australia defamation process
Why is it said that pre-trial procedures are &quot;heavily skewed in favour of a plaintiff&quot; in cases of defamation in Australia?
<p>After losing a defamation lawsuit, ABC (Australia) said in a <a href="https://www.bbc.com/news/world-australia-55897657" rel="nofollow noreferrer">statement</a> that</p>
<blockquote>
<p>This case has again starkly demonstrated fundamental problems with Australian defamation law and pre-trial procedures being heavily skewed in favour of a plaintiff.</p>
</blockquote>
<p>What exactly in the procedure generally favors the plaintiff in defamation cases in Australia?</p>

<h2>Because they lost</h2>
<p>The procedure was espoused by Aesop in <a href="http://read.gov/aesop/005.html" rel="nofollow noreferrer">The Fox &amp; the Grapes</a> - don't listen to the loser when they complain that the game was rigged.</p>
<p>Also, don't complain that &quot;that's not how they do it in England&quot; - how they play they game in other places is irrelevant.</p>
<h2>The plaintiff sets the terms of the case</h2>
<p>Defamation is rarely about out and out lies - media organisations are too savey to straight out call someone a kiddie fondler. Instead they present information is such a way that such a conclusion might be imputed. The plaintiff in a defamation case gets to choose the imputations that they want to rely on.</p>
<p>In <a href="https://commbarmatters.com.au/2019/09/04/gradations-of-meaning-and-variant-imputations-in-abc-v-wing/?doing_wp_cron=1612251879.1827270984649658203125#_ftn1" rel="nofollow noreferrer">ABC v Wing</a>:</p>
<blockquote>
<p>Dr Chau alleges the publications, in their natural and ordinary meaning, conveyed the following six imputations:</p>
<ul>
<li><p>Dr Chau betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party (CCP) by engaging in espionage on their behalf;</p>
</li>
<li><p>Dr Chau is a member of the CCP and of an advisory group to that party, the People’s Political Consultative Conference, and, as such, caries out the work of a secret lobbying arm of the CCP, the United Front Work Department (United Front);</p>
</li>
<li><p>Dr Chau 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 CCP;</p>
</li>
<li><p>Dr Chau 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 CCP;</p>
</li>
<li><p>Dr Chau paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe;</p>
</li>
<li><p>Dr Chau was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.</p>
</li>
</ul>
<p>Dr Chau further alleges the conveyance of a true innuendo to the effect that he broke his pledge of loyalty to Australia as an Australian citizen.</p>
<p>In their defence, the respondents alleged that each of the above imputations was substantially true. Further, the respondents sought to allege substantial truth in respect of variants of the applicant’s imputations. Each variant imputation corresponded to those set out above but was prefaced by the words ‘There are reasonable grounds to believe that…’.</p>
</blockquote>
<p>The trial judge, Rares J, rejected that defence and refused leave to file an amended defence because &quot;there was a substantive distinction between suspicion and fact, rendering each of the respondents’ variant imputations impermissible variants of Chau’s pleaded imputations. His Honour also determined that the proposed particulars of truth in the schedule to the defence and the proposed amended defence did not provide a basis for the inferences alleged to arise therefrom, did not properly particularise allegations of knowledge, failed to comply with the rules of pleading, and could not reasonably support the plea of truth to the applicant’s imputations.&quot; All of the trial judge's findings were upheld on appeal at the Full Bech of the Federal Court and the High Court did not give leave to appeal so this is the definitive law in Australia.</p>
<p>That is, the imputation that someone is <strong>suspected</strong> of doing A is different from the one where they <strong>did</strong> A. Obviously, a publication can convey either or both of those imputations but if they do contain both, the plaintiff gets to decide which one they want to sue over.</p>
<blockquote>
<p>In their Honours’ view, only a precise analysis of the words used and their context will reveal:</p>
<p>…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… .</p>
</blockquote>
<p>So, the preliminary ruling was that they couldn't run a defence that it was true that Dr Chau was <em>suspected</em> of the things they said because his suit was based on the imputation that he <em>did</em> those things.</p>
<blockquote>
<p>In the immediate sense, the effect of the Full Court’s decision has been to deny the respondents a defence of justification, without which they are left to argue that the imputations pleaded by Wing are not conveyed by the publications, and otherwise rely on a defence of qualified privilege.</p>
</blockquote>
<p>That is, as they couldn't raise the truth of the suspicion, they had to demonstrate that they did not impute that Dr Chau did these things. And they couldn't. So they lost.</p>
<p>As an aside: these allegations and documents supporting some of them have been raised in Parliament both before and after the trial. Parliamentary statements are privileged which means that the parliamentarian who made them cannot be sued for defamation.</p>

<p>If someone needs slightly more explanation, this (i.e. plaintiff choosing meaning of &quot;the sting&quot;) has been the procedure for at least two decades in Australia, as explained in a
<a href="https://www.liv.asn.au/LIV-Home/Practice-Resources/Law-Institute-Journal/Archived-Issues/LIJ-September-2002/-The-Sting----Meeting-the-libel" rel="nofollow noreferrer">2002 article</a>; furthermore such meaning may/does include inferences one could draw from the material:</p>
<blockquote>
<p>defining the sting lies in the hands of the plaintiff, the defendant will need to prove as true or opinion what the plaintiff says is the sting of the article. It is not open to the defendant to prove as true or opinion what the defendant says the article really means, if different. To do so would not answer the plaintiff’s complaint. The defendant would be failing to “meet the libel”. [...]</p>
<p>What is the sting of a publication? To answer this, it is first necessary to understand how defamatory meanings are derived and pleaded.</p>
<p>Often the most crucial exercise in setting up a defamation claim is to establish the meanings conveyed by the publication. The material must speak for itself. What the defendant intended to convey is generally irrelevant.</p>
<p>The plaintiff is confined to relying either on any “natural and ordinary” meaning (which includes direct meanings or <strong>inferences arising from the material) or any “true innuendo” meaning (a special meaning conveyed by the material to those with knowledge of extrinsic facts or circumstances)</strong> or both.</p>
<p>The technical term for each such meaning is “imputation”. The plaintiff must specifically, and with precision, plead each imputation relied on. The material may contain many imputations, but the plaintiff is entitled to choose one or more to complain about.</p>
<p>The defendant can launch a pre-emptive strike on the pleaded imputations in two ways. One way is to demonstrate to a judge that a pleaded imputation is simply not capable of arising from the publication. A second way is to demonstrate that, although the imputation does arise, it is not capable of being defamatory. If the defendant succeeds either way, then the claim is bad in law and will be struck out by a judge.</p>
<p>If the defendant cannot launch such a challenge, then issues as to whether the pleaded imputation does actually arise, and whether it is actually defamatory, are questions of fact. These questions must then be left to be determined by a judge or jury (i.e. the arbiter of fact), depending on the mode of trial.</p>
<p>[...]</p>
<p>in denying the plaintiff’s imputations (and hence, in support of a contention that the plaintiff has failed to make out a cause of action), a defendant is entitled to plead alternative meanings which it says are conveyed by the publication, but “as no more than an elaborate or explanatory traverse of the meanings alleged by the plaintiff”.</p>
</blockquote>
