Kruse, David v Lindner, Anton

CATCHWORDS

Libel - Advertisement i n newspapcr - Reference t o and

ident i f icat ion

o f p l a i n t i f f - Lack

o f

evidence thereof

' hcidence

tendered

on question o f damages - General. and

special damages - Hearsay evidence.aclnissible as par t o f

res gesta - Evidence put on appeal on ground on which it

was

not pu t a t

first instance.

No. 11 of 1977

Coram: Smithers. Nimmo and Connor JJ.

Canberra

IN THE F??DERAL COURT OF AUSTPALIR

AUSTRALIAN CAPITAL TXRHITORY	No. 11 of 19'77
bISTRIC? mXSTHY
GENERAL DIVISION

I	Between:
And :

@RDER

-.- --

JUDGES MAKING ORDER:	Smithers, Nimmo and. Connor JJ.
DATE OF ORDER:	i4tkiilpril 1978
WHERE MADE:	Canberra
THE COURT CRDERS THAT:

1. The Appeal be dismissed with costs.

No.

l1 of

1 9 7 7

GENERAL DIVISION

I J

* l

I \

DATE: 14 April 1978

Smithers, J.

I ,	I	1
I
I .
l

.	I
S	!

At'all material times the appellant has carried

on the business

of selling car radios and associated equipment

by retail in the suburb

of Fyshwick in the Australian Capital

Territory.

He carried on that business under the name

"Polymedia Car Stereo".

On 10th January

1976 the rcspondent caused to be

published in "The Canberra Times" newspaper an advertisement

fn the following terms:-

"Warning to the Public!

Shop around

before you buy at

Polymcdia Car Stereo,

37 Wollongong Street, I.'yshwick.

'. .

In respect of this publication

the appellant comcnced

proceedings by Action No. S.C. 415 of 1376 in the Supreve

Court of the Australian Capital Territory. It was alleged

in the Statement of Claim that by reason

of the publication

of the words set

out above he had been greatly injured in

his

character, credit and reputation and

in the way

of his "said

occupation". The action came

on f o r hearing on 21st June

1977.

: Judgment was entered for the respondent and the appcllant was

I ,

\ ' ordered to pay to the respondent his costs

of and incidental

'to the action.

Evidence called for the a2pellant established that

at ill material times the appellant was the sole proprietor

and also the registFred proprietor

of a business carried on

at 57 Wollongong Street, Fyshwiclc, under the business

name

. of "Polymedia Car Stereo'' and that the nature

of the business

SO carried on was that of

a retailer of car radios

and

associated equipment. However, in the course

of the hearing

no evidence was called which showed or tended to show that

any person or persons who

had seen the advertisement believed

or understood that the appellant was the person who owned the

business or the person responsible for the manner

ih which the

business was conducted except certain hearsay evidence which

is discussed hereunder. It would seem that this was no accident

but was a consequence of the appellant' S case being conducted

on the basis that the reference in the advcrtisenwnt

polymedia Car Stereo was

to be treated for all material

purpcses as

a reference to the appellant himself

once it

was proved that the appellant was the proprietor	or registered
proprieior thereof.

This

was a basis

which

did

not

cormnend

itself to

the learned trial Judge who on

21st June 1977 gave judgnent

1 '

as follows:-

** This

case turns on

question of fact. The words

do not expressly refer to the plaintiff.

OP the

evidence before me

I do not find that any person

understood the words, reasonably or otherwise,

referring to the plaintiff. On that ground the

.	plaintiff must fail. The action is dismissed."

-	-.	- _	-
-

No fault can be found with this assessment of

the situation

as the evidence stood

at the close of the case.

From this judgment the appellant has appealed

this Court.

Mr. Kelly, Q.C. submitted on behalf of the appellant

that the learned Judge was

in error in failing

to find that

there was evidence that the appellant was the person referred

t o in the writing alleged to

be defamatory, namely

the advertisement

b.	Kelly submitted that any person reading the advertisement

%ut logically have been aware that

the person or persons

I .

referred to and against whom the warning

vas given, were

tfLe

proprietorq or

was the proprietor, of the film trading as

Polyrnedia Car Stereo"

and that the advertisement adversely

affected the reputation of the

man or the men who actually

o>med the business name

and carried 011 the business under

that name

and that each such person was entitled

to recover

- 1

against the defendant for the injury to his repu'iation although

no person to whom the advertisement was published knew who

that proprietor or any

of those proprietors were, or could

by reference to any facts in their knowledge reasonably identify

any person known to them as being such proprietor

or one of

such proprietors. But this submission cannot be supported.

It -is of the essence

of the tort of defamation that

the person defamed be able to show that his reputation has

suffered by reason of the publication complained

of. Unless

the publication points to

some person as the person against

whose reputation the aspersion

in the publication is made

with such particularity

that a reader without additional

, knowledge or with additional knowledge can and does identify

some particular person as the person whose reputation is the

subject of the aspersion, then nobody is

defamed.

It is said in Gatley on Libel and Slander (7th

ed. 1974) paras 281-282:-

. .

"To succeed in an action of

defmation the plaintiff

must not only prove that the defendant published

the words and that they are defamatory: he

must 21.~0

identify himself as the person defamed

... The test

of whether words that do not specifically name ths

plaintiff refer tJ him or not is this: Are they

S ch as reasonably in the circumstances would

lcud

persons acquainted with the plaintiff

be l i eve

that he was the person referred

to? ... It is not

necessary that all the world should understand

t.he

libel; it is sufficient if those who knev the

plainti::

can make out that he is the person meant',

i.e. 'meaa-t

by the words employed'

l ' .

As was said by Lord Justice Alverstone in

Jams

n If in the opinion of

a jury, a substantial nunher

.	of persons who knew the plaintiff, reading the article, would believe that it refers to him, in

- my opinion an action, assuming the language

to be

defamatory, can be maintained;

... If upon the

evidence the jury are of opinion that: ordinary

sensible readers, knowing the plaintiff, would

be of opinion

that the article referred

to him,

the plaintiff's case is made out.

In the relevant context the concept of knowing or being

acquainted with the plaintiff

is a broad one and extends

v far beyond knowledge and acquaintanceship that is close or

intimate.

In this case, if it

had been shown that some person

or persons knowing the plaintiff also knew

that he was the

proprietor of Polymedia Car Stereo then it might be said that

---

the

advertisement although not referring tc the appcllmt

name, was such as reasonably in the circumstances

would lead

that

person or those persons

t o bel ieve that

tHe

appellant

the person referred

t o i n the advertisement

and ix respect

of whom t h e warning was issued. Reference

may be made t o t i e

words of

&on.

J. (as he then

was) in Lee v. Wilron m d

MacKinnon

(1934) 51 CLR 276 a t 290 where af ter d iscuzsing

passages i n the

speeches

o f the members of the House of

Lords

i n Hulton v.

Jones

f l 9 1 g A.C.

20, he said:--

\ \ ' # '

"These passages ... express a t e s t which makes the

t o r t

l ibe l cons is t in the opera t ion

deSanntory

matters

an actual disparagement

t h e p l a m t i f f l s

\ I	reputation.

These words were used i n the context

o f a discussion a s t o

whether

actual disparagement

o f

reputation although unintended

andacc identa l . was

enough t o found an action f o r damage f o r

that

disparagement,

but

t h e t e s t

s o stated specifies not only

what

is adequate but

slso what is essent ia l . There can

be n o

actual disparagement until it is shown tha t some reader of the

-publication knowing the plaint i f f bel ieved that it referred t o

the plaintiff .

The High Court

decision

i n

sungravure Ptv.

Ltd v.

Middle East Airlizes Airliban

S. .4 .L.

(1975)

C.L.R.1.

indlcates that the s i tuat ion

d i f fe ren t in cases

depending upon the Defamation Act, 1958 (N.S.W.),

S.5.

No person who

knew

the appellant gave evidence and

accordingly it was never shown t h a t any person knew that the

W e l l a n t was the proprietor of Polymedia Car

Stereo. A s a resul*

there wee no evidence that the appellant

was the person

against whom

the warning in the advertisement was issued and

I .

accordingly no evidence of actuai disparagement

c;f the appellanL.

Mr. Kelly referred the Court

t o a number of

authorities including Consoljdated Trust Company Ltd.

v . 13rotml(;

(1949) 49 4.R. (N.S.W.) 86, Godham v. James Inglis & Co. Ltd.

(1904) 2 C.L.R. 78, Le Fanu v. Malcolmson (1848) IH.L.C.637 9E.R.ylo

and Syme v. Canavan

(1918) 25 C.L.R..

2 3 4 .

However, I find

nothing in any of these authorities to throw

doubt on the

\ l

propositions set forth above. Indeed, as Mr.

Kelly conceded,

the opinion of

the Full Court of New South Wales (Jordan,

C.J.,

Davidson and Street,

JJ.) in Consolidated Trust Company

JLtd.

v. Browne (supra) is clearly against him	and contains the
following passage:-

- -

I t If the matLer complained

of does not refer

by nane

to the person alleged to

be defamed ... and 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 the circum-

stances."

((1949) S.R.(N.S.W.)

at 89 per Jordan C . J . )

Accordingly, i-t is my view that on the evidence before

the learned Judge no fault

is to be found in his reasons €or

judgment.

It is said however that in the course of the hearing

the learned Judge rejected certain ecidcnce which the plaintiff

proffered and that evidence.if admitted would have proved

that the published words were understood by one

o r more

persons to refer to the appellant. The evidence said to

have been proffered was evidence which would have been part

of the appell.mt's

own tes':imony. The content of :he proposed

testimonr has to be gathered from what occurred in the course of the trial. Mr. Salmon, who appeared for the defendant, directed questions to the plaintiff designed to establish

that the publication of the alleged libel had not adversely

affected the turnover of business. One such question was

"Well, you do concede, don't you, that in fact turnover

did

increase?" The plaintiff answered

- "1 concede that it did

increase but I also said that

I had to expend over and above

my budget to overcome the problemff. Counsel asked

- What

problen vas there, Mr.

Kruse? You mean that advertisement in

the paper?" And the plaintiff answered

- "That is correcttf.

In re-examination Mr. Shiels, who appeared for the plaintiff,

sought to have the nproblemtl further elucidatsd, but Mr. Salmon

objected. These followed a discussion between his Honour	and
Counsel. Mr. Shiels said:

will seek your Honour's leave to ask

a question,

subject to my learned friend's right to cross-

examine, that

I should have asked in-chief, Mr.

&use, after that advertisement appeared in the

paper, did anyone speak to you about it?....

The witness answered:

.Several people contacted

me over the weekend, two

two to three people in the motor

vehicle business in

Fyahwick that

I was dealing with

at the time, and

as late as the beginning of May. We had

a gentle-

man with a Volkswagen Kombi Van

come to us and said

he came to

us as the last resort on the strength

....

' At this stage counsel for the defendant took objection and

discussion ensued between his Honour

and counsel for the

plaintiff.

His Honour took the view that this evidence was

hearsay and rejected it accordingly.

,	,	. .I ,
-

It may be ga+hered from this exchange tha t par t

of the evidence

which

the appellaTt sought

t o give was

tha t

Itas la te as the

begirning

of Mayft a gentleman w i t h a Kombi V a n "came t o us and said he came to US

as We

last r e s o r t on

the strength" apparently

what was

said in the

advertisement.

I say ftapparentlytl because the sentence

was never

finished and the learned Judge was never t o l d how counsel understc3d

would have been	finished if the appellant had completed what he was say-
ing.

However

this

particular conversation related only

t o

meaning the business,

it rea l ly had no significance in respect

of the

question whether what was said by the speaker indicated a knowledge or understanding on his part that the appellant was the owner of the busi-

ness and therefore the person	defamed.	Accordingly, it may for present
purposes, be ignored.

But it is contended that having regard

t o the context in

wllich

was

made

the statement that "several people contacted

over the

weekend" gave r i s e t o the inference

that

the cal lers

knew they were

speaking t o the appellant,.knew

of the advertisement

and knew o r under-

stood that the appellant

was

the

proprietor

o f

the business referred

t o

i n the advertisement.

The

inference is said t o a r i s e from the ca l l

having occurred "over

the

weekend"

and

the persons

concerned being

"people" in t he motor vehicle business

i n Fyshwick "that I was dealing

w i t h a t the time".

And

is said that counsel

f o r the appellant

indicated that the evidence proffered

was

such

t o

show

that the

p l a in t i f f

had been

"held up

t o approbriumff and

tha t I t i t f f , presumably

the advertisement,

"has been

brought home t o him".

It is t o be observed that the only ground on which

the

evidence was tendered on behalf of the appellant was tha t

it went to the issues

of damag'c. Mr. 1k71y sugLcsted that

.it was also tendered to prove that

thc pcrsons concerned had

realised that it was

the appellant's rcpl:tation'wLich was

impugned by the advertisement because

they Itnew that

1%7as

the proprietgr of Polymedia Car Stereo.

But

d e s p i t e some bas5.s

for this suggestion in some

of the phrbscs appcarjng

in the

discussion with the learned Judge I'am ul-nble to nccept that

i .

this was so.

It is clear that no such

i d r a was convcyed to

1 1 ( the mind of his Honour. It is to be noted that both at

the

comencement of the discussion and at the end

of it. counsel

'said quite categorically that the evidencc was submitted

going to damage. This is important because, as indicated here'after, I think it is quite clear that the case for the

appeilant was conducted on the basis that once it

was proved

that the appellant was

the proprietor of the business no

evidence was necessary on the issue of whether the defamatory

matter referred to the appellant

so that his personal reputation

was disparaged.

In this appeal the appellant

says, and for the first

time says, that the evidence of these telephone conversations

ought to

have been admitted to show that the advertisement

was understood by readers of it to refer to the appellant.

It is said in the alternative, that

it ought to have been

admitted as going to damage and if it had been

so admitted

it would have been available on'the question of the identiily

of the plaintiff as the person defamed.

I consider first

contention.

alternative

.this

, .

Th evidence may be considered either as having beon

proffered as giving support to an allegation that the appellant

suffered wounded feelings, or

as tending to prove

loss of the

business of particular customers.

So far as the evidence concerned

loss of business

of particular customers, not only was there the objection that

the evidence was submitted in hearsay form,

but no foundation

was laid in the Statement of Claim to support the calling of

such' evidence. In cases of libel the plaintiff does not need

t o prove actual damage for the law presumes

that some damage

will flow in the ordinary course

of things from the mere

invasion of the plaintiff's rights

... per Lord Justice Rowen

in ktcliffe v. Evans LT8927 2 Q.B. at 528.

But if the

plaintiff desires

t o rely on any particular actual loss of

the kind presumed to flow from the injury to

his reputation

he may give evidence of it provided it is alleged

in the

Statement of Claim or otherwise particularised.

Thus where

it is alleged in the Statement of Claim the plaintiff may

give evidence of general loss of business profits and where I I he has pleaded loss of business specially, either in addition

to or without the allegation of

a general loss of business,

be aap

10-

of particular earnings or customers;

. . .

cf. Ratcliffe

Evans (supra)'and G-3tl.ey on Libel m d F?. : . ~ d p :

(7th ed. 1974) para. 1231.

, .

In this case the Statement

of Claim contains

allegations sufficient to support the calling of evidence referred to.

It is useful to consider the manner in which

t h e

evidence in question came to be proffered at

all. The

1 ,

plaintiff having given evidence that he spent an additional

$4000 in advertising to overcome

a loss of business which he

felt' would follow from the respondent's advertisement

OF 10th

Jamhry 1976, it was elicited from

hiln in cross-examination

that in each month since January 1976 the monthly gross returns of the business had increased. It was in re-examinztion that the evidence now under consideration was proffered.

It would seem that it was tendered

to show that there had

been loss which

had not been particularised of particular

customers. It was inadmissible on this ground and

also on the

additional ground that it was hearsay. Accordingly

so far as

the evidence went to prove	loss of particular customers it
was rightly rejected.

.But whether the conversations, evidence

of which was

rejected ought t6 have been admitted as proof

of general

as opposed to special, damage under some head such

as 11 as proof

of the consequences necessarily resulting from its publication"

at 1340

(see per Tindal,

C.J.

in Cook v. Ward (1830) G k g . at 415, 150 E.R

and Garbett

v. Hazell, Watson and Viney Ltd. and Others

/19437

2 All E.R.

359) is a more difficult question. It is not clear

that it was put forward

on this grouad although it is possible

to find some words in the discussion between Judge and coucsel

tending to show that it was. However even if it were

tendered I think it was rightly rejected because in essence

the evidence of the conversations was evidence of unparticularised

particular incidents of damage

of the kind presumed to flow

from a libel.

As evidence of the consequences of

the publication

of the advertisement they

may not suffer from being hearsay,

but a s evidence of particular incidents of damage

of the kind

which the law presumes it was

a condition of admissibility

that they be particularised. cf. George v. Blow (1899) 20

N.S.W.L.R. 395.

But in my opinion this appeal does

not depend upon

whether on the issue of damage the conversations were or were

not admissible.

The fact is that when they were rejected as

hearsay and therefore not admissible

as going to the issue

of damage there was

no evidence in the case

that the published

words referred to the appellant. And when

the case for the

appellant was closed there was no evidence on that point.

. 1

This is only explicable if the case

f c r the clpp~'l1ar.t

proceeded

upon the assumption or

the view that

rhe appellant haviug

proved that he was the proprietor of Polymedicl

Car Stereo

had aliequately provcd reference to himself.

As indicated above the appellant now conterlds that

the conversetions were admissible as

proof , albeit by hearsay,

that the words published were understood by readers to refer

to the appellant. There is much to support this contention.

Evidence of the conversations in question, coming from the

'appellant,

was prima facie hearsay. It could therefore be

admitted only

on some ground constituting an exception to the

rule-against the admission of hearsay. The only exception

said to be relevant

is that the statement by

the unnamed

telephone callers were part of the res gesta. A declaration

is admissible as such either if

it itself is a relevant fact,

or if the facts declared are relevant

the declaration is

lawful medium of proof

of those facts. See per Dixon,

(as he then was) in Adelaide Chemical

and Fertilizer Company

Ltd. v. Carlyle (1940) 64 C.L.R.

at 530.

In this case the

declarations themselves were not

relevant facts. If they

.	were to be admitted it	had to be	because they were a'lawful
medium to prove:-
,

3 c

t .

(a)

that the caller knew

of the advertisement;

' (b)

that he knew the appellant, and

of the nppcllant's

proprietcrship of the business, from which

l!? had

inftirred that the advertisement impugned	Lhc
reputation of the appellant.

Normally, to be admissible, such declarnLions

m:,t

accompany and explain a fact in issue

and be made 3t a time

contemporaneous with the fact in issue. But proof

oE a person's

knowledge of a fact, the existence

of which is proved aliunde,

may be proved by that person's assertion out

of Court. Such

statements need not be made contemporaneously with

the happening

of the fact, nor even

at the precise time when existence

of the

knowledge is in issue. See Vacher v.

Cocks (482s) 1 B. Ad. 145;

409 E.R. 741-and

I I ,

Thomas v. Connell (2838) 4 M & -

M 267, 150 E.R.

I .fl429 =baphipson on Evidence,

(12th ed. '1976:,)para 222.

. ._

In this case the relevant facts were that the

appellant was the proprietor of Polymedia Car Stereo and that

the advertisement referred to Polymedia Car Steieo. Each

of these facts was proved otherwise than by means

of the

proffered telephone conversations. Knowledge thereof in some

person or persons might therefore

be proved by their assertions

a t Of Court. And this was done

in Cook v. Ward (supra) and

also in J o A a k v.

Sndek and Others LT9547

- 1 ~ 1 1

E.R. 3

, *

I W

. *

---.

In Jozwiak v. Sadek' and Othcrs

(supra) Ormcrod, J.,

in an action for libel, admitted testimony

of the plaintiff

of anonymous telephone messages received by him,after

puolication of the matter complained

of to prove that Lhe

words complained of related to him. His Lordship relied upon

- -

the older authorities of Cook v. Ward (supra)

and Th

Bost V.

I	Beresford (1810) 2 Camp. 511, 170 E.R. 1235.

; I

\\,l

In a case

the

present

the evidence

admitted

would have

had to pass the tests of precision, clarity

and

' I

credibility and would have been subject

to comment as evidence

of unverified incidents at second-hand where first-hand testimony

would have been expected. And in Jozwiak

v. Sadek and Others

(supra) his Lordship whilst admitting the evidence expressed

reservations as to it.s value

and the necessity

to warn the

jury that such evidence should be treated with caution. It

is not possible in this case to draw any inference

as to what

effect the admission	of the evidence proffered would have had
upon the result.

But the evidence in guestion was not tendered as

.	proof that the advertisement was understood by certain persons as impugning. the reputation of tbe appellant himself. The appellant's case was closed and remained closed with full knowledge that there was 'no evidence on the point.

The appellant having sought

t o call the evidence

of the telephone conversations as relevant to the issue

damage and that evidence having been rejected, rightly or

otherwise, as inadmissible on that issue, it might have been

argued that the conversations were admissible on the issue

of	whether the words published impugned the reputation

of the appellant, if it

had been thought that

the conversations

were admissible

on that issue. But whether it was

so thought

, ! '	'	I
I

'or not, the fact

that no such argument was presented is fully

, explained by the prevalence of the view that evidence

on that

issue was unnecessary. Consistently with

that view there would

be no intention to tender evidence to prove

that readers

understood the advertisement to refer to the appellant.

- - _

That that was the view held is clear from the discussion between counsel for the plaintiff and the trial Judge when the witness Winter was giving evidence. The witness having

stated that she

had seen the advertisement was asked what

did

she think about it. Defendant's counsel objected and the

following passage ensued:-

'%fr.

Salmon:

I object to that, Your Honour. If it goes to

establish any matter other than those,alleged in

paragraph 3 that is a matter of law.

What did she

do in relation to it? What did you think about

it?

His Honour: I do not know, it may be directed to the issue

reference to the plaintiff

...

. -	18
. .

Mr. Salmon: It certainly might.

be and if that \were thc case

a question about something in the

acivcri;.;cll;cnt_

would be proper but the general

- t he qt?c:;tlons

asked I submit leads into a possibility ~f the

witness giving an opinion which shc'is	no: entitled
to give.

Mr. Sheils:

I/ can clarify

that,

Your

Honour.

It is no t to

identify the plaintiff. The plaintiff

is nmcd

in the advertisement. The purpose of t h e question - - -

His Honour: You had better just be careful

... that you do

not

lead

her

telling

us what

the

purposc

the question is.

Mr. Sheils:

That is why I stopped. It is relevant, Your

Honour to prove what

a person believed

\'-

, -S

r?cant

in order to prove that

a reasonab1.c person

could

hold the beliefs or would hold the

beliefs that

I t

are pleaded in

the innuendos.

At the trial the defendent called no evidence.

Accordingly the plaintiff's counsel addressed first. On rising counsel for the defendant addressed himself to the question of damage and to the question whether the words

published were defamatory. In the course of that address the

learned Judge expressed the opinion

that there was no allegation

in the pleadings that the words published referred to the

plaintiff. Counsel for the defendantreplied in substance that he had treated the allegation as being involved in what was con-

tatned in the Statement of Claim

and also regarded that

allegation as being denied in the defence. His Honour

took

the view that the matter should be abundantly clear.

AS a

result counsel conferred

and thereafter informed

his Honour that after	receiving	instructior.s and discussing	t
t

the matter both

p a r t i e s tool{ the view

that Lhe

StaLelqc,nt

C l a i m should

be amended to add Lhe necessary words

and

the

Statement

Defence amended

t o s p x i f i c a l l y put

them

i n

issue. His

Honour

sa id : -

" A l l

r igh t .

That

i s clear

then

t ha t

t he

ques t ion

r e f e r e n c e t o t h e p l a i n t i - f f

i s

i n

issue,

the

statcrncr:t

of claim is deemed t o b e	amended by adding the	words
I

and concerp ing the p la in t i f f '

o r

any

other

way

that

you

want

t o a l l e g e t h e r e f e r e n c e

... but

that

is t h e normal way,

i s it not?"

Mr,

She i l s

s a id : -

II I

would

be conten t wi th tha t ,

Your

Honour".

His Honour:

In paragraph 2".

Mr.

Shei l s :

"I do n o t wish to

taken

conceding

that

I have not pleaded

it in e f f e c t by a combination

I 3

of the paragraphs, but I am happy t o amcnd it.

Hr.

Salmon:

any

event ,

we agree on that, Your Honour.

His Honour:

Well, If M r Salmmtook

the

point,

I wou1.d have

to decide that you had not ,

but

M r .

Salmon does not

take the point and

i t is now taken tha t

you have

expressly

pleaded

that

t h e words

r e f e r r e d t o

the

p l a i n t i f f

and

i s expressly denied that

I I

the

words

r e f e r r e d t o t h e p l a i n t i f f .

Leave

was

g i v e n t o

the

p la in t i f f t o amend . the

Statement

C l a i m during

the

luncheon

adjournment.

resumption

af ter

the

adjournment the defendant 's coullsel

announced

that both the Statement of

C l a i m and the Defence

had been amended, addresses

were

heard

and

judgment

given.

That the case went

tp trial without cvidcncc

some person or persons understood the publis!lcd words

1.0 refer

to the appellant because

the view was

held thzt,such evidence

was unnecessary appears to me

quite clear. It explains why

the plaintiff's case was closed without there being any such

evidence.

It explains the statement made when the witness

Winter was giving evidence, It is not to identify the plaintiff.

l i	The plaintiff is named in the advertisement". It explains why
there was no reference to the issue in counsel's opening address.

- l'

It explains why, when in the course

of the appeal Mr. Kelly

was asked how it was that no such evidence was called, he

stated that he was unable to say. It explains why the

inteyention of the learned

Judge errphasising the necessity

for the Statement of

C l a i m to contain an express allegation

that the words were published "of and concerning the plaintiff"

and €or the defence to contain an express denial thereof

did not provoke, even at

that stage, an application to

resubmit the evidence of the conversations or to adjourn the

case to obtain the necessary evidence. The view that "the

plaintiff i s named in the advertisement" is substantially

that put forward by Mr. Kelly in his first submission in

this appeal.

. The appellant

having taken a course at the trial

based upon that view and having allowed

the matter to go to

: -',

judgment without evidence

that the advertisement operated

t o

i q u g n thereputat ion of the appellant himself now applies t o

havz the judgment set aside so that he may adopt a different

course in

new t r ia l .

But

it was because of the

course at;op-ted

on behalf

the appellant

that there was before the learncd

Judge

no evidence relating

t o an i ssue in respec t

of which

the onus was on the appellant.

Accordingly,

e r ro r can be

found i n ';he

judgment given or the reasons therefore

and no

' basis found

f o r s e t t i n g t h a t

judgment

aside.

The appeal should therefore be Cismissed

with ccrsts.

IN THE

COURT OF AUSTRALIA 1

I No.11 of 1977

GENERAL DZVISION

ON APPEAL from the Supreme Court

of the Australlan Capital Territory

BETYEEN

DAVID KRUSE

Appellant

AND

ANTON LINDNER

Respondent

REASONS FOR JUDGMENT

NIMMO. J. Canberra

This I s an appeal from a decision of Blackburn

J. of the

Supreme Court of the Australian Capital Territory dismissing

with costa an action for defamation brought by

the appellant

against the respondent.

The action arose out of insertion by

the respondent of the following advertisement in	'The Canberra
Times' of Saturday 10 January 1976 -

'Warning to the public!

Shop around before you buy

at Polymedia Car Stereo

57 Uollongong Street, Fyshwlck.1

At the conclusion of the hearing of the action His Honour

delivered P 8hort oral judgment as follows -

"X'his case turns on a question of fact.

The words do not

expressly refer to the plaintiff.

On the evldence before

me I do not find that any person understood the words,

reasonably or otherwise, as referring to the plalntiff.

- .

f .

On that ground the plaintiff must fail.

The action is

did8m.d.

It im mottled law that before a plaintiff

can succeed In an

action for defamation he must provo that the words complalned of

seforrod t o him or woro understood by reasonable people

to refer

to hiu.

Seo Bhtler on L i b e l and Slander 7th ed. at p.126

and

tho cas08 there cited.	It is also settled law that an appellate
c o u r t uill not met amid.	P finding of fact by a lower court

UXILBSD it i s aatimfiod that the finding was wrong:

Whitely Muir

L Ltd, v. m (1966) 39 A.L.J.R.

505; Edwards v.

ltablm

( 1 9 7 1 ) 125 C.L.R.

296.

Only tvo witnoamem gmve evidence at the hearing, the appellant a d a mocretery in the employ of his solicitors. The secretary

ubon awkod undor cross-examination whether she knew anyone

P o l y s r d i a Car Stereo replied, 'No,

I don't.'

and when asked 'Did

you 0 v e

th.re?* answered 'No,

I didn't.'

The appellant in his evidence statod that he was the reglstered

proprietor of the business known as Polymedla Car Stereo and that

he carried on the business at 57 liollongong Street Fyshwlck under

that trrd. n u e r

After the appdlmt had been cross-examined on matters unrelated

to tho quemtionm raised on this appeal his counsel, Mr.

Sheils,

maid to tfu 10-d

presiding judge, '1 will seek Your

Honour's

leave to eak a question, mubject to my learned friend's right to

a f O m s - e ~ l f M , t h t I should have asked in chief'.	One can
Y

f " .

:. f . .

1 " -

, . ,

L-

3 .

only a w s W thet the leave sought

was granted for

M r .

Sheils

continued, 'Mr. Kruso, after that advertisement appeared In the

peper, did any-

speak to you about it?'

The appellant's

u a w e r an recorded in the transcript reads

'Several poople contacted me over the week-end, two o r

throo poop16 in the motor vehicle business

In Fyshwick

t h t I was & d i n 6 with at the time, and as late as the

br#!budng of Hay.

Ye had a gentleman with a Volkswagen

Woubi van 0010. to uo and said he came	to us as the last
resort on the strength.... l

That is aw for as the anawer got for at that point It was

o b j s c h d to and the

following discussion between His Honour

and

Mr. Sheils then enaued

'b.

S h i l w :

If it please Your Honour, I press thls.

is relevant. Evidence on

the part of the plalntlff

that he has been held up

to approbrlurn o r subJect----

Hi8 Honour: Just a minute, Mr. Shells.

We have not had

that evidence.

Mr. Sheils: No.

H i s Honour:

Your own witness IS In the wltness box.

says, he started to say that somebody from some other

htzoiness CUM

to him and started to say something.

Mr. Sbsila:

Yes, Your Honour. Well, Your Honour,

I would

submit that that is admlssible.

His Honour?

What is it admxesible In proof of - what issue

does it go to7

Mr.

S b i l a :

It goom to the issue of damage, Your Honour.

The fact that the advertisement is mentioned

to the

plaintiff aftervards is admlssible

to prove that in

fact it has been brought home to him.

If, for

instance, in e cartoon a man is held up to ridicule

end later people mention the cartoon, that becomes

admiadble, Your Honour.

If a man is sald to have

carried out cartain actions

or to be gullty of certain

conduct and that advertisement is referred to,	or the
oonduct ia referred to later----

His Honour: Yes, all

you prove is that somebody saw It.

Mr. Sheilmr

Ye.,

Your Honour, and took notlce of it.

That

is what I am seeking out.

His Ronour: All right, What you want

to get from him now

is evidence that somebody said that they had seen the

ad7NITtfsraent.

You could do that just as well by

calling the person.

Hr. Sbeil8: Well,

if I knew vho it is, Your Honour, but

auotbr vry of doing it, not qulte the same thing,

Your ?ioaunar, I vould submit that It is permlssible to

ask the vitneas vas the subject of

the advertlsement

raised by somebody, not to ask him has

he seen the

advertfermrnt but vhat happened, and if something

happened and it van obvious that it happened as a

result of the advertisement----

H i 8 Horn=:

You have still got to get around the hearsay

rule. You cannot have somebody saying to you, hlm reporting vhat aolnrbody else said to him, can you?

Mr. Shril8:

Wall, if he says, “Somebody told me they saw

the advertiseasnt” - well, that would be hearsay.

His BJaollotlr: Yes.

Mr. Sheila: But

if he says “I have behaved In a certaln way

because of something I have read then----”

His Honour: Well, that

IS still hearsay.

Hr. Sheils:	Well, I would submit, no, Your Honour.
M m Honour:	It is introducing a statement made by thls

witnesa of a statement made by another witness

- by

th8t other person - or prove the truth of some fact.

anather person - in order to prove the truth of what

Mr. Shrila:	What the other person said.
Ifis Honour:	Yes.

M r . Sheils: Well, Your Honour, I do not put it that way.

I put it to prove the fact that it is still a matter

livr in the thought8 of people in that merely it is

bob36 raised at that stage.

His Runmart

Voll, what issue does that go to, Mr. Sheils?

Mr. Shrils: The fact that it is - well, It goes to the

head of damages, Your Honour, that It IS stlll in

poplr’s m i n d . ,

that is all.

His Honour:	I really do not think so.
m. S k i 1 8 1	May it please Your Honour.

His Eonour: The advertisement was published

- that has

bren m i t t e d .	I do not thlnk you can ask hlm that
q-ti02l.

H r . Sheilst

Yes, well, I have nothing further, Your

Honour'

Beform this court counael for the appellant challenged

the

correctnetas of R i o Hanour's

judgment on two grounds.

First, he contended, all that was necessary for the appellant

to show in order to prove that the advertlsement referred to him

uas that h4 U ~ D identical with the person who operated the business of Pol.ylrdir C a r Stereo. That, he said, the appellant

had &one

by b i a own evidence.

I am unable to accept thls

contention which I consider goes beyond what was declded

9o-t

v. Jmer I n # l l s & Co. Ltd. (1905) 2 C.L.R.

78 and the

othmr authorities cited by counsel and cuts rlght across

the

psineiplm thrt a plaintiff in an action of this kind must prove

that the words oomplained of expressly refer or be understood by

rsamonmbh pSOgh to refer to him.

The words In the

advertisemnt do not expressly refer to the appellant and no

vitness or witnrases were called to testify

that when they read

them they unctaratood them to refer to him.

It is one thing to

prove that words complained of are capable of referrlng

to a

particular person and another thing

to prove that they In fact

do rmfor or a r e understood by reasonable people	to refer to that
person.

Secondly, c o ~ ~ ~ s e l

contended that His Honour wrongly shut out the

evidence counsel for the appellant was ellcltlng In relatlon to parsons who contacted the appellant after the advertlsernent had

appeared in 'Ths Canberra Times'.

He argued that such evldence

uag & z ~ a b l e and had it been allowed in on

the quest~on of

ckar@ms, t b

brsis on which counsel for

the appellant tendered

it, it would also have been evldence on	the questlon of reference
to the appellant.

In cbalinq with this contention it is necessary to conslder at

the outset what was objected to by counsel for the respondent.

Xt certdnly uaa not the quemtlon asked by counsel

for the

appr lhnt f o r no objection to it v a a raised when It was asked. nor w d d it appear to have been directed to the flrst part of

tho tppel.l*lsnt@s

mmwt~r (Several people contacted me over the

vsek-and, two

t c three people in the motor vehlcle buslness in

Fydsuiok that I was b a l i n g with at the time'.

Had it been

directed to that part of the answer I think HIS Honour would havs dimallowed it for the appellant up to that point was testlfying

to e fact within his own personal knowledge, the

fact that

oertdn pmaple had got in touch with him after

the advertisement

hrd rpperred in the newspaper.

In my vIew proof of that fact

is not of itself proof that those people understood

the

rhrertismnt to refer to the appellant personally as opposed

to tho buainnoa of Polymadia Car Stereo

the proprietorship of

which wam not shorn to have been known to them.

Having regard

to the dacision reached by

His Honour It IS apparent that he was

p ~ v p r n d

to d r a w M inference from the fact that certain

people got in touch with the appellant after they saw	the
advertisenrnt, that they understood the advertisement	to refer

to him.

In that, I believe, he was correct.

I thlnk that the

second part of the

appellant's anawer was not Intended

to be in

thm form in which

it is recorded in the transcript of hIs

evidence h t wan intended to be as follows -

'....ad

as lata as tho beKinning of May, we had

a gentleman

with I YoUEwyn Wonbi van come to us and said he came	to
us am tho lrot rosort on the strength....'.

Et w o u l d appev iran the diacussion between the Judge and counsel

for tho r w l l u r t that they understood the

ObJeCtlOrl to be

directd t o t h t pert of tho answer for on

the face of it the

rppmllrat w a s coluncing to give evidence at the moment the

objection van raised of swathing that somebody else had	told
bfm .

Duriw the dfscussion between the judge and counsel

Hls Honour

ludo it cloar that he considered that the appellant was in the

p o c o a m of giving herrmay evldence at the tune he was stopped.

As the follouing extract from the reasons of the Prlvy Councll in wmie v. Public Prorecutor (1956) 1 W.L.R. 965 at p.970

dkboya, erf&ace of L statement made to a witness by a person who

is not h i u o l f a r l h d a m a vitness may or may not be hearsay.

'It i n b8rs.y

rmd inrdrlasible when the object

of the

wu4d.w.

is to ostrblish the truth of what is contained

in t b mtrtrunt.

It is not hearsay and is admlsslble

w h m it ia propored to ostablish by the evldence,

not the

t d h

of t*r m b t n m t , but th. fact that It was made.'

T b ~ 8 . a ~

Just p w t e d YIS

restated and applled

In Ratten v.

'#prr Qrsa (1972) *.C.

378 (nee p.387).

It rou2d .gg.rr t h t Him Honour had m mlnd the princlple stated

in tb. passrgs when h0 said to counsel for the appellant - 'It

is introducing a statement made by this wltness of a statement

made by amthmr vitaoms - by another person - In order to prove

the truth of what that other person

- or prove the truth of some

f-ctl.

I this& P i a Honour showed at that stage that It was not

the W l l a n t ' s

evidence of the fact that a gentleman In a Kombl

B .

van had called on him after the advertlsement had appeared and

made L stateunt that he consldered ObJectlonable but what he

thougbt night be an attempt to establish the truth of the

statement which, had the appellant been allowed

to complete It,

would have probably

been to the effect that the gentleman had

come 'to u s ' am

th last resort on the strength of the warnlng

e a * i m M ka tbm e&vertirmwnt.

Such a statement would have

hmd no prcbatfrm valum for it could not be used as evldence

thr trnth of th. words I have underlxned and

so His Honour quite

properly, in ny opinion, did

not allow it In on the ground that

it w o u l d offand the rule against hearsay.

In any case lt seems

t o m thrt bad it h o n adaitted in evidence It would not have

helprd the rppmllmt'n case in relatxon to the issue on which

his rctian failed far the appellant stated that the gentleman

concerned had c a m 'to us' vhich suggests that the advertlsement

lud directed thm gontlet~n~s

attention to the buslness

Polyardia Car Stereo and not

to the appellant personally.

It follous Ohat in my view there 18 nothlng wrong wlth

the

learnmd t r i a l j w m ' a finding on the evldence before hlm that the

appellant had failed to prove that the words

of the advertisement

referred o r were understood by reasonable people	to refer to hun.
I would thmrefon dismiss the appeal wlth costs.

* '

TERRITORY

1 NO. 11 of 1977

ON APPEAL from the Supreme Court

of the Australian Capital Territory

BETWEEN

DAVID KRUSE

Appellant

?	-	I	AND
-

ANTON LINDNER

1.. -

Respondent

CONNOR, J.

Canberra

The circumstances in which this appeal

is brought are

fully rat out i n the reasons of Slithers J. and of Nimmo J.

In the

plsrdingr the defcn&nt

specifically denied that the words

a . .

comphired of referred to

the plaintiff or were published of or

concerning the plaintiff. Very shortly after the first witness

* ,

was called the learned trial judge,

in discussing with counsel for

' .i

the defendant the admissibility of certain evidence, remarked

that

it might be directed to the issue

of reference'to the plaintiff.

Counsel for the plaintiff then informed

His Honour that the evidence

in question was not put

to that issue and counsel added "The

phintiff is named in the advertisement". Even at that early stage

of t h

tri8l the parties, it seems to me, had chosen their own

b8ttleground, the plaintiff contending that he was named in the

. j+

4. ,

..-

1 ,-,S

. :, .L< f . 1,

'. I

I '-

.. ,

. .

. - . . , . ' l ,

, , ").

' .

y -b.#'

* L

advertisement, the defendant denying that the advertisement was

published of or concerning the plaintiff.

This appeal is concerned with two matters. The first is

uhether in a defamation action, as distinct from an action for

injurious falsehood, the plaintiff could show that the advertisement

referred to him simply by proving his proprietorship

of Polyrnedia

Car Stereo.

The second is whether the appeal should succeed because

of the rejection by the learned trial judge

of certain evidence.

As to the first point

I think it is established law that

if the utter complained of as defamatory does not refer to the

plaintiff by nolle and the identity

of the person defamed would be

apparent only to persons who had knowledge

of special circumstances,

it is necessary to prove that

it was published to a person or

persons who had knowledge of those circumstances

- Consolidated

Trust Cmpany Limited v. Browne (1949) 49 S . R . (N.S.W.)

8 6 , a decision

of the Pull Court of the Suprene Court

of New South Wales

- see In

particular per Jordan C.J.

at p.89 and per Davidson

J. at pp.92-93.

This decision was follamd by another decision of the Full Court of the Sopreme Cmrt of NW South Wales in Cross v. Denley (1952)

S 2 S.R.

(N.S.W.)

112 see per Oubn J. at pp.115-116. In the latter

cue the plaintiff was shorn to be the proprietor of a business

which was csrried on under a particular style or business name

which did not include his own name.

The allegedly defamatory

material referred to a business with a name very similar

to the

n u e of the business conducted

by the plaintiff but the material

did not mention the plaintiff

by name. There was no evidence that

anyone to whom the naterial

was published had any special knowledge

sambling hin to connect the material with the plaintiff.

Consequently the plaintiff in that case failed. I am therefore of

thm view that the learned trial judge in the present case was

corrmct In holding that, tmless	there was evidence which satisfied
hi8 that some prrson understood	the words as referring to the

appellant, the action would bave to be dismissed.

The second question concerning the admissibility of

rvid.nce must in my view be looked at in the context in which It

rime.

The plaintiff gave short evidence in chief.

After stating

his n a m and address and that he was the registered proprietor

the business .ad that he had seen the advertisement, the remainder

o f his evidence i.n

chief was devoted to

damages. The cross-

u u l r t i e n by cmnnel for thr defendant was confined entirely

tho qwation of b a p s .

The plaintiff was then asked

in re-

e x 4 n t i o n the fellwing question.

"Mr.

Kruse, after the

advwtisennt -.red

in the paper d i d you speak to anyone about

itt"

To whicEtbe pla4atiff replied. "Several people contacted

Y ever the woehad, trw to three people in the motor vehicle

b f r b s s in Fyshufck that I was dealing with at the time, and as

lam as tho bogInfng of May we had a gentleman with a Volkswagon

tomhi van CO.. t o tu and sa id he came to us as the last resort on

the rtrragth --*l. The svideace was then objected to by counsel for

the defendant. In the context I take it that the objection was to

the pcrt of the evidence concerning the gentleman with the

Voltsngoll Kombf *.IS. On thr 8uthority of Jozwiak v. Sadek F

Others (1954)

1 N,L.R.

275 I think that the evidence of the telephone

converutiamm was admissible to show that some people identified

the plaintiff w i t h the advertisement.

It did not at any stage

appear uUt fbrther evi&ncr

might have been given about the

~ t h 8 8 R

with the Va1kswagon Kombi van

but in the context it seems

to a

th8t, as far as it went, it also was admissible to identify

(h0 phiatiff with the ah+tiseaent. The problem at the trial arose

frediately after the objection was

taken. When the learned trial

4 .

)

. .

I	judge, ill ordsr to deal with the objection, asked counsel for the

,G*

...

$hilltiff rhrt issue the evidence went to, counsel replied that

-1.

went to the issw of a g e s .

I think that by

reason of the rule

? - ,

,-referrwd

t o in Jorrirk's

Cam supra this evidence was admissible on

.@y..

!+$&,:, ,

A	the issum of reference to the plaintiff but was hearsay evidence

$, Zf'

df..oSr

the issw of d 8 u ~ e s . In any event, although there was

~< .

.\;I :K.

OVid8ltce before the court of the telephone calls which could

be used

on the question of ideatiffcation, it was open to the learned trial

jrrdp0 to place Yetry little Value upon it, particularly when the

pop10 Ubo u d e the telephone calls were not called, although their

i h t i t y 1.1

to the

plaintiff, and no explanation was

offered 8s to why they were not called

- cf. Jozwiak v. Sadek &

0th.r~ (lBS4) 1 W . L . R .

275 per Onerod J. at p.277 where Hls Lordship

referre$ to the directions which he proposed to give to the

jury.

What the learned trial judge said finally was

"On the

-idace befare me

I do net think that any person understood the

Yorda, t..o1yblk or othonrise, as referring to the plaintiff".

soems t o m8 tht the learned trial judge in a11 the circumstances

to *hi&

I h-

referred wu

perfectly entitled to take such a view

a d that this C W T t would not be justified in putting aside the

aSS06sRellt which His Honour made of the weight to

be attached to

the evidence concerning the telephone calls which in any event	did
net M k e it clear that the persons making the telephone calls

connuted the advertisement with the plaintiff as distinct from the

bus imesr.

The evidence concerning the gentleman with the Kombi van

hrd b-

ripMSy rejected as inadmissible on the only issue on which

it was sought t o lead it.

As I have said it would have been

relev*rrt to tlm issue of idbatification but counsel for the plaintiff

did -P

to have it adsittsd on this ground. Even if

it had

.. ---W*,-

. ,

i t

sue&$

unlikely that in the absence

evidence frm the gontleran h i m e l f , which

could

t e s ted

I ,

c r o o s - b ~ ~ i n a t i o n ,

tbc learned t r i a l judge

would

have

been

p m

by th. plaintiff's

account of it any more than he

was

hrskiided by the plaintiff's account of the

te lephone

c a l l s .

T h i s

s t m d in 8y view

is much

too tenuous

to support th is appeal .

For these reasons I think that

the

appeal

should

dismissed.	I agree in the orders	proposed	by Smithers J . and
N i m J .

[1978] FCA 24

14 Apr 1978