Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd; Plymouth Brethren

Whether separate question orders should be made

1. Rule 28.2 of the UCPR provides: The Court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings.
2. The order sought by the defendants in notices of motion filed in each proceeding is "that the question of the capacity of the matters complained of to identify the plaintiff be determined as a separate question". In my respectful opinion, it would have been preferable to formulate the order sought in terms posing a question that demands a specific answer, as follows: "that the question whether the matters complained of are reasonably capable of identifying the plaintiff be decided separately from and before any other question in the proceedings."
3. Mr Smark SC, who appears with Ms Chrysanthou for the plaintiff, submitted that the question posed is inappropriate for determination as a separate question in this case. He accepted that the issue of the capacity of a publication to identify the plaintiff could, in an appropriate case, be determined as a separate question. He submitted, however, that the question raises an issue of reasonableness which will necessarily turn on matters of evidence in this case and that the scope of the evidence would, in the ordinary course, develop as the matter proceeds to trial.
4. Mr Smark further submitted that particulars, including particulars of identification, are apt to be supplemented, expanded and changed and sometimes withdrawn, particularly after the parties have had the benefit of interlocutory procedures such as discovery, interrogatories and subpoenas.
5. I am satisfied that it is appropriate in the present case for the question raised by the defendants' notices of motion to be decided separately, for the following reasons.
6. First, there is a precedent for deciding the question of capacity to identify as a separate question, at least where it is a question that can be determined taking the pleadings and particulars at their highest: see Younan v Nationwide News Pty Ltd. [4] It must be acknowledged that those proceedings took an unusual course. The plaintiffs' claim was based on an article about the conduct of a boarding house during a particular period. The plaintiffs had become the owners of the boarding house at a later time and were the owners at the time of publication of the matter complained of. All of the imputations were expressed in the past tense (for example "the plaintiff ran a boarding house in Marrickville with reckless disregard for the health of its residents") whereas the particulars of identification were in the present tense ("the plaintiffs operate a boarding house in the property").
7. Justice Nicholas held that, according to the undisputed pleaded facts, the matter complained of was incapable of identifying the plaintiffs and accordingly made an order dismissing the proceedings, presumably under r 28.4 of the UCPR.
8. An application for leave to appeal was brought against that decision. Leave was said to be required because the order for dismissal was interlocutory. [5] It may be noted that, having determined the issue of identification as a separate question, Nicholas J could arguably have entered judgment for the defendant under r 28.4(2)(b) but that was not the order made.
9. As the course of ordering a separate question had not been opposed at first instance, it was not necessary for the Court of Appeal to consider that issue. Macfarlan JA nonetheless paused to make some observations about that course. In particular, his Honour noted that the determination of a point as a separate question requires its consideration "as on a final hearing" and that the determination of such a question "will often be appropriate where, as here, the determination of a question of law in one way will dispose of the proceedings". [6]
10. The Court concluded that, on the case as pleaded, the decision at first instance was right. As I would understand it, that was a conclusion that the issue of identification (an element of the cause of action) had been determined adversely to the plaintiffs on a final basis. However, the Court of Appeal then granted an application by the plaintiffs to amend their particulars so as to cure the temporal problem and, on that basis, allowed the appeal. In the circumstances that was generous, in my respectful opinion. Having granted the amendment application, the Court said: [7] It is regrettable that the order for separate determination in this matter has resulted in unnecessary costs being incurred but that is a risk that is run where such orders are made, or indeed summary dismissal or strike out applications are made. These steps give plaintiffs an opportunity to reconsider their positions and, perhaps, to thwart them by seeking to amend pleadings or particulars. As Aon illustrates, a defendant may be in a better position to resist such an amendment if it is sought during a trial, when the consequence of its allowance may be an adjournment with corresponding expense to parties and to public resources. It is less likely that the Court will at an interlocutory stage refuse to permit a plaintiff to amend to raise an arguable case.
11. Mr Smark submitted that those remarks indicate Macfarlan JA "entertained doubts" about the appropriateness of determining the issue as a separate question. I would not interpret his Honour's remarks in that way.
12. The decision in Younan highlights the importance, before ordering a separate question, of considering whether the question is one that can fairly be determined before the evidence is heard, taking the pleadings and particulars at their highest. But that is not to say the Court should balk at separate questions on the grounds that the plaintiff may in the future seek to shore up his case after taking further interlocutory steps.
13. The High Court has made plain that, in pursuing the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW) of facilitating the just, quick and cheap resolution of the real issues in the proceedings, the Court is entitled to take a "robust and proactive approach". [8] All necessary particulars of a claim are supposed to be provided in the pleadings: r 15.1 UCPR. That is not to say that particulars cannot be supplemented, expanded or changed where it is appropriate to allow that to occur. But parties should not proceed on the assumption that that is the norm; certainly, the exercise of the Court's procedural powers should not be constrained by any such assumption.
14. That is particularly so in the case of actions for defamation where the risk of disproportion between the cost of the proceedings and the interest at stake is high. It would be inimical to the overriding purpose to encourage any assumption that a deficiently-pleaded case will be allowed to proceed on the basis that it might be cured through the use of interlocutory procedures.
15. In any event, as explained below, my assessment of the separate question in the present case is that no additional particulars or evidence could save it from being answered in favour of the defendants.
16. For those reasons, I am satisfied that orders for separate decision should be made in this case.

The matters complained of

1. The article sued on by the plaintiff discusses the manner in which allegations of child sex abuse were dealt with by the Exclusive Brethren over a lengthy period. It begins with an account of the experience of a young girl who, in mid-2002, reported to her mother that she had been sexually assaulted by Lindsay Jensen, an elder of "the Christian sect to which they all belonged". It refers to legal proceedings heard in 2005 relating to those allegations.
2. Paragraph 20 of the article then introduces the topic of the Royal Commission into Institutional Responses to Child Sexual Abuse, stating: The Royal Commission has examined everything from Sydney's Knox Grammar School to the Jehovah's Witnesses; Cardinal George Pell to Tennis NSW. But not the Exclusive Brethren, a wealthy Protestant sect of 40,000 worldwide (including 15,000 in Australia), led by Sydney based Bruce Hales. Among the Brethren (now rebranded as the Plymouth Brethren Christian Church) public scrutiny is shunned just as surely as are radios, TVs, voting and other trappings of "worldly" society. So far this group has managed to fly under the radar. That is about to change".
3. The article then turns to the involvement of Mr Tony McCorkell, a former member of "the sect" who (as at the date of the article, published on 18 June 2016) had decided to speak out about his role in covering up accusations of child sex abuse within the sect. It addresses matters dealt with by McCorkell between 2006, when he went back to the church offering "some strategies to assist" with its public relations, and 2009, when he left the church again.
4. There is an explanation of the role of Bruce Hales, who is described as "the seventh leader of a church founded in southern England's Plymouth in 1829". The article states that Hales has ultimate control over "how the Brethren dress and wear their hair and make-up, with whom they eat and whom they marry, where they live, where their children go to school and what entertainment they seek".
5. The article then describes the claims of child sex abuse dealt with by McCorkell during the three-year period when he re-joined the church and became Hales' "right-hand man". They include the case of the girl who reported that she had been sexually assaulted in 2002 by Lindsay Jensen, a similar report by her sister (both complaints having been made before McCorkell rejoined the church), the case of a man who, as a boy, was abused by his uncle over a four or five year period from 1975 (dealt with by McCorkell in 2007) and the case of a woman who as a girl was abused by a local church doctor in 1966 (dealt with by McCorkell in about 2007 or 2008).

The pleadings

1. The plaintiff alleges that the article conveyed the following imputations about it: 1. The plaintiff is an institution which covered up child sexual abuse by Lindsay Jenson, then one of its members; 2. The plaintiff is an institution which discourages victims of child sexual abuse from speaking out; 3. The plaintiff is an institution with a priority to protect its property and assets ahead of protecting the victims of child sexual abuse; 4. The plaintiff is an institution which forced two child victims of sexual abuse by Lindsay Jenson to live with him.
2. As the plaintiff company is not in fact the entity referred to in the article (and did not exist when the events described occurred), any defence of truth to those imputations seems doomed to fail.
3. As already noted, the plaintiff is not named in the matters complained of. Contrary to the requirements of the rules, the pleading contained no particulars of identification. The defendants wrote to the plaintiff in early October 2016 drawing attention to the requirements of r 15.19(1)(d) of the UCPR, which provides that the particulars to the statement of claim must include: If the plaintiff is not named in the matter complained of - particulars of identification of the plaintiff together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known.
4. The plaintiff responded by providing the following particulars: Particulars of Identification (a) Throughout the matters complained of there are references to "the Exclusive Brethren", "the Brethren" and "the Plymouth Brethren Christian Church" including the following references: "Among the Brethren (now rebranded as the Plymouth Brethren Christian Church) …"; "…the Exclusive Brethren has rebranded itself the Plymouth Brethren Christian Church …"; (b) The plaintiff is registered as a company limited by guarantee in the name of "Plymouth Brethren Christian Church"; (c) The plaintiff is registered as the owner of the trade mark "Plymouth Brethren Christian Church"; (d) The plaintiff trades as Plymouth Brethren Christian Church; (e) The plaintiff is the owner and operator of the plymouthbrethrenchristianchurch.org website. That website contains numerous references to the "Plymouth Brethren (Exclusive Brethren Christian Church", the "Plymouth Brethren Christian Church" and "Plymouth Brethren (Exclusive Brethren) Christian Church Ltd". (f) The plaintiff is registered with the Australian Charities and Not-for-profits Commission as a registered charity; (g) The plaintiff is the sole member of Rapid Relief Team, being a registered charity and public benevolent institution, which operates its own website and which is referred to repeatedly on the plaintiff's website; (h) The plaintiff retains media and public relations advisers to respond to media enquiries and articles relating to the Plymouth Brethren Church; (i) The plaintiff, being "Plymouth Brethren (Exclusive Brethren) Christian Church Ltd", is specified as the owner of copyright in material concerning the Plymouth Brethren Church sold through the plymouthbrethrenchristianchurch.org website - see the booklet entitled "Living Our Beliefs"; (j) The plaintiff operates a YouTube channel page at https://www.youtube.com/user/plymoughtbcc with various videos uploaded on that page containing a statement that the copyright owner of the videos is "Plymouth Brethren (Exclusive Brethren) Christian Church Ltd"; (k) There are 4 volunteers of the plaintiff who have email accounts which contain 'footers; referring to "Plymouth Brethren (Exclusive Brethren) Christian Church". Particulars of Identity The particulars of identification were known by the following classes of persons who read the matters complained of: (a) Readers of matter contained on and/or purchased through the plymouthbrethrenchristianchurch.org website. In this regard, we are instructed that there was a significant "spike" in new users of the plaintiff's website as at the date of publication of the matters complained of, and it is clear that by reason of that "spike" that our client was plainly identified by readers of the matters complained of; (b) Viewers of video matter placed on the plymouthbrethrenchristianchurch.org website and YouTube channel page at https://www.youtube.com/user/plymoughtbcc; (c) Officers and/or employees of the Australian Charities and Not-for-profits Commission; (d) Persons who received assistance from the Rapid Relief Team; (e) Recipients of responses to media enquiries and articles relating to the Plymouth Brethren Church; (f) Recipients of emails from volunteers of the plaintiff; (g) Parishioners of the Plymouth Brethren Church.
5. The plaintiff's evidence (an affidavit sworn by its solicitor, Mr Svilans) established that the plaintiff is associated with the Plymouth Brethren Church but is not the church. The plaintiff owns a website about the church, owns the trade mark "Plymouth Brethren Christian Church", answers media inquiries about the church and runs a charity. [9] The church consists of a group of assemblies or congregations "without any governing constituent document other than the Holy Bible". [10]
6. The plaintiff's lengthy particulars of identification notably omit the fact that the plaintiff did not exist until 24 May 2012. The matters complained of are unequivocally concerned with events that occurred before that date. Accordingly, as already noted, the plaintiff company could not, as a matter of objective fact, be the organisation referred to in the article. Mr Smark submitted, however, that that is not the test.

The separate question

1. The defendants submitted that the plaintiff bears the onus of establishing that the publication was "of and concerning" the plaintiff. While that is the expression used in many authorities, it is appropriate now to adopt the language of the Defamation Act, which refers to a cause of action for defamation in relation to the publication of defamatory matter "about" a person or an excluded corporation. [11]
2. It is clear enough that that question is not determined by reference to the subjective intention of the author of the article. The test is objective; the task is to consider what the words mean. The question is, to whom?
3. The test in Canavan focuses on the inference that might reasonably be drawn by "persons acquainted with the plaintiff". The defendants' argument assumed that means a person acquainted with the true facts concerning the plaintiff. The plaintiff submitted that the test is, rather, whether some people might reasonably have understood the matter complained of to refer to it even though any such understanding must necessarily have been mistaken.
4. In my view, the correct position is as stated by the defendants. Leaving aside cases in which the plaintiff is identified by name or image, I do not think a publisher can be held liable for a conclusion as to identification founded upon an erroneous belief on the part of the reader. The authorities relied upon by the defendant to establish that proposition were Mirror Newspapers Ltd v World Hosts Pty Ltd [12] and my decision in Nu-Tec v ABC. [13]
5. The relevant passage in Mirror Newspapers states (citations omitted): A defendant is not liable for an imputation which is not the product of the words complained of read in the light of existing facts known to the reader, but which is merely the product of those words understood in the light of the reader's erroneous belief. It is of course different if the reader's belief arises from, or is the product of, the matter complained of. Then the case falls to be determined, as here, by reference to the inherent capacity of the words to bear the imputation put forward, that is, by reference to the natural and ordinary meaning of the words.
6. In Nu-Tec, I said: 17 The principles as to identification of a plaintiff in proceedings for defamation are well-known. In Morgan v Odhams Press Ltd (1971) 1 WLR 1239, Lord Morris said (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." 18 The test assumes that the identifying circumstances known to some readers or viewers are circumstances that in fact exist. A publisher is not liable for a defamatory meaning imputed to the plaintiff as a result of some erroneous belief on the part of a person to whom the matter is published. That proposition is well established in the context of true innuendo: Mirror Newspapers v World Hosts. The position is no different in respect of particulars of identification.
7. The burden of the defendants' submission was that the article could not reasonably lead persons acquainted with the plaintiff to believe it was the entity referred to because such persons would know it did not exist at the time of the conduct described. In that circumstance, so it was submitted, any identification of the plaintiff as the entity referred to would necessarily be based on an erroneous belief on the part of the reader.
8. Mr Smark submitted that the defendants' position was misconceived in that respect. I understood him to contend, as an aspect of that submission, that the last sentence in the passage from Nu-Tec set out above is wrong and that a plaintiff can have a cause of action on the basis that he or she is identified as the person referred to in an article even if the identification would be based on an erroneous belief.
9. On one view, this issue is easily resolved by a simple application of the plain words of the statute. As already noted, the Defamation Act contemplates the existence of a cause of action in respect of the publication of defamatory matter "about" a person. That suggests an objective test. It does not suggest the existence of a cause of action for the publication of defamatory matter not about a person, or about a non-person.
10. Of course an article that names a person or depicts a person in a photograph is an article "about" that person, even if the person is named or depicted by mistake on the part of the newspaper. Similarly, an article intended to describe a fictitious person may be taken to be an article about a real person of the same name. [14] Cases referring to persons by name or photograph are in a different category because the erroneous belief arises from the words published. Such an article is "about" the plaintiff, even if it was not intended to be. I do not think the words published in the present case, which describe the conduct of members of a church in past decades, is capable of being taken to be a publication "about" a corporate vehicle first registered in 2012.
11. In case it is considered heretical to rest on the clear words of the statute in this most arcane field of the common law, my review of the authorities relied upon by the parties has brought me to the same conclusion and has not prompted me to resile from what I said in Nu-Tec.
12. Those authorities do draw a distinction between defamatory publications in which a plaintiff is referred to by name and those in which that is not the case. Mr Smark submitted that the question in the present case is not who was meant but rather who was hit. That was the question posed in argument by Loreburn LC in E Hulton & Co v Jones, the case referred to above involving an article about a person thought to be fictitious but who actually existed. [15] The plaintiff was Mr Artemus Jones, a barrister who had previously been on the staff of the newspaper and contributed articles under his own name. The authors of the matter complained of, believing "Artemis Jones" to be a fictitious person with an unusual name, published an article defamatory of a person so described. The fact that they had not intended to refer to the plaintiff was not to the point. They had referred to a real person by name.
13. The liability of the publishers in Lee v Wilson [16] and Zoef v Nationwide News Pty Ltd [17] similarly rested on the fact that the identification of the plaintiff in each case was the result of the words published. In each case, the article referred to a person of the name of the plaintiff. It makes sense that a publisher will be held liable where his own erroneous statement leads to the identification of a person but not where that occurs due to an erroneous belief not arising from the words published.
14. Separately, Mr Smark submitted, in effect, that a lack of knowledge on the part of the reader (that the plaintiff did not exist at the time of the conduct described in the article) cannot be styled as an erroneous belief. He submitted that there is no reason to think persons "acquainted with" the plaintiff would know when it was incorporated.
15. I do not accept that submission. The argument tended to conflate the objective qualities of a person with the particulars of identification relied upon by the plaintiff. The particulars specified in the present case do not include the fact that the plaintiff came into existence in 2012, for the obvious reason that any person who knew that fact would know the article was not about the plaintiff. I accept that there may well be classes of people who are aware of the existence of the plaintiff but do not know when it was incorporated. But in that event, the inference that the article was about the plaintiff could not reasonably be drawn based on the words published. It could only be based on speculation on the part of the reader.
16. For those reasons, I have concluded that the matters complained of are not reasonably capable of identifying the plaintiff.
17. The defendants submitted that, in that event, both proceedings should be dismissed. It might be more appropriate in the circumstances to enter judgment for the defendants, as allowed under r 28.4(2)(b). As that has occurred to me only since reserving my decision, it will be necessary to hear the parties on that issue and as to costs.
18. I make the following orders in each proceeding: 1. that the question whether the matter complained of is reasonably capable of identifying the plaintiff be decided separately from and before any other question in the proceedings; 2. that the separate question be answered "no".

Endnotes

1. Section 8 of the Defamation Act 2005 (NSW).
2. Section 9 of the Defamation Act.
3. (1918) 25 CLR 234; [1918] HCA 50 at 238.
4. [2012] NSWSC 1528 (Nicholas J).
5. Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [5] per Macfarlan JA; Bathurst CJ and Beazley P agreeing at [1] and [2].
6. Ibid at [20].
7. Ibid at [34].
8. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 at [57].
9. Svilans affidavit, par 4.
10. Svilans affidavit, par 5.
11. Defamation Act, ss 8, 9.
12. (1979) 141 CLR 632 at 642 per Mason and Jacobs JJ (with whom Gibbs and Stephen JJ agreed).
13. [2010] NSWSC 711 at [17]-[18].
14. Cf E Hulton & Co v Jones [1910] AC 20.
15. Ibid at 22.1.
16. (1934) 51 CLR 276.
17. [2016] NSWCA 283.

Amendments 03 October 2017 - Typographical error in case cited on coversheet 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: 03 October 2017