Evaluative characterisations of legal proceedings (such as describing an AVO application as 'false', 'vexatious' or 'frivolous') are expressions of opinion rather than statements of fact for the purposes of the honest opinion defence under s 31 of the Defamation Act 2005 (NSW). Where an opinion is based on an assertion and denial as to the happening of particular facts, the defendant must establish the substantial truth of the denial (not merely the fact that the assertion and denial were made) to make out the defence. The ordering of jury questions in defamation trials should address the fact/opinion distinction before the question of substantial truth.
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