Citation: Andersen v Nine Network Australia Pty Ltd; Andersen v Nationwide News Pty Ltd [2023] NSWDC 358
Court: District Court of New South Wales
Date: 8 September 2023
Judge: Gibson DCJ
Background
The plaintiff was the de facto partner of Jesse Thompson, a 19-year-old man murdered in a drive-by shooting in 2017 on the Central Coast of NSW. The couple had been together since their early teenage years and had two children together. The plaintiff was not named in any of the media reports about the murder.
Three years after the murder, two separate media outlets published content that described Jesse Thompson as a gang member and, in one case, an "ice dealer." Nine Network broadcast a television segment in October 2020 referring to Thompson as a "self-proclaimed member" of the gang "Brothers Till Death." Nationwide News published an online article in February 2021 captioned with a reference to Thompson as an "ice dealer" in connection with his murder.
The plaintiff brought defamation proceedings against both defendants. She argued that persons who knew she had been Thompson's de facto partner would, on reading or watching these reports, understand the publications to convey imputations against her personally, including that she knowingly associated with a criminal gang member and knowingly participated in drug dealing. The defendants applied for the identification and imputation questions to be determined as separate preliminary issues.
Legal Issues
- Whether each publication was reasonably capable of being understood to refer to the plaintiff, who was neither named nor mentioned in either report
- Whether the publications were reasonably capable of conveying the imputations pleaded, including imputations framed at the level of actual criminal conduct rather than mere suspicion
- Whether separate trial orders under UCPR r 28.2 were appropriate, and whether the proceedings should be struck out under UCPR r 28.4 if either question was answered in the negative
Decision
Gibson DCJ answered both preliminary questions in the negative and struck out both sets of proceedings.
On identification, the court found no reasonable basis for concluding that either publication could be understood to refer to the plaintiff. Neither report mentioned her, and the mere fact that some readers knew she had been Thompson's partner was insufficient. The court applied the established test requiring that identification be both actual and reasonable, and found the evidence fell short of satisfying that standard.
On the imputations, even setting aside the identification finding, the court found the publications were not reasonably capable of conveying the imputations as pleaded. The imputations cast the plaintiff as having actual knowledge of and involvement in criminal conduct. The court noted that even where guilt is squarely attributed to a primary subject (Thompson), a connected person can, at most, be the subject of an imputation of reasonable suspicion, not actual guilt or participation. Imputations 8(f) and 8(g) in the Nationwide proceedings were therefore defective on their face.
The court also observed that, had the plaintiff succeeded on identification, imputations framed at the level of actual criminal conduct would still have required reformulation, and certain imputations would have needed to be pleaded in the alternative. Given the findings on both identification and imputations, the proceedings were struck out in their entirety under UCPR r 28.4.
Orders Made
- Leave granted to the defendants to seek a separate trial under UCPR Pt 28 r 28.2
- Both preliminary questions answered in the negative: the matters complained of were not reasonably capable of being understood to be about the plaintiff, and not reasonably capable of conveying any of the imputations pleaded
- Both proceedings struck out and dismissed pursuant to UCPR r 28.4
- The plaintiff ordered to pay the defendants' costs of the application and of both proceedings, with liberty to apply
Key Takeaways
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A plaintiff in a defamation case who is not named or referred to in a publication must establish that the publication is both actually and reasonably capable of being understood to refer to them. The District Court held that awareness among some readers of a de facto relationship with the primary subject does not, of itself, satisfy that test.
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Where the primary subject of a publication is accused of actual criminal conduct, a connected person can be defamed only by imputations rising to the level of reasonable suspicion, not actual guilt or participation. Imputations framed at the higher level of guilt cannot be sustained on those facts alone.
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Separate trial procedures under UCPR r 28.2 are available as a mechanism for testing identification and imputation capacity before full proceedings run to hearing, and UCPR r 28.4 permits dismissal where those threshold questions are resolved against the plaintiff.
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No identification was established even though the plaintiff led affidavit evidence from multiple witnesses describing their awareness of her relationship with the deceased. Subjective awareness among some acquaintances does not create a class of persons to whom the publication is reasonably capable of referring.
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In dismissing both proceedings, the court also identified pleading deficiencies in the way certain imputations were formulated, noting that imputations of participating in criminal conduct and imputations of merely knowing about it would need to be pleaded in the alternative if the matter proceeded further.
Legislation and Cases Referenced
Legislation:
- Civil Procedure Act 2005 (NSW), ss 56-60
- Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 28.4
Cases:
- Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331
- Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11
- Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202
- John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
- Hough v London Express Newspapers Ltd [1940] 3 All ER 31
- Adeang v The Australian Broadcasting Corporation [2016] FCA 1200
- Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599
- Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726
- Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152
- El Chami v Mackie [2019] NSWSC 821
- Economou v De Freitas [2016] EWHC 1218 (QB)
- Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
- Dingle v Associated Newspapers Ltd [1962] 2 All ER 737; [1964] AC 371