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[2003] NSWSC 39
Supreme Court of NSW
2002-12-10
Kirby J, Television Services P, Language Publications P
Original judgment source is linked above.
The Application of these Principles 74 The defendants urge the same approach in this case. The plaintiff submitted, however, that Rogers could be distinguished. The extrinsic facts, said to be in the public domain, as a consequence of mass media coverage, were simple. Essentially, what was known was the association of Mr Ferrier as a liquidator or receiver with Ferrier Hodgson, a firm that bares his name. Assuming a listening audience of between 500,000 and 700,000, it could be inferred, according to the plaintiff, that some listeners must have known these facts. Knowing that, on the plaintiff's argument, the words of Mr Jones were capable of leading reasonable people to conclude that the material published referred to him. 75 The defendants responded to that submission in a number of ways. First, they denied that there was an exception, in cases concerning the mass media. Scarman LJ in Fullam spoke of the "possibility" of there being cases which fall outside the general rule. Secondly, if there was an exception, it was framed in terms of "the only reasonable inference" that certain readers must have knowledge of certain facts. In the present case that is entirely speculative. The particulars, according to the defendants, were incapable of supporting a case that the only reasonable inference was that some of the listeners to Mr Jones' programme must have known the facts specified. Thirdly, the articles identified as the basis for the plaintiff's notoriety, appearing in The Australian Financial Review (eight articles), The Daily Telegraph (one article). The Sydney Morning Herald (four articles) and The Sun Herald (one article), were unconnected with the radio audience of Mr Jones. There was no basis for inferring an overlap between the readership of these publications and the audience of that radio station. Fourthly, and in any event, the publications tendered, which were said to give rise to the widely known facts, did not in fact do so. They did not establish (in terms of para A(i)) that Mr Ferrier was the founding and senior partner of Ferrier Hodgson. They did not deal with, let alone establish, that Mr Ferrier exercised significant influence and control within the firm Ferrier Hodgson (Particular A(ii)). Nor did the publications establish that Mr Ferrier was widely and regularly referred to as a "receiver" (as opposed to a "liquidator") (part of Particular A(iii)). 76 I accept that as a consequence of publicity through the mass media certain facts may become so widely known that they are capable of establishing an extrinsic fact, which, in turn, may be capable of linking an individual to a publication where he or she is not named. I also accept that this case is very different from, and much more simple (in terms of extrinsic facts) than, Rogers v Radio 2UE (supra). I further accept that the suggestion that Mr Ian Ferrier is a liquidator associated with a firm of liquidators, Ferrier Hodgson, is the sort of (simple) fact that may, through publicity, become widely known, and therefore fall within the exception. With some hesitation, I am inclined to the view that the publicity relied upon is not such as to be capable of giving that fact the sort of notoriety that may bring into operation the exception. There is no evidence which in any way links the publications relied upon with the listening audience of Radio 2UE, apart from their association with Sydney. There is no evidence of the composition of Mr Jones' listening audience, in terms of occupation, which may support an inference of knowledge concerning business affairs. 77 Further, the extrinsic facts provided in the particulars of identification go beyond the simple assertion that Mr Ian Ferrier was a liquidator associated with Ferrier Hodgson. They include the suggestion that he was the senior and founding partner, and that he exercised significant influence and control within that firm. I do not believe, based upon the articles identified, that those facts emerge or had sufficient notoriety, such that it could be said that some of the listeners must have had knowledge of them, which could have been used as a basis for identification. 78 I do not believe, therefore, that paragraph B of the particulars of identification, even were it amended, is available on the material tendered. Paragraph A is linked to paragraph B. It sets out the extrinsic facts said to be widely known to listeners. It has no relevance to paragraph C (relating to Mr Baker) where the extrinsic facts known to Mr Baker are set out. I therefore strike out paragraphs A and B of the particulars of identification where they accompany paragraphs 6, 8, 12 and 14 of the Second Further Amended Statement of Claim. 79 I believe it appropriate, nonetheless, to give the plaintiff leave (should he wish to avail himself of it) to refine the extrinsic facts and supplement the material said to make such facts sufficiently widely known to be capable of identifying Mr Ferrier.
Matters of Form 80 There remain a number of complaints by the defendants concerning the form of the particulars of identification. Objection is taken to the form of the extrinsic fact, said to be known to Mr Baker, appearing in paragraph C(ii), which, for convenience, I repeat: "C(ii) knew that the plaintiff, at the time of publication, exercised significant influence and control within the firm Ferrier Hodgson; " 81 It is suggested that, as a particular, it is vague to the point of being meaningless. Significant by what standard? What kind of influence? What is meant by control? However, I regard the particular as adequate. Without knowing the precise partnership arrangements, and even assuming all partners had an equal vote, nonetheless, certain figures may exercise a commanding influence within a group. An example from another era would be Sir Norman Cowper of Allen Allen and Hemsley, solicitors. There are many other illustrations. The age of the person, their seniority, their expertise, their personality, their public profile, and other matters, may each contribute to their stature within the group. However, these are matters of evidence. The concept is plain enough. Having said that, insofar as the plaintiff intends to prove this aspect through the tender of documents known to Mr Baker, those documents should be furnished to the defendants at least seven days before the s7A hearing. 82 In addition, complaint is made about paragraph C(iii), which also relates to Mr Baker and is in these terms: "C(iii) knew that the plaintiff is and was at the time of publication regularly and widely referred to in the media as a receiver and liquidator of the firm Ferrier Hodgson." 83 The defendants object that publications after 12 or 13 March 1997 are irrelevant. However, the plaintiff in fact has identified the publications relied upon. All pre-date the first broadcast on 12 March 1997. The words in C(iii), "is and" can therefore be ignored (or deleted from the Statement of Claim, when amended). 84 The defendants further complain that paragraph C does not state that Mr Baker, having heard the broadcasts, and knowing the extrinsic facts, identified the plaintiff. However, that is the clear implication, which was reaffirmed by Mr Tobin in argument. Although the matter is not in doubt, when the Statement of Claim is amended, that assertion should be included. 85 Turning to paragraph D, complaint is made about each subparagraph. Again it is convenient to reproduce the particular in order to understand the defendants' complaint, using paragraph 6D(i) as an illustration. It is in these terms: "6D(i) The plaintiff contends that the publication was to one or more persons who heard the plaintiff's name used by the first defendant during the first broadcast which commenced at or about 5.36 am on 12 March 1997 and thereby identified the plaintiff as being referred to in the second broadcast which commenced at or about 6.14 am. The plaintiff is unable to designate by name the person or persons who were thereby able to identify the plaintiff." 86 The defendants complain that there is no statement of the extrinsic fact or facts relied upon, and no specification of the class of persons who made the identification (as required by Pt67 r12(1)(d)). I should have thought the class was obvious enough. I assume the conjunction case concerns those persons who formed part of Mr Jones' audience who listened to him more or less regularly each day at certain times (cf Simpson J in Broome v Richardson & Anor (supra) para 38). However, I agree the class should be specified. Further, the request for extrinsic facts known to each member of that class, I take to be a request for the facts which would have emerged for a listener to one programme, where Mr Ferrier was named, which may have enabled that listener to identify Mr Ferrier in a later (or earlier) segment, where he was not named. That seems to me a reasonable request since segments differ one from another. The information available to listeners varied, depending upon the particular conjunction which is relied upon. 87 Hence, the plaintiff should provide the following in respect of paragraph D(i): (i) A specification of the class, or classes relied upon in respect of paragraphs 6D(i), 8D(i), 12D(i) and 14D(i). (ii) In respect of each class, in each paragraph, the plaintiff should specify the facts known to members of that class which would have enabled them to make the identification of the plaintiff. 88 Moving finally to paragraph D(ii) of the particulars of identification, the defendants make a number of complaints. It is unnecessary to set out that paragraph in order to deal with the defendants' argument (supra para 35). The plaintiff relies upon the size of the listening audience as part of the conjunction case. The paragraph specifies that audience at 492,000 listeners according to the ratings given by A C Neilsen, or 750,000 claimed by the first defendant. The defendants object, first, that Mr Jones did not in fact assert that his audience was 750,000. That, however, is not a valid objection. The plaintiff is providing particulars, setting out the case he intends to prove. He may or may not succeed. However, Mr Jones does, as the plaintiff points out, arguably allude to a listening audience of 750,000 in Schedule A, para 17. 89 Secondly, it is alleged that the particulars should state the facts, not the evidence. No doubt that is true. However, the plaintiff has helpfully provided the source for his assertion of fact. It appears to me their particulars are adequate. The relevant assertion in each case is the size of the listening audience. I see no substance in the defendants' complaints about paragraph D(ii).
The plaintiff has leave to amend imputations 4(b), 8(b), 10(b), 12(b) and 14(b).
Imputation 8(c) is struck out. The plaintiff has leave to replead.
The plaintiff has leave to amend paragraph 7 to add Segment [D] (7.50 am).
Paragraphs A and B of the particulars of identification accompanying paragraphs 6, 8, 12 and 14 are struck out.
The plaintiff has leave to refine the extrinsic facts and supplement the publications relied upon and, upon that basis, add to the particulars of identification if so advised.
The plaintiff should, not later than 7 days before any s7A hearing, serve upon the defendants any documents said to be known to Mr Baker upon the basis of which he believed particular C(ii) in the particulars of identification.
Paragraph C(ii) should be amended to delete the words "is and". Paragraph C should be amended to include the assertion that Mr Baker identified the plaintiff.
In respect of paragraph D(ii) in the particulars of identification, the plaintiff should provide the following: (i) A specification of the class, or classes relied upon in respect of paragraphs 6D(i), 8D(i), 12D(i) and 14D(i). (ii) In respect of each class, in each paragraph, the plaintiff should specify the facts known to members of that class which would have enabled them to make the identification of the plaintiff.
On the question of costs, the defendants have succeeded on some issues and failed on others. Their successes probably exceed their failures. However, I am inclined to think that the appropriate order is each party pay their own costs.
Last Modified: 02/21/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Ferrier
Jones & Anor
CITATION : Ferrier v Jones & Anor [2003] NSWSC 39 HEARING DATE(S) : 10 December 2002 JUDGMENT DATE : 21 February 2003
CATCHWORDS : DEFAMATION - imputations - capacity - identification - radio programme in segments - named in some, not others - notorious facts - matters known to public through publicity Ferrier v Jones [2001] NSWSC 738 Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165 Consolidated Trust Co Ltd v Browne (1949) 49 SR (NSW) 86 Burrows v Knightley (1987) 10 NSWLR 651 Rogers v 2UE Sydney Pty Limited (unreported, 6.11.98) Steele v Mirror Newspapers Limited (1974) 2 NSWLR 348 CASES CITED : Barbaro v Amalgamated Television Services P/L (1985) 1 NSWLR 30 Broome v Richardson & Anor [2002] NSWSC 446 Grappelli & Anor v Derek Block (Holdings) Ltd & Anor [1981] 1 WLR 822 Baltinos v Foreign Language Publications P/L (1986) 6 NSWLR 85 David Syme & Co v Canavan (1918) 25 CLR 234 Knupffer v London Express Limited [1944] AC 116 Morgan v Odhams Press Limited (1971) 1 WLR 1239 Hall & Ors v Jones & Anor [2000] NSWSC 39 Fullam v Newcastle Chronicle and Journal Ltd & Anor [1977] 1 WLR 651 Ian Douglas Ferrier (Pl) PARTIES : Alan Jones (1 Def) Radio 2UE Sydney Pty Ltd (2 Def) FILE NUMBER(S) : SC 20226/97 COUNSEL : T K Tobin QC/R K Weaver (Pl) G O'L Reynolds SC/A Leopold (Defs) SOLICITORS : Watson Mangioni (Pl) Corrs Chambers Westgarth (Defs)
The Notoriety Case 43 It is instructive to restate the test in respect of identification, where the plaintiff is not named. Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234 said this: (at 238) "The plaintiff was not specifically named. The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him." (emphasis added) 44 That question gives rise to two issues, one of law and one of fact. Viscount Simon LC said this in Knupffer v London Express Limited [1944] AC 116: (at 121) "There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact - does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?" 45 Lord Morris in Morgan v Odhams Press Limited (1971) 1 WLR 1239 said much the same thing in these words: (at 1252) "The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plaintiff, then there would be nothing to be left to the jury." 46 Where the plaintiff is not named, how might the extrinsic facts be proved, in order to satisfy the Judge that they are capable of referring to the plaintiff? Is it necessary to call a witness? Can the plaintiff, instead, rely upon inference arising, for instance, from the tender of documents? 47 Jordan CJ in Consolidated Trust Co Ltd v Browne (supra) said this: (at 91) "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." 48 The Chief Justice added: (at 91) "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." 49 The defendants suggested that this was not an identification case at all. Rather, it was a case of "the natural and ordinary meaning of the words said in the light of notorious facts". Certainly, the words of Jordan CJ can be read as supporting that view. 50 However, in circumstances where the defamatory material does not name a person (including the Prime Minister), but refers to him by his office, or in some other way, I believe that there is an identification issue. There are, at this moment, five persons alive who occupied the office of Prime Minister. The context may make it clear that the author is referring to the incumbent, rather than one of his predecessors. In the particular case, however, there may be an issue as to precisely when the person held that office. That issue can be addressed by the tender of public documents, or by the Court taking judicial notice of that notorious historical fact. In such a case, the antecedent question of law - can the article or broadcast be regarded as capable of referring to the Prime Minister? - would obviously cause no difficulty to the plaintiff. 51 Ordinarily the requirements of identification are met by the plaintiff calling as witnesses acquaintances who heard the broadcast (or read the article), and who linked the plaintiff with the words used. However, it may be inferred from documents or other evidence that the words used are capable of referring to the plaintiff. In Barbaro v Amalgamated Television Services Pty Ltd (supra), a television programme dealt with the findings of the Royal Commission into the disappearance of Donald Mackay, the anti-drug campaigner. The report identified Dominic Sergi as a person who was directly or indirectly responsible for the murder of Mr Mackay. The plaintiff, Dominic Barbaro, was interviewed in the course of the programme. He was asked whether he was Dominic Sergi, and he said that he was (saying later that he was confused). Hunt J said this: (at 35) "As the plaintiff was not identified in the matter complained of by his own name (Dominic Barbaro), he was obliged to establish that persons saw the television programme who were able to identify him as the person shown, and thus the person said to be the Dominic Sergi named in the Royal Commission Report as one of the six men responsible, directly or indirectly, for the murder of Donald Mackay." 52 The programme was shown in a number of States. The plaintiff sought damages for the publication in each State. Witnesses from New South Wales and Victoria were called who saw the programme, and identified the plaintiff. Witnesses were not called from other States where the programme was transmitted, and in respect of which a claim was made. The defendants, in these circumstances, made a submission in the following terms: (at 36) "The defendant has submitted that, where a plaintiff is not identified by name and so relies upon knowledge of some extrinsic fact to establish publication, he must call at least one witness (in relation to each jurisdiction in which he alleges publication) who read (or saw) the matter complained of and who had knowledge of that extrinsic fact; a plaintiff is not, the defendant submitted, entitled to ask the jury simply to infer that such a person with that knowledge would have read (or seen) the matter complained of. It was argued that this necessarily followed from the decision of the Full Court in Consolidated Trust Co Ltd v Browne ." 53 His Honour added: (at 36) "The defendant conceded that, once a witness was called who gave evidence of reading (or seeing) the matter complained of with knowledge of the relevant extrinsic fact, the jury could infer that others would also have read (or seen) it with that knowledge. But it was, the defendant submitted, an inflexible rule that at least one witness must be called to prove publication where the plaintiff is not named in the matter complained of, and the plaintiff may not rely simply upon an inference that the matter complained of would have been published to a person with that knowledge. In the extempore judgment which I delivered during the course of the argument, I rejected that submission." 54 The extempore judgment of Hunt J included the following: (at 54) "The argument on behalf of Consolidated Trust Co Ltd in that case was that it was the owner of a building in which the tenants were said in the matter complained of to be required to comply with an offensive set of rules, and that it was open to the jury to infer that persons with knowledge of that extrinsic fact had read the defendant's newsletter in which the matter complained of was published. That argument was rejected (at 91; 9) not because the plaintiff could not prove such necessary facts by inference, but because the extrinsic fact relied upon was not of sufficient notoriety that it could fairly be presumed that anybody to whose notice the matter complained of came would know that the plaintiff was the owner of the building ." (emphasis added) 55 A comment in similar terms was made by Studdert J, in respect of the facts before him, in Hall & Ors v Jones & Anor [2000] NSWSC 39. That was also an action for defamation against Mr Alan Jones and Radio 2UE. There were four plaintiffs, each members of the National Rugby League Judiciary. The programme was critical of the judiciary's treatment of a particular player. Mr Hall, the first plaintiff, was named. The other three plaintiffs, each members of the judiciary, were not. The Statement of Claim provided the following particulars of identification in respect of those plaintiffs not named: (para 24) "(b) The second plaintiff is a member of the NRL judiciary panel, an ex-footballer and a former player for Newcastle (the Newcastle Rugby League Football Club). (c) The third plaintiff is a member of the NRL judiciary panel, an ex-footballer and a former player for Souths (the South Sydney Rugby League Football Club). (d) The fourth plaintiff is the third member of the NRL judiciary panel." 56 Further particulars were sought, and provided in these terms: (para 25) "'The NRL Judiciary consists of the second, third and fourth plaintiffs. That fact is a matter of common knowledge, as a consequence of numerous mass media publications since they were appointed. Each of the second, third and fourth defendants is a person of widespread fame in the community interested in rugby league - initially for their sporting achievements and later for their roles in the judiciary.' 31 January 2000: 'The identifying material on which the plaintiffs rely occurred in earlier mass media publications, including publications by the defendants. The number of persons to whom the plaintiffs were identified is too great for the plaintiffs to be able to provide a list of their names and addresses.'" 57 The defendants objected to the insufficiency of the particulars. At the hearing before Studdert J, the plaintiffs tendered an extract from The Australian Newspaper which named each member of the judiciary panel shortly after his appointment. Studdert J said this: (para 31) "It seems to me that the present case is far removed from the example considered by the Chief Justice in Browne . Having reflected upon the competing submissions, I have not been persuaded by argument that the knowledge necessary to link these plaintiffs with the broadcast would have been so widespread at the time as to render it unnecessary to call evidence of the type considered by Samuels JA in Steele's case in the passage to which I made earlier reference. Even if there was a widespread knowledge of the plaintiffs as former players, it would by no means follow that there was widespread knowledge that any one of them was a member of the NRL Judiciary panel at the relevant time, and the need for such awareness was critical to link the second, the third and the fourth plaintiffs to the subject matter of the publication of which complaint is made." (emphasis added) 58 His Honour ordered that the second, third and fourth plaintiffs provide particulars of identification as required by Pt67 r12(1)(d). He said this: (para 38) "In my opinion the defendants are entitled to particulars as to identification. The plaintiffs should give the names and addresses of some persons who recognised the unnamed plaintiffs and to whom the matter complained of was published. If it is the plaintiffs' case that there was a publication other than to persons who the plaintiffs are able to nominate by name and address, the plaintiffs should nominate such unnamed persons by description as a class, and in respect of this class the plaintiffs should specify the facts and matters that are relied upon in asserting that this class had knowledge of the relevant facts." 59 In the context of publication through the mass media, certain facts may become so widely known that they are capable of linking an individual to a publication, even where he or she is not named. That is the sort of case Scarman LJ appeared to have had in mind in Fullam v Newcastle Chronicle and Journal Ltd & Anor [1977] 1 WLR 651. The plaintiff in that case had been a Roman Catholic priest. In 1962 he gave up the priesthood and became a school teacher. He married in 1964 and his wife had a child in 1965. Some years later, in 1973, he was appointed the Deputy Head Master of a school. A local newspaper published an article saying that he was a former Roman Catholic priest who had left the parish very suddenly, and married. The plaintiff alleged a true innuendo arising from this article, that whilst he was a priest he had an association with a woman and became the father of her child. Lord Denning MR described that imputation in these terms: (at 654) "Now that imputation was very far-fetched. No one could possibly have derived it from the article itself. It would need someone with very special knowledge - and very limited knowledge - to draw any such imputation from the article." 60 The defendant moved to strike out that part of the Statement of Claim relating to the true innuendo, or alternatively, to secure an order for further particulars. Lord Denning stated (at 655) that, under the Rules, where a true innuendo (referred to as a "legal innuendo") was relied upon, the Statement of Claim must specify the particular person or persons to whom the material was published and the special circumstances known to that person or those persons. He added: (at 655) "... there is no exception in the case of a newspaper: because the words would not be so understood by the world at large; but only by the particular person or persons who know the special circumstances." 61 Scarman LJ approached the question somewhat differently. He identified the issue in these words: (at 657) "The point is a short one, but devoid of direct English authority. It is whether in an action for libel against a newspaper, where extrinsic facts are relied on to support a 'true' innuendo, a plaintiff must both plead that the extrinsic facts were known to some of the newspaper's readers, and give particulars of, i.e., identify in his pleading, the readers who, he alleges, knew the relevant facts." 62 Referring to the case of a true innuendo, arising only by reason of extrinsic circumstances, Scarman LJ stated the Rule in these terms: (at 657) "It is obvious that a material fact in such a cause of action is that the persons to whom the words were published knew the extrinsic facts. In principle, therefore, their knowledge, being a material fact, should be pleaded." 63 The issue was whether there was an exception to that Rule, where the publication was by a newspaper (at 658). The submission made on behalf of the plaintiff was summarised in these terms: (at 658) "Mr Hartley, for the respondent however submits that there are two features which put this case outside the general rule: first publication by newspaper; and, secondly, that the extrinsic facts relied on are within the public domain, being matters of public record and of common knowledge, one may infer, amongst those who are acquainted with the plaintiff." 64 Scarman LJ appeared to acknowledge that there could be such a case. He said this: (at 659) "There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts. For instance, the facts may be very well known in the area of the newspaper's distribution - in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper's readers must have been aware of the facts which are said to give rise to the innuendo." 65 His Lordship, however, rejected the plaintiff's contention on the facts. He agreed with Lord Denning that the imputations pleaded were far-fetched. 66 The issue was taken up in Grappelli & Anor v Derek Block (Holdings) Ltd & Anor (supra), where Dunn LJ said this: (at 830) "I would only add this, that I agree also with Scarman LJ that there may be cases which are exceptions to that rule, such as the cases that he refers to at p 659 of the report, where the publication is in a national newspaper with a very wide circulation, and the only reasonable inference is that some of the readers of that newspaper must have knowledge of the facts which are said to give rise to the innuendo." 67 Assume that, in the context of the recently concluded Australian Open Tennis Tournament, there had been a broadcast which did not refer to the players by name, but by reference to their rankings, either as the Number 1 player in the world, or the Number 2 player, etc. Because of the publicity which preceded the Tournament, many, if not most, Australians would have been capable of immediately attaching a name to such a description. The Number 2 player, as it happens, came from overseas. Assuming, hypothetically, that some disparaging comments were made about him, he may not know anyone in this country who heard a broadcast in which he was referred to by his ranking. 68 In order to demonstrate that the words spoken were capable of referring to that player, need he do more than call a witness, or tender a document which established his place in the world rankings at that time, and provide evidence of the extensive publicity given to that information at a time reasonably proximate to the broadcast? I believe such material, assuming it is comprehensive, would be capable of giving rise to an inference that for some listeners the broadcast identified that player. It would then be a matter for the jury to determine whether it should be inferred that a number of listeners, as a matter of probability, must have known of the plaintiff's ranking as a tennis player, and knowing that fact, would reasonably have identified him with the words used in the broadcast. 69 In this case, in those segments where Mr Jones referred to Ferrier Hodgson, the plaintiff wishes to establish that listeners would immediately have associated him with that firm. They would therefore have attributed responsibility to him for the events described by Mr Jones in which Ferrier Hodgson played a part. Now, it is not difficult to think of examples where there has been significant publicity (often advertisements), linking particular individuals with particular entities, such that mention of one is capable of triggering an association with the other. Some years ago Mr Bob Ansett appeared regularly as the public face of the company of which he was then head, Budget Rent-A-Car. Attributing to Mr Ansett responsibility for the actions of Budget Rent-A-Car, in those circumstances, may perhaps not be difficult, or at least such a view would be open to a jury. There are other more recent examples (Harvey Norman, Aussie Home Loans, etc). 70 Each case will depend upon its own facts. The notoriety or relative obscurity of the individual will no doubt depend upon the intensity and duration of publicity. The simplicity or otherwise of the "public fact" said to arise from that publicity, upon which the plaintiff relies to establish that the publication is "of and concerning" him (or her), will also be relevant. 71 An illustration is furnished by Rogers v 2UE Sydney Pty Limited (unreported, Levine J, 6.11.98). The plaintiff was an ophthalmic surgeon who operated upon Mrs Whitaker. Mrs Whitaker was blind in one eye and, after the surgery, developed a condition known as sympathetic ophthalmia which led to her losing the sight of the other eye. She later sued her surgeon for negligence in failing to warn her of the risk of sympathetic ophthalmia. The issue was the subject of comment on radio. The surgeon (Dr Rogers) was not referred to by name. He later commenced an action for defamation in which the particulars of identification referred to the fact of the operation, the litigation, including the various appeals, and the extensive publicity given to that litigation in the electronic and written media. Upon that basis it was suggested that the plaintiff could be identified and had been defamed by imputing that he had "blinded Mrs Whitaker by negligently and carelessly carrying out an eye operation on her". 72 The defendant sought particulars of identification required by Pt67 r12(1)(d). In these circumstances his Honour said this: (at 7) "The plaintiff having, in an extremely focussed way, particularised the matters within the knowledge of identified persons, must, in the circumstances of this case, indicate to the defendant his case on that component of the cause of action that the matter complained of conveying this particular imputation was 'of and concerning' him. This the plaintiff hitherto has failed to do. It is not open to the plaintiff and thus, cannot be fair to (the) defendant, in effect to sit back and say 'that's the best we can do' and whatever else there may be will be revealed at the trial or in good time beforehand." 73 His Honour added: (at 7) "I am not persuaded by reason, first, of the 'narrow focus' as I have described it of the facts said to be within the knowledge of the nominated people; second, the relationship of those facts to the pleaded imputation; and thirdly, the lapse of time between the date of the publication complained of and the publication annexed to the affidavit of Mr O'Brien that it is appropriate for the plaintiff to rely on this case as an exception, if there be one, as a case of a mass media publication where the only reasonable inference is that some of the listeners must have knowledge of the facts identifying the plaintiff (cf Grappelli supra at 830 per Dunn LJ)."
(1990) 21 NSWLR 135
(2002) 54 NSWLR 165
(1987) 10 NSWLR 651
(1974) 2 NSWLR 348
(1985) 1 NSWLR 30
(1986) 6 NSWLR 85
(1918) 25 CLR 234