[115] Seventh, the respondent must also establish that the respondent gave the person defamed an opportunity to make a reasonable response to the defamatory imputation: Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 at 252; referred to by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574.
K.2The Proper Construction of Section 30
IThe Respondents' Submissions
909 Both the respondents submitted on the proper construction of s 30, the enquiry as to the reasonableness of a respondent's conduct turns on its conduct with respect to the "defamatory matter", that is, the aspects of the publication that the applicant has selected for complaint as embodied in the imputations and not "the matter" as defined in s 4 of the Defamation Act, which provides:
"matter" includes--
(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and
(b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and
(c) a letter, note or other writing, and
(d) a picture, gesture or oral utterance, and
(e) any other thing by means of which something may be communicated to a person.
910 This means the defence does not invite some form of "roving commission of inquiry into every aspect of the broader publication, untethered from the applicant’s complaint".
911 The starting point is that positive defences at common law in defamation are pleas in confession and avoidance, and a plea that defamatory matter was published on an occasion of qualified privilege is predicated upon the existence of a defamatory imputation, that is, it assumes that the applicant's case is established (that is, it confesses the defamatory meaning). Hence it makes sense that the subject matter of the defamation, in relation to statutory defences other than justification and contextual truth is expressed as the defamatory matter not the defamatory imputations.
912 Put another way, the defamatory matter described throughout the Defamation Act is the matter the subject of the action in defamation, that is, the matter that is defamatory of the
