CHANNEL SEVEN SYDNEY PTY LTD v PARRAS & ORS

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT SC 20149/00 FILE NUMBER(S) : LOWER COURT Simpson J JUDICIAL OFFICER :

COUNSEL : Appellant: R R Stitt QC/ M Lynch Respondent: B McClintock SC/ S A Kerr SOLICITORS : Appellant: Mallesons Stephen Jaques Respondent: Back Schwartz Vaughan CATCHWORDS : DEFAMATION - imputations - whether jury's findings on whether the imputations were conveyed were open - identification - plaintiffs not identified by name or title - link between publication and plaintiff - whether necessary to have knowledge of corporate plaintiff's actual name - business names - substance of identification - co-plaintiffs giving evidence of identification. (D). LEGISLATION CITED : Defamation Act 1974, s 7A Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Rep 80-138 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Barbaro v Amalgamated Television Services Pty Ltd (1985) 4 NSWLR 30 Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 Cross v Denley (1952) 52 SR(NSW) 112 Fullam v Newcastle Chronicle & Journal Limited [1977] 1 WLR 651 Godhard v James Inglis & Co Ltd (1905) 2 CLR 78 Henry v TVW Enterprises Ltd (1990) 3 WAR 474 CASES CITED: Hough v London Express Newspaper Ltd [1940] 2 KB 507 Knupffer v London Express Newspapers [1944] AC 116 Kruse v Lindner (1978) 45 FLR 412 Mann v Medical Centre Pty Ltd (1991) 105 FLR 419 McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Tesco Supermarkets Ltd v Nattras [1972] AC 153 Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 DECISION : 1. Appeal upheld in part.; 2. Set aside the determinations of the jury which held that the matter complained of conveyed imputation (a).; 3. Respondents to pay one third of the appellant's costs and to have a certificate under the Suitors' Fund Act 1951 if qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40306/2001 SC 20149/2000

MASON P HANDLEY JA IPP AJA

Monday 1 July 2002 CHANNEL SEVEN SYDNEY PTY LTD v Colin PARRAS & Ors JUDGMENT

Three plaintiffs sued Channel 7 for damages for defamation arising out of a news telecast in January 2000. The third plaintiff was a corporation conducting the business of a hotel and bar at Potts Point, and the other two plaintiffs were the directors and managers of the company. The telecast dealt with police raids on two nightclubs in Sydney in which it was claimed large quantities of cash and drugs were seized, the staff had involvement in illegal activities, and a bar operated by the third plaintiff was visually and orally identified. The corporate plaintiff operated one of the nightclubs. None of the plaintiffs were referred to by name or title in the telecast.

In a s7A Defamation Act hearing, the jury found five imputations were conveyed as against each plaintiff. Imputation (a) asserted that the plaintiffs were criminal drug dealers who supplied large quantities of the illegal drugs ecstasy and cocaine. The remaining four imputations ((b) - (e)) asserted various forms of recklessness or incompetency which enabled illicit drug dealings to take place and other adverse consequences. It was agreed that each of the imputations was defamatory. The only direct evidence led at trial that any viewer of the telecast was aware that the corporate plaintiff conducted the business mentioned in the news item came from the other two plaintiffs, directors of the corporate plaintiff.

On appeal, the defendant contested that the imputations were not conveyed and that the plaintiffs were not adequately identified by the telecast.

HELD per Mason P (Handley JA and Ipp AJA agreeing) allowing the appeal in part:

• As regards imputations (b) - (e), it was open to the jury to find that they were conveyed by the news telecast. Despite the central portion of the telecast dealing only with the police raid on the other nightclub not associated with the third plaintiff, the verbal and visual indicators linked the news story as a whole allowing the defamatory material to spill over to affect the messages received about the plaintiffs' bar.

• Imputation (a) was not capable of being conveyed as against any plaintiff. The telecast did not carry the further suggestion that the management (ie: the plaintiffs) was involved as suppliers of illegal drugs, with the news report only saying that "several staff" had been arrested. The ordinary reasonable viewer is not attributed with a working knowledge of criminal law.

• A telecast is not actionable in defamation unless it is shown to have been published "of and concerning" the plaintiff. It is necessary in a case where the plaintiff is not identified by name to show evidence of publication to at least one person who had knowledge of extrinsic facts that would provide the necessary identification. It is not enough that the plaintiff proves that someone who read or saw the publication linked it with the business of the plaintiff. The plaintiff must prove that the link was drawn between the publication and the plaintiff. Knupffer v London Express Newspapers [1944] AC 116, Morgan v Odhams Press Ltd [1971] 1 WLR 1239, Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86, and Cross v Denley (1952) 52 SR(NSW) 112 applied.

• It is sufficient to prove publication to persons who "would know who the owners were" and does not require knowledge of the plaintiff's actual (corporate) name. Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 considered.

• Direct evidence of extrinsic facts capable of providing the necessary identification of the plaintiff is not essential. Such satisfactory indirect examples are in cases where the plaintiff has a position of general notoriety, the plaintiff can give evidence of being contacted by people in response to what they read in a publication which did not refer to the plaintiff, talk amongst viewers of a broadcast that is indicative of the identification having been made, and in other ways. Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 approved.

• A corporate plaintiff may be defamed in the minds of the publication's recipients, and its business damaged, even though the recipients are unaware of the company's formal title. The substance of the identification is important, not the technicality. Strict identification by name is not necessary.

• The evidence about identification of the corporate plaintiff of persons who were directors of the plaintiff do not fall into a peculiar class of invalid testimony. The directors' evidence would have been sufficient to satisfy the requirement of identification alone. State Bank of NSW Ltd v Currabubula Holdings Pty Ltd [2001] NSWCA 47 distinguished.

1. Appeal upheld in part. 2. Set aside the determinations of the jury which held that the matter complained of conveyed imputation (a). 3. Respondents to pay one third of the appellant's costs and to have a certificate under the Suitors' Fund Act 1951 if qualified.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40306/2001 SC 20149/2000

MASON P HANDLEY JA IPP AJA

CHANNEL SEVEN SYDNEY PTY LTD v Colin PARRAS & ORS JUDGMENT 1 MASON P: The respondents (hereafter referred to as the plaintiffs) sued the appellant for damages for defamation arising out of a news telecast on Channel 7 on Saturday 29 January 2000. 2 The third plaintiff, Hotel Pursuits Pty Ltd sued as the person that conducted the business of the Piccadilly Hotel at Potts Point. The first and second plaintiffs sued as directors of the third plaintiff and as persons who conducted and managed its business. That business included the hotel's "Soho Bar". This was a well patronised establishment with 1000 customers even on a "quiet night" (Black 16). 3 In April 2001 there was a hearing pursuant to s7A of the Defamation Act 1974 before Simpson J and a jury of four. The jury answered questions which established that five identical imputations were conveyed of and concerning each of the three plaintiffs in the matter complained of. 4 An earlier interlocutory hearing before Levine J had determined that the telecast of was capable of carrying the pleaded imputations (see Parras & 2 Ors v Channel Seven Sydney Pty Ltd [2000] NSWSC 782). 5 There were essentially two issues fought at the hearing, namely whether the imputations were established; and whether the plaintiffs (who were not named in the telecast) were identified in accordance with relevant principles of defamation law. It had been agreed that each imputation was defamatory. 6 The transcript of the telecast is as follows: SOUND VISUAL OPENING SEQUENCE Tonight ten people arrested as Police crackdown on designer drugs in Sydney Nightclubs. Plastic bags containing pills and a quantity of cash. Another blow to Sydney's troubled power grid. Explosion rips through a substation. And Lindsay Davenport blasted Martina Hingis off the Court to claim her first Australian Open. With Chris Bath this is Seven nightly News. [Chris Bath speaking] Good evening, 10 people have been arrested after overnight raids on two Sydney nightclubs. Heavily armed Police seized a large quantity of drugs and cash. Chris Bath on screen It's alleged one of the clubs "The Underground Café" is a front for dealing designer drugs. Plastic bags containing pills and a quantity of cash. [David Murdoch speaking] SOUND VISUAL Three thousand ecstacy tablets, large quantities of speed and cocaine plus $75,000 in cash, the fruits of the three month long Police sting on one of Sydney's most notorious dance clubs. Plastic bags containing pills and a quantity of cash. Pictures of a nightclub and people dancing. Disguised as ravers undercover Police say they've been buying amphetamines across the bar of "The Underground Café" for the past four months. Pictures of a nightclub and people dancing. Police claim all of the café's staff were involved from the owner and Manager to the Security guard on the front door. Reporter at the front of the Underground Café. Seven people from the club now face charges of supplying large quantities of ecstacy and cocaine as well as numerous individuals supply charges. Reporter at the front of the Underground Café. Plastic bags containing pills and a quantity of cash. The club's licence is now also under review. Reporter at the front of the Underground Café. Police allege the Nighclub is just a front for the real business of dealing drugs. Trading there has been suspended for seventy-two hours while Police apply to the Licensing Court to have "The Underground Café" shut down for good. Tagged "Operation Planwell", Police also targeted the Soho Bar in Kings Cross arresting several staff, they're facing drugs and weapons charges. Front of the Soho Bar/Piccadilly Hotel. Pills in plastic bags and cash. David Murdoch Seven Nightly News.

7 It can be seen at once that the news item related to two Kings Cross nightclubs, "The Underground Café" which is an establishment having no connection with the plaintiffs and the "Soho Bar" which the evidence showed to have the connections with the plaintiffs that they had pleaded in the Statement of Claim. 8 As indicated, the jury's answers found that the matter complained of conveyed five imputations each of which was defamatory of each of the plaintiffs. They were: (a) The plaintiffs are criminal drug dealers who supplied large quantities of the illegal drugs ecstasy and cocaine. (b) The plaintiffs had managed the business of the Piccadilly Hotel and the Soho Bar in such a way as to deserve to be suspected on good grounds by the New South Wales Police of being drug dealers. (c) The plaintiffs have so recklessly managed the business of the Piccadilly Hotel and the Soho Bar that the Soho Bar was raided by police who arrested several staff members on drug and weapons charges. (d) The plaintiffs knowingly permitted the premises of the Soho Bar to be used by drug dealers to sell illegal drugs. (e) The plaintiffs have so incompetently managed the business of the Piccadilly Hotel and the Soho Bar that the Soho Bar was raided by police who arrested several staff members on drug and weapons charges.

9 This appeal is brought by leave. It poses two broad issues, namely (1) the telecast's capacity to convey the pleaded imputations and (2) whether there was evidence sufficient to establish identification of the plaintiffs.

The capacity of the telecast to convey the pleaded imputations 10 Levine J said this in relation to the defendant's application to strike out the pleaded imputations:

For the defendant the point is really quite short. The program is dealing with two nightclubs, the first is the "Underground Cafe" and the second is the "Soho Bar". It is argued that the Soho Bar was only the subject of remark in the last paragraph. In relation to the "Underground Café" it is conceded that the imputations would be capable of,[sic] the material published going beyond the bare requirement for the application of the principles in Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 not to permit the understanding of the broadcast to convey imputations of "guilt".

For the defendant it was submitted that the reference to the "Soho Bar", at the end of the program was such as to isolate it from all that precedes it and thus permit no more than imputations of suspicion on reasonable grounds.

These submissions cannot be sustained on a fair viewing of what the defendant telecast. The segment opens with a reference to ten people being arrested and subsequently explains that seven were at the "Underground Café". It is not an unreasonable inference to note that the balance were at the "Soho Bar". The program refers to "overnight raids at two Sydney nightclubs" by "heavily armed police" and the seizure, in general terms, of a large quantity of drugs and cash. There are visual scenes of plastic bags containing pills and large quantities of bank notes. The program at greater length in reference to the "Underground Café" is, as the defendant concedes, clearly capable, by reference to the words and particularly the images, of carrying imputations of guilt.

The structure, theme, words and images in the program, unarguably, are capable of conveying to the reasonable viewer that there is no difference between what was happening at the "Underground Café" and the "Soho Bar". Both were the targets of "Operation Planwell" and were the two Sydney nightclubs referred to in the introductory comments.

The telecast sued upon is a very good example of the impact of the medium and its capacity to convey (as was conceded in part by the defendant) imputations of the kind upon which the plaintiffs sue. The general principles have been reviewed by Hunt CJ at CL in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 and were earlier considered by the Court of Appeal in Rigby v John Fairfax Group Pty Limited (unreported, 1 February 1996; special leave to the High Court refused 13 September 1996).

This component of the defendant's application must fail.

It is also submitted in respect of imputation 6(a) that it was incapable of defaming the corporate plaintiff insofar as it describes it as a "criminal drug dealer". It was further argued that imputations (c) and (e) are incapable of being conveyed of any of the plaintiffs and are incapable of being defamatory of them. I have found that each is capable of being conveyed and reject the submission that of any relevant plaintiffs no one would think any the less by reason of the charge contained in each imputation. To persons knowing the facts enabling identification it will be a question of fact (if seriously in issue) for the jury to determine whether or not the material conveyed imputations of and concerning those plaintiffs. I am satisfied that it is clearly arguable that the ordinary reasonable viewer would understand, in an adverse way, that those connected with the proprietorship and management of the club, by the fact that servants/employees of the club had been arrested in the circumstances referred to in the program, were connected with such criminal activity.

11 As the matter was argued in this Court, the imputations fall into two broad classes. Imputation (a) asserts that the plaintiffs themselves were "criminal drug dealers who supplied large quantities of the illegal drugs ecstasy and cocaine". The respondents accepted that the telecast's capacity to convey this imputation depended essentially upon its capacity to convey to the ordinary reasonable viewer that the matter involving the principals of the Underground Café applied to the owner and managers of the Soho Bar. 12 Imputations (b) to (e) are in a different class in that they do not impute actual criminality to the plaintiffs. Rather, they assert various forms of reckless or incompetent management that enabled illicit drug dealings to take place and the other adverse consequences pleaded in the various imputations. 13 The parties adopted extreme positions in relation to the divisibility of the telecast in the distinction it drew between the two nightclubs. 14 The appellant submitted that the telecast predominantly deals with the Underground Café nightclub and refers exclusively to it in the central portion commencing "It's alleged one of the clubs" and ending "shut down for good". It was the Underground Café alone that was described as a club -

• where 3,000 ecstasy tablets, large quantities of speed and cocaine and $75,000 in cash were obtained;

• where police were buying amphetamines across the bar for the past four months;

• where all of the Underground Café staff were involved from the owner and manager to the security guard at the front desk;

• where seven people were arrested and were facing charges in relation to large quantities of ecstasy and cocaine: those people also faced numerous individual supply charges; 15 The telecast also reported that:-

• the Underground Café club licence was under review;

• the police had alleged the Underground Café was a front for dealing drugs which was its real business;

• trading at the Underground Café had been suspended;

• police were applying to shut the Underground Café down. 16 By contrast, so the submission went, the only reference to the Soho Bar was the concluding portion of the telecast which commenced with the words "Tagged 'Operation Planwell'". 17 The issue in this Court in relation to the imputations is not whether the jury was right or wrong, but whether it was open to them to find that the ordinary reasonable viewer would have understood the news segment in the defamatory senses pleaded (see Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164). That capacity issue must be judged in the context of a television broadcast in which words and images are melded together in a short, transient and arresting item (Marsden at 165-6). 18 In my view the ordinary reasonable viewer has the capacity to perceive that the central portion of the telecast dealt with the raid on the Underground Café. The pictures that accompanied that portion of the telecast further reinforced the perception that the subject matter of the central portion of the telecast was the Underground Café, its staff and its owner and manager. 19 Nevertheless, the central portion of the telecast cannot be quarantined as sharply as the appellant contended. The telecast was presented as a single news item and there were verbal and visual indicators linking it as a whole and enabling some of the material dealing with the Underground Café to spill over (in the perception of the ordinary reasonable viewer) so as to affect the messages received touching the Soho Bar, at least to some degree. 20 The telecast makes the linkage at the outset when, in the opening sequence, the speaker refers to "10 people arrested as Police crackdown on designer drugs in Sydney Nightclubs" which accompanies a picture of plastic bags containing pills and a quantity of cash. 21 There is further linkage in the introductory portion to the particular news item in which the presenter Chris Bath announced that 10 people have been arrested after overnight raids on two Sydney nightclubs. Heavily armed Police seized a large quantity of drugs and cash.

22 The words "Tagged 'Operation Planwell'" which introduced the final portion of the telecast would also have suggested that both nightclubs were the subject of the same police operation. More importantly, the picture of the pills in plastic bags and cash which followed the picture of the Soho Bar/Piccadilly Hotel near the end of the telecast would have given further reinforcement of the linkage of the material touching the two venues because the same picture was used as in the opening scene. 23 These general considerations are sufficient to dispose of the appellant's attack on imputations (b)-(e). I have really done no more than restate the reasons of Levine J with which I am in agreement. I would reject the appellant's submission that a juror's capacity to find imputations (b) - (c) depends upon the drawing of inference upon inference. The ordinary reasonable viewer would be entitled to think that competent hotel managers do not permit drug trafficking on their premises, at least where it is of such a level as to lead to a police raid and the arrest of several staff. 24 However, I differ from the learned primary judge as regards imputation (a). The matter is not easy and very much one of impression. But it strikes me as too long a bow to suggest that the telecast was capable of imputing that the plaintiffs themselves were criminal drug dealers who themselves supplied large quantities of the illegal drugs ecstasy and cocaine. To say (in effect) that the Soho Bar was a target of "Operation Planwell" and that three persons from it were arrested in drug raids - matters capable of being imputed - does not to my mind carry the further suggestion that "management" (ie the plaintiffs) was involved as suppliers. The distinction is further reinforced when one compares the references to "owner and manager" in relation to the Underground Café with the reference to "several staff" (by inference three in number) in relation to the Soho Bar. 25 It is unnecessary to discuss the limited circumstances in which a corporation might possibly be held criminally liable for intentional conduct such as supplying drugs. The matter is complicated by the fact that the hypothetical reasonable viewer is not to be attributed with a working knowledge of the criminal law stemming from cases such as Tesco Supermarkets Ltd v Nattras [1972] AC 153. Suffice it to say that the corporate owner is in an even stronger position than its senior managers as regards pointing to absence of material capable of establishing imputation (a). 26 Everyone, including the ordinary reader, knows the difference between incompetent supervision and criminal complicity. Sometimes an establishment will be so small, or the criminal activity so extensive, that the inference that management is personally involved may and should be drawn. But not on the present facts. 27 I would therefore set aside the determinations of the jury in relation to imputation (a) pleaded in par 6 of the statement of claim.

Was there evidence capable of identifying the plaintiffs? 28 The appellant next submits that there was no evidence sufficient to identify the plaintiffs. Accordingly, on this alternative ground, none of the imputations should have gone to the jury. 29 After the close of the evidence at trial, senior counsel for the defendants submitted that there was no evidence to identify the third plaintiff, Hotel Pursuits Pty Ltd. It was pointed out that the present case did not involve the defamation of every member of a composite class (cf Knupffer v London Express Newspapers [1944] AC 116 at 124). Simpson J rejected the submission and ruled that the questions concerning the imputations relating to the third plaintiff would go to the jury (Black 89). Shortly afterwards, the submission was broadened to include the non-corporate plaintiffs. It too was rejected (Black 90). Simpson J later gave reasons referable to the corporate plaintiff (Red 58) and I shall return to them. 30 The telecast is not actionable in defamation unless it is shown to have been published "of and concerning" the plaintiffs (Knupffer esp at 122-3). An application of this key principle is the proposition that, where matter complained of as defamatory asserts that one member of a group or class was responsible for certain conduct and where there is nothing in that matter which points to any particular member of that group or class as the one who was responsible, the matter itself is incapable of conveying any imputation of guilt in relation to each member of that group or class (McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485. See also Mann v Medical Centre Pty Ltd (1991) 105 FLR 419 (Higgins J), (1992) 38 FCR 400 (Federal Court, Full Court).) 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. This does not require proof of a "peg or pointer" in the publication itself (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243-4 per Lord Reid). 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). The leading authority is Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86. 33 These principles about identification have a particular impact in a claim of defamation based upon the disparagement of the goods or business of an unidentified owner, ie cases such as the present. The basal principle is that: It is of the essence of the tort of defamation that the person defamed be able to show that his reputation has suffered by reason of the publication complained of. Unless the publication points to some person as the person against whose reputation the aspersion in the publication is made with such particularity that a reader without additional knowledge, or with additional knowledge, can and does identify some particular person as the person whose reputation is the subject of the aspersion, then nobody is defamed. ( Kruse v Lindner (1978) 45 FLR 412 at 414 per Smithers J)

34 This means that where the owner of a business is not identified in the matter complained of, there must be evidence capable of showing publication to at least one person with knowledge of extrinsic facts providing the link or identification. 35 Kruse illustrates this. The plaintiff carried on business under the name of "Polymedia Car Stereo". The defendant published a newspaper advertisement in the following terms: Warning to the Public! Shop around before you buy at Polymedia Car Stereo, 57 Wollongong Street, Fishwick. The plaintiff established that he was the sole proprietor of the business "Polymedia Car Stereo". But no evidence was called which showed or tended to show that any person who had seen the advertisement believed or understood that the plaintiff was the person who owned that business. The trial judge's decision to dismiss the action was upheld on appeal to the Full Court of the Federal Court of Australia. 36 Smithers J stated the general principle in the passage (at 414) that I have already quoted. Applying this principle, his Honour said (at 414-5): In this case, if it had been shown that some person or persons knowing the plaintiff also knew that he was the proprietor of Polymedia Car Stereo then it might be said that the advertisement, although not referring to the [plaintiff] by name, was such as reasonably in the circumstances would lead that person or those persons to believe that the [plaintiff] was the person referred to in the advertisement and in respect of whom the warning was issued…. There can be no actual disparagement until it is shown that some reader of the publication knowing the plaintiff believed that it referred to the plaintiff…. No person who knew the [plaintiff] gave evidence and accordingly it was never shown that any person knew that the [plaintiff] was the proprietor of Polymedia Car Stereo. As a result there was no evidence that the [plaintiff] was the person against whom the warning in the advertisement was issued and accordingly no evidence of actual disparagement of the [plaintiff].

37 Nimmo J said (at 425) that the plaintiff's argument that all that was necessary to be shown was that the plaintiff was identical with the person who operated the business of Polymedia Car Stereo: … cuts right across the principle that a plaintiff in an action of this kind must prove that the words complained of expressly refer, or be understood by reasonable people to refer to him. The words in the advertisement do not expressly refer to the [plaintiff] and no witness or witnesses were called to testify that when they read them they understood them to refer to him. It is one thing to prove that words complained of are capable of referring to a particular person and another thing to prove that they in fact do refer or are understood by reasonable people to refer to that person. 38 Connor J said (at 427-8) that: … It is established law that if the matter complained of as defamatory does not refer to the plaintiff by name and the identity of the person defamed would be apparent only to persons who had knowledge of special circumstances, it is necessary to prove that it is published to a person or persons who had knowledge of those circumstances….

39 In Consolidated Trust, a pamphlet headed "Things I Hear" published defamatory information about "the new owners (of 57 Darlinghurst Road) who own Birtley Towers as well". The plaintiffs were related companies, one owning the Birtley Towers property, the other owning 57 Darlinghurst Road. The companies were non-suited in the absence of evidence that anyone who read the article took it to refer to the named companies. It was not enough that there were members of the public who knew of the plaintiffs' connection with the premises (because they may not have read the pamphlet). The Full Court dismissed a motion for a new trial. Jordan CJ (with whom Street J concurred) said (at 91): The position then is that the article is incapable of being regarded as defamatory of the plaintiffs except by persons who had knowledge of special circumstances, namely, that one of them owned one block of flats and the other another, and there is no evidence that it was published to anyone who possessed that knowledge.

40 In Cross v Denley (1952) 52 SR(NSW) 112 the plaintiff carried on a printing business in Auburn under the name of the "X-press Printery". Another printer (the defendant) was engaged by what Owen J described as "some member of a so-called 'Peace Movement'" to print a pamphlet attacking a motion picture called "The Red Danube". The pamphleteer alleged that the picture was made by warmongers for the purpose of inspiring hatred of Russia. The defendant falsely asserted in the pamphlets that they had been printed by "Express Print, Lidcombe". (Lidcombe and Auburn are adjoining suburbs.) The pamphlet was showered on the heads of moviegoers at the cinema where the movie was shown. It was in the height of the Cold War and some of the plaintiff's customers who knew of his business not unreasonably formed the conclusion that the plaintiff was a Communist sympathiser. 41 The plaintiff recovered a substantial verdict in defamation. However, the Full Court set it aside and entered a verdict for the defendant because there was no evidence of identification. 42 Owen J (with whose reasons on this matter Street CJ and Herron J agreed) said (at 115-6): But is was not enough for the plaintiff merely to show that the pamphlets were read by members of the public present at the theatre; it was necessary for him to prove also that the defamatory matter contained in the pamphlets was published "of and concerning him", and this he failed to do, because no evidence was forthcoming that any member of the audience who read the pamphlet connected the "Express Print, Auburn" with the plaintiff. It is not only necessary that the words published should convey defamatory meaning; they "must also convey a defamatory meaning of the plaintiff. If those who read or hear them, though understanding them in a defamatory meaning, do not identify the plaintiff as the person referred to, there is no publication" ( Gatley on Libel and Slander (2nd ed) p96 ). 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. The case in this respect is on all fours with Consolidated Trust Co Ltd v Browne and, so far as publication at the theatre is concerned, the plaintiff failed to prove an essential element necessary to establish the tort of defamation. 43 These cases illustrate an important distinction between the law of defamation and that of injurious falsehood. As Mason and Jacobs JJ explained it in Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638-40: Before the Defamation Act 1958 (NSW) altered the law of defamation in that State the plaintiff had to prove at common law that the defendant published to a third party a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him. The essence of the action in defamation was that the publication of defamatory matter operated as a disparagement of the plaintiff's reputation: see the comment of Dixon J in Lee v Wilson and Mackinnon (1934) 51 CLR 276 at 290, on the speeches in E Hulton & Co v Jones [1910] AC 20; [1908-10] All ER Rep 29. Consequently, malicious statements which injured a man's business or his goods but did not disparage his reputation were not actionable in defamation though they were actionable as injurious falsehoods ( South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 at 139; [1891-4] All ER Rep 548; Drummond-Jackson v British Medical Association [1970] 1 All ER 1094; 1 WLR 688 at 698). But a plaintiff whose reputation was disparaged by a defamatory statement could recover as damages any business loss sustained in consequence of the publication of the defamatory statement ( Ratcliffe v Evans [1892] 2 QB 524 at 529; [1891-4] All ER Rep 699; Calvent v Tomkie [1963] 1 WLR 1397; [1963] 3 All ER 610).

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 plaintiff. Jordan CJ in Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 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."

His Honour later said: "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 KB 444 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 SR (NSW) 526 at 537-9."

It was decided in that case that the plaintiffs, who sued on a report defaming the owners of two buildings without naming them, failed because their identity was not a matter of general notoriety and they omitted to prove that the report was published to persons who would know who the owners were. Jordan CJ's statement of the law was followed and applied in Cross v Denely (1952) 52 SR (NSW) 112 and more recently in Kruse v Lindner (1978) 19 ALR 85.

44 The Defamation Act 1958 changed this and relevantly equated injurious falsehood and defamation. But the 1958 Act was repealed and the Defamation Act 1974 effectively reinstated the common law position as discussed by Mason and Jacobs JJ. 45 Consolidated Trust, Cross and Kruse illustrate an important distinction in relation to cases where the plaintiff carries on a business otherwise than under his, her or its name. If the matter complained of does not refer to the plaintiff by name, it is not enough that the plaintiff proves that someone who read or saw it linked the publication and the business. The plaintiff must prove that the link was drawn between the publication and the plaintiff. 46 Does this mean that the viewer or reader must know the plaintiff's name? In my opinion, no. It is sufficient to prove publication to persons who, in the words of Mason and Jacobs JJ in Mirror Newspapers "would know who the owners were". This requires identification of ownership and the plaintiff, but does not require knowledge of the plaintiff's name. 47 In the reasons of Simpson J which are set out below the example is given of a statement "The man who lives in that house is a paedophile" made of a reclusive person whose name was not even known to people living in his street. Would the evidence of a neighbour who heard that remark and realised that it referred to the plaintiff prove identification? I think so. It would not matter that the man whom he now thought less of remained the nameless occupant of No X, Smith Street. 48 This hypothetical situation falls within the principle illustrated by Owen J in Cross. Owen J recognised that identification of an unnamed person by a small percentage of the community would suffice, provided "some one or more of those to whom the pamphlet was published had that special knowledge". The "special knowledge" required in these circumstances was not knowledge of the plaintiff's name, but of the plaintiff's identity with the matter complained of. In Cross it would have been enough if a witness happened to know that the plaintiff was the printer who used the imprint "X-press Printery". 49 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. 50 These principles can be illustrated and (I think) their cogency demonstrated by two further examples. The first is where the identifying witness is slightly mistaken as to the plaintiff's name, believing him to be "Peter Smith" when in truth he is "Peter Smythe". This should make no difference. 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. Equally, the damages recoverable should not be confined to loss of esteem and consequential financial loss derived from the small group of insiders who know his family name. 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). The respondents contend that this requirement was satisfied. 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. 55 Jordan CJ's Prime Minister example in the passage from Consolidated Trust (at 91) that is part of the wider passage in Mirror Newspapers quoted above is a situation where extrinsic facts identifying the plaintiff are well known in the area of publication and where the Court is in a position to take what is in effect judicial notice of this fact (see also Godhard v James Inglis & Co Ltd (1905) 2 CLR 78 at 92, Fullam v Newcastle Chronicle & Journal Limited [1977] 1 WLR 651 at 659, Barbaro v Amalgamated Television Services Pty Ltd (1985) 4 NSWLR 30 at 54. Cf also Jordan CJ's reference in Consolidated Trust (at 91) to "evidence to suggest that the identity of the owners of the buildings in question was a matter of such general notoriety that it could fairly be presumed that anybody to whose notice the article came would know who it was that was referred to as the owner" .) 56 The present case does not fall into such a category of general notoriety. 57 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). 58 Identification may be established in other ways (see Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Rep ¶80-138). 59 The appellant submitted that Simpson J erred in allowing any of the imputations to go to the jury. It submitted that there was no evidence capable of satisfying the jury that persons with particular knowledge of the plaintiffs believed the article referred to them (cf Steele at 373D per Samuels JA). 60 As regards the first and second plaintiffs, Mr Parras and Mr Lazarus, the appellant submitted that the matter complained of did not suggest that all staff or all managers employed in the Soho Bar were guilty of the conduct imputed (contrast what was said of "all of the café's staff…from the owner and manager to the security guard on the front door", in relation to the Underground Café). The evidence showed that the staff of the Soho Bar was approximately 50 and that there were five managers (Black 56, 64). Nothing pointed to any employee or manager in particular. The two personal plaintiffs were thus said to be in the same situation as the unsuccessful plaintiff in McCormick. 61 This submission effectively repeated that which had been put to the trial judge and rejected, without statement of reasons (Black 89, 90). 62 As regards the corporate plaintiff, Hotel Pursuits Pty Ltd, the only direct evidence led at trial that any viewer of the telecast was aware that the corporation of this name conducted the business of the Soho Bar came from the first and second plaintiffs. The appellant submitted that this did not satisfy the law's requirements, because the two personal plaintiffs were directors of the third plaintiff. It relied upon the principle that a defamatory communication to the senior management of a corporation does not amount to publication to a third party (State Bank of New South Wales Ltd v Currabubula Holdings Pty Ltd (2001) 51 NSWLR 399 ("Currabubula")). 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: 5. The only evidence as to the involvement of Hotel Pursuits was given by Mr Parras and Mr Lazarus. The only evidence that any recipient of the publication identified Hotel Pursuits as an entity involved in the conduct of the Soho Bar, and therefore as the subject matter of the matter complained of, came from Mr Parras and Mr Lazarus, although it may also be inferred that their wives (each of whom gave evidence, and each of whom was also a director) were aware of that fact and made the necessary connection. 6. At the conclusion of the evidence senior counsel for the defendant submitted that there was no "admissible or probative evidence" identifying Hotel Pursuits as the subject matter of the broadcast. He therefore submitted that no questions concerning publication or imputations should go to the jury in respect of Hotel Pursuits. This amounted to an application for a verdict by direction on the claim by Hotel Pursuits. 7. The defendant's submission was that, there being no evidence that any recipient of the matter complained of other than individuals who were directors of Hotel Pursuits had identified Hotel Pursuits as the subject of the broadcast, there was no evidence to go to the jury on identification of that company. As a jury was waiting, I ruled against the defendant's submission, reserving reasons. These are my reasons. 8. The principle upon which the submission was based was stated by the court of appeal in State Bank of NSW Ltd v Currabubula Holdings Pty Ltd [2001] NSWCA 47; unreported, 15 March 2001. There Giles JA, with whom Heydon JA and Ipp AJA agreed, held that where a defamatory communication is made to a company and received on its behalf in the ordinary course of business, it is communication only to the company and does not constitute publication ([129]). The principle extends to receipt of the communication by an employee on behalf of the company. 9. I am, of course, bound by that decision. However, it does not determine the present issue of identification. 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. 11. In this case, once there was evidence identifying the Soho Bar as the subject matter of the broadcast, there was, in my view, also sufficient evidence to identify any company involved in its management as included in the subject matter of the broadcast. 12. In any event, the principle stated in Currabubula is concerned with receipt by an employee, in the ordinary course of business, on behalf of the company. Here the directors did not receive the communication in the ordinary course of business; nor did they receive it on behalf of Hotel Pursuits. Their receipt of the publication was incidental to their role as directors. 13. Finally, I took the view that it was open to the jury to infer that the company was identified by recipients. Direct evidence was not essential. 14. For these reasons I allowed the questions relating to the Hotel Pursuits to go to the jury.

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]. 65 I do not perceive the judgment to turn upon this misapprehension. 66 I also agree with Simpson J's rejection of Currabubula as a relevant precedent. Currabubula involved a putatively defamatory bank statement showing the plaintiff company's account as "in liq". The evidence disclosed that these were sent to Currabubula's Tamworth office where they were seen by its managing director, financial controller and company secretary but by no other persons. This Court held that there was no publication to someone other than the company, with the result that defamation was not established. 67 Giles JA (with whose reasons Heydon JA and Ipp AJA agreed) said: 112 Currabubula could only act by natural persons, and in principle sending the Currabubula "in liq" bank statements to persons such as its managing director, financial controller, or company secretary was not communication to someone other than Currabubula. The natural persons relevantly were Currabubula, because it was their business to receive the bank statements.

After referring to earlier authorities, he continued: 125 It is well established that communication to the agent or employee of the person defamed may be publication where the person is a natural person: see for example Duke of Brunswick v Harmer ; Pullman v Walter Hill & Co Ltd; Rudd v Cameron; Jones v Brooks . But Currabubula is a company, and I do not think the cases to this effect can automatically be transposed to where the person defamed is a company. For reasons apparent from the preceding discussion, in accordance with principle I consider that a general statement as in Gatley on Libel and Slander is incorrect. Communication to someone who happens to be the employee of a company can be publication, but communication to a company by its employee is not publication. (citations omitted) … 129 I prefer the view that intra-company communications do not necessarily constitute publication for the purposes of the law of defamation, but in any event they may be distinguished from communications to a company received by its employee. I consider it open to hold that a communication to a company which, because the company can only act by natural persons, is received by someone on behalf of the company in the ordinary course of business, is communication only to the company and does not constitute publication. This is not confined to receipt of the communication by the company's managing director and alter ego, but includes receipt by an employee receiving the communication on behalf of the company. In my opinion it should be so held.

68 Currabubula addresses the issue of publication of defamatory matter. Publication to the plaintiff and none other is not publication for the law of defamation and Currabubula establishes that no third party is involved if a corporate employee receives the defamatory matter in the ordinary course of business. 69 In the present case the telecast was published abroad. Many viewers saw it. The question as to identification is different to that of publication, albeit that when damages come to be assessed they will have to take account of the extent and impact of publication to the limited group of persons who probably did identify the plaintiffs. 70 The capacity of the jury to embark upon the essential identification issue as regards each plaintiff depended upon there being some evidence capable of satisfying the jury that persons with particular knowledge of the plaintiff believed the article to refer to that plaintiff. The evidence of persons who were directors of the corporate plaintiff did not fall into a peculiar class of invalid testimony stemming from Currabubula or any other decision. 71 The question remains whether there was some evidence of identification as regards each plaintiff. 72 The plaintiff Mr Parras said that he saw the telecast on 29 January 2000 sitting at home in the company of his wife, his parents-in-law and his children. This evidence was corroborated by Mrs Parras. Mr Parras also gave evidence of conversations in the days and weeks that followed in which people enquired whether the hotel was still open for business (Black 23-4) or otherwise voiced concern to him about the matters that had been broadcast (Black 36-38). Mr Lazarus also watched the telecast in the presence of his wife, his in laws and his children (Black 50). Mrs Lazarus corroborated this evidence (Black 66-7). Mr Lazarus said that his in laws asked him "What the hell is going on?" (Black 50) and that numerous other people approached him in regards to what had happened in response to what they had seen in the telecast (Black 50-54). These included people who had booked functions at the hotel and who rang to enquire whether their function could proceed "because I have seen or heard a TV story to the effect that your hotel has been closed down" (Black 53). Numerous people, including liquor suppliers, staff and clientele contacted him "wanting to know if there was a drug bust, had we been closed down on the night in question?" (Black 53-4). 73 There was also evidence from outsiders. Mr Ioannidis gave evidence about a conversation with a third person, Ms Julia Lenahan to the effect that she had seen the telecast and, having learned that "Andrew [Lazarus] was 'in trouble' [she asked] did I know what was going on? (Black 72). Similar evidence was given by Mr Ioannidis about conversations with other third parties. 74 Mr Turnbull also gave evidence. He knew Mr Lazarus and Mr Parras through an earlier professional relationship. He had seen each of them at the Soho Bar and believed them to owning and running that bar (Black 78). Mr Turnbull watched the Channel 7 newscast and his thoughts turned to Mr Lazarus and Mr Parras when he saw the footage concerning the Soho Bar (Black 79). 75 This evidence provided ample material pointing to the identification of Mr Parras and Mr Lazarus in accordance with the principles that I have endeavoured to summarise. 76 There was much less direct evidence of identification touching Hotel Pursuits Pty Ltd. Mr Parras said that business cheques were sometimes signed "Hotel Pursuits" (Black 40) but he did not, I think, identify any payees as persons likely to have seen the telecast. Nevertheless, the evidence about customers with bookings contacting the managers with enquiries about whether the hotel was still trading was capable of establishing the requisite link between the matter complained of and the owner of the hotel. There was plenty of evidence that viewers of the program included patrons of the Soho Bar; and that what they saw led some to think that the Soho Bar had been closed down or might be closed down (see eg Mr Lazarus at Black 52-3; Mrs Lazarus at 66H-M). The Soho Bar was the business of the corporate plaintiff. This satisfied the law's requirement for identification as I have endeavoured to explain it. 77 There was also the evidence from the two personal plaintiffs and their wives. As indicated by Simpson J, the evidence was to the effect that those persons knew the link because they were directors of the company. Such knowledge was in fact a matter of inference as regards the wives, but (like Simpson J) it is an inference that I would draw. It would be an unusual director of a family company that did not know the name of the company and its major business. There was ample evidence to show that Mr and Mrs Parras and Mr and Mrs Lazarus were sufficiently involved in the affairs of the third plaintiff at the hotel to know that Hotel Pursuits Pty Ltd was the trading entity whose reputation was besmirched by the telecast. This alone would have been sufficient to satisfy the requirement of identification. 78 Since the appellant was successful in only a discrete part of the appeal it is appropriate in the circumstances that it should receive only part of its costs. I would not disturb the costs orders in the court below. 79 I therefore propose the following orders: 1. Appeal upheld in part. 2. Set aside the determinations of the jury which held that the matter complained of conveyed imputation (a). 3. Respondents to pay one third of the appellant's costs and to have a certificate under the Suitors' Fund Act 1951 if qualified. 80 HANDLEY JA: I agree with Mason P. 81 IPP AJA: I agree with Mason P. **********

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