Plaintiff acted incompetently as a lawyer." The particulars of justification: 1. The particulars of justification for those imputations pleaded by the plaintiff which are the subject of this defence are: 1. Imputations 8(a) and 14(a): the facts, matters and circumstances set out in paragraphs 1-7 and 30-99 of the defence. 2. Imputations 8(b) and 14(b): the facts, matters and circumstances set out in paragraphs 1-99 of the defence 1. The particulars of the defence of contextual justification, in relation to each of the imputations pleaded, are: 1. Contextual Imputation (i): the facts, matters and circumstances set out in paragraphs 1-102 of the defence. 2. Contextual Imputation (ii): the facts, matters and circumstances set out in paragraphs [1] to [99] of the defence. 3. Contextual Imputation (iii): the facts, matters and circumstances set out in paragraphs [1] to [102] of the defence. 1. As the same particulars are relied upon for the defence of contextual truth as for justification, the parties agreed that my rulings in relation to the adequacy of the particulars of justification would apply to the particulars given for the contextual imputations as well. The relevant principles of law 1. The parties' submissions raised the following issues: 1. The principles in relation to form and capacity of imputations, including contextual imputations, which are well settled: Kelly v Harbour Radio [2013] NSWSC 9 at [12] – [17]; Liu v Fairfax Media Publications [2013] NSWSC 7 at [17] – [22]; Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8 at [6] – [7]. 2. The impact on a pleaded defence under s 26 of the Defamation Act 2005 (NSW) ("the Act"), following Besser v Kermode [2011] NSWCA 174, where a plaintiff seeks to "plead back" contextual imputations where there has been a challenge made to their form and capacity (Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 at [23]), principles which have been mired in controversy over the last decade (as to the most recent discussion of these problems, see Hutley v Cosco [2021] NSWCA 17). In addition, there is the novel issue as to whether the court has power to make nunc pro tunc orders. 3. The circumstances in which a court will summarily strike out a defence on the basis of failure to particularise (as opposed to striking out certain particulars and/or granting leave to replead). Although the parties agree upon the relevant principles of law as set out in Rush v Nationwide News Pty Ltd [2018] FCA357 at 42 – 54 (plaintiff's submissions, p. 4; defendant's submissions, paragraph 40), Wigney J's general statements do not extend to specific issues of the kind raised in this application. These issues include a challenge to the admissibility of the particulars and the entitlement of a defendant to refer to, or rely upon, the contents of a judgment (such as orders, or admissions in cross-examination) in other proceedings. 1. In practical terms, the quickest way to deal with this application is to determine them in the following order: 1. Whether the defence of justification to two of the plaintiff's imputations should be struck out entirely on the basis of the inadequacy of particulars [1] – [102] and, on the same basis, whether the defence of contextual truth should be struck out by reason of its reliance upon these particulars. 2. The challenges to form and capacity of the contextual imputations. 3. The plaintiff's application to "plead back" the defendant's contextual imputations. 1. Although Mr Rasmussen agreed, at the commencement of the argument, that he was seeking to strike out both the defences of justification and contextual truth without lead to replead the challenge particulars, he withdrew from this position during the argument and indicated he was not necessarily opposed to leave to replead being given. Mr Parkin, referring to the generality with which the particulars were attacked, said he had come to court to meet an argument for summary strike-out, and not a challenge to individual particulars with an implied right of repleading, and the hearing accordingly proceeded on that basis. Particularising the defence of justification 1. In his summary of the circumstances in which particulars of justification may be struck out, Wigney J, in Rush v Nationwide News Pty Ltd at 42 – 54, acknowledges (at [43]) the high test set by the Court of Appeal in John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at 112 and by the High Court in Howden v Truth and Sportsman Ltd (1937) 58 CLR 416 at 418. In short, a plea should not be struck out unless it is perfectly clear that it cannot succeed. In determining whether this test can be satisfied, curial caution must be exercised to avoid determining issues best resolved at trial (at [47] – [50]). The defendant's case must be taken at its highest, the cumulative effect of the particulars considered, and a realistic approach taken to the requirement of precision (at [54]). 2. These are helpful observations and warnings, but of a very general nature. There is no analysis of judgments where applications have been made (successfully or otherwise) to strike out a defence of justification on the basis of hopeless particularisation. This is not a criticism; while his Honour acknowledges that the lack of Federal Court defamation judgments on this issue required him to refer to judgments from State courts (at [45]), the rarity of such cases even at State level is immediately apparent from the results of his Honour's researches. In those few judgments where an entire defence of justification has been struck out without leave to replead, it has generally occurred where the particulars are self-evidently hopeless (see for example Eardley v Nine Network Australia Pty Ltd [2017] NSWCA 1374 at [16], where the fact identified by the defendant to support the defence was "liking" a social media post). 3. These factors underscore the need for a careful focus on what Wigney J described as "the bare content of the "topics" outlined in the particulars" (at [50]) when compared to the factual issues raised in each of the imputations to which the defence is pleaded, as well as a critical analysis of challenges to particulars on grounds such as the present, namely admissibility and relevance. Imputations 8(a) and 14(a) 1. The factual material identified in these two identical imputations is that the plaintiff is facing a potential legal battle after a judge made scathing remarks about her competency as a lawyer. 2. The plaintiff complains that all the defendant has done is to particularise the contents of judgments where the plaintiff has been criticised by judges, rather than matters which might prove the imputations true. The plaintiff further argues that paragraphs 1 to 7 of the particulars (which identify the remarks and the "potential legal battle") are incapable of proof by reason of section 91 of the Evidence Act 1995 (NSW) ("Evidence Act"), which provides: 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. 1. The plaintiff also challenge challenges the relevance and degree of the particulars, namely that particulars 30 – 99 relate to the resolution of complaints to the Law Society of New South Wales that are "significantly distant" in time to the matters complained of and cannot answer the description of "scathing remarks" made by a judge about the plaintiff's competency. 2. Mr Rasmussen's challenges were put in broad terms to entire segments of the particulars, so I have adopted the same approach in analysing the competing submissions of the parties. The s 91 argument 1. Section 91 of the Evidence Act prevents the tender of a judgment to prove the existence of a fact that was in issue in that proceeding but not (as Mr Parkin pointed out) the fact of the judgment itself. 2. A fact can only be in issue, for the purpose of the Evidence Act, if it is a factual element of any cause of action and/or defence, whether or not it is the subject of a ruling by the trial judge. 3. What is impermissible is the treating of findings of fact made by one tribunal as having applicability to other issues outside the litigation. For example, in Herron v HarperCollins Pty Ltd (No 3) [2020] FCA 1687, the applicants, two medical practitioners the subject of adverse findings in a "notorious" (at [4]) Royal Commission known as the Chelmsford enquiry, sought to use the vehicle of defamation proceedings commenced in 2018 to prove that the Royal Commission did them "serious injustice" (at [4]). This could not be proved by the Commission's findings, which required victims and their families to give evidence all over again, as well as fresh medical evidence. 4. Suppose, however, that the applicants had pleaded an imputation similar to the present, namely that scathing remarks had been made them in the Royal Commission transcript. Would the tender of evidence of the scathing remark, to prove what was said and whether it was said about the plaintiff, be prevented by s 91? 5. The first step is to look at the relevant authorities and the second to construe the imputation in question in light of what must be proved. 6. An argument of a similar nature (namely that the plaintiff's evidence in a Royal Commission was inadmissible in subsequent defamation proceedings) failed in Feldman v Nationwide News Pty Ltd [2020] NSWCA 260. While consideration of this issue turned on an interpretation of s 6DD of the Royal Commissions Act 1902 (Cth), the careful analysis of the special reasons for this exception demonstrates that this exception is carved out for specific policy reasons. (In Feldman v Nationwide News Pty Ltd, the defence in question was fair report rather than justification but, as the judgment in these proceedings does not relate to a Royal Commission, nothing turns on this distinction). 7. As is noted in Howden v Truth & Sportsman (1937) 58 CLR 416 at 433, the requirement of proof of admissibility for a plea of justification in criminal libel for some time created complications in civil cases. However, it is not necessary for particulars of justification to be in admissible form, or to be restricted to references to documents the contents of which are admissible at trial: Clark v Richards [2002] WASC 5 at [9]; Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [147] and [177] – [178]. 8. As a general rule, the entitlement to re-use cross-examination and/or findings is restricted, in terms of evidentiary value, to the proceedings between the parties of that litigation. For example, it is no answer to a call for evidence in a Royal Commission to say that the witness in question can give the same evidence in defamation proceedings against some other party, or vice versa. 9. However, when the imputation the subject of the particulars of justification is analysed, it is clear that the issues for proof are not the trial judge's findings, but whether the trial judge actually made the remarks in question and whether they were made about the plaintiff. This could in fact be established at trial in a number of ways not requiring the tender of the judgment, as counsel for the defendant points out. In other words, as Wigney J points out at [50], the evidence which would be adduced at trial is greater than the bare content of the "topics" set out in paragraphs 3, 4 and 5 of the particulars. 10. This challenge to the particulars (initially raised in relation to Judge Wilson SC's judgment, but in such a generalised way that it appears to be a challenge to the whole of the particulars of justification) fails. Three further bases for objection 1. The next objection raised is that the particulars self-evidently are not sufficiently strong to be regarded as "scathing". 2. The question of whether the remarks made in other proceedings are sufficiently strong to be "scathing" is an issue for the tribunal of fact: State of New South Wales v Wraydeh [2019] NSWCA 192. 3. Mr Rasmussen further argued that particulars of justification could only include references to the judgment of Judge Wilson SC, as this was clearly the only judgment referred to. 4. This is not the case. Not even the imputation identifies the judge or the court case in question. Nor do the terms of the matter complained of provide any such information. The tweet posted by the defendant identifies the plaintiff as "Salim Mehajer's lawyer" in paragraphs 2 and 3, and this is supplemented by a photograph of the plaintiff appearing to share a private joke with a man whom the ordinary reasonable reader might infer could be that person. The description of her as being this person's lawyer suggests she has been involved in more than one "legal battle", in the course of which she is now facing "a potential legal battle of her own". The only mention of "Judge Wilson" occurs in paragraph 8, but this refers to a recommendation concerning the plaintiff's clients. 5. The entitlement of a defendant to plead particulars of justification which fall outside the contents of the matter complained of is well-established. If the imputation refers to "a judge" making scathing remarks, then any such remarks made by any judge may be pleaded in justification. As to the references to disciplinary proceedings, these may be relevant to the "potential legal battle" she is facing as a result of the judge's "scathing remarks" about her competency. By inference, those relate to her ability to practice law. 6. The fourth argument put forward by Mr Rasmussen challenged the particulars on the basis of timing. Mr Rasmussen submitted that, unless the actions particularised occurred within the narrow confines of the date of publication, they should not be allowed. 7. The general rule is that an imputation must be justified by reference to facts in existence at the time of publication, but an exception is made where an imputation amounts to a general charge against the character of the plaintiff. This exception recognises that acts which bear upon the truth of a pleaded imputation of that type that occurred within a reasonable period not only before but also after the date of publication of the defamatory matter will be admissible: Maisel v Financial Times Ltd [1915] 3 KB 336; Li v Herald & Weekly Times Pty Ltd [2007] VSC 109 at [227]. Admissibility of post‑publication material as evidence of the truth of the defamatory publication at the time of publication is conceptually based upon a requirement of contemporaneity. 8. Accordingly such material can be relied on if there is both a qualitative and temporal proximity between the defendant's particulars of truth and the imputation: Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232, 278 [217] – [218]. The qualitative element is established because of the relevance of these events to the proceedings the plaintiff is asserted to be facing, but how far distant in time may a plaintiff go back? In the case of Maisel, this was a period of about three years. The chronology of the events in these proceedings is of a similar nature and thus these particularised events may be pleaded. Imputations 8(b) and 14 (b) 1. The relevant elements of these imputations are the plaintiff's conduct and the judge's recommendation. The parties effectively argued these matters together with imputations 8(a) and 14(a). 2. The same principles generally apply. 3. The application to strike out these particulars in their entirety (and thus the defence of justification) is refused. Justification of the contextual imputations 1. The parties did not make separate submissions in relation to the particulars of justification concerning the contextual imputations, and agreed that, if the particulars of justification were deemed to be sufficient, the same ruling should apply to the particulars of justification for the contextual imputations. The capacity of the contextual imputations 1. The relevant principles as to whether or not a contextual imputation is capable of arising in addition to a plaintiff's imputations are explained by McCallum J in Tauaifaga v TCN Channel 9 Pty Limited [2013] NSWSC 8 at [6] – [7], where her Honour set out the following principles: "(a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [25]); (b) the question is, would the ordinary reasonable reader or viewer have understood the matter complained of to convey at the same time both the plaintiff's imputations and the defendant's contextual imputation (Ange at [16]); (c) a contextual imputation will not be permitted if it is merely an alternative formulation to the plaintiff's imputation. The requirement that the imputations differ in substance is a necessary but not sufficient requirement - there must be a difference in kind (Ange at [19]); (d) if the defamatory sting of the contextual imputation is the same as the defamatory sting of the plaintiff's imputation, even if the contextual imputation is broader it will still be impermissible (Ange at [27]); (e) where there is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether a contextual imputation is carried in addition to them (Ange at [28])." 1. These principles were explained in more detail by the Court of Appeal in Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [30] – [40]: "30 In order to be carried "in addition to" the plaintiff's defamatory imputations, the contextual imputations must differ in substance from the plaintiff's imputations. As I observed in Zeccola (at [48]), in Ange v Fairfax Media Publications Pty Ltd, Nicholas J explained that the words "in addition to" in s 26(a) removed the confusion under s 16 of the Defamation Act 1974 (NSW) (1974 Act) about what was required to establish a contextual truth imputation as a defence. In Ange, Nicholas J said of the "differ in substance" test: "[28] The test is straightforward enough, and it would be unhelpful to embroider it with some idiosyncratic gloss. The difficulty sometimes lies in its application in a particular case. Ultimately, the result of the evaluation process is one of impression taking into account the defamatory quality of each party's imputations with regard to the contents of the matter complained of which conveys them. In order to consider whether the defendants' contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the imputations pleaded by the plaintiff it is necessary to establish '… just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff's own imputations and by the defendants' contextual imputations' (Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, p 41E). The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations. (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, p 771, Chakravati v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 pp 24, 60, 139.) Where the plaintiff's imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them. The exercise requires a commonsense approach to an understanding of the publication which is expected of the ordinary reasonable reader." 31 In addition to the matters to which Nicholas J referred, the question whether a contextual imputation differs in substance from the plaintiff's imputation may be determined either by identifying what the defendant must prove in order to justify the contextual imputation, or by asking "what may be proved by way of justification to each such imputation" (emphasis in original). 32 The "differ in substance" test can also be satisfied by a defendant pleading a contextual imputation in general terms in the sense permitted by Maisel. As I have said, this is one way the respondents put their argument in support of contextual imputation (i). 33 Hunt J explained the Maisel approach in the contextual truth context in Allen as follows: "If the matter complained of conveys to the same ordinary reasonable reader two imputations at the same time, one of a general nature (of a Maisel type) and another of a specific nature which, even although related to the same subject matter of the general imputation, differs in substance from it, the policy behind s 16 requires that the defendant be permitted to plead the former as a contextual imputation to the plaintiff's cause of action based upon the latter." 34 The "policy" of which Hunt J was speaking was that introduced by the contextual truth defence. Under that defence as available both pursuant to s 16 of the 1974 Act and s 26 of the 2005 Act, a plaintiff cannot by selective pleading of a less serious imputation, when a more serious one is carried by the matter complained of, prevent a defendant from seeking to justify that more serious imputation. That had been the position at common law. 35 The requirement that the contextual imputation(s) be conveyed at the same time as the plaintiff's imputation(s) is to enable the tribunal of fact to "weigh or … measure the relative worth or value of the imputation or imputations for which each party contends". 36 The impressionistic nature of the differ in substance test to which Nicholas J referred in Ange can be illustrated as follows. 37 In Hyndes v Nationwide News Pty Limited, McCallum J accepted that it was possible for words to convey an act and, separately, a condition. However, her Honour held that in the circumstances of that case, the condition which the defendant sought to rely upon as a contextual imputation (willingness to lend money to persons the plaintiff believed to be drug dealers) to the plaintiff's imputations (which in various ways alleged that he had lent money to persons engaged in drug dealing) was necessarily implicit in the act identified in the plaintiff's imputations. Accordingly, in her Honour's view, the contextual imputations could not be said to arise at the same time, and in addition to, the plaintiff's imputations. 38 McCallum J distinguished State of New South Wales v Deren, in which Priestley JA (with whom Powell and Stein JJA agreed on this issue) held that the State's contextual imputation that the plaintiff was a child molester, differed in substance from the plaintiff's imputation which directly accused the plaintiff of particular sexual assaults on particular young children coming from a particular location during a particular time. His Honour accepted that it may be that the contextual imputation could be "derived from" the plaintiff's imputation, but said that even if that were right, and even if the ideas conveyed by the parties' respective imputations had "much in common", it would not follow that the meaning of the two imputations was the same. His Honour's reasoning reflects that of Hunt J in Allen to which I have referred concerning the same subject matter. 39 As Hyndes and Deren demonstrate, the question whether a particular charge of wrongdoing carries a general charge "may depend on the context in which the words are used" and the "the gravity of the misconduct imputed in the particular charge". 40 Thus, the mere fact that contextual imputation (i) may be "derived from" (which expression, in my view, would comprehend the notion of being "implicit" in another imputation) in imputation (a), does not answer the question, as Mr Dibb's submissions tended to assume, whether the former is "in addition to" the latter." 1. As is noted above, I consider the plaintiff's imputations not to be restricted to a specific event, but to be Maisel imputations. If I have erred in so finding, I would add that, in Fairfax Media Publications v Zeccola [2015] NSWCA 329, McColl JA, with whom Macfarlan JA agreed and Sackville AJA agreed, held that a general contextual imputation of a Maisel nature could be pleaded in defence to a specific plaintiff's imputation even though it related to the same subject matter, as long as it differed in substance. Her Honour referred to the conclusion of Hunt J in Allen v John Fairfax and Sons Ltd ((Unreported), NSWSC, 2 December 1988), where his Honour held that the "differ in substance" test was satisfied where a defendant pleaded a contextual imputation in general terms in the sense permitted by Maisel. His Honour stated: "If the matter complained of conveys to the same ordinary reasonable reader two imputations at the same time, one of a general nature 'of a Maisel type' and another of a specific nature which, even though related to the same subject matter of the general imputation, differs in substance from it, the policy behind s 16 requires that the defendant be permitted to plead the former as a contextual imputation to the plaintiff's cause of action based upon the latter". 1. Mr Rasmussen's challenges to the form and capacity of each of the contextual imputations pleaded, and my rulings, are set out below. Imputation (i) 1. Mr Rasmussen did not challenge the capacity of this imputation to arise, but submitted that it did not differ in substance from the plaintiff's imputation (a). Mr Parkin submitted that, whereas imputation (a) was an act, contextual imputation (i) was a value judgment, requiring different elements to be proved to support the claim of justification: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228. 2. I agree with this analysis and consider that contextual imputation (i) does differ in substance because different elements of proof are required in order to meet the sting of this contextual imputation. Imputation (ii) 1. Mr Rasmussen submitted that this imputation was identical to the plaintiff's imputation (b), as the only real difference in words is that one imputation uses the term "misconduct" and the other uses the word "conduct". 2. Mr Parkin submitted that the proof of the elements of truth would be different in each case, but it is clear from the context (i.e. the rest of the sentence) in which these words are used that the same factual material is involved. 3. I accordingly struck out this imputation as not differing in substance from the plaintiff's imputation (b). Imputation (iii) 1. Mr Rasmussen challenged both the form and capacity of this imputation, arguing that this imputation did not differ in substance from imputation (a) and/or contextual imputation (i). 2. However, this imputation, unlike the other imputations pleaded, focuses on a meaning not otherwise pleaded in terms, namely that, independently of any observations by the judge referred to, the plaintiff was an incompetent lawyer. Such an imputation may be inferred from the reference to the plaintiff finding herself in "a potential legal battle of her own" (to quote both of the matters complained of), as opposed to acting for clients who had legal battles. 3. I am satisfied that this imputation is reasonably capable of being conveyed and that it differs in substance from all the other imputations pleaded. Appropriation of the contextual imputations 1. The plaintiff seeks to "plead back" or appropriate such contextual imputations as may remain after the challenge to the form and capacity argument. 2. One of the unintended consequences of the decision in Fairfax Media Publications Pty Ltd v Kermode is that a plaintiff may now defeat the defence by simply applying to appropriate any contextual imputations pleaded. Leave to appropriate is commonly granted (Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171; Jones v TCN Channel 9 Pty Ltd (No 3) [2016] NSWSC 922), but on terms. In making such an order in Eardley v Nine Network Australia Pty Ltd (the authority referred to by Mr Rasmussen in his written submissions on page 7), McCallum J noted: "…the evolution of a practice pursuant to which plaintiffs are ordinarily entitled to appropriate contextual imputations upon condition that, in the event that a contextual imputation is prove true at the trial, the imputation may at that point be relied upon by the defendant in support of the contextual truth defence." 1. In other words, leave to plead back (resulting in the striking out of the s 26 defence) is an order the court will make, but conditionally, particularly in circumstances where conduct of the plaintiff (such as challenging the capacity of the contextual imputation) suggests a motive for appropriation may be to obtain the benefit of the removal of the s 26 defence. 2. The defendant submits that this is a clear case of a plaintiff seeking to appropriate the contextual imputations solely for the purpose of defeating the defence and drawing to my attention decisions where leave has been refused where a plaintiff has displayed "metaphysical agility" of this kind (Chel v Fairfax Media Publications Pty Ltd at [23]). 3. The defendant submits that leave to appropriate the contextual imputation should be refused for the following reasons: 1. The plaintiff's applications in these proceedings contain "the very vice" which led to the refusal of such an application in Chel, namely a challenge to all three contextual imputations. 2. While an affidavit as to bona fides is not necessary, the court should be suspicious of an application where the plaintiff proposes to tailor her case to adopt any or all of the imputations regardless of their subject matter. The bona fides of the application still remain relevant: Rennie Gollege Pty Ltd v Ballard [2012] NSWCA 376 at [104] – [105]. 3. The plaintiff has not merely challenged form and capacity, but even the particulars of justification. 4. The dictates of justice, proportionality and the overriding purpose of case management as identified in ss 56 – 64 of the Civil Procedure Act 2005 (NSW) do not support a further amendment being permitted. 1. There is a degree of artificiality in these arguments. The matter complained of is a very short document indeed, and the ability to distil fresh imputations out of so few words should not be rewarded by penalising the plaintiff for not thinking of them. Nor should leave necessarily be refused because of the challenges to form and capacity, not least because the plaintiff was successful in relation to contextual imputation (ii). In the circumstances, the fairest way forward is to grant leave conditionally in the manner alternatively proposed by the defendant. 2. This brings me to Mr Rasmussen's challenge to the court's power to make such an order. Does the court lack power to make a nunc pro tunc order? 1. In the course of the hearing on 25 March 2021, Mr Rasmussen submitted, without providing any authority, that the court lacked power to make such an order because it would trammel the conduct of the trial and the trial judge's rulings. As such orders have been made by way of "common practice" (Eardley, supra) in the Supreme Court Defamation List over much of the past decade, I took the view that, in the absence of careful argument, I should not come lightly to such a view, but I granted Mr Rasmussen leave to provide further submissions, including references to authority, in the event that this was a consideration that courts making this common practice order had overlooked. 2. Mr Rasmussen refers to Emanuele v ASC (1997) 188 CLR 114 at 142, where the ASC failed to seek leave before requesting orders to wind up a group of companies be made. The Full Federal Court granted leave nunc pro tunc to do so. In the High Court, Kirby J described this step as a court of superior record exercising a supervisory power to cure a defect in respect of the procedural step omitted, but provided for by legislation. However, Mr Rasmussen argues that this court is not such a court; in addition, the order revoking leave will be exercised at an indeterminate point in the future, if the condition is satisfied. Mr Rasmussen adds that this is not strictly speaking a nunc pro tunc order in any event, and has been mislabelled, in that such orders are made only in circumstances where parties need the leave of the court to commence or continue proceedings under, for example, motor vehicle or workers compensation legislation. 3. Mr Rasmussen explains the "common practice" as being one where consent orders are made and that, without consent, no such order may be made. 4. The defendant submits: 1. the authorities referred to by Mr Rasmussen do not limit the making of such an order to the curing of a procedural defect or error. Even the apparent limitation expressed by the High Court in Esso Australia Pty Ltd v Australian Workers Union (2017) 263 CLR 551 at [49] is a matter going to discretion rather than to power: Australian Rail, Tram and Bus Industry Union v Metro Trains Melbourne Pty Ltd [2020] FCAFC 81 at [67] (Bromberg J; but note also the observations of Flick J at [16]). 2. Furthermore, none of these cases consider or deal with the power to amend, or grant leave to amend, as part of procedural or case management provisions under ss 56 – 64 of the Civil Procedure Act 2005 (NSW). The plaintiff is asking for an indulgence, in the form of leave to amend, the result of which will be, if such an order is not made, for the defendant to lose a defence. The granting of leave to amend is a discretionary matter, and leave to amend may be granted conditional upon certain other steps being taken, such as early provision of evidence in the form of affidavits where there is a late plea of justification, or the payment of security for costs into court, or the restriction of matters which may be raised in the pleading at the trial such as, for example, a limitation defence has been pleaded. 3. A conditional leave to amend subject to trial findings of fact of the kind made in applications to plead back may not be a nunc pro tunc order in the strict sense, but it is nevertheless an order granting leave to amend on conditions which may have retrospective effect at a point in the future, which is similar to the concept generally. 4. The fact that such orders have been made in circumstances where the orders are consented to is irrelevant, as parties cannot consent to orders which the court has no power to make other than in statutorily based issues such as enlargement of the jurisdiction of the court in relation to damages (District Court Act 1973 (NSW), s 51). 1. The plaintiff is seeking an indulgence in the form of an application for leave to amend to plead additional imputations, in circumstances where this will deprive the defendant of its pleaded defence of contextual justification. Issues of discretion as well as case management arise under ss 56 – 64 of the Civil Procedure Act, and the Court's powers to grant leave to amend and to conduct the litigation efficiently is the basis upon which this court has power to grant leave to amend conditionally. 2. The best-known example of conditional leave is the HMAS Voyager case. In Burk v The Commonwealth (No 2) [2002] VSC 464, conditional leave to amend a defence, to plead that the plaintiff's claim for alleged injuries suffered as a result of the collision of HMAS Melbourne with HMAS Voyager on 10 February 1964 was not maintainable by virtue of s. 11(1) of the Limitations Act 1985 (ACT), was granted. To eliminate any prejudice that might otherwise have affected the plaintiff as a result of the defendant being given such leave, it was granted on condition that the defendant undertake to treat an application pursuant to s. 36 of the Limitations Act 1985 (ACT) for an extension of time in which to bring his proceeding (which application he had instituted by summons filed 10 October 2001) as if it had been made on 12 July 1999, which was the date upon which the defendant filed and served its original defence. 3. The principles leading to the making of those orders are the same as those which now underpin ss 56 - 64 of the Civil Procedure Act. The "overriding purpose" in s 56 includes a consideration of the "dictates of justice" referred to in s 58(1). The legislation clearly contemplates that a court can exercise its procedural powers in a way that limits an entitlement to amend. 4. Where a practice of making such orders in "pleading back" applications is put in place in a superior court of record for such reasons, this court should accept and follow the practice. 5. For these reasons, I am satisfied that this court has the power to make such orders. Orders 1. The Plaintiff's application to strike out paragraphs 13(a)(i) - (iii) and 13 (b)(i) - (iii) and particulars [1 ] – [102] of the defence of justification and contextual truth, as well as the defence of justification, is dismissed. 2. Pursuant to UCPR rule 28.2, contextual imputations (i) and (iii) are reasonably capable of being conveyed; the plaintiff's challenges to their form are dismissed. 3. Contextual imputation (ii) is struck out as not differing in substance from the plaintiff's imputations 8(b) & 14(b). 4. Leave to the plaintiff to amend the further Amended Statement of Claim to appropriate contextual imputation (i) and (iii) is granted, but that leave to amend shall be revoked nunc pro tunc in respect of any imputation proved by the defendants to be substantially true, such that, at trial, the defendants may rely upon any such imputation for the purposes of the defence under s 26 of Defamation Act 2005 (NSW); such amended pleading to be filed in seven days. 5. Leave to the defendant to file an amended defence 21 days after service of the Further Amended State of Claim. 6. The plaintiff is to provide submissions as to court's asserted lack of power to make nunc pro tunc orders by 5pm Friday 26 March 2021. 7. The defendant is to reply by Tuesday 30 March 2021. 8. The defendant to answer the plaintiff's email dated 2 March 2021 in seven days; the plaintiff is to reply 14 days thereafter. 9. Plaintiff to pay defendant's costs of the application. 10. Matter stood over to the Defamation List for further directions Thursday 29 April 2021 at 9am. ********** Amendments 19 April 2021 - Paragraph 41 - "imputations 8(b) and 14(b)," to "imputations 8(a) and 14(a)." 19 April 2021 - Cover Sheet Completing Citation - Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2021