# Roberts-Smith v Fairfax Media Publications Pty Limited (No 41) (2023, FCA)/Part 4

​PART 4 — CONCLUSIONS WITH RESPECT TO SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH
2599 The respondents have established that Imputations 1, 2 and 3 are substantially true. The same applies to Imputations 4, 5 and 6 and, in the circumstances, the defence of contextual truth does not need to be considered in relation to the Group 2 articles.
2600 With respect to the Group 3 articles, the respondents contend that if Imputations 9, 10, 11 or 14 are found to have been conveyed or communicated by the articles, then Imputations 2 and 3 are also conveyed or communicated as contextual imputations. I do not think that that was disputed by the applicant, but whether it is disputed or not, it is certainly correct. The issue of contextual truth does arise in relation to the Group 3 articles because of the following:
    (1) I find that the Group 3 articles convey or communicate Imputations 7, 8 9 (as reformulated), 10, 11, 12, 13 and 14;
    (2) In addition, Imputations 2 and 3 are conveyed or communicated by the Group 3 articles as contextual imputations;
    (3) The respondents have shown that Imputations 9, 10, 11, 12 and 14 are substantially true and they have shown that the contextual imputations are substantially true;
    (4) The respondents have not shown that Imputations 7, 8 and 13 are substantially true.
2601 The question which then arises is whether the defamatory imputations which have not been justified do not further harm the applicant's reputation because of the substantial truth of the contextual imputations.
​2602 In undertaking the assessment of whether the defamatory imputations do not further harm the reputation of an applicant, the Court considers the facts, matters and circumstances relied upon to support the substantial truth of the contextual imputations rather than the terms of the imputations itself (see John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 per Hodgson JA at [61]).
2603 It seems to me that the result is clear in the case of Imputation 13. I have already addressed this matter in Section 10 of Part 3. That imputation does not further harm the applicant's reputation in light of the substantial truth of the contextual imputations being Imputations 2 and 3.
2604 In the case of Imputations 7 and 8, the applicant contends that it cannot be shown that those imputations do no further harm to his reputation because of the substantial truth of the contextual imputations. He relies on a line of authority supporting the proposition that a person has a reputation, or may have a reputation, which has different sectors.
2605 The applicant referred to the decision of the New South Wales Court of Appeal in O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338; (2017) 97 NSWLR 1 where Macfarlane JA (with whom Leeming JA agreed) said (at [224]–[225]):
   224 In my view this distinction between the imputations is significant. It leads me to differ from the primary judge's conclusion concerning the s 26 defence. Whilst the appellant's reputation would have been substantially damaged by contextual imputation A, her honesty would not have been impugned by it. As the plaintiff's imputation (a) did impugn her honesty, I consider that that imputation further harmed her reputation beyond that caused by the substantially true contextual imputation.
   225 The distinction to which I have referred is one between different "sectors" of the appellant's reputation, a distinction well-recognised in other aspects of defamation law: see Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430; [2001] NSWCA 322 at [16]–[23]; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335 at [162]–[186]; Holt v TCN Channel Nine Pty Ltd (2014) 86 NSWLR 96; [2014] NSWCA 90 at [29]. Whilst the level of generality at which sectors of reputation should be identified will in some cases be in doubt (see Mahommed at [182]), it is sufficient to say in the present case that the appellant's honesty and competence constitute different sectors of her reputation. Even a severe blow to the latter will not necessarily, and in my view in this case did not, affect the former. The trickery imputation did however affect the former.
2606 The respondents submit that it would be an error to apply the "different sector" approach in this case if the imputations relating to domestic violence and hypocrisy are not shown to be substantially true, but the allegations of unlawful killings in Afghanistan are proved. They ​advanced two matters in support of this submission. First, they submit that the reputation enjoyed by the applicant was based on and intrinsically linked with his military service and reputation. It was not a reputation that stood alone. As I understand this submission, it is that every aspect of the applicant's reputation is in some way linked to his military service and military deeds. To a point, I accept that that is the case. Secondly, the respondents submit that although the imputations of domestic violence and hypocrisy related to the applicant's domestic conduct in the sense of his conduct in a private relationship and in Australia, the two sets of conduct bear what the respondents described as an "uncanny similarity" in that both related to violent conduct towards a vulnerable person to whom the applicant had a duty, legal and moral, to refrain from assaulting. Both forms of conduct involved an attempted cover up. The only difference is that one assault was committed against his girlfriend, whereas the other conduct was committed against Afghan persons under confinement. I agree with this second submission. Once the conduct is clearly and fully described (and that is the appropriate basis upon which to proceed), then there is sufficient similarity in the conduct to preclude an approach based on different sectors of reputation.
2607 There is another approach which leads to the same result. The imputations which I found to be substantially true because of the conduct I have identified are so serious that the applicant has no reputation capable of being further harmed. I consider that this is an appropriate case to take such an approach.
2608 For completeness, I mention the following. In addition to the defences, the respondents plead that if the applicant has suffered any damage as a result of the imputations pleaded in the Statement of Claim, then the respondents intend to rely upon five matters in mitigation of such damage. One particular matter was identified by the respondents in their closing submissions. In assessing damages, the respondents are entitled to rely in mitigation of damages on the truth of any imputations which are found to be substantially true, as well as the evidence before the Court, directed to the plea of justification. In Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157, McColl JA (with whom Beazley and Giles JJA agreed) said (at [86]):
   In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law:
   (a) prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25;
   ​(b) prove that rather than the defamatory imputations pleaded by the plaintiff the defamatory matter carries nuance imputations which are substantially true;
   (c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification; and
   (d) to the extent the defendant cannot prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26.
2609 In Pamplin v Express Newspapers Ltd (No 2) [1988] 1 WLR 116 (Pamplin), Neill LJ said (at 120):
   There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in section 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps almost to vanishing point. Thus a defence of partial justification, though it may not present the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.
(See also Prager v Times Newspapers Ltd [1988] 1WLR 77 at 93 per Nicholls LJ.)
2610 The principle in Pamplin has been applied in this country (Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361 at [86]; Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770 (Holt v TCN Channel Nine)).
2611 Again for completeness, I note that consideration has been given, particularly in a number of New South Wales cases, to whether adverse credit findings made against a plaintiff or applicant in defamation proceedings may be used against the plaintiff or applicant in mitigation of damages in those proceedings (Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Channel Seven Sydney v Mahommed; Holt v TCN Channel Nine).
2612 Finally, I record the fact that part of the respondents' mitigation of damages plea is that the applicant has a general bad reputation within the SASR of the ADF and that this is a matter which acts in mitigation of damages.