Last Updated: 28 June 20191
First Published: 12 April 2018

  • Past Updates:

    1. 28 June 2019: Published detailed section on 'Indirect Identification' which includes references and case extracts.
    2. 17 June 2019: Moved original article titled, 'In the Imputation Defamatory?' to this page and placed the article's case extracts and references into popover footnotes.
    3. 15 June 2019: Published 'Bibliography' and 'About the Author'.
    4. 12 April 2019: Published case example of the imputation, 'negligence'.
    5. 24 January 2019: Published infographic on 'A Simple Overview of Defamation Law'.
    6. 15 Janurary 2019: Published a case example of the imputation, '#metoo/sexual allegations'.
    7. 12 Janurary 2019: Published case example of the imputations, 'harassment', 'theif' and 'sexist'. Published a case example of the platforms Facebook and email.
    8. 21 October 2018: Published overview of defamation elements and defamation defences, 'What is Defamation?', 'How Can a Lawyer Help Me?', 'If I Win, How Much Will I Get?', 'How Much Does a Court Case Cost?', 'What Are the Chances That I Will Win?', 'Which Lawyers/Law Firms are Most Experienced in Defamation Court Cases?', 'Can I Sue for Social Media or Internet Posts?', and 'Are Defamation Cases Reserved Only for the Rich & Famous? No.'
    9. 12 April 2018: First published under the name, 'Is the Imputation Defamatory?'

 
 
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Defamation is the area of law that is concerned with a person’s damaged reputation. The law previously used the terms ‘libel’ and ‘slander’ however these terms are no longer is use and instead fall under the general term, ‘defamation’. This article is an in-depth guide to the law of defamation written for the everyday person, not for the legal professional. If you would like to read the complex legal technicalities, provided at the end of this article is a list of resources.

Below is an infographic which presents a simple overview on the law of defamation.

Defamation Overview Infographic v7.png
 

Table of Contents


1. What Is Defamation?

2. How Can a Lawyer Help Me?

2.1 If I’ve Been Defamed, or

2.2 If I’ve Been Accused of Defamation

3. If I Go to Court:

3.1. How Much Money Can I Win?

3.2. How Much Money Does a Court Case Cost?

3.3. What Are the Chances That I Will Win?

3.4. Which Lawyers/Law Firms Are Most Experienced in Defamation Court Cases?

4. Additional Information:

4.1. Can I Sue for Social Media or Internet Posts?

4.2. Are Defamation Cases Reserved for the Rich and Famous?

5. Defamation Law: An Overview

5.1. Elements of Defamation

5.1.1. Imputations

5.1.1.1. Summary

5.1.1.2. Step 1: What Does the Matter Impute?

5.1.1.3. Step 2: Is the Imputation Defamatory?

5.1.1.3.1. The General Test

5.1.1.3.1.1. Business/Professional/Trade Reputation

5.1.1.3.2. Shunned or Avoided

5.1.1.3.3. Hatred, Contempt, or Ridicule

5.1.1.3.3.1. Ridicule

5.1.1.3.4. General Principles

5.1.2. Identification

5.1.2.1. Summary

5.1.2.2. Direct/Explicit Identification

5.1.2.3. Indirect/Implicit/Innuendo Indentification

5.1.3. Publication

5.2. Defences to Defamation

5.2.1. The defence of justification

5.2.2. The defence of contextual truth

5.2.3. The defence of absolute privilege

5.2.4. The defence of qualified privilege for provision of certain information

5.2.5. The defence for publication of public documents

5.2.6. Defences of fair report of proceedings of public concern

5.2.7. The defence of fair and accurate report of judicial proceedings

5.2.8. The defence of fair and accurate report of foreign judicial proceedings

5.2.9. The defence of fair and accurate report of quasi-judicial proceedings

5.2.10 The defence of fair and accurate report of parliamentary proceedings

5.2.11. Defences of honest opinion

5.2.12. The defence of innocent dissemination

5.2.13. The defence of triviality

5.2.14. The defence of consent

5.2.15. The defence of illegality

5.2.16. The defence of time-limitation

5.3. Who Can Sue for Defamation?

5.3.1. Companies

5.3.2. Partnerships

5.3.3. Unincorporated Associations

5.3.4. Government Bodies

5.3.5. Politicians

5.3.6. Individuals

5.3.7. Non-Australians

5.3.8. Dead People

5.3.9. Third Parties

6. Examples of Defamation Cases

6.1. Imputations:

6.1.1. #MeToo/Sexual Allegations

6.1.2. Harassment

6.1.3. Thief

6.1.4. Sexist

6.1.5. Negligence

6.2. Platforms:

6.2.1. Facebook

6.2.2. Email

7. Further Reading

8. Bibliography

8.1. Legislation

8.2. Cases

8.3. Textbook & Books

8.4. Journal Articles

8.5. Miscellaneous

9. About the Author

1. What is Defamation?

Defamation is the area of law that is concerned with a person’s damaged reputation. The law previously used the terms ‘libel’ and ‘slander’ however these terms are no longer is use and instead fall under the general term, ‘defamation’. 

Defamatory publications can come in the form of Facebook posts, Twitter posts, emails, internet articles, online business reviews, Google search results, YouTube, blog posts, SMS text messages, newspaper articles, radio shows, television shows, poems, novels, cartoons, paintings, photographs, songs, and so on.

Often, a defamer will not explicitly say what they mean, such as “James Draper is a fraud.” Instead, they will insinuate the meaning. The law calls this interpretation of the publication an ‘imputation’. Some examples of imputations include, “James Draper is a scammer”, “James Draper is a pedophile”, “James draper provides bad services.”

Some other imputations from past cases have included: (James Draper) is a scammer; provides bad services; blames others for his own problems; delays work; deserves to be fired form work; incompetent; mismanages business; deceiving; dishonest; insulting; a scab; is a bully; is a thief; is a pedophile; is a rapist; threatened to kill; threatened to rape; is a criminal; had sex with his sisters; promiscuous; used his employment to elicit sexual relationships; had sex with students; is a sexual predator; is a war criminal; collaborated with Nazis; is trying to institute Nazism into Australia; and so on. 

How Do I Know Whether the Publication is Defamatory? 

Ultimately, this is for the judge and jury to decide. However, the law states that in order for a publication to be defamatory, the typical ordinary person must view the material as likely to damage a person’s reputation. To illustrate, if you hypothetically presented several strangers with the alleged defamatory publication, those people would have to conclude that the publication would damage the person’s reputation. Alternatively, a publication can be defamatory if it is likely to cause a person to be subjected hatred, contempt, or ridicule, or if it is likely to cause a person to be shunned or avoided.

2. How Can a Lawyer Help Me?

The lawyer will assess your situation and provide options for you. This may include the following:

2.1. If I’ve Been Defamed

Concerns Notice: Lawyers may draft, prepare and serve a Concerns Notice. A concerns notice informs the other party the material and its meaning which you believe are defamatory.


Offer to Make Amends: 
The other party has 28 days to respond to the Concerns Notice and to make an offer to repair the situation. This may include a written apology, retraction of defamatory material, publication of a correction, a promise not to publish defamatory material in the future, or compensation. The lawyer may advise you on whether you should accept or reject the offer.


Court: If you think the Offer to Make Amends is not satisfactory, the lawyer may advise you on whether you should initiate court proceedings and they may act on your behalf. 

Remove the Online Post: Lawyers may help you attempt to remove the defamatory material posted online. 


Letter of Demand: Lawyers may draft, prepare and send a letter of demand.

2.2. If I’ve Been Accused of Defamation

 

Offer to Make Amends: When you have received a Concerns Notice, you have 28 days to respond and make an offer to amend the defamatory material. This may include a written apology, retraction of defamatory material, publication of a correction, a promise not to publish defamatory material in the future, or compensation. The lawyer may advise you what you should offer to the other party, if anything.

Court: If the other party commences proceedings against you, the lawyer may offer to act on your behalf. 

2.3. Other

Pre-Publication Review: Lawyers may provide businesses or public figures with pre-publication review services. This where the lawyers will review the material and assess whether this may expose you to unwanted defamation claims.

3. If I Go to Court:

3.1. How Much Money Can I Win?

A lawyer cannot guarantee you the amount of money the judge will award. However, the following will give you a very general idea based-off past cases and some factors which judges will take into consideration when assessing damages (compensation amount).

Firstly, below is a list of all cases from the past 10 years which have been awarded compensation. This data for this graph was primarily collected from jade.io by examining every case from the last 10 years in the category ‘Communications, Media and Defamation’ and recording the compensation for defamation cases. Note that this graph separates each plaintiff (the person suing) because within the one case, plaintiffs can be awarded largely different amounts.

Compensation for Defamation Cases (2008 - 2018)


To download an Excel Spreadsheet of this graph, click here.

As the above graph demonstrates, there is an enormous variation in the amount the judge awards a defamed person. For example, one case was awarded $500 and another case was awarded $850,000. The average award from 2008 to 2018 was $120,276, however, as there is such a wide variation, this is not meaningful. Instead, below is a graph which shows the distribution of awards.

Distribution of Awards for Defamation Cases (2008 - 2018)

Distribution of Awards for Defamation Cases (2008 - 2018)


To download an Excel Spreadsheet of this graph, click here.

The above graph shows the most common awards are under $50,000. After $50,000, the likelihood of a higher award becomes progressively less common.

In general, for the lower compensation amounts, the reach of the defamatory material tends to be small, such as to a hand-full of people. For the higher-compensation amounts, the defamatory material tends to be wide-spread over the media, repeated many times over, and or negatively affected the person’s financial situation.

3.1.1. How Does the Judge Determine the Amount of Compensation?

There are three main categories of damages (compensation) which the judge may consider. Firstly, compensation for non-economic loss, secondly, compensation for aggravated damages, and thirdly, compensation for economic loss.

Compensation for Non-Economic Loss: The purpose of awarding damages for non-economic loss is to 1) provide consolation for the person harmed, 2) act as vindication for the person harmed, and 3) act as reparation. For the damages to act as vindication, the damages should in theory be sufficient enough to convince the bystander that the defamer was baseless. 

The court may look at a number of factors when calculating damages for non-economic loss:

  • The court may consider the person’s injured feelings. To prove this, the court may look at whether the person has been ostracised from friends and clubs;

  • The court may consider loss of business.

The maximum for damaged that can awarded for non-economic loss is $389,500. However, this limit can be exceeded with ‘aggravated damages.’ Further, compensation for economic loss does not have a limit. 

Compensation for Aggravated Damages: Aggravated damages may be awarded when the conduct of the defamer increased injury to the defamed. This may include conduct prior to publication, conduct after publication, and conduct at the trial itself. 

Some factors for consideration include: 

  • Whether the defamer failed to make proper inquiries prior to publication;

  • Whether the defamer repetitively published defamatory material; 

  • Whether the defamer retaliated at the defamed for suing them;

  • Whether the apology was inadequate, however an apology is not needed;

  • Whether the publication material was false;

  • And whether the defamer conducted themselves poorly in court, such as arguing baseless defenses.

Compensation for Economic Loss:  Compensation for economic loss seeks to compensate for loss of profit, loss of income, loss of business, loss of employment, loss of opportunity to earn income, and so on. Compensation for economic loss has no maximum amount that can be awarded, however, the court will not engage in speculation and guess work. The court may require an expert to verify or assess the loss. 

3.2. How Much Does a Court Case Cost? 

Generally, the losing party is ordered to pay the winning party’s legal fees. The costs of going to court is very expensive and can range very roughly from $20,000 to $800,000 or higher. In the case Kostov v Nationwide News Pty Ltd (No.1) [2018] NSWSC 1822, the defendant’s (the person who was sued) legal fees totalled $20,000. Alternatively, in the case Moran v Schwartz Publishing Pty Ltd (No 2) [2015] WASC 35, the defendant’s fees were estimated to total $780,000. 

3.3. What Are the Chances That I Will Win or Lose?

There is no way of determining the odds of success without a lawyer examining your matter. Even then, a lawyer’s estimation is not a guarantee. In saying that, the success rate from past cases may give you some insight. From 2013 to 2017, the plaintiff (the person suing) won only 34.9% of the time. This means, the plaintiff lost 65.1% of the time.

Defamation: Plaintiffs vs Defendants

Plaintiffs vs Defendants: Who Won More Often? (2013 - 2017)


Reference: University of Technology Sydney, Centre for Media Transition, Trends in Digital Defamation: Defendants, Plaintiffs, Platforms

Note, we define the defendant to have ‘won’ when the plaintiff’s claim was dismissed for any reason. For example, the imputations were not conveyed, the imputations were not defamatory, the defendant could not be identified, or the defendant’s defence was successful.

 3.4. Which Lawyers/Law Firms are Most Experienced in Defamation Court Cases?

 

The data for the graph below was collected from Lexis Advance by (1) searching for the name of the firm in the ‘representation’ filter, (2) filtering by the topic defamation, and (3) counting the number of different defamation cases up until the end of 2018.

Some notes about data collection. Firstly, cases generally cite the names of the law firms which represented the client, not the names of the individual lawyers. For this reason, names of individual lawyers are excluded as it is extremely difficult to collect this data. Secondly, the kind of defamation cases that are included in this graph is broad. For example, it includes defamation trials, application for leave to initiate defamation proceedings as a vexatious litigant, appeals, application to extend time in order to initiate defamation proceedings, security for costs for defamation proceedings, application for jury trial, discovery, summary dismissal, application to strike-out imputations, etc. Note that many matters included many proceedings and they were only counted as one. For example, application for strike-out imputations, the trial itself, and many appeals were counted as one case, not multiple cases. Thirdly, while this is as accurate as one can reasonably be, there may be a case or two that is missing or added. Fourthly, the data was collected at the start of 2019 and most firms advertised defamation services on their website. Firms which did not advertise defamation services on their website and had zero defamation cases were not included in this graph due to irrelevance.

Which Lawyers/Law Firms are Most Experienced in Defamation Litigation?


As shown from the graph above, the top five most experienced law firms for running defamation court cases are (1) Banki Haddock Fiora, (2) Johnson Winter & Slattery Lawyers, (3) Gilbert + Tobin, (4) Goldsmiths Lawyers / Australian Defamation Lawyers, and (5) Mark O’Brien Legal (excluding the ‘big six firms’).

4. Additional Information

4.1. Can I Sue for Social Media or Internet Posts?

Absolutely. In fact, from 2013 to 2017, 51% of cases were digital defamation cases.

Percentage of Digital to Non-Digital Defamation Cases (2013 - 2017)

Percentage of Digital to Non-Digital Defamation Cases (2013 - 2017)


Reference: University of Technology Sydney, Centre for Media Transition, Trends in Digital Defamation: Defendants, Plaintiffs, Platforms


For interest, the graph below shows which platforms are most common for digital defamation. This includes Facebook, Twitter, Google, email, text messages, and non-mainstream websites.

Which Digital Platforms were Most Common for Defamation Cases (2013-2017)

Which Digital Platforms were Most Common for Defamation Cases (2013-2017)


4.2. Are Defamation Cases Reserved Only for the Rich & Famous? No.

 

Traditionally, defamation cases have involved public figures against media organisations. However, this has changed over the years. From 2013 to 2017, only 21% of cases were initiated by ‘public figures’ which means 79% of defamation cases were initiated by everyday people. Note, a ‘public figure’ is defined by people who are celebrities, high profile politicians, local council/government members, ambassadors, high profile doctors, lawyers, and businessmen/women.

Percentage of Cases for 'Public Figures' and Everyday People (2013 - 2017)


Reference: University of Technology Sydney, Centre for Media Transition, Trends in Digital Defamation: Defendants, Plaintiffs, Platforms

Furthermore, from 2013 to 2017, only 25.9 of defendants were media organisations. This means everyday people are litigating defamation matters more often than public figures and media organisations.

5. Defamation Law: An Overview

This section provides a description on the law of defamation in Australia. There are two major components. (1) The ‘elements’ of defamation and (2), the defences to defamation. The elements of defamation are broken into three parts: (a) the imputations; (b) identification; and (c) publication. There are series of defences and these are listed below in contents. Additionally, other matters which are important to defamation law in include (3) who can sue for defamation?

Contents


5.1. Elements of Defamation

5.1.1. Imputations

5.1.1.1. Summary

5.1.1.2. Step 1: What Does the Matter Impute?

5.1.1.3. Step 2: Is the Imputation Defamatory?

5.1.1.3.1. The General Test

5.1.1.3.1.1. Business/Professional/Trade Reputation

5.1.1.3.2. Shunned or Avoided

5.1.1.3.3. Hatred, Contempt, or Ridicule

5.1.1.3.3.1. Ridicule

5.1.1.3.4. General Principles

5.1.2. Identification

5.1.2.1. Summary

5.1.2.2. Direct/Explicit Identification

5.1.2.3. Indirect/Implicit/Innuendo Indentification

5.1.3. Publication

5.2. Defences to Defamation

5.2.1. The defence of justification

5.2.2. The defence of contextual truth

5.2.3. The defence of absolute privilege

5.2.4. The defence of qualified privilege for provision of certain information

5.2.5. The defence for publication of public documents

5.2.6. Defences of fair report of proceedings of public concern

5.2.7. The defence of fair and accurate report of judicial proceedings

5.2.8. The defence of fair and accurate report of foreign judicial proceedings

5.2.9. The defence of fair and accurate report of quasi-judicial proceedings

5.2.10 The defence of fair and accurate report of parliamentary proceedings

5.2.11. Defences of honest opinion

5.2.12. The defence of innocent dissemination

5.2.13. The defence of triviality

5.2.14. The defence of consent

5.2.15. The defence of illegality

5.2.16. The defence of time-limitation

5.3. Who Can Sue for Defamation?

5.3.1. Companies

5.3.2. Partnerships

5.3.3. Unincorporated Associations

5.3.4. Government Bodies

5.3.5. Politicians

5.3.6. Individuals

5.3.7. Non-Australians

5.3.8. Dead People

5.3.9. Third Parties

 

Each will be addressed accordingly. But before, the law of defamation is quite complex, so while the following section is written for the everyday person, some general legal terms need to be used.

 

General Legal Terms 

  • Plaintiff = The person suing.

  • Defendant = The person defending themselves.

  • Matter = An article, report, advertisement, newspaper, magazine, report, television, radio, the internet, letter, note, picture, gesture, spoken word, etc.

  • Imputation = The interpretation of the matter. For example, an article may not explicitly say that the plaintiff is a fraud, but we know in actuality that this is what the article is insinuating. Thus, in this case, imputation would be: ‘The plaintiff is a fraud.’

Footnote Popovers

Note the footnote popovers. Some of these footnotes contain many references. See image below as example.

Footnote Popover Example.png
 

5.1. The Elements of Defamation

Contents


5.1.1. Imputations

5.1.1.1. Summary

5.1.1.2. Step 1: What Does the Matter Impute?

5.1.1.3. Step 2: Is the Imputation Defamatory?

5.1.1.3.1. The General Test

5.1.1.3.1.1. Business/Professional/Trade Reputation

5.1.1.3.2. Shunned or Avoided

5.1.1.3.3. Hatred, Contempt, or Ridicule

5.1.1.3.3.1. Ridicule

5.1.1.3.4. General Principles

5.1.2. Identification

5.1.2.1. Summary

5.1.2.2. Direct/Explicit Identification

5.1.2.3. Indirect/Implicit/Innuendo Indentification

5.1.3. Publication

 

5.1.1. Imputations

Contents


5.1.1.1. Summary

5.1.1.2. Step 1: What Does the Matter Impute?

5.1.1.3. Step 2: Is the Imputation Defamatory?

5.1.1.3.1. The General Test

5.1.1.3.1.1. Business/Professional/Trade Reputation

5.1.1.3.2. Shunned or Avoided

5.1.1.3.3. Hatred, Contempt, or Ridicule

5.1.1.3.3.1. Ridicule

5.1.1.3.4. General Principles

 

5.1.1.1. Summary


Often, the defendant will not explicitly say what they mean. For example, ‘James Draper is a fraud.’ Instead, they insinuate that he is a fraud within the publication. The law calls this interpretation of the publication an ‘imputation’.

 

Firstly, the court must agree with the plaintiff that the publication conveys the imputations which the plaintiff alleges. Secondly, if the court agrees that the publication does convey the imputation, the court must then decide whether the imputation is actually defamatory or not.

 

There are three ways that the imputation can be defamatory. One, the typical ordinary person would likely perceive the publication to lower the plaintiff’s reputation in the eyes of others. To illustrate, if you hypothetically presented strangers with the alleged defamatory material, those people would likely conclude that the material would damage a person’s reputation. Two, the publication is likely to subject the plaintiff to hatred, contempt and ridicule. Three, the publication is likely to subject the plaintiff to being shunned or avoided, that is, the material is so egregious that people would probably avoid the plaintiff.

 

The plaintiff does not need to prove whether people actually think lower of them, or prove whether they have been subjected to hatred, contempt or ridicule, or prove whether they have been shunned or avoided. Instead, the plaintiff needs to convince the court that the defendant’s publication was so horrendous that it would obviously cause their reputation to be lowered, or subjected to hatred, contempt, ridicule, or shunned or avoided.

5.1.1.2. Step 1: What Does the Matter Impute? (This section is under construction. The Law Project apologises for the inconvenience.)




5.1.1.3. Step 2: Is the Imputation Defamatory?


After step 1 is completed, that is, after the matter’s imputations are established, the next step is to determine whether the imputation is in fact defamatory. The legislation does not address this section of the law, instead it is found in the common law. 1


There are several separate tests to establish whether the meaning is defamatory. They are as follows:

  1. General Test;
  2. Shunned or Avoided;
  3. Hatred, Contempt, or Ridicule.

More than one test is not needed to satisfy a defamatory imputation. The ‘general test’ is seen to be the primary test and the other tests are seen as secondary to the general test.


5.1.1.3.1. The General Test


The general test for whether an imputation is defamatory is found in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16:

[3] A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

[36] …whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.


The principles for the general test include:

  1. The imputation must damage the plaintiff's reputation. 2
  2. To determine whether the plaintiff’s reputation has been damaged, the imputation must likely cause people to think less of the plaintiff. 3
  3. For example, in the classic case Sim v Stretch [1936] 2 All ER 1237, a handmaid was employed by the Sim’s and later employed by the Stretch’s. The Sim’s persuaded the handmaid to work for them again and subsequently sent a telegraph to the Stretch’s which said, ‘[The handmaid] has resumed her service with us today. Please send her possessions and the money you borrowed, also her wages…”. The imputation was that the Stretch’s were in financial difficulties, however, the imputation was held not to be defamatory.

    In Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, The Australian newspaper published an article with the heading, ‘CARPICE OWNER DECLARED BANKRUPT BY COURT’. However, the Newspaper made an error. The restaurant owner did not go bankrupt, instead, the restaurant manager went bankrupt. The article did specify that it was the manager that went bankrupt, however, a person that read the heading may think it was the owner. The restaurant owner sued for defamation with the imputation that he was financially unsound. The High Court held that the imputation was defamatory.

    Note, whether the plaintiff’s reputation has been lowered does not necessarily mean whether the plaintiff’s moral standing has been lowered.4


5.1.1.3.1.1. Business/Professional/Trade Reputation


A person can be defamed not only in their personal reputation but also in their business/profession/trade reputation.


For example, in Mirror Newspapers v Jools [1985] FCA 181 the Daily Telegraph gave the impression in an article that a surgeon made a mistake during an operation which caused the death of a patient. The imputation was that the surgeon was incompetent/negligent. However, it was the anaesthetist that made the mistake, not the surgeon.


Also, in Rogers v Nationwide News Pty Limited [2003] HCA 52, the Daily Telegraph reported that a surgeon’s patient became blind due to the surgeon’s negligence. The imputation was that the patient became blind due to the surgeon’s inadequate performance. However, the surgery itself, even when performed to perfection, carries the risk that the patient will become blind. The patient became blind due to the type of surgery, not due to the performance of the surgeon.


Another example is in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, three newspapers published that a building was leaking substantial amounts of water. The imputation was that the architect who designed the building was incompetent. Click footnote for more cases.5


A defamatory imputation may include a ‘lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional capacity.’6 An imputation of dishonesty may also be defamatory.7


The principles for business/professional/trade reputation include:

  1. The same general test applies to a person’s personal reputation, a person’s business reputation, or a person’s professional reputation.8
  2. If the imputation is in relation to a person’s business, the imputation must involve ‘some reflection upon his personal character or upon the mode in which he carries on his business, his business reputation.’9 In John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, Gleeson CJ And Crennan J at [2] provides a hypothetical example:

    "Suppose someone says: "X is a thoroughly decent person, but he is showing signs of age; his eyesight is poor, and his hands tremble". That would not be a reflection on X's character. It would be likely to evoke sympathy rather than hatred, ridicule or contempt. If, however, X were a surgeon, the statement could be damaging. To say that someone is a good person, but a dangerously incompetent surgeon, is clearly likely to injure the person's professional reputation."

    However, there is not necessarily a dichotomy between a person's character and their business reputation.10

  3. Reputational damage to a person’s business or goods does not constitute defamation.11 Instead, damage to a person’s business reputation constitutes defamation. Note the distinction.
  4. A defamatory imputation does not require an imputation of moral fault or defect in personal character.12

5.1.1.3.2. Shunned or Avoided


Another test for whether the imputation is defamatory is if the imputation is likely to cause others to shun or avoid the plaintiff. 13


Some examples of 'shunned or avoided' include:

  • In Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 a woman was falsely accused of being raped.
  • In Morgan v Lingen (1863) 8 LT 800, the plaintiff was accused of being insane.
  • In Henry v TVW Enterprises Ltd (1990) 3 WAR 474, an imputation of hepatitis B was held to be defamatory.
  • In the old case of Villers v Monsley (1769) 2 Wils 403, the plaintiff was falsely accused of having a serious contagious or infectious disease. The defendant had written about the plaintiff saying that he smelt of brimstone and one of the lines included, ‘You old stinking, old nasty, old itchy old toad…’ Lord Wilmot, CJ held:

    "...if any man deliberately or maliciously publishes any thing in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases ...Nobody will eat, drink, or have any intercourse with a person who has the itch and stinks of brimstone; therefore I think this libel actionable, and that judgment must be for the plaintiff."

    Gould, J concurring with Wilmot, CJ held:

    "What is the reason why saying a man has the leprosy or plague is actionable? [It] is because the having of either cuts a man off from society; so the writing and publishing maliciously that a man has the itch and stinks of brimstone, cuts him off from society. I think the publishing any thing of a man that renders him ridiculous is a libel and actionable..."

  • In Zbyszko v New York American Inc (1930) 239 NYS 411, the plaintiff, a wrestler, was compared having the appearance of a primitive gorilla.14

An example of an imputation which does not cause the plaintiff to be shunned or avoided is referring to the plaintiff as ugly.15


The principles for 'shunned or avoided' include:

  1. It is not a requirement that the plaintiff’s reputation is damaged.16
  2. It is irrelevant whether the plaintiff is at fault or whether the plaintiff is immoral.17

5.1.1.3.3. Hatred, Contempt, or Ridicule


An imputation may be defamatory if it exposes the plaintiff the ‘hatred, contempt, or ridicule.’18


The principles for 'hatred, contempt' or ridicule' include:

  1. The phrase ‘calculated to injure’ (from the founding case Parmiter v Coupland and Another (1840) 151 ER 340) means objectively ‘objectively likely’ to injure, not ‘subjectively intended’ to injure.19
  2. It is not a requirement that the plaintiff’s reputation is damaged.20
  3. While the ‘hatred contempt or ridicule’ test has been criticised, the test is still working and in operation.21

5.1.1.3.3.1. Ridicule


An imputation may be defamatory if it is likely to cause the plaintiff to be ridiculed. Some examples of ridicule include:

  • In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, the plaintiff was a professional rugby league player and a newspaper contained the heading, ‘BOYD IS FAT, SLOW AND PREDICTABLE’ and later described Boyd as ‘waddling’ on to the field.
  • Or, in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, the plaintiff was photographed naked in the shower and the photo was published in a magazine.
  • In McDonald v North Queensland Newspaper Company Ltd [1997] 1 Qd R 62, the plaintiff was a rugby league player and a newspaper published a photograph showing the plaintiff ‘passing the football while being tackled and, in each, part of his penis was visible outside the right leg of his shorts.’

The principles for ridicule include:

  1. The plaintiff must be subjected to ‘more than a trivial degree of ridicule’.22
  2. It is irrelevant whether the plaintiff is at fault.23

5.1.1.3.4. General Principles


The following principles apply to all three tests where appropriate:

  1. It is irrelevant what the defendant intended the matter to mean. The tests are objective and must be viewed through the lens of the ordinary reasonable person.24 Other names for the 'ordinary reasonable person' include: 'ordinary reasonable reader (listener or viewer)’;25 'hypothetical referee’;26 ‘hypothetical audience’;27 ‘ordinary decent folk’;28 'fair minded reader’;29 ‘reasonable men’;30 ‘ordinary men’;31 ‘ordinary good and worthy subject of the King';32 ‘standard’;33 ‘yardstick’.34 Note that the name, ‘right thinking members of society generally’,35 is rejected.36 Further note that "[w]hether all these characterisations remain relevant … is open to question."37
    1. The qualities of the 'ordinary reasonable person' include:
      • The ordinary reasonable person "does not live in an ivory tower".38
      • The ordinary reasonable person "is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs."39

      • The ordinary reasonable person is "expected to bring to the matter in question their general knowledge and experience of worldly affairs."40
      • The ordinary reasonable person has a "general knowledge of the ways of people and the world against which the words must be construed."41
      • The ordinary reasonable person "is a layman not a lawyer and … his capacity for implication is much greater than that of a lawyer."42
      • The more sensational the matter, the less analytical care the ordinary reasonable person will take.43
      • The ordinary reasonable person is not "avid for scandal".44
      • The ordinary reasonable person does not have background knowledge of the situation.45
      • The ordinary reasonable person does not have "special knowledge".46
      • The ordinary reasonable person is not "morbid".47
      • The ordinary reasonable reader is not "suspicious of mind"48 or have views of extreme "suspicion".49
      • The ordinary reasonable person does not have views of extreme "cynicism (on the one hand) or naivety and disbelief (on the other)."50
      • The ordinary reasonable person is not "perverse".51
      • The ordinary reasonable person "may be ‘described as "of ordinary intelligence, experience, and education""52 or "fair average intelligence".53
      • The ordinary reasonable person is "fair-minded".54
      • The ordinary reasonable person strikes a balance between extreme views.55
      • The ordinary reasonable person is "taken to have a uniform view of the meaning of the language used".56
      • The ordinary reasonable person does not morally judge the plaintiff.57

      The rationale for the ordinary reasonable person is explained by Kirby J in Chakravarti v Advertiser Newspapers Limited [1998] HCA 37 at [134]:

      "In practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decision-maker. The point of the invocation of the hypothetical reasonable person is to remind decision-makers that they may, or may not, reflect the response of the average recipient of the communication and should make allowance for that possibility."

    2. The ordinary reasonable person takes the views of the general community, not sections of the community.58
      1. The ‘general community’ does not mean all of the community. An ‘appreciable and reputable section of the community’ is sufficient.59 For example, in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, Hutley JA argued at 686 that someone who terminate pregnancies (plaintiff) may be seen as immoral by a substantial section of the community which can result in hatred, ridicule or contempt, but another section of the community may not see the plaintiff as immoral.
        1. However, the phrase ‘appreciable and reputable section of the community’ probably does not mean a small minority of the community.60

  2. Must take into account current social trends.61 Some examples of social trends which have changed overtime include:
    • The imputation of being a communist. In Cross v Denley (1952) 52 SR (NSW) 112, "Some of the plaintiff’s customers who read the newspaper item … not unreasonably form the conclusion that the plaintiff … was a man who sympathised with the aims of the Communist Party." However, in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [140], "Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference."
    • The imputation of being an adulterer. In Clark v Vare [1930] NZLR 430 and Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, imputations of adultery were held to be defamatory. However, in Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708, Hutley JA considers that the imputation of adultery could no longer be defamatory.62

    • The imputation of being a homosexual. The imputation of homosexuality in recent history has been capable of being defamatory. For example, in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [140]:

      "At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory."

      However, in Tassone V Kirkham [2014] SADC 134 at [35] Judge Cole held:

      "The email clearly conveys that the plaintiff was homosexual. I do not consider, in the context of this case, that that aspect of the meaning of the email is, by itself, defamatory in the general community of contemporary South Australia, or among the recipients of the email."

  3. The tests do not require that the effect of the test has actually occurred. For example, the test that a person’s reputations must be diminished in their community, does not actually have to be diminished. Instead, it’s whether the effect of the test has the ‘tendency or likelihood’ of it occurring.63
  4. It is not required to prove that the imputation is untrue.64

  5. The plaintiff does not have to prove that the defendant intended the matter to be defamatory. The intention of the publisher is irrelevant.65
  6. An imputation may be defamatory under multiple tests. For example, in Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022, a low-grade pornographic magazine published a water polo player who’s breasts were exposed with sexual overtones. The matter qualified for both the ‘ridicule or contempt’ test and the ‘shunned or avoided’ test.66
  7. The imputation must identify the act or condition attributed to the plaintiff. For example, in Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, Zoo Magazine published an image of a member of the Greens Party where her head was photo-shopped onto a woman in her underwear. ‘The plaintiff's pro-asylum seeker stance is ridiculous.’ The defence submitted that the article and image was plainly a joke. McCallum J held that the imputation was about the politician's political stance, not the politician herself.67
    1. The requirement to identify the action of condition attributed to the plaintiff is firstly, a matter of degree, and secondly, the degree will be dependent upon the facts and circumstances of the case.68

  8. An imputation that only contains the consequence of a defamatory meaning in the imputation itself, may be struck-out. To contrast, an imputation should contain the defamatory meaning, not purely the consequence of the defamatory meaning.69 To illustrate, imagine that the plaintiff has been accused of wrongfully touching children. Here is the wrong phrasing of an imputation: 'The plaintiff behaved in such a way as to cause people within society to think less of the plaintiff.' Instead, here is the better phrasing: 'The plaintiff is a pedophile.'
  9. Harmless jokes do not qualify as defamatory.70 For example in Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564, the Herald Sun published an article about a football coach having childhood abandonment and attachment issues.
    1. However, a joke may still qualify as defamatory if it is likely to subject the plaintiff to ridicule.71 In Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, Zoo Magazine published an image of a member of the Greens Party where her head was photo-shopped onto a woman in her underwear.

  10. Vulgar abuse or insulting name calling does not automatically quality as defamatory. Vulgar abuse can in fact be defamatory, but it does not follow that it is always defamatory. The opposite is also true, that is, vulgar abuse does not mean that the matter was not defamatory.72
  11. If the plaintiff built their reputation through an illegal activity, the court will not consider an imputation which has damaged their reputation.73 For example, a drug dealer who has their drug dealing reputation damaged. "The rationale for this test is that the court will not assist a plaintiff seeking compensation for an illegal activity."74

    1. David Rolph, Defamation Law (Thomson Reuters, 2016) 6.220.

    1. The following phrases are different expressions of the one point:

      • "It is disparagement of reputation which is the essence of an action for defamation.": Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [32].
      • "[Damage is] the gist of an actionable imputation.": Dow Jones & Company Inc v Gutnick [2002] HCA 56, [3].
      • "[I]t is defamation's concern with reputation, and the significance to be given to damage (as being of the gist of the action)...": Dow Jones & Company Inc v Gutnick [2002] HCA 56, [42].
      • "The essence of the action in defamation was that the publication of defamatory matter operated as a disparagement of the plaintiff's reputation": Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, [11].
      • "At common law, in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him.": Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, [11].

    1. The following phrases are different expressions of the one point:

      • "…[whether the publication would] tend to lower the plaintiff in the estimation of right-thinking members of society generally.": Sim v Stretch [1936] 2 All ER 1237 at 1240. However, the words ‘right-thinking’ have been criticised on several occasions. In Slatyer v Daily Telephraph Co Ltd (1908) 6 CLR 1 at 7:

        "The only criticism that I have to make upon that passage, and indeed upon the whole of the judgment, which, I think, accurately expresses the law and the proper rule to be applied to the case, is as to the use of the phrase “right thinking ” which has unfortunately come to have an ambiguous meaning. But, read in the light of the context, it obviously means a man of fair average intelligence."

        And in Potts v Moran (1976) 16 SASR 284 at 303:

        "I prefer to make the criterion the estimation of the reasonable man rather than the right thinking man, a phrase which, to my mind, involves questionbegging assumptions and circuity of reasoning. It is hard to feel much confidence in a conclusion drawn from a conflation of the two propositions, “This conduct is wrong because right thinking persons condemn it” and “Right thinking persons condemn this conduct because it is wrong”."

        Finally, in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 at [38]:

        "The expression "right‑thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them."

      • "…[whether the publication] is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the plaintiff].": Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171, 172 (Jordan CJ).
      • "[The publication is] of a kind that is likely to lead ordinary decent folk to think less of the person about whom it is made.": Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 88.
      • "…a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him.": Mirror Newspapers Ltd V World Hosts Pty Ltd (1979) 141 CLR 632, [11].
      • "To be defamatory of the plaintiff, the imputation relied upon must be such as is likely to cause ordinary decent folk in the community, taken in general, to think the less of him.": Boyd v Mirror Newspapers [1980] 2 NSWLR 449, 452 (Hunt J).
      • "So far as is relevant to the matter now under consideration, the legal issue which had to be decided was whether the material complained of was defamatory of the plaintiff in the sense that it was to his "discredit ... [tended] to lower him in the estimation of others [(Gatley on Libel and Slander, 8th ed (1981) par 31)].": Chakravarti v Advertiser Newspapers Limited [1998] HCA 37, [57].
      • "A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.": Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [3].
      • "…whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.": Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [36].

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [37]:

      "The reference in the general test, as stated in Sim v Stretch, to a plaintiff being "lowered in the estimation" of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect."

    1. I give credit to Kim Gould for compiling this list in 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review at footnote 261:


      • Pratten v Daily Labour [1926] VLR 115;
      • Potts v Moran (1976) 16 SASR 284 (politician)
      • Fairfax v Punch (1980) 31 ALR 624 (politician)

      • Baric v Doherty [1987] Aust Torts Reports 80-135 (solicitor)
      • Queensland Newspapers v Palmer [2011] QCA 286
      • Pratten v Daily Labour Ltd [1926] VLR 115 (politician)
      • Random House Australia v Abbott (1999) 94 FCR 296 (politician
      • Brander v Ryan (2000) 78 SASR 234 (politician)
      • Steiner Wilson & Webster Pry Ltd v Amalgamated Television Services Pry Ltd (2000) Aust Torts Reports 81-537 (ACTSC) (business)
      • Shepheard v Whitaker (1875) LR 10 CP 502 (business)
      • Aspro Travel Ltd v Owners Abroad Group plc [1995] 4 All ER 728 (CA) (business)
      • Coyne v Citizen Finance Ltd (1991) 172 CLR 211 (business)
      • Hewitt v Queensland Newspapers Pry Ltd (SC(ACT), Higgins J, 5 June 1995, unreported) (business)
      • Ratcliffe v Evans [1892] 2 QB 524 (CA) (business)
    1. Drummond-Jackson v British Medical Association [1970] 1 WLR 688, 699.

    1. Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467, [34]:

      "The imputation of dishonesty alleged was the absence of a quality which, I consider, must be taken as being an essential attribute of a teacher in the proper performance and discharge of his or her professional duties. To be said to be dishonest directly reflects on both the personal and professional character and qualities of persons in the position of the appellants. To return to the submission put by counsel for the appellants, the imputation could admit of only one answer, namely that it was defamatory."




      Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201, [19]:

      "Ordinarily, the imputation that a person has lied or is guilty of dishonest behaviour will be regarded as defamatory. This inference will be even more readily drawn if the imputation is that the person lied or was dishonest in the course of his or her business."

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [36]:

      "The concept of "reputation" in the law of defamation comprehends all aspects of a person's standing in the community. It has been observed that phrases such as "business reputation" or "reputation for honesty" may sometimes obscure this fact. In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person's reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff. An imputation which defames a person in their professional or business reputation does not have a different effect. It will cause people to think the less of that person in that aspect of their reputation. For any imputation to be actionable, whether it reflects upon a person's character or their business or professional reputation, the test must be satisfied."

    1. Sungravure Pty Ltd V Middle East Airlines Airliban SAL (1975) 134 CLR 1, [13]:

      "[If the imputation is in relation to a person’s business, the imputation must involve] some reflection upon his personal character or upon the mode in which he carries on his business, his business reputation."




      Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [10] (French CJ, Gummow, Kiefel and Bell JJ):

      "It is not in dispute that persons may be defamed in their business reputation. The common law has for some time recognised that words may not only reflect adversely upon a person's private character, but may injure a person in his or her office, profession, business or trade. This may be so where the words reflect upon the person's fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person's reputation."

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [46] (French CJ, Gummow, Kiefel and Bell JJ):

      "That moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation does not suggest a true dichotomy as between imputations of that kind and those as to character, with different standards applying to each. Rather it confirms as practicable the general test as applying in all cases involving all aspects of reputation."

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA:

      "[11] The remedy which the law provides for injury to a person's business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation but to the business or goods of a person. The former is provided by an action for defamation, the latter by that for injurious falsehood. Lord Esher MR explained the distinction in South Hetton Coal Co Ltd v North‑Eastern News Association Ltd. A false statement that a wine merchant's wine is not good, which is intended to and does cause loss to the wine merchant's business, is an injurious (or "malicious") falsehood. A statement reflecting upon that person's judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons that the action for injurious falsehood is more closely allied to an action for deceit.

      [12] … Accordingly for present purposes, a publication must have an effect upon the reputation of the plaintiff rather than upon the business, trade or profession of the plaintiff as such."

    1. Drummond-Jackson v British Medical Association [1970] 1 WLR 688, 699 (Lord Pearson): "…words may be defamatory of a trader or business man or professional man, though they do not impute any moral fault or defect of personal character."

    1. Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581, 587:

      "… the matter is defamatory … if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on their part … [those people] have been held to be entitled to bring an action to protect their reputation and honour.

      One may, I think, take judicial note of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectful consideration of the world."




      Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [4]:

      "It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society."

    1. Zbyszko v New York American Inc (1930) 239 NYS 411 (McAvoy J):

      "The usual allegations as to the defamatory words and pictures are set out, to wit, that they were wholly false and untrue; that the plaintiff enjoyed an international reputation for dignity, fine traits of human character, kindliness, intelligence and culture; that besides being a person of prominence in the field of national and international sports and athletics, the plaintiff was a business man who had many business dealings both in this country and abroad with many worthy persons, who treated and received him on the basis of equality, both physically and intellectually; that the said defamatory words and pictures held up the plaintiff to public contempt, disgrace, hatred, infamy and reproach, caused him to be shunned and avoided and to be treated as an outcast by his wife, relatives, neighbors, friends and business associates, and injured him in his professional calling and deprived him of his standing among good and worthy people."

    1. Berkoff v Burchill [1996] 4 All ER 1008 (Phillips LJ):

      "It is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the plaintiff, but it is axiomatic that the words must relate to an attribute of the plaintiff in respect of which hearsay alone is enough to provoke this reaction. That was once true of a statement that a woman had been raped and would still be true of a statement that a person has a serious infectious or contagious disease, or is physically unwholesome or is mentally deranged. There is precedent for holding all such statements defamatory. There is, however, with one possible exception, no precedent for holding it defamatory to describe a person as ugly. In my judgment, such a statement differs in principle from those statements about a person's physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact -- illness, madness, filthiness or defilement. Hearsay factual statements about a person's physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual's features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person's features.

      . . .

      My conclusion is that a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the plaintiff."

    1. Sungravure Pty Ltd V Middle East Airlines Airliban SAL (1975) 134 CLR 1, [54]: "Imputations by which others are likely to be caused to shun or avoid the plaintiff depend not on damage to the plaintiff's reputation, but on the tendency of the imputation to exclude the plaintiff from society."

    1. Alexander v. Jenkins (1892) 1 Q.B. 797, 800 (Lord Herschell): "It is not necessary that there should be imputation of immoral or disgraceful conduct."




      Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, 587: "[t]he question whether [the plaintiff] is or is not the more or less moral seems . . . immaterial in considering this question whether she has been defamed."




      John Fairfax v Punch (1980) 31 ALR 624, 632-3.




      Random House Australia Pty Ltd v Abbott [1999] FCA 1538, [22].




      Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, 447:

      "This imputation does not assert any moral blame for the exposure upon the plaintiff himself. It is well accepted law that, to be defamatory of a person, the imputation conveyed concerning him need not assert blame if it nevertheless tends to make other persons shun or avoid the plaintiff — for example, by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587."

    1. In Parmiter v Coupland and Another (1840) 151 ER 340, the Hampshire Advertiser newspaper published about the late mayor in the borough of Winchester. The newspaper imputed "partial and corrupt conduct, and ignorance of his duties as mayor and justice of the peace for the borough." Park B. stated that the definition of defamation is, "A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule." He reasoned, "…any imputation of wicked or corrupt motives is unquestionably libellous; and such appears to be the nature of the publication here."

    1. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 (Hunt J): "The phrase is calculated to injure used by Parke B should be understood in the sense of has the effect of injuring."




      Carrier v Bonham [2001] QCA 234, [25]:

      "To my mind, however, the problem is that the expression “calculated” which is used in those passages is one of those weasel words that is capable of meaning either subjectively contemplated and intended, or objectively likely to happen. ... The implication I draw from the context in which the word appears in the passages quoted is that it was being used in the latter and not the former sense."




      Y and Z v W [2007] NSWCA 329 at [22]:

      “Calculated” in the test does not mean intended, since the intention of the publisher is immaterial and the imputation conveyed is determined objectively accordingly to the meaning which the ordinary reasonable person would give to the publication.

    1. David Rolph, Defamation Law (Thomson Reuters, 2016) 6.240.

    1. Tournier V. National Provincial and Union Bank of England [1924] 1 KB 461, 477:

      "On this the judge had directed them that defamatory words were words tending to expose the plaintiff to “hatred, ridicule, and contempt” in the mind of a reasonable man. I do not myself think this ancient formula is sufficient in all cases, for words may damage the reputation of a man as a business man, which no one would connect with hatred, ridicule, or contempt."




      Sim v Stretch [1936] 2 All ER 1237, 1240:

      "Judges and textbook writers alike have found difficulty in defining with precision the word ‘defamatory’. The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow."




      Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [4]:

      "An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow.""

    1. Burton v. Crowell Pub. Co. 82 F.2d 154 (1936), [1]:

      "In conclusion therefore we hold that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable…"




      Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, 448-9:

      "Applying the principle discussed in Burton v Crowell Pub Co to the present case, I am satisfied that imputation (b) is capable of defaming the plaintiff. Upon the assumption that the ordinary reasonable reader did not conclude that the plaintiff deliberately permitted the photograph to be taken of him with his genitals exposed for reproduction in a publication with a widespread readership — which is the only basis upon which this imputation will fall to be considered — the publication of this imputation is in my view capable of subjecting the entirely blameless plaintiff to a more than a trivial degree of ridicule. It was not seriously argued to the contrary. Accordingly, the imputation is capable of defaming the plaintiff."




      Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029, [20]:

      "The Court held that, because the advertisement was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable. The fact that it did not "assume to state a fact or an opinion" was irrelevant."

    1. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, [17]:

      "The defendant then submits that it is not capable of defaming the plaintiff to say that he appeared to be ridiculous, without any suggestion of fault on his part. The line of authority to which I have already referred above disposes of that submission."




      Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, 447:

      "This imputation does not assert any moral blame for the exposure upon the plaintiff himself. It is well accepted law that, to be defamatory of a person, the imputation conveyed concerning him need not assert blame if it nevertheless tends to make other persons shun or avoid the plaintiff — for example, by attributing to him that he is insane: Morgan v Lingen (1863) 8 LT 800; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587."

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16.




      Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, at [11].

    1. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165 (Hunt CJ, Mason P and Handley JA agreeing).

    1. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 506.

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [6].

    1. Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 88 (Jordan CJ).




      Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, 452 (Hunt J).




      John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, [53] (Gummow and Hayne JJ).

    1. Lewis v Daily Telegraph Ltd [1964] AC 234, 268 (Lord Morris).

    1. Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741, 745.

    1. Lewis v Daily Telegraph Ltd [1964] AC 234, 260.

    1. Byrne v Deane [1937] 1 KB 818, 833.

    1. Kim Gould, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review 50.

    1. Kim Gould, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review 50.

    1. Sim v Stretch [1936] 2 All ER 1237, 1240 (Lord Atkin).

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16:

      "[38] The expression "right‑thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.

      [39] The expression has been criticised. Griffith CJ in Slatyer v The Daily Telegraph Newspaper Co Ltd considered it to be ambiguous, but thought that it was intended to refer to a person of "fair average intelligence" and otherwise accepted the test as stated in Sim v Stretch. Murphy J in Reader's Digest Services Pty Ltd v Lamb also thought its meaning was unclear. Bray CJ in Potts v Moran considered that it involved "question‑begging assumptions and circuity of reasoning.""

    1. David Rolph, Defamation Law (Thomson Reuters, 2016) 6.80.

    1. Lewis v Daily Telegraph Ltd [1964] AC 234, 258.




      Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, [10].




      Farquhar v Bottom [1980] 2 NSWLR 380, 386.

    1. Lewis v Daily Telegraph Ltd [1964] AC 234, 258.




      Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, [10].




      Farquhar v Bottom [1980] 2 NSWLR 380, 386.

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [6].

    1. Cornes v the Ten Group Pty Ltd and Ors [2012] SASCFC 99, [52] (Kourakis CJ).

    1. Farquhar v Bottom [1980] 2 NSWLR 380, 386.

    1. Amalgamated Television Services v Marsden (1998) 43 NSWLR 158, 12:

      "The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual."

    1. Lewis v Daily Telegraph Ltd [1964] AC 234. 258.




      Farquhar v Bottom [1980] 2 NSWLR 380, 368.




      John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, [26].




      Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [6].

    1. Haddon v Forsyth [2011] NSWSC 123 (Simpson J):

      "[17] In the circumstances of the present case, the exercise has a degree of artificiality. As will become apparent from what I write below, the emails in this case were published to an extraordinarily limited number of recipients, each of whom had a close association with the environment in which they were published, and in which the events with which they were concerned took place. Most, if not all, had at least some prior knowledge of the relevant facts and circumstances. It might, therefore, be expected that they would read the emails differently from the “ordinary reasonable reader” or “hypothetical referee” who did not have that inside knowledge.

      [18] However, the law is plain, and my duty is to approach the determination of whether or not any imputation pleaded was conveyed by reference to the “ordinary reasonable reader” or the “hypothetical referee”, as though the email had been picked up off the street by a casual passer by…"

    1. Chakravarti v Advertiser Newspapers Limited [1998] HCA 37, [134].

    1. Farquhar v Bottom [1980] 2 NSWLR 380, 368.




      Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165.

    1. Farquhar v Bottom [1980] 2 NSWLR 380, 368.




      Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165.

    1. Chakravarti v Advertiser Newspapers Limited [1998] HCA 37, [134].

    1. Chakravarti v Advertiser Newspapers Limited [1998] HCA 37, [134].

    1. Farquhar v Bottom [1980] 2 NSWLR 380, 368




      Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165.

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [6] (French CJ, Gummow, Kiefel and Bell JJ):

      "'[O]rdinary reasonable people’ may be ‘described as "of ordinary intelligence, experience, and education" [(Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (1923) at 37)]".

    1. Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1, 7.




      Farquhar v Bottom [1980] 2 NSWLR 380, 368.

    1. Lewis v Daily Telegraph Ltd [1964] AC 234, 268.




      Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [6].

    1. Lewis v Daily Telegraph Ltd [1964] AC 234, 259:

      "Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question."

    1. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, [7].

    1. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [37]:

      "…the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect."

    1. Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 506:

      "Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation … being a standard common to society generally...

      ...

      The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes."




      Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16, [6]: "…any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community."

    1. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, Hutley JA argued at 686 that someone who terminate pregnancies (plaintiff) may be seen as immoral by a substantial section of the community which can result in hatred, ridicule or contempt, but another section of the community may not see the plaintiff as immoral. Hutley found it ‘startling’ that an imputation accusing the plaintiff to be an abortionist could not be defamatory. Glass JA affirmed the view and stated at 694:

      "[A] man can justly complain that words, which lower him in the estimation of an appreciable and reputable section of the community, were published to members of it, even though those same words might exalt him to the level of a hero in other quarters. Where a television programme has been beamed to a large audience it can be presumed, without special proof, that its viewers will include some who advocate the “right to life” and abhor the destruction of foetuses, whatever the circumstances. In the estimation of such persons the plaintiff can claim to have been disparaged even if abortionist meant lawful abortionist."




      Grundmann v Georgeson [1996] QCA 189, [2] (McPherson J.A.) (referring to differing community views on abortion):

      "And it could not be said that those who thought that were not a substantial, intelligent and reasonable section of the community. That is sufficient, in my view to make the publication defamatory."

    1. Caroline Sappideen and Prue Vines (eds), Fleming′s The Law of Torts (Thomson Reuters, 10th Edition, 2011) 25.20:

      "On the other hand, it is not sufficient that the words are regarded as prejudicial by only a small minority who’s standards are so anti-social that it would not be proper for courts to recognise them."




      David Rolph, Defamation Law (Thomson Reuters, 2016) 6.290:

      "[An] appreciable and reputable section of the community ...[is] ...an approach more usually adopted in United Stated defamation law. It is not an approach which has received widespread support within Australian defamation law."

    1. John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77, [140]:

      "In most circumstances, it ought not to be the case in Australia that to publish a statement that one adult was involved in consenting, private homosexual activity with another adult involves a defamatory imputation. But whether it does or does not harm a person's reputation to publish such an imputation is related to time, personality and circumstance. Once, it was highly defamatory in many countries to allege, or suggest, that a person was a communist. Now, in most circumstances, it would be a matter of complete indifference. The day may come when, to accuse an adult of consenting homosexual activity is likewise generally a matter of indifference. However, it would ignore the reality of contemporary Australian society to say that that day has arrived for all purposes and all people. At least for people who treat their sexuality as private or secret, or people who have presented themselves as having a different sexual orientation, such an imputation could, depending on the circumstances, still sometimes be defamatory."

    1. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708, Hutley JA:

      "The imputation of an improper adulterous relationship would be harder to justify as not being defamatory, but the reputations of Anthony and Cleopatra have not been lowered in the eyes of the public by their romance, and in other days, the title of the King's Mistress was one of honour. Despite Rofe QC's confident assertion that the imputation of adultery must lower the two appellants in the public esteem, even in these days in which fault has been officially expelled from the law of domestic relations, passions between the powerful and glamorous may have a quality which transcends middle-class morality. The expulsion of the concept of fault in domestic relations means that as far as the State is concerned anything goes."

    1. Parmiter v Coupland (1840) 6 M&W 105, 342 (Parke B): Park B referred to whether the publication "would be likely to produce that effect". Not whether the publication did in fact produce that effect.




      Sim v Stretch [1936] 2 All ER 1237, 1240 (Lord Atkin): Lord Atkin used the word ‘tend’.




      Thornton [2010] EWHC 1414 (QB), [93] (Tugendhat J).

    1. Age Company Ltd v Elliott [2006] VSCA 168 (Buchannan JA, Chernov and Ashley JJA agreeing):

      "[14] It is well established at common law that a plaintiff in a defamation suit is not required to plead or prove that the imputations of which he complains are false.

      [15] … As falsity is not an element of the cause of action, no presumption of falsity can arise from the failure of the defendant to plead truth. The existence of the presumption has been accepted in common law jurisdictions for so long that it may now be too late to correct the error from which it arose."

    1. Hulton (E) & Co v Jones [1910] AC 20:

      "23. ...The statement of the writer with respect to his own intention is irrelevant...

      24. ...A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both … If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff."




      Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173 (Diplock LJ):

      "...the meaning intended to be conveyed by the publisher of the words is irrelevant. However evil the imputation upon the plaintiff's character or conduct he intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of the words, they did not bear any defamatory meaning. However innocent an impression of the plaintiff's character or conduct the publisher of the words intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of words, they did bear a defamatory meaning: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173 (Diplock LJ).




      Berkoff v Burchill [1996] 4 All ER 1008, 151:

      "It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may colour the meaning."




      Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181, [58]: "The intention of the publisher is irrelevant and so also is the meaning those to whom the words were published might give the words."




      Dow Jones & Company Inc v Gutnick [2002] HCA 56, [25]: "…a defendant may be liable even though no injury to reputation was intended…"

    1. Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022, [40]:

      "The point is that to state of a person “the plaintiff is a person whose breasts were exposed to the readers of a pornographic magazine” arguably means nothing disparaging of the person whose breasts were so exposed. It is the context in which they were photographically exposed that gives rise to the defamatory sting namely, that the person is held up to ridicule or contempt and is likely thereby to be shunned and avoided."

    1. Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, McCallum J held:

      "[34] The difficulty lies in formulating the imputations it conveys. I would accept that the imputation that the plaintiff is not a politician to be taken seriously is bad in form on the basis that it is rhetorical. It says, "this is what you should think of the plaintiff", not "this is what the plaintiff is". It amounts to an exhortation, not the attribution of an act or condition.

      [40] The imputation attributes the condition of ridiculousness not to the plaintiff but to her stance on a political policy. It does not identify any act or condition attributed to her. In my view, imputation 4B should be struck out…"

    1. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 2:

      "The requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Rules of Court, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. In John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706 this Court approved of Hunt J's leaving to the jury an imputation that the plaintiff was a criminal associate of drug dealers. No one suggested that it was necessary to identify with particularity the crime or crimes alleged to have been committed by the plaintiff, even though it is always theoretically possible to be more specific about an allegation that a person is a criminal.

      Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and nonspecific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says "X is disgusting", the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter."




      Kenny v Australian Broadcasting Corporation [2014] NSWSC 190 (Beech-Jones J):

      "[49] ...consistent with the discussion in Drummoyne, in some cases such imputations will suffice if the alleged defamer has left the matter hanging. This is more likely to be so in the case of extreme ridicule where the defamer does not delve into the detail as to why the plaintiff should be depicted in a humiliating way, although the implication is that there is something about them or their conduct which means that they deserve it.

      [51] In a case such as this, imputation (c) does state something about Mr Kenny's conduct or condition and also provides the best particularisation that can reasonably be expected. The fact that further particulars cannot be provided flows from the very nature of the extreme ridicule involved. Consistent with Drummoyne, no further particularisation is required."

    1. In Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 April 1993), the Sydney Morning Herald published an article titled, ‘Gilt trip is over as Resort closes for $8 million facelift’. The plaintiff relied the following two imputations:

      (f) That the plaintiffs had so conducted themselves in their business that they should be shunned and avoided by persons seeking to purchase furniture.

      (g) That the first plaintiff has so conducted himself as to deserve to be held up to public ridicule.

      Levine J held:

      BC9304563 at 4: "This immediately, in my view, creates difficulties for a pleader. What is involved is the formulation of the imputation in the "proper" way ascribing an act and condition and including in it the assertion as to the deserving of ridicule or of being shunned and avoided, which assertion of course incorporates the usual allegation as to the consequence of the publication of the defamatory imputation itself.

      BC9304563 at 5: I see no reason in principle why such incorporation would make any imputation defective provided the imputation otherwise is appropriate in form and of course is capable of arising. I have little reservation in holding that the article is capable of giving rise to imputations reflecting ridicule. Nonetheless it is argued that in relation to (f) and (g) the "conduct" as referred to in each (including (f) as amended) has not been identified as providing the basis for the plaintiff being shunned and avoided or being held up to public ridicule.

      Imputations (f) and (g) are struck out.




      Later, in Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 July 1993), the plaintiffs amended the original imputations:

      "BC9304564 at 2: The new imputations, imputations (d) and (e), are:

      (d) That the Plaintiffs, by reason of the First Plaintiff being a person lacking in good taste in respect to furniture and interior decorations, should be shunned and avoided by persons seeking to purchase furniture.

      (e) That the First Plaintiff, by reason of his lacking in good taste in respect to furniture and interior decorations, is deserving of being held up to public ridicule.

      ...

      BC9304564 at 4: For the plaintiff it is contended that some comfort can be found for the form of the pleaded additional imputations in the judgment I delivered on 15 April 1993. In that judgment I said that the article is capable "of giving rise to imputations reflecting ridicule". That is the view I then formed and is the view to which I adhere: I also indicated the difficulty for the pleader, if what I there said is correct, to formulate an imputation of ridicule as distinct from formulating an imputation which includes no more than, as is the case here, the pleading of a consequence of the publication of the defamatory imputation, namely that the plaintiff is deserving of being held up to ridicule.

      BC9304564 at 5: In summary, therefore, I am of the view that imputation (d) should be struck out by reason of its form."




      Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, [18]-[19] (McCallum J):

      "The burden of the decision (the 15 July decision), I think, is that the imputations were liable to be struck out because they were rhetorical, by reason of the inclusion of the exhortation that the plaintiff "should be shunned and avoided" and was "deserving of being held up to public ridicule". In each case, the rhetorical exhortation added nothing to a separate, non-contentious imputation (that the first plaintiff was a person lacking in good taste in respect to the quality and style of furniture and interior decorations he provides for buildings).

      … What emerges from the two Scali decisions is that an imputation which does no more than to appeal to rhetoric ("the plaintiff should be shunned and avoided" or "the plaintiff deserves to be held up to ridicule") is bad in form, since it achieves no more than to assert the consequence of publication of a defamatory imputation and, in so doing, fails to distil the act or condition allegedly attributed to the plaintiff by the matter complained of by reason of which his or her reputation has been damaged."




      In Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586, a photograph of a man partly naked and strapped to a piano was incorrectly described in the Sun Herald as being a photograph of the plaintiff. Levine J stated:

      "[20] Imputation (c) as presently framed is:

      4(c) the Plaintiff behaved in such a way as to deserve to be ridiculed by the Sun Herald newspaper.

      [21] In that form, it is fraught with problems because it falls within what I would describe, for present purposes, as the Scali area of difficulty in pleading ridicule (Nick Scali & Co Pty Ltd v John Fairfax Publications Pty Ltd, unreported, Levine J, 15 April 1993).

      [22] The plaintiff has, however, proposed a substitute imputation to this effect:

      The plaintiff, by reason of permitting himself to be photographed partly naked in Hyde Park with bonds, has justifiably exposed himself to the ridicule of the defendant.

      [23] Such an imputation, in my view, is proper in form, capable of arising and capable of being defamatory. I would otherwise strike out the presently pleaded imputation (c)."

    1. In Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564, the Herald Sun published the following:

      "South Sydney's poor showing in the 2002 NRL season may be linked to coach Craig Coleman being put in child care as a toddler, according to a psychologist.

      Asked by Club officials to assess Coleman's performance this year, a psychologist concluded that the Souths' disappointing 5-19 record stems from "abandonment and attachment issues" Coleman harbours after spending 4 days every week in childcare between the ages of 2 and 5.

      In making his finding, the psychologist dismissed suggestions that Souths finished second last simply because they didn't have any decent players.

      "It's my belief that Craig's somewhat fractured relationship with his mother as a child hasn't provided him with adequate communication and intimacy skills", the psychologist said." He has grown up feeling abandoned and rejected and lacks the necessary confidence to make himself understood, which isn't something you want in a football coach". The psychologist said placing Coleman in childcare could explain big losses in rounds 19, 21, 22 and 23"."

      Levine J held at [22]-[23]:

      "I have come to the view, which I will state now, that this matter complained of is incapable of defaming either plaintiff in the way pleaded (or indeed, in my view, at all). My reason for so stating is that this could not, in my view, be a clearer case where the ordinary reasonable reader would understand from reading whole of the material that none of its contents was to be taken seriously. If a reader took the whole of this material, or any part of it, as a joke but nonetheless felt there was something "beyond a joke", in my view that reader would be neither ordinary nor reasonable.

      I have come to the view that this article itself, and the more so by reference to the surrounding material, is self-evidently absurd. The ordinary reasonable reader would understand that what was being published was to be understood only as an absurd joke. That reader, if ordinary and reasonable, simply could not draw from the matter complained of imputations of the kind pleaded here. No ordinary reasonable reader would understand this article to convey anything disparaging of the plaintiffs and thereby hold them up to hatred, ridicule or contempt, or by its mere publication, or any reference at best to psychological deficiencies or incidents of upbringing, to bring about them being shunned and avoided."

    1. In Hanson-Young v Bauer Media Limited [2013] NSWSC 1306, Zoo Magazine published an image of a member of the Greens Party where her head was photo-shopped onto a woman in her underwear. The defence submitted that the article and image was plainly a joke. However, McCallum J stated:

      "[33] In my view, although the matter complained of in the present case would plainly be understood as a joke of sorts, it cannot be concluded that the article is incapable of being defamatory of Senator Hanson-Young.

      [37] …in my view, that the matter complained of in the present case is plainly capable of being found to be defamatory of Senator Hanson-Young. In particular, in my view the article is capable of being understood as subjecting her, as an "entirely blameless plaintiff" to "more than a trivial degree of ridicule"."

    1. Mundey v Askin [1982] 2 NSWLR 586, 371-372.




      Bennette v Cohen [2005] NSWCA 341, [48]-[51].

    1. In Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339, the defendants published an article in a newspaper which referred to the plaintiff quite harshly. They wrote:

      "[Kings Cross Whisper are] purveyors of filth blatantly flouting their evil wares in the main street trying to corrupt teenagers and children.

      It is believes that some of those responsible for the publication are associated with Nazi activities in Australia.

      This filthy rag is the sort of thing one would expect to be purveyed in dark corners, and it is staggering that low creatures, using filth to apparently finance the activities of the discredited Nazi Party, should be so sure action would not be taken against them that they would peddle their filth so openly. Why are these evil monsters so sure of themselves? Apparently because this rag has been published for some time in Sydney quite immune from Government and police action.

      Like many pedlars before them, these sellers of filth have even had the utter cheek to say they have BIC approval. The BIC ban – with all such a ban implies – is the answer to that most false of claims. We do not in Broken Hill want Nazi Party propagandists; we do not want pedlars of pornography. Let us run these monsters out of this city!"

      The alleged defamatory material was targeted towards a company which was illegal. The company was illegal because it was "publishing and distributing a news-sheet without being registered as a distributor of printed matter under s 21 of the Obscene and Indecent Publications Act, 1901."

      Moffitt J.A. held at 344:

      "The relevant principles are dealt with in Smith’s Newspapers Limited. v. Becker (1932) 47 C.L.R. 279 and Wilkinson v. Sporting Life Publications Ltd. (1933) 49 C.L.R. 365. If a person carries on a trade, business, or calling illegality, then the law will not aid him in a defamation action to recover compensation is respect of damage to any reputation acquired in so carrying on such trade, business or calling. It is not a question of the defendant justifying the defamatory statement, but of the court declining its aid to the recovery of compensation for damage to a reputation acquired in an illegal pursuit. It is not sufficient, in order to defeat a claim for damages, merely to show that the defamatory statements which were published concerned or referred to an illegal pursuit, for such statements are actionable if they reflect upon and damage a plaintiff’s reputation in respects other than in relation to the illegal pursuit."

    1. Amanda Stickley, Australian Torts Law (LexisNexis Butterworths, 4th Edition, 2016) 22.44.

5.1.2. Identification

Contents


5.1.2.1. Summary

5.1.2.2. Direct/Explicit Identification

5.1.2.3. Indirect/Implicit/Innuendo Indentification

 

5.1.2.1. Summary


If people who viewed the publication do not know who the publication referred to, then nobody specifically in the publication was defamed. For example, if a newspaper falsely published an article about a theft which occurred in the local area, and everybody who read the article could not determine who committed the theft, then the newspaper did not identify a specific person. As such, no person was defamed. This is why it is essential to establish the element of identification. If no one is identified, no one is defamed.


However, the person does not need to explicitly named in the publication. If naming were a requirement, all the publisher would have to do is to leave out the name. Thus, a defamer does not escape defamation by not explicitly naming a person. Instead, the allows the plaintiff to be identified in the publication indirectly.


5.1.2.2. Direct Identification


(This section is under construction. The Law Project apologises for the inconvenience.)


5.1.2.3. Indirect/Implicit/Innuendo Indentification


  1. To be defamatory, the plaintiff must be identified in the publication as the person who was defamed.1 For example, if James Draper believes that he was defamed by a news article, that news article must have actually referred to James Draper and not somebody else. This rule is commonly legally phrased as the following: the publication must be ‘of and concerning’ the plaintiff.2
  2. The publication does not have to directly or explicitly refer to the plaintiff.3 For example, a news article does not have to explicitly publish the words “James Draper”.
  3. The plaintiff has the burden of proving identification.4

  4. The plaintiff must prove that people who knew the plaintiff likely connected the plaintiff as the person who the publication referred to.5

    1. The question is not whether people did identify the plaintiff, but instead whether a people could identify the plaintiff from the publication.6
      1. Whether a person could identify the plaintiff, will be determined through the lens of the ordinary reasonable person.9 To illustrate, if a random person of sound mind, that is, they do not lean towards any extreme, were presented with the material, they would likely conclude that the material did in fact refer to the plaintiff as the person who was defamed and not somebody else.

    2. Whether people knew the plaintiff, there are degrees of familiarity with the plaintiff. In the circumstance that a mere acquaintance could not identify the plaintiff, but an intimately familar person could identify the plaintiff, the latter is sufficient to establish identification.7
    3. The standard is not high for whether the recipients understood the publication to refer to the plaintiff.8

  1. Indirect identification is established by ‘innuendo’.10
    1. Identification by innuendo is where a person had knowledge of the relevant extrinsic facts.11 To explain, extrinsic facts are facts which the recipient had in their mind separately and in addition to the publication. With these extrinsic facts, the recipient was able to connect the plaintiff as the person referred to in the publication. If the recipient did not have these extrinsic facts, they could not have been able to connect the publication with the plaintiff. This means, without the extrinsic facts, the publication by itself cannot be connected to the plaintiff.
    2. Another term commonly used instead of ‘extrinsic facts’ is ‘special knowledge’.
    3. The below image is a visual illustration of the function of extrinsic facts. The extrinsic fact is the link between the publication and the plaintiff. This fact allows a person to connect the two.

    4. Technical note: Innuendos are also used for the imputation element. Both are in function the same, that is, they both use extrinsic facts in order to properly understand the publication. Some cases seem to refer to both identification innuendo and imputation innuendo interchangeably, for example, Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86, 89 (Jordan CJ). Even though the innuendo is used in two separate elements, the innuendo should probably not be viewed as distinct from each other: Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]) at [32], “In my view, these propositions are correct and they support Hutley JA's comment that "there is no justification in principle or history for distinguishing innuendoes specifying identity from other innuendoes" (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 363).”
    5. Proving the innuendo:
      1. The plaintiff must prove the existence of the extrinsic facts.12
      2. The plaintiff must prove that at least one person had knowledge of the extrinsic facts.13
      3. The plaintiff must prove that those who identified the plaintiff were ordinary sensible readers.14
      4. There must be evidence that the ordinary reasonable person could have come to the conclusion that the publication referred to the plaintiff.15
      5. The plaintiff must prove that the ordinary reasonable person with knowledge of the relevant extrinsic facts would have identified the plaintiff in the publication.16 There are two ways to prove this:

        1. Direct:
          1. Witnesses can give evidence that they identified the plaintiff as the person referred to in the publication.17
            1. However, a witness’s testimony is not conclusive that the ordinary reasonable person would have identified the plaintiff. A witness’s testimony is evidence only.18
            2. It is irrelevant whether the witness believed the publication was actually true or not.19 It does not matter if the witness believed that the publication referred to the plaintiff but then believed that the publication falsely defamed the plaintiff.
            3. Identification by innuendo is determined twice.20 Once by the judge and once by the jury.21 Firstly, identification is determined by the judge, but if the judge determines that the publication does not refer to the plaintiff, then the case will not proceed to the jury.22 Secondly, if the judge does determine that the publication refers to the plaintiff, then the case will proceed to the jury and the jury will determine whether the publication refers to the plaintiff.23
              1. Technical Note: When a source refers to the judge making the determination of whether the publication refers to the plaintiff or not, it may be phrased as (1) a question or law, that is, it is a question of law whether the publication refers to the plaintiff,24 or (2) whether the publication is capable of referring to the plaintiff.25 Either way, whether the sources uses the words ‘question of law’ or ‘capable’ or ‘judge’, they all mean the same thing.
              2. Technical Note: When a source refers to the jury making the determination of whether the publication refers to the plaintiff or not, it may be phrased as (1) a ‘question of fact’, that is, it is a question of fact whether the publication refers to the plaintiff,26 (2) whether the publication does refer to the plaintiff.27 Either way, whether the source refers to the word’s ‘fact’ or ‘jury’ or phrases the law as a statement, it means the same thing.

        2. Indirect:
          1. Evidence given by witnesses is not necessary.28
          2. Inference: The court may infer that the material was published to people with knowledge of extrinsic facts.29 This is in contrast to a witness giving evidence that they had knowledge of the extrinsic facts.
            1. For example, the plaintiff was so notorious that people were bound to know who the plaintiff was.30

          3. The plaintiff may give evidence that they were contacted by people in response to the publication.31 This is an exception to the hearsay rule.32 The rationale for this rule is probably built off the idea that if people contacted the plaintiff in response to the publication, then those people must have identified the plaintiff in the publication otherwise contact with the plaintiff in regards to the publication could not have occurred.
          4. The plaintiff may give evidence that people talked amongst themselves about the publication in regard to the plaintiff.33 This is an exception to the hearsay rule.34 The rationale for this rule is probably built off the idea that talk is an indication that people viewed the publication and identified the plaintiff, otherwise people could not have talked about the publication in regard to the plaintiff if they had not viewed the publication or identified the plaintiff within the publication.
          5. In the situation where a prior publication identified the plaintiff and a person was able to use a fact from the current publication to link the plaintiff as the person referred in the current publication, the prior publication may be used to identify the plaintiff.35
            1. “In the case of a previous … publication which identified the plaintiff, it may not be necessary to call a witness who actually identified the plaintiff, provided there was sufficient evidence (such as evidence of circulation) from which the jury could reasonably conclude that those to whom the defamatory matter was published, or at least one of them, were in possession of the knowledge of the plaintiff from the first publication.”36

          6. In the situation where a fact was asserted in a prior publication before the current publication which then links the current publication to the plaintiff, this fact may be used to identify the plaintiff. It does not matter who published that fact and it does not matter whether that fact was incorrect. The plaintiff must: (1) establish in evidence the existence of the prior publication and (2) call a witness who viewed the publication and has knowledge of the publication.37
          7. In the situation where a fact was asserted in a prior publication which the defendant published before the current publication, and the fact links the prior publication to the current publication, this fact may be used to identify the plaintiff. It does not matter whether that fact was incorrect. The plaintiff must: (1) establish in evidence the existence of the prior publication and (2) call a witness who viewed the publication and has knowledge of the publication.38
          8. In the situation where a fact was asserted in a later publication which the defendant published after the current publication, and the fact links the later publication to the current publication, this fact may be used to identify the plaintiff. It does not matter whether the fact was incorrect. The ordinary reasonable person with knowledge of that fact must conclude that it was the plaintiff who was intended to be referred. Actual intention of the defendant is irrelevant.39
          9. The plaintiff may be identified in the situation where the defendant in the publication itself, invites the recipient to identify the plaintiff by viewing a later publication published by a different person.40
          10. If the plaintiff does not call a witness where calling a witness would be reasonably expected, and calling a witness would be favourable to the plaintiff’s case, this absence of witnesses may be taken into account against the plaintiff. Technical Note: The weighting of this rule is low for the following three reasons: (1) This point was stated by minority judgment in Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798, 799-801 (Tadgell J.A.). (2) In the context of this case, this rule is in contradiction to the exception to the hearsay rule as established above. The plaintiff gave evidence that many people spoke to the plaintiff in relation to the publication, however, the plaintiff did not call any of those people as a witness. As such, the judge rejected the plaintiff’s hearsay evidence. (3) To The Law Project’s knowledge, this rule has not been affirmed by any other case.41

    6. About the ‘ordinary reasonable person’:
      1. The ‘ordinary reasonable person’ is a fictional person invented by the courts over many years. It was designed to be a reflection of the typical citizen and a way to answer the question: if we presented this material to sound-minded persons within society, what would they likely conclude? However, who the ‘ordinary reasonable person’ is, how they think and behave are prescribed by law, not by gathering robust empirical information on ordinary Australian citizens.
      2. Caution: The ordinary reasonable person is also used for the imputation element. It is unclear whether the characteristics of the ordinary reasonable person established for the imputation element has the same characteristics as the ordinary reasonable person for this element, the identification element. To be safe, The Law Project has separated the two. The ordinary reasonable person in this section is separate to the ordinary reasonable person in the imputation section.
      3. The characteristics of the ordinary reasonable person when identifying the plaintiff:
        1. They way that the ordinary reasonable person engages with the publication must be taken into consideration.
          1. The ordinary reasonable person does not read a news article with cautious or analytical care.61
          2. The ordinary reasonable person likely skims through sensational articles ‘casually and not to give it concentrated attention or a second reading’ or without ‘a high degree of accuracy’.62
          3. The more sensational the article, the less analytical care the ordinary reasonable person will take.63
          4. The ordinary reasonable person will read a news source differently compared to a factually rigorous legal or business document.64
          5. The ordinary reasonable person is allowed more flexibility when identifying the plaintiff in a sensational news sources compared to a factually rigorous news source.65

        2. The ordinary reasonable person may engage ‘in a certain amount of loose thinking’.66
        3. The ordinary reasonable person may make ‘rather far-fetched inferences.’67
        4. The ordinary reasonable person gets a general impression of the publication but does not necessarily formulate precise reasons for what formed their general impression. Instead, the reasons for their impression are often formulated as an afterthought.68

      4. The ordinary reasonable person is not expected to have perfect accuracy when identifying the plaintiff and as such the extrinsic facts which enable the identification, do not have to coincide exactly with the facts detailed in the defamatory material.69

    7. It is not necessary that the recipients of the publication know the plaintiff by name.42
      1. Instead, the recipient may know the plaintiff by sight, or by address, or by occupation, or by other ways.43
      2. Some examples include:
        1. A ‘statement that “the man who lives in that house is a paedophile” is sufficient to identify the occupant of the house as the subject matter of the statement, even to those who do not know his name, but who know him by sight.’44
        2. ‘A statement that “the president of the Pearl Bay Girl Guides has been stealing the club's funds” will identify that person to those who know her by sight or by position, but not by name.’45
        3. A person who is known by a stage name but uses a family name for private purposes.46
        4. A well-known business but the recipients do not know the corporate owner.47

    8. The defendant cannot escape being sued just because they did not directly name the plaintiff.48 What matters is that the recipients knew what the plaintiff meant. The plaintiff may be identified in a series of ways. For example:

      1. The defendant may use words with a hidden meaning.49
      2. The defendant may use the plaintiff’s initials.50 For example, J D.
      3. The defendant may replace the plaintiff’s name with asterisks.51 For example, *****.
      4. The defendant may replace the plaintiff’s name with blanks.52 For example, J___s D____r.
      5. The defendant may make a caricature or a painting of the plaintiff.53
      6. The defendant may use the plaintiff’s image.54 This includes images of many kinds, for example, television.55
        1. While a person’s image intuitively seems that it should be classified under direct identification, the law has classified it as indirect.56
          1. As per usual for indirect identification, the plaintiff must establish that persons who saw the plaintiff’s image actually identified that person as the plaintiff.57 And, as per usual this may be established by inference.58
          2. However, if the plaintiff is a well-known public figure, an image of the plaintiff may be classified under direct identification.59 Whether the plaintiff is well-known is a matter of degree and some plaintiffs may fall in the middle of obviously well-known and obviously not well-known.60

    9. The evidence required to prove identification is a matter of degree and proportional to the situation. This mean, higher evidence is needed the fewer the people who know the plaintiff, the less clear the description of the plaintiff, and the more knowledge required of the recipients.70
    10. Technical Note: “…extrinsic facts relied upon to identify the plaintiff should be given as particulars in the statement of claim, and not pleaded as material facts.”71
  • Sadgrove v Hole [1901] 2 KB 1, 4 (A.L. Smith M.R.):

    “The plaintiff to succeed in the action must prove a publication of and concerning him of libelous matter, and if he does not satisfy the onus of proof which is on him in this respect there is no cause of action.”




    Knupffer v London Express Newspaper Ltd [1944] AC 116, 121 (Lord Atkin):

    “The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff.”




    Kasic v Australian Broadcasting Corporation [1964] VR 702, 707 (Gowans, J.):

    “The first of these is that the plaintiff nowhere, in terms, alleges that the words complained of were published “of and concerning the plaintiff”. The words “Father Kasic” in the matter in par. 4, do not have attached the usual addendum—“thereby meaning the plaintiff”. Fleming on Torts, 2nd ed., at p. 506, says that “a defamatory statement is not actionable unless the plaintiff can establish that it was published ‘of and concerning’ him”. And, at p. 507, it is said: “In truth, the universal test in all cases of defamation is whether the words were published ‘of and concerning the plaintiff’.” In Knupffer v. London Express Newspaper Ltd., [1944] AC 116; [1944] 1 All ER 495 it was held that it is an essential element of the cause of action for defamation that the words complained of should be published “of the plaintiff”. In Bullen and Leake, Precedents of Pleadings, 8th ed., at p. 422, it is said the statement of claim must aver that the words were published “of the plaintiff”. See also Bruce v. Odhams Press Ltd. [1936] 1 KB 697; [1936] 1 All ER 287. To this it is answered that it is sufficient to aver that the defamatory matter was understood to refer to the plaintiff. But to assert this is merely to refer to evidence bearing on the issue as to whether the defamatory matter does in fact refer to the plaintiff. That is the crucial issue: See Knupffer's Case, supra, at AC p. 121. The same considerations apply to a case of slander where it is essential to prove that the defamatory matter was published of and concerning the plaintiff in his profession, trade or calling: Jones v. Jones., [1916] 2 AC 481. But in this case that is a matter which (if it is pertinent to the present circumstances) concerns the first-named defendant only. I consider the statement of claim is, in relation to the defendant commission, deficient in not alleging that the matter was published “of and concerning the plaintiff”. It discloses no cause of action. But it is a defect which was probably the result of an oversight, and leave to amend should be given.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 371 (Samuels J.A.):

    “In order to succeed in the action, the plaintiff had to prove, not only that the defendant published the article and that it was defamatory, but she had also to identify herself as the person defamed: Gatley on Libel and Slander, 6th ed., Par. 281 Knupffer v. London Express Newspaper Ltd. [1944] A.C. 116, at p. 120. “The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?”: David Syme & Co. v. Canavan (1918) 25 C.L.R. 234, at p. 238., per Isaacs J. Therefore, publication “of and concerning the plaintiff”, an essential ingredient in her cause of action: Sadgrove v. Hole [1901] 2 K.B. 1, at p. 4., per A.L. Smith M.R.”




    Gardener v Nationwide News Pty Limited [2007] NSWCA 10, [43] (Bryson JA, Mason P agreeing at [1], Tobias JA agreeing at [2]):

    “Justice Samuels at 371 (referring to Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348) referred to authorities which showed that identification, publication of and concerning the plaintiff, was an essential element in the cause of action, and referred particularly to David Syme & Co. v. Canavan (1918) 25 CLR 234 at 238 per Isaacs J: “The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?” Steele related to an allegedly defamatory newspaper article which did not name or describe any person. Literally the first article falls within Isaacs J’s reference to whether words that do not specifically name the plaintiff refer to him or not.”




    Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1, [42]:

    “It is an essential element in the cause of action in defamation that the matter complained of be published of and concerning, that is to say that it identify, the plaintiff: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (at 371 ) per Samuels JA; Gardener v Nationwide News Pty Limited [2007] NSWCA 10 (at [43] ) per Bryson JA (Mason P and Tobias JA agreeing); Parras (at [29] ) per Mason P (Handley JA and Ipp AJA agreeing).”




    Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [126]:

    “To succeed in an action for defamation the plaintiff must not only prove that the defendant published the material complained of and that it is defamatory: the plaintiff must also identify himself or herself as the person defamed. That is, the plaintiff must prove that the material complained of was published “of and concerning the plaintiff”: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (Steele) at 371.”

  • Sadgrove v Hole [1901] 2 KB 1, 4 (A.L. Smith M.R.):

    “The plaintiff to succeed in the action must prove a publication of and concerning him of libelous matter, and if he does not satisfy the onus of proof which is on him in this respect there is no cause of action.”




    Knupffer v London Express Newspaper Ltd [1944] AC 116, 121 (Lord Atkin):

    “The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff.”




    Kasic v Australian Broadcasting Corporation [1964] VR 702, 707 (Gowans, J.):

    “The first of these is that the plaintiff nowhere, in terms, alleges that the words complained of were published “of and concerning the plaintiff”. The words “Father Kasic” in the matter in par. 4, do not have attached the usual addendum—“thereby meaning the plaintiff”. Fleming on Torts, 2nd ed., at p. 506, says that “a defamatory statement is not actionable unless the plaintiff can establish that it was published ‘of and concerning’ him”. And, at p. 507, it is said: “In truth, the universal test in all cases of defamation is whether the words were published ‘of and concerning the plaintiff’.” In Knupffer v. London Express Newspaper Ltd., [1944] AC 116; [1944] 1 All ER 495 it was held that it is an essential element of the cause of action for defamation that the words complained of should be published “of the plaintiff”. In Bullen and Leake, Precedents of Pleadings, 8th ed., at p. 422, it is said the statement of claim must aver that the words were published “of the plaintiff”. See also Bruce v. Odhams Press Ltd. [1936] 1 KB 697; [1936] 1 All ER 287. To this it is answered that it is sufficient to aver that the defamatory matter was understood to refer to the plaintiff. But to assert this is merely to refer to evidence bearing on the issue as to whether the defamatory matter does in fact refer to the plaintiff. That is the crucial issue: See Knupffer's Case, supra, at AC p. 121. The same considerations apply to a case of slander where it is essential to prove that the defamatory matter was published of and concerning the plaintiff in his profession, trade or calling: Jones v. Jones., [1916] 2 AC 481. But in this case that is a matter which (if it is pertinent to the present circumstances) concerns the first-named defendant only. I consider the statement of claim is, in relation to the defendant commission, deficient in not alleging that the matter was published “of and concerning the plaintiff”. It discloses no cause of action. But it is a defect which was probably the result of an oversight, and leave to amend should be given.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 371 (Samuels J.A.):

    “In order to succeed in the action, the plaintiff had to prove, not only that the defendant published the article and that it was defamatory, but she had also to identify herself as the person defamed: Gatley on Libel and Slander, 6th ed., Par. 281 Knupffer v. London Express Newspaper Ltd. [1944] A.C. 116, at p. 120. “The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?”: David Syme & Co. v. Canavan (1918) 25 C.L.R. 234, at p. 238., per Isaacs J. Therefore, publication “of and concerning the plaintiff”, an essential ingredient in her cause of action: Sadgrove v. Hole [1901] 2 K.B. 1, at p. 4., per A.L. Smith M.R.”




    Gardener v Nationwide News Pty Limited [2007] NSWCA 10, [43] (Bryson JA, Mason P agreeing at [1], Tobias JA agreeing at [2]):

    “Justice Samuels at 371 (referring to Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348) referred to authorities which showed that identification, publication of and concerning the plaintiff, was an essential element in the cause of action, and referred particularly to David Syme & Co. v. Canavan (1918) 25 CLR 234 at 238 per Isaacs J:

    “The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?” Steele related to an allegedly defamatory newspaper article which did not name or describe any person. Literally the first article falls within Isaacs J’s reference to whether words that do not specifically name the plaintiff refer to him or not."”




    Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1, [42]:

    “It is an essential element in the cause of action in defamation that the matter complained of be published of and concerning, that is to say that it identify, the plaintiff: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (at 371 ) per Samuels JA; Gardener v Nationwide News Pty Limited [2007] NSWCA 10 (at [43] ) per Bryson JA (Mason P and Tobias JA agreeing); Parras (at [29] ) per Mason P (Handley JA and Ipp AJA agreeing).”




    Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [126]:

    “To succeed in an action for defamation the plaintiff must not only prove that the defendant published the material complained of and that it is defamatory: the plaintiff must also identify himself or herself as the person defamed. That is, the plaintiff must prove that the material complained of was published “of and concerning the plaintiff”: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (Steele) at 371.”

  • Godhard v James Inglis & Co Ltd (1904) 2 CLR 78, 92 (Griffith C.J.):

    “I cannot see that there is any necessity for the individual libelled to be expressly named in order to entitle him to the remedy he asks.”




    Jones v E Hulton & Co [1909] 2 KB 444, 477 (Farwell L.J.):

    “A plaintiff need not, of course, be named in the libel: it is sufficient if he be sufficiently described, and for this purpose recourse may be had to the innuendo.”




    Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, 338 (Scrutton LJ):

    “Now the alleged libel does not mention the plaintiff, but I think it is clear that words published about A may indirectly be defamatory of B.”




    Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1247 (Lord Morris of Borth-Y-Gest):

    “The plaintiff was not mentioned by name. But it is manifest that someone may be referred to in an article without being named. In some circumstances nearly every reader of an article will at once understand that a reference is to a particular person even though he is not named. In other circumstances such understanding will only be by limited groups of people. There is here no mysterious principle of law. It is ordinary plain commonsense that a hurtful statement may be made concerning a person though his name is not given. In the language of the law a plaintiff will have a cause of action if he proves that there has been publication of and concerning him of words which are defamatory of him.”

  • Sadgrove v Hole [1901] 2 KB 1, 4 (A.L. Smith M.R.):

    “The plaintiff to succeed in the action must prove a publication of and concerning him of libelous matter, and if he does not satisfy the onus of proof which is on him in this respect there is no cause of action.”




    David Syme & Co v Canavan (1918) 25 CLR 234, 238 (Isaacs J.):

    “…it is a fact the burden of proving which to the satisfaction of the jury is upon the plaintiff.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 371 (Samuels J.A.):

    “In order to succeed in the action, the plaintiff had to prove, not only that the defendant published the article and that it was defamatory, but she had also to identify herself as the person defamed: Gatley on Libel and Slander, 6th ed., Par. 281 Knupffer v. London Express Newspaper Ltd. [1944] A.C. 116, at p. 120. … Accordingly, in order to succeed, the plaintiff had to prove that it was reasonable for persons with such knowledge, who had read the article, to conclude that it referred to her…”




    Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [126]:

    “To succeed in an action for defamation the plaintiff must not only prove that the defendant published the material complained of and that it is defamatory: the plaintiff must also identify himself or herself as the person defamed. That is, the plaintiff must prove that the material complained of was published “of and concerning the plaintiff”: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (Steele) at 371.”

  • David Syme & Co v Canavan (1918) 25 CLR 234, 238 (Isaacs J.):

    “The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to' believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.”




    Knuppfer v London Express Newspapers Ltd [1944] AC 116, 119 (Viscount Simon L.C.):

    “Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to.”




    Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86, 89 (Jordan CJ):

    “If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed, or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 371 (Samuels J.A.):

    “In order to succeed in the action, the plaintiff had to prove, not only that the defendant published the article and that it was defamatory, but she had also to identify herself as the person defamed: Gatley on Libel and Slander, 6th ed., Par. 281 Knupffer v. London Express Newspaper Ltd. [1944] A.C. 116, at p. 120. “The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?”: David Syme & Co. v. Canavan (1918) 25 C.L.R. 234, at p. 238., per Isaacs J.”




    Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd and Chan [2008] NSWCA 1, [42] (McColl JA, Mason P agreeing at [1], Young CJ agreeing at [70]):

    “The test of whether words that do not specifically name the plaintiff refer to him or not is whether the words are “such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to”: Steele (at 371 ) applying David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 (at 238) per Isaacs J.”

  • Nixon v Slater & Gordon [2000] FCA 531, [60]:

    “For a defamatory imputation to be actionable by the applicants they must establish that the imputations related to them. An inquiry as to identity, as with that carried out to determine the meaning of an imputation, is an objective one. The question is not whether anyone did identify the applicants, but rather, whether persons who are acquainted with them could identify them, from the publication.”

  • Dojas v TCN Channel Nine Pty Ltd [2001] NSWCA 398, [36] (Hodgson JA, Haydon JA agreeing at [6]):

    “When there is a question of recognition of a plaintiff from a visual image rather than from words, it is not possible adequately to put into words what are the matters known by people acquainted with the plaintiff that enable them to identify the plaintiff from an image. Furthermore, mere acquaintance with a plaintiff is not really an adequate description of the qualification of the persons who must reasonably be able to identify the plaintiff. There are degrees of acquaintance, and plainly people who know a plaintiff very well indeed may reasonably identify that plaintiff from an image which would be inadequate for such identification by other persons who are merely acquainted with the plaintiff. Persons who know a plaintiff very well indeed may be the very persons in relation to whom the plaintiff’s reputation is most precious to the plaintiff; and in my opinion, the law of defamation does protect a plaintiff’s reputation with such people. Accordingly, in my opinion where a visual image of a plaintiff is such that it can reasonably be identified as being of the plaintiff by even a very few people who know the plaintiff extremely well, albeit not by others who are mere acquaintances, and there has been publication to at least one such person, that is sufficient identification.”

  • Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 364 (Hutley JA): “The standards of reasonableness required of an identifying reader are not high.”

  • Jones v E Hulton & Co [1909] 2 KB 444, 454 (Lord Alverstone):

    “If upon the evidence the jury are of the opinion that ordinary sensible readers, knowing the plaintiff, would be of opinion that the article referred to him, the plaintiff’s case is made out.”




    Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245-6 (Lord Reid):

    “The fact that a number of honest witnesses formed a certain view is by no means conclusive. It is only an item of evidence. It is for the judge to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff. … What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the appellant.”,

    1252-3 (Lord Morris of Borth-y-Gest):

    “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plaintiff, then there would be nothing to be left to the jury.” … “The question for decision was whether a jury could come to the conclusion that the words referred to the plaintiff, As Lord Alverstone C.J. said in Jones v. E. Hulton & Co. [1909] 2 K.B. 444, 454: “if, in the opinion of a jury, a substantial number of persons who knew the plaintiff, reading the article, would believe that it refers to him, in my opinion an action, assuming the language to be defamatory, can be maintained.” So also “If upon the evidence the jury are of opinion that ordinary sensible readers, knowing the plaintiff, would be of opinion that the article referred to him, the plainttif's case is made out.” … It was for the jury to assess the witnesses and their reasonableness and to decide whether reasonable people would reasonably understand that the plaintiff was referred to.”

    1262 (Lord Guest):

    “In my view, the words were not reasonably capable of being understood by an ordinary reader as referring to the appellant.”; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 372 (Samuels J.A.): The majority in Morgan's case expressed in somewhat disparate terms the principles which I must apply. I start by quoting what was said by Lord Morris (70), which seems to me to represent the substance of the majority view: “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury”.”




    Universal Communication Network v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1, [43]:

    “However it was a question for the judge “to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff”: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (at 1245) per Lord Reid.”




    Younan v Nationwide News Pty Ltd [2013] NSWCA 335, [18] (Macfarlan JA, Bathurst CJ agreeing at [1], Beazley P agreeing at [2]):

    “Thus it is a question of law for the judge "to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff" (Universal Communication Network v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1; Aust Torts Reports 81-932 at [43] quoting Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245). Unless an affirmative answer can be given to the question of law, the case should not, in the case of a jury trial, be left to the jury (Steele at 364 - 5).”




    Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [134] (Gleeson JA, Ward JA agreeing at [1], Payne JA agreeing at [184]):

    “That is, that an ordinary reasonable reader (or ordinary sensible reader) could draw an inference that the article referred to the appellant: Universal Communication Network Inc t/as Newtang Dynasty v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1 (Universal Communication Network Inc) at [43] quoting Morgan v Odhams Press Ltd at 1245.”

  • Bruce v Odhams Press Ltd [1936] 1 KB 697, 708 (Slesser LJ):

    “In such a case as the present, the plaintiff, not being actually named in the libel, will have to prove an innuendo identifying her in the minds of some people reasonably reading the libel with the person defamed, for there is no cause of action unless the plaintiff can prove a publication of and concerning her of the libellous matter: see per A. L. Smith M.R., in Sadgrove v. Hole [1901] 2 K.B. 1, 4.”




    Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1242 (Lord Reid):

    “The next protection for the defendant is that at the end of the plaintiff's case the judge may be called upon to rule whether the words complained of are capable of referring to the plaintiff in light of the special facts or knowledge proved in evidence.”

    1246 (Lord Reid):

    “What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the appellant.”

    1252 (Lord Morris of Borth-y-Gest):

    “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury.”

    1255 (Lord Morris of Borth-y-Gest):

    “The other respect in which it is suggested that there was misdirection is that there was an omission to remind the jury that only a limited number of people would know the circumstances which brought it about that the article referred to the plaintiff. In my view, this suggestion is devoid of substance. The trial occupied some parts of eight successive days. It must have been clear to every juror from an early moment in the case and then throughout the case that identification of the plaintiff would not be made by every reader of “The Sun” but by those only who knew certain special circumstances affecting the plaintiff.”

    1263 (Lord Donovan):

    “As regards the merits of the case, the appellant's difficulty is, of course, that he is not named or indicated in the article. He must therefore show that, despite this, there are people who could reasonably interpret the article as referring to him in a defamatory way, because of special knowledge which they possessed.”

    1271 (Lord Pearson):

    “Reasonable readers having the knowledge of the circumstances and identifying the plaintiff as the person defamed would probably not feel very sure of their identification nor very sure of the reliability of the defamatory statements or inferences.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 351 (Moffitt P.):

    “It is now well established that defamatory matter, which does not name the plaintiff, is actionable if there are special facts known to readers which properly lead them to infer that the defamatory matter refers to the plaintiff, even where the publisher is neither aware of the existence of the plaintiff nor of the special facts and does not intend to refer to the plaintiff. This view of the law, which has been open to some criticism and gives rise to considerable difficulty in some cases, is subject to some control of the judge, which control gives some protection to a defendant, as Lord Reid said in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239. at p. 1242; [1971] 2 All E.R. 1156, at p. 1160.”

    362 (Hutley JA):

    “The designation of a person not explicitly named as the person defamed is the laying of an innuendo: Le Fanu v. Malcolmson (1848) 1 H.L.C. 637; 9 E.R. 910.”

    372 (Samuels J.A.):

    “I say this because in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239; [1971] 2 All E.R. 1156 the House of Lords dealt in detail with the principles of law which are applicable to the present problem. To those principles I must pay the closest attention. But I do not find the same assistance in a close comparison of the facts in that case with the facts of this. The majority in Morgan's case expressed in somewhat disparate terms the principles which I must apply. I start by quoting what was said by Lord Morris [1971] 1 W.L.R. 1239, at p. 1252; [1971] 2 All E.R. 1156, at p. 1168, which seems to me to represent the substance of the majority view: “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury”.”




    Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 13:

    “Just as an innuendo must be based upon an existing extrinsic fact (Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 328-9), so must a plaintiff in every case prove also the existence of the extrinsic fact upon which he relies for his identification and that the matter complained of was published to someone with knowledge of that existing fact: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242, 1246, 1255, 1263, 1271; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 347 at 351, 372.”




    Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [139] (Gleeson JA, Ward JA agreeing at [1], Payne JA agreeing at [184]):

    “The distinction between whether the ordinary reasonable reader would know to whom the article referred and whether it would be apparent only to persons who had knowledge of special circumstances that the publication referred to the plaintiff is well-recognized: Steele at 374.”

  • Bruce v Odhams Press Ltd [1936] 1 KB 697, 708 (Slesser LJ):

    “In such a case as the present, the plaintiff, not being actually named in the libel, will have to prove an innuendo identifying her in the minds of some people reasonably reading the libel with the person defamed, for there is no cause of action unless the plaintiff can prove a publication of and concerning her of the libellous matter: see per A. L. Smith M.R., in Sadgrove v. Hole [1901] 2 K.B. 1, 4.”




    Cross v Denley (1952) 52 SR (NSW) 112, 116 (Owen J):

    “Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred—as for example where with out mentioning names the statement is defamatory of a person who is described as the holder of a particular office--and it is a matter of general notoriety who the holder of that office is evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary. But where, as here, the plaintiff could only be identified by that small percentage of the community which happened to know that he was a printer using the imprint “ X-press Printery", it must be shown that some one or more of those to whom the pamphlet was published had that special knowledge.”




    Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1242 (Lord Reid):

    “The next protection for the defendant is that at the end of the plaintiff's case the judge may be called upon to rule whether the words complained of are capable of referring to the plaintiff in light of the special facts or knowledge proved in evidence.”

    1246 (Lord Reid):

    “What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the appellant.”

    1252 (Lord Morris of Borth-y-Gest):

    “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury.”

    1255 (Lord Morris of Borth-y-Gest):

    “The other respect in which it is suggested that there was misdirection is that there was an omission to remind the jury that only a limited number of people would know the circumstances which brought it about that the article referred to the plaintiff. In my view, this suggestion is devoid of substance. The trial occupied some parts of eight successive days. It must have been clear to every juror from an early moment in the case and then throughout the case that identification of the plaintiff would not be made by every reader of “The Sun” but by those only who knew certain special circumstances affecting the plaintiff.”

    1263 (Lord Donovan):

    “As regards the merits of the case, the appellant's difficulty is, of course, that he is not named or indicated in the article. He must therefore show that, despite this, there are people who could reasonably interpret the article as referring to him in a defamatory way, because of special knowledge which they possessed.”

    1271 (Lord Pearson):

    “Reasonable readers having the knowledge of the circumstances and identifying the plaintiff as the person defamed would probably not feel very sure of their identification nor very sure of the reliability of the defamatory statements or inferences.”




    Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69, 80 (Barwick C.J., Mason J. agreeing at 91):

    “…where the defamatory words do not identify the plaintiff as their object, extrinsic facts may be used to make that identification. Again, where the plaintiff desires to claim a meaning for the words which of their nature they do not obviously bear, he may rely on facts extrinsic to the publication to show the meaning the words bear in the circumstances.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 351 (Moffitt P.):

    “It is now well established that defamatory matter, which does not name the plaintiff, is actionable if there are special facts known to readers which properly lead them to infer that the defamatory matter refers to the plaintiff, even where the publisher is neither aware of the existence of the plaintiff nor of the special facts and does not intend to refer to the plaintiff. This view of the law, which has been open to some criticism and gives rise to considerable difficulty in some cases, is subject to some control of the judge, which control gives some protection to a defendant, as Lord Reid said in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239. at p. 1242; [1971] 2 All E.R. 1156, at p. 1160.”

    362 (Hutley JA):

    “The designation of a person not explicitly named as the person defamed is the laying of an innuendo: Le Fanu v. Malcolmson (1848) 1 H.L.C. 637; 9 E.R. 910.”

    372 (Samuels J.A.):

    “I say this because in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239; [1971] 2 All E.R. 1156 the House of Lords dealt in detail with the principles of law which are applicable to the present problem. To those principles I must pay the closest attention. But I do not find the same assistance in a close comparison of the facts in that case with the facts of this. The majority in Morgan's case expressed in somewhat disparate terms the principles which I must apply. I start by quoting what was said by Lord Morris [1971] 1 W.L.R. 1239, at p. 1252; [1971] 2 All E.R. 1156, at p. 1168, which seems to me to represent the substance of the majority view: “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury”.”




    Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 13:

    “Just as an innuendo must be based upon an existing extrinsic fact (Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 328-9), so must a plaintiff in every case prove also the existence of the extrinsic fact upon which he relies for his identification and that the matter complained of was published to someone with knowledge of that existing fact: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242, 1246, 1255, 1263, 1271; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 347 at 351, 372.”




    Paschalidis v Yellow Corporation [2005] SASC 151, (Gray J):

    “[34] If the plaintiff is not directly named, the connection between the plaintiff and the defamatory matter may be proved by the extrinsic facts. … [35] Where a reader, with particular knowledge of matters that may lead the reader to understand the statement, identifies a person, the person defamed is identified by innuendo. The specific question to ask is: would ordinary reasonable persons invested with the requisite special knowledge understand the defamatory statement to refer to the plaintiff?”




    Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [139] (Gleeson JA, Ward JA agreeing at [1], Payne JA agreeing at [184]):

    “The distinction between whether the ordinary reasonable reader would know to whom the article referred and whether it would be apparent only to persons who had knowledge of special circumstances that the publication referred to the plaintiff is well-recognized: Steele at 374.”

  • Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 13:

    “Just as an innuendo must be based upon an existing extrinsic fact (Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 328-9), so must a plaintiff in every case prove also the existence of the extrinsic fact upon which he relies for his identification and that the matter complained of was published to someone with knowledge of that existing fact: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242, 1246, 1255, 1263, 1271; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 347 at 351, 372.”

  • Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 89 (Jordan C.J.):

    “If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances.”




    Cross v Denley (1952) 52 SR (NSW) 112, 116 (Owen J):

    “Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred—as for example where with out mentioning names the statement is defamatory of a person who is described as the holder of a particular office--and it is a matter of general notoriety who the holder of that office is evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary. But where, as here, the plaintiff could only be identified by that small percentage of the community which happened to know that he was a printer using the imprint “ X-press Printery", it must be shown that some one or more of those to whom the pamphlet was published had that special knowledge.”




    Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1263 (Lord Donovan):

    “As regards the merits of the case, the appellant's difficulty is, of course, that he is not named or indicated in the article. He must therefore show that, despite this, there are people who could reasonably interpret the article as referring to him in a defamatory way, because of special knowledge which they possessed.”




    Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, 639-40 (Mason J, Jacobs J, Gibbs J agreeing at 635, Stephen J agreeing at 635):

    “When the publication was ex facie defamatory and referred by name to the plaintiff it was necessary to prove only that it was published by the defendant, without proving that the persons to whom it was published had any knowledge of the plaintiff. The situation was held to be otherwise when the publication was not ex facie defamatory or did not refer by name to the plain-tiff. Jordan C.J. in Consolidated Trust Co. Ltd. v. Browne (1948) 49 S.R. (N.S.W.) 86, at p. 89 explained it in this way:

    "If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances."”




    Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 13:

    “Just as an innuendo must be based upon an existing extrinsic fact (Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 328-9), so must a plaintiff in every case prove also the existence of the extrinsic fact upon which he relies for his identification and that the matter complained of was published to someone with knowledge of that existing fact: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242, 1246, 1255, 1263, 1271; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 347 at 351, 372.”




    Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “[31] The telecast does not refer to the plaintiffs by name or title. In these circumstances, the appellant submits, there must be evidence which could show of each plaintiff that he or it could be identified by viewers with knowledge of extrinsic facts at the time of publication. … But it is necessary to show evidence of publication to at least one person who had knowledge of extrinsic facts that would provide the necessary identification. [32] In my view, these propositions are correct and they support Hutley JA's comment that "there is no justification in principle or history for distinguishing innuendoes specifying identity from other innuendoes" (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 363).

    [34] …there must be evidence capable of showing publication to at least one person with knowledge of extrinsic facts providing the link or identification.”

  • Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 374 (Samuels J.A.):

    “…thirdly, that those who did identify the plaintiff were ordinary sensible readers. I have already expressed some doubt whether this last matter constitutes an independent ingredient: but I will assume that it does.”

  • Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 374 (Samuels J.A.):

    “Finally, there must be evidence capable of satisfying the jury that those with particular knowledge of the plaintiff who, as ordinary sensible readers read the article with the degree of latitude permitted, and who honestly identified the plaintiff as the person referred to, could reasonably come to that conclusion.”

  • Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1242 (Lord Reid):

    “The next protection for the defendant is that at the end of the plaintiff's case the judge may be called upon to rule whether the words complained of are capable of referring to the plaintiff in light of the special facts or knowledge proved in evidence.”

    1246 (Lord Reid):

    “What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the appellant.”

    1252 (Lord Morris of Borth-y-Gest):

    “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury.”

    1271 (Lord Pearson):

    “Reasonable readers having the knowledge of the circumstances and identifying the plaintiff as the person defamed would probably not feel very sure of their identification nor very sure of the reliability of the defamatory statements or inferences.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 351 (Moffitt P.):

    “It is now well established that defamatory matter, which does not name the plaintiff, is actionable if there are special facts known to readers which properly lead them to infer that the defamatory matter refers to the plaintiff, even where the publisher is neither aware of the existence of the plaintiff nor of the special facts and does not intend to refer to the plaintiff. This view of the law, which has been open to some criticism and gives rise to considerable difficulty in some cases, is subject to some control of the judge, which control gives some protection to a defendant, as Lord Reid said in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239. at p. 1242; [1971] 2 All E.R. 1156, at p. 1160.”, 362 (Hutley JA) “The designation of a person not explicitly named as the person defamed is the laying of an innuendo: Le Fanu v. Malcolmson (1848) 1 H.L.C. 637; 9 E.R. 910.”, 372 (Samuels J.A.) “I say this because in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239; [1971] 2 All E.R. 1156 the House of Lords dealt in detail with the principles of law which are applicable to the present problem. To those principles I must pay the closest attention. But I do not find the same assistance in a close comparison of the facts in that case with the facts of this. The majority in Morgan's case expressed in somewhat disparate terms the principles which I must apply. I start by quoting what was said by Lord Morris [1971] 1 W.L.R. 1239, at p. 1252; [1971] 2 All E.R. 1156, at p. 1168, which seems to me to represent the substance of the majority view:

    “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury”.”




    Paschalidis v Yellow Corporation [2005] SASC 151, (Gray J):

    “[34] If the plaintiff is not directly named, the connection between the plaintiff and the defamatory matter may be proved by the extrinsic facts. … [35] Where a reader, with particular knowledge of matters that may lead the reader to understand the statement, identifies a person, the person defamed is identified by innuendo. The specific question to ask is: would ordinary reasonable persons invested with the requisite special knowledge understand the defamatory statement to refer to the plaintiff?”

  • [Background Information: Identification Innuendo should not be viewed as distinct from other innuendos. In Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]), it was stated at [32]:

    “In my view, these propositions are correct and they support Hutley JA's comment that "there is no justification in principle or history for distinguishing innuendoes specifying identity from other innuendoes" (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 363).”

    The implication is that some of the following cases refer to the imputation innuendo and as such may apply here to identification innuendo.]




    Hough v London Express Newspapers Ltd [1940] 2 KB 507, 515 (Goddard L.J.):

    “In my opinion it is unnecessary, though I do not say inadmissible, to call persons to say that they did so understand the words, provided it is proved that they are people who might so understand them.”




    Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 163-4 (Lord Donovan):

    “Where, as here, the plaintiff is not named or indicated in the libel, he may call persons to say that in the light of their knowledge of extrinsic facts they understood the publication to be defamatory of him. (Bourke v. Warren (1826) 2 C. & P. 307; Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331; Hough v. London Express Newspaper Ltd. [1940] 2 K.B. 507.) Such witnesses can give their evidence generally, and the grounds on which they formed their opinion be left to be tested by cross-examination.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 373-4 (Samuels J.A.):

    “With these principles in mind, it becomes possible to set out with some precision the criteria which must be satisfied if the plaintiff is to get to the jury. First, there must be evidence capable of satisfying the jury that persons with particular knowledge of the plaintiff believed that the article referred to her. I should say at once that Hough's case ([1940] 2 K.B. 507) appears to contradict this proposition; because there it was held unnecessary to call persons with knowledge of special facts to say that they did understand the words in a defamatory sense, provided it was proved that there were people with such knowledge who might so understand them. However, there are statements in Morgan's case which suggest that evidence of this kind is necessary; and there is no doubt but that it is at the least ad-missible. Lord Morris ([1971] 1 W.L.R. 1239, at p. 1248; [1971] 2 All E.R. 1156, at p. 1165) poses, as the first issue for the jury, the truth of the assertion made by witnesses that they did believe that the words referred to the plaintiff. Lord Donovan ([1971] 1 W.L.R. 1239, at pp. 1263, 1264; [1971] 2 All E.R. 1156, at p. 1179) says:

    “Where, as here, the plaintiff is not named or indicated in the libel, he may call persons to say that in the light of their knowledge of extrinsic facts they understood the publication to be defamatory of him”.

    His Lordship cites Cassidy's case ([1929] 2 K.B. 331) where such evidence was given and the Court of Appeal made no comment upon its necessity; Hough's case ([1940] 2 K.B. 507) to which I have already referred, and Bourke v. Warren (1826) 2 Car. & P. 307; 172 E.R. 138 where, from Abbott C.J.'s charge to the jury, the evidence apears to have been regarded as necessary to prove publication. I do not think that I need to attempt to resolve the question. In this case, as in Morgan's case evidence of this kind was given and was plainly admissible. It is sufficient to assume that it went to a matter which the plaintiff had to prove, and must, therefore, be evaluated alike with the other evidence. Certainly, it cannot be regarded as conclusive of identification. As Lord Reid pointed out in Morgan's case ([1971] 1 W.L.R. 1239, at p. 1245; [1971] 2 All E.R. 1156, at p. 1162) it was “only an item of evidence”. It left undetermined the question whether an ordinary sensible reader could draw the inference that the article referred to the plaintiff.”




    Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “[52] How then, does a plaintiff prove identification? It is common but not essential that witnesses are called who say that they made the requisite link between the defamatory material and the plaintiff.

    [53] The case law speaks of evidence of extrinsic facts capable of providing the necessary identification. This of course may be done by the direct evidence of at least one (reasonable) reader or listener who took the matter complained of as referring to the plaintiff (Steele at 373-4).

    [54] But direct evidence is not essential.”

  • Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245 (Lord Reid):

    “The fact that a number of honest witnesses formed a certain view is by no means conclusive. It is only an item of evidence. It is for the judge to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff. Much must depend on the degree of deliberation and concentration with which that sensible man must be supposed to have read the article. If he must have done as a lawyer or a man of business would do in scrutinising an important document to discover its meaning, he might reach one result. If he should only be supposed to have read his daily newspaper in the way in which ordinary people generally do read it he might reach a different result. That is well illustrated in the present case.”

  • Hough v London Express Newspaper Ltd [1940] 2 KB 507, 515 (Goddard LJ):

    “If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue. So if it be said of A. that he is a forger, no witnesses are necessary or can indeed be called to say that they believed the charge: if, then, he being a married man, it is said of him “yesterday he married Miss X” it defames him to those people who know that he already has a wife even if they did not believe he had actually committed bigamy.”




    Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1252 (Lord Morris of Borth-Y-Gest):

    “In deciding whether or not the words referred to were reasonably understood as referring to the plaintiff the jury would consider any pieces of evidence which might tend to negative the conclusion that readers reasonably so understood, but if the conclusion were reached that readers did reasonably so understand, then it would be immaterial on this issue whether the readers further believed that the words were true or only partly so believed or declined to believe that they were true. Here I must refer to a contention which was raised in argument. It was submitted that if defamatory words concerning A are published to B who refuses to believe that the words are true, then A would have no cause of action. I consider that such a contention is completely fallacious. Apart from any question affecting the measure of damages A's rights would be unaffected by the circumstance that B in fact disbelieved the words. I agree with what Goddard L.J. said in Hough v. London Express Newspaper Ltd. (1940] 2 K.B. 507, 515 “If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue.””

  • Lee v Wilson (1934) 51 CLR 276, 285 (Starke J.):

    “In line with this view is the judgment of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers (1929) 2 K.B., at pp. 339, 341: “I agree with the view expressed arguendo by Sir Montague Smith in the case of Simmons v. Mitchell (1880) 6 App. Cas. 156, 158: “The Judge must decide if the words are reasonably capable of two meanings; if he so decide, the jury must determine which of the two meanings was intended ’; and by 'intended' I understand that a man is liable for the reasonable inferences to be drawn from the words he used, whether he foresaw them or not.” “If he publishes words reasonably capable of being read as relating directly or indirectly to A, and, to those who know the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words."”




    Knupffer v London Express Newspaper Ltd [1944] AC 116, 121 (Viscount Simon L.C.):

    “There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact – Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise…”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 362 (Hutley J.A.):

    “The appellant claimed that the trial judge should have withdrawn the case from the jury on the ground that the article, even when read by persons knowing facts about the plaintiff, could not point to the plaintiff. It further claimed that the whole question was for the judge, and should not have been submitted to the jury. In my opinion, the argument that the question is solely for the judge is unsupportable. The designation of a person not explicitly named as the person defamed is the laying of an innuendo: Le Fanu v. Malcolmson (1848) 1 H.L.C. 637; 9 E.R. 910. It is, therefore, for the judge to rule if the innuendo is a permissible one for the jury to consider: see also the passage from the judgment of Starke J. in Lee v. Wilson (1934) 51 C.L.R. 276, at p. 285 quoting with approval the re-marks of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331, at pp. 339, 341. The same passage was approved by Lord Pearson in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239, at pp. 1266, 1267; [1971] 2 All E.R. 1156, at pp. 1181, 1182.”

    371 (Samuels J.A.): “But before the issue of identification in fact could go to the jury, there was an antecedent question of law which the judge had to answer in the plaintiff's favour.”

  • Lee v Wilson (1934) 51 CLR 276, 285 (Starke J.):

    “In line with this view is the judgment of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers (1929) 2 K.B., at pp. 339, 341: “I agree with the view expressed arguendo by Sir Montague Smith in the case of Simmons v. Mitchell (1880) 6 App. Cas. 156, 158: “The Judge must decide if the words are reasonably capable of two meanings; if he so decide, the jury must determine which of the two meanings was intended ’; and by 'intended' I understand that a man is liable for the reasonable inferences to be drawn from the words he used, whether he foresaw them or not.” “If he publishes words reasonably capable of being read as relating directly or indirectly to A, and, to those who know the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words."”




     Knupffer v London Express Newspaper Ltd [1944] AC 116, 121 (Viscount Simon L.C.):

    “There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact – Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise…”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 362 (Hutley J.A.):

    “The appellant claimed that the trial judge should have withdrawn the case from the jury on the ground that the article, even when read by persons knowing facts about the plaintiff, could not point to the plaintiff. It further claimed that the whole question was for the judge, and should not have been submitted to the jury. In my opinion, the argument that the question is solely for the judge is unsupportable. The designation of a person not explicitly named as the person defamed is the laying of an innuendo: Le Fanu v. Malcolmson (1848) 1 H.L.C. 637; 9 E.R. 910. It is, therefore, for the judge to rule if the innuendo is a permissible one for the jury to consider: see also the passage from the judgment of Starke J. in Lee v. Wilson (1934) 51 C.L.R. 276, at p. 285 quoting with approval the re-marks of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331, at pp. 339, 341. The same passage was approved by Lord Pearson in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239, at pp. 1266, 1267; [1971] 2 All E.R. 1156, at pp. 1181, 1182.”

    371 (Samuels J.A.): “But before the issue of identification in fact could go to the jury, there was an antecedent question of law which the judge had to answer in the plaintiff's favour.”

  • Lee v Wilson (1934) 51 CLR 276, 285 (Starke J.):

    “In line with this view is the judgment of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers (1929) 2 K.B., at pp. 339, 341: “I agree with the view expressed arguendo by Sir Montague Smith in the case of Simmons v. Mitchell (1880) 6 App. Cas. 156, 158: “The Judge must decide if the words are reasonably capable of two meanings; if he so decide, the jury must determine which of the two meanings was intended ’; and by 'intended' I understand that a man is liable for the reasonable inferences to be drawn from the words he used, whether he foresaw them or not.” “If he publishes words reasonably capable of being read as relating directly or indirectly to A, and, to those who know the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words."”




    Knupffer v London Express Newspaper Ltd [1944] AC 116, 121 (Viscount Simon L.C.):

    “There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact – Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise…”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 362 (Hutley J.A.):

    “The appellant claimed that the trial judge should have withdrawn the case from the jury on the ground that the article, even when read by persons knowing facts about the plaintiff, could not point to the plaintiff. It further claimed that the whole question was for the judge, and should not have been submitted to the jury. In my opinion, the argument that the question is solely for the judge is unsupportable. The designation of a person not explicitly named as the person defamed is the laying of an innuendo: Le Fanu v. Malcolmson (1848) 1 H.L.C. 637; 9 E.R. 910. It is, therefore, for the judge to rule if the innuendo is a permissible one for the jury to consider: see also the passage from the judgment of Starke J. in Lee v. Wilson (1934) 51 C.L.R. 276, at p. 285 quoting with approval the re-marks of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331, at pp. 339, 341. The same passage was approved by Lord Pearson in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239, at pp. 1266, 1267; [1971] 2 All E.R. 1156, at pp. 1181, 1182.”

    371 (Samuels J.A.):

    “But before the issue of identification in fact could go to the jury, there was an antecedent question of law which the judge had to answer in the plaintiff's favour.”

  • Lee v Wilson (1934) 51 CLR 276, 285 (Starke J.):

    “In line with this view is the judgment of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers (1929) 2 K.B., at pp. 339, 341: “I agree with the view expressed arguendo by Sir Montague Smith in the case of Simmons v. Mitchell (1880) 6 App. Cas. 156, 158: “The Judge must decide if the words are reasonably capable of two meanings; if he so decide, the jury must determine which of the two meanings was intended ’; and by 'intended' I understand that a man is liable for the reasonable inferences to be drawn from the words he used, whether he foresaw them or not.” “If he publishes words reasonably capable of being read as relating directly or indirectly to A, and, to those who know the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words."”




     Knupffer v London Express Newspaper Ltd [1944] AC 116, 121 (Viscount Simon L.C.):

    “There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact – Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise…”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 362 (Hutley J.A.):

    “The appellant claimed that the trial judge should have withdrawn the case from the jury on the ground that the article, even when read by persons knowing facts about the plaintiff, could not point to the plaintiff. It further claimed that the whole question was for the judge, and should not have been submitted to the jury. In my opinion, the argument that the question is solely for the judge is unsupportable. The designation of a person not explicitly named as the person defamed is the laying of an innuendo: Le Fanu v. Malcolmson (1848) 1 H.L.C. 637; 9 E.R. 910. It is, therefore, for the judge to rule if the innuendo is a permissible one for the jury to consider: see also the passage from the judgment of Starke J. in Lee v. Wilson (1934) 51 C.L.R. 276, at p. 285 quoting with approval the re-marks of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331, at pp. 339, 341. The same passage was approved by Lord Pearson in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239, at pp. 1266, 1267; [1971] 2 All E.R. 1156, at pp. 1181, 1182.”

    371 (Samuels J.A.): “But before the issue of identification in fact could go to the jury, there was an antecedent question of law which the judge had to answer in the plaintiff's favour.”

  • For example, Knupffer v London Express Newspaper Ltd [1944] AC 116, 121 (Viscount Simon L.C.):

    “There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact – Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?”

  • For example, in Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1242 (Lord Reid):

    “The two questions which arose here were whether they were capable of referring to the appellant and whether they did so refer.”

  • For example, Knupffer v London Express Newspaper Ltd [1944] AC 116, 121 (Viscount Simon L.C.):

    “There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law – can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact – Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?”

  • For example, in Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1242 (Lord Reid):

    “The two questions which arose here were whether they were capable of referring to the appellant and whether they did so refer.”

  • Hough v London Express Newspaper Ltd [1940] 2 KB 507, 515 (Goddard L.J.):

    “In my opinion it is unnecessary, though I do not say inadmissible, to call persons to say that they did so understand the words, provided it is proved that they are people who might so understand them.”




    Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 91 (Jordan C.J.):

    “This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as "the Prime Minister of Australia" , it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated: Jones v. E. Hulton & Co. [1909] 2 K.B. 44.4 at 454, 477. But the less revealing the description the greater the danger of omitting proof of identification.”




    Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1, 10 (Blackburn J.):

    “In my opinion, the proper conclusion in principle is that it is not essential that there should be a witness who gives evidence that he took the words to refer to the plaintiff. From all the evidence, which may not include that of such a witness, the jury may decide that there probably were persons who did so. This conclusion is consistent with the words I have quoted of Lord Morris, and of Moffitt P, and with the law applicable to the analogous question of the defamatory nature of the words (Hough's Case, supra). I do not believe that the words of Lord Simon, of Samuels JA, or of Gatley, are to be taken as meaning that if the words complained of do not expressly refer to the plaintiff, and no witness testifies to having taken them to refer to the plaintiff, the plaintiff must fail.”




    Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 36 (Hunt J.):

    “The defendant has submitted that, where a plaintiff is not identified by name and so relies upon knowledge of some extrinsic fact to establish publication, he must call at least one witness (in relation to each jurisdiction in which he alleges publication) who read (or saw) the matter complained of and who had knowledge of that extrinsic fact; a plaintiff is not, the defendant submitted, entitled to ask the jury simply to infer that such a person with that knowledge would have read (or seen) the matter complained of. It was argued that this necessarily followed from the decision of the Full Court in Consolidated Trust Co Ltd v Browne. The defendant conceded that, once a witness was called who gave evidence of reading (or seeing) the matter complained of with knowledge of the relevant extrinsic fact, the jury could infer that others would also have read (or seen) it with that knowledge. But it was, the defendant submitted, an inflexible rule that at least one witness must be called to prove publication where the plaintiff is not named in the matter complained of, and the plaintiff may not rely simply upon an inference that the matter complained of would have been published to a person with that knowledge. In the extempore judgment which I delivered during the course of the argument, I rejected that submission. I have, in appendix A (infra at 54) to these reasons for judgment, set out the relevant portion of my ex tempore judgment dealing with the decision in Consolidated Trust Co Ltd v Browne. I went on to hold that there was evidence in the present case from which the jury could draw the inference that people in each of Sydney, Melbourne, Adelaide and Mildura who knew the plaintiff would also have seen the programme.”

    54 (Hunt J.):

    “Appendix A: It is necessary to deal specifically also with the defendant's argument that the plaintiff is not entitled to rely upon inferences to establish publication in that sense without first producing direct evidence of identification from a witness …. This is necessary because the plaintiff relies solely upon such inferences in relation to publication in Victoria and South Australia. The classical statement of the law relating to proof of publication in those circumstances is to be found in the judgment of Sir Frederick Jordan in Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89; 66 WN 7 at 8:

    “… If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances.”

    The Chief Justice does not there suggest the necessity for at least one such reader to be called as a witness. Indeed, his Honour later says (at 91; 9) that it is not essential to call a witness to prove that he identified the plaintiff by any description in the matter complained of where, for example, the plaintiff is correctly described as the Prime Minister of Australia. The argument on behalf of Consolidated Trust Co Ltd in that case was that it was the owner of a building in which the tenants were said in the matter complained of to be required to comply with an offensive set of rules, and that it was open to the jury to infer that persons with knowledge of that extrinsic fact had read the defendant's newsletter in which the matter complained of was published. That argument was rejected (at 91; 9) not because the plaintiff could not prove such necessary facts by inference, but because the extrinsic fact relied upon was not of sufficient notoriety that it could fairly be presumed that anybody to whose notice the matter complained of came would know that the plaintiff was the owner of the building: see also Cross v Denley (1952) 52 SR (NSW) 112; 69 WN 137; Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 at 659; [1977] 3 All ER 32 at 39 and Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at 830; [1981] 2 All ER 272 at 278, 279.”




    Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “[54] But direct evidence is not essential. In Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1, Blackburn J cited statements of general principle in the judgments of Moffitt P and Samuels JA in Steele, the speech of Lord Morris in Morgan and the decision in Hough v London Express Newspaper Ltd [1940] 2 KB 507. Blackburn J continued (at 10):

    “In my opinion, the proper conclusion in principle is that it is not essential that there should be a witness who gives evidence that he took the words to refer to the plaintiff. From all the evidence, which may not include that of such a witness, the jury may decide that there probably were persons who did so. This conclusion is consistent with the words I have quoted of Lord Morris, and of Moffitt P, and with the law applicable to the analogous question of the defamatory nature of the words (Hough's Case). I do not believe that the words of Lord Simon, of Samuels JA, or of Gatley, are to be taken as meaning that if the words complained of do not expressly refer to the plaintiff, and no witness testifies to having taken them to refer to the plaintiff, the plaintiff must fail.”

    I respectfully agree.”

  • Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651, 659 (Scarman L.J.):

    “There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts. For instance, the facts may be very well known in the area of the newspaper's distribution – in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper's readers must have been aware of the facts which are said to give rise to the innuendo.”;




    Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822, 830 (Dunn L.J., Templeman L.J. agreeing at 826):

    “I would only add this, that I agree also with Scarman L.J. (in Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651) that there may be cases which are exceptions to that rule, such as the cases that he refers to at p. 659 of the report, where the publication is in a national newspaper with a very wide circulation, and the only reasonable inference is that some of the readers of that newspaper must have knowledge of the facts which are said to give rise to the innuendo.”




    Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 36 (Hunt J.):

    “The defendant has submitted that, where a plaintiff is not identified by name and so relies upon knowledge of some extrinsic fact to establish publication, he must call at least one witness (in relation to each jurisdiction in which he alleges publication) who read (or saw) the matter complained of and who had knowledge of that extrinsic fact; a plaintiff is not, the defendant submitted, entitled to ask the jury simply to infer that such a person with that knowledge would have read (or seen) the matter complained of. It was argued that this necessarily followed from the decision of the Full Court in Consolidated Trust Co Ltd v Browne. The defendant conceded that, once a witness was called who gave evidence of reading (or seeing) the matter complained of with knowledge of the relevant extrinsic fact, the jury could infer that others would also have read (or seen) it with that knowledge. But it was, the defendant submitted, an inflexible rule that at least one witness must be called to prove publication where the plaintiff is not named in the matter complained of, and the plaintiff may not rely simply upon an inference that the matter complained of would have been published to a person with that knowledge. In the extempore judgment which I delivered during the course of the argument, I rejected that submission. I have, in appendix A (infra at 54) to these reasons for judgment, set out the relevant portion of my ex tempore judgment dealing with the decision in Consolidated Trust Co Ltd v Browne. I went on to hold that there was evidence in the present case from which the jury could draw the inference that people in each of Sydney, Melbourne, Adelaide and Mildura who knew the plaintiff would also have seen the programme.”

    54 (Hunt J.):

    “Appendix A: It is necessary to deal specifically also with the defendant's argument that the plaintiff is not entitled to rely upon inferences to establish publication in that sense without first producing direct evidence of identification from a witness …. This is necessary because the plaintiff relies solely upon such inferences in relation to publication in Victoria and South Australia. The classical statement of the law relating to proof of publication in those circumstances is to be found in the judgment of Sir Frederick Jordan in Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89; 66 WN 7 at 8:

    “… If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances.”

    The Chief Justice does not there suggest the necessity for at least one such reader to be called as a witness. Indeed, his Honour later says (at 91; 9) that it is not essential to call a witness to prove that he identified the plaintiff by any description in the matter complained of where, for example, the plaintiff is correctly described as the Prime Minister of Australia. The argument on behalf of Consolidated Trust Co Ltd in that case was that it was the owner of a building in which the tenants were said in the matter complained of to be required to comply with an offensive set of rules, and that it was open to the jury to infer that persons with knowledge of that extrinsic fact had read the defendant's newsletter in which the matter complained of was published. That argument was rejected (at 91; 9) not because the plaintiff could not prove such necessary facts by inference, but because the extrinsic fact relied upon was not of sufficient notoriety that it could fairly be presumed that anybody to whose notice the matter complained of came would know that the plaintiff was the owner of the building: see also Cross v Denley (1952) 52 SR (NSW) 112; 69 WN 137; Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 at 659; [1977] 3 All ER 32 at 39 and Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at 830; [1981] 2 All ER 272 at 278, 279.”




    Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504, 506 (Hunt J.):

    “If it is held that they are properly extrinsic facts not within the general knowledge of the community, the plaintiff must establish the existence of those facts and that they were known to at lease one reader of the matter complained of: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89; 66 WN 7 at 8. Depending upon the evidence given, that link may be established by way of inference — that is, without direct evidence: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 36, 54.”

  • Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 91 (Jordan C.J.):

    “This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as "the Prime Minister of Australia", it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated: Jones v. E. Hulton & Co. [1909] 2 K.B. 444 at 454, 477. But the less revealing the description the greater the danger of omitting proof of identification.”




    Cross v Denley (1952) 52 SR (NSW) 112, 116 (Owen J., Street C.J. agreeing at 112):

    “Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred – as for example where without mentioning names the statement is defamatory of a person who is described as the holder of a particular office and it is a matter of general notoriety who the holder of that office is evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary. But where, as here, the plaintiff could only be identified by that small percentage of the community which happened to know that he was a printer using the imprint “X-press Printery", it must be shown that some one or more of those to whom the pamphlet was published had that special knowledge.”




    Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798, 807 (Charles J.A., Ormiston J.A agreeing at 801):

    “From the foregoing, it is, I think, clear that Trkulja was not obliged to call evidence from any person who had read the publication in the Yellow Pages, to say that that person had understood the entry to refer to him. On the contrary, such a link can be established by way of inference, without direct evidence; see, in particular, Hughes v. Mirror Newspapers Ltd. per Hunt J. at 506. But the existence of such direct evidence would have been a powerful factor in leading to the conclusion that Trkulja was identified in the entry.”

  • The headnote in Kruse v Lindner (1978) 45 FLR 412 provides a concise summary of this point:

    “Per Smithers and Connor JJ., that hearsay evidence by the plaintiff of conversations with other persons would have been admissible in evidence to prove that the material complained of as being defamatory referred to the plaintiff, but was not admissible on the issue of damages.”




    Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 248 (Glass JA):

    “Mr Hughes QC first submitted that his Honour, in breach of the hearsay rule, had received evidence from four witnesses who were allowed to say, not only that, because of their special knowledge, they had identified the plaintiffs as the subject of the article, but that third parties had informed them, out of court, that they had also made the same identification. … In my opinion, the views expressed by this Court apply to the evidence in question, notwithstanding that it could affect the issue of damage as well. The proposition affirmed is merely that publication to persons with the requisite knowledge to perceive a reference to the plaintiff may be established by hearsay evidence.”




    Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, [57] (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “Another indirect way of satisfying the relevant principle without calling individual readers is where the plaintiff is in a position to give evidence of being contacted by people in circumstances showing that such contact was obviously a response to what they read in the publication which did not, ex hypothesi, expressly refer to the plaintiff (see Kruse, Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 248).”

  • Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 248 (Glass JA):

    “Mr Hughes QC first submitted that his Honour, in breach of the hearsay rule, had received evidence from four witnesses who were allowed to say, not only that, because of their special knowledge, they had identified the plaintiffs as the subject of the article, but that third parties had informed them, out of court, that they had also made the same identification. … In my opinion, the views expressed by this Court apply to the evidence in question, notwithstanding that it could affect the issue of damage as well. The proposition affirmed is merely that publication to persons with the requisite knowledge to perceive a reference to the plaintiff may be established by hearsay evidence.”

  • Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 369-70 (Hutley J.A.):

    “A number of grounds of appeal were argued, based on the admission of evidence as to the talk concerning Mrs. Steele in the town of Parkes. His Honour admitted evidence, presumably on the basis that the dictum of Wallace P. in Ware v. Associated Newspapers Ltd. (1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181 was to be preferred to the contrary dictum of Walsh J.A. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181). … Wallace P. referred to a number of cases of which Jozwiak v. Sadek [1954] 1 W.L.R. 275; [1954] 1 All E.R. 3 is the clearest in support for this exception. … It would appear, therefore, that the balance of authority and of learned writing would support the view expressed by Wallace P. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181) and that this evidence should be admitted, probably as a recognized exception to the hearsay rule. … I am therefore of the opinion that the dictum of Wallace P. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181) is to be preferred to the dictum of Walsh J.A. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 185). If the long-standing exception to the hearsay rule is to be done away with, this can only be done in a final court of appeal.”




    World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189, 207 (Hutley J.A., Glass J.A. agreeing at 212):

    “Over objection by the defendant, witnesses for the plaintiff gave evidence of statements made to them by persons who were not called to give evidence about what such persons believed had happened to the restaurant in consequence of the publication of the article. For example, Miss Henderson, who was at the time of publication a receptionist-cashier at the Sebel Town House, said that, while she was there, “people who knew I had worked at Caprice said: ‘I see your old restaurant has gone broke.’” Somewhat similar evidence was given, over objection, by other witnesses. The reception of this kind of evidence is, in my opinion, justified on the authority of the majority of the Court in Steele v. Mirror Newspapers Ltd. [1974] 2 N.S.W.L.R. 348 at 369 which, in my opinion, should not be reviewed in this Court. His Honour was justified in allowing this evidence and its reception does not justify an order for a new trial.”




    Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 234 (Hutley JA):

    “The plaintiffs called a number of persons to establish that, though not named in the article, the plaintiffs were identified with it by readers; and four of them, Messrs William Arthur, Norman Kingswell Day, John Davidson and Professor Johnson, gave evidence not only that they personally identified the plaintiffs as the persons reflected on in the article, but that other persons had spontaneously identified them in the course of conversation. It was submitted that, in so far as they were allowed to give evidence about their conversation with others, the evidence was inadmissible as hearsay. John Andrews himself also gave evidence of conversation with persons at Palm Beach and Eugowra relating to himself and his professional pursuits. This evidence was admitted on the authority of the decisions of this Court in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 369 and World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 at 207, and the Court declined to permit the authority of these decisions to be challenged before it. It was further submitted that though, on the authority of these decisions, this evidence was admissible to prove the range of publication, it was not admissible on the question of damages. His Honour had drawn no such distinction in his directions to the jury, and it was said he was in error in not having done so. I am of the opinion there is no substance in the distinction proposed to be drawn. If the evidence is properly admissible on the question of range of identification of the plaintiffs as the persons defamed, it is impossible to segregate the question of what is the appropriate measure of damages, so that the range of defamation is determined differently from the way in which compensation for the damage done by this defamation is fixed. Once the evidence was admitted, it was admitted for all purposes: Walker v Walker (1937) 57 CLR 630. In my opinion, there is no substance in the distinction, and this ground of appeal should be rejected.”




    Henry v TVW Enterprises Ltd (1990) 3 WAR 474, 477 (Seaman J):

    “Still concerned with the question of how many people identified the plaintiff as being the dentist in the Hinch programme, I have regard to evidence of talk among patients and dentists, although the precise juristic basis of its admissibility is not entirely certain.”




    Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, [57] (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “Another indirect way of satisfying the relevant principle without calling individual readers is where the plaintiff is in a position to give evidence of being contacted by people in circumstances showing that such contact was obviously a response to what they read in the publication which did not, ex hypothesi, expressly refer to the plaintiff (see Kruse, Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 248). A variant is evidence of talk amongst readers or viewers that is indicative of the identification having been made (Steele at 369-70, Henry v TVW Enterprises Ltd (1990) 3 WAR 474). The court must conclude that such evidence is capable of supporting the inference that the responses to the matter complained of showed that the persons concerned understood it to refer to the plaintiff (Kruse at 426).”

  • Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 369-70 (Hutley J.A.):

    “A number of grounds of appeal were argued, based on the admission of evidence as to the talk concerning Mrs. Steele in the town of Parkes. His Honour admitted evidence, presumably on the basis that the dictum of Wallace P. in Ware v. Associated Newspapers Ltd. (1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181 was to be preferred to the contrary dictum of Walsh J.A. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181).

    … Wallace P. referred to a number of cases of which Jozwiak v. Sadek [1954] 1 W.L.R. 275; [1954] 1 All E.R. 3 is the clearest in support for this exception. … It would appear, therefore, that the balance of authority and of learned writing would support the view expressed by Wallace P. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181) and that this evidence should be admitted, probably as a recognized exception to the hearsay rule. … I am therefore of the opinion that the dictum of Wallace P. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181) is to be preferred to the dictum of Walsh J.A. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 185). If the long-standing exception to the hearsay rule is to be done away with, this can only be done in a final court of appeal.”

  • Bourke v Warren (1826) 172 ER 138, 138-40 (Abbot C.J.):

    “This was an action for a libel published in the Courier newspaper, accusing the plaintiff of being the writer of a fabricated letter… To prove that the plaintiff was the person meant, Mr. Roe, the magistrate, and Plank, an officer of the Marlborough Street police-office, proved that they understood it to mean the plaintiff ; but they both stated that they did not derive their knowledge entirely from the perusal of the libel itself, but partly from the letter of Edmonds, which had been sent to Mr. Roe… Another witness proved, that he considered the plaintiff was the person meant, because, in the first Courier newspaper, which was mentioned in the declaration, the writer of the letter to Mr. Spilsbury was asserted to be a person who had been sued by Mr. H. On this evidence, the defendants' counsel went to the Jury, on the ground that it was not sufficiently shewn that the plaintiff was the person meant by the libel.

    Abbott, C. J. (in summing up to the Jury).—

    The question for your consideration is, whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant ? It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant. With regard to the evidence of Mr. Roe, and of Plank, I think you ought to lay that out of the case, because they had seen the written letter of Edmonds (with which the defendants had nothing to do), and, therefore, they partly derive their information from that. In the prior newspaper some allusion was made to a person who had been sued, and that was what guided the last witness. You must, therefore, consider, whether the two newspapers shewed to those who knew the plaintiff, that he was the person meant.”

  • Tobin, T K, M G Sexton, LexisNexis, Australian Defamation Law and Practice, Vol 1 (retrieved on 18 April 2019).

  • Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 14-6:

    “In some circumstances, a plaintiff may rely for the extrinsic fact identifying him in the matter complained of upon a statement of fact (rather than upon the fact stated itself). … There are three situations in which such a statement may properly be made the basis for the plaintiff's identification. In each situation, the plaintiff must establish in evidence the existence of the statement that he was to appear (or that he had appeared) for the accused - even though the fact stated was itself erroneous. The first situation is where, prior to the publication of the matter complained of, a statement that the plaintiff was to appear for the accused had been published. Such a publication is said to show the condition of the public mind: Van Ingen v Mail & Express Publishing Co (1898) 50 NE Rep 979 at 981, 982; cf Astaire v Campling [1966] 1 WLR 34 at 39. It matters not by whom the earlier statement was published, nor that the fact so stated is itself erroneous. The plaintiff must establish in evidence the existence of the earlier statement and call a witness who read the matter complained of with knowledge of its existence. The extrinsic fact upon which the plaintiff relies is the statement that he was to appear for the accused, not the appearance itself. He will fail if all that he can prove is that the matter complained of was read by a reader who erroneously believed that such an earlier statement had been made.”




    Van Ingen v Mail & Express Publishing Co (1898) 50 NE Rep 979, 981-2:

    “To determine the effect of the defendant's article and to whom it applied, it would seem proper to show the condition of the public mind, the information the public possessed upon the subject of the article, and the consequent inference which it would readily drawn from reading it… In other words, it seems to me that a defendant cannot publish a libel of another and shield himself by not disclosing the name of the person to whom it was intended to refer, when he knows and understands that by reason of former publications the public mind is in a condition where it would necessarily understand the article as applying to him alone.”




    Astaire v Campling [1966] 1 WLR 34, 39 (Sellers L.J., Davies L.J. agreeing at 39, Diplock L.J. agreeing at 40):

    “It may well be, that in circumstances where the identity of a plaintiff is not expressly referred to in an article, extrinsic evidence may be given to establish identity, but it seems to me a wholly different matter to seek to add to the alleged libel defamatory views expressed and published by somebody else. Counsel for the plaintiff relied on the decision as to identity and some of the observations in an American case in the last century, Van Ingen v. Mail & Express Publishing Co. (1898) 156 New York Reports 376, and in his argument, and particularly in his final argument in reply, he laid stress on the following words to be found in the opinion given by Martin J., which was the majority opinion of the court. The judge said (at 386):

    “To determine the effect of the defendant's article and to whom it applied, it would seem proper to show the condition of the public mind, the information the public possessed upon the subject of the article, and the consequent inference which it would readily drawn from reading it”;

    and in another passage (at 387):

    “In other words, it seems to me that a defendant cannot publish a libel of another and shield himself by not disclosing the name of the person to whom it was intended to refer, when he knows and understands that by reason of former publications the public mind is in a condition where it would necessarily understand the article as applying to him alone.”

    The public mind may no doubt be relevant in a case of identity, but if it has been affected by defamatory statements made by someone other than the defendant and not by the defendant, the article does not seem to me to make the defendant liable for anything more than it contains. It must be brought home by the evidence of innuendo to a reader that the article itself, which is the article complained of as the libel, has in the light of all the circumstances a defamatory meaning. In my view the facts set out in support of the innuendo do no such thing and I would dismiss this appeal.”

  • Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 14-6:

    “In some circumstances, a plaintiff may rely for the extrinsic fact identifying him in the matter complained of upon a statement of fact (rather than upon the fact stated itself). … There are three situations in which such a statement may properly be made the basis for the plaintiff's identification. In each situation, the plaintiff must establish in evidence the existence of the statement that he was to appear (or that he had appeared) for the accused - even though the fact stated was itself erroneous. The first situation is where, prior to the publication of the matter complained of, a statement that the plaintiff was to appear for the accused had been published. Such a publication is said to show the condition of the public mind: Van Ingen v Mail & Express Publishing Co (1898) 50 NE Rep 979 at 981, 982; cf Astaire v Campling [1966] 1 WLR 34 at 39. It matters not by whom the earlier statement was published, nor that the fact so stated is itself erroneous. The plaintiff must establish in evidence the existence of the earlier statement and call a witness who read the matter complained of with knowledge of its existence. The extrinsic fact upon which the plaintiff relies is the statement that he was to appear for the accused, not the appearance itself. He will fail if all that he can prove is that the matter complained of was read by a reader who erroneously believed that such an earlier statement had been made.”




    Van Ingen v Mail & Express Publishing Co (1898) 50 NE Rep 979, 981-2:

    “To determine the effect of the defendant's article and to whom it applied, it would seem proper to show the condition of the public mind, the information the public possessed upon the subject of the article, and the consequent inference which it would readily drawn from reading it… In other words, it seems to me that a defendant cannot publish a libel of another and shield himself by not disclosing the name of the person to whom it was intended to refer, when he knows and understands that by reason of former publications the public mind is in a condition where it would necessarily understand the article as applying to him alone.”




    Astaire v Campling [1966] 1 WLR 34, 39 (Sellers L.J., Davies L.J. agreeing at 39, Diplock L.J. agreeing at 40):

    “It may well be, that in circumstances where the identity of a plaintiff is not expressly referred to in an article, extrinsic evidence may be given to establish identity, but it seems to me a wholly different matter to seek to add to the alleged libel defamatory views expressed and published by somebody else. Counsel for the plaintiff relied on the decision as to identity and some of the observations in an American case in the last century, Van Ingen v. Mail & Express Publishing Co. (1898) 156 New York Reports 376, and in his argument, and particularly in his final argument in reply, he laid stress on the following words to be found in the opinion given by Martin J., which was the majority opinion of the court. The judge said (at 386):

    “To determine the effect of the defendant's article and to whom it applied, it would seem proper to show the condition of the public mind, the information the public possessed upon the subject of the article, and the consequent inference which it would readily drawn from reading it”;

    and in another passage (at 387):

    “In other words, it seems to me that a defendant cannot publish a libel of another and shield himself by not disclosing the name of the person to whom it was intended to refer, when he knows and understands that by reason of former publications the public mind is in a condition where it would necessarily understand the article as applying to him alone.”

    The public mind may no doubt be relevant in a case of identity, but if it has been affected by defamatory statements made by someone other than the defendant and not by the defendant, the article does not seem to me to make the defendant liable for anything more than it contains. It must be brought home by the evidence of innuendo to a reader that the article itself, which is the article complained of as the libel, has in the light of all the circumstances a defamatory meaning. In my view the facts set out in support of the innuendo do no such thing and I would dismiss this appeal.”

  • Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 14-6:

    “In some circumstances, a plaintiff may rely for the extrinsic fact identifying him in the matter complained of upon a statement of fact (rather than upon the fact stated itself). … There are three situations in which such a statement may properly be made the basis for the plaintiff's identification. In each situation, the plaintiff must establish in evidence the existence of the statement that he was to appear (or that he had appeared) for the accused - even though the fact stated was itself erroneous. … The second situation is where the defendant himself has published the statement that the plaintiff was to appear or had appeared for the accused. It matters not whether such a statement was published before or after the publication of the matter complained of. If it was before, the situation is the same as that which I have already discussed. Subsequent statements published by the defendant were held to be admissible in Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) 180 at 184-185 and in Hayward v Thompson [1982] QB 47 at 60, 67-68. In such a case, the plaintiff relies upon the existence of that statement (even though the fact stated is erroneous) as material from which the ordinary reasonable reader with knowledge of its existence could conclude that it was to the plaintiff to whom the defendant intended to refer (whatever may have been the defendant's actual intention): see Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 89-91. Nor does it matter that the fact stated was itself erroneous. (I do not propose to complicate this discussion by any reference to the defendant's actual intention to refer to the plaintiff. It is to be hoped that the anomaly imposed upon the law by the decision of the Privy Council in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734 will prove to be a temporary aberration only: see Baltinos v Foreign Language Publications Pty Ltd at 89-96.)”




    Hayward v Thompson [1982] QB 47, 67-8 (Sir George Baker):

    “In the present case there was nothing innocent about the publication of April 9. … It seems to me to have been a kind of crossword puzzle or colloquially a “Who dunnit” on page 1, with an invitation to solve the identity from the clue “a wealthy benefactor of the Liberal party.” Why else was it written? Mr. House said that the wealthy benefactor and businessman had not been identified by his informant in any way. He was not cross-examined about this. But it is obvious that Mr. House and every crime reporter and indeed every reporter worth his salt who had read or heard of the article of April 9 would be trying to identify this generous benefactor and get a story from him. This is exactly what happened to cause Mr. Hayward to use the words “I think this started the holocaust.” So too every reader with a liking for puzzles was being invited to guess the identity, and to search 68his memory or elsewhere for the answer. … Then in his article on Sunday, April 16, Mr. House named the plaintiff, thus revealing the answer to his conundrum of the previous week. … The plaintiff's case was very simple, that he was and was understood to be the generous benefactor defamed on April 9 and named on April 16. He was a generous benefactor, having given £219,000 for the Liberal Party between May 8, 1970, and November 15, 1975. He was defamed in both articles, and in my judgment the judge was entirely justified in refusing to strike out the particulars on the ground that to do so would cause a grave injustice to the plaintiff.”




    Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85, 89-6 (Hunt. J):

    “There exists, however, a qualification to that principle, in that a plaintiff may rely upon such a subsequent publication by the defendant where the matter complained of is defamatory on its face and where the subsequent publication by the defendant is used only to identify the plaintiff as the person referred to: Hayward v Thompson [1982] QB 47 at 60, 67-68. The existence of that qualification in relation to subsequent publications by the defendant is justified upon two bases. The first is that such publications by the defendant tend to establish that the defendant had actually intended to refer to the plaintiff in the matter complained of; the second is that (whether the defendant had actually intended to or not) the subsequent publications lead the reader to infer from what was so published that the defendant had intended to refer to the plaintiff: Hayward v Thompson (at 60).

    Even the existence of that qualification does not permit the plaintiff in the present action to rely upon his identification in the subsequent television programme, because the subsequent programme was not published by the defendant. The plaintiff argues, however, that — where, as here, the perceived intention of the defendant (which provides the second justification for that qualification) is to refer to a particular person or group of persons and to invite the reader to ascertain their identity by reference to a publication by someone else — it matters not whether that publication by someone else is prior to or subsequent to the defendant's own publication. That argument may fairly be described as an extension to the qualification already permitted by Hayward v Thompson. The defendant's attack upon the plaintiff's case is not limited to the proposed extension of that qualification. The defendant attacks the validity of the qualification itself, and both bases upon which it is said to be justified.

    The first basis upon which the qualification is justified is that the subsequent publication by the defendant tends to establish that the defendant actually intended to refer to the plaintiff in the matter complained of. The relevance of the defendant's actual intention to refer to the plaintiff to the issue of identification is now supported by respectable authority, notwithstanding its apparent disregard of the fundamental principle that liability for defamation depends not upon the intention of the defamer but upon the fact of defamation: Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 354. That “respectable authority” is based wholly upon the following statement by Dixon J in Lee v Wilson (1934) 51 CLR 276 at 288-289:

    “… If it be necessary to find which, of several equally described, was the person actually meant, the intention of the writer, not of the publisher, would appear to govern the answer. An actual intention, whether in writer or publisher, of referring to the plaintiff cannot be treated as irrelevant. Indeed, where the words are capable of relating to the plaintiff, but it is uncertain whether they actually do so, the fact that they are used with him in view appears to be decisive. The reason may be that if words are capable of being read as referring to the plaintiff, and are intended to be so read, it must be presumed in his favour that they actually were so read.”

    The fundamental principle which that statement appears to disregard, as stated by Russell LJ in Cassidy v Daily Mirror Newspapers Ltd, was accepted (in the very terms stated by his Lordship) in Lee v Wilson by Dixon J (at 292) and, with some reservation, by Starke J (at 285). The other members of the High Court in that case (Evatt and McTiernan JJ) adopted the same principle; they held (at 297-298) that the test of identification was solely objective in character and that an actual intention to refer to the plaintiff was immaterial to the identification issue. Dixon J (at 289) and Evatt and McTiernan JJ (at 297) quoted with approval the following statement by Lord Loreburn LC in E Hulton & Co v Jones [1910] AC 20 at 23:

    “… Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff.”

    Starke J (at 284-285) and Dixon J (at 289) quoted with approval the statement by the Lord Chancellor on the following page:

    “… Just as the defendant could not excuse himself from malice by proving that he wrote it with the most benevolent spirit, so he cannot shew that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did.”

    The other three members of the House of Lords in E Hulton & Co v Jones concurred with the speech of the Lord Chancellor. Lords Atkinson and Gorell (at 25) also concurred “substantially” with the judgment of Farwell LJ in the Court of Appeal: Jones v E Hulton & Co [1909] 2 KB 444. His Lordship there had held (at 478) that:

    “… The rule is well settled that the true intention of the writer of any document, whether it be contract, will or libel, is that which is apparent from the natural and ordinary interpretation of the written words; and this, when applied to the description of an individual, means the interpretation that would be reasonably put upon those words by persons who know the plaintiff and the circumstances.”

    His Lordship went on to say (at 480):

    “… the inquiry is not what did the defendant mean in his own breast, but what did the words mean having regard to the relevant surrounding circumstances.”

    I pass over for the moment a number of other statements at 479-481 of the report. His Lordship concluded his judgment upon this subject with this statement (at 482):

    “… If a man chooses to make statements of fact about persons whom he names, as in this case, I see no reason why he should not be liable to every one whom he injures who can convince a jury that he is reasonably intended by the words used.”

    With all due respect to those who may have expressed a contrary conclusion, it seems to me to be clear beyond any argument that all of those statements — both by Farwell LJ and by Lord Loreburn LC — support the orthodox or fundamental principle that the only intention of the defendant which is relevant to the issue of identification is that which is perceived by the reader to have been his intention, gained only from what has been published by the defendant. The defendant's actual intention is irrelevant to that issue.
    Those statements were, as I have said, so interpreted by Evatt and McTiernan JJ in Lee v Wilson. On the other hand, Starke J relied upon other statements by Farwell LJ (those which I have earlier passed over) to interpret his Lordship's view as making relevant to the issue of identification not only the perceived intention of the defendant but also his actual intention (at 284). I do not think that it is necessary to refer to all of those other statements; one will suffice. His Lordship said (at 479):

    “… It always was and is still open to (the defendant) to prove the surrounding circumstances, so as to shew that, although the words appear to refer to the plaintiff, that is not their true intent and meaning.”

    However, that statement, and the others to which Starke J referred, must surely be interpreted in accordance with the definition of the “true intention of the writer” which his Lordship gave (at 478) and which I have earlier quoted — namely, “that which is apparent from the natural and ordinary interpretation of the written words”. Starke J went on to say (also at 284) that it did not appear to him that the House of Lords had denied that an actual intention was still necessary in defamation actions. The remaining member of the Court, Dixon J, emphasised (at 287) that it is the publication of the libel, not its composition, which is the actionable wrong. His Honour (at 294) expressed great difficulty in understanding the full meaning of the judgment of Farwell LJ at 480-482 of the report. His Honour recognised (at 293) that his Lordship had insisted that nothing but the meaning conveyed by the text is to be considered in relation to this issue. Dixon J nevertheless stated (at 288-289) — apparently upon the basis of what had been held in E Hulton & Co v Jones — that the defendant's actual intention to refer to the plaintiff was not only relevant to the identification issue, it was also decisive of that issue. (The passage is quoted earlier in this judgment.)

    In the end, however, both Starke and Dixon JJ decided the appeal in Lee v Wilson (at 286, 295) on the basis that the defendant was liable only because the reader could reasonably have perceived from what was published that the defendant had intended to refer to the plaintiff. (The defendant's case had been that he had actually intended to refer to a third person with the same name.) The statements by Starke and Dixon JJ that the defendant's actual intention was relevant to the identification issue were therefore obiter. With unfeigned respect to their Honours, it is difficult to see how those statements could have been based upon what had been said in E Hulton & Co v Jones. An actual intention to refer to the plaintiff was clearly held to be unnecessary in that case. Its relevance to the issue of identification could only be upheld by a misinterpretation of what had been said by Farwell LJ and despite what had been said by Lord Loreburn — as Evatt and McTiernan JJ correctly held.

    The obiter statement by Dixon J that an actual intention to refer to the plaintiff was not only relevant to the identification issue but decisive of that issue was accepted as correct and applied by Priestley JA in David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 362, when upholding the admissibility upon this issue of an interrogatory and the answer thereto whereby the defendant had admitted an intention to refer to the plaintiff. His Honour recognised the anomaly in what had been said by Dixon J, but did not refer either to its obiter character or to the contrary views of Evatt and McTiernan JJ. His Honour's reasoning was adopted without further dis-cussion and his ruling was upheld on appeal by the Privy Council: Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734; [1986] AC 350 at 364. It is the decision of the Privy Council in that case which constitutes the “respectable authority” now supporting the relevance of the defendant's actual intention to the issue of identification.

    The basis upon which such an interrogatory directed to the defendant's actual intention is usually permitted and upon which its answer had usually been admitted into evidence previously was its relevance to the issue of actual malice rather than the issue of identification: Norton v Hoare (No 2) (1913) 17 CLR 348 at 352. The defendant had argued in the High Court in that case (at 351) that his intention to refer to the plaintiff was immaterial to the issue of identification. In Spiers & Pond Ltd v “John Bull” Ltd (1916) 85 LJKB 992 at 995-996, the English Court of Appeal allowed an interrogatory as to the defendant's intention to refer to the plaintiff, but made it clear (based upon E Hulton & Co v Jones) that the question raised by the issue of identification was not whether the defendant had actually intended to refer to the plaintiff but rather whether other persons would perceive the defendant to have done so. The right to interrogate upon this matter is discussed in Erwin v Southdown Press [1976] VR 353 at 360-361, and the conclusion is expressed that the answer is admissible upon the issue of damages (that is, malice): see also Gattelari v Lar Val Holdings Pty Ltd (Lee J, 17 April 1974, unreported). Norton v Hoare (No 2) was not cited to either the Court of Appeal or the Privy Council in Lloyd's case nor to the High Court in Lee v Wilson (although Spiers & Pond Ltd v “John Bull” Ltd was referred to during argument in Lee v Wilson).

    The relevance of the defendant's actual intention to the issue of identification has generally been viewed against a factual background in which the defendant did not in fact intend to refer to the plaintiff but where he has used words from which such an intention could be inferred or perceived. That was expressly the case in both E Hulton & Co v Jones and Lee v Wilson. It would also appear to have been the case in Cassidy v Daily Mirror Newspapers Ltd and the progeny of that decision: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581; Newstead v London Express Newspaper Ltd [1940] 1 KB 377 and Hough v London Express Newspaper Ltd [1940] 2 KB 507. In every case, it has been held that the absence of an actual intention to refer to the plaintiff is not relevant to the issue of identification. In other cases, the defendant's actual intention has been unknown. Morgan v Odhams Press Ltd is a good example of that category. In that case (at 1242; 1252; 1261; 1267; 1160; 1168; 1177; 1182), and in all of the other cases in that category, it has been held that the defendant's actual intention is not relevant to that issue. Apart from the obiter dicta of Starke and Dixon JJ in Lee v Wilson, it had never previously been expressly stated that the presence of such an actual intention is relevant to that issue.

    Lloyd v David Syme & Co Ltd appears to have been the first case in which the defendant did intend to refer to the plaintiff where the relevance of the defendant's actual intention to the issue of identification has been considered. Their Lordships were not assisted in that consideration by the reference to any authority, according to the report of the argument on this point (at 357). The inconsistency between the decision in Lloyd's case that such an intention is relevant to this issue and the decision in all the other cases that the absence of such an intention is not relevant appears not to have been noticed; it certainly was not explained.

    A much earlier decision of the High Court should be mentioned at this stage. Godhard v James Inglis & Co Ltd (1904) 2 CLR 78 was, of course, decided before that Court's acceptance of E Hulton & Co v Jones. Some observations made in the judgment of the Court (delivered by Griffith CJ) would therefore no longer reflect the law: see, particularly, the example given in the middle of 87 of the report. But the judgment was based to a very large extent upon the decision of the House of Lords in Le Fanu v Malcolmson (1848) 1 HLCas 637; 9 ER 910, which also played a significant part in the judgments of the Court of Appeal in Jones v E Hulton & Co, and for that reason the decision of the High Court remains a relevant one.

    The defendant in Godhard v James Inglis & Co Ltd admitted that he had intended to criticise the way in which a particular company had carried on its business, but said that he had not known that the plaintiff was connected with that company or that he was one of the persons who carried on its business (at 85-86). The trial judge directed the jury that the plaintiff had to prove that the writer of the article had the plaintiff personally in his mind, and not merely as some unknown person who came within the category of persons which he had criticised (at 88). Counsel for the plaintiff unsuccessfully sought a direction that it was immaterial whether the defendant had intended to refer to the plaintiff or not if the matter complained of was understood by the persons reading it to refer to him (at 86). The jury found for the defendant. In the High Court, the report of the argument suggests that the plaintiff narrowed that submission; his argument is reported as asserting that it was immaterial that the plaintiff had not intended to refer to the plaintiff personally (at 81). He is also reported as having argued that the intention of the defendant must be gathered from what is published and as having added that every person is presumed to intend the natural consequences of his acts (at 82). To that last submission I will return shortly. In the judgment, the plaintiff is said to have put the same submission as was put at the trial — that the defendant's intention (that is, one way or the other) was immaterial provided that the matter complained of was understood to refer to the plaintiff (at 87). It was held (at 92) that it was sufficient for the plaintiff to prove that the reader identified the plaintiff from the words used and that the defendant's ignorance of the precise person to whom his words applied was irrelevant. The judgment added (also at 92) that, in any event, the defendant in that case had intended to attack those who carried on the business of the particular company.

    Godhard v James Inglis & Co Ltd perhaps does not fall easily within any category. Although it was a case in which the defendant intended to refer to a group of persons which (unknown to him) included the plaintiff, the basis upon which the appeal was decided was the purely objective test, as stated in these words (at 92):

    “… It seems to us, therefore, in the present case, to be quite immaterial that no person is mentioned by name, since, if the person who has been defamed can be identified by the words used, in such a manner that nobody can have any doubt in fact that he is meant, an action will lie.”

    That statement followed the proposition stated earlier on the same page:

    “… the fact that the defendant does not know who is the person to whom his designation applies, can make no difference. A man who makes an attack upon an individual by a description which applies distinctly to that individual, is not entitled to excuse himself by saying: ‘I did not know that he was the man.’”

    Those statements would clearly enough put the case into the E Hulton & Co v Jones category. It is the reference to the defendant's actual intention which is thereafter added (at 92) which creates the difficulty. It was not, it seems to me, intended by the High Court that that addition was to form part of the ratio of its decision, for an actual intention on the part of the defendant to refer to the plaintiff had already been held to be unnecessary, and it had been no part of the plaintiff's argument that such an intention would be sufficient to establish his case. Godhard v James Inglis & Co Ltd was cited to the High Court during the argument in Lee v Wilson, but it is not referred to in the judgments.

    Before leaving that case, it is as well that I deal with the submission made by the plaintiff to the High Court (but not referred to in the judgment of the Court) that every person is presumed to intend the natural consequences of his act. The introduction of that maxim has been said to be seldom helpful and always dangerous: Stapleton v The Queen (1952) 86 CLR 358 at 365. The maxim itself has been described as a highly dangerous one: Baily v Baily (1952) 86 CLR 424 at 427; and disapproval of it has been expressed by the High Court on many occasions: see Smyth v The Queen (1957) 98 CLR 163 at 166-167; Thomas v The Queen (1960) 102 CLR 584 at 596-597.

    If proof of the defendant's actual intention to refer to the plaintiff were necessary in relation to the issue of identification (which everyone agrees it is not), rather than merely relevant to that issue (which the Privy Council has now held it to be), such an intention could be proved by reference to what had been written, but there is no presumption in favour of the plaintiff that the defendant did in fact intend what was perceived to be his intention from what he published; the onus would remain upon the plaintiff to establish the defendant's actual intention upon a review of the whole of the evidence: R v Steane [1947] KB 997 at 1004. The whole of the evidence may well include the defendant's denial that such was his intention. What was published, however, will alone remain sufficient to establish an identification of the plaintiff if such an intention is perceived from it by the ordinary reasonable reader, notwithstanding the absence of any actual intention on the part of the defendant to refer to the plaintiff.

    This only goes to show the disregard of logical, fundamental principle which is involved in what the Privy Council has now held. What would happen, for example, where a newspaper is sued for reporting a statement made in circumstances such as would make its author responsible for its republication in the press (as at a press conference: cf Sims v Wran [1984] 1 NSWLR 317 at 320)? If Lloyd v David Syme & Co Ltd is to be applied, the author's intention to refer to the plaintiff would be relevant to the issue of identification, but the absence of such an intention on the part of the reporter would not. How can that logically be correct?

    There are practical problems, too. If it is a question of the defendant's actual intention, and if the defendant is a corporation, the relevant intention can only be that had by those persons who were responsible for the original publication by the defendant, whether those persons directed or authorised that publication or, having a discretion in the matter performed some part in its composition. The authorities for that proposition are collected and discussed in Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727 at 733. A subsequent publication by the corporate defendant could be no evidence of their state of mind unless it were shown by the plaintiff that they too were responsible for the subsequent publication. Yet this has never been required of a plaintiff, and that fact can only be explained upon the basis that the subsequent publication by the defendant is not tendered as evidence of the defendant's actual intention to refer to the plaintiff.

    Another practical problem would arise in relation to particulars. Where other publications by the defendant are relied upon by the plaintiff to establish the defendant's actual intention to refer to him, no particulars need be given of them as extrinsic facts, for they do not properly fall within the description of extrinsic facts at all. Their admissibility depends upon proof of a fact of which the ordinary reasonable reader must necessarily have been unaware (the defendant's actual intention) and not upon proof of facts outside the matter complained of itself which led the reader to perceive the defendant's intention from what was published: cf Morgan v Odhams Press Ltd at 1242; 1160; 1248; 1165; Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 80. The fact that no such distinction has ever been drawn can only be explained again upon the same basis.

    Moreover, if an actual intention to refer to the plaintiff is relevant to the issue of identification — upon the basis that where such an intention exists it must be presumed to have had the effect intended (as Dixon J said) — why is the defendant's actual intention to convey particular imputations not relevant to the issue of the sense in which the matter complained of was understood by the ordinary reasonable reader? There can be no real distinction in principle, yet it certainly is not the law that the defendant's actual intention is relevant to that issue. Many of the older cases are collected in Spencer Bower, A Code of Actionable Defamation (1923) 2nd ed at 48-49; see also Rofe v Smith's Newspaper Ltd (1924) 25 SR (NSW) 4 at 17; 42 WN 3. Further cases are collected in Anderson v Mirror Newspapers Ltd (No 1) (1986) 6 NSWLR 99 at 108. The unanimity in the views expressed in all of those cases upon this issue of meaning supports the conclusion that both Dixon J and the Privy Council were wrong in holding that the defendant's actual intention to refer to the plaintiff is relevant to the issue of identification.

    Subject only to certain exceptions (which do not apply here), a judge at first instance is bound to disregard a decision of the Privy Council where it is in conflict with a decision of the High Court: National Employers' Mutual General Association Ltd v Waind and Hill (No 2) [1978] 1 NSWLR 466 at 474-475. What then is the ultimate position in relation to the High Court? In Lee v Wilson, two members of the Court held that the defendant's actual intention is not relevant to the issue of identification, and two members of the Court held (obiter) that the defendant's actual intention to refer to the plaintiff is relevant to that issue. In Godhard v James Inglis & Co Ltd, the Court held that the absence of such an intention is not relevant to that issue. In Norton v Hoare (No 2), the Court held that the presence of such an intention is relevant to the issue of malice. Nowhere — other than in the joint judgment of two of the four members of the Court in Lee v Wilson — has that Court stated positively that the presence of such an intention is not relevant to the issue of identification, in the way in which (pace Starke and Dixon JJ in Lee v Wilson) the House of Lords has made a positive statement to that effect in E Hulton & Co v Jones.

    Notwithstanding the serious and fundamental objection in principle to what was held by the Privy Council in Lloyd v David Syme & Co Ltd, I am therefore bound by that decision. In those circumstances, I must reject the defendant's attack concerning the first basis upon which the relevance of a subsequent publication by the defendant to the issue of identification is justified, despite that serious and fundamental objection in principle. It will certainly require an appellate court above me in the judicial hierarchy to disregard the decision of the Privy Council which supports that justification. The matter certainly needs consideration by an appellate court which is able to do so: cf Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 315. The second basis upon which the relevance of a subsequent publication by the defendant to that issue is justified is that (whether the defendant had actually intended to or not) the subsequent publication leads the reader to infer from what was so published that the defendant had intended to refer to the plaintiff.”

  • Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 14-6:

    “In some circumstances, a plaintiff may rely for the extrinsic fact identifying him in the matter complained of upon a statement of fact (rather than upon the fact stated itself). … There are three situations in which such a statement may properly be made the basis for the plaintiff's identification. In each situation, the plaintiff must establish in evidence the existence of the statement that he was to appear (or that he had appeared) for the accused - even though the fact stated was itself erroneous. … The second situation is where the defendant himself has published the statement that the plaintiff was to appear or had appeared for the accused. It matters not whether such a statement was published before or after the publication of the matter complained of. If it was before, the situation is the same as that which I have already discussed. Subsequent statements published by the defendant were held to be admissible in Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) 180 at 184-185 and in Hayward v Thompson [1982] QB 47 at 60, 67-68. In such a case, the plaintiff relies upon the existence of that statement (even though the fact stated is erroneous) as material from which the ordinary reasonable reader with knowledge of its existence could conclude that it was to the plaintiff to whom the defendant intended to refer (whatever may have been the defendant's actual intention): see Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 89-91. Nor does it matter that the fact stated was itself erroneous. (I do not propose to complicate this discussion by any reference to the defendant's actual intention to refer to the plaintiff. It is to be hoped that the anomaly imposed upon the law by the decision of the Privy Council in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734 will prove to be a temporary aberration only: see Baltinos v Foreign Language Publications Pty Ltd at 89-96.)”




    Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85, 97-8 (Hunt. J):

    “I must therefore also reject the defendant's attack concerning the second basis upon which the relevance of a subsequent publication by the defendant to the issue of identification is justified. I turn next to the extension to that principle which is proposed by the plaintiff — namely, that he should be entitled to rely upon the defendant's apparent invitation to the reader in the matter complained of to ascertain the identity of those to whom he intended to refer by reference to the television programme, notwithstanding that that programme was published subsequently and by someone else.

    The policy behind the qualification discussed in Hayward v Thompson —that the plaintiff is restricted to subsequent publications by the defendant —is clear enough. If a defendant has published matter which is defamatory of a person who is not identified in that matter, he should not and cannot in law be responsible if some other person subsequently points the finger at the plaintiff — and that should be so (pace Dixon J and the Privy Council) whether or not the defendant did in fact intend to refer to the plaintiff. If the other person who subsequently pointed the finger at the plaintiff was understood by reason of having done so to have adopted what the defendant had published, then that other person will be responsible himself for having published that matter of and concerning the plaintiff: Astaire v Campling (at 40; 41; 668); Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 666-667. But it would be unfair to make the defendant liable for what some other person may subsequently do (whether innocently or mischievously) by pointing the finger at a person who could not otherwise be identified from what was published at the time when it was published.

    The situation in the present case, however, is that the defendant could be understood from the matter complained of as itself pointing the finger at the person or the group of persons to whom it intended to refer. There could be no objection in principle to a plaintiff relying upon such an apparent intention on the part of the defendant where the identity of the person so identified became known as soon as the matter complained of was published. That is correctly conceded by the defendant. An example would be where the defendant says that the person it is criticising was named in a particular way in an earlier edition of its own (or of someone else's) newspaper. The plaintiff may rely on that earlier publication upon the issue of identification. Another example would be where the defendant says that the person it is criticising will be named in a particular way in a later edition of its own newspaper. The plaintiff may rely on that subsequent publication upon the same issue, as that situation falls directly within Ware v Associated Newspapers Ltd and Hayward v Thompson. A third example is where the defendant says that the person it is criticising will be named in a particular way in a television programme to be published by someone else that evening. That is the present case. How is it different in principle?

    It is argued by the defendant that the plaintiff should not be permitted to rely on such a subsequent publication by someone else upon the issue of identification unless it is shown that the defendant knew that it was the plaintiff who was named in that subsequent publication and that it was defamatory of him and unless it is also shown that the defendant intended to adopt that subsequent publication as his own. Those arguments, in my view, amount to an impermissible attempt to make the defendant's actual intention to refer to the plaintiff not only relevant but also necessary. That has never been the law, and the arguments must be rejected. It is irrelevant whether the subsequent publication is defamatory of the plaintiff. It is relevant only that he is named in such a way that he may be identified as the person to whom the defendant apparently intended to refer in the matter complained of. In the present case, the matter complained of is capable of being understood as asserting that the defendant knew what was to be said in the television programme (whether or not it did in fact know), but in my view that circumstance is irrelevant to this issue.

    The plaintiff's right to rely on the television programme upon the issue of identification in the present case does not infringe the policy behind the decision in Hayward v Thompson. In so far as my acceptance of the plaintiff's right to do so is seen to be an extension of the qualification already permitted by that case, it seems to me to be a wholly justified extension.

    The question to be determined in this separate trial is the nature of the direction to be given to the jury as to the regard which they may have to the subsequent television programme upon the issue of identification. In my judgment, the jury will have to be directed that, if they conclude that the ordinary reasonable reader understood the defendant from the matter complained of to be inviting him to view the SBS-TV programme in order to ascertain the identity of the person or persons to whom it had intended to refer, they may have regard to the naming of the plaintiff in that programme upon the issue of identification and in assessing the number of readers who would have understood the defendant to have been referring to the plaintiff.”

  • Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798, 799-801 (Tadgell J.A.):

    “In order to succeed the appellant needed to satisfy the tribunal of fact that the Yellow Pages entry, being defamatory: ... (b) that such a person reasonably understood the entry to refer to the appellant. ... In order to satisfy the requirement set out in para. (b) above the appellant relied on evidence of himself and others that he was very well-known in the ethnic community in which he moved and that he was also very well-known to be the guiding spirit behind the business conducted by the appellant company. Again, however, the judge was entitled to disregard the appellant's evidence in material respects and it is fair to conclude from his reasons for judgment that he may very well have done so. The other evidence, if accepted, established clearly enough that the appellant's undoubted association with the business was widely known in his ethnic community and perhaps beyond it; and that there was a substantial body of people in the community who, to adopt the language of counsel for the respondent, regarded the appellant as “the face of the business”. There was no reason advanced for rejecting this evidence and I perceive none. I would be prepared to say, in general terms, that if the judge did not accept it I should be surprised. Allowing, however, that the evidence demonstrated that the Yellow Pages entry was published to a body of persons not including the appellant, and that to the knowledge of a number of persons he was accepted as the face of the business, the question remains whether the evidence necessarily establishes that one or more of those to whom knowledge of the Yellow Pages entry is to be presumed to have been brought was or were among those who knew that he was intimately associated with the business. There is no evidence that any particular or identifiable person, or any of a particular or identifiable class or group of persons, had knowledge of the Yellow Pages entry: it is merely to be presumed that some person or persons had knowledge of it. Those who obtained knowledge of it might or might not have included a person or persons who knew the appellant to be associated with the business. Conversely, those who knew the appellant to be associated with the business might or might not have read, or have had read to them, the Yellow Pages entry. It is most remarkable that no person, save the appellant, was called to depose to having read the Yellow Pages entry. It is true that the appellant himself swore that others spoke to him consistently with their having read the Yellow Pages entry. Those persons might or might not, however, have derived their apprehensions from the publication itself. It seems equally possible, if not probable, that they derived them on the grape-vine or the bush telegraph — by gossip. Had any one of these persons, knowing the appellant to be intimately associated with the business, identified him from the Yellow Pages entry itself, one would naturally expect that person to have been called as a witness. In the absence of an explanation for the failure to call any of those persons the judge would have been entitled to infer that none of them had learned, or claimed to learn, from the Yellow Pages entry of disreputable activity on the part of the appellant: it is a simple application of the well-known principle of which Jones v Dunkel (1959) 101 CLR 298 and O'Donnell v Reichard [1975] VR 916 at 929, are examples. I agree, therefore, that the evidence did not require the conclusion, for which the appellant contends, that the publication complained of referred to him.”




    O'Donnell v Reichard [1975] VR 916, 929 (Newton and Norris JJ, Gillard J agreeing at 917):

    “At this point it is convenient to examine the question of how the jury could legitimately have taken into account the plaintiff's unexplained failure to call Dr. Flanagan, Dr. Cunningham and Dr. Cashmore to give evidence on herbehalf. The relevant law has been considered in recent years by appellate courts on a number of occasions: see, for example, Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; Cafe v Australian Portland Cement Pty. Ltd. (1965) 83 WN (Pt1) (NSW) 280; Nuhic v Rail and Road Excavations, [1972] 1 NSWLR 204; and Earle v Castlemaine District Community Hospital, [1974] VR 722. See also the discussion by Street, J, (as he then was) in Dilosa v Latec Finance Pty. Ltd. (1966) 84 WN (Pt 1) (NSW) 557, at pp. 581-582. It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken. When these principles are applied to the present case, it appears to us that the jury could legitimately have taken into account the plaintiff's unexplained failure to call Dr. Flanagan and Dr. Cunningham in relation to at least two relevant matters in controversy at the trial, and possibly three. The plaintiff's unexplained failure to call Dr. Cashmore could, we think, also have legitimately been taken into account by the jury in relation to the first of these matters, and also the third, if in fact the third matter, to which we shall later refer, became relevant at all.”

  • Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “[63] On 14 September 2001, Simpson J published her reasons for rejecting similar submissions touching the third plaintiff (Red 58-61). The nub appears in the following passage:

    “…

    9. … The submission, it seemed to me, was founded upon a misconception. The misconception was that, for the company to be identified as the subject (or one of the subjects) of the broadcast, or as an entity referred to in the broadcast, it was necessary for it to establish that some person (other than one of its own directors or employees) identified it by name. Given the extent to which businesses are operated by companies, that seemed to me to involve a very artificial exercise. A company conducting a business may well be defamed in the minds of recipients of a publication (and its business substantially damaged), even though those recipients are wholly unaware of its formal title. It is the substance of the identification, not the technicality, that is important. If a company is identified only as "the company that conducts business X" that is, in my opinion, sufficient. It would be quite unjust and I do not believe it is the law, that a business conducted by a company might be seriously damaged by a defamatory action, but be unable to recover damages because it could not establish that any recipient knew the name of the company.

    10. The principle is no different to that which applies to individuals. An individual may be identifiable by sight, or by address, or by occupation, or perhaps by other means. For example, a statement that "the man who lives in that house is a paedophile" is sufficient to identify the occupant of the house as the subject matter of the statement, even to those who do not know his name, but who know him by sight. A statement that "the president of the Pearl Bay Girl Guides has been stealing the club's funds" will identify that person to those who know her by sight or by position, but not by name.

    …”

    [64] The appellant submits that her Honour misconceived its argument when she said (in [9]) that the appellant had argued that it was necessary for the plaintiff to establish that "some person (other than one of its own directors and employees) identified it by name". Rather, the submission at trial had been that there had to be some evidence that the company was in fact identified by a viewer, not being a director or employee. This argument reflects the very point I was making above about identification by name being unnecessary. This said, it will be apparent from what I have written above that I agree with her Honour's reasons at [9]-[10].”

  • Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “[63] On 14 September 2001, Simpson J published her reasons for rejecting similar submissions touching the third plaintiff (Red 58-61). The nub appears in the following passage:

    “…

    9. … The submission, it seemed to me, was founded upon a misconception. The misconception was that, for the company to be identified as the subject (or one of the subjects) of the broadcast, or as an entity referred to in the broadcast, it was necessary for it to establish that some person (other than one of its own directors or employees) identified it by name. Given the extent to which businesses are operated by companies, that seemed to me to involve a very artificial exercise. A company conducting a business may well be defamed in the minds of recipients of a publication (and its business substantially damaged), even though those recipients are wholly unaware of its formal title. It is the substance of the identification, not the technicality, that is important. If a company is identified only as "the company that conducts business X" that is, in my opinion, sufficient. It would be quite unjust and I do not believe it is the law, that a business conducted by a company might be seriously damaged by a defamatory action, but be unable to recover damages because it could not establish that any recipient knew the name of the company.

    10. The principle is no different to that which applies to individuals. An individual may be identifiable by sight, or by address, or by occupation, or perhaps by other means. For example, a statement that "the man who lives in that house is a paedophile" is sufficient to identify the occupant of the house as the subject matter of the statement, even to those who do not know his name, but who know him by sight. A statement that "the president of the Pearl Bay Girl Guides has been stealing the club's funds" will identify that person to those who know her by sight or by position, but not by name.

    …”

    [64] The appellant submits that her Honour misconceived its argument when she said (in [9]) that the appellant had argued that it was necessary for the plaintiff to establish that "some person (other than one of its own directors and employees) identified it by name". Rather, the submission at trial had been that there had to be some evidence that the company was in fact identified by a viewer, not being a director or employee. This argument reflects the very point I was making above about identification by name being unnecessary. This said, it will be apparent from what I have written above that I agree with her Honour's reasons at [9]-[10].”

  • Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “[63] On 14 September 2001, Simpson J published her reasons for rejecting similar submissions touching the third plaintiff (Red 58-61). The nub appears in the following passage:

    “…

    9. … The submission, it seemed to me, was founded upon a misconception. The misconception was that, for the company to be identified as the subject (or one of the subjects) of the broadcast, or as an entity referred to in the broadcast, it was necessary for it to establish that some person (other than one of its own directors or employees) identified it by name. Given the extent to which businesses are operated by companies, that seemed to me to involve a very artificial exercise. A company conducting a business may well be defamed in the minds of recipients of a publication (and its business substantially damaged), even though those recipients are wholly unaware of its formal title. It is the substance of the identification, not the technicality, that is important. If a company is identified only as "the company that conducts business X" that is, in my opinion, sufficient. It would be quite unjust and I do not believe it is the law, that a business conducted by a company might be seriously damaged by a defamatory action, but be unable to recover damages because it could not establish that any recipient knew the name of the company.

    10. The principle is no different to that which applies to individuals. An individual may be identifiable by sight, or by address, or by occupation, or perhaps by other means. For example, a statement that "the man who lives in that house is a paedophile" is sufficient to identify the occupant of the house as the subject matter of the statement, even to those who do not know his name, but who know him by sight. A statement that "the president of the Pearl Bay Girl Guides has been stealing the club's funds" will identify that person to those who know her by sight or by position, but not by name.

    …”

    [64] The appellant submits that her Honour misconceived its argument when she said (in [9]) that the appellant had argued that it was necessary for the plaintiff to establish that "some person (other than one of its own directors and employees) identified it by name". Rather, the submission at trial had been that there had to be some evidence that the company was in fact identified by a viewer, not being a director or employee. This argument reflects the very point I was making above about identification by name being unnecessary. This said, it will be apparent from what I have written above that I agree with her Honour's reasons at [9]-[10].”

  • Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “[63] On 14 September 2001, Simpson J published her reasons for rejecting similar submissions touching the third plaintiff (Red 58-61). The nub appears in the following passage:

    “…

    9. … The submission, it seemed to me, was founded upon a misconception. The misconception was that, for the company to be identified as the subject (or one of the subjects) of the broadcast, or as an entity referred to in the broadcast, it was necessary for it to establish that some person (other than one of its own directors or employees) identified it by name. Given the extent to which businesses are operated by companies, that seemed to me to involve a very artificial exercise. A company conducting a business may well be defamed in the minds of recipients of a publication (and its business substantially damaged), even though those recipients are wholly unaware of its formal title. It is the substance of the identification, not the technicality, that is important. If a company is identified only as "the company that conducts business X" that is, in my opinion, sufficient. It would be quite unjust and I do not believe it is the law, that a business conducted by a company might be seriously damaged by a defamatory action, but be unable to recover damages because it could not establish that any recipient knew the name of the company.

    10. The principle is no different to that which applies to individuals. An individual may be identifiable by sight, or by address, or by occupation, or perhaps by other means. For example, a statement that "the man who lives in that house is a paedophile" is sufficient to identify the occupant of the house as the subject matter of the statement, even to those who do not know his name, but who know him by sight. A statement that "the president of the Pearl Bay Girl Guides has been stealing the club's funds" will identify that person to those who know her by sight or by position, but not by name.

    …”

    [64] The appellant submits that her Honour misconceived its argument when she said (in [9]) that the appellant had argued that it was necessary for the plaintiff to establish that "some person (other than one of its own directors and employees) identified it by name". Rather, the submission at trial had been that there had to be some evidence that the company was in fact identified by a viewer, not being a director or employee. This argument reflects the very point I was making above about identification by name being unnecessary. This said, it will be apparent from what I have written above that I agree with her Honour's reasons at [9]-[10].”

  • Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “[50] These principles can be illustrated and (I think) their cogency demonstrated by two further examples.

    [51] The second example involves a famous personage who is known by a stage name but who retains a family name for private purposes. If defamatory matter was published of and concerning the plaintiff by his stage name then he should be able to recover damages without calling witnesses who know his private name.”

  • Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, [49] (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “Naturally, it will be an unusual case in which evidence tending to identify the plaintiff with the defamatory publication would not also link the plaintiff's name. But, like the rose which by any other name would smell as sweet, a person's reputation adheres to more than his, her or its name. It is an attribute of (legal) personality itself. It would be anomalous that, if it were said falsely that a David Jones store was riddled with cockroaches, David Jones Pty Ltd could recover substantial damages in defamation (if it were the owner) but ACN 346 Pty Ltd could not (if it were the owner) absent evidence that a reader knew the obscure name of the corporate owner of the well known business.”

  • Hayward v Thompson [1982] QB 47, 60 (Lord Denning MR):

    “If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name.”

  • Hayward v Thompson [1982] QB 47, 60 (Lord Denning MR):

    “If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name. … He may use … words with a hidden meaning.”

  • Roach v Garvan (or Hall) (1742) 26 ER 683, 684 (Lord Hardwicke LC):

    “Now, take the whole together, though the letter is artfully penned, there can remain no doubt, in every common reader at a coffee-house, but this is a defamatory libel. For after he has laid down the plan of the paper in this manner:

    “It has been observed long ago, that the Roman Catholicks are very zealous for the propagation of their religion, and that they [470] stick at nothing, though ever so scandalous, to compass their ends: We have had lately a most shocking instance of it.”

    Then it goes on, and treats of persons, some [at] Paris, and others at London; and it is very plain, that it is relative to the executors of Major Roach, parties in this cause, notwithstanding there are only initial letters of their names, and places of abode, in the manner following :

    “He has appointed (meaning Major Roach) T------- H-------l, of G------- O-------d S-------t, and F------- G-------n, of the T-------e, his E-------rs.”

    All the libellers of the kingdom know now, that printing initial letters will not serve their turn, for that objection has been long got over.”




    Hayward v Thompson [1982] QB 47, 60 (Lord Denning MR):

    “If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name. … He may use initials…”

  • Bourke v Warren (1826) 172 ER 138, 139-40 (Abbott, C.J.):

    “This letter, no doubt, must be set out with a certain degree of correctness, but it need not be in the exact words; all that is or need be alleged, is the substance, or so much of it as is necessary, which is here proved as laid. In the libel the party libelled was designated by five asterisks. To prove that the plaintiff was the person meant, Mr. Roe, the magistrate, and Plank, an officer of the Marlborough Street police-office, proved that they understood it to mean the plaintiff ; but they both stated that they did not derive their knowledge entirely from the perusal of the libel itself, but partly from the letter of Edmonds, which had been sent to Mr. Roe, in which the words “Times reporter” were introduced instead of the five asterisks. Another witness proved, that he considered the plaintiff was the person meant, because, in the first Courier newspaper, which was mentioned in the declaration, the writer of the letter to Mr. Spilsbury was asserted to be a person who had been sued by Mr. H. …(in summing up to the Jury).—The question for your consideration is, whether you think the libel designates the plaintiff in such a way as to let those [310] who knew him understand that he was the person meant ? It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant.”




    Hayward v Thompson [1982] QB 47, 60 (Lord Denning MR):

    “If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name. He may use asterisks...”

  • Levi v Milne (1827) 130 ER 743. In this case, the defendant published a poem and replaced the words “Levy the bum” with “L__y the bum”.




    Hayward v Thompson [1982] QB 47, 60 (Lord Denning MR):

    “If the defendant intended to refer to the plaintiff, he cannot escape liability simply by not giving his name. He may use …banks.”

  • Du Bost v Beresford (1810) 170 ER 1235, 1235 (Lord Ellenborough):

    “Trespass for cutting and destroying a picture of great value, which the plaintiff had publicly exhibited ; per quod he had not only lost the picture, but the profits he would have derived from the exhibition. Plea, not guilty. It appeared that the plaintiff is an artist of considerable eminence ; but that the picture in question, intituled La Belle et la Bete, or "Beauty and the Beast," was a scandalous libel upon a gentleman of fashion and his lady, who was the sister of the defendant. It was exhibited in a house in Pall-Mall for money; and great crowds went daily to see it, till the defendant one morning cut it in pieces. Some of the witnesses estimated it at several hundred pounds. The plaintiff's counsel insisted on the one hand, that he was entitled to the full value of the picture, together with compensation for the loss of the exhibition ; while it was contended on the other, that the exhibition was a public nuisance, which everyone had a right to abate by destroying the picture.

    Lord Ellenborough.—The only plea upon the record being the general issue of not guilty, it is unnecessary to consider, whether the destruction of this picture might or might not have been justified. The material question is, as [512] to the value to be set upon the article destroyed. If it was a libel upon the persons introduced into it, the law cannot consider it valuable as a picture. Upon an application to the Lord Chancellor, he would have granted an injunction against its exhibition, and the plaintiff was both civilly and criminally liable for having exhibited it. The jury, therefore, in assessing the damages, must not consider this as a work of art, but must award the plaintiff merely the value of the canvas and paint which formed its component parts. Verdict for the plaintiff. Damages £ 5.”




    Tolley v JS Fry Co Sons Ltd [1931) AC 333, 336-7 (Viscount Hailsham):

    “…the plaintiff in this case is a well known amateur golfer. The defendants are manufacturers of chocolate in various forms. In the month of June, 1928, the defendants published in the Daily Sketch and Daily Mail, newspapers enjoying a large circulation in London and the provinces, a caricature of the plaintiff which represented him in golfing costume having just completed a drive, with a packet of the defendants' chocolate protruding from his pocket, in the company of a caddie, who is holding up packets of the defendants' chocolate...”

    350 (Lord Tomlin):

    “Here the thing complained of is a drawing in the nature of a caricature of the appellant, a well-known amateur golfer, with some added letterpress and other features establishing the identity of the person represented.”

  • Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 34-6 (Hunt J):

    “The matter complained of consisted of a segment of a public affairs programme “Willesee at Seven” telecast on 25 March 1981, by the defendant (the operator of ATN 7 Sydney) and, by arrangement with the defendant, by a number of other television stations throughout Australia. Mr Michael Willesee introduced the segment by stating that a Dominic Sergi was one of the six men who had been named by Woodward J in his Royal Commission Report as being responsible directly or indirectly for the murder of Donald Mackay (the well-known anti-drug campaigner) some four years earlier in Griffith. Mr Willesee pointed out that these men were still walking around the same town as the family of the victim. They had had no chance to clear their names. No charges had been laid and no coronial inquiry had been held. A reporter had been despatched to Griffith in an attempt to interview these men and the citizens of Griffith for their reactions to that situation. Her report was on film. She is seen in the film speaking to a number of citizens of Griffith, including relatives of some of the six men named by Woodward J. She was unsuccessful in obtaining interviews with any of the six men themselves. About half-way through the segment, the reporter is seen speaking to the plaintiff. She said to him: “We are looking for Dominic”, to which the plaintiff replied: “Yes, I Dominic.” The reporter asked: “Dominic Sergi?” to which the plaintiff replied: “Yes, what do you want?” In evidence, the plaintiff denied hearing the question in those terms (and thus that he intended to identify himself as Dominic Sergi), and for the purposes of the defendant's motion for judgment I must accept that the plaintiff did not intend to do so. It was, however, open to the jury to find that the viewer would reasonably have concluded from the plaintiff's affirmative answer that he was indeed acknowledging that he was Dominic Sergi. Again, for the purposes of the defendant's motion, I must assume (in the plaintiff's favour) that the viewer would have so concluded. The reporter then said: “You are the one that was in the Royal Commission.” The plaintiff's case was that this was an assertion by the reporter, and not a question. … the matter complained of remains capable of conveying to the viewer the assertion that the plaintiff was the Dominic Sergi mentioned in the Royal Commission Report. … Four witnesses gave evidence of having identified the plaintiff (whom they knew as Dominic Barbaro) as the man shown on the programme accepting the suggestion that he was the Dominic Sergi named in the Royal Commission Report. They consisted of the plaintiff's sister (Mrs Mary Sergi), a member of the Griffith Shire Council (Mr A Cantanzeriti), and two acquaintances of the plaintiff who lived in Sydney (Mr P Cantanzeriti and Mr G Talino). From the evidence which these witnesses and the plaintiff gave (which is detailed in that extempore judgment), it was open to the jury to infer that the plaintiff would also have been identified as that man by a number of persons within the Italian community in Sydney to whom he was known and who viewed the programme (which had been advertised in a Sydney afternoon newspaper as including a story on Griffith relating to Donald Mackay), and by friends and relatives of the plaintiff in Melbourne, Adelaide and Mildura who would also have viewed the programme in those cities. For the purposes of the defendant's motion, I must accept (in favour of the plaintiff) that he was in fact so identified.”




    Dwek v Macmillan Publishers Ltd [2000] EMLR 284, 290-1 (May L.J., Sedley L.J. agreeing at 294, Judge L.J. agreeing at 295):

    “The second of the cases from Australia is Barbaro v. Amalgamated Television Services (1985) 1 N.S.W.L.R. 30. The facts are summarised in the headnote as follows:

    “A public affairs programme telecast by the defendant (but not produced by it) included film in which the plaintiff was shown. He was not referred to by his own name. By the plaintiff's answer to a question asked of him during the programme, the viewer would have understood that the plaintiff (whose name was Dominic Barbaro) was acknowledging that he was Dominic Sergei. It was asserted in the programme that Dominic Sergei was one of six men who had been named in a Royal Commission Report as being responsible for the murder of Donald Mackay (the well-known anti-drug campaigner). The plaintiff sued the defendant, alleging that the programme contained certain imputations based upon the conclusion that the programme was asserting that he was Dominic Sergei. Many of the viewers who would have identified the plaintiff would have known that he was not that person, and so could not reasonably have believed that those imputations were true.”

    The first summary of what Hunt J. held in that case in the headnote is as follows: “The publication of the plaintiff's picture on television is not the same as the publication of his name in a newspaper. If the plaintiff is not named in the matter complained of, he is obliged to establish that persons saw the television programme who were able to identify him as the person shown in that programme.” It seems to me that there is a correct statement of what should be the law in this jurisdiction. It also seems to me that a claimant in appropriate circumstances would be entitled to establish what Hunt J. says is required to be established by a proper inference.”




    Nixon v Slater & Gordon [2000] FCA 531 (Merkel J):

    “[64] In Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Hutley JA (at 234) and Glass JA (at 248) acknowledged that it was well established that, where a plaintiff was not named in the publication in question, evidence could be given by the plaintiff, and others, that they identified the publication as referring to the plaintiffs and that other persons in spontaneous conversations with them had also identified the plaintiff as the person to whom the publication referred. See also Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 at 369 and World Hosts Pty Ltd v Mirror Newspapers Ltd (1978) 1 NSWLR 189 at 207.

    [65] In addition to the evidence of Mr Nixon and Dr Ellis as to the medical colleagues who identified them in the photograph, a number of affidavits were sworn by other medical practitioners to the effect that they instantly recognised the applicants in the photograph on the cover of the medical malpractice booklet. While a number of the practitioners had seen both applicants in full surgical dress, that was not the case with all witnesses. The general tenor of the evidence given by witnesses was that they thought that there must have been some association between the applicants and Slater & Gordon, most probably arising because there was some legal problem or something wrong with the minimally invasive surgery that the two surgeons had been conducting.

    [66] Evidence was also given by a witness as to "the rumour mill which is very strong in the medical profession" (T40). Another witness said that the persons performing cardiac surgery in Melbourne were reasonably well known to medical practitioners and, amongst those surgeons, Mr Nixon had a unique posture and physique (T48).

    [67] Mr Anthony Wilson, a cardiothoracic surgeon, is the director of the cardiothoracic unit at St Vincent's Hospital. He said that the brochure had been shown to him by one of the doctors present at St Vincent's Private Hospital. He indicated that it had aroused a lot of interest at the hospital. Mr Wilson's immediate concern was that the new operation being conducted by Mr Nixon had caused some kind of legal problem. Any such problem was a matter of particular concern to him because of his directorship of the cardiothoracic unit of both the St Vincent's Public Hospital and at the St Vincent's Private Hospital, where the original operation had been performed. Mr Wilson said that about five or six people had spoken to him about the cover of the booklet on the basis that there was a general feeling expressed that the two doctors had done "something wrong" (T55). He said concern was expressed not only by people who knew the applicants but by others who had recognised them from the photographs featured in the two newspapers.

    [68] An anaesthetist, who formed part of Mr Nixon's team, also expressed concern at the harm which he thought had resulted from the use of Mr Nixon's photograph on the cover of the booklet and said that, as a consequence, he took steps to ensure that his practice was not as reliant upon Mr Nixon (T41).

    [69] It is plain from the evidence that a significant number of medical practitioners have identified the applicants as the surgeons appearing on the cover of the medical malpractice booklet. Furthermore, the evidence also establishes that their appearance on the cover was also the subject of comment in the "rumour mill" among medical practitioners who knew them or knew of them: cf Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798 at 800 per Tadgell JA. While it is no answer to the defamation claim for Slater & Gordon to contend that the applicants were only recognised by close colleagues and friends, the evidence suggests that a wider range of persons have identified the applicants as the surgeons in the photograph. Accordingly, I am satisfied that the defamatory imputation clearly related to the applicants.”




    Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 234 (Hutley JA):

    “The plaintiffs called a number of persons to establish that, though not named in the article, the plaintiffs were identified with it by readers; and four of them, Messrs William Arthur, Norman Kingswell Day, John Davidson and Professor Johnson, gave evidence not only that they personally identified the plaintiffs as the persons reflected on in the article, but that other persons had spontaneously identified them in the course of conversation. It was submitted that, in so far as they were allowed to give evidence about their conversation with others, the evidence was inadmissible as hearsay. John Andrews himself also gave evidence of conversation with persons at Palm Beach and Eugowra relating to himself and his professional pursuits. This evidence was admitted on the authority of the decisions of this Court in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 369 and World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 at 207, and the Court declined to permit the authority of these decisions to be challenged before it. It was further submitted that though, on the authority of these decisions, this evidence was admissible to prove the range of publication, it was not admissible on the question of damages. His Honour had drawn no such distinction in his directions to the jury, and it was said he was in error in not having done so. I am of the opinion there is no substance in the distinction proposed to be drawn. If the evidence is properly admissible on the question of range of identification of the plaintiffs as the persons defamed, it is impossible to segregate the question of what is the appropriate measure of damages, so that the range of defamation is determined differently from the way in which compensation for the damage done by this defamation is fixed. Once the evidence was admitted, it was admitted for all purposes: Walker v Walker (1937) 57 CLR 630. In my opinion, there is no substance in the distinction, and this ground of appeal should be rejected.”




    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 369-70 (Hutley J.A.):

    “A number of grounds of appeal were argued, based on the admission of evidence as to the talk concerning Mrs. Steele in the town of Parkes. His Honour admitted evidence, presumably on the basis that the dictum of Wallace P. in Ware v. Associated Newspapers Ltd. (1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181 was to be preferred to the contrary dictum of Walsh J.A. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181). … Wallace P. referred to a number of cases of which Jozwiak v. Sadek [1954] 1 W.L.R. 275; [1954] 1 All E.R. 3 is the clearest in support for this exception. … It would appear, therefore, that the balance of authority and of learned writing would support the view expressed by Wallace P. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181) and that this evidence should be admitted, probably as a recognized exception to the hearsay rule. … I am therefore of the opinion that the dictum of Wallace P. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181) is to be preferred to the dictum of Walsh J.A. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 185). If the long-standing exception to the hearsay rule is to be done away with, this can only be done in a final court of appeal.”




    World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189, 207 (Hutley J.A., Glass J.A. agreeing at 212):

    “Over objection by the defendant, witnesses for the plaintiff gave evidence of statements made to them by persons who were not called to give evidence about what such persons believed had happened to the restaurant in consequence of the publication of the article. For example, Miss Henderson, who was at the time of publication a receptionist-cashier at the Sebel Town House, said that, while she was there, “people who knew I had worked at Caprice said: ‘I see your old restaurant has gone broke.’” Somewhat similar evidence was given, over objection, by other witnesses. The reception of this kind of evidence is, in my opinion, justified on the authority of the majority of the Court in Steele v. Mirror Newspapers Ltd. [1974] 2 N.S.W.L.R. 348 at 369 which, in my opinion, should not be reviewed in this Court. His Honour was justified in allowing this evidence and its reception does not justify an order for a new trial.”




    Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798, 799-801 (Tadgell J.A.):

    “In order to succeed the appellant needed to satisfy the tribunal of fact that the Yellow Pages entry, being defamatory: ... (b) that such a person reasonably understood the entry to refer to the appellant. ... In order to satisfy the requirement set out in para. (b) above the appellant relied on evidence of himself and others that he was very well-known in the ethnic community in which he moved and that he was also very well-known to be the guiding spirit behind the business conducted by the appellant company. Again, however, the judge was entitled to disregard the appellant's evidence in material respects and it is fair to conclude from his reasons for judgment that he may very well have done so. The other evidence, if accepted, established clearly enough that the appellant's undoubted association with the business was widely known in his ethnic community and perhaps beyond it; and that there was a substantial body of people in the community who, to adopt the language of counsel for the respondent, regarded the appellant as “the face of the business”. There was no reason advanced for rejecting this evidence and I perceive none. I would be prepared to say, in general terms, that if the judge did not accept it I should be surprised. Allowing, however, that the evidence demonstrated that the Yellow Pages entry was published to a body of persons not including the appellant, and that to the knowledge of a number of persons he was accepted as the face of the business, the question remains whether the evidence necessarily establishes that one or more of those to whom knowledge of the Yellow Pages entry is to be presumed to have been brought was or were among those who knew that he was intimately associated with the business. There is no evidence that any particular or identifiable person, or any of a particular or identifiable class or group of persons, had knowledge of the Yellow Pages entry: it is merely to be presumed that some person or persons had knowledge of it. Those who obtained knowledge of it might or might not have included a person or persons who knew the appellant to be associated with the business. Conversely, those who knew the appellant to be associated with the business might or might not have read, or have had read to them, the Yellow Pages entry. It is most remarkable that no person, save the appellant, was called to depose to having read the Yellow Pages entry. It is true that the appellant himself swore that others spoke to him consistently with their having read the Yellow Pages entry. Those persons might or might not, however, have derived their apprehensions from the publication itself. It seems equally possible, if not probable, that they derived them on the grape-vine or the bush telegraph — by gossip. Had any one of these persons, knowing the appellant to be intimately associated with the business, identified him from the Yellow Pages entry itself, one would naturally expect that person to have been called as a witness. In the absence of an explanation for the failure to call any of those persons the judge would have been entitled to infer that none of them had learned, or claimed to learn, from the Yellow Pages entry of disreputable activity on the part of the appellant: it is a simple application of the well-known principle of which Jones v Dunkel (1959) 101 CLR 298 and O'Donnell v Reichard [1975] VR 916 at 929, are examples. I agree, therefore, that the evidence did not require the conclusion, for which the appellant contends, that the publication complained of referred to him.”




    Dojas v TCN Channel Nine Pty Ltd [2001] NSWCA 398, [36] (Hodgson JA, Haydon JA agreeing at [6]):

    “When there is a question of recognition of a plaintiff from a visual image rather than from words, it is not possible adequately to put into words what are the matters known by people acquainted with the plaintiff that enable them to identify the plaintiff from an image. Furthermore, mere acquaintance with a plaintiff is not really an adequate description of the qualification of the persons who must reasonably be able to identify the plaintiff. There are degrees of acquaintance, and plainly people who know a plaintiff very well indeed may reasonably identify that plaintiff from an image which would be inadequate for such identification by other persons who are merely acquainted with the plaintiff. Persons who know a plaintiff very well indeed may be the very persons in relation to whom the plaintiff’s reputation is most precious to the plaintiff; and in my opinion, the law of defamation does protect a plaintiff’s reputation with such people. Accordingly, in my opinion where a visual image of a plaintiff is such that it can reasonably be identified as being of the plaintiff by even a very few people who know the plaintiff extremely well, albeit not by others who are mere acquaintances, and there has been publication to at least one such person, that is sufficient identification.”




    Marley's Transport Pty Ltd v West Australian Newspapers Ltd [2001] WASC 31 (Hasluck J):

    “[21] Counsel for the defendant submitted that the article complained of, when read together with the photograph, was incapable of conveying any defamatory imputation of and concerning the plaintiffs. Counsel contended that leave to amend the claim in the manner proposed should be refused because the proposed statement of claim failed to disclose a reasonable cause of action. The case being advanced by the plaintiffs was untenable or manifestly groundless. This attack upon the statement of claim as a whole embraced two principal points, being, first, a submission that the plaintiffs were not identified as the subject of the article and, second, that the article would not be regarded by a reasonable reader as an attack upon any particular trucking company.

    [22] As to the first of these matters for the defendants pointed out that the plaintiffs are not named in the article. The photograph accompanying the article the subject of the action is a montage of the truck and a number of pharmaceutical products and packets.

    [23] The plaintiffs pleaded that the article and photograph were reasonably understood to refer to the plaintiff by reason of the fact that the truck was painted in red and white livery, had the letters MD on its numberplate and had the name “Marley's” on its sun visor The first plaintiff's allegation is that people with special knowledge identified the first plaintiff after looking at the photograph and that the article and photograph, read together, defamed the plaintiff to those with special knowledge of the plaintiff's circumstances upon the basis set out in the pleadings. As to the second plaintiff argued that there were people possessing special knowledge, namely, that the second plaintiff managed the first plaintiff and had been a prominent campaigner for drug-free operation in the road transport industry.

    [24] I consider that the various facts and matters relied upon by the plaintiff and especially the presence of the word “Marley's” on the sun visor establish a sufficient connection between the words complained of and the plea in the statement of claim as to identification. I have already noted from my review of the decided cases that the intention of the author of the words complained of is not material and that, as in Henry v TVW Enterprises Ltd (1990) 3 WAR 474 a plaintiff can be identified inadvertently as the object of a particular piece of criticism or discussion. Accordingly, I am not satisfied that the statement of claim should be struck out on this ground.”




    Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, [31]-[32] (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “The telecast does not refer to the plaintiffs by name or title. In these circumstances, the appellant submits, there must be evidence which could show of each plaintiff that he or it could be identified by viewers with knowledge of extrinsic facts at the time of publication. … In my view, these propositions are correct…”

  • Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 35-6 (Hunt J):

    “As the plaintiff was not identified in the matter complained of by his own name (Dominic Barbaro), he was obliged to establish that persons saw the television programme who were able to identify him as the person shown, and thus the person said to be the Dominic Sergi named in the Royal Commission Report as one of the six men responsible, directly or indirectly, for the murder of Donald Mackay. In the extempore judgment which I gave during the course of the argument, I rejected the plaintiff's submission that the publication of his picture on television without being named is the same as the publication of his name in a newspaper, as being inconsistent with the decision of the Full Court in Cross v Denley (1952) 52 SR (NSW) 112 at 116; 69 WN 137 at 139, that the publication of no more than a plaintiff's business name requires such evidence of identification, in accordance with Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89, 90, 91; 66 WN 7 at 8.




    Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, [31]-[32] (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):

    “The telecast does not refer to the plaintiffs by name or title. In these circumstances, the appellant submits, there must be evidence which could show of each plaintiff that he or it could be identified by viewers with knowledge of extrinsic facts at the time of publication. … In my view, these propositions are correct…”




    Cross v Denley (1952) 52 SR (NSW) 112, 116 (Owen J., Street C.J. agreeing at 112):

    “Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred – as for example where without mentioning names the statement is defamatory of a person who is described as the holder of a particular office and it is a matter of general notoriety who the holder of that office is evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary. But where, as here, the plaintiff could only be identified by that small percentage of the community which happened to know that he was a printer using the imprint “X-press Printery”, it must be shown that some one or more of those to whom the pamphlet was published had that special knowledge.”




    Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 89-92 (Jordan C.J., Street J. agreeing at 94):

    “The question in the present case is whether it is essential to prove anything more, and, in particular, to prove that the third party knew, or knew of the existence of, the person defamed and who he is, and thought that it referred to him. One would have thought that so elementary a question would have been resolved by a superfluity of authority, yet the exact point does not seem to have ever arisen for decision, no doubt because it is the practice, invariably in defamation actions until those now before us, to give evidence for the plaintiff which prevents the point from arising.

    From a collation of such of the authorities as appear to be relevant, I have come to the conclusion that the law on the point of law as follows. If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed, or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circum-stances. I think that this appears from what has been said in the authorities which deal with the question whether a publication has exceeded the scope of a privileged occasion. If a communication is sent to a person within the scope of the occasion, but the means used are a postcard or a telegram, it has been held that if the name of the person defamed appears in the postcard or telegram this is ample evidence of publication (to postal officers) ; but if the name does not appear, and knowledge of special circumstances would be necessary to know who was meant, there is no publication to them, and no relevant publication at all, unless it is proved that they had the special knowledge; Sadgrove v. Hole [1901] 2 K.B. 1; Huth v. Huth [1915] 3 K.B. 32 at 39-40, 41-42.; Sim v. Stretch. (1936) 52 T.L.R. 669 at 671; [1936] 2 All E.R. 1237. In Hough v. London Express Newspaper Ltd. [1940] 2 K.B. 507 at 513., a case in which the matter complained of was not ex facie defamatory of the plaintiff, Slesser L.J., with whom Clauson L.J. agreed, said;-

    "The burden on the plaintiff is to give evidence of special circum-stances which would lead reasonable persons to infer that the words were understood in a defamatory meaning provided such circumstances were known to those persons to whom the words were published."

    Goddard L.J. in this case said ([1940] 2 K.B. at 515);-

    "Where words are not defamatory in their ordinary meaning, but by reason of special facts are capable of being understood in a secondary and defamatory sense by persons to whom the special facts are known, is it necessary to prove more than that there are people who know the special facts and so might understand the words in a defamatory sense or must there be evidence that some person did so understand them? In my opinion it is unnecessary, though I do not say inadmissible, to call persons to say that they did so understand the words, provided it is proved that they are people who might so understand them. Such witnesses were called in Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331. In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published: he cannot call witnesses to prove what they understood by the words; nor will it avail the defendant to call any number of witnesses to say that they did not believe the imputation. The only question is, might reasonable people understand them in a defamatory sense 1 So when circumstances are proved which will clothe words otherwise innocent with a defamatory meaning the question must equally be: might reasonable people who know the special circumstances understand them in a defamatory sense?"

    This is not inconsistent with what was said by the majority of the Court or in the other cases which I have cited. All that his Lordship says here is that it is necessary only to prove that there are people who know the special facts, it is unnecessary to prove that their knowledge led them to interpret in a defamatory sense the matter complained of. He does not say that it is unnecessary to prove publication to some at least of those people.

    In Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331 at 353, Russell L.J. said:-

    "If the defamatory meaning only arises from a knowledge of outside facts, and the persons to whom the statement is published are ignorant of those facts, those persons could not reasonably attach a defamatory meaning to the statement."

    In Williamson v. Freer (1874) L.R. 9 C.P. 393, where the person defamed by telegram was not named but was referred to only as "your child", the specific point was not taken.

    In David Syme & Co. v. Canavan (1918) 25 C.L.R. 234 at 238; 7 Austn Digest 345, Isaacs J. said:-

    "The plaintiff was not specifically named. The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to 1 That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him."

    His Honour also said ((1918) 25 C.L.R. at 239; 7 Austn Digest 345):-

    "The words complained of appeared in the Age newspaper of 12th December, 1917. Now, it is very material to remember that it was only readers of that newspaper that could be affected by the state-ment."

    The rules appear to be based on a view that if matter, which on the face of it is capable of being regarded as defaming a particular person who is mentioned by name, is proved to have been published to anyone whomso-ever, the tort of libel is committed and the complainant is entitled to a verdict; but if the matter, on the face of it, is not capable of being regarded as defamatory, or if defamatory as defaming a particular person, it cannot be regarded as having been published unless it is proved to have been published to someone possessing knowledge which would suffice to enable him to realise that the matter was defamatory, or defamatory of the plain-tiff, as the case may be. This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as "the Prime Minister of Australia" , it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated: Jones v. E. Hulton & Co. [1909] 2 K.B. 44.4 at 454, 477. But the less revealing the description the greater the danger of omitting proof of identification. It is hardly necessary to add that it would be, to say the least, imprudent for a plaintiff who expected to obtain substantial damages to abstain from proving the scope of the publication and its effect, in accordance with the usual practice in actions of defamation: cf. Sunkissed Bananas (Tweed) Ltd. v. Banana Growers' Federation Co-operative Ltd. (1935) 35 S.R. 526 at 537·9; Austn Digest (1934.1939) 732.

    It remains to apply the principles which I have stated to the facts of the present case.”

  • Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 35-6 (Hunt J):

    “As the plaintiff was not identified in the matter complained of by his own name (Dominic Barbaro), he was obliged to establish that persons saw the television programme who were able to identify him as the person shown, and thus the person said to be the Dominic Sergi named in the Royal Commission Report as one of the six men responsible, directly or indirectly, for the murder of Donald Mackay. In the extempore judgment which I gave during the course of the argument, I rejected the plaintiff's submission that the publication of his picture on television without being named is the same as the publication of his name in a newspaper, as being inconsistent with the decision of the Full Court in Cross v Denley (1952) 52 SR (NSW) 112 at 116; 69 WN 137 at 139, that the publication of no more than a plaintiff's business name requires such evidence of identification, in accordance with Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89, 90, 91; 66 WN 7 at 8.




    Dwek v Macmillan Publishers Ltd [2000] EMLR 284, 290-1 (May L.J., Sedley L.J. agreeing at 294, Judge L.J. agreeing at 295):

    “The second of the cases from Australia is Barbaro v. Amalgamated Television Services (1985) 1 N.S.W.L.R. 30. The first summary of what Hunt J. held in that case in the headnote is as follows: …

    “The publication of the plaintiff's picture on television is not the same as the publication of his name in a newspaper. If the plaintiff is not named in the matter complained of, he is obliged to establish that persons saw the television programme who were able to identify him as the person shown in that programme.”

    It seems to me that there is a correct statement of what should be the law in this jurisdiction.”




    Cross v Denley (1952) 52 SR (NSW) 112, 116 (Owen J., Street C.J. agreeing at 112):

    “Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred – as for example where without mentioning names the statement is defamatory of a person who is described as the holder of a particular office and it is a matter of general notoriety who the holder of that office is evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary. But where, as here, the plaintiff could only be identified by that small percentage of the community which happened to know that he was a printer using the imprint “X-press Printery", it must be shown that some one or more of those to whom the pamphlet was published had that special knowledge.”




    Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 89-92 (Jordan C.J., Street J. agreeing at 94):

    “The question in the present case is whether it is essential to prove anything more, and, in particular, to prove that the third party knew, or knew of the existence of, the person defamed and who he is, and thought that it referred to him. One would have thought that so elementary a question would have been resolved by a superfluity of authority, yet the exact point does not seem to have ever arisen for decision, no doubt because it is the practice, invariably in defamation actions until those now before us, to give evidence for the plaintiff which prevents the point from arising.

    From a collation of such of the authorities as appear to be relevant, I have come to the conclusion that the law on the point of law as follows. If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed, or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circum-stances. I think that this appears from what has been said in the authorities which deal with the question whether a publication has exceeded the scope of a privileged occasion. If a communication is sent to a person within the scope of the occasion, but the means used are a postcard or a telegram, it has been held that if the name of the person defamed appears in the postcard or telegram this is ample evidence of publication (to postal officers) ; but if the name does not appear, and knowledge of special circumstances would be necessary to know who was meant, there is no publication to them, and no relevant publication at all, unless it is proved that they had the special knowledge; Sadgrove v. Hole [1901] 2 K.B. 1; Huth v. Huth [1915] 3 K.B. 32 at 39-40, 41-42.; Sim v. Stretch. (1936) 52 T.L.R. 669 at 671; [1936] 2 All E.R. 1237. In Hough v. London Express Newspaper Ltd. [1940] 2 K.B. 507 at 513., a case in which the matter complained of was not ex facie defamatory of the plaintiff, Slesser L.J., with whom Clauson L.J. agreed, said;-

    "The burden on the plaintiff is to give evidence of special circum-stances which would lead reasonable persons to infer that the words were understood in a defamatory meaning provided such circumstances were known to those persons to whom the words were published."

    Goddard L.J. in this case said ([1940] 2 K.B. at 515);-

    "Where words are not defamatory in their ordinary meaning, but by reason of special facts are capable of being understood in a secondary and defamatory sense by persons to whom the special facts are known, is it necessary to prove more than that there are people who know the special facts and so might understand the words in a defamatory sense or must there be evidence that some person did so understand them? In my opinion it is unnecessary, though I do not say inadmissible, to call persons to say that they did so understand the words, provided it is proved that they are people who might so understand them. Such witnesses were called in Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331. In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published: he cannot call witnesses to prove what they understood by the words; nor will it avail the defendant to call any number of witnesses to say that they did not believe the imputation. The only question is, might reasonable people understand them in a defamatory sense 1 So when circumstances are proved which will clothe words otherwise innocent with a defamatory meaning the question must equally be: might reasonable people who know the special circumstances understand them in a defamatory sense?"

    This is not inconsistent with what was said by the majority of the Court or in the other cases which I have cited. All that his Lordship says here is that it is necessary only to prove that there are people who know the special facts, it is unnecessary to prove that their knowledge led them to interpret in a defamatory sense the matter complained of. He does not say that it is unnecessary to prove publication to some at least of those people.

    In Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331 at 353, Russell L.J. said:-

    "If the defamatory meaning only arises from a knowledge of outside facts, and the persons to whom the statement is published are ignorant of those facts, those persons could not reasonably attach a defamatory meaning to the statement."

    In Williamson v. Freer (1874) L.R. 9 C.P. 393, where the person defamed by telegram was not named but was referred to only as "your child", the specific point was not taken.

    In David Syme & Co. v. Canavan (1918) 25 C.L.R. 234 at 238; 7 Austn Digest 345, Isaacs J. said:-

    "The plaintiff was not specifically named. The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to 1 That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him."

    His Honour also said ((1918) 25 C.L.R. at 239; 7 Austn Digest 345):-

    "The words complained of appeared in the Age newspaper of 12th December, 1917. Now, it is very material to remember that it was only readers of that newspaper that could be affected by the state-ment."

    The rules appear to be based on a view that if matter, which on the face of it is capable of being regarded as defaming a particular person who is mentioned by name, is proved to have been published to anyone whomso-ever, the tort of libel is committed and the complainant is entitled to a verdict; but if the matter, on the face of it, is not capable of being regarded as defamatory, or if defamatory as defaming a particular person, it cannot be regarded as having been published unless it is proved to have been published to someone possessing knowledge which would suffice to enable him to realise that the matter was defamatory, or defamatory of the plain-tiff, as the case may be. This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as "the Prime Minister of Australia" , it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated: Jones v. E. Hulton & Co. [1909] 2 K.B. 44.4 at 454, 477. But the less revealing the description the greater the danger of omitting proof of identification. It is hardly necessary to add that it would be, to say the least, imprudent for a plaintiff who expected to obtain substantial damages to abstain from proving the scope of the publication and its effect, in accordance with the usual practice in actions of defamation: cf. Sunkissed Bananas (Tweed) Ltd. v. Banana Growers' Federation Co-operative Ltd. (1935) 35 S.R. 526 at 537·9; Austn Digest (1934.1939) 732.

    It remains to apply the principles which I have stated to the facts of the present case.”

  • Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, (Hunt J.):

    Summary contained in the headnote:

    “The publication of the plaintiff's picture on television is not the same as the publication of his name in a newspaper. If the plaintiff is not named in the matter complained of, he is obliged to establish that persons saw the television programme who were able to identify him as the person shown in that programme.”




    Dwek v Macmillan Publishers Ltd [2000] EMLR 284, 290-1 (May L.J., Sedley L.J. agreeing at 294, Judge L.J. agreeing at 295):

    “The second of the cases from Australia is Barbaro v. Amalgamated Television Services (1985) 1 N.S.W.L.R. 30. The facts are summarised in the headnote as follows:

    “A public affairs programme telecast by the defendant (but not produced by it) included film in which the plaintiff was shown. He was not referred to by his own name. By the plaintiff's answer to a question asked of him during the programme, the viewer would have understood that the plaintiff (whose name was Dominic Barbaro) was acknowledging that he was Dominic Sergei. It was asserted in the programme that Dominic Sergei was one of six men who had been named in a Royal Commission Report as being responsible for the murder of Donald Mackay (the well-known anti-drug campaigner). The plaintiff sued the defendant, alleging that the programme contained certain imputations based upon the conclusion that the programme was asserting that he was Dominic Sergei. Many of the viewers who would have identified the plaintiff would have known that he was not that person, and so could not reasonably have believed that those imputations were true.”

    The first summary of what Hunt J. held in that case in the headnote is as follows:

    “The publication of the plaintiff's picture on television is not the same as the publication of his name in a newspaper. If the plaintiff is not named in the matter complained of, he is obliged to establish that persons saw the television programme who were able to identify him as the person shown in that programme.”

    It seems to me that there is a correct statement of what should be the law in this jurisdiction. It also seems to me that a claimant in appropriate circumstances would be entitled to establish what Hunt J. says is required to be established by a proper inference.”

  • Dwek v Macmillan Publishers Ltd [2000] EMLR 284, 290-1 (May L.J., Sedley L.J. agreeing at 294, Judge L.J. agreeing at 295):

    “The second of the cases from Australia is Barbaro v. Amalgamated Television Services (1985) 1 N.S.W.L.R. 30. The facts are summarised in the headnote as follows:

    “A public affairs programme telecast by the defendant (but not produced by it) included film in which the plaintiff was shown. He was not referred to by his own name. By the plaintiff's answer to a question asked of him during the programme, the viewer would have understood that the plaintiff (whose name was Dominic Barbaro) was acknowledging that he was Dominic Sergei. It was asserted in the programme that Dominic Sergei was one of six men who had been named in a Royal Commission Report as being responsible for the murder of Donald Mackay (the well-known anti-drug campaigner). The plaintiff sued the defendant, alleging that the programme contained certain imputations based upon the conclusion that the programme was asserting that he was Dominic Sergei. Many of the viewers who would have identified the plaintiff would have known that he was not that person, and so could not reasonably have believed that those imputations were true.”

    The first summary of what Hunt J. held in that case in the headnote is as follows:

    “The publication of the plaintiff's picture on television is not the same as the publication of his name in a newspaper. If the plaintiff is not named in the matter complained of, he is obliged to establish that persons saw the television programme who were able to identify him as the person shown in that programme.”

    It seems to me that there is a correct statement of what should be the law in this jurisdiction. It also seems to me that a claimant in appropriate circumstances would be entitled to establish what Hunt J. says is required to be established by a proper inference.”

  • Dwek v Macmillan Publishers Ltd [2000] EMLR 284, 293-4 (May LJ, Sedley L.J. agreeing at 294, Judge L.J. agreeing at 295):

    “It is in my view a matter of degree. Some people are very well known and it would be obvious that a photograph would be recognised as being of them. In other circumstances it might be that, absent particular evidence, it would not be possible to infer that any single person had understood the publication as referring to the claimant. There will be cases in between these two extremes. I think that this is one of them. It will be for the jury to decide whether the inference is to be drawn in all the circumstances.”

  • Dwek v Macmillan Publishers Ltd [2000] EMLR 284, 293-4 (May LJ, Sedley L.J. agreeing at 294, Judge L.J. agreeing at 295):

    “It is in my view a matter of degree. Some people are very well known and it would be obvious that a photograph would be recognised as being of them. In other circumstances it might be that, absent particular evidence, it would not be possible to infer that any single person had understood the publication as referring to the claimant. There will be cases in between these two extremes. I think that this is one of them. It will be for the jury to decide whether the inference is to be drawn in all the circumstances.”

  • Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1254, 1264.




    Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [157].

  • Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1269-70.

  • Amalgamated Television Services v Marsden (1998) 43 NSWLR 158, 12.

  • Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245 (Lord Reid).

  • Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 364 (Hutley J.A.):

    “The standards of reasonableness required of an identifying reader are not high.”

  • Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245 (Lord Reid).

  • Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1244 (Lord Reid).

  • Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245 (Lord Reid).

  • Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 364 (Hutley J.A.).

  • Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 92-3:

    “Naturally it must be a question of degree as to what evidence is required to be brought before the jury to satisfy these requirements. No doubt if the publication were in a public newspaper and contained descriptive references reasonably capable of identifying some prominent personage it might be assumed that a substantial number of people would read or see and understand the matter complained of and to whom it referred. Perhaps no further evidence might be necessary. But unless the description in the surrounding circumstances should approximate to a similar notoriety the position must differ in descending proportion to the extent of the clarity of the description and of the probable number and knowledge of the readers. In order that a publication may injure the reputation of one who is attacked, there must be a reasonable probability of readers understanding the subject matter and to whom it relates. For example, if the description and subject matter were in a foreign language evidence would certainly be required that the document reached a person or persons capable of understanding it : cf. Amann v. Damm. The removal of doubt on such subjects cannot be left. to mere speculation.”

  • Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 2 NSWLR 733, 736 (Hunt J.):

    “In Bruce v. Odhams Press Ltd. [1936] 1 K.B. 697, it was held by the English Court of Appeal that the extrinsic facts relied upon to identify the plaintiff in the matter complained of should be pleaded as material facts in the statement of claim. Reliance was placed by their Lordships upon the pre-Judicature Act decision of the Court of King's Bench in Clement v. Fisher (1827) 7 B. & C. 459; 108 E.R. 794. Bruce v. Odhams Press Ltd [1936] 1 K.B. 697, was followed in New South Wales by Taylor J., in Uren v. Australian Consolidated Press Ltd. (1963) 80 W.N. (N.S.W.) 326. It was, however, subsequently subjected to a searching analysis by Wallace J., in Hatfield v. Associated Newspapers Ltd. (1963) 80 W.N. (N.S.W.) 1504, at pp. 1505, 1506. His Honour expressed the firm view ((1963) 80 W.N. (N.S.W.) 1504, at p. 1506), that Clement v. Fisher (1827) 7 B. & C. 459; 108 E.R. 794, had been misconstrued in Bruce v. Odhams Press Ltd. [1936] 1 K.B. 697, and that it was in fact authority for the proposition that a declaration (which also, of course, had to plead every material fact upon which the cause of action was based) was sufficient, if it alleged that the matter complained of was published “of and concerning the plaintiff”. See Bullen & Leake's Precedents of Pleadings, 3rd ed. (1868), at p. 304. The dispute between these two schools of thought was resolved, so far as Australia is concerned, by the decision of the High Court in Turner v. Bulletin Newspaper Co. Pty. Ltd. (1974) 131 C.L.R. 69, at p. 80, in which it was held that the extrinsic facts relied upon to identify the plaintiff should be given as particulars in the statement of claim, and not pleaded as material facts. It appears that Begg J. ([1979] 1 N.S.W.L.R. 16), was not referred to this decision.”

5.1.3. Publication

 

The plaintiff must establish that the defendant did actually published the matter. In the legal sense, ‘publication’ is the act of communicating defamatory matter – in any form – from one person to another. A publisher is any person or entity that participates in the dissemination of defamatory matter. On the surface, this may suggest that bookstores or news agencies are publishers, however, these people are protected under the defence of innocent dissemination.

 

The minimum number of people that the publication must reach, is one person other than the plaintiff. It is not required that the publication is spread to masses of people.

 

Not only can a defendant be held liable for publishing defamatory material, a defendant can also be held liable for not stopping the continuation of defamation or not removing the defamatory material. For example, in one case, some people stuck posters to a bus shelter which imputed that the political candidate was a Nazi. The bus shelter did not remove the posters in a reasonable time frame and was held to be liable as a publisher.

 

A defendant who repeats the defamatory matter, which originated from another source, can also be liable as a publisher. However, the defendant is likely to be exempt if they were repeating the defamatory material for the purpose of publishing a denial or a contradiction.

5.2. Defences to Defamation

5.2.1. The Defence of Justification (Truth)

The defence for justification protects the defendant in circumstances where the defendant can prove that defamatory imputation is factually true. It does not matter whether the defendant believed the allegation to be true, nor had good intentions, the defamatory imputation must be objectively true. The degree that the allegation needs to be factual does not require perfection. Trivial and irrelevant details that are not factually correct may not ruin the defence of justification.

5.2.2. The Defence of Contextual Truth

The Defence of Contextual truth is where the defendant pleads imputations of their own (called contextual imputations) in addition to the plaintiff’s pleaded imputations. The contextual imputations must be proven true and also outweigh any untrue defamatory imputations. This is best explained through an example.

Imagine that Lauren wrote in a defamatory article about James which imputed that James (a) was drink driving, (b) was taking illegal drugs, and (c) was imprisoned for murder. Now, James sued Lauren and pleaded the first two imputations, (a) drink driving and (a) drugs, but deliberately did not plead the third imputation, (c) murder. This is because the (a) drink driving and (b) drug allegations were factually false but the (c) murder allegation was factually true. In response, Lauren defended herself with the defence of contextual truth and pleaded that her article also imputed that James was (c) imprisoned murder. While the drink driving and drug allegations were defamatory of James, the murder imputation was true and also outweighed the drink driving and drug imputations. The drink driving and drug imputations did not bring any further harm to James’ reputation as the murder imputation already seriously damaged his reputation. As the murder imputation was true, Lauren successfully defended herself with the defence of contextual truth.

Some rules for the defence of contextual truth include:

  • The defendant’s imputations must be substantially different from the plaintiff’s imputations.

  • If the contextual imputations are found to be true, the plaintiff’s defamatory imputations do not further harm the plaintiff reputation. Or, in order words, the contextual imputations must overpower and outweigh the plaintiff’s imputations.

  • The contextual imputations must arise from the publication which the plaintiff complains. It cannot arise from prior or different publications.

5.2.3. The Defence of Absolute Privilege

 

There are three main occasions in which the plaintiff is given a complete defence irrespective of whether the words were repugnant, false, spoken with malice, or damaging. These occasions are court proceedings, parliamentary proceedings and communications between high officers of the state.

 

Firstly, for court proceedings, judges, barristers, solicitors, witnesses, jurors, and parties are all protected by the defence of absolute privilege includes. Secondly, for parliamentary proceedings, the defence of absolute privilege extends to documents published by a parliamentary body, debates of a parliamentary body, giving evidence to a parliamentary body, and documents submitted to a parliamentary body. And thirdly, for high officers of state, some past examples of people who have been protected by absolute privilege include communications by the Secretary of State for India to the Parliamentary Under-Secretary for India; communications between the High Commissioner of Australia, United Kington, and the Australian Prime Minister. Absolute privilege may also protect senior military and naval officers.

5.2.4. The Defence of Qualified Privilege for Provision of Certain Information

 

The defence of qualified privilege for provision of certain information protects the defendant in circumstances where the defendant believes that there is a real public interest in what they published. A public interest cannot be matters of pure gossip, curiosity, or news. Some past cases which have successfully applied qualified privilege include performance and training of a football team, and information about bushfires.

 

In addition to public interest, the conduct of the defendant in publishing the matter must be reasonable in the circumstances. Whether the defendant’s conduct was reasonable, the court may consider:

  • The degree of public interest;

  • The seriousness of the defamatory matter;

  • The quality of sources and whether the defendant made a reasonable inquiry as to the quality of sources;

  • Whether the defendant distinguished between suspicion, allegation, and proven facts;

  • Whether the story was one-sided;

  • Whether the defendant made an irrational inference or illogical inference;

  • Whether the defendant relied on legitimate evidence;

  • Whether the defendant believed in the truth of the imputations;

  • If the story was one sided, whether the defendant took steps to obtain and publish a response from the person; and

  • If the defendant did not intend to be defamatory, whether the defendant could reasonably foresee at the time that the publication would defame the plaintiff.

 

Note, the defence of qualified privilege may be lost if the defendant published with malice.

5.2.5. The Defence for Publication of Public Documents


The defence of publication of public documents protects the defendant in circumstances where the defendant publishes defamatory matter derived from a public document. The defamatory matter can also be derived from a fair copy, a summary, or an extract of the public document. A ‘public document’ includes:

  • Reports and papers published by a parliamentary body. A parliamentary body includes a parliament or legislature of any country; a house of a parliament or legislature of any country; a committee of a parliament or legislature of any country; and a committee of a house or houses of a parliament or legislature of any country.

  • A record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body.

  • Documents presented to a parliamentary body of any country.

  • Documents published by the government of any country.

  • And judgements published by courts and tribunals of any country.


The publication needs to be a fair report of the public documents.

5.2.6. Defences of Fair Report of Proceedings of Public Concern

 

Defences of fair report of proceedings of public concern protects the defendant in circumstances where the defendant publishes defamatory matter derived from a fair report of any ‘proceedings of public concern.’ The defamatory matter can also be derived from a fair copy, a summary, or an extract of any proceedings of public concern. Proceedings of public concern includes:

  • Proceedings of a parliamentary body. A parliamentary body includes a parliament or legislature of any country; a house of a parliament or legislature of any country; a committee of a parliament or legislature of any country; and a committee of a house or houses of a parliament or legislature of any country.

  • Proceedings in public of an international organisation of any countries.

  • Proceedings in public of the governments of any countries.

  • Proceedings in public of an international conference at which the governments of any countries are represented.

  • Proceedings in public of any international court or tribunal.

  • Proceedings in public of a court or arbitral tribunal of any country.

  • Proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country.

  • Proceedings in public of a local government body of any Australian jurisdiction.

  • Proceedings of a learned society (see for example) in Australia or of a committee or governing body of the society. The society’s proceedings must be related to a decision about its members or of those who under contractual control.

  • Proceedings of a sport or recreation association (see for example) in Australia or of a committee or governing body of the association. The association’s proceedings must be related to a decision about its members or of those who under contractual control.

  • Proceedings of a trade association (see for example) in Australia or of a committee or governing body of the association. The association’s proceedings must be related to a decision about its members or of those who under contractual control.

  • Proceedings of a public meeting of shareholders of a public company in Australia.

  • Proceedings of a public meeting in Australia related to the candidature of a person for public office.

  • Proceedings of an ombudsman of any country if the proceedings relate to a report of the ombudsman.

  • And proceedings in public of a law reform body of any country.

 

An exception of this defence is in circumstances where the defendant did not publish the information honestly. Note that publishing in order to make a profit is acceptable.

5.2.7. The Defence of Fair and Accurate Report of Judicial Proceedings

 

‘The defence of fair and accurate report of judicial proceedings’ is similar to the ‘defences of fair report of proceedings of public concern’. The former was created by parliament and the later was created and collated by courts over a long period of time. The two are similar but separate defences.

 

The defence of fair and accurate report of judicial proceedings protects the defendant in circumstances where the defendant published defamatory material derived from court proceedings (see general meaning of judicial proceedings).


The requirements of this defence in order to be protected include, but are not limited to:     

  • The report must be fair. Fairness may be determined by comparing the report to what actually occurred.

  • The defamatory statements must have a connection to the court proceedings.

  • The report must identify who made the statements during court. The report does not need to be a verbatim account, nor does the report need to contain quotes.

  • The report cannot miss fundamental and essential facts. However, not all parts of the situation of event need be included.

  • The report needs to be substantially accurate. While complete accuracy is not required, obvious inaccuracy may be held as not fair.

  • It does not matter whether the statements made in court are factually false. What matters is the statements are reported accurately.

  • The defence must not publish with malice. If published with malice, the defence may be lost.

 

The protected defamatory material may be published before the judicial proceedings have ended. Some examples of circumstances which are protected by the defence includes statements made by witnesses and evidence which the court uses to make its decision. Not all defamatory statements made during court are protected by this defence. Some example of circumstances which may not be protected by the defence include:

  • Defamatory statements made by bystanders.

  • Documents prepared for court, but not used by the court to make its decision.

  • Opinions about the event or the situation. Instead, the report needs to be a factual description of what occurred.

5.2.8. The Defence of Fair and Accurate Report of Foreign Judicial Proceedings

‘The defence of fair and accurate report of quasi-judicial proceedings’ is similar to the ‘defences of fair report of proceedings of public concern’. The former was created by parliament and the later was created and collated by courts over a long period of time. The two are similar but separate defences.

The defence of fair and accurate report of foreign judicial proceedings protects the defendant in circumstances where the defendant published defamatory material derived from foreign judicial proceedings. Although, reports of all countries may not be protected. There must be a public interest in Australia for reporting on foreign judicial proceedings. Curiosity or gossip may not constitute a public interest. In addition, the report must be fair and substantially accurate.

5.2.9. The Defence of Fair and Accurate Report of Quasi-Judicial Proceedings

 

‘The defence of fair and accurate report of quasi-judicial proceedings’ is similar to the ‘defences of fair report of proceedings of public concern’. The former was created by parliament and the later was created and collated by courts over a long period of time. The two are similar but separate defences.

The defence of fair and accurate report of quasi-judicial proceedings protects the defendant in circumstances where the defendant published defamatory material derived from quasi-judicial proceedings. Quasi-judicial proceedings are proceedings of a non-judicial body, such as administrative agencies and tribunals, who exercise their functions and powers in a manner that is analogous to judicial power. For example, the Legal Practitioners Disciplinary Tribunal, the Mental Health Review Tribunal, and the Swimming Pool Fencing Review Committee. The report must be fair and accurate and there must be a public interest for the report to be released.

5.2.10. The Defence of Fair and Accurate Report of Parliamentary Proceedings

 

‘The defence of fair and accurate report of parliamentary proceedings’ is similar to the ‘defences of fair report of proceedings of public concern’. The former was created by parliament and the later was created and collated by courts over a long period of time. The two are similar but separate defences.

 

The defence of fair and accurate report of parliamentary proceedings protects the defendant in circumstances where the defendant published defamatory material derived from parliamentary proceedings. In order to be protected by this defence, some requirements include:

  • The report must be fair and mostly accurate. It does not matter whether the parliamentarian made a false statement during parliament. What matters is that the publisher accurately reported on the statement.

  • The publisher must not have an improper motive for publishing.

  • The subject matter of the report needs hold a genuine public interest. Note that public interest does not mean what the public will find interesting.

  • The publisher has liberty to choose which parts of the parliamentary proceedings they report.

5.2.14. The Defence of Consent

 

The defence of consent protects the defendant in circumstances where the plaintiff consented to being defamed.

5.2.15. The Defence of Illegality

 

The defence of illegality protects the defendant in circumstances where the plaintiff built their reputation through illegal activity. For example, a drug dealer sues for their damaged drug-dealing reputation.

5.3. Who Can Sue for Defamation?

5.1.1. Companies

A corporation cannot sue for defamation. 1 A corporation is ‘any body corporate or corporation constituted by or under a law of any country (including by exercise of a prerogative right), whether or not a public body’. 2 A public body is ‘a local government body or other governmental or public authority constituted by or under a law of any country.’ 3


However, there are two exceptions. For the first exception, there are several components: (1) The corporation employs less than 10 full-time workers. 4 If there are part-time workers at the firm, this will be taken as a fraction of 10 full-time workers. 5 For example, 50 workers who work at 20% of full-time is equivalent to 10 workers who work at 100% of full-time. It is irrelevant whether the worker is under a contract of employment, whether the worker is paid, or whether the worker is a volunteer. 6 (2) The corporation is not related to another corporation. 7 The other corporation may be either: 8 (a) a holding company of another corporation; or (b) a subsidiary of another corporation; or (c) a subsidiary of a holding company of another corporation. (3) The corporation is not a ‘public body.’ 9


The second exception is a corporation who’s ‘objects for which it was formed do not include obtaining financial gain for its members or corporators’. 10 For example, not-for-profit organisations.


If the corporation does sue for defamation, the imputations (what the publication insinuates) must only refer to the corporation’s business, trade, or commerce reputation. 11 To contrast, imputations which refer to things other than the corporation’s business, trade, or commerce may be invalid, such as murder, 12 incest, 13 adultery, 14 forgery, 15 assault, 16 bad manners, 17 or nepotism. 18


For not-for-profit organisations with purchased property that generates income, the organisation may sue for defamation if the publication damaged its property or financial situation. 19


A shelf-company with no business cannot sue for defamation. 20


A person who is part of a corporation, such as an employee, is free to sue for defamation even if the publication refers to both the person themselves and the corporation. 21 Where the publication refers to a company but reflects upon a person within the company, that person may sue for defamation. 22


Where a publication refers solely to a director or an officer of a corporation and not the corporation itself, the corporation itself cannot sue for defamation. 23 Alternatively, where a director or an officer’s actions may reflect upon company itself, the company may sue for defamation. 24 To determine whether the director or officer reflects upon the company, consider (1) the part that director or officer is alleged to have played in the operations of the company and (2) the extent to which the director or office is identified with or considered to be the alter ego of the corporation. 25

  1. Civil Law (Wrongs) Act 2002 (ACT) s 121(1); Defamation Act 2005 (Qld) s 9(1); Defamation Act 2005 (NSW) s 9(1); Defamation Act 2006 (NT) s 8(1); Defamation Act 2005 (SA) s 9(1); Defamation Act 2005 (Vic) s 9(1); Defamation Act 2005 (WA) s 9(1).

  1. Civil Law (Wrongs) Act 2002 (ACT) s 121(6); Defamation Act 2005 (Qld) s 9(6); Defamation Act 2005 (NSW) s 9(6); Defamation Act 2006 (NT) s 8(6); Defamation Act 2005 (SA) s 9(6); Defamation Act 2005 (Vic) s 9(6); Defamation Act 2005 (WA) s 9(6).

  1. Civil Law (Wrongs) Act 2002 (ACT) s 121(6); Defamation Act 2005 (Qld) s 9(6); Defamation Act 2005 (NSW) s 9(6); Defamation Act 2006 (NT) s 8(6); Defamation Act 2005 (SA) s 9(6); Defamation Act 2005 (Vic) s 9(6); Defamation Act 2005 (WA) s 9(6).

  1. Civil Law (Wrongs) Act 2002 (ACT) s 121(2)(b); Defamation Act 2005 (Qld) s 9(2)(b); Defamation Act 2005 (NSW) s 9(2)(b); Defamation Act 2006 (NT) s 8(2)(b); Defamation Act 2005 (SA) s 9(2)(b); Defamation Act 2005 (Vic) s 9(2)(b); Defamation Act 2005 (WA) s 9(2)(b).

  1. Civil Law (Wrongs) Act 2002 (ACT) s 121(3); Defamation Act 2005 (Qld) s 9(3); Defamation Act 2005 (NSW) s 9(3); Defamation Act 2006 (NT) s 8(3); Defamation Act 2005 (SA) s 9(3); Defamation Act 2005 (Vic) s 9(3); Defamation Act 2005 (WA) s 9(3).

  1. Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201, [20]–[24]; Heartcheck Australia Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 555, [7].

  1. Civil Law (Wrongs) Act 2002 (ACT) s 121(2)(b); Defamation Act 2005 (Qld) s 9(2)(b); Defamation Act 2005 (NSW) s 9(2)(b); Defamation Act 2006 (NT) s 8(2)(b); Defamation Act 2005 (SA) s 9(2)(b); Defamation Act 2005 (Vic) s 9(2)(b); Defamation Act 2005 (WA) s 9(2)(b).

  1. Civil Law (Wrongs) Act 2002 (ACT) s 121(4); Defamation Act 2005 (Qld) s 9(4); Defamation Act 2005 (NSW) s 9(4); Defamation Act 2006 (NT) s 8(4); Defamation Act 2005 (SA) s 9(4); Defamation Act 2005 (Vic) s 9(4); Defamation Act 2005 (WA) s 9(4).

  1. Civil Law (Wrongs) Act 2002 (ACT) ss 121(2)(b), (6); Defamation Act 2005 (Qld) ss 9(2)(b), (6); Defamation Act 2005 (NSW) ss 9(2)(b), (6); Defamation Act 2006 (NT) ss 8(2)(b), (6); Defamation Act 2005 (SA) ss 9(2)(b), (6); Defamation Act 2005 (Vic) ss 9(2)(b), (6); Defamation Act 2005 (WA) ss 9(2)(b), (6).

  1. Civil Law (Wrongs) Act 2002 (ACT) s 121(2)(b); Defamation Act 2005 (Qld) s 9(2)(b); Defamation Act 2005 (NSW) s 9(2)(b); Defamation Act 2006 (NT) s 8(2)(b); Defamation Act 2005 (SA) s 9(2)(b); Defamation Act 2005 (Vic) s 9(2)(b); Defamation Act 2005 (WA) s 9(2)(b).

  1. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133, 138 (Lord Esher MR); D & L Caterers Ltd v D'Ajou [1945] 1 KB 364, 366 (Lord Goddard), 367 (Lord du Parcq); Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510, 586 (Pincus J); cf Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (Mahoney JA); Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9, 10-1 (Hunt J); Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 547.

  1. Rolph, David, Defamation Law (Thomson Reuters, 2016) 79.

  1. Rolph, David, Defamation Law (Thomson Reuters, 2016) 79.

  1. Metropolitan Saloon Omnibus co v Hawkins (1859) 157 ER 769, 90 (Pollock CB).

  1. D & L Caterers Ltd v D'Ajou [1945] 1 KB 364, 366 (Lord Goddard).

  1. South Hetton Coal Co Ltd v North-Eastern News Ltd [18941 1 QB 133, 141 (Lopes LJ).

  1. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133, 138 (Lord Esher MR).

  1. Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50, [8] (Le Miere J).

  1. Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344, 356; Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136, [29] (McCallum J).

  1. Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136, [37] (McCallum J).

  1. Civil Law (Wrongs) Act 2002 (ACT), s 121(5); Defamation Act 2005 (Qld) s 9(5); Defamation Act 2005 (NSW) s 9(5); Defamation Act 2006 (NT) s 8(5); Defamation Act 2005 (SA) s 9(5); Defamation Act 2005 (Vic) s 9(5); Defamation Act 2005 (WA) s 9(5).

  1. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510, 602 (Pincus J).

  1. Bognor Regis Urban District Council v Campion [1972] 2 QB 169, 175.

  1. Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9, 11; Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris (2000) 179 ALR 738, 748 (Spender, Drummond and Kiefel JJ).

  1. Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9, 11.

5.1.2. Partnerships


A Partnership can sue for defamation. 26 The imputations must only refer to the partnership’s business, trade, or commerce reputation. 27 To contrast, an imputation cannot refer to anything else other than the partnership’s business, trade, or commerce reputation. If the imputation reflects both upon the partners of the partnership and upon the partnership itself, the partners can sue for defamation. 28

  1. Cook v Batchellor (1802) 127 ER 83; Forster v Lawson (1826) 3 Bing 452, 457 (Park J); Le Fanu v Malcomson (1848) 1 HLC 637, 666-7 (Lord Cottenham LC), 669-70 (Lord Campbell); Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585, 595 (O'Connor J); John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346, 358; Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284, 298 (Steytler J).

  1. Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284, 298 (Steytler J).

  1. Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284, 302.

5.1.3. Unincorporated Associations


An unincorporated association cannot sue for defamation. 29 See ‘What Is an Unincorporated Association?’

  1. Cother v John Fairfax & Sons Pty Ltd (1947) 64 WN (NSW) 154; Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585, 595 (O'Connor J).

5.1.4. Government Bodies


It is unclear whether a government body can or cannot sue for defamation.30 Some government bodies have been restrained from suing31 and others have been allowed. 32 The distinction between which government bodies have been restrained and which have not is unclear.

  1. Rolph, David, Defamation Law (Thomson Reuters, 2016) 83-5.

  1. Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 550, (Lord Keith); Ballina Shire Council v Ringland (1994) 33 NSWLR 680, 691; New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300.

  1. Robertson v John Fairfax Publications Pty Ltd (2003) 58 NSWLR 246, 250-1.

5.1.5. Politicians


Individual politicians can sue for defamation.33

  1. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 568.

5.1.6. Individuals


All people can to sue for defamation.34

  1. Electrical, Electronic, Telecommunication and Plumbing Union Times Newspapers Ltd [1980] 1 QB 585, 595 (O’Connor J).

5.1.7. Non-Australians


A person or corporation outside of Australia can sue for defamation in Australian Jurisdictions.35

  1. Pisani v Lawson (1839) 133 ER 35.

5.1.8. Dead People


A living person cannot sue for defamation on behalf of a dead person.36 This includes: (1) a defamatory publication about the person after they have died and (2) a defamatory publication about a person who was alive at the time of the publication but later died.37 Except for Tasmania.38 In Tasmania, it is possible for a living person to sue on behalf of a dead person.

  1. Civil Law (Wrongs) Act 2002 (ACT) s 122(a); Defamation Act 2005 (Qld) s 10(a); Defamation Act 2005 (NSW) s 10(a); Defamation Act 2006 (NT) s 9(a); Defamation Act 2005 (SA) s 10(a); Defamation Act 2005 (Vic) s 10(a); Defamation Act 2005 (WA) s 10(a).

  1. Civil Law (Wrongs) Act 2002 (ACT) s 122(a); Defamation Act 2005 (Qld) s 10(a); Defamation Act 2005 (NSW) s 10(a); Defamation Act 2006 (NT) s 9(a); Defamation Act 2005 (SA) s 10(a); Defamation Act 2005 (Vic) s 10(a); Defamation Act 2005 (WA) s 10(a).

  1. Rolph, David, Defamation Law (Thomson Reuters, 2016) 77; George, Patrick, Defamation Law in Australia (LexisNexis Butterworths, 3rd Edition, 2017) 233-4.

5.1.9. Third Parties


A third party cannot sue on behalf of the defamed person.39

  1. May v Lane (1894) 64 LJ QB 236, 238; Dawson v Great Northern Railway [1904] 1 KB 277, 281; Defries v Milne [1913] 1 Ch 98, 109.

6. Examples of Defamation Cases

The following is a list of examples of defamation cases. It is divided into two categories. The first category is specific defamatory imputations, for example, “James Draper is a racist”, “James Draper is a pedophile”, “James Draper is a criminal”. The second category is the specific platform, for example, Facebook, Email, or Letter.

6.1. Defamatory Imputations

6.1.1. #MeToo/Sexual Allegation

Case Name: Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838

Chris Gayle was a Jamaican cricketer who played for the West Indies team. Mr. Gayle was involved in an awkward interview with a female journalist which made her feel uncomfortable. This interview sparked a wave of articles about Mr. Gayle. The Age, The Sydney Morning Herald and The Canberra Times published at total of 28 articles about Mr. Gayle reaching over a million people. The articles addressed the awkward interview but additionally and separately accused Mr. Gayle of wrongly exposing his genitals to a woman in the cricket changing rooms.


The media admitted that the articles were defamatory but they defended themselves with the defence of qualified privilege and the defence of justification (truth). However, the jury rejected both defences. After the jury’s decision, the media organisations took down the defamatory articles about Mr. Gayle.


The court held in favour of Mr. Gayle and awarded him $300,000 in compensation.

6.1.2. Harassment

Case: Clarke v Larard [2018] QDC 247

Mr. Clarke and Mr. Larard were both business owners who each had a business within a shopping centre. There had been a history of disputes about promotional signs between the shopping centre’s body corporate, Mr. Clarke, and Mr. Larard.


Mr. Larard sent the following email to four committee members of the body corporate:

Hi John and the committee & North coast management,

Can you please send a further formal letter to both Clarkes not to harass or approach me if they have anything to say to myself either through there solicitor or the body Corporate.

Today while returning from the Bank with my Son Christopher in hand two years old, Gerry confronted me in the carpark 11.19 am I had on purpose since I observed him in front of his unit choose to cross the carpark and void him, but Rather than this happening he cut a line direct to me got in front of my babbling about the size of the sign above Café Beerwah that it was 5 metres same as the sign I uses to have above my own shop, and rather than allow me to pass un hindered he got in front of me insisting I acknowledge the size of the sign Insisting I answer him what size Café Beerwah Sign is? I had to physically push my way past the fool more than once, if I did not have my son and carrying bank deposit book and a shopping bag I would have knocked his head off.

I don’t come to operate my business in Turner Park to be harassed by any other owner as I would not myself interfere with the day to day operation of anyone’s business here, No One here because of the Clarkes vexatious frivolous ridiculous actions should be suffering it about time the body corporate took combines legal action against the Clarkes, these special levy’s hurt everyone financially, and appear not to solve whatever the issues are with the Clarkes but it still seems to be we must all be wrong to make the Clarkes right.

Please issue them a letter, they have been asked to respect my privacy, my wish not to receive emails and not to speak to me, I am done ever attempting anything reasonable with the Clarkes, in fact perhaps Tracy can advise what’s involved in a court order that they are then not permitted to approach me or any member of my family.

But first up perhaps an immediate letter from Body Corporate, or our legal representation.


The imputations were:

  1. The plaintiff harassed the defendant and his two year old son by repeatedly using his body to block their path as they walked through the Turner Park Shopping Village carpark, requiring the defendant to push the plaintiff to get past him;

  2. The plaintiff is a fool;

  3. The plaintiff harassed the defendant and his two year old son to such a degree that it would have justified the defendant knocking his head off.


CCTV footage showed that Mr. Clarke did not act aggressively or confrontational towards Mr. Larard. In fact, it was the opposite. Mr. Larard was held to have spoken belligerently and acted aggressively towards Mr. Clarke. The judge held that Mr. Larard falsely accused Mr. Clarke.


The court held in favour of Mr. Clarke and he was awarded $12,000 in compensation. An injunction order was made against Mr. Larard to restrain him from making further allegations about Mr. Clarke.

6.1.3. Sexist

There are no cases (Jan 2019) which have made it all the way to trial containing the plaintiff’s alleged defamatory imputations: “sexist” or “sexism”.

 

Technical Notes: In Tucker v Echo Publication Pty Ltd & Anor [2005] NSWSC 865, the ‘sexist’ imputation was pleaded as contextual truth by the defendant, however the judge held that there was no substantial truth in the imputation. For other ‘sexist’ imputation cases, Capilano Honey Ltd v Mulvany [2018] VSC 672, was for an interlocutory injunction (an order to stop the defendant from posting any further defamatory imputations before the case proceeds to trial), and Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374 was an application to strike-out imputations. The strongest ‘sexist’ case is Wild v John Fairfax Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 8 August 1997, unreported). The judge held that the imputation was capable of conveying sexism, but it was sent to the jury to decide. There have been no updates since.

Case Name: Wild v John Fairfax Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 8 August 1997, unreported)

In a publication by the Sydney Morning Herald newspaper, there were 3 images and a body of text with the title, “Catherine Lumby, "In Defence of Female Voyeurism and Sexist Ads". The first image contained a billboard with two naked women displaying their backsides. On their backsides were the superimposed words, “They like to watch” and “In defence of female voyeurism and sexists ads. By Catherine Lumby”. A second image contained a female model in lingerie with rope between her teeth. The third image was underneath the billboard image with Mr. Wild looking towards the billboard but slightly away. Mr. Wild was represented to have balding untidy hair with a long grey beard. The image was captioned with, “revealing end of the market... two of the billboards that have attracted complaints of sexism over the past couple of years, but are they?”


In the publication, a modified section of Catherine Lumby’s book named Bad Girls was displayed. It said, “while the best advertising seduces us, feminism too often simply wants to tell women what ‘real’ women ought to want”. Further, the article stated, “In fact, there is plenty of evidence that contemporary women enjoy mocking and playing with media stereotypes of femininity in much the same way the gay community has adopted and parodied icons of straightness. The enduring popularity of Madonna with her in-your-face sex goddess posturing is one ex-ample. Lisbeth Gorr's aggressive pseudo-flirt routine is another.”


The imputations were:

  1. “The plaintiff (Mr. Wild) is a dirty old man.

  2. The plaintiff is a voyeur.

  3. The plaintiff is a sexist.

  4. The plaintiff is the kind of low individual who would pose in front of a billboard of scantily clad young girls for the purpose of having his photograph in The Sydney Morning Herald.”


The judge held that the imputations were capable of being understood. The case was sent to the jury to determine whether the imputations were in fact conveyed in the Sydney Morning Herald and whether the imputations were defamatory of Mr. Wild. However, as there have been no updates since 1997, presumably the case did not proceed to trial.

6.1.4. Thief

Case Name: Luke v Richardson [2014] WADC 27

Mr. Luke hired a car from a car-hire-company and Ms. Richardson was an employee of that company. Mr. Luke returned the car and Ms. Richardson later requested that he return to the office. When he arrived, she pointed out that the tyres had been replaced with older tyres and that he was responsible for it.


Mr. Luke became angry. For context, he said that his anger was due to his military background and his cultural heritage from Africa. He reacted to Ms. Richardson by speaking loudly and aggressively and accused her of being a racist. In response, Ms. Richardson also became angry and called him a "thief" and a "criminal". Sometime during this event, Mr. Luke threatened to kill her and burn her.


The judge found on the evidence that the tyres were in fact swapped. However, there was no evidence that the tyres were swapped by Mr. Luke himself as other people had driven the car. While Mr. Luke was probably liable for breach of contract, this did not suggest that he stole the tyres or that he was a criminal. The court held that Ms. Richardson’s accusations that he was a "thief" and a "criminal" were defamatory.


Mr. Luke would have been awarded $7,500, however, the judge disapproved of Mr. Luke's accusation that Ms. Richardson was racist. He accused her both during the event itself and during the court hearing. The court held there was no evidence of racism on Ms. Richardson’s behalf. Further, the judge disapproved of the fact that Mr. Luke had threatened to kill and burn Ms. Richardson. Mr. Luke was in the end awarded $1,000 in compensation.

6.1.5. Negligence

Case Name: Al Muderis V Duncan (No 3) [2017] NSWSC 726

Dr. Al Muderis is a surgeon and he performed hip arthroscopy on Mr. Mazzella. Mr. Mazzella later complained that Dr. Al Muderis damaged his pudendal nerves which caused a degree of numbness in his penis and scrotum and a loss of sexual function.

In response, Mr. Mazzella sued Dr. Al Muderis for medical negligence (Mazzella v Al Muderis [2014] NSWSC 1087) however, the judge dismissed the case before it proceeded to trial. Mr. Mazzella engaged with four different law firms in preparation and three law firms ceased representing him. Further, Mr. Mazzella did not comply with many of the pre-trial court orders.

Mr. Mazzella threatened to cut off Dr. Al Muderis’ penis and kill him and posted a series of defamatory publications.

Dr. Al Maderis sued for defamation for five different publications:

  • The first was for a website which was essentially a copy of Dr. Al Muderis’ medical website but with the words changes. Some of the website’s headings included, ‘More Victims’, ‘The Un Accountability of the Surgeon Dr Al Muderis for his medical negligence’, ‘The Video that Dr Al Muderis had blocked on Australian YouTube’. The website also linked to a YouTube video by Mr. Mazzella in which he made a series of allegations about Dr. Al Muderis.
  • The second was for a website which was similar to the first website but with slight variations.
  • The third was for a Facebook post by Mr. Mazzella which appeared on a public Facebook page. The post contained a photo of Dr. Al Muderis and a heading which stated, ‘Dr Al Muderis-Surgeon or Butcher’. The post contained links to the defamatory websites, links to a YouTube video with Mr. Mazzella making allegation about Dr. Al Muderis, and various other links containing images and text.
  • The fourth was for the YouTube video itself where Mr. Mazella spoke about Dr. Al Muderis and made a series of allegations.
  • The fifth was for a Pinterest and Daily Motion post which contained a link to the YouTube video and also contained text which included, “Listen as Mr Mazzella describes the inexcusable actions resulting from mutilation of essential reproductive nerves by this so-called Doctor, or should we say ‘Butcher’. This man is still practicing [sic] … Don’t let him ‘practice’ [sic] on you or your penis.”

There were many imputations. Some of them included:
  • The plaintiff as a surgeon deserved to be found guilty of negligence by the NSW Medical Board;
  • The plaintiff mutilated Gerard’s (a reference to the second defendant) reproductive nerves;
  • The plaintiff’s negligence in his operative and post-operative treatment of Gerard led to a loss of sensation in his penis, thereby destroying his sex life and causing great depression;
  • The plaintiff as a surgeon butchers his patients; and
  • The plaintiff’s gross negligence as a surgeon destroys peoples’ lives.

Dr. Al Maderis had an outstanding reputation. The judge said that Dr. Al Muderis, ‘is in some sense “the perfect plaintiff” in a defamation proceeding. He is involved in charity, works for the Australian Defence Forces, gives of his time and money for persons who are less fortunate and has put Australia at the leading edge of medical technology.’ ‘There can be little doubt that the [Mr. Al Muderis] is a person of extremely high standing and an extraordinarily good reputation, which is deserved.’ Dr. Al Muderis pioneered a new surgical technique and traveled the world teaching other surgeons about his technique. The British military sent their injured soldiers to Australia to be treated by Dr. Al Muderis.

Mr. Duncan and Mr. Mazzella were ordered to pay Dr. Al Muderis $320,000 jointly and Mr. Mazella was separately ordered to pay Dr. Al Muderis $160,000. Dr. Al Muderis was awarded in total $480,000. The court ordered an injunction which prohibited Mr. Duncan and Mr. Mazzella defaming Dr. Al Muderis again. Lastly, Mr. Duncan and Mr. Mazzella were ordered to pay for Dr. Al Muderis legal fees.

6.2. Platforms

6.2.1. Facebook

Case Name: Reid v Dukic [2016] ACTSC 344

Ms. Reid was the CEO of Capital Football and Mr. Dukic was a local football coach. Mr. Dukic had posted about Ms. Reid on his Facebook wall 9 times over 2 years. He had around 400 friends and 5 to 25 people liked each post.


His posts insinuated that Ms. Reid is dishonest, a national disgrace, gender biased, a liar, is grossly incompetent, a despicable person, similar to a communist dictator, and a whole host of other defamatory insinuations.


Ms. Reid sued him for defamation and claimed that his Facebook posts were "ridiculous" and completely false. However, she said that she became concerned that people were starting to believe him and that she was hurt by the people who 'liked' his posts. She also said that she became so emotionally distraught that it started to affect her home life with her partner. A witness in the case said that Ms. Reid was starting to become warn-down and was losing self-confidence. She eventually resigned as CEO, however, she said her resignation was not related to Mr. Dukic's Facebook posts.⁣


Mr. Dukic did not turn up for court and so he had no defence. He was ordered to pay Ms. Reid $182,700 and he was banned from posting about her on Facebook again.

6.2.2. Email

Case Name: Stone v Moore [2016] SASCFC 50

Ms. Stone and Mr. Moore were siblings aged in their 70’s. After their mother died, Mr. Moore made two publications which prompted Ms. Stone to sue for defamation. The first publication was an email sent to Ms. Stone’s son’s wife. The second publication was an oral statement made is the presence of his partner, his nephew and the son of Ms. Stone, and the son’s wife.


For the first publication, Frank responded to an email sent by Ms. Stone. He responded by sending an email to Ms. Stone’s son’s wife which was to be forwarded to Ms. Stone. For context, Ms. Stone was estranged from her mother from the age of 19. Futher, Mr. Frank claimed that the estrangement was due to an abortion which Ms. Stone had. The email said:

Carole,

The funeral now has been confirmed for this Friday. I am inviting only the grand-children and great grand-children to what will be a very small private burial.

I do not consider it appropriate for you to attend.

Yes, I am your brother and we have the same Mother, but only one of us has treated her the way a child should treat its mother. You have been worse than indifferent to your Mother’s well being, you have been callous.

If you believe by attending it will go some way towards alleviating your guilt you are sadly mistaken. It will be seen as an act of gross hypocrisy.

If you would like a private viewing I am willing to instruct the funeral parlour it has my approval to do so.

I can be contacted on [mobile number]

Frank


The imputations were:

  1. By reason of that estrangement Ms. Stone never treated their mother as a child should.

  2. By reason of that estrangement Ms. Stone was worse than indifferent, indeed callous, to [the plaintiff’s] mother’s well-being.

  3. Ms. Stone is a hypocrite.


For the second publication, Frank claimed to have been told by his parents that Ms. Stone had an abortion when she was younger. Frank told Ms. Stone’s son about the abortion and about how she was estranged from their mother. However, the second publication was successfully defended by the defence of qualified privilege.


The court ruled in favour of Ms. Stone for the first publication only and she received $2,000 in compensation.

7. Further Reading

The Law Project recommends the following two textbooks on Defamation. Both books address many of the same topics, however, each enters into varying degrees of depth on each subtopic, each address different points which the other does not, and each explain topics in different ways. One book is not better than the other, instead, both should be used as a reference. The two textbooks are:

  1. Rolph, David, Defamation Law (Thomson Reuters, 2016) 

  2. George, Patrick, Defamation Law in Australia (LexisNexis Butterworths, 3rd Edition, 2017) 

The Law Project also recommends a looseleaf service titled Australian Defamation Law and Practice by T K Tobin & M G Sexton published by LexisNexis. This comes in the form of either a binder and sections of the binder are updated by physically replacing sections in the binder, or, an online subscription can be purchased through LexisNexis. The benefits of the looseleaf service are: (1) It is written by two QC’s. A Queen’s Counsel (or alternatively named ‘Senior Counsel’) are the highest ranking barristers in Australia. Both Tobin QC and Sexton SC have acted in a large number of defamation cases. (2) It is more likely to be up to date than a textbook as textbooks are updated once per year or once every few years, while looseleaf services are often updated multiple times per year. The negatives of a loose leaf service are: (1) If you do not want to buy a whole subscription, you will need to physically locate the binders somewhere. Try your state library or court libraries, for example, the Law Library of Victoria in the Supreme Court has a copy. (2) The physical binder is not user friendly and it feels archaic. Nevertheless, the information is there and it is of the highest quality.

More defamation articles by The Law Project:

  1. Is the Imputation Defamatory?

  2. Indirect/Implicit/Innuendo Identification

  3. Who Can Sue for Defamation?

Legislation on Defamation:

Other books which address defamation law in Australia:

  1. Baker, Roy, Defamation Law and Social Attitudes: Ordinary Unreasonable People (Edward Elgar Publishing, 2011)

  2. Balkin, R P and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th Edition, 2013)

  3. Barker, Kit, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th Edition, 2012)

  4. Butler, Des and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th Edition, 2015)

  5. Collins, Matthew, Collins on Defamation (Oxford University Press, 2014) 

  6. Collins, Matthew, The Law of Defamation and the Internet (Oxford University Press, 3rd Edition, 2011)

  7. Davies, Martin and Ian Malkin, Focus: Torts (LexisNexis Butterworths, 8th Edition, 2017)

  8. Foster, Neil, Torts Cases and Commentary Supplement: Defamation and Wrongful Interference with Goods (LexisNexis Butterworths, 2014)

  9. George, Patrick, Monica Allen, Gerard Basha, Stefanie Benson, Joseph Collins, James Mattson, Justine Munsie, Gabriella Rubagotti, Gavin Stuart and James Whiley, Social Media and the Law (LexisNexis Butterworths, 2nd Edition, 2016)

  10. Hitchens, Lesley, Media Law in Australia (Wolters Kluwer: Law & Business, 2014)

  11. McNamara, Lawrence, Reputation and Defamation (Oxford University Press, 2007)

  12. Mendelson, Danuta, The New Law of Torts (Oxford University Press, 3rd Edition, 2014) 

  13. Mendelson, Danuta, The New Law of Torts: Case Book (Oxford University Press, 3rd Edition, 2014)

  14. Pearson, Mark and Mark Polden, The Journalist's Guide to Media Law: A Handbook for Communications in a Digital World (Allen & Unwin, 6th Edition, 2019)

  15. Richards, Bernadette and Melissa De Zwart, Tort Law Principles (Thomson Reuters, 2nd Edition, 2016)

  16. Rolph, David, Matt Vitins, Judith Bannister and Daniel Joyce, Media Law: Cases, Materials and Commentary (Oxford University Press, 2nd Edition, 2015)

  17. Sappideen, Caroline and Prue Vines (eds), Fleming′s The Law of Torts (Thomson Reuters, 10th Edition, 2011)

  18. Stickley, Amanda, Australian Torts Law (LexisNexis Butterworths, 4th Edition, 2016) 

8. Bibliography

 
 

8.1. Legislation

  1. Civil Law (Wrongs) Act 2002 (ACT) - Chapter 9, Sections 115-139N

  2. Defamation Act 2005 (Qld)

  3. Defamation Act 2005 (NSW)

  4. Defamation Act 2006 (NT)

  5. Defamation Act 2005 (SA)

  6. Defamation Act 2005 (Tas)

  7. Defamation Act 2005 (Vic)

  8. Defamation Act 2005 (WA)

8.2. Cases

  1. Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987)

  2. Age Company Ltd v Elliott [2006] VSCA 168

  3. Ahmadi v Fairfax Media Publications Pty Ltd [2010] NSWSC 702

  4. Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928

  5. Akras v Mora (Victorian County Court, Murphy J, 23 August 2012)

  6. Aktas v Westpac Banking Corporation Limited [2010] HCA 25

  7. Al Muderis v Duncan (No 3) [2017] NSWSC 726

  8. Alexander v. Jenkins (1892) 1 Q.B. 797

  9. Ali v Nationwide News Pty Ltd [2008] NSWCA 183

  10. Allen v Lloyd-Jones (No. 6) [2014] NSWDC 40

  11. Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158,

  12. Amanatidis v Darmos [2011] VSC 163

  13. Anderson v Gregory [2008] QDC 135

  14. Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225

  15. Astaire v Campling [1966] 1 WLR 34

  16. Attrill v Christie [2007] NSWSC 1386

  17. Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510

  18. Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50

  19. Ayan v Islamic Co-ordinating Council of Victoria Pty Ltd & Ors [2009] VSC 119

  20. Ballina Shire Council v Ringland (1994) 33 NSWLR 680

  21. Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85

  22. Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

  23. Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9

  24. Bauer Media Pty Ltd v Wilson (No 3) [2018] VSCA 164

  25. Belbin v Lower Murray Urban & Rural Water Corp [2012] VSC 535

  26. Bennette v Cohen [2005] NSWCA 341

  27. Bennette v Cohen [2009] NSWCA 60

  28. Berkoff v Burchill [1996] 4 All ER 1008

  29. Bertwistle v Conquest [2015] QDC 133

  30. Beynon v Manthey [2015] QDC 252

  31. Bognor Regis Urban District Council v Campion [1972] 2 QB 169

  32. Bottrill v Bailey [2018] ACAT 45

  33. Bottrill v Van Lieshout and Ors [2015] ACAT 26

  34. Bourke v Warren (1826) 172 ER 138

  35. Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449

  36. Brennan v Rijicach Pty Ltd & Hickey [2014] SADC 153

  37. Bristow v Adams [2012] NSWCA 166

  38. Bruce v Odhams Press Ltd [1936] 1 KB 697

  39. Bui v Huynh [2011] QDC 239

  40. Bui v Phung (Queensland District Court, 14 October 2011)

  41. Burton v. Crowell Pub. Co. 82 F.2d 154 (1936)

  42. Bushara v Nobananas Pty Ltd [2013] NSWSC 225

  43. Byrne v Deane [1937] 1 KB 818

  44. Cables v Winchester [2018] VSC 392

  45. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708

  46. Cantwell v Sinclair [2011] NSWSC 1244

  47. Capilano Honey Ltd v Mulvany [2018] VSC 672

  48. Capital and Counties Bank v. Henty (1882) LR 7 App Cas 741

  49. Carolan v Fairfax Media Publications Pty Ltd (No 6) [2016] NSWSC 1091

  50. Carrier v Bonham [2001] QCA 234

  51. Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331

  52. Cerutti v Crestside Pty Ltd [2014] QCA 33

  53. Cha v Oh (No. 22) (Part 2) [2009] NSWDC 300

  54. Chakravarti v Advertiser Newspapers Limited [1998] HCA 37

  55. Channel Seven Sydney Pty Ltd v Fisher [2015] NSWCA 414

  56. Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335

  57. Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81])

  58. Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181

  59. Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201

  60. Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29

  61. Chel v Fairfax Media Publications (No 7) [2017] NSWSC 996

  62. Chow v Un (No. 2) [2017] NSWDC 301

  63. Church of Scientology of California Inc v Reader’s Digest Services Pty Ltd [1980] 1 NSWLR 344

  64. Clark v Vare [1930] NZLR 430

  65. Clarke v Coles Supermarkets Australia Pty Limited [2012] NSWDC 107

  66. Clarke v Larard [2018] QDC 247

  67. Coates v Harbour Radio Pty Ltd & Anor [2008] NSWSC 292

  68. Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564

  69. Conlon v Advertiser -- News Weekend Publishing Co Pty Ltd [2008] SADC 91

  70. Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86

  71. Cook v Batchellor (1802) 127 ER 83

  72. Cornes v Ten Group Pty Ltd [2011] SASC 104

  73. Cother v John Fairfax & Sons Pty Ltd (1947) 64 WN (NSW) 154

  74. Cripps v Vakras; Vakras v Cripps [2014] VSC 279

  75. Cross v Denley (1952) 52 SR (NSW) 112

  76. D & L Caterers Ltd v D'Ajou [1945] 1 KB 364

  77. Dabrowski v Greeuw [2014] WADC 175

  78. David Syme & Co v Canavan (1918) 25 CLR 234

  79. Davis v Nationwide News Pty Ltd [2008] NSWSC 693

  80. Dawson Bloodstock Agency Pty Ltd v Mirror Newspapers Ltd [1979] 2 NSWLR 733

  81. Dawson v Great Northern Railway [1904] 1 KB 277

  82. De Poi v Advertiser-news Weekend Publishing Company Pty Ltd [2016] SASCFC 45

  83. Defries v Milne [1913] 1 Ch 98

  84. Derbyshire County Council v Times Newspapers Ltd [1993] AC 534

  85. Dods v McDonald (No.2) [2016] VSC 201

  86. Dojas v TCN Channel Nine Pty Ltd [2001] NSWCA 398

  87. Dossis v Andreadis (No 4) [2012] SADC 114

  88. Douglas v McLernon [No 4] [2016] WASC 320

  89. Dow Jones & Company Inc v Gutnick [2002] HCA 56

  90. Drummond-Jackson v British Medical Association [1970] 1 WLR 688

  91. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

  92. Du Bost v Beresford (1810) 170 ER 1235

  93. Duffy & Ors v Trenowden [2010] SADC 152

  94. Duffy v Google Inc. (No 2) [2015] SASC 206

  95. Dwek v Macmillan Publishers Ltd [2000] EMLR 284

  96. Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374

  97. Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] 1 QB 585

  98. Ell v Milne (No 8) [2014] NSWSC 175

  99. Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443

  100. Farquhar v Bottom [1980] 2 NSWLR 380

  101. Favell v Queensland Newspapers Pty Ltd[2005] HCA 52

  102. Flegg v Hallett [2015] QSC 167

  103. Foley v Radford [2008] NSWDC 167

  104. Forrest v Chlanda [2012] NTSC 14

  105. Forster v Lawson (1826) 3 Bing 452

  106. Fraser v Business News Group Pty Ltd [2018] VSC 196

  107. French v Fraser (No 3) [2015] NSWSC 1807

  108. French v The Herald and Weekly Times Pty Limited (No. 2)

  109. Fullam v Newcastle Chronicle and Journal Ltd[1977] 1 WLR 651

  110. Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99

  111. Gardener v Nationwide News Pty Limited[2007] NSWCA 10

  112. Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171

  113. Gayle v Fairfax Media Publications Pty Ltd (No 2) [2018] NSWSC 1838

  114. Gluyas v Canby [2015] VSC 11

  115. Gluyas v John Best Junior [2013] VSC 3

  116. Gluyas v Tenana [2008] VCC 1161

  117. Godhard v James Inglis & Co Ltd (1904) 2 CLR 78

  118. Graham v Powell (No 4) [2014] NSWSC 1319

  119. Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822

  120. Grattan v Porter [2016] QDC 202

  121. Greek Orthodox Community Of South Australia Inc & Ors v Pashalis [2015] SASC 122

  122. Gregory v Johnson [2017] QDC 224

  123. Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632

  124. Griffith & Macartney-Snape v Australian Broadcasting Corporation [2008] NSWSC 764

  125. Grundmann v Georgeson [1996] QCA 189

  126. Gunston v Davies Brothers Pty Ltd [2012] TASSC 15

  127. Habib v Nationwide News Pty Limited [2010] NSWSC 924

  128. Habib v Radio 2UE Sydney Pty Ltd & Anor (No 4) [2012] NSWDC 12

  129. Haddon v Forsyth [2011] NSWSC 123

  130. Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182

  131. Hallam v Ross (No 3) [2012] QSC 421

  132. Hanson-Young v Bauer Media Limited [2013] NSWSC 1306

  133. Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029

  134. Hardie v The Herald Weekly Times Pty Ltd [2016] VSCA 103

  135. Hayward v Thompson [1982] QB 47

  136. Heartcheck Australia Pty Ltd v Channel Seven Sydney Pty Ltd [2007] NSWSC 555

  137. Henry v TVW Enterprises Ltd (1990) 3 WAR 474

  138. Hepburn v TCN Channel Nine Pty Ltd[1983] 2 NSWLR 682

  139. Higgins v Sinclair [2011] NSWSC 163

  140. Hocken v Morris [2011] QDC 115

  141. Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652

  142. Holt v TCN Channel Nine Pty Ltd [2012] NSWSC 770

  143. Huang v Zhi & Anor [2017] VCC 1990

  144. Hughes v Mirror Newspapers Ltd (1985) 3 NSWLR 504

  145. Hulton (E) & Co v Jones [1910] AC 20

  146. Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris (2000) 179 ALR 738

  147. Jeffrey and Curnow v Giles; Giles v Jeffrey and Curnow [2015] VSCA 70

  148. John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346

  149. John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28

  150. John Fairfax Publications Pty Ltd v Rivkin[2003] HCA 50

  151. John Fairfax v Punch (1980) 31 ALR 624

  152. Johnston v Aldridge [2018] SADC 68

  153. Jones v E Hulton & Co [1909] 2 KB 444

  154. Kasic v Australian Broadcasting Corporation[1964] VR 702

  155. Kelly v John Fairfax Publications Pty Ltd[2003] NSWSC 586

  156. Kelly v Levick [2016] QMC 11

  157. Kenny v Australian Broadcasting Corporation [2014] NSWSC 190

  158. Kings Cross Whisper Pty Ltd v Ray (1970) 72 SR (NSW) 339

  159. Knupffer v London Express Newspaper Ltd [1944] AC 116

  160. Korean Times Pty Ltd v Pak [2011] NSWCA 365

  161. Kostov v Nationwide News Pty Ltd (No.1) [2018] NSWSC 1822

  162. Kruse v Lindner (1978) 45 FLR 412

  163. Kunoth-Monks v Healy and Anor [2013] NTSC 74

  164. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520

  165. Larach v Urriola [2009] NSWDC 97

  166. Le Fanu v Malcomson (1848) 1 HLC 637

  167. Lee v Wilson (1934) 51 CLR 276

  168. Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999

  169. Lesses v Maras (No 2) [2017] SASCFC 137

  170. Levi v Milne (1827) 130 ER 743

  171. Lewincamp v ACP Magazines Limited [2008] ACTSC 69

  172. Lewis v Daily Telegraph Ltd [1964] AC 234

  173. Linsley v Domaille (aka James) [2009] VCC 554

  174. Luke v Richardson [2014] WADC 27

  175. Machado & Anor v Underwood & Anor (No 2) [2016] SASCFC 123

  176. Manefield v Association of Quality Child Care Centres of NSW Inc [2010] NSWSC 1420

  177. Marley's Transport Pty Ltd v West Australian Newspapers Ltd [2001] WASC 31

  178. Marshall v Megna; Megna v Tory; Tory v Megna [2013] NSWCA 30

  179. Martin v Bruce [2007] NSWDC 264

  180. May v Lane (1894) 64 LJ QB 236

  181. McDonald v North Queensland Newspaper Company Ltd [1997] 1 Qd R 62

  182. McMahon v John Fairfax Publications Pty Ltd (No 7) [2013] NSWSC 933

  183. Metropolitan Saloon Omnibus co v Hawkins (1859) 157 ER 769

  184. Mickle v Farley [2013] NSWDC 295

  185. Milne v Ell [2017] NSWSC 555

  186. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632

  187. Mirror Newspapers v Jools [1985] FCA 181

  188. Moran v Schwartz Publishing Pty Ltd (No 2) [2015] WASC 35

  189. Morgan v Lingen (1863) 8 LT 800

  190. Morgan v Odhams Press Ltd [1971] 1 WLR 1239

  191. Moroney v Zegers [2018] VSC 446

  192. Moumoutzakis v Carpino [2008] NSWDC 168

  193. Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467

  194. Mundey v Askin [1982] 2 NSWLR 586

  195. Mundine v Brown (No 6) [2010] NSWSC 1285

  196. Naudin-Dovey v Naudin & Ors [2013] QDC 119

  197. New South Wales Aboriginal Land Council v Jones (1998) 43 NSWLR 300

  198. Newman v Speigler & Anor [2008] QDC 266

  199. Nicholas Polias v Tobin Ryall [2014] NSWSC 1692

  200. Nixon v Slater & Gordon [2000] FCA 531

  201. North Coast Children's Home Inc. trading as Child & Adolescent Specialist Programs & Accommodation (CASPA) v Martin (No. 2) [2014] NSWDC 142

  202. Nowak v Putland [2011] QDC 259

  203. O'Donnell v Reichard [1975] VR 916

  204. Obermann v ACP Publishing Pty Limited [2001] NSWSC 1022

  205. Ollis v Jenman & Anor [2008] NSWSC 67

  206. P L & Anor v W J A [2008] QDC 34

  207. Pahuja v TCN Channel Nine Pty Ltd (No 3) [2018] NSWSC 893

  208. Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136

  209. Parmiter v Coupland and Another (1840) 151 ER 340

  210. Paschalidis v Yellow Corporation [2005] SASC 151

  211. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674

  212. Perkins v Floradale Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013)

  213. Petrov v Do [2012] NSWSC 1382

  214. Phillips v Robab Pty Limited [2014] NSWSC 1520

  215. Pinksterboer & Ors V Coumi & Ors [2018] SADC 25

  216. Pintegne v Woods [2010] NSWDC 44

  217. Pisani v Lawson (1839) 133 ER 35

  218. Piscioneri v Brisciani [2015] ACTSC 106

  219. Piscioneri v Whitaker [2017] ACTSC 174

  220. PK v BV (No 2) [2008] NSWDC 297

  221. Polias v Ryall [2014] NSWSC 1692

  222. Potts v Moran (1976) 16 SASR 284

  223. Prendergast v Roberts [2012] QSC 144

  224. Prince v Malouf [2014] NSWCA 12

  225. Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16

  226. Random House Australia Pty Ltd v Abbott [1999] FCA 1538

  227. Rastogi v Nolan [2010] NSWSC 735

  228. Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798

  229. Ray Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982

  230. Rayney v The State of Western Australia [No 9] [2017] WASC 367

  231. Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500

  232. Redeemer Baptist School Ltd v Glossop [2006] NSWSC 1201

  233. Reid v Dukic [2016] ACTSC 344

  234. Restifa v Pallotta [2009] NSWSC 958

  235. Ritson v Burns [2014] NSWSC 272

  236. RJ v JC [2008] NSWDC 217

  237. Roach v Garvan (or Hall) (1742) 26 ER 683

  238. Robertson v John Fairfax Publications Pty Ltd (2003) 58 NSWLR 246

  239. Rogers v Nationwide News Pty Limited [2003] HCA 52

  240. Rothe v Scott (No. 4) [2016] NSWDC 160

  241. Royal Society for the Prevention of Cruelty to Animals (NSW) v Davies [2011] NSWSC 1445

  242. Ryan v Premachandran [2009] NSWSC 1186

  243. Sadgrove v Hole [1901] 2 KB 1

  244. Scali v John Fairfax Group Pty Ltd (Unreported, Supreme Court of NSW, Levine J, 15 April 1993)

  245. Scali v John Fairfax Group Pty Ltd(Unreported, Supreme Court of NSW, Levine J, 15 July 1993)

  246. Scali v Scali [2015] SADC 172

  247. Shandil v Sharma [2010] NSWDC 273

  248. Sheales v The Age & Ors [2017] VSC 380

  249. Sierocki & Anor v Klerck & Ors (No 2) [2015] QSC 92

  250. Sim v Stretch [1936] 2 All ER 1237

  251. Simeone & Anor v Walker & Ors [2009] SASC 201

  252. Slatyer v Daily Telephraph Co Ltd (1908) 6 CLR 1

  253. Smith v Dahlenburg [2008] VSC 557

  254. Smith v Mather (Queensland District Court, Clare SC DCJ, 31 October 2013)

  255. Smith v Stevens [2018] WASC 95

  256. South Hetton Coal Co Ltd v North-Eastern News Ltd [1894] 1 QB 133

  257. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348

  258. Stevens v Boyle [2012] SASC 232

  259. Stevens v Mayberry [2012] SASC 220

  260. Stokes v Ragless [2017] SASC 159

  261. Stone v Moore [2016] SASCFC 50

  262. Sungravure Pty Ltd V Middle East Airlines Airliban SAL (1975) 134 CLR 1

  263. Tabbaa v Nine Network Pty Ltd (No.10) [2018] NSWSC 468

  264. Takhar v Sroa [2017] SADC 110

  265. Tassone v Kirkham [2014] SADC 134

  266. Thornton [2010] EWHC 1414 (QB)

  267. Todd v Swan Television & Radio Pty Ltd (2001) 25 WAR 284

  268. Tolley v JS Fry Co Sons Ltd [1931) AC 333

  269. Tournier V. National Provincial and Union Bank of England [1924] 1 KB 461

  270. Trenham v Platinum Traders Pty Ltd & Anor [2012] QDC 347

  271. Trkulja v Google Inc LLC (No 5) [2012] VSC 533

  272. Trkulja v Yahoo! Inc LLC [2012] VSC 88

  273. Tropeano v Lauro [2010] SADC 113

  274. Tucker v Echo Publication Pty Ltd & Anor [2005] NSWSC 865

  275. Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69

  276. Universal Communication Network Inc v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1

  277. Van Ingen v Mail & Express Publishing Co(1898) 50 NE Rep 979

  278. Villers v Monsley (1769) 2 Wils 403

  279. Visscher v Maritime Union of Australia (No 6) [2014] NSWSC 350

  280. Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1

  281. Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201

  282. Weatherup v Nationwide News Pty Ltd [2016] QSC 266

  283. Webster v Coles Myer Limited; Thompson v Coles Myer Limited [2009] NSWDC 4

  284. Wild v John Fairfax Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 8 August 1997, unreported)

  285. Winn v Goodwin [2008] VCC 1507

  286. Woolcott v Seeger [2010] WASC 19

  287. Y and Z v W [2007] NSWCA 329

  288. Younan v Nationwide News Pty Ltd [2013] NSWCA 335

  289. Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581

  290. Yuanjun Holdings Pty Ltd and Ors v Min Luo [2018] VMC 7

  291. Zaia v Eshow [2017] NSWSC 1540

  292. Zbyszko v New York American Inc (1930) 239 NYS 411

  293. Zoef v Nationwide News Pty Ltd [2016] NSWCA 283

  294. Zwambila v Wafawarova [2015] ACTSC 171

8.3. Textbooks and Books

  1. Balkin, R P and J L R Davis, Law of Torts (LexisNexis Butterworths, 5th Edition, 2013)

  2. Barker, Kit, Peter Cane, Mark Lunney and Francis Trindade, The Law of Torts in Australia (Oxford University Press, 5th Edition, 2012)

  3. Butler, Des and Sharon Rodrick, Australian Media Law (Thomson Reuters, 5th Edition, 2015)

  4. Collins, Matthew, Collins on Defamation (Oxford University Press, 2014) 

  5. Davies, Martin and Ian Malkin, Focus: Torts (LexisNexis Butterworths, 8th Edition, 2017)

  6. Foster, Neil, Torts Cases and Commentary Supplement: Defamation and Wrongful Interference with Goods (LexisNexis Butterworths, 2014)

  7. George, Patrick, Defamation Law in Australia (LexisNexis Butterworths, 3rd Edition, 2017)

  8. George, Patrick, Monica Allen, Gerard Basha, Stefanie Benson, Joseph Collins, James Mattson, Justine Munsie, Gabriella Rubagotti, Gavin Stuart and James Whiley, Social Media and the Law (LexisNexis Butterworths, 2nd Edition, 2016)

  9. Hitchens, Lesley, Media Law in Australia (Wolters Kluwer: Law & Business, 2014)

  10. Mendelson, Danuta, The New Law of Torts (Oxford University Press, 3rd Edition, 2014) 

  11. Mendelson, Danuta, The New Law of Torts: Case Book (Oxford University Press, 3rd Edition, 2014)

  12. Pearson, Mark and Mark Polden, The Journalist's Guide to Media Law: A Handbook for Communications in a Digital World (Allen & Unwin, 6th Edition, 2019)

  13. Richards, Bernadette and Melissa De Zwart, Tort Law Principles (Thomson Reuters, 2nd Edition, 2016)

  14. Rolph, David, Defamation Law (Thomson Reuters, 2016) 

  15. Rolph, David, Matt Vitins, Judith Bannister and Daniel Joyce, Media Law: Cases, Materials and Commentary (Oxford University Press, 2nd Edition, 2015)

  16. Sappideen, Caroline and Prue Vines (eds), Fleming′s The Law of Torts (Thomson Reuters, 10th Edition, 2011)

  17. Stickley, Amanda, Australian Torts Law (LexisNexis Butterworths, 4th Edition, 2016)

8.4. Journal Articles

  1. Baker, Roy, ‘Defamation and the Moral Community’ (2008) 13(1) Deakin Law Review 1.

  2. Gould, Kim, 'The Common Law Tests of Defamatory Meaning in the Wake of Radio 2UE Sydney v Chesterton' (2015) 41 Australian Bar Review 44.

8.5. Miscellaneous

  1. Gibson, J C, ‘From McLibel to e-Libel: Recent Issues and Recurrent Problems in Defamation Law’ (Speech, State Legal Convention, 30 March 2015).

  2. Tobin, T K, M G Sexton, LexisNexis, Australian Defamation Law and Practice, Vol 1.

  3. Murthy, Divya, ‘Trends in Digital Defamation: Defendants, Plaintiffs, Platforms’ (Report, The Centre for Media Transition, University of Technology Sydney, 2018).

9. About the Author

 

Rod Hollier is the founder of The Law Project. He has recently completed a Juris Doctor (law) at RMIT and has clerked for a boutique law firm since 2014. Rod is very serious about research and he strives to take legal knowledge to the next level.

Outside of the law, Rod is a recovering coffee addict, a gym junkie, and he reads textbooks just for fun.

You can find Rod on LinkedIn and Instagram.

 
 
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