Perfecting Polly Peck: Defenses of Truth and Opinion in Australian Defamation Law and Practice

Sydney Law Review, Vol. 29, No. 4, p. 651, 2007

U of Melbourne Legal Studies Research Paper No. 301

39 Pages Posted: 11 Dec 2007

See all articles by Andrew T. Kenyon

Andrew T. Kenyon

University of Melbourne Law School

Abstract

Parties in civil defamation disputes very often disagree about what the publication in question means. While the differences may appear minor for example, does the publication convey that the plaintiff is guilty of some discreditable action or merely suspected of such guilt the way in which these differences are handled in law and litigation practice has great importance. Dealing well with the issue of meaning is central to litigation practices that are fair to both parties, respectful of limited court resources and responsive to the public interest in efficient and effective defamation litigation. This article examines three ways in which parties may differ about defamatory meaning, explains the contradictory labels that have been used for such differences in Australia, and considers how the Australian law on this issue has been modified in recent years. It then sets out two main contentions relevant to the uniform defamation statutes which now overlay the Australian common law on defamation. First, contrary to brief statements by the NSW Court of Appeal, the Australian common law does allow defenses for truth in relation to some types of meaning that differ from those pleaded by plaintiffs.

These defenses are now available nationwide under the uniform law. They usually arise in relation to the defense of truth, but some decisions have also applied them to publications of opinion. Second, the common law approach to this issue, which is seen particularly in recent decisions from Victoria, South Australia and Western Australia, should be reconsidered in light of evidence from litigation practice in Australia and England. The most equitable and effective approach to defenses of truth and opinion remains focused on the substance of the publication, rather than being caught in the intricacies of pleaded imputations, intricacies which have troubled defamation law in Australia for too long.

Keywords: Polly Peck, defamation, truth, opinion, Australia

Suggested Citation

Kenyon, Andrew T., Perfecting Polly Peck: Defenses of Truth and Opinion in Australian Defamation Law and Practice. Sydney Law Review, Vol. 29, No. 4, p. 651, 2007, U of Melbourne Legal Studies Research Paper No. 301, Available at SSRN: https://ssrn.com/abstract=1069242

Andrew T. Kenyon (Contact Author)

University of Melbourne Law School ( email )

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HOME PAGE: http://www.law.unimelb.edu.au/cmcl/

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