New South Wales Supreme Court CITATION : WEN YUE HE v AUSTRALIAN CHINESE NEWSPAPERS PTY LIMITED. [2005] NSWSC 253 HEARING DATE(S) : 9 March 2005 JUDGMENT DATE : 9 March 2005 JURISDICTION : COMMON LAW JUDGMENT OF : Greg James J at 1 DECISION : Evidence of republication by Plaintiff to Plaintiff's wife admissible to prove publication. CATCHWORDS : Defamation - Publication - Publication by Plaintiff to Plaintiff's wife -whether natural and immediate consequence of original publication LEGISLATION CITED : . Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291 CASES CITED : Speight v Gosnay (1891) 60 LJQB 231 Derry v Handley (1867) 16 Law Times 264 PARTIES : WEN YUE HE v AUSTRALIAN CHINESE NEWSPAPERS PTY LIMITED. FILE NUMBER(S) : SC No 20352 of 2005 Plaintiff: T Molomby, S C./ M Fraser COUNSEL : Defendant: R G McHugh Plaintiff: Willis Lawyers SOLICITORS : Defendant: Corrs Chambers Westgarth Lawyers LOWER COURT JURISDICTION : - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION GREG JAMES, J. WEDNESDAY 9 MARCH 2005 No. 20352 of 2003 WEN YUE HE v AUSTRALIAN CHINESE NEWSPAPERS PTY LIMITED. JUDGMENT 1 HIS HONOUR: It was sought to ask the wife of the plaintiff how, following publication of the article complained of, it had come to her attention. It appeared from her evidence that it had come to her attention when her husband, the plaintiff, had brought the article and shown it to her. He has given evidence to this effect. In that context, the issue arose as to the relevance of what she saw in the article to the issues in this case. 2 So far the major issue on which the parties are joined is whether or not the article containing the imputations pleaded was of and concerning the plaintiff. The plaintiff gave evidence that when he saw his name, his birth date, his visa status and the suburb of his residence published he became angry and took the newspaper to show it to his wife. She has given evidence that she resided with the plaintiff in that suburb, was aware of his birth date, his name and his visa status. Objection however has been taken on the basis that he having taken the material to his wife, that was a republication, for which the defendant could not be held responsible. 3 My attention was drawn to the decision of Justice Hunt as he then was in Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR at 291 in particular at 293E to G. There Justice Hunt recorded his rejection of questions put to two witnesses who had only read the matter complained of when shown it by the plaintiff's solicitor for the purpose of giving evidence of whether they thought in those circumstances the material shown to them might have been in breach of Bar Rule 52, they only having been shown the matter for the purpose of qualifying them to give evidence in court and some twelve months after the alleged publication. Justice Hunt rejected that evidence referring to Speight v Gosnay (1891) 60 LJQB 231 at 232. The parties took me to that decision. Mr Molomby of senior counsel also took me to the eighth edition of Gatley on Libel and Slander at paragraph 272 where Speight v Gosnay is referred to, as was a decision cited in Speight v Gosnay, Derry v Handley (1867) 16 Law Times 264. In that latter decision it was suggested that slander being only actionable with proof of special damage, "It must appear that the special damage is the immediate and natural consequence of the words spoken" per Lord Justice Kaye citing Addison on Torts page 179 at 233. Lord Justice Linley held that there was an absence of evidence, which would allow the slander in that case to be held to be the natural consequence of the uttering by the defendant of the slander. Lord Justice Lopes referred to four conditions for an action for slander to be maintained, where there has been repetition by another of the slander, they being; (1) repetition under the direct authority of the defendant; (2) an intention on the defendant's part there be such a repetition; (3) where the repetition is the natural consequence of the defendant's uttering the words; and (4) where there is a moral obligation on the hearer to communicate the substance of the slander to another. It is common ground here that the repetition was not authorised and it is common ground that there was no evidence of any intent that it be repeated. 4 There was some discussion as to whether or not there was a moral obligation on the plaintiff to communicate what had been said and the name of the person said to have been involved in the actions described to his wife. 5 It is hard to adjust to the circumstances of 2003 pronouncements concerning allegations of unchastity made in the 1840's and 1890's in domestic environments to more modern communication by newspapers throughout the community. 6 I am unable to see the basis of an asserted moral duty to acquaint someone's wife with the fact that an allegation concerning a person with the same name as oneself had been made in the newspaper. On the other hand, I hold that it is capable of being the natural and immediate consequence of there being displayed to the community in a newspaper the name one has or at least shares, the birth date one has or at least shares, the suburb of residence one has, or at least shares, and a student visa status one has or at least shares, in the context of an allegation of serious criminal conduct, even if what the paper has said about the person it might be untrue, that the person would naturally, immediately and in consequence of that publication inform their partner whose life is so inextricably, and whose associations are so inextricably bound up with theirs, of the matter that had been published. 7 It may be another question as to whether such a republication would sound in damages. I don't see for the moment that I have to deal with that matter. I hold that it is within the test proposed in Speight (supra) that it could immediately be expected that to publish the name and other indicia of a person said to have robbed and kidnapped to a person bearing the name that he would immediately and consequentially and most naturally inform his wife of it. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.