Respondents' submissions
33 The respondents contend that Mr Triguboff was not identified by the matter complained of and that it is therefore not "about" him, as required by ss 8 and 9(5) of the Defamation Act. The respondents therefore contend that the answer to the separate question as to whether the matter complained of is reasonably capable of being "about" Mr Triguboff must be "no". If the question is allowed and answered in that way, the rest of the orders sought by the respondents beyond the dispositive orders do not, strictly speaking, arise for consideration.
34 The competing arguments were well exposed and explained by the written submissions, as addressed at the IA hearing. The respondents' written submissions are summarised below, followed by those for Mr Triguboff, with some further exposition of the authorities referred to.
35 The respondents contend that it is an essential element of the tort of defamation that the relevant publication be "of and concerning" Mr Triguboff; that is, that it be "about" him, as required by ss 8 and 9(5) of the Defamation Act, citing:
(1) Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 per Mason J, where his Honour observed at 23:
Not every statement likely to injure a person in his profession or trade is a statement about him. That the statement must be a statement about him to qualify as defamatory matter is in itself a limitation on the category of imputations made actionable by the statute. Thus, for a newspaper to observe in the course of a published report on the performance of a particular model of a car that it was unsafe would be to make a statement likely to injure the distributors of that car in their business; yet it would not be a statement about the distributors and would therefore not defame them. Conversely, it could well be regarded as a statement about the manufacturer of the car, viz. that it produced an unsafe product, likely to injure it in its business and therefore actionable by it.
(2) Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371B-D (emphasis added):
In order to succeed in the action, the plaintiff had to prove, not only that the defendant published the article and that it was defamatory, but she had also to identify herself as the person defamed: Gatley on Libel and Slander, 6th ed., Par. 281 Knupffer v. London Express Newspaper Ltd. [[1944] AC 116 at 120]. "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?": David Syme & Co. v. Canavan [(1918) 25 CLR 234 at 238], per Isaacs J. Therefore, publication "of and concerning the plaintiff", an essential ingredient in her cause of action: Sadgrove v. Hole [[1901] 2 KB 1 at 4], per A.L. Smith M.R.; could here have been made only to those who, possessing particular knowledge of the plaintiff, were able by that means to infer that the article referred to her.
Accordingly, in order to succeed, the plaintiff had to prove that it was reasonable for persons with such knowledge, who had read the article, to conclude that it referred to her; that is, that it designated the plaintiff as having been involved in the thefts. The proposition so stated raises an issue of fact; and the plaintiff called a number of witnesses who swore that, having read the article, they believed, for different reasons, that it did refer to the plaintiff. It must be assumed that the jury accepted this evidence. But before the issue of identification in fact could go to the jury, there was an antecedent question of law which the judge had to answer in the plaintiff's favour. As Viscount Simon L.C. observed in Knupffer's case [[1944] AC 116 at 121]: "There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact - does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?"
(3) Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 at [10]:
A defamatory publication is not actionable unless it is established to have been published "of and concerning" the plaintiff. Where the plaintiff is not expressly named, it must be established that the matter was published to at least one person who had knowledge of extrinsic facts that would provide the necessary identification: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243-4 per Lord Reid. The provision of such particulars is a requirement under the rules: r 15.19(d) of the Uniform Civil Procedure Rules.
(4) Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [14]:
As the plaintiffs' Amended Statement of Claim recognised, it is an essential element of a claim in defamation that the plaintiff prove that the published statements were made "of and concerning the plaintiff" (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371). If, as here, the matter complained of did not expressly mention the plaintiff and the identity of the plaintiff as a person referred to would only be known to readers who had knowledge of special circumstances, it is necessary for the plaintiff to prove, first, that the matter complained of was published to a person or persons who had such knowledge and believed that the plaintiff was referred to (Steele at 373-4).
36 It may be observed that the authorities draw a distinction between publications in which the person alleged to be defamed is referred to by name, and those in which the person is not so named. The respondents submit that this case is of the latter type. Accordingly, the test to be applied is that stated in David Syme & Co v Canavan (1918) 25 CLR 234 at 238 (emphasis added):
The words complained of were found by the jury to be defamatory, that is to say, they tended to create a bad opinion of any person to whom they could be shown to refer. But the jury also found that they did not refer to the plaintiff. The plaintiff was not specifically named. 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? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him. But that is a fact, and it is a fact the burden of proving which to the satisfaction of the jury is upon the plaintiff. That is established by cases of the highest authority, such as Le Fanu v. Malcomson [l HLC 637] and E. Hulton & Co. v. Jones [[1910] AC 20].
37 The respondents submit that, while the test for the existence of the necessary identity link when the complainant is not named is one of fact, it is well established that the question of whether the evidence - in this case, any evidence - is capable of establishing that fact is a question of law to be determined by the tribunal of law, and therefore the trial judge, citing Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Pty Ltd [2017] NSWSC 214 (Plymouth Brethren (First Instance)) at [6]-[7] (citation in footnote omitted):
6 The defendants contend that neither of the matters complained of is capable of identifying the plaintiff company and that the proceedings should accordingly be dismissed. It was common ground between the parties that the test for identification is that stated by Isaacs J in David Syme & Co v Canavan:
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?
7 That is a question of fact for the jury. However, it is well established that the question whether the evidence is capable of establishing that fact is a question of law to be determined by the judge. The defendants seek to have that issue determined separately as a preliminary question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW). In bringing that issue forward for separate determination, the defendants accept that the Court should assume the plaintiff would be able at trial to establish the matters stated in the pleadings and particulars.
38 It should be noted that although the decision in Plymouth Brethren (First Instance) was overturned by majority as to the answer given to the separate question in that case, the NSWCA in 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 (Plymouth Brethren (NSWCA)) cast no doubt on the correctness of the long-standing proposition of capability being a question for the tribunal of law. As discussed below, all three appeal judges also rejected an appeal ground that the primary judge should not have ordered the determination of a separate question, albeit that the procedure was not opposed in that case.
39 The respondents contend that, in order for Mr Triguboff to establish that a publication identified him, he must establish, objectively, that a reasonable reader, having knowledge of the relevant facts, would have understood that the material complained of was referring to him. The hypothetical ordinary reader must have rational grounds for a belief that the matter complained of refers to Mr Triguboff, citing Younan at [25], where it was said:
… although the ordinary reader must have rational grounds for his or her belief that the matter complained of refers to the plaintiff, the "standards of reasonableness required of an identifying reader are not high" (Steele at 363-4), the ordinary sensible reader "is understandably prone to engage in a certain amount of loose thinking" (Amalgamated Television v Marsden (1998) 43 NSWLR 158 at 165) and such a reader draws implications much more freely than lawyers, "especially when they are derogatory" (Favell v Queensland Newspapers [2005] HCA 52; 79 ALJR 1716 at [11]). In my view, a conclusion that the plaintiffs were referred to in the article would not be based upon "the reader's understanding of what the [article] is saying" but would result from the reader's own "beliefs and prejudices" (Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 at 301).
40 The respondents therefore contend that Mr Triguboff must establish:
(1) that the matter complained of was published to a person or persons who had knowledge of the extrinsic facts relied upon and who believed that Mr Triguboff was the person referred to; and
(2) that not only were there readers who, on the basis of the extrinsic facts of which they had knowledge, believed that the matter complained of was referring to Mr Triguboff, but also that those readers were sensible ordinary readers who could reasonably have come to that conclusion, citing Younan as follows:
16 … the plaintiffs do not, impermissibly, assert that an erroneous belief of extrinsic facts was a sufficient basis for a reader to identify the plaintiffs as being referred to by the article (compare Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632 at 642 concerning untrue innuendoes; Nu-Tec v ABC [2010] NSWSC 711 at [18]). Consistently with World Hosts at 642, the plaintiffs do however contend that readers who knew of the (true) extrinsic facts erroneously, but reasonably, understood the article as referring to the plaintiffs. Thus they assert that the readers' beliefs arose from, or were the product of, the article itself (ibid).
17 Secondly, for a plaintiff to succeed he or she is required to prove that not only were there readers of the article who, on the basis of the extrinsic facts of which they had knowledge, believed it to be referring to the plaintiffs, but also that those persons were "ordinary sensible readers" who could reasonably have come to that conclusion (Steele at 374).
41 The respondents submit that Mr Triguboff's task has been authoritatively stated in a number of cases:
(1) In Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, it was said by Jordan CJ at 89:
If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed, or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances.
(2) In Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; [2002] Aust Torts Reports 81-675, it was said at [45] (emphasis in original):
Consolidated Trust, Cross and Kruse illustrate an important distinction in relation to cases where the plaintiff carries on a business otherwise than under his, her or its name. If the matter complained of does not refer to the plaintiff by name, it is not enough that the plaintiff proves that someone who read or saw it linked the publication and the business. The plaintiff must prove that the link was drawn between the publication and the plaintiff.
42 The respondents contend that the necessary threshold is not met by the article and thus by the pleadings about the article. Mr Triguboff's statement of claim does not provide particulars of identification, a topic that is addressed in more detail below. Rather, it effectively alleges that his connection to Meriton is so well-known that it can be inferred that he was identified by readers of the article. However, the respondents submit that such an association is not to the point, and that, in the language of Parras, no "link" is capable of being drawn between the matter complained of and Mr Triguboff. The respondents argue that no evidence can cure this deficiency in the pleaded case, because the article simply does not go far enough to defame any natural person associated with Meriton, including Mr Triguboff. The key features of the article that the respondents contend lead to this conclusion are:
(1) that Mr Triguboff is not named;
(2) that while Meriton is referred to, nothing in the article refers to Mr Triguboff's role within that company, such as, for example, his role in decision-making that affects the quality of the apartments built by Meriton, or his role in the corporate strategy that is the subject of the article; and
(3) that not even vague references to the board or management are used in the article, such that this is not a case in which Mr Triguboff can be identified as belonging to a confined class of individuals, such as his role in a group of directors or managers.
43 The respondents contend that it follows that the matter complained of cannot be understood as being "about" Mr Triguboff and is not reasonably capable of identifying him, particularly considering Plymouth Brethren (First Instance), in which it was held that a publisher will be held liable where its own erroneous statement leads to the identification of a person, but not where that only occurs due to an erroneous belief on the part of the putative reader, not arising, either directly or inferentially, from the words published. The inference that the article was "about" Mr Triguboff must be able to be drawn from the words published, and not be based only on speculation on the part of the reader. The impact on this proposition of the decision in Plymouth Brethren (NSWCA) is considered below.
44 The respondents submit that the conduct in the article is clearly attributed to Meriton and that it is thus clearly "about" Meriton, rather than leaving the reader with any hanging question as to who, if any natural person, that conduct could be attributed to. The respondents contend that, where no natural person is referred to in a publication, there are circumstances in which a reader may acceptably conflate a reference to a company engaging in conduct as being a reference to an individual operating that company, such that the identification process is effectively completed, but that the examples of those instances in the authorities are all examples of sole proprietors or relatively small business entities.
45 In addressing the applicant's argument of notoriety - namely, that Meriton is a company that is sufficiently identified in the public eye as being owned by Mr Triguboff such that Mr Triguboff's ownership is notorious and a reader would understand a reference to Meriton to be a reference to him - the respondents point to a converse aspect of the notoriety argument. The respondents note that the asserted notoriety is founded on the scale and size of Meriton and the pervasive nature of its reputation amongst the Australian public. By that very nature, the respondents submit that the asserted notoriety in fact goes against the reasonableness of the reader conflating the act of the company with the act of the individual, and does not enable the identification process to be completed, as, for example, with sole traders.
46 Given the restrictions on Meriton suing in defamation but not for injurious falsehood, the respondents contend that it is difficult to resist the conclusion that Mr Triguboff's claim in defamation constitutes an attempt to circumvent those restrictions. It may be observed at this point that in a case of injurious falsehood, Meriton would bear the onus of proving that the representations in the article as to the quality of the apartments it built and sold were false, whereas in defamation, the onus of proving the truth of such representations lies with the publisher. The respondents therefore submit that Mr Triguboff's statement of claim strains the jurisprudence on identification, reflecting the artificiality of the identification pleading. They submit that s 9(5) of the Defamation Act does not assist Mr Triguboff, because he can only sue in relation to a publication that is "about" him, and not only about Meriton.
47 At the hearing, the respondents separately sought to place some reliance on early correspondence, sent soon after the publication of the article, in which a Meriton in-house lawyer confined the expressed concerns to the impact on Meriton, without reference to Mr Triguboff. However, this correspondence is of little or no assistance. Either the article is capable of being "about" Mr Triguboff or it is not, irrespective of the view that might have been taken by that lawyer.