New South Wales Court of Appeal CITATION: John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 HEARING DATE(S): 6 April 2006 JUDGMENT DATE: 16 August 2006 JUDGMENT OF: Spigelman CJ at 1; Handley JA at 2; McColl JA at 54 DECISION: Appeal dismissed with costs. CATCHWORDS: DEFAMATION – defence of statutory qualified privilege – whether conduct of publisher reasonable - DEFAMATION – defence of contextual truth – whether plaintiff's imputations further injured plaintiff - DEFAMATION – Polly Peck defence – not recognised by common law of Australia - DEFAMATION – damages – mitigation – truth of contextual imputations – relevant in mitigation - D LEGISLATION CITED: Defamation Act 1974 Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 Atkinson v Fitzwalter [1987] 1 WLR 201 Austin v Mirror Newspapers Ltd [1986] AC 299 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 654 Howden v Truth and Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287 John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 CASES CITED: Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 Plato Films Ltd v Speidel [1961] AC 1090 Polly Peck (Holdings) plc v Trelford [1986] QB 1000 Preger v Times Newspapers Ltd [1988] 1 WLR 77 Robinson v Laws [2003] 1 Qd R 81 Scott v Sampson (1882) 8 QBD 491 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 PARTIES: John Fairfax Publications Pty Ltd (Appellant) John Zunter (Respondent) FILE NUMBER(S): CA 40700 of 2005 COUNSEL: T D Blackburn SC/D R Sibtain (Appellant) C A Evatt/C J Dibb (Respondent) SOLICITORS: Freehills (Appellant) Russell McLelland Brown (Respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 20316 of 2002 LOWER COURT JUDICIAL OFFICER: Simpson J LOWER COURT DATE OF DECISION: 2 August 2005 LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWSC 759 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40700 of 2005 SPIGELMAN CJ HANDLEY JA McCOLL JA 16 AUGUST 2006 JOHN FAIRFAX PUBLICATIONS PTY LTD v JOHN ZUNTER CATCHWORDS DEFAMATION – defence of statutory qualified privilege – whether conduct of publisher reasonable DEFAMATION – defence of contextual truth – whether plaintiff's imputations further injured plaintiff DEFAMATION – Polly Peck defence – not recognised by common law of Australia DEFAMATION – damages – mitigation – truth of contextual imputations – relevant in mitigation FACTS The respondent was the manager of a Caravan Park on the NSW South Coast, which, in early January 2002 came under threat from a large bushfire. In response to the advancing blaze, the respondent initiated an illegal 'backburn' by lighting a number of smaller fires designed to remove fuel that the bushfire would otherwise have consumed and starve it of oxygen. The backburn succeeded in its purpose. The appellant published an article about the backburn in the weekend edition of the Sydney Morning Herald. A jury found the article conveyed two imputations defamatory of the Respondent: (1) He lost control of his own backburn and; (2) wrecked the main strategy of the Shoalhaven Fire Control Officer. The appellant did not attempt to justify either imputation. The trial Judge made a single award of $100,000 in respect of publications in all Australian jurisdictions and rejected all defences. The appellant submitted that the Judge erred in rejecting the statutory qualified privilege, contextual truth and Polly Peck defences and it challenged the award of damages. HELD: Statutory qualified privilege: s 22; (1) An inquiry as to the 'reasonableness' of the Publisher's conduct for the purposes of s 22(1)(c) of the Defamation Act 1973 must focus on the servants or agents who were responsible for the matter complained being published: Austin v Mirror Newspapers Ltd [1986] AC 299, 316; Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727, 733; (2) The assessment of reasonableness is to be examined as between the publisher and the person defamed, not as between the employees and the publisher; (3) To satisfy the requirements of the section the publisher must prove that it acted reasonably in relation to the person defamed despite publishing false and defamatory material about him; (4) This normally requires serious allegations to be put to the person concerned for his explanation or answer but this was not done in this case because of the chaotic conditions caused by the bushfire; (5) The Judge's finding that the publisher had not established that its conduct in publishing the article was reasonable, was correct; Contextual truth: s 16; (6) The facts establishing the 'substantial truth' of all contextual imputations must be weighed against each of the plaintiff's imputations separately when deciding whether the latter caused further injury; (7) Each imputation further injured the plaintiff's reputation and the challenge to the rejection of the defence under s 22 failed; Polly Peck defence: (8) This is not recognised by the common law of Australia: Polly Peck (Holdings) plc v Trelford [1986] QB 1000 CA; Chakravarti v Advertiser Newspapers Ltd (1988) 193 CLR 519, 526-30; As to damages: (9) The respondent did not have to adduce evidence of his good reputation: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 150; (10) Evidence of the truth of the contextual imputations was relevant on mitigation of damages; (11) The award could not be disturbed. ORDERS Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40700 of 2005 SPIGELMAN CJ HANDLEY JA McCOLL JA 16 AUGUST 2006 JOHN FAIRFAX PUBLICATIONS PTY LTD v JOHN ZUNTER Judgment 1 SPIGELMAN CJ: I agree with Handley JA. 2 HANDLEY JA: The appellant published an article in the weekend edition of the Sydney Morning Herald on Saturday, 5 January 2002 about the respondent's conduct when major bushfires were burning in the Shoalhaven area. The respondent, Mr Zunter, brought an action for defamation and on a s 7A trial (Defamation Act 1974 s 7A), the jury found that the article conveyed two imputations defamatory of the respondent: (a) The plaintiff lost control of his own backburn; (b) The plaintiff wrecked the main strategy of the Shoalhaven Fire Control Officer. 3 The remaining issues were tried before Simpson J without a jury. Her Honour rejected defences of statutory qualified privilege under s 22 and of contextual truth under s 16. The appellant did not seek to justify the truth of either imputation: s 15, and a pro forma defence of common law qualified privilege also failed. There were no other defences in respect of the publication in New South Wales. 4 Mr Zunter also sued in respect of publications in all other States and Territories of the Commonwealth. This complicated the pleadings and attracted defences under the common law, including a Polly Peck defence, and statutory defences under the law of Queensland and Tasmania. Her Honour rejected all defences and made a single award of $100,000 damages in respect of all publications. 5 The appeal challenged the rejection of the defences under s 22 and s 16, the rejection of the Polly Peck and statutory qualified privilege defences in the other States and Territories, and the quantum of damages. 6 The summary of the background facts which follows is taken from Her Honour's findings which were not challenged. Mr Zunter was the manager of the Rustic Caravan Park in the Bendalong area on the South Coast of New South Wales. Access from Bendalong Road was by a long road through bush land. In the early days of January 2002 the property was seriously threatened by a large bushfire sometimes known as the Manyana Fire. The Rural Fire Service (RFS) was working to bring this under control. 7 On 2 January police and/or the RFS ordered the evacuation of the caravan park, but some of the residents remained. On the following day police and the RFS again ordered an evacuation but some still refused to leave. RFS officers inspected the caravan park, gave some instructions to Mr Zunter, and left. By mid-afternoon the fire was burning on each side of the access road and Mr Zunter estimated that it would reach the caravan park within an hour. By 5pm the fire was about 50 or 60 metres away approaching at an angle and burning in the tops of the tall trees. 8 Six men had remained to assist Mr Zunter and one of these, Mr Alan Osborne, had had RFS training. Acting on his advice and with the assistance of the others Mr Zunter ignited a series of fires designed to remove the fuel that the bushfire would otherwise have consumed and starve it of oxygen. This was the backburn mentioned in the article. By the time the men did this the wind direction had changed and drove the newly lit fires into the main fire. As a result the backburn achieved its purpose and the main fire, Manyana Fire, did not reach the caravan park. On Mr Zunter's unchallenged evidence it self extinguished within 20 minutes. 9 The article contained the headline "Illegal backburn that went wrong ruined our strategy, fire fighters say" and included a photograph of the plaintiff with the caption "Caravan park owner John Zunter … lost control of a backburn". The relevant part of the story was as follows: "Police are waiting for conditions to clear in the Bendalong area on the South Coast so they can interview a caravan park owner who carried out an illegal backburning operation on Thursday night. The Shoalhaven Fire Control Officer, Brian Parry, said yesterday that the owner of the Rustic Caravan Park, John Zunter, had repeatedly refused to evacuate the premises on Thursday when police were ordering people to leave. 'He did his own back-burning and indicated that he'd lost control of the backburn', Mr Parry said. Fire fighters were unable to bring the blaze back under control and, as a result, the fire 'tore through and wrecked the main strategy', he said. It came into the Manyana Fire we were trying to control … Mr Zunter told the Herald he started the backburn out of desperation because the fire was getting closer and the authorities were not going to come and help." Statutory qualified privilege 10 This defence is created by s 22(1) which relevantly provides: "(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 publishing that matter is reasonable in the circumstances, there is a defence of qualified privilege for that publication." 11 There was no dispute that the readers of the Sydney Morning Herald had an interest in the bushfire situation in New South Wales in January 2002, and that the matter complained of was published in the course of giving information to its readers on that subject. The dispute was whether the conduct of the publisher was "reasonable in the circumstances". 12 The publisher is a corporation and the focus of the inquiry into whether "its" conduct in publishing the matter was "reasonable" must be on its servants or agents who were responsible for the matter complained of being published: Austin v Mirror Newspapers Ltd [1986] AC 299, 316; Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727, 733; Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374 CA, 382, 386. They were Ms Stephanie Peatling (the journalist), Mr Paul Harris (the photographer), and a sub-editor or someone on the news desk (the sub-editor) who could not be identified later. The latter added to the story filed by the journalist, and provided the headline. 13 The journalist submitted a story based on a briefing at Nowra conducted by Mr Parry. The briefings, attended by persons in charge of fire fighting units, were primarily for operational purposes, but the media were admitted. The journalist attended briefings on 2 and 3 January and her story was based on a briefing on the morning of 4 January, a Friday. 14 The journalist's notes which the Judge set out in full were as follows: "Near Bendalong Highway can't control it. Spread over the Highway and can't control it. Caravan park owner refused to evacuate. He did his own backburning and indicated he lost control of backburn he lit. Can't put firefighters too close to main front. It tore through and wrecked the main strategy. Came into the Manyana Fire we were trying to control. That's not to say it would not have done that (but) how we're going to stop it now I can't say.' 15 The story as published differed from that submitted by the journalist who had not identified the caravan park or its owner, and it included the last passage quoted para [8] which, as the Judge said, did not contribute to the defamation. 16 The Judge inferred that the source of the additional information was the photographer. The journalist and photographer working as a team had been unable to get through to Mr Zunter by road or by telephone after the briefing on Friday morning and she filed her story without hearing his version. 17 After the journalist left to return to Nowra the photographer was able to hire a boat and reach the caravan park. He spoke to Mr Zunter and took a number of photographs including the one published. The photographer was shown the area where the backburning had occurred, and recorded the plaintiff's answers to some questions, but did not take notes. According to the photographer (black 179) the relevant conversation was as follows: "Hello, my name is Paul Harris. I am a photographer with the Sydney Morning Herald. We have been to a briefing this morning that told us about a backburn that has apparently been lit by the owner of this caravan park … We have heard this has happened, what's your side of the story?" To which Mr Zunter replied: "Yes, I did, but out of desperation. No-one was coming to help. I'm all on my own here." 18 Mr Harris made a note of the journalist's name and mobile telephone number and handed this to Mr Zunter and suggested that he contact her saying: "It is quite important that you tell your side of the story." 19 He then left, anxious to file his photographs. Mr Zunter's evidence was to the same effect except that he recalled the photographer saying there was no hurry whereas the latter said he told Mr Zunter that he had to leave in a hurry to file his photographs because the story was being filed for the following day. The Judge accepted the photographer's evidence. 20 The plaintiff did not telephone the journalist until Saturday morning, after the story had appeared in the paper, but she was in her car on the way to a funeral, and neither rang the other back. 21 Section 22(2A) indicates a number of matters that the Court may take into account in determining whether the conduct of the publisher was reasonable. It relevantly provides: "(2A) In determining for the purposes of sub-section (1) whether the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances, a court may take into account the following matters and such other matters as the court considers relevant: (a) … (b) … (c) the seriousness of any defamatory imputation carried by the matter published, (d) the extent to which the matter published distinguishes between suspicions, allegations and proven facts, (e) whether it was necessary in the circumstances for the matter published to be published expeditiously, (f) sources of the information in the matter published and the integrity of those sources, (g) whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the publisher to obtain and publish a response from the person, (h) any other steps taken to verify the information in the matter published." 22 Before sub-s (2A) was added to s 22 the requirements of reasonableness in s 22(1)(c) had been considered in Morgan v John Fairfax & Sons Ltd [No 2] (1991) 23 NSWLR 374, 387-8 where Hunt AJA, giving the principal judgment, said so far as relevant: "(1) The conduct must have been reasonable in the circumstances to publish each imputation found to have been in fact conveyed by the matter complained of. The more serious the imputation conveyed, the greater the obligation upon the defendant to ensure that his conduct in relation to it was reasonable … (2) If the defendant intended to convey any imputation in fact conveyed, he must … have believed in the truth of that imputation. (3) … (4) The defendant must also establish: (a) that, before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper inquiries and checking on the accuracy of his sources; … The extent to which the inquiries referred to in par (4)(a) should have been made will depend upon the circumstances of the case, in particular the nature and the source of the information which the defendant has obtained, and whether the position, standing, character and opportunities of knowledge of the informant (as perceived by the defendant himself) are such as to make his belief in the truth of that information a reasonable one." 23 As the Judge said this passage is not inconsistent with sub-s (2A). The journalist said she intended to convey both imputations and the Judge found that she believed they were true but her story did not name either the caravan park or Mr Zunter. The journalist refrained from doing this because she had not been able to contact Mr Zunter to confirm that he was the manager of the caravan park and obtain his side of the story. There was no evidence of any contact between the sub-editor and the journalist that evening and the journalist did not say that she could not be contacted. 24 The photographer gave evidence (black 182) that later on the Friday evening he received a phone call from "the office" and was asked about his conversation with Mr Zunter. He told his caller that Mr Zunter agreed that he had lit his own backburn and was worried about prosecution. 25 It was not suggested that the photographer had seen the text of the story the journalist filed after she returned to Nowra (black 135). Thus he did not know that it conveyed the two imputations and he did not ask Mr Zunter to comment on them. 26 The sub-editor who spoke to the photographer knew that the journalist had not identified Mr Zunter or the caravan park, did not know why, and did not speak to her to find out. He spoke to the photographer who, he knew, had spoken to Mr Zunter, but did not ask him the crucial questions. 27 The Judge said that each imputation was very serious and "reasonable conduct demanded that Mr Zunter be given an opportunity to reply before the publication of such serious imputations about him". She acknowledged that the journalist's efforts to communicate with him had been frustrated by the chaotic situation in the area, and she could not be criticised for failing to speak to him. The sub-editor could not be criticised for failing to do so either. 28 The appellant did not attempt to justify the imputations and Mr Zunter's evidence established that they were false. He did not know about the strategy of the RFS for fighting the Manyana Fire, and Mr Blackburn SC for the appellant submitted that Mr Zunter could not have thrown any light on that question. However he could have said that his backburn self extinguished within about 20 minutes and could not have possibly have disrupted the strategy whatever it was. 29 Mr Blackburn also submitted that publishing the original story without identification of Mr Zunter or his caravan park would still have exposed the company to a defamation action by Mr Zunter and possibly by the owners of the other two caravan parks in the area. There is no need to pursue this because the Court should not be diverted from the issue by arguments based on hypothetical facts. 30 The question of reasonableness must be tested as between the publisher and the person defamed, not as between the relevant employees and the publisher. The publisher must prove that it acted reasonably in relation to the person defamed despite publishing false and defamatory matter about him. A publisher who publishes serious allegations as fact without having checked with the person concerned is taking the risk that they cannot be justified. In that event, outside the limits of reasonableness, it is the publisher who bears the risk, not the person defamed. 31 The Judge was not prepared to find that there was nothing unreasonable in publishing the story which identified Mr Zunter. In my judgment her decision was correct, and the Court did not find it necessary to call on Mr Evatt to support it. This also disposes of the defences under s 16(e) of the Defamation Act 1889 (QLD) and s 16(e) of the Defamation Act 1957 (TAS). Defence of contextual truth (s 16) 32 The appellant pleaded two contextual imputations: (1) The plaintiff carried out an illegal backburn. (2) The plaintiff carried out an illegal backburn in circumstances of extreme fire damage. 33 Her Honour found that they were conveyed, that each was a matter of substantial truth, and related to a matter of public interest. These findings, which were not challenged, established the elements of this defence other than that in s 16(2)(c): "(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." 34 The correct approach to this requirement was outlined by Spigelman CJ in John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541, 543: "Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a 'matter of substantial truth' … For purposes of determining whether the s 16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself." 35 It is clear from the terms of s 16(2)(c) that the facts which established the substantial truth of both contextual imputations must be taken together and weighed against each of the plaintiff's imputations separately when deciding whether it further injured his reputation. 36 The Judge said that the contextual imputations alleged very serious misconduct on the part of Mr Zunter, but they were not more serious than or of equal gravity to the imputations pleaded by him. She said: "It is legitimate in assessing the gravity and the impact of imputations, to bear in mind the context in which they were published … I cannot conclude that, by reason of the facts … that establish that Mr Zunter lit an illegal backburn, and/or that he did so in circumstances of extreme fire danger, either an imputation that he lost control of the backburn, or the more serious imputation that he wrecked the main strategy of the RFS, does not further injure his reputation." 37 Mr Blackburn submitted that in these passages the Judge had impermissibly grouped the plaintiff's imputations contrary to the direction in s 16(2)(c) that each imputation (or cause of action s 9(2)) should be considered separately. I cannot accept that submission. In the first sentence quoted her Honour is making a general statement where the plural is entirely appropriate. Her use of "and/or" in the last sentence was not appropriate but the error in the use of "or" is immaterial. 38 The facts which establish that the plaintiff lit an illegal backburn in circumstances of extreme fire danger are part of the context in which the impact of each of the plaintiff's imputations must be assessed. The defendant's imputations focus on the plaintiff's conduct whereas the plaintiff's imputations focus on that conduct and its consequences. Both deal with a backburn that had been lit by the plaintiff, that was illegal, and had been lit in circumstances of extreme fire danger. 39 The plaintiff's first imputation contains the additional allegation that he lost control of that backburn. In my judgment this meant that the plaintiff had been reckless, incompetent, or both in lighting and controlling his illegal backburn and this additional allegation must have further injured his reputation. 40 The second imputation contains the additional allegation that as a result of him losing control of his backburn the main strategy of the Shoalhaven Fire Control Officer was wrecked and of course this necessarily involved increased risks to the lives and property of others. This additional allegation in the second imputation must have further injured the reputation of the plaintiff. The appellant's challenge to this part of the Judge's decision therefore fails. Polly Peck defence 41 The appellant pleaded a defence in respect of publications in Victoria, South Australia, Western Australia, the Northern Territory and the Australian Capital Territory that was sanctioned by Polly Peck (Holdings) plc v Trelford [1986] QB 1000 CA. It was based on a single imputation that "the plaintiff carried out an illegal backburn in circumstances of extreme fire danger". The defence alleged that this was not separate and distinct from the plaintiff's imputations and was true in substance and fact. 42 There must be a real doubt as to whether that imputation could answer either of those pleaded by the plaintiff because it is comprised within them and is narrower. However there is no need to consider this defence in detail because at the present time the common law of Australia (John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, 514) does not recognise it. It was rejected in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 526-30 by Brennan CJ and McHugh J, in dicta which did not receive the express endorsement of the other members of the Court. However those dicta have been followed by intermediate appellate courts in Victoria (David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 654), Queensland (Robinson v Laws [2003] 1 Qd R 81), Western Australia (Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314), and South Australia (Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206). This Court should follow this line of authority and it would be inappropriate for us to re-examine the question. The Judge rightly rejected this defence. Damages 43 The appellant challenged the Judge's award of damages as appellably excessive, her finding that the plaintiff's pre-publication reputation was good, and submitted that she had failed to take into account, in mitigation of damages, the substantial truth of its contextual imputations. 44 The Judge's statement that it was not necessary to adduce evidence that the plaintiff's pre-publication reputation was good is undoubtedly correct. In Scott v Sampson (1882) 8 QBD 491, 503 Cave J said: "Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action. The damage, however, which he has sustained must depend almost entirely on the estimation in which he was previously held. He complains of an injury to his reputation and seeks to recover damages for that injury; and it seems most material that the jury who have to award those damages should know if … he is a man of no reputation." 45 The classic statement in this country is that of Sir Victor Windeyer in Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 150: "When it is said that in an action for defamation damages are given for an injury to the plaintiff's reputation, what is meant? A man's reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. … money and reputation are not commensurables. It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed." 46 The plaintiff was publicly defamed and was entitled to damages without proof of his good reputation in the absence of evidence that he had a bad one. In any event there was evidence, which the Judge accepted, that he had a good reputation. The plaintiff said that following the article he had been shunned during casual encounters and had difficulty in dealing with the local council and the National Parks and Wildlife Service. He used to receive many social invitations but afterwards there was a dramatic decrease. He had had something of a profile as a local historian having been involved in historical associations and published in local newspapers but he now sensed that others no longer wished to associate with him. His minor convictions, as the Judge held, were immaterial. 47 Section 47(b), which makes evidence that the imputation was a matter of substantial truth admissible in mitigation of damages, has no direct application where a defence of contextual truth fails despite proof that the contextual imputations were substantially true. 48 At common law evidence adduced in support of a plea of justification which fails and evidence in partial justification of a severable libel may be considered in mitigation of damages. In Howden v Truth and Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287, 290 Jordan CJ said: "There can be no doubt that, at common law, in a civil action, a justification need not be to the whole, but may be to a part. If a man say that a certain neighbour of his was guilty of manslaughter and was also a thief, it is perfectly open to take a plea in justification of either charge only … It is, however, necessary that the part sought to be separately justified should be severable, and also that the pleadings should clearly indicate exactly what the severed part is which is sought to be separately justified." 49 The principle was applied in Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623, 627 by Jacobs and Manning JJA: "… where a defence of justification to the whole libel is set up and is clearly proved as to a separate part or parts it is the duty of the judge to direct the jury not to give damages in respect of such part or parts … we can see no reason why a plaintiff should obtain damages in respect of … matter which was proved to be true and the publication of which was held to be for the public benefit. We do not think that this conclusion is inconsistent with the principle that a defendant cannot justify in mitigation of damages unless he has pleaded justification. The point in the present situation is that the defendant has pleaded justification. It is true that the whole plea cannot succeed … because of a failure to prove justification in respect of one separate part of the defamatory matter, but … where the libel contains several charges, the defendant may justify some only … provided the charges he justifies are severable from the rest, and convey a separate and distinct imputation." 50 See also Plato Films Ltd v Speidel [1961] AC 1090, 1141-2 per Lord Denning; Atkinson v Fitzwalter [1987] 1 WLR 201 CA, 210, 214; and Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 CA, 120. In Preger v Times Newspapers Ltd [1988] 1 WLR 77 CA, 93 Russell LJ said: "If the plea of justification is directed to the real sting of the libel, then facts in support of the plea may reduce the damages even though the plea fails." 51 There is no reason to limit this principle to evidence adduced in support of a plea of justification. Evidence of truth or partial truth may also be before the tribunal of fact where a defence of contextual truth fails and such evidence is also relevant when assessing damages for the relevant harm (s 46(2)). 52 The "relevant harm" suffered by the plaintiff was that caused by the difference between the imputations sued on and the contextual imputations and damages should only have been awarded for that difference. The plaintiff had lit an illegal backburn in circumstances of extreme fire danger and was not entitled to damages on the basis that he had not done so. However there is nothing in the Judge's reasons or in the amount awarded to suggest that she overlooked the mitigating effect, such as it was, of the truth of the contextual imputations. 53 The appellant's general challenge to the award, that it was so large as to be outside the range properly available to the Judge, must also fail. The appeal as a whole fails and should be dismissed with costs. 54 McCOLL JA: I agree with Handley JA. ********** 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.