Supreme Court New South Wales

• Medium Neutral Citation: Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380
• Decision date: 09 October 2014
• Before: McCallum J

Decision

Defendant's Hore-Lacy pleading struck out

• Catchwords: DEFAMATION - defences - defence of justification - plea of justification specifying Hore-Lacy meanings - whether open as a form of pleading in New South Wales
• Legislation Cited: Defamation Act 1974, s 9; Defamation Act 2005, ss 24, 25, 26; Uniform Civil Procedure Rules 2005, rr 14.28, 14.30
• Cases Cited: Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400; Chakravati v Advertiser Newspapers [1998] HCA 37; (1998) 193 CLR 519; David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Fairfax Media Publications v Kermode (2011) 81 NSWLR 157; Hyndes v Nationwide News [2011] NSWSC 633; John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205; John Fairfax Publications v Zunter [2006] NSWCA 227; Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; Snedden v Nationwide News Pty Ltd [2011] NSWCA 262; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387.
• Category: Interlocutory applications
• Parties: Edmund Thomas Gregory Bateman (first plaintiff); Idameneo (No 123) Pty Limited (second plaintiff); Fairfax Media Publications Pty Limited (first defendant); Fairfax Digital Australia & New Zealand Pty Limited (second defendant); Natashia Wallace (third defendant); Vanda Carson (fourth defendant); Jeremy Cumpston (fifth defendant)
• File Number(s): 2013/203163
• Publication restriction: None

JUDGMENT

1 HER HONOUR: These are proceedings for defamation and injurious falsehood arising out of the publication of a number of articles in The Sydney Morning Herald in October 2010. This judgment concerns only the action in defamation, in which Dr Bateman is the only plaintiff.

2 The proceedings were commenced in the Supreme Court of the Australian Capital Territory and were cross-vested to this Court in April 2013. By their amended defence filed 16 August 2013, the defendants have pleaded defences of justification, contextual truth, honest opinion, comment and fair report. Dr Bateman has applied to have parts of that defence struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005.

3 Some of Dr Bateman's objections have already been determined: Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400. This judgment determines an issue raised in respect of the defendants' reliance upon "Hore-Lacy" meanings. Dr Bateman has also taken a number of objections to the defendants' contextual imputations. Those objections will be determined in a separate judgment.

Hore-Lacy meanings

4 Dr Bateman's objection relates to a part of the amended defence which invokes the pleading practice approved in the decision of the Court of Appeal of Victoria in David Syme & Co Limited v Hore-Lacy [2002] VSCA 24; (2000) 1 VR 667.

5 Before turning to the detail of the argument on that issue, it is helpful to bring to mind some basic principles. The law of defamation in New South Wales is now governed by the Defamation Act 2005. One of the objects of that Act was to enact provisions to promote uniform laws of defamation in Australia (s 3 of the Act). The Act created a number of statutory defences, but also expressly preserved defences under the common law (s 24 of the Act).

6 Before the introduction of the Defamation Act 2005, the law of defamation in New South Wales was governed by the Defamation Act 1974. National uniformity was no part of the objects of that Act. It included a provision peculiar to this jurisdiction, which was that a person defamed by the publication of defamatory matter had a cause of action in respect of each imputation made by the publication of that matter (rather than a single cause of action in respect of the matter itself, as was the case in other jurisdictions). That peculiarity was perceived to have produced a body of jurisprudence of singular relevance to this jurisdiction.

7 Section 8 of the uniform legislation provides that a person defamed has a single cause of action in relation to the publication of defamatory matter even if more than one defamatory imputation is conveyed. So far as New South Wales is concerned, the effect of that section is to remove the focus on the imputation as the cause of action. The imputations contended for by a plaintiff nonetheless remain of critical importance, as explained below.

8 Unsurprisingly, the diverse laws that existed before national uniformity prevailed produced diverse practice and procedure as between the States.

9 In New South Wales, where the imputation was the cause of action, the law required a plaintiff to specify, in the pleading of the claim, the defamatory meanings contended for and to do so with precision. That was a requirement of the rules of court reinforced by the common law, as illustrated by the decision of the Court of Appeal in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-138 per Gleeson CJ; at 155F per Priestley JA. In that case, Gleeson CJ expressly endorsed the test previously formulated by Hunt J that an imputation will be struck out as ambiguous if it is such that "there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends": at 138D-E. The Chief Justice acknowledged, unexceptionably, that the appropriate degree of precision in any particular case is a judgment which will usually be made by reference to "considerations of practical justice rather than philology".

10 Priestley JA arrived at the same result without the need to rely on the earlier decisions of Hunt J, regarding the appeal as a simple pleading case dependent upon "the long-established (and probably always self-evident) rule that a pleading must be sufficiently clear to the opposing party to enable that party to plead substantially in answer to it (if the party can) and to prepare for a trial in which the case proved by the evidence will not come as a surprise": at 155F.

11 In other jurisdictions, where the law was different, different pleading requirements and practices evolved. Even in jurisdictions where there was no such requirement in the rules, it was common practice for a plaintiff to specify the meanings contended for in support of the claim. But the consequences of doing so were unclear, as explained in the decision of the High Court in Chakravati v Advertiser Newspapers [1998] HCA 37; (1998) 193 CLR 519 at [53] to [58] per Gaudron and Gummow JJ. One view was that the plaintiff was strictly bound by his pleading. At the other end of the spectrum was the view that the judge was to decide what meanings were fairly open and to leave all such meanings to the jury. A middle ground was that a plaintiff could, at trial, rely on any natural or ordinary meaning conveyed by the matter complained of so long as it was less injurious than the pleaded meaning.

12 As noted by their Honours at [56] of the judgment, the authorities on that issue revealed "a tendency to translate into rules what are best seen as considerations going to fair and efficient practice".

What is truth?

13 It is necessary to consider the defence of truth (or "justification", as it is known) in that context. Under the 2005 statute, notwithstanding its provision that the cause of action is the matter complained of (and not the imputation), it remains a critical requirement of fairness that the plaintiff specify the imputations contended for, since they are an element of some of the statutory defences, importantly including the defence of truth. Section 25 of the 2005 Act provides 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. I read that section as referring to the imputations of which the plaintiff complains rather than the imputations (whatever they may be) conveyed by the matter of which the plaintiff complains.

14 Based on my reading of the section, it could form no part of that defence for a defendant to postulate an alternative meaning of the matter complained of and plead that the alternative meaning was substantially true. A plea of truth under the statute to any imputation other than those of which the plaintiff complains would be bad in law.

15 As already noted, however, the 2005 Act also preserves the defences at common law.

16 The issue that arose in Hore-Lacy related to the entitlement of a defendant at common law to defend a defamation action by proving the substantial truth of some meaning other than the meanings pleaded by the plaintiff. The Court unanimously understood the common law to permit a plaintiff to succeed at trial on a meaning other than those contended for in the pleadings. Ormiston JA considered that the jury could go beyond the meanings alleged, "but only so long as the meaning they fix upon is comprehended by or is simply a variant of one of the meanings pleaded or otherwise relied upon" (at [17]). Charles JA considered the requirement to be "that the meaning was not substantially different from and was not more injurious than the meanings pleaded" (at [52]), as did Callaway JA (at [69]). However, the Court was divided as to the implications of that proposition for the defence of justification.

17 The majority held that, similarly, a defendant can defend a defamation action by justifying a meaning different from those contended for by the plaintiff, provided that the defendant is limited to justifying "a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand" (at [53] per Charles JA; Ormiston JA agreeing at [23]).

18 The point on which the Court was split was the content of the defendant's obligation to plead such a case. The defendants had indicated their intention to justify at least one meaning different from those specified by the plaintiff, but submitted that they were not obliged to specify what meaning they contended for which they would seek to prove to be true.

19 The majority held that the defendants were, in the circumstances of that case, required to particularise the meanings they proposed to justify (at [21] per Ormiston JA; Charles JA agreeing at [59]).

20 Callaway JA dissented. His Honour considered that the error of requiring a defendant to plead any additional meaning he would seek to justify lay in "a misconception" concerning the scope of the defence of justification. His Honour said (at [70]):

"If the defendant pleads justification, he or she undertakes to prove that the words were true in any meaning that the jury properly finds. The particulars of justification amount to saying, "Whatever the words may properly be found to mean, these are the facts on which I rely". A defendant willing to shoulder such a heavy burden should not, in addition, be required to suggest meanings to the plaintiff that may not have occurred to the plaintiff's advisers, especially as that may have the effect of increasing the damages ultimately awarded. To say that only those additional meanings may be pleaded on which the plaintiff could succeed as the pleadings stand shows, in my respectful opinion, that the proposed change is unnecessary, even if it were permissible. They are the very meanings that cannot, or should not, take the plaintiff unduly by surprise."

21 It may be noted, in passing, that the risk of increasing damages referred to by his Honour is not a concern revealed in the amended defence in the present case.

22 Callaway JA's analysis of that issue is not inherently inconsistent with the analysis adopted by the majority. As already noted the decision was (in my view) ultimately concerned with the content of the defendants' pleading obligation rather than the scope of the defence of justification at common law. Ormiston JA expressly described the case as one concerned with "certain rules of pleading and practice in defamation actions" (at [23]). Charles JA noted that counsel for the defendants had frankly admitted that "he wished to keep his options open as to the defamatory meaning of the publication which he will seek to justify, until the last possible moment" and had contended that "the plaintiff is not entitled to know what the defence is purporting to justify" (at [60]). In the face of such an admission, the view reached by the majority that further particulars were appropriate is perhaps not surprising.

23 The critical question in the present case is whether the decision in Hore-Lacy recognises a discrete species of the common law defence of justification or whether it is properly confined in its application to matters of pleading and practice in the State of Victoria.

Pleading objected to in the present case

24 Under the heading "Common Law - Hore-Lacy", the defence pleads four "alternative meanings" the justification of which is clearly intended to be relied upon by way of defence.

25 Dr Bateman submits that the form of pleading approved in Victoria by the decision in Hore-Lacy has no place in New South Wales, having regard to the different practice and procedure in this State. He further submits that such a pleading is indeed apt to cause confusion at the hearing and, accordingly, that those paragraphs of the pleading should be struck out.

26 It is convenient to consider the argument by reference to the first matter complained of. Dr Bateman has identified 15 imputations allegedly conveyed by that article (paragraphs 7 and 8 of the Statement of Claim). The Hore-Lacy defence is pleaded in the following terms:

"In further and alternative answer to paragraphs 7 and 8 of the Statement of Claim, the first, third and fifth defendants say as follows:

(a) that the first matter complained of meant and was understood to mean:

(i) The first plaintiff used his wealth to exploit doctors working at Primary Health medical centres by forcing them to work longer hours against their will;

(ii) The first plaintiff, as Managing Director of Primary Health Care, makes unwarranted threatening demands against doctors working at Primary Health Care Centres;

(iii) The first plaintiff, as Managing Director of Primary Health Care, treated doctors who were leaving Primary Health Care unreasonably;

(iv) The first plaintiff is a callous employer.

(the "First Alternative Meanings");

(b) that the First Alternative Meanings were substantially true;

(c) that the First Alternative Meanings are not different in substance from [the meanings relied upon by Dr Bateman]."

27 The pleading follows the same form in respect of each of the other matters complained of and the alternative meanings are in each case the same.

28 As a preliminary point, Dr Bateman submitted that the defence is bad in form because it fails to link any individual Hore-Lacy meaning with any individual imputation relied upon by Dr Bateman. It was submitted that, as presently pleaded, the defence asserts that each alternative meaning does not differ in substance from each other and also does not differ in substance from each of the 15 imputations relied upon by Dr Bateman in respect of the first and second matters complained of or the nine imputations relied upon by him in relation to the third and fourth matters complained of.

29 While there was some uncertainty at the hearing as to whether the defendants had already provided particulars addressing that complaint, Mr Dawson, who appears for the defendants, responded by accepting that, if the Hore-Lacy pleading is to stand, such particulars will have to be provided (T46-47).

30 In my view, that exchange only serves to highlight the force of the remarks of Callaway JA set out above. The defence of justification at common law requires proof that what was published was true in any meaning properly left to the jury. The task contemplated by the parties of marrying imputation with alternative meaning would unnecessarily complicate that relatively simple proposition. It would elevate considerations of procedural fairness and efficiency into a rule (cf Chakravati at [56]).

31 Separately, it was submitted on behalf of Dr Bateman that the pleading was liable to be struck out on the "factual basis" that the contention that the alternative meanings relied upon by the defendants are not different in substance from those relied upon by Dr Bateman (which is pleaded in accordance with the requirements of the decision in Hore-Lacy) is manifestly unarguable. On a cursory comparison of the defendants' Hore-Lacy meanings with the plaintiff's imputations, that submission appears to have some force, but having regard to the concession that the defendants should link each individual Hore-Lacy meaning to the relevant imputation relied upon by Dr Bateman, there is no utility in deciding that issue at this point.

32 The main issue argued on behalf of Dr Bateman was the question of principle whether the approach approved in Hore-Lacy should have any operation in New South Wales.

33 The argument in respect of the Hore-Lacy pleading was helpfully summarised in the written submissions prepared by junior counsel for Dr Bateman, as follows:

"(a) The Hore-Lacy defence is not a substantive defence at all.

(b) It is a pleading technique, developed and maintained in jurisdictions where pleading practices grant latitude to a plaintiff to contend at trial for meanings falling "within" his or her pleaded case, and without formally amending his or her imputations.

(c) As a matter of fairness defendants faced with that possibility (but not otherwise) ought to be permitted to anticipate such possible lesser meanings in advance and to meet them, but if they do so, then they ought to have to re-plead them.

(d) In New South Wales, under the old Act, imputations were the cause of action. However even under the new Act, despite the change in the substantive law, plaintiffs are strictly held to their imputations - if they seek at trial to advance lesser or variant meanings, they are required to amend (if permitted to do so).

(e) It is no answer to this point to note (correctly) that both the statutory provisions of the Act and the common law of defamation apply uniformly throughout Australia. Once the practice in question is seen as just that - a practice - it must take into account other aspects of the prevailing practice in the jurisdiction in which it is applied. Put another way, Hore-Lacy is not wrongly decided; it simply has no application in New South Wales based on current judicial practice."

34 Dr Bateman submitted that the vice to which the Hore-Lacy requirement is directed (the possibility that the tribunal of fact will proceed on a meaning different from that contended for by the plaintiff) does not arise in New South Wales because the prevailing practice in this State already addresses it.

35 In particular, it was noted that the requirement of precision in the pleading of imputations in New South Wales survived the enactment of the 2005 Act. Of particular importance in the present case are the following provisions of the Uniform Civil Procedure Rules (the parties did not address me as to whether those rules are nationally uniform).

36 Rule 14.30(2) requires the plaintiff to specify each imputation on which he or she relies. Rule 14.30(3) prohibits a plaintiff from relying on two or more imputations unless they differ in substance.

37 Rule 14.31(2) requires a defendant pleading the defence of justification, whether under s 25 of the Defamation Act 2005 or at common law, to specify what imputation or imputations the defence is pleaded to.

38 Rule 14.32(2) provides that a defence of justification under the Act or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true. The requirement as to particulars of such a defence is to include "particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation in question was substantially true" (r 15.22(2)).

39 In my view, those rules plainly contemplate that the defence of justification at common law must, in this State, meet the case pleaded by the plaintiff as to the meaning of the matter complained of.

40 The practice in this State in the conduct of defamation trials reflects that proposition. Since they must differ in substance, each pleaded imputation is taken to comprehend all imputations that do not differ in substance from it. On that understanding, the jury is not asked "has the plaintiff been defamed by the matter complained of?" but, as to each imputation complained of by the plaintiff, whether that imputation or any imputation which does not differ in substance from that imputation was conveyed and, if so, whether it was defamatory of the plaintiff. Unless each of those questions is answered "yes", the plaintiff fails and no occasion arises to consider any positive defences.

41 The contention that the decision in Hore-Lacy does not create a specific defence is plainly right, in my view. What the decision establishes is a principle relating to the proper manner of pleading the defence of justification at common law. The critical question is whether that principle is peculiar to the State of Victoria, having regard to the laws and usages of that State, or whether it has national application, particularly in the context of uniform national law.

42 As explained in the judgment of Brennan CJ and McHugh J in Chakravarti, defences are either by way of denial or confession and avoidance. Their Honours explained, on that basis, that a plea of justification to a meaning which the plaintiff has not pleaded is not a good defence. A proper defence will either deny the meaning contended for or confess and avoid it (by proving it to be substantially true). A premise of that proposition is the equally unexceptionable proposition that the case to be defended is that pleaded by the plaintiff. As already noted, that is a premise reflected in the rules of court that apply to defamation actions in this State.

43 The decision in Chakravati acknowledges however that a plaintiff may succeed on an alternative meaning without amending his pleading, provided that it is not substantially different from the pleaded imputations (a qualification which comprehends the proposition that the alternative meaning must not be more serious than the pleaded imputations). But that is because, as I would understand it, success on that basis would fall more or less within the scope of the pleaded case. If it did not, amendment would be necessary.

44 How did those principles give rise to the perception that it could be necessary or appropriate for a defendant to defend the pleaded case by re-pleading the meanings pleaded by the plaintiff so as to plead alternative or "nuance" meanings that are not substantially different from those pleaded? At first blush, as Lord Hoffmann put it in a different context, it is a notion that would be taken seriously only by a lawyer: Berezovsky v Michaels [2000] 1 WLR 1004 at 1023.

45 The explanation probably lies in the fact that, in Hore-Lacy, the defendants had expressly asserted that they would argue that the matter complained of did not mean what the plaintiff said it meant. They would not say what they said it meant but asserted that what it meant was true.

46 Taking a different approach from that taken by Dr Bateman in the present case, the plaintiff pressed to know the alternative meanings contended for. In the circumstances, there was some warrant, for fairness, for acceding to the plaintiff's request.

47 Dr Bateman does not wish to know the alternative meanings contended for by the defendants in the present case. It follows that the defendants are not required to plead them, as was held to be the case in Hore-Lacy.

48 The more difficult question is whether the defendants can be precluded from pleading such alternative meanings. Dr Bateman's argument is, in short, that they are unnecessary and embarrassing. They are unnecessary because Dr Bateman will not, at the trial, ask the judge to leave to the jury any alternative meaning (not substantially different from and not more injurious than the imputations he has pleaded). He is content to be confined to the approach adopted in this jurisdiction of obtaining answers to the question whether each of his imputations or imputations which are not substantially different from those imputations are conveyed and are defamatory.

49 In my view, once it is recognised that there is no occasion for the pleading of alternative meanings in accordance with the decision in Hore-Lacy, it follows that the pleading is embarrassing and should be struck out. As submitted on behalf of Dr Bateman, it remains the common law of Australia that, in the absence of any suggestion that a plaintiff will seek (or be permitted) to depart from his or her pleaded case, a defendant must defend the plaintiff's pleaded case. That is, the defendant must either deny the plaintiff's meanings or confess and avoid them.

50 It follows, in my view, that the decision in Hore-Lacy has no work to do in New South Wales having regard to the law and practice in this State. Mr McClintock, senior counsel for Dr Bateman, asked rhetorically what question would be posed to the jury in respect of the alternative meanings contended for? With great respect to Mr Dawson, no satisfactory answer was given to that question. Upon analysis, having regard to the form of question posed in respect of the plaintiff's meanings (and the consequent constraint on the plaintiff to be bound in substance to those meanings), the defendants' reliance upon alternative meanings makes no sense.

51 That is the firm conclusion I have reached on the strength of my analysis of the principles outlined above. The defendants submitted, however, that I am precluded by authority from giving effect to that conclusion. In particular, it was submitted that the Hore-Lacy defence has been approved by the Court of Appeal of New South Wales in the following authorities: John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [21], [40] and [233] in which McColl JA concluded that Hore-Lacy was not "plainly wrong" and "should be followed in New South Wales"; Ipp and Tobias JJA agreeing; John Fairfax Publications v Zunter [2006] NSWCA 227; Fairfax Media Publications v Kermode (2011) 81 NSWLR 157 at [41]-[59] per McColl JA; Beazley and Giles JJA agreeing. See also John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 and Snedden v Nationwide News Pty Ltd [2011] NSWCA 262.

52 It was further submitted that the defence has been approved by intermediate appellate courts in other states of Australia: Hore-Lacy itself [(2000) 1 VR 667]; Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387.

53 Mr Dawson also drew my attention to my own decision in Hyndes v Nationwide News [2011] NSWSC 633 at [37]-[49] where, he submitted, I recognised the availability of the defence "independently of a pure defence of justification at common law". He submitted that none of those courts has understood the Hore-Lacy defence to be a mere "pleading technique".

54 Dr Bateman submitted that none of those authorities is binding on this issue. The submission was principally directed to the decisions in Hitchcock and Kermode. It was submitted that neither decision decided anything about whether the Hore-Lacy practice could apply consistently with the New South Wales practice that a plaintiff is confined to his pleaded imputations.

55 I confess I have not found this issue easy to determine. Although not binding, there can be little doubt that the decision in Kermode sets out the considered view of probably the most experienced defamation lawyer on the Court of Appeal, McColl JA, whose judgment enjoyed the concurrence of the President and Giles JA. After a careful review of the authorities, her Honour expressly concluded (at [59] and [86]) that a defendant can justify at common law by pleading nuance imputations. However, it may be accepted that those remarks were not specific to the practice in New South Wales, were not part of the ratio of the decision and were made in circumstances where the point now argued had not been raised for the assistance of the Court.

56 In determining the present application, I must also have regard to the mandatory considerations of ss 56 to 58 of the Civil Procedure Act. Those considerations militate strongly in favour of disallowing a form of pleading which I have concluded makes no sense in the context of the practice in this State.

57 In some trepidation, I have concluded that the appropriate course is to strike out the parts of the pleading objected to as having a tendency to cause prejudice, embarrassment or delay in the proceedings.

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Decision last updated: 16 October 2014