Slaven v Prime Media Group Limited

District Court of NSW|2019-08-08|Before: Levine J

gazin Verlag GmbH [2001] EWCA Civ 1030 Mundine v Brown (No 5) [2005] NSWSC 517 Nationwide News Pty Ltd v Hibbert [2014] NSWCA 13 Nationwide News Pty Ltd v The University of Newlands [2005] NZCA 317 Nu-Tec v ABC [2010] NSWSC 711 O'Shea v MGN Ltd [2001] All ER 65 Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95 Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798 Rogers v 2UE Sydney Pty Limited (Supreme Court of New South Wales, Levine J, 6 November 1998) Singleton v Ffrench (1986) 5 NSWLR 425 Solarus Projects v Vero Insurance (No 5) [2013] NSWSC 1966 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Tallglen Pty Ltd v Pay TV Holdings Pty Ltd [1996] 22 ACSR 130 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 Williams v Radio 2UE Sydney Pty Ltd (Supreme Court of New South Wales, Levine J, 3 December 1993) Wollongong City Council v Papadopoulos [2019] NSWCA 178 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 Texts Cited: J D Heydon, Cross on Evidence, 2010, 10th ed. (LexisNexis) D Rolph, Defamation Law (Sydney, Thomson Reuters, 2016) P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis Australia) Category: Procedural and other rulings Parties: Plaintiff: Darrell Slaven Defendant: Prime Media Group Limited Representation: Counsel: Plaintiff: Mr A J Munro Defendant: Ms S T Chrysanthou

Introduction

This is a separate trial pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") of the issue of publication "of and concerning the plaintiff" (in terms of identification of the plaintiff, who is not named in the matter complained of). It is the parties' understanding that an order for a separate trial of this issue was made in the Supreme Court of New South Wales on 5 April 2019 by Hoeben CJ at CL, on the basis of the consent of both parties to have the issue of identification dealt with by way of final determination separately, as opposed to being determined at a trial of all the issues.
Hoeben CJ at CL also made orders for the exchange of evidence for the purpose of the separate trial, and then transferred the proceeding to this court for hearing and, if the plaintiff succeeded, any subsequent case management for the remaining issues in the proceedings. After the proceedings were transferred to this court, the trial of the identification issue was listed for hearing before me on 1 August 2019.

The broadcasts of the matters complained of

I was not provided with a video of the broadcasts. A transcript of a broadcast is viewed as an unreliable substitute at trial level; its admissibility is challenged in jury trials (see Nu-Tec v ABC [2010] NSWSC 711 at [3]-[13] and Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 at 472-473) and it is invariably required for a separate trial as to capacity.
I inquired why only the transcript, and not the two broadcasts, had been tendered, and indicated that I would prefer to see the actual broadcasts. Ms Chrysanthou said that the defendant had not been able to locate either of them. Mr Munro, for the plaintiff, told the court that he believed his client had a copy, but that one was not available to tender. The hearing proceeded without the broadcasts being tendered by either party. I reserved judgment on 1 August 2019, without making any orders concerning the provision of the broadcast.
It was, therefore, with some surprise that I discovered, at the commencement of the following week, that the solicitors for the plaintiff forwarded a copy of the broadcast in DVD format to my associate. They did not, however, advise the defendant that they had done so, or send a copy of their correspondence and DVD to them.
This was not an appropriate course for the solicitors for the plaintiff to have taken. The principles applicable when parties provide material to the court other than in response to orders are set out by Leeming JA in Wollongong City Council v Papadopoulos [2019] NSWCA 178. I note in particular his Honour's observations at [49].
Nevertheless, if the purpose in sending the material was some form of application to seek to reopen the case, a party may be entitled to make an application to the judge after judgment is reserved (as long as appropriate notice is given to the opposing party). Not knowing what to make of the provision of the broadcasts, I had no alternative other than to relist the matter (on 8 August 2019) to enable any application by the plaintiff to reopen his case to tender this material to be made as well as to require the provision of the material to the other party and/or any challenge by the defendant to its tender.
As is set out in more detail below, given the need for this new issue to be addressed by further submissions, I also inquired as to whether other matters falling under the rubric of UCPR r 28.2, this being a course taken in Frangie bht Frangie v Takchi [2014] NSWDC 58 at [42] where the separate trial order had been made by consent without input from the court. It was only after the parties provided further submissions that I realised there was a potentially significant omission from the consent orders for the separate hearing on the issue of identification.

A further application by the plaintiff

After I relisted the proceedings, the plaintiff brought two applications: 1. An application to reopen his case to tender the two broadcasts; and 2. An application under UCPR r 28.4(2)(c) that the consent order for the separate trial should be set aside.
The defendant challenges the plaintiff's entitlement to go behind the consent order, relying upon UCPR r 36.15. This is contrary to the approach taken to separate trial orders and, for that matter, the language of UCPR r 28 itself. In addition, as to UCPR r 36.15, it became clear to me, on checking all the orders made in the Supreme Court as well as this court, that the order for the separate trial was made irregularly, in that the consent order contains no reference to UCPR r 28 (or to any part thereof) and does not define with precision the separate issue of fact to be identified.
The plaintiff's application to set aside the consent orders has further complicated these proceedings. Neither party has identified the UCPR r 28.2 order made, or referred to the difficulties which arise when this is not done: Nationwide News Pty Ltd v Hibbert [2014] NSWCA 13. The defendant does not explain how I can make orders pursuant to UCPR r 28.2 and/or UCPR r 28.4 (neither of which are referred to in the submissions) when not only the court's orders but even the defendant's own formulation of the questions (paragraph 7 of the defendant's submissions) fail to refer to UCPR r 28.2 and/or the appropriate relief sought under UCPR r 28.4. The defendant also seeks to argue that Hoeben CJ at CL made a considered ruling on this issue when, as is set out in more detail below, it is clear from both the transcript and the orders that this was not the case. These issues are set out in more detail below.

The matters complained of

The matters complained of are two short news items broadcast on Prime 7 Wagga Wagga on 7 and 8 December 2017.
The first matter complained of describes "appalling behaviour" and "serious allegations against the council employee and a contracted staff member", noting that the complaints "dating back to 2013" had been "kept quiet" until now despite extensive interviews at the time.
The tone of voice of both the newsreader and journalist are, for reasons set out in more detail below, of importance. The expressions on their faces indicate that this is a cover-up of serious wrongdoing. Expression and tone of voice are significant factors in terms of meaning: Ale v Pauling [2017] NSWSC 1744. They may also be significant as to identification, if the manner of presentation is sufficiently exciting to galvanise a person hearing the broadcast to tax his/her memory (or that of friends and associates) and/or to look online.
As the actual broadcasts contain these features, I have permitted the plaintiff to reopen his case and to tender the actual broadcasts of both matters complained of. I am satisfied that the broadcasts were not available to the defendant at the time of trial, for the reasons given by Ms Chrysanthou, and that in those circumstances, it is appropriate to grant leave to reopen. If I did not do so, I would not have been in the same position as the trial judge, for the reasons explained by McCallum J in Ale v Pauling.
The imputations pleaded for the first matter complained of are: 1. That the plaintiff as a staff member at Wagga Airport was a perpetrator of bullying, harassment and intimidation (lines 9-13, 14-16 and the publication as a whole). 2. That the plaintiff as a staff member at Wagga Airport had bullied, harassed and intimidated other staff members at Wagga Airport by tying them up, putting them in choker holds as well as wrist locks (lines 7-9, and the publication as a whole).
The particulars of identification pleaded at paragraph 8 of the statement of claim are as follows: 1. The plaintiff had been employed at Wagga Airport since July 2012 and was so generally known within the local community. 2. The plaintiff was known within the local community to have been one of two employees suspended from his employment in about July 2013. 3. The plaintiff was identified as one of the people referred to in the first matter complained of by Gary Mills and Myles Carroll and Barry Slaven all of Wagga Wagga.
Two points should be made about these particulars. The first is that the particulars refer to "one of two employees" as being "suspended", although the reference to these is not in first matter complained of, but in the second. The circumstances in which identification may be established from a further publication by a defendant are explained in the discussion of Hayward v Thompson [1982] QB 47 in Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485 at [64]. The second is that the reference to "two employees" constitutes a "class", although in this case both, and not one member of the class, are described as "suspended", which means that class libel identification problems essentially fall away (McCormick v John Fairfax & Sons Pty Ltd (1989) 16 NSWLR 485).
The second matter complained of was published the following night. It does not merely refer to the first matter complained of, but adds further information, namely that the conduct in question resulted in "the suspension of two people in July 2013". The same presentation structure (newsreader/interviewer) is used. Again, the tone of the newsreader and journalist is of importance in that the presentation would excite the curiosity of the viewer to find out more.
The imputations pleaded in relation to the second matter complained of are: 1. That the plaintiff as a staff member at Wagga Airport was a perpetrator of bullying, harassment and intimidation (lines 12-15, and 20-21 as well as the publication as a whole). 2. That the plaintiff as a staff member at Wagga Airport had bullied, harassed and intimidated other staff members at Wagga Airport by shoulder charging, putting them in choker holds as well as wrist locks (lines 16-19, and the publication as a whole).
The particulars of identification in relation to the second matter complained of are pleaded at paragraph 12 of the statement of claim as follows: 1. The plaintiff had been employed at Wagga Airport since July 2012 and was so generally known within the local community. 2. The plaintiff was known within the local community to have been one of two employees suspended from his employment in about July 2013. 3. The plaintiff was identified as one of the people referred to in the second matter complained of by Gary Mills and Myles Carroll and Barry Slaven all of Wagga Wagga.

The evidence

The plaintiff relied upon the following affidavits in relation to identification: 1. Affidavit of Myles Carroll, dated 25 June 2019; 2. Affidavit of Gary Mills, dated 25 June 2019; 3. Affidavit of Jane Thompson, dated 25 June 2019; 4. Affidavit of Barry Slaven, dated 25 June 2019; 5. Affidavit of Alex Watt, dated 2 July 2019.
None of the above witnesses was required for cross-examination. Substantial objections were taken to the contents of the five affidavits, the contents of which were poorly drafted. Nevertheless, however weak the evidence is, all that the plaintiff has to prove is that one or more persons saw the broadcast and identified him in order for identification to be established.
The plaintiff did not give any evidence in relation to identification issues. This resulted in a challenge to evidence of what he said in a conversation he had with one of the identification witnesses.
That is only the first of the difficulties in terms of the separation of this issue from other issues at the trial. For this reason, I propose to set out the provisions and principles for separate trials before turning to a consideration of the evidence in these proceedings.

Separate trials of final issues in defamation proceedings

Rules 28.2 and 28.4 of the UCPR provide: "28.2 Order for decision 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. … 28.4 Disposal of proceedings (1) This rule applies if the decision of a question under this Division: (a) substantially disposes of the proceedings or of the whole or any part of any claim for relief in the proceedings, or (b) renders unnecessary any trial or further trial in the proceedings or on the whole or any part of any claim for relief in the proceedings. (2) In the circumstances referred to in subrule (1), the court may, as the nature of the case requires: (a) dismiss the proceedings or the whole or any part of any claim for relief in the proceedings, or (b) give any judgment, or (c) make any other order."
It is relatively common for a person who is not named in the matter complained of to be required to plead particulars of identification. What is unusual is for there to be a separate trial under UCPR r 28.2 in relation to the issue. There have only been a handful of such cases, under both the uniform defamation legislation or the repealed legislation which it replaced: World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712; Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86; Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95.
As a general rule, as the notes to UCPR r 28.2 in P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM, Ritchie's Uniform Civil Procedure New South Wales (LexisNexis Australia) make clear, separate trials under UCPR r 28.2 are granted only in "exceptional" cases. It is "ordinarily appropriate that all issues in proceedings should be disposed of at the one time" (Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5]). The court's general reluctance to order separate trial of a final issue was summarised by Harrison AsJ in El Chami v Mackie [2019] NSWSC 821 at [9]-[14] as follows: "9. There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 ("Tepko"); Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037; Southwell v Bennett [2010] NSWSC 1372 at [15] ("Southwell"); and Crawley v Vero Insurance Ltd [2012] NSWSC 593 ("Crawley"). 10. The general rule is that proceedings are listed for trial generally, for hearing of all questions and issues arising in the proceedings: see s 56(1) and (2) of the Civil Procedure Act 2005 (NSW) reproduced later in this judgment. The court's power to make orders for the decision of any question separately from any other question under UCPR 28.2 arises as an exception to the general rule. 11. The legal principles that apply in exercising the discretion whether to make the order for separate determination are set out in the decision of Hallen J in Southwell at [15]. 12. His Honour set out the principles, which have been summarised as follows: (a) As a general rule, the discretionary power to order separate determination of a question should be approached with caution. (b) In exercising its discretion, the overriding purpose of the Civil Procedure Act, namely the just, quick and cheap resolution of the real issues in the proceedings (s 56) must be given effect. (c) Generally, all questions of fact and law should be determined at the one time and if the court is to depart from that position, the party seeking the separate determination of a question must satisfy the court that it would be "just and convenient" for that order to be made. (d) While it may appear attractive, superficially, to order the trial of a separate question, experience often shows that it will not be so, for example, because of the complications that can arise in relation to appeals, or to overlapping factual issues, or to questions of credit, if the same witnesses have to give evidence in relation to a question that is separated and those questions that are not. (e) The experience of courts suggests that the separation of proceedings often does not result in the quicker and cheaper resolution of proceedings, but often has the reverse effect. (f) It sometimes happens that it turns out to be productive of the disadvantages of delay, extra expense, appeals and uncertainty of outcome which it is intended to avoid. (g) Before a question is to be separately determined, it must be possible to clearly see that it will facilitate the quicker and cheaper resolution of the proceedings. (h) Where findings as to the credit of a witness is, or of witnesses are, or may be, involved in the consideration of the evidence relevant to the question, it is inappropriate to order a separate trial. (i) Relevantly, one factor that may tell against the making of an order would be where there is likely to be a significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding. There is always a risk of inconsistent findings arising from determination of separate questions. (j) While the decision is ultimately one for the court to determine, it will have regard to the attitude of the parties. 13. Additionally, in Crawley, Beech-Jones J at [17] and [18] expressed other relevant legal principles in exercising the discretion whether to make an order for separate determination as follows: (a) An interlocutory order for the separate determination of issues is an exceptional measure, distinct from the ordinary course taken of determining the issues in their totality. Consequently, the applicant bears the burden of demonstrating the appropriateness of the order. (b) Sometimes issues are separated in the expectation that their resolution will determine the balance of the proceedings but that proves illusory. On other occasions a matter determinative of, and fatal to, the proceedings is decided but then appealed and overturned with the outcome that the parties find themselves back in the same position they were prior to a trial but with years having passed. As noted by Kirby and Callinan JJ in Tepko at [168], the benefits of a separate question order "are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory..." (c) One real problem with ordering separate hearings is the potential for credibility findings to be made in one hearing in respect of a witness who may have to give evidence at the second hearing. This can create significant difficulties including, but not restricted to, the potential for the trial judge to disqualify themselves. 14. Sections 56, 57 and 60 of the Civil Procedure Act are relevant. They read: "56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. … 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.""
Where a party wishes to have an issue separately determined, "it is for the party who wishes to have a question separately determined to show that it is desirable for that to occur" (Commonwealth Bank of Australia v Clune at [5]). As such applications are generally opposed, courts are able to determine the merits of the application with the benefit of adversarial submissions.
Is there a different procedure where the parties agree to such a separate trial? Does this mean that the Court can have no input as to whether a separate trial will occur? Is the court still obliged, by the terms of the consent order, to determine the separate trial issue, even where one of the parties decides, during or shortly after the hearing, that the consent to the separate trial should be withdrawn?
In Solarus Projects v Vero Insurance (No 5) [2013] NSWSC 1966 Campbell J noted (at [17]) that the discretion to determine a question separately "is unfettered except by the need to act judicially and, in the 21st century, by the mandatory efficiency requirements of the Civil Procedure Act 2005 (NSW) ss 56 to 60." Referring to the judgment of Giles J in Tallglen Pty Ltd v Pay TV Holdings Pty Ltd [1996] 22 ACSR 130 (at [141, 142]), Campbell J cited the "seminal distillation" of relevant considerations thus: "[Rule 28.2] empowers the court to 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, and for the statement of a case and the question for decision. In the ordinary course all issues in proceedings should be decided at the one time, but separate decision of a question may be appropriate where, for example, the decision of the question is critical to the outcome of the proceedings and (at least if decided in one way) will bring the proceedings to an end. In particular circumstances the separate decision of a question may be appropriate even if it will not bring the proceedings to an end, such as where there is a strong prospect that the parties will agree upon the result when the core of their dispute is decided or where the decision will obviate unnecessary and expensive hearing of other questions, but such occasions must be carefully controlled lest fragmentation of the proceedings (particularly when the exercise of rights of appeal is borne in mind) brings delay, expense and hardship greater than that which the making of an order was intended to avoid. It is often the case that the need to make findings of fact for a decision of the separate question, especially findings which may involve issues of credit, tells strongly against the making of an order because related facts, and renewed issues of credit, will or may arise at a later stage in the proceedings. Experience teaches that it should be able to be seen with clarity that decision of a separate question will be beneficial in the conduct of the proceedings and the resolution of the parties' dispute."
The references by Johnston J to "show that it is desirable" and by Campbell J to "carefully controlled" suggest that the court should play a role in determining whether a question or issue should be determined in this fashion. Did that happen in these proceedings?
Ms Chrysanthou submits that this has in fact occurred, in that Hoeben CJ at CL described the plaintiff's claim as a "storm in a teacup" (defendant's further submissions, paragraph 14), implying that his Honour made a qualitative determination of the need for a separate trial.
The transcript of the circumstances in which Hoeben CJ at CL made this observation on 8 February 2019 is contained in the file sent from the Supreme Court, and I have consulted it. The relevant extract is as follows: "CHRYSANTHOU: Because we were only served a week ago the parties are not in a position to proceed with the first listing. The plaintiff in fact asked us to mention his appearance and to seek an adjournment in particular because the plaintiff has briefed counsel who is not available this morning, which is why we are mentioning their appearance. We don't oppose the adjournment and we ask that the matter be stood over for four weeks your Honour, so the 8 March defamation list. HIS HONOUR: This is the one at the airport, isn't it? The local TV station. CHRYSANTHOU: Yes, it is an unusual case. It is a very short publication and the plaintiff is not named. We were only served a week ago but we are considering an application for a separate question on identification because it seems to us identification is pretty important and we think it could be determinative of the entire case and should be determined in advance. HIS HONOUR: Also, without being too critical, it is something of a storm in a teacup and I think really does raise the issue of whether it should remain in this list but at this state it will. We can look at that next time as well. CHRYSANTHOU: Thank you. If we do intend to bring that application we will give notice before that application."
What this demonstrates is that when his Honour spoke of a "storm in a teacup", he was referring to the suitability of these proceedings "to remain in this list" as opposed to a transfer to the District Court. His Honour was not making a ruling as to the separate determination of the issue of publication, an application which had not yet even been made. The plaintiff was not even present when his Honour spoke those words; Ms Chrysanthou was mentioning the matter by consent, as it was not ready to proceed on the first listing. None of the evidence was before his Honour at the time as it had yet to be collected. No orders were made concerning a separate trial; the matter was simply adjourned. When read in context, his Honour's remarks did not amount to a considered endorsement of a separate trial procedure and, contrary to Ms Chrysanthou's submissions, should not preclude my coming to a different conclusion after seeing the evidence in question.
The correctness of this interpretation of the transcript is borne out by the orders Hoeben CJ at CL made when the matter next came before the court on 5 April 2019. His Honour was not given any assistance by either party in terms of the nature of the application before the court. All that happened was that the following orders were made by consent: 1. Plaintiff to serve affidavit evidence on or before 24 April 2019. 2. Defendant to serve affidavit evidence on or before 15 May 2019. 3. I order that the proceedings be transferred to the District Court.

No separate trial order under UCPR r 28.2

There is no reference to UCPR r 28.2 in any orders made in the Supreme Court or the District Court, let alone the orders set out in the previous paragraph. There is no notice of motion seeking such orders. When the proceedings came before me for case management on 16 May 2019 I assumed, in the absence of a reference to UCPR r 28.2, that this was a summary dismissal application and listed it "for argument", not for hearing, in the Defamation List on 1 August 2019. When I read the parties' submissions, I assumed the error was mine, in that I had overlooked UCPR r 28.2 orders made in the Supreme Court.
It was only after I received the further submissions of the parties concerning the plaintiff's application to set aside the orders did I review all the orders made by Hoeben CJ at CL and the Supreme Court transcript. It then became clear that, contrary to the warnings in Nationwide News Pty Ltd v Hibbert given by Sackville AJA (at [21], Barrett JA concurring at [1]) and Emmett JA (at [2])), neither of the parties had sought the necessary orders from the court.
The absence of orders under UCPR r 28.2 is not a minor matter. In Nationwide News Pty Ltd v Hibbert, Sackville AJA considered failure to do so was fatal, although noting that this had not been the case in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [4]: "The applicants did not invoke the procedure provided by UCPR r 28.2. They did not ask the primary Judge to make an order for the decision of a separate question and no such order was in fact made. Nor was any separate question for decision formulated or identified. In some cases, it may be possible to characterise an interlocutory decision as in substance the determination of a separate question even in the absence of a formal order under r 28.2. An example is Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [4] (Macfarlan JA; Bathurst CJ and Beazley P agreeing), where the defendant applied for an order under r 28.2 but no formal order was made, apparently though an oversight."
This reference to "oversight" appears to assist the defendant, but a closer examination of the "oversight" in Younan v Nationwide News Pty Ltd merely confirms the importance of not only the court but the parties in seeking precise and careful orders under UCPR r 28.2.
In Younan v Nationwide News Pty Ltd the defendant, by notice of motion, sought a separate trial under UCPR r 28.2. The problem was not of the parties' making, but arose because the judge hearing the application did not specifically refer to UCPR r 28.2 in his judgment or orders. Macfarlan JA considered that, in circumstances where the application had specifically referred to the orders sought under UCPR r 28.2 and, if successful, UCPR r 28.4, this oversight could be remedied: "[4] By Notice of Motion filed on 27 November 2012, the defendants sought in respect of each plaintiff an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") that the question of whether the article was reasonably capable of identifying the plaintiff be determined separately and, if the question be answered in the negative, an order pursuant to r 28.4 dismissing that plaintiff's claim. By judgment of 12 December 2012, Nicholas J, sitting in the Equity Division of the Court, found that the article was incapable of identifying the plaintiffs and dismissed their proceedings. Although his Honour did not make any formal order for separate determination under r 28, it was implicit in his judgment that he intended to do so and to answer the questions posed in the negative. As a result, the dismissal should be taken to have been effected under r 28.4."
In the present case, the oversight is by the parties, and not by the court. Hoeben CJ at CL appears to have assumed that this was a summary dismissal or strike-out of some kind, not an application under UCPR r 28. In the absence of assistance by the parties, he was entitled to make such an assumption, as such applications are rare.
Did the parties realise that there was no reference to UCPR r 28 in the orders? Some light is thrown on the situation by Mr Munro, in his further submissions, who acknowledges that the power to order a hearing flows from UCPR r 28.2 but adds that he "was not briefed in these proceedings at the time the order for determination was made by his Honour Justice Hoeben in the New South Wales Supreme Court" (further submissions, paragraph 10). Ms Chrysanthou does not refer to the need for there to be a specific order under UCPR r 28.2 beyond noting (submissions in reply, paragraph 23) that the plaintiff is now making an application under UCPR r 28.2, which appears to be a claim that the plaintiff is now rectifying this oversight. If so, this assumption is wrong, as the plaintiff's application is made under UCPR r 28.4(2)(c), as Mr Munro makes clear in paragraph 36 of his supplementary submissions. He is not asking for a ruling under UCPR r 28.2 but the setting aside of the separate trial under UCPR r 28.4(2)(c).
The ratio of the decision in Nationwide News Pty Ltd v Hibbert would permit the separate trial ruling if an oversight of the kind which occurred in Younan v Nationwide News Pty Ltd occurred, but the failure to identify UCPR r 28.2 before Hoeben CJ at CL and to have some case management input into the formulation of the issues is clearly a substantive error, and not an oversight of the kind permitted in Younan v Nationwide News Pty Ltd.
This puts the parties in a very difficult position. The best course for me to take, in my view, is to make findings concerning the identification issue, while noting the failure of the parties to seek appropriate orders under UCPR r 28.2 and the unfortunate effect of that failure. In view of the way the parties presented their case to me, I have not determined these issues on the summary dismissal basis. I have made findings of fact on the basis of a contested final hearing because, in the event that I have erred in my rulings concerning the failure to seek orders under UCPR r 28.2, those findings may be considered to be of some utility to any appellate court or judge hearing or considering the identification evidence. Those findings of fact go beyond that which is required for summary dismissal, but the same was the case in Nationwide News Pty Ltd v Hibbert, where the first instance judge effectively held a separate hearing on capacity notwithstanding the absence of an order under UCPR r 28.2.

UCPR rr 36.15 and 36.16

I briefly note Ms Chrysanthou's submission that the only way the order for a separate trial can be set aside is for an application to be made under UCPR rr 36.15 and/or 36.16, neither of which are of assistance to the plaintiff. She submits that, once the plaintiff agreed to a separate trial of the issue, that is the end of any entitlement to withdraw from that agreement.
The short answer to this is that an order for a separate trial of an issue in the proceedings which does not identify the relevant question for determination and specify UCPR r 28.2 is an irregular order for the purposes of UCPR r 36.15. Ms Chrysanthou could in fact have made an application to this effect on behalf of her client.
However, there are other reasons for UCPR r 36.15 to be applicable. Parties may consent to the hearing of a separate trial in circumstances where the court later comes to the view that it is probably not in the interests of the justice of the case to do so: Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8. Mere agreement between the parties is not a sufficient basis for the court to say it should not intervene if, after the application has been heard, it is clear that the separate question cannot be determined.
Nor is it the case that such a consent order precludes a party from making an application to rejoin the severed parts of the hearing. Ms Chrysanthou's submission that UCPR rr 36.15 and 36.16 prevent a party during the hearing (or even on appeal) from even making such an application is contrary to the approach taken by first instance and appeal decisions where such applications have not only been made but granted.
The Court of Appeal set aside the ordering of a separate trial of issues based on "assumed facts" in Tyrrell v The Owners Corporation Strata Scheme 40022. In those proceedings, as here, the separate trial order was made by consent. Spigelman CJ considered that the factual evidence left "much too much open to disputation" (at [16]) and that it was not an appropriate case to be determined by the separate question process.
In the present case, the plaintiff has not waited until appeal to raise this issue, but raised it before myself, calling in aid UCPR r 28.4(2)(c). The procedure to follow in those circumstances is the procedure outlined by Taylor SC DCJ in the course of hearing a separate issue trial in Frangie bht Frangie v Takchi at [42], namely to invite parties who had previously consented to the making of such an order to consider whether it is indeed in their interests where problems had become apparent during the trial. I note the authorities cited by Taylor SC DCJ and respectfully adopt his approach to an application of this kind.
In addition to these problems concerning the form of the orders, the relevant principles concerning identification evidence were the subject of some dispute.

Proof of identification where a plaintiff is not named

"It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant": Bourke v Warren (1826) 2 Car & P 307; 172 ER 138 at 140 per Abbott CJ (cited in Hulton & Co v Jones [1910] AC 20 and Morgan v Odhams Press Ltd [1971] 1 WLR 1239 and, more recently, in Mosley and another v Focus Magazin Verlag GmbH [2001] EWCA Civ 1030 and O'Shea v MGN Ltd [2001] All ER 65. As Professor Rolph points out, although the potential unfairness of this position for defendants has been acknowledged, "the interests of plaintiffs [are] preferred by defamation law" ("Defamation Law" (Sydney, Thomson Reuters, 2016), [7.40] at p. 124). It is sufficient if the plaintiff proves that the matter was published to one person other than the plaintiff, where that person has the relevant knowledge of the plaintiff.
That relevant knowledge is generally established by providing both particulars and the names of the persons. Rule 15.19(1)(d) UCPR requires a plaintiff who is not named in a publication to provide "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". Where those persons identified the plaintiff by extrinsic facts, those facts must also be set out. It is not necessary for the facts to be correct; in Fairfax Media Publications Pty Ltd v Pedavoli, the respondent was falsely identified because she was the only teacher at the college who fitted the description of the teacher referred to in the matter complained of, although she was not that person.
As Professor Rolph also points out (at p. 124), there is no inflexible rule that a plaintiff must call at least one person to give evidence of seeing or hearing the matter and identifying the plaintiff: Raul Amon International Pty Ltd v Telstra Corporation Ltd [1998] 4 VR 798 at 807 per Charles JA; Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675 at 69,226. It may be the case, particularly in mass media publications where the allegations are of a sensational nature, that such knowledge can be inferred: Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 36.
By reason of the broad extent of publication by mass media, requirements for identification in mass media publications have been approached by the court with a greater degree of liberality than has been the case in non-media cases, especially slander. The history of the requirement to give particulars of identification "even in a newspaper case" (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 193A) is meticulously set out by Hunt J in Lazarus at 192-193. Hunt J notes that in "very old cases" (at 192C) a distinction was drawn between oral and written defamation, which his Honour dismissed as "the product of an outmoded approach", but adding the following rider concerning the mass media (at 192-193): "On the other hand, the newspaper defendant in a written defamation case could hardly require the plaintiff to identify the readers of its newspaper. In this category, I include radio and television station defendants and their listeners and viewers respectively. This is not, as it is sometimes suggested, because the identity of the readers, listeners or viewers is a matter already within the defendant's knowledge; it is because the defendant does not have to meet any case based upon the precise identity of its readers, nor does it need to know that precise identity for any purpose in relation to its own defence. The plaintiff in his case will be relying upon the width or the unrestricted nature of the publication, not upon the precise identity of the persons to whom it was made, and similarly the defendant will stand or fall in relation to his defences upon the width of the publication and not upon the precise identity of the persons to whom it was made. There are, however, cases where a plaintiff will be ordered to give particulars identifying the persons to whom the publication is alleged to have been made, even in a newspaper case. In Fullam v Newcastle Chronicle and Journal Ltd, the plaintiff was ordered to give particulars of the persons to whom the matter complained of was published who also had knowledge of the extrinsic facts upon which he relied in order to give to the matter complained of the secondary or extended meaning for which he contended as a true innuendo. That case was, of course, a somewhat special one in the light of the extraordinary extrinsic facts identified by the plaintiff, but it is not an isolated example: see also Grappelli v Derek Bloch (Holdings) Ltd [1981] 1 WLR 822 at 826, 829-830; [1981] 2 All ER 272 at 275, 278."
There are similar observations by Levine J in Williams v Radio 2UE Sydney Pty Ltd (Supreme Court of New South Wales, Levine J, 3 December 1993), Moore v Australian Broadcasting Commission (1985) A Def R 50010 and Rogers v 2UE Sydney Pty Limited (Supreme Court of New South Wales, Levine J, 6 November 1998).
At early example of the requirement to provide particulars that the matter complained of is published "of and concerning the plaintiff" is Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348. The court stated (at 373) that, where the plaintiff was not expressly named, it was necessary to prove that the plaintiff was identified by readers who had knowledge of special circumstances enabling them to identify the plaintiff and who believed that the plaintiff was the person referred to. That requirement appears to conflict with later interpretations of the requirement to prove identification but, as such evidence was called in these proceedings, this is not a conflict of relevance to the facts in this case.
One important requirement explained by the Court was that the plaintiff not only had to prove that there were readers capable of identifying him or her, on the basis of the stated extrinsic facts, but also that such persons are "ordinary sensible readers" (Steele at 374; see also Younan v Nationwide News Pty Ltd at [17]). Failure to prove this element is the subject of strong challenge by the defendant.
Gleeson JA, in Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 at [128], restates these principles as follows: "128. Where the words do not specifically name the plaintiff, the test for identification is that stated by Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50 at 238: "The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?""
The standard of the ordinary reader is identified by Gleeson JA in Zoef v Nationwide News Pty Ltd at [157]-[158] as follows: "157. In Morgan v Odhams Press Ltd, some of the material in the defamatory article was consistent with it referring to the plaintiff and some was not. The House of Lords found that the ordinary reasonable reader could understand the matter complained of as referring to the plaintiff. Lord Morris explained that "the average reader does not read a sensational article with cautious and critical analytical care" (at 1254). Such a reader was accepted by Lord Reid to be inclined to engage in "a certain amount of loose thinking" (at 1245) and by Lord Pearson to read "casually and not expecting a high degree of accuracy" (at 1270). 158. Similarly, in Steele, Hutley JA said that "the standards of reasonableness required of an identifying reader are not high" (at 364). In Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at 575 [134(4)], Kirby J observed that the ordinary reader will draw conclusions from general impressions; will not re-read or review the matter complained of; and such a reader will tend to be specially influenced by headlines, by-lines, graphics and the other techniques by which mass media seek to communicate their principal messages to a mass audience."
The evidence of these witnesses is not determinative of whether the ordinary reasonable reader with knowledge of the extrinsic facts would have identified the plaintiff (O'Shea v MGN Ltd at 946 - 947). The witnesses do not have to believe that the matter is true; even if they do not believe what was said about the plaintiff (as is the case with the evidence of the plaintiff's father), that is not fatal to the claim (Morgan v Odham's Press Pty Ltd at 1246 and 1252).
Factors relevant to identification include a certain amount of "loose thinking" (Morgan v Odham's Press Pty Ltd at 1243). Greater latitude will be given where the allegations are presented in a sensational fashion. There is also greater latitude where the ordinary reasonable viewer is watching a transient publication such as a television broadcast. Both these factors are relevant here.
Appellate courts have particularly noted that, where a person the subject of defamatory imputations is not identified, in the context of an allegation of "salaciousness", there will be a "natural human response" to want to know who that person is (Fairfax Media Publications Pty Ltd v Pedavoli at [78]). In other words, curiosity as to the identity of the unnamed person is alluring to the reader/listener/viewer.
This "salaciousness" factor is of particular strength in the age of mass media and online publication. McColl JA acknowledged that this was a feature of information technology's search engines and that the desire to find out who the wrongdoer was would lead to use of these services. Her Honour described the extent of this sort of inquiry (at [78]): "… In virtually every case where identification is in issue, it may be supposed (depending, perhaps, at least in part on the level of salaciousness, or gravity of the allegations) that recipients will seek (with a greater or lesser degree of vigour) to identify the subject."
The most common way in which such matters are investigated is by use of online searches and social media postings. McColl JA has factored into the test for identification both the urge to discover identity in a salacious case and the ease of access to such information in the electronic age. Ms Chrysanthou's submission that "2013 was a long time ago" and that nobody would remember fails to take McColl JA's insightful understanding of the computer age into account.
These factors are also relevant where more than one person could be identified (in this case, two persons) and where identification of the two miscreants as being suspended workers appears only in the second broadcast. Can this be relied upon as identification in relation to the first broadcast?
Both these questions arose in Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 (as noted at 87F), although with the added complication, in those proceedings, that the subsequent identifying features were not published by the defendant but by a third party.
As to the first of these, each of the matters complained of refers to two persons. In the first matter complained of, these persons are identified as being a council employee and a contracted staff member at the council-owned Wagga Wagga Airport as at July 2013. In the second matter complained of, there are references to a council employee and a contracted staff member which after investigation "resulted in the suspension of two people in July 2013".
These factors mean that courts have come to understand and accept that more than one person can be identified (Lee v Wilson and MacKinnon (1934) 51 CLR 276) and even wrongly identified (Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd at [63] - [68] and [93]; Fairfax Media Publications Pty Ltd v Pedavoli). Courts also accept that the fact of there being material in the publication inconsistent with identification of the plaintiff may not necessarily disprove identification (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1254; Zoef v Nationwide News Pty Ltd at [157]-[158]).
As to the second factor, as is explained in Baltinos v Foreign Language Publications Pty Ltd at 89A, there has always been a qualification to the rule that the plaintiff may not rely upon subsequent identification where that subsequent identification is made by the defendant (in Fairfax Media Publications Pty Ltd v Pedavoli, McCallum J noted English authority to the effect that this principle should not be restricted to publications by the same defendant, but that is not an issue in these proceedings). McCallum J stated: "[130] The matter complained of reported sensational allegations. I do not mean to say that it did so in an inappropriately sensational way - it was a serious, important piece (and was all the more damaging for that). But the article was bound to excite interest as to the identity of the teacher concerned, particularly within the relevant school community. In my view, the article did implicitly invite readers to ascertain who she was. The article offered enough tantalising detail to encourage that course: the reader knew that it was a teacher at St Aloysius College who was in her late 20s. Without naming her, the newspaper offered this: "It is believed the teacher taught drama and English at the school". Implicit, I think, was the next question: "do you know who she is?" [131] Alternatively, I think there is force in the suggestion of Eady J that liability should attach where it is reasonably foreseeable that the plaintiff will be identified as a result of the defendant's actions. That was undoubtedly the case here. As already noted, the author of the article had herself made the very mistake that ought to have been foreseen.
Having noted these principles, how is such evidence led at trial? An important factor in the evidence in these proceedings is the giving of hearsay evidence by witnesses concerning the identification of the plaintiff by other persons who were not called to give evidence. Ms Chrysanthou submitted that this evidence was not admissible and that, if it were, it should be given only limited weight.

Hearsay evidence of identification

Ms Chrysanthou handed up a schedule of objections to the affidavit material which included twelve objections to the contents of the four surviving affidavits on the basis of hearsay, in that evidence of identification by persons not called as witnesses was set out. Is it necessary for evidence of identification of the plaintiff to be in non-hearsay form?
There is a recognised exception at common law that hearsay evidence may be adduced as to identification: Mundine v Brown (No 5) [2005] NSWSC 517. The admissibility of such evidence has long been recognised: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 234, citing Steel v Mirror Newspapers at 369.
The relevant principles are set out Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 656: "There is authority for the admissibility of evidence of declarations made out of court for the purpose of identification. In Cook v Ward (1830) 6 Bing 409; 130 ER 1338, evidence was held admissible that the plaintiff had been publicly ridiculed after publication of the libel. Tindal CJ (at 415; 1340) said that the evidence was properly admitted "as identifying the subject of the libel"; and Park J (at 416; 1341) observed that the evidence had been admitted "to identify the Plaintiff as the person to whom the ridicule of the libel attached". In the earlier case of Du Bost v Beresford (1810) 2 Camp 511 ; 170 ER 1235, the plaintiff sued the defendant for the value of a painting entitled "Beauty & the Beast" which the defendant had cut in pieces on the ground that it was a scandalous libel upon his sister and her husband. In the course of the trial Lord Ellenborough held that the declarations of the spectators, while they looked at the picture in the exhibition room, were evidence to show that the figures portrayed were meant to represent the defendant's sister and brother-in-law. In Jozwiak v Sadek [1954] 1 WLR 275; [1954] 1 All ER 3, Ormerod J, relying upon Cook and Du Bost, admitted evidence of statements made out of court and of anonymous telephone calls to the plaintiff, to identify the plaintiff with the libel; and it appears that evidence of declarations out of court were admitted in aid of the innuendo in Hough v London Express Newspaper Ltd [1940] 2 KB 507. There are cases in this Court to the same effect, upon which the respondent relied, ie Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225. In Steele (at 369, 370) Hutley JA (in a judgment with which upon this point I expressed my general agreement) held that the evidence of witnesses that other persons in the country town where the plaintiff lived had declared that they believed the defamatory article to refer to the plaintiff (whom it did not name) was admissible to establish the extent of the identification of the plaintiff with the person whom the article described. It is possible that this ruling was strictly obiter, since there was direct evidence of identification not under challenge which was sufficient to carry the case to the jury. However this may be, it was applied by the court (Moffitt P, Hutley and Glass JJA) in World Hosts, where it was held that evidence of statements made out of court was admissible to establish the extent of the identification of the plaintiff as the subject of the article: see at 202, 207 and 209. In Andrews the court (Hutley, Glass and Mahoney JJA) applied Steele and World Hosts and admitted hearsay evidence of identification: see at 234, 248 and 264."
While s 67 Evidence Act 1995 (NSW) may require notice, this point was not taken by Ms Chrysanthou. I note and agree with the observations made in Mundine v Brown (No 5) at [13]-[16] as to whether this should be a bar (including references to the discussion of these issues in Cross on Evidence, 2010, 10th ed., at [1645], [1650], [1655], [1660] and [1665] (now the 11th ed.)).
Is it, however, a prerequisite that such hearsay evidence should only be permitted where it falls within the particulars given, namely a careful enumeration of the facts set out in the particulars, or can the evidence be given without this requirement? Ms Chrysanthou submitted that the evidence in question had no probative value for this reason.
Where the evidence has been given in proper form, namely in direct speech by the actual person, preferably named, that is sufficient for admissibility and the submission that such evidence should be disregarded is contradicted by the court's approach in the many cases where such evidence is led. Courts have permitted a wide range of evidence of this kind, such as an unknown person shouting out an imputation of theft at a football match (Singleton v Ffrench (1986) 5 NSWLR 425), anonymous telephone calls and persons crossing the road to shun the plaintiff.
However, such evidence must be in proper form. I struck out paragraphs 9-11 of the affidavit of Mr Carroll because this material was in indirect speech as well as containing material relevant only to hurt to feelings. Ms Chrysanthou's objection to hearsay evidence of conversations witnesses had with the plaintiff (who was not called as a witness) were, however, without basis, as the witnesses in these proceedings are entitled to give hearsay evidence of this nature. I note, however, that this challenge to evidence of conversations with the plaintiff (who would be giving evidence at the trial) is one of the reasons why a separate trial of identification issues is undesirable on the facts in this case.

The affidavit evidence

The plaintiff is a resident of Cootamundra, a small country town near Wagga Wagga. He called his father, residents of Cootamundra and a former workmate at Wagga Wagga Airport as witnesses in relation to identification issues.

The affidavit of Barry Slaven (Exhibit A)

Mr Barry Slaven, the father of the plaintiff, lives with his family in Cootamundra, a country town near Wagga Wagga with a population of approximately 6,500 people. The plaintiff grew up in this small town and Mr Slaven says his son is well known in the town, largely by reason of operating his own business in what appears to be the main shopping area.
Mr Slaven sets out how his son gained employment at Wagga Wagga Airport as a security officer in June 2012. His son rented an apartment in Wagga Wagga so that he could work the long hours involved but continued, however, to live in the family home at Cootamundra for the rest of the time.
Mr Slaven's evidence on the issue of identification relates to himself and other about members of the Cootamundra community seeing the matters complained of and identifying the plaintiff. His evidence about his son's identification after each of the two broadcasts by Prime 7 starts with the first broadcast on 7 December, when he saw and heard the first matter complained of: "21. I immediately recognised that the news story regarding that investigations report was in relation to my attendance at an interview with an investigator and the Plaintiff in July 2013. 22. On 8 December 2017, I went to the local newsagency at Cootamundra in the morning to buy a newspaper and met another local acquaintance to myself, Michael Rose. He said words to the effect to myself: "Was that story at the Wagga Airport about your boy?" 23. I was aware that he was talking about the television news story on Prime Seven on the previous evening and said words to the effect in response: "Yeah it was…""
His evidence about the second matter complained of is as follows: "24. I was at home at Cootamundra that evening and watched another news story on Prime Seven regarding an investigation and suspension of two people arising from bullying and harassment at Wagga Airport in July 2013. 25. On 9 December 2017, the day following the second news story, I went to the Central Hotel, Cootamundra, at about midday. Approximately two or three patrons, people who I was acquainted with at the pub, approached me and said words to the effect: "Was the story on the news about Darrell?" 26. Another patron at the Central Hotel on that day, who was also acquainted with myself, said words to the effect: "Does Darrell still work at the airport?" 27. I recall being approached by other people in the town of Cootamundra after both news stories asking [sic] about the Plaintiff after the stories had been put to air."
The plaintiff's father was aware of his son's personal history because of his own involvement in the investigation. He had attended an interview with the plaintiff and an investigator as the plaintiff's support person (paragraph 14). He describes that interview as follows: "15. In the course of that interview with an investigator who had been appointed by Wagga City Council there was no mention of any sexual assault or assault committed by the Plaintiff. 16. It was apparent from the interview with the investigator that the Plaintiff, an employee of MSS Security, had been bullied and harassed, along with other employees, by Michael Barnes who was an officer of Wagga Council appointed to supervise the security operations at Wagga Airport. 17. I also became aware through the interview with the investigator that the Plaintiff had been put him [sic] in wrist holds, choker holds and had been tied up at Wagga Airport by Michael Barnes who had been suspended from his employment for those and other acts for harassment and intimidation. 18. I later found out from the Plaintiff that Tim Webster, another employee of MSS Security at Wagga Airport, who was also from Cootamundra, had witnessed the incident involving the Plaintiff and Leslie MacPherson and was aware that Darrell had been suspended because of that incident."
Ms Chrysanthou's submissions in relation to Mr Slaven are that he is clearly of the view that the plaintiff was a victim of the bullying and harassment, not the perpetrator (affidavit, paragraph 16-17) and "therefore could not have formed the view that the matters complained of alleged that the plaintiff had engaged in the conduct in question" (written submissions, paragraph 34). She goes on to submit that, although he viewed the first matter complained of and realised it concerned the incident in July 2013, he did not actually state that he believed that the allegations of bullying etc were levelled at the plaintiff. She acknowledges that Mr Slaven viewed the second matter complained of but does not specifically state that he thought that the allegations were against his son.
Ms Chrysanthou goes on to make the following credit-based attack on his evidence: "37. Indeed, given his involvement in the matter in 2013, it would be unreasonable for him to suggest that he believed that the allegations in either broadcast were "of and concerning" the plaintiff."
However, as the authorities discussed above make clear, witnesses do not have to attest that they believed what was published. Even if the plaintiff's father did not believe some portion or in fact the entire broadcast, that is not a bar to the claim in factual circumstances such as the present.
It is clear from the affidavit that Mr Slaven immediately identified his son from in relation to the first matter complained of from the information contained in the extrinsic facts, and that his identification of his son was further confirmed from the reference to two suspended workers in the second matter complained of.
I am satisfied that the ordinary reasonable viewer with knowledge of those extrinsic facts would similarly have identified the plaintiff. The additional material that Mr Slaven had strengthened, rather than weakened, the identification evidence.
Mr Slaven also gives evidence of statements by other persons that they saw one or both of the matters complained of and identified the plaintiff. I am satisfied that those persons knew sufficient information about the plaintiff's employment and termination of employment at the airport, conformably with the material particularised, to ask Mr Slaven the questions that they did.
Mr Slaven's evidence establishes that the three to four persons he spoke to in the pub identified the plaintiff, and that there was further identification by others in the small town of Cootamundra sufficient to cause them to make statements to this effect to Mr Slaven. Those persons had the information set out in the particulars of identification sufficient to enable them to identify the plaintiff.

The affidavit of Myles Carroll (Exhibit B)

Mr Carroll is a resident of Wagga Wagga who is a personal friend of the plaintiff, with whom he regularly had coffee at one of the cafes in the same street as Mr Carroll's mother's tobacconist shop, where the plaintiff was a customer.
Mr Carroll became aware in about July 2013 that the plaintiff ceased working at Wagga Wagga Airport in his security role "from what others around town were talking about in relation to an incident that had occurred there". He had lost contact with the plaintiff after he left his job and had no discussions with him about it but, "on the basis of what I had heard about what happened at the airport regarding some kind of incident, I assumed that this is why the Plaintiff had left his job" (affidavit, paragraph 8).
Mr Carroll describes seeing a television news story as follows: "9. I recall seeing a television news story on Prime 7 evening news regarding allegations of bullying and harassment by staff at Wagga Airport in July 2013 involving people being tied up, put in choker holds and wrist locks. My impression on seeing the broadcast was that it was the Plaintiff who had tied up people at the Airport and had been suspended as a result." (Affidavit, paragraph 9)
Mr Carroll sent a text message to the plaintiff at about 6:08pm on the same evening saying: "Did you tie c--ts up at the airport?"
Mr Carroll has described the matter complained of as being "a television news story on Prime 7 evening news" which he recalls "seeing".
Ms Chrysanthou's first submission is that he does not give evidence that he viewed either matter complained of and that he does not indicate in the affidavit when he saw the programme. In addition, he does not set out that the plaintiff was "one of two employees suspended in July of 2013" and he thus falls outside the pleaded case. Ms Chrysanthou additionally submits that all he seemed to know was that the plaintiff had "ceased working at Wagga Wagga Airport" and he "made assumptions about why the plaintiff had left his job" (written submission, paragraph 27).
Mr Carroll does not identify which broadcast he saw but, from the description, it would appear to have been the second broadcast. That means that Ms Chrysanthou's objection to the "suspended" particular falls away as this is clearly stated in the second matter complained of. Ms Chrysanthou's submission that his assumptions about why the plaintiff no longer worked there somehow operate against identification are unclear. It was reasonable to draw the assumptions by combining his knowledge of the extrinsic facts with the material in the broadcast. His identification falls within the pleaded case.
I am satisfied that Mr Carroll did identify the plaintiff in the second matter complained of and also that the ordinary reasonable viewer, with knowledge of these extrinsic facts, would reasonably have identified the plaintiff.

The affidavit of Jane Thompson (Exhibit C)

Ms Thompson knew the plaintiff from his place of business in Cootamundra, the Outback Bakery, which she patronised. She suffered the loss of her daughter in a motor vehicle accident in about 2007 and confided in the plaintiff about her distress at this bereavement. In order to "give me something to do and take my mind off the loss of my daughter", the plaintiff offered her cleaning work one day per week in 2007 and 2008. She appears to have been in some form of contact with the plaintiff and became aware in 2013, at which time she commenced employment with Catholic Community Services as a disability care worker, that he had ceased to work at Wagga Wagga Airport.
Ms Thompson saw both news broadcasts on Prime 7 evening news and said she "knew immediately that the incidents reported concerned the Plaintiff". She does not, however, identify the basis for so doing beyond her knowledge that the plaintiff ceased work at Wagga Wagga Airport.
Ms Thompson, likely Mr Slaven, provides evidence of the plaintiff's identification in the Cootamundra area. She says at paragraph 14-17 of her affidavit: "14. In December 2017, I met with the Plaintiff on a further occasion at one of the coffee shops near the centre of Cootamundra that was close to the Central Hotel. A local resident, Trevor Carney, came out of the Central Hotel and approached where I was sitting at a coffee shop nearby. The Plaintiff had left but Trevor Carney had obviously seen me with him. Treavor Carney referred to the news stories on the evening news about the events at Wagga Airport in July 2013 and said words to the effect: "Did you see the news stories? Is that the fellow who worked at the airport at Wagga?" 15. In October 2018, I opened a coffee shop in Cootamundra, Coffee on Cooper, at 91-94 Wallendoon Street. 16. After opening my coffee shop, I often met with the Plaintiff who had come in for coffee and we would sit down and talk for a while. 17. Although this was sometime after the broadcasts in December 2017, I had a number of incidents of patrons attending my coffee shop coming up to me and enquiring, after the Plaintiff had left the coffee shop, with words to the effect: "Is that the fellow who worked at Wagga Wagga Airport? Is it right what they are saying about him?""
Ms Chrysanthou's submissions are as follows: "38. Jane Thompson does not fall within the plaintiff's case because she is not named as a recipient and she does not know why he left the airport - only that he ceased his work there: [7]. 39. Further, she does not identify with precision the broadcasts or why, upon watching them that she thought that they concerned the plaintiff. Notably, she does not say that she thought that it made allegations against him (as opposed to him being the victim of conduct). 40. Given that she had no information about why he left work it would clearly have been unreasonable for her to jump to the conclusion that the matters complained of were making allegations about the plaintiff."
The complaint that Ms Thompson is not named as an identification witness in the statement of claim, or in some other form of particulars volunteered by the plaintiff, is unduly pedantic. It is not necessary for a plaintiff to set out every identification witness in the statement of claim; the general position taken is that the plaintiff gives sufficient particularisation to get over the threshold. Any requirement for further particularisation was overtaken by the timetable for the service of material for the purposes of this hearing, where this witness's statement was served.
The poorly drafted statement does not identify how Ms Thompson knew "immediately" that it was the plaintiff beyond knowing that he had left his work at the airport in 2013. She was, however, not cross-examined about these issues so her statement that she "knew immediately" should stand. She refers only in a general way to the two broadcasts, but that is sufficient. It was not unreasonable for her to have concluded that the plaintiff was identified. Nor is it necessary for her to know the allegations were untrue (namely whether the plaintiff was a victim or perpetrator).
Ms Thompson also gives evidence of a Mr Carney who saw "the news stories" and asked her if the plaintiff was "the fellow who worked at the airport at Wagga", as well as evidence from other customers at her café to the same effect. Mr Carney clearly saw both stories and, if the identifying factors set out in the second broadcast are imported into the first, would have identified the plaintiff in relation to both of the matters complained of.
I am satisfied that both Ms Thompson and Mr Carney identified the plaintiff.
The evidence of the statements made to Ms Thompson by customers in her café does not identify which of the broadcasts is referred to. Given the nature of the inquiry to her - namely whether it was "right what they are saying about him" - and the close connection in terms of time and content of the matters complained of, they likelihood is that these persons saw at least the second but most probably both broadcasts. This material is further evidence of identification in relation to each of the broadcasts.
I am satisfied that the ordinary reasonable viewer, with knowledge of the extrinsic facts known to these residents of a small country town where the plaintiff had lived most of his life, would reasonably have identified the plaintiff.

The affidavit of Gary Mills (Exhibit D)

Mr Mills, who is 47 years of age, is a resident of Wagga Wagga who, after completing a security officer's course, obtained employment with a security firm performing patrol work, which he appears to have done for most of his adult life. He gained additional casual employment with a security company in a passenger screening role at Wagga Wagga Airport in June 2012. To perform this work he attended an initial training course at Wagga Wagga Airport which the plaintiff also attended, with the result that they became acquainted. He ceased working at Wagga Wagga Airport at about September 2012, but continued to work in the security industry until about August 2016, when he began to commence similar duties at Wagga Wagga Courthouse.
Mr Mills became aware, through other security officers, that there had been incidents involving Wagga Wagga Council employees and MSS staff at Wagga Wagga Airport. MSS had conducted the security course which he attended with the plaintiff and had been the company which hired him for the passenger screening role in 2012. In particular, in relation to the plaintiff he had the following to say: "11. I had also heard through other security officers in Wagga Wagga that a number of allegations have been made against the Plaintiff that have resulted in him having some kind of psychological meltdown and being suspended from work." (Affidavit, paragraph 11)
Mr Mills described seeing the matters complained of in an unhelpfully general sense as follows: "12. I heard nothing more from the Plaintiff until after seeing an evening television news story on Prime 7 in December 2017 regarding incidents at Wagga Airport involving Council and contracting staff in July 2013. 13. I was immediately aware that the news report regarding those incidents at the airport in July 2013 were about Plaintiff [sic]. 14. I sent him a message on Facebook on that evening suggesting that he should look at the news story. 15. I received the message from the Plaintiff in reply on Facebook complaining that his "name had been dragged through the mud [sic]" before and that he did not want to go through that again. 16. A copy of the messages exchanged between myself and the Plaintiff on Facebook on 7 December 2017 are annexed hereto and marked, "GM-1". 17. I had a telephone conversation with the Plaintiff after we exchanged those messages on Facebook where he explained that he had been falsely accused of assaulting another staff member and that the perpetrator of the bullying and harassment referred to in the broadcast was another Wagga Council employee and not himself."
The text messages attached as an exhibit to his affidavit (together with the responses of the plaintiff) are as follows: Interesting article on prime news mater [sic], you should have a look Fuck me im getting calls from news and shit it's not good aye wish they would leave me alone gaz it's so bad dunno where they getting there info I dunno either but sounds like council have some explaining to do by the looks of it Yep I ringing them tomorrow to see what goin on my name has been dragged through the dirt enough can't go through it again
It is clear from the dates on these text messages that he had seen the first matter complained of and discussed these with the plaintiff.
Ms Chrysanthou's challenge to the adequacy of identification by this witness is that the first matter complained of "says nothing about any person being suspended". However, he already knew that the plaintiff had allegations levelled at him resulting in a suspension; Ms Chrysanthou in fact sets out in her written submissions (paragraph 30) that it is "hardly surprising that he believed that the first matter complained of related to the plaintiff. However, that is not (unsurprisingly) how the plaintiff puts his case". She goes on to add: "Further, he has not sought to prove true any extrinsic facts to that effect" and that "Mr Mills only believed that the first matter complained of referred to the plaintiff "because he had knowledge of additional matters that go well beyond the pleaded case" (at paragraph 30), such as a number of incidents involving Wagga Wagga Council employees and MSS staff at the airport. These included information that the plaintiff had some kind of psychological meltdown. As his identification evidence goes beyond the pleaded case, Ms Chrysanthou argues, his identification of the plaintiff should not be permitted.
This is not merely pedantic, but wrongly mischaracterises the evidence put before the court on the issue of identification. Parties are not required to insert in their pleadings every manner in which the plaintiff is identified, but to give an outline to apprise the opposing party of the case to meet. Whether the identification witnesses already knew before the first matter complained of that the plaintiff had been suspended because of these events, or learned of it when hearing the second matter complained of, the identification case for both publications is that the plaintiff was known to have been suspended. Mr Mills' affidavit evidence forms part of that particularisation and his knowledge of the actual investigation is additional material which strengthens his identification of the plaintiff.
Looking at Mr Mills' evidence (which includes material in addition to the particulars), I am satisfied that the ordinary reasonable viewer, with knowledge of these extrinsic facts, would reasonably have identified the plaintiff.

The affidavit of Alex Watt (Exhibit E)

This affidavit dealt only with reputation issues and was excluded.

The defendant's global submissions

In addition to the individual challenges, Ms Chrysanthou made a global submission that it was not "reasonably foreseeable" for any of these persons to identify the plaintiff. Where there is sufficient evidence for one or more persons to identify the plaintiff, the value of such a global submission is of little assistance but, as the submission was made, it must be answered.
The factual basis for this submission is an artificial construct based on the cumulative effect of submissions I have already rejected in relation to the individual evidence. These are: 1. Wagga Wagga is not a small town: The affidavit of Mr Burke (Exhibit 1) sets out the population of Wagga Wagga, which is substantial. However, workers at the airport in or around the relevant period, such as Mr Mills, and who knew of the investigation and the suspension of the plaintiff, would have been able to identify the plaintiff. I am satisfied that he identified the plaintiff from the factual material presented, in accordance with the case as pleaded. Ms Chrysanthou's submissions are also geographically incorrect, in that the bulk of the plaintiff's identification evidence comes not from Wagga Wagga, but from persons who identified him in the small country town of Cootamundra, where he had grown up and was still living part-time in 2013. 2. Wagga Wagga airport is "a substantial one with likely hundreds of employees." However, any one of those hundreds of employees participating in the "extensive" investigation in 2013 which resulted in the suspension of two employees might reasonably identify the plaintiff. The plaintiff has called evidence from one such employee, Mr Mills, whose evidence I accept as amounting to identification. 3. The five-year gap since these events: Ms Chrysanthou submits that, five years after the event, it was not reasonable for viewers to jump to the conclusion that the news items were about the plaintiff. This submission overlooks the court's acceptance of the widespread use of online searching facilities, as noted by McColl JA in Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd at [42], concerning a "spike" in online searching, as well as the "human curiosity" factors identified by McCallum J In Fairfax Media Publications Pty Ltd v Pedavoli, factors of considerable importance 4. Inconsistencies and extra facts known to certain witnesses: Some of the witnesses (notably the plaintiff's father and Mr Mills) were aware of facts which were inconsistent with identification of the plaintiff. Inconsistencies of this kind are not a barrier to identification: Morgan v Odhams Press Ltd at 1254; Zoef v Nationwide News Pty Ltd at [157]-[158]. In any event, I do not regard the additional facts known to Mr Slaven and Mr Mills as being inconsistent with identification.
A recurring theme in Ms Chrysanthou's submissions is that these proceedings are "a storm in a teacup" - that publication to a handful of people in a small country town, one of whom is the plaintiff's father, is of so little consequence that publication should be held not to have been established. This dismissive approach is, however, contrary to the principles for determining identification. There is no threshold number of witnesses required before identification can be established; one witness is enough. In the present case, any person knowing that the plaintiff's employment at the airport in 2013 was terminated after an investigation could have identified him, the more so if they knew of the salacious nature of the allegations identified in both broadcasts.
I was not addressed as to whether I should draw the inference in mass media publications that there was also publication to persons unknown: Duffy v Google Inc (2005) 125 SASC 437; Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651 at 658-659 per Scarman J; Nationwide News Pty Ltd v The University of Newlands [2005] NZCA 317 at [48] per Glazebrook, Hammond and Panckhurst JJ. I have accordingly not taken that into account.

Conclusions concerning the issue of identification

I would be satisfied, if the issue were determined at trial, that the plaintiff has established he was identified in the first matter complained of by his father, Ms Thompson and the other persons they identify in their evidence. I am also satisfied that he was identified by Mr Mills.
I would similarly be satisfied that the plaintiff was identified in the second matter complained of by his father, Ms Thompson and the other persons they identify in their evidence. I am also satisfied that he was identified by Mr Carroll.
The difficulty is that, conformably with Nationwide News Pty Ltd v Hibbert, the absence of a formal UCPR r 28.2 order is fatal. Doing the best I can in this novel situation, I gratefully adopt the alternative path explained by the Court of Appeal in that decision and, for the reasons set out below make these orders on the basis explained by Sackville AJA at [22]-[24].

Is a separate trial of identification desirable?

In the alternative, if I have erred in these findings, I consider that the issue of identification should not have been determined in a separate trial in the manner consented to by the parties.
Implicit in UCPR r 28.2 is the understanding that while the parties may consent to a separate trial being determined, this will generally be in the context where the court is an active participant in the determination of whether such an order should be made. This is what occurred in the World Hosts Pty Ltd v Mirror Newspapers Ltd proceedings, where the separate determination of the issue of identification after the trial had actually commenced and where the trial judge was in the process of making other rulings which were of relevance, and which appear to have included an application for discharge of the jury by reason of the opening address of counsel for the plaintiff.
As is set out above, UCPR r 28.2 does not contemplate that parties can, by use of this rule, separate a trial into one or a series of mini-trials on issues which are asserted to put an end to the proceedings. This is all the more the case in proceedings where the pleadings have not closed (and I note that the defendant has not even filed a defence) and where the result of losing the application creates considerable difficulties for future case management of the proceedings, such as whether the imputations can now be ruled upon, whether either party would be entitled to seek a jury trial for the remainder of the hearing and adjustment of the orders made in this application to credit findings made in the trial, as noted above.
It is unfortunate that the orders before Hoeben CJ at CL were not framed in terms of UCPR r 28.2 and 28.4 so as to enable his Honour to define what the separate trial issue was and how the question to be asked should be formulated. His Honour could have considered issues such as the commonality of witnesses, potential overlap of evidence and potential for credit findings of an inconsistent nature, as well as the desirability of fragmentation of the trial and the potential to shut one or both parties out of their case or out of their desired use of a jury.

Are there special rules in defamation actions warranting a greater use of separate trials?

Orders under UCPR r 28.2 are commonly made in relation to the capacity of the imputations. However, capacity is a question of law, not one of fact where overlapping issues with the trial (such as credit findings) may arise. Orders are not made, however, where the judge hearing the application is not in the same position as the trial judge, as was the case in Ale v Pauling.
The issue of identification was one of a series of publication-related issues included in s 7A jury trials pursuant to the repealed Defamation Act 1974 (NSW). The many difficulties arising from s 7A trials which led to its abandonment should not lead to attempts to reintroduce it by consent mini-trials in proceedings under the uniform legislation.
The caution with which separate trials on identification (where this is a question of fact) should be ordered was recently emphasized in Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845, where Bromwich J warned that it should be used sparingly.
I do not consider that there is a greater willingness to use the separate trial procedure in defamation proceedings or that this is a licence for informality as to the terms of the orders to be sought and made.

Factual and evidentiary problems arising from a separate trial of identification

There are substantial factual problems arising from the separation of identification in these proceedings.
First, it is clear that all of the witnesses will give evidence about the plaintiff's hurt to feelings. It is also clear that, at the least, Mr Slaven's credit as a witness will be an issue at the trial. This opens up the potential for inconsistent findings as to credit.
Second, the plaintiff's case on identification is heard at a very early stage of the proceedings, in circumstances where the plaintiff is shut out of his case if the application succeeds. No defence has been filed. Unlike Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd, where evidence was led by the defendant that the plaintiff was not incorporated at the time of publication, the defendant's position on identification is unknown. It is well-recognised that while a party may have a good case on its own evidence, it can be the case that the best evidence is the evidence of the opposing party. In the present case, much may turn on the identity of the person who made the report concerning these salacious allegations available to the public some five years later and what information was given by that person to the defendant about the identity of the alleged miscreants.
Third, the parties may be shut out of the empanelment of a jury by reason of having this issue determined by a judge alone. Although Ms Chrysanthou assures me that her client will not seek a jury trial, the plaintiff is entitled to consider whether he wishes to have one.
Finally, although Ms Chrysanthou submits that the parties have already incurred costs in this application and it should proceed to finality, financial motives alone should not prevail over the factors set out in s 56 Civil Procedure Act 2005 (NSW).

Conclusions and orders

The oversight of the defendant in failing to identify UCPR r 28.2 in the orders made in the Supreme Court and to agree upon the form of the question to be answered by the court is compounded by the difficulties in having this matter determined separately and at an early stage of the proceedings. The appropriate order to make would be the order sought by the plaintiff for the separate trial of these proceedings to be set aside under UCPR r 28.4(2)(c).
However, I apprehend that the plaintiff's greatest concern is being shut out of his case at this early stage. That will not happen if my findings that the plaintiff has in fact established identification in relation to each of the broadcasts are made out. Although I am troubled by the determination of this issue at an early stage of the proceedings where there may well be further evidence at the trial, I can see there is sufficient evidence for a finding.
Having regard to the desirability of finality, the overriding principles in s 56 Civil Procedure Act 2005 (NSW) and the costs already incurred by the parties, the best way forward is to make orders confirming my findings that the plaintiff was reasonably identified as the subject of both matters complained of. However, I propose to make these orders in exactly the same form as the defendant's counsel's has framed them in paragraph 7 of her submissions, namely excluding UCPR r 28.2. The result will be, conformably with the result in Nationwide News Pty Ltd v Hibbert, that "the decision of which the applicants complain does not have the finality ordinarily associated with a decision on separate question under UCPR r 28.2" (at [22] per Sackville AJA) because it is "an exercise of discretion on a point of practice or procedure, rather than a decision which affects substantive rights" (at [24]).
I have reserved the issue of costs.

Orders 1. Grant leave to the plaintiff to reopen his case and to tender a video containing the broadcasts of the first and second matters complained of. 2. Pursuant to r 28.4(2)(c) Uniform Civil Procedure Rules 2005 (NSW), the consent orders of 5 April 2019 purporting to provide for a separate trial of identification issues be set aside. 3. A finding, on an interlocutory basis, that the plaintiff is reasonably identified as the subject of the first matter complained of in these proceedings, namely the defendant's broadcast dated 7 December 2017. 4. A finding, on an interlocutory basis, that the plaintiff is reasonably identified as the subject of the first matter complained of in these proceedings, namely the defendant's broadcast dated 8 December 2017. 5. Costs reserved with liberty to apply. 6. The parties to bring in Short Minutes of Order for a further timetable for these proceedings.

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: 17 September 2019

Defamation Act 1974(NSW)

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Judgment (26 paragraphs)

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Cases Cited (35)

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