person bringing the action. The defences only come to be considered in relation to a pleaded matter if, and only if, the Court finds that the matter was defamatory of the applicant.
913 It is said any textual argument relying on the non-exclusive definition of "matter" is of no moment. The section needs to be read as a whole and words defined in legislation apply "except in so far as the context or subject-matter otherwise indicates or requires" (see s 6 of the Interpretation Act 1987 (NSW) and cognate provisions).
914 Although the term "defamatory matter" is not defined, it is contended its meaning is clear from its deployment, including its deployment in contradistinction to the term "the matter" elsewhere in the Defamation Act, such as:
- (1) s 28 which provides that it is a "defence to the publication of defamatory matter if the defendant proves that the matter was contained in … a public document or a fair copy of a public document, or … a fair summary of, or a fair extract from, a public document"; if the terms "defamatory matter" and "the matter" in s 28 were references to the publication as a whole, then the words "was contained in" would have no work to do;
- (2) s 29 which provides that it is a "defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern"; again, if the terms "defamatory matter" and "the matter" were references to the publication as a whole, then the words "or was contained in" would be otiose; and
- (3) s 31 which provides for a defence of honest opinion that applies, relevantly, "to the publication of defamatory matter if the defendant proves that … the matter was an expression of opinion of the defendant rather than a statement of fact…"; the words "defamatory matter" and "the matter" cannot be a reference to the publication as a whole; otherwise there would never be a defence of honest opinion available in relation to a matter that admixed fact and opinion, which, as the respondents correctly point out, is the reality in almost every honest opinion case; hence the provision only makes sense if the words "defamatory matter" and "the matter" are understood as referring to the aspects of the publication selected for complaint by the applicant: see Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150; (2022) 109 NSWLR 468, where Leeming JA (with whom Mitchelmore
