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People may find it hard to understand how the defence of the truth was thrown out in the Federal Court recently as a result of argument by lawyers that News Corp could not plead the truth of the allegations against Geoffery Rush as a defence to his claim of defamation.
The decision does not mean that the truth cannot be pleaded as a defence, what it does highlight is the fact that a party relying upon truth must have the evidence of the truth of the allegations in its possession when forming the belief that it is entitled to make the comments that later on are argued to be defamatory and at least at the time of filing their defence.
In this case they did not have that evidence but were relying upon supposition in relation to the existence of an apparent report in the possession of a third party that might have proven the allegations were true. The point the Judge made was that they didn’t have the report when they published their article about Geoffery Rush nor when they filed their defence and could not therefore rely upon that report as evidence supporting their plead of truth or justification for the matters raised in the newspaper article.
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