FEDERAL COURT OF AUSTRALIA

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125

ORDERS

THE COURT ORDERS THAT:

1.    The applicants have leave to appeal the orders of the primary judge made 31 August 2018.

2.    The appeal be dismissed.

3.    The applicants pay the respondent’s costs of the application and of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules (Cth) 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    Before the Court is an application for leave to appeal and, if leave is given, an appeal from interlocutory orders of the primary judge made 31 August 2018 in a defamation proceeding. By the orders, parts of the respondents’ defence in the proceeding were struck out, and an application for leave to file an amended defence was dismissed.

2    To avoid confusion, we shall refer to the parties by reference to their designation in the substantive proceeding, that is, as the applicant and the respondents. We shall also from time to time refer to claimants generally in defamation proceedings as plaintiffs, which is the term used in the Defamation Act 2005 (NSW) (Act) and the corresponding provisions in the defamation legislation of the other states and territories. Because of the uniform nature of that legislation, we shall refer to the New South Wales Act. In referring to the respondents’ pleadings, we shall refer principally to the proposed amended defence, and references to paragraphs of the respondents’ particulars shall be to the paragraph numbers appearing in that document.

3    Caution should be exercised by an appellate court in reviewing interlocutory decisions on matters of practice and procedure, including the adequacy of pleadings: see the observations of Lee J in the Full Court in Nationwide News Pty Limited v Rush [2018] FCAFC 70, and his Honour’s reference at [4] to In re the Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at p 323 (Jordan CJ). These considerations are relevant not only to whether leave to appeal should be given, but also to any appeal itself. On any appeal from interlocutory orders, it is necessary for an appellant to demonstrate error in the orders under challenge, and not merely the reasons for decision: King v Lintrose Nominees Pty Ltd [2001] VSCA 140; 4 VR 619 at [22] (Callaway JA). In addition, the extent of injustice flowing from interlocutory orders that are challenged will generally be a relevant and necessary consideration: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 (Gibbs CJ, Aickin, Wilson and Brennan JJ). In this case, the potential extent of injustice is to be evaluated on the footing that the effect of the primary judge’s orders was to shut the respondents out from pursuing defences of justification at trial that they submitted were arguable: see Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [14] (McColl JA, Bathurst CJ and Gleeson JA agreeing), citing Berezovsky v Forbes Inc [2001] EMLR 45 at [16] (Sedley LJ). However, any injustice of this type may not necessarily be irremediable, because at least in some circumstances an appeal may be brought from final orders at trial on the ground of some error in an interlocutory decision that affected the final result: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478 at [4]-[8] (Gaudron, McHugh and Hayne JJ).

Background

4    The applicant has commenced a proceeding in the Court claiming damages for defamation in respect of the publication of two matters. The first matter is a “Four Corners” television program that was published on television channels of the first respondent (ABC), initially on 5 June 2017. The second matter is an internet article that was published on the ABC’s website, which included video of the Four Corners program, and which was available for downloading from 5 June 2017. A transcript of the Four Corners program is attached to the primary judge’s reasons. The applicant relies on publication in each State and Territory of Australia. He alleges that the two matters were promoted and published as a joint investigation between the ABC and the second respondent (Fairfax) and that the third respondent (Mr McKenzie) presented the two matters. The ABC and Mr McKenzie admit publication of the two matters, but Fairfax denies publication.

5    By his amended statement of claim the applicant alleges that each of the two matters in its natural and ordinary meaning conveyed the following six imputations –

(a)    The Applicant betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf.

(b)    [Deleted]

(c)    [Deleted]

(d)    The Applicant is a member of the Chinese Communist Party and of an advisory group to that party the People’s Political Consultative Conference (CPCCC) and, as such, carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department.

(e)    The Applicant donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the Chinese Communist Party.

(f)    The Applicant paid Sheri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in infiltrating the Australian government on behalf of the Chinese Communist Party.

(g)    The Applicant paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe.

(h)    The Applicant was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.

6    The applicant also alleges that each of the two matters conveyed the following true innuendo based upon extrinsic facts, namely the terms of the pledge of loyalty taken by all persons upon becoming Australian citizens –

The applicant broke the pledge of loyalty he took to Australia on becoming an Australian citizen by secretly advancing the interests of a foreign power at the expense of the interests of Australia.

7    The primary judge recorded at [2] that he had found that the applicant’s imputations were capable of being conveyed during the course of oral argument on 18 August 2017. In this application for leave to appeal interlocutory orders, there was no challenge to the capacity of the Four Corners program to convey the imputations alleged by the applicant: whether any of the imputations alleged by the applicant was conveyed is a matter for trial.

8    By their defence, the respondents denied that any of the imputations or the true innuendo alleged by the applicant was reasonably capable of being conveyed, or was in fact conveyed by the matters. In the alternative, the respondents alleged three defences: (i) truth under s 25 of the Act; (ii) truth at common law; and (iii) statutory qualified privilege under s 30 of the Act.

9    By their truth defences the respondents alleged that each of the applicant’s imputations was substantially true. In addition, the respondents alleged seven variant imputations, and alleged that the variant imputations were substantially true. Each variant imputation corresponded to one of the applicant’s imputations, prefaced by the words, “There are reasonable grounds to believe that…”. The variant imputations that corresponded to the applicant’s imputations based upon the natural and ordinary meaning of the matters were as follows –

Variant Imputation 5(a): There are reasonable grounds to believe that the Applicant betrayed his country, Australia in order to serve the interests of a foreign power, China, and the Chinese Communist Party by engaging in espionage on their behalf.

Variant Imputation 5(d): There are reasonable grounds to believe that the Applicant is a member of the People’s Political Consultative Conference (CPCCC), an advisory group to the Chinese Communist Party, and which carries out the work of a secret lobbying arm of the Chinese Communist Party, the United Front Work Department.

Variant Imputation 5(e): There are reasonable grounds to believe that the Applicant donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the People’s Republic of China, the Chinese government and the Chinese Communist Party.

Variant Imputation 5(f): There are reasonable grounds to believe that the Applicant paid Sherri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in advancing the interests of the Chinese Communist Party in his dealings with the Australian government.

Variant Imputation 5(g): There are reasonable grounds to believe that the Applicant paid a $200,000 bribe to the President of the United Nations, John Ashe.

Variant Imputation 5(h): There are reasonable grounds to believe that the Applicant was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.

10    The variant imputation that corresponded to the applicant’s true innuendo was as follows –

Variant Imputation 7(a): There are reasonable grounds to believe that the Applicant broke the pledge of loyalty he took to Australia on becoming an Australian citizen by secretly advancing the interests of a foreign power at the expense of the interests of Australia.

11    Particulars of the truth defences were set out in schedules to the defence and the proposed amended defence.

12    The applicant made an interlocutory application to have the truth defences struck out. That application was heard together with an oral application by the respondents to file an amended defence which proposed amendments to the particulars supporting the truth defences. By orders made 31 August 2018 the primary judge struck out the truth defences and their particulars, and dismissed the application for leave to file an amended defence. From those orders the respondents seek leave to appeal.

13    There were two grounds on which the truth defences were struck out and on which the application to file an amended defence was dismissed. First, the primary judge held that each of the so-called variant imputations was not a permissible variant of the applicant’s imputations, and that there was no reasonable basis to hold that proof of the truth of the variant imputations would be a defence to any of the applicant’s imputations. Second, the particulars of truth in the schedule to the defence and the proposed amended defence were, in a number of respects, imprecise, embarrassing, conclusory, hearsay, did not provide a basis for the inferences that were alleged to arise from the facts alleged in the particulars, did not provide proper particulars of allegations of knowledge, and otherwise failed to comply with the rules of pleading in r 16.41 and r 16.43 of the Federal Court Rules 2011 (Cth) and the principles of pleading essayed in the authorities. The primary judge held that the particulars could not reasonably support the respondents’ plea of truth to the applicant’s imputations.

14    The application for leave to appeal relied on a draft notice of appeal containing 14 grounds, which fell into two categories. Proposed grounds 1 to 4 challenged the primary judge’s decision to strike out the respondents’ so-called variant imputations, and proposed grounds 5 to 14 challenged the primary judge’s conclusions supporting the orders striking out the respondents’ particulars of truth. It is convenient to consider the issues raised on the application in two parts, reflecting the division in the draft notice of appeal.

The variant imputations – proposed grounds 1 to 4

15    The publication of a matter, such as a feature television program or newspaper article, may convey a range of different imputations about a person. Some imputations might be defamatory, while others may not. Some imputations might rest upon matter which is fair comment, or honest opinion. Some imputations might be substantially true. General principles of pleading now invariably require that a defendant to a defamation proceeding is entitled to know what defamatory imputations are relied upon by a plaintiff: Hadzel v De Waldorf (1970) 16 FLR 174 at p 179; Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at p 167; DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] QB 21 at p 26; Kerney v Optimus Holdings Pty Ltd [1976] VR 399; Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; 193 CLR 519 (Chakravarti) at [16], [52]; David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 (Hore-Lacy) at [18]; cf, Lewis v Daily Telegraph [1964] AC 234 at p 265, 273; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at p 168-9, 176, 177 and 185-6. In some jurisdictions, the rules of procedure require that a statement of claim in a defamation proceeding specify the imputations that are relied upon: Uniform Civil Procedure Rules 2005 (NSW), r 14.30(2)(a); Supreme Court Rules 2000 (Tas), r 263B(2)(a). The requirement in the New South Wales Uniform Civil Procedure Rules that an imputation be specified has its origins in the practice rules that existed when the now-repealed Defamation Act 1974 (NSW) was in force, where s 9(2) of that Act provided for a cause of action in respect of each imputation: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at p 136-7; Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154; 90 NSWLR 79 at [150]. Now, s 8 of the Defamation Act 2005 provides that a person has a single cause of action in relation to the publication of a defamatory matter even if more than one defamatory imputation is carried, which is consistent with the common law position in relation to imputations based upon the natural and ordinary meaning of words. Nonetheless, the statutory defences of truth and contextual truth under s 25 and s 26 of the Defamation Act respond to imputations alleged by a plaintiff, and afford a further reason as to why general rules and principles of pleading require that a plaintiff should plead imputations.

16    Generally speaking, it is open to a plaintiff in a defamation proceeding to choose upon what imputations he or she relies: Templeton v Jones [1984] 1 NZLR 448; Cruise v Express Newspapers plc [1999] QB 931; Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [22]. This is an area of choice which, within proper limits, is available to a plaintiff: John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 (Mahoney JA). There is a statement to the contrary in the reasons of Seaman J in Gumina v Williams (No 2) (1990) 3 WAR 351 (Gumina v Williams (No 2)) at p 364. There, Seaman J, with whom Malcolm CJ and Pidgeon J agreed, stated that a tribunal of fact may still find for a plaintiff, even though the plaintiff does not make out the meanings for which the plaintiff contends, and rejected a submission that a plaintiff may confine the issues in the proceeding by the selection of meanings so as to prevent the defendant pleading other meanings and justifying them. In our view, these statements in Gumina v Williams (No 2) do not reflect modern pleading and trial practice in defamation proceedings. Seaman J relied on the decision of the Full Court of the Supreme Court of Victoria in Barclay v Cox [1968] VR 664 at p 666 for the proposition that a jury should not be asked whether the words were understood to have the meanings alleged by the plaintiff. That is no longer the practice in Victoria. As Beach JA noted in Setka v Abbott (No 2) [2013] VSC 726 at [34], under s 22 of the Defamation Act 2005 (Vic) damages are now a matter for the judge, and in order to assess damages the judge must know what imputations have been found by the jury to have been conveyed. For this reason also, the statement by Ormiston JA in Hore-Lacy at [2] that neither judge nor jury are “confined to the meanings asserted by the parties”, is no longer correct in the broad terms stated, but is subject to the current practice in Victoria that meanings are now left to juries, and otherwise to the limitations referred to by Charles JA in Hore-Lacy at [52], which are derived principally from the judgments of Brennan CJ and McHugh J, and Gaudron and Gummow JJ, in Chakravarti.

17    Under modern pleading practice, the plaintiff’s case will be shaped by the meanings alleged in the statement of claim, which will generally confine the questions of meaning for determination: Chakravarti at [17]-[21]. In Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82; 91 SASR 206 (Advertiser-News) at [76] Doyle CJ (with whom Vanstone J and White J agreed) stated the position as follows –

Once the plaintiff pleads a meaning on which the plaintiff relies, that pleading will identify the meaning of which the plaintiff complains, and delimit the boundaries within which the action is to be fought. Although it is the publication of the defamatory material that is the tort, the function of the pleading is to identify the field of inquiry at the trial.

18    The above statement was cited with approval by the Victorian Court of Appeal in Setka v Abbott [2014] VSCA 287; 44 VR 352 at [47]. The field of inquiry at trial to which Doyle CJ referred in Advertiser-News, at least as far as the plaintiff’s meanings are concerned, may extend to meanings that are comprehended in, or are less injurious than, or are a mere shade or nuance of the pleaded meaning: Chakravarti at [21]-[22], [60], [139] at points 3 and 4; Advertiser-News at [77]. Whether, and to what extent, a plaintiff may be permitted at trial to depart from the pleaded meanings will be resolved by considerations of fairness and practical justice. Even in relation to imputations pleaded in support of causes of action arising under s 9(2) of the Defamation Act 1974 (NSW) there was some support for a degree of flexibility. In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at p 771D the New South Wales Court of Appeal held that upon a proper construction of the rules, an imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance. See also, Crampton v Nugawela (1996) 41 NSWLR 176 at p 183C-D (Mahoney A-CJ).

19    The significance of words is their meaning. Until meaning is determined, it is not possible to evaluate whether a publication is justified, or whether other defences such as honest opinion, or common law comment are established. The defence of justification at common law requires that the publisher establish that the words are true in substance and in fact, which involves demonstrating that the sting, or stings conveyed by the matter are made out: Sutherland v Stopes [1925] AC 47 at p 79 (Lord Shaw). Immaterial aspects of the matter that make no difference to the quality of the imputation need not be justified: Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4 at p 20 (Street ACJ); Sutherland v Stopes at p 79; Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 at p 420-421 (Dixon J). And because the defence of justification is a defence of confession and avoidance, in order to succeed it must respond to the meanings found by the court: Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 at [83] (noting that the observations there were made in relation to the common law defence of comment). The statutory defence of truth under s 25 of the Defamation Act makes this explicit, because it requires that the defendant prove that the imputations carried by the matter of which the plaintiff complains are substantially true. Likewise, the pleading of a common law defence of justification should respond to the case alleged by the plaintiff: Chakravarti at [8], [13]; Fenn v Australian Broadcasting Corporation [2018] VSCA 166 at [48].

20    In Hore-Lacy, the Victorian Court of Appeal sanctioned the practice of defendants pleading justification to alternate meanings. However, consistently with what the Court considered was the majority view in Chakravarti, it held that a defendant was permitted to justify an alternate meaning only if it is comprehended by, or it is a variant of one of the meanings relied on by the plaintiff: Ormiston JA at [17]. That is because the questions whether, and to what extent a defendant may justify meanings different from those alleged by a plaintiff are necessarily bound up with the extent to which a plaintiff may be allowed at trial to depart from specific meanings alleged in the statement of claim: Charles JA at [46], with whom Ormiston JA at [23] agreed. Charles JA stated at [52] that it would seem that –

… all members of the court in Chakravarti would take the view that a plaintiff could, after pleading specific meanings by way of false innuendo, succeed at trial on a meaning other than the meanings pleaded, provided that the meaning was not substantially different from and was not more injurious than the meanings pleaded, and that the defendant was not in all the circumstances unfairly prejudiced by allowing that meaning to go to the jury.

21    At [60], Charles JA described the limitation as being that a defendant is limited to justifying a meaning on which the plaintiff might obtain a verdict. A justification defence that complies with this limitation will be a plea in respect of the imputations pleaded by a plaintiff: cf, Chakravarti at [8] (Brennan CJ and McHugh J). In formulating the principles in this way, the Court in Hore-Lacy necessarily rejected the broader approach in the English cases, represented by Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at p 1032, and the earlier case of Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 which it applied, and which approach was so strongly criticised by Brennan CJ and McHugh J in Chakravarti at [8]-[13].

22    In Setka v Abbott, the Victorian Court of Appeal confirmed that Hore-Lacy was correctly decided, and held that it continued to apply to the pleading of common law justification defences in proceedings subject to the uniform Defamation Acts. It is apt to mislead to describe a pleading in a form sanctioned by Hore-Lacy as a common law defence. Hore-Lacy sanctions only a form of pleading of the common law defence of justification. In this respect, we agree with the separate views of Whelan JA in Setka v Abbott at [310]-[312] that there is no separate Hore-Lacy defence at common law, and that the defence is one of justification. See also, Fairfax Media Publications Pty Ltd v Bateman at [147], [198] (Basten JA), and at [231]-[232] (McFarlane JA), and see contra, Setka v Abbott at [116], [121] (Warren CJ and Ashley JA). The foundation for pleading justification of permissible variant imputations is statute, namely the rules of pleading which in this Court relevantly include rr 16.02, 16.08, and 16.41 of the Federal Court Rules. Those rules are calculated to avoid trial by ambush, and to promote the precise identification of the issues that are before the Court, and as such, may require a respondent to plead any variant of a meaning alleged by an applicant that the respondent proposes to justify at trial: Hore-Lacy at [58] (Charles JA). However, whatever the shape of a defence of justification as permissibly pleaded, in order that a justification defence succeed at trial in respect of the publication of a matter, the common law requires that a respondent establish the substantial truth of all the meanings that are fairly within the imputations that are the subject of the applicant’s claim and which are found by the Court to have been conveyed and to have been defamatory of the applicant.

23    In this case, the parties accepted that it was open to a respondent in this Court to plead a common law justification defence consistently with the principles essayed in Hore-Lacy. The dispute, however, turned on whether in applying those principles the respondents’ variant imputations of the existence of reasonable grounds for belief were permissible variants of, and therefore responsive to the applicant’s pleaded meanings.

24    The primary judge held that the respondents’ imputations of reasonable grounds for belief were not permissible variants of the applicant’s meanings. That was because his Honour considered that there was a substantive distinction between a suspicion, however well-founded, and a fact. The primary judge relied on the speeches of Lord Devlin and Lord Reid in Lewis v Daily Telegraph at p 284 and p 260, the reasons for judgment of Mason J in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at p 302-303, and the reasons of the Court in George v Rockett (1990) 170 CLR 104 at p 112 to demonstrate the distinction. The respondents had relied on a decision of the Western Australian Court of Appeal in West Australian Newspapers v Elliott [2008] WASCA 172; 37 WAR 387 to support their submission that an imputation that there were reasonable grounds to believe a fact was a permissible variant of an imputation alleging the fact. The primary judge held that West Australian Newspapers v Elliott was plainly wrong, and inconsistent with Mirror Newspapers Ltd v Harrison, and George v Rockett.

25    In this Court, the respondents submitted that the primary judge erred in his analysis in a number of respects. Central to the respondents’ case was a submission that there is no bright line distinguishing an allegation of guilt from an allegation that there are reasonable grounds to support a belief of guilt, and that publications will very often be capable simultaneously of conveying both allegations. Senior counsel for the respondents argued that the primary judge’s decision was inconsistent with the reasons of three of the five judges in Chakravarti, and was directly inconsistent with the decision of the Western Australian Court of Appeal in West Australian Newspapers v Elliott.

26    As to gradations of meaning, the respondents referred to a passage in the speech of Lord Devlin in Lewis v Daily Telegraph at p 285-286 –

Just as a bare statement of suspicion may convey the impression that there are grounds for belief in guilt, so a bare statement of the fact of an inquiry may convey the impression that there are grounds for suspicion. I do not say that in this case it does; but I think that the words in their context and in the circumstances of publication are capable of conveying that impression. But can they convey an impression of guilt? Let it be supposed, first, that a statement that there is an inquiry conveys an impression of suspicion; and, secondly, that a statement of suspicion conveys an impression of guilt. It does not follow from these two suppositions that a statement that there is an inquiry conveys an impression of guilt. For that, two fences have to be taken instead of one. While, as I have said, I am prepared to accept that the jury could take the first, I do not think that in a case like the present, where there is only the bare statement that a police inquiry is being made, it could take the second in the same stride. If the ordinary sensible man was capable of thinking that where-ever there was a police inquiry there was guilt, it would be almost impossible to give accurate information about anything: but in my opinion he is not.

27    The respondents submitted that in this passage Lord Devlin differentiated between what has become known in the English authorities as a “level 1” meaning (guilt); a “level 2” meaning (reasonable grounds for belief in guilt); and a “level 3” meaning (grounds for suspicion, or grounds for investigation): Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 at [45]; Flood v Times Newspapers Ltd [2012] UKSC 11; 2 AC 273 at [8]. Counsel submitted that the authorities support the proposition that Lord Devlin’s speech in Lewis v Daily Telegraph should be understood so that a “level 1” meaning is often capable of conveying a “level 2” meaning, and that a “level 2” meaning is often capable of conveying a “level 1” meaning, but a “level 1” meaning is not capable of conveying a “level 3” meaning because it involves jumping two fences. Counsel submitted that the speech of Lord Devlin is to be understood as saying that while there is a difference between guilt, and reasonable grounds for a belief in guilt, an imputation of one can very often be understood to convey the other. Counsel submitted that if a plaintiff pleaded a “level 1” meaning, but a trial court found only that a “level 2” meaning was conveyed, then the plaintiff would nonetheless be entitled to a verdict on the “level 2” meaning, and that this was supported by the reasons for judgment of Mason J in Mirror Newspapers Ltd v Harrison at p 300-301, by the passage from Lord Devlin’s speech in Lewis v Daily Telegraph set out above, by Chakravarti at [60] (Gaudron and Gummow JJ), and by West Australian Newspapers v Elliott, which it shall be necessary to address. At the heart of the respondents’ submissions was the proposition that in the present case the applicant could succeed at trial on “level 2” meanings as being comprehended within his “level 1” meanings, and that therefore the justification defences alleging that “there are reasonable grounds to believe” the subject-matter of the applicant’s imputations raised valid defences.

28    In Lewis v Daily Telegraph at p 286 Lord Devlin gave examples of different forms of words, and hypothesised that a statement that there is an inquiry conveys an impression of suspicion, and that a statement of suspicion conveys an impression of guilt, and stated that it does not follow that a statement that there is an inquiry conveys an impression of guilt. Lord Devlin amplified this last proposition, and stated that in a case like that before the House, where there was only a bare statement that a police inquiry was being made, the jury could not take the leap and find that the bare statement of an inquiry conveyed the impression of guilt. So much is not controversial: Mirror Newspapers Ltd v Harrison at p 300-301 (Mason J). But meaning is so much dependent upon the words used and context, and whether a matter is capable of conveying imputations of both suspicion and guilt, or grades of meaning in-between, including whether the suspicion imputation is one of strong suspicion, reasonable suspicion, or mere suspicion, or whether it is objective or subjective, active or passive, will depend upon the terms and the context of the matter: see John Fairfax & Sons Ltd v Foord at p 714-715 (Mahoney JA), p 719, 723-725, 727-728 (Clarke JA, Hope JA agreeing); Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10 at [26]-[29] (Levine J); Sands v Channel Seven Adelaide Pty Ltd [2005] SASC 182; 91 SASR 466 at [41] (White J, at first instance); on appeal, Channel Seven Adelaide Pty Ltd v S, DJ [2006] SASC 10; 94 SASR 296 at [17]-[24] (Debelle J, Anderson J agreeing); Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [121]-[122] (Gray J, with whom Nyland J and Vanstone J agreed). In our opinion, it is undesirable to seek to identify limited distinct categories of imputations, and to advance this as a taxonomy into which all imputations are to be placed. We respectfully agree with the following statement of White J at first instance in Sands v Channel Seven Adelaide Pty Ltd at [45] –

My present view is that the passage from Chase and the other English authorities should not be regarded as stating exhaustively all the possible imputations and shades of meaning which a statement of the existence of a suspicion may convey. I consider it desirable to avoid converting classification developed in some cases into strict categories. …

29    The decision of White J was affirmed on appeal in Channel Seven Adelaide Pty Ltd v S, DJ. In Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [120] Gray J (with whom Nyland J and Vanstone J agreed) stated that the three-level categorisation of meanings, even if rigidly applied in the United Kingdom, has not been so embraced by the Australian courts. Even in the United Kingdom, caution has been expressed in relation to the rigid categorisation of degrees of meaning in the way suggested by the respondents. In Fallon v MGN Ltd [2006] EWHC 783 at [1], Eady J referred to the tripartite scale as being somewhat artificial, because words are capable of bearing an infinite variety of meanings and implications and, correspondingly, a range of levels of gravity which do not necessarily lend themselves to classification in one or other of the three categories. Eady J thought, however, that the categorisation was useful primarily because it represented a convenient way of identifying what should be pleaded if it is sought to advance a defence of justification to some defamatory allegation falling short of a direct attribution of guilt, and noting that it appeared to have had the imprimatur of Lord Devlin in Lewis v Daily Telegraph. The Supreme Court of New Zealand in APN New Zealand Ltd v Simunovich Fisheries Ltd [2009] NZSC 93; [2010] 1 NZLR 315 at [16] also cautioned against the tripartite classification being allowed to dictate meaning –

This tripartite classification provides a convenient general description of different forms of meaning. Care must, however, be taken lest classification be allowed to dictate meaning. The crucial first step is to identify the precise meaning of the words in issue, rather than attempting to force that meaning into one of the three “tiers”. Meanings in different tiers may shade into each other, rather than always falling neatly into one compartment or another. The precise meaning of the words in question is crucial to whether truth or honest opinion defences are made out. Furthermore, it does not necessarily follow that a “tier one” meaning is always more serious than a “tier two” meaning, or a “tier two” meaning more serious than a “tier three” meaning. Everything depends on the precise words used, and the context in which they are used.

30    As we have explained, the rationale behind permitting a respondent to plead and rely upon variant meanings in accordance with the principles of pleading essayed in Hore-Lacy, is that a respondent should be permitted to plead a defence of justification to a meaning on which the applicant is entitled to judgment at trial. Further, where a respondent proposes at trial to justify such meaning, that course should be the subject of a pleading. To state the principles in these terms frames one of the issues in this case: would the applicant be entitled to judgment at trial if the Court rejected the applicant’s imputations, but found that one of the lesser meanings alleged by the respondents was conveyed, namely that “there were reasonable grounds to believe” the material facts the subject of the corresponding imputation alleged by the applicant? That question is to be answered by an examination of the parties’ pleadings against considerations of fairness and practical justice.

31    We do not accept the respondents’ submission that the applicant in this case will be entitled to succeed at trial on the respondents’ imputations. The applicant has not pleaded those imputations, they are not bound within the applicant’s imputations, and they will not be in issue at trial. A convenient starting point is to recognise that the Court at trial is required to determine the meaning which the two matters conveyed to an audience or readership composed of ordinary decent persons, being reasonable people of ordinary intelligence, experience and education who bring to the question their general knowledge and experience of worldly affairs: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at [4]-[6], [39]-[40]; Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 at [54]. In the case of the true innuendo alleged by the applicant, the question of meaning remains an objective one, even though there are statements in the authorities that evidence from persons with knowledge of the extrinsic facts is admissible: Hough v London Express Newspaper Ltd [1940] 2 KB 507 at p 513-514 (Slesser LJ) and p 515 (Goddard LJ). The requirement to prove, whether by direct evidence or inference, knowledge amongst some recipients of the publication of the extrinsic facts goes to proof of publication of the innuendo: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at p 89 (Jordan CJ). In the case of a true innuendo the question of defamatory meaning is concerned with the objective understanding of the hypothetical ordinary reasonable reader or audience member with knowledge of the extrinsic facts: Duncan and Neill on Defamation (Butterworths, 1983) at [4.18(b)].

32    Upon the hypothesis that meaning is to be determined objectively, the audience is taken to have a uniform view of meaning. Although different people might in fact have understood the meanings conveyed by a matter in different ways, the Court must arrive at a single objective meaning: Slim v Daily Telegraph Ltd at p 171-175 (Diplock LJ); Hockey v Fairfax Media [2015] FCA 652; 237 FCR 33 at [73] (White J); Ten Group Pty Ltd v Cornes [2012] SASCFC 99; 114 SASR 46 at [34], [43]-[50] (Kourakis CJ), [192]-[197] (Blue J); Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 71-72 (Lord Bridge). Using the potential different meanings identified by Lord Devlin in Lewis v Daily Telegraph Ltd to illustrate the point, if an applicant alleged that a matter imputed guilt, and the respondent contended that the matter went no further than to impute reason to investigate, there would likely be an issue at trial as to the meaning of the matter. But it would not be sufficient for the applicant to demonstrate that some members of the audience, or even a considerable proportion of the audience understood the matter to impute guilt, for that is not the issue. The issue at trial is the single meaning that an objective audience composed of ordinary decent persons should have collectively understood the matter to bear.

33    What we have said above in relation to a single meaning should not be understood as saying that an applicant is precluded from alleging more than one imputation. An applicant may allege that a published matter conveys two or more distinct defamatory imputations, and may allege imputations in the alternative (Federal Court Rules, r 16.06), and subject to any defences, will succeed if one or more of those imputations is found to be conveyed. But in evaluating whether any individual imputation is conveyed, an applicant is precluded from succeeding merely because a substantial number or proportion of persons in the audience would have understood the words to have that defamatory meaning: Ten Group Pty Ltd v Cornes at [193] (Blue J).

34    As we have stated, the respondents relied upon Chakravarti, and West Australian Newspapers v Elliott to support their submission that their variant imputations of “reasonable grounds to believe” were permissible. In order to evaluate the respondents’ submissions, and the decision of the Western Australian Court of Appeal in West Australian Newspapers v Elliott, it is necessary to identify what was decided in Chakravarti. In order to do this, it is necessary to have regard to the reasons for judgment of the members of the Full Court in Chakravarti v Advertiser Newspapers Ltd (1996) 65 SASR 527, as well as the reasons of the members of the High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519.

35    The relevant facts in Chakravarti were as follows. The plaintiff sued on two articles that were published by the defendant: 15 July 1992; and 18 July 1992. The first article concerned evidence that was given before a Royal Commission into the near-collapse of the State Bank of South Australia, and referred to the plaintiff by name. In relation to the first article, the plaintiff alleged that the following two imputations were conveyed (CLR at [47]) –

(a)    The plaintiff was involved in criminal or civil misconduct, whilst an executive of Beneficial Finance, in respect of loans from Beneficial Finance to himself.

(b)    The plaintiff’s conduct in receiving loans direct to himself as an executive of Beneficial Finance which loans were in excess of his entitlement was such as to render him not a fit and proper person to be or remain a Beneficial Finance executive or to be or remain in any other position of trust.

36    In its defence, the defendant alleged that if the first article was defamatory of the plaintiff, it meant no more than that the plaintiff was suspected of being involved in criminal or civil misconduct in respect of loans, and that a Mr Simmons had told the Premier of South Australia that he suspected the plaintiff and three others may have been guilty of criminal or civil misconduct (SASR at p 539). The plaintiff, by his reply, denied that this was the natural and ordinary meaning of the words used, but alleged that if it was, the words used “carried the further imputation that the suspicion was well founded” (SASR at p 539). There is nothing in any of the reports of Chakravarti to indicate that the defendant’s imputation of suspicion was challenged by the plaintiff in the interlocutory stages.

37    At trial, the trial judge (Cox J) found that the first article was defamatory of the plaintiff, but without reference to the specific imputations alleged by the plaintiff. The trial judge’s failure to make findings as to which if any of the plaintiff’s imputations arose was the subject of an application in the South Australian Full Court for leave to amend the notice of appeal (SASR at p 558).

38    On appeal to the South Australian Full Court, Doyle CJ held that the first article conveyed two of four imputations that had been identified by the trial judge, and which Doyle CJ held to be within the scope of the plaintiff’s pleadings: SASR at p 542-543. Doyle CJ understood that the defendant had not sought to justify the two imputations that he held were conveyed, but had sought to justify an imputation of suspicion based on reasonable cause which his Honour held it had no reason to justify: SASR at p 545.

39    Perry J held that the plaintiff’s claim based on the first article should have been dismissed because the imputations alleged by the plaintiff could not fairly be attributed to the article: SASR at p 555. Further, Perry J held that the plaintiff could not rely on the defendant’s imputation of suspicion because it would be unfair to the defendant (SASR at p 556) –

As to par 4(a) of the statement of claim, the respondent clearly advanced a case based on an inference of actual “criminal or civil misconduct”, whereas the article imputed no more than a question or suspicion of such conduct. While it is true that there are cases where a meaning not pleaded but which is of the same kind but less injurious than the pleaded meaning may properly be found in favour of a plaintiff, that course should not be followed where to do so would be unfair to the defendant. In my opinion, an allegation that the respondent was actually involved in criminal or civil misconduct is so different from an allegation of mere suspicion that it would be unfair to the appellant to find for the respondent on such a basis.

It is true that the appellant pleaded in its defence that the words meant and were understood to mean only a suspicion of criminal or civil misconduct, but the respondent was not entitled to rely on an allegation in the defence as an alternative basis on which to assert a basis of liability not asserted in his own pleading. Indeed, the respondent in his reply joined issue with the assertion that the meaning was restricted to suspicion only of criminal and civil misconduct, and asserted that the article “carried the further imputation that the suspicion was well founded”. The respondent cannot be permitted to eschew the meaning suggested by the appellant but then be permitted to recover on the basis of that meaning, when the only meaning which he asserts in his own pleading is not made out. On the other hand, if the respondent had accepted the more limited meaning suggested by the appellant, and made it part of his case against the appellant, the course of the trial may well have been radically different.

40    Williams J held that the first article made relevant allegations only in terms which alleged a suspicion, and that on this basis the statutory defence of a fair and accurate report of the proceedings before the Royal Commission was made out: SASR at p 559-560.

41    The High Court reversed the Full Court’s findings in relation to whether the first article conveyed the plaintiff’s pleaded imputations. Brennan CJ and McHugh J held that both imputations alleged by the plaintiff in respect of the first article were made out: CLR at [1], [5]. Gaudron and Gummow JJ held that the first article conveyed the first of the plaintiff’s pleaded imputations: CLR at [48]. As to the second of the plaintiff’s imputations, Gaudron and Gummow JJ held that the first article conveyed a variant of that imputation, namely the plaintiff’s second imputation but shorn of the words, “in excess of his entitlement”: CLR at [50]. This variation was said to be slight. It was this slight variation which led Gaudron and Gummow JJ to consider the extent to which a plaintiff might depart from pleaded imputations at trial. It is important to note that the plaintiff did not in the High Court succeed on the defendant’s suspicion imputation, but on his own imputations. At [59] Gaudron and Gummow JJ stated –

There can be no disadvantage to the Advertiser in allowing Mr Chakravarti to rely, even at this stage, on an innuendo that, by reason of loans received from Beneficial, he was not a fit and proper person to be or remain an executive of that company, notwithstanding the more specific meaning pleaded in his amended statement of claim, namely, that he was unfit by reason of the receipt of loans in excess of his entitlement. The more specific meaning simply limits the innuendo to a factual basis which the Advertiser itself particularised in relation to its plea of justification with respect to the first article. And although the majority in the Full Court held that Mr Chakravarti could not rely on the lesser meaning which the Advertiser asserted, namely, that he was suspected of being involved in criminal or civil misconduct, which lesser meaning it sought to justify and defend, there could have been no disadvantage to the Advertiser in allowing him to do so.

42    The main point made in this passage is that there could be no disadvantage to the defendant if the plaintiff was permitted to rely, even at the stage of appeal to the High Court, on the slight variant of the plaintiff’s second imputation in respect of the first article that Gaudron and Gummow JJ had identified at [50]. The reference to the defendant’s suspicion imputation was obiter, because that was not an imputation that was upheld in the High Court. The reason there could have been no disadvantage to the defendant in permitting the plaintiff to rely on the defendant’s suspicion imputation was that the defendant had alleged the imputation, and had sought to defend it at trial. This was a particular feature of Chakravarti. A likely corollary of the reasons of Gaudron and Gummow JJ is that if the defendant had not pleaded and defended the suspicion imputation, the plaintiff would not have been able to rely on it, because there would have been unfair prejudice to the defendant. At [60] Gaudron and Gummow JJ continued –

As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.

43    This passage emphasises that the extent to which a plaintiff might be entitled to rely on different meanings will be governed by whether there is any disadvantage to the defendant.

44    Brennan CJ and McHugh J agreed with the orders proposed by Gaudron and Gummow JJ, and subject to two points, with their reasons. The two points concerned the need to identify what defamatory meanings were conveyed by a publication before a defence of fair and accurate report can be evaluated, and secondly, their Honours’ criticism of the Polly Peck form of pleading. In relation to the extent to which a plaintiff might depart from pleaded meanings, Brennan CJ and McHugh J at [23] cited a passage from the reasons of King CJ in Prichard v Krantz (1984) 37 SASR 379 at p 386, which included the following –

… a plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularised. Modern judges, in any class of case, have a considerable discretion as to the rigour with which they will confine a case presented by a party to the precise language of the pleadings.

45    Brennan CJ and McHugh J also cited at [23] the following passage from the reasons of Mahoney A-CJ in Crampton v Nugawela at p 183 –

… where the imputation specified by the plaintiff is not the imputation made by the published material, the plaintiff will fail, even though another and different imputation was made by the published material and the plaintiff could have pleaded that imputation.

But, in my respectful opinion, that should not mean that the plaintiff should fail where the published material is before the jury, the imputation which it makes may be seen from it, and the plaintiff’s error is merely that his pleading of the imputation errs in that it does not with complete accuracy state in the pleading the imputation that is in the published material . . . Where . . . the complaint is not that the published material conveys one imputation and the pleading pleads a quite different one, but that the pleader has erred in attempting to translate the imputation from the published material to the pleading, I do not think the law to be that a plaintiff’s claim must necessarily fail. It would be sad if the law held the plaintiff’s claim defeated because, in pleading, he did not precisely translate from the letter to the pleading the imputation as precisely as should have been done.

46    Brennan CJ and McHugh J then stated at [24]-[25] –

If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury.

The defendant suffered no prejudice, embarrassment or unfair disadvantage in this case. The plaintiff was entitled to a favourable finding on the meanings attributed to the first and second articles by Gaudron and Gummow JJ.

47    By these passages, especially when read in the context of the quotations from Prichard v Krantz and Crampton v Nugawela, Brennan CJ and McHugh J acknowledged that a plaintiff may be permitted to depart from pleaded meanings at trial, but only if there is no unfair disadvantage to a defendant.

48    Kirby J found that both imputations pleaded by the plaintiff in relation to the first article were available, and regarded it as almost impossible to deny that the first imputation was made out: CLR at [140]. While Kirby J sought to identify some general principles concerning the extent to which parties will be held to their pleadings in defamation cases (CLR [139] at points 3 and 4), his Honour did not venture any view about whether it would have been permissible for the plaintiff to rely on the defendant’s suspicion imputation.

49    In relation to the second article sued on in Chakravarti, the plaintiff had alleged six imputations, as follows (CLR at [71]) –

(a)    the plaintiff had engaged in criminal conduct in connection with a loan or loans made to him;

(b)    the plaintiff was a party to a conspiracy within the State Bank group in connection with multimillion dollar unauthorised loans;

(c)    the plaintiff had received one or more loans which were not approved or authorised and which provided greater benefits to him than those to which he was entitled and that the plaintiff had been involved in criminal, or at least civil, misconduct in connection with obtaining those loans;

(d)    the plaintiff had received a loan which had not been approved or authorised and which provided benefits in excess of his entitlement, in relation to a joint venture with a Melbourne developer, which loan was $37 million in default;

(e)    the plaintiff had engaged in criminal, or at least civil, misconduct in connection with that loan;

(f)    [t]he plaintiff’s conduct in relation to the stated loans was such as to render him not a fit and proper person to be or remain a Beneficial Finance executive or to be or remain in any other position of trust.

50    By majority, the Full Court (Doyle CJ at SASR p 549-550, and Perry J at SASR p 557) held that the second article conveyed imputations (b) to (f), but not (a). Doyle CJ stated (at SASR p 549) –

In my opinion the first of the pleaded imputations does not arise. I do not consider that the article imputes criminal conduct, even by its reference to a conspiracy. In my opinion it does no more, read as a whole, than report evidence about conduct which Mr Simmons considered “may be criminal”. The distinction between “may be” and “is” is significant. In my opinion the article observes it. In my opinion it does not state or imply that any suspicions were well founded. However, in my opinion the article does impute a suspicion of criminal conduct in connection with loans, and this lesser imputation is within the scope of the plaintiff’s pleading.

…

In my opinion the third of the pleaded imputations is conveyed by the article. It reports the obtaining of unapproved and unauthorised loans, and that that conduct raised the suspicion of criminal rather than civil misconduct. The article does suggest that the misconduct is at least civil misconduct, the question being whether it is criminal.

51    As indicated by the above passages, Doyle CJ considered that the imputation of suspicion of criminal conduct was within the plaintiff’s pleading. By his imputation (c), the plaintiff had pleaded that the second article meant that “the plaintiff had been involved in criminal, or at least civil, misconduct”. Imputation (c) fell short of a charge of guilt of criminal misconduct, spanning civil and criminal misconduct, and thereby having within it suspicion of criminal conduct.

52    In the High Court, Gaudron and Gummow JJ (with whom Brennan CJ and McHugh J at CLR [1] agreed) held that the Full Court was clearly correct in holding that imputation (a) was not conveyed, stating (at CLR [72]) –

As pointed out by Doyle CJ, “[t]he distinction between ‘may be’ and ‘is’ is significant” and the article is consistent in its statement that the conduct in issue “may be criminal rather than civi[l]”. Accordingly, Mr Chakravarti cannot succeed on this issue.

53    The defendant newspaper conceded that the second article bore the plaintiff’s imputation (c), but cross-appealed in relation to imputations (b), (d), (e) and (f). Gaudron and Gummow JJ (with whom Brennan CJ and McHugh J agreed) held at CLR [73]-[76] that it was open to the Full Court to conclude that the second article conveyed imputations (b), (e), and (f), but that it was not open to find that the second article bore imputation (d).

54    Kirby J held at CLR [143] that Doyle CJ was right to find that all of the pleaded imputations except the plaintiff’s imputation (a) were conveyed by the second article.

55    It has been necessary to undertake this lengthy analysis of Chakravarti to demonstrate that it formed no part of the ratio of Chakravarti that there is any general principle that a plaintiff who alleges an imputation equating to guilt will be entitled to succeed at trial on a lesser imputation that equates to reason to believe, or suspicion. Whether that course is permissible will turn on the terms of the imputations, and considerations of fairness. In relation to the first article the subject of Chakravarti, the defendant had been permitted to plead and defend a suspicion imputation, which led Gaudron and Gummow JJ to remark that there would have been no disadvantage to the defendant in allowing the plaintiff to rely upon it. In relation to the second article, it was not in dispute in the High Court that imputation (c) was conveyed, and suspicion of criminal conduct had been held by Doyle CJ and Perry J in the Full Court to be within the plaintiff’s pleading.

56    Subsequent to Chakravarti and Hore-Lacy, Bongiorno J in Gutnick v Dow Jones & Co Inc (No 4) [2004] VSC 138; 9 VR 369 struck out the defendant’s imputations which alleged that the plaintiff was “reasonably suspected” of money-laundering, and that there was “reason to investigate” whether the plaintiff had been money-laundering. In doing so, Bongiorno J stated at [8] –

The defendant’s imputations are, in each case, imputations of reasonable suspicion. But the issue raised by the plaintiff’s imputations is not whether he was merely suspected of particular arguably reprehensible conduct but rather whether he engaged in that conduct. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid expressed himself as being firmly of the view that there is a great difference between saying that someone has behaved in a suspicious manner and saying that he is guilty of an offence (at 260). Lord Hodson, in the same case, acknowledged that whilst it might be defamatory to say that someone is suspected of an offence, such a statement does not carry with it an allegation that he has committed the offence (at 275). Simon Brown LJ (with whom Sir Ralph Gibson agreed) in Stern v Piper [1997] QB 123 at 138 accepted that Lewis’ case decided that an allegation that someone is suspected of guilt is different to and less serious than an allegation that he is actually guilty. See also Corse v Robertson (Unreported, WA Full Court, 8 December 1997) and Singleton v Hudson (1998) 20 WAR 191 at 199.

57    Bongiorno J referred to the following passage from the reasons of May LJ in Shah v Standard Chartered Bank [1999] QB 241 at p 266 –

A publication that a person is guilty of something differs from a publication that there are reasonable grounds to suspect that he is guilty. Each is normally capable of being defamatory. The second will usually be less serious than the first. To justify the first publication, you have to establish that the person is guilty. To justify the second publication, you have to establish that there are objectively reasonable grounds for suspicion.

58    At [11]-[12] Bongiorno J stated –

[Counsel for the defendant] contended that the plaintiff in this case could obtain a verdict in his favour if the tribunal of fact found, not that the article conveyed an imputation of guilt but merely that it contained an imputation of reasonable suspicion of guilt.

I cannot agree. As the cases to which I have referred make clear, whilst both allegations might be libellous they are not variants of each other as that term is used in Hore-Lacy. The two sets of imputations raise quite different cases.

59    Bongiorno J then referred to the defendant’s particulars of justification to demonstrate that the defendant was seeking to raise quite a different case.

60    In Hore-Lacy v Cleary [2007] VSCA 314; 18 VR 562, the defendants to the proceeding submitted that Gutnick v Dow Jones & Co Inc (No 4) was wrong. Hore-Lacy v Cleary did not concern a justification defence, but a defence of common law comment where the defendants had provided particulars of the substance of the comment. The plaintiff had pleaded four imputations and a true innuendo equating to “guilt” of certain conduct, and the defendants pleaded as the substance of their comment that “there is a serious question to be investigated”. The Court of Appeal applied the principle that a comment defence must address the sting of the alleged libel, or a permissible variant, citing Chakravarti at p 528 (Brennan CJ and McHugh J) and Channel Seven Adelaide Pty Ltd v Manock at [83] (Gummow, Hayne and Heydon JJ). The Court held that the comment did not address the sting of the libel alleged by the plaintiff, and in the course of his reasons at [54] Ashley JA (with whom Neave JA and Redlich JA agreed) stated that Gutnick v Dow Jones & Co Inc (No 4) provided a useful analogy. In Cunliffe v Woods [2012] VSC 254 at [11], Beach J considered that the approach taken by Bongiorno J in Gutnick had been endorsed by the Court of Appeal in Hore-Lacy v Cleary.

61    To support their submission that justification of their variant imputations was permissible, the respondents relied on the decision of the Western Australian Court of Appeal, comprising two members (Steytler P and McLure JA), in West Australian Newspapers v Elliott [2008] WASCA 172; 37 WAR 387, which the primary judge held at [43] was plainly wrong. In West Australian Newspapers v Elliott the plaintiff had alleged meanings which included imputations that he had –

4.1    dishonestly profited from using information concerning contracts between Fortescue and Chinese investors which would have an adverse effect upon the price of Fortescue shares when made available to the market, by selling Fortescue shares just prior to the release of that information;

4.2    illegally profited from using information concerning contracts between Fortescue and Chinese investors which would have an adverse effect upon the price of Fortescue shares when made available to the market, by selling Fortescue shares just prior to the release of that information;

62    The defendants alleged the following imputation that the plaintiff challenged successfully before the primary judge, but which the Court of Appeal allowed –

6.3    there were reasonable grounds to suspect that the plaintiff as a director of [Fortescue] had illegally profited from using information concerning contracts between [Fortescue] and Chinese investors which would have an adverse effect upon the price of [Fortescue] shares when made available to the market, by selling [Fortescue] shares, just prior to the release of that information;

63    Steytler P at [19] treated the issues that arose as raising the following questions –

(1)    How far may a Polly Peck plea depart from the imputations relied upon by a plaintiff before being struck out as irrelevant?

(2)    Does the appellant’s plea in para 6.3 of the defence fail the test enunciated in answer to question (1)?

(3)    Is the answer to question (2) influenced by the fact (raised by the respondent in answer to grounds 1 and 2) that the respondent expressly disclaims (and will, at the trial, expressly disclaim) any reliance upon the imputation pleaded in para 6.3 of the defence?

64    In answering question (1), Steytler P at [20] confirmed that a defendant cannot plead a “Polly Peck” imputation that was outside the extent to which a plaintiff would be permitted to depart from his or her pleaded imputations. Steytler P reviewed the relevant authorities, including Chakravarti and Hore-Lacy, and at [31] of his reasons stated –

This review of the cases suggests that there is general, although not universal, support for the proposition that a plaintiff who has pleaded specific meanings by way of false innuendo may only succeed at trial on some other meaning if it is not substantially different from and not more injurious than the meanings pleaded. If that is correct then, as Charles JA pointed out in Hore-Lacy (at [52]), the issue of whether the meaning was substantially different might be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis or, possibly, whether the justification would be substantially different. If the Polly Peck imputation pleaded by the defendant is one that would have satisfied the test enunciated, had it been pleaded by the plaintiff, it will be allowed. If it would not have satisfied that test, it will not be allowed: Buckeridge (at [20]). At least in the absence of further authority, that is the approach that should, in my opinion, be followed by the present two-judge court.

65    For the purposes of answering question (2), Steytler P considered the judgments of the South Australian Full Court and the High Court in Chakravarti at some length, and set out the last sentence of [59], and the whole of [60] of the reasons for judgment of Gaudron and Gummow JJ. We have set out the whole of [59] at [41] above, and we have set out [60] at [42] above. In relation to [59] and [60] of Chakravarti, Steytler P stated at [40] –

Although their conclusion in this respect is obiter (see [61]), the two paragraphs that I have quoted nevertheless make it plain that Gaudron and Gummow JJ regarded the lesser meaning to which they referred as being one that was comprehended in, or less injurious than, the meaning pleaded in the statement of claim.

66    For our part, we do not read the obiter in [60] of Chakravarti in that way. In the first two sentences of [59] Gaudron and Gummow JJ referred to allowing the plaintiff to rely on the variation to the plaintiff’s second imputation with respect to the first article, to which we referred at [41] above. When it came to the suspicion imputation, Gaudron and Gummow JJ referred to that imputation at [59] as a lesser meaning, but stated that there could have been no disadvantage to the defendant in allowing the plaintiff to succeed on that imputation which the defendant had sought to justify and defend. In our view, the question of unfair disadvantage lies at the heart of both [59] and [60] in relation to whether the plaintiff might have been allowed to rely on the suspicion imputation. The same can be said in relation to the reasons of Brennan CJ and McHugh J at [25] –

The defendant suffered no prejudice, embarrassment or unfair disadvantage in this case. The plaintiff was entitled to a favourable finding on the meanings attributed to the first and second articles by Gaudron and Gummow JJ.

67    Steytler P referred to other cases that have discussed the difference between an imputation of suspicion on the one hand, and an imputation of guilt on the other, including Gutnick v Dow Jones & Co Inc (No 4), Mickelberg v Hay [2006] WASC 285, Hyams v Peterson [1991] 3 NZLR 648, and Hore-Lacy v Cleary. In Hyams v Peterson, which was also cited by Hasluck J in Mickelberg v Hay, Cooke P stated at p 655 –

It is also plain that to say there are grounds for suspecting a person of fraud or other discreditable conduct is, although defamatory, often different from and less serious than an assertion of his guilt: Lewis v Daily Telegraph Ltd [1964] AC 234; Truth (NZ) Ltd v Bowles [1966] NZLR 303; Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234, 239-240; Mirror Newspapers Ltd v Harrison (1982) 42 ALR 487. These judgments also recognise that for practical purposes there can be an imputation of suspicion so strong as to be indistinguishable from guilt; it must always be a question of fact how far the defamatory meaning goes.

68    While the above passage from the reasons of Cooke P was referred to by Hasluck J in Mickelberg v Hay, and also by Steytler P in West Australian Newspapers v Elliott at [70], the passage was not set out in full in either judgment. Steytler P stated at [70] –

As Cooke P observed in Hyams (at 655), cases such as Lewis and Mirror Newspapers recognise that for practical purposes there can be an imputation of suspicion so strong as to be indistinguishable from guilt and that it must always be a question of fact how far the defamatory meaning goes.

69    However, the reference by Cooke P to an “imputation of suspicion so strong as to be indistinguishable from guilt”, reflected the reasons of the trial judge, Woodhouse J, in Truth (NZ) Ltd v Bowles [1966] NZLR 303, which Cooke P cited. Neither Hasluck J nor Steytler P referred to Truth (NZ) Ltd v Bowles where, in awarding damages in a defamation case where it appears from the report that no imputations were pleaded by the plaintiff, Woodhouse J stated –

In my opinion these words carry so high a level of suspicion that they would convey to normal fair-minded readers an impression indistinguishable from guilt.

70    On appeal, the New Zealand Court of Appeal reduced the trial judge’s award of damages, holding at p 308 –

… we think the learned Judge went a little too far in the opinion he expressed that the words carried so high a level of suspicion that they would convey to normal fair-minded readers an impression indistinguishable from guilt. We agree that fair-minded readers of the paper might well say there is seldom smoke without fire, but we do not think they would necessarily conclude that she was guilty in respect of the various allegations made against her in view of her denials.

71    In the context of the trial judge’s reasons in Truth (NZ) Ltd v Bowles the “practical purposes” for which an imputation of suspicion might be so strong as to be indistinguishable from an imputation of guilt concerned injury to reputation and the assessment of damages. However, it is noteworthy that the New Zealand Court of Appeal, in reducing the award of damages, acted on the distinction between suspicion and guilt.

72    In the passage from Hyams set out at [67] above, Cooke P also cited the judgment of the Court of Appeal which he delivered in Broadcasting Corporation of New Zealand v Crush [1988] 2 NZLR 234, and which is illuminating. At p 239-240 the Court of Appeal stated –

… As we see it, [the jury] cannot be entitled to find for the plaintiff on a basis which he has disclaimed or never put forward and which the defendant has not been called upon to meet. If the plaintiff has nailed his colours to the mast as to the meaning of which he complains, it does not seem rational to suppose that the jury can legitimately give a verdict for him on finding some different and less serious meaning.

73    The Court of Appeal in Crush then stated that this point had been virtually settled by the decision of the Privy Council in Truth (New Zealand) Ltd v Holloway [1961] NZLR 22, and at p 240 set out two paragraphs from the advice of the Privy Council, which concerned the extent to which a jury might depart from a true innuendo. We set out one of those paragraphs –

No exception was taken to that direction which was clearly right and, indeed, favourable to the defence. Once the plaintiff had acknowledged that the words were not defamatory of him when taken in their natural and ordinary meaning, then it was absolutely incumbent on him to prove they bore the meaning alleged in the innuendo. If he only proved a lesser meaning, he would fail. A good illustration was given in the course of the argument. The innuendo in this case imputed that the plaintiff “has acted and is prepared to act dishonourably”. That is an imputation of guilt. If the jury thought that the words conveyed, not an imputation of guilt, but only of suspicion, the plaintiff would fail to prove his innuendo, with the result that he would fail in his action: see Mountney v Watton (1831) 2 B & Ad. 673, 678; 109 E.R. 1293, 1296 by Lord Tenterden, Simmons v Mitchell (1880) 6 App Cas 156. The reason is this: If the plaintiff had by his innuendo said the words only imputed suspicion, it would be open to the defendant to plead justification if it had sufficient evidence at its disposal to warrant suspicion: but as the plaintiff says that the words impute guilt, the defendant cannot justify that meaning unless it has sufficient evidence to prove guilt, which is, of course, a higher burden than proving suspicion. So as a matter of pleading, in order not to put the defendant to any disadvantage, the plaintiff is pinned to his innuendo.

(emphasis in original)

74    In Crush the plaintiff pleaded imputations arising from the ordinary and natural meaning of the words, and the Court of Appeal after citing the above passage from Truth (New Zealand) Ltd v Holloway stated at p 240 –

It is difficult to see any relevant distinction between an acknowledgment by the plaintiff that the words were not defamatory of him when taken in their natural and ordinary meaning and an acknowledgment that he complains of them only in the defamatory meanings which he alleges. The guilt – suspicion illustration referred to by the Privy Council seems to confirm this.

75    We note that “R B Cooke” had appeared as counsel for the appellant before the Privy Council in Truth (New Zealand) Ltd v Holloway. We would not understand what Cooke P said in Hyams as endorsing the idea that a plaintiff who had pleaded an imputation of guilt, and thereby “nailed his colours to the mast”, could succeed at trial in establishing an imputation of reasonable suspicion, or reasonable grounds to believe. That would not be consistent with the Court of Appeal’s reasons in Crush, which was cited in Hyams. Furthermore, we do not understand Hyams to be authority for the proposition that for the purposes of making findings of fact at trial as to meaning, an imputation of suspicion may be “so strong as to be indistinguishable from guilt”, when that observation was originally made by the trial judge in Truth (NZ) Ltd v Bowles in the context of the assessment of damages. In Lewis v Daily Telegraph Ltd at p 267, Lord Morris in his dissenting speech referred to a similar consideration –

It is a grave thing to say that someone is fraudulent. It is a different thing to say that someone is suspected of being fraudulent. How much less wounding and damaging this would be must be a matter of opinion depending upon the circumstances.

76    Since Crush was decided, the Defamation Act 1992 (NZ) was enacted, s 8(2)(a) of which has been held to have the consequence that, consistently with Crush, a defendant must justify the plaintiff’s imputations, and not some lesser meaning: Television New Zealand Ltd v Haines [2006] 2 NZLR 433 at [57]-[58].

77    Returning to West Australian Newspapers Ltd v Elliott, at [49] Steytler P stated, correctly in our view –

There can be no doubt that an imputation that a person has engaged in criminal or reprehensible conduct is different from one that there are reasonable grounds for suspecting that the plaintiff has engaged in such conduct. The distinction between suspicion and guilt is obvious and important. However, an imputation of guilt will always be more serious than one of suspicion on reasonable grounds.

78    Steytler P then continued at [49] –

Also, ordinarily, a plea of justification of an imputation that there are reasonable grounds for suspicion that a plaintiff engaged in criminal or reprehensible conduct will require proof of the same published facts as are said by the plaintiff to give rise, in the context of the publication, to an imputation that he or she has engaged in that conduct. It is only the conclusion to be drawn from those facts (in the context of the publication) that is different and, even then, the difference will be one of degree, depending upon the strength of the imputation of suspicion to which the publication is said to give rise. In that circumstance, and given my understanding of what was said by the majority in Chakravarti (High Court) and by the court in Gumina (No 2), it seems to me that this court should continue to follow what was said in those cases until further guidance is provided by the High Court. …

79    Steytler P then held that unless question (3) which he posed (see [63] above) was answered in favour of the respondent, the decision of the primary judge to strike out para 6.3 of the appellant’s defence could not stand.

80    In our view, at [49] Steytler P elided the distinction between guilt and reasonable grounds for suspicion, which his Honour had recognised as obvious and important. There were three reasons supporting his Honour’s conclusions. First, Steytler P considered that ordinarily guilt, and reasonable grounds for suspicion, will require proof of the same published facts. For our part, we cannot accept that as a general proposition. A justification defence that fails to establish guilt, and rises no higher than reasonable grounds to suspect, may fail because necessary elements of proof are absent. Further, often what is to be justified are not “published facts”, but an imputation that is conveyed by a matter: facts that may have to be proven in order to justify an imputation do not have to be referred to in the publication.

81    The second reason supporting Steytler P’s conclusions was that his Honour considered that the difference between guilt and reasonable grounds for suspicion was one of degree, depending upon the strength of the imputation of suspicion to which the publication is said to give rise. This may be correct in two senses. First, the strength of an imputation of suspicion may be so great that the extent of injury to reputation approaches that which results from an imputation of guilt so that the difference in damage is one of degree: Truth (NZ) Ltd v Bowles. Secondly, the strength of an imputation of suspicion might be so strong that there arises a question of degree as to whether the matter crosses the line so as to impute guilt: Lewis v Daily Telegraph Ltd at p 285 (Lord Devlin); Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 at [11]-[14] (Gleeson CJ, McHugh, Gummow and Heydon JJ). However, it is for the trier of fact to determine meaning on the basis that the court must arrive at a single objective meaning, as discussed at [32] above. The existence of a triable issue in relation to the meaning conveyed by a matter should not ordinarily invalidate the distinction between guilt, and reasonable grounds for a belief in, or suspicion of guilt. And if the trier of fact finds that a matter imputes guilt, it is no answer for a defendant seeking to rely on a defence of justification to prove no more than reasonable grounds to believe. The fact that imputations of suspicion and guilt may cause similar harm, or that there is the capacity for both to be conveyed, does not mean that one is a variant of the other.

82    The third reason given by Steytler P included his Honour’s understanding of what was said by the majority in Chakravarti. For the reasons we have given at [35] to [55] above, we do not understand Chakravarti as endorsing a general proposition that a plaintiff who alleges imputations amounting to guilt would be entitled to succeed if the matter was held to impute no more than reasonable grounds to believe or suspect. Whether that would be so would depend on the state of the pleadings, considerations of fairness, and whether there would be any unfair disadvantage to the defendant. Further, Chakravarti does not support the general idea that in a case where a plaintiff pleads imputations amounting to guilt, a defendant will be permitted to justify by alleging reasonable grounds to believe. The subsequent decision in Channel Seven Adelaide Pty Ltd v Manock at [83] tells against that proposition, because if the trial judge in this case comes to assess the respondents’ defence of justification, the question of meaning will have been determined favourably to the applicant.

83    Steytler P then addressed question (3) (set out at [63] above) and accepted a submission of the appellant that a defence would be weakened if the defendant was able to do no more than deny that the imputation pleaded by the plaintiff arose from the publication. Steytler P acknowledged that Scott v Sampson (1882) LR 8 QBD 491 and Speidel v Plato Films Ltd [1961] AC 1090 stood for the proposition that evidence of general reputation may not relate to specific acts of misconduct. However, Steytler P stated that the law had shifted direction in this respect, and referred to the decision of the Court of Appeal in Burstein v Times Newspapers Ltd [2000] EWCA Civ 338; [2001] 1 WLR 579 where May LJ (with whom Sir Christopher Slade and Aldous LJ agreed) said at [47] that it is open to a defendant to accept that there is no proper plea of justification, but to seek to rely in reduction of damages on particulars which Scott v Sampson and Speidel v Plato Films Ltd do not exclude. His Lordship said that, if this were not so, there would be a danger that the jury would be required to assess damages in ignorance of background context that was directly relevant to the damage which the plaintiff claimed had been caused by the defamatory publication. May LJ went on to say at [47] –

Thus, in my view, a defendant is not prevented from taking the sensible course of accepting that the publication means what it says and that it is not on the facts justified, and yet putting in evidence directly relevant facts which in other circumstances might have been ingredients of a defence of justification. It would, I think, be illogical and unfair if this were not so. Evidence in support of a plea of justification which fails is admissible in reduction of damages. But the very same evidence would not be admissible to a sensible defendant who acknowledges that it will not support a plea of justification. What is not permissible is to plead a defence of partial justification which in truth is no defence at all.

84    In West Australian Newspapers v Elliott, Steytler P also identified at [63] that Burstein was to some extent uncertain, and its application may be difficult in particular cases. As Wigney J identified in Rush v Nationwide News (No 2) [2018] FCA 550; 359 ALR 564 at [32]-[46], that uncertainty remains, and in particular, there is uncertainty as to what is captured by May LJ’s reference at [42] to “directly relevant background context”. This is not the occasion to consider the metes and bounds or indeed the applicability of the Burstein principle, because it is unnecessary for us to do so, and it was not the subject of argument. Any detailed consideration of Burstein would require an analysis of other authorities, including Scott v Sampson, Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1, Speidel v Plato Films Ltd, Associated Newspapers Ltd v Dingle [1964] AC 371, and the principles summarised by Wigney J in Faruqi v Latham [2018] FCA 1328 at [160]-[164]. In particular, it would be necessary to consider how Burstein can be reconciled with other principles, including those applied by the House of Lords in Speidel v Plato Films Ltd where the defendant sought unsuccessfully to rely on a number of extraneous facts about the plaintiff, including matters depicted in the film about which the plaintiff did not complain, as going to “particulars of circumstances under which the alleged libel was published”, which at that time were admissible in order to disprove malice: see Gatley on Libel and Slander (4th ed, Sweet & Maxwell, 1953) at p 574 to 577 and 634-641, cited in argument in the Court of Appeal at [1964] AC at p 1094-1095; but cf, Gatley on Libel and Slander (11th ed, Sweet & Maxwell, 2008) at [35.48], footnote (193). The common law position, in which the defendant’s state of mind was relevant to the assessment of damages, is modified by s 36 of the Defamation Act, under which in awarding damages the court is to disregard the malice or other state of mind of the defendant at the time of publication.

85    After referring to Burstein and some other cases that had considered it, Steytler P stated at [64] –

It is consequently arguable, in the present case, that, if the defence pleaded in para 6.3 should be struck out, the defendant would anyway be permitted to lead the evidence it would otherwise have advanced in support of that plea as evidence of “directly relevant background context”. However, if the defendant is unable to do so (and the point cannot be determined at this stage as it has not been fully addressed in the submissions of the parties), it seems to me that there is much to be said for the proposition that it would be wrong, as a matter of principle, to allow the plaintiff, by disclaiming an imputation that might otherwise be fairly thought to arise from the offending publication and to fall within the ambit of a permissible Polly Peck defence, to deny to the defendant the very real advantage of having proof of the lesser imputation mitigate the damages awarded (if the greater imputation is made out).

86    At [79], McLure JA stated that her Honour agreed with Steytler P that it was not open to a plaintiff to disclaim an imputation that might properly be the subject of a Polly Peck defence. This invites attention to what in a given case might properly be the subject of a permissible variant imputation. There is much to be said for the proposition that a plaintiff should not be able to advance imputations that are contrived with the consequence that permissible variant imputations that otherwise fairly arise are avoided. Imputations that emerge only as “the product of some strained, or forced, or utterly unreasonable interpretation” may be struck out: Favell v Queensland Newspapers Pty Ltd at [9], citing Jones v Skelton [1963] 1 WLR 1362 at p 1370-1. On like reasoning, there may be cases where, having regard to settled principles relating to identification of meaning, including those relating to a single meaning referred to at [32] above, a disclaimer by a plaintiff of a variant imputation might be regarded as contrived, or artificial, with the consequence that the plaintiff’s imputation might be struck out. However, this is not such a case. The applicant has “nailed his colours to the mast”, and the points on which he seeks to have his reputation vindicated are the underlying substance of his imputations, and not the conceptually distinct respondents’ imputations that there were “reasonable grounds to believe” the substance of the applicant’s imputations. This is an instance where the respondents’ variant imputations, if permitted, would have the consequence that the respondents could hijack the applicant’s case by litigating false issues that do not meet the sting of the imputations relied on by the applicant: Soultanov v The Age Company Ltd (2009) 23 VR 182 at [24] (Kaye J).

87    Otherwise, we do not agree with what Steytler P said in [64] as set out under [85] above. To permit the maintenance of a plea of justification to prove the truth of a lesser imputation for the sole purpose of adducing evidence in mitigation of damage would be to permit the maintenance of a plea that does not go to justification at all, but for a collateral purpose: Atkinson v Fitzwalter [1987] 1 WLR 201 at p 214 (Parker LJ). See also, Moore v Mitchell (1886) 11 OR 420; Prager v Times Newspapers [1988] 1 WLR 77 at p 93 (Russell LJ); Burstein v Times Newspapers Ltd at [47] (May LJ). We do not agree that, under the guise of a defence of justification that is bound to fail because it does not address the sting of the matter alleged by the applicant, a respondent may be permitted to allege material facts for the purposes of mitigating damage. Such a plea would not be consistent with what was said by Lord Shaw in Sutherland v Stopes at p 79, which requires that the sting of the defamation be justified. Further, to adapt the words of Lord Radcliffe in Associated Newspapers Ltd v Dingle [1964] AC 371 at p 396, a defamation action is fundamentally an action to vindicate a person’s reputation on some point as to which the person has been falsely defamed, and the damages awarded are regarded as the demonstrative mark of that vindication.

88    The respondents made some novel submissions in further support of the maintenance of their variant imputations. The respondents submitted that justification of the variant imputations was relevant to the assessment of damages. It is desirable to set out the submissions verbatim, as to summarise them would not accurately capture them. The respondents submitted as follows –

14.    The perversity of the primary decision, if it were allowed to stand, can be illustrated by considering the different outcomes that could result, on the same facts, dependent wholly upon the pleading decision made by the plaintiff, in any case involving a publication that is capable of imputing that the plaintiff has engaged in misconduct (guilt imputation) and that there are reasonable grounds to believe that the plaintiff has engaged in that misconduct (reasonable grounds imputation), where the guilt imputation cannot be justified but there are arguable grounds to justify the reasonable grounds imputation:

(a)    If the plaintiff pleads both a guilt imputation and, in the alternative, a reasonable grounds imputation, and the tribunal of fact at trial finds the guilt imputation to be conveyed, then the plaintiff will win; but the defendant will have been entitled at trial to adduce evidence in support of the reasonable grounds imputation; and that evidence, having been properly admitted, will be taken into account on the assessment of damages.

(b)    If, on the other hand, the plaintiff pleads only a guilt imputation, and the tribunal of fact at trial finds that imputation to be conveyed, the plaintiff will win; the defendant will not have been entitled to adduce any evidence in support of the reasonable grounds imputation; and the plaintiff will therefore be entitled to damages as if the allegations were wholly unfounded, even if there were in fact reasonable grounds to believe that the plaintiff had engaged in the misconduct alleged. The plaintiff’s damages will be higher than in the first case, on identical facts, because of a pleading decision made by the plaintiff that was wholly outside the control or influence of the defendant.

(c)    If the plaintiff pleads both a guilt imputation and, in the alternative, a reasonable grounds imputation, and the reasonable grounds imputation is found by the tribunal of fact at trial to be conveyed, and not able to be justified, then the plaintiff will win and be entitled to damages.

(d)    If, on the other hand, the plaintiff pleads only a guilt imputation, and the tribunal of fact at trial finds that that imputation is not conveyed, the plaintiff will fail entirely, even if the publication conveyed the reasonable grounds imputation and even if that imputation could not have been justified by the defendant.

(e)    If the plaintiff pleads only a reasonable grounds imputation and, at trial, the tribunal of fact finds that that imputation is not conveyed, because the publication conveys a guilt imputation, then the plaintiff will fail entirely, despite having been defamed without lawful excuse.

15.    That such different outcomes could occur on the same facts based entirely upon a matter within the control of only one party ought not to be countenanced.

16.    The injustice can be entirely overcome by treating an imputation that there are reasonable grounds to believe that a plaintiff has engaged in misconduct as not being substantially different from an imputation that the plaintiff has engaged in the misconduct. So doing acknowledges the reality that there is no bright line distinguishing an allegation of guilt from an allegation that there are reasonable grounds to support a belief of guilt, and that publications will very often be capable simultaneously of conveying both allegations; would ensure that in cases of this kind, where the plaintiff succeeds, damages are not assessed in blinkers; and would mitigate the often decried criticism that the “over-nice attention to the pleading of imputations” has led to Australian defamation law becoming “extremely convoluted and unacceptably confusing”.

89    In Chalmers v Shackell (1834) 6 Car & P 475; 172 ER 1326, the defendant sought to justify a publication by alleging that the plaintiff was guilty of forgery. On the topic of damages, Tindall CJ directed the jury that, should they think that the allegation of forgery was not satisfactorily proved, the circumstances might be considered in mitigation of the damages.

90    In Hicks v Gregory (1904) 6 WALR 100 at p 104, Stone CJ stated –

It does not follow that because the jury has found a verdict in favour of the plaintiff, that they have come to the conclusion that the defendant failed to prove all the acts of justification on which he relied. A jury may think that justification has been proved very nearly to its fullest extent; but not quite sufficiently proved to entitle them to take the case as wholly against the plaintiff. In such a case, one would not expect them to give the same amount of damages as they would have given if the plea of justification was wholly unproved.

91    To similar effect, in Prager v Times Newspapers at p 93 Russell LJ stated –

If the plea of justification is directed to the real sting of the libel, then facts in support of the plea may reduce the damages even though the plea fails.

92    In John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [51] the Court of Appeal held that the principle extended to reliance upon evidence adduced in support of a defence of contextual truth. The principle has been held to extend to evidence admitted on a plea of fair comment that ultimately fails: Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 at [43] (Keene LJ). It has even been held to extend to evidence admitted in support of a plea of justification that is subsequently struck out: Jones v Pollard [1997] EMLR 233. Indeed, the evidence may be before the Court as being relevant to any other issue: Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 120 (Neill LJ); Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 WLR 1 at [118] (Nicklin J).

93    There is also a line of authority that refers to “partial justification” which holds that where a defamatory matter contains distinct charges, a severable part may be justified, and the justification of a severable part may be relied upon in mitigation of damage in the event that the plaintiff succeeds on another distinct part which is not justified: Wilson v The Mutual Store Ltd (1899) 25 VLR 262 at p 268; Sutherland v Stopes at p 78 (Lord Shaw); Howden v “Truth” and “Sportsman” Ltd (No. 2) (1938) 38 SR (NSW) 287 at p 291 (Jordan CJ); Speidel v Plato Films Ltd at p 1141-1142 (Lord Denning); Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at p 627 (Jacobs and Manning JJA); Woodger v Federal Capital Press of Australia Pty Ltd (1992) 106 FLR 183 at p 200-201 (Miles CJ); The Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at [279] (Gillard AJA); Cruddas v Calvert [2015] EMLR 16 at [135]-[138] (Jackson LJ); Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547 at [12]-[15] (McColl JA). An example of a plea of partial justification is where a defendant pleads justification to one or more of several imputations or distinct elements of imputations alleged by the plaintiff, but not to the whole of the plaintiff’s imputations. A plea of justification to a distinct imputation or element may contribute to a complete defence to the plaintiff’s claim if the other meanings about which the plaintiff complains are held not to be conveyed, or are the subject of other defences. It is therefore not correct always to treat a plea of partial justification as going to damages alone: cf, Fenn v Australian Broadcasting Corporation at [16] (Ashley JA); Burstein v Times Newspapers Ltd at [47] (May LJ). Some of the older cases admitting a plea of partial justification by way of defence are to be understood against the background of the absence of a general practice of a plaintiff pleading imputations. Nothing in the older cases concerning partial justification should be understood as permitting a plea of partial justification outside the scope of the plaintiff’s pleaded imputations in accordance with the modern principles essayed in Hore-Lacy.

94    To the applicant’s submissions that are set out under [88] above, there are two answers. The first is that it is speculative to suggest that, on the hypothesis the applicant establishes that a “guilt” imputation is conveyed, that the damages to which the applicant would be entitled might be reduced should the respondents be able to maintain and justify a corresponding “reasonable grounds to believe” imputation. It is not clear why that should necessarily follow. It is equally open to think that the maintenance of such a plea at trial by the respondents might support an increased award of damages on the ground that a higher award is necessary to vindicate the applicant’s reputation, the respondents having failed to justify the “guilt” imputation. Whether that is the case would depend on the issues raised, and the evidence adduced at trial. But the point is that we do not accept the premises of the respondents’ submissions as arising. Second, the submissions invite a departure from established principle. There are limited circumstances in which a respondent may rely upon facts in mitigation of damage. Those circumstances were referred to by Neill LJ in Pamplin v Express Newspapers at p 119-120. They were also referred to more recently by Gleeson JA in the New South Wales Court of Appeal in Fairfax Digital Australia & New Zealand Pty Ltd v Kazal at [176]-[180] –

176    It is necessary to say something first about the admissibility of evidence of reputation in mitigation of damages in a defamation trial. The starting point is the common law rule in Scott v Sampson. While a defendant may seek to rely upon evidence of the plaintiff’s bad reputation in mitigation of an award of damages, evidence of specific acts of misconduct on the part of the plaintiff tending to show his or her character or disposition, as distinct from general bad reputation, is inadmissible.

177    The justification for this exclusionary rule is pragmatism and fairness. It has been said that the exclusionary rule reflects the need to prevent trials becoming extended by the investigation of new allegations about the plaintiff’s past life, and also a concern about the lack of relevance of evidence which has “but a very remote bearing on the question in dispute”. The concern is “to prevent [defamation] trials from becoming roving inquiries into the plaintiff’s reputation, character or disposition”.

178    However, there are exceptions or limitations to the exclusionary rule in Scott v Sampson. The exclusionary rule does not apply to evidence of past criminal convictions.

179    Nor does the exclusionary rule apply to evidence of facts directly relevant to the contextual background of the publication. In Burstein, the English Court of Appeal held that evidence of specific acts of misconduct on the part of the plaintiff tending to show his or her character and disposition is admissible where it is directly relevant to the context in which a defamatory publication came to be made. The stated rationale in Burstein for this exception is to avoid the danger that the jury would be required to assess damages in blinkers.

180    Nor does the exclusionary rule apply to evidence properly admitted in relation to a defence of partial justification. In Turner, Keene LJ referred to Pamplin, where the defendants were allowed to rely, in mitigation of damage, on evidence adduced in support of a plea of justification which ultimately failed, and observed that it has long been established that evidence of “specific acts properly admitted on such a plea may [nonetheless] be taken into account by the jury when assessing damages even though the plea has failed”. However, Keene LJ also noted that to be used for this purpose, the evidence must relate to “the relevant sector of the plaintiff’s life”.

[footnotes omitted]

95    As we have stated at [87], the respondents cannot maintain pleas of justification of variant imputations that are bound to fail for the collateral purpose of adducing evidence of facts for the purposes of mitigating damage. We otherwise observe that the respondents have by paragraph 14(b) of their defence alleged that if they are liable to the applicant (which they deny), the respondents will rely upon the circumstances in which it is proved the matters complained of were published in mitigation of damage.

96    In summary, we do not accept that the respondents’ submissions that the primary judge was in error in striking out the respondents’ so-called variant imputations. Our principal reasons are that the applicant’s imputations are conceptually distinct from the respondents’ “reason to believe” imputations. The fact that, in terms of capacity, both the applicant’s imputations and the respondents’ variant imputations might arguably be conveyed by the publications does not undermine the distinction between them. Nor does the fact that the consequences of injury to reputation might be similarly serious undermine the distinction. The point on which the applicant seeks vindication is whether he engaged in the conduct that is the subject of his imputations, and not whether there is reason to believe that he engaged in such conduct. The primary judge referred to authorities, including Mirror Newspapers Ltd v Harrison, George v Rockett, Lewis v Daily Telegraph, and Gutnick v Dow Jones & Co Inc (No 4) to demonstrate the distinction. In light of the conceptual distinction, the respondents’ imputations are not a variant of, or comprehended by the applicant’s imputations.

97    We respectfully decline to follow the decision of the Western Australian Court of Appeal in West Australian Newspapers v Elliott for the reasons we have set out at [61] to [87]. At one level, the subject-matter of that decision may be regarded as being concerned with questions of practice and procedure relating to the form of pleadings, the identification of issues for trial, and involving issues of procedural fairness and practical justice rather than with any substantive common law principles that might attract the full force of what was stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89 at [135]; see also, CAL No 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; 239 CLR 390 at [49]-[51]. Further, to the extent that West Australian Newspapers v Elliott rests upon the Western Australian Court of Appeal’s understanding of what was stated by Gummow and Gaudron JJ by way of obiter in Chakravarti at [60], the principles in Farah Constructions Pty Ltd v Say-Dee Pty Ltd are not attracted, and whilst we accord respect to what the Western Australian Court of Appeal has stated as a matter of comity, we are not obliged to form the same understanding: Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; 249 FCR 421 at [149] (Edelman J, Besanko J agreeing); Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; 87 NSWLR 609 at [97]- [101] (Leeming JA, Gleeson JA agreeing); Director of Public Prosecutions (Cth) v Thomas [2016] VSCA 237; 53 VR 546 at [132]-[133] (Redlich, Santamaria and McLeish JJA); Fairfax Media Publications Pty Ltd v Gayle [2019] NSWCA 172 at [239(3)] (Leeming JA, Bell P and Gleeson JA agreeing).

98    Another consideration is that, weighing against West Australian Newspapers v Elliott is Gutnick v Dow Jones & Co Inc (No 4), and its endorsement by the Victorian Court of Appeal in Hore-Lacy v Cleary. Moreover, to the extent that West Australian Newspapers v Elliott would suggest that the respondents’ “reason to believe” imputations are permissible variants of the applicant’s imputations for the purposes of the application of the pleading principles essayed in Hore-Lacy, for the reasons we have given, we consider that conclusion to be plainly wrong, and we are convinced that West Australian Newspapers v Elliott should not be followed by this Court. In this case, which is to be tried by judge alone, on the amended statement of claim as it currently stands there is no prospect that the applicant will be permitted to rely on the respondents’ so-called variant imputations. The respondents’ imputations are therefore not responsive to the applicant’s claim. Further, we would not allow an untenable plea of justification of alternative imputations to be advanced for the collateral purpose of adducing evidence in mitigation of damage.

99    Before concluding, we mention that by proposed ground of appeal 2 the respondents made a discrete challenge to a passage in the primary judge’s reasons at [63], where his Honour stated –

In any event, if an imputation is less injurious than the one that the plaintiff alleges, it must be substantially different from the one it is less serious than. They are just not the same.

100    The respondents submitted that it was plainly wrong to say that any imputation that is less injurious than another will necessarily differ in substance, and cited the reasons of Brennan CJ and McHugh J in Chakravarti at p 533. The respondents submitted that in practice, variant meanings are often less injurious than the primary meanings alleged. The respondents pointed to the fact that the formulation of the relevant principles in Hore-Lacy permits variant meanings that must satisfy the dual criteria that they are not substantially different from, and are not more serious than those proposed by the plaintiff: Ormiston JA at [24]; Charles JA at [52], [58]. The respondents submitted that if what the primary judge said was correct, a party could not succeed on any meaning that is less injurious than a pleaded meaning.

101    We accept the respondents’ submissions in relation to proposed ground 2. The dual criteria in Hore-Lacy to which we have referred above indicate that permissible variant imputations may be less serious and yet be not substantially different from the primary imputations that are alleged. It follows that it is not correct to say that merely because a variant imputation is less serious, it must be substantially different. However, the error in the primary judge’s formulation in [63] is not material to the outcome in this Court. For the other reasons we have stated, there was no error in the primary judge’s orders striking out the variant imputations.

102    Proposed grounds of appeal 1 to 4 raised questions of principle that were appropriate for consideration by a Full Court, and we will grant leave to appeal in relation to those grounds. However, we do not uphold grounds 1 to 4, and we affirm that part of the primary judge’s orders by which paragraph 13.2 of the respondents’ defence, which pleaded justification of the variant imputations, was struck out.

The particulars of truth – proposed grounds 5 to 14

103    The particulars of truth in the schedule to the proposed amended defence extended to 80 paragraphs, and were structured by division into sections –

(1)    paragraphs 1 to 31 - a general section comprising allegations concerning the Chinese Communist Party (CCP), a body named the United Front Work Department (UFWD), another body named the Chinese People’s Political Consultative Conference (CPPCC), and the applicant;

(2)    paragraphs 32 to 59 - material facts alleged in support of the justification of imputations 5(a), 5(d), 5(e) and 7(a), and the corresponding variant imputations, which were divided as follows –

(a)    paragraphs 32 to 49 - material facts alleged to support allegations of the applicant’s “deep connections” to the CCP, the CPPCC and the UFWD; and

(b)    paragraphs 50 to 59 – allegations concerning the applicant’s activities in Australia, including financial donations to political parties and universities, and meetings with prominent politicians, allegations that ASIO had concerns about the applicant’s activities, and that as a result of the applicant’s activities, Parliament had considered amendments to national security legislation;

(3)    paragraphs 60 to 81 - material facts alleged in support of the justification of imputations 5(f), 5(g), 5(h), and the corresponding variant imputations which make allegations concerning the applicant’s involvement with one Sheri Yan in relation to a conspiracy to bribe a United Nations official.