Abraham v The Advocate Company Ltd (1945) 2 Western Weekly Reports 181

Dowding v Ockerby (1962) WAR 110

Solicitors for the Respondent: Abbott Tout Russell Kennedy

The appellant pay the respondent's costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NEAVES J. The circumstances giving rise to this appeal are fully set out in the judgment to be delivered by Miles J. and need not be re-stated.

2. In my opinion, neither the language of the publication itself nor the circumstances in which it was published would cause a reasonable reader to understand that the defamatory words were published "of and concerning the appellant". It is sufficient to say that I agree with the reasons for that conclusion advanced in the judgment of Wilcox J. which I have had the advantage of reading. It follows that, in my opinion, the appeal should be dismissed with costs.

WILCOX J. In an article published in 1978 ("Retraction and Reply: Alternative Remedies for Defamation" (1978) 12 University of British Columbia Law Review 15) Professor John Fleming described the "preoccupation" of defamation law with damages as "a crippling experience over the centuries". He said that, not merely are damages inefficient in vindicating reputation, the link between liability and damages has prejudiced plaintiffs "(f)or on occasions where free speech should not be chilled by the spectre of damages, the law saw no alternative to creating an immunity and thereby depriving the defamed of any right to vindication".

2. An example of that experience is the law relating to group defamation. Two fundamental principles of defamation law are that:

(i) the subject statement must be published "of and

concerning the plaintiff"; that is, it must be a

statement about the plaintiff; and

(ii) it is irrelevant whether or not the defendant intended

to refer to the plaintiff. The defendant may not even

have known of the plaintiff's existence: see E Hulton

and Co v Jones (1910) AC 20.

3. Because of its use of the word "all", the statement "all lawyers are thieves" is a statement about each person who is a lawyer. The logic of the principles set out above therefore dictates the conclusion that each and every lawyer has a right of action against the maker of the statement, it not mattering whether the speaker intended to refer to that particular lawyer or was even aware of his or her existence. Yet ever since Willes J coined it (in Eastwood v Holmes (1858) 1 F and F 347 at 349; [1860] EngR 56; 175 ER 758 at 759), this example is routinely cited as an illustration of an unactionable statement. This is not because the statement is not of a defamatory nature; it clearly is. It is not because the statement is so intemperate and generalised as to be unlikely to damage the reputation of any individual lawyer. Although this is true, actual damage is not an essential ingredient of libel. The reason is rarely articulated, but it seems clear that the courts' restrictive approach stems from a reluctance to impose on a publisher liability to a large or indeterminate number of people for what might, in total, be a crippling burden of damages. The result is that a member of a defamed class of people unable to establish that the defamatory statement points particularly to himself or herself is denied any remedy whatsoever; not even the opportunity to force a correction of any mis-statement of fact in the defamatory utterance.

4. However unfortunate the result may be, the relevant legal principles are entrenched in the law. In Knupffer v London Express Newspaper Limited [1944] UKHL 1; (1944) AC 116 at 119 Viscount Simon L.C. stated the principle in this way:

"Where the plaintiff is not named, the test which decides whether the

words used refer to him is the question whether the words are such as

would reasonably lead persons acquainted with the plaintiff to believe

that he was the person referred to."

5. In the following year the Judicial Committee of the Privy Council put the matter this way, in Abraham v The Advocate Company Limited (1945) 2 Western Weekly Reports 181 at 185:

"... if on a fair construction the words are spoken of a class or body

of persons, an individual member of the class or body cannot sue in

respect of them unless there are circumstances that show that they may

be aimed at him."

6. The words "aimed at him" may appear inconsistent with the rule that the actual intention of the publisher is irrelevant in determining liability for defamation. But I think they merely mean that there must be some material, perhaps in the language itself, perhaps in the circumstances in which it was published, that would cause a reader or hearer to understand the publisher to refer particularly to the plaintiff. In Knupffer Viscount Simon followed the sentence extracted above by the following words:

"There are cases in which the language used in reference to a limited

class may be reasonably understood to refer to every member of the

class, in which case every member may have a cause of action. A good

example is Browne v D.C. Thomson and Co (1912) SC 359, where a newspaper

article stated in Queenstown 'instructions were issued by the Roman

Catholic religious authorities that all Protestant shop assistants were

to be discharged,' and where seven pursuers who averted that they were

the sole persons who exercised religious authority in the name and on

behalf of the Roman Catholic Church in Queenstown were held entitled to

sue for libel as being individually defamed."

7. Lord Thankerton agreed with Viscount Simon and he was a member of the Board which decided Abraham. In Dowding v Ockerby (1962) WAR 110 at 119, a decision of the Full Supreme Court of Western Australia, Wolff C.J. expressed the relevant principle in this way:

"It is well-established law that no action lies for a mass libel, but if

it can be shown from the text of a libel that it points definitely to

certain identifiable individuals as distinct from unidentifiable

individuals forming part of a mass, they have individual right of

action. In my opinion, this is no more than saying that individual

persons who can demonstrate from the terms of a mass libel that they are

referred to in the terms of the libel have a right to action."

8. Whatever view might be taken in the High Court of Australia, in the light of these authorities this Court should act on the basis that a statement concerning members of a class generally is actionable at the instance of a member of that class only if the member is able to point to circumstances which would indicate to a reasonable reader or hearer that the statement refers particularly to him or her. A plaintiff does not discharge that onus merely by establishing that one or more people thought of the plaintiff when they read or heard the statement. In Knupffer there were only 24 members of the British branch of the defamed group, the Young Russia Party. For about three years before publication of the defamatory article the appellant had been head of the British branch. Four witnesses gave evidence that, when they read the article, their minds went to the appellant. Yet the House of Lords unanimously held that the publication did not defame the appellant. In Dowding the trial judge refused to act on the evidence of three witnesses, whose probity was not in question, that they had understood the offending advertisement as referring to the plaintiff. The Full Court upheld that refusal.

9. In the way in which the law has developed, it seems clear that, in considering whether a statement about a group is defamatory of an individual member of the group, much will depend upon the precise nature of the statement. For example, in Knupffer at 123 Lord Russell of Killowen referred to the content of the subject newspaper report. He pointed out that the named organisation had some thousands of members, world-wide. He said that all that could be said of the article was that a reader who knew that the appellant was a member of the organisation "would know that he was one of the numerous individuals from whose ranks Hitler hoped at some time to nominate a puppet fuehrer in Russia". No doubt it would have been defamatory to say that a particular person was likely to be selected, or suitable for selection, by Hitler as a puppet fuehrer. It is less clear that it was defamatory (even in 1941) to say that a particular individual was a member of an organisation out of whose ranks a puppet fuehrer might be selected. Mere membership of the organisation might not indicate that the particular individual has the necessary odious qualifications for selection as a puppet fuehrer.

10. The facts of the present case are set out in the reasons for judgment of Miles J, which I have had the advantage of reading. In particular, his Honour quotes the whole of the letter which gave rise to Dr Mann's action. The letter is an extravagant, offensive attack on all bulk-billing doctors. It is also defamatory, suggesting as it does that bulk-billing doctors contravene their Hippocratic oath out of greed for money. But it is a statement about all bulk-billing doctors, of whom there were at the time about 18,000. There is nothing, in either the text of the letter or the circumstances of its publication, capable of indicating to a reader that it refers specifically to Dr Mann. True it is that he was a bulk-billing doctor and that, literally, the letter applied to him; but the authorities say this is not enough.

11. The appellant sought to overcome this difficulty by confining his case to the publication of the periodical in the Australian Capital Territory. The evidence shows that there were then about 810 practising doctors in the Territory. About 25% to 30% of them bulk-billed their patients, to a greater or lesser degree. So the class of people within the Territory defamed by the letter comprised some 200-250 individuals. Amongst them, and this is the thrust of the appellant's argument, the appellant was particularly prominent. He was a vocal advocate of bulk-billing. He was the only specialist surgeon in the Territory who bulk-billed. He carried on his practice in prominent "shop front" premises in one of the main commercial streets in Canberra, the premises bearing a sign indicating that Medicare bulk-billing was available. It is not surprising that the appellant was able to call several witnesses to say that when they read the letter their thoughts went immediately to him. However, with respect to Miles J who takes the opposite view, it seems to me that this is not enough.

12. I prefer not to express an opinion about the proper result if the subject publication had been one which circulated, and was known by readers to circulate, only in the Australian Capital Territory. It is arguable that, in such a publication, a reference to bulk-billing doctors could reasonably be read as referring particularly to a well-known local proponent of bulk-billing. But this publication did not circulate only in the Australian Capital Territory. It circulated Australia-wide, as readers must have known. The statements made in the letter applied to all Australian bulk-billing doctors, wherever they might be found. The only regional group specifically mentioned were New South Wales practitioners. The writer was not associated with the Australian Capital Territory. He lived in Tasmania. In short, the argument that the letter particularly refers to Dr Mann depends entirely upon the fact that some Australian Capital Territory readers applied a general, Australia-wide statement to a prominent local bulk-biller. That they did so is natural but their action does not arise out of anything in either the letter or the circumstances of its publication. There is nothing to suggest that Dr Mackey had Dr Mann, or even Australian Capital Territory bulk-billers generally, particularly in mind when he wrote the letter.

13. In expressing the above views, I do not overlook the passage from Eldredge, "The Law of Defamation", referred to in argument and quoted by Miles J. Although the work is an American publication, I do not doubt that what is said in that passage applies equally to Australian law and that, in the example he gives, the local lawyer, surgeon and minister would each have a right of action against the speaker. But suppose the same statement was made in a national radio broadcast, without any reference to Professor Eldredge's imaginary one-lawyer, one-surgeon, one-minister town. When he or she heard the splenetic utterances, a local listener might immediately think of the town's only lawyer, surgeon and minister. But it would be no more reasonable for that listener to treat the generalised statement as referring particularly to those three people than for a listener in a large city, with thousands of lawyers, surgeons and clergy, to believe that the speaker had in mind a particular lawyer, speaker or minister known to the listener. The width of the perceived audience is a significant factor.

14. I doubt that the publication of the subject letter in fact diminished Dr Mann's reputation, which was apparently very high. By June 1989 the controversy over bulk-billing had been waging for several years, especially within the medical profession. I suppose most doctors had an opinion about the desirability of the practice, from the viewpoint of both the public and their profession. To the extent that those who opposed bulk-billing thought the worse of those who followed the practice (and I would like to think that few of them would have shared Dr Mackey's extreme view), the damage, so far as Dr Mann was concerned, was already done. He was a well-known bulk-biller. The letter could have adversely affected Dr Mann's reputation only in the eyes of readers who were persuaded by it to disapprove for the first time of bulk-billing and its practitioners or to deepen their disapproval. It seems to me unlikely that there were many such people. The letter is so intemperate and unreasoning that it carries the seeds of its own rejection.

15. Notwithstanding these matters, I understand Dr Mann's sense of outrage and hurt at the publication of the letter. Any conscientious doctor would be upset at an accusation that he or she preferred monetary advantage to professional ethics. I think it is unfortunate that our law does not give a person in the position of Dr Mann some means of forcing the maker of such an accusation either to justify or correct it, or enable a court to rule on the merits of the slur. That there should be such a remedy was a view expressed by me, and one other member of the Australian Law Reform Commission, in the Commission's 1979 report, "Unfair Publication: Defamation and primary" (ALRC 11, paras. 95-98). The other three members of the Commission thought otherwise. Anyway, the report has not been implemented.

16. Higgins J held that, if the appellant was entitled to succeed, $5,000 would be an appropriate damages award. Miles J agrees with this assessment. The appellant argues that this sum is inadequate. He draws attention to the decision of Higgins J in Bainton v John Fairfax and Sons Ltd (14 November 1991, not reported) awarding damages of $75,000 to a barrister libelled in a newspaper article imputing professional misconduct and the giving of false evidence. There was no claim for special or pecuniary loss and no evidence that the plaintiff's reputation had been diminished. Although the present appellant concedes that the imputations made against Mr Bainton were extremely serious, appropriately attracting substantial damages, he makes the point that an imputation that a doctor had breached his ethical obligations in pursuit of financial gain is hardly less serious. He criticises the disparity between the sum awarded to Mr Bainton and the $5,000 assessed for himself.

17. It seems to me that there is force in this criticism. Any court which disposed of the case on the basis that some people would read the subject letter as conveying imputations against Dr Mann would, in my view, be bound to award him considerably more than $5,000. Yet, if there is an imputation against Dr Mann, there is the same imputation against each of the other 17,999 Australian bulk-billers. 18,000 times even $5,000 totals $90 million. The computation makes the point that, for group defamation, money damages are not the answer.

18. In my opinion the appeal should be dismissed. Despite my regret about Dr Mann's position, there is no principled basis for depriving the respondent of its costs of the appeal. The appellant should be ordered to pay those costs.

MILES J. The appellant, Dr Arnold Mann, sued the respondent in the Supreme Court of the Australian Capital Territory claiming damages for libel. Higgins J. found for the respondent upon the ground that the publication did not identify the plaintiff. Dr Mann appealed to this Court against that decision.

2. The publication was a letter to the editor in the issue of the newspaper "Australian Dr Weekly" published by the respondent on 20 January 1989. This is what the letter said:

"GREED IS THE MOTIVE

EDITOR - Dr Blewett's dear friends, the bulk-billing doctors,

are increasing among NSW GPs. The rest of the GPs appear to be

cringing in the fear of the AMA's new fee structure,

worriedabout unfair competition from bulk-billers and therefore

rejecting a change away from a government fee schedule.

We must never forget that a doctor bulk-bills not because of

concern for the patient, but because he wants to be paid and

doesn't care who pays him. His motive is greed. His actions

are contrary to the Hippocratic ethic of medicine which states

that the medical service is "a contract, exclusively between

patient and doctor without any third party involvement".

Medicine in Australia is way down the road to nationalisation

because of these greedy inadequate bulk-billing doctors, who

have sold their souls to the 'devil'. They deserve social and

professional ostracism from the rest of us.

The next time a patient asks your receptionist "does the doctor

bulk-bill?" the answer should be a resounding "No - do you want

a crook for a doctor".

Denis P. Mackey

Lindisfarne, Tas"

3. The action was commenced on behalf of Dr Mann and a company through which he organized his practice as a surgeon in Canberra. At the hearing in the Supreme Court the action by the company was discontinued and the claim, although originally made in respect of publication in the Australian Capital Territory "and other areas of Australia", was confined expressly to publication within the ACT, although the pleadings do not appear to have been amended to reflect that aspect. A claim against a co-defendant, the writer of the letter, Dr Denis P. Mackey, who has since died, was also discontinued.

4. Mr McClintock for the respondent defendant in a threshold submission took care to distinguish between the question of law whether the matter complained of is capable of identifying the plaintiff and the question of fact whether the matter complained of does so identify the plaintiff. That there is a distinction is undoubtedly correct, although the view has been expressed that the first question is not so much a question of law as simply a question reserved for the trial judge, whereas the second question is in a jury trial a question reserved for the jury once the plaintiff has obtained an affirmative ruling on the first question: see Morgan v. Odhams Press Ltd and Another (1971) 2 All ER 1156 per Lord Reid at 1243.

5. In this context it is also correct, as Mr McClintock submitted, that a ruling by the Supreme Court in this case prior to trial, refusing the defendant's application to strike out the plaintiff's claim on the ground that the publication was not reasonably capable of being understood to refer to the plaintiff, was not binding on the trial judge. This is because that matter was an issue for the trial judge to decide in the light of the evidence in the trial: see Morgan v. Odhams Press Ltd. The importance of the distinction for the present appeal, if I understand the argument correctly, is that if this Court should come to the conclusion that the letter was incapable of identifying the plaintiff, then this Court would not be inhibited in any way from dismissing the appeal and would not need to concern itself with deciding whether or not Higgins J. was correct in his findings on the facts. However, in a trial by a judge alone, the distinction between the so-called judge question and the so-called jury question is not necessarily of any significance. Higgins J. did not appear to consider that it was of any significance, and I do not see why he should have.

6. Certain findings by Higgins J. are not challenged and may be summarised. The newspaper "Australian Dr Weekly" was circulated each week by the respondent to subscribers who were mostly general practitioners of medicine. The rest were specialist practitioners. It was widely read in the medical community throughout Australia as in the Australian Capital Territory. Dr Mann is and was a distinguished and well respected specialist surgeon. He came to Canberra in 1974 and after a period as a salaried specialist went into full-time private practice on a fee for service basis. Dr Mann chose to participate in the "bulk-billing" arrangements for recovery of his fees. The bulk-billing arrangements were part of the Medicare system. By this method the patients did not receive accounts for treatment and did not have to pay. The doctor sent the bills periodically to Medicare and recovered from Medicare 85 percent of the appropriate scheduled fee. There were differing views in the medical profession about the propriety and the social worth of bulk-billing. Dr Mann was well known in the medical profession in the ACT and in the surrounding districts of New South Wales as one who not only participated in the bulk-billing scheme but also supported it. He publicly promoted the practice of bulk-billing as an efficient and equitable form of financing the delivery of medical services in the community. He was the only specialist doctor in Canberra engaged in bulk-billing. The rest were general practitioners. As a specialist, Dr Mann depended on general practitioners to refer patients to him. He had a regular source of patients from about twenty general practitioners in the area, although there were others who referred patients to him occasionally and he expected that others would continue to do so as time went by.

7. From about 1986 Dr Mann carried on his practice in shop-front premises situated in London Circuit, Civic, shared with other doctors who were in general practice. There were signs on the windows indicating that Medicare bulk-billing was available. There was also a prominent sign bearing Dr Mann's name. In August 1988 a list of those doctors who were prepared to treat patients on a bulk-billing basis was published in The Canberra Times. There were forty-six doctors, including Dr Mann, who were indicated as being prepared to do so either as a matter of course or upon request by the patient. There were twenty-nine other doctors who were prepared to bulk-bill only in relation to certain categories of patients.

8. Evidence was given by some witnesses which was tendered in order to show that the publication identified Dr Mann. Dr Heather Lopert, who had worked as an anaesthetist with Dr Mann in surgery, said that she knew that he bulk-billed. She had the Australian Dr Weekly delivered to her home. She read the issue of 20 January 1989. When she did so she "thought of Dr Mann". Similar evidence was given by Dr Ronald Wells, a former general practitioner, who had retired from practice by the time of the hearing. Whilst in practice he had referred patients to Dr Mann. Dr John Donovan, Principal Medical Adviser at the Australian Institute of Health, was not on the respondent's mailing list. Dr Donovan was the President or President-elect of the ACT branch of the Australian Medical Association at the time of publication. He described the system of bulk-billing and the extent to which Dr Mann's attitude to bulk-billing, and his participation in it, was a matter of common knowledge in the medical profession in the ACT at the time.

9. Medical records from the Health Insurance Commission recorded that at the time of publication there were some 810 doctors practising in the ACT, and 25 in Queanbeyan. Some twenty-five to thirty percent of them participated to a greater or lesser extent in the bulk-billing scheme. Australia-wide there were some 18,000 doctors who so participated. Ms Kathryn Ryan, editor of the Australian Dr Weekly, gave evidence that at the time of publication there were 450 recipients of the newspaper in the ACT and 8,400 in New South Wales and the ACT combined. They included all general practitioners under the age of 65 and some specialists. When she decided to publish the letter from Dr Mackey she considered that it was part of the on-going public debate about Medicare and the delivery of health services in Australia.

10. Higgins J. found that the publication conveyed the defamatory meanings contended for in the statement of claim, remarking, "had the letter been specifically directed at Dr Mann .... there could be no doubt that the comments made were not only grossly offensive and unwarranted, but also defamatory". His Honour's findings in that regard are not challenged and could not be. His Honour then proceeded to consider the issue of identification by asking the question "does the matter defame the plaintiff or merely an indeterminate class?".

11. The process of his Honour's reasoning which led to a conclusion upon the question so posed began, almost inevitably, with a reference to the well-known passage of Willes J. in Eastwood v. Holmes (1857) 1 F and F 347 at 349:

"If a man wrote that all lawyers were thieves, no particular

lawyer could sue him unless there is something to point to the

particular individual, which (350) there is not here. There is

nothing to show that the article was inserted with any special

reference to the plaintiff."

12. After a discussion of some of the authorities, notably Knupffer v. London Express Newspaper Limited [1944] UKHL 1; (1944) AC 116, his Honour said that he supported as a statement of principle the following passage from the judgment of Hale J., the trial judge (sitting without a jury) in Dowding and Ors. v. Ockerby (1962) WAR 110 at 115-116:

"Firstly, where the libel is of a determinate class each member

of the class may sue; and here the size of the class is

irrelevant except to the extent that the larger the class the

more difficult it may be to prove that it is in truth a

determinate class. Secondly, where the libel is of an

indeterminate class an individual member cannot sue unless he

can prove that he as an individual was aimed at in

contradistinction to the other members; he can not do this

merely by proving that readers, who were acquainted with him,

knew him to be a member of the class and therefore thought of

him rather than of other members of whom they knew nothing; he

must go further and prove either that the defendant intended to

defame the plaintiff personally, or that the words themselves

show an intention to defame a group within the general class, a

group marked out in contradistinction to the general body of

members and that he is within that group."

13. In applying the principles set out in that passage to the publication of the respondent in the present case, Higgins J. concluded at 17:

"In my opinion, therefore, whilst, no doubt, reasonable readers

in the city of Canberra would conclude that Dr Mann was a

person to whom the statements made by Dr Mackey applied, they

would not conclude that they were in fact intended to refer to

him. Nor would they conclude that Dr Mann, in particular, was

being held out as possessing the undesirable characteristics

asserted by Dr Mackey. In fact, the reasonable reader would be

likely to know many bulk-billing doctors and would recognize

the charges against them as sheer hyperbole.

It follows that the plaintiff has failed to show that the

matter complained of was published "of and concerning" him."

14. Dr Mann, who appeared for himself on the hearing of the appeal, made a number of submissions. It is not necessary to deal with all of them. As a starting point, he submitted that the dictum of Willes J. about the statement "all lawyers are thieves" has been accorded undue importance. According to Dr Mann, the dictum "has remained in existence first, because it runs easily off the legal tongue and, secondly, because it tickles the fancy of some lawyers". It should be acknowledged that there is substance in the submission.

15. However, as the dictum of Willes J. goes on to make clear, and as Higgins J. expressly recognized, a defamatory statement about a group or class of people may be sufficient, taken as a whole and in context, to identify the plaintiff. Further, the defamatory statement, taken in conjunction with extrinsic circumstances shown to be within the contemplation of the ordinary reader, may sufficiently identify the plaintiff as one, not necessarily the only one, whose reputation is lowered. In The Law of Defamation (Indianapolis, 1978) at p 55, Eldredge gives a hypothetical example of circumstances in which even the categorization of lawyers as thieves would be actionable:

"Thus we start off with the general proposition that a

disgruntled individual may, without violating the law of

defamation, vent his spleen and publish his extreme beliefs

that all lawyers are sly and devious pick-pockets, all surgeons

are drunken, bloodthirsty butchers, and all clergymen are

sanctimonious, psalm-singing hypocrites. But if he makes this

statement in a small town in which there is only one lawyer who

has recently successfully sued him, and utters the words before

the congregation of the town's only church who have been

discussing some criticism of their minister, and quite visibly

glares at the town's only surgeon who is seated nearby, may it

not be said that this intemperate man has published defamatory

statements which his audience will reasonably, and probably

correctly, believe he is making about these three presumably

leading citizens, and that each of them has been individually

defamed? In the circumstances the general statement about a

large class or group does point directly to a specific person."

16. Once this is recognized, it is evident that it is not decisive of the issue of identification to look to whether the group of persons about whom the defamatory statement is made is determinate or indeterminate. Nor is it necessary that the plaintiff be singled out as the only person identified and whose reputation is affected. Nor is it necessary to investigate whether the defendant intended to defame the plaintiff. Nor does it matter whether the defamatory statement is believed or disbelieved. In the decided cases, ranging from those of single judges to the High Court of Australia and the House of Lords, there have been pronouncements on different factual situations which have led to the tendency to apply such pronouncements to similar factual situations as if they were principles of law. That too literal an approach may be made to judicial statements on such questions led to the issue of the following caution by Lord Reid in Cassell and Co. Ltd. v. Broome and Another [1972] UKHL 3; (1972) AC 1027 at 1084-5:

"With the passage of time I have come more and more firmly to

the conclusion that it is never wise to have only one speech in

this House dealing with an important question of law. My main

reason is that experience has shown that those who have to

apply the decision to other cases and still more those who wish

to criticise it seem to find it difficult to avoid treating

sentences and phrases in a single speech as if they were

provisions in an Act of Parliament. They do not seem to

realise that it is not the function of noble and learned Lords

or indeed of any judges to frame definitions or to lay down

hard and fast rules. It is their function to enunciate

principles and much that they say is intended to be

illustrative or explanatory and not to be definitive."

17. It is with that caution in mind that one might properly approach the speeches of the Law Lords in Knupffer, a leading authority on the subject of group libel.

"I venture to think that it is a mistake to lay down a rule as

to libel on a class, and then qualify it with exceptions. The

only relevant rule is that in order to be actionable the

defamatory words must be understood to be published of and

concerning the plaintiff. It is irrelevant that the words are

published of two or more persons if they are proved to be

published of him, and it is irrelevant that the two or more

persons are called by some generic or class name. There can be

no law that a defamatory statement made of a firm, or trustees,

or the tenants of a particular building is not actionable, if

the words would reasonably be understood as published of each

member of the firm or each trustee or each tenant. The reason

why a libel published of a large or indeterminate number of

persons described by some general name generally fails to be

actionable is the difficulty of establishing that the plaintiff

was, in fact, included in the defamatory statement, for the

habit of making unfounded generalizations is ingrained in ill-

educated or vulgar minds or the words are occasionally intended

to be a facetious exaggeration. Even in such cases words may

be used which enable the plaintiff to prove that the words

complained of were intended to be published of each member of

the group, or, at any rate, of himself (emphasis added)."

19. After expressing reservation about paying too much attention to the example put by Willes J. in Eastwood v. Holmes, Lord Atkin continued:

"'All lawyers were thieves' is an excellent instance of the

vulgar generalizations to which I have referred. It will be as

well for the future for lawyers to concentrate on the question

whether the words were published of the plaintiff rather than

on the question whether they were spoken of a class."

20. Lord Atkin concluded that the plaintiff failed to prove that the publication was of and concerning him. Others of their Lordships held that the publication was incapable of identifying the plaintiff. The facts were that the plaintiff was a member of an organization of Russian emigr s who, according to the publication in question, were in league with Adolph Hitler to replace the Soviet regime after a Nazi military victory. There were some thousands of persons belonging to the organization in France and the United States. There were only twenty-four members in Great Britain. The plaintiff was one of them. He was not named in the publication and the words alone were incapable of identifying him. The exact evidence relied upon by the plaintiff does not appear from the reported speeches of the Law Lords, except that it was said in the judgment of Viscount Simon, L.C., at 120 that the plaintiff "relied on his own prominence or representative character in the movement as establishing that the words referred to himself" and that "no facts were proved in evidence which could identify the appellant as the person individually referred to" (at 121).

21. However, because it is not necessary that a plaintiff show that he or she is the only person identified by the publication and because the intention of the defendant on the matter of identification of the plaintiff is irrelevant, some of the statements in Knupffer must, in my respectful view, be taken to be confined to the case under consideration. When Hale J. in Dowding came to apply the law as he understood it to be laid down in Knupffer, he appears to have accepted that that case laid down a principle that, in considering the question whether words which on their face refer to a group or class of persons identify the plaintiff, there be a prior determination of whether the class of persons subject to the libel be determinate or indeterminate. However, no such principle is enunciated in or by Knupffer. The question of whether the class is determinate or indeterminate is simply one test which may be applied in order to answer the ultimate question whether the words published are of and concerning the plaintiff. "Indeterminate", as Lord Atkin indicated, simply means "large". Furthermore, Hale J. clearly took the view that the intention of the publisher was relevant, if not crucial, where the class was indeterminate. When the decision of Hale J. was considered on appeal to the Full Court of the Supreme Court of Western Australia, it was upheld. However, there is nothing in the judgments of the members of the Full Court which expressly adopts or confirms his Honour's reasoning. The judgment of Wolff C.J. proceeded on the basis that the main complaint on the part of the plaintiffs was that the trial judge refused to draw any inference from the evidence of certain witnesses who were called to say that in their opinion the publication related to the plaintiffs, that the judge was right in refusing to draw the inference, and the article on its face could not, as a matter of law, be construed as specifically relating to the plaintiffs. The judgment of Jackson S.P.J. was that "by no stretch of the imagination" could the plaintiffs fall within the class described in the publication "if indeed it could be called a class at all". The four line judgment of Darcy J. simply stated that the plaintiff did not overcome the inconsiderable difficulty of establishing the essential of identification in cases of class defamation.

22. Sitting as a trial judge in the Supreme Court of the Australian Capital Territory, Higgins J. was bound to give very great weight to the decision of the Full Court of Western Australia and to a lesser extent to that of Hale J. Furthermore, Dowding has been accepted as authority in texts both in Australia and overseas: Gatley on Libel and Slander (8th ed.) par. 285; R.E. Brown, The Law of Defamation in Canada (1987) p 236; Tobin and Sexton, Australian Defamation Law and Practice (1991) par. 8005. However, there does not appear to be any judicial recognition of any of the Full Court judgments or of the judgment of Hale J. Dowding was not referred to in an otherwise comprehensive discussion of the relevance of intention to the issue of identification by Hunt J. in Baltinos v. Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85.

23. Although Hunt J. made reference to Knupffer, he did not discuss what Lord Atkin had to say about the intention of the publisher.

24. The Full Court of the Federal Court of Australia is of course bound to treat the judgments of Supreme Courts in Australia with respect, but when convinced that such a judgment is erroneous in point of law, is bound to give effect to its own view of the law. In my respectful view, Dowding proceeds on an erroneous basis. In particular the judgment of Hale J., upon which Higgins J. understandably relied, appears to have erroneously accepted that in Knupffer Lord Atkin laid down a principle of law that a plaintiff must prove that the defendant intended to identify the plaintiff.

25. On the contrary, it is clear that on the issue of identification, the intention of the defendant is irrelevant. In an early decision of the High Court, Godhard v. James Inglis and Co. Ltd. [1904] HCA 37; (1904) 2 CLR 78, it was held to be a misdirection to tell the jury that the plaintiff must prove that the words were intended by the defendants to apply to the plaintiff. Delivering the judgment of the Court, Griffith C.J. said:

"A man who makes an attack upon an individual by a description

which applies distinctly to that individual, is not entitled to

excuse himself by saying: 'I did not know that he was the man'."

26. The celebrated cases of Jones v. E Hulton and Co. (1909) 2 KB 444; (1910) AC 20 and Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Limited (1934) 50 TLR 581 are other authoritative examples of pronouncement of the same principle. In Lee v. Wilson and Mackinnon [1934] HCA 60; (1934-35) 51 CLR 276, the High Court affirmed the trial judge's rejection of evidence tendered by the defendant in order to show that someone other than the plaintiff was intended.

27. In Morgan v. Odhams Press Ltd., Lord Reid said at 1160:

"It does not matter whether the publisher intended to refer to

the plaintiff or not. It does not even matter whether he knew

of the plaintiff's existence."

"The real issue was whether the words were published of and

concerning the plaintiff. It mattered not what was the

intention of the writer."

29. Gatley on Libel and Slander suggests in a footnote (para. 295 n. 54) that the statement about intention by Lord Atkin in Knupffer at 121 is contrary to other statements of authority.

30. The error in Dowding having been identified, this Court should substitute its own view of the facts in the case unless the trial judge enjoyed some advantage such as that arising from the observation of witnesses giving evidence. No such advantage existed in the present case on the issue of identification. The ultimate question whether the defamatory words would be considered by the ordinary reader as being of and concerning the plaintiff falls to be answered on the inferences drawn by this Court on the primary facts found by Higgins J. and set out above.

31. Having rejected the "intention" test propounded by Hale J. in Dowding and applied by Higgins J. in the present case, it is appropriate that this Court should decide for itself, taking the primary facts as found, whether the words in the light of those primary facts complained of are capable of identifying Dr Mann and if they are so capable, whether they do in fact identify him: Federal Court of Australia Act 1976, s.24; Warren v. Coombes and Another [1979] HCA 9; (1979) 142 CLR 531.

32. Where the subject of a defamatory statement is a group of persons so few in number that each of them is taken by the ordinary reader to be identified, it follows as a matter of logic that any one of them can recover. An example is Vlasic and Others v. Federal Capital Press of Australia Pty Ltd and John Fairfax and Sons Ltd (1976) 9 ACT R 1, in which Blackburn J., as he then was, held that, where the words referred expressly to the committee of the Croatian Club, the several plaintiffs who were understood to be members of the committee were entitled to recover.

33. However, it is not Dr Mann's case that every bulk-billing doctor in Canberra was defamed by the defendant's newspaper. Rather, he relies on the extrinsic circumstances to show that the ordinary reader understood the words to refer to him, irrespective of whether the words were understood to refer to other bulk-billers as well. The words of Lord Porter in Knupffer at 124 are apt:

".... the size of the class, the generality of the charge and

the extravagance of the accusation may all be elements to be

taken into consideration. But none of them is conclusive.

Each case must be considered according to its own

circumstances."

34. In this respect the facts in the present case are to be distinguished from those in Knupffer. The speeches of the Law Lords in that case do not indicate that there was anything significant in the circumstances of publication. The plaintiff there complained of publication at large. The likely readership was not restricted to any section of the British public. The witnesses who gave evidence that, upon reading the article they turned their minds to the plaintiff, were simply friends of the appellant. There was nothing to show that their response was likely to be typical of the reasonable reader's response. Hence it was considered that their evidence did not take the matter any further than the words complained of, and as the words alone were incapable of identifying the plaintiff, the plaintiff failed. It was a very different situation from that in the present case.

35. The extrinsic circumstances, including the circumstances of publication and the facts relating to the plaintiff which would be known to the ordinary reader, are, in my view, of considerable importance. The publication upon which Dr Mann sued was publication in the Australian Capital Territory. Whilst publication by the respondent was wider than that relied upon by Dr Mann, it is that publication within the Australian Capital Territory which is the subject of the action. Hence, the circumstances of publication in the Territory have particular relevance. The reasonable reader is to be taken to be the reasonable reader within the Australian Capital Territory. Furthermore, that reader was not a member of the general public, as would be expected in relation to the readership of a general newspaper. This was a publication which circulated principally, if not exclusively, in the medical community which, for the purposes of the present case, was the medical community within the Australian Capital Territory. Dr Mann had a special position in that community as has already been described. Two witnesses, Dr Lopert and Dr Wells, gave evidence which at the threshold was capable of showing that the plaintiff was identified by the publication. There was no reason to reject their evidence, and none was put forward. They represented the reasonable reader, and the ordinary reader, as far as the respondent's publication was concerned.

36. Neither witness was asked whether Dr Mann was simply one of many people who came to mind when they read the publication. It was not suggested to them that they had some special knowledge denied to the reasonable reader of the publication in question. In my view, as a matter of law the letter, taken in the light of the extrinsic circumstances of publication was capable of identifying Dr Mann in the mind of the ordinary reader. As a matter of fact, it has been established that on the probabilities it did so. Dr Mann should succeed in the appeal and have judgment in his favour.

37. It remains to decide whether the case should be remitted to the Supreme Court for assessment of damages or whether this Court should exercise its power under sub-s.28(1) of the Federal Court of Australia Act 1976 and assess the damages for itself. Higgins J. indicated that if he had found for Dr Mann he would have awarded "relatively modest" damages of $5,000. His Honour gave reasons which although brief I find quite persuasive. Dr Mann's anger at the letter was understandable and his anxiety was real that some impressionable members of the medical profession might think the less of him as a result of reading the letter, but the likelihood of any real damage to his reputation was very low indeed. I agree with the assessment of Higgins J. that $5,000 was a proper award for hurt to feelings and vindication of reputation. The case is not one which calls for exemplary damages or aggravated compensatory damages. As both parties addressed the Court on the matter of damages, I would allow the appeal, set aside the judgment of the Supreme Court and in lieu thereof give leave to the appellant to enter judgment against the respondent for $5,000. I would order the respondent to pay the appellant's costs in this Court and in the Supreme Court. If there is an issue about the appropriate scale of costs in the Supreme Court, I would remit the issue to the Supreme Court.