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Published online by Cambridge University Press: 01 January 2025
Defamatory publications may carry any number of related or distinct imputations. Complexities arise where a plaintiff selects one or more imputations for complaint, but ignores other imputations carried by the same publication. In England and Wales, the so-called Polly Peck principle permits defendants to plead and justify an imputation other than one complained of by the plaintiff but bearing a common sting with such an imputation. The Polly Peck principle has not been good law in Australia for more than 20 years. The statutory defence of contextual truth in Australia’s uniform defamation laws, however, permits a defendant to plead and justify imputations that are ‘in addition to’ those complained of by the plaintiff and affords a complete defence where, having regard to the substantial truth of those contextual imputations, the imputations complained of by the plaintiff do not further harm the reputation of the plaintiff. As enacted, the defence was infected with a serious drafting error. This article looks at the implications of the reformulation of the contextual truth defence effected by the recent amendments to Australia’s uniform defamation laws. It posits that those implications are considerably broader than have been recognised to date. It argues that the reformulated defence not only corrects the drafting error in the original defence of contextual truth but also resurrects the Polly Peck principle in Australia and substantially neuters 20 years of confused jurisprudence concerning the extent to which a defendant is or should be constrained by the imputations pleaded by the plaintiff.
1. See, eg, Plato Films v Speidel [1961] AC 1090 (HL), 1144 (Lord Denning).
2. Defamation legislation in, for present purposes, materially identical form commenced operation in each State and Territory in 2006: Defamation Act 2005 (NSW, Vic, Qld, SA, WA, Tas); Defamation Act 2006 (NT); Civil Law (Wrongs) Act 2002 (ACT) ch 9. In this article, references to provisions in the uniform defamation legislation are to section numbers in the Defamation Act 2005 (NSW); corresponding provisions appear in the defamation legislation of each other State and Territory.
3. Defamation Act 2005 s 24.
4. Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, 21–2 (Street ACJ).
5. Digby v Financial News Ltd [1907] 1 KB 502 (CA), 507 (Collins MR); Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, [306] (Gillard AJA).
6. eg Dank v Nationwide News Pty Ltd [2016] NSWSC 295.
7. Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 (CA), 120 (Lord Neill).
8. After Polly Peck Holdings plc v Trelford [1986] QB 1000 (CA) (‘Polly Peck’).
9. Ibid 1032 (O’Connor LJ).
10. [1986] 1 WLR 1412 (‘Khashoggi’).
11. Gumina v Williams (No 2) [1990] 3 WAR 351, 364; Kennett v Farmer [1988] VR 991, 1000; Kelly v Special Broadcasting Service [1990] VR 69, 74; Curran v Herald & Weekly Times Ltd (1993) A Def R 51-090; TWT Ltd v Moore (1991) A Def Rep 51–030; Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1, 21–7; Grundmann v Georgeson [1996] Aust Torts Rep 81–396, 63, 513; Hart v Wrenn [1995] 5 NTLR 17, [11].
12. (1998) 193 CLR 519, 529 [11] (‘Chakravarti’).
13. Ibid 527–528 [8], 529 [13].
14. Ibid 542–6 [52]–[60] (Gaudron and Gummow JJ), 578–81 [139] (Kirby J).
15. Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79, 130 [221] (Basten JA); see also 114-15 [164]–[166], 127 [211], 130 [222] (Basten JA), 132 [230] (Macfarlan JA).
16. (2000) 1 VR 667 (‘Hore-Lacy’).
17. Ibid 675 [21] (Ormiston JA), 686–9 [51]–[65] (Charles JA); Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314; West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387; Setka v Abbott (2014) 44 VR 352; Advertiser News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd (2005) 157 ACTR 28, [16]–[17] (Crispin P, Gray and Marshall JJ); John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd (2006) 204 FLR 290; Betfair Ltd v Nason [2006] ACTSC 111, [29] (Gray J).
18. Hore-Lacy (n 16) 675 [21] (Ormiston JA), 686 [52] (Charles JA).
19. Ibid 675–6 [22] (Ormiston JA), 686–7 [53]–[54] (Charles JA).
20. Ibid 686 [52] (Charles JA).
21. Hore-Lacy (n 16); Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632. Cf West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387.
22. See, eg, Matthew Collins, Collins on Defamation (Oxford University Press, 2014), [8.34]–[8.37]; Matthew Collins, ‘Defamation: Drafting Imputations’ (2015) 20(4) Media and Arts Law Review 409.
23. See, eg, Andrew Kenyon, ‘Perfecting Polly Peck: Defences of Truth and Opinion in Australian Defamation Law and Practice’ (2007) 29(4) Sydney Law Review 651; David Rolph, Defamation Law (Thompson Reuters, 2016), [9.120].
24. That is, meanings that an ordinary person would understand to have been conveyed by a publication by way of inference from the words used and generally known facts.
25. See my 2015 article on this subject, Collins (n 22).
26. Templeton v Jones [1984] 1 NZLR 448 (‘Templeton’). In that case, the plaintiff complained of an imputation that he despised Jews. The defendant was not permitted to seek to justify by averring that the publication was true in substance and fact by reference to allegations in the publication that were ‘variations on or illustrations of a theme: namely that the plaintiff indulges in the politics of hatred’: at 452. The publication included passages, for example, to the effect that the plaintiff despised women.
27. Chakravarti (n 12) [11] (Brennnan CJ and McHugh J).
28. Polly Peck (n 8) 1032 (O’Connor LJ).
29. The single meaning rule that operates in defamation law means that, as a matter of legal fiction, each distinct charge conveyed by a statement conveys only one imputation: a statement that is capable as a matter of law of carrying both a guilt imputation and a reasonable grounds imputation cannot, as a matter of fact, carry both. See, eg, Slim v Daily Telegraph Ltd [1968] 2 QB 157 (CA), 171–5; Ten Group Pty Ltd v Cornes (2012) 114 SASR 46, [46]–[50].
30. West Australian Newspapers Ltd v Elliott (2008) 37 WAR 387, [79] (McLure JA). See also [64] (Steytler P).
31. Or in Queensland and Tasmania: Defamation Act 1889 (Qld) ss 4(1), 7; Defamation Act 1957 (Tas) ss 5, 6.
32. Cf Defamation Act 2005 (NSW) s 25.
33. Cf Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd [2019] FCA 1284.
34. See, eg, Charan v Nationwide News Pty Ltd [2019] VSCA 36.
35. Cf Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632.
36. Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 583 [144] (Kirby J).
37. Templeton (n 26).
38. Polly Peck (n 8) 1032.
39. Defamation Act 1974 (NSW) s 16; Defamation Act 1957 (Tas) s 18. The Tasmanian provision was modelled on the Defamation Act 1952 (UK), which provided at s 5 that ‘in an action for defamation in respect of words containing two or more distinct charges against the plaintiff, a defence of justification does not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s reputation, having regard to the truth of the remaining charges’. Only imputations complained of by the plaintiff could found the defence; it was not open to the defendant to rely upon imputations carried by a publication of which the plaintiff had not complained.
40. Defamation Act 1974 (NSW) s 16.
41. The defence has only rarely succeeded. An example is Markisic v Today-Denes [2005] NSWCA 1276, with an appeal dismissed in Markisic v AEA Ethnic Publishers Pty Ltd [2006] NSWCA 378. In that case, the contextual imputations that were proved to be substantially true were that the plaintiff physically abused his wife; committed the criminal offence of kidnapping by removing his daughter from Macedonia to Australia; and removed his daughter from Macedonia to Australia without her mother’s consent. The imputation which was not proved to be true, against which the substantial truth of those imputations was to be weighed, was that the plaintiff dishonestly obtained a passport for his daughter, without the knowledge or consent of her mother, when he well knew that it was necessary to obtain the mother’s consent.
42. Defamation Act 2005 (NSW) s 26.
43. [2010] NSWSC 852.
44. Ibid [26].
45. [2010] NSWSC 852, [56].
46. Besser v Kermode (2011) 81 NSWLR 157. See also Fairfax Digital Australia & NZ Pty Ltd v Kazal (2018) 97 NSWLR 547.
47. (2011) 81 NSWLR 157, [82].
48. Matthew Collins, ‘Five years on: a report card on Australia’s national scheme defamation laws’ (2011) 16 Media and Arts Law Review 317, 329.
49. Council of Attorneys-General Review of the Model Defamation Provisions, Background Paper — Model Defamation Amendment Provisions 2020 (Consultation Draft), recommendation 9 (6).
50. Ibid 19.
51. Defamation Amendment Bill 2020 (NSW), Explanatory note, 2, [(f)]; see also 8: ‘Schedule 1[26] reformulates the defence of contextual truth to make it clear that, in order to establish the defence, a defendant may plead back substantially true imputations originally pleaded by the plaintiff’.
52. New South Wales, Parliamentary Debates, Legislative Assembly, 29 July 2020, 2870 (Mark Speakman, NSW Attorney-General).
53. (2015) 91 NSWLR 341 (‘Zeccola’).
54. Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227, [28].
55. Ibid [83]–[84].
56. Minus v Harbour Radio Pty Ltd [2017] NSWSC 191, [18]. See also Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223 [18] (McCallum J): ‘it is now established that it is open to a defendant to plead, as a contextual imputation, any imputation that differs in substance from the plaintiff’s imputations and that any temptation to impose any larger requirement (in the interests of simplicity) must be resisted’. See also Collier v Country Women’s Association of NSW [2017] NSWSC 1573, [338] (Adamson J): ‘A general imputation can qualify as a contextual imputation where the imputations pleaded by the plaintiff are specific’.
57. If, however, there is room for doubt as to whether a pleaded contextual imputation differs in substance from an imputation of which a plaintiff complains, the defence should be allowed to go to trial, with the tribunal of fact resolving the question. It is thus possible (outside New South Wales) for a contextual truth defence and a defence of justification in accordance with the Hore-Lacy line of authorities to go to the tribunal of fact on the same contextual or nuance imputation, even though it is not possible for both defences to succeed: see, eg, Setka v Abbott (2014) 44 VR 352.
58. Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2012] SASC 58, [50]; Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228, [20]; cf Fenn v Australian Broadcasting Corp [2018] VSCA 166, [96]–[105] where Ashley JA, with whom McLeish and Niall JJA agreed, assumed this to be the correct approach consistent with the agreed position of the parties.
59. The task for the tribunal of fact is not to ‘compare imputation with imputation but to consider the matters proved by the evidence and to consider whether, in the circumstances established, any imputation complained of by the plaintiff does not further injure his reputation’: Sharp v Harbour Radio Pty Ltd (No 2) (n 62) [25] (McCallum J), citing John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 521, [4]–[6].