Bruce v Odhams Press Ltd [1936] 1 KB 697, 708 (Slesser LJ):
“In such a case as the present, the plaintiff, not being actually named in the libel, will have to prove an innuendo identifying her in the minds of some people reasonably reading the libel with the person defamed, for there is no cause of action unless the plaintiff can prove a publication of and concerning her of the libellous matter: see per A. L. Smith M.R., in Sadgrove v. Hole [1901] 2 K.B. 1, 4.”
Cross v Denley (1952) 52 SR (NSW) 112, 116 (Owen J):
“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 with out 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.”
Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1242 (Lord Reid):
“The next protection for the defendant is that at the end of the plaintiff's case the judge may be called upon to rule whether the words complained of are capable of referring to the plaintiff in light of the special facts or knowledge proved in evidence.”
1246 (Lord Reid):
“What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who knew the special facts proved to infer that this article referred to the appellant.”
1252 (Lord Morris of Borth-y-Gest):
“The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circ*mstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury.”
1255 (Lord Morris of Borth-y-Gest):
“The other respect in which it is suggested that there was misdirection is that there was an omission to remind the jury that only a limited number of people would know the circ*mstances which brought it about that the article referred to the plaintiff. In my view, this suggestion is devoid of substance. The trial occupied some parts of eight successive days. It must have been clear to every juror from an early moment in the case and then throughout the case that identification of the plaintiff would not be made by every reader of “The Sun” but by those only who knew certain special circ*mstances affecting the plaintiff.”
1263 (Lord Donovan):
“As regards the merits of the case, the appellant's difficulty is, of course, that he is not named or indicated in the article. He must therefore show that, despite this, there are people who could reasonably interpret the article as referring to him in a defamatory way, because of special knowledge which they possessed.”
1271 (Lord Pearson):
“Reasonable readers having the knowledge of the circ*mstances and identifying the plaintiff as the person defamed would probably not feel very sure of their identification nor very sure of the reliability of the defamatory statements or inferences.”
Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69, 80 (Barwick C.J., Mason J. agreeing at 91):
“…where the defamatory words do not identify the plaintiff as their object, extrinsic facts may be used to make that identification. Again, where the plaintiff desires to claim a meaning for the words which of their nature they do not obviously bear, he may rely on facts extrinsic to the publication to show the meaning the words bear in the circ*mstances.”
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 351 (Moffitt P.):
“It is now well established that defamatory matter, which does not name the plaintiff, is actionable if there are special facts known to readers which properly lead them to infer that the defamatory matter refers to the plaintiff, even where the publisher is neither aware of the existence of the plaintiff nor of the special facts and does not intend to refer to the plaintiff. This view of the law, which has been open to some criticism and gives rise to considerable difficulty in some cases, is subject to some control of the judge, which control gives some protection to a defendant, as Lord Reid said in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239. at p. 1242; [1971] 2 All E.R. 1156, at p. 1160.”
362 (Hutley JA):
“The designation of a person not explicitly named as the person defamed is the laying of an innuendo: Le Fanu v. Malcolmson (1848) 1 H.L.C. 637; 9 E.R. 910.”
372 (Samuels J.A.):
“I say this because in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1239; [1971] 2 All E.R. 1156 the House of Lords dealt in detail with the principles of law which are applicable to the present problem. To those principles I must pay the closest attention. But I do not find the same assistance in a close comparison of the facts in that case with the facts of this. The majority in Morgan's case expressed in somewhat disparate terms the principles which I must apply. I start by quoting what was said by Lord Morris [1971] 1 W.L.R. 1239, at p. 1252; [1971] 2 All E.R. 1156, at p. 1168, which seems to me to represent the substance of the majority view: “The question for the judge at the end of the plaintiff's case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circ*mstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plain-tiff, then there would be nothing to be left to the jury”.”
Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 13:
“Just as an innuendo must be based upon an existing extrinsic fact (Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 328-9), so must a plaintiff in every case prove also the existence of the extrinsic fact upon which he relies for his identification and that the matter complained of was published to someone with knowledge of that existing fact: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242, 1246, 1255, 1263, 1271; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 347 at 351, 372.”
Paschalidis v Yellow Corporation [2005] SASC 151, (Gray J):
“[34] If the plaintiff is not directly named, the connection between the plaintiff and the defamatory matter may be proved by the extrinsic facts. … [35] Where a reader, with particular knowledge of matters that may lead the reader to understand the statement, identifies a person, the person defamed is identified by innuendo. The specific question to ask is: would ordinary reasonable persons invested with the requisite special knowledge understand the defamatory statement to refer to the plaintiff?”
Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [139] (Gleeson JA, Ward JA agreeing at [1], Payne JA agreeing at [184]):
“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 circ*mstances that the publication referred to the plaintiff is well-recognized: Steele at 374.”
Abbott v TCN Channel Nine Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 October 1987) BC8701093 at 14-6:
“In some circ*mstances, a plaintiff may rely for the extrinsic fact identifying him in the matter complained of upon a statement of fact (rather than upon the fact stated itself). … There are three situations in which such a statement may properly be made the basis for the plaintiff's identification. In each situation, the plaintiff must establish in evidence the existence of the statement that he was to appear (or that he had appeared) for the accused - even though the fact stated was itself erroneous. … The second situation is where the defendant himself has published the statement that the plaintiff was to appear or had appeared for the accused. It matters not whether such a statement was published before or after the publication of the matter complained of. If it was before, the situation is the same as that which I have already discussed. Subsequent statements published by the defendant were held to be admissible in Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) 180 at 184-185 and in Hayward v Thompson [1982] QB 47 at 60, 67-68. In such a case, the plaintiff relies upon the existence of that statement (even though the fact stated is erroneous) as material from which the ordinary reasonable reader with knowledge of its existence could conclude that it was to the plaintiff to whom the defendant intended to refer (whatever may have been the defendant's actual intention): see Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 at 89-91. Nor does it matter that the fact stated was itself erroneous. (I do not propose to complicate this discussion by any reference to the defendant's actual intention to refer to the plaintiff. It is to be hoped that the anomaly imposed upon the law by the decision of the Privy Council in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734 will prove to be a temporary aberration only: see Baltinos v Foreign Language Publications Pty Ltd at 89-96.)”
Hayward v Thompson [1982] QB 47, 67-8 (Sir George Baker):
“In the present case there was nothing innocent about the publication of April 9. … It seems to me to have been a kind of crossword puzzle or colloquially a “Who dunnit” on page 1, with an invitation to solve the identity from the clue “a wealthy benefactor of the Liberal party.” Why else was it written? Mr. House said that the wealthy benefactor and businessman had not been identified by his informant in any way. He was not cross-examined about this. But it is obvious that Mr. House and every crime reporter and indeed every reporter worth his salt who had read or heard of the article of April 9 would be trying to identify this generous benefactor and get a story from him. This is exactly what happened to cause Mr. Hayward to use the words “I think this started the holocaust.” So too every reader with a liking for puzzles was being invited to guess the identity, and to search 68his memory or elsewhere for the answer. … Then in his article on Sunday, April 16, Mr. House named the plaintiff, thus revealing the answer to his conundrum of the previous week. … The plaintiff's case was very simple, that he was and was understood to be the generous benefactor defamed on April 9 and named on April 16. He was a generous benefactor, having given £219,000 for the Liberal Party between May 8, 1970, and November 15, 1975. He was defamed in both articles, and in my judgment the judge was entirely justified in refusing to strike out the particulars on the ground that to do so would cause a grave injustice to the plaintiff.”
Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85, 89-6 (Hunt. J):
“There exists, however, a qualification to that principle, in that a plaintiff may rely upon such a subsequent publication by the defendant where the matter complained of is defamatory on its face and where the subsequent publication by the defendant is used only to identify the plaintiff as the person referred to: Hayward v Thompson [1982] QB 47 at 60, 67-68. The existence of that qualification in relation to subsequent publications by the defendant is justified upon two bases. The first is that such publications by the defendant tend to establish that the defendant had actually intended to refer to the plaintiff in the matter complained of; the second is that (whether the defendant had actually intended to or not) the subsequent publications lead the reader to infer from what was so published that the defendant had intended to refer to the plaintiff: Hayward v Thompson (at 60).
Even the existence of that qualification does not permit the plaintiff in the present action to rely upon his identification in the subsequent television programme, because the subsequent programme was not published by the defendant. The plaintiff argues, however, that — where, as here, the perceived intention of the defendant (which provides the second justification for that qualification) is to refer to a particular person or group of persons and to invite the reader to ascertain their identity by reference to a publication by someone else — it matters not whether that publication by someone else is prior to or subsequent to the defendant's own publication. That argument may fairly be described as an extension to the qualification already permitted by Hayward v Thompson. The defendant's attack upon the plaintiff's case is not limited to the proposed extension of that qualification. The defendant attacks the validity of the qualification itself, and both bases upon which it is said to be justified.
The first basis upon which the qualification is justified is that the subsequent publication by the defendant tends to establish that the defendant actually intended to refer to the plaintiff in the matter complained of. The relevance of the defendant's actual intention to refer to the plaintiff to the issue of identification is now supported by respectable authority, notwithstanding its apparent disregard of the fundamental principle that liability for defamation depends not upon the intention of the defamer but upon the fact of defamation: Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 at 354. That “respectable authority” is based wholly upon the following statement by Dixon J in Lee v Wilson (1934) 51 CLR 276 at 288-289:
“… If it be necessary to find which, of several equally described, was the person actually meant, the intention of the writer, not of the publisher, would appear to govern the answer. An actual intention, whether in writer or publisher, of referring to the plaintiff cannot be treated as irrelevant. Indeed, where the words are capable of relating to the plaintiff, but it is uncertain whether they actually do so, the fact that they are used with him in view appears to be decisive. The reason may be that if words are capable of being read as referring to the plaintiff, and are intended to be so read, it must be presumed in his favour that they actually were so read.”
The fundamental principle which that statement appears to disregard, as stated by Russell LJ in Cassidy v Daily Mirror Newspapers Ltd, was accepted (in the very terms stated by his Lordship) in Lee v Wilson by Dixon J (at 292) and, with some reservation, by Starke J (at 285). The other members of the High Court in that case (Evatt and McTiernan JJ) adopted the same principle; they held (at 297-298) that the test of identification was solely objective in character and that an actual intention to refer to the plaintiff was immaterial to the identification issue. Dixon J (at 289) and Evatt and McTiernan JJ (at 297) quoted with approval the following statement by Lord Loreburn LC in E Hulton & Co v Jones [1910] AC 20 at 23:
“… Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circ*mstances would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff.”
Starke J (at 284-285) and Dixon J (at 289) quoted with approval the statement by the Lord Chancellor on the following page:
“… Just as the defendant could not excuse himself from malice by proving that he wrote it with the most benevolent spirit, so he cannot shew that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did.”
The other three members of the House of Lords in E Hulton & Co v Jones concurred with the speech of the Lord Chancellor. Lords Atkinson and Gorell (at 25) also concurred “substantially” with the judgment of Farwell LJ in the Court of Appeal: Jones v E Hulton & Co [1909] 2 KB 444. His Lordship there had held (at 478) that:
“… The rule is well settled that the true intention of the writer of any document, whether it be contract, will or libel, is that which is apparent from the natural and ordinary interpretation of the written words; and this, when applied to the description of an individual, means the interpretation that would be reasonably put upon those words by persons who know the plaintiff and the circ*mstances.”
His Lordship went on to say (at 480):
“… the inquiry is not what did the defendant mean in his own breast, but what did the words mean having regard to the relevant surrounding circ*mstances.”
I pass over for the moment a number of other statements at 479-481 of the report. His Lordship concluded his judgment upon this subject with this statement (at 482):
“… If a man chooses to make statements of fact about persons whom he names, as in this case, I see no reason why he should not be liable to every one whom he injures who can convince a jury that he is reasonably intended by the words used.”
With all due respect to those who may have expressed a contrary conclusion, it seems to me to be clear beyond any argument that all of those statements — both by Farwell LJ and by Lord Loreburn LC — support the orthodox or fundamental principle that the only intention of the defendant which is relevant to the issue of identification is that which is perceived by the reader to have been his intention, gained only from what has been published by the defendant. The defendant's actual intention is irrelevant to that issue.
Those statements were, as I have said, so interpreted by Evatt and McTiernan JJ in Lee v Wilson. On the other hand, Starke J relied upon other statements by Farwell LJ (those which I have earlier passed over) to interpret his Lordship's view as making relevant to the issue of identification not only the perceived intention of the defendant but also his actual intention (at 284). I do not think that it is necessary to refer to all of those other statements; one will suffice. His Lordship said (at 479):“… It always was and is still open to (the defendant) to prove the surrounding circ*mstances, so as to shew that, although the words appear to refer to the plaintiff, that is not their true intent and meaning.”
However, that statement, and the others to which Starke J referred, must surely be interpreted in accordance with the definition of the “true intention of the writer” which his Lordship gave (at 478) and which I have earlier quoted — namely, “that which is apparent from the natural and ordinary interpretation of the written words”. Starke J went on to say (also at 284) that it did not appear to him that the House of Lords had denied that an actual intention was still necessary in defamation actions. The remaining member of the Court, Dixon J, emphasised (at 287) that it is the publication of the libel, not its composition, which is the actionable wrong. His Honour (at 294) expressed great difficulty in understanding the full meaning of the judgment of Farwell LJ at 480-482 of the report. His Honour recognised (at 293) that his Lordship had insisted that nothing but the meaning conveyed by the text is to be considered in relation to this issue. Dixon J nevertheless stated (at 288-289) — apparently upon the basis of what had been held in E Hulton & Co v Jones — that the defendant's actual intention to refer to the plaintiff was not only relevant to the identification issue, it was also decisive of that issue. (The passage is quoted earlier in this judgment.)
In the end, however, both Starke and Dixon JJ decided the appeal in Lee v Wilson (at 286, 295) on the basis that the defendant was liable only because the reader could reasonably have perceived from what was published that the defendant had intended to refer to the plaintiff. (The defendant's case had been that he had actually intended to refer to a third person with the same name.) The statements by Starke and Dixon JJ that the defendant's actual intention was relevant to the identification issue were therefore obiter. With unfeigned respect to their Honours, it is difficult to see how those statements could have been based upon what had been said in E Hulton & Co v Jones. An actual intention to refer to the plaintiff was clearly held to be unnecessary in that case. Its relevance to the issue of identification could only be upheld by a misinterpretation of what had been said by Farwell LJ and despite what had been said by Lord Loreburn — as Evatt and McTiernan JJ correctly held.
The obiter statement by Dixon J that an actual intention to refer to the plaintiff was not only relevant to the identification issue but decisive of that issue was accepted as correct and applied by Priestley JA in David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 362, when upholding the admissibility upon this issue of an interrogatory and the answer thereto whereby the defendant had admitted an intention to refer to the plaintiff. His Honour recognised the anomaly in what had been said by Dixon J, but did not refer either to its obiter character or to the contrary views of Evatt and McTiernan JJ. His Honour's reasoning was adopted without further dis-cussion and his ruling was upheld on appeal by the Privy Council: Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 734; [1986] AC 350 at 364. It is the decision of the Privy Council in that case which constitutes the “respectable authority” now supporting the relevance of the defendant's actual intention to the issue of identification.
The basis upon which such an interrogatory directed to the defendant's actual intention is usually permitted and upon which its answer had usually been admitted into evidence previously was its relevance to the issue of actual malice rather than the issue of identification: Norton v Hoare (No 2) (1913) 17 CLR 348 at 352. The defendant had argued in the High Court in that case (at 351) that his intention to refer to the plaintiff was immaterial to the issue of identification. In Spiers & Pond Ltd v “John Bull” Ltd (1916) 85 LJKB 992 at 995-996, the English Court of Appeal allowed an interrogatory as to the defendant's intention to refer to the plaintiff, but made it clear (based upon E Hulton & Co v Jones) that the question raised by the issue of identification was not whether the defendant had actually intended to refer to the plaintiff but rather whether other persons would perceive the defendant to have done so. The right to interrogate upon this matter is discussed in Erwin v Southdown Press [1976] VR 353 at 360-361, and the conclusion is expressed that the answer is admissible upon the issue of damages (that is, malice): see also Gattelari v Lar Val Holdings Pty Ltd (Lee J, 17 April 1974, unreported). Norton v Hoare (No 2) was not cited to either the Court of Appeal or the Privy Council in Lloyd's case nor to the High Court in Lee v Wilson (although Spiers & Pond Ltd v “John Bull” Ltd was referred to during argument in Lee v Wilson).
The relevance of the defendant's actual intention to the issue of identification has generally been viewed against a factual background in which the defendant did not in fact intend to refer to the plaintiff but where he has used words from which such an intention could be inferred or perceived. That was expressly the case in both E Hulton & Co v Jones and Lee v Wilson. It would also appear to have been the case in Cassidy v Daily Mirror Newspapers Ltd and the progeny of that decision: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581; Newstead v London Express Newspaper Ltd [1940] 1 KB 377 and Hough v London Express Newspaper Ltd [1940] 2 KB 507. In every case, it has been held that the absence of an actual intention to refer to the plaintiff is not relevant to the issue of identification. In other cases, the defendant's actual intention has been unknown. Morgan v Odhams Press Ltd is a good example of that category. In that case (at 1242; 1252; 1261; 1267; 1160; 1168; 1177; 1182), and in all of the other cases in that category, it has been held that the defendant's actual intention is not relevant to that issue. Apart from the obiter dicta of Starke and Dixon JJ in Lee v Wilson, it had never previously been expressly stated that the presence of such an actual intention is relevant to that issue.
Lloyd v David Syme & Co Ltd appears to have been the first case in which the defendant did intend to refer to the plaintiff where the relevance of the defendant's actual intention to the issue of identification has been considered. Their Lordships were not assisted in that consideration by the reference to any authority, according to the report of the argument on this point (at 357). The inconsistency between the decision in Lloyd's case that such an intention is relevant to this issue and the decision in all the other cases that the absence of such an intention is not relevant appears not to have been noticed; it certainly was not explained.
A much earlier decision of the High Court should be mentioned at this stage. Godhard v James Inglis & Co Ltd (1904) 2 CLR 78 was, of course, decided before that Court's acceptance of E Hulton & Co v Jones. Some observations made in the judgment of the Court (delivered by Griffith CJ) would therefore no longer reflect the law: see, particularly, the example given in the middle of 87 of the report. But the judgment was based to a very large extent upon the decision of the House of Lords in Le Fanu v Malcolmson (1848) 1 HLCas 637; 9 ER 910, which also played a significant part in the judgments of the Court of Appeal in Jones v E Hulton & Co, and for that reason the decision of the High Court remains a relevant one.
The defendant in Godhard v James Inglis & Co Ltd admitted that he had intended to criticise the way in which a particular company had carried on its business, but said that he had not known that the plaintiff was connected with that company or that he was one of the persons who carried on its business (at 85-86). The trial judge directed the jury that the plaintiff had to prove that the writer of the article had the plaintiff personally in his mind, and not merely as some unknown person who came within the category of persons which he had criticised (at 88). Counsel for the plaintiff unsuccessfully sought a direction that it was immaterial whether the defendant had intended to refer to the plaintiff or not if the matter complained of was understood by the persons reading it to refer to him (at 86). The jury found for the defendant. In the High Court, the report of the argument suggests that the plaintiff narrowed that submission; his argument is reported as asserting that it was immaterial that the plaintiff had not intended to refer to the plaintiff personally (at 81). He is also reported as having argued that the intention of the defendant must be gathered from what is published and as having added that every person is presumed to intend the natural consequences of his acts (at 82). To that last submission I will return shortly. In the judgment, the plaintiff is said to have put the same submission as was put at the trial — that the defendant's intention (that is, one way or the other) was immaterial provided that the matter complained of was understood to refer to the plaintiff (at 87). It was held (at 92) that it was sufficient for the plaintiff to prove that the reader identified the plaintiff from the words used and that the defendant's ignorance of the precise person to whom his words applied was irrelevant. The judgment added (also at 92) that, in any event, the defendant in that case had intended to attack those who carried on the business of the particular company.
Godhard v James Inglis & Co Ltd perhaps does not fall easily within any category. Although it was a case in which the defendant intended to refer to a group of persons which (unknown to him) included the plaintiff, the basis upon which the appeal was decided was the purely objective test, as stated in these words (at 92):
“… It seems to us, therefore, in the present case, to be quite immaterial that no person is mentioned by name, since, if the person who has been defamed can be identified by the words used, in such a manner that nobody can have any doubt in fact that he is meant, an action will lie.”
That statement followed the proposition stated earlier on the same page:
“… the fact that the defendant does not know who is the person to whom his designation applies, can make no difference. A man who makes an attack upon an individual by a description which applies distinctly to that individual, is not entitled to excuse himself by saying: ‘I did not know that he was the man.’”
Those statements would clearly enough put the case into the E Hulton & Co v Jones category. It is the reference to the defendant's actual intention which is thereafter added (at 92) which creates the difficulty. It was not, it seems to me, intended by the High Court that that addition was to form part of the ratio of its decision, for an actual intention on the part of the defendant to refer to the plaintiff had already been held to be unnecessary, and it had been no part of the plaintiff's argument that such an intention would be sufficient to establish his case. Godhard v James Inglis & Co Ltd was cited to the High Court during the argument in Lee v Wilson, but it is not referred to in the judgments.
Before leaving that case, it is as well that I deal with the submission made by the plaintiff to the High Court (but not referred to in the judgment of the Court) that every person is presumed to intend the natural consequences of his act. The introduction of that maxim has been said to be seldom helpful and always dangerous: Stapleton v The Queen (1952) 86 CLR 358 at 365. The maxim itself has been described as a highly dangerous one: Baily v Baily (1952) 86 CLR 424 at 427; and disapproval of it has been expressed by the High Court on many occasions: see Smyth v The Queen (1957) 98 CLR 163 at 166-167; Thomas v The Queen (1960) 102 CLR 584 at 596-597.
If proof of the defendant's actual intention to refer to the plaintiff were necessary in relation to the issue of identification (which everyone agrees it is not), rather than merely relevant to that issue (which the Privy Council has now held it to be), such an intention could be proved by reference to what had been written, but there is no presumption in favour of the plaintiff that the defendant did in fact intend what was perceived to be his intention from what he published; the onus would remain upon the plaintiff to establish the defendant's actual intention upon a review of the whole of the evidence: R v Steane [1947] KB 997 at 1004. The whole of the evidence may well include the defendant's denial that such was his intention. What was published, however, will alone remain sufficient to establish an identification of the plaintiff if such an intention is perceived from it by the ordinary reasonable reader, notwithstanding the absence of any actual intention on the part of the defendant to refer to the plaintiff.
This only goes to show the disregard of logical, fundamental principle which is involved in what the Privy Council has now held. What would happen, for example, where a newspaper is sued for reporting a statement made in circ*mstances such as would make its author responsible for its republication in the press (as at a press conference: cf Sims v Wran [1984] 1 NSWLR 317 at 320)? If Lloyd v David Syme & Co Ltd is to be applied, the author's intention to refer to the plaintiff would be relevant to the issue of identification, but the absence of such an intention on the part of the reporter would not. How can that logically be correct?
There are practical problems, too. If it is a question of the defendant's actual intention, and if the defendant is a corporation, the relevant intention can only be that had by those persons who were responsible for the original publication by the defendant, whether those persons directed or authorised that publication or, having a discretion in the matter performed some part in its composition. The authorities for that proposition are collected and discussed in Palmer v John Fairfax & Sons Ltd (1986) 5 NSWLR 727 at 733. A subsequent publication by the corporate defendant could be no evidence of their state of mind unless it were shown by the plaintiff that they too were responsible for the subsequent publication. Yet this has never been required of a plaintiff, and that fact can only be explained upon the basis that the subsequent publication by the defendant is not tendered as evidence of the defendant's actual intention to refer to the plaintiff.
Another practical problem would arise in relation to particulars. Where other publications by the defendant are relied upon by the plaintiff to establish the defendant's actual intention to refer to him, no particulars need be given of them as extrinsic facts, for they do not properly fall within the description of extrinsic facts at all. Their admissibility depends upon proof of a fact of which the ordinary reasonable reader must necessarily have been unaware (the defendant's actual intention) and not upon proof of facts outside the matter complained of itself which led the reader to perceive the defendant's intention from what was published: cf Morgan v Odhams Press Ltd at 1242; 1160; 1248; 1165; Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 at 80. The fact that no such distinction has ever been drawn can only be explained again upon the same basis.
Moreover, if an actual intention to refer to the plaintiff is relevant to the issue of identification — upon the basis that where such an intention exists it must be presumed to have had the effect intended (as Dixon J said) — why is the defendant's actual intention to convey particular imputations not relevant to the issue of the sense in which the matter complained of was understood by the ordinary reasonable reader? There can be no real distinction in principle, yet it certainly is not the law that the defendant's actual intention is relevant to that issue. Many of the older cases are collected in Spencer Bower, A Code of Actionable Defamation (1923) 2nd ed at 48-49; see also Rofe v Smith's Newspaper Ltd (1924) 25 SR (NSW) 4 at 17; 42 WN 3. Further cases are collected in Anderson v Mirror Newspapers Ltd (No 1) (1986) 6 NSWLR 99 at 108. The unanimity in the views expressed in all of those cases upon this issue of meaning supports the conclusion that both Dixon J and the Privy Council were wrong in holding that the defendant's actual intention to refer to the plaintiff is relevant to the issue of identification.
Subject only to certain exceptions (which do not apply here), a judge at first instance is bound to disregard a decision of the Privy Council where it is in conflict with a decision of the High Court: National Employers' Mutual General Association Ltd v Waind and Hill (No 2) [1978] 1 NSWLR 466 at 474-475. What then is the ultimate position in relation to the High Court? In Lee v Wilson, two members of the Court held that the defendant's actual intention is not relevant to the issue of identification, and two members of the Court held (obiter) that the defendant's actual intention to refer to the plaintiff is relevant to that issue. In Godhard v James Inglis & Co Ltd, the Court held that the absence of such an intention is not relevant to that issue. In Norton v Hoare (No 2), the Court held that the presence of such an intention is relevant to the issue of malice. Nowhere — other than in the joint judgment of two of the four members of the Court in Lee v Wilson — has that Court stated positively that the presence of such an intention is not relevant to the issue of identification, in the way in which (pace Starke and Dixon JJ in Lee v Wilson) the House of Lords has made a positive statement to that effect in E Hulton & Co v Jones.
Notwithstanding the serious and fundamental objection in principle to what was held by the Privy Council in Lloyd v David Syme & Co Ltd, I am therefore bound by that decision. In those circ*mstances, I must reject the defendant's attack concerning the first basis upon which the relevance of a subsequent publication by the defendant to the issue of identification is justified, despite that serious and fundamental objection in principle. It will certainly require an appellate court above me in the judicial hierarchy to disregard the decision of the Privy Council which supports that justification. The matter certainly needs consideration by an appellate court which is able to do so: cf Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd [1983] 2 NSWLR 268 at 315. The second basis upon which the relevance of a subsequent publication by the defendant to that issue is justified is that (whether the defendant had actually intended to or not) the subsequent publication leads the reader to infer from what was so published that the defendant had intended to refer to the plaintiff.”
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 34-6 (Hunt J):
“The matter complained of consisted of a segment of a public affairs programme “Willesee at Seven” telecast on 25 March 1981, by the defendant (the operator of ATN 7 Sydney) and, by arrangement with the defendant, by a number of other television stations throughout Australia. Mr Michael Willesee introduced the segment by stating that a Dominic Sergi was one of the six men who had been named by Woodward J in his Royal Commission Report as being responsible directly or indirectly for the murder of Donald Mackay (the well-known anti-drug campaigner) some four years earlier in Griffith. Mr Willesee pointed out that these men were still walking around the same town as the family of the victim. They had had no chance to clear their names. No charges had been laid and no coronial inquiry had been held. A reporter had been despatched to Griffith in an attempt to interview these men and the citizens of Griffith for their reactions to that situation. Her report was on film. She is seen in the film speaking to a number of citizens of Griffith, including relatives of some of the six men named by Woodward J. She was unsuccessful in obtaining interviews with any of the six men themselves. About half-way through the segment, the reporter is seen speaking to the plaintiff. She said to him: “We are looking for Dominic”, to which the plaintiff replied: “Yes, I Dominic.” The reporter asked: “Dominic Sergi?” to which the plaintiff replied: “Yes, what do you want?” In evidence, the plaintiff denied hearing the question in those terms (and thus that he intended to identify himself as Dominic Sergi), and for the purposes of the defendant's motion for judgment I must accept that the plaintiff did not intend to do so. It was, however, open to the jury to find that the viewer would reasonably have concluded from the plaintiff's affirmative answer that he was indeed acknowledging that he was Dominic Sergi. Again, for the purposes of the defendant's motion, I must assume (in the plaintiff's favour) that the viewer would have so concluded. The reporter then said: “You are the one that was in the Royal Commission.” The plaintiff's case was that this was an assertion by the reporter, and not a question. … the matter complained of remains capable of conveying to the viewer the assertion that the plaintiff was the Dominic Sergi mentioned in the Royal Commission Report. … Four witnesses gave evidence of having identified the plaintiff (whom they knew as Dominic Barbaro) as the man shown on the programme accepting the suggestion that he was the Dominic Sergi named in the Royal Commission Report. They consisted of the plaintiff's sister (Mrs Mary Sergi), a member of the Griffith Shire Council (Mr A Cantanzeriti), and two acquaintances of the plaintiff who lived in Sydney (Mr P Cantanzeriti and Mr G Talino). From the evidence which these witnesses and the plaintiff gave (which is detailed in that extempore judgment), it was open to the jury to infer that the plaintiff would also have been identified as that man by a number of persons within the Italian community in Sydney to whom he was known and who viewed the programme (which had been advertised in a Sydney afternoon newspaper as including a story on Griffith relating to Donald Mackay), and by friends and relatives of the plaintiff in Melbourne, Adelaide and Mildura who would also have viewed the programme in those cities. For the purposes of the defendant's motion, I must accept (in favour of the plaintiff) that he was in fact so identified.”
Dwek v Macmillan Publishers Ltd [2000] EMLR 284, 290-1 (May L.J., Sedley L.J. agreeing at 294, Judge L.J. agreeing at 295):
“The second of the cases from Australia is Barbaro v. Amalgamated Television Services (1985) 1 N.S.W.L.R. 30. The facts are summarised in the headnote as follows:
“A public affairs programme telecast by the defendant (but not produced by it) included film in which the plaintiff was shown. He was not referred to by his own name. By the plaintiff's answer to a question asked of him during the programme, the viewer would have understood that the plaintiff (whose name was Dominic Barbaro) was acknowledging that he was Dominic Sergei. It was asserted in the programme that Dominic Sergei was one of six men who had been named in a Royal Commission Report as being responsible for the murder of Donald Mackay (the well-known anti-drug campaigner). The plaintiff sued the defendant, alleging that the programme contained certain imputations based upon the conclusion that the programme was asserting that he was Dominic Sergei. Many of the viewers who would have identified the plaintiff would have known that he was not that person, and so could not reasonably have believed that those imputations were true.”
The first summary of what Hunt J. held in that case in the headnote is as follows: “The publication of the plaintiff's picture on television is not the same as the publication of his name in a newspaper. If the plaintiff is not named in the matter complained of, he is obliged to establish that persons saw the television programme who were able to identify him as the person shown in that programme.” It seems to me that there is a correct statement of what should be the law in this jurisdiction. It also seems to me that a claimant in appropriate circ*mstances would be entitled to establish what Hunt J. says is required to be established by a proper inference.”
Nixon v Slater & Gordon [2000] FCA 531 (Merkel J):
“[64] In Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Hutley JA (at 234) and Glass JA (at 248) acknowledged that it was well established that, where a plaintiff was not named in the publication in question, evidence could be given by the plaintiff, and others, that they identified the publication as referring to the plaintiffs and that other persons in spontaneous conversations with them had also identified the plaintiff as the person to whom the publication referred. See also Steele v Mirror Newspapers Ltd (1974) 2 NSWLR 348 at 369 and World Hosts Pty Ltd v Mirror Newspapers Ltd (1978) 1 NSWLR 189 at 207.
[65] In addition to the evidence of Mr Nixon and Dr Ellis as to the medical colleagues who identified them in the photograph, a number of affidavits were sworn by other medical practitioners to the effect that they instantly recognised the applicants in the photograph on the cover of the medical malpractice booklet. While a number of the practitioners had seen both applicants in full surgical dress, that was not the case with all witnesses. The general tenor of the evidence given by witnesses was that they thought that there must have been some association between the applicants and Slater & Gordon, most probably arising because there was some legal problem or something wrong with the minimally invasive surgery that the two surgeons had been conducting.
[66] Evidence was also given by a witness as to "the rumour mill which is very strong in the medical profession" (T40). Another witness said that the persons performing cardiac surgery in Melbourne were reasonably well known to medical practitioners and, amongst those surgeons, Mr Nixon had a unique posture and physique (T48).
[67] Mr Anthony Wilson, a cardiothoracic surgeon, is the director of the cardiothoracic unit at St Vincent's Hospital. He said that the brochure had been shown to him by one of the doctors present at St Vincent's Private Hospital. He indicated that it had aroused a lot of interest at the hospital. Mr Wilson's immediate concern was that the new operation being conducted by Mr Nixon had caused some kind of legal problem. Any such problem was a matter of particular concern to him because of his directorship of the cardiothoracic unit of both the St Vincent's Public Hospital and at the St Vincent's Private Hospital, where the original operation had been performed. Mr Wilson said that about five or six people had spoken to him about the cover of the booklet on the basis that there was a general feeling expressed that the two doctors had done "something wrong" (T55). He said concern was expressed not only by people who knew the applicants but by others who had recognised them from the photographs featured in the two newspapers.
[68] An anaesthetist, who formed part of Mr Nixon's team, also expressed concern at the harm which he thought had resulted from the use of Mr Nixon's photograph on the cover of the booklet and said that, as a consequence, he took steps to ensure that his practice was not as reliant upon Mr Nixon (T41).
[69] It is plain from the evidence that a significant number of medical practitioners have identified the applicants as the surgeons appearing on the cover of the medical malpractice booklet. Furthermore, the evidence also establishes that their appearance on the cover was also the subject of comment in the "rumour mill" among medical practitioners who knew them or knew of them: cf Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798 at 800 per Tadgell JA. While it is no answer to the defamation claim for Slater & Gordon to contend that the applicants were only recognised by close colleagues and friends, the evidence suggests that a wider range of persons have identified the applicants as the surgeons in the photograph. Accordingly, I am satisfied that the defamatory imputation clearly related to the applicants.”
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, 234 (Hutley JA):
“The plaintiffs called a number of persons to establish that, though not named in the article, the plaintiffs were identified with it by readers; and four of them, Messrs William Arthur, Norman Kingswell Day, John Davidson and Professor Johnson, gave evidence not only that they personally identified the plaintiffs as the persons reflected on in the article, but that other persons had spontaneously identified them in the course of conversation. It was submitted that, in so far as they were allowed to give evidence about their conversation with others, the evidence was inadmissible as hearsay. John Andrews himself also gave evidence of conversation with persons at Palm Beach and Eugowra relating to himself and his professional pursuits. This evidence was admitted on the authority of the decisions of this Court in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 369 and World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 at 207, and the Court declined to permit the authority of these decisions to be challenged before it. It was further submitted that though, on the authority of these decisions, this evidence was admissible to prove the range of publication, it was not admissible on the question of damages. His Honour had drawn no such distinction in his directions to the jury, and it was said he was in error in not having done so. I am of the opinion there is no substance in the distinction proposed to be drawn. If the evidence is properly admissible on the question of range of identification of the plaintiffs as the persons defamed, it is impossible to segregate the question of what is the appropriate measure of damages, so that the range of defamation is determined differently from the way in which compensation for the damage done by this defamation is fixed. Once the evidence was admitted, it was admitted for all purposes: Walker v Walker (1937) 57 CLR 630. In my opinion, there is no substance in the distinction, and this ground of appeal should be rejected.”
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 369-70 (Hutley J.A.):
“A number of grounds of appeal were argued, based on the admission of evidence as to the talk concerning Mrs. Steele in the town of Parkes. His Honour admitted evidence, presumably on the basis that the dictum of Wallace P. in Ware v. Associated Newspapers Ltd. (1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181 was to be preferred to the contrary dictum of Walsh J.A. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181). … Wallace P. referred to a number of cases of which Jozwiak v. Sadek [1954] 1 W.L.R. 275; [1954] 1 All E.R. 3 is the clearest in support for this exception. … It would appear, therefore, that the balance of authority and of learned writing would support the view expressed by Wallace P. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181) and that this evidence should be admitted, probably as a recognized exception to the hearsay rule. … I am therefore of the opinion that the dictum of Wallace P. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 181) is to be preferred to the dictum of Walsh J.A. ((1969) 90 W.N. (Pt. 1) (N.S.W.) 180, at p. 185). If the long-standing exception to the hearsay rule is to be done away with, this can only be done in a final court of appeal.”
World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189, 207 (Hutley J.A., Glass J.A. agreeing at 212):
“Over objection by the defendant, witnesses for the plaintiff gave evidence of statements made to them by persons who were not called to give evidence about what such persons believed had happened to the restaurant in consequence of the publication of the article. For example, Miss Henderson, who was at the time of publication a receptionist-cashier at the Sebel Town House, said that, while she was there, “people who knew I had worked at Caprice said: ‘I see your old restaurant has gone broke.’” Somewhat similar evidence was given, over objection, by other witnesses. The reception of this kind of evidence is, in my opinion, justified on the authority of the majority of the Court in Steele v. Mirror Newspapers Ltd. [1974] 2 N.S.W.L.R. 348 at 369 which, in my opinion, should not be reviewed in this Court. His Honour was justified in allowing this evidence and its reception does not justify an order for a new trial.”
Raul Amon International Pty Ltd v Telstra Corp Ltd [1998] 4 VR 798, 799-801 (Tadgell J.A.):
“In order to succeed the appellant needed to satisfy the tribunal of fact that the Yellow Pages entry, being defamatory: ... (b) that such a person reasonably understood the entry to refer to the appellant. ... In order to satisfy the requirement set out in para. (b) above the appellant relied on evidence of himself and others that he was very well-known in the ethnic community in which he moved and that he was also very well-known to be the guiding spirit behind the business conducted by the appellant company. Again, however, the judge was entitled to disregard the appellant's evidence in material respects and it is fair to conclude from his reasons for judgment that he may very well have done so. The other evidence, if accepted, established clearly enough that the appellant's undoubted association with the business was widely known in his ethnic community and perhaps beyond it; and that there was a substantial body of people in the community who, to adopt the language of counsel for the respondent, regarded the appellant as “the face of the business”. There was no reason advanced for rejecting this evidence and I perceive none. I would be prepared to say, in general terms, that if the judge did not accept it I should be surprised. Allowing, however, that the evidence demonstrated that the Yellow Pages entry was published to a body of persons not including the appellant, and that to the knowledge of a number of persons he was accepted as the face of the business, the question remains whether the evidence necessarily establishes that one or more of those to whom knowledge of the Yellow Pages entry is to be presumed to have been brought was or were among those who knew that he was intimately associated with the business. There is no evidence that any particular or identifiable person, or any of a particular or identifiable class or group of persons, had knowledge of the Yellow Pages entry: it is merely to be presumed that some person or persons had knowledge of it. Those who obtained knowledge of it might or might not have included a person or persons who knew the appellant to be associated with the business. Conversely, those who knew the appellant to be associated with the business might or might not have read, or have had read to them, the Yellow Pages entry. It is most remarkable that no person, save the appellant, was called to depose to having read the Yellow Pages entry. It is true that the appellant himself swore that others spoke to him consistently with their having read the Yellow Pages entry. Those persons might or might not, however, have derived their apprehensions from the publication itself. It seems equally possible, if not probable, that they derived them on the grape-vine or the bush telegraph — by gossip. Had any one of these persons, knowing the appellant to be intimately associated with the business, identified him from the Yellow Pages entry itself, one would naturally expect that person to have been called as a witness. In the absence of an explanation for the failure to call any of those persons the judge would have been entitled to infer that none of them had learned, or claimed to learn, from the Yellow Pages entry of disreputable activity on the part of the appellant: it is a simple application of the well-known principle of which Jones v Dunkel (1959) 101 CLR 298 and O'Donnell v Reichard [1975] VR 916 at 929, are examples. I agree, therefore, that the evidence did not require the conclusion, for which the appellant contends, that the publication complained of referred to him.”
Dojas v TCN Channel Nine Pty Ltd [2001] NSWCA 398, [36] (Hodgson JA, Haydon JA agreeing at [6]):
“When there is a question of recognition of a plaintiff from a visual image rather than from words, it is not possible adequately to put into words what are the matters known by people acquainted with the plaintiff that enable them to identify the plaintiff from an image. Furthermore, mere acquaintance with a plaintiff is not really an adequate description of the qualification of the persons who must reasonably be able to identify the plaintiff. There are degrees of acquaintance, and plainly people who know a plaintiff very well indeed may reasonably identify that plaintiff from an image which would be inadequate for such identification by other persons who are merely acquainted with the plaintiff. Persons who know a plaintiff very well indeed may be the very persons in relation to whom the plaintiff’s reputation is most precious to the plaintiff; and in my opinion, the law of defamation does protect a plaintiff’s reputation with such people. Accordingly, in my opinion where a visual image of a plaintiff is such that it can reasonably be identified as being of the plaintiff by even a very few people who know the plaintiff extremely well, albeit not by others who are mere acquaintances, and there has been publication to at least one such person, that is sufficient identification.”
Marley's Transport Pty Ltd v West Australian Newspapers Ltd [2001] WASC 31 (Hasluck J):
“[21] Counsel for the defendant submitted that the article complained of, when read together with the photograph, was incapable of conveying any defamatory imputation of and concerning the plaintiffs. Counsel contended that leave to amend the claim in the manner proposed should be refused because the proposed statement of claim failed to disclose a reasonable cause of action. The case being advanced by the plaintiffs was untenable or manifestly groundless. This attack upon the statement of claim as a whole embraced two principal points, being, first, a submission that the plaintiffs were not identified as the subject of the article and, second, that the article would not be regarded by a reasonable reader as an attack upon any particular trucking company.
[22] As to the first of these matters for the defendants pointed out that the plaintiffs are not named in the article. The photograph accompanying the article the subject of the action is a montage of the truck and a number of pharmaceutical products and packets.
[23] The plaintiffs pleaded that the article and photograph were reasonably understood to refer to the plaintiff by reason of the fact that the truck was painted in red and white livery, had the letters MD on its numberplate and had the name “Marley's” on its sun visor The first plaintiff's allegation is that people with special knowledge identified the first plaintiff after looking at the photograph and that the article and photograph, read together, defamed the plaintiff to those with special knowledge of the plaintiff's circ*mstances upon the basis set out in the pleadings. As to the second plaintiff argued that there were people possessing special knowledge, namely, that the second plaintiff managed the first plaintiff and had been a prominent campaigner for drug-free operation in the road transport industry.
[24] I consider that the various facts and matters relied upon by the plaintiff and especially the presence of the word “Marley's” on the sun visor establish a sufficient connection between the words complained of and the plea in the statement of claim as to identification. I have already noted from my review of the decided cases that the intention of the author of the words complained of is not material and that, as in Henry v TVW Enterprises Ltd (1990) 3 WAR 474 a plaintiff can be identified inadvertently as the object of a particular piece of criticism or discussion. Accordingly, I am not satisfied that the statement of claim should be struck out on this ground.”
Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, [31]-[32] (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):
“The telecast does not refer to the plaintiffs by name or title. In these circ*mstances, the appellant submits, there must be evidence which could show of each plaintiff that he or it could be identified by viewers with knowledge of extrinsic facts at the time of publication. … In my view, these propositions are correct…”
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 35-6 (Hunt J):
“As the plaintiff was not identified in the matter complained of by his own name (Dominic Barbaro), he was obliged to establish that persons saw the television programme who were able to identify him as the person shown, and thus the person said to be the Dominic Sergi named in the Royal Commission Report as one of the six men responsible, directly or indirectly, for the murder of Donald Mackay. In the extempore judgment which I gave during the course of the argument, I rejected the plaintiff's submission that the publication of his picture on television without being named is the same as the publication of his name in a newspaper, as being inconsistent with the decision of the Full Court in Cross v Denley (1952) 52 SR (NSW) 112 at 116; 69 WN 137 at 139, that the publication of no more than a plaintiff's business name requires such evidence of identification, in accordance with Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89, 90, 91; 66 WN 7 at 8.
Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202, [31]-[32] (Mason P, Handley JA agreeing at [80], Ipp AJA agreeing at [81]):
“The telecast does not refer to the plaintiffs by name or title. In these circ*mstances, the appellant submits, there must be evidence which could show of each plaintiff that he or it could be identified by viewers with knowledge of extrinsic facts at the time of publication. … In my view, these propositions are correct…”
Cross v Denley (1952) 52 SR (NSW) 112, 116 (Owen J., Street C.J. agreeing at 112):
“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.”
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 89-92 (Jordan C.J., Street J. agreeing at 94):
“The question in the present case is whether it is essential to prove anything more, and, in particular, to prove that the third party knew, or knew of the existence of, the person defamed and who he is, and thought that it referred to him. One would have thought that so elementary a question would have been resolved by a superfluity of authority, yet the exact point does not seem to have ever arisen for decision, no doubt because it is the practice, invariably in defamation actions until those now before us, to give evidence for the plaintiff which prevents the point from arising.
From a collation of such of the authorities as appear to be relevant, I have come to the conclusion that the law on the point of law as follows. 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 circ*mstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circum-stances. I think that this appears from what has been said in the authorities which deal with the question whether a publication has exceeded the scope of a privileged occasion. If a communication is sent to a person within the scope of the occasion, but the means used are a postcard or a telegram, it has been held that if the name of the person defamed appears in the postcard or telegram this is ample evidence of publication (to postal officers) ; but if the name does not appear, and knowledge of special circ*mstances would be necessary to know who was meant, there is no publication to them, and no relevant publication at all, unless it is proved that they had the special knowledge; Sadgrove v. Hole [1901] 2 K.B. 1; Huth v. Huth [1915] 3 K.B. 32 at 39-40, 41-42.; Sim v. Stretch. (1936) 52 T.L.R. 669 at 671; [1936] 2 All E.R. 1237. In Hough v. London Express Newspaper Ltd. [1940] 2 K.B. 507 at 513., a case in which the matter complained of was not ex facie defamatory of the plaintiff, Slesser L.J., with whom Clauson L.J. agreed, said;-
"The burden on the plaintiff is to give evidence of special circum-stances which would lead reasonable persons to infer that the words were understood in a defamatory meaning provided such circ*mstances were known to those persons to whom the words were published."
Goddard L.J. in this case said ([1940] 2 K.B. at 515);-
"Where words are not defamatory in their ordinary meaning, but by reason of special facts are capable of being understood in a secondary and defamatory sense by persons to whom the special facts are known, is it necessary to prove more than that there are people who know the special facts and so might understand the words in a defamatory sense or must there be evidence that some person did so understand them? In my opinion it is unnecessary, though I do not say inadmissible, to call persons to say that they did so understand the words, provided it is proved that they are people who might so understand them. Such witnesses were called in Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331. In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published: he cannot call witnesses to prove what they understood by the words; nor will it avail the defendant to call any number of witnesses to say that they did not believe the imputation. The only question is, might reasonable people understand them in a defamatory sense 1 So when circ*mstances are proved which will clothe words otherwise innocent with a defamatory meaning the question must equally be: might reasonable people who know the special circ*mstances understand them in a defamatory sense?"
This is not inconsistent with what was said by the majority of the Court or in the other cases which I have cited. All that his Lordship says here is that it is necessary only to prove that there are people who know the special facts, it is unnecessary to prove that their knowledge led them to interpret in a defamatory sense the matter complained of. He does not say that it is unnecessary to prove publication to some at least of those people.
In Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331 at 353, Russell L.J. said:-
"If the defamatory meaning only arises from a knowledge of outside facts, and the persons to whom the statement is published are ignorant of those facts, those persons could not reasonably attach a defamatory meaning to the statement."
In Williamson v. Freer (1874) L.R. 9 C.P. 393, where the person defamed by telegram was not named but was referred to only as "your child", the specific point was not taken.
In David Syme & Co. v. Canavan (1918) 25 C.L.R. 234 at 238; 7 Austn Digest 345, Isaacs J. said:-
"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 circ*mstances would lead persons acquainted with the plaintiff to believe that he was the person referred to 1 That does not assume that those persons who read the words know all the circ*mstances 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 circ*mstances 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."
His Honour also said ((1918) 25 C.L.R. at 239; 7 Austn Digest 345):-
"The words complained of appeared in the Age newspaper of 12th December, 1917. Now, it is very material to remember that it was only readers of that newspaper that could be affected by the state-ment."
The rules appear to be based on a view 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 have been published to anyone whomso-ever, the tort of libel is committed and the complainant is entitled to a verdict; but if the matter, on the face of it, is not capable of being regarded as defamatory, or if defamatory as defaming a particular person, it cannot be regarded as having been published unless it is proved to have been published to someone possessing knowledge which would suffice to enable him to realise that the matter was defamatory, or defamatory of the plain-tiff, as the case may be. This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as "the Prime Minister of Australia" , it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated: Jones v. E. Hulton & Co. [1909] 2 K.B. 44.4 at 454, 477. But the less revealing the description the greater the danger of omitting proof of identification. It is hardly necessary to add that it would be, to say the least, imprudent for a plaintiff who expected to obtain substantial damages to abstain from proving the scope of the publication and its effect, in accordance with the usual practice in actions of defamation: cf. Sunkissed Bananas (Tweed) Ltd. v. Banana Growers' Federation Co-operative Ltd. (1935) 35 S.R. 526 at 537·9; Austn Digest (1934.1939) 732.
It remains to apply the principles which I have stated to the facts of the present case.”
Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30, 35-6 (Hunt J):
“As the plaintiff was not identified in the matter complained of by his own name (Dominic Barbaro), he was obliged to establish that persons saw the television programme who were able to identify him as the person shown, and thus the person said to be the Dominic Sergi named in the Royal Commission Report as one of the six men responsible, directly or indirectly, for the murder of Donald Mackay. In the extempore judgment which I gave during the course of the argument, I rejected the plaintiff's submission that the publication of his picture on television without being named is the same as the publication of his name in a newspaper, as being inconsistent with the decision of the Full Court in Cross v Denley (1952) 52 SR (NSW) 112 at 116; 69 WN 137 at 139, that the publication of no more than a plaintiff's business name requires such evidence of identification, in accordance with Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 89, 90, 91; 66 WN 7 at 8.
Dwek v Macmillan Publishers Ltd [2000] EMLR 284, 290-1 (May L.J., Sedley L.J. agreeing at 294, Judge L.J. agreeing at 295):
“The second of the cases from Australia is Barbaro v. Amalgamated Television Services (1985) 1 N.S.W.L.R. 30. The first summary of what Hunt J. held in that case in the headnote is as follows: …
“The publication of the plaintiff's picture on television is not the same as the publication of his name in a newspaper. If the plaintiff is not named in the matter complained of, he is obliged to establish that persons saw the television programme who were able to identify him as the person shown in that programme.”
It seems to me that there is a correct statement of what should be the law in this jurisdiction.”
Cross v Denley (1952) 52 SR (NSW) 112, 116 (Owen J., Street C.J. agreeing at 112):
“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.”
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, 89-92 (Jordan C.J., Street J. agreeing at 94):
“The question in the present case is whether it is essential to prove anything more, and, in particular, to prove that the third party knew, or knew of the existence of, the person defamed and who he is, and thought that it referred to him. One would have thought that so elementary a question would have been resolved by a superfluity of authority, yet the exact point does not seem to have ever arisen for decision, no doubt because it is the practice, invariably in defamation actions until those now before us, to give evidence for the plaintiff which prevents the point from arising.
From a collation of such of the authorities as appear to be relevant, I have come to the conclusion that the law on the point of law as follows. 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 circ*mstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circum-stances. I think that this appears from what has been said in the authorities which deal with the question whether a publication has exceeded the scope of a privileged occasion. If a communication is sent to a person within the scope of the occasion, but the means used are a postcard or a telegram, it has been held that if the name of the person defamed appears in the postcard or telegram this is ample evidence of publication (to postal officers) ; but if the name does not appear, and knowledge of special circ*mstances would be necessary to know who was meant, there is no publication to them, and no relevant publication at all, unless it is proved that they had the special knowledge; Sadgrove v. Hole [1901] 2 K.B. 1; Huth v. Huth [1915] 3 K.B. 32 at 39-40, 41-42.; Sim v. Stretch. (1936) 52 T.L.R. 669 at 671; [1936] 2 All E.R. 1237. In Hough v. London Express Newspaper Ltd. [1940] 2 K.B. 507 at 513., a case in which the matter complained of was not ex facie defamatory of the plaintiff, Slesser L.J., with whom Clauson L.J. agreed, said;-
"The burden on the plaintiff is to give evidence of special circum-stances which would lead reasonable persons to infer that the words were understood in a defamatory meaning provided such circ*mstances were known to those persons to whom the words were published."
Goddard L.J. in this case said ([1940] 2 K.B. at 515);-
"Where words are not defamatory in their ordinary meaning, but by reason of special facts are capable of being understood in a secondary and defamatory sense by persons to whom the special facts are known, is it necessary to prove more than that there are people who know the special facts and so might understand the words in a defamatory sense or must there be evidence that some person did so understand them? In my opinion it is unnecessary, though I do not say inadmissible, to call persons to say that they did so understand the words, provided it is proved that they are people who might so understand them. Such witnesses were called in Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331. In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published: he cannot call witnesses to prove what they understood by the words; nor will it avail the defendant to call any number of witnesses to say that they did not believe the imputation. The only question is, might reasonable people understand them in a defamatory sense 1 So when circ*mstances are proved which will clothe words otherwise innocent with a defamatory meaning the question must equally be: might reasonable people who know the special circ*mstances understand them in a defamatory sense?"
This is not inconsistent with what was said by the majority of the Court or in the other cases which I have cited. All that his Lordship says here is that it is necessary only to prove that there are people who know the special facts, it is unnecessary to prove that their knowledge led them to interpret in a defamatory sense the matter complained of. He does not say that it is unnecessary to prove publication to some at least of those people.
In Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 331 at 353, Russell L.J. said:-
"If the defamatory meaning only arises from a knowledge of outside facts, and the persons to whom the statement is published are ignorant of those facts, those persons could not reasonably attach a defamatory meaning to the statement."
In Williamson v. Freer (1874) L.R. 9 C.P. 393, where the person defamed by telegram was not named but was referred to only as "your child", the specific point was not taken.
In David Syme & Co. v. Canavan (1918) 25 C.L.R. 234 at 238; 7 Austn Digest 345, Isaacs J. said:-
"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 circ*mstances would lead persons acquainted with the plaintiff to believe that he was the person referred to 1 That does not assume that those persons who read the words know all the circ*mstances 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 circ*mstances 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."
His Honour also said ((1918) 25 C.L.R. at 239; 7 Austn Digest 345):-
"The words complained of appeared in the Age newspaper of 12th December, 1917. Now, it is very material to remember that it was only readers of that newspaper that could be affected by the state-ment."
The rules appear to be based on a view 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 have been published to anyone whomso-ever, the tort of libel is committed and the complainant is entitled to a verdict; but if the matter, on the face of it, is not capable of being regarded as defamatory, or if defamatory as defaming a particular person, it cannot be regarded as having been published unless it is proved to have been published to someone possessing knowledge which would suffice to enable him to realise that the matter was defamatory, or defamatory of the plain-tiff, as the case may be. This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as "the Prime Minister of Australia" , it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated: Jones v. E. Hulton & Co. [1909] 2 K.B. 44.4 at 454, 477. But the less revealing the description the greater the danger of omitting proof of identification. It is hardly necessary to add that it would be, to say the least, imprudent for a plaintiff who expected to obtain substantial damages to abstain from proving the scope of the publication and its effect, in accordance with the usual practice in actions of defamation: cf. Sunkissed Bananas (Tweed) Ltd. v. Banana Growers' Federation Co-operative Ltd. (1935) 35 S.R. 526 at 537·9; Austn Digest (1934.1939) 732.
It remains to apply the principles which I have stated to the facts of the present case.”
