Kruse, David v Lindner, Anton [1978] FCA 24

ON _APPRAT, FROM was UREN COURT OF Ti AUST SPRAL IAW CAPSTSL UURRT OF ¥ / Between: Appellant And: , / ANTON LINDNER Respondent a i]

y TAL TYRRITOP' AUSTRALIAN CAPITAL TYRRITOPY . No. Ll of 1977

At all material times the appellant has carried on the business of selling car radios and associated equipment by retail in the suburb of Fyshwick in the Australian Capital

Territory. He carried on that business under the name of

blished in "The Canberra Times" newspaper an advertisement pap

"Warning to the Public! Shop around hefore you buy at Polymedia Car Stereo, 57 Wollongong Street, Fyshwick."

In respect of this publication the appellant commenced proceedings by Action No. S.C. 415 of 1976 in the Supreme Court of the Australian Capital Territory. It was alleged in the Statement of Claim that by reason of the publication of the words set out above he had been greatly injured in his character, credit and reputation and in the way of his "said

, occupation". The action came on for hearing on 21st June 1977.

, Judgment was entered for the respondent and the appe] lant was | ' ordered to pay to the respondent his costs of and incidental

Evidence called for the appellant established that at all material times the appellant was the sole proprietor and also the registered proprietor of a business carried on at 57 Wollongong Street, Fyshwick, under the business name

. of "Polymedia Car Stereo" and that the nature of the business so carried on was that of a retailer of car radios and associated equipment. However, in the course of the hearing no evidence was called which showed or tended to show that any person or persons who had seen the advertisement believed oer understood that the appellant was the person who owned the business or the person responsible for the manner in which the business was conducted except certain hearsay evidence which is discussed hereunder. It would seem that this was no accident

but was a consequence of the appellant's case being conducted

on the basis that the reference in the advertisement to Polymedia Car Stereo was to be treated for all material purpcses as a reference to the appellant himself once it

was proved that the appellant was the proprietor or registered

This was a basis which did not commend itself to the learned trial Judge who on 21st June 1977 gave judgment

"This case turns on a question of fact. The words do not expressly refer to the plaintiff. On the evidence before me I do not find that any person understood the words, reasonably or otherwise, as referring to the plaintiff. On that ground the plaintiff must fail. The action is dismissed."

No fault can be found with this assessment of the situation

Mr. Kelly, Q.C. submitted on behalf of the appellant that the learned Judge was in error in failing to find that there was evidence that the appellant was the person referred to in the writing alleged to be defamatory, namely the advertisement Mr. Kelly submitted that any person reading the advertisement

"must logically have been aware that the person or persons

referred to and against whom the warning was given, were the proprietors, or was the proprietor, of the firm trading as Polymedia Car Stereo" and that the advertisement adversely affected the reputation of the man or the men who actually owned the business name and carried on the business under

that name and that each such person was entitled to recover against the defendant for the injury to his reputation although

no person to whom the advertisement was published knew who

' that proprietor or any of those proprietors were, or could

by reference to any facts in their knowledge reasonably identify any person known to them as being such proprietor or one of

such proprietors. But this submission cannot be supported.

"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. °

"To succeed in an action of defamation the plaintiff Must not only prove that the defendant published the words and that they are defamatory: he must also identify himself as the person defamed ... 'The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they

ch as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? ... It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff

can make out that he is the person meant', i.e. 'meant by the words employed' ".

: of persons who knew the plaintiff, reading the article, would believe that it refers to him, in . - my opinion an action, assuming the language to be

defamatory, can be maintained; ... If upon the evidence the jury are of opinion that ordinary sensible readers, knowing the plaintiff, would be of opinion that the article referred to him, the plaintiff's case is made out."

In the relevant context the concept of knowing or being acquainted with the plaintiff is a broad one and extends

far beyond knowledge and acquaintanceship that is close or

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 tc the appellant by mame, was such as reasonably in the circumstances would lead that person or those persons to believe that the appellant was the person referred to in the advertisement and in respect of whom thé warning was issued. Reference may be made to the words of Dixon. J. {as he then was) in Lee v. Wilson erd

MacKinnon (1934) 51 CLR 276 at 290 where after discussing

passages in the speeches of the members of the House of

"These passages ... express a test which makes the tort of libel consist in the operation of defamatory matters as an actual disparagement of the plaintiff's reputation." These words were used in the context of a discussion as to whether actual disparagement of reputation although unintended and' accidental. was enough to found an action for damage for that disparagement, but the test so stated specifies not only what is adequate but also what is essential. There can be no

actual disparagement until it is shown that some reader of the

-publication knowing the plaintiff believed that it referred to

avure Pty. Ltd v. Middle East Airlines Airliban S.A.L. (1975) 134 C.L.R.1. indicates that the situation is different in cases depending upon the Defamation Act, 1958 (N.S.W.), S.5.

No person who knew the appellant gave evidence and accordingly it was never shown that any person knew that the appellant was the proprietor of Polymedia Car Stereo. As a result there was no evidence that the appellant was the person

against whom the warning in the advertisement was issued and

accordingly no evidence of actuai disparagement cf the appellanc.

authorities including Consolidated Trust Company Ltd. v. Browne

(1949) 49 dR. (N.S.W.) 86, Godhara v. James Inglis & Go. Ltd. (1904) 2 C.L.R. 78, Le Fanu v. Malcolmson (1848) 1H.L.C.637 9E.R.910

and Syme v. Canavan (1918) 25 C.L.R. 234. However, I find

nothing in any of these authorities to throw doubt on the propositions set forth above. Indeed, as Mr. Kelly conceded,

the opinion of the Full Court of New South Wales (Jordan, C.J.,

Davidson and Street, JJ.) in Consolidated Trust Gompany Ltd.

v. Browne (supra) is clearly against him and contains the

"If the matter complained of does not refer by name to the person alleged to be defamed ... and 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 the circum- stances." ((1949) S.R.(N.S.W.) at 89 per Jordan C.J.)

Accordingly, it is my view that on the evidence before

the learned Judge no fault is to be found in his reasons for

It is said however that in the course of the hearing

the learned Judge rejected certain evidence which the plaintiff

proffered and that evidence. if admitted would have proved that the published words were understood by one or more persons to refer to the appellant. The evidence said to have been proffered was evidence which would have been part of the appellant's own tes'cimony. The content of che proposed testimont- has to be gathered from what occurred in the course of the trial. Mr. Salmon, who appeared for the defendant, directed questions to the plaintiff designed to establish that the publication of the alleged libel had not adversely affected the turnover of business. One such question was - "Well, you do concede, don't you, that in fact turnover did increase?" The plaintiff answered - "I concede that it did increase but I also said that I had to expend over and above my budget to overcome the problem". Counsel asked - "What problen was there, Mr. Kruse? You mean that advertisement in the paper?" And the plaintiff answered - "That is correct". In re-examination Mr. Shiels, who appeared for the plaintiff, sought to have the "problem" further elucidated, but Mr. Salmon objected. These followed a discussion between his Honour and Counsel. Mr. Shiels said: "I will seek your Honour's leave to ask a question, subject to my learned friend's right to cross- examine, that I should have asked in-chief, Mr. Kruse, after that advertisement appeared in the paper, did anyone speak to you about it?...." The witness answered: "Several people contacted me over the weekend, two two to three people in the motor vehicle business in Fyshwick that I was dealing with at the time, and as late as the beginning of May. We had a gentle- man with a Volkswagen Kombi Van come to us and said he came to us as the last resort on the strength...."

• At this stage counsel for the defendant took objection and discussion ensued between his Honour and counsel for the plaintiff. His Honour took the view that this evidence was

It may be gathered from this exchange that part of the evidence which the appellant sought to give was that "as late as the beginning of May" a gentleman with a Kombi Van "came to us and said he came to us as the last resort on the strength" apparently of what was said in the advertisement. I say "apparently" because the sentence was never finished and the learned Judge was never told how counsel understcod it would have been finished if the appellant had completed what he was say- ing.

However as this particular conversation related only to "us" meaning the business, it really had no significance in respect of the question whether what was said by the speaker indicated a knowledge or understanding on his part that the appellant was the owner of the busi- ness and therefore the person defamed. Accordingly, it may for present

But it is contended that having regard to the context in wnich it was made the statement that "several people contacted me over the weekend" gave rise to the inference that the callers knew they were speaking to the appellant,-.knew of the advertisement and knew or under- stood that the appellant was the proprietor of the business referred to in the advertisement. The inference is said to arise from the call having occurred "over the weekend" and the persons concerned being "people" in the motor vehicle business in Fyshwick "that I was dealing with at the time", And it is said that counsel for the appellant indicated that the evidence proffered was such as to show that the plaintiff had been "held up to approbrium" and that "it", presumably

It is to be observed that the only ground on which the evidence was tendered on behalf of the appellant was that

it went to the issues of damage. Mr. Kelly suggested that

. it was also tendered to prove that the persons concerned had

realised that it was the appellant's rcputation' which was impugned by the advertisement because thcy knew that he was

the proprietor of Polymedia Car Stereo. But despite some basis for this suggestion in some of the phrases appearing in the discussion with the learned Judge I am urable to accept that this was so. It is clear that no such idra was convcyed to the mind of his Honour. It is to be noted that both at the

commencement of the discussion and at the end of it counsel

'said quite categorically that the evidence was submitted as

going to damage. This is important because, as indicated hereafter, I think it is quite clear thet the case for the appellant was conducted on the basis that once it was proved that the appellant was the proprietor of the business no evidence was necessary on the issue of whether the defamatory matter referred to the appellant so that his personal reputation

In this appeal the appellant says, and for the first time says, that the evidence of these telephone conversations ought to have been admitted to show that the advertisement was understood by readers of it to refer to the appellant.

It is said in the alternative, that it ought to have been

admitted as going to damage and if it had been so admitted

it would have been available onthe question of the identity of the plaintiff as the person defamed. I consider first

thd evidence may be considered either as having been ' proffered as giving support to an allegation that the appellant suffered wounded feelings, or as tending to prove loss of the

i} of particular customers, not only was there the objection that

the evidence was submitted in hearsay form, but no foundation was laid in the Statement of Claim to support the calling of such' evidence. In cases of libel the plaintiff does not need to prove actual damage for "the law presumes that some damage will flow in the ordinary course of things from the mere invasion of the plaintiff's rights ..." per Lord Justice Bowen in Ratcliffe v. Evans /1892/ 2 Q.B. at 528. But if the plaintiff desires to rely on any particular actual loss of the kind presumed to flow from the injury to his reputation he may give evidence of it provided it is alleged in the Statement of Claim or otherwise particularised. Thus where it is alleged in the Statement of Claim the plaintiff may give evidence of general loss of business profits and where he has pleaded loss of business specially, either in addition to or without the allegation of a general loss of business,

he may prove loss of particular earnings or customers;

cf. Ratcliffe v. Evans (supra) and Gatley on Libel and Sannder

allegations sufficient to support the calling of evidence

' of loss of or prejudice in dealings with the customers

It is useful to consider the manner in which the evidence in question came to be proffered at all. The 'plaintiff having given evidence that he spent an additional $4000 in advertising to overcome a loss of business which he felt would follow from the respondent's advertisement of 10th January 1976, it was elicited from him in cross-examination that in each month since January 1976 the monthly gross returns of the business had increased. It was in re-examination that the evidence now under consideration was proffered.

It would seem that it was tendered to show that there had been loss which had not been particularised of particular customers. It was inadmissible on this ground and also on the additional ground that it was hearsay. Accordingly so far as the evidence went to prove loss of particular customers it

-But whether the conversations, evidence of which was

rejected ought to have been admitted as proof of general as opposed to special, damage under some head such as "as proof of the consequences necessarily resulting from its publication"

at 1340 : (see per Tindal, C.J. in Cook v. Ward (1830) 6 Bing. at 415, 130 E.R

and Garbett v. Hazell, Watson and Viney Ltd. and Others £19437

2 All E.R. 359) is a more difficult question. It is not clear that it was put forward on this ground although it is possible

to find some words in the discussion between Judge and counsel tending to show that it was. However even if it were so

tendered I think it was rightly rejected because in essence

the evidence of the conversations was evidence of unparticularised particular incidents of damage of the kind presumed to flow

from a libel. As evidence of the consequences of the publication of the advertisement they may not suffer from being hearsay,

but as evidence of particular incidents of damage of the kind which the law presumes it was a condition of admissibility

that they be particularised. cf. George v. Blow (1899) 20

But in my opinion this appeal does not depend upon whether on the issue of damage the conversations were or were not admissible. The fact is that when they were rejected as hearsay and therefore not admissible as going to the issue of damage there was no evidence in the case that the published words referred to the appellant. And when the case for the

appellant was closed there was no evidence on that point.

This is only explicable if the case for the appellant proceeded upon the assumption or the view that the appeliant having proved that he was the proprietor of Polymedia Car Stereo

As indicated above the appellant now contends that the conversations were admissible as proof, albeit by hearsay, 'that the words published were understood by readers to refer | to the appellant. There is much to support this contention.

Evidence of the conversations in question, coming from the 'appellant, was prima facie hearsay. It could therefore be admitted only on some ground constituting an exception to the rule against the admission of hearsay. The only exception said to be relevant is that the statement by the unnamed telephone callers were part of the res gesta, A declaration is admissible as such either if it itself is a relevant fact, or if the facts declared are relevant the declaration is a lawful medium of proof of those facts. See per Dixon, J.

(as he then was) in Adelaide Chemical and Fertilizer Company

Ltd. v. Carlyle (1940) 64 C.L.R. at 530. In this case the

declarations themselves were not relevant facts. If they

were to be admitted it had to be because they were a' lawful

(a) that the caller knew of the advertisement; ' (b) that he knew the appellant, and (c) that he had knowledge, presumably of the appellant's proprietorship of the ousiness, from which he had inferred that the advertisement impugned the

Normally, to be admissible, such declaraLlions must accompany and explain a fact in issue and be made sat a time contemporaneous with the fact in issue. But proof of a person's knowledge of a fact, the existence of which is proved aliunde, may be proved by that person's assertion out of Court. Such statements need not be made contemporaneously with the happening of the fact, nor even at the precise time when existence of the

knowledge is in issue. See Vacher v. Cocks (1625) 1 B. Ad. 145;

"09 E.R. 744_and Thomas v. Connell (1838) 4 M & W 267, 150 E.R. . A429 ad Phipson_on Evidence, (12th ed. "1976',)para 222.

In this case the relevant facts were that the appellant was the proprietor of Polymedia Car Stereo and that the advertisement referred to Polymedia Car Stereo. Each of these facts was proved otherwise than by means of the proffered telephone conversations. Knowledge thereof in some person or persons might therefore be proved by their assertions

out of Court. And this was done in Cook v. Ward (supra) and

also in Jozwiak v. Sadek and Others /19547 1 All E.R. 3

In Jozwiak v. Sadek and Othcrs (supra) Ormerod, J.,

_din an action for libel, admitted testimony of the plaintiff

of anonymous telephone messages received by him after puolication of the matter complained of to prove that che words complained of related to him. His Lordship relied upon the older authorities of Cook v. Ward (supra) and Du Bost v.

Ina case like the present the evidence if admitted would have had to pass the tests of precision, clarity and

eredibility and would have been subject to comment as evidence

of unverified incidents at second-hand where first-hand testimony

would have been expected. And in Jozwiak v. Sadek and Others (supra) his Lordship whilst admitting the evidence expressed reservations as to its value and the necessity to warn the jury that such evidence should be treated with caution. It is not possible in this case to draw any inference as to what effect the admission of the evidence proffered would have had

But the evidence in question was not tendered as proof that the advertisement was understood by certain persons as impugning, the reputation of the appellant himself. The appellant's case was closed and remained closed with full

'17 The appellant having sovght to call the evidence of the telephone conversations as relevant to the issue of damage and that evidence having been rejected, rightly or otherwise, as inadmissible on that issue, it might have been argued that the conversations were admissible on the issue of whether the words published impugned the reputation of the appellant, if it had been thought that the conversations were admissible on that issue. But whether it was so thought 'ox not, the fact that no such argument was presented is fully explained by the prevalence of the view that evidence on that issue was unnecessary. Consistently with that view there would be no intention to tender evidence to prove that readers

understood the advertisement to refer to the appellant. That that was the view held is clear from the discussion between counsel for the plaintiff and the trial Judge when the witness Winter was giving evidence. The witness having

stated that she had seen the advertisement was asked what did

she think about it. Defendant's counsel objected and the

"Mr. Salmon: I object to that, Your Honour. If it goes to establish any matter other than those alleged in paragraph 3 that is a matter of law. What did she do in relation to it? What did you think about it?

His Honour: I do not know, it may be directed to the issue of reference to the plaintiff ...

a question about something in the acveris scent would be proper but the general - the questions asked I submit leads into a possibility vr the witness giving an opinion which she'is not entitled to give.

7/ can clarify that, Your Honour. It is not to identify the plaintiff. The plaintiff is named in the advertisement. The purpose of the question ---

You had better just be careful ... that you do not lead her by telling us what the purpose of the question is.

Honour to prove what a person believed was meant in order to prove that a reasonable person could hold the beliefs or would hold the beliefs that

Accordingly the plaintiff's counsel addressed first. On

rising counsel for the defendant addressed himself to the

question of damage and to the question whether the words

published were defamatory. In the course of that address the

learned Judge expressed the opinion that there was no allegation

in the pleadings that the words published referred to the

Counsel for the defendant replied in substance that

"he had treated the allegation as being involved in what was con-

tained in the Statement of Claim and also regarded that

allegation as being denied in the defence. His Honour took

the view that the matter should be abundantly clear. Asa

his Honour that after receiving instructions and discussing

the matter both parties took the view that the Statement of Claim should be amended to add the necessary words and the

Statement of Defence amended to specifically put them in

of reference to the plaintiff is in issue, the statement of claim is deemed to be amended by adding the words

Mr. Sheils: "I do not wish to be taken to be conceding that I have not pleaded it in effect by a combination of the paragraphs, but I am happy to amend it."

Mr. Salmon: "In any event, we agree on that, Your Honour." His Honour: Well,if Mr Salmmtook the point, I would have to decide that you had not, but Mr. Salmon does not take the point and it is now taken that you have , expressly pleaded that the words referred to

the plaintiff and it is expressly denied that the words referred to the plaintiff."

Leave was given to the plaintiff to amend.the Statement of Claim during the luncheon adjournment. On resumption after the adjournment the defendant's couusel

ammounced that both the Statement of Claim and the Defence

had been amended, addresses were heard and judgment given.

That the case went to trial without evidence that some person or persons understood the published words to refer to the appellant because the view was held that, such evidence was unnecessary appears to me quite clear. It explains why the plaintiff's case was closed without there being any such evidence. It explains the statement made when the witness Winter was giving evidence, "It is not to identify the plaintiff, The plaintiff is named in the advertisement". It explains why there was no reference to the issue in counsel's opening address. It explains why, when in the course of the appeal Mr. Kelly was asked how it was that no such evidence was called, he stated that he was unable to say. It explains why the intervention of the learned Judge emphasising the necessity for the Statement of Claim to contain an express allegation that the words were published "og and concerning the plaintiff" and for the defence to contain an express denial thereof did not provoke, even at that stage, an application to resubmit the evidence of the conversations or to adjourn the case to obtain the necessary evidence. The view that "the plaintiff is named in the advertisement" is substantially

that put forward by Mr. Kelly in his first submission in

. based upon that view and having allowed the matter to go to

judgment without evidence that the advertisement operated to Ampugn the reputation of the appellant himself now applies to have the judgment set aside so that he may adopt a different course in f new trial. But it was because of the course adopted on behalf of the appellant that there was before the learned Judge no evidence relating to an issue in respect of which

the onus was on the appellant. Accordingly, no error can be

found in the judgment 'given or the reasons therefore and no

. The appeal should therefore be dismissed with costs.

. preceding pays ase a trve copy of - « Reasoe: 3 for Juugm=-nt herein of his H- t By. Justice Om Afews

GENERAL DIVISION ON APPEAL from the Supreme Court of the Australian Capital Territory BETWEEN DAVID KRUSE Appellant AND ANTON _ LINDNER Respondent REASONS FOR JUDGMENT NIMMO, J. 14 April 1978 ; , Canberra

This is an appeal from a decision of Blackburn J. of the Supreme Court of the Australian Capital Territory dismissing with costs an action for defamation brought by the appellant against the respondent. The action arose out of insertion by the respondent of the following advertisement in 'The Canberra Times' of Saturday 10 January 1976 -

Shop around before you buy at Polymedia Car Stereo - 57 Wollongong Street, Fyshwick.'

At the conclusion of the hearing of the action His Honour delivered a short oral judgment as follows - "This case turns on a question of fact. The words do not expressly refer to the plaintiff. On the evidence before

me I do not find that any person understood the words, reasonably or otherwise, as referring to the plaintiff.

On that ground the plaintiff must fail. The action is dismissed, '

It is settled law that before a plaintiff can succeed in an action for defamation he mist prove that the words complained of

referred to him or were understood by reasonable people to refer

to him. See Gatley on Libel and Slander 7th ed. at p.126 and

the cases there cited. It is also settled law that an appellate court will not set aside a finding of fact by a lower court unless it is satisfied that the finding was wrong: Whitely Muir

200 Zvanepberg Ltd, v. Merr (1966) 39 A.L.J.R. 505; Edwards v. Noble (1971) 125 C.L.R. 296,

Only two witnesses gave evidence at the hearing, the appellant and a secretary in the employ of his solicitors. The secretary when aeked under cross-examination whether she knew anyone at Polymedia Car Stereo replied, 'No, I don't.* and when asked 'Did

The appellant in his evidence stated that he was the registered proprietor of the business known as Polymedia Car Stereo and that he carried on the business at 57 Wollongong Street Fyshwick under

After the appellant had been cross-examined on matters unrelated to the questions raised on this appeal his counsel, Mr. Sheils, said to the learned presiding judge, 'I will seek Your Honour's Ieave to ask a question, subject to my learned friend's right to

cross-examine, that I should have asked in chief'. One can

only asaume that the leave sought was granted for Mr. Sheils continued, *Mr. Kruse, after that advertisement appeared in the paper, did anyone speak to you about it?! The appellant's anewer as recorded in the transcript reads -

'Several people contacted me over the week-end, two or three people in the motor vehicle business in Fyshwick that I was dealing with at the time, and as late as the beginning of May. We had a gentleman with a Volkswagen Kembi van come to us and said he came to us as the last resort on the strength....!'

That is as far as the answer got for at that point it was objected to and the following discussion between His Honour and Mr. Sheils then ensued -

'Mr. Sheila: If it please Your Honour, I press this. It is relevant. Evidence on the part of the plaintiff that he has been held up to approbrium or subject----

His Honours Just a minute, Mr. Sheils,. We have not had that evidence,

His Honour: Your own witness is in the witness box. He says, he started to say that somebody from some other business came to him and started to say something.

Mr. Sheils: Yes, Your Honour, Well, Your Honour, I would submit that that is admissible.

His Honour: What is it admissible in proof of - what issue does it goa to?

Mr. Sheila; It goea to the issue of damage, Your Honour. The fact that the advertisement is mentioned to the plaintiff afterwards is admissible to prove that in fact it has been brought home to him, If, for instance, in a cartoon a man is held up to ridicule and later people mention the cartoon, that becomes admissible, Your Honour. If a man is said to have carried out certain actions or to be guilty of certain conduct and that advertisement is referred to, or the conduct is referred to later----

His Honour: Yes, all you prove is that somebody saw it.

Mr. Sheitlet Yes, Your Honour, and took notice of it. That is what I am seeking out.

His Honours All right. What you want to get from him now is evidence that somebody said that they had seen the advertisement. You could do that just as well by calling the person,

Myr. Sheilss: Well, if I knew who it is, Your Honour, but another way of doing it, not quite the same thing, Your Henour, I would submit that it 1s permissible to ask the witness was the subject of the advertisement raised by somebody, not to ask him has he seen the advertisement but what happened, and if something happened and it was obvious that it happened as a result of the advertisement---- -

His Honour: You have still got to get around the hearsay rule. You cannot have somebody saying to you, him reporting what somebody else said to him, can you?

Mr. Sheils: Well, if he says, "Somebody told me they saw the advertisement" - well, that would be hearsay.

Mr. Sheils: But if he says "I have behaved in a certain way because of something I have read then----"

His Honour: Well, that 1s still hearsay. Mr. Sheils: Well, I would submit, no, Your Honour.

His Honour: It is introducing a statement made by this witness of a statement made by another witness - by ancther person ~ in order to prove the truth of what that other person - or prove the truth of some fact.

Mr. Sheila: What the other person said. His Honour: Yes.

Mr. Sheils: Well, Your Honour, I do not put it that way. I put it to prove the fact that it is still a matter live in the thoughts of people in that merely it is being raised at that stage.

Nis Honours Well, what issue does that go to, Mr. Sheils?

Mr. Sheils: The fact that it is - well, 1t goes to the head of damages, Your Honour, that it is still in people's minds, that is all.

His Honour: I really do not think so, Mr. Sheile: May it please Your Honour,

His Honour: The advertisement was published - that has been admitted. I do not think you can ask him that question.

Mr. Sheils: Yes, well, I have nothing further, Your Honour'

Before this court counsel for the appellant challenged the

correctness of His Monour's judgment on two grounds.

First, he contended, all that was necessary for the appellant

to show in order to prove that the advertisement referred to him was that he was identical with the person who operated the business of Folymedia Car Stereo. That, he said, the appellant had done by his own evidence, I am unable to accept this contention which I consider goes beyond what was decided in

Godhart v. James Inglig @ Co. Ltd. (1905) 2 C.L.R. 78 and the

other authorities cited by counsel and cuts right across the principle thet a plaintiff in an action of this kind must prove that the words complained of expressly refer or be understood by Feasonable people to refer to him. The words in the advertisement do not expressly refer to the appellant 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

Secondly, counsel contended that His Honour wrongly shut out the evidence counsel for the appellant was eliciting in relation to persons who contacted the appellant after the advertisement had appeared in 'The Canberra Times'. He argued that such evidence

was admiseible and had it been allowed in on the question of

damages, the basis on which counsel for the appellant tendered

it, it would also have been evidence on the question of reference

In dealing with this contention it is necessary to consider at the outset what was objected to by counsel for the respondent, It certainly was not the question asked by counsel for the appeliant for no objection to it was raised when it was asked. Mor would it appear to have been directed to the first part of the appellant's answer 'Several people contacted me over the week-end, two to three people in the motor vehicle business in Fyehwiok that I vas dealing with at the time'. Had it been directed to that part of the answer I think His Honour would have disallowed it for the appellant up to that point was testifying to a fact within his own personal knowledge, the fact that certain people bad got in touch with him after the advertisement had appeared in the newspaper. In my view proof of that fact is not of itself proof that those people understood the advertisement to refer to the appellant personally as opposed

to the business of Polymedia Car Stereo the proprietorship of which was not shown to have been known to them, Having regard to the decision reached by His Honour it is apparent that he was not prepared to draw an inference from the fact that certain people got in touch with the appellant after they saw the advertisement, that they understood the advertisement to refer to him. In that, I believe, he was correct. I think that the second part of the appellant's answer was not intended to be in

the form in which it is recorded in the transcript of his

ar vy Me *,...and as late as the beginning of May, we had a gentleman with a Velkswagen Kombi van come to us and said he came to us aa the last resort on the strength....'. It would appear from the discussion between the judge and counsel for the appellant that they understood the objection to be directed to that part of the answer for on the face of it the appellant was commencing to give evidence at the moment the

objection was raised of something that somebody else had told

Buring the discussion between the judge and counsel His Honour made it clear that he considered that the appellant was in the process of giving hearsay evidence at the time he was stopped. As the following extract from the reasons of the Privy Council in Subyamanian v. Public Prosecutor (1956) 1 W.L.R. 965 at p.970 shows, evidence of a statement made to a witness by a person who is not himeelf called as a witness may or may not be hearsay. 'It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the trath ef the statement, but the fact that it was made.?

The passage just quoted was restated and applied in Ratten v.

It would appear that His Honour had in mind the principle stated in the passage when he said to counsel for the appellant - 'It is introducing a statement made by this witness of a statement made by another witness - by another person ~ in order to prove the truth of what that other person - or prove the truth of some fact', I think Nis Honour showed at that stage that 1t was not

the appellant's evidence of the fact that a gentleman in a Kombi

we " 2 yt 'gq Tae ey Tye ng ah th nA?» fap ihe of Me othe

van had called on him after the advertisement had appeared and made a statement that he considered objectionable but what he thought might be an attempt to establish the truth of the statement which, had the appellant been allowed to complete it, would have probably been to the effect that the gentleman had come 'to us' as t Last resort on the strength of the warnin eonmt agvertisement. Such a statement would have had no probative value for it could not be used as evidence of the truth of the words I have underlined and so His Honour quite properly, in my opinion, did not allow it in on the ground that it would offend the rule against hearsay. In any case 1t seems to me that had it been admitted in evidence 1t would not have helped the appellant's case in relation to the issue on which his action failed fer the appellant stated that the gentleman concerned had come 'to us' which suggests that the advertisement hed directed the gentleman's attention to the business of

Polymedia Car Stereo and not to the appellant personally.

It follows that in my view there 1s nothing wrong with the learned trial judge's finding on the evidence before him that the eppellant had failed to prove that the words of the advertisement

referred or were understood by reasonable people to refer to him.

t certify that this and the 2, (7 ) preceding paces are a true copy of the

ON APPEAL from the Supreme Court of the Australian Capital Territory

Appellant AND ANTON LINDNER Respondent REASONS FOR JUDGMENT CONNOR, J. 14 April 1978 Canberra

The circumstances in which this appeal is brought are fully set out in the reasons of Smithers J. and of Nimmo J. In the Pleadings the defendant specifically denied that the words complained of referred to the plaintiff or were published of or concerning the plaintiff. Very shortly after the first witness was called the learned trial judge, in discussing with counsel for the defendant the admissibility of certain evidence, remarked that it might be directed to the issue of reference'to the plaintiff. Counsel for the plaintiff then informed His Honour that the evidence in question was not put to that issue and counsel added "The plaintiff is named in the advertisement". Even at that early stage of the trial the parties, it seems to me, had chosen their own

battleground, the plaintiff contending that he was named in the

advertisement, the defendant denying that the advertisement was published of or concerning the plaintiff.

This sppesl is concerned with two matters. The first is whether in a defamation action, as distinct from an action for injurious falsehood, the plaintiff could show that the advertisement referred to him simply by proving his proprietorship of Polymedia Car Stereo. The second is whether the appeal should succeed because of the rejection by the learned trial judge of certain evidence.

As to the first point I think 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 was published to a person or persons who had knowledge of those circumstances - Consolidated Trust Company Limited v. Browne (1949) 49 S.R. (N.S.W.) 86, a decision of the Full Court of the Supreme Court of New South Wales - see in particular per Jordan C.J. at p.89 and per Davidson J. at pp.92-93. This decision was followed by another decision of the Full Court

of the Supreme Court of New South Wales in Cross v. Denley (1952)

$2 S.R. (N.S...) 112 see per Owen J. at pp.115-116. In the latter case the plaintiff was shown to be the proprietor of a business which was carried on under a particular style or business name which did not include his own name. The allegedly defamatory material referred to a business with a name very similar to the name of the business conducted by the plaintiff but the material did not mention the plaintiff by name. There was no evidence that anyone to whom the material was published had any special knowledge enabling him to connect the material with the plaintiff. Consequently the plaintiff in that case failed. I am therefore of

the view that the learned trial judge in the present case was

correct in holding that, unless there was evidence which satisfied him that some person understood the words as referring to the appellant, the action would have to be dismissed.

The second question concerning the admissibility of evidence must in my view be looked at in the context in which it arose. The pisintiff gave short evidence in chief. After stating his name and address and that he was the registered proprietor of the business and that he had seen the advertisement, the remainder of his evidence in chief was devoted to damages. The cross- examiastion by counsel for the defendant was confined entirely to the question of damages. The plaintiff was then asked in re- examination the following question. "Mr. Kruse, after the edvertisement appenred in the paper did you speak to anyone about itt" To which the plaintiff replied. "Several people contacted

me over the weekend, two to three people in the motor vehicle

' business in Fyshwick that I was dealing with at the time, and as

late as the begimming of May we had a gentleman with a Volkswagon Koabi van come to us and said he came to us as the last resort on

the strength --". The evidence was then objected to by counsel for the defendant. In the context I take it that the objection was to the part of the evidence concerning the gentleman with the Volkswagon Kombi van. On the authority of Jozwiak v. Sadek s&

Others (1954) 1 W.L.R. 275 I think that the evidence of the telephone conversations was admissible to show that some people identified

the plaintiff with the advertisement. It did not at any stage

appear what further evidence might have been given about the gentiensn with the Volkswagon Kombi van but in the context it seems to me that, as far as it went, it also was admissible to identify

the plaintiff with the advertisement. The problem at the trial arose

immediately after the objection was taken. When the learned trial

judge, in order to deal with the objection, asked counsel for the plaintiff what issue the evidence went to, counsel replied that it went to the issue of damages. I think that by reason of the rule Peferred to in Jozswiak's Case supra this evidence was admissible on the issue of reference to the plaintiff but was hearsay evidence epiy on the issue of damages. In any event, although there was evidence before the court of the telephone calls which could be used on the question of identification, it was open to the learned trial judge to place very little value upon it, particularly when the people who made the telephone calls were not called, although their identity was known to the plaintiff, and no explanation was

offered ss to why they were not called - cf. Jozwiak v. Sadek s& Others (1954) 1 W.L.R. 275 per Ormerod J. at p.277 where His Lordship referred to the directions which he proposed to give to the jury.

What the learned trial judge said finally was "On the evidence before me I do not think that any person understood the words, reasonably or otherwise, as referring to the plaintiff". It seems to me that the learned trial judge in all the circumstances to which I have referred was perfectly entitled to take such a view and that this court would not be justified in putting aside the assessment which His Honour made of the weight to be attached to the evidence concerning the telephone calls which in any event did not make it clear that the persons making the telephone calls connected the advertisement with the plaintiff as distinct from the business.

The evidence concerning the gentleman with the Kombi van had been rightly rejected as inadmissible on the only issue on which it was sought to lead it. As I have said it would have been relevant to the issue of identification but counsel for the plaintiff @id not seek to have it admitted on this ground. Even if it had

bean admitted om this ground it seems unlikely that in the absence

ony "of sworn evidence from the gentleman himself, which could be tested a in cross-examination, the learned trial judge would have been sian peremaded by the plaintiff's account of it any more than he was oy persuaded by the plaintiff's account of the telephone calls. This ; oe gteund in my view is much too tenuous to support this appeal.

For these reasons I think that the appeal should be "roe dismissed. I agree in the orders proposed by Smithers J. and

, : | I certily that th.s and the _ - | . ¢ 4 Preceding PasesS @.-8 a trio cen t: Reascns for J ws enn