In defamation proceedings, matters pleaded in mitigation of damages that allege the plaintiff's sharp practice or self-interested conduct in the same sector of life as the defamatory imputation are at least reasonably arguable as 'directly relevant background context' under the Burstein principles and should not be struck out on a pleadings application. The Burstein principles, though of uncertain scope, are applicable in Western Australia and are not confined to cases where the plaintiff has made a prior defamatory publication against the defendant. Section 38(2) of the Defamation Act 2005 (WA) does not limit the matters that can be taken into account in mitigation of damages.
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