Geyer v Ghosn

Admissibility of the statement of Mr Ippavitz

1. Mr Ippavitz's statement was in the following terms: "1. My full name is Michael John Ippavitz. 2. I do at times use the name Mooke Zicappi on my social media platforms. 3. I am 43 years of age. My date of birth is … 4. I reside at Bundeena, NSW. 5. I am one of the administrators and IT consultants on the Facebook page named NRL Sledging- Verbal Warfare. 6. I am aware that I am making this statement in relation to Mr Fouad Ghosn. 7. I have known of Mr Fouad Ghosn for a period of approximately 4-5 years. I have never met him face to face, but I have engaged in regular conversations with him via social media throughout this time period. 8. The reason I became aware of Mr Ghosn was through his ownership of NRL Memes [Facebook] (spelled in the statement as 'Facepook') page when grubby content would emerge on the Facebook page. I, along with others, would challenge Mr Ghosn about his content. 9. Mr Ghosn would continually deny being the owner of this site. 10. I am aware that there is some confusion surrounding who is the administrator, creator and owner of the Facebook site NRL Memes. 11. Mr Ghosn was the owner and administrator of NRL Memes Facebook page. 12. The reason I am aware of this is because I started communication with Mr Ghosn on 27 April 2015 via Facebook messenger. 13. I received a Facebook messenger message from Fouad Ghosn on or around September 2015. (Annexure 1). 14. In this message Mr Ghosn outlines that he "owned NRL Memes since August 2012 and I fucking created the page". 15. The message also outlined 1 other person he had disclosed this confidential information to. 16. Mr Ghosn explains in the message that "The only two persons that I've officially told are you and Jye, and Jye's kept it a secret since we've met in early 2013". 17. The person Mr Ghosn is alluding to is Jye Bancroft who is one of the administrators of the Rugby League Report Facebook page. 18. In the early months of 2019, NRL mems displayed images of a female engaged in a sexual act whereby Miss Montanna Geyer was labelled as one of the main characters. 19. I do not know Montanna Geyer personally. I know what she looks like from following her father Mark Geyer on social media. 20. After viewing the images on NRL Memes Facebook page it convinced me that the video was Montanna Geyer. 21. I have since discovered that the female in the video was not Montanna Geyer but for a period of time the NRL Memes Facebook post had me believe that it was Montanna Geyer. 22. I have in my possession multiple messenger conversations with Mr Ghosn that commenced in April 2015. (Annexure B). 23. These conversations were sent and replied to from the account name message.com/t/ghosn96. 24. Since Mr Ghosn's NRL Memes account was deactivated his replies to our conversations via Facebook messenger have been censored due to the deactivation. 25. The reason why our September 2015 conversation (Annexure A) still has Mr Ghosn's replies is because I took a screenshot of his reply about his creation of the NRL Memes Facebook page. 26. I have not had any direct contact with Mr Ghosn after his account was deactivated by Facebook."
2. Two exhibits are attached: 1. Exhibit A, which is a screenshot of the September 2015 message Mr Ippavitz refers to having taken and kept. 2. A bundle of documents representing the whole of Mr Ippavitz's exchanges with the NRL Memes website between 22 May 2015 and 19 September 2015. Only Mr Ippavitz's text messages are displayed; his explanation for this is set out in the portions of the statement set out above.
3. The challenges to the admissibility of these documents were: 1. The statement fails to comply with sections 63 and 67 of the Evidence Act 1995 (NSW). 2. The statements amount to opinion rather than observation and are not based on the witness's actual knowledge. 3. Portions of the statement were challenged as inadmissible due to form problems. 4. There are additional challenges to the attachment marked Exhibit A and to the Facebook Messenger posts, which are set out in more detail below.
4. Section 63 provides: "63 Exception: civil proceedings if maker not available (1) This section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to - (a) evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation."
5. Section 67 provides: "67 Notice to be given (1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state - (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64 (2) is such a provision - the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction - (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies."
6. There is no dispute that the statement was served conformably with s 67.
7. The evidence is provided in the form of a written statement, principally for the purpose of explaining how the annexure to this statement, Exhibit A, came into existence. Such a statement may include evidence based on the knowledge and belief of the person who gives it, or on information that the person has: s 172. In the present case, this permits the description of the NRL Memes website as "grubby" and the reference to repeated denials by the defendant of being the person who "fucking created this page", not least because the many pages of Facebook Messenger posts show Mr Ippavitz responding to posts of a grubby nature and responding to denials of ownership. One of those posts consists of copying and sending back this same screenshot (the "Exhibit A" to Mr Ippavitz's statement) to the NRL Memes website when a fresh attempt to deny being Mr Ghosn was made.
8. Mr Cohen objected to the text of the screenshot being summarised in the statement, in that the document should speak for itself. I reject this complaint, as I regard this wording as being directional in nature, in that Mr Ippavitz goes on to explain the background to the portions he quotes.
9. Mr Cohen also objected to the description "grubby", a description which I consider acceptable in a statement of this nature, in that it was his opinion that the site was "grubby" that caused him to preserve the screenshot and to be aware of its activities.
10. Mr Cohen's alternate argument was based on s 135. He complained of the inability to cross-examine and submitted that the missing entries from Facebook Messenger (from the now-closed NRL Memes website) were prejudicial to his client, referring to R v Lee (1950) CLR 25 as well as to his s 63 submissions (T 25 - 26), although how these impacted on s 135 was unexplained.
11. As to the first of his arguments, I note the relevant principles set out in Odgers, "Uniform Evidence Law" (20th edition), at [EA.135.150] "(a) be unfairly prejudicial to a party", and the helpful discussion in Ainsworth v Burden [2005] NSWCA 174, where similar rulings were made during a defamation jury trial under the repealed legislation. In brief terms, it is not sufficient for the evidence to tend to damage the defendant; there must be factors of the kind set out in the checklist in Odgers at [1.3.14560] and it is not the case that any of those issues arise here.
12. First, the document was prepared and signed by Mr Ippavitz, who has attached both a post from a person with the defendant's name (Exhibit A) and a series of Facebook Messenger messages he sent to this person over a four-year period, including the return posting of Exhibit A to the person with whom he was corresponding. The possible significance of cross-examination of Mr Ippavitz on such documentation would be minimal. First, it is not in dispute that the defendant and Mr Ippavitz never met and that this correspondence is the totality of their dealings. Second, the defendant's case is that he is not the "Fouad Ghosn" with whom Mr Ippavitz is corresponding.
13. The challenge under s 135 accordingly fails.
14. Mr Cohen also challenged the tender of Exhibit A and the Facebook Messenger exchanges on the additional grounds set out below.

Exhibit A to the statement of Mr Ippavitz

1. Although Mr Cohen challenged the admissibility of this document on the basis that it was a "photo" (T 25), it is in fact a screenshot, as Mr Ippavitz outlined in his statement, and one which was taken of the document by Mr Ippavitz himself.
2. The screenshot is as follows:
3. First, I reject the objection raised under UCPR r 31.10, as it was attached to a statement served more than seven days before the hearing.
4. Second, if a challenge is to be raised as to the authenticity of documents the subject of discovery (it was unclear whether this document had been discovered as well), I note the provisions of UCPR rr 17.5 and 21.1 in relation to any challenge to the authenticity of documents discovered in the course of proceedings.
5. Third, as to the alleged unreliability of this document, screenshots are regularly admitted into evidence without challenge: Crescent Funds Management (Aust) Pty Ltd v Crescent Capital Partners Management Pty Ltd [2017] FCAFC 2 at [90] - [92]. Although mere internet searches may be rejected as inadmissible (Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 at [65]), website information which is duly provenanced has long been accepted as amounting to part of a company's business and thus as admissible pursuant to s 69 of the Evidence Act 2005 (NSW); see Roache v Page (No 27) [2003] NSWSC 1046 as applied in other defamation claims such as McMahon v John Fairfax Publications Pty Ltd (No 4) [2012] NSWSC 216 at [22]-[26] (McCallum J) and Charan v Nationwide News Pty Ltd [2018] VSC 3. This is not an invariable rule (Pinnacle Runway Pty Ltd v Triangl Limited [2019] FCA 1662 at [97] - [99] ("Pinnacle"), and caution must be exercised where the material in question is promotional (ACCC v Air New Zealand Pty Ltd (No 5) [2009] FCA 1479) or otherwise falls outside the rubric of business activities.
6. In Pinnacle, Murphy J applied these principles to screenshots, noting the particular difficulties of screenshots of now-deleted online records obtained through the Wayback Machine (at [101] - [103]). In the course of his careful analysis, his Honour explained that courts had rejected the tender of those documents in certain cases in the past, but essentially because there had been no evidence of how the Wayback Machine had operated. In the present case, however, that problem does not arise, as Mr Ippavitz himself made the screenshot of Exhibit A.
7. The balance of the records include Mr Ippavitz's own posts, with the entries from the NRL Memes site being missing for a reason Mr Ippavitz seeks to explain (and can be distinguished from earlier decisions excluding material of this kind, for the reasons set out by Murphy J at [104]).
8. Although it was not tendered as a business record, I am of the view that, given Mr Ippavitz's description of his work as an IT-style site administrator and the reasons for taking this screenshot, he created this document in 2015 for business-related purposes, and that it could have been tendered on that basis as well..
9. As to the missing entries in the Facebook Messenger bundle of posts, the explanation given by Mr Ippavitz in the statement is that these are no longer available as, to his personal knowledge, the site is shut down. That is not a matter requiring expert evidence. Nor does the absence of the defendant's responses create a basis for rejection of the tender of Mr Ippavitz's side of this electronic conversation. Again, although not tendered as business records, given the nature of the exchange and Mr Ippavitz's role as a site administrator, I am of the view that these would be admissible on that basis as well.

MFI 9, 10, 11, 12 and 13

1. Mr Cohen foreshadowed an application to lead evidence from his instructing solicitor as to how Facebook accounts opened: (T 210) "COHEN: The second issue - I have raised this with my friend and my friend is against me, opposes me at this particular aspect of this case - is we would seek to prove, or at least have it admitted as a - it's something so obvious and widely known, on the one hand - is that, for example, it doesn't take a lot to open up a Facebook account. In other words, there's no checks and balances. Anyone can put up an account. I mean, I could open up an account and call myself Mickey Mouse tomorrow. It's something very widely known. All you need is an email address. And that is widely known, but as I think about it, if my friend is not prepared to make that concession HER HONOUR: Why he should be prepared to make a factual concession? This is a jury trial. You've either got the evidence or you haven't. COHEN: Well, I'd seek to tender it. I'd have to HER HONOUR: Tender what? COHEN: Well, not tender it. I'd seek to lead that through a witness, your Honour. HER HONOUR: What sort of witness? An expert witness? COHEN: No, it might be my instructing solicitor. HER HONOUR: How can your instructing solicitor give this evidence? COHEN: Your Honour, it's a very widely known fact that there is - doesn't take a lot of. HER HONOUR: Look, the circumstances in which courts can take into account notorious facts or facts that are asserted to be notorious are actually quite limited. And knowing how to open up a Facebook account and what that means was the subject [of expert] evidence in Voller. It's been the subject of expert evidence in a number of cases. I asked specifically in my list of questions last week, "Was there any expert evidence?" and I was told "no". If you say it's so obvious, then in that case, why do you need evidence on it?"
2. At T 211, Mr Cohen indicated that, whether or not he called his instructing solicitor, he intended to tender "a range of documents" which had been served on the solicitors for the plaintiff "last night" (T 211). I was not provided with all these documents for the purpose of a ruling (T 212 and T 255).
3. The documents in question were as follows: 1. MFI 9 (T 263): A newspaper article from the New Zealand Herald dated 15 January 2019 headed "Facebook page behind another NRL video release". This was asserted by Mr Cohen to go to the issue of damages and to the "understanding of public opinion", as well as to whether the defendant was in any way connected to the NRL Memes website. However the real purpose, it emerged, was as a challenge to the authenticity of documents already tendered by the plaintiff (T 269), by reason of the similarity in tone and content of statements made by the unnamed NRL Memes administrator and the contents of Facebook pages tendered by the plaintiff which are asserted to be made by the defendant. How the authenticity of the plaintiff's documents was to be challenged by this tender was unexplained. 2. MFI 10 (T 263): A bundle of searches made on the Internet by the solicitor for the defendant and dated 10 November 2020. These were asserted to be relevant to the issue of publication as they referred to other named NRL Meme sites; Mr Cohen said the defendant's solicitor would explain this from the witness box, as well as explaining how the internet worked. 3. MFI 11 (T 264): A bundle of searches made on the Internet by the solicitor for the defendant, dated 11 November 2020. These were also asserted to be relevant to the same issue of publication. 4. MFI 12 (T 265): A bundle of searches made on the Internet by the solicitor for defendant and dated 11 November 2020, asserted to be relevant to the same issue of publication. 5. MFI 13 (T 272): A newspaper article titled "Facebook page shut down amid Mark Geyer's legal threats". Tender of a newspaper article to prove a disputed issue of fact is impermissible, for the reasons explained by Mortimer J as se out above.
4. The problem of admissibility of internet searches was considered by Mortimer J in Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) [2017] FCA 474 at [20] - [23]. In particular, Mortimer J stated at [20]: "There are at least two decisions which have considered that such evidence is not admissible on the basis of hearsay. The New South Wales Court of Appeal considered similar evidence in Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58. The evidence in question was obtained by searches on the website www.google.com.au, and included contents of the relevant webpage of "Aegean Lodge", and listings on third party websites referring to the "Aegean Lodge". In a brief paragraph, Hodgson JA, with whom Santow and Tobias JJA agreed, said (at [65]) that this material, being the content of the websites, was not admissible as hearsay even though it had possible marginal relevance. His Honour further considered that: "This evidence is so weak on its own, that it may well have been appropriate to exclude it under s.135.""
5. The purpose of the tender in Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd (No 2) was very similar to that intended here, namely to set out whether or not there were other similarly named persons or organisations conducting their affairs on the internet (at [24]), and I reject the tenders of MFI 9, MFI 10, MFI 11 and MFI 12 for the same reasons.
6. I note Mortimer J's observations as to the s 135 issue (at [26]), which, like the similar observations of the Court of Appeal set out above, are of particular relevance in a civil jury trial: "Even if I had not been satisfied that this evidence was adduced for a hearsay purpose, I would have in any event exercised my discretion to exclude the evidence under s 135 of the Evidence Act on the basis that the probative value of the evidence is substantially outweighed by the danger of prejudice to the applicant. I accept the applicant's submission that Mr Henry's evidence in these paragraphs constitutes no more than a snapshot of what was available through a series of internet searches on a particular date, without any context being available to be tested about the nature of the businesses these searches have turned up. The probative value of such searches is limited on any view. The applicant's case is a very specific one about what participants in the commercial construction industry may or may not be led to believe concerning the relationship between the applicant and the respondent, and whether the applicant might be seen as no more than a "specialist shop fitting arm" of the respondent. To have evidence in the nature of single date extracts of internet searches showing businesses using the word "shape", without calling evidence from witnesses who operate or control those businesses, and allowing the applicant to test the similarities or differences between those businesses and its own, between the customer base(s) of those business and its own, and in turn between those businesses and the respondents, is in my opinion to create a danger of unfair prejudice to the applicant. Snapshots of internet searches on particular dates, all of which are between just under and just over a year after the respondent adopted the name "SHAPE Australia" contribute little by way of proof as to what participants in the commercial construction industry were likely to believe about the commercial relationship between the applicant and the respondent since 26 October 2015, but it is not the kind of evidence the applicant can test as it should be able to. Accordingly, in my opinion the objections of the applicant should be upheld. The paragraphs of Mr Henry's affidavit to which I have referred at [1] will not be admitted."
7. As soon as I was allocated this trial for hearing, my associate wrote to the parties to clarify, inter alia, whether expert evidence was to be called. The defendant's solicitor elected not to reply. Notwithstanding this failure, the requirements of UCPR r 31.27 for the service of expert reports and the absence of any evidence of expertise, Mr Cohen nevertheless sought to call his instructing solicitor to give evidence of an expert nature as to how the internet works, how he had carried out unspecified searches on the internet after the trial began, and other unspecified technical issues.
8. The circumstances in which the solicitor for a party would be permitted to give evidence of this nature in a hearing, even with due prior notice, would have to be exceptional. There would not be any circumstances in which a court would permit an expert to give oral evidence without a report being served or expertise being identified, particularly in circumstances where the documentation about which he was to give evidence had only just been prepared and where no notice of any kind had been given. In addition, as is set out above and as Mr Rasmussen pointed out, the admissibility of the documents Mr Cohen proposed to tender was moot.
9. Mr Cohen's overarching submission was that there ought to be expert evidence on this issue, and that in the absence of evidence from an expert his instructing solicitor could use these documents to be that expert.
10. None of the documents the subject of the proposed tender is admissible, for the reasons set out above. The proposal to call the defendant's solicitor to give evidence, as to how he put these documents together, is not only a breach of the rules relating to expert evidence, but also a form of trial by ambush. It was always open to the defendant to seek orders for expert reports, and his solicitor's failure to do so could not be resolved by the solicitor making his own inquiries and giving evidence about them.
11. Alternatively, Mr Rasmussen relied upon s 135 and, in this regard, I respectfully adopt the reasoning of Murphy J as set out above. The documents would, alternatively, all be excluded under this provision.

Exhibit A in these proceedings

1. The hearing proceeded on the basis of a screenshot from NRL Memes dated 4 March 2019 at 9:31 pm which, on the first day of the trial, was marked Exhibit A. This was the subject of a belated application for a separate trial pursuant to Uniform Civil Procedure Rules ("UCPR) r 28.2.
2. I made the following rulings on capacity (T 34): "HER HONOUR: All right. In that case, the next ruling I propose to make is - I won't be able to have time to give reasons, but I will give reasons later on. Pursuant to UCPR r 28.2, imputations (iv), (v) and (vi), are each reasonably capable of being conveyed. Note no challenge is made to imputations (i), (ii), (iii) or to any other aspect of the plaintiff's case as pleaded." [Emphasis added]
3. My UCPR r 28.2 ruling was based on the document which was Exhibit A at the trial.
4. The background to both these rulings was as follows. I made rulings on the imputations in Exhibit A. The jury was shown this same document by Mr Rasmussen in the course of his opening. This document was then shown to each of the witnesses as well as to the defendant. Both sides closed their case and Mr Cohen commenced his address to the jury at the close of the evidence at T 290.
5. At T 300, while referring to the matters complained of, Mr Cohen said "just bear with me a moment". Upon my asking him if he had a problem, he asked for the jury to be sent out. The following exchange occurred: (T 301) "IN THE ABSENCE OF THE JURY HER HONOUR: All right, what's the problem, Mr Cohen, and how can I help? COHEN: Your Honour, I have two - I have the tender and one on my statement of claim, exhibit A, appear to be different. HER HONOUR: The document that's been tendered is the exhibit, so it's often the case that's what's attached to the statement of claim is less than perfect. Is there a problem with that? COHEN: Well, there's enormous problem with it, your Honour. HER HONOUR: Which you've only just discovered in the middle of your addresses? RASMUSSEN: Yes, that's right. COHEN: Can I just show your Honour the two documents? HER HONOUR: Wait a moment. I've got the statement of claim here. What's the problem? Here is the statement of claim. Yes. Which one are you looking at: A or B? COHEN: I'm looking at A. One of them says, "Reports have suggested that Mark Geyer's daughter is allegedly involved in the scandal," and there's a posting there, and then the other one simply doesn't have that. "
6. Mr Rasmussen said at transcript 302: "HER HONOUR: Yes, Mr Rasmussen? RASMUSSEN: Your Honour, I said at the very start of this case that it was different, and was no objection raised. COHEN: No, I thought my friend said there was no difference. I thought - I didn't RASMUSSEN: Yes, there was. It's about time my learned friend paid attention to what was going on. COHEN: I thought my friend said it was not different. That was my recollection. And in my view, given that I'd only come into the matter, I mean HER HONOUR: I'll tell you what. The document that is exhibit A is NRL Memes, which is at 9.31. The one that's attached here is 10.38. So what it is is a later one was attached, and I presume that's been tendered is the earlier one. Is that right, Mr Rasmussen? RASMUSSEN: Yes, everyone gave evidence that they saw the earlier one. HER HONOUR: And that's the whole thing. That's the one they saw. So that's that. COHEN: Well, your Honour, the difficulty is, is that I would have wanted this one to be in evidence. I was working off this one. That may be the case that they all gave evidence, but we proceed upon HER HONOUR: They all gave evidence this happened around about 9.31. COHEN: No, we proceed on the case that is pleaded, your Honour, and this was pleaded, and this document HER HONOUR: Mr Cohen, you proceed on the case with the evidence. COHEN: Well, yes, but procedurally HER HONOUR: This document went into without objection. The witnesses all identified the document that went in without objection. Now, I take it there may well have been multiple listings of this, but the bottom line is, this is NRL Memes 55 minutes. This is the one that's here. But what those witnesses said was that they saw this one that was at 9.30, which was seven minutes as opposed to 55 minutes, you see? So it's an earlier version. What's your problem? COHEN: Well, my problem is is this was the one on the statement of claim. This was the one that was sued upon. And I just want to confirm that I'm not misleading your Honour. Indeed, I'd even take it a step further, your Honour. This happened a year and a half ago, your Honour. That particular matter is actually time barred. I would seek to amend and say, "This is beyond one year." There has not been an application to extend time, your Honour. This is a very significant irregularity and the plaintiff has sued upon a matter that has been statute barred and it has not been pleaded. HER HONOUR: She pleaded on a publication that was published on or about 4 March. COHEN: Yes, but she - and attached annexure A. And I will amend, and I will seek to plead, that there is a statutory limitation period that has exceeded. This article was not sued upon. And I will press that point. HER HONOUR: Anything else? COHEN: No, nothing else, your Honour. I mean, it's put me in a very difficult position, frankly speaking."
7. Mr Rasmussen was correct to say that he raised this issue at T 35, where he said: "RASMUSSEN: Your Honour, may have noticed this already. The copy of the NRL Memes that I handed up is slightly different to that which is attached to the statement of claim. HER HONOUR: I did, actually, so I-- RASMUSSEN: If it's necessary to seek to amend, I do. It is not more than a better or a clearer copy of that original one. And if I'd known that my learned friend was going to..(not transcribable)..it, I would have sent it to him, as we invited his instructors to us on Friday. We did communicate with them asking them to indicate--"
8. The words in bold in the extract above containing my ruling (at T 34) were intended to confirm that there were no other challenges to the case as pleaded.
9. As to the reference to "amend", Mr Rasmussen was referring to and cited, s 65(2)(c) of the Civil Procedural Act 2005, which provides: "65 Amendment of originating process after expiry of limitation period (2) At any time after the expiration of the relevant limitation period, the plaintiff in any such proceedings may, with the leave of the court under section 64 (1) (b), amend the originating process so as - … (c) to add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process."
10. Mr Rasmussen could have brought such an application if this issue had been raised on or before the hearing of these proceedings. It was not raised.
11. Is amendment necessary at all? As is noted at T 305, apart from being 48 minutes earlier on the same night, the document which was Exhibit A in these proceedings is largely identical to the matter complained of set out in Annexure A to both the Statement of Claim filed on 26 April 2019 and the Amended Statement of Claim filed on 23 May 2019. The sole difference is that the second publication contains an additional sentence as follows: "Reports are suggesting that Mark Geyer's daughter is now allegedly involved in the scandal."
12. In practical terms, since the next sentence is "the bird in the Tyrone May video is Mark Geyer's daughter", the only difference of significance would be any impact of "suggesting" and "allegedly". Mr Cohen acknowledged that if the matter had been raised at the beginning of the hearing he "may have consented to it, but it would have alerted me to a different case", a submission he amended to "a slightly different case" (T 305).
13. Mr Rasmussen repeated that he had drawn Mr Cohen's attention to this, that there had been a capacity argument on Exhibit A, that both sides had closed their case and were in the course of jury addresses, and that this should be the end of this argument. Mr Cohen had waived his right to object at this late stage. Alternatively, if leave to amend were required, leave should be granted under section 65(2)(c), which obviated any argument in relation to limitation issues.
14. As McCallum J noted in Feldman v Spinak [2016] NSWSC 1083, the relevant principles in such an application are set out by Beech-Jones J in Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20. The factual issues in that case were insufficient to warrant leave to amend being granted, for the following reasons: "As became clear during the course of argument, the difficulty for the plaintiff in seeking to invoke s 65(2)(c) was in identifying the connection between the facts that gave rise to an existing cause of action and the facts in respect of the new cause of action. The facts that gave rise to the existing cause of action, being those either set out in the Statement of Claim or the Amended Statement of Claim, concern a publication in the form of the broadcast on 30 November 2011. It was ultimately accepted on behalf of the plaintiff that there was no way of characterising a cause of action in respect of a broadcast on 27 December 2011 as arising from the same, or substantially the same, facts as those that gave rise to the existing cause of action, namely the fact of the broadcast of the programme on 30 November 2011. Thus, as was ultimately conceded by plaintiff, leave to file an amended pleading raising that cause of action has to be refused."
15. An application to amend to include such a publication also failed in Feldman v Alhadeff [2017] NSWCA 18, where the plaintiff sought leave to bring an additional claim for a radio broadcast in which the defendant was asserted to have published material similar to that which was the subject of a claim which had been filed. Macfarlan JA, upholding the first instance judge's refusal to grant leave, explained the need for similarity as follows: "9. As to the interview with Mr Alhadeff broadcast on the ABC on 11 February 2015 (see [5] above), her Honour found that leave to amend should be refused because a period in excess of 12 months had elapsed since the original statement of claim was filed, and the cause of action was therefore statute barred (Limitation Act 1969 (NSW) s 14B). Rabbi Feldman did not suggest that this was a case in which an extension of the limitation period might have been granted under s 56A of the Limitation Act. As a result, consideration needed to be, and was, given by her Honour to s 65(2) of the Civil Procedure Act 2005 (NSW) which permits a plaintiff, with the leave of the court to amend an originating process so as: "(c) To add or substitute a new cause of action, together with a claim for relief on the new cause of action, being a new cause of action that, in the court's opinion, arises from the same (or substantially the same) facts as those giving rise to an existing cause of action and claim for relief set out in the originating process" (s 65(2)). 10. If that condition is satisfied, the amendment takes effect from the date on which the proceedings were commenced (s 65(3)). In the present case, that date is within the limitation period. 11. Rabbi Feldman relied upon paragraph 6 of the initial statement of claim (see [2] above) as pleading a cause of action that arose from the same (or substantially the same) facts as those giving rise to the cause of action related to Mr Alhadeff's interview with the ABC pleaded in the fourth proposed statement of claim. Her Honour was not satisfied that this was the case and in my view there was no error in her Honour so concluding. 12. The original statement of claim related to statements published by the NSW Jewish Board of Deputies "on its website and Facebook page" on 10 February 2015. In light of the context in which it appeared, the reference in paragraph 6 of the statement of claim to Mr Alhadeff making "further publications on his Twitter account" was a reference to further publications of the same statements, namely those published by the Board of Deputies. The paragraph then alleged that the "Twitter postings" contained "links to other sites including to the ABC Radio and news site wherein the defendant makes further statements". In their terms, these words were capable of including indirect reference to publications of extracts from Mr Alhadeff's interview with the ABC. However it cannot rationally be said that the pleading contained a complaint about the publication of what was said in that interview. The relevant allegation in the pleading was of great generality and did not inform the reader that the interview was the subject of a defamation claim by Rabbi Feldman. An implicit invitation to the reader of the statement of claim to "click the links" (to use Rabbi Feldman's expression) was wholly ineffective as a means of pleading a defamation claim in respect of whatever might be seen if the links were clicked. 13. That being the case, the condition in s 65(2)(c) was clearly not satisfied. The causes of action pleaded in the original statement of claim arose from different facts than those Rabbi Feldman sought to rely upon in the fourth proposed amended statement of claim. The former concerned the Board of Deputies' statement and the latter concerned Mr Alhadeff's interview with the ABC. The allegedly defamatory matters were quite distinct and the causes of action, and the facts from which they arose, were accordingly quite different."
16. With one exception, none of the above problems occur here. It is clearly the same publication, with a minor addition of a repetition of one sentence. The time difference is that it was made approximately half an hour before the document attached to the Statement of Claim as exhibit A, but on the same date pleaded in the Statement of Claim. Does that mean (as it did in Linnell) that the date of publication is prior to the matter complained of, and thus impermissible?
17. Mr Cohen's submission is based on two misapprehensions, firstly that there is some kind of single publication rule requiring only the first publication in time to be sued on, and secondly that the only publication the plaintiff can sue on is the one she attached to the Statement of Claim. In practical terms, actions for defamation in relation to print, as well as online media, invariably involve multiple editions of newspapers or broadcasting occasions, sometimes with minor amendments such as correction of typographical errors or different headlines over the same one-day period or even longer. If the plaintiff's evidence was that the plaintiff read a morning edition of the newspaper, whereas a copy of the afternoon edition was attached to the Statement of Claim, would the plaintiff's claim fail for that reason alone?
18. The answer must be no. The plaintiff could have tendered all of the copies of the matter complained of published on that day, on the understanding that the publication of the first matter complained of by the NRL Memes page to multiple sites were evidence of a single claim all the plaintiff had to do was to sue on one of them in order to commence proceedings. The plaintiff was not obliged to track down the first of these as being the only actionable claim. She was entitled to sue on any of them, and she did so. If she wanted to substitute the publication she in fact first saw, as opposed to the publication conveying the same imputations made shortly afterwards, that is the sort of amendment for which s 65(2)(c) was created.
19. Alternatively, if I have erred in my findings that leave to amend is unnecessary or, if necessary, should be granted pursuant to section 65(2)(c), I would have refused the defendant's application to strike out the claim and the application for a verdict for the defendant by direction on the basis that Mr Cohen brought the application too late in the trial, at a time when he had waived any right to object. He had sought rulings on the imputations under UCPR r 28.2, he had permitted the tender of exhibit A without objection and cross-examined the plaintiff's witnesses on it, he had called his own client who had denied publishing it, and he was towards the end of his address to the jury when he raised the issue. He had been squarely put on notice by Mr Rasmussen that Mr Rasmussen would seek leave to amend if required to do so, and he had not taken up that challenge.

Other interlocutory rulings

1. On the first day of the trial I made orders pursuant to UCPR r 28.2 that each of imputations (d), (e) and (f) for both publications were reasonably capable of being conveyed. The remaining imputations were not challenged.
2. The jury found that imputations (d) - (f) were not conveyed and that the second matter was not published and, in those circumstances, further reasons for my rulings, in addition to the observations I made in the course of the argument, which are set out in the transcript, are no longer necessary.

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. Decision last updated: 22 December 2020