In defamation cases, a justification defence is raised when the defendant claims that the defamatory imputations carried by the published matter are substantially true.
In this blog post, I discuss the principles required to plead a justification defence in defamation cases, as set out in the recent case of Schiff v Nine Network Australia Pty Ltd (No 3) [2023] FCA 336 (following on from Wigney J in Rush v Nationwide News Pty Ltd and the Full Court in Australian Broadcasting Corporation v Chau Chak Wing).
It is important to note that although the cases discussed in this blog post were decided in a different state and in the Federal Court, the principles applicable to pleading a justification defence in defamation cases remain consistent across jurisdictions due to the Uniform Defamation Laws in Australia.
These laws were introduced to harmonise defamation legislation across the country, ensuring that the same principles and standards apply to defamation cases regardless of the state or court in which they are brought.
Therefore, as a defamation lawyer in Western Australia, the principles outlined in this blog post will be applicable and useful when dealing with defamation cases in our state as well.
The justification (or truth) defence
The defence of justification is set out in the various Uniform Defamation Acts, stating that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter are substantially true.
"Substantially true" is defined in s 4 as meaning "true in substance or not materially different from the truth."
Principles for Pleading a Justification Defence
1. Striking out pleadings: The power to strike out pleadings or portions of pleadings that do not disclose a reasonable cause of action or defence should be used sparingly and only in clear cases, to avoid depriving a party of a case they should be able to bring.
2. Particularity: Rule 16.41 of the Federal Court Rules 2011 (Cth) requires parties to state the necessary particulars of each claim, defence or other matter pleaded. The degree of particularity depends on the case's circumstances and the nature of the allegations.
3. Proof of truth: The particulars provided in support of a justification defence must be capable of proving the truth of the defamatory meaning sought to be justified. The court must determine whether the particulars provided, taken at their highest, can prove the truth of the defamatory imputations.
4. Specificity and precision: The particulars provided must be specific and precise enough to enable the claimant to understand the case they must meet. The defendant must specify the particulars of truth relied on with the same precision as an indictment, ensuring the plaintiff has sufficient notice of the allegations against them.
5. Proving substantial truth: To prove the substantial truth of an imputation, it is necessary to prove that every material part of the imputation is true. However, this does not mean that the defendant must prove the truth of every detail of the words established as defamatory, but rather meet the sting of the defamation.
6. No fishing expeditions: A defendant who pleads justification must do so based on the information they possess when the defence is delivered and cannot undertake a fishing expedition in hopes of finding supporting evidence.
7. Pleading conditions of mind: Rule 16.43 requires that a party who pleads a condition of mind (including knowledge and any fraudulent intention) must state the particulars of the facts on which they rely. For example, the publication might have alleged the plaintiff ‘knowingly’ received stolen property when they bought a new car off Gumtree.
Key take-aways
When pleading a justification defence in defamation cases, it is crucial to adhere to the principles established in the caselaw.
Doing so will ensure that the defendant has a solid foundation for their defence, while also providing the plaintiff with sufficient notice of the allegations against them.
Cases referred to in this blog post:
Schiff v Nine Network Australia Pty Ltd (No 3) [2023] FCA 336
Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632