Contextual Truth and Nothing But the Truth: Besser v Kermode [2011] NSWCA 174

The contextual truth defence is the most complicated, convoluted and confusing defences available in defamation at common law. Under the 2005 Act, it means that the defendant claims this:

The words don’t mean that… they mean this other thing, which is actually worse… and happens to be true. So there.”

This came up before the NSW Court of Appeal. It resulted from an article in the Sydney Morning Herald that was published in September 2008 entitled “Free Ride: Mr Taxi’s $20 million windfall.”

The plaintiff pleaded a range of imputations and the defendant pleaded substantial truth and contextual truth. For the purposes of the latter, the defendant “pleaded back” some of the plaintiff’s imputations. The plaintiff applied to strike out those paragraphs of the contextual truth defence that “pleaded back” the plaintiff’s imputations. Apparently that was allowed under the NSW 1974 Act, and then the jury would simply weigh up all of the true and untrue imputations, and whichever came out on top – well, that was the winner.

So in Besser, the NSW Court of Appeal had the opportunity to consider the defence under the 2005 Act and compare it to the defence under the NSW 1974 Act, the common law and generally write a treatise that touched vaguely on an old English case called “Polly Peck.”

The question for this case was whether, in pleading the contextual imputations that arise from the words, could the defendant “plead back” some of the plaintiff’s owns imputations. Section 26 requires the defendant to plead contextual imputations that are “in addition to” those pleaded by the plaintiff. So clearly, the answer has to be NO doesn’t it?

Well, the answer was no, but it took 43 pages and 92 paragraphs to get there. On the way, analysis of the former NSW legislation, the second reading speech for the 2005 Act, the position at common law, the legislative context and the parliament’s intention.

So we’re glad that’s all cleared up.

Now the case can go back to the plaintiff’s imputations….

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