Page:Lehrmann v Network Ten Pty Limited (Trial Judgment).pdf/23

 45 Both respondents also say the pleaded imputations do not differ in substance from one another: Network Ten's defence (at [4(c)], [6(c)], [8(c)]); Ms Wilkinson's defence (at [4.5], [6.5], [8.5]). As Ms Wilkinson puts it, the pleaded imputations "contain gratuitous and irrelevant rhetorical flourish that adds nothing to the defamatory sting of rape".

46 What was conveyed by the Project programme was not in issue, and I do not propose to rehearse the uncontroversial principles as to defamatory meaning. In short, the question of what was conveyed and whether it is defamatory depends upon what the ordinary reasonable viewer would understand, and it is common ground that if the Project programme identified Mr Lehrmann, the hypothetical referee would understand it conveyed the pleaded meanings, with the sting being an accusation of rape.

DIDENTIFICATION

D.1Introduction

47 Identification is an essential element of defamation and Mr Lehrmann must establish the Project programme is "about" or "of and concerning" him: s 8 of the Defamation Act 2005 (NSW) (Defamation Act). That is, Mr Lehrmann must show that at least one person who viewed the Project programme reasonably understood the allegations concerned him: David Syme & Co v Canavan (1918) 25 CLR 234 (at 238 per Isaacs J).

48 Despite the pleadings, the contest in this case is not, however, whether at least one person identified Mr Lehrmann, so as to perfect the cause of action. Instead, what is really in dispute is the extent of identification: that is, the persons (or classes of persons) who reasonably identified Mr Lehrmann, which is relevant to damages and the defence of common law qualified privilege.

49 Mr Lehrmann contends he was reasonably identified by three classes of persons, being those:


 * (1) who either worked in Senator Reynolds' office or had regular dealings with that office and, consequently, knew Mr Lehrmann: (a) was a "senior male advisor" to Senator Reynolds; (b) had previously worked for Senator Reynolds in the Home Affairs portfolio; (c) had attended a drinks event with Ms Higgins and other contacts and colleagues in Defence on the night of the alleged rape; (d) was called into a meeting with Ms Fiona Brown, Chief of Staff to Senator Reynolds, on the following Tuesday, Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369