Fairfax Media Publications Pty Ltd v Pedavoli

[2015] NSWCA 237

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237
Hearing dates:	8 July 2015
Decision date:	20 August 2015
Before:	McColl JA at [1]; Simpson JA at [39]; Sackville AJA at [87]
Decision:	1. Appeal dismissed. 2. The appellants pay the respondent’s costs of the appeal.
Catchwords:	DEFAMATION – identification of plaintiff – articles published in major newspaper in print and online – imputations that female teacher had engaged in sexual misconduct with Year 12 boys at the school – plaintiff not named in matter complained of but identifiable by the inclusion of incorrect details – consideration of the principles in Baltinos – whether plaintiff can rely on extrinsic identifying facts acquired by readers after the matter complained of had been published to identify teacher – whether defendant implicitly invited readers to visit school website to ascertain identity of teacher DEFAMATION – damages – assessment of damages under sections 34 and 35 of the Defamation Act 2005 (NSW) – principles applicable in the assessment of aggravated damages – whether cross-examination unjustifiable or improper – reliance on post-publication evidence as to reputation – scope of publication
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7 Defamation Act 2005 (NSW), ss 18, 34, 35; Pt 3; Pt 4   New South Government Gazette No 57 (27 June 2014)
Cases Cited:	Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Attrill v Christie [2007] NSWSC 1386 Ballantyne v Television New Zealand Ltd [1992] 3 NZLR 455 Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85 Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 6) [2013] NSWSC 1651 Carson v John Fairfax & Sons Pty Ltd [1993] HCA 31; 178 CLR 44 Cassell & Co Ltd v Broome [1972] AC 1027 Channel Seven Sydney Pty Ltd v Mohammed [2010] NSWCA 335; 278 ALR 232 Chase v News Group Newspapers Ltd [2002] EWHC 2209 (QB) Coyne v Citizen Finance Ltd [1991] HCA 10; 172 CLR 211 Crampton v Nugawela (1996) 41 NSWLR 176 Cross v Denley (1952) 69 WN (NSW) 137 Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575 Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 Hayward v Thompson [1982] 1 QB 47 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; [1986] AC 350 Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 Praed v Graham (1889) 24 QBD 53 Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 Simons Proprietary Ltd v Riddell [1941] NZLR 913 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Strasberg v Westfield Ltd [2002] NSWSC 689 Tom and Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013; 72 NSWLR 577 Triggell v Pheeney [1951] HCA 23; 82 CLR 497 Uren v John Fairfax & Sons Ltd [1966] HCA 40; 117 CLR 118 Visscher v The Maritime Union of Australia (No 6) [2014] NSWSC 350 Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180
Texts Cited:	Gatley on Libel and Slander (12th ed, 2013, Sweet and Maxwell)
Category:	Principal judgment
Parties:	Fairfax Media Publications Pty Ltd (First Appellant) Anne Davies (Second Appellant) Melinda Pedavoli (Respondent)
Representation:	Counsel: T Blackburn SC/R A Jedrzejczyk (Appellants) B McClintock SC/ M Richardson (Respondent)   Solicitors: Banki Haddock Fiori (Appellants) Johnson Winter & Slattery (Respondent)
File Number(s):	2014/375223
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non- Publication Orders Act 2010 (NSW), order that any publication of the name of “the teacher concerned” be prohibited. See [8], [90]-[91] of the judgment.
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2014] NSWSC 1674 Date of Decision: 27 November 2014 Before: McCallum J File Number(s): 2014/52580

HEADNOTE

[This headnote is not to be read as part of the judgment]

In December 2013, a female teacher resigned from a boys’ high school following allegations of sexual misconduct with a number of year 12 boys at the school. On 31 January 2014, the Sydney Morning Herald published an article stating that the teacher concerned was in her late 20s and taught drama and English at the school. The previous evening, the article was made available for downloading on the publisher’s website. The respondent (the plaintiff) was not the teacher who resigned and had not been involved in any impropriety. She was, however, in her late 20s and was the only teacher who taught both English and drama.

At 8.42 am on 31 January 2014, following information that the article identified the wrong teacher, the publisher removed references in the online version of the article to the teacher’s age and the subjects she taught. The publisher published an apology in the Sydney Morning Herald on 13 February 2014.

The primary Judge found that the article contained three defamatory imputations, including that the respondent was a sexual predator; the defamation was very serious; the publication of the defamatory material had been made to the many readers who went to the school’s website in order to identify the teacher concerned; aggravated damages were appropriate; and the respondent should be awarded $350,000 in damages for the defamation.

On appeal, the publisher contended that the primary judge erred in finding that:

(1)   the publication conveyed the imputation that the respondent was a sexual predator;

(2)   the publication implicitly invited readers to ascertain the identity of the teacher concerned from the school’s website;

(3)   the cross-examination of the respondent exacerbated the hurt occasioned by the defamatory publication; and

(4)   aggravated damages should be awarded.

Held, dismissing the appeal:

In relation to (1)

The ordinary reasonable reader would understand the article to convey that the teacher concerned had exploited and seriously abused her position of trust to gratify her sexual desires: (Sackville AJA, McColl and Simpson JJA agreeing)

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.

In relation to (2)

Where a publication is defamatory on its face, it is not necessary for a plaintiff to show that the identifying facts were known to readers at the time they read the material. The question of whether readers identified the plaintiff is one of fact and degree. It was open to the primary Judge to find that readers who went to the school’s website had identified the respondent as the teacher concerned: (Simpson JA, McColl JA agreeing)

The primary Judge was correct to find that the article implicitly invited readers to ascertain the identity of the teacher concerned by going to the school’s website: (Sackville AJA, McColl JA agreeing)

Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85; Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822; Hayward v Thompson [1982] 1 QB 47; Chase v News Group Newspapers Ltd [2002] EWHC 2209 (QB); Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575; Strasberg v Westfield Ltd [2002] NSWSC 689; Simons Proprietary Ltd v Riddell [1941] NZLR 913; Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180; Cross v Denley (1952) 69 WN (NSW) 137; Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138; Ballantyne v Television New Zealand Ltd [1992] 3 NZLR 455

In relation to (3)

The primary Judge was correct to find that the cross examiner had accused the respondent of “dishonesty or, at best, disingenuity”. The cross examination was more than vigorous persistence in a bona fide defence: (McColl JA, Simpson JA agreeing, Sackville AJA dissenting)

Triggell v Pheeney [1951] HCA 23; 82 CLR 497; Cassell & Co Ltd v Broome [1972] AC 1027; Crampton v Nugawela (1996) 41 NSWLR 176; Carson v John Fairfax & Sons Ltd [1993] HCA 3; 178 CLR 44; Rogers v Nationwide News Pty Ltd [2003] HCA 52; 216 CLR 327; Steele v Mirror Newspapers [1974] 2 NSWLR 348; Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194; Coyne v Citizen Finance Pty Ltd [1991] HCA 10; 172 CLR 211; Attrill v Christie [2007] NSWSC 1386

In relation to (4)

There was no error in incorporating aggravated damages in the award.

This was so even if the cross-examination was justifiable: (Sackville AJA)

Judgment

1. McCOLL JA: I have had the advantage of reading Sackville AJA’s judgment in draft. I agree with the orders his Honour proposes and, save for what follows on the issue of aggravated damages, with his Honour’s reasons. I have also read Simpson JA’s judgment in draft. I agree with her Honour’s observations on Grounds 11–16. I would also add the following observations about the quantum of the award of damages. I repeat the facts only to the extent necessary for these reasons.

2. The primary judge rightly described the defamatory publication as “grossly” defaming the respondent, Melinda Pedavoli. Her Honour identified the conduct of the appellants, Fairfax Media Publications Pty Ltd and Anne Davies, in publishing the matter complained of as “unjustifiable” in the sense discussed in Triggell v Pheeney. [1] That conclusion was based, at least in part, on her Honour’s conclusion that Fairfax’s and Ms Davies’ whole approach to the publication of the matters complained of “smacked of reckless indifference.” [2] Gross irresponsibility would be another description.

   1. [1951] HCA 23; (1951) 82 CLR 497; Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 (at [153]).

   2. Primary judgment (at [153]).

3. The appellants did not plead any defence either at common law or pursuant to Part 4, Division 2 of the Defamation Act 2005 (NSW). Their only defence was to plead, pursuant to s 18 of the Defamation Act, that the respondent had failed unreasonably to accept their offer of amends. The primary judge rejected that defence. [3] A challenge to that finding was abandoned at the commencement of the hearing of the appeal.

   3. Primary judgment (at [103]).

4. The facts, in short compass, were that, “by the careless inclusion of incorrect information” in an article (the “matter complained of”) written by Ms Davies, the appellants identified the respondent completely falsely as the teacher who was the perpetrator of unlawful sexual misconduct with a number of boys at St Aloysius College (the “College”). [4] The respondent was falsely identified because she was the only teacher at the College who fitted the description of the teacher referred to in the matter complained of.

   4. Primary judgment (at [2]).

5. The matter complained of was extensively published at 9 pm on Thursday 30 January 2014 on the internet, in the print edition of the Sydney Morning Herald on Friday 31 January 2014 and in the tablet app edition of the Sydney Morning Herald the same day. It was also made available to Twitter followers of the Sydney Morning Herald’s Twitter account for 30 and 31 January 2014 and to the publisher and operator of The Age website.

6. The impact, as the primary judge said, of the publication of the defamation was to:

“ … greatly damage[d] Ms Pedavoli’s impeccable reputation and cause[d] her immense hurt. She is entitled to a large award of damages and to have the court declare to all the world the falsity of that which has been imputed to her by the newspaper.” [5]

5. Primary judgment (at [3]).

7. The circumstances in which the matter complained of came to be published were detailed by the primary judge. [6] Some aspects deserve repetition.

   6. Primary judgment (at [4]-[16]).

8. There is no doubt the matter complained of concerned a serious topic, but it reported sensational allegations. [7] Those allegations had, in fact, been made against a different teacher at the College (the “teacher concerned”) whose name was suppressed at trial and remains suppressed. That teacher had resigned from the College prior to 29 January 2014, as Ms Davies discovered that day when she spoke to the Rector of the College, Father Hosking. [8] Ms Davies had been told by Ms Kate McClymont (the original source of the information concerning the allegations) that she had heard the teacher concerned was a 29 year old English teacher. [9] By the time of Ms Davies’ conversation with Father Hosking, Ms Davies had identified a number of persons, including the respondent, she thought could fit the description of the teacher the subject of the allegations, which was “an English and/or drama teacher of approximately 28 or 29 years of age”. [10]

   7. Primary judgment (at [130]).

   8. Primary judgment (at [12]).

   9. Primary judgment (at [8]–[9]).

   10. Primary judgment (at [12]).

9. Following her conversation with Father Hosking, Ms Davies called the College switchboard and asked to speak to the respondent. When the person who answered the phone said she would be put through to the respondent, Ms Davies realised that, because she was still at the College, the plaintiff could not have been the teacher concerned. Accordingly, she hung up the phone before speaking to her. [11]

   11. Primary judgment (at [13]).

10. Because Ms Davies decided to hang up the phone without speaking to the respondent, she deprived herself of:

“ … the opportunity to learn that the description of a female teacher at St Aloysius aged in her late twenties who taught both English and drama would in fact exclude the teacher concerned and point unequivocally (and wrongly) to Ms Pedavoli.” [12]

12. Primary judgment (at [13]).

11. Ms Davies then ascertained through another enquiry a name very similar to the correct name of the teacher concerned. She sought to make further enquiries about that person including by accessing the College’s website, Facebook and the telephone directory. However, because she did not have the precise spelling of the teacher concerned’s name, she was unable to obtain “any concrete information” about her. [13]

    13. Primary judgment (at [14]).

12. As the primary judge found, by 29 January 2014 as a result of phoning the College, Ms Davies must have realised that she was wrong in concluding that the teacher concerned in the “allegations of the most serious sexual misconduct was Ms Pedavoli.” However:

“ … so far as the evidence reveals, no steps were taken by the newspaper to ensure that readers did not make the same mistake. Undoubtedly many did.” [14]

14. Primary judgment (at [16]).

13. Ms Davies did not give evidence at the trial. However, the circumstances in which she had engaged in such irresponsible journalism emerged from answers to interrogatories tendered at trial.

14. The primary judge found that the matters complained of conveyed all the defamatory imputations the respondent pleaded, they being:

“(a)   that she is a sexual predator who used boys at the school at which she taught for sexual gratification;

(b)   that she is a paedophile;

(c)   that she committed a criminal offence by having sex with at least two boys at the school at which she taught; or in the alternative

(c1)   that she breached child protection laws by having sex with at least two boys at the school at which she taught;

(d)   that she had so seriously misconducted herself as a teacher as to deserve to have her employment terminated by the school at which she taught.” [15]

15. Primary judgment (at [21] – [30]).

15. The appellant faintly sought to challenge the primary judge’s finding that imputation (a) was conveyed. As Sackville AJA has found, that challenge must fail. In my view, it was devoid of merit.

16. The effect the publication of such imputations would have on the respondent, a teacher still relatively new to the teaching profession, embarking upon what she wished be a successful career in a profession she had always wanted to pursue and to whom “teaching [was] everything” [16] was, as the primary judge found, devastating. [17]

    16. Primary judgment (at [141]).

    17. Primary judgment (at [141] – [145]).

17. In considering the appellant’s ground of appeal that the damages award was unreasonable (a ground asserted in more traditional terms in the appellant’s written submissions as “manifestly excessive”), it is necessary to bear in mind the purposes served by damages awarded for defamation. As the primary judge directed herself, they are:

“ … consolation for the personal distress and hurt caused to [the plaintiff] by the publication, reparation for the harm done to [the plaintiff’s] personal and (if relevant) business reputation and vindication of [the plaintiff’s] reputation”. [18]

18. Primary judgment (at [105]).

18. These purposes “overlap considerably in reality and ensure that the amount of a verdict is the product of a mixture of inextricable considerations”. [19]

    19. Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 (“Carson”) (at 60) per Mason CJ, Deane J, Dawson and Gaudron JJ.

19. The nature of the defamation and the circumstances of it may be such as to make vindication of particular importance. [20] It is clear the primary judge was of the view this was such a case. [21] The imputations conveyed by the matter complained of were such as to strike at the heart of the respondent’s reputation relevant to her career.

    20. Crampton v Nugawela (1996) 41 NSWLR 176 (at 194) (“Crampton “) per Mahoney ACJ (Handley and Giles JJA agreeing).

    21. Primary judgment (at [3]).

20. Further, the tribunal of fact may award the plaintiff “a substantial sum by way of damages for the plaintiff’s injury apart from the claim for vindication of reputation.” In such circumstances “it will be unnecessary to add a further sum for vindication [as] the award of that substantial sum will in itself serve to vindicate the plaintiff’s reputation.” [22] Such damages “for distress and anguish are the result of a social judgment, made by the [the tribunal of fact] and monitored by the appellate courts, of what, in the given community at the given time, is an appropriate award or … solatium for what has been done.” [23]

    22. Carson (at 66).

    23. Crampton (at 191) per Mahoney ACJ.

21. A challenge to an award of damages as manifestly excessive means the appellants do not identify “a specific error of principle or fact”; rather they contend that the sum awarded “is evidently wrong”, such that the primary judge must have failed “properly to exercise [her] discretion in fixing the amount to be awarded”. [24] The question for this Court is whether the primary judge’s award “bespeaks error”. [25]

    24. Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 (“Rogers”) (at [62]) per Hayne J (Gleeson CJ and Gummow J agreeing).

    25. Rogers (at [64]).

22. If an appellate court is convinced, not that in its own view the amount awarded is too high or too low, but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, it should intervene to prevent a miscarriage of justice. [26]

    26. Carson (at 61 – 62) per Mason CJ, Deane, Dawson and Gaudron JJ.

23. At the end of the day, Mr Blackburn of Senior Counsel, who appeared for Fairfax and Ms Davies at trial and on appeal with Mr R A Jedrzejczyk, conceded that if the Court was against the appellants on the extent of publication grounds of appeal, it would be hard to press the manifestly excessive ground.

24. That was a proper concession. The primary judge’s award was properly placed at a level which approached the statutory cap by reason of any of the inextricable combination of the need for vindication of the respondent’s reputation, the extreme injury to the respondent by way of personal distress and hurt and the aggravation of damages caused by the circumstances of the publication.

25. The matters I have set out concerning the imputations conveyed by the matters complained of, the circumstances of the publication and its effect on the respondent and her reputation, serve as background to the primary judge’s consideration of the aggravated damages issue of which the appellants complain. It is in this context that I, with respect, disagree with Sackville AJA.

18. The respondent made an extensive claim for aggravated damages, the most significant of which claims concerned the circumstances of the publication of the matters complained of.

19. The respondent also complained of aspects of the conduct of the trial she alleged had aggravated the hurt to her feelings, based on the uncontroversial proposition that, in assessing damages for defamation, the tribunal of fact is “entitled to look at the whole conduct of the defendant from the time the libel was published down to the time [of] verdict.”[27]

    27. Triggell v Pheeney (at 513); referring to Praed v Graham (1889) 24 QBD 53 (at 55) per Lord Esher MR.

20. The aspects of the conduct of the hearing which the primary judge found to be unjustifiable related to an exchange during Mr Blackburn’s cross-examination of the respondent her Honour set out verbatim. [28] That cross-examination concerned a statement the respondent had made in the affidavit she swore for the purposes of the proceedings expressing her concerns about the potential effect of the publication of the matters complained of on her future employment.

    28. Primary judgment (at [154]).

21. Mr Blackburn SC challenged the genuineness of the respondent’s concern “that any resume I submitted to another school would immediately raise concerns that a potential paedophile was seeking employment.” [29] He put to the respondent that there was “no basis at all for the concern” she had expressed in that paragraph of her statement, a proposition her Honour accepted the respondent denied. Her Honour also noted that in the course of that exchange the respondent “began crying again.” [30]

    29. See primary judgment (at [154]).

    30. Primary judgment (at [154]).

22. The primary judge concluded that that line of cross-examination amounted to “an accusation of dishonesty or, at best, disingenuity” for which there was no warrant. Rather, in her Honour’s view, the proposition “reflected the weary scepticism of a frequent defendant which … was wholly unjustifiable in the present case.” Her Honour noted that the respondent was “visibly upset by the exchange” and accepted “that it had aggravated the hurt occasioned to her by the defamation”. [31]

    31. Primary judgment (at [155]).

23. Fairfax and Ms Davies contend that Mr Blackburn’s cross-examination constituted no more than the “mere pursuit of a bona fide defence” [32] which could not be characterised as unjustifiable such as to attract an award of aggravated damages.

    32. Triggell v Pheeney (at 514).

24. It is uncontroversial that a “bona fide defence raised properly or justifiably in the circumstances known to the defendant” cannot be used to support an award of aggravated damages. However the conduct of the defence may be taken into consideration as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable. [33]

    33. Triggell v Pheeney (at 514).

25. In actions involving damages for loss of reputation there is a “highly subjective element” in respect of which the plaintiff, “in case the libel, driven underground, emerges from its lurking place at some future date … must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.”[34] The “lurking place” to which Lord Hailsham referred, is that part of “the grapevine” along which the defamation may be said to have spread and, further, where it may rest and strike the plaintiff again at an unexpected time. It is in that respect that the plaintiff must be able to demonstrate the “baselessness of the charge”. [35]

    34. Cassell & Co Ltd v Broome [1972] AC 1027 (at 1071) per Lord Hailsham of St Marylebone LC.

    35. Crampton (at 194 – 195).

26. The fears the respondent expressed in her statement upon which she was cross-examined reflected a concern about the grapevine effect leading to the defamatory imputations lurking in such places, possibly unbeknownst to her, as could adversely influence her future employment prospects. There could be no doubt, in my view, that objectively that was a genuine and legitimate concern on her part, or would have been on the part of anyone else in her position. The primary judge was best placed to evaluate that issue insofar as the respondent herself was subjectively concerned.

27. Mr Blackburn’s cross-examination was a grave attack in circumstances where, as Mr B R McClintock of Senior Counsel, who appeared for the respondent with Mr M F Richardson at trial and on appeal, submitted, the respondent had been wrongly labelled a paedophile. Once it was accepted that the matters complained of identified the respondent “particularly in the circles in which [the respondent’s] reputation counts most”, Mr Blackburn’s cross-examination could not, in my view, be characterised as no more than vigorous persistence in a bona fide defence. [36]

    36. Cf Steele v Mirror Newspapers [1974] 2 NSWLR 348 (at 368) per Hutley JA.

28. The cross-examination amounted to an unjustifiable (and inexplicable) denial of a fundamental principle of the law of defamation concerning the likely spread, in this case, of baseless and grave charges. It accorded no weight to the entirely legitimate context in which the respondent expressed her concern: the reckless publication by the appellants of false and grossly defamatory imputations likely to identify her particularly to those in her professional sphere. Rather, as the primary judge found, by his cross-examination Mr Blackburn accused her of “dishonesty or, at best, disingenuity.” [37] That cross-examination was clearly capable of increasing the hurt to the respondent’s feelings by accusing her of a different sort of misconduct to that the appellants had already falsely accused her of in the matter complained of.

    37. Primary judgment (at [155]).

29. The primary judge had an overwhelming advantage over this Court in characterising both Mr Blackburn’s cross-examination of the respondent and, in that light, the real effect of the defamation and his conduct on the respondent. [38] This Court should be slow to interfere with a finding of this nature.

    38. Cf Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211 (at 241) per McHugh J.

30. In my view, the primary judge was entitled to find that the cross-examination was unjustifiable in the sense referred to in Triggell v Pheeney.

31. SIMPSON JA: The relevant facts and circumstances are set out in the judgment of Sackville AJA, which I have read in draft. With respect to Ground 10, I agree with his Honour, for the reasons he gives, that the inference the primary judge drew from the Google Analytics document was one well open to her.

32. I wish to make some observations about Grounds 11-16 (concerning the identification of the respondent by readers of the articles after having access to the College’s website). And, having regard to the difference of opinion between Sackville AJA and McColl JA, it is necessary that I state my views on one aspect of the issue of aggravated damages.

Grounds 11-16: identification of the respondent by reference to a website

41. Grounds 11-16 arise out of a single proposition of law advanced on behalf of the appellants. That proposition, stated starkly, is that, in order for a publication that does not name the plaintiff to be defamatory of him or her, it is necessary that the identifying facts or circumstances be known to the recipient at the time of publication. It is not sufficient that subsequent enquiries reveal information that permits the identification to be made. (For the meaning of “publication” in this context, see below [44]-[45].)

42. There was no issue that the respondent was identifiable from the information contained in the article. Nor was there any issue that she was in fact identified by some readers. The question that gives rise to these grounds concerns the number of readers who were shown to have done so, and, therefore, the extent of the publication of the defamatory imputations; and, specifically, whether it is legitimate, in determining the extent of publication, to take into account readers who identified the plaintiff as a result of information obtained subsequent to publication.

43. The appellants’ proposition, as stated above, is important to their argument on the quantification of damages. That is because the primary judge admitted evidence that, on the day of publication, there had been a surge in access to the College website. The website revealed that the respondent was the only teacher of both English and drama at the College, unequivocally (but wrongly) identifying the respondent as the teacher the subject of the articles. The primary judge drew an inference that the reason for the sudden interest in the College website was an intention on the part of those visitors to ascertain the identity of the teacher concerned. That enlarged, significantly, the extent of the defamatory publication.

44. A preliminary diversion is in order. To understand what follows, it is necessary to understand the meaning of “publication” in the law of defamation. For that purpose, it does not bear its common meaning - it might reasonably be thought that, in ordinary language, publication (for example, of a newspaper or a radio program) takes place when the newspaper is printed or distributed, or when the radio program is broadcast. For the law of defamation, publication takes place when the newspaper is read and comprehended, or the radio broadcast is heard and comprehended. In other words, publication depends upon the content being received. That is made clear (although in the context of the location of the commission of the tort of defamation) in Dow Jones and Co Inc v Gutnick. [39] And, in a judgment that ought not to be allowed to lie fallow, Palmer J discussed what he plainly saw as the peculiarities or idiosyncrasies of the meaning of “publication” for the purposes of the law of defamation. [40]

    39. [2002] HCA 56; 210 CLR 575, at [10], [26]-[28], [40] (per Gleeson CJ, McHugh, Gummow and Hayne JJ), [124], [151] (per Kirby J), [180], [184] and [199] (per Callinan J).

    40. Tom and Bill Waterhouse Pty Ltd v Racing New South Wales [2008] NSWSC 1013; 72 NSWLR 577 at [22]-[26].

45. What can be drawn from the cited passages in Gutnick, is that a defamatory imputation is not published in the sense used in the law of defamation until its defamatory meaning is received by the recipient. Thus, where the plaintiff is not named in the matter complained of, no defamatory imputation is published until a recipient of the publication makes the necessary identifying connection. These basic principles need to be understood in order to make sense of what follows.

46. A further preliminary observation that may here be made is that whether a plaintiff has been identified by any recipient of the matter complained of is a question of fact to be determined on the evidence adduced.

47. I return now to the foundational proposition advanced on behalf of the appellants. It is important to be clear how senior counsel for the appellants stated it. It was that, for the defamatory imputations to have been conveyed, it was necessary that knowledge of the identifying fact - that is, in this case, that the respondent was the only teacher of both English and drama at the College - was in the possession of the recipient at the instant he or she read the article, and not later. Thus, on the facts of this case, a parent who read the article after the children had left for school, but who questioned them after school as to the name of the English and drama teacher, would not be a person to whom the defamatory imputations were published. A parent who telephoned another parent or, indeed the College, or any other source of information, to make such an enquiry would, similarly, not be a person to whom the defamatory imputations were published. Only those readers who knew, at the moment of reading the article, that the respondent was the only teacher of English and drama at the College could be persons to whom the defamatory imputations were published. Those who made the connection after visiting the College’s website were not such persons.

48. Ultimately, under considerable pressure from the Court, senior counsel was driven to accept that, for example, a parent who read the article over the breakfast table and immediately asked a child the name of the teacher of English and drama, and was given the respondent’s name, would be a person to whom the defamatory imputations were published. His explanation for this modest concession lay in the relative contemporaneity of the receipt of the publication and the receipt of the identifying information. The two are not, however, truly contemporaneous, and, in my opinion, the concession exposes the flaw in, and even destroys, the argument. Once it is conceded that a short gap in the time between receipt of a publication and receipt of the facts that identify the person the subject of the publication does not preclude a conclusion that a defamatory imputation is published, the question becomes one of fact and degree. What is sufficient to establish that a reader identified the respondent as the subject of the publication?

49. It might be useful, before attempting any answer to that question, to explore the foundation for the appellants’ proposition. That foundation lies in the decision of the English Court of Appeal in Grappelli v Derek Block (Holdings) Ltd. [41] The relevant passage is in the judgment of Lord Denning MR and is as follows:

“The question which arises in this case is as to legal innuendo. When the plaintiff relies on special circumstances known to another person, have those special circumstances to be in his knowledge at the time when he reads or hears the words? Or is it sufficient that - because of some later facts - he puts a defamatory meaning upon them?

… I would go by the principle, which is well-established, that in defamation … the cause of action is the publication of defamatory words of and concerning the plaintiff. The cause of action arises when those words are published to the person by whom they are read or heard. The cause of action arises then: and not later.

…

I prefer to go by the principle that in defamation a cause of action arises (and a writ can be issued) as soon as the words are published to a person then knowing all the material facts. If there are extrinsic facts, he must know them then - at the time of publication. That is when a cause of action arises. It cannot be made into a cause of action by reason of facts subsequently coming to the knowledge of the reader or hearer.” [42] (italics in original)

41. [1981] WLR 822.

42.    At p 825.

50. It is important to be aware of the relevant facts in that case. A famous jazz musician (and a not so famous one) had been booked (without their knowledge) by their agent (the defendant) to perform on several days at different locations in England. On learning of the bookings, the plaintiffs required the agent to cancel them. The agent telephoned the relevant people, and told them that the concert had been cancelled because Mr Grappelli was very seriously ill in Paris and was unlikely ever to tour again. The agent did this in September 1976. The statement that Mr Grappelli was ill was entirely false (but not defamatory). Subsequently (in November 1976) notices appeared in various newspapers to the effect that the plaintiffs would be performing in various concert halls, not those at which the agent had booked them, but on or close to the dates of those bookings.

51. The plaintiffs sued, alleging that, by reason of the notices in the newspapers, those who had received the initial communication from the agent that the concerts had been cancelled because of Mr Grappelli’s illness would have inferred that the plaintiffs had given a false reason for the cancellations. It was in this context that Lord Denning (together with Templeman and Dunn LJJ) ordered that the statement of claim, so far as it pleaded a cause of action in defamation, should be struck out. There was a gap of two months between the publication of the (false, but not defamatory) statements concerning Mr Grappelli’s health, and the events (publication of the newspaper notices that the plaintiffs would be performing) that were said to transform the original statements into defamatory ones.

52. Three features distinguishing Grappelli from the present case may immediately be noted. The first is that Grappelli was a case involving, not identification, but true (or legal) innuendo (as Lord Denning stated). The second is that the facts that were said to render the publication defamatory were not known publicly prior to or at the time of the publication the subject of the proceedings (and, indeed, did not exist at that time). The third is that (as is often the case where true innuendo is alleged), absent knowledge of the facts said to render the publication defamatory, the statements (that Mr Grappelli was seriously ill and might never tour again) were entirely innocuous and, of themselves, incapable of conveying any defamatory imputation.

53. The last of these is what marks the difference between defamation by true innuendo and defamation of a person not named in the relevant publication, but identifiable to those in possession of relevant identifying information. In the case of the latter, the defamatory imputation is contained in the publication; the extrinsic fact that makes it defamatory of a particular person is the identification of that person. In the former, as in Grappelli, there may be nothing defamatory in the publication, except to those in possession of extrinsic facts that cast the publication in a different light. In Grappelli, both Lord Denning MR and Dunn LJ quoted from a New Zealand decision,[43] Lord Denning as follows:

“On the authorities - see Cassidy v Daily Mirror Newspapers ([1929] 2 KB 331) and Tolley v J S Fry and Sons Ltd ([1930] 1 KB 467; [1931] AC 333) - innocent matter may be given a defamatory meaning by readers with knowledge of facts not known to the writer. But those cases do not lay down that a writer of innocent matter can by reason of certain facts coming into existence subsequent to publication of his innocent matter become liable in damages for libel because persons learning of that subsequent material are able to read into the innocent matter a defamatory meaning …” (italics added)

43. Simons Proprietary Ltd v Riddell [1941] NZLR 913.

54. Dunn LJ quoted the following passage:

“If that be a correct summary of the law as it now stands, then, with respect, I venture to say that it would be widening the net of liability of writers too far by enunciating the doctrine that the inquiry … must go still further by looking into the future to ascertain whether the next day or the next week or the next year some one may not say or do something that will enable a defamatory meaning to be given to otherwise innocent statements.” [44] (italics added)

His Lordship concluded by saying:

“Like Lord Denning MR, I would prefer to deal with this on principle. I agree that a publication is an essential part of the cause of action; that once there is publication the cause of action is complete, and there is no room for the doctrine that the cause of action can, so to speak, be allowed to be inchoate or lie dormant until such time as some fact emerges which would transform an otherwise innocent statement into a defamatory one.” [45]

44.    Grappelli, at p 829.

45.    Grappelli, at p 831.

55. That Grappelli concerned true innuendo and not identification is significant; because (as was the case in Grappelli) circumstances that come in to existence after the publication may put a defamatory complexion on an otherwise innocent publication. That was what gave rise to the strong statements of principle in Grappelli. In the case of identification, the identifying facts are in existence at the time of publication, although they may not be known to some recipients.

55. Lord Denning referred to the dictum in Grappelli only three months later, in Hayward v Thompson. [46] This was a case that did involve a publication that conveyed defamatory imputations but did not name the plaintiff, and was, therefore, like the present, a case in which the issue was identification. The newspaper reports the subject of the proceedings concerned a notorious allegation of solicitation to murder. Articles were published in two consecutive editions of a Sunday newspaper. In the first it was asserted that two more people had become involved in the investigation, one of whom was “a wealthy benefactor of the Liberal party” (a description that fitted the plaintiff) but who was not named. The second article, published in the newspaper one week later, did name the plaintiff. The plaintiff sued on both articles. He claimed that readers who did not identify him on reading the first article were able to do so retrospectively on reading the second.

    46. [1982] 1 QB 47.

56. In its defence, the newspaper publisher relied upon the principle stated in Grappelli. Lord Denning MR quoted the passage from Grappelli, and then said:

“Lord Rawlinson [senior counsel for the plaintiff] submitted that that case did not apply where the words were defamatory on the face of them, and the only question was one of identification. Did they refer to the plaintiff? Or would they be understood as referring to the plaintiff?

I readily accept Lord Rawlinson’s submission. One thing is of the essence in the law of libel. It is that the words should be defamatory and untrue and should be published ‘of and concerning the plaintiff’.” [47] (italics added)

47.    Hayward, at p 60.

58. His Lordship went on to discuss publication in the context of the intention of the publisher to refer to the plaintiff. He concluded:

“The second article was admissible in evidence so as to show that in the first article [the journalist author of the articles] aimed at [the plaintiff] and intended to refer to him: and therefore that the first article was published ‘of and concerning’ [the plaintiff].”

59. The question has also arisen in this State, in Baltinos v Foreign Language Publications Pty Ltd. [48] A Greek language newspaper, published in Sydney, referred in defamatory terms to a class, or group of people (“slickers”) who financially exploited “foreign visitors” who wished to seek permanent residence in Australia. No individual “slicker” was named. However, the article then referred to a television program to be aired that night, and finished with:

“We recommend that you see it.”

The television program, when aired that night, named Mr Baltinos as a person alleged to have taken money from foreign visitors in exchange for unfulfilled promises to arrange permanent residence for them.

48. (1986) 6 NSWLR 85.

60. Mr Baltinos sued on both the newspaper publication and the television program. It is only the newspaper publication that is of present relevance. Mr Baltinos claimed that the recommendation to readers to view the television program was an invitation to ascertain the identity of the persons the subject of the article by reference to the program. Hunt J (as he then was) said:

“The basic principle of defamation law upon which the defendant relies is that a plaintiff’s cause of action must arise at the time of the defendant’s act of publication and not later. If a plaintiff relies upon the reader’s knowledge of extrinsic facts in order to understand what was published by the defendant in a defamatory sense, that knowledge must exist at the time of the defendant’s publication to that reader. For that reason, a subsequent publication cannot be used as an extrinsic fact (or as the means by which the reader’s knowledge of an extrinsic fact is obtained) in order to cause an otherwise innocent publication to be understood in such a defamatory sense …” [49]

He cited Grappelli as authority for that proposition. The “extrinsic fact” was the name of Mr Baltinos.

49.    Baltinos, at p 88.

61. Hunt J spent a good deal of his judgment discussing what he saw as recent, and contrary to principle, incursions into the established understanding that identification of a person the subject of a defamatory publication is to be ascertained objectively, and not subjectively (by reference to the intention of the publisher). [50] Having done that, Hunt J turned his mind to what he called an extension of the Grappelli principle in Hayward v Thompson. He considered (and ultimately accepted) a submission that the plaintiff was entitled to rely upon:

“… the defendant’s apparent invitation to the reader in the matter complained of to ascertain the identity of those to whom he intended to refer by reference to the television programme, notwithstanding that that programme was published subsequently and by someone else.” [51]

50.    His Honour’s concerns in this respect appear to have the endorsement of the editors of Gatley on Libel and Slander (12th ed, 2013, Sweet and Maxwell). In footnote 90 to par 32.21, the comment is made that “Lord Denning’s emphasis of intention is somewhat in conflict with the established principle that save in the context of malice the intention of the publisher … is irrelevant to liability”.

51.    Baltinos, at p 97.

62. He said:

“The policy behind the qualification discussed in Hayward v Thompson - that the plaintiff is restricted to subsequent publications by the defendant - is clear enough. If a defendant has published matter which is defamatory of a person who is not identified in that matter, he should not and cannot in law be responsible if some other person subsequently points the finger at the plaintiff - and that should be so … whether or not the defendant did in fact intend to refer to the plaintiff. If the other person who subsequently pointed the finger at the plaintiff was understood by reason of having done so to have adopted what the defendant had published, then that other person will be responsible himself for having published that matter of and concerning the plaintiff … But it would be unfair to make the defendant liable for what some other person may subsequently do (whether innocently or mischievously) by pointing the finger at a person who could not otherwise be identified from what was published at the time when it was published.

The situation in the present case, however, is that the defendant could be understood from the matter complained of as itself pointing the finger at the person or the group of persons to whom it intended to refer. There could be no objection in principle to plaintiff relying upon such an apparent intention on the part of the defendant where the identity of the person so identified became known as soon as the matter complained of was published …” [52] (italics in original)

52.    Baltinos, at p 97.

63. I note that Hunt J considered that the qualification to the Grappelli principle (perhaps “dictum” is a better word, since it has been taken to extend well beyond the circumstances of the case) made in Hayward v Thompson was restricted to subsequent publications by the same defendant. I do not read Hayward so restrictively. The predominant and determinative question in Hayward was whether the defendant had, in the first article, intended to refer to the plaintiff. The second article was accepted as relevant to cast light on that question. I do not read Lord Denning as pronouncing an exception to the principle stated in Grappelli: rather, he “readily accepted” that that principle did not apply “where the words were defamatory on the face of them, and the only question was one of identification”. [53] The “principle” was therefore limited to cases of true innuendo.

    53.    Hayward, at p 60.

64. Hunt J further extended what he saw as the restricted principle in Hayward so as to apply to the subsequent publication by another publisher where the first publisher has expressly directed the attention of the recipient to that subsequent publication.

65. But, it might be asked, why should the extension stop there? In fact, it has not. In Strasberg v Westfield Ltd,[54] the question arose again. The facts are somewhat sparsely stated in this interlocutory and apparently extempore judgment, one of a series delivered in the Defamation List of the Common Law Division of the Supreme Court. It seems that the publication the subject of the judgment was an internal letter to retailers in a shopping centre written by the shopping centre’s management. It contained statements which the plaintiff alleged were defamatory of her. However, it named “Marianne Schwartz”. The plaintiff sued by the name of Marianne Strasberg. The letter referred to a television current affairs program, to be aired that night which (it seems) named the subject as Marianne Strasberg. It concluded by inviting retailers in the shopping centre to refer customer enquiries to a named person in centre management. Levine J said:

“It can be seen that this publication is not an express invitation of the kind with which Hunt J was concerned in Baltinos. On the other hand, in my view, the inevitable inference to be drawn is that the recipient of the defendant’s publication would watch the program in which the person described as Marianne Schwartz would be identified as the plaintiff. The matter complained of by its terms (especially the customer inquiry reference at the end), contains a sufficient nexus with the publication on television on the same day to enable it to fall within the Baltinos principle.”[55]

54. [2002] NSWSC 689.

55. Strasberg, at [15].

66. This decision represents a further encroachment into the absolute nature of the “principle” as stated in Grappelli. It was now not necessary that the subsequently identifying information be published by the same publisher (Hayward); it was not necessary that the allegedly defamatory publication expressly invite attention to identifying material published by another publisher (Baltinos); now, it was sufficient that the allegedly defamatory publication nominate a publication reference to which would identify the plaintiff.

67. The proposition advanced on behalf of the appellants gains some small support from a 1952 (that is, predating Grappelli and its progeny) decision of the Full Court of the Supreme Court of NSW in Cross v Denley. [56] The facts in this case were as follows. The plaintiff was a printer carrying on business in Auburn under the name “X-Press Printery”. The defendant was also a printer, carrying on business under a very different name. The defendant was asked to print some pamphlets of a politically charged nature, critical of a currently showing film, and likely to engender hostility in some quarters. Instead of putting his own business name on the pamphlets, the defendant printed “Express Printery, Lidcombe”. Some of the pamphlets were showered on the audience in the cinema where the film was being shown. The following day, the incident was reported in a newspaper, which added that the pamphlets bore the imprint of “Express Print, Auburn”. Some of the plaintiff’s customers who read the newspaper report identified the plaintiff. There appears to have been no evidence that any of the cinema attendees had done so.

    56. (1952) 69 WN (NSW) 137 at 139.

68. The plaintiff sued the defendant on the publication of the pamphlets in the cinema, on the basis that the subsequent newspaper report allowed recipients of the pamphlets in the cinema to identify him as the publisher of the politically controversial material.

69. At first instance, the plaintiff succeeded. In order to do so, he had to prove that some recipients of the pamphlets were able to identify him as the proprietor of the “X-Press Printery”. He sought to do this by evidence that those of his customers who (the following day) read the newspaper and knew that he was the proprietor of the “X-Press Printery” linked him with the distribution of pamphlets in the cinema. Owen J (with whom Street CJ and Herron J agreed) held that he could not do that by reference to the later publication of the name of his business in the newspaper; he said: [57]

“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. The case in this respect is on all fours with Consolidated Trust Co Ltd v Browne [(1948) 49 SR 86; 66 WN (NSW) 7], and, so far as publication at the theatre is concerned, the plaintiff failed to prove an essential element necessary to establish the tort of defamation. In these circumstances he cannot, in my opinion, successfully contend that that missing element in the tort sued upon was supplied by evidence that at a later date some readers of the newspaper publication possessed the special knowledge which enabled them to read the news item as referring to the plaintiff. If the publication by the newspaper was a publication for which the defendant was responsible in the sense that he was to be regarded as the publisher of it along with the newspaper proprietor, the plaintiff’s remedy was to sue him, not for the publication at the theatre, but for a tort committed by him by publishing the defamatory matter in the newspaper.”

57.    At p 138.

70. A seemingly contrary view was taken in Ware v Associated Newspapers Ltd. [58] The plaintiff (the well-known swimmer, Dawn Fraser, suing in her married name) sued upon three separate articles published in the same newspaper, the first on 1 March 1965, the second and third on the following day. She was not named in the first of the articles, but she was named in the second and third. Her action on the first and third publications failed. It was inferred that the reason for her failure on the first count was the absence of identification of her as one of the persons referred to. Walsh JA said that the judge’s directions to the jury were:

“… open to the objection that he should also have told the jury that the fact that the plaintiff was named in the second article was relevant to their consideration of the question of identification in relation to the first article.” [59]

He went on to say that the fact that the plaintiff was named in the second article:

“… was a factor which could be taken into account in the consideration of that question. [That is, whether the first article could be taken to refer to the plaintiff.] I do not think that an inquiry, whether or not a reader of the first article would reasonably take it to refer to the plaintiff, could be limited strictly in the circumstances of the present case to a consideration of what would come to the mind of a reader on the day of its publication, or that that tribunal must exclude as irrelevant the fact that the defendant itself on the very next day informed its readers, including, no doubt, many who had read the first article, that the plaintiff was one of the persons to whom it referred.” [60] (italics added)

58.    (1969) 90 WN (Pt 1) (NSW) 180.

59.    At p 184.

60.    At pp 184-185.

71. The present appeal was argued on the basis that the statements of Lord Denning in Grappelli established a principle, applicable in this jurisdiction, that publication concerning an unnamed subject does not convey a defamatory imputation unless the recipient, at the instant of receipt of the publication, identifies that person. That principle, as it was put to this Court, allowed for no interlude between receipt of the publication, and identification. The further proposition was that some limited exceptions have been grafted onto the original principle, in Hayward, and Baltinos, but that the principle remains.

72. In my opinion, the original proposition cannot be sustained.

73. There are two components to the Grappelli principle, as stated by Lord Denning. The first is uncontroversial - a cause of action in defamation is complete on publication of the defamatory imputation. What that means is that, at that point, the person the subject of the defamatory imputation is entitled to sue, and (subject to the facts) to succeed. Nothing more is needed. The second component - that any extrinsic facts that render an otherwise non-defamatory publication defamatory must be known to the recipient at the time the publication is received - although stated in the most general terms, must be seen in the context of the facts there under consideration, and in the light of subsequent refinements to the general principle. The most important of the facts under consideration in Grappelli was that the circumstances relied upon to render the publication defamatory did not come into existence until two months later. The subsequent refinements to the general principle allow for post-publication identification in a number of circumstances.

74. That the second component of the Grappelli “principle” is open to doubt was made clear in Elaine Chase v News Group Newspapers Ltd. [61] There, Eady J drew a distinction, exemplified in Hayward, between

    61. [2002] EWHC 2209 (QB) at p 2.

“… publications which cannot be described as ‘innocent’, in other words, publications which are defamatory on their face”

and publications which do not have a defamatory sting until some event that occurs later.

He noted that:

“The law has, however, in my judgment, to some extent been uncertain for the last 20 years because of the obvious tension between Grappelli v Block and Hayward v Thompson”

and, later:

“It is also doubtful precisely to what extent subsequent events can be relied upon to inform the reader’s understanding of a newspaper article. It would be convenient no doubt, if the law was as stated by the defendants, but it would not necessarily, submits [counsel for the plaintiff], be either realistic or consistent with the just disposal of those libel claims where an article has had a continuing resonance beyond the moment when the newspaper leaves the Wapping warehouse, or whatever is the equivalent. Once it is recognised, as the Court of Appeal did recognise in Hayward v Thompson, that a subsequent article can be relied upon to establish reference, the clear Grappelli v Block principle, for which the defendants primarily contend, is significantly undermined. The courts may need to define the precise principle justifying reliance upon subsequent material. It is clear that such reliance can only be placed in rare circumstances, but the boundaries are unclear.”

75. Similar doubt had been expressed a decade earlier in Ballantyne v Television New Zealand Ltd,[62] by Williamson J who said:

“On the specific question of whether or not there is a general rule that a plaintiff cannot rely on subsequent reports to establish identification and to link the plaintiff with the words complained of, I am of the view that it is preferable to refrain from formulating a general rule in those terms.”

62. [1992] 3 NZLR 455, at 460.

76. Notwithstanding the apparent acceptance by Hunt J of the commanding (and binding) force of the statement in Grappelli, I am of the view that that statement has been read as standing for a more absolute rule than it can now justify, at least in cases where the issue is identification of the plaintiff. One of the beauties of rejecting that view of Grappelli is that it accords with common sense. It is a natural human response, when confronted with serious allegations against an unnamed person, to enquire as to the identity of that person. That may be done in the ways alluded to above - by enquiries of those who might be supposed to have the relevant information - or, in the 21st century, by access to electronic media, or by a variety of other ways. Hayward and Baltinos ought not to be seen as representing exceptions to a “rule” as laid down in Grappelli. Rather, they should be seen as recognition that the rule was too broadly stated in the first place (as, indeed, Lord Denning acknowledged in Hayward, when he “readily accept[ed]” that the statement did not apply where the only question was one of identification).

76. Indeed, the editors of Gatley,[63] in another footnote [64] have doubted whether Grappelli and Hayward are “truly reconcilable”.

    63. Ibid.

    64.    Par 7.4, footnote 50.

77. It is not, I venture to suggest, necessary, in order for subsequently acquired information to permit identification of a plaintiff, that a publication contain within it an express or implicit invitation to the recipient to have resort to some particular source of external information, although, where that has happened, the case is clear, as in Baltinos and Strasberg; nor is it necessary that subsequent publication be that of the original publisher. In virtually every case where identification is in issue, it may be supposed (depending, perhaps, at least in part on the level of salaciousness, or gravity of the allegations) that recipients will seek (with a greater or lesser degree of vigour) to identify the subject.

78. It was, therefore, unnecessary, but not necessarily wrong, for the primary judge to locate, in the articles, an express or implied invitation to enquire to the identity of the teacher concerned. As I have indicated, such an invitation is, in any event, implicit in almost any defamatory publication that does not name its subject.

79. The invitation perceived by the primary judge was not limited to enquiries by way of electronic media, calling for new responses to deal with new technology. Electronic media, in this case, was, on the evidence, a readily accessible (and accessed) source of the identifying information, but it was not the only potential source, and the primary judge did not so limit her observations. She said that the articles naturally prompted the question: “Do you know who she is?”. That question could be asked, and answered, in a variety of ways. The focus was on electronic media enquiries because the evidence provided a clear inference that readers had in fact resorted to that source.

80. It is not, in my opinion, the law that a publication which does not name the plaintiff conveys defamatory imputations only to those recipients who, at the moment of first receipt of the publication, know the identity of the person referred to. Whether or not the plaintiff has been identified is a matter of fact, and will depend upon the circumstances of each case. It was to deal with the particular circumstances of their own cases that the judgments in Hayward, Baltinos and Strasberg developed (rather than provided exceptions to) the “principle” as stated. It may well be that questions of remoteness arise, but that is not this case.

81. I agree that Grounds 11-16 ought to be rejected.

Aggravated damages

83. The cross-examination that gives rise to this issue was related to the respondent’s evidence (given in affidavit form) that she feared that the damage occasioned by the defamatory imputations would come back to haunt her in the event that she later applied for employment in some other school. Only one question directly challenged the assertion that she had that fear: it was a question that, in the primary judge’s view “amounted … to an accusation of dishonesty or, at best, disingenuity”. I agree with McColl JA that the question was unjustifiable; in fact there was no apparent factual basis for it to be put. There is no suggestion anywhere in the proceedings that the respondent had given evidence in such a way as to produce concerns as to her veracity.

84. The remainder of the cross-examination went to the basis for her asserted fear. It could be legitimate to seek to establish that a feared consequence of the publication of defamatory imputations is unlikely, as a matter of reality, to occur, but that is so if the plaintiff puts her fear as not only genuine, but also realistic. In other words, if she put the feared consequence as a probable result of the defamation, therefore sounding in damages. There is nothing in the proceedings before this Court to suggest that the respondent’s fear was put on that basis. The question challenging the veracity of the respondent’s evidence of her fear, was no more than, in the vernacular, a cheap shot. It should not have been asked. It caused distress. The subsequent questioning, concerning the legitimacy of her belief, seems to me to be largely irrelevant to the issues in the trial, but prolonged the respondent’s distress.

85. I agree with McColl JA that the primary judge was in the best position to assess both the legitimacy of the questioning, and its effect. There is thus no need to attempt to discern the impact the findings may have had on the quantification of damages.

86. I agree that the appeal ought to be dismissed.

87. SACKVILLE AJA: This is an appeal against a decision of a Judge of the Common Law Division (McCallum J) awarding the respondent $350,000 as damages in respect of publications which, in her Honour’s words, “grossly” defamed the respondent. [65]

    65. Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 (Primary Judgment). Interest was added to the award.

88. The primary Judge summarised the nature of the case and the outcome as follows: [66]

“[2]   In December 2013, a female teacher resigned from a prestigious private school amidst allegations of unlawful sexual misconduct with a number of boys. In January 2014, the Sydney Morning Herald published an article which, by the careless inclusion of incorrect information, identified [the respondent] as the teacher concerned. That was completely false. The article was featured on pages 2 and 3 of the newspaper and was promoted as one of the ‘editor's picks’ on the internet. The publication occurred during the first week of the new school term and attracted a considerable amount of attention.

[3]   This judgment determines [the respondent’s] claim for damages. I have concluded that the only defence relied upon by the newspaper must fail. The defamation greatly damaged [the respondent’s] impeccable reputation and caused her immense hurt. She is entitled to a large award of damages and to have the court declare to all the world the falsity of that which has been imputed to her by the newspaper.”

66. Primary Judgment at [2]-[3].

Background

89. In early 2014, the respondent was a teacher at St Aloysius College (College), a Catholic high school for boys. At that time, the respondent was in her late 20s and was the only teacher at the College who taught both English and drama at the College.

90. In December 2013, the College became aware of allegations that a female teacher had engaged in sexual relations with a number of Year 12 boys. The College undertook an internal investigation and, as a result, asked the teacher against whom the allegations were made to resign. The teacher did so. I refer to that teacher, as did the primary Judge, as “the teacher concerned”. [67]

    67. The primary Judge made an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication of the identity of the teacher concerned and certain other matters. This Court varied the order to read as follows:

91. The respondent is not the teacher concerned. The teacher concerned was older than the respondent and taught only English.

92. At various times during January 2014, the second appellant (Ms Davies) investigated rumours about sexual misconduct at the College. Ms Davies wrote an article concerning the allegations. The article did not name the respondent but said that the teacher concerned was in her late 20s and taught English and drama at the College.

93. At 8.57 pm on Thursday, 30 January 2014, the article was made available for downloading on Fairfax’s website, The link to the article was headed “Sydney teacher quits amid Year 12 sex claims”. This publication was described in the pleadings as “the second matter complained of”.

94. The article was duly published on pages 2 and 3 of the print edition of the Sydney Morning Herald on Friday, 31 January 2014 under the headline “Female teacher quits top Catholic school after claims of sex with boys”. The article was also published that day on the Sydney Morning Herald Tablet App. This version of the article was “the first matter complained of”.

95. Apart from the difference in the headline the content of the articles was the same. The article was as follows:

“A teacher has resigned from one of the north shore’s leading Catholic boys schools, St Aloysius College, after an internal investigation revealed she had been having ‘inappropriate relationships’ with a number of boys in year 12 last year.

It is understood the teacher, who was in her late 20s, had sex with at least two boys at the school, including one who was a member of the school’s leadership group.

The boys were over the age of 16 but, because of the student-teacher relationship, the alleged contact contravened the rules of the school and child protection legislation.

It is believed the teacher taught drama and English at the school and that events came to light at the school after a parent became aware of the teacher’s relationship with the son.

The rector of St Aloysius, Peter Hosking, who is responsible for pastoral care at the Jesuit school, confirmed the teacher had left the school after an internal investigation into ‘inappropriate contact’.

Two processes had been undertaken once the school became aware of the allegations, Father Hosking said.

‘The first was an investigation by the school and the findings have been reported to the NSW Police,’ he said. ‘There have also been reports to the Ombudsman.’

The Ombudsman has oversight of the child protection laws. Schools are obliged to notify him of ‘reportable conduct’ as it affects students in NSW schools.

‘This is the first time I have been involved with something like this,’ Father Hosking said. ‘It’s unusual.’ He declined to say how many students were involved, citing privacy, but said that the school was taking the matter very seriously and had written to parents.

‘Pastoral care of our students is really important to us and we remain steadfast in our commitment to providing a nurturing environment for the boys,’ he said.”

96. At 9.11 pm on 30 January 2014, the respondent received a text message from a colleague at the College with a link to the second matter complained of. Shortly thereafter, the respondent received a telephone call from a friend from her school days who alerted her to a group message on Facebook concerning the article. The Facebook message involved people who knew the respondent.

97. From 7:47 am on 31 January 2014, the respondent began receiving messages from friends asking about the article. She had a discussion by way of messages on Facebook with one friend in which she explained that she was not the teacher concerned. At 8.36 am on that day, the friend sent a text message to an acquaintance at the Sydney Morning Herald, informing him that the story had wrongly implicated the respondent. At approximately 8.42 am, Fairfax removed the references in the online version of the article to the teacher’s age and the subjects she taught.

98. Fairfax estimated that on 30 January 2014, there were 18,693 unique page views of the second matter complained of in New South Wales and a further 2,831 unique page views in other States and Territories. The print edition of the Sydney Morning Herald on 31 January 2014 had a distribution of 142,233 copies in New South Wales and an estimated readership of 769,000 for that day. On 31 January 2014, there were 9,129 unique page views of the first matter complained of, utilising the Sydney Morning Herald Tablet App.

99. In addition to the publications already referred to, the second matter complained of was made available on 30 and 31 January 2014 to followers of the Sydney Morning Herald’s Twitter account. An estimated 1,155 persons read the article via Twitter.

100. On 3 February 2014, solicitors for the respondent wrote to the Sydney Morning Herald asserting that the articles clearly and falsely identified the respondent as the offending teacher. The letter advised that defamation proceedings would be commenced. The letter requested that, in order to mitigate damages, Fairfax should publish an apology in the form set out in the letter.

101. The solicitor for Fairfax responded on 5 February 2014 with an offer to make amends under Pt 3 of the Defamation Act 2005 (NSW) (Defamation Act). The offer included compensation in the sum of $50,000 and an apology in similar terms to that proposed by the respondent’s solicitors, but with some words omitted.

102. On 13 February 2014, an apology was published on page 2 of the Sydney Morning Herald in the terms proposed in Fairfax’s offer to make amends. An apology was also posted on the Sydney Morning Herald’s website via a hyperlink to the word “Apology”. On the same day, the amended online article was removed in its entirety.

103. The respondent’s solicitors filed the statement of claim on 19 February 2014. Unusually for defamation cases, the statement of claim was not amended. The trial took place over three hearing days (27-29 October 2014) and the Primary Judgment was delivered on 27 November 2014. Thus the proceedings were completed at first instance approximately nine months after they were commenced.

Primary Judgment

104. The primary Judge found that both matters complained of identified the respondent as the teacher who had resigned from the College because of the identifying details included in the articles. [68] Her Honour also found that the articles conveyed three defamatory imputations, as follows:[69]

     68. Primary Judgment at [20].

     69. Primary Judgment at [21] & [31]. Her Honour rejected a fourth imputation pleaded by the respondent. No issue about that imputation arises on the appeal.

“(a)   that she is a sexual predator who used boys at the school at which she taught for her sexual gratification;

…

(c)    that she committed a criminal offence by having sex with at least two boys at the school at which she taught; or, in the alternative,

(c)(i)   that she breached child protection laws by having sex with at least two boys at the school at which she taught;

(d)    that she had so seriously misconducted herself as a teacher as to deserve to have her employment terminated by the school at which she taught.”

105. The primary Judge first addressed the appellants’ defence based on the offer to make amends. The appellants claimed that the offer complied with s 18(1) of the Defamation Act and that the failure of the respondent to accept the offer therefore constitutes a defence to her claim. [70] The primary Judge rejected this defence on several grounds. [71] The appellants’ amended notice of appeal challenged the rejection, but the challenge was abandoned shortly before the appeal was heard.

     70. Section 18(1) of the Defamation Act provides that if an offer to make amends complies with the requirements of the sub-section and is not accepted, the offer constitutes a defence to the action.

     71. Primary Judgment at [32]-[103].

106. Since the appellants have abandoned this challenge, there is no need to recount in detail the primary Judge’s careful reasons for concluding that the offer to make amends did not comply with the statutory criteria. It is convenient to note, however, that one reason for her Honour’s finding that the offer was not “in all the circumstances … reasonable”,[72] was that the offer to pay compensation of $50,000 was inadequate.

     72. Defamation Act s 18(1)(c). See Primary Judgment at [102].

107. The primary Judge considered that the seriousness of the defamatory imputations conveyed by the articles required an offer of monetary compensation if the offer was to be regarded as reasonable. [73] An offer of compensation would have been required even if the appellants’ apology had been of equal prominence to the matter complained of and carefully targeted to reach the same audience (which her Honour found was not the case). Her Honour also considered that at the time the offer was made the appellants should have appreciated that the defamation was such as to cause extreme hurt and distress to the respondent. [74] Her Honour continued as follows:[75]

“The seriousness of the defamation could scarcely be any worse. But for the fact that the [respondent] was not named in the article and the prompt correction of the online edition, this defamation would clearly have fallen within the worst class of case. Accepting that the assessment as to the adequacy of the sum offered must be informed by the other components of the offer and the fact that acceptance of it would have made amends and obviated the need for a trial, I do not think the sum offered was enough to bring the whole of the offer, with all its components, up to the mark of being one which could be characterised as reasonable in all the circumstances. That conclusion is based upon both my assessment as to the inadequacy of the correction and apology and my assessment of the seriousness of the imputations (with the extreme hurt they would inevitably have caused).”

73. Primary Judgment at [99].

74. Primary Judgment at [101].

75. Primary Judgment at [102].

108. The primary Judge proceeded to assess damages. Her Honour set out in uncontentious fashion the basic principles governing an award of damages for defamation. [76] She noted that the statutory cap for damages for non-economic loss, adjusted in accordance with s 35(1) of the Defamation Act, was $366,000. [77]

     76. Primary Judgment at [105]-[106].

     77. Primary Judgment at [107], referring to New South Wales Government Gazette No 57 (27 June 2014) at 2322.

109. In her Honour’s view, the assessment of damages had to begin with the proposition that but for the fact that the respondent had not been named in the article, the seriousness of the defamation and the degree of hurt suffered by the respondent placed the case within the worst class of defamation. It called for an award of damages at or near the statutory cap, subject to relevant factors of mitigation and aggravation. [78]

     78. Primary Judgment at [108].

110. The appellants had submitted to the primary Judge that the case was towards the lower end of the scale in terms of harm to the respondent’s reputation because the number of people who would have identified her as the teacher concerned was “quite limited”. [79] Her Honour said that this submission raised a threshold question of principle. [80]

     79. Primary Judgment [109].

     80. Primary Judgment at [110].

111. There was no issue that to anyone who knew the identifying facts, the description in the article pointed unequivocally to the respondent. However, the appellants had contended that the respondent’s cause of action was limited to the persons who knew of the identifying facts at the time of publication. This was said to follow inexorably from the general principle that a cause of action for defamation is complete upon publication of the matter complained of. Accordingly, so the appellants had argued, the publication is limited to those persons who had the knowledge required to understand the matter in its defamatory sense at the time of publication. Thus the respondent could not recover damages in respect of a publication to persons who only acquired the requisite knowledge at a later time, such as by undertaking searches on the internet.

112. The primary Judge pointed out that the issue was significant because there had been a spike of interest in the College’s website when the article was published online, suggesting that people accessed the website to ascertain the identity of the teacher described in the article. At the time the articles were published, the respondent was the only teacher identified on the website as teaching drama and English (the description in the article). The issue therefore was whether the respondent could rely on a reader’s knowledge of extrinsic identifying facts, where knowledge of those facts was acquired after the matter complained of had been published. [81]

     81. Primary Judgment at [113].

113. After referring to the judgment of Hunt J in Baltinos v Foreign Language Publications Pty Ltd [82] her Honour quoted two remarks made by Eady J in the English decision of Chase v News Group Newspapers Ltd. [83] Eady J’s observations were as follows: [84]

135. Hunt J referred to the “basic principle” of defamation law that a plaintiff’s action in defamation arises at the time of the defendant’s act of publication and not later. He accepted that there is a qualification to that principle in that a plaintiff may rely on a subsequent publication by the defendant where the matter complained of is defamatory on its face and the subsequent publication is used only to identify the plaintiff as the person referred to. [100] As his Honour pointed out, the qualification was stated and applied by the English Court of Appeal in Hayward v Thompson. [101]

     100. Baltinos at 89.

     101. [1982] QB 47.

136. Clearly the qualification to the general principle could not assist the plaintiff in Baltinos because the defendant was not responsible for broadcasting the television program identifying the plaintiff. Nonetheless, Hunt J devoted most of his judgment to a critique of Hayward v Thompson. His Honour identified two possible justifications for the qualification to the general principle accepted in that case. The first was that the subsequent publication showed that the defendant actually intended to refer to the plaintiff in the defamatory publication. The second justification was that the subsequent publication led the reader to infer from what had already been published that the defendant had intended to refer to the plaintiff (regardless of the defendant’s actual intention). [102]

     102. Baltinos at 89.

137. Hunt J considered that the first justification was contrary to the fundamental principle that liability for defamation does not depend on the intention of the defamer, but upon the fact of defamation. In his Honour’s view, the only intention of the defendant 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”. [103] Nonetheless, Hunt J regarded himself as bound by the decision of the Privy Council in Lloyd v David Syme & Co Ltd [104] that the defendant’s intention is relevant to the issue of identification. He took this approach notwithstanding what he said was “the serious and fundamental objection in principle to what was held by the Privy Council”. His Honour therefore accepted, albeit with great reluctance, the first justification for the principle applied in Hayward v Thompson.

     103. Baltinos at 90.

     104. (1985) 3 NSWLR 728; [1986] AC 350.

138. So far as the second justification for the qualification was concerned, Hunt J said that there could be no objection in principle to taking into account material previously published by the defendant. This could be done in order to demonstrate that the defendant’s apparent intention (that is, apparent from the publication) was to refer to the plaintiff. He accepted that the extension in Hayward v Thompson, permitting reference to a subsequent publication for the same purpose, was supported by authority in New South Wales. [105] Since the extension focussed on the defendant’s apparent intention it was sound in principle.

     105. Ware v Associated Newspapers Ltd (1969) 90 WN (Pt 1) (NSW) 180 at 184-185 (Walsh JA).

139. The next question – critical to the outcome of Baltinos – was whether, as Hunt J framed it, the proposition stated in Hayward v Thompson should be extended to cover: [106]

“the defendant’s apparent invitation to the reader in the matter complained of to ascertain the identity of those to whom he intended to refer by reference to the television programme, notwithstanding that that programme was published subsequently and by someone else.” (Emphasis added.)

106. Baltinos at 97.

141. Hunt J said that the policy justification for restricting the plaintiff to subsequent publications by the defendant itself is that if the defamatory matter does not identify the plaintiff, the defendant should not be held responsible for the conduct of a third party in pointing the finger at the plaintiff. While the third party might be held separately liable for adopting the defendant’s earlier publication: [107]

“it would be unfair to make the defendant liable for what some other person may subsequently do (whether innocently or mischievously) by pointing the finger at a person who could not otherwise be identified from what was published at the time when it was published.”

107. Baltinos at 97.

142. Hunt J considered, however, that the case before him was different: [108]

“the defendant could be understood from the matter complained of as itself pointing the finger at the person or the group of persons to whom it intended to refer. There could be no objection in principle to a plaintiff relying upon such an apparent intention on the part of the defendant where the identity of the person so identified became known as soon as the matter complained of was published. … An example would be where the defendant says that the person it is criticising was named in a particular way in an earlier edition of its own (or of someone else’s) newspaper. … [Another] is where the defendant says that the person it is criticising will be named in a particular way in a television programme to be published by someone else that evening. That is the present case. How is it different in principle?”

108. Baltinos at 97-98.

143. His Honour therefore concluded that the plaintiff’s entitlement to rely on the television program was a “wholly justified extension” of the principle in Hayward v Thompson. Since there was to be a jury trial in Baltinos, Hunt J added this observation: [109]

“the jury will have to be directed that, if they conclude that the ordinary reasonable reader understood the defendant from the matter complained of to be inviting him to view the SBS-TV programme in order to ascertain the identity of the person or persons to whom it had intended to refer, they may have regard to the naming of the plaintiff in that programme upon the issue of identification and in assessing the number of readers who would have understood the defendant to have been referring to the plaintiff.” (Emphasis added.)

109. Baltinos at 98.

144. Several propositions emerge from Baltinos and the cases discussed by Hunt J. First, where a publication is not defamatory, a subsequent publication cannot be used as an extrinsic fact in order for the publication to be given a meaning it does not bear on its face. [110] The reason is that the cause of action in defamation is the publication of the defamatory material of and concerning the plaintiff. The cause of action arises when the words are published.

     110. Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 at 825 (Lord Denning MR, Templeman LJ agreeing). The first publication stated (falsely) that the plaintiff had cancelled concerts because he was very seriously ill. The second publication announced that the plaintiff would give concerts on the dates he was supposedly too ill to perform.

145. Secondly, where a publication is defamatory on its face, but does not identify the plaintiff by name, it is permissible to look at a later publication by the defendant to ascertain to whom the first publication referred. This represents a qualification to the general principle stated in Grappelli. [111] The qualification can be justified as a matter of principle on the ground that the later publication shows, not the actual intention of the defendant, but that the first publication itself apparently intended to refer to the plaintiff. [112]

     111. Hayward v Thompson at 60 (Lord Denning MR), 67-68 (Sir George Baker).

     112. Baltinos at 96.

146. Thirdly, if a defamatory publication does not name the plaintiff, but incorporates an apparent invitation to the reader to ascertain the identity of the person defamed by reading or viewing a later publication, the plaintiff may rely on the subsequent publication on the issue of identification. [113]

     113. Baltinos at 98.

147. The decision in Baltinos can be interpreted in one of two ways. The broad interpretation is that if a reasonable reader would understand that the matter complained of invited him or her to read or view a subsequent publication in order to ascertain the identity of the person to whom the defendant intended to refer, the plaintiff may have regard to the content of the subsequent publication. The plaintiff may do so both on the issue of identification and in assessing the number of readers who would have understood the original defamatory publication to be referring to the plaintiff.

148. A narrower interpretation of Baltinos is available if the decision is to be confined to its particular facts. The newspaper article in that case expressly invited readers to view the television program which was to be broadcast later in the day and which identified the plaintiff. The decision in Baltinos, narrowly construed, might therefore stand for the proposition that:

“where the defendant in the matter complained of itself invites the reader to ascertain the identity of the person to whom he [or she] had intended to refer from a specifically identified publication to be published subsequently by another person [it is permissible to take the later publication into account in determining the identity of the person referred to in the defamatory publication].” (Emphasis added.)

This is how Hunt J stated the principle in Abbott v TCN Channel Nine Pty Ltd, [114] decided a year after Baltinos itself.

114. (1987) Aust Torts Reports 80-138 at 69,079.

149. That Baltinos should not be confined to its own facts is suggested by the decision of Levine J in Strasberg v Westfield Ltd. [115] His Honour applied the “Baltinos principle” to an internal letter which did not identify the plaintiff. [116] The letter did not expressly invite readers to watch a television program to be broadcast later that day which named the plaintiff, but did refer to the program. Levine J inferred that recipients of the letter would view the program which identified the plaintiff. Notwithstanding the absence of an express invitation to recipients to watch the program, there was a “sufficient nexus” between the letter and the program to attract the Baltinos principle. [117]

     115. [2002] NSWSC 689.

     116. The letter named the person said to have behaved inappropriately as “Marianne Schwartz”. The plaintiff’s name was “Marie-Ann Strasberg”.

     117. Strasberg v Westfield Ltd at [15].

150. In interpreting the scope of the “Baltinos principle” it is necessary to bear in mind the objects of the law of defamation. As the joint judgment in Dow Jones & Co Inc v Gutnick observed,[118] the law attempts to balance, on the one hand, society’s interest in freedom of speech and in the free exchange of information against an individual’s interest in preserving his or her reputation from unwarranted slurs or damage. It is because of the law’s concern with reputation, that damage is the gist of an action in defamation. [119]

     118. [2002] HCA 56; 210 CLR 575 at [23] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

     119. Dow Jones & Co Inc v Gutnick at [42].

151. In Baltinos, [120] Hunt J remarked that it would be unfair to make a defendant liable for the actions of a third party in pointing the finger at a person who could not otherwise be identified from what had been published at the time of publication. Unfairness is perhaps not the touchstone in this context. A more cogent way of making the same point is that to impose liability on a defendant not responsible for identifying the plaintiff would involve too great a constraint on freedom of speech. It is for that reason that care must be taken not to extend the reach of defamation law too far.

     120. At 97.

152. Even so, there are good reasons not to give an unduly narrow interpretation to the “Baltinos principle”. A defamatory publication which does not name the plaintiff may cause grave reputational damage, even among readers or viewers who cannot identify the plaintiff at the moment they read or view the publication. For example, a defamatory publication may be expressed in a manner clearly designed to excite the interest of readers in ascertaining the identity of the unnamed person who has been defamed. The publication might also make it abundantly clear that the unnamed person can be identified by going to an easily accessible source. Depending on the particular circumstances, it might be very difficult to conclude that if a reader or viewer chooses to identify the person by going to the source suggested, the publisher of the defamatory material is being held responsible, not for his or her own acts, but for the acts of a third party.

153. In Baltinos, the source of information accessed by readers happened to be a television program that the publication both named and recommended to readers. In Strasberg v Westfield Ltd, the program was named but not recommended. Why, as a matter of principle, should it be different if the identifying source is implied rather than expressed? This was the point of the comment by Eady J in Chase v News Group Newspapers, [121] cited by the primary Judge, that invitations can be extended by implication or by “nudges and winks”.

     121. At 5; Primary Judgment at [128].

154. In the present case, the readers of the articles who identified the plaintiff as the teacher concerned by accessing the College’s website utilised a resource (the College’s website) that was actually in existence at the time of publication of the articles. It was a resource known to the appellants, since the journalist whom Ms Davies had asked to make inquiries in Ms Davies’ absence on holidays had consulted the College’s website. Furthermore, the appellants published the defamatory material on its own website and to subscribers to the Sydney Morning Herald’s Tablet App. They clearly appreciated that readers using computers, smartphones and tablets could access other websites virtually instantaneously if they wished to ascertain the identity of the teacher concerned.

155. To hold the appellants liable in these circumstances does not imply that the law is being judicially reformed to cope with the “quantum leap of technological capacity” [122] that characterises communications in the early twenty first century. Nor does it mean that the law has undergone a “massive”, “radical”, or “dramatic” transformation. It simply means that, in accordance with the tradition of the common law, established principles have to be applied to changed circumstances. In this case, the changed circumstances include novel means of communicating and accessing information.

     122. Dow Jones & Co Inc v Gutnick at [89] (Kirby J).

156. The primary Judge recognised that the articles were not “inappropriately sensational”. Nonetheless, she found that they were bound to excite interest as to the identity of the teacher concerned. Contrary to Mr Blackburn’s submission, it would not have only been those with a prurient interest in the published allegations who would have wished to identify the teacher concerned. For example, readers associated then or in the past with the school community would have had an interest in doing so for reasons other than mere prurience.

157. The primary Judge attributed particular significance to the “tantalising details” provided about the teacher’s identity. In my view, the significance of the details provided is not so much whether they can be described as “tantalising”, but whether they imparted sufficient information to interested readers to allow them easily to ascertain the identity of the teacher concerned. The details provided in the articles were quite sufficient to cause an ordinary reasonable reader to realise that a simple search of the College’s website would almost certainly reveal the identity of the teacher concerned. That, the primary Judge found, explained the spike in the visits to the College’s website on 31 January 2014.

158. The factors that in my view justify the finding that the articles implicitly invited reasonable readers to visit the College’s website to ascertain the identity of the teacher concerned were the following:

• the subject matter of the articles, involving the alleged sexual misconduct of one teacher at a named school, inevitably generated interest among many readers in ascertaining the identity of the teacher concerned;

• the articles provided sufficient details about the identity of the teacher concerned, albeit without naming her, that a reasonable reader, especially of the online versions of the articles, must have appreciated that a simple search of the College’s website would be very likely to reveal the identity of the teacher concerned;

• the College’s website existed at the time the articles were published and was readily accessible by anyone with a computer, a smartphone or a tablet (a fact, if it matters, that must have been appreciated by the appellants); and

• a reasonable reader with access to the appropriate device could obtain the identifying information virtually instantaneously.

159. For these reasons, I think that her Honour was correct to find that the articles implicitly invited readers to ascertain the identity of the teacher concerned by accessing the College’s website. There was therefore no error in her Honour’s finding that the appellants were liable to all persons who read the matter complained of and who either knew the identifying detail at the time or ascertained it from the College’s website. [123]

     123. Primary Judgment at [132].

160. I add this observation. Much of Mr Blackburn’s argument was directed to the primary Judge’s acceptance of the proposition that a publisher should be held liable for a publication where it is reasonably foreseeable that the plaintiff will be identified as a result of the defendant’s actions. Her Honour put this forward as an alternative basis for her decision. While I think there is force in Mr Blackburn’s criticism of reasonable foreseeability as a criterion of liability in this area of the law, it is not necessary to attempt a definitive ruling. The first ground advanced by her Honour, understood as I have explained, supports her finding that the articles invited readers to ascertain the identity of the teacher concerned from the College’s website.

Ground 17: Scope of Publication

161. The appellants accepted that there must have been people who read the articles and mistakenly formed the view that the respondent was the teacher concerned. Mr Blackburn submitted, however, that the number of people who laboured under that misapprehension must have been quite limited. He relied on evidence which suggested that students who attended the senior school in 2013 and 2014 and staff at the College must have known that the teacher who resigned was not the respondent. He pointed out that the Rector of the College had advised staff on 24 January 2014 that the teacher who had been accused of inappropriate conduct had been asked to resign and had done so. In addition, the Rector and the Chair of the College’s Council, in a letter dated 23 January 2014, had advised parents of students in the senior school that the teacher concerned had resigned. Some parents contacted the College following publication of the articles. They were advised that the articles were incorrect and that the teacher concerned was not in her late 20s and was not a teacher of both drama and English.

162. These submissions seem to be directed at findings that the primary Judge did not make, rather than those she did. Her Honour expressly rejected what she perceived to be the proposition advanced by the appellants, namely that the readers of the articles who understood them to refer to the respondent coincided almost exactly with those readers who knew she was not the teacher concerned. Her Honour listed the categories of readers who would be likely to have understood the articles to refer to the respondent. [124] The categories identified by her Honour do not include staff of the College, students at the senior school or the parents of those students. Her Honour no doubt accepted that most within the College community would have appreciated that the respondent was not the teacher concerned (bearing in mind that a defamatory statement made to someone who does not believe it nonetheless constitutes the tort of defamation). [125] Her finding was that many readers who knew the respondent or knew of her would have laboured under the misapprehension that she was the teacher concerned. The arguments advanced by Mr Blackburn in relation to this ground of appeal cast no doubt on her Honour’s finding.

     124. Primary Judgment at [140].

     125. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1246 (Lord Reid).

Ground 18 – Post Publication Evidence as to Reputation

163. Mr Blackburn submitted that the primary Judge failed to take into account post-publication evidence indicating that the respondent’s reputation had not been damaged to the extent she claimed. Mr Blackburn relied particularly on the respondent’s promotion in 2014 to the position of Assistant Head of English at the College. This, he said, constituted a signal to the wider school community that the respondent continued to enjoy a “stellar reputation” as a teacher of English and drama.

164. As Mr Blackburn submitted, evidence of post-publication material going to a person’s reputation is admissible to ensure that the damages awarded for defamation accurately reflect the plaintiff’s reputation at the time the damages are awarded. [126] The evidence may go to mitigate or aggravate the damage suffered by the plaintiff. [127] However, the primary Judge did not depart from this principle.

     126. Channel Seven Sydney Pty Ltd v Mohammed [2010] NSWCA 335; 278 ALR 232 at [246] (McColl JA, Beazley JA, McClellan CJ at CL and Bergin CJ in Eq agreeing).

     127. Channel Seven Sydney Pty Ltd v Mohammed at [238].

165. The primary Judge admitted the evidence as to the respondent’s promotion and did not overlook the evidence. Indeed her Honour accepted that the promotion demonstrated that the respondent’s ability as a teacher was recognised by the decision-makers at the College, none of whom could have been under any misapprehension as to whether she was in fact the teacher concerned. [128] The point her Honour made was that the promotion said little as to the likely reach of the defamation among the much larger group of persons that read the articles and would have understood the publications to refer to the respondent.

     128. Primary Judgment at [148].

166. Mr Blackburn did not identify evidence which contradicted the primary Judge’s assessment that the promotion did little to curb the damage to the respondent’s reputation among the large group of readers beyond the College community. No error has been shown in her Honour’s finding.

Ground 19: Aggravated Damages

167. Mr Blackburn challenged the primary Judge’s finding that the cross-examination of the respondent aggravated the hurt occasioned to her by the defamatory publications. He submitted that as the appellants’ senior counsel he was perfectly entitled to cross-examine the respondent about her claim as he had and that there was no basis for the finding that the cross-examination was “wholly unjustifiable”. [129]

     129. Primary Judgment at [155].

168. Mr Blackburn did not dispute that the primary Judge correctly identified the relevant principle as that stated in the joint judgment in Triggell v Pheeney:[130]

“the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable.”

He contended, however, that the cross-examination did no more than vigorously persist in a legitimate defence, an approach long recognised as justifiable in defamation proceedings. [131]

130. [1951] HCA 23; 82 CLR 497 at 514.

131. Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 379-380 (Samuels JA); Coyne v Citizen Finance Ltd [1991] HCA 10; 172 CLR 211 at 237 (Toohey J, Dawson and McHugh JJ agreeing).

169. The single passage of cross-examination on which her Honour relied for the finding that the appellants’ conduct aggravated the hurt occasioned to the respondent tested the respondent’s claim in her affidavit that she feared a prospective employer, upon seeing her resume, would immediately raise concerns that she was a paedophile.

170. The cross-examiner put to the respondent that she did not have the fear she claimed in her affidavit. It no doubt would have been less abrasive and less likely to produce an emotional reaction from the respondent had the questions been confined to testing whether the fear, although genuinely held, had a sound factual basis. The answer to that question would have to take into account the respondent’s high standing at the College and the excellent references she would be likely to obtain if she ever left her position there. The respondent rebuffed the suggestion that she did not really fear that she might be seen as a paedophile and the issue was not pursued, except by questioning directed to showing that there was no reasonable basis for the fear expressed by her.

171. It is true, as Mr McClintock SC submitted on behalf of the respondent, that the primary Judge was well placed to assess the impact of the challenge to her veracity on this issue. But in my view there was a reasonable basis for regarding the particular fear expressed by the respondent to be somewhat exaggerated. In these circumstances I do not think that brief questioning suggesting that the fear was not genuinely held should be characterised as unjustifiable and lacking bona fides, even though it clearly caused some distress to the respondent. The questioning addressed only one relatively minor aspect of the respondent’s case and did not travel beyond a vigorous presentation of a legitimate defence on that issue. [132]

     132. Compare the different circumstances in Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 at [31]-[32] (Meagher JA, Beazley and Davies AJA agreeing).

172. In my opinion, however, this conclusion does not warrant any reduction in the aggravated damages awarded to the respondent or in the overall quantum of damages. The primary Judge did not separately quantify aggravated damages, but she found that the most significant aggravating factor was the failure of the publisher to take steps to prevent readers falling into the same trap as Ms Davies. [133] That was a reference to the fact that Ms Davies telephoned the College’s switchboard on 29 January 2014 and asked to speak to the respondent. Before the telephone call, Ms Davies had been given a name which was very similar to the correct name of the teacher who had left the College, with only one letter that was wrong. [134] The person answering the telephone at the College said that the call would be put through, whereupon Ms Davies (as she admitted in answer to interrogatories) realised that the respondent could not be the teacher concerned. Ms Davies chose to hang up without speaking to the respondent and thus lost the opportunity to have it put beyond all possible doubt that the teacher concerned was not in her late 20s and had not taught both English and drama. Although Ms Davies made a few further perfunctory inquiries, a minor spelling error apparently constituted an insuperable obstacle to successfully completing what would seem to have been the rather straightforward task of ascertaining the true identity of the teacher concerned. Had that been done, or at least had the articles not described the teacher concerned in a way that could only have referred to a teacher still on staff (and who could not have been the teacher concerned), the reputational damage and distress to the respondent would have been avoided.

     133. Primary Judgment at [153].

     134. Primary Judgment at [14].

173. The primary Judge remarked that it “beggars belief” that Fairfax proceeded to publish the articles knowing that the respondent was not the teacher concerned and that the details included in the article pointed to the respondent as being the teacher concerned. Compared with this abject failure of investigative journalism, the impact of a brief passage in the cross-examination on the respondent fades into insignificance. The primary Judge’s award of aggravated damages should stand.

Grounds 20 and 21: Assessment of Damages

174. Section 34 of the Defamation Act requires the court, in determining the amount of damages to be awarded in defamation proceedings, to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded. Section 35(1) provides that unless the court otherwise orders under subsection (2), the maximum amount of damages that can be awarded for non-economic loss in defamation proceedings is that determined in accordance with the section ($366,000 at the date of the trial). Section 35(2) provides that a court may award damages exceeding the maximum:

“if and only if the court is satisfied that the circumstances of the publication of the defamatory matter … are such as to warrant an award of aggravated damages”.

175. Within this statutory framework, as the primary Judge observed,[135] an award of damages for defamation serves the three purposes identified by the High Court in Carson v John Fairfax & Sons Pty Ltd:[136]

“The three purposes are consolation for the personal distress and hurt caused to the [plaintiff] by the publication, reparation for the harm done to the [plaintiff’s] personal and (if relevant) business reputation and vindication of the [plaintiff’s] reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the [plaintiff’s] reputation.” (Citations omitted.)

In reality, the three purposes overlap, with the result that an award “is the product of a mixture of inextricable considerations”. [137]

135. Primary Judgment at [105].

136. [1993] HCA 31; 178 CLR 44 at 60-61.

137. Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; 117 CLR 118 at 150 (Windeyer J), cited in Carson v John Fairfax & Sons Ltd at 60.

176. For these reasons, an award of damages for defamation is regarded as a discretionary judgment. Thus an appellate court can interfere with a damages award only if it appears that the trial judge proceeded upon a wrong principle or if the court can infer that in some way the discretion of the trial judge must have miscarried. [138] The appellate court does not intervene merely because it would have assessed damages in some other amount.

     138. Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [89] (Tobias and McColl JJA).

177. Mr Blackburn accepted in his oral submissions that if the appellants’ other grounds of appeal were unsuccessful, the appellants would find it difficult to press the contention that the award of $350,000 was unreasonable. He also accepted that rejection of the appellants’ other submissions constitute an obstacle to the grounds of appeal asserting that the primary Judge’s exercise of a discretionary judgment was vitiated by failing to take relevant matters into account or by taking irrelevant matters into account.

178. Nonetheless, Mr Blackburn submitted that the defamation in the present case was insufficiently serious to warrant an award of damages close to the statutory cap, even if it incorporated a component for aggravated damages. He drew attention to authorities on the statutory cap in New South Wales, where trial courts have followed the approach of Bell J in Attrill v Christie:[139]

“the maximum damages amount provided by s 35 is to be understood as fixing the outer limit of damages for non-economic loss (in cases which do not warrant an award of aggravated damages) and … awards for non-economic loss are to find a place within a range marked out in this way. This is not to say that an award of the maximum damages amount in a case not warranting an award of aggravated damages is to be reserved for the worst defamation imaginable.”

139. [2007] NSWSC 1386 at [44], followed in Born Brands Pty Ltd v Nine Network Australia Pty Ltd (No 6) [2013] NSWSC 1651 at [154] (Adamson J); Visscher v The Maritime Union of Australia (No 6) [2014] NSWSC 350 at [235] (Beech-Jones J).

179. Mr Blackburn did not submit that the primary Judge was not cognisant of the need to consider whether the damages sustained by the respondent in consequence of the defamatory publications was sufficiently serious to justify an award close to the statutory cap. His complaint was that her Honour overstated the seriousness of the damage to the respondent’s reputation and of the consequential distress she experienced.

180. The primary Judge found that by reason of the defamatory publications the respondent suffered hurt to her feelings, felt powerless and experienced a deep sense of embarrassment and shame despite not having had any involvement whatsoever in the conduct reported in the articles. [140] Her Honour accepted, moreover, that the respondent felt “scared, worried, anxious, distressed, alone, depressed, angry and insecure”. Mr Blackburn did not challenge these findings. They are hardly surprising given the extensive reach of the articles.

     140. Primary Judgment at [142].

181. There was a good deal of evidence that parents of students and the respondent’s friends and acquaintances within the broader College community were aware of the articles. Some believed, on the basis of the identifying features, that the respondent was the teacher concerned. Others were uncertain and confused as to whether the respondent might be the teacher concerned. Publication of the articles in a widely distributed newspaper with hundreds of thousands of readers, as the primary Judge found, drew them to the attention of people well beyond the broader College community, many of whom knew or knew of the respondent.

182. The “spike” in traffic on the College’s website reflected the efforts of readers to match the identifying features of the teacher concerned, as stated in the articles, with the attributes of the College’s teachers recorded on the staff page on the website. There was only one match.

183. The “grapevine” effect of matching the articles with the respondent’s identifying features is evident from the references to the events at the College in social media, such as Facebook and Twitter. Some communications identified the respondent, if not by name then by her achievements, including the fact that she was a University medallist (a fact not referred to in the articles). Commentary on social media was frequently aimed at the teacher concerned, but assumed that the respondent was that teacher. Some of the comments were vile and inevitably caused great distress to the respondent.

184. In my opinion, the appellants have not established any basis for interfering with the primary Judge’s award of damages for this very serious defamation.

Orders

185. The appeal must be dismissed. The appellants must pay the respondent’s costs of the appeal.

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Endnotes

“Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), order that any publication of the name of the teacher concerned be prohibited.”

Amendments

24 August 2015 - At [73]: The 5th sentence should read

"The second component - that any extrinsic facts that render an otherwise non-defamatory publication defamatory (additional words: 'must be known to the recipient at the time the publication is received') ...

Decision last updated: 24 August 2015