Order 8 Division 7 of the National Court Rules 1983 applies, by Rule 83, to proceedings for defamation. It sits on top of the ordinary pleading rules, not in place of them.
Rule 84 — publications and innuendo
The particulars required by Rule 29 in relation to a statement of claim shall include —
(a) sufficient particulars of the publications in respect of which the proceedings are brought to enable the publications to be identified; and
(b) where the plaintiff alleges that the matter complained of was used in a defamatory sense other than its ordinary meaning — particulars of the facts and matters on which he relies in support of that sense.
Each publication must be pinned down: what was said or written, by whom, to whom, when, and in what medium. A newspaper article needs the date, page and edition; a broadcast needs the programme and time; a social media post needs the account and date.
Where several publications are complained of, particularise each. Each publication is a separate cause of action, which matters for limitation and for the allotment of any payment into Court under Rule 71(2).
Where words are innocuous on their face but defamatory to those who know some extrinsic fact — “Mr X was seen leaving the building at midnight”, defamatory only to readers who know what happened in the building that night — the plaintiff must plead the facts and matters that give the words that sense.
Without those particulars, the defendant cannot plead to the meaning alleged, and the pleading is exposed to Rule 27.
Rules 85 and 86
A defendant shall specifically plead any defence of protection, justification or excuse of law.
Where a defendant pleads fair comment — whether by way of rolled-up plea or otherwise — the Rule 29 particulars shall include —
(a) where the basis of the comment includes facts not stated in the matter complained of — particulars stating those facts;
(b) where the basis includes facts stated in the matter complained of — particulars stating which words he alleges are statements of fact, and on which of those he relies; and
(c) particulars of the facts and matters on which he relies to establish the truth of the facts on which he relies as the basis for the comment.
(2) Where a defendant pleads truth and public benefit, the Court’s powers under Rule 36 extend to ordering particulars of the facts relied on to establish that the publication was made for the public benefit and that the matter complained of was true.
The rolled-up plea — “in so far as the words consist of statements of fact they are true, and in so far as they consist of comment they are fair comment” — was historically used to avoid separating fact from comment. Rule 86 requires the separation anyway: the defendant must say which words are statements of fact.
Rule 87 — the mandatory reply
Where a plaintiff intends to meet any defence by alleging that the publication was not in good faith —
(a) the plaintiff shall plead that allegation by way of reply; and
(b) the particulars in the reply shall include particulars of the facts and matters from which the absence of good faith is to be inferred.
Rule 5(1) requires a reply in Form 17 within 14 days where one is needed for compliance with Rule 14 or Rule 87 (defamation). Rule 87 is the second of those two.
A plaintiff who wants to attack the defendant’s good faith must therefore plead it, with particulars of the facts from which the absence of good faith is to be inferred — malice, knowledge of falsity, recklessness, an improper purpose. It cannot be raised for the first time at trial.
Rules 88 and 91
In actions for libel or slander where the defendant does not by his defence assert the truth of the statement, the defendant shall not be entitled at trial to give evidence in chief, with a view to mitigation of damages, as to the circumstances under which the libel or slander was published, or as to the character of the plaintiff, without the leave of the Judge, unless at least seven days before the trial he furnishes particulars to the plaintiff of the matters on which he intends to give evidence.
Interrogatories as to the sources of information or grounds of belief of the defendant shall not be allowed on an issue —
(a) whether the whole or any part of the matter complained of was fair comment; or
(b) whether the publication by the defendant of the matter complained of was in good faith.
Rule 91 restricts interrogatories on those two issues only. It is a rule about interrogatories, not a general journalistic privilege, and it does not by its terms answer questions of discovery of documents.
Rules 89 and 90
Rule 89 — Rule 80(1), the non-disclosure rule for payments into Court, does not apply to money brought into Court under section 26 of the Defamation Act 1962.
Rule 90 — where a plaintiff accepts money brought into Court in satisfaction of a defamation cause of action, he may, with the leave of the Court, make in open Court a statement approved by the Court in private; and where proceedings are settled before trial, a party may do likewise.
Damages compensate, but they do not correct the record. Rule 90 lets a plaintiff who settles obtain the vindication of a public statement — approved by the Court in private first, so its terms are agreed and measured.
It is available both on acceptance of money paid in and on a settlement before trial.
The Defamation Act 1962 is not available on PacLII at the time of writing. Rules 89 and 90 of the National Court Rules, set out above, govern the procedure; the substantive defences and section 26 are in that Act, which should be consulted in its current form.
Sources
- National Court Rules 1983 — O 8 rr 5, 14, 27, 29, 36, 71, 80, 83–91; O 9; Form 17
- Defamation Act 1962 — not available on PacLII
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.