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

The Plymouth Brethren Christian Church (the Church) appealed to the New South Wales Court of Appeal against a judgment entered in favour of The Age Company Ltd and Fairfax Media Publications Pty Ltd (the respondents) following the separate determination of a question of law in defamation proceedings. The dispute concerned articles published by the respondents that allegedly contained misconduct by elders of the Church. The Church argued that these articles were capable of identifying it as a corporation trading under the name of the Church.

The Court of Appeal was required to determine whether the primary judge erred in ordering a separate trial of the question of whether the publications were capable of identifying the Church. Relatedly, the Court considered whether leave to appeal was required against the judgment entered following the determination of that separate question, and whether the Uniform Civil Procedure Rules 2005 (NSW) permitted the separate determination of the question given the evidence before the Court.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in ordering the separate determination of the question. The Court reasoned that the question of whether the publications were capable of identifying the Church was not a question of law that could be appropriately determined separately from the question of fact. The Court held that the evidence before the Court was insufficient to determine the separate question and that the separate determination should not have been ordered. Consequently, the judgment entered in favour of the respondents was set aside.

The Court of Appeal ordered that the appeal be allowed, the judgment of the Court below be set aside, and that the respondents pay the appellant’s costs, including the costs of the separate trial. The matter was remitted to the Common Law Division for case management.