## Facts

- A newspaper published an article criticizing Avery, an SPCA officer, for how he dealt with a dog that had been worrying goats.
- The article alleged Avery shot the dog from a long distance, left it suffering before returning to shoot again, and portrayed the scene as exceptionally bloody.
- Avery sued for libel, alleging the publication portrayed him as incompetent and cruel in the performance of SPCA duties.
- The publisher pleaded (1) justification (truth) and (2) fair comment (honest opinion) on a matter of public interest as alternative defences.
- At trial, the judge directed the jury to assess truth for factual statements and fairness for comments, and indicated he would not treat certain graphic phrases as comment; the jury found for Avery and awarded damages.
- The publisher sought a new trial for misdirection; the trial judge refused, and the publisher appealed.

## Issues

1. How a jury should be directed to distinguish statements of fact from comment in a publication mixing both, including vivid or figurative language.
2. How the Defamation Act 1954 (NZ) ss 7–8 apply when justification and fair comment are both pleaded and not every factual allegation is proved true.
3. Whether any misdirection concerning fact/comment classification and the statutory scheme required setting aside the verdict and ordering a new trial.

## Decision

- The Court of Appeal construed ss 7–8 as relaxing the strict requirement that every defamatory factual allegation be proved true for justification or fair comment to succeed.
- Under s 7, justification may succeed if a substantial portion of the defamatory imputations is proved true and any unproved parts do not materially add to reputational harm in light of what is proved.
- Under s 8, fair comment does not necessarily fail because some factual statements within a mixed fact/comment publication are unproved, if the unproved parts do not materially increase the injury and the comment is fair in relation to the proved facts.
- The Court emphasized careful jury directions where both defences are pleaded, including identifying which parts are fact (requiring proof) and which are comment (requiring fairness/honesty on a factual basis).

## Legal Principles

- A defamatory statement of fact must be justified as true (subject to statutory “substantial truth” rules); fair comment cannot convert an untrue defamatory assertion of fact into protected opinion.
- Comment may be strong, exaggerated, or severe if it is recognizable as opinion, concerns a matter of public interest, is honestly held, and is based on facts that are proved or sufficiently established.
- Statutory justification permits success despite minor inaccuracies where the main defamatory sting is proved and remaining inaccuracies do not materially worsen reputational injury.
- For mixed fact/comment publications, statutory fair comment may succeed despite failure to prove every factual detail if the unproved details do not materially increase harm and the comment remains fair relative to proved facts.
- Trial judges should direct juries separately on (a) truth of factual allegations, (b) whether challenged words are comment or fact, and (c) how statutory tolerances for non-material inaccuracies affect both defences.

## Conclusion

The Court of Appeal treated the case as a leading construction of the Defamation Act 1954 (NZ) on justification and fair comment in mixed fact/opinion publications, holding that non-material factual inaccuracies need not defeat these defences and emphasizing precise jury directions distinguishing fact from comment.


Truth (N.Z.) Ltd. v. Avery, [1959] N.Z.L.R. 284 (N.Z. C.A. 1958)