Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd

[2018] NSWCA 95

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95

Hearing dates:

20 March 2018

Decision date:

07 May 2018

Before:

Beazley P at [1];
McColl JA at [3];
Basten JA at [113]

Decision:

(1)   Appeal allowed.

 

(2)   Judgment of the Court below set aside.

 

(3)   Order the respondents to pay the appellant’s costs, including the costs of the separate trial before McCallum J.

 (4)   Remit the matter to the Common Law Division for case management.

Catchwords:

APPEAL — separate determination of questions —judgment entered following determination of separate question — whether leave to appeal required — Supreme Court Act 1970 (NSW), ss 101(2)(e), 103

 

CIVIL PROCEDURE — separate questions — where appropriate — whether sufficient evidence before Court to determine separate question — whether separate determination of question should have been ordered — Uniform Civil Procedure Rules 2005 (NSW), r 28.2

  DEFAMATION — identification — indirect identification — article alleged misconduct by elders of church — plaintiff corporation trading under name of church — whether matter complained of capable of identifying corporation

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 56; Pt 6
Corporations Act 2001 (Cth), s 150
Defamation Act 1958 (NSW), s 5
Defamation Act 1974 (NSW). s 7A
Defamation Act 2005 (NSW), ss 8, 9
Supreme Court Act 1970 (NSW), ss 101, 103; Pt 28

Uniform Civil Procedure Rules 2005 (NSW), rr 4, 28.2, 28.4, 51.22

Cases Cited:

Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports ¶80-138
Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; [2011] 1 WLR 1526
Cassidy v Daily Mirror Newspapers Limited [1929] 2 KB 331
Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; (2002) Aust Torts Reports ¶81-675
Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50
E Hulton & Co v Jones [1910] AC 20
Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485; [2015] NSWCA 237
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Fullam v Newcastle Chronicle [1977] 1 WLR 651
Gardener v Nationwide News Pty Limited [2007] NSWCA 10
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Godhard v James Inglis & Co Ltd (1904) 2 CLR 78; [1904] HCA 37
Hough v London Express Newspaper Ltd [1940] 2 KB 507
Islam Expo Ltd v The Spectator (1828) Ltd [2010] EWHC 2011 (QB)
Jones v E Hulton & Co [1909] 2 KB 444
Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536
Lee v Wilson and MacKinnon (1934) 51 CLR 276; [1934] HCA 60
Lewis v Daily Telegraph Ltd [1964] AC 234
Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112
McElwaine v The Owners – Strata Plan 75975 [2017] NSWCA 239
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; [1979] HCA 3
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260
National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223
Nu-Tec v ABC [2010] NSWSC 711
O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; [1991] HCA 44
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Tiufino v Warland (2000) 50 NSWLR 104; [2000] NSWCA 110
Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd and Chan [2008] NSWCA 1; (2008) Aust Torts Reports ¶81-932
Younan v Nationwide News Pty Ltd [2013] NSWCA 335
Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581
Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283

Texts Cited:

M Kumar and M Legg (eds), “Ten Years of the Civil Procedure Act 2005 (NSW)” (2015) Law Book Co

  Sir Frederick Pollock, Law of Torts (13th ed, 1929, Stevens and Sons Limited)

Category:

Principal judgment

Parties:

2017/325678

 

Plymouth Brethren (Exclusive Brethren) Christian Church Ltd (Appellant)
The Age Company Ltd (First Respondent)
Michael Bachelard (Second Respondent)

 

2017/325690

  Plymouth Brethren (Exclusive Brethren) Christian Church Ltd (Appellant)
Fairfax Media Publications Pty Ltd (First Respondent)
Michael Bachelard (Second Respondent)

Representation:

Counsel:
Mr B R McClintock SC/Ms S Chrysanthou/Mr N Olson (Appellant in both matters)
Dr M J Collins QC/Ms L Barnett (Respondents in both matters)

  Solicitors:
Mark O’Brien Legal (Appellant in both matters)
Minter Ellison (Respondents in both matters)

File Number(s):

2017/325678; 2017/325690

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2017] NSWSC 214

Date of Decision:

03 October 2017

Before:

McCallum J

File Number(s):

2016/210856; 2016/210844

headnote

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

On 17 and 18 June 2016 The Age Company Ltd (“The Age”) and Fairfax Media Publications Pty Ltd (“Fairfax”) published four substantively identical articles (“the matter complained of”) alleging that elders of the Plymouth Brethren Church had sexually abused children and covered up a number of complaints.

A corporation known as Plymouth Brethren (Exclusive Brethren) Christian Church (“the corporation”) brought proceedings in defamation against The Age and Fairfax. The corporation was registered in 2012 as a registered charity, and claimed to act as the Church’s secretariat in Australia. The corporation traded as “Plymouth Brethren Christian Church”, a name for which it owned the trademark; retained advisers to respond to enquiries and articles about the Church; and owned and operated a website about the Church.

On 17 November 2016, The Age and Fairfax filed notices of motion, seeking that the Court determine as a separate question whether the matter complained of was reasonably capable of identifying the corporation. On 3 October 2017 the primary judge (McCallum J) accepted the proposed separate question, answered the separate question “No” and entered judgment for both defendants. The corporation appealed.

The key issues on appeal were:

(i) whether the primary judge should have ordered the determination of a separate question under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 28.2;

(ii)   whether the matter complained of was reasonably capable of identifying the corporation.

The Court (per McColl JA, Beazley P agreeing; Basten JA dissenting) allowed the appeal and held:

In relation to question (i):

(Per Basten JA, Beazley P and McColl JA agreeing):

1. The primary judge proceeded on the basis that the separate question could be resolved primarily by reference to the contents of the matter complained of. As that approach was properly available, it was in turn properly available for her Honour to order the separate question: [1], [3], [131]-[132].

Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536; Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 considered.

In relation to question (ii):

(Per McColl JA, Beazley P agreeing):

2. An erroneous belief can be relied upon for the purposes of identification, where that belief is the product of the matter complained of: [63]-[68]. Further, a mistaken identification may be drawn by a reasonable reader, as long as it is a product of the matter complained of: [93].

David Syme & Co v Canavan (1918) 25 CLR 234; [1918] HCA 50; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; [1979] HCA 3; Morgan v Odhams Press Ltd [1971] 1 WLR 1239; E Hulton & Co v Jones [1910] AC 20; Lee v Wilson and MacKinnon (1934) 51 CLR 276; [1934] HCA 60; Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; (2002) Aust Torts Reports ¶81-675; Younan v Nationwide News Pty Ltd [2013] NSWCA 335, applied.

3. The question of whether the matter complained of was reasonably capable of identifying the corporation needs to be approached with great caution: [2], [70]-[74]. Though the article referred to events that occurred prior to the corporation’s registration, it intertwined those events with the present, suggesting that the rebranded “Plymouth Brethren Christian Church” was involved in a continuing cover up: [92]‑[98]. Various permutations of the corporation’s name appeared in the article, including the trademarked name under which it conducted its business. Further, references to the ‘rebranded’ Church undertaking charity work would reasonably be capable of identifying the corporation to classes of persons referred to in their particulars of identification: [102]-[105]. It would not be perverse for the jury to find that the article identified the corporation: [109].

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716; Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227; Lewis v Daily Telegraph Ltd [1964] AC 234, applied.

(Per Basten JA, dissenting):

4. The corporation was a separate legal entity, distinct from the individuals making up the Church. In order for the matter complained of to be reasonably capable of identifying the corporation, allegations therein must be reasonably attributable to persons acting on the corporation’s behalf: [147], [156].

5. A reasonable reader could not infer that any of the allegations in the matter complained of were about the corporation. Read as a whole, the matter complained of plainly referred to the Church and its elders, rather than the corporation. With the exception of possible references to a continuing cover-up, the events described in the articles occurred before the corporation’s registration: [153]-[160].

Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 applied.

As to whether the appellant required leave to appeal:

(Per Basten JA, Beazley P and McColl JA not deciding):

6. As the primary judge entered judgment against both defendants under UCPR r 28.4, leave to appeal was not required under either s 101(2)(e) or s 103 of the Supreme Court Act 1970 (NSW): [123]-[124].

National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223; Tiufino v Warland (2000) 50 NSWLR 104; [2000] NSWCA 110; Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd [2017] NSWCA 184; McElwaine v The Owners – Strata Plan 75975 [2017] NSWCA 239 applied; Younan v Nationwide News Pty Ltd [2013] NSWCA 335, not followed.

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft the reasons of McColl JA and of Basten JA. I agree with McColl JA’s reasons and proposed orders for allowing the appeal.

2. Basten JA in his reasons has considered whether the appellants had an appeal as of right, or whether, being an appeal from a separate question, leave to appeal was required pursuant to the Supreme Court Act 1970 (NSW), s 103. In Younan v Nationwide News Pty Ltd [2013] NSWCA 335, I agreed that an appeal from a separate question required a grant of leave. As I consider that if leave to appeal was required in this matter, leave should be granted, it is not necessary for me to revisit the question whether leave is required where a final order is made on the determination of a separate question.

3. McCOLL JA: I have had the benefit of reading Basten JA’s reasons in draft. His Honour sets out certain of the facts sufficiently to explain the background to the proceedings in terms it is unnecessary for me to repeat. I agree with his Honour’s reasons and conclusion insofar as the first ground of appeal is concerned. However, as I explain later in these reasons, determination of the capacity question must be approached with “great caution”.

4. I disagree, however, insofar as his Honour would uphold the primary judge’s conclusion that the matters complained of were not capable of identifying the appellant, the Plymouth Brethren (Exclusive Brethren) Christian Church, and her Honour’s order that the proceedings be dismissed with costs. [1] I would allow the appeal for the reasons that follow.

   1. Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Pty Ltd [2017] NSWSC 214 (Primary judgment).

5. The critical issue of law the primary judge had to determine was whether the matter complained of was capable of identifying the appellant. [2] The appellant claimed the matter complained of had that capacity, principally, though not only, because of the references throughout it to “the Exclusive Brethren”, “the Brethren” and “the Plymouth Brethren Christian Church”. These included the following:

“Among the Brethren (now rebranded as the Plymouth Brethren Christian Church) …”;

“…the Exclusive Brethren has rebranded itself the Plymouth Brethren Christian Church …”. [3]

2.    There are in fact 4 matters complained of: the article, “Secrets of the Brethren”, which appeared in the Good Weekend magazines published respectively by The Age Company Ltd and Fairfax Media Publications Pty Ltd (respondents) on or about 18 June 2016 and the article entitled “Tony McCorkell reveals secrets of the wealthy Christian sect Exclusive Brethren” published online by the respective respondents on or about 17 June 2016. It was common ground that there is no, or no substantive, difference between the four publications. For convenience I will refer to them as the “matter complained of”.

3.    Primary judgment (at [33]).

6. The appellant also relied upon extensive particulars of identification which it submitted were known by classes of persons, who it also particularised, who read the matters complained of.

The matter complained of

7. In order to understand the resolution of the capacity issue, it is necessary to refer in some detail to the structure and content of the matter complained of.

8. The matter complained of was titled “Secrets of the Brethren”. It commenced with the statement:

“[5] Members of a wealthy Christian sect are accused of child sex abuse. Now the man who helped with the cover-up is speaking out …[8] Known for its obsession with privacy and its silencing tactics, the Exclusive Brethren has managed to avoid any scrutiny over alleged child sex abuse. Until now.” [4]

4.    The appellant’s legal representatives numbered the paragraphs of the matter complained of published in the Good Weekend on 18 June 2016 as annexed to the Amended Statement of Claim. I refer to aspects of the matter complained of to illustrate its nature by reference, where necessary, to those paragraph numbers.

9. Paragraphs [11] – [18] set out the story of a girl who complained about her treatment by an elder of the sect but who, in effect, was forced to recant under pressure from the elder and his wife.

10. The matter complained of continued:

“19.   IF THE Royal Commission into Institutional Responses to Child Sexual Abuse tells us anything, it’s that the rule-bound, male-dominated hierarchies, such as the Catholic Church, private schools and corrective institutions, create the environment for some men to commit crimes against the children over whom they hold sway. The power of the institution is then bent to covering it up.

20.   The Royal Commission has examined everything from Sydney’s Knox Grammar School to the Jehovah’s Witnesses; Cardinal George Pell to Tennis NSW. But not the Exclusive Brethren, a wealthy Protestant sect of 40,000 worldwide (including 15,000 in Australia), led by Sydney-based Bruce Hales. Among the Brethren (now rebranded as the Plymouth Brethren Christian Church) public scrutiny is shunned just as surely as are radios, TVs, voting and other trappings of “worldly” society.

21.   So far this group has managed to fly under the radar.

22.   That is about to change.” [5] [Emphasis added.]

5.    Matter complained of (at [26]).

11. The matter complained of then referred to a Tony McCorkell, who was “born into the sect”, whose family was kicked out when he was six, but who had returned to the Brethren in 2006 after it “had come to public notoriety after it spent hundreds of thousands of dollars to influence the 2004 election in favour of conservative Christian PM John Howard.” The Brethren were described as being “now on the national stage, as Brethren members campaigned on the streets in Hobart against gay-friendly Greens, and threatened journalists outside churches.” [6]

    6.    Ibid (at [24]).

12. The matter complained of identified “Bruce Hales”, described as “the seventh leader of a church founded in southern England’s Plymouth in 1829” and his “control over the people he refers to as his ‘saints’”. [7] It discussed the nature of the church and queried how common sexual abuse was among the Brethren and the latter’s rejection of allegations of such matters. [8]

    7.    Ibid (at [30] – [31]).

    8.    Ibid (at [32] – [34]).

13. Next, the matter complained of extensively discussed claims of sexual abuse dealt with by Mr McCorkell (or which he recounted) between 2006 and 2009, when he left the church again. [9]

    9.    Ibid (at [35] – [88]).

14. The discussion of Mr McCorkell included the fact that when he “left the Brethren again seven years ago [he signed] a confidentiality agreement on the way out,” [10] referred to him “mull[ing] the rights and wrongs of revealing what he knows”, his “remnants of an old loyalty towards Hales” and the fact that “[n]ow, regardless, he has decided to speak. He feels a responsibility to do it.” It adds:

“McCorkell is ashamed of the role he played, and angry the Brethren should have got away with it for so long while others are being held to account.” [11]

10.    Ibid (at [29]).

11.    Ibid.

15. The matter complained of described the relationship of children of Brethren members to the Church and the prevalence or otherwise of sexual abuse among the Brethren. [12]

    12.    Ibid (at [35] – [36]).

16. The matter complained of stated in relation to six allegations of child sexual abuse against members of the Brethren with which Mr McCorkell dealt that, “[i]n each case, the priority was protecting what the Brethren calls ‘the position’ … a notion that refers both to the loyalty demanded of church members to its peculiar, separatist theology, and to Hales, as well as to the physical property and assets owned by the church”. [13]

    13.    Ibid (at [36]).

17. During this period, Mr McCorkell became Mr Hales’ “right-hand man”. The six cases included an allegation by two girls that they had been sexually assaulted, apparently by an Elder of the Brethren; the case of a man who, as a boy, had been abused by his uncle over a four or five year period from 1975 (dealt with by McCorkell in 2007); and the case of a woman who as a girl was abused by a local church doctor in 1966 (dealt with by McCorkell in about 2007 or 2008). [14]

    14.    Ibid (at [37] – [56]; [59] – [64]).

18. The matter complained of next discussed a case of alleged child sexual abuse by a Mr Lindsay Jensen, which “ultimately ended up in Court”, whereupon Mr McCorkell “was drafted into the attempted cover-up.” It described two other cases in respect of which Mr McCorkell had been instrumental in either “wash[ing] the Church’s hands of” or “stifling” complaints and the difficulty victims had within the church if they reported the alleged assaults to the police.

19. The matter complained of concluded:

“90.   After a decade of bad publicity, the Exclusive Brethren has rebranded itself the Plymouth Brethren Christian Church and has started undertaking some charity work. Nothing else has changed.

91.   But the world around the Brethren has changed. Hales must have watched the grilling of Catholic Cardinal George Pell at the Royal Commission with alarm. Church elders must be petrified about the possibility that victims of the Brethren might come forward to tell their stories to the Royal Commission. They might be terrified Hales himself would be compelled to give evidence about what he’s done, or failed to do, to protect the thousands of children over whose lives he controls [sic].

92.   McCorkell has been out of the Brethren since 2009, but has had semi-regular contact with members of the Sydney leadership. Around the time of Pell’s evidence, they called to remind him that he’d signed a confidentiality agreement. He has decided to speak out regardless. The Royal Commission has been in contact with him, and he is prepared to give evidence of his time in the sect.

93.   I deeply regret my part in keeping the lid on this, he says. ‘I do think this needs to come out. Too much time has been spent covering these things up, and those responsible need to be held to account.’” [Emphasis added.]

The appellant’s case

20. The appellant pleaded the following imputations as being conveyed by the matter complained of:

“(a)   the plaintiff is an institution which covered up child sexual abuse by Lindsay Jenson, then one of its members;

(b)   the plaintiff is an institution which discourages victims of child sexual abuse from speaking out;

(c)   the plaintiff is an institution with a priority to protect its property and assets ahead of protecting the victims of child sexual abuse;

(d)   the plaintiff is an institution which forced two child victims of sexual abuse by Lindsay Jenson to live with him.”[15]

15. To the extent those imputations depended on the particulars of identification to be defamatory of the plaintiff, they are now referred to in the United Kingdom at least as reference innuendos: Baturina v Times Newspapers Ltd [2011] EWCA Civ 308; [2011] 1 WLR 1526 (at [23]) per Lord Neuberger of Abbotsbury MR.

21. The appellant relied upon the following particulars of identification:

“Particulars of Identification

(a)   Throughout the matters complained of there are references to ‘the Exclusive Brethren’, ‘the Brethren’ and ‘the Plymouth Brethren Christian Church’ including the following references:

‘Among the Brethren (now rebranded as the Plymouth Brethren Christian Church) …’;

‘…the Exclusive Brethren has rebranded itself the Plymouth Brethren Christian Church …’;

(b)   The plaintiff is registered as a company limited by guarantee in the name of ‘Plymouth Brethren Christian Church’;

(c)   The plaintiff is registered as the owner of the trade mark ‘Plymouth Brethren Christian Church’;

(d)   The plaintiff trades as Plymouth Brethren Christian Church;

(e)   The plaintiff is the owner and operator of the plymouthbrethrenchristianchurch.org website. That website contains numerous references to the ‘Plymouth Brethren (Exclusive Brethren Christian Church’, the ‘Plymouth Brethren Christian Church’ and ‘Plymouth Brethren (Exclusive Brethren) Christian Church Ltd;’

(f)   The plaintiff is registered with the Australian Charities and Not-for-profits Commission as a registered charity;

(g)   The plaintiff is the sole member of Rapid Relief Team, being a registered charity and public benevolent institution, which operates its own website and which is referred to repeatedly on the plaintiff’s website;

(h)   The plaintiff retains media and public relations advisers to respond to media enquiries and articles relating to the Plymouth Brethren Church;

(i)   The plaintiff, being ‘Plymouth Brethren (Exclusive Brethren) Christian Church Ltd’, is specified as the owner of copyright in material concerning the Plymouth Brethren Church sold through the plymouthbrethrenchristianchurch.org website – see the booklet entitled ‘Living Our Beliefs’;

(j)   The plaintiff operates a YouTube channel page at with various videos uploaded on that page containing a statement that the copyright owner of the videos is ‘Plymouth Brethren (Exclusive Brethren) Christian Church Ltd’;

(k)   There are 4 volunteers of the plaintiff who have email accounts which contain footers referring to ‘Plymouth Brethren (Exclusive Brethren) Christian Church’.

Particulars of Identity

The particulars of identification were known by the following classes of persons who read the matters complained of:

(a)   Readers of matter contained on and/or purchased through the plymouthbrethrenchristianchurch.org website. In this regard, we are instructed that there was a significant ‘spike’ in new users of the plaintiff’s website as at the date of publication of the matters complained of, and it is clear that by reason of that ‘spike’ that our client was plainly identified by readers of the matters complained of;

(b)   Viewers of video matter placed on the plymouthbrethrenchristianchurch.org website and YouTube channel page at and/or employees of the Australian Charities and Not-for-profits Commission;

(d)   Persons who received assistance from the Rapid Relief Team;

(e)   Recipients of responses to media enquiries and articles relating to the Plymouth Brethren Church;

(f)   Recipients of emails from volunteers of the plaintiff;

(g)   Parishioners of the Plymouth Brethren Church.” [16]

16.    Primary judgment (at [33]).

Evidence on the separate determination

22. The appellant’s solicitor, Mr Svilans, swore an affidavit to which he annexed an Australian Securities and Investments Commission (ASIC) company search for the appellant which showed it was registered in New South Wales on 24 May 2012 and its registered address and principal place of business at 100 Wharf Road, Ermington. Mr Svilans' affidavit also annexed the appellant’s constitution, an ASIC notice advising that the appellant may be registered as a company with limited liability without the addition of the word “Limited” in its name and a Certificate of Registration of Trademark for the trademark “Plymouth Brethren Christian Church” showing it as owned by the appellant. [17]

    17. The appellant is registered as a charity, and, accordingly, is entitled to omit the suffix “Limited” from its name in accordance with s 150(1) of the Corporations Act 2001 (Cth): primary judgment (at [4]). The appellant is also a not for profit corporation according to the amended statement of claim, and, hence an “excluded corporation” for the purposes of s 9 of the Defamation Act 2005 (NSW).

23. The appellant’s constitution includes, as one of its principal purposes, “to act in Australia as the secretariat of the church being a worldwide Christian fellowship that commenced in 1827 at a meeting for the celebration of the Lord’s Supper at which Mr John Nelson Darby was in attendance and has continued since and become variously known as ‘Brethren’, ‘Plymouth Brethren’, ‘Plymouth Brethren IV’, ‘Exclusive Brethren’ or ‘Plymouth Brethren Christian Church’.”

24. Mr Svilans also deposed that he had been informed by a director of the appellant, Mr Philip McNaughton, the secretary of the appellant, that the latter was “the sole member of Rapid Relief Team, being a registered charity and public benevolent institution”, was the owner of the trademark to which I have referred, was the owner and operator of the Plymouth Brethren Christian Church website ( and retained media and public relations advisers to respond to media enquiries and articles relating to the “Plymouth Brethren Church.”

25. Mr Svilans next deposed to information communicated to him by Mr McNaugton that the latter had been a parishioner of the Plymouth Brethren Church since birth and had knowledge of its activities. Mr McNaughton described the Church as “a group of unincorporated associations and ‘Assemblies’ or ‘congregations in Australia without any governing constituent document other than a Holy Bible’” which undertook activities including holding bible meetings, pastoral care of its members, church discipline, holy communion, evangelical services in church halls and in public areas and prayer meetings in church halls.

26. In addition, there was evidence before the primary judge adduced by Mr White, the solicitor for the respondents, that when accessing the URL the home page referred to the “Plymouth Brethren Christian Church” and, too, to the appellant by its corporate name (excluding, for the reasons aforesaid, the word “Limited”) and the registered address in Ermington.

27. Mr White also deposed that when he clicked on the menu item labelled “about” on the home page to which I have referred, his internet browser was directed to a web page with the same URL as the home page, save that the symbol and word “/about” appeared at the end. The “about” page gave the history of the Plymouth Brethren Christian Church which in substance was to the same effect as the information Mr McNaughton had given Mr Svilans. That page also contained the appellant’s corporate name and the registered address in Ermington.

28. Finally, when Mr White clicked on the “who we are” label on the “about” page, his internet browser was redirected to another webpage which explained “Plymouth Brethren Christian Church life” and included, again, an explicit reference next to the name “Plymouth Brethren Christian Church” to the appellant’s corporate name and, again, to the registered address in Ermington.

Primary judgement

29. The primary judge described the proceedings as concerning “allegedly defamatory publications about a church”, accusing “‘members of a wealthy Christian sect’ (referred to in the articles as ‘the Exclusive Brethren’) … of child sex abuse” about which “now the man who helped with the cover-up is speaking out”. [18] Her Honour added that the “accusations of child sex abuse date back to the 1990s and earlier; the man who is ‘speaking out’ is said to have left the church in 2009.” [19]

    18.    Primary judgment (at [2]).

    19.    Ibid.

30. Her Honour said of the appellant, that it “is not a church. It is a company. It came into existence in 2012, years after the events discussed in the articles. It was incorporated for the purposes of advancing the Christian religion and acting as the secretariat of ‘the church’ in Australia.” Her Honour referred to what she said was how the “[t]he church in question [was] defined in the company’s constitution”, referring to the matter set out in the principal purposes section of the constitution. [20]

    20.    Ibid (at [3]); see [23] above.

31. After noting that being registered as a charity, the appellant was entitled to omit the suffix “Limited” from its name, “Plymouth Brethren (Exclusive Brethren) Christian Church”, the primary judge observed “[t]he articles do not refer to any entity by that name.” [21]

    21.    Ibid (at [4]).

32. The primary judge recognised that the test for identification was that stated by Isaacs J in David Syme & Co v Canavan:[22]

“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?” [23] [Emphasis added.]

22. (1918) 25 CLR 234 (at 238); [1918] HCA 50 (Canavan).

23.    Primary judgment (at [6]).

33. Her Honour accepted that the test for identification was objective. She also accepted a submission by the respondents that the phrase in the Canavan test “persons acquainted with the plaintiff” meant “a person acquainted with the true facts concerning the plaintiff”. [24] The appellant contends her Honour erred in this respect.

    24.    Ibid (at [37] – [39]).

34. After setting out the imputations, the primary judge commented:

“As the plaintiff company is not in fact the entity referred to in the article (and did not exist when the events described occurred), any defence of truth to those imputations seems doomed to fail.” [25]

25.    Ibid (at [31]).

35. Her Honour then repeated her earlier statement that “the plaintiff is not named in the matters complained of”. [26] She set out the appellant’s particulars of identification, [27] about which she observed:

“[35]   The plaintiff’s lengthy particulars of identification notably omit the fact that the plaintiff did not exist until 24 May 2012. The matters complained of are unequivocally concerned with events that occurred before that date. Accordingly, as already noted, the plaintiff company could not, as a matter of objective fact, be the organisation referred to in the article.” [Emphasis added.]

26.    Ibid (at [32]).

27.    Ibid (at [33]).

36. In the dispositive parts of her reasons, the primary judge said (footnotes omitted):

“44   On one view, this issue is easily resolved by a simple application of the plain words of the statute. As already noted, the Defamation Act contemplates the existence of a cause of action in respect of the publication of defamatory matter ‘about’ a person. That suggests an objective test. It does not suggest the existence of a cause of action for the publication of defamatory matter not about a person, or about a non-person.

45   Of course an article that names a person or depicts a person in a photograph is an article ‘about’ that person, even if the person is named or depicted by mistake on the part of the newspaper. Similarly, an article intended to describe a fictitious person may be taken to be an article about a real person of the same name. Cases referring to persons by name or photograph are in a different category because the erroneous belief arises from the words published. Such an article is ‘about’ the plaintiff, even if it was not intended to be. I do not think the words published in the present case, which describe the conduct of members of a church in past decades, is capable [sic, are capable] of being taken to be a publication ‘about’ a corporate vehicle first registered in 2012.

46   In case it is considered heretical to rest on the clear words of the statute in this most arcane field of the common law, my review of the authorities relied upon by the parties has brought me to the same conclusion and has not prompted me to resile from what I said in Nu-Tec.

47   Those authorities do draw a distinction between defamatory publications in which a plaintiff is referred to by name and those in which that is not the case. Mr Smark [counsel for the plaintiff] submitted that the question in the present case is not who was meant but rather who was hit. That was the question posed in argument by Loreburn LC in E Hulton & Co v Jones, the case referred to above involving an article about a person thought to be fictitious but who actually existed. The plaintiff was Mr Artemus Jones, a barrister who had previously been on the staff of the newspaper and contributed articles under his own name. The authors of the matter complained of, believing “Artemis Jones” to be a fictitious person with an unusual name, published an article defamatory of a person so described. The fact that they had not intended to refer to the plaintiff was not to the point. They had referred to a real person by name.

48   The liability of the publishers in Lee v Wilson and Zoef v Nationwide News Pty Ltd similarly rested on the fact that the identification of the plaintiff in each case was the result of the words published. In each case, the article referred to a person of the name of the plaintiff. It makes sense that a publisher will be held liable where his own erroneous statement leads to the identification of a person but not where that occurs due to an erroneous belief not arising from the words published.

49   Separately, Mr Smark submitted, in effect, that a lack of knowledge on the part of the reader (that the plaintiff did not exist at the time of the conduct described in the article) cannot be styled as an erroneous belief. He submitted that there is no reason to think persons ‘acquainted with’ the plaintiff would know when it was incorporated.

50   I do not accept that submission. The argument tended to conflate the objective qualities of a person with the particulars of identification relied upon by the plaintiff. The particulars specified in the present case do not include the fact that the plaintiff came into existence in 2012, for the obvious reason that any person who knew that fact would know the article was not about the plaintiff. I accept that there may well be classes of people who are aware of the existence of the plaintiff but do not know when it was incorporated. But in that event, the inference that the article was about the plaintiff could not reasonably be drawn based on the words published. It could only be based on speculation on the part of the reader.

51   For those reasons, I have concluded that the matters complained of are not reasonably capable of identifying the plaintiff.” [Emphasis added.]

Issues on appeal

37. The appellant complains in its notice of appeal that the primary judge:

1. erred in dealing with the application as a separate question;

2. erred in holding that a publisher is not liable for a defamatory meaning imputed to the plaintiff as a result of some erroneous belief on the part of a person to whom the matter is published;

3. erred in finding that the matters complained of were incapable of identifying the appellant; and

4. erred in finding that any person who was unaware of when the appellant was incorporated could only identify it by a process of impermissible speculation.

Appellant’s submissions

38. The appellant submitted that while the primary judge referred to the correct test for identification in Canavan, her Honour did not apply it.

39. The appellant submitted that it was not necessary for a publication to be capable of identifying a corporate plaintiff, that it be referred to by its corporate name. It contended it was sufficient in order for that entity to be identified as the subject of defamatory material that its role was apparent to the recipient.

40. Secondly, the appellant pointed out that while, as her Honour said, its full corporate name was not set out in the matter complained of, the references in the matter complained of to the “Plymouth Brethren Christian Church” in paragraphs 20 and 90 came close to naming it. They accurately referred to its registered trademark and business name and also to the entity which carried out the charitable work referred to in the matter complained of.

41. Thirdly, the appellant argued that the references in the matter complained of to the “Brethren” having rebranded itself as the “Plymouth Brethren Christian Church” in paragraph 20, as well as the repetition of that statement in paragraph 90, accompanied by the words that “nothing else has changed,” were capable of leading the reader to assume there was a continuity between the “Brethren” and itself as the rebranded entity. It pointed out that its imputations (b) and (c) reflected such continuity. It argued that it could not be said that the fact that a reader identified it as the entity referred to in the article would be an “erroneous conclusion.” Even if that were the case, it was a conclusion which arose only because nothing was done in the matter complained of to dispel the notion of continuity inherent in those passages.

42. Fourthly, the appellant submitted that the references to the “Exclusive Brethren” having rebranded itself as the “Plymouth Brethren Christian Church” were capable of leading curious readers to inform themselves of its identity. It noted that in its particulars of identification it had identified the fact that there was a “significant ‘spike’ in new users of [its] website as of the date of publication” of the matters complained of. It contended that it was clear that by reason of that “spike” the appellant was plainly identified by readers of the matter complained of. It relied in this respect upon the fact that such a spike suggested that people had consulted the website for the purpose of ascertaining the identity of the entity referred to.

43. Fifthly, the appellant complained that the primary judge was incorrect in applying, as a blanket proposition, what purported to be a principle that a publisher cannot be held liable for a conclusion as to identification founded upon an erroneous belief on the reader’s part. [28] The appellant submitted that an erroneous belief may be relied upon in certain circumstances, particularly where, as the passage to which her Honour referred from Mirror Newspapers Limited v World Hosts Pty Ltd [29] demonstrated, the reader’s belief arose from, or was the product of, the matter complained of.

    28.    Primary judgment (at [39]).

    29. (1979) 141 CLR 632 (at 642); [1979] HCA 3 (World Hosts) per Mason and Jacobs JJ (Gibbs and Stephen JJ agreeing).

38. Sixthly, the appellant submitted that the primary judge failed to distinguish between two issues, first whether a reasonable reader would think that the article was referring to it (the identification question) and, secondly, whether the reader believed, or knew, the allegation in question to be true or false. The appellant submitted the issues were not the same and were logically distinct whereas, it contended, the primary judge treated them as one, thus erroneously concluding that if the reader believed, or knew, the allegations to be false insofar as it was concerned, that determined the identification question.

39. Seventhly, the appellant submitted that the primary judge erred in law in accepting, in applying the Canavan test, the respondents’ submission that the phrase “persons acquainted with the plaintiff” in Canavan meant a person acquainted with the true facts concerning the plaintiff. [30] The appellant submitted that her Honour’s acceptance of that proposition placed too much weight on the words “acquainted with” and failed to have regard to cases such as Channel Seven Sydney Pty Ltd v Parras,[31] for example, where the fact that the only reference in the matter complained of was to the “Soho Bar” did not prevent the corporate plaintiff which operated that Bar having been defamed, even though many people would have been wholly unaware it operated the establishment.

    30.    Primary judgment (at [38] – [39]).

    31. [2002] NSWCA 202; (2002) Aust Torts Reports ¶81-675 (Parras).

40. Eighthly, the appellant submitted that the primary judge erred in failing to engage with its particulars of identification. While it accepted that her Honour quoted those particulars, it argued that her Honour never considered the effect they would have at trial both generally, as well as, for example, if the appellant called witnesses of the type referred to in particular (d), one being people who had received assistance from the Rapid Relief Team and knew the particulars of identification who read the matter complained of and thought it referred to the appellant.

41. Finally, the appellant submitted that the primary judge had erred in concluding that the fact that it had not been incorporated until 2012 was sufficient to conclude having regard to the date of the events referred to in the matter complained of, that it was not capable of being identified. It complained that this conclusion could not be reached when one had regard to its particulars of identification. It submitted that in so concluding, the primary judge failed to consider, and apply the Canavan test.

Respondents’ submissions

48. The respondents advanced what they described as three “headline” propositions. First, that if any reader of the matter complained of understood it to be about the appellant, then that person was, as the primary judge correctly said, objectively mistaken. This proposition particularly depended upon the respondents’ submission that the matter complained of was about events which ended in 2009, whereas the appellant only came into existence in 2012.

49. Secondly, while the respondents accepted that there can be circumstances in which a publisher is liable for the erroneous identification of a plaintiff, where for example there is a pointer to the plaintiff, such that the identification reasonably flows from the words of the publisher, they contended the primary judge was right to say that that is not what the publisher did here. They contended that this was not a case where the matter complained of was reasonably capable of pointing to more than one relevant entity. Rather they contended that the matter complained of was only capable, as her Honour found, of pointing to a church which had been founded in 1829, had 40,000 members worldwide and 15,000 members in Australia.

50. Thirdly, the respondents submitted that if any reader of the matter complained of believed it was about the appellant that was not because of the matter complained of, but because of the appellant’s own conduct in registering the company with the name in question in 2012, in establishing the website, in registering the trademark and in operating a YouTube account. They contended that there were no authorities in which a publisher had been found to be liable for an erroneous belief induced by the conduct of the plaintiff itself.

51. Fourthly, the respondents submitted that the primary judge was correct in applying World Hosts concluding that an allegedly defamatory matter was not capable of identifying a putative plaintiff when the recipient’s incorrect identification of the plaintiff flowed from the recipient’s erroneous belief not arising from the published words.

52. Fifthly, the respondents submitted this was a case where the matter complained of could only be capable of identifying the appellant to a reader who erroneously believed that the appellant existed at the time of the events described in the articles and had an involvement in those events. They contended that the matter complained of did not name the appellant but, rather, as the primary judge had observed, was about the church or sect known as the “Exclusive Brethren”. Accordingly, the respondents contended, the primary judge was correct to observe that “the inference that the article was about the plaintiff could not reasonably be drawn based on the words published” and that it “could only be based on speculation on the part of the reader.” [32]

    32.    Primary judgment (at [50]).

53. Sixthly, the respondents submitted that the appellant could only establish identification by relying on an extrinsic fact to the effect that it was in existence at the time of the events described in the matter complained of. They observed that the appellant had not particularised any such fact, but, in any event, such a fact would be false and, as the appellant acknowledged, a plaintiff cannot rely on a false extrinsic fact to establish identification.

54. Seventhly, the respondents submitted that the appellant’s particulars of identification and the identifying factors in the matter complained of the appellant relied upon before the primary judge were like ships passing in the night. They contended that there was no link or correlation between the particulars and the contents of the articles, using as an example the fact that Mr Hales who was referred to extensively in the matter complained of was not referred to in the particulars nor was the role he plays in relation to the appellant. They also observed that it was apparent from the ASIC search of the appellant that Mr Hales was not, and never had been, an officer of the appellant.

55. Eighthly, as the appellant relied on passages in the matter complained of referring to what the respondents argued were references to the “Church” “rebranding” itself to a name similar to, but not the same as, the appellant’s, the respondents argued that no ordinary reasonable reader would understand that to be a reference to an entirely different legal entity incorporated three years after the last of the events described in the matter complained of.

56. Ninthly, the respondents took issue with the appellant’s submission that the statement in the matter complained of that “nothing else has changed” demonstrated continuity between the church and the rebranded entity. They submitted, rather, that that statement reinforced to the ordinary reasonable reader that the entity being discussed in the matter complained of was the church and not a different, recently incorporated entity. They contended that all the identifying information in the article pointed away from the appellant.

57. Finally, the respondents disputed the appellant’s submission that the spike in users of its website at the time of publication of the matter complained of indicated readers were searching for its identity. They contended that an analysis of the main pages of that website showed it concerned the church, not the appellant, pointing to the information it included about the church’s history, beliefs, values and worship. Accordingly, they contended, that any person who consulted that website as a result of reading the matter complained of would have done so because he or she was seeking information about the church, not information about the appellant, and, having done so, would have, as a result, received information about the church.

Identification

58. It is an essential element in the cause of action in defamation that the matter complained of be published of and concerning, that is to say that it identify, the plaintiff. [33]

    33. Universal Communication Network Inc trading as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd and Chan [2008] NSWCA 1; (2008) Aust Torts Reports ¶81-932 (Universal Communication Network) (at [42]) per McColl JA (Mason P and Young CJ in Eq agreeing), referring to Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (Steele) (at 371) per Samuels JA; Gardener v Nationwide News Pty Limited [2007] NSWCA 10 (at [43]) per Bryson JA (Mason P and Tobias JA agreeing); Parras (at [29]) per Mason P (Handley JA and Ipp AJA agreeing).

59. If the matter complained of is clearly defamatory and refers by name to the person defamed, it is necessary to prove only that it was published by the defendant, without proving that the persons to whom it was published had any knowledge of the plaintiff. [34]

    34. Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 (Browne) (at 89) per Jordan CJ; applied by Mason and Jacobs JJ (with whom Gibbs and Stephen JJ agreed) in World Hosts (at 639).

60. However, it is not necessary that the matter complained of name the plaintiff. It is sufficient that the words used are “such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to.”[35] Thus, if 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 of and concerning the plaintiff, to prove that it was published to a person or persons who had knowledge of those circumstances. [36]

    35. Canavan (at 238); see generally Zoef v Nationwide News Pty Ltd (2016) 92 NSWLR 570; [2016] NSWCA 283 (at [127] ff) per Gleeson JA (Ward and Payne JJA agreeing).

    36.    Browne (at 89).

61. It is a question for the judge “to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff”. [37] It is then for the jury to decide as a question of fact whether it actually identified the plaintiff. [38] It is irrelevant whether or not the publisher of the matter complained of intended to refer to the plaintiff. [39]

    37. Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (Morgan) (at 1245) per Lord Reid; Younan v Nationwide News Pty Ltd [2013] NSWCA 335 (Younan) (at [18]) per Macfarlan JA (Bathurst CJ and Beazley P agreeing).

    38. E Hulton & Co v Jones [1910] AC 20 (Hulton) (at 25) per Lord Shaw of Dunfermline.

    39. Hulton (at 24) per Lord Loreburn LC (Lord Atkinson, Lord Gorell and Lord Shaw of Dunfermline agreeing; Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 (at 340) per Scrutton LJ; Hough v London Express Newspaper Ltd [1940] 2 KB 507 (at 516) per Goddard LJ; Morgan (at 1242) per Lord Reid and Fullam v Newcastle Chronicle [1977] 1 WLR 651 (at 655) per Lord Denning MR (with whom Orr and Scarman LJJ agreed).

Erroneous belief

62. The appellant’s submission that the primary judge erred in law in accepting the respondents’ submission that the phrase “persons acquainted with the plaintiff” in Canavan meant a person acquainted with the true facts concerning the plaintiff should be carefully scrutinised. In this respect Her Honour said she relied on the High Court’s decision in World Hosts and her decision in Nu-Tec v ABC. [40]

    40. Primary judgment (at [39], referring to World Hosts (at 642) and Nu-Tec v ABC [2010] NSWSC 711 (Nu-Tec) (at [17] – [18]).

63. In World Hosts, the appellant, Mirror Newspapers Ltd, published an article under the headline “Caprice Owner Declared Bankrupt by Court” stating that a restaurateur, named Mr Countis, had been declared bankrupt, and that he carried on business at the Caprice restaurant. Mr Countis was, in fact, the manager and not the owner of the restaurant. World Hosts Pty Ltd, the owner of the restaurant, sued the newspaper for defamation under the Defamation Act 1958 (NSW) (1958 Act). It was not named in the article. Its case was that, at all material times, it was, and was known by some persons to be, the owner of the Caprice restaurant. [41]

    41.    World Hosts (at 636).

64. At the trial, World Hosts proved the article was published to persons who knew that it was the owner of the Caprice Restaurant, and also that it was read by persons who believed that Mr Countis was an owner of, or shareholder in, World Hosts. [42] The latter belief was erroneous. The jury found in World Hosts’ favour. The Court of Appeal dismissed the publisher’s appeal. In the High Court, the publisher contended the article could not be read as conveying an imputation concerning World Hosts to any reasonable reader as required by s 5 of the 1958 Act, and that any reading to the contrary could only be the product of the reader’s incorrect belief, rather than arising from the article itself. [43]

    42.    Ibid (at 637).

    43.    Ibid (at 638).

65. In dealing with the evidence of erroneous belief, Mason and Jacobs JJ made the following observations (footnotes omitted): [44]

“However, the erroneous belief of a reader as to the existence of a fact cannot found an innuendo, for an innuendo must be based on an existing fact: Grubb v Bristol United Press Ltd. A defendant is not liable for an imputation which is not the product of the words complained of read in the light of existing facts known to the reader, but which is merely the product of those words understood in the light of the reader's erroneous belief: see Livingstone-Thomas v Associated Newspapers Ltd.

It is of course different if the reader’s belief arises from, or is the product of, the matter complained of. Then the case falls to be determined, as here, by reference to the inherent capacity of the words to bear the imputation put forward, that is, by reference to the natural and ordinary meaning of the words.” [The italicised passages were those the primary judge cited.] [45]

44.    Ibid (at 642).

45.    Primary judgment (at [40]).

66. In the passages from Nu-Tec to which the primary judge referred, her Honour referred to principles as to the identification of a plaintiff in proceedings for defamation as explained in Morgan,[46] and also, in substance, to the passage from World Hosts to which I have referred.

    46.    At 1252, per Lord Morris.

67. The primary judge applied these authorities in accepting the respondent’s submission that the matter complained of could not reasonably lead persons acquainted with the appellant to believe it was the entity referred to because the matter complained of concerned events prior to 2012, such persons would know it did not exist prior to that time and, accordingly, any identification of the appellant as the entity referred to would necessarily be based on an erroneous belief on the part of the reader. In this respect, her Honour concluded:

“I do not think the words published in the present case, which describe the conduct of members of a church in past decades, is capable of being taken to be a publication ‘about’ a corporate vehicle first registered in 2012.” [47]

47.    Primary judgment (at [45]).

68. In my view, the appellant’s submission that the primary judge erred insofar as she accepted the respondent’s submission that the Canavan test meant “a person acquainted with the true facts concerning the plaintiff” should be accepted. The proposition her Honour accepted was stated at too high a level of generality. As is apparent from World Hosts and Morgan (the latter discussed below), an erroneous belief which is the product of the matter complained of can be relied upon for the purposes of identification.

69. In addition, the proposition concerning Canavan the primary judge accepted accorded with her reading of the matter complained of as referring only to pre-2012 events. However, as I explain below, the matter complained of dealt with historical events in a contemporary, that is to say post-2012, context.

Determining capacity

70. In determining whether the matter complained of was capable of identifying the appellant, the principles to be applied are the same as those to be applied where the issue is whether the matter complained of is capable of bearing a defamatory meaning. [48] In this context, certain fundamental principles should be borne in mind.

    48. World Hosts (at 641); Islam Expo Ltd v The Spectator (1828) Ltd [2010] EWHC 2011 (QB) (Islam Expo) (at [6]) per Tugendhat J; this was the approach expressly adopted in Morgan (at 1243, 1245) per Lord Reid; and applied by Lord Morris (at 1254); and Lord Pearson (at 1269 – 1270); cf Lord Guest (at 1261), albeit that his Honour did substantially apply the Lewis v Daily Telegraph [1964] AC 234 (Lewis) approach.

71. First, in Favell v Queensland Newspapers Pty Ltd,[49] the plurality (Gleeson CJ, McHugh, Gummow and Heydon JJ, Kirby J generally agreeing) approved the following statement by McPherson JA in the Court of Appeal:

“Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.” [Emphasis added.]

49. [2005] HCA 52; (2005) 79 ALJR 1716 (at [6]) (Favell).

72. In Corby v Allen & Unwin Pty Ltd,[50] after referring to this passage in Favell, I explained that:

“[136]   One reason ‘great caution’ is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that ‘no reader could reasonably understand the words to bear any meaning outside the range delimited … by the judge; and that it would be ‘perverse’ for any jury to do so’: Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694 ; [2004] EMLR 89 (‘Jameel’) (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing).

[137]   Thus, the focus should be on the fact that the decision deprives the plaintiff of the opportunity to present his or her case to the jury, the importance of whose constitutional role in this area as representatives of the community is frequently emphasised: see John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 (‘Rivkin’) (at [2]) per Gleeson CJ (who also agreed with Callinan J); (at [184]) per Callinan J. The significance of the jury’s role warrants the application of a ‘high threshold of exclusion’: Jameel (at [14]) per Simon Brown LJ.”

50. [2014] NSWCA 227 (Bathurst CJ and Gleeson JA agreeing).

73. This cautionary approach is reflected in decisions which emphasise that the capacity test should not be approached with the mind of a lawyer, but with an attempt to understand how the matter complained of could be understood, in the case of a written publication, by the ordinary reasonable reader.

74. Secondly, determining the capacity question in the context of a separate question, requires its consideration as on a final hearing, that is, whether it has been established on the balance of probabilities, including a consideration of possibilities, to determine whether an ordinary sensible reader (with the particularised extrinsic knowledge) could reasonably have come to the conclusion that the article referred to the plaintiff. [51]

    51.    Younan (at [20] – [21]).

73. Thirdly, in Lewis,[52] in the context of determining whether a newspaper report was capable of conveying the defamatory meaning the plaintiff alleged, Lord Devlin observed that:

“…the layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and, unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.”

52. [1964] AC 234 (at 277).

76. In Favell,[53] the plurality described his Lordship’s observation as “an important reminder for judges”.

    53.    (At [11]).

77. Thirdly, it is not necessary that there be a pointer in the defamatory matter itself to the plaintiff. [54] It is sufficient that the matter complained of is capable of being read by the ordinary reasonable reader with knowledge of identifying facts as referring to the plaintiff. The loose thinking to which the ordinary reader is prone is such that it may be reasonable for that person to identify the plaintiff, even though “some of the identifying facts fit the plaintiff and … others do not”. [55] In such circumstances, it is a matter for the jury “to say whether any of these points negatived the view that readers with knowledge of the plaintiff would reasonably have understood that the words referred to him.” [56]

    54.    Morgan (at 1243 – 1244) per Lord Reid; World Hosts (at 639) applying Browne (at 89).

    55. Morgan (at 1254) applied in Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports ¶80-138 (at 69,080) per Hunt J.

    56.    Morgan (at 1254) per Lord Morris.

78. Judicial recognition of, and respect for, the reasonable reader’s greater capacity for drawing inferences is reflected in many identification cases.

79. Thus, in Morgan, where the plaintiff was not named in an article, but relied on references within it as to which there were a number of discrepancies between the facts asserted and the actual facts, the majority in the House of Lords held that the trial judge had not erred in leaving the case to the jury.

80. Lord Morris held that “what must be contemplated is a reading of a newspaper in what a jury would consider to be the ordinary way in which a newspaper article would be read. The average reader does not read a sensational article with cautious and critical analytical care.” [57] Lord Pearson explained that such a person may be one who reads an article, for example, which “is vague, sensational and allusive … [and] evidently designed for entertainment rather than instruction or accurate information … casually and not expecting a high degree of accuracy." [58]

    57.    Morgan (at 1254).

    58.    Morgan (at 1269 – 1270).

81. In Hulton v Jones, [59] a newspaper, published a defamatory article about a Mr Artemus Jones, a person believed both by the author of the article and the editor of the newspaper to be a fictitious person with an unusual name. In fact, there was a Mr Artemus Jones who was a practising barrister whose name was unknown to them. The article described Mr Jones in defamatory terms as a churchwarden at Peckham. In fact he was neither a churchwarden nor did he reside at Peckham. [60] Despite these discrepancies, Mr Jones brought successful proceedings for defamation in which he led evidence that friends had read the defamatory article and believed it to refer to him. The defendants sought to set aside the verdict and judgment on the basis that liability for defamation depended on there having been “intention in the writer to apply the words to the plaintiff”. They were unsuccessful in the Court of Appeal and also in the House of Lords.

    59. [1910] AC 20 (Hulton).

    60. Jones v E Hulton & Co [1909] 2 KB 444 (Jones) (at 445).

82. The House of Lords unanimously held that that the author’s intention on the question of the capacity of the article to refer to the plaintiff was irrelevant. [61] Lord Shaw of Dunfermline said: [62]

“In the publication of matter of a libellous character, that is matter which would be libellous if applying to an actual person, the responsibility is as follows: In the first place there is responsibility for the words used being taken to signify that which readers would reasonably understand by them; in the second place there is responsibility also for the names used being taken to signify those whom the readers would reasonably understand by those names; and in the third place the same principle is applicable to persons unnamed but sufficiently indicated by designation or description.”

61. Ibid (at 23 – 24) per Lord Loreburn with whom the other Law Lords agreed.

62.    (At 26).

83. In the Court of Appeal, Farwell LJ applied the metaphor of a “man who throws a squib into a crowd not intending to hit anyone” being “liable for the consequences of his act, whatever his intentions may have been, because the two necessary constituents of tort, namely, a wrongful act by the defendant and actual damage to the plaintiff, are both present”. [63] In such circumstances “[t]he squib thrower is liable for the injury done by his squib to the plaintiff, whether he aimed at or intended to hit him or not”. [64]

    63.    Jones (at 480); in Hulton (at 25), Lord Atkinson and Lord Gorell concurred substantially with Farwell LJ’s judgment.

    64.    Ibid (at 481).

84. In Lee v Wilson and MacKinnon, [65] a defamatory statement about a person described as “Detective Lee”, was held to be capable of identifying two men, “Arthur Lonsdale Lee” and “Clifford Lee”, each of whom was commonly called “Detective Lee” and each of whom was entitled to bring libel proceedings. The statement was intended to refer to another member of the Victorian Police Force who had been adversely named in the report of evidence given at a Board of Inquiry into allegations concerning that Police Force. [66] Each man brought successful defamation proceedings in respect of the statement, even though neither’s full name was referred to. Each led evidence that “people who knew him and his position in the police force understood the words in a sense defamatory of him”. [67] The publishers’ appeal against the verdict of £50 for each plaintiff was upheld in the Full Court of Victoria but reversed by the High Court.

    65. (1934) 51 CLR 276; [1934] HCA 60 (Lee).

    66. Ibid (at 282).

    67. Ibid (at 283).

85. Dixon J held that it was sufficient for the publishers to be found liable that each plaintiff corresponded to the description in the defamatory matter of being a “Detective Lee”. The publisher’s intention was irrelevant. [68] His Honour quoted with approval both Lord Loreburn’s and Lord Shaw’s statements in Hulton, holding they expressed “a test which makes the tort of libel consist in the operation of defamatory matter as an actual disparagement of the plaintiff's reputation.”[69] His Honour also quoted with approval Scrutton LJ’s statement in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd,[70] that it was:

“[T]he law that though the person who writes and publishes the libel may not intend to libel a particular person and, indeed, has never heard of that particular person, the plaintiff, yet, if evidence is produced that reasonable people knowing some of the circumstances, not necessarily all, would take the libel complained of to relate to the plaintiff, an action for libel will lie.” [Emphasis added.]

68. Ibid (at 287 – 288).

69. Ibid (at 290).

70. (1934) 50 TLR 581 (Youssoupoff) (at 583); quoted by Dixon J (at 292).

86. Dixon J also approved Sir Frederick Pollock’s opinion in his comment on the Hulton decision, [71] that: “It seems to follow that if the same words may reasonably be understood by different persons to apply to A., B., C … &c. there is no reason why A., B., C. … &c. should not all have simultaneous and independent causes of action.” In Dixon J’s opinion, it was “not easy to see what other operation a rule could have which definitely makes the application of the defamatory words to the plaintiff depend upon objective considerations.” [72]

    71.    Lee (at 291 – 292) referring to Sir Frederick Pollock, Law of Torts, (13th ed, 1929, Stevens and Sons Limited) at 259, note (n).

    72.    Lee (at 292).

87. In World Hosts, Mason and Jacobs JJ considered that it did not matter for the purposes of finding the article bore a defamatory meaning of and concerning World Hosts arising from its natural and ordinary meaning, that the article may have confused readers who knew the plaintiff was the owner of the restaurant. In their Honours’ view, even if such a reader thought the reference to the owner in the headline was an error, such a reader might nevertheless “consider that the expression ‘declared bankrupt’ [in the headline] in reality meant in financial difficulties or was insolvent”. [73] In such circumstances, notwithstanding the possibility of confusion, their Honours clearly regarded a reader’s belief the article referred to World Hosts as being both reasonable and a product of the article, not merely an erroneous one.

    73.    (At 642).

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

89. Three plaintiffs, including Hotel Pursuits Pty Ltd, sued Channel 7 for damages for defamation arising out of the telecast. The other two plaintiffs were the directors and managers of the company. The proceedings were governed by the Defamation Act 1974 (NSW). At a s 7A trial the jury concluded that five imputations were conveyed of and concerning each plaintiff. It was common ground that if the imputations were conveyed, they were defamatory. On appeal, Channel 7 argued, inter alia, that the plaintiffs were not identified by the telecast.

90. Mason P held that the corporate plaintiff could be identified in the telecast even though viewers of the programme were unaware of its formal title. [74] In his Honour’s view because the telecast did not refer to any of the plaintiffs by name or title, there had to be some evidence which could show that each could be identified by viewers with knowledge of extrinsic facts at the time of publication. Applying Morgan, [75] his Honour held that while this did “not require proof of a ‘peg or pointer’ in the publication itself”, it did require “evidence of publication to at least one person who had knowledge of extrinsic facts that would provide the necessary identification.” [76] As the trial judge in Parras, Simpson J (as her Honour then was), said in a passage Mason P quoted with approval, it is “the substance of the identification, not the technicality, that is important.” [77] Over analysis should be eschewed. [78]

    74.    Parras (at [45] – [51]) (Handley JA and Ipp AJA agreeing).

    75.    At 1243 – 1244 per Lord Reid.

    76.    Parras (at [31]).

    77.    Parras (at [63](9)).

    78.    Islam Expo Ltd (at [21], [26]) (QB).

91. In contrast, in Younan, in March 2012 the Daily Telegraph published in its newspaper, and on the internet, an article entitled “Vile conditions in mouldy boarding house of death”. The article referred to events which occurred “in just 14 months” between June 2009 and August 2010. The plaintiffs had operated the property as a boarding house since about 9 November 2010. The Court of Appeal upheld Nicholas J’s decision dismissing the proceedings on the basis the article was incapable of identifying the plaintiffs. This was because in his Honour’s view, ordinary sensible readers could not reasonably have concluded that the operators of the boarding house in the period up to 8 August 2010 would necessarily have been the same on or after 13 March 2012, the date of publication, about 19 months later. [79] In Macfarlan JA’s view, “a conclusion that the plaintiffs were referred to in the article would not be based upon ‘the reader’s understanding of what the [article] is saying’ but would result from the reader’s own ‘beliefs and prejudices’”. [80]

    79.    Younan (at [23]).

    80.    Ibid (at [25]).

92. These illustrations reflect the proposition that it does not matter for the purposes of identification if the publisher has never heard of the plaintiff, [81] nor, indeed, as in Hulton, that the writer did not intend the publication to refer to an existing person, but to relate to an imaginary incident and to a fictitious character, and the publication was capable of being so understood. [82] It is sufficient to establish identification if the publication uses language “which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it”. [83] It does not matter if the reader’s identification is the product of confusion, as long as that confusion is reasonably the product of the matter complained of, rather than the reader’s erroneous belief. [84]

    81.    Jones (at 24) per Lord Loreburn.

    82.    See Lee (at 289) per Dixon J.

    83.    Hulton (at 23), a passage approved by Dixon J in Lee (at 290).

    84.    World Hosts; Morgan.

93. It follows from this discussion that, with respect, the primary judge erred in rejecting the appellant’s submission that the Canavan test is “whether some people might reasonably have understood the matter complained of to refer to it even though any such understanding must necessarily have been mistaken.” [85] As the authorities to which I have referred make plain, a mistaken identification may be drawn by a reasonable reader, as long as it is a product of the matter complained of.

    85.    Primary judgment (at [38] – [39]).

Conclusion

94. The central thesis of the matter complained of was that the Exclusive Brethren later identified as the rebranded “Plymouth Brethren Christian Church” has managed to avoid scrutiny over allegations of child sex abuse “Until now”. [86] Positioning the historical events it discussed in the present (“now”) was the hook, or the angle, which made it particularly relevant to the reader.

    86.    Matter complained of (at [8]).

95. The matter complained of may have been interesting if it merely recorded the historical complaints of sexual abuse committed by the members of the faith and their alleged cover-up. However, setting it in the present, and suggesting attempts by the rebranded Plymouth Brethren Christian Church to continue the cover-up, in the context of the possibility those complaints of sexual abuse may be the subject of inquiry by the Royal Commission into Institutional Responses to Child Sex Abuse (Royal Commission), was the key to its contemporary relevance. Thus, the matter complained of intertwined history with the present. It also intertwined the names “Brethren”, “Exclusive Brethren” and “Plymouth Brethren Christian Church”.

96. The matter complained of introduced the topic of the Royal Commission early on. In that context, it identified a number of “institutions” as those which have “create[d] the environment for some men to commit crimes against the children over whom they hold sway”, then observed that “the power of the institution is then bent to covering it up.” [87] The matter complained of then identified the Exclusive Brethren “now rebranded as the Plymouth Brethren Christian Church” as a “group” which has “managed to fly under the radar”, a matter which is “about to change”. [88]

    87.    Matter complained of (at [19]). [Emphasis added.]

    88.    Ibid (at [20] – [22]).

97. The clear implication of this, in my view, is that the “institution” now known as the “Plymouth Brethren Christian Church” which hitherto has not been scrutinised, is about to be examined by the Royal Commission in relation to child sexual abuse matters. It is that “institution” which will be concerned to cover-up allegations of child sexual abuse such as those described in the matter complained of.

98. The matter complained of then extensively discussed cases of alleged sexual abuse committed by members of the faith as recounted by Mr McCorkell to the author in the manner to which I have earlier referred, including the facts that in respect of the cases with which he dealt, the Brethren were concerned to cover matters up, to protect “the position”. [89]

    89. See [13] – [18] above.

99. In its conclusion the author brought the matter complained of back to the present. He repeated the fact that “the Exclusive Brethren has rebranded itself the Plymouth Brethren Christian Church,” then added that “Nothing else has changed”. Rather, the world around the “Brethren” has changed. He referred to church elders’ fear that they will be called to account at the Royal Commission, pointing out that the “members of the Sydney leadership” have reminded Mr McCorkell that he had signed a confidentiality agreement. Nevertheless, he had “decided to speak out regardless”. The article points out that he is prepared to give evidence to the Royal Commission because “those responsible need to be held to account”.

100. Thus, in its conclusion, the matter complained of firmly plants the disclosure of the historical events it has discussed (which it implies are about to be investigated by the Royal Commission) and the “rebranded” Plymouth Brethren Christian Church’s conduct in seeking to cover them up as contemporaneous with its publication. The matter complained of is bracketed at the start and finish by references to the present.

101. The primary judge, with respect, did not at any stage recognise that the matter complained of discussed contemporary events. Rather, as the extracts from her Honour’s reasons to which I have referred make clear, her Honour identified the matter complained of as only referring to events which took place prior to 2012 when the appellant was incorporated. This error, in my view, underpinned her Honour’s conclusion that the matter complained of was not reasonably capable of identifying the appellant. It was in this context that her Honour also expressed the view that the appellant was not named in the matter complained of. It was presumably for these reasons that the primary judge failed to consider the effect on the identification question of the particulars of identification. Rather, her Honour appears to have discarded them because they “notably” omitted the fact “the plaintiff did not exist until 24 May 2012.” [90]

     90.    Primary judgment (at [35]; see also [50]).

102. The identification question had to be determined in the context that the matter complained of discusses historical events, albeit in a contemporary context. The respondents’ submissions which embrace the temporal setting the primary judge identified should be rejected.

103. On the approach I favour, it may be accepted, as the primary judge said, that the full name of the appellant, the Plymouth Brethren (Exclusive Brethren) Christian Church, did not appear in terms in the matter complained of. However, as I have said, it was not necessary that its name appear as long as evidence of publication to people with knowledge of the identifying factors was adduced. [91]

     91.    See World Hosts, Parras.

104. Further, various permutations of the appellant’s full name did appear in the matter complained of, including the references to the “Plymouth Brethren Christian Church” which was the name under which it had conducted its business since at least 2012, and for which it held the trademark. It was also the name which appeared on the three pages of its website in association both with its full name and its registered company address. Other permutations of its name, including “Exclusive Brethren” and “Brethren” were scattered throughout the matter complained of. In the final paragraphs of the matter complained of, the names are used interchangeably such that the ordinary reasonable reader could read them as referring to the one entity.

94. Further, the references to the fact that the “Brethren” and the “Exclusive Brethren” had rebranded itself as the “Plymouth Brethren Christian Church” had to be taken into account as connecting the appellant with past events. In addition, as set out in the particulars of identification, there were other factors including the reference to the rebranded Plymouth Brethren Christian Church having started to undertake charitable work which would be capable of identifying the appellant to the classes of persons referred to in the particulars. As I have said, it is not necessary that a reasonable reader know all the circumstances. [92]

    92.    Lee, Youssoupoff.

95. Even if some readers were confused as to whether the matter complained of might have also referred to a sect known as the Exclusive Brethren, that confusion, in my view, would have been the product of the matter complained of using the various names interchangeably, rather than because of an erroneous belief on their part or speculation. [93] As Lee demonstrates, the fact that reasonable readers may have identified more than one entity as the subject of the matter complained of was not a basis for holding it was not capable of identifying each of them.

    93.    Bearing in mind that what amounts to speculation involves questions of degree: Younan (at [30]).

96. The spike in new users of the appellant’s website as of the date of publication of the matter complained of also supported the appellant’s submission that a large number of people consulted the website for the purpose of ascertaining the identity of its subject. Having done so, those users would have seen the name used in the matter complained of, “Plymouth Brethren Christian Church”, in association with the appellant’s full name. Such “spike” evidence could also properly be placed before the tribunal of fact on the identification issue. [94]

    94. cf Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485; [2015] NSWCA 237 (Pedavoli) (at [115], [127], [130]) per Sackville AJA (McColl and Simpson JJA agreeing).

97. I would reject as absurd the respondents’ submission that if any person identified the appellant that identification was the product of an erroneous belief based on the appellant having registered the company with the name Plymouth Brethren (Exclusive Brethren) Christian Church in 2012, in establishing the website, in registering the trademark and in operating a YouTube account. It was the respondents who used the appellant’s business name and the permutations thereof to which I have referred in the matter complained of. Any identification, as I have said, was a product of the matter complained of, not an erroneous belief.

98. In so finding, I do not put out of consideration the historical flavour of the matter complained of. How, and to what extent, however, that might persuade the tribunal of fact to either parties’ submissions about the extent to which the appellant was identified in fact was, nevertheless, in my view, a question which had to be left to that tribunal. [95]

    95.    In Younan, for example, the court accepted that if the plaintiffs’ particulars of identification were consistent with them leading evidence at the trial from readers that they knew of operation by the plaintiffs of the boarding house prior to the date they read the article, it was a question of fact for the jury’s consideration as to whether such a reader could reasonably conclude, in those circumstances, that the plaintiffs were the operators of the premises referred to in the article: see [26] – [29] per Macfarlan JA.

99. Having lobbed the squib, the respondents were liable for the consequences to whomsoever their words were reasonably capable of identifying. A finding by the tribunal of fact that the matter complained of identified the appellant would not, in my view be perverse. [96]

    96.    See above (at [72]).

100. Finally, I note that the question whether the appellant required leave to appeal was not in issue, nor raised in the course of the appeal. This was, no doubt because the decision on the separate question concluded the appellant’s entire cause of action, it was a final order from which an appeal lay of right,[97] there having been an unchallenged affidavit from the appellant’s solicitor that in the event of success, that appellant would receive a verdict in the sum of $100,000 or more. [98]

     97. O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 (at 257); [1991] HCA 44 per Brennan J.

     98. Supreme Court Act 1970 (NSW), s 101(2)(r).

Orders

112. I propose the following orders:

1. Appeal allowed.

2. Judgment of the Court below set aside.

3. Order the respondents to pay the appellant’s costs, including the costs of the separate trial before McCallum J.

4. Remit the matter to the Common Law Division for case management.

113. BASTEN JA: On 17 and 18 June 2016, articles were published in The Age newspaper in Melbourne and The Sydney Morning Herald in Sydney. The articles alleged that there had, some years earlier, been a number of serious allegations of child sexual abuse within the Plymouth Brethren Church, complaints of which had been covered up by elders of the Church. The allegations, whether true or not, were clearly defamatory.

(1)   Claims in defamation

114. Shortly after the publications, a corporation known as Plymouth Brethren (Exclusive Brethren) Christian Church (“the company”) brought separate proceedings in defamation against The Age Company Ltd and Fairfax Media Publications Pty Ltd. Because the articles were relevantly identical, it is sufficient to refer to the article published in the Good Weekend section of The Sydney Morning Herald. The second respondent in each proceeding was the author of the article. Neither the individuals identified in the publications, nor the Church (if it be a legal person), brought proceedings.

115. The company was established to pursue charitable purposes only and is therefore registered as a company limited by guarantee without the word “Limited” in its name. [99] The registration occurred in 2012; in broad terms, the conduct the subject of the allegations occurred no less than six years earlier.

     99. Corporations Act 2001 (Cth), s 150(1).

116. In respect of each publication, the company (the plaintiff in the court below) alleged the following under the heading “Particulars of imputations”:

“The first matter complained of conveyed the following defamatory imputations of and concerning the plaintiff:

(a)   The plaintiff is an institution which covered up child sexual abuse by Lindsay Jensen, then one of its members;

(b)   The plaintiff is an institution which discourages victims of child sexual abuse from speaking out;

(c)   The plaintiff is an institution with a priority to protect its property and assets ahead of protecting the victims of child abuse;

(d)   The plaintiff is an institution which forced two child victims of sexual abuse by Lindsay Jensen to live with him.”

117. There may have been and, if the appeal fails, may still be, a question as to the capacity of imputations (a) and (d) to be conveyed, relating, as they did, to events which occurred long before the company was registered. That issue is not before the Court; rather, by notice of motion filed on 17 November 2016, the respondent sought to have the question of “the capacity of the matters complained of to identify the plaintiff” determined as a separate question. In the event that the answer was to the effect that “the matters complained of are not reasonably capable of identifying the plaintiff”, the motion sought an order dismissing the proceedings pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 28.4.

118. As Lord Reid explained in Morgan v Odhams Press Ltd,[100] “the meaning of words is not a question of law in the true sense …. It is simply a question which our law reserves for the judge.” The motion came on for hearing before McCallum J who, on 3 October 2017, answered the question “No”, and ordered that judgment be entered for the defendants in each proceeding. [101]

     100. [1971] 1 WLR 1239 at 1242-1243.

     101. Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Pty Ltd [2017] NSWSC 214.

119. The company appealed against that judgment and the orders made on 3 October 2017. The notice of appeal challenged both the procedural step (namely the order to decide the question separately from any other question) and the answer given to the separate question, leading to the judgment against it. It will be convenient to deal with those questions in the order in which they were raised. First, it is convenient to note the basis on which the appeal was brought.

(2)   Right of appeal

120. The right of appeal from a judgment or order of the Court in a Division, provided in s 101(1) of the Supreme Court Act 1970 (NSW), is said to lie “subject to this Act … and the rules”. The qualification allows that leave may be required and, relevantly for present purposes, potentially on one or more of three bases. First, leave is required to appeal from a decision of a question decided separately from other questions under Pt 28, pursuant to s 103. Secondly, leave is required in relation to an interlocutory judgment or order, pursuant to s 101(2)(e). Thirdly, leave is required where the amount in issue is below $100,000, pursuant to s 101(2)(r). The company (the appellant in this Court) proceeded on the basis that leave was not required but, in accordance with UCPR r 51.22, filed an affidavit explaining why the amount in issue exceeded $100,000.

121. Section 103 of the Supreme Court Act is in the following terms:

103   Appeal from separate decision

An appeal shall, by leave of the Court of Appeal, lie to the Court of Appeal from a decision in proceedings in the Court of any question or issue ordered to be decided separately from any other question or issue.

122. It is true that the present appeal challenges the answer given by the primary judge to the separate question. However, the judge did more than answer the separate question; pursuant to UCPR r 28.4, she entered judgment for the defendants. While the answer to the separate question formed the basis on which final judgment was given, it was an interlocutory step on the route to the final judgment and it is the final judgment from which the appeal is brought. Accordingly, s 103 is not engaged; nor is the requirement for leave to appeal from interlocutory judgments and orders in s 101(2)(e). As explained in the joint reasons of Gaudron, McHugh and Hayne JJ in Gerlach v Clifton Bricks Pty Ltd:[102]

“The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. [103] The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley [104] where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’ (emphasis added).”

102. (2002) 209 CLR 478; [2002] HCA 22 at [6].

103. See, eg, Nolan v Clifford (1904) 1 CLR 429 at 431: "all points … are open",

104.    The Doctrine of Res Judicata, 3rd ed (1996), pp 79-80, par 170.

123. The conclusion that leave is not required is in keeping with long-standing authority, including National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd,[105] Tiufino v Warland,[106] Chief Commissioner of State Revenue v Smeaton Grange Holdings Pty Ltd,[107] and McElwaine v The Owners – Strata Plan 75975. [108] It is true that, in Younan v Nationwide News Pty Ltd,[109] it was said that an appeal from a decision on a separate question which resulted in the dismissal of the proceedings under r 28.4 was interlocutory and hence leave was required. However, it is not clear that the point was in issue; certainly no authority was cited for that proposition, nor were the authorities noted above addressed. The reasoned decisions, both before and after Younan, are to the contrary.

     105. (1989) 17 NSWLR 223 at 235 (Kirby P) and 240 (Clarke JA).

     106. (2000) 50 NSWLR 104; [2000] NSWCA 110 at [19] (Handley JA, Mason P and Powell JA agreeing).

     107. [2017] NSWCA 184 at [90]-[94] (Sackville AJA, Gleeson and Leeming JJA agreeing).

     108. [2017] NSWCA 239 at [7] (White JA, Sackville AJA and I agreeing).

     109. [2013] NSWCA 335 at [5] (Macfarlan JA, Bathurst CJ and Beazley P agreeing).

124. The appellant correctly saw s 101(2)(r) as the only relevant basis on which leave might be required and provided a solicitor’s affidavit in an appropriate form. The appeal, brought as of right, is competent.

(3)   Ordering separate question

125. The first ground of appeal challenged the judge’s decision to adopt the procedure under UCPR r 28.2 and order the determination of a separate question, namely the capacity of the matters complained of to identify the plaintiff.

126. In the court below, the plaintiff resisted an order for determination of a separate question. In the course of the pre-trial steps, the plaintiff had provided “particulars of identification” and “particulars of identity”. [110] However, before the primary judge it submitted that particulars of identification are “apt to be supplemented, expanded and changed and sometimes withdrawn, particularly after the parties have had the benefit of interlocutory procedures such as discovery, interrogatories and subpoenas.”[111] Accordingly, the plaintiff challenged the propriety of deciding the capacity of the publication to identify it before, rather than at, the trial.

     110. Plymouth Brethren at [33].

     111. Plymouth Brethren at [12].

127. In addressing that issue, the judge noted that she had power to make such an order pursuant to r 28.2 and considered an objection that the “issue of reasonableness” would necessarily turn on matters of evidence and should, therefore, be determined at trial. [112] The judge explained why “no additional particulars or evidence could save [the question of identification] from being answered in favour of the defendants.”[113] That was, in short, because the question was to be answered by reference to the content of the publication. The critical reasoning of the primary judge appeared from the following passages:

“[20]   The decision in Younan [114] highlights the importance, before ordering a separate question, of considering whether the question is one that can fairly be determined before the evidence is heard, taking the pleadings and particulars at their highest. But that is not to say the Court should [baulk] at separate questions on the grounds that the plaintiff may in the future seek to shore up his case after taking further interlocutory steps.

[21] The High Court has made plain that, in pursuing the overriding purpose stated in s 56 of the Civil Procedure Act 2005 (NSW) of facilitating the just, quick and cheap resolution of the real issues in the proceedings, the Court is entitled to take a ‘robust and proactive approach’. [115] All necessary particulars of a claim are supposed to be provided in the pleadings: r 15.1 UCPR. That is not to say that particulars cannot be supplemented, expanded or changed where it is appropriate to allow that to occur. But parties should not proceed on the assumption that that is the norm; certainly, the exercise of the Court’s procedural powers should not be constrained by any such assumption.

[22]   That is particularly so in the case of actions for defamation where the risk of disproportion between the cost of the proceedings and the interest at stake is high. It would be inimical to the overriding purpose to encourage any assumption that a deficiently-pleaded case will be allowed to proceed on the basis that it might be cured through the use of interlocutory procedures.”

112. Plymouth Brethren at [11].

113. Plymouth Brethren at [23].

114. Footnote 107 above; see further at [143] below.

115. Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 at [57].

128. In this Court (though not apparently before the primary judge) the company placed reliance on the judgment of Hunt J in Krahe v TCN Channel Nine Pty Ltd [116] as to the occasions on which it is appropriate to order the separate trial of specific questions in defamation proceedings. This judgment may have been chosen as the end point of a lengthy series of judgments which commenced with Love v Mirror Newspapers Ltd,[117] the history of which is set out in Morris v Newcastle Newspapers Pty Ltd. [118] Morris ends on a somewhat querulous note in relation to reasoning in this Court. [119] The question addressed in Krahe was whether it was appropriate, in the circumstances of that case, to order “the separate trial of the capacity of the matters complained of to convey the imputations pleaded by the plaintiffs.” [120] The circumstances included reliance upon true innuendoes and the need for evidence of extrinsic facts.

     116. (1986) 4 NSWLR 536.

     117. [1980] 2 NSWLR 112.

     118. (1985) 1 NSWLR 260 at 262-269.

     119.    Morris at 269E.

     120.    Krahe at 542.

129. The thrust of the company’s submission was that, if on the evidence the circumstances were capable of leading persons acquainted with the company to believe that allegations were made about its conduct, that issue should only be addressed after the evidence had been tendered. Because the judge thought that the question of capacity could be decided as a separate question the judge must have found, the company submitted, that there was no evidence which could affect the answer.

130. The attempt to cast the exercise of a discretionary power into such a straightjacket did not do justice to the reasoning of the trial judge set out above. Further, it involved an element of rhetorical flourish. There was evidence before the trial judge, set out in the appeal papers in this Court, including (a) ASIC documents relating to the company; (b) the constitution of the company; (c) a printout of some seven pages from a website for the URL “plymouthbrethrenchristianchurch.org”. Further, as the transcript before the primary judge revealed, the parties were of a common view that the matter before the court encompassed both (a) the question whether the court should set a separate question and (b) the appropriate answer to the question. [121] Neither party sought to proffer any further evidence in the event that the judge ordered the determination of a separate question.

     121.    Tcpt, 03/03/17, p 5(30)-(41).

131. This was an appropriate course for the parties to take, for a reason which is equally applicable in this Court, namely that the propriety of identifying a question for separate determination was not readily distinguishable from the course taken in answering the question. Thus, the primary judge concluded that the question should be answered primarily by reference to the publication the subject of the proceedings. No doubt, if it had become apparent in undertaking that assessment that a different approach was required, the course under r 28.2 would have been abandoned. For similar reasons, on this appeal it is difficult to decide whether the matter was appropriately dealt with as a separate question without determining whether the approach adopted by the primary judge in answering the question was properly available to her.

132. For reasons more fully explained below, that approach was properly available. The decision to order the determination of the separate question was therefore also available and the first ground of appeal should be rejected.

133. In reaching that conclusion, there are three underlying factors which should be taken into account. First, it is apparent that, during the 1980s, this Court was resistant to suggestions that the separate question procedure should be available in defamation proceedings, except in the most limited circumstances. Although Hunt J expressed some degree of frustration in Morris with the difficulties identified by this Court, there must then have been a greater reluctance on the part of both litigants and judges at first instance to adopt the procedure.

128. Secondly, the provisions of Pt 6 of the Civil Procedure Act 2005 (NSW), referred to by the primary judge in her reasons, impose an obligation on litigants and the court to adopt procedures designed to facilitate the just, quick and cheap resolution of the real issues in the proceedings. [122] While this was not the first provision of its kind, there has, or should have been, a cultural change effected since 2005. [123]

     122. Civil Procedure Act, s 56(1).

     123. M Kumar and M Legg (eds), “Ten Years of the Civil Procedure Act 2005 (NSW)” (2015, Law Book Co), Ch 5.

129. Thirdly, while it is true that the exercise of discretionary powers can give rise to issues of principle, there is little attraction in hearing appeals where the power has been exercised and led to a final result. Unless the procedure has been unfair in a material respect, there is no attraction in interfering with the ultimate result purely on the basis that a different procedure might have been adopted, if the ultimate result is otherwise unimpeachable.

130. For these reasons, ground 1 should be rejected.

(4)   Whether publication capable of defaming the company

137. The relevant principles are not in doubt. They may be stated as three propositions. First, whether a defamatory statement is about the plaintiff does not depend upon the intention of the publisher. [124] That means two things, namely, it does not matter that the publisher (a) has never heard of the individual who may reasonably be identified as a person to whom the statement applies by persons who know him or her,[125] and (b) had someone else in mind.

     124. Lee v Wilson & Mackinnon (1934) 51 CLR 276 at 287 (Dixon J); [1934] HCA 60; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1242 (Lord Reid).

     125. Godhard v James Inglis & Co Ltd (1904) 2 CLR 78; [1904] HCA 37.

138. Secondly, as Isaacs J said in David Syme v Canavan, even if the plaintiff is not identified in the statement by name, “[t]he 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?”[126]

     126. David Syme & Co v Canavan (1918) 25 CLR 234 at 238 (Isaacs J); [1918] HCA 50.

139. Thirdly, although the test so articulated is a question of fact to be determined by a jury (in a jury trial), there is an antecedent question which may be raised as a question to be determined by the judge, namely whether the words could, in the circumstances, refer to the plaintiff. [127]

     127.    Morgan v Odhams Press Ltd at 1242-1243.

140. The statement by Isaacs J in Canavan is sometimes said to lead to two categories of case, namely those cases where the plaintiff is named or otherwise identified in the publication, and those where the plaintiff is not named or identified expressly. However, that is not a legal principle. A person may be named in a publication, but in circumstances which demonstrate that it is someone other than the plaintiff to whom the publication must reasonably be understood to apply. For example, a statement naming the Prime Minister and attacking some conduct of the Prime Minister could not reasonably be said to be about another person of the same name, who was not the Prime Minister.

141. On the other hand, a person who is not named may be so clearly identified in the publication that the only reasonable conclusion is that it is about that person, even though not named. The reason why Isaacs J identified the test by reference to words that do not specifically name the plaintiff is because they were the facts of Canavan. That case involved a defamatory statement about a group of 100 men who had been “sent back to Australia as undesirables” and who were identified as members of the “Returned Soldiers’ No-Conscription League”. [128] The plaintiff was not named but was a member of the League, which contained 1,000 members. The question was whether the jury had acted unreasonably in failing to find that the plaintiff was one of the 100 men. The factual context explains the language adopted by Isaacs J; it should not be read like a statute as a statement of general principle.

     128.    Canavan at 236-237 (Barton J).

142. The company did not dispute that the judge had correctly stated the test, but did dispute that it had been correctly applied, for a number of reasons. First, the company contended that the judge had erred in concluding that the company had not been “named”. It may be accepted that the primary judge did adopt that view, first in relation to the need to plead particulars of identification,[129] and, later, in concluding that in such a case identification cannot be founded upon an erroneous belief on the part of the reader. [130] The absence of express identification in the article, combined with the fact that the company did not exist at the time of the events described in the article, led the judge to find that there could be no identification of the company, other than by reliance on a false belief that the company existed at the relevant time.

     129. Plymouth Brethren at [32].

     130. Plymouth Brethren at [39].

143. If the primary judge stated that proposition as a legal principle, that would have been an error. The relevant circumstances are not helpfully categorised as true or false. As the company contended, even if an allegation is true about its intended target, it may be untrue about the plaintiff who has been reasonably but wrongly identified as a target. For example, in Younan, statements were made about the conditions in a hostel which suggested disreputable behaviour on the part of the owners and operators of the hostel. The plaintiffs in that case were not the owners or operators at the time the conduct occurred, but acquired ownership a few months later. Although the Court found that the case as pleaded could not succeed, the proceedings were not dismissed out of hand on the basis that on no pleading could the owners succeed; rather the owners were given leave to replead.

144. There are three reasons for thinking that the primary judge may have misconceived the factual limits of the exercise on which she had properly embarked. First, noting that the Defamation Act 2005 (NSW) referred, in ss 8 and 9, to the publication of defamatory matter “about” a person or corporation, the judge suggested that term implied an objective test and “does not suggest the existence of a cause of action for the publication of defamatory matter not about a person, or about a non-person.” [131] It may be accepted that the test is objective: that means that neither the subjective intention of the publisher, nor the subjective belief of the complainant, determines whether the defamatory matter is about the complainant. However, the reference to a “non-person” is puzzling: the company was in existence at the time of the publication.

     131. Plymouth Brethren at [44].

145. Secondly, even if one focuses on the language of the statute, that language does not provide a basis for the distinction drawn by the primary judge between the cases “where [the publisher’s] own erroneous statement leads to the identification of a person” and cases where identification occurs “due to an erroneous belief not arising from the words published.”[132] That is not to say that the primary judge was wrong in respect of the second strand of her reasoning, which focused squarely on the text of the publication.

     132. Plymouth Brethren at [48].

146. Thirdly, the temporal element on which this reasoning was based was partly wrong, in two respects. The first respect, as noted above, was that the company was in existence at the date of the publication. Secondly, imputations (b) and (c) were expressed in the present tense, indicating a continuing cover-up, that is, at the time of publication when the plaintiff was in existence.

147. Putting these issues aside, it is necessary to consider whether the publication, read as a whole, was capable of leading a reasonable reader to identify the company as a subject of the defamatory allegations, in the sense that the matter was “about” the company. In this context the fact that the person claiming to have been defamed is a corporation, and not an individual, is relevant to any inference as to the reasonable attribution of the conduct. Corporations act through human agents; the allegations must not only be reasonably capable of being attributed to individuals, but must be reasonably attributable to those persons when acting on behalf of the corporation.

148. The company engaged with that exercise, arguing, first, that the contents of the publication supported the conclusion that it was identified in the publication. It relied on two specific passages. The first (par 20) read as follows:

“The Royal Commission has examined everything from Sydney’s Knox Grammar School to the Jehovah’s Witnesses; Cardinal George Pell to Tennis NSW. But not the Exclusive Brethren, a wealthy Protestant sect of 40,000 worldwide (including 15,000 in Australia), led by Sydney-based Bruce Hales. Among the Brethren (now rebranded as the Plymouth Brethren Christian Church), public scrutiny is shunned just as surely as are radios, TVs, voting and other trappings of ‘worldly’ society.”

149. The company contended that the words in parenthesis (“now rebranded as the Plymouth Brethren Christian Church”) involved an express reference to the company and would be so understood by anyone who knew the name “Plymouth Brethren Christian Church” was a trademark registered in the name of the company, and had been so since 25 June 2012. The “rebranding” referred to occurred, the company submitted, with the establishment of the company as the secretariat of the church and as a registered charity.

150. The respondent, in summary, said that the ordinary meaning of the passage, read in context, was that the Church had undertaken a “rebranding” exercise and that, even with the knowledge of the extrinsic circumstance, the passage could not reasonably be understood as referring to the company. It will be necessary to address that submission further below.

151. The second passage on which the company focused covered three paragraphs toward the end of the article. By way of background, the article was based on information supplied by one Tony McCorkell, who had been a member of the Exclusive Brethren and a spokesperson, but who had forsaken his former role and spoken publicly on the issues of child abuse within the Church and the efforts of the Brethren to prevent public knowledge of the complaints. The second passage read as follows:

“90.   After a decade of bad publicity, the Exclusive Brethren has rebranded itself the Plymouth Brethren Christian Church and has started undertaking some charity work. Nothing else has changed.

91.   But the world around the Brethren has changed. Hales must have watched the grilling of Catholic Cardinal George Pell at the Royal Commission with alarm. Church elders must be petrified about the possibility that victims of the Brethren might come forward to tell their stories to the Royal Commission. They might be terrified Hales himself would be compelled to give evidence about what he’s done, or failed to do, to protect the thousands of children over whose lives he controls [sic].

92.   McCorkell has been out of the Brethren since 2009, but has had semi-regular contact with members of the Sydney leadership. Around the time of Pell’s evidence, they called to remind him that he’d signed a confidentiality agreement. He has decided to speak out regardless. The Royal Commission has been in contact with him, and he is prepared to give evidence of his time in the sect.”

152. The company relied upon the repeated reference to rebranding and to “the Plymouth Brethren Christian Church”. It also contended that the charity work to which reference was made must have been a reference to the work it undertook. This submission extended the scope of the first submission to cover an inference as to identity which could properly be drawn in the absence of express identification.

153. These phrases must, however, be read in the context of the whole article. There are references to “the Brethren”, “the Exclusive Brethren” and “the Church” pervasively throughout the article. The group is also described as a “sect”. The leaders of the church are referred to as “the elders”.

154. The reference to “rebranding” is obscure. The use of the name “Plymouth Brethren Christian Church” no doubt removes the reference to the “Exclusive Brethren”, but the name of the company does not. If the term “rebranding” is intended to refer to activities, such as undertaking charity work in the wider community, there is, nevertheless, no indication that that is undertaken through a corporate entity. In any event, that which undertook rebranding was clearly the Church.

155. The fact that, with the possible exception of a continuing cover-up, the events and conduct which formed the content of the article all took place before the company existed renders it inevitable that the organisation to which the article refers must be, almost universally, the Church; the explicit and repeated references to those in control as “elders” also identify a relationship with the Church.

156. The company submitted that this reasoning drew a false distinction between the company and the Church. It is not entirely clear what to make of that submission. Legally, that very distinction is central to the company’s case that it, not merely the Church and the elders, was defamed; it is a legal entity distinct from the individuals who make up the Church. The company needed to establish that a reasonable person would infer from the article an allegation that the individual members of the Church were acting on behalf of the company in covering up the earlier activities of members of the Church. However, the reason for setting up a company was to create a legal entity separate from the members of the Church, to carry out charitable activities. The necessary inference is not reasonably open.

157. The primary judge was correct to say that the company was not expressly identified in the article by name, namely Plymouth Brethren (Exclusive Brethren) Christian Church. Nor is there any reference to a corporate entity. Further, the mere fact that the Church is identified by a name which could always have identified it but which, since June 2012 also constitutes a registered trademark of the company, does not mean that the company is being named as the entity responsible for the conduct of members of the Church. That is because even a person who knew of the existence of the corporate entity could not reasonably read the allegations as relating to conduct of that entity, given the explicit focus of the publication on the Church and its elders. As Hutley JA said in Steele v Mirror Newspapers Ltd,[133] there must be “some connection between the facts [known] to the identifying witnesses about the person whom they identify as defamed and the facts appearing in the published material.” In this case the facts are to be assumed, but the connection is lacking.

     133. [1974] 2 NSWLR 348 at 365A.

158. The company also relied upon a spike in the number of persons having access to its website following the publication of the article. However, that fact is neutral. Persons wanting to know more about the Church could seek access to the website. It may be true that the company created and maintains the website, but the article makes no reference to the website and makes no defamatory statement about the conduct of whoever created and maintains it. If the publication made adverse comments about the website, no doubt the company might be able to sue, even if it were not named; but visits to the website cannot assist it in this claim.

159. The proper conclusion is that, accepting that the article makes some reference to conduct (a cover-up) continuing after the company came into existence, and accepting that there will be readers who know of the existence of the company, nevertheless, such a reader could not reasonably infer from the article read as a whole that any of the defamatory matter was about the company.

160. While it is true that headlines and extracts in bold or large print may have (by design) a disproportionate effect on a superficial reader and may, therefore, need to be given greater weight than the balance of the publication,[134] that is not true of the relatively muted references to the fact that nothing has changed and that the cover-up continues. Those statements fit logically into the scheme of the publication, which, as already noted, says much about the Church and its elders, and nothing explicitly about the company, or its activities.

     134. John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; [2003] HCA 50 at [26] (McHugh J), [187] (Callinan J).

161. Although aspects of the reasoning of the primary judge are not supportable, the conclusion reached has not been shown to be erroneous. The appeal should be dismissed with costs.

**********

Endnotes

Amendments

09 May 2018 - Correcting paragraph numbers in 1. of the Headnote.

15 May 2018 - Correcting typographical errors in [22], [64] and [80] and footnotes 39 and 97.