FEDERAL COURT OF AUSTRALIA

Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ application under r 30.01(1) of the Federal Court Rules 2011 (Cth) that a question arising in the proceedings be heard separately from any other questions be granted in the following terms:

Is the matter complained of reasonably capable of being about the applicant?

2.    The answer to the separate question in order 1 be “no”.

3.    Judgment be entered for the respondents.

4.    The applicant pay the respondents’ costs as assessed or agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    In early August 2017, the Australian Financial Review newspaper (AFR) published an article titled “Developers offer stamp duty discounts as off-the-plan apartment sales slow”. The title reflects the thrust of the article. Relevantly, the article included references to a number of apartment property developers, including a company referred to as “Meriton”. For present purposes, there is no dispute that this was a reference to Meriton Property Services Pty Limited. The founder and managing director of Meriton is Mr Harry Triguboff, the applicant in this proceeding.

2    The article suggested that developers such as Meriton sometimes address a slow-down in sales of poorer quality apartments by offering stamp duty discounts. Meriton is prevented from suing for defamation by reason of s 9 of the Defamation Act 2005 (NSW). Mr Triguboff is not referred to by name or position in the article.

3    On 23 August 2017, Mr Triguboff commenced defamation proceedings in this Court against the respondents, being the author and the publisher of the article, by way of an originating application and statement of claim.

4    On 4 October 2017, the respondents filed an interlocutory application (IA), seeking the effective termination of the proceedings by several different routes, including the hearing of a separate question and a strike out of Mr Triguboff’s statement of claim. Alternatives were also sought, including a partial strike out. The IA was ultimately heard on 5 April 2018, with further submissions being received from the parties by leave on 11 May 2018, addressing a recent decision of the New South Wales Court of Appeal (NSWCA) that had overturned one of the cases that had been relied upon by the respondents at the interlocutory hearing.

5    The respondents contend that the matter complained of in the article is not capable of being defamatory of Mr Triguboff (as opposed to, at most, Meriton). The respondents further raise a number of collateral challenges to jurisdiction, pleadings and whether the article conveyed defamatory imputations about Meriton in any event. Mr Triguboff contends that there is nothing wrong with the case that he has brought and that it should proceed through the usual process of trial preparation for defamation cases, including discovery and interrogatories.

The text of the article

6    The article that appeared online and was annexed to the statement of claim includes an artist’s impression of a Meriton project in Pagewood, Sydney. That image is followed by the following text (reproduced, line-by-line, as it appears in the copy of the article annexed to the statement of claim):

Slowing off-the-plan apartment sales to foreign buyers in Sydney

have forced developers to mount a stamp duty discount strategy

to attract more buyers.

Australia’s biggest apartment developer Meriton is offering a full

stamp duty refund for foreign and local buyers who acquire its

new apartments in NSW, while Crown Group is offering foreign

buyers a 4 per cent discount on stamp duty if they buy an apartment at its “Oasis”

project in the inner west Sydney suburb of Ashfield by July 31.

Crown’s discounts also extend to local first-home buyers.

Another active residential developer, JQZ, has put up Chinese advertisements on

social media offering “stamp duty” discounts for its highly publicised 600-apartment

“Prime” project in Macquarie Park, in Sydney’s north.

7    The article then reproduces an image of an apartment tower with the caption, “There will be no stamp duty for Meriton’s Altitude apartments in Parramatta”. After that image is the following text (emphasis in original; article again reproduced line-by-line):

“With an increase in the foreign person surcharge purchaser duty coming into effect

on July 1, and in order for Meriton to maintain our sales rate to fund future

developments, we wanted to compensate buyers for a limited time,” Meriton director

of sales James Sialepis said.

Mr Sialepis also said it was not unusual for developers such as Meriton to offer such

incentives occasionally and was not an indication that there was a “glut” of

apartments or a potential major correction in prices.

“We have been surprised by the positive responses to this offer, especially from local

tenants living in a Meriton development who have struggled to save for their first

purchase, given such high taxes.”

‘Healthy levels’

Managing director of CBRE Residential Projects David Milton said developers who

rely heavily on foreign buyers or sell poorer quality stock tend to revert to these

tactics.

While sales have slowed overall compared to the frenzied years of 2003 and 2014 –

given higher foreign buyer surcharges and cut in bank lending to investors – they are

still selling at “healthy levels”, particularly those in good locations and are well

developed.

“Meriton have been selling stock overseas and haven’t focused on the local market …

and for property developers like Meriton, in order to sell lower quality products, they

have to offer discounts,” he said.

There were, however, some mixed messages in the apartment market, the Agency’s

Steven Chen said. While sales were slow with foreign buyers, developer interest to

build apartments has not waned.

But some developers have started to mitigate their apartment exposure with house

and land development.

Mortgage broker and agent NI Holdings’ Ren Hor Wong was not as upbeat, both with

new and secondary sales of apartments.

“The sentiment is definitely not as positive … I’ve even heard of agents or developers

covering legal fees,” he said.

“There is a lot of competition in the market, people have more choice.

“A better location always defies a slowdown but a lot of apartment sellers are now

worried. Repayment hits them, but rental growth is subdued.”

The additional evidence adduced at the interlocutory application (IA) hearing

8    The following affidavits were read and the following other documents annexed to those affidavits or separately tendered were relied upon by the parties at the IA hearing:

(1)    an affidavit of Phillip Thomas Beattie, a solicitor employed by the firm of solicitors acting for the respondents, affirmed 4 October 2017, annexing correspondence between the parties. That correspondence will only be referred to as necessary to assist in resolving the present dispute;

(2)    subject to certain objections from the respondents as to relevance, an affidavit of Mark Geoffrey O’Brien, solicitor for Mr Triguboff, sworn 27 March 2018, annexing company extracts from the Australian Securities and Investments Commission (ASIC), material from the Meriton website and Facebook page and an AFR article published on 3 August 2017 associating Mr Triguboff with Meriton. The affidavit further annexes a letter dated 22 March 2018 containing further particulars of identification relied upon by Mr Triguboff (the text of those further particulars is reproduced below), and enclosing three schedules of AFR articles that refer to both Mr Triguboff and Meriton in the same piece (an extract from each schedule is reproduced below); and

(3)    a further ASIC extract for Meriton tendered by the respondents and admitted as an exhibit.

The text of the statement of claim and additional identification particulars

9    The statement of claim is relatively short and is reproduced in full in order to understand better the competing arguments (emphasis in original):

Respondents

1.    The first respondent is and was at all material times:

(a)    a company duly incorporated;

(b)    liable to be sued in and by its corporate name and style;

(c)    the publisher of material appearing on the website located at url address www.afr.com.au (the “AFR website”); and

(d)    the publisher of material appearing in the newspaper known as The Australian Financial Review.

2.    The second respondent is and was at all material times a journalist employed by the first respondent.

Matter complained of

3.    On or about 3 August 2017 the first and/or second respondents published of and concerning the applicant in the Australian Capital Territory and all of the States of Australia and the Northern Territory the words set forth in Schedule A (the “the matter complained of”).

Particulars of publication – UCPR Rule 15.19(1)

(a)    The matter complained of was entitled “Developers offer stamp duty discounts as off-the plan apartment sales slow?”

(b)    The second respondent wrote the matter complained of.

(c)    The matter complained of was made available for publication by the first respondent by uploading it onto the AFR Website.

(d)    The matter complained of is still available for publication on the AFR Website.

(e)    The AFR Website is a mass media website which is viewed by, at least, tens of thousands of people daily, including people in the Australian Capital Territory, the identities of whom are unknown to the applicant.

(f)    By reason of the matters set out in particulars (c)-(e) above, it can be inferred that the matter complained of was downloaded and read throughout Australia, including in the Australian Capital Territory by people unknown to the applicant.

(g)    Further particulars of the extent of publication of the matter complained of will be provided after submissions, discovery and interrogatories.

Particulars of identification

(h)    In about 1963 the applicant founded the company Meriton Property Services Pty Limited (Meriton).

(i)    Since 1963 the applicant has become widely known amongst the general public as the owner and operator of Meriton.

(j)    The applicant has been, prior to the publication of the matter complained of, frequently referred to as the Managing Director of Meriton in the media, including on the AFR Website and in the newspaper known as The Australian Financial Review.

(k)    The applicant’s ownership of the Meriton business is referred to annually in the ‘Rich List’ published in The Australian Financial Review and on the AFR Website.

(l)    At the time of publication of the matter complained of, the applicant was referred to as the Managing Director on the Meriton website at http://www.meriton.com.au/about-us/.

(m)    At the time of publication of the matter complained of, the applicant was referred to as the Managing Director of Meriton in the Wikipedia entry for Meriton.

(n)    Prior to the time of publication of the matter complained of the applicant was often referred to in connection with Meriton on the Meriton Twitter page which had over 1,700 followers at the time of publication of the matter complained of.

(o)    Prior to the time of publication of the matter complained of the applicant was often referred to in connection with Meriton on the Meriton Facebook page which had over 4,700 followers at the time of publication of the matter complained of.

(p)    By reason of the matters set out in particulars (h)-(o) above, it can be inferred that the applicant was identified in the matter complained of and such identification was reasonable in the circumstances.

[Further particulars of identification are reproduced in the next paragraph]

4.    In its natural and ordinary meaning, the matter complained of was defamatory of the applicant and carried the following defamatory meanings (or meanings not different in substance):

Particulars of meaning – UCPR Rules 14.30; 15.19(1)(e)

(a)    The applicant controls a building company Meriton that produces low quality apartments (the entire matter complained of, in particular lines 23 to 32 inclusive).

(b)    The applicant controls a building company Meriton that produces apartments of such low quality that it has to offer stamp duty discounts in relation to those apartments to attract purchasers (the entire matter complained of, in particular lines 23 to 32 inclusive).

Damage

5.    By reason of the publication by the respondents of the matter complained of the applicant has been brought into hatred, ridicule and contempt and has been gravely injured in his character and reputation, and has suffered hurt and embarrassment and has and will continue to suffer loss and damage.

10    The particulars of identification pleaded above from [3(a)] to [3(p)] of the statement of claim were supplemented by correspondence as follows:

We maintain our position that the Applicant’s connection with the Meriton business is so well-known as a matter of general notoriety that it can be inferred he was identified by a number of readers in the Matter Complained Of throughout Australia, including in the Australian Capital Territory.

As further particulars of identification, we list the following who both read the Matter Complained Of and identified the Applicant:

a.    Matthew Lennartz;

b.    Andrew Hope;

c.    Tim Franzen;

d.    Nichola Malouf; and

e.    Walter Gordon.

As further particulars of identification we shall also rely upon the attached schedule listing Australian Financial Review articles published between 14 November 2016 and 14 November 2017 which refer to ‘Mertion’ [sic] and the Applicant in each article.

11    A 26-page schedule was annexed to the letter, which contained three tables. It suffices to reproduce the introductory paragraph to each table and the first two entries from each table as being illustrative of all of the remaining entries in each table:

1.    A table of Australian Financial Review articles which include ‘Meriton’ and Harry Triguboff’ in the same article in the period between 14 November 2016 and 14 November 2017.

…

2.    A table of all media mentions which include ‘Meriton’ and ‘Harry Triguboff’ across all publications nationally in the period between 14 November 2016 and 14 November 2017.

…

3.    A table of media mentions across all mediums, specifically published or broadcast in the Northern Territory and/or Australian Capital Territory which include ‘Meriton’ and ‘Harry Triguboff’ in the period between 14 November 2016 and 14 November 2017.

The relief sought by the respondents’ IA

12    The respondents’ IA seeks the following:

1.    Pursuant to rule 30.01 of the Federal Court Rules 2011, a question arising in the proceeding be heard separately from any other questions, namely: is the matter complained of reasonably capable of being about the Applicant?

2.    That the question referred to in order 1 above be answered "no".

3.    In the alternative, pursuant to rule 16.21 of the Federal Court Rules 2011, paragraph 3 of the Statement of Claim be struck out on the basis that the matter complained of is not reasonably capable of being about the Applicant.

4.    In the alternative, pursuant to rule 16.21 of the Federal Court Rules 2011, paragraph 3 of the Statement of Claim be struck out on the basis that the matter complained of is not reasonably capable of identifying the Applicant.

5.    In the alternative, pursuant to rule 13.01 of the Federal Court Rules 2011, the Originating Application in these proceedings be set aside on the basis that the Federal Court of Australia does not have jurisdiction to hear or determine the Applicant's claim, in that the Statement of Claim does not disclose a cause of action actionable in the Supreme Court of the Australian Capital Territory or the Supreme Court of the Northern Territory due to the absence of particulars of identity, by reference to names and addresses or class of persons, of those readers in the Australian Capital Territory and/or the Northern Territory to whom the alleged particulars of identification were known.

6.    In the alternative, pursuant to rule 16.21 of the Federal Court Rules 2011, paragraph 3 of the Statement of Claim be struck out on the basis that the particulars of identification fail to include any details of the identity, by reference to names and addresses or class of persons, of those to whom the particulars of identification were known (including any such persons or classes residing in the Australian Capital Territory or the Northern Territory), and the Applicant has refused to provide such particulars.

7.    In the alternative, pursuant to rule 16.21 of the Federal Court Rules 2011 the imputations set out at paragraphs 4(a)-(b) of the Statement of Claim be struck out on the basis that they are not reasonably capable of arising from the matter complained of.

8.    In the alternative, pursuant to rule 16.21 of the Federal Court Rules 2011 the imputations set out at paragraphs 4(a)-(b) of the Statement of Claim be struck out on the basis that they are not reasonably capable of being defamatory of the Applicant.

9.    In the alternative, pursuant to rule 16.21 of the Federal Court Rules 2011 the imputations set out at paragraphs 4(a)-(b) of the Statement of Claim be struck out on the basis that they are bad in form.

10.    In the alternative, pursuant to rule 16.21 of the Federal Court Rules 2011 the Statement of Claim be struck out as being an abuse of process of the Court.

11.    The Applicant pay the Respondents' costs of and incidental to this application.

12.    Pursuant to rule 30.02 of the Federal Court Rules 2011:

a.    there be judgment for the Respondents; or, alternatively

b.    the proceedings be dismissed.

13.    The Applicant pay the Respondents' costs of the proceedings.

14.    Such further or other order as the Court deems fit.

Overview of the competing positions of the parties

13    The competing positions of the parties on the various issues raised by the IA may be stated with beguiling simplicity. Resolving the various conflicts is more difficult. In particular, while the authorities and the principles stated therein relating to the defamation of a person not expressly named in a publication are largely not in dispute, how they should be interpreted and applied to this case is hotly contested.

14    By way of an introductory summary, the respondents contend that Mr Triguboff’s claim cannot be maintained, even taking his pleadings and particulars at their highest, because:

(1)    he is not identified in the matter complained of and it is not “about” him, as required by ss 8 and 9(5) of the Defamation Act, and therefore the answer to the separate question sought to be asked and answered by the Court, “is the matter complained of reasonably capable of being about the applicant?”, must be “no”;

(2)    alternatively, the matter complained of does not convey any defamatory imputations about Mr Triguboff;

(3)    further and in the alternative, Mr Triguboff has failed to provide particulars of readers in the Australian Capital Territory or Northern Territory who identified him by the matter complained of, such that this Court’s jurisdiction is not engaged; and

(4)    the pleaded imputations were, in any event, bad in form and to that extent should be struck out.

15    By way of a contrasting summary, in opposing the separate question or any strike out in full or in part, Mr Triguboff contends that:

(1)    a separate question should not be countenanced in this or any other defamation case as being inherently incompatible with contemporary case management practices of this Court;

(2)    the separate question would deprive him of the opportunity to gather and tender evidence by which the respondents’ asserted deficiencies in the pleaded case may be met, especially as to the link between himself and the identity of Meriton;

(3)    accepting that he bears an onus of proving that it was reasonable for persons with particular knowledge about him who had read the article to conclude that it also referred to him, he should be permitted to endeavour to discharge that onus;

(4)    the article was a direct attack on the integrity of Meriton as a property developer and the quality of the apartments that it offers for sale, such that, if the identity link between Mr Triguboff and Meriton was established, he was capable of having been found to have been defamed;

(5)    to engage the jurisdiction of this Court, it is sufficient that the matter complained of was published in the Australian Capital Territory, such that particulars of the names of persons who read the matter complained of and identified him as the owner of Meriton were not required;

(6)    pleaded imputations will only be struck out as being incapable of being carried in very limited circumstances; and

(7)    the imputation is no longer the cause of action under the Defamation Act and therefore should only be struck out if it is ambiguous or embarrassing, a threshold that was not met.

Preliminary question of whether there should be a further interlocutory hearing

16    Mr Triguboff submitted at the interlocutory hearing that, if the separate question was allowed to be posed, there should be a further interlocutory hearing to determine what the answer should be. It was suggested that such a two-stage process was either required or at least permitted, and that it would be appropriate in the circumstances of this case.

17    Rules 30.01 and 30.02 of the Federal Court Rules 2011 (Cth) provide as follows:

30.01    Application for separate trials

(1)    A party may apply to the Court for an order that a question arising in the proceeding be heard separately from any other questions.

(2)    The application must be made before a date is fixed for trial of the proceeding.

Note 1:    The Court may order that a party state a case and the question for decision.

Note 2:    The Court will give any directions that are necessary for the hearing of the separate question.

30.02    Disposal of proceedings after hearing separate questions

If a decision on a question substantially disposes of the proceeding or renders any further trial of the proceeding unnecessary, a party may apply to the Court for:

(a)    judgment; or

(b)    an order dismissing the whole or any part of the proceeding.

18    Rule 30.01 does not, on its face, require a two-stage process to be conducted on separate hearing dates of, first, ascertaining whether a separate question should be asked, and, if so, secondly asking what the answer to that question should be. Of course, formulation of a question, or proposed question, is necessarily anterior to arguing and determining what the answer should be. However, the respondents stipulated the question that they contend should be posed, and the parties have been heard as to what the answer should be. The question therefore arises as to why this Court should entertain, in the absence of a well-reasoned request being made at the outset, two separate hearings on a separate question, rather than one.

19    Rule 30.01 should be regarded as being neutral on whether the hearing in relation to the two stages should take place on separate dates, rather than seriatim on the same hearing date. Plainly, one course or the other may be more appropriate in a given case. However, no suggestion was made by any party, either at the time that the IA was originally set down for hearing on 13 December 2017, or when the IA hearing date was vacated on 1 December 2017 and relisted for hearing on 5 April 2018, that the rescheduled hearing would entail anything other than hearing the IA in its entirety.

20    There was a generous amount of time allowed for preparing evidence and submissions for the hearing of the IA, and for the applicant to make any application for the IA hearing to be confined such that it would not deal with the entirety of the issues raised by the respondents. There was also no suggestion made at any time in the almost four months between 1 December 2017 and 28 March 2018 that the Court would do other than fully determine the outcome of the IA after the hearing, including as to whether the separate question should be posed at all, and, if so, what the answer should be.

21    Despite the above procedural history of this IA, at the very end of the submissions filed on behalf of Mr Triguboff on 28 March 2018, being eight days before the allocated hearing date, and only at paragraph 46 out of 54 paragraphs, it was contended for the first time that, if the separate question was allowed to be posed, a separate hearing should be convened to ascertain the answer that should be given. This contention must be rejected. In the circumstances of this case, it is not acceptable to apply in this way to separate the inquiry as to whether a question should be posed from, if so allowed, the inquiry into what answer should be given. Mr Triguboff has been given ample opportunity to bring the best case he can for determination of the answer to the question, if otherwise allowed to be posed, at the time appointed. He should not be permitted to have the forensic advantage of a second hearing and second opportunity, in the event that the separate question is allowed to be posed, to present additional evidence and additional arguments for what the answer should be.

Whether a separate question should ever be countenanced in defamation proceedings in the Federal Court of Australia

22    The authorities relied upon by Mr Triguboff in support of the proposition that a separate question should never be countenanced in proceedings of this kind are as follows.

23    In Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152, Wigney J said:

27    Whatever may have been the origins of the practice or procedure of applying for the separate and preliminary trial of challenges to pleaded imputations in the New South Wales Supreme Court, or indeed any State court, it is difficult to see how it could be said to be an appropriate procedure for resolving pleading disputes in defamation actions in this Court. The rather technical, pedantic and pettifogging approach to pleadings that appears to have been displayed in some of the cases decided under the 1974 Act in the New South Wales Supreme Court should not be encouraged under the current Defamation Act, particularly in this Court. Such an approach is plainly inconsistent with contemporary case management in this Court in light of the overarching purpose of the civil practice and procedure rules identified in s 37M of the Federal Court Act. The fact that defamation actions in this Court are likely to be tried by judge alone provides an even greater reason why a practical and common-sense approach should be taken to issues concerning the pleadings in such cases.

28    Defamation actions in this Court should be approached like all other civil actions. The same principles should apply to interlocutory disputes concerning pleadings. A party who alleges that all or part of a pleading in a defamation case is defective or deficient in some material way should ordinarily apply for the pleading, or part of it, to be struck out pursuant to r 16.21 of the Rules. That is so whether the complaint is as to the form of the pleading, or a more substantive complaint, including, in the defamation context, that the imputation is not reasonably capable of being conveyed by the matter complained of. One of the reasons why the procedure under r 16.21, as opposed to the procedure under r 30.01, should be invoked is that if a pleading or part of it is found to be defective, consideration can then be given to whether the applicant should be granted leave to re-plead. The procedure under r 16.21 is also likely to be more efficient and less expensive than the procedure under r 30.01, which might require an interlocutory hearing to determine if a separate trial should be ordered, and then a separate hearing of the question if such an order is made.

24    Mr Triguboff has raised a history of unhappy experiences in numerous cases in which an analogous process of determining preliminary points under s 7A of the former Defamation Act 1974 (NSW) had produced a multiplicity of interlocutory disputes and interminable delays, and which had acquired a degree of notoriety both in New South Wales and in this Court, citing Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 149E-G and Adeang v Australian Broadcasting Corporation [2016] FCA 1200 at [22]. History is said to justify what was said to be Wigney J’s conclusion in Goodfellow that separate hearings were, at least in defamation cases, a wholly inappropriate procedure for resolving disputes in this Court, especially in light of the case management imperatives of s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).

25    Mr Triguboff submits that a separate question is an exceptional step because it departs from the ordinary rule that all issues in a proceeding should be determined at the same time, citing:

(1)    Street v Luna Park Sydney Pty Ltd [2007] NSWSC 697, in which it was said at [5]:

That said, the considerations referred to by Kirby and Callinan JJ remain pertinent matters to be taken into account in determining whether what remains the exceptional course of deciding preliminary issues, rather than the ordinary course of deciding a case in its totality, is to be adopted.

(2)    University of Sydney v ResMed Ltd (No 5) [2012] FCA 232, in which it was said at [41]:

In general all issues in proceedings should be determined at the one time: Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 at 141-142; Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495 at [7]. That is not invariably the case and in the exercise of its wide ranging powers of case management the Court may determine that consistent with s 37M of the Federal Court of Australia Act 1976 (Cth), the most efficient and inexpensive approach will be to separate some issues or questions for earlier determination: see Olbers v Commonwealth of Australia (No 3) [2003] FCA 651 at [8]. Sometimes the early determination of some issues will substantially narrow the issues to be determined at trial or even lead to partial or total settlement of the proceeding: Novartis Crop Protection Australasia Pty Ltd v Orica Australia Pty Ltd [2001] FCA 1013.

(3)    Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; 240 FCR 276, in which it was said:

8.    The principles that govern the circumstances in which an order will be made under O 29 r 2 are relatively well established. They may be summarised as follows:

(a)    the term “question” in O 29 r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an “issue” and a “question” is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an “issue”, and less decisive matters of dispute being “questions” (Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425; 113 ALR 643 at 647);

(b)    a question can be the subject of an order for a separate decision under O 29 r 2 even though a decision on such a question will not determine any of the parties’ rights (Landsal Pty Ltd (in liq) v REI Building Society at FCR 425; ALR 647);

(c)    however, the judicial determination of a question under O 29 r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; 161 ALR 399; [1999] HCA 9 at [45]);

(d)    where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined (Jacobson v Ross [1995] 1 VR 337 at 341, referring to Nissan v Attorney-General [1970] AC 179 at 242-243; [1969] 1 All ER 629 at 663-4 per Lord Pearson; Bass v Perpetual Trustee at [53]);

(e)    care must be taken in utilising the procedure provided for in O 29 r 1 to avoid the determination of issues not “ripe” for separate and preliminary determination. An issue may not be “ripe” for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved (CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 per Kirby P at 606);

(f)    factors which tend to support the making of an order under O 29 r 2 include that the separate determination of the question may:

(i)    contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

(ii)    contribute to the settlement of the litigation (CBS Productions Pty Ltd v O’Neill per Kirby P at 607);

(g)    factors which tell against the making of an order under O 29 r 2 include that the separate determination of the question may -

(i)    give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research & Development Pty Ltd v Commonwealth [1997] FCA 934;

(ii)    result in significant overlap between the evidence adduced on the hearing of the separate question and at trial – possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding: GMB Research & Development Pty Ltd v Commonwealth; Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629-37 of 1995, 8 September 1995, BC9502745). This factor will be of particular significance if the court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

(iii)    prolong rather than shorten the litigation (GMB Research & Development Pty Ltd v Commonwealth).

9.    Ultimately the issue for the Court to determine when consideration is being given to the making of an order under O 29 r 2 is whether it is “just and convenient” for the order to be made (Arnold v Attorney-General (Vic). There are classes of proceedings in which it is commonly recognised that it is just and convenient for an order under O 29 r 2 to be made. One such class is proceedings concerning intellectual property rights where an applicant can not be compelled to make an election as between damages and an account of profits at least until all of the evidence has been received so that, if an order has not been made separating the determination of the issues of liability and relief, the parties will have to call evidence to deal with both damages and an account of profits: Dr Martens Australia Pty Ltd v Bata Shoe Co of Australia Pty Ltd (1997) 75 FCR 230; 145 ALR 233. Another class is proceedings in which an application in the nature of a demurrer is appropriately made. An application of this kind assumes the truth of the pleaded facts. In a case in which it is clear that the pleadings contain all of the relevant facts but one party contends that the pleading does not disclose a cause of action, or a defence or a matter of reply, as the case may be, an application in the nature of a demurrer will have obvious utility: Bass v Permanent Trustee Co Ltd at [50].

(4)    Tepko v Water Board [2001] HCA 19; 206 CLR 1, it which it was said at [168] (footnotes omitted):

The appeal should be allowed. However, we should not leave this case without making four comments. Both Mason P and Fitzgerald JA were critical of the course of limiting the issues to be tried that the primary judge adopted. In Perre v Apand Pty Ltd attention was drawn to difficulties that can be caused when that course is adopted. In light of the experience in this case, what was there said should be restated with emphasis. The attractions of trials of issues rather than of cases in their totality, are often more chimerical than real. Common experience demonstrates that savings in time and expense are often illusory, particularly when the parties have, as here, had the necessity of making full preparation and the factual matters relevant to one issue are relevant to others, and they all overlap.

26    The key point to be derived from the above is that a process such as a separate question is to be used sparingly, so as to ensure that it advances, rather than detracts from, the efficient use of court and litigant resources. As Wigney J stated in Goodfellow, defamation cases should be approached in the same way as other civil actions; that is, neither more nor less stringently than other civil actions. The decision in Goodfellow will be revisited below when it comes to considering the respondents’ interlocutory challenges to the pleaded imputations, which was what that case was in fact concerned with (albeit by the mechanism, disapproved of by Wigney J, of a separate question, rather than the conventional and preferable approach of a strike out application under r 16.21). However, an argument against interlocutory disputes in relation to imputations, especially when brought by a separate question process, is of a different character to the issue of whether, in principle, a separate question procedure might be justified in particular defamation proceedings, as in any other particular civil proceeding.

27    Nothing in Wigney J’s reasons in Goodfellow supports any conclusion that separate question hearings are, in all cases and for all questions, a wholly inappropriate procedure for resolving disputes in defamation proceedings in this Court. His Honour’s reasons sound a cautionary note, with which I wholly agree, as to the overuse of interlocutory processes. However, his Honour was dealing with a very different case.

28    When considering whether the separate question procedure can be properly used to seek to expose the real potential for a fatal and incurable flaw in a party’s case, the suggestion that this cannot or should not form any part of modern case management is not supported by any of the authorities relied upon by Mr Triguboff. Nor is it supported by Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 or Expense Reduction Analysts Group Pty Ltd v Armstrong Strategies Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303. As already noted, it is a remedy to be used sparingly. However, it is not a procedure that is in any way defunct in this Court: see, for example, Australian Securities and Investments Commission v Whitebox Trading Pty Ltd [2017] FCAFC 100; 251 FCR 448.

29    In this case, the use of the separate question procedure is sought to be deployed by the respondents upon the basis of the asserted incapacity of the pleaded case, irrespective of any evidence that might be obtained and adduced, to establish, from the publication itself, an identity link between Mr Triguboff and Meriton. It is sought to be used in the nature of a demurrer to an indictment in criminal proceedings, so as to bring proceedings to an end without the need for a trial. Such an argument should only be entertained in reasonably stark cases, as is contemplated by r 30.02, reproduced at [17] above. However, used wisely, it is an important part of the Court’s armoury in advancing the case management imperatives of s 37M of the Federal Court Act. The proper application of s 37M dictates that if a separate question is able to properly determine that a case cannot succeed at trial, whatever the evidence, then the potential to save considerable time, cost and court resources cannot be overlooked.

30    The competing arguments and the state of the authorities, as discussed below, are such that the respondents cannot be criticised for taking the step of seeking a separate question upon the asserted basis that it may effectively bring the proceedings to an early end, even if that bid is not ultimately successful.

31    On its face, the article does not refer to Mr Triguboff in any way. Factually, this case is somewhat different to, if not quite unlike, other cases in which an identity link is asserted between a business owner who is not named, and a business that is named, by reason of the business having an alter ego in the sense that most, if not all, of the key acts of the business are the personal acts of the business owner. Rather, Mr Triguboff relies upon a more abstract reputational alignment – “general notoriety”, as it was asserted in the further particulars letter reproduced at [10] above – with the business conducted by Meriton rather than anything directly done by him, which takes his case somewhat further than at least the facts in some of the key prior cases in this area.

32    If the respondents’ contention as to identity is made good, the question should be allowed and answered in the negative. If, however, that contention cannot be made good upon the basis of taking Mr Triguboff’s case at its highest, in the circumstances of this case there would be no utility in allowing the question to be posed and then answered in the affirmative, especially at this early stage. To do so would risk delving into and adjudicating upon, or at least appearing to prejudge, what are factual questions, or at least mixed questions of fact and law, rather than what are purely legal questions. The resolution of the issue of whether the separate question should be allowed to be posed therefore turns on whether the answer to the question sought to be posed – “is the matter complained of reasonably capable of being about [Mr Triguboff]?” – must be “yes” or “no”. That is, it is only if the conclusion is reached that the answer to the separate question must be “no” that the question should be permitted to be posed.

IA paragraphs 1 and 2: the separate question – “is the matter complained of reasonably capable of being about the applicant?” and respondents’ contention that the answer should be “no”

Respondents’ submissions

33    The respondents contend that Mr Triguboff was not identified by the matter complained of and that it is therefore not “about” him, as required by ss 8 and 9(5) of the Defamation Act. The respondents therefore contend that the answer to the separate question as to whether the matter complained of is reasonably capable of being “about” Mr Triguboff must be “no”. If the question is allowed and answered in that way, the rest of the orders sought by the respondents beyond the dispositive orders do not, strictly speaking, arise for consideration.

34    The competing arguments were well exposed and explained by the written submissions, as addressed at the IA hearing. The respondents’ written submissions are summarised below, followed by those for Mr Triguboff, with some further exposition of the authorities referred to.

35    The respondents contend that it is an essential element of the tort of defamation that the relevant publication be “of and concerning” Mr Triguboff; that is, that it be “about” him, as required by ss 8 and 9(5) of the Defamation Act, citing:

(1)    Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 per Mason J, where his Honour observed at 23:

Not every statement likely to injure a person in his profession or trade is a statement about him. That the statement must be a statement about him to qualify as defamatory matter is in itself a limitation on the category of imputations made actionable by the statute. Thus, for a newspaper to observe in the course of a published report on the performance of a particular model of a car that it was unsafe would be to make a statement likely to injure the distributors of that car in their business; yet it would not be a statement about the distributors and would therefore not defame them. Conversely, it could well be regarded as a statement about the manufacturer of the car, viz. that it produced an unsafe product, likely to injure it in its business and therefore actionable by it.

(2)    Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371B-D (emphasis added):

In order to succeed in the action, the plaintiff had to prove, not only that the defendant published the article and that it was defamatory, but she had also to identify herself as the person defamed: Gatley on Libel and Slander, 6th ed., Par. 281 Knupffer v. London Express Newspaper Ltd. [[1944] AC 116 at 120]. “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?”: David Syme & Co. v. Canavan [(1918) 25 CLR 234 at 238], per Isaacs J. Therefore, publication “of and concerning the plaintiff”, an essential ingredient in her cause of action: Sadgrove v. Hole [[1901] 2 KB 1 at 4], per A.L. Smith M.R.; could here have been made only to those who, possessing particular knowledge of the plaintiff, were able by that means to infer that the article referred to her.

Accordingly, in order to succeed, the plaintiff had to prove that it was reasonable for persons with such knowledge, who had read the article, to conclude that it referred to her; that is, that it designated the plaintiff as having been involved in the thefts. The proposition so stated raises an issue of fact; and the plaintiff called a number of witnesses who swore that, having read the article, they believed, for different reasons, that it did refer to the plaintiff. It must be assumed that the jury accepted this evidence. But before the issue of identification in fact could go to the jury, there was an antecedent question of law which the judge had to answer in the plaintiff’s favour. As Viscount Simon L.C. observed in Knupffer’s case [[1944] AC 116 at 121]: “There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law—can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact—does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?”

(3)    Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136 at [10]:

A defamatory publication is not actionable unless it is established to have been published “of and concerning” the plaintiff. Where the plaintiff is not expressly named, it must be established that the matter was published to at least one person who had knowledge of extrinsic facts that would provide the necessary identification: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243-4 per Lord Reid. The provision of such particulars is a requirement under the rules: r 15.19(d) of the Uniform Civil Procedure Rules.

(4)    Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [14]:

As the plaintiffs’ Amended Statement of Claim recognised, it is an essential element of a claim in defamation that the plaintiff prove that the published statements were made “of and concerning the plaintiff” (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371). If, as here, the matter complained of did not expressly mention the plaintiff and the identity of the plaintiff as a person referred to would only be known to readers who had knowledge of special circumstances, it is necessary for the plaintiff to prove, first, that the matter complained of was published to a person or persons who had such knowledge and believed that the plaintiff was referred to (Steele at 373–4).

36    It may be observed that the authorities draw a distinction between publications in which the person alleged to be defamed is referred to by name, and those in which the person is not so named. The respondents submit that this case is of the latter type. Accordingly, the test to be applied is that stated in David Syme & Co v Canavan (1918) 25 CLR 234 at 238 (emphasis added):

The words complained of were found by the jury to be defamatory, that is to say, they tended to create a bad opinion of any person to whom they could be shown to refer. But the jury also found that they did not refer to the plaintiff. The plaintiff was not specifically named. The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him. But that is a fact, and it is a fact the burden of proving which to the satisfaction of the jury is upon the plaintiff. That is established by cases of the highest authority, such as Le Fanu v. Malcomson [l HLC 637] and E. Hulton & Co. v. Jones [[1910] AC 20].

37    The respondents submit that, while the test for the existence of the necessary identity link when the complainant is not named is one of fact, it is well established that the question of whether the evidence – in this case, any evidence – is capable of establishing that fact is a question of law to be determined by the tribunal of law, and therefore the trial judge, citing 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 (Plymouth Brethren (First Instance)) at [6]-[7] (citation in footnote omitted):

6    The defendants contend that neither of the matters complained of is capable of identifying the plaintiff company and that the proceedings should accordingly be dismissed. It was common ground between the parties that the test for identification is that stated by Isaacs J in David Syme & Co v Canavan:

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?

7    That is a question of fact for the jury. However, it is well established that the question whether the evidence is capable of establishing that fact is a question of law to be determined by the judge. The defendants seek to have that issue determined separately as a preliminary question pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW). In bringing that issue forward for separate determination, the defendants accept that the Court should assume the plaintiff would be able at trial to establish the matters stated in the pleadings and particulars.

38    It should be noted that although the decision in Plymouth Brethren (First Instance) was overturned by majority as to the answer given to the separate question in that case, the NSWCA in 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 (Plymouth Brethren (NSWCA)) cast no doubt on the correctness of the long-standing proposition of capability being a question for the tribunal of law. As discussed below, all three appeal judges also rejected an appeal ground that the primary judge should not have ordered the determination of a separate question, albeit that the procedure was not opposed in that case.

39    The respondents contend that, in order for Mr Triguboff to establish that a publication identified him, he must establish, objectively, that a reasonable reader, having knowledge of the relevant facts, would have understood that the material complained of was referring to him. The hypothetical ordinary reader must have rational grounds for a belief that the matter complained of refers to Mr Triguboff, citing Younan at [25], where it was said:

… although the ordinary reader must have rational grounds for his or her belief that the matter complained of refers to the plaintiff, the “standards of reasonableness required of an identifying reader are not high” (Steele at 363–4), the ordinary sensible reader “is understandably prone to engage in a certain amount of loose thinking” (Amalgamated Television v Marsden (1998) 43 NSWLR 158 at 165) and such a reader draws implications much more freely than lawyers, “especially when they are derogatory” (Favell v Queensland Newspapers [2005] HCA 52; 79 ALJR 1716 at [11]). In my 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” (Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 at 301).

40    The respondents therefore contend that Mr Triguboff must establish:

(1)    that the matter complained of was published to a person or persons who had knowledge of the extrinsic facts relied upon and who believed that Mr Triguboff was the person referred to; and

(2)    that not only were there readers who, on the basis of the extrinsic facts of which they had knowledge, believed that the matter complained of was referring to Mr Triguboff, but also that those readers were sensible ordinary readers who could reasonably have come to that conclusion, citing Younan as follows:

16    … the plaintiffs do not, impermissibly, assert that an erroneous belief of extrinsic facts was a sufficient basis for a reader to identify the plaintiffs as being referred to by the article (compare Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632 at 642 concerning untrue innuendoes; Nu-Tec v ABC [2010] NSWSC 711 at [18]). Consistently with World Hosts at 642, the plaintiffs do however contend that readers who knew of the (true) extrinsic facts erroneously, but reasonably, understood the article as referring to the plaintiffs. Thus they assert that the readers’ beliefs arose from, or were the product of, the article itself (ibid).

17    Secondly, for a plaintiff to succeed he or she is required to prove that not only were there readers of the article who, on the basis of the extrinsic facts of which they had knowledge, believed it to be referring to the plaintiffs, but also that those persons were “ordinary sensible readers” who could reasonably have come to that conclusion (Steele at 374).

41    The respondents submit that Mr Triguboff’s task has been authoritatively stated in a number of cases:

(1)    In Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86, it was said by Jordan CJ at 89:

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

(2)    In Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; [2002] Aust Torts Reports 81-675, it was said at [45] (emphasis in original):

Consolidated Trust, Cross and Kruse illustrate an important distinction in relation to cases where the plaintiff carries on a business otherwise than under his, her or its name. If the matter complained of does not refer to the plaintiff by name, it is not enough that the plaintiff proves that someone who read or saw it linked the publication and the business. The plaintiff must prove that the link was drawn between the publication and the plaintiff.

42    The respondents contend that the necessary threshold is not met by the article and thus by the pleadings about the article. Mr Triguboff’s statement of claim does not provide particulars of identification, a topic that is addressed in more detail below. Rather, it effectively alleges that his connection to Meriton is so well-known that it can be inferred that he was identified by readers of the article. However, the respondents submit that such an association is not to the point, and that, in the language of Parras, no “link” is capable of being drawn between the matter complained of and Mr Triguboff. The respondents argue that no evidence can cure this deficiency in the pleaded case, because the article simply does not go far enough to defame any natural person associated with Meriton, including Mr Triguboff. The key features of the article that the respondents contend lead to this conclusion are:

(1)    that Mr Triguboff is not named;

(2)    that while Meriton is referred to, nothing in the article refers to Mr Triguboff’s role within that company, such as, for example, his role in decision-making that affects the quality of the apartments built by Meriton, or his role in the corporate strategy that is the subject of the article; and

(3)    that not even vague references to the board or management are used in the article, such that this is not a case in which Mr Triguboff can be identified as belonging to a confined class of individuals, such as his role in a group of directors or managers.

43    The respondents contend that it follows that the matter complained of cannot be understood as being “about” Mr Triguboff and is not reasonably capable of identifying him, particularly considering Plymouth Brethren (First Instance), in which it was held that a publisher will be held liable where its own erroneous statement leads to the identification of a person, but not where that only occurs due to an erroneous belief on the part of the putative reader, not arising, either directly or inferentially, from the words published. The inference that the article was “about” Mr Triguboff must be able to be drawn from the words published, and not be based only on speculation on the part of the reader. The impact on this proposition of the decision in Plymouth Brethren (NSWCA) is considered below.

44    The respondents submit that the conduct in the article is clearly attributed to Meriton and that it is thus clearly “about” Meriton, rather than leaving the reader with any hanging question as to who, if any natural person, that conduct could be attributed to. The respondents contend that, where no natural person is referred to in a publication, there are circumstances in which a reader may acceptably conflate a reference to a company engaging in conduct as being a reference to an individual operating that company, such that the identification process is effectively completed, but that the examples of those instances in the authorities are all examples of sole proprietors or relatively small business entities.

45    In addressing the applicant’s argument of notoriety – namely, that Meriton is a company that is sufficiently identified in the public eye as being owned by Mr Triguboff such that Mr Triguboff’s ownership is notorious and a reader would understand a reference to Meriton to be a reference to him – the respondents point to a converse aspect of the notoriety argument. The respondents note that the asserted notoriety is founded on the scale and size of Meriton and the pervasive nature of its reputation amongst the Australian public. By that very nature, the respondents submit that the asserted notoriety in fact goes against the reasonableness of the reader conflating the act of the company with the act of the individual, and does not enable the identification process to be completed, as, for example, with sole traders.

46    Given the restrictions on Meriton suing in defamation but not for injurious falsehood, the respondents contend that it is difficult to resist the conclusion that Mr Triguboff’s claim in defamation constitutes an attempt to circumvent those restrictions. It may be observed at this point that in a case of injurious falsehood, Meriton would bear the onus of proving that the representations in the article as to the quality of the apartments it built and sold were false, whereas in defamation, the onus of proving the truth of such representations lies with the publisher. The respondents therefore submit that Mr Triguboff’s statement of claim strains the jurisprudence on identification, reflecting the artificiality of the identification pleading. They submit that s 9(5) of the Defamation Act does not assist Mr Triguboff, because he can only sue in relation to a publication that is “about” him, and not only about Meriton.

47    At the hearing, the respondents separately sought to place some reliance on early correspondence, sent soon after the publication of the article, in which a Meriton in-house lawyer confined the expressed concerns to the impact on Meriton, without reference to Mr Triguboff. However, this correspondence is of little or no assistance. Either the article is capable of being “about” Mr Triguboff or it is not, irrespective of the view that might have been taken by that lawyer.

Applicant’s submissions

48    The written submissions for Mr Triguboff on the topic of identification accept that the matter complained of must be “of and concerning” him; that is, that it must be “about” him. In oral submissions the point was made that there is nothing new about this test. The burden of Mr Triguboff’s submissions is that the issue of whether the matter complained of was “about” him is a matter for evidence, rather than pleadings. This approach tends to elide the capacity question for the tribunal of law, rather than address it. Mr Triguboff accepts that, as he was not named, he must be identifiable by other means, citing the passage from Canavan reproduced at [36] above. Maintaining a focus on the task of the tribunal of fact, Mr Triguboff submits that he must prove that it was reasonable for persons with particular knowledge about him, who had read the article, to conclude that it referred to him, citing Steele at 371B-D, reproduced at [35(2)] above, and Zoef v Nationwide News Pty Ltd [2016] NSWCA 283; 92 NSWLR 570 at [126]-[128] to like effect.

49    Mr Triguboff submits that, ultimately (that is, at the conclusion of the trial), the Court needs to be satisfied that there was at least one person who reasonably identified Mr Triguboff. This may be achieved by a witness coming to court and giving evidence. However, he submits that a finding that he was identified can also arise by inference, citing Zoef at [166]. It should be noted that this passage from Zoef must be read in the context of the preceding paragraph, in which it was observed that the “contention that the ordinary reasonable reader would conclude that there are two people in the same district with the same (distinctive) name and the same trade, and that the article referred to the other person known as [the plaintiff] is highly improbable”. It was not explained how, on the face of the article alone, such a confined inference could be drawn in this case.

50    Mr Triguboff points to Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; 91 NSWLR 485 at [115] and [127] to [130] as a “striking” example of a case in which a court inferred that the plaintiff had been identified in the matter complained of independently of witness evidence. However, that characterisation of Pedavoli is apt to mislead. That was a case in which there was no issue that the plaintiff was identifiable from the information contained in the article that had been published: see Pedavoli at [42]. That is, the plaintiff was, as a matter of law, capable of being identified from the publication. That was because an individual teacher – who was not the plaintiff – had been referred to in the article as occupying a particular position and as having engaged in predatory sexual activity with students. By reason of an error in that position description, the plaintiff was the only person occupying the position so described. The passages cited by Mr Triguboff refer to evidence by which the plaintiff in Pedavoli sought to identify how many people would have been able to ascertain that it was she who the article referred to. The live issue was the extent of the publication, not the question of identification. Pedavoli was therefore a very different case to the present.

51    Mr Triguboff submits that more than one person may be identified in a publication, citing Lee v Wilson (1934) 51 CLR 276 at 286, 295 and 298. Thus, it is submitted, the question is not who was targeted by a publication, but, rather, who was hit, citing E Hulton & Co v Jones [1910] AC 20 at 22. Moreover, it is submitted that the identification need not be strictly contemporaneous with reading the article, citing Pedavoli at [48] and [81] and Gardener v Nationwide News Pty Ltd [2007] NSWCA 10 at [40] to [46] and [50]. Each of these points may be accepted as far as they go, but it must be borne in mind that, in each of those cases, a natural person was identified and thus defamed, and the question was whether that was reasonably able to be a reference to the plaintiff. Taking the cases that Mr Triguboff relies upon in turn:

(1)    In Lee, the article named the wrong police officer of that name – there was no issue of capacity in the sense presently under consideration.

(2)    In E Hulton, an article was published in a newspaper that was defamatory of a person named “Artemis Jones”. There was a barrister of that name who sued. It was accepted that the author and editor did not know that a person of that name really existed. Evidence was given by his friends that they thought the article was referring to him. A verdict in his favour was upheld by the English Court of Appeal, who were in turn affirmed by the House of Lords upon the basis that it was open to the jury to find that readers would suppose the article to be referring to a real person and be taken by those who knew the barrister to be referring to him. The error was in the publication, not in the minds of the readers.

(3)    In Pedavoli, while there was not strict contemporaneity, there was relative contemporaneity measured by a very small gap in time, with a concession made relating to a putative parent asking a child about the teacher who was wrongly referred to in the publication.

(4)    In Gardener, a teacher was named in some of the publications, but not in others, providing contextual identification within the publications when read together.

None of these cases therefore provide any clear guidance as to the circumstances of this case beyond the reiteration of well-established principles.

52    Mr Triguboff points out, in relation to the test of whether a publication reasonably led a person acquainted with him to believe that the matters complained of were referring to him, that the threshold to meet that test was not high. It is suggested that in several of the leading cases, the identifications were “in fact quite far-fetched”, citing Steele at 364D-F and Younan at [25]. It is not apparent why that designation is of any assistance in this case. Be that as it may, for this reason it is submitted by Mr Triguboff that the capacity of the article to identify him should be judged with the same attitude as applies to the question of whether the words complained of are capable of conveying a defamatory meaning, citing Club La Costa (UK) Ltd v Gebbard [2008] EWHC 2552 at [37]. Whether or not the reference to the same “attitude” is apt to describe the application of analogous legal principles, substantially the same principles may be seen to apply to determining whether the matter complained of was capable of identifying Mr Triguboff as apply to determining whether or not the matter complained of is capable of bearing a defamatory imputation: see Plymouth Brethren (NSWCA) at [70] and the cases cited in the footnote.

53    Applying the above submissions as to the law to the case at hand, Mr Triguboff submits that:

(1)    The article is a direct attack on Meriton – that assertion, addressed further below, will be assumed to be correct for the purposes of the separate question issue.

(2)    While the article does not refer to Mr Triguboff by name, it is well-established that the owner of a business can be defamed by material that is defamatory of the owner’s business, citing Parras at [45] to [49] in support of the proposition that he only had to prove that the matter was published to persons who would know that he was the owner, along with the key cases referred to in those passages, being:

(a)    Consolidated Trust at 91:

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

…

But the less revealing the description the greater the danger of omitting proof of identification.

...

In the absence of anything in the evidence to suggest that the identity of the owners of the buildings in question was a matter of such general notoriety that it could fairly be presumed that anybody to whose notice the article came would know who it was that was referred to as the owner, I am of opinion that this argument is unsound.

(b)    Cross v Denley (1952) 52 SLR (NSW) 112 at 115 to 116:

It is not only necessary that the words published should convey a defamatory meaning; they “must also convey a defamatory meaning of the plaintiff. If those who read or hear them, though understanding them in a defamatory meaning, do not identify the plaintiff as the person referred to, there is no publication” (Gatley on Libel and Slander (2nd ed.) p. 96). Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred – as for example where without mentioning names the statement is defamatory of a person who is described as the holder of a particular office – and it is a matter of general notoriety who the holder of that office is – evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary.

(c)    Kruse v Lindner (1978) 45 FLR 412 at 414-5, and, in particular, the following passages at 414 (footnotes omitted):

It is of the essence of the tort of defamation that the person defamed be able to show that his reputation has suffered by reason of the publication complained of. Unless the publication points to some person as the person against whose reputation the aspersion in the publication is made with such particularity that a reader without additional knowledge, or with additional knowledge, can and does identify some particular person as the person whose reputation is the subject of the aspersion, then nobody is defamed.

It is said in Gatley on Libel and Slander (7th ed., 1974), pars. 281-282: “To succeed in an action of defamation the plaintiff must not only prove that the defendant published the words and that they are defamatory: he must also identify himself as the person defamed…

‘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? ... It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff can make out that he is the person meant’, i.e. ‘meant by the words employed’.”

As was said by Lord Justice Alverstone in Jones v. E. Hulton & Co.: “If, in the opinion of a jury, a substantial number of persons who knew the plaintiff, reading the article, would believe that it refers to him, in my opinion an action, assuming the language to be defamatory, can be maintained. … If upon the evidence the jury are of opinion that ordinary sensible readers, knowing the plaintiff, would be of opinion that the article referred to him, the plaintiff’s case is made out”. In the relevant context the concept of knowing or being acquainted with the plaintiff is a broad one and extends far beyond knowledge and acquaintanceship is close or intimate.

(3)    Evidence of specific witnesses who knew the owner of the business or holder of an office is not always necessary if the facts on which the identification depends are sufficiently notorious within the area of publication, citing Parras at [55] to [56] and, again, Consolidated Trust at 91. It is submitted by Mr Triguboff that evidence would most likely not be required to establish, for example, that Mr James Packer was identified by a publication which referred to Crown Casino, because of the notoriety of his connection with that business. That submission is a revealing indicator of how far Mr Triguboff’s argument goes in eliminating the practical effectiveness of s 9 of the Defamation Act – it amounts to a submission that simply naming a company can equate to naming the persons who are well-known to be behind it, dispensing, in one fell swoop, with the very notion of independent corporate personality.

54    Mr Triguboff submits that the Court is entitled to take notice of the following facts and to infer from them that he and his connection to Meriton would be well-known to readers of the AFR generally and to Meriton employees, contractors and business partners in particular, as supported by the newspaper article evidence adduced for the purposes of the IA. Mr Triguboff submits that:

(1)    his connection with Meriton is one of general notoriety, for the reasons particularised in the statement of claim at [3(h)] to [3(o)]. This was said to be particularly so because the article was published in the AFR, a specialist financial newspaper, which was relevant to assessing the nature and extent of the contextual knowledge which readers would have brought to bear as persons with a higher-than-average knowledge of business affairs; and

(2)    aside from the general level of knowledge that an AFR reader might reasonably be inferred to possess, it was “effectively certain” that at least some executives or directors of Meriton would have read the AFR on the day of publication, as would readers who had done business with Meriton.

55    It may be observed that the submission in the preceding subparagraph (1) exposes one of the tensions in Mr Triguboff’s case. In his oral submissions, he contends that the issue of company law is irrelevant in this case, because an “ordinary reasonable reader”, being one who “reads the AFR over breakfast”, would not “distinguish as the law does between a corporate entity and an individual”. Based on the submission in the preceding subparagraph (1), an ordinary reasonable reader who reads the AFR over breakfast would arguably have a higher-than-average knowledge of the complexity of business ownership and management arrangements within large corporations, and therefore be more likely to make the distinction. There is a stress between the “loose thinking” presumption of readers and the contextual knowledge of readers with a higher-than-average knowledge of business affairs. This topic is returned to below at [77] and briefly at [102].

56    By reply submissions at the IA hearing, the respondents notably sought again to distinguish the submissions of Mr Triguboff as to notoriety. The respondents submitted that, in effect, the larger the company, the more precise the requirement is that the publication either refer to a person, the identity of whom is known notoriously by a subset of people, or, where no person and only a company is referred to, show that there is knowledge on the part of readers that connects a person with conduct referred to in the article. Effectively, it was submitted that it was not sufficient in this instance to assert notoriety to advance an alter ego characterisation for Mr Triguboff with respect of the identity of the company, without also establishing that as to the company’s actions or conduct.

Plymouth Brethren (NSWCA) and further submissions on that decision

57    After judgment was reserved, on 7 May 2018 the NSWCA handed down Plymouth Brethren (NSWCA), overturning by majority the decision of the primary judge in answering a separate question as to identity in favour of the publishers. The parties were given leave to provide short supplementary submissions as to the relevance of that decision, which were furnished on 11 May 2018.

58    Factually, Plymouth Brethren (NSWCA) was a very different case to the present, by nature of the following features:

(1)    the defamation suit was brought by a company that was in the limited class of companies able to bring such proceedings;

(2)    the events reported upon had taken place before the company was incorporated; and

(3)    several articles conflated the plaintiff company with the earlier entity said to have been involved in the child sexual abuse conduct reported upon, leading to the majority decision on appeal that any error in identification (described as the “capacity issue”), was the product of the matters complained of, and was not due only to error on the part of the reader.

59    By way of supplementary submissions following the decision in Plymouth Brethren (NSWCA), the respondents in this proceeding assert that while the evaluation of the primary judge in that case was overturned by majority, that finding was based upon the particular facts in that case, with the principle remaining intact. The respondents rely upon the following paragraphs of Plymouth Brethren (NSWCA) (footnotes omitted) from the judgment of McColl JA (with whom Beazley P agreed, with Basten JA dissenting) to emphasise the principle that any erroneous assumption by a reader had to be derived from the publication, and not from an error made only by the reader (the reference to the “capacity test” is a reference to the capacity of the publication to identify the person said to have been defamed):

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”. It is then for the jury to decide as a question of fact whether it actually identified the plaintiff. It is irrelevant whether or not the publisher of the matter complained of intended to refer to the plaintiff.

[McColl JA at [71] quoted from Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 79 ALJR 1716 at [6]; and at [72] quoted from Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [136]-[137] as to the caution to be adopted at the capacity stage.]

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    … 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 [Younan at [20] – [21]].

…

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.” 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.

…

108    … 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.

109    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.

60    The respondents submit that while Basten JA in Plymouth Brethren (NSWCA) was in dissent on the characterisation of the particular publications there under consideration, his Honour nonetheless correctly stated the legal test. The respondents summarised his Honour’s judgment as follows:

(1)    from [144], the test to be applied as to the capacity of a publication to identify the person claiming to be defamed is objective – “neither the subjective intention of the publisher, nor the subjective belief of the complainant, determines whether the defamatory matter is about the complainant”; and

(2)    from [147], the Court is required “to consider whether the publication, read as a whole, was capable of leading a reasonable reader to identify the [complainant] as a subject of the defamatory allegations, in the sense that the matter was “about” the [complainant]”.

61    It may be accepted that the above statements of principle were not in doubt in Plymouth Brethren (NSWCA). Basten JA departed from the majority at [159] in finding that the case was one in which “a reader could not reasonably infer from the article read as a whole that any of the defamatory matter was about the [complainant]”.

62    Thus, even following Plymouth Brethren (NSWCA), the respondents submit that Mr Triguboff’s case is not in the territory of “mistaken belief” cases. The author of the article in this case did not use loose or interchangeable descriptions (as happened in Plymouth Brethren (NSWCA)). The matter complained of consistently refers to Meriton and its corporate strategy, lacking any reference that is capable of connecting Mr Triguboff to the matters reported upon. Bare references to Meriton are not enough to make the article “about” Mr Triguboff.

63    In relation to Plymouth Brethren (NSWCA), Mr Triguboff points to the circumstance of consent to a separate question in that case. He emphasises the great caution to be applied in considering a separate question by relying upon only the matter complained of, referring to [3] and [70]-[74] of the decision. He submits that the test for determining whether a publication is capable of carrying the asserted imputation is the same for capacity as it is for identification – if reasonable minds could differ, then the question should be determined by the tribunal of fact, citing Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 79 ALJR 1716. Mr Triguboff contends that the question is whether it would be perverse for the tribunal of fact to find that the article identified him, relying upon Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [136]-[137] (quoted at [72] and [110] in Plymouth Brethren (NSWCA), being a case in which a publisher had to take responsibility for carelessly, but unintentionally, defaming someone).

64    Mr Triguboff again emphasises that the layman may draw implications more freely than lawyers. He also emphasises that there is no need for there to be a “pointer” in an article, “so long as the matter complained of is capable of being read by the ordinary reasonable reader, with knowledge of the identifying facts, as referring to” Mr Triguboff. He submits that it is the substance of the identification that is important, not the technicality, with over-analysis to be eschewed, seeking to apply Parras as it had been in Plymouth Brethren (NSWCA) at [90]. Mr Triguboff points to his pleading of individuals who had read the article and identified him as being referred to, in contrast to Plymouth Brethren (NSWCA) at [21]. Mr Triguboff asserts that the respondents ignore the substance of the identification, being that he is synonymous with the Meriton companies and brand, having owned and operated them for over 40 years.

65    Mr Triguboff asserts that many people would recognise any reference to Meriton being a reference to him, and that the people named in the particulars provided made that identification. He submits that in Plymouth Brethren (NSWCA), like in Parras, there was no reference at all to any corporate entity, but that that did not detract from the plaintiff’s case on identification. Mr Triguboff submits that the fact that there was no such reference in this case to any individual behind Meriton similarly did not affect the identification case in this matter.

Consideration of the separate question (IA paragraphs 1 and 2)

66    The submissions for the respondents focus on what is required by way of pleadings and seek to minimise references to matters that are questions of evidence. By contrast, the submissions for Mr Triguboff focus on questions of evidence, minimising any focus on pleadings. In this way, the competing submissions have a “ships in the night” quality to them. The distinction is fundamental. The separate question can only be answered in the negative if that can be arrived at on the face of the matters complained of, assuming all asserted facts to be proven. Conversely, any evidence that could be adduced must be capable of producing a different answer to the interpretation to be given to the article on its face. The distinction is between what is capable of being proven as a matter of pleadings based on the matter complained of itself, and what is, in fact, then actually proven to realise that theoretical capacity. The second can never happen unless the first is possible.

67    Mr Triguboff places considerable reliance upon Parras at [45] to [49] and at [55] to [56] in resisting a negative answer to the proposed separate question. The respondents also seek to rely upon Parras, but to distinguish it because of asserted critical differences between that case and this case. A closer consideration of Parras is therefore required to determine whose case it really assists.

68    A small part of the television newscast in Parras referred only to a particular bar by name, Soho Bar, and not to its owners, in the context of that bar being among those targeted by police raids, with the arrests of staff on drugs and weapons charges. The interlocutory issues and issues at trial that were pursued on appeal concerned the capacity of the broadcast to convey the alleged imputations, which was run as an unsuccessful interlocutory application to strike those imputations out, and the question of identity, which was challenged on appeal in relation to the matter being left to the jury after the close of evidence. It seems that the identity question was not taken in the absence of extrinsic evidence. The observations of Mason P must therefore be considered with that important procedural difference clearly in mind. To do otherwise carries the danger of obscuring the principles to be derived from Parras.

69    Mason P dealt with the question of identity at considerable length. While portions of what his Honour said are reproduced below, this aspect of these reasons is to be read within the context of the entirety of his Honour’s reasons on this topic. His Honour said, by way of introduction to the topic of identification, the following:

30.    The telecast is not actionable in defamation unless it is shown to have been published “of and concerning” the plaintiffs (Knupffer [v London Express Newspaper Ltd [1944] AC 116] esp at 122-3). An application of this key principle is the proposition that, where matter complained of as defamatory asserts that one member of a group or class was responsible for certain conduct and where there is nothing in that matter which points to any particular member of that group or class as the one who was responsible, the matter itself is incapable of conveying any imputation of guilt in relation to each member of that group or class (McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485. See also Mann v Medical Centre Pty Ltd (1991) 105 FLR 419 (Higgins J), (1992) 38 FCR 400 (Federal Court, Full Court).)

31.    The telecast does not refer to the plaintiffs by name or title. In these circumstances, the appellant submits, there must be evidence which could show of each plaintiff that he or it could be identified by viewers with knowledge of extrinsic facts at the time of publication. This does not require proof of a ‘‘peg or pointer’’ in the publication itself (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1243-4 per Lord Reid). But it is necessary to show evidence of publication to at least one person who had knowledge of extrinsic facts that would provide the necessary identification.

32.    In my view, these propositions are correct and they support Hutley JA’s comment that “there is no justification in principle or history for distinguishing innuendoes specifying identity from other innuendoes” (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 363). The leading authority is Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86.

33.    These principles about identification have a particular impact in a claim of defamation based upon the disparagement of the goods or business of an unidentified owner, ie cases such as the present. The basal principle is that:

“It is of the essence of the tort of defamation that the person defamed be able to show that his reputation has suffered by reason of the publication complained of. Unless the publication points to some person as the person against whose reputation the aspersion in the publication is made with such particularity that a reader without additional knowledge, or with additional knowledge, can and does identify some particular person as the person whose reputation is the subject of the aspersion, then nobody is defamed. (Kruse v Lindner (1978) 45 FLR 412 at 414 per Smithers J)’’

34.    This means that where the owner of a business is not identified in the matter complained of, there must be evidence capable of showing publication to at least one person with knowledge of extrinsic facts providing the link or identification.

70    In Parras, the group or class implicitly referred to was those persons responsible for the day-to-day, hands-on management of the Soho Bar. The nature of the imputations alleged focussed on the persons running the business at the coalface, so to speak, and not those who owned the business or had a more remote association with its operations. In that way, the group or class was identified by the events described in the broadcast itself, although extrinsic evidence was relied upon to prove who was being referred to. Evidence was relied upon not to identify the group or class, but to ascertain who precisely in that group or class was being referred to.

71    The article in this case does not have that degree of focus. While, on one reading at least, it refers to the conduct of Meriton in allegedly providing stamp duty incentives to assist in the sale of what are said to be poorer quality apartments, nothing in the article identifies any group or class of people associated with the company who are responsible for that taking place. It is left entirely to speculation as to whether that is a decision of, for example, sales staff, sales managers, senior executives, the board or even Mr Triguboff himself.

72    Thus any extrinsic evidence that Mr Triguboff might call would have to first identify which class or group of individuals is being referred to, or even identify Mr Triguboff as the only member of such a class or group, to the exclusion of all of the other possible classes or groups, in order to meet the threshold identified in Parras at [30], reproduced above at [69] and drawn by Mason P from McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 and Mann v Medical Centre Pty Ltd (1991) 105 FLR 419. Yet the effect of such evidence would be to give the article a character and quality that it does not possess. The witness or witnesses would be creating not just an identification link as to who precisely was said to be defamed, but also an essential and otherwise missing aspect of the imputation, namely that it is “about” Mr Triguboff within the class or group of which he is a member, or the sole member, and not about anyone else amongst the pool of potential decision-makers who could have devised and implemented the stamp duty strategy suggested by the article.

73    Each of the remaining cases cited and discussed by Mason P in Parras, where a person asserting defamation is not named but the relevant business is named, are of a kind where the article, when read as a whole, points, either expressly or by implication, to a confined group of persons, all of whom were said to be defamed. Evidence was then adduced, as it was in Parras, to show who it was that fell within those groups of persons said to be so defamed if the imputations were established. The evidence was not needed to establish those who had been defamed, but only their precise identity as members of that group. Thus in Parras, one of the pleaded imputations referred to the plaintiffs as having managed the business, in context in the day-to-day and detailed sense of being responsible for the actions implicitly criticised in the publication.

74    It follows from the above consideration of Parras, and the prior authority referred to by Mason P in that case, that before it can be concluded that the article is capable of being “about” Mr Triguboff, it must first be capable of being understood by anyone as being “about” someone other than, or as well as, Meriton. In all of the business name cases relied upon by Mr Triguboff, the nature of the very words used was that, in referring to the business, the publication was, unavoidably, also referring to the persons running it as a matter of the language and assertions being made. No such conclusion is fairly available in this case.

75    What is lacking in the article is the quality emphasised in the quote from Canavan reproduced above at [36]:

But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.

76    The passages relied upon by Mr Triguboff in Parras at [45] to [49] and at [55] to [56] do not provide the support he requires when read in the above context, including as to the procedural history of that case. The publication was not “about” Mr Triguboff. There is nothing in the article that describes Mr Triguboff as the person being referred to, either directly or by any reasonable inference. Nor was it about any other identified person at Meriton, or anyone fulfilling any particular role at that company, either directly or by any reasonable inference, other than the quotes which did not ascribe to the person the impugned conduct. The article was too general to constitute any implied assertion about the conduct of any natural person, and was therefore too general to be about Mr Triguboff as opposed to any other person at Meriton who may have been in a position to make such a decision. Any defamatory imputations to be found otherwise were therefore confined to Meriton itself.

77    The fact that any witness might form the view that the article was about Mr Triguboff himself, rather than any other decision-maker at Meriton, would be no more than a reflection of that person’s own erroneous assumption, going beyond what the article was in fact saying. It might also be seen to constitute an erroneous inability to draw a distinction between the separate legal entity that is a company and the person who owns it, when nothing is said to suggest or imply conduct by any particular person or class of persons associated with Meriton.

78    If, contrary to the above, the article was “about” Mr Triguboff, it was not about him as part of any confined or identified class or group, but also about anybody who occupied any position of authority within the company who might be seen to contribute to its state of mind and conduct, itself a telling indicator that the article was “about” Meriton and no one else. The qualification in Parras at [30] reproduced at [69] above therefore applies to the effect that “where matter complained of as defamatory asserts that one member of a group or class was responsible for certain conduct and where there is nothing in that matter which points to any particular member of that group or class as the one who was responsible, the matter itself is incapable of conveying any imputation of guilt in relation to each member of that group or class”.

79    If this measure of discipline is not observed in relation to assertions about the activities of corporations, and especially large corporations, independent corporate personality becomes meaningless in this context, contrary to the evident intent behind s 9 of the Defamation Act. Independent corporate personality is not a device of mere convenience to be applied or set aside at will. Unless there is a proper reason to regard a publication as being not just about a company, but about a person or class of persons at a company, the corporate veil remains intact and s 9 operates according to its terms. Section 9 is to be read as a real and effective immunity from a defamation suit brought by most companies, save only that if a publication is not just about such a company, but also about a natural person, the natural person may still sue. Section 9(5) contributes to the understanding of the meaning of s 9 as a whole.

80    While Mr Triguboff may choose to conduct his affairs in a way which suggests that the corporate veil does not exist, and while media outlets may, at their peril, do the same, if care is taken not to lift the veil, it remains firmly in place by virtue of s 9. That degree of care is evident in relation to the article, which preserves the shield in s 9. It is only if Mr Triguboff is able to characterise the article as being “about” him, and not just about Meriton, that s 9(5) can apply. He has failed in that endeavour.

81    The statement of claim represents a reasonably flagrant attempt to bypass the limitation in s 9 on Meriton suing for defamation. If this was allowed, that provision would render s 9 meaningless in a great many cases. The public policy in withdrawing the tort from companies except in very limited circumstances would largely be set at nought. Section 9 is not such a limp expression of parliamentary intention.

82    A reference to a company is not automatically a reference to the natural person or persons running it, or the person or persons who own it. An article about a company alone, and without more, is not an article about its owner, however notorious the fact of that ownership. More is required. The legal entities are separate unless there is something in the publication to bridge that vital and fundamental legal gap. There was no such bridge present in this case.

83    It follows that the separate question should be allowed to be posed, and the answer should be “no”. As Mr Triguboff’s case is therefore doomed to fail, there must be judgment for the respondents.

IA paragraphs 3 and 4: application to strike out [3] of statement of claim

84    By paragraphs 3 and 4 of the IA, in the alternative to the separate question mechanism, the respondents apply for the strike out of the pleading of the matter complained of, relying upon r 16.21 of the Federal Court Rules. Order 3 relies upon an assertion that the matter complained of is not reasonably capable of “being about [Mr Triguboff]”; while order 4 relies upon an assertion that the matter complained of is not reasonably capable of identifying Mr Triguboff.

85    Either of those applications would therefore have succeeded had Mr Triguboff been successful in arguing that a separate question should not be allowed to be posed. The difference would be one of form, rather than substance, in the particular circumstances of this case. The disadvantage of this route over the separate question route is that there would have been left the theoretical possibility of a re-pleading, albeit that it would have been futile.

IA paragraph 5:    asserted lack of jurisdiction due to failure to identify readers in the Australian Capital Territory/Northern Territory

IA paragraph 6:    application to strike out [3] of statement of claim due to failure to identify readers in the Australian Capital Territory/Northern Territory

86    By paragraph 5 of the IA, again in the alternative, the respondents apply to have the originating application set aside under r 13.01 of the Federal Court Rules on the basis that this Court does not have jurisdiction to hear or determine Mr Triguboff’s claim because it does not disclose a cause of action actionable in the Supreme Court of either the Australian Capital Territory (ACT) or the Northern Territory (NT), due to the absence of particulars of identity, by reference to the names and addresses or classes of persons in the ACT or NT to whom the particulars of identification were known. By paragraph 6 of the IA, the respondents alternatively seek to strike out [3] of the statement of claim under r 16.21 of the Federal Court Rules for essentially the same asserted lack of pleaded identification of ACT/NT readers.

87    In the written submissions for the respondents dated 22 December 2017, the nub of the complaint is made clear: the statement of claim at [3] pleads publication in the ACT, all States of Australia and the NT. The respondents assert by their written submissions that they are entitled to particulars of individuals who actually read the matter complained of and understood it to be referring to Mr Triguboff.

88    Mr Triguboff asserts that there was no need to provide such particulars of readers. He contends that nothing more is required than an allegation that the matter complained of was published in the ACT, citing Crosby v Kelly [2012] FCAFC 96; 203 FCR 451 at [35]-[39], Rana v Google Inc [2017] FCAFC 156 at [24] and Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191 at [13]. He asserts that he needed to do no more than assert the existence of a federal issue (here, publication in the ACT), which was sufficient in itself to attract this Court’s jurisdiction, whether or not it is ultimately determined that the matter was in fact published in the ACT, citing Rana v Google at [21] and the authorities there cited. He therefore asserts that the application to have the originating application set aside for want of jurisdiction must fail.

89    Mr Triguboff also relies upon a range of other authority on the topic of the lack of need to plead particulars of readers more generally. This was apparently done to meet an argument put by the respondents that the pleadings would have been liable to be struck out had they been commenced in the ACT Supreme Court.

90    In order to attract the jurisdiction of this Court in defamation proceedings, it would seem that it is sufficient to plead publication in the ACT or NT, provided that the claim is not colourable (that is, asserted without substance only to attract jurisdiction): see the discussion on this topic in Rana v Google at [15]-[22]. Rana v Google at [40] notes the reader identification pleading in that case, but does not go so far as to say that it was a jurisdictional necessity.

91    It is not necessary to finally decide the question posed by paragraphs 5 or 6 of the IA, because the situation has changed since the IA was filed. While it is true that Mr Triguboff’s solicitors, by a letter dated 20 September 2017, refused to provide reader particulars, they were subsequently furnished by a letter dated 22 March 2017, the relevant text of which is reproduced at [10] above. It is not of any moment that those readers are not expressly said to reside in the ACT, as that is a reasonable inference to draw from the letter (and, if that was later shown not to be so, an explanation would be required from Triguboff’s legal representatives as to why that limitation was not made clear in the letter, with possible costs consequences).

92    In any event, a debate about the sufficiency of a reader identification pleading, as opposed to a debate about its complete absence if required, is an interlocutory dispute of the kind rightly decried by Wigney J in Goodfellow. It is therefore not productive in the circumstances to consider this issue further. If, upon closer examination, and contrary to the above interpretation of Rana v Google on the question of attracting federal jurisdiction, reader identification had been required to be pleaded and better reader identification than has been provided was also necessary, either to attract federal jurisdiction or to meet more general pleading requirements, that could have been achieved by either an order to furnish the necessary particulars, or by giving leave to amend to rectify what is, on that contrary view, a formal, albeit important, jurisdictional requirement.

93    Had the separate question not been answered adversely to Mr Triguboff, the relief sought by the respondents by paragraphs 5 and 6 would not have been granted, but consideration would have been given to whether any further procedural orders were required after hearing from the parties.

IA paragraph 7:     application to strike out imputations in [4(a)-(d)] of statement of claim on basis of not being reasonably capable of arising

IA paragraph 8:     application to strike out imputations in [4(a)-(d)] of statement of claim on basis of not being reasonably capable of being defamatory of Mr Triguboff

IA paragraph 9:     application to strike out imputations in [4(a)-(d)] of statement of claim as being bad in form

94    By paragraphs 7, 8 and 9 of the IA, the respondents seek, in the alternative, the striking out of the imputation pleadings under r 16.21 of the Federal Court Rules. The parties provided reasonably detailed submissions as to the sufficiency of the pleading of the imputations. However, this was clearly and expressly advanced as an alternative to the separate question.

95    The pleaded imputations are reproduced at [9] above. They bear repeating for ease of reference:

4.    In its natural and ordinary meaning, the matter complained of was defamatory of the applicant and carried the following defamatory meanings (or meanings not different in substance):

Particulars of meaning – UCPR Rules 14.30; 15.19(1)(e)

(a)    The applicant controls a building company Meriton that produces low quality apartments (the entire matter complained of, in particular lines 23 to 32 inclusive).

(b)    The applicant controls a building company Meriton that produces apartments of such low quality that it has to offer stamp duty discounts in relation to those apartments to attract purchasers (the entire matter complained of, in particular lines 23 to 32 inclusive).

Capacity to carry imputations

96    The respondents contend that the particulars should be struck out because the pleaded imputations are not reasonably capable of arising from the matter complained of. They point to the two-step process involved in defamation proceedings:

(1)    the tribunal of law determining whether the words which are complained of are capable of conveying a defamatory meaning; and

(2)    the tribunal of fact, if the words are so capable, determining whether the words do convey that defamatory meaning.

The authority cited in support of that proposition is not in doubt. The first step of the capacity of an imputation to convey a defamatory meaning is undoubtedly a legal test.

97    The respondents submit that the Court would reject any imputation that constituted a “strained, or forced, or utterly unreasonable interpretation” of the matter complained of, citing Queensland Newspapers Pty Ltd v Palmer [2011] QCA 286; [2012] 2 Qd R 139 at [19]. The respondents submit that a test of reasonableness is required to be applied, with a reasonable reader or listener seeking to strike a balance between the most extreme meaning and the most innocent meaning, citing Jones v Skelton [1964] NSWR 485 at 491; Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [200], quoting from John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657 at [26]; and Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; 237 FCR 33 at [70]. On the application of that test, the respondents relied upon the following passage, approved by the High Court in Favell at [6], approving the statement from the court below in the same case, [2004] QCA 135 at [2]:

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.

98    Mr Triguboff submits that a judge will only strike out imputations on the basis that they are incapable of being carried in very limited circumstances. Mr Triguboff submits that imputations must unarguably not be carried to be struck out, and if reasonable minds could differ, then they should not be struck out, citing Malcolm v Nationwide News Pty Ltd [2007] NSW 254 at [30]. In assessing whether a matter is capable of conveying the pleaded imputations, Mr Triguboff submits that the Court is required to adopt an attitude of “generosity and not parsimony”, with “great caution” being “mandated”, citing Corby at [132]-[138]. He submits that the reluctance with which a court should proceed to such an application is demonstrated by the facts that gave rise to the High Court decision in Favell. Mr Triguboff also relies upon recent decisions of this Court in which this cautionary approach was applied, citing Murphy v Nationwide News Pty Ltd (No. 2) [2007] FCA 781 at [22] and Goodfellow at [76]-[80].

99    Mr Triguboff submits that, in order to determine whether something is defamatory, the Court must consider whether it tends to lower the applicant’s reputation in the minds of right-thinking ordinary members of the community of average intelligence, citing Slatyer v Daily Telegraph Newspaper Co (1908) 6 CLR 1 at 7 per Griffith CJ; Sim v Stretch (1936) 53 TLR 669 at 671; Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171 at 172 per Jordan CJ; Mirror Newspapers v World Hosts (1979) 141 CLR 632 at 638 per Mason and Jacobs JJ.

100    The respondents characterise Mr Triguboff’s position as being that the pleaded imputations arose from the natural and ordinary meaning of the matter complained of, and that this was not a true innuendo case. That is, the respondents contend that Mr Triguboff does not rely on extrinsic facts as forming the basis upon which the alleged imputations were said to be conveyed to the ordinary reasonable reader. That characterisation appears to be correct. It was not disputed by counsel for Mr Triguboff.

101    The respondents submit that, viewed in that way, the imputations require a “strained, or forced, or utterly unreasonable interpretation” of the matter complained of and should therefore be struck out. The respondents point out that a common feature of both pleaded imputations is that Mr Triguboff “controls” Meriton, but that such imputations cannot be conveyed by the words used in their ordinary natural meaning, because Mr Triguboff is not referred to in the matter complained of at all and the matter complained of does not refer to him “controlling” Meriton.

102    The respondents submit that the notion of control is insufficient to attribute to Mr Triguboff responsibility for the specific acts of the company. They submit that passive control by reason of ownership is very different from the notion of active control by virtue of being in management. They submit that, as the ordinary reasonable reader would know, many large corporations are under the stewardship of a number of corporate officers. They further submit that in relation to the imputation at [4(b)] of the statement of claim, the matter complained of is incapable of conveying the imputation that Meriton produces apartments of such low quality that it has to offer stamp duty discounts to attract purchases. This is because the first and second paragraphs of the article make it plain that the reason such incentives are being offered by a number of developers is the slowdown in off-the-plan apartment sales to foreign buyers.

103    If the determination of whether the imputations are capable of being carried as pleaded proceeds upon the basis that the answer to the separate question remains “no”, then the test for capacity to carry the pleaded imputations cannot be met. If, however, that question had instead been answered “yes”, and thus in Mr Triguboff’s favour, the evaluative exercise would proceed upon the basis that he is sufficiently identified by the references to Meriton in the article. That, in turn, would seem to depend upon the question of control through ownership, because that is the nub of the imputation relied upon when read in the context of [3] of the statement of claim and the further particulars. Moreover, such control through ownership is at least the implicit basis upon which the separate question might have been answered differently, in Mr Triguboff’s favour.

104    The evaluative application of the legal test of capacity to carry imputations must therefore be answered in favour of the respondents, largely because of the conclusion reached on the separate question. However, it may be that the conclusion that has been reached on the separate question will be challenged and such a challenge will be upheld. In those circumstances, it is desirable that the alternative be considered upon that basis.

105    As alluded to above, the alternative basis is that of control through ownership being sufficient to align Mr Triguboff with Meriton. In effect, for the purposes of this exercise, it is as though “Mr Triguboff” appeared in place of “Meriton” throughout the article. Viewed in that way, the article is said to attribute to Mr Triguboff (via his control of Meriton) the production of low quality apartments, and to suggest that the quality of those apartments is so low that stamp duty discounts are necessary to attract purchasers. Viewed in that way, the pleaded imputations cannot be said, as a matter of law, to entail a “strained, or forced, or utterly unreasonable interpretation”. Adopting at least an attitude of “generosity and not parsimony”, and perhaps not even as low a test as that, this is an assessment about which reasonable minds could differ, such that the imputations would not be struck out upon the basis of not being able to be carried if the identity link between Mr Triguboff and Meriton were found to have been made out.

Defamatory capacity

106    The respondents submit in the alternative that if the imputations are capable of arising from the matter complained of, [4] of the statement of claim should nevertheless be struck out because the imputations are not reasonably capable of being defamatory of Mr Triguboff. That is because the general test is whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff, and because it is disparagement of reputation that is the essence of the action for defamation, citing Radio 2 UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at [5] and [32].

107    While the question of whether the matter complained of is capable of conveying the defamatory imputation alleged is a question of law which admits of only one answer, it is a “question about which reasonable minds may sometimes differ”, such that great caution is required before such a pleading is disallowed upon this basis, especially as capacity must be taken at its highest when considering a strike out: Trkulja v Google LLC [2018] HCA 25 at [30]. The tribunal of law is required to attempt to “envisage a mean or midpoint of [readers’] temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words … considering the publication as a whole”: Trkulja v Google at [31].

108    Once again, if the determination of whether the imputations are capable of being defamatory as alleged proceeds upon the basis that the answer to the separate question remains “no”, the test for defaming Mr Triguboff cannot be met because the matter complained of is not about him, no matter how defamatory. If, however, that question had instead been answered “yes”, and thus in Mr Triguboff’s favour, the evaluative exercise would proceed upon the basis that he is sufficiently identified by the references to Meriton in the article, based on control through ownership.

109    The respondents submit that the pleaded imputations lack the necessary “defamatory sting”, because it was not defamatory of a company or its management to say that a company (and thus effectively, on this alternative argument, Mr Triguboff) produces something of “low quality”. In substance, the respondents argue that the term used in the article was merely descriptive. In those circumstances, the respondents submit that there was no statement reflecting adversely on Mr Triguboff’s conduct of his business. That argument may be disposed of reasonably swiftly. Applying the caution dictated by Trkulja v Google at [30]-[31], referred to at [107] above, the comparative question of whether the use of the term “low quality” is relevantly disparaging or merely descriptive indicates that the existence of the alleged defamatory imputation would be a live question for determination by the tribunal of fact, not a threshold capacity question for the tribunal of law. The imputations would therefore not be struck out as being incapable of having a defamatory capacity at law if the identity link between Mr Triguboff and Meriton had been found to have been made out.

Defect in form of pleading

110    Mr Triguboff points out that objections to form used to be common, due, in particular, to the imputation previously being the cause of action under the former Defamation Act 1974 (NSW). However, under the current 2005 Act, that is no longer the case, because a particular meaning is not the cause of action: see s 8 of the Defamation Act 2005. Thus a defect in the pleading of the imputation does not go to the cause of action and therefore cannot, of itself, render the pleading defective by the application of the cause of action limb of r 16.21(1)(e). It follows, he submits, that the pleading of the imputation should only be struck out if it meets the threshold under, for example, r 16.21(1)(c) or (d), for being ambiguous or embarrassing or the like. A defect in the pleading of an imputation does not of itself deny the existence of a cause of action. One of the other limbs of r 16.21(1) must be engaged and the test for that limb made out. That submission must be accepted. Deficiencies falling short of, for example, the test of being ambiguous or embarrassing will not suffice to strike out the pleading of an imputation, although it may cause the difficulties at trial, most likely for Mr Triguboff.

111    The respondents submit that the imputations should be struck out as they are sufficiently bad in form. That is said to be so because, when pleading an imputation, a party is obliged to identify to the party being sued the act or condition which the tribunal of fact will be asked to accept was understood by the ordinary reasonable reader as having been attributed to him by the matter complained of. In order to meet that requirement of procedural fairness, it was necessary for Mr Triguboff to distil the specific act or condition that is alleged to have been attributed to him by the matter complained of, citing Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [125)-[126]; see also Adeang at [34]. The respondents contend that neither of the pleaded imputations asserts any act or condition on the part of Mr Triguboff. The respondents contend that the imputations merely state that Mr Triguboff controls a company that is said to do certain things, and that it is the company doing the act. The respondents submit that being in control of a company is not, in and of itself, an act or condition, and that, in these circumstances, the relevant person who is doing the act is the company, and the significance or role of the pleaded “control” is ambiguous. The respondents therefore submit that the imputations as pleaded are liable to embarrass the respondents in their defences and should be struck out as bad in form.

112    Mr Triguboff defends the pleading of the imputations by attacking the form of the objection to [4(a)] and [4(b)] of the statement of claim. The objection raised is said to be unclear because the meaning of [4(a)] of the statement of claim is asserted to be clear and unambiguous. Mr Triguboff submits that the defamatory condition attributed to him is his conduct in running a business that produces low quality products. He submits that the quote in the article from CBRE is the primary part of the article where the allegation of discounting by reason of low quality is made and is clearly capable of being carried. He submits that an allegation that a person who in the business of making something produces something that is low quality is clearly capable of being defamatory, citing Sungravure at 23.

113    In relation to the meaning to be given to [4(b)] of the statement of claim, the defence by Mr Triguboff is again by way of attack, characterising the objection as being opaque. Mr Triguboff submits that the objection to the capacity of the matter to carry the imputation is without merit because the imputation reflects the entire tenor of the article.

114    As with capacity to carry imputations and defamatory capacity, if the determination of the adequacy of the imputation pleading proceeds upon the basis that the answer to the separate question remains “no”, the pleading will be inadequate for the reasons advanced by the respondents and would have been liable to be struck out. It is another way of saying that the article is not “about” him. If, however, that separate question had instead been answered “yes”, and thus in Mr Triguboff’s favour, the evaluative exercise would proceed upon the basis that he is sufficiently identified by the references to Meriton in the article, based on control through ownership.

Conclusion on IA paragraphs 7, 8 and 9

115    The conduct of Meriton described in the article would be attributed to Mr Triguboff if the separate question was not answered in the respondents’ favour. In those circumstances, the imputation pleading would not be struck out for any of the reasons advanced in support of paragraphs 7, 8 or 9 of the IA.

IA paragraph 10: application to strike out statement of claim as an abuse of process

116    This aspect of the respondents’ IA was, sensibly, not pursued at the hearing of the IA. If it had been, it would have failed. The circumstances fell well short of Mr Triguboff’s case being an abuse of process. However, very little time was spent on this issue.

IA paragraph 12:     application for judgment for the respondents or that the proceedings be dismissed

117    For the reasons outlined above, judgment should be entered for the respondents.

IA paragraphs 11 and 13: costs

118    As the respondents have succeeded on every substantial point, there is no reason why costs should not follow the event. Mr Triguboff must therefore pay the respondents’ costs of both the IA and of the proceeding.

Associate:

Dated:    14 June 2018