Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd

In the case of *Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd*, the appellant, Universal Communication Network Inc trading as New Tang Dynasty, appealed a judgment entered in favour of the respondent, Chinese Media Group (Aust) Pty Ltd. The dispute concerned an action in defamation, where the primary judge had directed the jury to answer negatively the question of whether the appellant had established identification, leading to a judgment against the appellant.

The central legal issue before the Court of Appeal was whether the primary judge erred in directing the jury that the appellant had failed to establish identification. This required the court to consider the test for identifying a plaintiff in a defamation action, particularly when the publication complained of uses a business name rather than the corporate name, and whether there was sufficient evidence upon which a jury could reasonably find that the matter complained of referred to the appellant. The court also considered whether any error occasioned a substantial wrong or miscarriage of justice.

The Court of Appeal held that the primary judge had erred. It applied the principle that a plaintiff in a defamation action must establish that the matter complained of was published of and concerning them, meaning it identified them. The test for identification is whether the words used would reasonably lead persons acquainted with the plaintiff to believe that the plaintiff was the person referred to. The court found that there was evidence, albeit potentially contradictory, upon which a jury could reasonably infer that the appellant was identified, and therefore, the question should have been left to the jury for determination. The court noted that it is incumbent on the primary judge to leave the case to the jury if there is any evidence upon which they could reasonably find for the plaintiff, even if the overwhelming body of evidence points to the contrary.

Consequently, the appeal was allowed, the judgment entered in favour of the respondent was set aside, and a new trial was ordered on all issues. The respondents were ordered to pay the costs of the appeal, with the costs of the first trial to be at the discretion of the judge hearing the second trial.