Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd and Chan [2008] NSWCA 1 (4 February 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd and Chan [2008] NSWCA 1


FILE NUMBER(S):
40245/06

HEARING DATE(S):
9 August 2007

JUDGMENT DATE:
4 February 2008

PARTIES:
Universal Communication Network Inc t/as New Tang Dynasty - Appellant
Chinese Media Group (Aust) Pty Ltd - First Respondent
Kam Chung Chan - Second Respondent

JUDGMENT OF:
Mason P McColl JA Young CJ in Eq

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 20110/04

LOWER COURT JUDICIAL OFFICER:
Studdert J

LOWER COURT DATE OF DECISION:
5 April 2006


COUNSEL:
C J Dibb - Appellant
R M McHugh SC with J Chambers - Respondents

SOLICITORS:
Daryl Barlow & Co - Appellant
Banki Haddock Fiora - Respondents

CATCHWORDS:
DEFAMATION - s 7A trial - corporate plaintiff not identified by corporate name in matter complained of only by business name - no evidence matter complained of published to anyone who knew its corporate name - jury directed to answer question whether plaintiff had established identification in the negative - HELD - primary judge erred - there was evidence arguably establishing the plaintiff's identity upon which the jury could reasonably find in its favour.

LEGISLATION CITED:
Defamation Act 1974
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

CATEGORY:
Principal judgment

CASES CITED:
Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81
Brown v Petranker (1991) 22 NSWLR 717
Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202
Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68; (2001) Aust Torts Reports 81-610
Consolidated Trust Co Limited v Browne (1948) 49 SR (NSW) 86
Cross v Denley (1952) 52 SR (NSW) 112
David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234
E Hulton & Co v Jones [1910] AC 20
Gardener v Nationwide News Pty Limited [2007] NSWCA 10
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 81 ALJR 1218
Kruse v Lindner (1978) 45 FLR 412
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Tory v Megna [2007] NSWCA 13

TEXTS CITED:


DECISION:
1.Appeal allowed. 2.Set aside the judgment entered in favour of the respondents by Studdert J on 5 April 2006. 3. Order that there be a new trial on all issues as between the appellant and the respondents. 4. Respondents to pay the costs of the appeal. 5. Costs of the first trial as between the appellant and the respondents to be at the discretion of the judge who hears the second trial.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40245/06

SC 20110/04

MASON P

McCOLL JA

YOUNG CJ in Eq

Monday 4 February 2008

Universal Communication Network Inc T/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd and Kam Chung Chan

Judgment

1 MASON P: I agree with McColl JA.

2 McCOLL JA: Universal Communication Network Inc which trades as “New Tang Dynasty Television” seeks to set aside a judgment entered in favour of the respondents by Studdert J at the conclusion of a trial conducted pursuant to s 7A of the Defamation Act 1974 (the “1974 Act”). The proceedings were originally framed as an appeal as of right, which was filed within time, but at some stage, apparently as the result of a suggestion by a Registrar, were re-framed as an application for leave to appeal. It is unnecessary to consider the issue of leave. The appeal, being one to set aside a judgment after a jury trial, lies as of right: s 102(a), Supreme Court Act 1970; Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 81 ALJR 1218 (at [69]) per Kirby J.

Background

3 On 18 December 2003 the first respondent, the Chinese Media Group (Aust) Pty Ltd published in an Australian Chinese language newspaper, known in English as the 2ac Chinese Daily, an article which the appellant alleged conveyed defamatory imputations of and concerning it.

4 The appellant is a corporation incorporated in New York, USA. It trades as “New Tang Dynasty” and runs a Chinese language television station called “New Tang Dynasty Television”.

5 The appellant and two other entities brought defamation proceedings in the Supreme Court of New South Wales against the first respondent and two editors of the newspaper, Bingwen Huang (the second defendant) and Kam Chung Chan (the third defendant). The first plaintiff was the Falun Dafa Association of New South Wales, the second was the appellant and the third was “New Tang Dynasty (Australia) Television Ltd”. Despite the similarity between their business names, it appears that neither the second or third plaintiff were related entities. At some stage, which the papers do not disclose, the second defendant apparently ceased to be a party.

6 In order to avoid the operation of s 8A(1) of the 1974 Act, the Statement of Claim pleaded that the appellant had no subsidiaries and fewer than ten employees: s 8A(3).

Statement of the case

7 The matter complained of, as translated into English, stated:

SPOKESPERSON OF SYDNEY CONSULATE GENERAL MADE A TALK ON THE ISSUE OF “NEW TANG DYNASTY TV STATION”

The spokesperson for the Sydney Chinese Consulate General said yesterday regarding the issue of New Tang Dynasty TV Station that the “New Tang Dynasty TV Station”, with its head office in America, is planning to hold “the first Chinese New Year Gala” on 18th and 19th January 2004 in New York, and will broadcast through satellite to the whole world on 21st January 2004 (Chinese New Year’s Eve).

The spokesperson pointed out that the “New Tang Dynasty TV Station” which claims itself as public media, is actually the propaganda tool of “Falun Gong” evil cult organisation. In order to produce programmes, for the Gala, the “volunteers” of “New Tang Dynasty TV Station” may “interview” some Chinese people and tourists visiting Australia from China, these “volunteers” are all the so-called members of “Falun Gong”.

The spokesperson pointed out that “Falun Gong” is an out-and-out evil cult organisation the same as Aum Shinrikyo evil cult in Japan, it has killed over 1700 people in China, and it is now still poisoning some people who do not know the truth. “Falun Gong” covers itself with the name of qigong for keeping fit and propagating “Truth-Compassion-Forbearance”, uses all kinds of means trying to cover up its true face; stops at no expense in anti-China propaganda and activities, and tarnish the image of the country and people of China.

The spokesperson pointed out that the “New Tang Dynasty TV Station” uses the name of spreading the Chinese culture to hold the so-called “First Chinese New Year Gala”, its genuine purpose is to engage in evil cult and anti-China propaganda, this is insulting the Chinese culture, the mass of overseas Chinese and Chinese people. It is hoped that the Australian public, especially the mass of overseas Chinese and Chinese people, realise its nature, are not to be fooled and not to be made use of, do not support them and do not participate in their activities.

8 The appellant pleaded that the matter complained of conveyed the following imputations of and concerning it, and that each was defamatory:

(a) the second plaintiff is the propaganda tool of an evil cult organisation;

(b) the second plaintiff, the operator of a television station, is not, as it claims to be, part of the public media, but is in fact controlled by an evil cult;

(c) the second plaintiff is deceitful in that it proposed to produce programs which included interviews of ordinary tourists without disclosing the interviewers were members of the evil cult Falun Gong; and

(d) the second plaintiff deceitfully pretends to spread Chinese culture by holding so called “First Chinese New Year Gala” when its genuine purpose is to promote an evil cult and engage in anti Chinese propaganda.

9 In paragraphs 3 and 4 of the Second Further Amended Statement of Claim the appellant pleaded that it was a corporation incorporated in the United States of America and able to sue in its corporate name and that it carried on business under the name “New Tang Dynasty” and was the registered owner of the name “New Tang Dynasty Television”. The respondents did not admit those allegations in their defence.

10 The appellant essentially repeated paragraphs 3 and 4 in its particulars of identification:

“The second plaintiff is the owner of the name ‘New Tang Dynasty Television’, the operator of the New Tang Dynasty Television Station, and carries on business under the name ‘New Tang Dynasty’”.

11 In 2005 Kirby J ordered the plaintiffs to file witness statements going to, inter alia, the issue of identification.

The Section 7A Hearing

12 The s 7A trial commenced on 3 April 2006 before Studdert J.

13 In opening the case to the jury, Mr C Dibb, who appeared for the appellant (and the other two plaintiffs), identified issues the jury would have to determine in addition to the questions whether the imputations were conveyed of and concerning each plaintiff and were defamatory. The first issue was whether the appellant had established the matters referred to in s 8A(3) of the 1974 Act and was, therefore, entitled to bring the proceedings. Nothing was said about this issue on appeal and it need not be considered further. The second was whether the plaintiffs had been identified in the matter complained of. As to this, he said:

“...Ultimately, my submission to you will be that in relation to the second and third plaintiffs, there’s just no question about the matter and you will have no trouble at all in concluding that they are identified for reasons that will become clear to you once you see the article and the translation of the article that’s published in Chinese. ...”

14 The third issue was whether the imputations pleaded were conveyed as true innuendoes, an issue which apparently arose in the first plaintiff’s case.

15 After the morning tea adjournment, Mr Dibb reiterated the issues for the jury. In particular, he said witnesses would be called on the identification issue and also on the extrinsic facts issue. The witnesses were then called.

16 In the course of the evidence of Mr Zhong Lee, the President of the appellant, two documents which became exhibit C were tendered. Exhibit C was not in the appeal papers, but the primary judge described it in detail to the jury. The first document purported to be a filing receipt on the letterhead of the “NYS Department of State Division of Corporation”. It showed an “assumed name”, New Tang Dynasty, and a principal location of West 28th Street, New York. The other was a Certificate of Assumed Name dated 20 August 2002. The “assumed name” was Universal Communications Network Inc. The “fictitious name” was “Universal Communications Network NY”. Paragraph 3 stated that the company would be doing business under the “assumed name, New Tang Dynasty” at an address in West 28th Street, New York.

17 At the conclusion of the plaintiffs’ case, the respondents offered no evidence.

18 Throughout the course of the evidence there was a running debate which took place in the absence of the jury concerning the questions to be put to the jury. The respondents were proposing that the jury should be asked to resolve the question whether the matter complained of identified the appellant by reference to whether the appellant had proved publication to persons who knew the pleaded extrinsic facts. Their formulation of Questions 2 and 3 respectively in relation to the appellant was:

“2. Has the second plaintiff established that the matter complained of (the article in the 2ac Chinese Daily of 18 December 2003) was published to at least one person who believed the article referred to the second plaintiff?

3. Has the second plaintiff established that the ordinary reasonable reader, who knew the extrinsic facts proved true by the second plaintiff, could reasonably have believed that the second plaintiff was the person referred to?”

19 Mr Dibb objected to this formulation. After the luncheon adjournment on the first day of the hearing, he complained it was misleading as the questions suggested identification of the appellant had to be by way of extrinsic facts and, in particular, that the appellant had to establish that a reader was aware of the appellant’s corporate name. He submitted that the case was analogous to Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202 (at [49]), and that it was unnecessary for the appellant to prove that a reader knew the appellant’s corporate name; rather the reference to the appellant’s business name and the nature and location of its business in the matter complained of was sufficient. He submitted the extrinsic facts relating to the appellant had been pleaded as “the icing on the cake”. He contended that he was entitled to put the case to the jury on two bases: that the jury could infer that readers identified the appellant because the matter complained of used its business name, New Tang Dynasty, alternatively because there was evidence that readers did identify it by reference to its business name and that their identification was reasonable.

20 In response, Mr R McHugh, who appeared for the respondents, submitted that the appellant was seeking to put a case that had not been pleaded. He argued the appellant had to prove that the matter complained of was published to persons who identified it as one of its subjects because they knew its corporate name. He sought to distinguish Parras. The primary judge reserved on this issue overnight.

21 This debate took place when Mr McHugh was partway through cross-examining the fourth witness, Mr Lu. He completed that cross-examination. Mr Dibb then called his remaining witnesses, Mr Wong and Ms Li. He also re-called Mr Lee before closing his case.

22 The next day, before his Honour had delivered his ruling, Mr Dibb applied to re-open his case. His Honour rejected that application. No complaint is made about that rejection on appeal. Mr McHugh then developed the argument he had flagged the previous day, that there was no evidence capable of identifying the appellant (or the third plaintiff) as the subjects of the matter complained of. In the course of that argument Mr Dibb re-iterated that he wished to put the case to the jury on the two bases he had identified the previous day.

23 The primary judge accepted Mr McHugh’s submission. He gave his reasons the following day. His reasons implicitly assume he had ruled in Mr McHugh’s favour on the issue of the formulation of the jury questions, as well as the no evidence argument.

24 His Honour noted that the matter complained of did not refer to the appellant (or the third plaintiff) by name. In so saying it is plain that his Honour was referring to the respective plaintiffs’ corporate, rather than business, names. He then summarised the evidence as follows:

“Mr Deller is the president of the first plaintiff. He gave no evidence relevant to the identification issue presented in the case of either the [appellant] or of the third plaintiff. The relevant evidence he gave concerned the first plaintiff's case.

Mr Lee is the president of the [appellant], Universal Communication Network Inc., trading as New Tang Dynasty... He described the [appellant’s] business as being that of ‘a global international TV station that’s broadcast from New York and it covers New York, North America, Europe, Asia as well as Australia’. Mr Lee lives in New York and he gave no evidence directed at the identification issue.

The next witness called was Linda Xie. Ms Xie purchased a copy of the newspaper and read the article, identifying it as referring to the first plaintiff. Her evidence was relied upon on the identification issue as to the first plaintiff. However, Ms Xie gave no evidence capable of addressing the identification issue concerning either [the appellant] or the third plaintiff.

Grant Lu is a member of the first plaintiff...his evidence was relied upon on the identification issue concerning the first plaintiff. However, his evidence did not advance [the appellant’s] case ...on the identification issues there arising.

Mr Wong is the president of the third plaintiff... He gave evidence addressing the issue under s 8A of the Defamation Act and he described the main work of the third plaintiff...he gave no evidence of having read the article such as addressed the identification issue for...[the appellant].

Ying Li gave evidence of having seen the newspaper article...Identification evidence was sought from her unsuccessfully. Ms Li did not identify the newspaper article as referring either to [the appellant] or the third plaintiff.”

25 His Honour held (at [13]) that this evidence did not establish that one person read the matter complained of and believed it referred to the appellant (or the third plaintiff). He concluded that the appellant had not proved that the matter complained of was published to a person with knowledge of the circumstances which identified the appellant (i.e. the appellant’s corporate name) as its subject, referring to Consolidated Trust Co Limited v Browne (1948) 49 SR (NSW) 86 (at 89) per Jordan CJ; Cross v Denley (1952) 52 SR (NSW) 112 (at 115-116) per Owen J.

26 The primary judge next considered the appellant’s submission that it was not necessary that it adduce evidence that a witness had identified it from their knowledge of an extrinsic fact and that it was open to the jury to infer that there were people who would have read the matter complained of and entertained a belief that it referred to it. His Honour accepted (at [16]) for the purposes of this submission:

“[T]hat it is not essential that there should be a witness who gives evidence that he took the words to refer to the plaintiff. The evidence in a particular case may be such as to enable the jury to determine that there were probably people who treated the words as referring to the plaintiff. Direct evidence is not essential ... Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202.”

27 However, the primary judge concluded (at [18]) that just as there was no direct evidence of identification of the appellant, nor was there any evidence from which it was open to the jury to conclude that there were probably persons who believed that the article referred to the appellant.

28 Mr Dibb finally submitted that identification evidence was unnecessary because the reference in the matter complained of to the “New Tang Dynasty TV Station” was sufficient identification of the appellant. The primary judge rejected that submission (at [19]) on the basis it did not reflect the pleaded case, and was not the case the respondents had sought to meet. He did not identify any prejudice to the respondents if the appellant was permitted to put that case to the jury.

29 Accordingly, his Honour held (at [20]) that the jury could not reasonably answer Question 2 in the affirmative in the case of the appellant (or the third plaintiff), and directed the jury to answer it in the negative. This meant that it was not necessary to proceed to Question 3. The jury having done so, his Honour dismissed the appellant’s claim.

Grounds of appeal

30 The appellant relies on three grounds of appeal, which, slightly paraphrased, are:

(a) the primary judge erred in finding there was no evidence on which the jury could find that the appellant was identified by someone to whom the matter complained of was published;

(b) the primary judge erred in holding the appellant could not ask the jury to find that it was identified in the absence of the evidence of a witness to that effect; and

(c) the primary judge erred in directing the jury to answer Question 2 in the negative.

Submissions

31 Mr Dibb accepted that the evidence did not establish that the matter complained of was published to someone who knew the appellant’s corporate name, Universal Communication Network Inc. He submitted, however, that the references in the matter complained of to “New Tang Dynasty TV Station with its head office in America” sufficiently identified the appellant by reference to the business it owned and operated. Mr Dibb also argued that the evidence supported the proposition that the appellant broadcasted its programmes under the name New Tang Dynasty Television internationally 24 hours a day, seven days a week. He contended it was therefore open to the jury to infer that the appellant, again under its business name, New Tang Dynasty Television, was a well known broadcasting organisation amongst Chinese speakers, which was the audience to which the matter complained of had been published.

32 He contended that there was evidence that witnesses identified the appellant by reference to its business name which he had drawn to the primary judge’s attention. He argued that such identification accorded with the “David Jones” approach approved in Parras (at [49]). He contended that the primary judge erroneously took the view that there had to be evidence that someone who read the matter complained of knew that it referred to the appellant, meaning thereby the appellant’s corporate name.

33 Mr Dibb also argued that the primary judge had erred in concluding that the pleadings did not permit the appellant to advance the case that it was identified by reference to its business name. He submitted that the Second Further Amended Statement of Claim made it clear that the appellant had advanced a case that it was identified in the matter complained of by being referred to as "New Tang Dynasty”. He argued that the particulars of extrinsic facts sufficiently foreshadowed that case and that there could have been no prejudice to the respondents if the primary judge had permitted it to advance its case on that basis.

34 Mr R McHugh of Senior Counsel, who appeared for the respondents, with Ms J Chambers, submitted that both the appellant’s extrinsic fact identification case and the case that it was named by the matter complained of had to fail. He argued that there was no evidence which could properly be left to the jury on the question of identification.

35 Mr McHugh submitted that Mr Dibb’s characterisation of the case as one which did not require identification of the appellant by proof of extrinsic facts was contrary to the case pleaded, and contrary to the directions made by Kirby J in August 2005.

36 Mr McHugh pointed out that the primary judge had considered Parras, and had accepted that "direct evidence" was not necessary in order to establish identification, but after considering other ways identification may be established and the evidence, properly found that none of these other methods of proof assisted the appellant.

37 Mr McHugh accepted the appellant proved it owned the name New Tang Dynasty Television in the United States and that there was probably enough evidence to go to the jury that the appellant carried on business under the name New Tang Dynasty in Australia. However he argued that there was no evidence that the matter complained of was published to someone in Australia who made "a link" between the appellant and that name.

38 Next Mr McHugh contended that Mr Dibb’s “David Jones” argument must fail because while an organisation such as David Jones was sufficiently well known in Australia that a reference to its business name identified it, the appellant was not in that league.

39 He also argued that there being two entities apparently operating under the business name, New Tang Dynasty TV Station, the appellant and the third plaintiff, the evidence could not be left to the jury on the basis that there could be a reader who could reasonably have identified the appellant.

40 Mr McHugh also contended that the respondents would be prejudiced if the appellant was permitted to argue that it was named by the matter complained of by reference to its business name. He argued that he had lost the opportunity to cross-examine witnesses to establish that a reader could not reasonably identify the appellant from the references to “New Tang Dynasty TV Station”. He pointed out that the appellant had not sought leave to amend to plead the Parras case. He submitted that the appellant had not demonstrated that the primary judge had erred in concluding that the pleadings did not permit the appellant to run the Parras case.

41 Mr McHugh submitted that before the Court could find in the appellant’s favour it had to be satisfied that there was some substantial wrong or miscarriage occasioned by the course the trial took: Tory v Megna [2007] NSWCA 13. He contended that there had been no substantial miscarriage of justice because the six witnesses called by the appellant were associated with the plaintiffs in the court below, so if anyone was going to give the identification evidence that the appellant needed, it would have been them, and they failed to do so.

Mr McHugh conceded that, if error was found, there would have to be a re-trial on all the issues. However, he submitted that such a re-trial would be prejudicial to the opponent (and, sub silentio, ought not be ordered) because the appellant would have the opportunity to adduce further evidence to establish facts that it had not proved at the first trial.

Consideration

42 It is an essential element in the cause of action in defamation that the matter complained of be published of and concerning, that is to say that it identify, the plaintiff: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (at 371) per Samuels JA; Gardener v Nationwide News Pty Limited [2007] NSWCA 10 (at [43]) per Bryson JA (Mason P and Tobias JA agreeing); Parras (at [29]) per Mason P (Handley JA and Ipp AJA agreeing). The test of whether words that do not specifically name the plaintiff refer to him or not is whether the words are “such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to”: Steele (at 371) applying David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 (at 238) per Isaacs J.

43 The question of identification was a matter for the jury to decide under s 7A of the 1974 Act: Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68; (2001) Aust Torts Reports ¶81-610 (at [16] – [27]) per Spigelman CJ (Meagher and Handley JJA agreeing). However it was a question for the judge “to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff”: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (at 1245) per Lord Reid. It was then for the jury to decide as a question of fact whether it actually identified the plaintiff: E Hulton & Co v Jones [1910] AC 20 (at 25).

44 It was incumbent on the primary judge to leave the case to the jury, if there was evidence upon which they could reasonably find for the appellant. This was so, even if there was contradictory evidence or even if “the overwhelming body of evidence point[ed] to the [contrary]”: Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [16]) per Gaudron J, see also (at [1]) per Gleeson CJ, (at [40] – [45]) per McHugh J, (at [58], [66] – [68]) per Kirby J, at ([117] – [123]) per Callinan J.

45 Mr McHugh’s essential argument is that the primary judge did not err, because the appellant had to prove the matter complained of was published to a reader who knew its corporate name. This proposition was advanced on two bases: as a matter of law and on the basis of the pleadings and the course the matter took prior to the s 7A hearing.

46 The first basis cannot withstand scrutiny. It is inconsistent with Parras.

47 In Parras, Channel 7 broadcasted a news telecast which reported on a police crackdown on designer drugs in Sydney nightclubs. It included shots of the Soho Bar, part of the Piccadilly Hotel which was owned by Hotel Pursuits Pty Ltd. During the visuals the words “Tagged ‘Operation Planwell’, Police also targeted the Soho Bar in Kings Cross arresting several staff, they’re facing drugs and weapons charges”, were also broadcast. There was evidence that customers with bookings contacted the managers of the hotel asking if it was still trading. There was also evidence that viewers of the program included patrons of Soho Bar, and what they saw led some to think that Soho Bar had been closed down or might be closed down.

48 Three plaintiffs sued Channel 7 for damages for defamation arising out of the telecast. The third plaintiff was a corporation, Hotel Pursuits Pty Ltd, which conducted the hotel and bar. The other two plaintiffs were the directors and managers of the company. At a s 7A trial the jury concluded that five imputations were conveyed of and concerning each plaintiff. It was common ground that if the imputations were conveyed, they were defamatory. On appeal, the defendant argued, inter alia, that the plaintiffs were not identified by the telecast.

49 Mason P held (at [31] – [32]) that because the telecast did not refer to any of the plaintiffs by name or title, there had to be some evidence which could show that each plaintiff could be identified by viewers with knowledge of extrinsic facts at the time of publication. While this did “not require proof of a ‘peg or pointer’ in the publication itself”, it did require “evidence of publication to at least one person who had knowledge of extrinsic facts that would provide the necessary identification.”

50 His Honour then considered a claim of defamation based upon the disparagement of the goods or business of an unidentified owner. He observed (at [33] - [34]) that because “[i]t 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 ... so 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 (Kruse v Lindner (1978) 45 FLR 412 at 414 per Smithers J) ... where the owner of a business [was] not identified in the matter complained of, there must be evidence capable of showing publication to at least one person with knowledge of extrinsic facts providing the link or identification”.

51 However his Honour also held (at [45] - [51]) that the corporate plaintiff could be identified in the telecast even though viewers of the programme were unaware of its formal title. In reaching this conclusion, his Honour analysed Consolidated Trust and Cross v Denley, the authorities to which the primary judge in this case referred. He drew attention, inter alia, to the passage in Cross, where Owen J (with whose reasons on this matter Street CJ and Herron J agreed) 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.” (emphasis added)

52 Mason P then said:

“45 Consolidated Trust, Cross and Kruse illustrate an important distinction in relation to cases where the plaintiff carries on a business otherwise than under his, her or its name. If the matter complained of does not refer to the plaintiff by name, it is not enough that the plaintiff proves that someone who read or saw it linked the publication and the business. The plaintiff must prove that the link was drawn between the publication and the plaintiff.

46 Does this mean that the viewer or reader must know the plaintiff’s name? In my opinion, no. It is sufficient to prove publication to persons who, in the words of Mason and Jacobs JJ in Mirror Newspapers ‘would know who the owners were’. This requires identification of ownership and the plaintiff, but does not require knowledge of the plaintiff’s name.

47 In the reasons of Simpson J which are set out below the example is given of a statement ‘The man who lives in that house is a paedophile’ made of a reclusive person whose name was not even known to people living in his street. Would the evidence of a neighbour who heard that remark and realised that it referred to the plaintiff prove identification? I think so. It would not matter that the man whom he now thought less of remained the nameless occupant of No X, Smith Street.

48 This hypothetical situation falls within the principle illustrated by Owen J in Cross. Owen J recognised that identification of an unnamed person by a small percentage of the community would suffice, provided ‘some one or more of those to whom the pamphlet was published had that special knowledge’. The ‘special knowledge’ required in these circumstances was not knowledge of the plaintiff’s name, but of the plaintiff’s identity with the matter complained of. In Cross it would have been enough if a witness happened to know that the plaintiff was the printer who used the imprint ‘X-press Printery’.

49 Naturally, it will be an unusual case in which evidence tending to identify the plaintiff with the defamatory publication would not also link the plaintiff’s name. But, like the rose which by any other name would smell as sweet, a person’s reputation adheres to more than his, her or its name. It is an attribute of (legal) personality itself. It would be anomalous that, if it were said falsely that a David Jones store was riddled with cockroaches, David Jones Pty Ltd could recover substantial damages in defamation (if it were the owner) but ACN 346 Pty Ltd could not (if it were the owner) absent evidence that a reader knew the obscure name of the corporate owner of the well known business.

50 These principles can be illustrated and (I think) their cogency demonstrated by two further examples. The first is where the identifying witness is slightly mistaken as to the plaintiff’s name, believing him to be ‘Peter Smith’ when in truth he is ‘Peter Smythe’. This should make no difference.

51 The second example involves a famous personage who is known by a stage name but who retains a family name for private purposes. If defamatory matter was published of and concerning the plaintiff by his stage name then he should be able to recover damages without calling witnesses who know his private name. Equally, the damages recoverable should not be confined to loss of esteem and consequential financial loss derived from the small group of insiders who know his family name.” (emphasis in original)

53 The reasons of Simpson J which Mason P approved in this extract are, relevantly (Parras at [63]):

“7. The defendant’s submission was that, there being no evidence that any recipient of the matter complained of other than individuals who were directors of Hotel Pursuits had identified Hotel Pursuits as the subject of the broadcast, there was no evidence to go to the jury on identification of that company ...

9. ... The submission, it seemed to me, was founded upon a misconception. The misconception was that, for the company to be identified as the subject (or one of the subjects) of the broadcast, or as an entity referred to in the broadcast, it was necessary for it to establish that some person (other than one of its own directors or employees) identified it by name. Given the extent to which businesses are operated by companies, that seemed to me to involve a very artificial exercise. A company conducting a business may well be defamed in the minds of recipients of a publication (and its business substantially damaged), even though those recipients are wholly unaware of its formal title. It is the substance of the identification, not the technicality, that is important. If a company is identified only as ‘the company that conducts business X’ that is, in my opinion, sufficient. It would be quite unjust and I do not believe it is the law, that a business conducted by a company might be seriously damaged by a defamatory action, but be unable to recover damages because it could not establish that any recipient knew the name of the company.

10. The principle is no different to that which applies to individuals. An individual may be identifiable by sight, or by address, or by occupation, or perhaps by other means. For example, a statement that ‘the man who lives in that house is a paedophile’ is sufficient to identify the occupant of the house as the subject matter of the statement, even to those who do not know his name, but who know him by sight. A statement that ‘the president of the Pearl Bay Girl Guides has been stealing the club’s funds’ will identify that person to those who know her by sight or by position, but not by name.

11. In this case, once there was evidence identifying the Soho Bar as the subject matter of the broadcast, there was, in my view, also sufficient evidence to identify any company involved in its management as included in the subject matter of the broadcast.

...

13. Finally, I took the view that it was open to the jury to infer that the company was identified by recipients. Direct evidence was not essential.” (emphasis added)

Mason P expressly approved (at [64]) Simpson J’s statements in [9] - [10].

54 Mason P next considered how the manner in which identification was proved:

“52 How then, does a plaintiff prove identification? It is common but not essential that witnesses are called who say that they made the requisite link between the defamatory material and the plaintiff.

53 The case law speaks of evidence of extrinsic facts capable of providing the necessary identification. This of course may be done by the direct evidence of at least one (reasonable) reader or listener who took the matter complained of as referring to the plaintiff (Steele at 373-4). The respondents contend that this requirement was satisfied.

54 But direct evidence is not essential. In Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1, Blackburn J cited statements of general principle in the judgments of Moffitt P and Samuels JA in Steele, the speech of Lord Morris in Morgan and the decision in Hough v London Express Newspaper Ltd [1940] 2 KB 507. Blackburn J continued (at 10):

In my opinion, the proper conclusion in principle is that it is not essential that there should be a witness who gives evidence that he took the words to refer to the plaintiff. From all the evidence, which may not include that of such a witness, the jury may decide that there probably were persons who did so. This conclusion is consistent with the words I have quoted of Lord Morris, and of Moffitt P, and with the law applicable to the analogous question of the defamatory nature of the words (Hough’s Case). I do not believe that the words of Lord Simon, of Samuels JA, or of Gatley, are to be taken as meaning that if the words complained of do not expressly refer to the plaintiff, and no witness testifies to having taken them to refer to the plaintiff, the plaintiff must fail.

I respectfully agree.

55 Jordan CJ’s Prime Minister example in the passage from Consolidated Trust (at 91) that is part of the wider passage in Mirror Newspapers quoted above is a situation where extrinsic facts identifying the plaintiff are well known in the area of publication and where the Court is in a position to take what is in effect judicial notice of this fact (see also Godhard v James Inglis & Co Ltd [1904] HCA 37; (1905) 2 CLR 78 at 92, Fullam v Newcastle Chronicle & Journal Limited [1977] 1 WLR 651 at 659, Barbaro v Amalgamated Television Services Pty Ltd ( 1985) 4 NSWLR 30 at 54. Cf also Jordan CJ’s reference in Consolidated Trust (at 91) to ‘evidence to suggest that the identity of the owners of the buildings in question was a matter of such general notoriety that it could fairly be presumed that anybody to whose notice the article came would know who it was that was referred to as the owner’.”

55 Before considering the application of Parras, it is necessary to refer to some aspects of the evidence the primary judge’s analysis did not touch upon, but which, in my view, demonstrate that there was evidence fit to go to the jury on the identification issue.

56 Mr Lee, the President of the appellant, said that Universal Communication Network Inc broadcast by satellite, and that a recipient of those broadcasts was receiving a channel which described itself as “New Tang Dynasty television network”. He said that “New Tang Dynasty” was the “dual business name” for “Universal Communication Network”. The company had been broadcasting programmes from New York to Asia, Europe and Australia since February 2002 and did so 24/7.

57 Ms Xie had read the matter complained of. She was asked what she understood was to be meant by the reference in the matter complained of to “New Tang Dynasty TV Station”. As I understand her evidence which, I observe without criticism, was expressed in broken English and repaid careful reading, she said she watched New Tang Dynasty TV Station on television using a satellite dish, that “New Tang Dynasty TV Station” was a TV station which spoke Chinese and was based in the United States. It broadcast news from all over the world. While she had not subscribed to New Tang Dynasty TV Station until 28 December 2003, 10 days after the matter complained of was published, she knew of New Tang Dynasty TV Station before she subscribed. She was not aware of the company which operated New Tang Dynasty TV Station.

58 Mr Lu had also read the matter complained of. When asked about the reference to “New Tang Dynasty TV Station”, Mr Lu said he had heard about New Tang Dynasty television station, but did not know “who is the organiser, or who is the boss”. He knew it was broadcast “originally from USA”.

59 Mr Wong, who was the President of the third plaintiff, said that that company’s business was “mainly supporting our main company in New York by producing television programmes and providing financial support. He said “New Tang Dynasty television station” was controlled by “New York, main company”. He could not remember the name of the main company although he said it was “something to do with united television or uniting television” and the name of the television station itself was “New Tang Dynasty”. In response to a question whether he could recall the name of the company that operated New Tang Dynasty television in the United States, he said, “New Tang Dynasty is that company.” There was no suggestion the third plaintiff itself broadcast television programmes.

60 Ms Li had read the matter complained of. She said she understood the reference to “New Tang Dynasty TV Station” to refer to a company, that she had been interviewed by a person from “NTD TV”, and that the “company” had websites in the United States and Australia.

61 In my view this evidence arguably established the appellant’s identity with the matter complained of in the manner Mason P approved in Parras. The matter complained of identified the appellant by reference to its business name and its location in the United States. The witnesses drew the link between the identification of New Tang Dynasty TV Station in the matter complained of and the American business which broadcast over the New Tang Dynasty Television Station with which they were familiar. This was evidence sufficient at least to go to the jury on the issue whether the appellant had proved publication to persons who “would know who the owners were”: Parras (at [46]).

62 Mr McHugh submitted that the “David Jones” example only ran in relation to a business which was well known. That analysis of Parras does not represent my understanding of that case. It would be inconsistent with Mason P’s paedophile example. However, in any event, in my view, the evidence to which I have referred arguably established that the appellant was well known in the Chinese community (cf Cross (at 116)) so as to identify it in the matter complained by analogy with the “David Jones” example: Parras (at [49]).

63 Taken as a whole, therefore, there was evidence upon which the jury could reasonably find for the appellant. The primary judge did not refer to the evidence I have extracted in rejecting the Parras argument. In so doing his Honour was clearly influenced by his view that the appellant had to establish that the matter complained of was published to a reader who knew its corporate name. In this respect, for the reasons Parras demonstrates, his Honour was in error. His failure to have regard to all the evidence led to him directing the jury to answer Question 2 “no”, which led to the entry of judgment for the respondents in the appellant’s case.

64 In my view the appellant’s argument that it was sufficiently identified by reference to its business name being used in the matter complained of was also open to it.

65 I turn then to Mr McHugh’s pleading complaint. In my view, as Mr Dibb contends, the appellant’s case that it was identified in the matter complained of by reference to its business name was foreshadowed in the pleadings. I understand, however, that the course of the proceedings up to the commencement of the s 7A hearing may have led the respondent to a different view. However, in my view, Mr Dibb made it clear that that was one of the ways he sought to put the appellant’s case if not during his opening (as to which there may be room for debate), certainly during the argument about the jury questions which, as I have said, took place while evidence was still being led. He drew attention to the passages in Parras he relied upon. His entitlement to do so had not been ruled upon by the primary judge before the remainder of the evidence was given.

66 Of the six witnesses who gave evidence, as I have said, one, Mr Lu, was being cross-examined immediately before the jury questions debate took place and his cross-examination continued after the primary judge reserved on this point. Mr McHugh informed his Honour at the stage the primary judge reserved on Mr Dibb’s argument that the appellant was identified by being “New Tang Dynasty based in the United States” that he had “cross-examined ...on the basis there was no evidence in chief”, an observation his Honour acknowledged. Thereafter Mr McHugh completed his cross-examination of Mr Lu, then Mr Wong and Ms Li were called. Subsequently Mr Lee who had given evidence before the jury question debate was recalled at the appellant’s behest and exhibit C was tendered through him. Accordingly only one witness who gave evidence which supported the business name identification case, Ms Xie, had completed her evidence before the jury question debate took place.

67 In my view, having regard to Mr Dibb’s clear statement as to the manner in which the appellant sought to put its case, Mr McHugh was on notice that it was incumbent on him to cross-examine witnesses who said they identified the appellant’s business if he wished to challenge the reasonableness of that view. His failure to do so appears to have been a consequence of a forensic decision made in the heat of trial. He was not immunised from the consequences of that decision by the fact the primary judge had reserved on the appellant’s business name identification argument. He had the opportunity to cross-examine the witnesses who had yet to complete and/or give that evidence. Ms Xie could have been re-called to allow him to cross-examine her on the reasonableness of her identification of the appellant. It was clearly in the interests of justice that such recall be permitted in circumstances where his Honour had not ruled on the appellant’s argument: see Brown v Petranker (1991) 22 NSWLR 717 (at 728) per Clarke JA (with whom Handley JA and Waddell AJA agreed). In my view the respondents have not demonstrated they were prejudiced by the way the appellant conducted its case.

68 In my view, with respect, the primary judge ought not to have directed the jury to answer Question 2, “no” and, accordingly ought not to have directed a verdict in favour of the respondents. His Honour’s failure to consider all the evidence amounted to a substantial miscarriage of justice warranting a new trial on all issues being ordered: Uniform Civil Procedure Rules 2005 r 51.53.

Orders

69 I propose the following orders:

(1) Appeal allowed.

(2) Set aside the judgment entered in favour of the respondents by Studdert J on 5 April 2006.

(3) Order that there be a new trial on all issues as between the appellant and the respondents.

(4) Respondents to pay the costs of the appeal.

(5) Costs of the first trial as between the appellant and the respondents to be at the discretion of the judge who hears the second trial.

70 YOUNG CJ in Eq: I agree with McColl JA

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LAST UPDATED:
6 February 2008