Supreme Court New South Wales Medium Neutral Citation: Oscar Kazal v Fairfax Media Publications Pty Ltd [2017] NSWSC 44 Hearing dates: 19 August 2016 Decision date: 10 February 2017 Jurisdiction: Common Law Before: McCallum J Decision: Defence of contextual truth struck out; particulars of mitigation struck out; leave granted to the plaintiff to discontinue the proceedings as against the first defendant on terms that each of those parties bear his or its own costs. Catchwords: DEFAMATION – defences – defence of contextual truth – whether able to be pleaded in the future subjunctive – whether open to a defendant at trial to rely upon an imputation relied upon by the plaintiff but proved true as a contextual imputation DEFAMATION – damages – particulars of mitigation –general particulars relating to the plaintiff's "family" said to be directly relevant to "the contextual background against which the alleged defamatory publications were made" – tenuous connection with the reputation of the plaintiff – whether particulars liable to be struck out COSTS – discontinuance against a party after late objection to pleading of the issue of publication – court's expectation that defendants will comply with the spirit of the Defamation List Practice Note SC CL 4 Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26 Cases Cited: Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29 Dank v Nationwide News Pty Ltd [2016] NSWSC 295 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224 Mizikovsky v Queensland Television Ltd [2013] QCA 68 Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991 The Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285 Category: Procedural and other rulings Parties: Oscar Kazal (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Fairfax Digital Australia & New Zealand Pty Ltd (second defendant) Linton Besser (third defendant) Kate McClymont (fourth defendant) Representation: Counsel: B McClintock SC, S Chrysanthou (plaintiff) T Blackburn SC, M Polden (defendants) Solicitors: Levitt Robinson (plaintiff) Banki Haddock Fiora (defendants) File Number(s): 2014/82498 Judgment 1. HER HONOUR: These are proceedings for defamation commenced by Mr Oscar Kazal arising out of the publication of two articles in the on-line edition of the Sydney Morning Herald. This judgment determines two interlocutory applications by the plaintiff concerning the form of the defence and a contest as to the costs order that should be made in connection with the plaintiff's discontinuance of the proceedings as against the first defendant. The so-called Balzola plea 1. The plaintiff's first application is to have a plea of contextual truth struck out. The plea is in the following terms (see paragraph 15(b) of the defence to the amended statement of claim filed 8 June 2016): Contextual truth – s 26 of the Defamation Act – The Federal Capital Press of Australia Pty Ltd v Balzola [2015] NSWCA 285 plea In respect of the second matter complained of, any imputations pleaded by the plaintiff in paragraph 16 of the second further amended statement of claim that are found to be conveyed and defamatory but not substantially true did not further harm the reputation of the plaintiff because of the substantial truth of so many of them as are found to be substantially true. 1. To have named the plea after a decision of the Court of Appeal (the decision in Balzola) is more subversive than it sounds. Some explanation is required. 2. The law of defamation provides a remedy for harm to reputation due to the publication of "defamatory matter": see s 8 of the Defamation Act 2005 (NSW). The term "defamatory matter" refers to the publication or publications sued on (here, the two newspaper articles). Commonly, defamatory publications range over a variety of topics imputing a variety of different kinds of discreditable conduct to the plaintiff. In order to delineate the issues for trial, a plaintiff must specify each particular defamatory act or condition allegedly imputed to him or her by the defamatory matter sued on (referred to as "imputations"). 3. Truth is a defence. Specifically, s 25 of the Defamation Act provides that it is a defence to the publication of defamatory matter "if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true". An obvious feature of that defence, taken alone, is that it allows the plaintiff to determine the battleground for the truth in that it forces the defendant to grapple with imputations in the terms selected by the plaintiff. 4. To address the potential unfairness of a selective claim by a plaintiff, there is a further truth defence, being the defence of contextual truth under s 26 of the Defamation Act. The defence allows a defendant to bring forward additional, true imputations so that the defamatory impact of the imputations complained of by the plaintiff may be assessed in their true context. Section 26 provides: 26 Defence of contextual truth It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 1. It is critical to the application of the truth defences to know what defamatory imputations are relied upon by the plaintiff and what additional imputations are relied upon by the defendant, a requirement recognised by the rules of court. Thus rule 14.30(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) requires a plaintiff to specify each defamatory imputation on which he or she relies, while r 14.33(2) imposes a similar requirement on a defendant, in respect of any defence under s 26, to specify the imputations relied upon as being contextual to the plaintiff's imputations. 2. In practice, the operation of the two defences creates a contest for imputations. Prior to the introduction of the 2005 Act, a defendant to a claim under the previous legislation, the Defamation Act 1974 (NSW), could adopt a plaintiff's imputation as a contextual imputation. A defendant's adoption of a plaintiff's imputation in that way was referred to as the practice of "pleading back". It was a practice which, in theory, offered the prospect of a complete defence even where the defendant could not prove all of the plaintiff's imputations to be true. 3. However, s 26 of the 2005 Act has been construed not to permit that practice. The relevant jurisprudence begins with the decision of Simpson J (as her Honour then was) in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852. Her Honour's decision was unanimously upheld by the Court of Appeal in Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 (the medium neutral citation is published under a different name: Besser v Kermode [2011] NSWCA 174). 4. The main judgment in the decision of the Court of Appeal was given by McColl JA. The judgment provides a helpful and comprehensive analysis of the history of the defence of contextual truth, ultimately concluding (as Simpson J had at first instance) that the language of s 26 forecloses the previous practice of "pleading back" a plaintiff's imputation as a contextual imputation: at [15], [74] and [77]-[86]; Beazley and Giles JJA agreeing at [1] and [2]. 5. The issue is best illustrated by a hypothetical example. Suppose a defamatory article carried exactly two imputations: that the plaintiff was a paedophile and that the plaintiff was a murderer. Suppose further that the plaintiff relied upon both of those imputations and that the defendant considered it could prove the paedophile imputation to be true but not the murder imputation. Before the commencement of the 2005 Act, the defendant could "plead back" the paedophile imputation as a contextual imputation, raising the prospect of a complete contextual truth defence even though it did not have a complete truth defence. The decision in Kermode would hold that, following the commencement of the 2005 Act, the defendant could not plead a defence of contextual truth in that circumstance. 6. Suppose at trial there was no truth defence to the murder imputation but that it was proved true that the plaintiff was a paedophile. It is clear enough that, in that case, the true paedophile imputation could be relied on to mitigate the amount of damages that should be awarded to the plaintiff: Kermode at [86(c)]. What the defendants seek to explore is whether a defendant is permitted in that circumstance to rely upon the imputation pleaded by the plaintiff but found to be true as the basis for a defence of contextual truth, potentially affording a complete defence to the whole cause of action. The defendants contend that, notwithstanding the decision in Kermode, a defendant could in the above example raise a defence of contextual truth, relying on the paedophile imputation as a contextual imputation and arguing (in the terms of s 26) that the indefensible murder imputation did not further harm the reputation of the plaintiff because of the substantial truth of the paedophile imputation. 7. In many cases there may, in the result, be no difference between the two approaches. In Dank v Nationwide News Pty Ltd [2016] NSWSC 295, I held that the mitigating impact of an imputation complained of by the plaintiff but proved true reduced the damages to such an extent that there should be no award of damages at all. However, there is an important procedural consideration. Under the Defamation Act 2005, the tasks in determining a claim for defamation are divided between the judge and the jury. The assessment of damages is a task for the judge, while the determination of any defences (including a defence of contextual truth) falls to the jury: see s 22 of the Act. 8. The defendants contend that, in the case of a mixed result (that is, where some of the plaintiff's imputations are proved true and some are not), they are not confined to relying on the true imputations only by way of mitigation of damages (to be assessed by the judge) but are entitled at that point to have a contextual truth defence left to the jury on the strength of those imputations. They submit that support for that course may be found in the decisions of the Court of Appeal in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 and Balzola and that it is not a course precluded by the decision in Kermode. The form of the pleadings 1. The defendants' argument raises two substantive issues. The first is whether a plea in the form presented should be allowed to stand on the pleadings. The second is whether the course foreshadowed by a plea in those terms should be allowed at trial. 2. As to the form of the pleadings, the defendants contend that the decision in Kermode is distinguishable because the plea, as framed, does not "plead back" the plaintiff's imputations as contextual imputations but merely "gives notice, as a matter of fairness, that the defendants intend, depending on the tribunal of fact's findings at trial, contingently to rely on such of the plaintiff's imputations as are found to be substantially true". 3. If it is indeed the case that the pleading does not "plead back" the plaintiff's imputations as contextual imputations (because it does so only contingently), then it fails to plead a proper defence. The submission implicitly acknowledges that a plea of contextual truth is not presently available but is advanced only as notice of a future, contingent issue in the proceedings. 4. In my view, a pleading in that form seeks impermissibly to circumvent the authority of Kermode. The plea expressly pleads the defence of contextual truth under s 26 of the Act. The requirement to specify the imputations relied upon by the defendants as being contextual to the plaintiff's imputations is met only by the future contingent adoption of a sub-set of the plaintiff's imputations (those found to be conveyed and defamatory but substantially true). The inescapable conclusion is that the pleading "pleads back" the defamatory imputations of which the plaintiff complains, contrary to the authority of Kermode. 5. Separately, the defendants submit that the ratio of the decision in Kermode is "confined to a pleading point which does not decide the present matter". The defendants identified the issue to be determined as being "whether it is open to a defendant at trial to rely on a limited sub-set of the plaintiff's imputations, in the event that they are found to be conveyed, defamatory and substantially true, and to take into account on the defendants' side of the ledger the exercise under subsection 26(b) of the Defamation Act 2005". The defendants submitted: The plaintiff's argument boils down to a pleading point, which he seeks to elevate to a point of principle, the practical result of which would be to shut the defendants out from relying on the substantial truth of such of the plaintiff's imputations as are held to have been conveyed, and to be substantially true, to show that the plaintiff's reputation has not in fact suffered harm, in the sense of having been brought down to its true level. 1. The submission entails a measure of circular reasoning; it assumes as a premise the correctness of the very conclusion contended for (that a defence under s 26 is available in the circumstances posited). In any event, the critical point is that it is of no avail to the defendants to characterise the decision in Kermode as one "confined to a pleading point" or the plaintiff's argument as one which "boils down to a pleading point". The present application raises just that; a pleading point which brings the matter within the binding principle stated in Kermode. For those reasons, I consider that I am bound to accede to the plaintiff's application to strike out the existing plea. The course of the trial 1. In case the foregoing analysis is wrong (and probably in any event), it is appropriate to consider the effect of the later authorities. Whether or not the impugned plea is allowed to stand on the pleadings, the defendants' position is that the course it foreshadows is authorised by the decision of the Court of Appeal in Balzola. 2. The argument has its origin in the earlier remarks of Basten JA in Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369. The relevant passage begins with a discussion of the judgment of McColl JA in Kermode at [86] where her Honour summarised the courses of action open to a defendant "seeking to justify the defamatory matter under the 2005 Act". 3. Two of the courses identified by her Honour were: (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 can not 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. 1. In Born Brands, Basten JA considered the "inter-relationship" between those two courses, that is, the inter-relationship between the defence of contextual truth and a defendant's reliance (in the case of a mixed result) on the true imputations to mitigate damages. His Honour did not expressly advert, in that context, to the fact that one of those courses amounts to a defence (the determination of which is a task for the jury) while the other is an aspect of the assessment of damages (a task for the judge). 2. Justice Basten's consideration of that issue in Born Brands included discussion of the decision of the Queensland Court of Appeal in Mizikovsky v Queensland Television Ltd [2013] QCA 68. It should be noted that neither Born Brands nor Mizikovsky was concerned with the precise issue raised in the present case. Each was a case in which the defendant had a permissible plea of contextual truth (that is, one which specified contextual imputations additional to those relied upon by the plaintiff rather than only relying, contingently, upon the plaintiff's imputations). The issue determined by the Court of Appeal in Mizikovsky concerned the proper direction to be given to the jury in respect of a mixed result in that circumstance. The Court was not concerned with the issue raised by the present application. 3. In any event, the critical passage in Born Brands is at [86] of the decision, where Basten JA said: 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. The reference to "Besser" is a reference to the decision in Kermode. 2. Those remarks appear to treat the "inter-relationship" between the two courses identified by McColl JA in Kermode at [86](c) and (d) as an inter-relationship between defences determined at the same time by the same tribunal of fact. However, I understand her Honour to have been referring, on the one hand, to the defence of contextual truth (to be determined by the jury) and, on the other hand, to a defendant's reliance (in the case of a mixed result) on the true imputations to mitigate damages (which are assessed by the judge). If that is correct, upon reflection (and with great respect to Basten JA), it is difficult to understand how those separate tasks are to be undertaken "holistically". The decision in Balzola 1. Justice Basten's remarks in Born Brands were endorsed in Balzola. However, that was a decision refusing leave to appeal. It did not address the complexity to which I have referred and was not the occasion for doing so. It does not stand as precedent for the proposition contended for by the defendants. 2. The Court said (at [23]-[25] per Emmett JA and Sackville AJA, footnotes omitted): It is, however, by no means certain that the summary stated in Kermode is exhaustive. In Born Brands Pty Ltd v Nine Network Australia Pty Ltd, Basten JA (with whom Meagher JA and Tobias AJA agreed) noted that, on one view, the decision in Kermode was confined to the pleading point. On that view, the Court in Kermode did not need to consider whether a defendant can rely on the plaintiff's imputations that are proved to be true in order to overwhelm the effect of imputations not proven to be true. 1. After referring to the remarks of Basten JA set out above, their Honours continued: In the light of these observations in Born Brands it is arguable that, even if a defendant cannot plead any of the plaintiff's imputations as a contextual imputation, the defendant may still be able to rely on the truth of those imputations as "overwhelming" any imputations not proved to be true. That is, a defendant may be entitled to show that the plaintiff's reputation has not been further harmed by the imputations not shown to be true, once the effect of the substantially true imputations has been taken into account. 1. Mr Blackburn SC, who appears with Mr Polden for the defendants, also relied in this context on my decision in McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224 at [49]-[78]. It should be noted that the correctness of that part of the decision must now be doubted in light of the subsequent decision of the Queensland Court of Appeal in Mizikovsky. In any event, I do not think the decision in McMahon (No 6) assists on the present issue. Mr Blackburn submitted that I held (at [49]-[78]) that the "defamatory imputations" referred to in s 26 of the 2005 Act do not include any of the plaintiff's imputations found by the jury to be substantially true. With respect, that overstates the ratio of the decision. My ruling in that case related to a different issue which I expressly distinguished from the issue raised by the present application, for the very reason that the present issue is governed by the decision in Kermode: see McMahon (No 6) at [74]-[75]. 2. For completeness, I note that the defendants' argument has been considered but not determined in two other decisions of mine: Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991 and Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29. In Rose at [25], I expressed the view that there is "much force" in Basten JA's alternative reading of the legislation in Born Brands. Having reflected upon the issue further in the course of preparing this judgment, I have come to the view that the defendant's argument overlooks the significance of the statutory division of roles between the judge and the jury. 3. The complexities of permitting a defendant to conduct a defence that is only contingently viable were not explored in argument. At the very least, the course contended for by the defendants would raise difficult questions as to how the case should be opened to the jury and would complicate the formulation and presentation of the questions for the jury. In particular, it would require the judge to put questions to the jury in two stages. While a two-stage process is sometimes adopted in order to simplify the jury's task, it seems unlikely that Parliament intended to mandate a two-stage process. 4. The better view, in my respectful opinion, is that the decision in Kermode is not confined to a pleading point but governs the course of the trial. An imputation relied upon by a plaintiff but proved true may be relied upon in mitigation of damages but does not, in my view, become a "contextual imputation" for the purpose of a defence under s 26. Particulars of mitigation 1. The plaintiff's second application is to have the defendants' particulars of mitigation struck out. The plaintiff submits that the particulars wholly fail to identify facts, matters and circumstances from which it is possible to discern how the matters particularised could affect the reputation of Oscar Kazal. 2. Before turning to the detail of the particulars, it is helpful to describe the structure of the defence. After responding to each individual paragraph of the second further amended statement of claim the defence pleads, in paragraph 15, defences of justification pursuant to s 25 of the Defamation Act, the defence of contextual truth pursuant to s 26 of the Act (which is now to be struck out), qualified privilege under s 30 of the Act, the defence of honest opinion under s 31 of the Act and a plea in bar based on earlier deeds of release in two other proceedings. 3. There is no truth defence in response to the only imputation pleaded as arising from the first matter complained of, which imputes corruption in dealings with politicians. As to the second matter complained of, the defence of truth is pleaded to five of the seven imputations specified by the plaintiff. The five imputations sought to be justified are imputations of intimidation or discreditable conduct towards a Herald journalist and, separately, towards a former business partner of the Kazal family. The two imputations as to which there is no defence of justification impute corruption in dealings with government authorities. 4. Paragraph 16 of the defence then sets out particulars of truth. The opening section (paragraphs 16.1 to 16.10) lists the eight brothers Kazal (of whom the plaintiff, Oscar Kazal, is one) and contends that the family "operated its businesses as a single unit", with Karl Kazal sitting "at its head" and each brother having "a role". The pleading describes various entities and structures. It includes allegations that Oscar Kazal held shareholdings and directorships in certain Kazal entities but not ones which appear to be relevant to the mitigation particulars. The particulars of truth further contend that Oscar Kazal was a beneficiary of a discretionary trust and that he "benefited from the business activities of Kazal Bros Pty Ltd and its related companies in that he received payments as distributions of the trust". There is no separate allegation that he played any role in any of the business activities giving rise to the distributions. 5. Paragraph 17 of the defence sets out particulars of the qualified privilege defence and need not be considered for present purposes. 6. Paragraph 18 of the defence sets out particulars of the honest opinion defence. Those particulars repeat some of the particulars of mitigation the subject of the present application. 7. Paragraph 19 sets out uncontroversial particulars of mitigation of damages and is not the subject of the present application. The application relates to paragraph 20, by which the defendants seek to rely in mitigation of damages on "the following matters which are directly relevant to the contextual background against which the alleged defamatory publications were made". The particulars are asserted to relate to the publication of imputations which are not the subject of any truth defence (that is, the imputations of corrupt dealings with government authorities). 8. The plaintiff's complaint is that the particulars either make undifferentiated allegations about "the Kazal family" (with no specific reference to the plaintiff, Mr Oscar Kazal) or make allegations about one or more named members of that family not being the plaintiff. The plaintiff submits that the basis for reliance upon those particulars appears to be no more than an assertion that, since he is a member of the Kazal family, particulars about alleged discreditable conduct on the part of other members of the family are capable of mitigating damage to his individual reputation. 9. The defendants resist the proposition that the particulars do not concern the plaintiff. They submit that the allegations about the Kazal family plainly refer to the plaintiff as a member of that family. As to particulars referring to one or more named members of the family other than the plaintiff, they submit that the basis for the connection with the plaintiff is made clear. 10. The particulars begin by repeating paragraphs 16.1 to 16.10 from the particulars of truth (summarised above). Those particulars are intended to make clear the defendants' case that "the Kazal family conducted itself as a family business". In my respectful opinion, that is an unhelpful exposition of the case to be put at trial. The defendants submit that support for that contention may be found not only in the particulars of truth but also in the plaintiff's own pleadings, in earlier iterations of the statement of claim in these proceedings and in the pleadings in earlier proceedings against Fairfax. 11. The defendants further submit that it will be the evidence, not the particulars, that the trial judge will take into account on the question of mitigation. They submit that there is no basis for an order to be made striking the present particulars out. 12. Separately, the defendants noted that many of the particulars sought to be struck out are also relied upon in support of the honest opinion defence. However, that does not obviate the need to determine whether the particulars can properly stand as particulars of mitigation. 13. Each party cited limited examples to support those respective contentions. For the purpose of determining the application it has been necessary to give close consideration to the whole of the impugned particulars. 14. The particulars address conduct of "the Kazal family" ranging from political donations, hosting of politicians at restaurants, paying for or facilitating travel by politicians and proposing the appointment of Karl Kazal as "honorary trade envoy for the NSW government". How any of that conduct is to be visited upon the plaintiff, to his discredit, is unclear. The highest the matter is put in the particulars is that it can be inferred from the matters stated in paragraphs 16.1 to 16.10 (the basis for the contention that the Kazal family conducted itself as a family business) that Oscar Kazal "approved of or acquiesced in" the impugned conduct. 15. There is a whole separate section of the particulars addressing the conduct of Charif Kazal, particularly concerning a dispute with the Child Support Agency. The topic is large, its putative impact on the plaintiff's reputation tenuous. 16. There is a further, lengthy section of the particulars which addresses the Kazal family's dealing with Andrew Kelly. The scope of the evidence that would be introduced by that material is enormous but it appears to have nothing to do with the plaintiff in particular, beyond the contention at paragraph 20.83 that he was "involved" in the running of "the business" and the leasing of the properties identified and that he stood (along with other members of the family) to gain financially from the success of those businesses. 17. While I am mindful of the caution which must be exercised before striking out particulars, a careful assessment of the challenged material has persuaded me that the plaintiff's application must succeed. To adopt a phrase made popular in a different legal context, the effect of allowing the particulars would be to introduce a wholly separate case by a side wind. The basis for the contention that the matters particularised are capable of mitigating any damage to Oscar Kazal's reputation is obscure; the material sought to be introduced is large. In my view, it can confidently be concluded that the particulars must be struck out. Costs of the discontinuance against the first defendant 1. The third application was not addressed orally. The parties relied on written submissions and an affidavit annexing the relevant correspondence, asking the court to determine the matter on the papers. 2. The plaintiff seeks leave to discontinue the proceedings as against the first defendant on terms that each of those parties pays his or its own costs of the proceedings. The first defendant is the publisher of the printed edition of the Sydney Morning Herald. As the pleadings now stand, the only matters complained of are articles that appeared in the on-line edition of the newspaper. Printed articles were originally included in the plaintiff's claim but, in circumstances described in detail in the defendant's written submissions, those claims were subsequently brought to an end. 3. The relevant principles are set out in detail in the parties' written submissions, to which I have had regard. In the absence of any contest as to the proper approach, those principles need not be rehearsed here. 4. The plaintiff traces the current contest to an issue that arose on about 6 April 2016 when, for the first time in the history of the proceedings, the defendants put in issue whether the plaintiff had properly pleaded its case in respect of publication by the first defendant. Following further exchanges, the defendants ultimately served their defence to the second further amended statement of claim. In that pleading, the second defendant admitted publication of the two matters complained of (online) while the first defendant objected that the relevant paragraphs of the plaintiff's pleading did not adequately specify a basis for holding it liable as a publisher of that material. 5. In the face of the second defendant's admission, the plaintiff then sought to discontinue the proceedings as against the first defendant on the terms indicated. The first defendant refused to consent to the discontinuance other than on the basis of a costs order in its favour. 6. The parties' competing positions concerning those events is set out in the correspondence. In short, without derogating from the careful detail there provided, the plaintiff attributes the discontinuance to the lateness with which the first defendant first raised an issue as to publication while the first defendant contends, in substance, that inadequate attention was paid to its position by the pleader of the plaintiff's claim. 7. The plaintiff submits that the first defendant's conduct in that respect falls short of the expectations of the Defamation List Practice Note SC CL 4, cl 13(b) of which requires a defendant to inform the court at the first listing of the proceedings whether the element of publication is admitted; if so, the admitted scope of publication and, if not, the reason publication is not admitted. He contends that his concern, from the time the issue was first raised by the first defendant, was whether it was necessary for both Fairfax entities to remain in the proceedings. The plaintiff notes in that context that all four Fairfax defendants (two companies and two journalists) have been represented throughout by the same firm of solicitors. 8. The first defendant submits that the plaintiff has not displaced the outcome contemplated by rule 42.19 of the UCPR in that there is no basis established for exercising the discretion to order otherwise than in accordance with the default position under the rule. The first defendant submits that the plaintiff's reliance upon the Practice Note has only been raised "in an attempt to divert attention from the fact of his complete capitulation against the first defendant", in effect accusing the plaintiff's solicitor of disingenuity. 9. I do not accept the first defendant's submission in that respect. Certainly it may be concluded, in hindsight, that the plaintiff could comfortably have discontinued as against the first defendant at an earlier point in time. However, it is not possible to conclude, on the material before me, that he ought to have done so. 10. What is clear, in my view, is that the defendant could have taken a more conciliatory approach in accordance with the expectations of the Practice Note. To complain, as the first defendant has, that "no occasion arose" for admissions to be made as the Practice Note contemplates is to misconceive the expectation of the Court as to the fulfilment of its objects. It seems likely that any separate costs of the first defendant (as opposed to those of the remaining defendants represented by the same firm) could have been spared had that occurred. 11. For those reasons, I make the following orders: 1. that the defence of contextual truth be struck out; 2. that the particulars of mitigation from paragraph 20 of the defence be struck out; 3. leave is granted to the plaintiff to discontinue the proceedings as against the first defendant on terms that each of those parties bear his or its own costs. ****** 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: 05 December 2018