The defence of contextual truth under s 26 of the Defamation Act 2005 (NSW) and its interstate equivalents does not permit a defendant to plead back the plaintiff's imputations as contextual imputations. Contextual imputations must be imputations 'in addition to' those of which the plaintiff complains. The pleading-back practice that prevailed under s 16 of the Defamation Act 1974 (NSW) is no longer available. A defendant's available courses under the 2005 Act are: (a) justification of the plaintiff's imputations under s 25; (b) pleading nuance imputations at common law; (c) partial justification in mitigation of damages; and (d) pleading contextual imputations that are genuinely additional to the plaintiff's imputations under s 26. The question whether a plaintiff's abandoned alternative imputation may be adopted as a contextual imputation was left open.
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