Zoef v Nationwide News Pty Ltd - [2016] NSWCA 283 - NSWCA 2016 case summary — Zoe

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Zoef v Nationwide News Pty Ltd

[2016] NSWCA 283

Court of Appeal (NSW)|2016-05-12|Before: Ward JA, Gleeson JA, Payne JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2016-05-12

Before

Ward JA, Gleeson JA, Payne JA

Source

Original judgment source is linked above.

Judgment (31 paragraphs)

[1]

B 377 Nu-Tec v ABC [2010] NSWSC 711 Kruse v Lindner (1978) 45 FLR 412 Lee v Wilson & McKinnon (1934) 51 CLR 276; [1934] HCA 60 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Smits and Another v Roach and Another (2006) 227 CLR 423; [2006] HCA 36 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Universal Communication Network Inc t/as Newtang Dynasty v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1 Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Zoef v Nationwide News Pty Ltd [2015] NSWDC 232 Texts Cited: Patrick Milmo et al, Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell) JG Fleming, The Law of Torts (9th ed, 1998, Thomson Reuters) Carolyn Sappideen and Prue Vines, Fleming's The Law of Torts (10th ed, 2011, Thomson Reuters) Macquarie Dictionary (online) Category: Principal judgment Parties: Atanas (Tony) Zoef (Appellant) Nationwide News Pty Ltd (Respondent) Representation: Counsel: C A Evatt/ R Rasmussen/ I Kirgiz (Appellant) D R Sibtain/ L Barnett (Respondent)

[2]

Solicitors: Beazley Boorman Lawyers (Appellant) News Corp Australia (Respondent) File Number(s): 2015/308249 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2015] NSWDC 232 Date of Decision: 16 October 2015 Before: Levy SC DCJ File Number(s): 2013/370050

[5]

The article

The relevant parts of the lead article and the full text of the article which was printed underneath it (with the addition of numbering for subsequent ease of reference) is as follows: 1. GLOVES OFF 2. Police model gun crime tactics on New York's 9/11 response … 6. Police have vowed to take the fight to Sydney's gun-toting criminals to end the scourge of deadly shootings, adopting a hardline approach similar to that used by heavily armed New York cops in the aftermath of the September 11 terror. … 18. … Mr Scipione said the force needed to respond to the challenging nature of crime. … 20. "The message to those gun-slingers, punks many of them, thinking that they rule the streets, (is) that's not the case. … 27. Tailor's alter ego as a gunrunner … 29. TO Sutherland Shire locals, Tony Zoef is a friendly tailor who spends his days altering their clothes. 30. But police allege the 43-year-old space enthusiast is the mastermind behind a haul of military-grade weapons smuggled into Australia. 31. Zoef faced Sutherland Local Court yesterday charged with 21 offences after police said they discovered a huge cache of weapons and ammunition at his Sylvania home. 32. Guns, grenades, an Israeli land mine, a pipe bomb, gas masks, body armour and hundreds of rounds of ammunition were allegedly uncovered during a raid on his home. 33. Police said they were forced to call in the army to ensure the stash was safe. Zoef was arrested after the Australian Customs and Border Protection Services allegedly detected a firearm part in a package sent from overseas during screening at the Sydney International Mail Facility in May. 34. Customs officers then targeted another shipment on July 3. 35. Zoef did not apply for bail, which was formally refused.
There was a photograph on each side of the article: on the left, a 38 mm x 35 mm photo of a grenade, captioned "A grenade discovered at Zoef's home", and on the right, an equal-sized photo of a large knife, captioned "A knife discovered by police". Inset in the middle column (pars 31 - 33) was a 12 mm x 12 mm blurred close-up photo of a face, captioned "Tony Zoef".
In the District Court, Levy SC DCJ dismissed the appellant's claim against the respondent publisher and entered judgment for the respondent: Zoef v Nationwide News Pty Ltd [2015] NSWDC 232. The sole basis on which the claim was dismissed was the respondent's defence (under s 18 of the Defamation Act 2005 (NSW) (Defamation Act)) that the appellant (as plaintiff) had failed unreasonably to accept the respondent's offer of amends. His Honour indicated that, had he not upheld that defence, he would have awarded damages to the appellant which he contingently assessed at $150,000.
The principal question raised in this appeal is whether the primary judge erred in upholding the respondent's defence of offer of amends under s 18(1) of the Defamation Act.
If the appellant succeeds on that issue, the respondent, by way of notice of contention, seeks to uphold his Honour's decision on liability on the ground that his Honour erred in finding that the appellant was identified in the article. There is no challenge to his Honour's findings that the imputations of which the appellant complained were conveyed to the ordinary reasonable reader; that such imputations were defamatory of the appellant (assuming he was identified in the article); and that the defence of fair report under s 29 of the Defamation Act had not been made out. Nor is there any challenge to his Honour's contingent assessment of damages at $150,000.

[6]

Relevant facts

The appellant was aged 81 years at the time of the publication. He had only ever worked as a tailor, first in Macedonia, then in Greece, later in New Zealand, and since 1956, in Sydney. His business premises had been located in Newtown for about 25 years until 1970, when he moved his workshop to the back of the house he had built on the Princess Highway at Sylvania. He carried on the business of tailoring and clothing alterations from those premises since that time. A sign was erected outside his Sylvania home and remained there for about 30 years proclaiming in large letters "Tony's Tailoring Service". At some point the local Council objected to the sign's size and the appellant was required to substitute a smaller version.
The appellant had promoted his business as a tailor by distributing (over a period of about 3 years) nearly one million brochures referring to "Tony's Tailoring Alterations" and giving the appellant's home address and phone number. He had also advertised his business on radio 2UE for three months. That advertising would seem to have occurred quite some time ago; the appellant gave evidence that the advertisements were made with host John Pearce of Radio 2UE.
On 21 August 2013, police raided the appellant's home at Sylvania. A cache of weapons and ammunition was found in the garage which was occupied by the appellant's son (aged 43), who was also named Tony Zoef. The appellant's son was arrested and charged with a number of firearms and weapons-related offences. The following day, the respondent published the newspaper article in question concerning those events.
The appellant gave evidence that he first saw the article when a neighbour showed it to him shortly after it was published. The neighbour asked him if he had any guns or explosives and the appellant told him that he was not a terrorist. The appellant said he was very upset and described himself as "stuttering away and just shaking away". His reaction upon reading the article was one of shock. He said he had tried to build his reputation for 40 years and then one newspaper article destroyed half of his business, and half the customers had not come back yet.
The appellant said that about 20 customers telephoned, "wanting to know what [he] was doing" and enquiring "isn't the business good enough so [he had] to involve guns to make money". He said that customers asked him "is business so bad you have to run guns and sell guns"; and that customers kept saying to him "don't you make enough money that you have to start dealing with guns?".
The appellant went on to describe the effect of the article upon him. He now required heart tablets to calm himself down. He said the effect of the publication "just kept eating at me".
The primary judge accepted the appellant's evidence that he had not known of the existence of the arsenal of weapons and ammunition that his son had kept in the garage. He also accepted that the appellant's son had never worked as a tailor.
In addition to the evidence given by the appellant, three witnesses were called in the appellant's case on the issue of identification: Ms Ronda Zoef, the appellant's daughter, Mr Tony Manu, who had been a social acquaintance of the appellant for over 50 years, and Mr Richard Beer, who had been a client of Mr Zoef since 1981.
Ms Zoef said that when she has read the article she thought it referred to her father, and although when she read further she "realised it was about my brother", "reading it initially it was referencing my father as the tailor".
Mr Manu said that when he read the article he was surprised to learn that the appellant was "a tailor by day and something else by night". In cross-examination Mr Manu agreed that the photograph didn't look like the appellant and that he had seen it when he read the article. It was put to Mr Manu that when he read the article he understood that it must be referring to the little boy he had once met, Tony Zoef Junior. Mr Manu disagreed saying: A. No. Because when they say the tailor immediately it hit me that that's ruining his business because I am in business and I thought his business is going to be ruined because it's mentioned in the newspaper. Q. So you gave particular prominence to the fact that there was a reference to a tailor? A. Correct. Q. How did you deal with the description of the gentleman referred to in this article as being a 43 year old? Did you ignore that? A. I did not concentrate on that figure, myself. I only concentrated on the - what's going to happen to him being in business and we discussed that with my wife and they rang - I rang him up. Q. Did you ignore the fact that there was a mention of the 43 year old man? A. I did not took notice of that figure to be honest.
Mr Beer said that he read the article in full and that the parts that registered the most were the start of the article which mentioned Tony Zoef of the Sutherland Shire being a tailor and "smuggling arms and things like that into the country". He said that the reference to 43 years of age registered but he found it confusing "because I knew he was in his early 80's".
It was put to Mr Beer, on the basis of this age discrepancy, that he realised the article was talking about someone different. He did not accept this and said "sometimes there's mistakes with ages in the paper …the part that registered more than anything was that it was Tony Zoef the friendly tailor from Sylvania - from the Sutherland Shire. That was the part that registered the most". Mr Beer acknowledged that the reference to 43 years confused him but he did not know that it was not the appellant referred to in the article until speaking with him a few weeks later, as "[t]here was nothing else that made me think it was anybody else. It was because there was so much detail about Tony from Sylvania Heights being the tailor."
Aside from her own initial supposition that the appellant was the subject of the article, Ms Zoef also gave evidence of observing the appellant's initial reaction to the publication. She said he was distraught and shocked at the suggestion that he was said to be a gunrunner and that he had become more insular and reclusive following the publication.
The appellant gave evidence that customers and neighbours not familiar with his family had questioned him as to whether he was involved in the making or running of guns. He found those conversations upsetting even though he considered the questions absurd. He said that his previously good reputation had "gone down". He noted an estimated a 60 per cent reduction in his custom had occurred and that since the article's publication about half of his customers had not returned to collect their garments.
At the time of the publication, the readership of The Daily Telegraph was estimated to be in the order of 1,120,000.

[7]

The respondents' offer of amends

The appellant's statement of claim, filed 9 December 2013, was served on the respondent on 20 December 2013.
On 16 January 2014, the respondents' solicitors sent a letter to the appellant's solicitors offering to make amends pursuant to Pt 3, Div 1 of the Defamation Act on behalf of the defendants. The letter stated that the appellant had not provided a concerns notice to the defendants before the statement of claim was served and treated the statement of claim as such a notice. It offered to publish a clarification and pay the appellant's reasonable expenses incurred before the date of the offer and incurred in considering the offer, as agreed or assessed. The offer was expressed to remain open to be accepted (unless withdrawn in writing) until the first day of the hearing. The letter asserted that the defendants "remain ready and willing to perform the terms of the offer immediately on acceptance".
The proposed clarification attached as Annexure A to the 16 January 2014 letter was in the following terms: "Annexure A" Tony Zoef Snr. On 22 August 2013, an article was published in The Daily Telegraph regarding court proceedings against Tony Zoef. Those proceedings relate to Tony Zoef Jnr and do not relate in any way to his father, Tony Zoef Snr. The Daily Telegraph apologises to Mr Zoef Snr for any confusion or embarrassment caused by the article. …
The appellant's solicitors replied to the offer of amends by letter dated 23 January 2014 indicating that the appellant accepted the offer "subject to clarification and some minor qualifications". These required the proposed apology to be in a box 40 mm high and two columns wide headed "Apology" in bold type and placed on either page 2 or 3, or on the same page as the article in question. The letter also sought "some reasonable" amount of compensation.
The respondents' solicitors replied by letter dated 30 January 2014 treating the appellant's response as a counter-offer and so rejecting it. That letter indicated that the apology would be placed in the "For the Record" section of The Daily Telegraph in accordance with the respondent's standard practice.
On 27 March 2014, the respondents' solicitors withdrew the offer of amends dated 16 January 2014 and made a renewed offer to make amends, expressed to be pursuant to Pt 3 Div 1 of the Defamation Act. The terms of this offer included that an apology would be published in the "For the Record" section of The Daily Telegraph in the usual style and font. The proposed apology was in the same terms as that attached to the offer of 16 January 2014 (set out at 26] above) and an example was provided by way of a previous "For the record" section which indicated the size, style and font in which the apology would be published. Compensation of $20,000 was offered, together with payment of the appellant's reasonable expenses incurred before the date of the offer and incurred in considering the renewed offer. Again, the offer was expressed to remain open to be accepted (unless withdrawn in writing) until the first day of the hearing.
On 28 April 2014, the respondents filed their defence which included (in par 7) the plea of offer to make amends pursuant to s 18 of the Defamation Act. Relevantly, the defence asserted in par 7(a)(iv) that the appellant "failed to accept the offer", being that contained in the respondents' solicitors' letter dated 27 March 2014.
Following an unsuccessful mediation held on 20 November 2014, the respondents' legal counsel sent a letter to the appellant's solicitors dated 24 November 2014 withdrawing the offer of amends dated 27 March 2014. As indicated, the claim against the two respondent journalists was discontinued on 22 December 2014.
On the day before the trial, 25 May 2015, the solicitor for the appellant wrote to the respondent's legal counsel purporting to accept the "updated offer of amends of 27 March 2014". No reference was made to the fact that that offer had been withdrawn. It was common ground that this purported acceptance was wholly ineffective.

[8]

Legislative provisions - Offer of Amends

The objects of the Defamation Act include "to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter": s 3(d).
Part 3 of the Defamation Act is headed "Resolution of civil disputes without litigation". Division 1 of Pt 3 deals with offers to make amends. Section 12(1) provides that the Division applies if a person (the publisher) publishes matter (the matter in question) that is, or may be, defamatory of another person (the aggrieved person).
Section 13 provides that the publisher may make an offer to make amends to the aggrieved person: s 13(1). The offer may be in relation to the matter in question generally, or limited to particular defamatory imputations that the publisher accepts that the matter in question carries: s 13(2). An offer to make amends is taken to have been made without prejudice, unless the offer provides otherwise: s 13(4).
Section 14 deals with the timing requirements for an offer to make amends. Relevantly, it provides: 14 When offer to make amends may be made (1) An offer to make amends cannot be made if: (a) 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person, or (b) a defence has been served in an action brought by the aggrieved person against the publisher in relation to the matter in question. (2) A notice is a concerns notice for the purposes of this section if the notice: (a) is in writing, and (b) informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (the imputations of concern). ...
Section 15 deals with the content of an offer to make amends. Relevantly, s 15(1) provides: 15 Content of offer to make amends (1) An offer to make amends: (a) must be in writing, and (b) must be readily identifiable as an offer to make amends under this Division, and (c) if the offer is limited to any particular defamatory imputations - must state that the offer is so limited and particularise the imputations to which the offer is limited, and (d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and (e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge - must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and (f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and (g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to): (i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or (ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or (iii) the particulars of any correction or apology made, or action taken, before the date of the offer.
Section 15(2) provides that an offer to pay compensation, as referred to in s 15(1)(g)(ii), may comprise or include any one or more of an offer to pay a stated amount; an offer to pay an amount to be agreed between the publisher and the aggrieved person; an offer to pay an amount determined by an arbitrator appointed or agreed on by the parties; and an offer to pay an amount determined by the Court.
Section 16 deals with withdrawal of an offer to make amends. It provides: 16 Withdrawal of offer to make amends (1) An offer to make amends may be withdrawn before it is accepted by notice in writing given to the aggrieved person. (2) A publisher who has withdrawn an offer to make amends may make a renewed offer. (3) A renewed offer may (but need not) be in the same terms as the withdrawn offer. (4) A renewed offer is to be treated as a new offer (including for the purposes of section 14). (5) However, the time limit specified in section 14 for the making of offers to make amends does not prevent the making of a renewed offer that is not in the same terms as the withdrawn offer if: (a) the renewed offer represents a genuine attempt by the publisher to address matters of concern raised by the aggrieved person about the withdrawn offer, and (b) the renewed offer is made within 14 days after the withdrawal of the withdrawn offer or any other period agreed by the publisher and the aggrieved person.
Section 17 deals with the effect of acceptance of an offer to make amends. It is not presently relevant as there is no issue in the present case that any offer to make amends was validly accepted by the appellant.
Section 18 deals with the effect of failure to accept a reasonable offer to make amends. It provides: 18 Effect of failure to accept reasonable offer to make amends (1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if: (a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory, and (b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer, and (c) in all the circumstances the offer was reasonable. (2) In determining whether an offer to make amends is reasonable, a court: (a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account: (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and (b) may have regard to: (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and (ii) any other matter that the court considers relevant.
Section 19(1) provides that evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil). This is qualified by s 19(2) which provides that this does not prevent the admission of evidence in any legal proceedings in order to determine an issue arising under, or relating to the application of, a provision of Div 1 of Pt 3 of the Defamation Act or costs in defamation proceedings.

[9]

Identification

His Honour referred to the legal principles on the issue of identification, including that the plaintiff must establish that the defamatory matter be understood as referring to him (Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 (Consolidated Trust Co Ltd v Browne) at 91 (Jordan CJ)); that the question is would a sensible reader reasonably identify the plaintiff as the person defamed (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (Morgan v Odhams Press Ltd)); and that the ordinary reasonable reader is not taken to be one who reads the article in question with cautious and critical analytical care (Morgan v Odhams Press Ltd at 1254 and 1256).
His Honour also referred to the well-known statement of Sir Frederick Jordan CJ in Consolidated Trust Co Ltd v Browne (at 90 - 91) that if matter, which on the face of it is capable of being regarded as defaming a particular person who is mentioned by name, is proved to be published to anyone whomsoever, the tort of defamation is committed. His Honour accepted that in cases where a person is mentioned by name in an article, a plaintiff is not obliged to call evidence identifying himself as the person referred to in the publication. Reference was made to Cross v Denley (1952) 52 SR (NSW) 112 (Cross v Denley) at 116.
His Honour then proceeded to address the issue of identification by reference to whether the appellant was named in the article and whether an "ordinary reasonable reader" would conclude that the article referred to and identified the plaintiff.
His Honour found that the appellant was identified by the matter complained of because he was named and, in addition, because the matter complained of referred to the appellant's profession as a tailor and his location in his home in the Sutherland Shire: at [49] - [52]. Further, the emboldened headline "Tailor's alter ego as a gunrunner" and the article itself below that headline both referred to the appellant: at [51].
His Honour regarded as immaterial the "unclear [and] undated photograph of Tony Zoef" appearing in the article. He accepted that the reference to the age of the person the subject of the article being 43, along with the indistinct photograph, introduced an "element of possible confusion": at [54]. However, after observing (at [54]), that "inaccuracy of some details appearing in a newspaper article is not an unknown phenomenon", his Honour continued (at [55]), finding "the salient feature is that the plaintiff was named in the article with sufficient of his personal details to suggest he was thereby identified".
His Honour considered (at [58]), that, being named in the article, the appellant was not obliged to call evidence identifying himself as the person referred to in the publication, referring to Cross v Denley at 116.
His Honour then turned to the characteristics embodied by the "ordinary sensible reader". His Honour accepted that the standard of reasonableness of the ordinary reader is not high. Reference was made (at [40]) to the statement in JG Fleming, The Law of Torts (9th ed, 1998) at 590 - 591, which is reproduced in substantially the same terms in the current edition of Fleming's The Law of Torts (10th ed, 2011) at [25.70] as follows: … Here also the standard of reasonableness is not high: the ordinary reader of a newspaper article, especially of the sensational variety, is not expected to read "with cautious and critical analytical care", he or she may read "casually and not expecting a high degree of accuracy" and indulge "in a certain amount of loose thinking" and even "rather far-fetched inferences". Evidence of witnesses that they believed the defamation to refer to the plaintiff is certainly admissible, even necessary when identification depends on special knowledge of the plaintiff, but it is of course not conclusive. There has been an increasing latitude not only in the relevant standard but also in passing the issue to the jury. … Since liability is not dependent on fault, this liberality imposes a correspondingly greater burden on publishers. [References and citations in the quotation have been omitted]
His Honour found that an "ordinary sensible reader" would identify the appellant as the person the subject of the material complained of because of the specification of his name, profession and locality: at [60]. His Honour reasoned that: 1. such a reader would not read such a sensational article with critical and analytical care; would approach the article with the permissible amount of loose thinking; and would be reasonably entitled to draw the conclusion that the article was referring to the appellant, notwithstanding that there were "some elements of confusion" arising from the photograph and the age mentioned: (at [60]); and 2. that "an ordinary reasonable reader would not necessarily know the plaintiff's age or his level of interest in matters to do with space": (at [61]); instead, the headline would catch the attention of such a reader and permit the general impression of the story being a reference to the plaintiff. Reference was made to Mirror Newspapers Ltd v World Hosts Pty Limited (1979) 141 CLR 632; [1979] HCA 3 (World Hosts) at 646 and Morgan v Odhams Press Ltd.
Finally his Honour relied upon the initial reactions of the appellant's witnesses, Ms Zoef, Mr Manu and Mr Beer, who all knew the appellant, as an indication of the correctness of his conclusions on the issue of identification. He considered that "their special knowledge of the plaintiff distinguished them from the less informed attributes of an ordinary reasonable reader": at [62]. He held that the appellant did not rely upon any erroneous belief of readers as to identification, referring to Nu-Tec v ABC [2010] NSWSC 711 at [18].

[11]

Defences

The respondent did not pursue the defence of a fair report pursuant to s 29 of the Defamation Act, which his Honour accordingly rejected.
After referring to the provisions concerning offers of amends appearing in Pt 3 Div 1 of the Defamation Act, his Honour made the following findings: 1. the (initial) offer of amends was compliant with the time requirement in s 14(1) of the Defamation Act as it was sent 27 days after the service of the appellant's statement of claim: at [89]; 2. on its face, the (initial) offer of amends was compliant with s 15 of the Defamation Act relating to the content of an offer to make amends, and was expressed to have been open for acceptance until the first day of the hearing, unless withdrawn in writing beforehand: at [90]; 3. the (initial) offer was not accepted by the appellant: at [91]; 4. the respondents withdrew the offer of amends on 27 March 2014 and made a renewed offer of amends that indicated where, and in what size and style, an apology would be published. It also included an offer of monetary compensation in the amount of $20,000 plus payment of the appellant's reasonable expenses incurred before the date of the renewed offer, including the costs of considering the offer, as agreed or assessed. The offer was expressed to remain open until the first day of the hearing, unless withdrawn in writing. The renewed offer was compliant with s 16 of the Defamation Act: at [93]; 5. on 24 November 2014, the defendants' in-house legal counsel withdrew the renewed offer of amends of 27 March 2014, in a manner provided for by s 16 of the Defamation Act: at [94]; 6. the purported acceptance, on 25 May 2015, by the appellant's solicitor of the "updated Offer of Amends of 27 March 2014" was ineffective: at [97]-[98].
His Honour found that the cumulative preconditions in s 18(1)(a), (b) and (c) of the Defamation Act, were satisfied and addressed each of them in turn. 1. As to the requirement of s 18(1)(a), that the publisher must make the offer as soon as practicable after becoming aware of the matter complained to be defamatory, his Honour held that this was satisfied by the respondents' offer dated 16 January 2014 and renewed offer dated 27 March 2014 in response to the changed circumstances of negotiations: at [100]. 2. As to the requirement of s 18(1)(b), that at any time before the trial, the publisher was ready and willing, on an acceptance of an offer by the aggrieved person to carry out the terms of the offer, his Honour held this is not necessarily dependent upon an offer of amends being left open until trial (at [111]). 3. As to the requirement of s 18(1)(c), that, in all the circumstances, the offer was reasonable, his Honour found that this could be "determined shortly, simply and directly… by reference to… [the] letter sent by the appellant's solicitor on 25 May 2015, in which the appellant purported to accept the previously made offer of amends": at [103]. His Honour continued (at [104]): In my view, the [appellant's] willingness to accept the previously made offer (ignoring for the purposes of this analysis that it had been withdrawn) provides a sufficient indication of the reasonableness of that offer at the time it was thought to have remained open. Accordingly, the relevant offer of amends satisfied the requirements of s 18(1)(c) of the [Defamation] Act. [Emphasis added].
His Honour concluded that the respondent is entitled to the benefit of the defence provided by s 18(1) of the Defamation Act.

[14]

(b) Was the offer of amends reasonable?

The appellant attacked the reasonableness of the offer of amends on three bases. It was argued, first, that the proposed apology in the "For the Record" section of the respondent's newspaper would, if published, be given significantly less prominence than the matter complained of. Secondly, that the offer of $20,000 compensation was not reasonable given the seriousness of the imputations complained of. Thirdly, that the offer of $20,000 compensation was significantly less than the damages contingently assessed by his Honour.
The unequal prominence of the proposed apology is created by a number of factors. The location of the proposed apology (at the bottom of the page) in the "For the Record" section is well into the body of the respondent's newspaper. In the example provided by the respondent to the appellant, the "For the Record" section appeared at page 96, which page was devoted to numerous disparate items of editorial comment, letters to the editor, and "Street talk" comment. By contrast, the matter complained of appeared at page 9 and occupied the entire page.
It was also said that the proposed apology was "less than gripping" relative to the headline and the subjects of the matter complained of, to use the words of McCallum J in Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 (Pedavoli) at [83]. That description of the proposed apology is supported by a comparison of the sensational heading of the matter complained of with the far less eye-catching heading of the proposed apology, located down the bottom of the page.
Next, the overall size, font size, style and line spacing of the proposed apology was criticised. In the matter complained of, the headline to the lead article at par 1 "GLOVES OFF…." was 36 mm in height and the headline at par 27 "Tailors alter ego as a gunrunner" was about 9 mm in height. By comparison, the "For the record" heading in the proposed apology was only 5 mm in height.
In oral argument, counsel for the respondent accepted that the proposed apology was "footnote size". That description is apt. Not only was the location of the proposed apology at the bottom of the page in the nature of a footnote, the proposed print style and size relative to the other material on the same page was considerably more dense and compacted than that in the defamatory article which, with its adjoining photos, was spread across five columns, and had smaller line spacing than any other print on the same page, let alone that on page 9. Counsel for the respondent ultimately conceded that there was a significant disparity between the prominence given to the matter complained of and the proposed apology. That concession was properly made.
The second and third matters concerning the monetary compensation offered are related and can be dealt with together. The respondent accepted that, given the seriousness of the defamatory imputations conveyed by the article, some monetary payment was required in order to repair the hurt suffered by the appellant. In assessing the reasonableness of the monetary component of an offer, the appellant pointed to his Honour's contingent finding that, but for the success of the offer of amends defence, the sum of $150,000 was appropriate compensation for the appellant's feelings of hurt and distress. It was emphasised that this amount is 7.5 times the amount of the offer of $20,000.
Against this, the respondent referred to Pedavoli where McCallum J accepted as "undoubtedly correct" the submission that the adequacy of a monetary offer is not to be judged by reference to the range of damages that the plaintiff would receive at trial. McCallum J explained that this would overlook the reparation achieved by the mandatory components of the offer, particularly the requirement to publish a reasonable correction. McCallum J continued (at [100]): The reasonableness of any monetary offer is necessarily informed by the reasonableness of the correction, including the extent of its reach. To adopt any different approach would subvert the object of the Act of encouraging the non-litigious resolution of defamation disputes. I agree with those observations.
Nonetheless, as McCallum J also noted, this is not to deny that "the seriousness of the defamation undoubtedly remains a relevant factor in assessing the reasonableness of the monetary component of an offer".
It should be accepted that the assessment of the adequacy of the sum offered is informed by the seriousness of the defamation and the other components of the offer, including any proposed apology, and the fact that acceptance of it would have made amends and obviated the need for a trial. In addition, the adequacy of the monetary offer is informed by the risk of the proceedings being successful, taking into account the defences raised by the defendant.
The respondent emphasised that the defamatory imputations conveyed by the article did not include that the appellant was a terrorist. The respondent submitted that the defamation did not fall within the worst class of case. So much can be accepted, but that does little to justify the reasonableness of the offer of amends in light of the imputations that were conveyed, including that, (as set out at [52] above), the appellant is a "gunrunner", "a gun toting criminal", and "a gun slinging punk".
The seriousness of the defamation was significant. His Honour found that a person conducting himself in the manner described in the article would attract opprobrium, disdain, ridicule and contempt from society: at [71]. Consistent with that view, his Honour found that the appellant was upset by the publication and its effect on his business as a tailor; he was upset by customers questioning his involvement in the making or running of guns; he avoided going out and found it unpleasant to have to explain himself in such conversations; and he experienced an estimated 60 per cent drop-off in his business with a significantly high proportion of his customers not having returned to collect their garments.
Here, the main hurdle confronting the appellant's claim was the identification question. Assuming success on that point, there does not seem to have been any substance in the respondent's defences in relation to the capacity question, nor the defence of fair report under s 29, while the offer of amends defence would only operate in the event of the appellant's failure to accept the renewed offer at any time after 27 March 2014 up to the first day of the hearing, unless it was earlier withdrawn by the respondents. Overall, there was a significant risk (to the respondents) of the proceedings being successful.
Taking into account the seriousness of the defamatory imputations and the significant hurt they caused the appellant, the damage to his business as a tailor, the unequal prominence the respondent afforded to the proposed correction and apology and their resultant inadequacy, the modest monetary component of the offer, and the likelihood of the proceedings being successful, the offer of amends was not reasonable. His Honour was in error in finding to the contrary and upholding the respondent's defence under s 18 of the Defamation Act. Ground 1 has been established.
In light of the above conclusion, it is unnecessary to deal with the remaining grounds of appeal relating to the defence of offer of amends. However, against the possibility that others are of a different view I will address those grounds which involve construction of s 18 of the Defamation Act.

[16]

(1) Mandatory apology - s 18(2)

The terms of s 18 of the Defamation Act are set out at [41] above. On its face, nothing in s 18 mandates that a defendant must have published an apology to engage the offer of amends defence.
The appellant based the contention that a mandatory apology is necessary to establish reasonableness of the offer of amends on a statement by McCallum J in Pedavoli at [75]. That case provides no support for the appellant's contention.
In Pedavoli the publisher offered to publish an apology, together with compensation of $50,000, and to pay the plaintiff's reasonable legal expenses. The offer also included reliance upon actions taken by the publisher before the date of the offer (as allowed under s 15(1)(g)(iii) of the Act), namely that the incorrect identifying words had been promptly removed from the online version of the article early on the day the newspaper article was published. The plaintiff did not accept the offer. McCallum J observed that the list of considerations in s 18(2)(a) for determining whether the offer "is" reasonable included the mandatory consideration of "any correction or apology published before any trial". As should be apparent, there is a material difference between a mandatory consideration - of "any correction or apology" - when determining the reasonableness of an offer of amends, and the mandatory requirements of an offer of amends as specified in Pt 3 Div 1 of the Defamation Act. McCallum J continued (at [75]): In terms, that provision [s 18(2)(a)] would require the court, in determining the reasonableness of an offer, to have regard to a correction or apology published after the plea of failure to accept a reasonable offer had been put on. The section thus entails an element of paradox, requiring the Court to make a determination as to circumstances at a fixed point in time with mandatory reference to later events.
Her Honour did not say, and is not to be taken as saying, that a correction or apology must have been published prior to the trial. The appellant's submission overlooks the word "any" preceding the words "correction or apology published before any trial" in s 18(2)(a). Simply stated, in determining whether the offer was reasonable, the court must have regard to later events, if they have occurred, such as publication of a correction or apology. It does not follow, however, that a published apology is mandatory in order to establish the reasonableness of an offer to make amends.
Ground 3 has not been made out.

[17]

(2) "As soon as practicable"

The appellant's complaint that the offer of amends was not made "as soon as practicable" after becoming aware that the matter is, or may be, defamatory relied upon the differences between the newspaper article and the online version which appeared on the respondent's website on the same day. The online version carried the headline "Alleged Sylvania weapons hoarder dreamt of voyaging to Mars". It described the subject of the article as the "43-year-old space enthusiast Tony Zoef". Par 7 of the online version said "while he worked as a tailor by trade Zoef boasts a wide range of talents including engineering, flying, horticulture, aquaculture and hydroponics in an online application to be part of the first manned space flight to Mars".
His Honour found (at [79]) that nothing turned on those differences and that the online version was most likely distributed after the print version of the article.
The appellant submitted in writing that the respondents should have known from the differences between the two articles that some mistake had been made because the online version contained no reference to a "tailor", a "friendly tailor", nor to Sutherland Shire locals and altering clothes. It was also contended that the respondents should have known that there were two persons of same name, Tony Zoef, and that it was necessary for the respondent to call evidence on the s 18(1)(a) issue.
In essence it was submitted that it may be inferred from the difference between the articles that the respondents knew an error had been made at the time of the online article's publication but did not make an offer of amends until 16 January 2016. The force of that submission relied on the absence of any reference to Tony Zoef's work as a "tailor" in the online version. However, as counsel for the appellant acknowledged in oral argument, the online version of the article did in fact refer to the subject Tony Zoef's work as a "tailor".
As both articles contained the common reference to "Tony Zoef", a "tailor", I am not persuaded that an inference should be drawn that the respondents knew at the time of publishing the online version of the article that a mistake had been made.
In applying s 18(1)(a), it is necessary to give content to the terms "as soon as practicable". The Macquarie Dictionary defines "practicable" as "capable of being put into practice, done, or effected, especially with the available means or with reason or prudence; feasible". It is not in dispute that the respondents were not given a concerns notice by the appellant prior to service of the statement of claim.
A statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2), namely that it is in writing and informs the publisher of the imputations that the aggrieved person considers may be carried by the matter complained of. The effect of s 14(1) is that an offer to make amends cannot be made if 28 days have elapsed since the publisher was given a concerns notice by the aggrieved person.
Here, the initial offer of amends was made within 28 days of service of the statement of claim. On the evidence, the respondents first became aware that the matter was or may have been defamatory upon service of the statement of claim, rendering the offer compliant with s 18(1)(a). The appellant did not otherwise suggest that the renewed offer made on 27 March 2014 was not compliant with the temporal conditions specified in that provision.
Ground 4 has not been established.

[18]

(d) Withdrawal of offer to make amends

The appellant contended that his Honour erred in finding that the conditions in s 18(1)(a) and (c) of the Defamation Act were satisfied and also overlooked the requirement in the chapeau to s 18(1) (namely, that the offer is "not accepted").
As to the requirement that the offer is "not accepted", the appellant contended that the provisions of s 18 were not engaged because the offer was withdrawn before the closure of the acceptance period, the first day of the hearing. That contention ignored the terms of the offer.
Both the respondent's initial offer of amends dated 16 January 2014 and renewed offer of 27 March 2014 provided that the offer was to remain open to be accepted, "unless withdrawn in writing", until the first day of the hearing.
In writing, the appellant contended, on the basis of the respondent's withdrawal of the renewed offer on 24 November 2014, that there was no offer of amends open at the time of the trial, and that this is inconsistent with the respondent's defence. In support of this argument, the appellant pointed to two matters. One was the statement in the respondents' letter of 27 March 2014, when renewing the offer of amends, that: In the event that this offer is not accepted by your client, our clients will rely on this offer … as a defence under s 18.
The other matter was the terms of par 7(a) of the respondent's defence which pleaded: 7(a) Offer to make amends - section 18 of the Defamation Act 2005 (i) As soon as practicable after becoming aware that the matter may be defamatory the Defendants made an offer to make amends. (ii) The Defendants remain ready and willing, on acceptance of the offer by the Plaintiff, to carry out the terms of the offer; (iii) In all of the circumstances the offer was reasonable; (iv) The Plaintiff has failed to accept the offer.
The appellant contended that the terms of par 7(a)(ii) of the defence indicated that the offer remained open for acceptance. That may be accepted as a correct statement of the position at the time the defence was filed and does not detract from the respondent's defence that the appellant had failed unreasonably to accept the offer of amends.
In the same vein, the appellant submitted that the terms of par 7(a)(iv) of the defence did not expressly plead that the appellant had "not accepted" the offer (as stated in s 18(1) of the Defamation Act) but only pleaded that the appellant had "failed to accept" the offer, characterising the plea as indicating that the appellant still had the opportunity to accept the offer at a later stage. The appellant contended that as the offer of amends had been withdrawn (on 24 November 2014) prior to the time given by the respondent for acceptance of the renewed offer, the defence of offer of amends should have been struck out. In short, the premise of the argument was that the defence under s 18 depended on the offer remaining open until the first day of the trial.
There are three difficulties with the appellant's arguments.
The first is that the respondent's renewed offer was, as mentioned, expressly qualified to remain open only for the period stated, being until the first day of the trial, "unless withdrawn in writing". Here, the offer was withdrawn in writing on 24 November 2014. To speak in terms of a party being "entitled" to wait until the first day of the trial to accept the offer, as the appellant did, ignores the express terms of the offer.
Nor can the appellant obtain any assistance from the terms of the respondent's defence. Pleadings are required to state material facts, not inferences of law: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 14.7; Kirby v Sanderson Motors Pty Ltd (2001) 54 NSWLR 135; [2002] NSWCA 44. There is no material difference between a pleading that the appellant had "not accepted" the offer, and a pleading that the appellant had "failed to accept the offer".
The second difficulty flows from the concession properly made by the appellant in argument that, had there been some fixed time for acceptance of the renewed offer which expired, that is, an offer open for a limited period, a defence under s 18 would have been valid. Here, the time for acceptance expired upon the respondent giving notice in writing (as was its prerogative) withdrawing the offer on 24 November 2014.
Thirdly, the appellant's argument is contrary to authority. In Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175, the Queensland Court of Appeal considered s 18 of the Defamation Act 2005 (Qld), which is in the same terms as that here. Applegarth J considered (at [101]) the words "at any time" in s 18(1)(b), in respect of the publisher being ready and willing to carry out the terms of the offer on its acceptance by the aggrieved person, and observed: [t]here appears to be no reason why an offer to make amends may not be expressed to remain open for acceptance for a limited period. Section 18(1)(b) contains as an element of the defence that "at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer."
Making an offer of amends open for acceptance for a very short period may, in the circumstances of the particular case, prevent a defendant from establishing a s 18 defence - the offer may not have been reasonable in all the circumstances. Equally, withdrawal of an offer after an unreasonably short period may preclude a finding of reasonableness in all the circumstances.
The point remains, however, that an offer of amends may be left open for a fixed term of reasonable duration, including with the qualification of remaining open unless earlier withdrawn. Whether the timing of any early withdrawal of the offer precludes a finding of reasonableness is a question of fact to be determined in the circumstances of each case. It was not suggested here that it was unreasonable to withdraw an offer which had been open for acceptance for nearly eight months.
Ground 10 has not been made out.
Grounds 11, 12 and 13 are related. Ground 11 contended that "his Honour erred in finding that the appellant should have accepted the offer of amends before its withdrawal under circumstances where the appellant was not notified of the proposed withdrawal and believed the offer would have remained open until the date of trial." Ground 12 contended that "his Honour should have found that, although an offer of amends may be withdrawn and/or renewed, it cannot be amended." Ground 13 contended that "in view of the draconian nature of the offer of amends provisions his Honour erred in not construing Div 1 of the Defamation Act strictly".
The premise of these grounds seems to be that the respondents were not entitled to withdraw the offer of amends dated 27 March 2014 without first giving notice of their intention to do so to the appellant. A further premise seems to be that the scheme of Part 3 Div 1 of the Defamation Act only permits an offer of amends to be either withdrawn or renewed, and that what occurred here on 24 November 2014 is properly characterised as an "amendment".
There is no substance in these contentions. His Honour found that the respondent effectively withdrew the renewed offer dated 27 March 2014 by the respondents' legal counsel's letter of 24 November 2014. It is a mistake to characterise, as the appellant seeks to do, the withdrawal of the respondent's offer as an "amendment" of the offer. As already indicated, the right to withdraw the offer was expressly reserved by the respondent in the terms of its offer. Further and importantly, s 16(1) of the Defamation Act permits a party making an offer of amends to withdraw the offer before it is accepted by giving written notice to the aggrieved person as his Honour found occurred here.
No error has been demonstrated in his Honour's approach to s 18(1)(b) or his findings. Grounds 11, 12 and 13 should be rejected.

[19]

(d) The admissibility of the appellant's purported acceptance of the offer

Ground 5 contended that his Honour erred in admitting into evidence the letter sent by the appellant's solicitor on 25 May 2015, purporting to accept the offer of amends (which had already been withdrawn).
The appellant made two complaints. The first was that his Honour admitted the letter despite the appellant's protest at trial. The second was that the letter was not admissible because, since the offer had been withdrawn, the letter could not be relevant to any issue before the Court.
As to the first matter, it is necessary to briefly explain the circumstances in which the letter was tendered at trial. The respondent sought to cross-examine the appellant as to whether he had given his solicitors instructions on 25 May 2015 to accept the respondent's offer dated 27 March 2014. Counsel for the appellant objected to that line of cross-examination. In dealing with that objection, his Honour expressed the view that he could not see the possible relevance of acceptance of a withdrawn offer. Counsel for the respondent did not press cross-examination on this topic, acknowledging that the test of whether the offer of amends was reasonable was an objective test. In the circumstances, the appellant's objection to cross-examination was not ruled upon. Notwithstanding the acknowledgement by counsel for the respondent, counsel for the respondent later tendered a bundle of documents ("Exhibit 1"), which included the letter of 25 May 2015. Counsel for the appellant did not object to the tender of that letter in the bundle.
Later, however, in closing submissions, the appellant's counsel objected to the admissibility of the 25 May 2015 letter on the ground that it was a "without prejudice" communication. It was submitted that his Honour should not take any notice of the letter, having regard to s 131 of the Evidence Act 1995 (NSW) dealing with the admissibility of offers of settlement.
In circumstances where no objection had been taken by counsel for the appellant to the tender of the 25 May 2015 letter at the time it was tendered, the primary judge did not err in admitting this correspondence into evidence. The appellant is to be taken to be bound by the conduct of his counsel in not objecting: Smits and Another v Roach and Another (2006) 227 CLR 423; [2006] HCA 36 at [46].
However, that failure by the appellant to object should not have had any practical consequence; for the reasons given above, the 25 May 2015 letter was not relevant to the assessment of whether the offer of amends was reasonable. So much was acknowledged by counsel for the respondent at trial: when objection was taken by counsel for the appellant, he did not pursue cross-examination of the appellant on the letter and, as mentioned, acknowledged that the test of reasonableness of the offer of amends was an objective test.
Unfortunately, his Honour overlooked what was common ground when assessing the reasonableness of the offer of amends. That error has been addressed above. The letter's irrelevance to the reasonableness of the offer of amends renders it unnecessary to determine whether it was inadmissible on the 'privilege' ground.
One further matter should be mentioned. The respondent sought to rely on a new point on appeal in contending that the 25 May 2015 letter was otherwise relevant because the Court is entitled to take into account "any other matter that the Court considers relevant" when addressing the reasonableness of an offer of amends: s 18(2)(b)(ii) of the Defamation Act. The respondent contended that the extent to which the offer may subjectively address the hurt and harm to the appellant is a relevant factor in determining the objective reasonableness of the offer.
This argument was not raised at trial, either in the respondent's submissions or cross-examination of the appellant. Consequently, it should not be permitted on appeal, particularly where evidence might have been led to address that point: Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 at 71.

[22]

Relevant principles

To succeed in an action for defamation the plaintiff must not only prove that the defendant published the material complained of and that it is defamatory: the plaintiff must also identify himself or herself as the person defamed. That is, the plaintiff must prove that the material complained of was published "of and concerning the plaintiff": Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (Steele) at 371.
Identification can be proved in a number of ways. As stated in Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell) at [7.1], "[i]t is usually clear enough that the words are published of the claimant because he is named in the statement and the defendant intends to refer to him, but neither of these elements is necessary."
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?
See also Gatley on Libel and Slander at par [7.2].
In the case of a jury trial, the two-stage process of determining the question of identification was explained in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [18] (Macfarlan JA, Bathurst CJ and Beazley P agreeing) as follows: Whether identification has been established at trial is a question of fact, in the case of a jury trial, for the jury. Whether the evidence is capable of establishing it is a question of law (Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121). Thus it is a question of law for the judge "to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff": Universal Communication Network v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1; Aust Torts Reports 81-932 at [43] quoting Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245). Unless an affirmative answer can be given to the question of law, the case should not, in the case of a jury trial, be left to the jury: Steele at 364 - 5.
Applied and adapted to the present case involving a trial before a judge alone, the two stage process involved first the question of whether the material complained of is capable of referring to the plaintiff - this is a question of law for the judge to decide - and thereafter, the judge - in the absence of a jury, as the tribunal of fact - must decide whether the defendant has published defamatory matter about the plaintiff. The second question is one of fact. Here the respondent's notice of contention only challenges the factual finding at the second stage of the process - that the appellant was identified in the article.

[23]

The appellant's case at trial

The parties joined issue in the pleadings on whether the published statements were made "of and concerning the plaintiff": Steele at 371. UCPR r 15.19(d) requires that if the plaintiff is not named in the matter complained of, particulars of identification of the plaintiff together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known, are to be provided.
At trial, it seems that no such particulars were provided by the appellant. Nor was any complaint made by the respondent in relation to their absence. Consistently with the approach taken in the pleadings, the appellant's counsel opened the case on the question of identification on the basis that the appellant was identified in the article by name and that readers would believe from the article that the tailor, Tony Zoef, who is well-known in the Sutherland Shire had been charged with gun offences.
The appellant's "secondary" case relied on witnesses who gave evidence that they had read the article and they understood the words to refer to the appellant. Counsel to the appellant submitted that those witnesses were honest and could reasonably come to that conclusion because they would be entitled to think that the reference to 43 years of age was a mistake and they wouldn't be sure about the photograph. In this regard, the appellant relied on the evidence of Ms Zoef, Mr Beer and Mr Manu as support for the view that the article could reasonably be so understood. That is, that an ordinary reasonable reader (or ordinary sensible reader) could draw an inference that the article referred to the appellant: Universal Communication Network Inc t/as Newtang Dynasty v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1 (Universal Communication Network Inc) at [43] quoting Morgan v Odhams Press Ltd at 1245.
The evidence of those witnesses does not seem to have been relied upon by the appellant for the contention that there were persons who had knowledge of extrinsic facts that would prove the necessary identification: Morgan v Odhams Press Ltd at 1243-4 (Lord Reid); Steele at 374; Younan v Nationwide News Pty Ltd at [15] - [17].
The respondent argued at trial that the article was not about the appellant but was about another person, namely the appellant's son, and, consequently, the publication could not have been defamatory of the appellant.
Both at trial and in this Court, the respondent's submissions tended to conflate two aspects of the identification issue. One is whether the appellant was either expressly named or described in the article in such a way that the ordinary reasonable reader would know to whom it referred. The respondent's contention was that the appellant was not named in the article because other identifying information in the article pointed away from the appellant to a second person by the same name in the same district with the same trade. This was said to make unreasonable the conclusion that the appellant was named in the article and therefore the primary judge had erred in applying the statement in Cross v Denley that where a person is mentioned by name in an article, a plaintiff is not obliged to call evidence identifying himself as the person referred to in the publication (at 116).
The other matter is whether it was necessary for the appellant to establish that the article was published to at least one person who had knowledge of extrinsic facts that would provide the necessary identification: Morgan v Odhams Press Ltd at 1243-4 (Lord Reid); Steele at 374 (Samuels JA). This raised a false issue. Although Steele and Morgan v Odhams Press Ltd were referred to by the respondent at trial, as indicated above, the appellant's case on identification did not rely upon persons having knowledge of extrinsic facts that would provide the necessary identification.
The distinction between whether the ordinary reasonable reader would know to whom the article referred and whether it would be apparent only to persons who had knowledge of special circumstances that the publication referred to the plaintiff is well-recognized: Steele at 374.
In World Hosts, Mason and Jacobs JJ said (at 639) that "when the publication was ex facie defamatory and referred by name to the plaintiff it was necessary to prove only that it was published by the defendant, without proving that the persons to whom it was published had any knowledge of the plaintiff". Their Honours contrasted the situation where the publication was not ex facie defamatory or did not refer to the plaintiff by name, and referred to the well-known statement by Jordan CJ in Consolidated Trust Co Ltd v Browne at 89: 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.
Mason and Jacobs JJ observed (at 640) that Jordan CJ's statement of the law was followed and applied in Cross v Denley and Kruse v Lindner (1978) 45 FLR 412 (Kruse v Lindner).
In Cross v Denley, the matter complained of was a pamphlet published by the defendant which carried the imprint of "Express Print Auburn". The plaintiff carried on a printing business in a nearby suburb with the registered imprint "X-press Printery, Auburn". The pamphlet did not refer to the plaintiff by name or describe him in such a way that the ordinary reasonable reader would know to whom it referred. Owen J (Street CJ and Herron J agreeing) said at 116: Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred - as for example where without mentioning names the statement is defamatory of a person who is described as the holder of a particular office - and it is a matter of general notoriety who the holder of that office is - evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary. But where, as here, the plaintiff could only be identified by that small percentage of the community which happened to know that he was a printer using the imprint 'X-press Printery', it must be shown that some one or more of those to whom the pamphlet was published had that special knowledge.
In Cross v Denley, the plaintiff failed because there was no evidence that any member of the audience who read the pamphlet connected "Express Print, Auburn" with the plaintiff.
In Kruse v Lindner, the respondent caused an advertisement to be published in a newspaper warning the public to shop around before buying at a business "Polymedia Car Stereo" at a specified address at Fyschwick. The appellant was the sole proprietor and also the registered proprietor of a business carried on at the specified address under the business name of "Polymedia Car Stereo". The nature of the business involved retail sale of car radios and associated equipment. The appellant's case on identification was conducted on the basis that the reference in the advertisement to "Polymedia Car Stereo" was to be treated for all material purposes as a reference to the appellant himself once it was proved that the appellant was the proprietor or registered proprietor of that business.
The trial judge dismissed the claim on the ground that the advertisement did not expressly refer to the plaintiff, and the evidence did not establish that any person understood it to refer to him. That decision was upheld on appeal by the Federal Court (Smithers, Nimmo and Connor JJ) applying the principle stated in Consolidated Trust Co Ltd v Browne at 89. Smithers J said (at 414): It is of the essence of the tort of defamation that the person defamed be able to show that his reputation has suffered by reason of the publication complained of. Unless the publication points to some person as the person against whose reputation the aspersion in the publication is made with such particularity that a reader without additional knowledge, or with additional knowledge, can and does identify some particular person as the person whose reputation is the subject of the aspersion, then nobody is defamed.
Here, the appellant's case was advanced on both bases: that the article identified him by name and that an ordinary reasonable reader without additional knowledge would identify the appellant, Tony Zoef, a tailor who carried on business in the Sutherland Shire district, as the person to whom the article referred. As indicated, his Honour accepted both of these arguments.

[26]

Decision

It was common ground that where a publication expressly includes a name, each person of that name may sue, regardless of the intention of the publisher to publish a matter of and concerning a particular person, where, in its context, the words are reasonably understood to refer to each such person: Lee v Wilson & McKinnon (1934) 51 CLR 276; [1934] HCA 60. Undoubtedly, the context in which a person is named in a publication is important in determining the reasonableness of the identification of the plaintiff.
Here, the respondent relied upon the inclusion of additional identifying information in the publication for the contention that such information rendered untenable a conclusion that the matter complained of would reasonably be understood to refer to the appellant.
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).
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 article in this case contained a prominent and sensational headline, which, when read together with the first paragraph (par 29), would be reasonably understood to refer to the appellant. The strength of the general impression thereby created surpasses and dominates that of the subsequent reference in par 30 to a "43 year old" which is not something the ordinary reasonable reader might be expected to have focused on, let alone re-read or reviewed. It lacked the prominence of the sensational headline and the focus on the local, relatable indicia of the identified person's name, profession and locality in the foregoing paragraph.
In respect of the photograph, his Honour's finding that it was "immaterial" is supported by three considerations. One is that the photograph was small, cropped, and, as his Honour found, "less than distinct". Next, the appellant gave unchallenged evidence in cross-examination that his son was not known to his customers. No identification would therefore have been made on a visual basis by the appellant's customers. Finally, the use of historical photographs in newspaper articles is not so uncommon as to render unreasonable a conclusion by the ordinary reasonable reader that the article (with an unfamiliar photo) referred yet to the appellant.
Whilst the ordinary reasonable reader must be taken to be aware of the possibility in any district there may be more than one person of the same name (Newstead v London Express Newspaper Limited [1940] 1 KB 377 (Newstead) at 397), I am not persuaded that in the circumstances of the present case, the ordinary reasonable reader must be taken to be aware that there was a probability of two people in the same district with the same (distinctive) name carrying on the same trade as a tailor.
Newstead involved a newspaper's publication of an account of a trial for bigamy and referred to the prisoner as "Harold Newstead, 30-year-old Camberwell man". The account was true as regards a Camberwell barman of that name, but not true in relation to the plaintiff, Harold Newstead who was aged about 30 and who assisted his father in a hair-dressing business at Camberwell Road, Camberwell. The plaintiff brought an action for libel against the newspaper. The jury were unable to agree on the first question: "would reasonable persons understand the words complained of to refer to the plaintiff?" and assessed the plaintiff's damages at one farthing.
The trial judge held that it was no defence to the action that the words complained of were intended to refer to, and were true of, an existing person who was not the plaintiff. No judgment was entered because the jury had not answered the question of whether a reasonable person would understand the words to refer to the plaintiff. That decision was affirmed by the English Court of Appeal, which similarly rejected the defence put by the newspaper. In doing so, du Parcq LJ (Sir Wilfred Greene MR agreeing) observed (at 396-397): In the present case, and in any similar case in which a defendant says that he was only speaking the truth of another person and not meaning to attack the plaintiff, it may well be right to direct the jury that a reasonable man must be aware of the possibility (it is for them to say in each case whether it amounts to a probability) that in any district there may be more than one person of the same name, and that, in considering how a reasonable man would understand the words, they must assume that he will read them with such care as may fairly be expected of him, not ignoring any parts of the description which are inapplicable to the plaintiff. If a defendant has been careful and precise, he may by his care avoid the risk of a successful action; but he cannot in my opinion escape liability merely by showing that he was careful and that his intentions were good. [Emphasis added]
In the present case, the evidence established that the appellant had carried on business as a tailor under his own name in the Sutherland Shire district since the 1970s and had advertised his business premises on the main arterial road with a "Tony's Tailoring Service" sign outside his Sylvania home for over 30 years; by distributing about one million brochures (referring to "Tony's Tailoring Alterations" with his Sylvania home address and phone number); and by advertising his business on radio 2UE for three months.
The respondent's contention that the ordinary reasonable reader would conclude that there are two people in the same district with the same (distinctive) name and the same trade, and that the article referred to the other person known as Tony Zoef is highly improbable.
There was no error in his Honour's reliance upon the statement in Cross v Denley that the appellant in this case did not need to call any witnesses to say that they identified the appellant in the article. There is further authority to the same effect: Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81-675; [2002] NSWCA 202 at [54] (Mason P, Handley JA and Ipp JA agreeing); and Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 (at 10) (Blackburn J) referring to principles in Steele; Morgan v Odhams Press Ltd; and Hough v London Express Newspaper Ltd [1940] 2 KB 507.
Contrary to the respondent's submissions, this is not a case where the appellant was not named in the matter complained of and accordingly, in order to succeed, the appellant needed to prove that there were persons possessing particular knowledge of the plaintiff, who had read the article, and reasonably concluded that it referred to the appellant: Steele at 374.
Furthermore, the present case is not like Cross v Denley where the pamphlet published by the defendant did not refer to the plaintiff by name or describe him in such a way that "the man in the street reading or hearing it would know to whom it referred". Nor is it like Kruse v Lindner where the advertisement only referred to a business name and address without designating the plaintiff as proprietor of that business.
In my view, the challenge to his Honour's finding that the appellant was identified in the article by his name, profession and locality, has not been made out.

[27]

Evidence of witnesses

Insofar as his Honour found that his conclusion on identification was supported by the evidence of the three witnesses (Ms Zoef, Mr Beer and Mr Manu), such evidence was not essential. Whilst it was admissible on the question of identification, his Honour's conclusion did not rest on it. In light of the conclusions above, it is not strictly necessary to address his Honour's reliance upon this evidence. However, as the matter has been argued, I will briefly indicate my views.
First, contrary to the respondent's submissions, the evidence of Mr Manu supported his Honour's finding that the ordinary reader would reasonably conclude that the article referred to the appellant. Mr Manu had known the appellant for at least 50 years. On reading the article he said he was surprised to learn that the appellant, "a tailor man, was in the paper with the article saying he's a tailor by day and something else by night". The respondent did not challenge Mr Manu's credit. Rather, the respondent submitted that Mr Manu's evidence, while honest, was not reasonable. I do not agree.
The conclusion drawn by Mr Manu was based on general impressions. It was not unreasonable for Mr Manu to be specifically influenced by and give weight to the headline: World Hosts at 646 (Aickin J); Chakravarti v Advertiser Newspapers Ltd at [134(4)] (Kirby J). Nor was it unreasonable for Mr Manu to focus on the reference in the opening paragraph to "a tailor".
The principal message conveyed by the headline and the opening paragraph was that Tony Zoef, the friendly tailor from the Sutherland district was also a gunrunner. That Mr Manu did not take equal notice of the reference to a 43-year old man is unexceptional. As mentioned, the ordinary reasonable reader of a newspaper article, particularly of a sensational variety such as the respondent's newspaper, is not expected to read with cautious and critical analytical care.
Secondly, whilst Mr Beer acknowledged in his evidence that the reference to "43 years" confused him, he rejected the cross-examiner's proposition that he simply did not know what to believe. He attributed the reference to the age of the subject of the article to a mistake by the newspaper. That was not an unreasonable view. The ordinary reasonable reader must be taken to understand that newspaper articles "are often inaccurate in details as is inevitable when stories have to be written at speed": Morgan v Odhams Press Ltd at 1254. Mr Beer did not think anything otherwise in the article referred to anyone other than the appellant.
There was no error in his Honour's finding that the evidence of Mr Manu and Mr Beer supported his conclusion on identification.
Thirdly, Ms Zoef's evidence fell in a different category; her direct familial relationship with the appellant (her father) and his son (her brother) gave her special knowledge. That Ms Zoef eventually understood that the article was about her brother is inconsequential: the ordinary reasonable reader is not to be taken to have her special knowledge.
Grounds 2 and 3 of the notice of contention have not been established.