Uniform Civil Procedure Rules 2005
Current version for 9 April 2020 to date (accessed 6 June 2020 at 12:36)
Part 14 Division 6
Division 6 Pleadings concerning defamation
Note.
 The Defamation Act 2005 applies to the publication of defamatory matter after the commencement of that Act. The Act commenced on 1 January 2006. However, the Defamation Act 1974 (as in force before its repeal by the Defamation Act 2005) continues to apply to the following causes of action by virtue of clause 2 (Application of this Act) of Schedule 4 (Savings, transitional and other provisions) to the Defamation Act 2005
(a)  a cause of action for defamation that accrued before 1 January 2006,
(b)  a cause of action for defamation that accrued after the commencement of the Defamation Act 2005, but only if—
(i)  the action is raised in proceedings that include other causes of action that accrued before 1 January 2006, and
(ii)  the action accrued no later than 12 months after the earliest pre-1 January 2006 action accrued, and
(iii)  each action in the proceedings arose out of the publication of the same, or substantially the same, matter on different occasions.
Clause 2 of Schedule 4 to the Defamation Act 2005 also ensures that any other law (both legislative and common law) that would have applied to such causes of action but for the enactment of the new Act will continue to apply to such causes of action.
14.30   Allegations in statements of claim generally
(cf SCR Part 67, rule 11; DCR Part 49, rule 10)
(1)  A statement of claim seeking relief in relation to the publication of defamatory matter must not include any allegation that the matter or its publication was false, malicious or unlawful.
(2)  Any such statement of claim must—
(a)  subject to subrule (3), specify each imputation on which the plaintiff relies, and
(b)  allege that the imputation was defamatory of the plaintiff.
(3)  A plaintiff in proceedings for defamation must not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance.
14.31   Defamation defences generally
(cf SCR Part 67, rules 13 and 19(1); DCR Part 49, rule 12)
(1)  Subject to rules 14.32–14.40, a defendant in proceedings for defamation must plead any defamation defence specifically.
(2)  If the plaintiff in defamation proceedings complains of two or more imputations, the pleading of any of the following defences must specify to what imputation or imputations the defence is pleaded—
(a)  a defence under section 15(2) or 16(2) of the Defamation Act 1974,
(b)  a defence under section 25 or 26 of the Defamation Act 2005,
(c)  the defence of justification at common law.
(3)  If a plaintiff intends to meet any defamation defence—
(a)  by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or
(b)  by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005, defeats the defence,
then the plaintiff must plead that allegation or matter of defeasance by way of reply.
14.32   Defence of justification generally
(cf SCR Part 67, rule 14; DCR Part 49, rule 13)
(1) Defence under Defamation Act 1974 Subject to rule 14.31(2), a defence under section 15(2) of the Defamation Act 1974 is sufficiently pleaded if it alleges—
(a)  that the imputation in question was a matter of substantial truth, and
(b)  either—
(i)  that the imputation in question related to a matter of public interest, or
(ii)  that the imputation in question was published under qualified privilege.
Note.
 The defence of justification under section 15(2) of the Defamation Act 1974 applies to the exclusion of the common law defence of justification. See section 15(1) of the Defamation Act 1974.
(2) Defences under Defamation Act 2005 and at common law Subject to rule 14.31(2), a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true.
Note.
 The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24(1) of the Defamation Act 2005.
14.33   Defence of contextual truth
(cf SCR Part 67, rule 15; DCR Part 49, rule 14)
(1) Defence under Defamation Act 1974 Subject to rule 14.31(2), a defence under section 16 of the Defamation Act 1974 is sufficiently pleaded if it—
(a)  alleges either—
(i)  that the imputation in question related to a matter of public interest, or
(ii)  that the imputation in question was published under qualified privilege, and
(b)  specifies one or more imputations on which the defendant relies as being contextual to the imputation in question, and
(c)  as to the contextual imputations on which the defendant relies—
(i)  alleges either that they related to a matter of public interest or that they were published under qualified privilege, and
(ii)  alleges that they were matters of substantial truth, and
(d)  alleges that, by reason that the contextual imputations on which the defendant relies are matters of substantial truth, the imputation in question did not further injure the reputation of the plaintiff.
(2) Defence under Defamation Act 2005 Subject to rule 14.31(2), a defence under section 26 of the Defamation Act 2005 is sufficiently pleaded if it—
(a)  specifies one or more imputations on which the defendant relies as being contextual to the imputation in question, and
(b)  alleges each contextual imputation on which the defendant relies was substantially true, and
(c)  alleges that the imputation in question did not further harm the reputation of the plaintiff because of the contextual imputations on which the defendant relies.
14.34   Defence of absolute privilege
(1)  This rule applies—
(a)  to a defence of absolute privilege under Division 3 of Part 3 of the Defamation Act 1974 or under section 27 of the Defamation Act 2005, and
(b)  to the defence of absolute privilege at common law.
(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under absolute privilege.
14.35   Defences for publication of public and official documents
(1) Defence under section 25 of Defamation Act 1974 A defence under section 25 of the Defamation Act 1974 is sufficiently pleaded if it alleges that the matter complained of was—
(a)  a document or record specified as a document or record to which that section applies or a copy of such a document or record, or
(b)  a fair summary of, or a fair extract from, such a document or record.
(2) Defence under section 27 of Defamation Act 1974 A defence under section 27 of the Defamation Act 1974 is sufficiently pleaded if it alleges that the matter complained of was a notice published in accordance with the direction of a court.
(3) Defence under section 28 of Defamation Act 2005 A defence under section 28 of the Defamation Act 2005 is sufficiently pleaded if it alleges that the matter complained of was contained in—
(a)  a public document or a fair copy of a public document, or
(b)  a fair summary of, or a fair extract from, a public document.
14.36   Defences of fair report of proceedings of public concern
(1) Defences under Defamation Act 1974 A defence under section 24 of the Defamation Act 1974 is sufficiently pleaded if it alleges that—
(a)  the matter complained of was a fair protected report, or
(b)  the matter complained of was a later publication by the defendant of—
(i)  a protected report or a copy of the protected report, or a fair extract or fair abstract from, or fair summary of, a protected report that was previously published by another person, or
(ii)  material purporting to be a protected report or a copy of a protected report, or of a fair extract or fair abstract from, or fair summary of, material purporting to be a protected report that was previously published by another person,
and the defendant did not have knowledge that should have made the defendant aware that the protected report is not fair or the material purporting to be a protected report was not a protected report or is not fair.
(2) Defences under Defamation Act 2005 A defence under section 29 of the Defamation Act 2005 is sufficiently pleaded if it alleges that—
(a)  the matter complained of was, or was contained in, a fair report of any proceedings of public concern, or
(b)  the matter complained of—
(i)  was, or was contained in, an earlier published report of proceedings of public concern, and
(ii)  was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report,
and the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.
14.37   Defence of qualified privilege
(cf SCR Part 67, rule 16; DCR Part 49, rule 15)
(1)  This rule applies—
(a)  to a defence under Division 4 of Part 3 of the Defamation Act 1974 or section 30 of the Defamation Act 2005, and
(b)  to any other defence of qualified privilege other than any of the following—
(i)  a defence under Division 5, 6 or 7 of Part 3 of the Defamation Act 1974,
(ii)  a defence under section 28, 29 or 31 of the Defamation Act 2005,
(iii)  the defence of fair comment at common law.
(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under qualified privilege.
14.38   Defences of comment or honest opinion
(cf SCR Part 67, rule 17(1) and (2); DCR Part 49, rule 16(1) and (2))
(1) Defences under Defamation Act 1974 A defence under Division 7 of Part 3 of the Defamation Act 1974 is sufficiently pleaded if, as to the matter it alleges was comment, it—
(a)  either—
(i)  alleges that the comment was comment based on proper material for comment and on no other material, or
(ii)  alleges that the comment was comment based to some extent on proper material for comment and represented an opinion that might reasonably be based on that material to the extent to which it was proper material for comment, and
(b)  alleges that the comment related to a matter of public interest, and
(c)  either—
(i)  alleges that the comment was the comment of the defendant, or
(ii)  alleges that the comment was the comment of a servant or agent of the defendant, or
(iii)  alleges that the comment was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.
Note.
 A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974.
(2) Defences under Defamation Act 2005 A defence under section 31 of the Defamation Act 2005 is sufficiently pleaded if, as to the matter it alleges was opinion, it—
(a)  either—
(i)  alleges that the opinion was based on proper material and on no other material, or
(ii)  alleges that the opinion was an opinion based to some extent on proper material and represented an opinion that might reasonably be based on that material to the extent to which it was proper material, and
(b)  alleges that the opinion was an opinion related to a matter of public interest, and
(c)  either—
(i)  alleges that the opinion was an expression of opinion of the defendant, or
(ii)  alleges that the opinion was an expression of opinion of an employee or agent of the defendant, or
(iii)  alleges that the opinion was an expression of opinion of a person other than the defendant or an employee or agent of the defendant.
Note.
 A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24(1) of the Defamation Act 2005.
(3) Defence of fair comment at common law A defence of fair comment at common law is sufficiently pleaded if, as to the matter it alleges was comment, it—
(a)  alleges that the comment was comment based on true facts or material that was published under privilege, and
(b)  alleges that the comment related to a matter of public interest.
(c)    (Repealed)
Note.
 See the note to subrule (2).
14.39   Defence of innocent dissemination
A defence under section 32 of the Defamation Act 2005 is sufficiently pleaded if it alleges that—
(a)  the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor, and
(b)  the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and
(c)  the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.
14.40   Defence of triviality
(1)  This rule applies to—
(a)  a defence under section 13 of the Defamation Act 1974, and
(b)  a defence under section 33 of the Defamation Act 2005.
(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm.