Words in a pleaded defamatory imputation that describe the plaintiff's capacity or role (such as 'as head of ACN') may be treated as surplusage where the article does not confine its sting to conduct in that specific capacity, and the trial judge may find variant imputations that omit such words. A justification defence is not confined to the specific capacity or time period imported by surplusage in the plaintiff's pleading. An offer to capitulate in defamation proceedings can be a 'genuine' and 'reasonable' settlement offer under s 40 of the Defamation Act 2005 (Vic), particularly where the plaintiff has unique knowledge that the justification defence is well-founded, and rejection of such an offer can be unreasonable.
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