New South Wales Consolidated Regulations New South Wales Consolidated Regulations(cf SCR Part 67, rule 17(1) and (2); DCR Part 49, rule 16(1) and (2))
(1) Defences under Defamation Act 1974 A defence under Division 7 of Part 3 of the Defamation Act 1974 is sufficiently pleaded if, as to the matter it alleges was comment, it--(a) either--(i) alleges that the comment was comment based on proper material for comment and on no other material, or(ii) alleges that the comment was comment based to some extent on proper material for comment and represented an opinion that might reasonably be based on that material to the extent to which it was proper material for comment, and(b) alleges that the comment related to a matter of public interest, and(c) either--(i) alleges that the comment was the comment of the defendant, or(ii) alleges that the comment was the comment of a servant or agent of the defendant, or(iii) alleges that the comment was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.Note : A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974 .
(2) Defences under Defamation Act 2005 A defence under section 31 of the Defamation Act 2005 is sufficiently pleaded if, as to the matter it alleges was opinion, it--(a) either--(i) alleges that the opinion was based on proper material and on no other material, or(ii) alleges that the opinion was an opinion based to some extent on proper material and represented an opinion that might reasonably be based on that material to the extent to which it was proper material, and(b) alleges that the opinion was an opinion related to a matter of public interest, and(c) either--(i) alleges that the opinion was an expression of opinion of the defendant, or(ii) alleges that the opinion was an expression of opinion of an employee or agent of the defendant, or(iii) alleges that the opinion was an expression of opinion of a person other than the defendant or an employee or agent of the defendant.Note : A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24(1) of the Defamation Act 2005 .
(3) Defence of fair comment at common law A defence of fair comment at common law is sufficiently pleaded if, as to the matter it alleges was comment, it--(a) alleges that the comment was comment based on true facts or material that was published under privilege, and(b) alleges that the comment related to a matter of public interest.Note : See the note to subrule (2).