Supreme Court New South Wales Medium Neutral Citation: Rose v Allen & Unwin Pty Limited [2015] NSWSC 991 Hearing dates: 6 May 2015 Date of orders: 07 May 2015 Decision date: 07 May 2015 Jurisdiction: Common Law Before: McCallum J Decision: Paragraph 6.2 of the defence to the amended statement of claim filed 21 November 2014 struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules. Catchwords: DEFAMATION – pleadings – defences – contextual truth defence – whether defendant permitted to "plead back" imputations pleaded by plaintiff as contextual imputations – Defamation Act 2005 (NSW) s 26 – application of Besser v Kermode – discussion of decision in Born Brands Pty Ltd v Nine Network Australia Pty Ltd Legislation Cited: Defamation Act 2005 (NSW), ss 8, 25, 26 Uniform Civil Procedure Rules 2005 (NSW), r 14.28 Cases Cited: Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Besser v Kermode [2011] NSWCA 174; 81 NSWLR 157 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 Gett v Tabet [2009] NSWCA 76 McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224 Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68 Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375 Category: Procedural and other rulings Parties: Rosleigh Jill Rose (Plaintiff) Allen & Unwin Pty Limited (First Defendant) Eamonn Duff (Second Defendant) Representation: Counsel: K Smark SC, S Chrysanthou (Plaintiff) ATS Dawson (Defendants) Solicitors: Kalantzis Lawyers (Plaintiff) Banki Haddock Fiora (Defendants) File Number(s): 2012/348204 Publication restriction: None Judgment 1. HER HONOUR: Rosleigh Rose is the mother of Schapelle Corby, a well-known Australian woman who served a lengthy term of imprisonment in Bali for drug offences. Ms Corby has always maintained her innocence of the offences of which she was convicted. This is one of a number of defamation actions brought by members of Ms Corby's family arising from the publication of material purporting to reveal the "true" story of the events leading to her conviction. 2. The matter complained of in the present action is a book entitled Sins of the Father. The book claims to tell "the untold story behind Schapelle Corby's ill-fated drug run". Ms Rose's statement of claim alleges that the book was defamatory of her, imputing conduct ranging from dishonest denials and lies to the media; being part of a drug syndicate run by Schapelle's father; damaging Schapelle's chances of early release from prison and caring more about money and celebrity than comforting Schapelle in prison. To that action, the publisher has pleaded defences of truth, contextual truth and honest opinion. 3. Ms Rose has moved the Court for an order striking out the defence of contextual truth pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) on the grounds that the matter pleaded in para 6.2 of the defence discloses no real defence. This judgment determines that application. 4. Paragraph 6.2 of the defence contends: Contextual Truth – section 26 of the Defamation Act (and its interstate equivalents) Further and in the alternative: (a) any of the Justified Imputations which are found at trial to be substantially carried by the Book, defamatory and substantially true (the True Imputations), are imputations carried by the Book in addition to: (i) any of imputations 4(d), 4(g) and 4(i) which are found at trial to be carried by the Book and to be defamatory; and (ii) any of the Justified Imputations which are found to be carried by the Book and defamatory but not substantially true, (together, the Remaining Imputations); (b) by reason of the substantial truth of the True Imputations, publication of the Remaining Imputations did not further harm the reputation of the Plaintiff. 1. The plaintiff's application fixes upon a conundrum in the operation of the defence of contextual truth provided for in s 26 of the Defamation Act 2005 (NSW). As may be seen from para 6.2 of the defence set out above, the defendants plead no contextual imputations of their own but rather seek to rely upon such of the plaintiff's imputations in the case as are proved true at the conclusion of the trial. 2. Section 8 of the Defamation Act provides that a person has a single cause of action in defamation even if, as alleged here, more than one defamatory imputation is conveyed by the matter complained of. The apparent simplicity of that section is spoiled to a degree by the operation of the statutory defences of justification and contextual truth, each of which is directed to "imputations" rather than to the cause of action. There thus appears the prospect that a single cause of action can be met by a several defence. 3. The section does not explicitly address the practical operation of that possibility in a case such as the present, where diverse defamatory stings are pleaded. In the present case, it follows from s 8 of the Act that Ms Rose has a single cause of action arising from being called a liar, a member of a drug syndicate and an uncaring mother. It is a defence to that cause of action if each of those imputations is substantially true (see s 25) or if the matter complained of is what might be termed "contextually true", as provided for in s 26. 4. The combination of ss 25 and 26 suggests the possibility that, although there is a single cause of action, that cause of action may be amenable to an attritional defence. It may also be observed that the Act assumes the existence of a finite, certain and ascertainable set of imputations arising from any matter complained of, a concept which is evidently alien to some practitioners in this field. Having regard to the terms of ss 25 and 26, in practice, a defendant who cannot prove the plaintiff's imputations to be substantially true (or is uncertain as to the fate of such a defence) has an obvious incentive to discern additional meanings arising from the matter complained of. There is, in that context, a natural contest for imputations. 5. The conundrum to which I referred at the outset of this judgment lies in the wording of s 26, which provides: 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. 1. According to its terms, the statutory defence proceeds in two stages. 2. First, it allows a defendant, apparently at the pleading stage, to complain of imputations other than those complained of by the plaintiff. In that respect the Act appears to contemplate a dichotomy: an imputation of which the plaintiff complains cannot, at the same time, be an "other" imputation carried in addition to itself. 3. Secondly, the defence directs the tribunal of fact to an inquiry as to what was referred to in argument in this application as the "swamping effect". If a plaintiff complains of (pleads) an imputation, a defendant can justify it under s 25. If a plaintiff does not plead an imputation, the defendant can plead it and justify it (prove it to be substantially true) under s 26. As a matter of fairness, one might expect the combined effect of those provisions to be that the plaintiff's cause of action lies in respect of those defamatory imputations carried by the matter complained of which stand at the end of the trial as not having been proved true. 4. There is authority binding on me that a defendant cannot "plead back" any imputation that has been pleaded by the plaintiff. In Besser v Kermode [2011] NSWCA 174 (reported as Fairfax Media Publications Pty Ltd v Kermode (2001) 81 NSWLR 157), the defendants sought to appeal the conclusion of the primary judge that it was not open to a defendant relying on the defence of contextual truth under s 26 to "plead back" the plaintiff's imputations as part of that defence. The appeal was dismissed. 5. Viewed as an argument about pleadings and beginning at the beginning of the litigious process, that is a conclusion which, with respect, makes sense. However, the law can develop in an organic way. The consideration of the second stage of the defence under s 26 (the issue of the swamping effect) has arisen in a number of trials where the defence has been pleaded. 6. For present purposes, it is appropriate to refer to the first in time as being the decision of Dalton J in Mizikovsky v Queensland Television Limited (No 3) [2011] QSC 375. In that judgment, her Honour published her reserved reasons for a series of rulings made during the trial as to the defence of contextual truth. In a trial in this Court over which I presided, I had occasion to refer to her Honour's analysis of the contextual truth defence. In one judgment, published during the trial, I recorded that I had found her Honour's analysis helpful and I adopted it: see McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 at [18]. Later in the same trial, however, the occasion arose for me to consider the manner in which the s 26 defence should be left to the jury in circumstances where one of the imputations complained of by the plaintiff had been found by the jury to be substantially true. On that issue, I disagreed with one aspect of Dalton J's judgment: see McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224. 7. Dalton J had held, at [40] to [41]: In my view it follows from the principles in Besser that all the plaintiff's imputations found to be conveyed and defamatory are considered against the substantial truth of all the contextual imputations. Under the previous legislative regime in New South Wales, where the imputation was the cause of action, a finding by the jury that one of several plaintiff's imputations was substantially true, in effect, removed it from the jury's consideration. It was not to be further considered, including in the comparative process involved in the contextual truth defence. Under the Act, as explained in Besser, to succeed on a defence of substantial truth - s 25 of the Act - it is necessary for a defendant to show that all the imputations in the matter complained of are substantially true. It does not avail a defendant to prove that some, but not all, imputations conveyed by defamatory matter are true, although that may go in reduction of damages (partial justification). If a defendant fails to prove a defence pursuant to s 25 of the Act, the question becomes whether or not there is a defence available pursuant to s 26 of the Act, and in performing the exercise required by that section, it seems to me there can be no warrant for excluding from consideration some of a number of imputations made which the jury consider to be substantially true. 1. In McMahon (No 6), after citing those remarks, I said at [58]: The decision in Mizikovsky provides a careful and helpful analysis of the complexities of the defence of contextual truth under s 26 of the Defamation Act and was applied by me (on a different issue) in this trial (see McMahon v John Fairfax Publications Pty Ltd (No 3) [2012] NSWSC 196 at [18]). However, with great respect to Dalton J, I do not agree with her Honour's conclusion on this issue. Accordingly, acknowledging the proper constraints on declining to follow the decision of the superior court of another state dealing with nationally uniform legislation, I determined that I should not follow Mizikovsky on this point. 1. The matter of Mizikovsky went to the Court of Appeal in Queensland: Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68. That Court upheld her Honour's approach. In doing so, the Court considered my judgment in McMahon (No 3) in which I had (in general terms) approved her Honour's analysis, but did not refer to my judgment in McMahon (No 6) in which I had expressly disagreed with her Honour's analysis on the critical point before the Court of Appeal. 2. The decision of the Court of Appeal in Mizikovsky nonetheless stands as authority which must be regarded as binding on that issue (that is, the swamping issue), having regard to the fact that the Defamation Act is national uniform legislation. 3. During the course of argument in these proceedings, I was referred in that context to the remarks of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 at [135]: As Hamilton J remarked and Barrett J agreed, a trial judge of the Supreme Court of New South Wales now "faces the difficult situation of obiter dicta in the High Court some 30 years ago conflicting with recent dicta in the Court of Appeal, which have met with substantial criticism"[99]. The confusion is not likely to be limited to New South Wales judges. Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. 1. The Court was there focusing on the rule (that an authority of an intermediate appellate court on national uniform legislation should be regarded as binding) rather than the exception (unless "plainly wrong"). It is not a direction to trial judges to undertake in every case an analysis as to whether they think the appellate authority is right or wrong. Appellate authority is correct, not as a matter of the analysis of trial judges but as a matter of orthodox law. I would refer in that context also to the remarks of the Court of Appeal in Gett v Tabet [2009] NSWCA 76 at [261] to [295] (in the context of a discussion as to when an intermediate court of appeal should depart from its own earlier authority), especially at [294] to [295] as follows: [294] The phrases "plainly wrong" or "clearly wrong" can be understood to focus on at least one or more of the following attributes of a ruling: (a) the fact of error is immediately (in the sense mentioned in [283] above) apparent from reading the relevant judgment; (b) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred (cf Chamberlain and Clutha), and (c) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis. [295] In our view, the first possibility is liable to be highly subjective and should not be required, where the other two possibilities are satisfied. The existence of (b) and (c) is a precondition to the exercise of the power to depart from earlier authority. 1. In any event, the swamping issue is not the precise issue raised by the present application and it is not necessary for me to determine or articulate any view as to the correctness of the decision of the Court of Appeal in Mizikovsky. My purpose in referring to that jurisprudence is that it invites attention, in hindsight, to the issue considered in Kermode from a different perspective. 2. In that context Mr Dawson, who appears for the defendants, relied on the remarks of Basten JA (in a judgment with which Meagher JA and Tobias AJA agreed) in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369. To put the remarks in context, it is necessary to begin at [82] to [83] of the judgment, as follows: [T]he Court outlined [in Kermode] at [86] a number of courses which were open to a defendant: "In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law: (a) prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25; (b) prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true; (c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification; and (d) to the extent the defendant cannot prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26." There is some uncertainty about the precise inter-relationship of the courses of action identified at (c) and (d). It is clear, however, that the propositions set out in this paragraph were not intended to be an exhaustive statement of the courses available to a defendant. Other defences are available in appropriate cases. 1. Basten JA continued, at [86]: The reasoning in Kermode and Mizikovsky (which may not be entirely consistent with each other) appears to assume that the defences in ss 25 and 26 are to be applied sequentially and (at least in the case of Besser) in the order in which they appear in the Act. However, there is an alternative reading of the legislation, namely that the tribunal of fact must consider holistically the effect of the defamatory matter on the reputation of the plaintiff, deciding at the end of the day whether, by reference to the imputations pleaded by both plaintiff and defendant, any imputations which have not been shown to be substantially true cause any further harm to the reputation of the plaintiff once the effect of the substantially accurate imputations has been assessed. 1. Approaching the issue from the perspective of the trial rather than the pleadings, as informed by the issues I had to determine in McMahon (No 6), there is, in my view, much force in the analysis suggested by Basten JA. Mr Smark submitted that Basten JA was, in that paragraph, "floating an idea" rather than confining or changing the true ratio of Kermode. After a careful analysis of that passage of the judgment in Born Brands, I think it is clear that his Honour is, to adopt Mr Smark's term, floating the idea of an alternative reading of the legislation in which there is, in my respectful opinion, much force. Why should an imputation complained of by a plaintiff that has been proved to be true fall to the floor (as it was put in argument in the present case) rather than being able to be relied upon by a defendant? 2. Ultimately, however, the question is one of judicial obedience to the law as it presently stands. With some reluctance, I have concluded that I am bound by the decision of the Court of Appeal in Kermode to accede to the plaintiff's present application. Paragraph 6.2 of the defence does precisely that which the Court of Appeal in Kermode held cannot be done in a pleading. However, simply by way of making clear the extent of the ruling I will presently make, I would not regard this decision as foreclosing the defendant from raising at the trial the matters canvassed in argument before me yesterday. The plaintiff is, by reason of the argument in the present application, well on notice of the fact that the defendant proposes, depending upon how the trial falls out, to invite the trial judge to determine the question of the defences "holistically" on the reading of the legislation suggested by Basten JA in Born Brands. At this point of the proceedings, however, I think I am compelled to make the order sought by the plaintiff, for the reasons I have stated. 3. The order of the Court is accordingly that para 6.2 of the defence to the amended statement of claim filed 21 November 2014 be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules. ********** I certify that this and the 10 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice McCallum. Dated: 7 May 2015 Associate: N Sinclair Amendments 23 July 2015 - addition of counsel's name to coversheet 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: 23 July 2015