Ferrier v Jones & Anor

[2003] NSWSC 39

CITATION:	Ferrier v Jones & Anor [2003] NSWSC 39
HEARING DATE(S):	10 December 2002
JUDGMENT DATE:	21 February 2003
JURISDICTION:	Common Law Division Defamation List
JUDGMENT OF:	Kirby J
DECISION:	Orders - para 90
CATCHWORDS:	DEFAMATION - imputations - capacity - identification - radio programme in segments - named in some, not others - notorious facts - matters known to public through publicity
CASES CITED:	Ferrier v Jones [2001] NSWSC 738 Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165 Consolidated Trust Co Ltd v Browne (1949) 49 SR (NSW) 86 Burrows v Knightley (1987) 10 NSWLR 651 Rogers v 2UE Sydney Pty Limited (unreported, 6.11.98) Steele v Mirror Newspapers Limited (1974) 2 NSWLR 348 Barbaro v Amalgamated Television Services P/L (1985) 1 NSWLR 30 Broome v Richardson & Anor [2002] NSWSC 446 Grappelli & Anor v Derek Block (Holdings) Ltd & Anor [1981] 1 WLR 822 Baltinos v Foreign Language Publications P/L (1986) 6 NSWLR 85 David Syme & Co v Canavan (1918) 25 CLR 234 Knupffer v London Express Limited [1944] AC 116 Morgan v Odhams Press Limited (1971) 1 WLR 1239 Hall & Ors v Jones & Anor [2000] NSWSC 39 Fullam v Newcastle Chronicle and Journal Ltd & Anor [1977] 1 WLR 651
PARTIES :	Ian Douglas Ferrier (Pl) Alan Jones (1 Def) Radio 2UE Sydney Pty Ltd (2 Def)
FILE NUMBER(S):	SC 20226/97
COUNSEL:	T K Tobin QC/R K Weaver (Pl) G O'L Reynolds SC/A Leopold (Defs)
SOLICITORS:	Watson Mangioni (Pl) Corrs Chambers Westgarth (Defs)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

DAVID KIRBY J

Friday 21 February 2003

20226/97 - IAN DOUGLAS FERRIER v ALAN JONES & RADIO 2UE SYDNEY PTY LTD

JUDGMENT

1 KIRBY J: Mr Ian Ferrier is the Senior Partner of Ferrier Hodgson, a firm of liquidators. He complains that he was defamed by Mr Alan Jones and Radio 2UE on 12 and 13 March 1997.

2 The action has a long history. In August 2001 I dealt with a number of objections to the Further Amended Statement of Claim ([2001] NSWSC 738). Certain imputations were struck out. Others required amendment. A Second Further Amended Statement of Claim was filed. The matter was then fixed for a section 7A hearing to commence on 22 October 2002.

3 In September 2002, counsel for the plaintiff foreshadowed certain further amendments to the Statement of Claim. They related to an issue of identification. The action arose out of a "talk back" radio programme. Mr Jones, in the course of his broadcast on 12 and 13 March 1997, repeatedly returned to the subject of a clothing manufacturer, Rundles of Newcastle. He asserted that Rundles had been "forced" into liquidation by Westpac, who had appointed Ferrier Hodgson as its liquidators. In some segments Mr Ian Ferrier was named. In others Mr Jones referred to "Ferrier Hodgson". In one segment, Mr Jones referred to "the receivers" of Rundles. In those segments where Mr Ferrier was not named, the Second Further Amended Statement of Claim provided particulars of identification.

4 By letter dated 10 October 2002, the solicitors identified the additional material upon which the plaintiff would seek to rely in the following terms:

"On the issue of identification, the Plaintiff will rely upon the fact that Mr Ferrier was named in the publications set out in Schedules A & D of the Second Further Amended Statement of Claim and will rely upon the fact that the ordinary reasonable listener (in) Schedules B, C, E & F would have identified the Plaintiff from the wide coverage he received, as a receiver and liquidator of Ferrier Hodgson, in the years prior to the publication of the matter complained of. A list of publications is attached."

5 The defendants then filed a Notice of Motion to vacate the hearing date. The motion came before me on 18 October 2002. The defendants complained that the pleading did not raise the issues which the plaintiff now sought to canvass, and that there was a real question concerning whether the plaintiff could rely upon "wide media coverage" in relation to identification. The defendants did not seek costs. They simply wanted a Statement of Claim which articulated the basis upon which the plaintiff claimed that the alleged defamation was "of and concerning" Mr Ferrier. The hearing date was vacated. The plaintiff was ordered to amend the Statement of Claim to reflect the case which he now wished to bring.

6 On 6 November 2002, the plaintiff filed a Third Further Amended Statement of Claim. It repeated the imputations which had already been the subject of argument in 2001 ([2001] NSWSC 738), adding further particulars on the issue of identification as required. Again the defendants objected. The objections were directed at both the imputations and the particulars of identification. I now deal with the imputation issues with some reluctance. It is a field which has already been well ploughed. One can always think of refinements which may better express an imputation, but there must be an end to the process. I will deal with these issues because they have been fully argued before me.

Imputation 4(a)

7 Imputation 4(a) is in the following terms:

"4(a) the plaintiff earned his living in a disgraceful way by destroying viable businesses;"

8 Imputations in the same terms are relied upon in respect of other segments of the programme (Imputations 6(a), 8(a), 10(a), 12(a) and 14(a)). This imputation was dealt with in the original judgment ([2001] NSWSC 738 paras 62 to 72). The defendants assert that the imputation does not comply with Pt67 r11(2)(a) in that it fails to specify the act or condition about which complaint is made (Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 at 137). Specifically, the imputation fails to include the capacity in which the plaintiff was earning his living, namely, as a liquidator. That, on the defendants' case, is important to the jury's determination of whether the imputation is defamatory. An illustration was provided in the course of argument. Ordinarily it may be defamatory to say of a person that he earned his living wrecking cars. But if that person operated a car wrecking yard, it would not be defamatory. It was said that the specification of the way in which the plaintiff earned his living, namely, as a liquidator, was therefore important to provide clarity and avoid ambiguity at the trial.

9 Reference was made to Greek Herald Pty Limited v Nikolopoulos (2002) 54 NSWLR 165. The defendants acknowledged that in determining whether the imputation was defamatory the jury would be told to consider the issue in the context of the words used by Mr Jones in the particular segment which is the subject of complaint (Greek Herald Pty Limited v Nikolopoulos (supra) per Mason P at 173). The words "while acting as a liquidator" would therefore be implied. However, the defendants drew attention to the following aspect of the President's judgment: (at 173)

"In the present case it would have been better if the content of the lie imputed to the plaintiffs were spelled out. For one thing, this would have placed in proper focus the defendants' argument to the jury that some types of lying may be morally justifiable, with the possible consequence that the instant accusation was not defamatory."

10 I do not believe, however, that the imputation requires amendment. In context, the imputation is plain enough. The defendants did not suggest any particular ambiguity which made it desirable to specify that the plaintiff was acting as a liquidator. That plainly was his role. Mr Jones, in the broadcast, used the terms "liquidator" and "receiver" interchangeably. However, nothing is said to turn upon that. I am therefore not persuaded that amendment is required.

Imputation 4(b)

11 Imputation 4(b) is in the following terms:

" 4(b) the plaintiff, while acting as the liquidator of Rundles, a viable business, acted in a callous manner by sacrificing the jobs of Rundles' 250 employees for his own financial gain."

12 The same imputation is relied upon in respect of other segments (paragraphs 8(b), 10(b), 12(b) and 14(b)). This is an aspect which was dealt with in the original judgment at paras 77 to 79. The defendants suggested two problems with the imputation in its present form. First, the use of the word "sacrificing" was said to be unclear. Secondly, the words in parenthesis, "a viable business", had been simply added without being incorporated into the sting of the imputation.

13 Dealing with the first of these issues, the imputation is in the same form as when first debated, when I determined that it was capable of arising ([2001] NSWSC 738 paras 77 to 79). Mr Reynolds SC, for the defendants, suggested that a better word than "sacrificed" would be "terminated". The context suggested that that was the meaning which the plaintiff relied upon. However, according to his argument, by using the word "sacrificed", the pleader had made a rhetorical flourish with a pejorative overtone.

14 In the course of debate counsel was invited to identify the ambiguity. What were the shades of meaning which may give rise to difficulties? No particular ambiguity was identified. However, complaint was made about the pejorative overtone which attached to the word "sacrificed".

15 The word "terminated" may be simpler and clearer than "sacrificed". However, the plaintiff is entitled to some colour. In context, I believe that "sacrificed" is acceptable, as I said in my original judgment. The context is the closing down of a viable business employing 250 men and women, in order that the bank should get its money sooner rather than later. Ferrier Hodgson was to be paid a fee for that service. The pejorative overtone arises from the conjunction of two ideas, namely, taking money for certain actions, those actions requiring the dismissal of a significant number of people.

16 Turning to the second objection, the complaint is not about the use of the word "viable", which also appears in imputation 4(a) (cf [2001] NSWSC 738 para 690). Rather, it is said that the words "a viable business" have not been incorporated into the imputation. They have no work to do in specifying the act or condition about which complaint is made. In the course of argument, the following exchange took place with counsel for the defendants: (T12)

"HIS HONOUR: But isn't it part of the callousness that this is not a business which is on its knees. This is a business which was viable with 250 people with jobs but ...
REYNOLDS: Your Honour, with respect, has put your finger on another way of dealing with it, another way of integrating it, which is to say 'acted in a callous manner in that he sacrificed the jobs of employees of a viable business for his own financial gain'. That would deal with it. ..."

17 I believe that the imputation, in its present form, is really saying the same thing as suggested by Mr Reynolds, although less elegantly than his formulation. I therefore would not sustain the defendants' objection. However, it will emerge below that the Statement of Claim does require amendment. It would be advantageous for the plaintiff to substitute the following formulation in respect of imputation 4(b):

"4(b) the plaintiff, as the liquidator of Rundles, acted in a callous manner by sacrificing the jobs of 250 employees of a viable business for his own financial gain."

Imputation 8(c)

18 Imputation 8(d) is said to arise out of the "third broadcast", which was at 7.15 am on 12 March 1997. The broadcast included these words: (Schedule C)

"53. And it's this disgrace in Newcastle, Rundles. Eighty-eight years old, the company. They thought they were on a deal with Westpac which was giving them some breathing space. We spoke to them, remember, last year and several times since. They have twelve million in assets. They owe less than five. Westpac yesterday, after we came off air, went the disreputable route. They used their hired guns, Ferrier Hodgson, liquidators, the people who call themselves liquidators but actually they make a quid out of impoverishing business. And the Rundles staff were sacked yesterday."

19 It continued: (Schedule C)

"55. Westpac told Rundles it had to be signed immediately. Rundles wanted to seek legal advice. All they were given was a few extra hours. Yesterday the burglars moved in for Westpac, who were after less than five million ... "

20 The imputation said to arise from these words was originally framed in these words: ([2001] NSWSC 738 para 89)

"(d) the plaintiff's conduct while acting as the liquidator of Rundles was tantamount to stealing."

21 The defendant objected. I determined that the phrase "tantamount to stealing" was unacceptably vague and ambiguous. Nonetheless, there appeared to be a sting attaching to the use of the word "burglar", even though Mr Jones was not suggesting that Ferrier Hodgson had literally stolen from Rundles. The plaintiff was therefore given leave to replead. The repleaded imputation was in these terms:

"8(c) the plaintiff, while acting as the liquidator of Rundles, a viable business, behaved like a burglar by pre-emptively moving against that company primarily for his own benefit."

22 The defendants object that the reformulation is ambiguous and unintelligible. I agree. What does "pre-emptively moving against" mean? How does it relate to the behaviour of a burglar? Although the plaintiff says that these are ordinary words, I do not believe that the imputation, as framed, captures any sting that may arise through the use of the word "burglar".

23 Drafting an appropriate imputation is a matter of some difficulty. The plaintiff has now made two attempts, both unsuccessful. It is perhaps indulgent to allow a third. However, given the difficulty, I am inclined to do so. If the plaintiff wishes to replead, he has leave to do so.

Identification

24 The remaining objections concern the plaintiff's case on identification. There are objections of substance, that is, to the nature of the case the plaintiff wishes to bring, said to connect Mr Ferrier with the words spoken by Mr Jones, where his name was not used. There are also objections to the form of certain particulars which have been provided. It is convenient to deal with the substantive issues before dealing with the questions of form.

25 I have already referred to the nature of the matter complained of. Mr Jones began broadcasting at 5.30 am on 12 March 1997. He introduced the topic of Rundles at 5.36 am. He periodically returned to the issue in the course of the morning, sometimes referring to Mr Ferrier by name, and sometimes to the firm Ferrier Hodgson. The next day, 13 March 1997, Mr Jones again dealt with Rundles. It may be helpful to set out the times of each broadcast and whether Mr Ferrier was referred to by name.

DATE	SEGMENT	TIME	IDENTIFICATION
12 March 1997	[A]	5.36 am	"Ian Ferrier"
[B]	6.14 am	"Ferrier Hodgson"
[C]	7.15 am	"Ferrier Hodgson"
[D]	7.50 am	"Ian Ferrier"
13 March 1997	[E]	7.15 am	"Ferrier Hodgson"
[F]	7.45 am	"the Receivers (of Rundles)"

26 The plaintiff must, of course, establish that defamatory material "of and concerning him" was published, that is, provided to a third party. The plaintiff's task was identified by Jordan CJ in Consolidated Trust Co Ltd v Browne (1949) 49 SR (NSW) 86 in these words: (at 89)

"If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed, or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances."

27 These requirements create the need for particulars where the plaintiff is relying upon a true innuendo, that is, a defamatory meaning other than the ordinary meaning, or where the plaintiff is not named. Part 67 r12 relevantly makes the following provision:

"[67.12] Particulars: publication and innuendo
12(1) The particulars required by Part 16 rule 1 in relation to a statement of claim shall include: ...
(c) where the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning - particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including:
(i) full and complete particulars of the facts and matters relied upon to establish a true innuendo; and
(ii) by reference to name or class , the identity of those to whom those facts and matters were known;
(d) where the plaintiff is not named in the matter complained of - particulars of identification of the plaintiff together with, by reference to names and addresses or class of persons, the identity of those to whom any such particulars were known; ..." (emphasis added)

28 The Further Amended Statement of Claim, which was the subject of challenge in 2001 ([2001] NSWSC 738), dealt with each segment of the broadcast as a separate publication (cf Burrows v Knightley (1987) 10 NSWLR 651). It accepted, therefore, that, apart from Segments [A] and [D], Mr Ferrier was not named. A reference to Ferrier Hodgson was not, as such, a reference to Mr Ferrier. Particulars were therefore provided in respect of Segments [B], [C], [E] and [F] (which were then somewhat differently labelled, since there were additional segments then relied upon, which have been omitted from the Third Amended Statement of Claim). The particulars of identification, in each case, took the following form:

"(i) The plaintiff is and was at the time of publication the senior partner of the firm Ferrier Hodgson;
(ii) The plaintiff was identified by the defendants in the matters complained of in paragraphs 3 above and 9 below as the ‘Ferrier’ of Ferrier Hodgson.”

29 The defendants objected. The particulars were said not to comply with Pt67 r12(1)(d). Further, even were particulars ordered, one may doubt, according to the defendants, the capacity of the material to give rise to defamatory imputations "of and concerning" Mr Ferrier.

30 Dealing with the second aspect first, and having considered the authorities in respect of group defamation, I made the following determination ([2001] NSWSC 738 para 33):

"Here, I believe Schedule B is capable of satisfying each aspect of the test. The firm, Ferrier Hodgson, carries Mr Ferrier’s name. He is the Senior Partner. The statements made by Mr Jones are capable, in my opinion, of being viewed by the jury as being aimed at Mr Ferrier. But whether that be right or wrong, the class of persons within Ferrier Hodgson is small. It comprises thirteen individuals, including Mr Ferrier. In my view, Schedule B is capable of defaming each member of the class."

31 Returning to the issue of particulars, and compliance with Pt67 r12(1)(d), the plaintiff responded that, having regard to the size of the listening audience of Mr Jones' programme (then put at 190,000/200,000), the majority of the audience would have heard more than one segment and would therefore have identified Mr Ferrier from those segments in which he was named. This was the first hint of identification by reference to a class of persons (Pt67 r12(1)(d)), although the plaintiff, at that stage, did not argue the matter upon that basis. Referring to Levine J in Rogers v 2UE Sydney Pty Limited (unreported, 6.11.98), I determined the particulars complying with Pt67 r12(1)(d) should be supplied in respect of each segment where the plaintiff was not named. The particulars should specify, in the case of each person who heard the programme, and who identified the plaintiff, the extrinsic facts known to that person.

32 A Second Amended Statement of Claim was then filed reflecting this and other orders made on 12 September 2001 ([2001] NSWSC 738 para 121). That document, in November 2002, was replaced by the Third Amended Statement of Claim in the circumstances already described (supra paras 3 to 6).

Particulars of Identification in the Third Amended Statement of Claim

33 The Third Amended Statement of Claim was filed on 6 November 2002. The particulars of identification, accompanying those paragraphs where Mr Ferrier was not named, were set out in four paragraphs A to D, some having subparagraphs. In the course of argument, Mr Tobin QC, for the plaintiff, sought to amend paragraph B (substituting the word "listeners" for the phrase "the ordinary reasonable listener"). The defendants opposed that amendment. They did so upon the basis that, even in the amended form, paragraph B would not provide a proper particular of identification. The amendment would therefore be futile.

34 I will examine the particulars of identification, in the form now proposed by Mr Tobin, returning later to the issue of amendment.

35 In their amended form, the particulars of identification in respect of Segment [B] (the broadcast at 6.14 am on 12 March 1997) were as follows:

Particulars of Identification
A. (i) The plaintiff is and was at the time of publication a founding and senior partner of the firm of receivers and liquidators Ferrier Hodgson.
(ii) The plaintiff at the time of publication exercised significant influence and control within the firm Ferrier Hodgson.
(iii) The plaintiff is and was at the time of publication regularly and widely referred to in the media as a receiver and liquidator of the firm Ferrier Hodgson.
B. The plaintiff contends that listeners with knowledge of one or more of the particularised facts set out above would have identified the plaintiff from the matter complained of.
C. The broadcast of the matter complained of was heard by Stephen Gower Baker of 98 Woolwich Road, Woolwich, chartered accountant, who:
(i) knew that the plaintiff is and was at the time of publication a founding and senior partner of the firm of receivers and liquidators Ferrier Hodgson;
(ii) knew that the plaintiff, at the time of publication, exercised significant influence and control within the firm Ferrier Hodgson; and
(iii) knew that the plaintiff is and was at the time of publication regularly and widely referred to in the media as a receiver and liquidator of the firm Ferrier Hodgson.
D. (i) The plaintiff contends that the publication was to one or more persons who heard the plaintiff's name used by the first defendant during the first broadcast which commenced at or about 5.36 am on 12 March 1997 and thereby identified the plaintiff as being referred to in the second broadcast which commenced at or about 6.14 am. The plaintiff is unable to designate by name the person or persons who were thereby able to identify the plaintiff.
(ii) The plaintiff relies upon the size of the listening audience which was estimated;
(a) by ratings agency A C Neilsen in its Radio Survey no. 2, during the period beginning 26 January 1997 to 15 March 1997 at 492,000 different people during the broadcast who listened to Radio 2UE during Monday to Friday, 5:30 am to 9:00 am; and
(b) by the first defendant during the course of the first broadcast at 750,000 listeners
from which it may be inferred that one or more listeners identified the plaintiff in the circumstances referred to in D(i) above.

36 Taking the particulars in a somewhat different order, in summary the plaintiff relied upon three bases for the identification of Mr Ferrier. They are:

· First, what was referred to in argument as the Baker case (para C).

· Second, what was referred to as the conjunction case, that is, identifying as a class of listener (cf Pt67 r12(1)(d)) those who heard particular segments where Mr Ferrier was named, as well as a segment where he was not named (para D).

· Third, a case based upon notoriety, arising from publicity concerning Mr Ferrier, and his position in Ferrier Hodgson. Such publicity, according to the plaintiff, would serve to inform the public (including the audience of Mr Jones' programme) of one or more than one of the extrinsic facts in para A, thereby enabling such persons to identify Mr Ferrier in circumstances where his firm, Ferrier Hodgson, was mentioned, or there was reference to the Receiver of Rundles. Upon that basis, there was a further class of persons who were listeners to Mr Jones' programme, and who were aware of at least one of the extrinsic facts in para A. Such persons could, and would have identified Mr Ferrier in segments where he was not named (para B).

37 Dealing with the first of these alternatives, Mr Baker is to be called as a witness. He is said to know the extrinsic facts (para A). He is also said to have heard each of the programmes in Segments [B] to [F]. Knowing these facts, and hearing those programmes, he is said to have identified Mr Ferrier in Segments [B], [C], [E] and [F]. Upon the basis of his evidence, it is likely that there will be a case to go to the jury. The issue for the jury will be whether they accept Mr Baker (that he knew the extrinsic facts, that he heard the broadcasts, and that he identified the plaintiff), and if they do, whether it was reasonable for him to identify Mr Ferrier in the circumstances (Steele v Mirror Newspapers Limited (1974) 2 NSWLR 348, per Samuels JA at 373/374; cf Ferrier v Jones [2001] NSWSC 738 paras 23 and 24). If Mr Baker is accepted, and his identification of Mr Ferrier is reasonable, the inference may be open that other persons acquainted with the plaintiff, who heard the broadcast, also identified Mr Ferrier (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30 at 36).

38 Moving to the conjunction case, the plaintiff seeks to identify a class of listener who heard more than one segment of Mr Jones' programme. They heard a segment where Mr Ferrier was named (Segment [A] or [D]), as well as a segment where Mr Jones referred either to Ferrier Hodgson (Segments [B], [C] or [E]) or to the Receivers of Rundles (Segment [F]). Such listeners would be able, according to the plaintiff, to identify Mr Ferrier as the person in Ferrier Hodgson responsible for the matters described by Mr Jones (cf Broome v Richardson & Anor [2002] NSWSC 446, per Simpson J at paras 66, 67, 71 and 72).

39 The Statement of Claim seeks to couple the following segments:

· Segment [B] (at 6.14 am on 12 March 1997), where Ferrier Hodgson is referred to, with Segment [A] (at 5.36 am) where Mr Ferrier is named (Statement of Claim para 5).

· Segment [C] (at 7.15 am on 12 March 1997), where Ferrier Hodgson is referred to, with Segment [A] (at 5.36 am) where Mr Ferrier is mentioned (Statement of Claim para 7).

· Segment [E] (at 7.15 am the next day, 13 March 1997), where Ferrier Hodgson is referred to, and either Segment [A] (at 5.36 am the previous day) or Segment [D] (at 7.50 am) where Mr Ferrier is referred to by name (Statement of Claim para 11).

· Segment [F] (at 7.45 am on 13 March 1997), where the Receivers of Rundles are referred to, and either Segment [A] (at 5.36 am) or Segment [B] (at 7.50 am) where Mr Ferrier is named.

40 One assumes that the pleader intended, with respect to Segment [C], to rely upon either Segment [A] (5.36 am) (pleaded), or Segment [D] (7.50 am) (not pleaded), as was done in respect of Segments [E] and [F] the next day. In the context of radio, and two segments separated by 35 minutes, I do not believe it matters that the segment which is said to provide the identification comes after the segment where Mr Jones simply referred to Ferrier Hodgson (cf Grappelli & Anor v Derek Block (Holdings) Ltd & Anor [1981] 1 WLR 822; Baltinos v Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85). If that is right, the Statement of Claim requires amendment. The plaintiff should have leave to make that amendment.

41 As I understand the submissions of Mr Reynolds, on behalf of the defendants, the defendants have no difficulty with the plaintiff pursuing either of these cases, subject to some matters of form (in respect of particulars) to which I will later return.

42 The real difficulty concerns the third case identified by the plaintiff, the notoriety case. The defendants assert, first, that there has been significant variation in the way in which the plaintiff has put his case, when the pleading is compared to statements made in oral argument. Secondly, that in any event, there is no basis upon which para B can be supported, nor any of the variants on such a case. I will now turn to that issue.

The Notoriety Case

43 It is instructive to restate the test in respect of identification, where the plaintiff is not named. Isaacs J in David Syme & Co v Canavan (1918) 25 CLR 234 said this: (at 238)

"The plaintiff was not specifically named. The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him." (emphasis added)

44 That question gives rise to two issues, one of law and one of fact. Viscount Simon LC said this in Knupffer v London Express Limited [1944] AC 116: (at 121)

"There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact - does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?"

45 Lord Morris in Morgan v Odhams Press Limited (1971) 1 WLR 1239 said much the same thing in these words: (at 1252)

"The question for the judge at the end of the plaintiff’s case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plaintiff, then there would be nothing to be left to the jury."

46 Where the plaintiff is not named, how might the extrinsic facts be proved, in order to satisfy the Judge that they are capable of referring to the plaintiff? Is it necessary to call a witness? Can the plaintiff, instead, rely upon inference arising, for instance, from the tender of documents?

47 Jordan CJ in Consolidated Trust Co Ltd v Browne (supra) said this: (at 91)

"This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as 'the Prime Minister of Australia', it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated."

48 The Chief Justice added: (at 91)

"But the less revealing the description the greater the danger of omitting proof of identification. It is hardly necessary to add that it would be, to say the least, imprudent for a plaintiff who expected to obtain substantial damages to abstain from proving the scope of the publication and its effect, in accordance with the usual practice in actions of defamation."

49 The defendants suggested that this was not an identification case at all. Rather, it was a case of "the natural and ordinary meaning of the words said in the light of notorious facts". Certainly, the words of Jordan CJ can be read as supporting that view.

50 However, in circumstances where the defamatory material does not name a person (including the Prime Minister), but refers to him by his office, or in some other way, I believe that there is an identification issue. There are, at this moment, five persons alive who occupied the office of Prime Minister. The context may make it clear that the author is referring to the incumbent, rather than one of his predecessors. In the particular case, however, there may be an issue as to precisely when the person held that office. That issue can be addressed by the tender of public documents, or by the Court taking judicial notice of that notorious historical fact. In such a case, the antecedent question of law - can the article or broadcast be regarded as capable of referring to the Prime Minister? - would obviously cause no difficulty to the plaintiff.

51 Ordinarily the requirements of identification are met by the plaintiff calling as witnesses acquaintances who heard the broadcast (or read the article), and who linked the plaintiff with the words used. However, it may be inferred from documents or other evidence that the words used are capable of referring to the plaintiff. In Barbaro v Amalgamated Television Services Pty Ltd (supra), a television programme dealt with the findings of the Royal Commission into the disappearance of Donald Mackay, the anti-drug campaigner. The report identified Dominic Sergi as a person who was directly or indirectly responsible for the murder of Mr Mackay. The plaintiff, Dominic Barbaro, was interviewed in the course of the programme. He was asked whether he was Dominic Sergi, and he said that he was (saying later that he was confused). Hunt J said this: (at 35)

"As the plaintiff was not identified in the matter complained of by his own name (Dominic Barbaro), he was obliged to establish that persons saw the television programme who were able to identify him as the person shown, and thus the person said to be the Dominic Sergi named in the Royal Commission Report as one of the six men responsible, directly or indirectly, for the murder of Donald Mackay."

52 The programme was shown in a number of States. The plaintiff sought damages for the publication in each State. Witnesses from New South Wales and Victoria were called who saw the programme, and identified the plaintiff. Witnesses were not called from other States where the programme was transmitted, and in respect of which a claim was made. The defendants, in these circumstances, made a submission in the following terms: (at 36)

"The defendant has submitted that, where a plaintiff is not identified by name and so relies upon knowledge of some extrinsic fact to establish publication, he must call at least one witness (in relation to each jurisdiction in which he alleges publication) who read (or saw) the matter complained of and who had knowledge of that extrinsic fact; a plaintiff is not, the defendant submitted, entitled to ask the jury simply to infer that such a person with that knowledge would have read (or seen) the matter complained of. It was argued that this necessarily followed from the decision of the Full Court in Consolidated Trust Co Ltd v Browne ."

53 His Honour added: (at 36)

"The defendant conceded that, once a witness was called who gave evidence of reading (or seeing) the matter complained of with knowledge of the relevant extrinsic fact, the jury could infer that others would also have read (or seen) it with that knowledge. But it was, the defendant submitted, an inflexible rule that at least one witness must be called to prove publication where the plaintiff is not named in the matter complained of, and the plaintiff may not rely simply upon an inference that the matter complained of would have been published to a person with that knowledge. In the extempore judgment which I delivered during the course of the argument, I rejected that submission."

54 The extempore judgment of Hunt J included the following: (at 54)

"The argument on behalf of Consolidated Trust Co Ltd in that case was that it was the owner of a building in which the tenants were said in the matter complained of to be required to comply with an offensive set of rules, and that it was open to the jury to infer that persons with knowledge of that extrinsic fact had read the defendant's newsletter in which the matter complained of was published. That argument was rejected (at 91; 9) not because the plaintiff could not prove such necessary facts by inference, but because the extrinsic fact relied upon was not of sufficient notoriety that it could fairly be presumed that anybody to whose notice the matter complained of came would know that the plaintiff was the owner of the building ." (emphasis added)

55 A comment in similar terms was made by Studdert J, in respect of the facts before him, in Hall & Ors v Jones & Anor [2000] NSWSC 39. That was also an action for defamation against Mr Alan Jones and Radio 2UE. There were four plaintiffs, each members of the National Rugby League Judiciary. The programme was critical of the judiciary's treatment of a particular player. Mr Hall, the first plaintiff, was named. The other three plaintiffs, each members of the judiciary, were not. The Statement of Claim provided the following particulars of identification in respect of those plaintiffs not named: (para 24)

"(b) The second plaintiff is a member of the NRL judiciary panel, an ex-footballer and a former player for Newcastle (the Newcastle Rugby League Football Club).
(c) The third plaintiff is a member of the NRL judiciary panel, an ex-footballer and a former player for Souths (the South Sydney Rugby League Football Club).
(d) The fourth plaintiff is the third member of the NRL judiciary panel."

56 Further particulars were sought, and provided in these terms: (para 25)

"'The NRL Judiciary consists of the second, third and fourth plaintiffs. That fact is a matter of common knowledge, as a consequence of numerous mass media publications since they were appointed. Each of the second, third and fourth defendants is a person of widespread fame in the community interested in rugby league - initially for their sporting achievements and later for their roles in the judiciary.'
31 January 2000:
'The identifying material on which the plaintiffs rely occurred in earlier mass media publications, including publications by the defendants. The number of persons to whom the plaintiffs were identified is too great for the plaintiffs to be able to provide a list of their names and addresses.'"

57 The defendants objected to the insufficiency of the particulars. At the hearing before Studdert J, the plaintiffs tendered an extract from The Australian Newspaper which named each member of the judiciary panel shortly after his appointment. Studdert J said this: (para 31)

"It seems to me that the present case is far removed from the example considered by the Chief Justice in Browne. Having reflected upon the competing submissions, I have not been persuaded by argument that the knowledge necessary to link these plaintiffs with the broadcast would have been so widespread at the time as to render it unnecessary to call evidence of the type considered by Samuels JA in Steele's case in the passage to which I made earlier reference. Even if there was a widespread knowledge of the plaintiffs as former players, it would by no means follow that there was widespread knowledge that any one of them was a member of the NRL Judiciary panel at the relevant time, and the need for such awareness was critical to link the second, the third and the fourth plaintiffs to the subject matter of the publication of which complaint is made." (emphasis added)

58 His Honour ordered that the second, third and fourth plaintiffs provide particulars of identification as required by Pt67 r12(1)(d). He said this: (para 38)

"In my opinion the defendants are entitled to particulars as to identification. The plaintiffs should give the names and addresses of some persons who recognised the unnamed plaintiffs and to whom the matter complained of was published. If it is the plaintiffs' case that there was a publication other than to persons who the plaintiffs are able to nominate by name and address, the plaintiffs should nominate such unnamed persons by description as a class, and in respect of this class the plaintiffs should specify the facts and matters that are relied upon in asserting that this class had knowledge of the relevant facts."

59 In the context of publication through the mass media, certain facts may become so widely known that they are capable of linking an individual to a publication, even where he or she is not named. That is the sort of case Scarman LJ appeared to have had in mind in Fullam v Newcastle Chronicle and Journal Ltd & Anor [1977] 1 WLR 651. The plaintiff in that case had been a Roman Catholic priest. In 1962 he gave up the priesthood and became a school teacher. He married in 1964 and his wife had a child in 1965. Some years later, in 1973, he was appointed the Deputy Head Master of a school. A local newspaper published an article saying that he was a former Roman Catholic priest who had left the parish very suddenly, and married. The plaintiff alleged a true innuendo arising from this article, that whilst he was a priest he had an association with a woman and became the father of her child. Lord Denning MR described that imputation in these terms: (at 654)

"Now that imputation was very far-fetched. No one could possibly have derived it from the article itself. It would need someone with very special knowledge - and very limited knowledge - to draw any such imputation from the article."

60 The defendant moved to strike out that part of the Statement of Claim relating to the true innuendo, or alternatively, to secure an order for further particulars. Lord Denning stated (at 655) that, under the Rules, where a true innuendo (referred to as a "legal innuendo") was relied upon, the Statement of Claim must specify the particular person or persons to whom the material was published and the special circumstances known to that person or those persons. He added: (at 655)

"... there is no exception in the case of a newspaper: because the words would not be so understood by the world at large; but only by the particular person or persons who know the special circumstances."

61 Scarman LJ approached the question somewhat differently. He identified the issue in these words: (at 657)

"The point is a short one, but devoid of direct English authority. It is whether in an action for libel against a newspaper, where extrinsic facts are relied on to support a 'true' innuendo, a plaintiff must both plead that the extrinsic facts were known to some of the newspaper's readers, and give particulars of, i.e., identify in his pleading, the readers who, he alleges, knew the relevant facts."

62 Referring to the case of a true innuendo, arising only by reason of extrinsic circumstances, Scarman LJ stated the Rule in these terms: (at 657)

"It is obvious that a material fact in such a cause of action is that the persons to whom the words were published knew the extrinsic facts. In principle, therefore, their knowledge, being a material fact, should be pleaded."

63 The issue was whether there was an exception to that Rule, where the publication was by a newspaper (at 658). The submission made on behalf of the plaintiff was summarised in these terms: (at 658)

"Mr Hartley, for the respondent however submits that there are two features which put this case outside the general rule: first publication by newspaper; and, secondly, that the extrinsic facts relied on are within the public domain, being matters of public record and of common knowledge, one may infer, amongst those who are acquainted with the plaintiff."

64 Scarman LJ appeared to acknowledge that there could be such a case. He said this: (at 659)

"There may well be cases in which it would not be necessary to plead more than the fact of publication by newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts.
For instance, the facts may be very well known in the area of the newspaper's distribution - in which event I would think it would suffice to plead merely that the plaintiff will rely on inference that some of the newspaper's readers must have been aware of the facts which are said to give rise to the innuendo."

65 His Lordship, however, rejected the plaintiff's contention on the facts. He agreed with Lord Denning that the imputations pleaded were far-fetched.

66 The issue was taken up in Grappelli & Anor v Derek Block (Holdings) Ltd & Anor (supra), where Dunn LJ said this: (at 830)

"I would only add this, that I agree also with Scarman LJ that there may be cases which are exceptions to that rule, such as the cases that he refers to at p 659 of the report, where the publication is in a national newspaper with a very wide circulation, and the only reasonable inference is that some of the readers of that newspaper must have knowledge of the facts which are said to give rise to the innuendo."

67 Assume that, in the context of the recently concluded Australian Open Tennis Tournament, there had been a broadcast which did not refer to the players by name, but by reference to their rankings, either as the Number 1 player in the world, or the Number 2 player, etc. Because of the publicity which preceded the Tournament, many, if not most, Australians would have been capable of immediately attaching a name to such a description. The Number 2 player, as it happens, came from overseas. Assuming, hypothetically, that some disparaging comments were made about him, he may not know anyone in this country who heard a broadcast in which he was referred to by his ranking.

68 In order to demonstrate that the words spoken were capable of referring to that player, need he do more than call a witness, or tender a document which established his place in the world rankings at that time, and provide evidence of the extensive publicity given to that information at a time reasonably proximate to the broadcast? I believe such material, assuming it is comprehensive, would be capable of giving rise to an inference that for some listeners the broadcast identified that player. It would then be a matter for the jury to determine whether it should be inferred that a number of listeners, as a matter of probability, must have known of the plaintiff's ranking as a tennis player, and knowing that fact, would reasonably have identified him with the words used in the broadcast.

69 In this case, in those segments where Mr Jones referred to Ferrier Hodgson, the plaintiff wishes to establish that listeners would immediately have associated him with that firm. They would therefore have attributed responsibility to him for the events described by Mr Jones in which Ferrier Hodgson played a part. Now, it is not difficult to think of examples where there has been significant publicity (often advertisements), linking particular individuals with particular entities, such that mention of one is capable of triggering an association with the other. Some years ago Mr Bob Ansett appeared regularly as the public face of the company of which he was then head, Budget Rent-A-Car. Attributing to Mr Ansett responsibility for the actions of Budget Rent-A-Car, in those circumstances, may perhaps not be difficult, or at least such a view would be open to a jury. There are other more recent examples (Harvey Norman, Aussie Home Loans, etc).

70 Each case will depend upon its own facts. The notoriety or relative obscurity of the individual will no doubt depend upon the intensity and duration of publicity. The simplicity or otherwise of the "public fact" said to arise from that publicity, upon which the plaintiff relies to establish that the publication is "of and concerning" him (or her), will also be relevant.

71 An illustration is furnished by Rogers v 2UE Sydney Pty Limited (unreported, Levine J, 6.11.98). The plaintiff was an ophthalmic surgeon who operated upon Mrs Whitaker. Mrs Whitaker was blind in one eye and, after the surgery, developed a condition known as sympathetic ophthalmia which led to her losing the sight of the other eye. She later sued her surgeon for negligence in failing to warn her of the risk of sympathetic ophthalmia. The issue was the subject of comment on radio. The surgeon (Dr Rogers) was not referred to by name. He later commenced an action for defamation in which the particulars of identification referred to the fact of the operation, the litigation, including the various appeals, and the extensive publicity given to that litigation in the electronic and written media. Upon that basis it was suggested that the plaintiff could be identified and had been defamed by imputing that he had "blinded Mrs Whitaker by negligently and carelessly carrying out an eye operation on her".

72 The defendant sought particulars of identification required by Pt67 r12(1)(d). In these circumstances his Honour said this: (at 7)

"The plaintiff having, in an extremely focussed way, particularised the matters within the knowledge of identified persons, must, in the circumstances of this case, indicate to the defendant his case on that component of the cause of action that the matter complained of conveying this particular imputation was 'of and concerning' him. This the plaintiff hitherto has failed to do. It is not open to the plaintiff and thus, cannot be fair to (the) defendant, in effect to sit back and say 'that's the best we can do' and whatever else there may be will be revealed at the trial or in good time beforehand."

73 His Honour added: (at 7)

"I am not persuaded by reason, first, of the 'narrow focus' as I have described it of the facts said to be within the knowledge of the nominated people; second, the relationship of those facts to the pleaded imputation; and thirdly, the lapse of time between the date of the publication complained of and the publication annexed to the affidavit of Mr O'Brien that it is appropriate for the plaintiff to rely on this case as an exception, if there be one, as a case of a mass media publication where the only reasonable inference is that some of the listeners must have knowledge of the facts identifying the plaintiff (cf Grappelli supra at 830 per Dunn LJ)."

The Application of these Principles

74 The defendants urge the same approach in this case. The plaintiff submitted, however, that Rogers could be distinguished. The extrinsic facts, said to be in the public domain, as a consequence of mass media coverage, were simple. Essentially, what was known was the association of Mr Ferrier as a liquidator or receiver with Ferrier Hodgson, a firm that bares his name. Assuming a listening audience of between 500,000 and 700,000, it could be inferred, according to the plaintiff, that some listeners must have known these facts. Knowing that, on the plaintiff's argument, the words of Mr Jones were capable of leading reasonable people to conclude that the material published referred to him.

75 The defendants responded to that submission in a number of ways. First, they denied that there was an exception, in cases concerning the mass media. Scarman LJ in Fullam spoke of the "possibility" of there being cases which fall outside the general rule. Secondly, if there was an exception, it was framed in terms of "the only reasonable inference" that certain readers must have knowledge of certain facts. In the present case that is entirely speculative. The particulars, according to the defendants, were incapable of supporting a case that the only reasonable inference was that some of the listeners to Mr Jones' programme must have known the facts specified. Thirdly, the articles identified as the basis for the plaintiff's notoriety, appearing in The Australian Financial Review (eight articles), The Daily Telegraph (one article). The Sydney Morning Herald (four articles) and The Sun Herald (one article), were unconnected with the radio audience of Mr Jones. There was no basis for inferring an overlap between the readership of these publications and the audience of that radio station. Fourthly, and in any event, the publications tendered, which were said to give rise to the widely known facts, did not in fact do so. They did not establish (in terms of para A(i)) that Mr Ferrier was the founding and senior partner of Ferrier Hodgson. They did not deal with, let alone establish, that Mr Ferrier exercised significant influence and control within the firm Ferrier Hodgson (Particular A(ii)). Nor did the publications establish that Mr Ferrier was widely and regularly referred to as a "receiver" (as opposed to a "liquidator") (part of Particular A(iii)).

76 I accept that as a consequence of publicity through the mass media certain facts may become so widely known that they are capable of establishing an extrinsic fact, which, in turn, may be capable of linking an individual to a publication where he or she is not named. I also accept that this case is very different from, and much more simple (in terms of extrinsic facts) than, Rogers v Radio 2UE (supra). I further accept that the suggestion that Mr Ian Ferrier is a liquidator associated with a firm of liquidators, Ferrier Hodgson, is the sort of (simple) fact that may, through publicity, become widely known, and therefore fall within the exception. With some hesitation, I am inclined to the view that the publicity relied upon is not such as to be capable of giving that fact the sort of notoriety that may bring into operation the exception. There is no evidence which in any way links the publications relied upon with the listening audience of Radio 2UE, apart from their association with Sydney. There is no evidence of the composition of Mr Jones' listening audience, in terms of occupation, which may support an inference of knowledge concerning business affairs.

77 Further, the extrinsic facts provided in the particulars of identification go beyond the simple assertion that Mr Ian Ferrier was a liquidator associated with Ferrier Hodgson. They include the suggestion that he was the senior and founding partner, and that he exercised significant influence and control within that firm. I do not believe, based upon the articles identified, that those facts emerge or had sufficient notoriety, such that it could be said that some of the listeners must have had knowledge of them, which could have been used as a basis for identification.

78 I do not believe, therefore, that paragraph B of the particulars of identification, even were it amended, is available on the material tendered. Paragraph A is linked to paragraph B. It sets out the extrinsic facts said to be widely known to listeners. It has no relevance to paragraph C (relating to Mr Baker) where the extrinsic facts known to Mr Baker are set out. I therefore strike out paragraphs A and B of the particulars of identification where they accompany paragraphs 6, 8, 12 and 14 of the Second Further Amended Statement of Claim.

79 I believe it appropriate, nonetheless, to give the plaintiff leave (should he wish to avail himself of it) to refine the extrinsic facts and supplement the material said to make such facts sufficiently widely known to be capable of identifying Mr Ferrier.

Matters of Form

80 There remain a number of complaints by the defendants concerning the form of the particulars of identification. Objection is taken to the form of the extrinsic fact, said to be known to Mr Baker, appearing in paragraph C(ii), which, for convenience, I repeat:

"C(ii) knew that the plaintiff, at the time of publication, exercised significant influence and control within the firm Ferrier Hodgson; "

81 It is suggested that, as a particular, it is vague to the point of being meaningless. Significant by what standard? What kind of influence? What is meant by control? However, I regard the particular as adequate. Without knowing the precise partnership arrangements, and even assuming all partners had an equal vote, nonetheless, certain figures may exercise a commanding influence within a group. An example from another era would be Sir Norman Cowper of Allen Allen and Hemsley, solicitors. There are many other illustrations. The age of the person, their seniority, their expertise, their personality, their public profile, and other matters, may each contribute to their stature within the group. However, these are matters of evidence. The concept is plain enough. Having said that, insofar as the plaintiff intends to prove this aspect through the tender of documents known to Mr Baker, those documents should be furnished to the defendants at least seven days before the s7A hearing.

82 In addition, complaint is made about paragraph C(iii), which also relates to Mr Baker and is in these terms:

"C(iii) knew that the plaintiff is and was at the time of publication regularly and widely referred to in the media as a receiver and liquidator of the firm Ferrier Hodgson."

83 The defendants object that publications after 12 or 13 March 1997 are irrelevant. However, the plaintiff in fact has identified the publications relied upon. All pre-date the first broadcast on 12 March 1997. The words in C(iii), "is and" can therefore be ignored (or deleted from the Statement of Claim, when amended).

84 The defendants further complain that paragraph C does not state that Mr Baker, having heard the broadcasts, and knowing the extrinsic facts, identified the plaintiff. However, that is the clear implication, which was reaffirmed by Mr Tobin in argument. Although the matter is not in doubt, when the Statement of Claim is amended, that assertion should be included.

85 Turning to paragraph D, complaint is made about each subparagraph. Again it is convenient to reproduce the particular in order to understand the defendants' complaint, using paragraph 6D(i) as an illustration. It is in these terms:

"6D(i) The plaintiff contends that the publication was to one or more persons who heard the plaintiff's name used by the first defendant during the first broadcast which commenced at or about 5.36 am on 12 March 1997 and thereby identified the plaintiff as being referred to in the second broadcast which commenced at or about 6.14 am. The plaintiff is unable to designate by name the person or persons who were thereby able to identify the plaintiff."

86 The defendants complain that there is no statement of the extrinsic fact or facts relied upon, and no specification of the class of persons who made the identification (as required by Pt67 r12(1)(d)). I should have thought the class was obvious enough. I assume the conjunction case concerns those persons who formed part of Mr Jones' audience who listened to him more or less regularly each day at certain times (cf Simpson J in Broome v Richardson& Anor (supra) para 38). However, I agree the class should be specified. Further, the request for extrinsic facts known to each member of that class, I take to be a request for the facts which would have emerged for a listener to one programme, where Mr Ferrier was named, which may have enabled that listener to identify Mr Ferrier in a later (or earlier) segment, where he was not named. That seems to me a reasonable request since segments differ one from another. The information available to listeners varied, depending upon the particular conjunction which is relied upon.

87 Hence, the plaintiff should provide the following in respect of paragraph D(i):

(i) A specification of the class, or classes relied upon in respect of paragraphs 6D(i), 8D(i), 12D(i) and 14D(i).

(ii) In respect of each class, in each paragraph, the plaintiff should specify the facts known to members of that class which would have enabled them to make the identification of the plaintiff.

88 Moving finally to paragraph D(ii) of the particulars of identification, the defendants make a number of complaints. It is unnecessary to set out that paragraph in order to deal with the defendants' argument (supra para 35). The plaintiff relies upon the size of the listening audience as part of the conjunction case. The paragraph specifies that audience at 492,000 listeners according to the ratings given by A C Neilsen, or 750,000 claimed by the first defendant. The defendants object, first, that Mr Jones did not in fact assert that his audience was 750,000. That, however, is not a valid objection. The plaintiff is providing particulars, setting out the case he intends to prove. He may or may not succeed. However, Mr Jones does, as the plaintiff points out, arguably allude to a listening audience of 750,000 in Schedule A, para 17.

89 Secondly, it is alleged that the particulars should state the facts, not the evidence. No doubt that is true. However, the plaintiff has helpfully provided the source for his assertion of fact. It appears to me their particulars are adequate. The relevant assertion in each case is the size of the listening audience. I see no substance in the defendants' complaints about paragraph D(ii).

Orders

90 I therefore make the following orders:

1. The plaintiff has leave to amend imputations 4(b), 8(b), 10(b), 12(b) and 14(b).

2. Imputation 8(c) is struck out. The plaintiff has leave to replead.

3. The plaintiff has leave to amend paragraph 7 to add Segment [D] (7.50 am).

4. Paragraphs A and B of the particulars of identification accompanying paragraphs 6, 8, 12 and 14 are struck out.

5. The plaintiff has leave to refine the extrinsic facts and supplement the publications relied upon and, upon that basis, add to the particulars of identification if so advised.

6. The plaintiff should, not later than 7 days before any s7A hearing, serve upon the defendants any documents said to be known to Mr Baker upon the basis of which he believed particular C(ii) in the particulars of identification.

7. Paragraph C(ii) should be amended to delete the words "is and". Paragraph C should be amended to include the assertion that Mr Baker identified the plaintiff.

8. In respect of paragraph D(ii) in the particulars of identification, the plaintiff should provide the following:

(i) A specification of the class, or classes relied upon in respect of paragraphs 6D(i), 8D(i), 12D(i) and 14D(i).
(ii) In respect of each class, in each paragraph, the plaintiff should specify the facts known to members of that class which would have enabled them to make the identification of the plaintiff.


9. On the question of costs, the defendants have succeeded on some issues and failed on others. Their successes probably exceed their failures. However, I am inclined to think that the appropriate order is each party pay their own costs.

**********

Last Modified: 02/21/2003