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 54 The second stage is for the trier of fact to decide whether the publication actually identified the applicant. As noted above, the fact-finder must determine whether, upon the evidence, persons with special knowledge of the applicant reasonably understood the publication to concern him: David Syme (at 238 per Isaacs J). However, identification does not require that readers or viewers already have the requisite knowledge at the time of the publication: Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237; (2015) 91 NSWLR 485 (at 503 [81] per Simpson JA, McColl JA agreeing).

55 Identification may be established by direct or indirect evidence. As Mason P observed in Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202 (at [57]), an indirect way is where the applicant gives evidence of being contacted by people in circumstances showing that such contact was obviously a response to what they read in the publication (it was said of one member of the New South Wales Bar – now deceased – that it was remarkable how often his clients seemed to be importuned by strangers in the street commenting upon defamatory publications).

56 A variant of such evidence is "talk" or "tittle tattle" among readers or viewers indicative of identification. The Court must be satisfied that such evidence is capable of supporting the inference that the responses to the defamatory matter showed that the persons concerned reasonably understood it to refer to the applicant.

57 Whether the identification was correct is relevant to the question of reasonableness. As Bryson JA (with whom Mason P and Tobias JA agreed) observed in Gardener v Nationwide News Pty Ltd [2007] NSWCA 10 (at [47]), any purpose for establishing that identification was reasonable is well satisfied if it can be shown the identification was correct: see also Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (at 371–374 per Samuels JA).

D.3The Witnesses

58 As noted earlier, Mr Lehrmann adduced direct evidence from the identification witnesses, whose evidence I accept.

IMs Abbott

59 Ms Abbott met Mr Lehrmann around 2016 when he was employed in the Office of the Attorney-General. Since that time, she has "got to know [Mr Lehrmann] reasonably well" and considers him a friend (Abbott (at [6])). Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369