On the trial before the jury of an action for libel special questions were put to the jury as to defamation, comment, the facts supporting comment, the reasonableness of comment, bona fides, and one question asking what MELBOURNE,

damages they awarded. The jury, having retired to consider their verdict, Oct. 15, 16.

after the expiration of six hours (when by the law of New South Wales a verdict by a three-fourths majority may be given) returned into Court, and during a conversation between the Judge and the foreman it appeared that at that time a majority of three-fourths had agreed to the answer "None" being given to the last mentioned question. The jury again retired, and finally announced that they were unable to agree upon any verdict, and thereupon they were discharged. On a motion to enter a verdict and judg- ment for the defendant,

Held, by Barton, Gavan Duffy and Rich JJ., affirming the judgment of Isaacs J., that there was no final verdict by the jury and, therefore, that the

Held, by Isaacs J., that where on a trial before a jury the Judge puts specific questions to them, although they are entitled to give a general verdict without answering the questions the Judge is not always bound to tell them that they may do SO.

Held, also, by Isaacs J., that if a verdict is handed in by a jury they are at liberty, until that verdict is definitely accepted by the Court and recorded, to change their mind.

Decision of Isaacs J. affirmed.

27 CLR 295

APPEAL from Isaacs J.

An action was brought in the High Court by Thomas Joseph Ryan against Edward S. Cunningham, Lachlan Mackinnon, George Bell, and David Hewitt Maling, who were respectively the editor, one of the proprietors, the printer and publisher, and the leader writer, of the Argus newspaper, claiming £10,000 damages for a libel alleged to have been published in that newspaper. The action was tried before Isaacs J. and a jury. At the conclusion of his summing-up the learned Judge asked the jury to answer the following questions :-

1. Do you find the article complained of is defamatory of and concerning the plaintiff

2. Do you find defamatory of the plaintiff the statement that he entered into a conspiracy with Germans ?

3. Do you find defamatory of him the statement that he entered into a conspiracy with other dislovalists ?

4. Do you find defamatory of him the statement that he entered into a conspiracy against the authority of the Commonwealth Defence Department

5. Do you find defamatory of him the statement that he was strutting like a braggart Parolles before the face of the Common- wealth authorities ?

6. Do you find any, and if so which, of the following statements to be alleged as fact…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cunningham v Ryan

Details

AGLC: Cunningham v Ryan [1919] HCA 75
Case: [1919] HCA 75
Decision Date: 16 October 1919

CaseChat Overview and Summary

In an action for libel brought by Thomas Joseph Ryan against the editor, proprietors, printer, and publisher of the Argus newspaper, the defendants, Edward S. Cunningham and others, sought to have a verdict and judgment entered in their favour. The case was tried before Isaacs J. and a jury, who were asked to answer a series of specific questions relating to defamation, comment, the facts supporting comment, reasonableness of comment, bona fides, and damages.

The legal issues before the court were whether a verdict for the defendants should be entered, and if so, whether judgment should be entered accordingly. This required the court to determine if a final verdict had been reached by the jury, and if the jury, having been discharged due to disagreement, could still be considered to have delivered a verdict that could be recorded. A further issue was whether the judge was always obliged to inform the jury that they were entitled to give a general verdict without answering specific questions.

Isaacs J., whose decision was affirmed on appeal, reasoned that no final verdict had been reached by the jury. He explained that the jury had indicated their answers were tentative and that they were unable to agree on any final conclusion. The court's role was to accept and record a verdict, and until that point, the jury retained the liberty to change their minds. The judge also noted that he was not always bound to inform the jury of their right to give a general verdict, particularly when specific questions were deemed appropriate for the circumstances of the case to ensure a reasoned outcome and to avoid potential legal difficulties in the event of a general verdict.

The Full Court, affirming the judgment of Isaacs J., held that there was no final verdict by the jury and therefore no basis for entering a verdict or judgment for the defendants. The court applied the principle that until a verdict is definitely accepted by the court and recorded, the jury is at liberty to change their minds. The jury's inability to agree on any verdict, even after multiple attempts to clarify their findings and reconsider their positions, meant that they were discharged without a verdict having been delivered or recorded.

Orders