Andersen v Nine Network Australia Pty Ltd; Andersen v Nationwide News Pty Ltd - [2023] NSWDC 358 - NSWDC 2023 case summary — Zoe

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Andersen v Nine Network Australia Pty Ltd; Andersen v Nationwide News Pty Ltd

[2023] NSWDC 358

District Court of NSW|2023-08-31|Before: Levine J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2023-08-31

Before

Levine J

Catchwords

[2002] Aust Torts Reports 81-675 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772
(2003) 77 ALJR 1657 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Lachaux v Independent Print Ltd
Professor A Mullis
G Busuttil

Source

Original judgment source is linked above.

Catchwords

[2002] Aust Torts Reports 81-675 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772(2003) 77 ALJR 1657 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Lachaux v Independent Print LtdProfessor A MullisG BusuttilA SpekerA Scott

Judgment (26 paragraphs)

[1]

v London Express Newspapers Ltd [1940] 3 All ER 31 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Lachaux v Independent Print Ltd; Lachaux v Evening Standard Ltd [2019] 4 All ER 485 Livingstone-Thomas v Associated Newspapers (1969) 90 WN (Pt 1) (NSW) 223 Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 Morgan v Odhams Press [1971] 1 WLR 1239 Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Pty Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95 Southwell v Bennett [2010] NSWSC 1372 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Stephens v Vass [2003] VSC 269 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Trkulja v Google Inc (2018) 263 CLR 149 Turner v Bulletin Newspaper Co Ltd (1974) 131 CLR 69 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Youssoupoff v Metro Goldwyn Meyer Pictures Ltd (1934) 50 TLR 581 Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 Texts Cited: R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell) D Lusty, "Is There A Common Law Privilege Against Spouse-Incrimination?" (2004) 27 UNSW Law Journal 2 Professor G Sawer, "Note: Morgan v Odhams Press [1971] 1 WLR 1239", (1971) 45 Australian Law Journal 680 C Sewell, "More serious harm than good? An empirical observation and analysis of the effects of the serious harm requirement in section 1(1) of the Defamation Act 2013" (2020) Journal of Media Law Category: Procedural rulings Parties: 2021/00304655: Hanna Andersen (Plaintiff) Nine Network Australia Pty Ltd (Defendant)

[8]

The evidence for the plaintiff

The plaintiff met Jesse Thompson in early 2012, when he was 14 years old and she was 15 years old. They started dating on 17 July 2012 and in December 2012 Jesse moved into the plaintiff's parents' home. Jesse "started attending school with the support of my parents" (affidavit of Hanna Andersen, paragraph 3) and they attended high school together for some time up until the birth of the first of their two children, on 8 January 2015; the second child was born on 17 June 2016.
The plaintiff and Jesse led a simple life at her parents' home. Neither of them had a driver's licence so they would walk everywhere together, often with their children. The places they visited were local destinations such as the grocery store. They shared a Facebook account for posting photographs, largely of themselves and their children, and had a modest 73 followers (both also had their own Facebook page; Jesse's profile picture showed him with the plaintiff).
On 3 July 2017, while sitting in the rear seat of a motor vehicle, Jesse was struck by bullets in a drive-by shooting. Aged only 19 years, he died immediately. This murder was widely reported and included a number of "false reports in various media publications at that time that reported that Jesse Thompson was an ICE drug dealer and that his murder was the result of a drug dealing dispute" (affidavit of Hanna Andersen, paragraph 13). The plaintiff says that "the most prominent" of these was a Channel 7 News report. Channel 7 is an entity unconnected with the defendants. Neither of the defendants in these proceedings published such allegations in 2017; according to a Nine journalist who contacted the plaintiff at the time (Annexure "B" to the affidavit of Hanna Andersen), Nine accurately reported that his death had nothing to do with drugs.
The three perpetrators were arrested very soon after the shooting. The arrest and the subsequent criminal proceedings concerning the offenders (who were all convicted) were regularly reported. The plaintiff was never named or referred to in these stories, including Jesse Thompson's funeral, which was reported, but people she contacted, and who contacted her, often indicated that they knew of her long relationship with Jesse. She received Facebook messages from friends and from journalists to this effect. Although these were largely sympathetic, some reacted to her poorly as a result, she considers, of the Channel 7 allegations that Jesse was an ice dealer.
Then on 26 October 2020, there was another murder. Corey Breceljnik is described as being "known to police" and a "self-proclaimed member of a Central Coast gang called 'BTD' or 'Brothers Till Death', which Nine claimed Jesse Thompson was also a member of. In the matter complained of, "friends" of both young men are described as taking "some comfort the men are now together" and one post is quoted as saying "Fly high my son and give Jesse a hug from me. At least, you are reunited".
The plaintiff was not referred to in the Nine publication or in any other media publication at the time. As is set out below, she relies upon affidavit material to demonstrate that she had conversations and social media exchanges following publication by Nine on 26 October 2020, which is the matter complained of in the Nine proceedings.
On 15 February 2021, Nationwide published the article "Central Coast: 20 Crimes that shocked the Central Coast: Part 1", which is the matter complained of in the Nationwide proceedings. The article starts with an embedded quote captioned "Three people arrested over drive-by shooting murder of Jesse Thompson in Wyong", referring to the arrests in July the previous year. The article that follows starts with the murder of Jesse Thompson and goes on to describe a number of murders and other crimes which were said to have shocked the Central Coast.

[11]

The plaintiff's affidavit

The first 22 paragraphs of the plaintiff's affidavit deal with events prior to October 2020. The defendants cannot be held liable for the consequences of publications other than their own: Dingle v Associated Newspapers Ltd [1962] 2 All ER 737; [1964] AC 371; Lachaux v Independent Print Ltd; Lachaux v Evening Standard Ltd [2019] 4 All ER 485 at [22]-[24], [83]. It should be noted that, in circumstances where a plaintiff points to some hostile remark or other adverse event in his life as evidence of harm to reputation caused by the publication complained of, and there are other possible causes of the remark or event, in the form of other publications to the same or similar effect, the Dingle rule has no bearing in determining causation: Economou v De Freitas [2016] EWHC 1218 (QB). If the purpose of inclusion is to demonstrate that the plaintiff was identified when similar publications were made by others, then it fails, because none of the incidents described indicate a belief of the kind encapsulated in the imputations. For example, the plaintiff refers to allegations that she and her family were "druggies" but there is no imputation to the effect that the plaintiff, by reason of the extrinsic facts, was imputed to be a drug user (as opposed to dealer).
The only two specific incidents after publication are a reference to a conversation with a colleague named Jason "around 2021" who said he had found out that the plaintiff had a relationship with Jesse Thompson. However, that had been the subject of wide media coverage for the previous four years. He did not refer to either matter complained of; that is the totality of their conversation. The other incident was a sympathetic email from a journalist. Neither of these refer to the matters complained of or to belief, by reason of extrinsic facts, in relation to any of the imputations. Neither mentions gangs.
The plaintiff makes the general comment that "I had many, many experiences" where people avoided her or made comments about her being a drug dealer or criminal (at paragraph 25) but this impossibly broad statement covers an unknown period of years and publications and I accordingly restricted its admissibility to her state of mind.
The plaintiff's first attempt at answering interrogatories on this topic elicited no new information. She did provide further detail in her second set of answers, the contents of which are set out below.

[15]

Should there be a separate determination of any question of law under UCPR r 28.2?

Mr Rasmussen opposes the hearing of any separate trial under r 28.2, even as to capacity. He gave six reasons for doing so.
First, the defendants had indicated in correspondence in January 2022 that they had considered bringing such an application but decided to defer it to trial. Mr Rasmussen said that it was now too late to do so, and unfair to the plaintiff. I am of the view, however, that it is preferable to conduct such an application once interrogatories have been administered, as this gives the plaintiff plenty of time to obtain the necessary evidence.
Mr Rasmussen next submitted that separate determination was inappropriate for proceedings where true innuendo was pleaded, pointing to the refusal of Hunt J in Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 ("Krahe") at 542 - 543 to do so.
There are three answers to this submission. First, in Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Pty Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd ("Plymouth Brethren") [2018] NSWCA 95 at [125]-[136], the Court sets out a compelling analysis to the effect that Hunt J's refusal to do so was based on an erroneous approach to appellate authority. Second, Hunt J did not state his views about separate trials where extrinsic evidence is pleaded as a blanket rule, but as a general one. Third, at the defendants' invitation (submissions, paragraph 14), I have determined the issues of law on the assumption that the plaintiff is able to establish all factual matters necessary to prove that the matters complained of were read by persons with knowledge of the extrinsic facts and who have set their evidence out at the highest, as the above findings establish, with the result that the plaintiff's claims of unfairness vanish.
That said, there have in fact been few separate trials as to identification under either the uniform legislation or its legislative predecessors. Those few include decisions as old as Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 and World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712. More recently, a separate hearing as to identification (albeit as a summary dismissal point, not as a separate question where evidence was led) took place in Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 ("Triguboff") and there has been a comprehensive review of such applications in Plymouth Brethren. In an appropriate case, an early ruling is of great importance to case management, particularly where a jury has been empanelled and interruptions to the trial should be avoided as much as possible. I have taken guidance from the approach of the Federal Court in Triguboff and the Court of Appeal in Plymouth Brethren and see a strong similarity with the issues in this case, not least because of the appellate observations concerning Hunt J's views in Krahe.
Mr Rasmussen next pointed to the observations as to the undesirability of separate determinations made by Harrison AsJ in El Chami v Mackie [2019] NSWSC 821 at [10], by Hallen J in Southwell v Bennett [2010] NSWSC 1372 at [15] and by Beech-Jones J in Crawley v Vero Insurance Ltd [2012] NSWSC 593 at [15], as well as ss 56-60 of the Civil Procedure Act 2005 (NSW) concerning the undesirability of split trials. He submitted that the so-called "special case" of defamation, where early rulings are regularly sought, should not be permitted, and that the principles espoused in these decisions should apply across the board to all civil litigation as opposed to allowing "carve outs". This should be the case in defamation even where these have been legislatively permitted (as is the case with the "serious harm" preliminary trial on serious injury) and I should adopt the course taken by the Federal Court.
The Federal Court has expressed reservations in the past about any and all interlocutory applications, starting with Rares J in Adeang v The Australian Broadcasting Corporation [2016] FCA 1200 at [22] and Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599 at [27]. This approach was followed by Wigney J in Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [26] and McElwaine J in Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726 at [73] and [74].
However, despite the opposition to early rulings expressed in the Federal Court, such rulings are increasingly common, as Bromwich J sets out in Triguboff at [16]-[21] and this is likely to become more common in the future. Rulings on imputations and other summary applications have long been made in State and Territory jurisdictions around Australia (see for example Stephens v Vass [2003] VSC 269 at [9]-[11]). In this regard, Australian defamation case management has become increasingly similar to that in place in England, where separate and early determination of issues such as imputations, proportionality, serious harm and identification are regularly employed as part of case management (in Alexander-Theodotu v Kounis [2019] EWHC 956 (QB) at [35], Warby J notes that imputation rulings are even more common than serious harm applications). The number of cases where such pre-hearing applications are made is readily apparent by examining just one source, namely Charles Sewell's analysis of judgments in 44 claims brought for serious harm rulings between 2013 and 2017: "More serious harm than good? An empirical observation and analysis of the effects of the serious harm requirement in section 1(1) of the Defamation Act 2013", (2020) Journal of Media Law DOI: 10.1080/177577632.2020.1776560); these applications are often made at the same time as imputation arguments, identification challenges (Goldsmith v Bissett-Powell [2022] EWHC 1591 (QB)) and proportionality rulings. The contribution made to Australian caselaw by these English judgments is of very great value. There is thus a great deal of precedent and guidance, in all courts and at all levels, for inferior courts to follow.
Mr Rasmussen next claimed that a summary application to a judge was unfair to a plaintiff who had now sought a jury trial and would be deprived of the chance to have a jury make the findings of fact on this issue. At the trial, the defendants' application would be to take the issue from the jury in any event. I see no unfairness in their doing this now rather than at the trial. If the defendants lose, the plaintiff will have her chance before a jury.
Mr Rasmussen's penultimate point was that one of the defendants had pleaded justification while the other had not, the inference being that an unfair and confusing ruling would arise. In fact, what this demonstrates is one of the flaws in Mr Rasmussen's extrinsic facts case, namely that it is irrelevant whether the imputations pleaded are true or not. The imputation that the plaintiff knew would be just as defamatory either way.
Mr Rasmussen's final argument was that he had not had enough time to gather all the evidence and that he would have been able to present a more compelling case at trial. These proceedings have completed the interlocutory processes and would soon be ready to take a trial date. The publications in question took place more than two years ago. The likelihood of more evidence being discovered is remote.
For the above reasons it is appropriate for there to be a separate trial under r 28.2. I note there is no objection to the form of the questions proposed by the defendants.

[17]

Extrinsic facts where a plaintiff is named

The fact that a person is named (or otherwise readily identifiable) as a relative or spouse of a criminal - even a notorious criminal - has been held not to be capable (without more) of conveying a defamatory imputation: Galea v Amalgamated Television Services Pty Ltd (Supreme Court (NSW), Levine J, 20 February 1998, unrep). Mr Galea, a respected broadcaster, was referred to in a trial report about one of his two criminal brothers. Levine J held that no defamatory act or condition could arise merely because of family association.
In Krahe, the publication described the wife and children of a corrupt police officer attending his funeral. The widow and adult children all brought proceedings for defamation pleading imputations similar to the present, based on the family relationship. Hunt J further narrowed the range of pleaded meanings arising from a family relationship with a criminal by opining that a statement which defames a person (whether living or dead) which also (indirectly by reason of family association) defames a family member, that family member may sue only in relation to the imputation which is conveyed concerning the plaintiff himself, not by reason of simply being a family member.
In both these cases, the plaintiffs were referred to and the imputations self-evidently (if the contentions were accepted) defamatory. That said, it is still good law that a person can be defamed without an allegation of misconduct actually being sheeted home to the plaintiff, as Levine J noted in Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 at [10], referring to Graham Charles Evans v John Fairfax Group Pty Ltd [1993] ACTSC 7, where Higgins J cited Youssoupoff v Metro Goldwyn Meyer Pictures Ltd (1934) 50 TLR 581 ("Youssoupoff") and Livingstone-Thomas v Associated Newspapers (1969) 90 WN (Pt 1) (NSW) 223 ("Livingstone-Thomas").
Mr Rasmussen relied on Youssoupoff, where a husband's evidence identified his wife. Princess Youssoupoff claimed to have been defamed when she was portrayed in a film (although with a different surname) as being seduced by Rasputin, whom her husband later murdered. Her husband was able to prove her identification by admitting in evidence that he had indeed murdered Rasputin, putting truth to this widely known fact. This meant that the wife showed in the film as being seduced by Rasputin was identifiable as the plaintiff, and no further identification evidence was necessary. This decision has little relevance except that a husband was able to provide identification evidence for his wife.
The other decision referred to by Higgins J, Livingstone-Thomas, where the plaintiff was not named in an article defamatory of his father, is a much closer analogy, and is discussed in more detail below.

[18]

Examples where the plaintiff is not named

Where the publication is not ex facie defamatory or does not refer to the plaintiff by name, the situation is as set out by Jordan CJ in Consolidated Trust Co Ltd v Browne at 89: "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."
In the present case, the defamatory nature of the imputations, if conveyed, would be evident. The issue is whether the plaintiff is identified by reason of the extrinsic facts pleaded. However, the mere fact that an unnamed family member claims to be identifiable does not mean that it is necessary to lead evidence of extrinsic facts, as was noted in Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [138]. If, for example, Jesse Thompson had been shot while sitting in the plaintiff's car outside the home in which they lived, that might have been evidence of the kind led in Zoef v Nationwide News Pty Ltd, where extrinsic facts were not, strictly speaking, necessary.
The difficulty is that all the plaintiff has to go on is her de facto relationship with the deceased. In this regard, the facts are very similar to those in Livingstone-Thomas. The defendant, a newspaper, reported that the plaintiff's father had resigned his position in the Health Department and become a voluntary patient in a mental hospital. There was no reference to the plaintiff, his son. The extrinsic facts pleaded were that the plaintiff was a member of his father's family and that it was "notorious" (at p 225) that insanity was heredity, which defamed him in his business as a banking employee. In the course of dismissing the appeal, the Court rejected the submission that it was notorious that insanity was hereditary, noting the trial judge had rejected the argument as "novel and anomalous" (at p 226).
One of the judgments referred to in Livingstone-Thomas was Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 338 - 339. This is one of the principal authorities relied upon by Mr Rasmussen. The facts were that the newspaper published a photograph of a married man accompanied by the following words: "Mr MC, the racehorse owner, and Miss X, whose engagement has been announced." Mrs MC alleged that the photograph and the accompanying words meant, and had been taken by friends of hers to mean, that Mr MC was a single man and she had not been married to him, but his mistress.
This is not a pleading of a notorious fact applicable to all women Mr MC was photographed with, but an obvious conflict between the description of Mr MC as a man photographed with a fiancée when in fact he was married to another woman where the validity of that marriage was undermined by this unwelcome claim. The same is the case in relation to Hough v London Express Newspapers Ltd [1940] 3 All ER 31, where the plaintiff was married to a boxer whose every match, according to the London Express, was watched by his "curlyheaded [sic] wife". Any doubt that this "curlyheaded" lady was the boxer's current wife was expelled by the following sentences, which described her provision of dinner for him every night. The plaintiff, who was not curlyheaded, sued. An appeal from the judgment failed, again because of the obvious inconsistency between the plaintiff being the legal wife and the curlyheaded woman identified as the wife in the publication.
Neither of these authorities are applicable to the facts of this case. Mr Rasmussen does not rely upon an obvious inconsistency in the description of the plaintiff, but upon what Clive Evatt KC, senior counsel for the plaintiff in Livingstone-Thomas, called a "notorious fact", which in that case was the asserted general community belief that insanity is hereditary. There certainly were people at that time who believed that insanity was hereditary ("Insanity runs in my family; it practically gallops", says the lead character in the 1944 film "Arsenic and Old Lace"), but that was not a basis for the universal application of such a belief. The defendant cannot be made liable for an imputation conveyed to a reader who erroneously believes in the existence of a particular extrinsic fact which, if it did exist, would support such an imputation: Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 301. "Notorious facts" cannot prove identification other than in very narrow circumstances in any event: Ferrier v Jones & Anor [2003] NSWSC 39 at [42]-[79].
For these reasons, the defendants argue that the plaintiff has not satisfied the two steps necessary, namely to provide the relevant evidence and to persuade the Court conformably with the relevant reasonable person test that the meanings are conveyed.

[20]

The first stage

The first stage is to establish that identification has occurred. The plaintiff has provided statements for herself and her witnesses as well as answering interrogatories and the litigation is at an advanced stage, so I am in the position of the tribunal of fact in terms of determining how ordinary sensible persons, having knowledge of the extrinsic facts, could understand the words complained of.
The defendants submit that on the evidence before the Court, there is no identification at all, let alone a reasonable one, in terms of the extrinsic facts pleaded. The defendants submit: 1. The majority of instances cited by the plaintiff about persons knowing she was Jesse Thompson's partner occurred in or after 2017, well before the matters complained of, in circumstances where for the most part, there is little or no evidence they read the matters complained of and still knew the plaintiff had been in a relationship with him in 2020 and 2021. I would add the observation that the imputations of the plaintiff knowingly starting a family with Jesse Thompson may need some chronological tie to the time of the plaintiff becoming pregnant with her first child in 2014. The sting of these imputations is that she must have known of his illegal and gang activities before starting a family. There is no evidence of any person making such an identification. 2. Only two of the communications identified in the plaintiff's affidavit post-date the publications (at paragraphs 23 and 24 of the affidavit) and these are insufficient. The exchange of messages with Jason does not identify what news reports of Jesse Thompson's death Jason had found on social media. There was a great deal online and it could have been that Jason saw, for example, the 2017 Seven News. More importantly, he does not connect the news story to any pleaded defamatory meaning about her. The same is even more the case with the inquiry from Mr Parrish, a journalist who had clearly read a lot of material online. He offers the chance to put her position as a victim. 3. The comments set out at paragraph 25 of the plaintiff's affidavit could have been made on the basis of a wide range of material in other publications going back to 2017 when the shooting occurred. 4. The plaintiff relies on Kristy Ross sending her a copy of the matters complained of. Ms Ross's message stated that Jesse Thompson was not an ice dealer, so she could not have believed that the plaintiff either knew or was involved in his activities. Sending a copy of this snippet and her comments is indicative of where Ms Ross stands on these issues: she does not believe them. I infer that she would have a similar view about the gang membership. 5. Similarly, Mr Andersen, writing to one of the defendants to warn about defamation consequences of being "100% incorrect", is silent about the making of any link between his daughter and any of the allegations in the matter complained of. It would be implausible for him to suspect his own daughter of the pleaded conduct when she and Jesse Thompson were living in his house at all relevant times. 6. The closest that the plaintiff gets to evidence of a person being able to identify the plaintiff in terms of the imputations pleaded is the affidavit of Casey Mossman, who was sufficiently concerned in 2017, when these allegations were first made in 2017 by another broadcaster, to seek an explanation which appears to have been whether what was said about Jesse Thompson was correct, and who did the same thing in relation to one (and probably both) of the matters complained of. However, not even her affidavit suggests that she considered the plaintiff was a drug dealer or turned a blind eye to Jesse Thompson's conduct. She was concerned that Jesse Thompson was a drug dealer connected to violence because he had been murdered. Ms Barnett also noted the evidence of Mitchell Lord, but he did not identify the source for his information, which could have come from anywhere over the previous years. 7. There is no evidence of the "fact" (notorious or otherwise) that the wives of criminals know what their husbands are up to and may well be involved themselves. As criminal trial news reports demonstrate, wives may be the last to know.
In response, Mr Rasmussen repeated his opposition to the bringing of an application for a separate trial under UCPR r 28.2 because of the inherent unfairness of determining issues of this kind without hearing the witnesses giving their evidence, and in circumstances where better evidence may become available at the trial. He stressed the importance of Ms Mossman's evidence, the wide range of persons who reacted adversely to the plaintiff in a number of ways and the importance of hearing these witnesses at trial to determine whether they should be believed.
The approach the court should take to a determination of the facts is set out in Morgan v Odhams Press. That was a summary application, but it refers to how a trial judge would approach such a ruling: "The next protection for the defendant is that at the end of the plaintiff's case the judge may be called on 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. The main question in this case is: how is he to make that decision? It is often said that because a question is for the judge to answer it must be a question of law. I have more than once stated my view that the meaning of words is not a question of law in the true sense, even in other departments of the law where a much stricter test of the meaning of words is adopted than in the law of libel. It is simply a question which our law reserves for the judge. The question of how words should be read in libel cases was discussed in Lewis v Daily Telegraph Ltd and I shall not repeat what was said there. We have to consider how 'ordinary sensible men' (per Lord Devlin ([1963] 2 All ER at 174, [1964] AC at 286)) would understand the words. So here the judge had to consider how ordinary sensible men, having the special knowledge proved, could understand the words complained of."
Ms Barnett submits that there has to be some evidence of a "link" or "bridge" and says that there simply is none, citing Triguboff, where Bromwich J stated at [82]: "An article about a company alone, and without more, is not an article about its owner, however notorious the fact of that ownership. More is required. The legal entities are separate unless there is something in the publication to bridge that vital and fundamental legal gap."
This passage was cited with approval by McCallum J in Hang v Tu [2018] NSWSC 1770 at [30], where her Honour observed that the problem was "even more acute" where the correct extrinsic facts had not been pleaded.
I share McCallum J's concerns here. The mere fact of being in a de facto relationship, however long, and having children, however many, is insufficient. There has to be some evidence of the kind led in Morgan v Odhams Press, namely that there were people who, by reason of the extrinsic facts, had imputations of the kind pleaded conveyed to them. That factual evidence is missing from the evidence presented by the plaintiff in this case.
Essentially, what Mr Rasmussen seeks to do is to rely upon an unpleaded extrinsic fact, namely that when a newspaper publishes an allegation that a person is a drug dealer or gang member, whether they refer to the person's spouse or not, it is a "notorious fact" (Livingstone-Thomas at 225 - 226) that the reader knowing that the plaintiff was his de facto will immediately assume that she would know about the criminal activity and even participate in it with him. Such an argument failed in Livingstone-Thomas and it should also fail here.
Not only is this notorious fact of suspicion of the wife/de facto unpleaded, but it is also, for the reasons set out below, not a conclusion that the reasonable person would come to.

[21]

The second stage

If I have erred in holding that there is no evidence of identification, the plaintiff must face the next difficulty, which is that even if she has such evidence to show to the court, that must be shown to be sufficient to persuade the reasonable person. The question then becomes whether a reasonable person would understand such a meaning from the extrinsic facts.
Although the majority of the House of Lords in Morgan v Odhams Press agreed that the test of what might be called "hidden identity" is the same for hidden meaning (namely what the ordinary sensible or "reasonable person" would understand by the words in the light of knowledge of the specific extrinsic facts), Lord Donovan stressed that the reasonable person must have come to a "reasonable conclusion": "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, Cassidy v Daily Mirror Newspapers Ltd and Hough v London Express Newspaper Ltd). Such witnesses can give their evidence generally, and the grounds on which they formed their opinion be left to be tested by cross-examination. The plaintiff must prove that the words of the article would convey a defamatory meaning concerning himself to a reasonable person possessed of knowledge of the extrinsic facts. This requirement postulates (as the plaintiff expressly accepted) not merely a reasonable person but also a reasonable conclusion. Mere conjecture is not enough (Capital & Counties Bank v Henty & Son, Hunt v Goodlake ((1873) 43 LJCP 54 at 56), Jones v Skelton ([1963] 3 All ER 952 at 958, [1963] 1 WLR 1362 at 1370) and Gatley on Libel and Slander 6th Edn, paras 117, 121, 122." (Emphasis added)
Lord Guest (albeit in dissent) suggested a more stringent criterion by saying that, in his view, "a somewhat more exacting test should be predicated where the question is one of identity" as compared with meaning and that the "ordinary reader must have rational grounds for his belief that the words refer to the plaintiff: "I have recounted the salient points in the witnesses' evidence in order to show that I have not failed to appreciate the plaintiff's case. There is no case in the books in which the precise point raised in the instant case has been considered. I have referred to cases such as Cassidy and Hough where the question was whether the words were capable, coupled with the extrinsic facts, of bearing a defamatory meaning and the test has been given as whether an ordinary reader would have understood the words to be defamatory. But here the question is not whether the words are defamatory. It is conceded that they are, if they refer to the plaintiff. The question is one purely of identity. 'Are the words capable of being understood to refer to the plaintiff?' In my view, a somewhat more exacting test should be predicated where the question is one of identity. It is not sufficient for the reader to say 'I wonder if the article refers to Johnny Morgan' nor is pure speculation sufficient. Nor is it sufficient that a reasonable person believes that the words refer to the plaintiff. The test is an objective one. The ordinary reader must be fair-minded and not avid for scandal. He must not be unduly suspicious. The ordinary reader must have rational grounds for his belief that the words refer to the plaintiff. In my view, this requirement is necessary for the purpose of preserving the freedom of speech and of preventing newspapers being further liable for torts which they quite unwittingly have committed."
As the Full Court noted in Ten Group Pty Ltd v Cornes (2012) 114 SASR 46; [2012] SASCFC 99 at [158], Morgan v Odhams Press is "an extreme example" of a permitted innuendo. The innuendo pleaded in these proceedings goes much further, in that it adds an inference neither in the particulars nor in the publication, namely that it is a truth widely or notoriously acknowledged that the wives or de facto spouses of a person accused of a crime must know about it and may even be participating.
The ordinary reasonable person must be taken to have some understanding of the nature of the relationship between husband and wife. David Lusty ("Is There A Common Law Privilege Against Spouse-Incrimination?" (2004) 27 UNSW Law Journal 2) sets out a history of how the civil and criminal law have accommodated such relationships over the centuries. Simply being married to a criminal and having his children, without more, is insufficient to establish imputations of the kind pleaded, for the reasons explained by Levine J in Galea (where the plaintiff had two criminal brothers) and by the Court of Appeal in Livingstone-Thomas (where the so-called extrinsic fact was merely an appeal to a popular belief). There must be conduct by one spouse capable of giving rise to an imputation against another, such as committing adultery (rendering the other spouse a cuckold) (Krahe at 541) or, as was the case in Hough and Cassidy, being photographed or described in a manner casting doubt on the legitimacy of the other spouse's marital status.
The plaintiff has not satisfied the test for establishing that the imputations were conveyed about the plaintiff to a reasonable person possessed of knowledge of the extrinsic facts. This requirement postulates not merely a reasonable person but also a reasonable conclusion. Neither has been satisfied here.

[22]

No key or pointer necessary

There is an additional issue which I note, namely that Mr Rasmussen particularly relied upon the following passage from the judgment of Lord Guest in Morgan v Odhams Press at [1175]: "The necessity for a 'key or pointer' in the publication itself referring to the plaintiff cannot be justified, if extrinsic evidence is admissible to connect the plaintiff with the words of the article. It is undoubted that extrinsic evidence is admissible to import a defamatory meaning to words otherwise innocent. Likewise extrinsic evidence is admissible to connect the plaintiff with the person referred to in the article. This is clearly shown by the cases of Cassidy v Daily Mirror Newspapers Ltd and Hough v London Express Newspaper Ltd. In Cassidy the newspaper published a picture of Mr Cassidy with Miss X with the caption 'Mr Cassidy the race horse owner and Miss X whose engagement has been announced'. Mrs Cassidy was not mentioned in the paper. But she, who was known as the lawful wife of Mr Cassidy, was held to have been libelled by the picture and caption, the innuendo being that Mrs Cassidy, if Mr Cassidy to be engaged must have been living in sin with Mrs Cassidy, could not be his wife. A similar situation occurred in Hough."
There may be some conflicting authority on this issue. In Triguboff at [37]-[42], Bromwich J stated that a 'link' between a corporation and an unnamed director must be shown for there to be identification, as merely being a director was not enough (citing Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; [2002] Aust Torts Reports 81-675 at [45]).
What is the difference between a 'key or pointer' and a 'link'? Bromwich J acknowledges Lord Reid's 'peg or pointer' reference (at [69]), but the difference is hard to spot. I have erred on the side of caution and accepted that the law is as set out in Morgan v Odhams, but the 'link' requirement, whether as a gloss or a complete rebutter, seems inconsistent.
By way of general observation, Mr Rasmussen took for granted that Morgan v Odhams was good law in Australia today. I am not sure that this is or has been the case. Even at the time the judgment was handed down, it received a mixed reception. Professor Geoffrey Sawer, in a despairing Note at (1971) 45 Australian Law Journal 680, stated that if the High Court of Australia accepted this decision as correct, remedial legislation would be necessary. (He did, however, agree that the 'key or pointer' issue had been correctly decided.)
Contrary to Professor Sawer's gloomy prognostications, the High Court has not endorsed the Morgan v Odhams Press extension of innuendo at all, let alone stated there was no need for a 'key or pointer'. The decision is certainly cited, but in relation to what amounts to "loose thinking", as occurred in World Hosts at [14]; see also Trkulja v Google Inc (2018) 263 CLR 149 at [32] fn [31] and in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at [25]. The closest the High Court ever came to considering the issue was in Turner v Bulletin Newspaper Co Ltd (1974) 131 CLR 69 at 73, where the Court noted the correctness of the court below in ordering a revised pleading. The first instance judge had rejected material that constituted an attempt to attribute a defamatory meaning or a reference to the plaintiff to the eight alleged libels, or some of them, where those libels did not, either expressly or by implication, convey any such meaning or contain any such reference, citing Morgan v Odhams Press among other cases, holding that this method of establishing a defamatory meaning or a reference to the plaintiff was not admissible.
Courts at appellate level have been similarly cautious. In Ten Group Pty Ltd v Cornes at [158], the Full Court described Morgan v Odhams Press as "an extreme example" adding, by way of explanation for this adjective, that "[t]o those few acquaintances only (out of the thousands, perhaps millions, of readers of the newspaper), the article meant that the plaintiff was a member of the dog-doping gang which had kidnapped Margo Murray and was therefore defamatory", a conclusion about which their Honours appear to have had some doubts.
Perhaps the answer lies in the observations of Hutley JA in Steele v Mirror Newspapers at 363, namely that "there is no justification in principle or history for distinguishing innuendoes specifying identity from other innuendoes". The flaw in the judgment is that the imputation that Johnny Morgan must be the kidnapper of the kennel girl because she was seen with him around the time of publication is itself an innuendo, in the same way that believing the wives and girlfriends of criminals must have known of their partner's criminality, or that insanity is hereditary, are not facts but themselves innuendos. The response of the Full Court in Ten Group Pty Ltd v Cornes is certainly suggestive of a need for caution concerning this decision. However, these are issues for courts of record, and not for determination in this application.

[23]

Capacity and Question 2

The principles concerning questions of capacity are not controversial (defendants' submissions, paragraph 17). No additional submissions were made by the defendants as to the capacity of the imputations (apart from 8(f) and (g)) if the plaintiff can succeed on question 1.
As is set out above, I have held that there is no identification on the facts, let alone a reasonable identification. In those circumstances, the answer to this question must also be "no".
If I have erred in these findings and the imputations pleaded fall to be considered in terms of capacity, there are three aspects of the imputations pleaded that warrant consideration. The first is whether what is conveyed, in both publications, is actual knowledge or reasonable suspicion (Mirror Newspapers Limited v Harrison). Even if the plaintiff is identifiable, the imputation should be one of reasonable suspicion as there is nothing in the publications or evidence capable of supporting imputations of actual knowledge.
The second and third relate to the pleading of imputations (f) and (g) in the Nationwide proceedings: 1. Imputation 8(f): The plaintiff was knowingly engaged in serious criminal activity with her partner Jesse Thompson. 2. Imputation 8(g): The plaintiff was knowingly engaged with dealing the illegal drug ice with her partner Jesse Thompson.
These imputations are similarly pleaded at the 'Chase 1' level of actual criminal conduct which, even if the plaintiff were successful in establishing identification, would not be permissible: Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 at [45]; see R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell) at [11.13] and Mirror Newspapers Limited v Harrison). The highest the charge could be put would be reasonable suspicion, even though the charges of guilt is squarely laid against Jesse Thompson.
All these imputations should still, even if I have erred in my findings on identification, be struck out for these reasons.
The third and final issue is that, if I have erred, imputations 8(f) and 8(g) need to be pleaded in the alternative to the remaining Nationwide imputations, as the imputations of knowing (but not participating) would need to be pleaded as fallback imputations to participating.

Andersen v Nine Network Australia Pty Ltd; Andersen v Nationwide News Pty Ltd

At a glance

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Judgment (26 paragraphs)

Legislation Cited (2)

Cases Cited (25)