David v Abdishou

[2012] NSWCA 109

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

David v Abdishou [2012] NSWCA 109

Hearing dates:

10 September, 3 December 2010

Decision date:

27 April 2012

Before:

Beazley JA (at [1]), McColl JA (at [2]), Sackville AJA (at [392])

Decision:

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

DEFAMATION - appeal against jury verdict - s 7A Defamation Act 1974 - publication - whether defamatory matter published if made available for third party to read or comprehend whether or not third party does so.

DEFAMATION - publication - petition handed around at general meeting - whether jury finding petition not published by defendants one no reasonable jury could reach.

DEFAMATION - jury findings imputations not conveyed - whether jury misled on test of ordinary reasonable reader or listener - whether jury findings ones no reasonable jury could reach.

DEFAMATION - jury finding imputations not conveyed - where jury incorrectly directed to answer additional questions - effect of additional answers - whether answers influenced by publication findings - whether jury properly discharged function.

DEFAMATION - imputations - whether jury findings none of pleaded imputations conveyed ones no reasonable jury properly instructed could reach.

DEFAMATION - publication - whether publication established if defamatory matter read and comprehended by joint tortfeasor.

APPEAL AND NEW TRIAL - directed verdicts - whether court should direct verdict if jury verdict set aside - s 108(3) Supreme Court Act.

Legislation Cited:

Defamation Act 1889 (Qld)
Defamation Act 1958
Defamation Act 1974
Defamation Act 2005
Supreme Court Act 1970
Wrongs Act 1958 (Vic)

Supreme Court (General Civil Procedure) Rules 1996 (Vic)
Uniform Civil Procedure Rules 2005

Cases Cited:

Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
Amann v Damm (1860) 8 CB (NS) 597
Anderson v Ntzounas [1988] VR 748
Andreyevich v Kosovich (1947) 47 SR (NSW) 357
Arnold v Jeffreys [1914] 1 KB 512
Australian Broadcasting Corporation v Reading [2004] NSWCA 411
Barnes v Hill [1967] 1 QB 579
Beitzel v Crabb [1992] 2 VR 121
Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Bright v Sampson (1985) 1 NSWLR 346
Bromley v Tonkin (1987) 11 NSWLR 211
Browne v Dunn (1893) 6 R 67
Byrne v Deane [1937] 1 KB 818
Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708
Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Carr Shipping & Trading Co Pty Ltd v Sydney City Council (1963) 80 WN (NSW) 397
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68; (2001) Aust Torts Reports 81-610
Coroneo v Kurri Kurri & South Maitland Amusement Co Ltd [1934] HCA 21; (1934) 51 CLR 328
Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1
Davis v Resources for Human Development Inc 770 A.2d 353 (2001)
De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1
Dow Jones & Company Inc v Gutnick [2001] VSCA 249
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Duke of Brunswick v Harmer (1849) 14 QB 185; (1849) 117 ER 75
Edmond Weil Inc v Russell (1936) 56 CLR 34
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675
Gambrill v Schooley 48 A 730 (1901)
Griffith v Australian Broadcasting Corporation [2003] NSWSC 298
Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 4 All ER 732
Gutnick v Dow Jones & Company Inc [2001] VSC 305
Hall v Swan [2009] NSWCA 371
Hargraves v R; Stoten v R [2011] HCA 44; (2011) 85 ALJR 1254
Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd) [2003] NSWCA 38; (2003) 56 NSWLR 276
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Hebditch v MacIlwaine [1894] 2 QB 54
Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430
Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125
Huth v Huth [1915] 3 KB 32
Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401
Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946
Jenner v Sun Oil Company Ltd (1952) Ontario Reports 240
John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
John Fairfax Publications v Gacic [2007] HCA 28; (2007) 230 CLR 291
Jones v Amalgamated Television Services (1991) 23 NSWLR 364
Jones v Skelton [1963] SR (NSW) 644
Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1
Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276
Lewis v Daily Telegraph Ltd [1964] AC 234
Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867
Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805; [2002] QB 783
MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348
Mallik v McGeown [2008] NSWCA 230; [2002] Aust Tort Reports 81-971
McDonnell & East Ltd v McGregor (1936) 56 CLR 50
McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513
Mechanical and General Inventions Co Ltd v Austin [1935] AC 346
Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825
Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269
Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171
Pearson & Son Ltd v Dublin Corporation [1907] AC 351
Progress & Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651
Pullman v Hill (1891) 1 QB 524
Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575
R v Burdett (1820) 4 B & Ald 115
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Ramrahka v Chaudhry [2006] NSWCA 42
Ryan v Ross [1916] HCA 43; (1916) 22 CLR 1
Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359
Skalkos v Assaf [2002] Aust Torts Reports 81-644; [2002] NSWCA 14
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Trantum v McDowell [2007] NSWCA 138
Trkulja v Yahoo! Inc LLC [2012] VSC 88
University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481
Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports 81-127
Warren v Warren (1834) 1 C M & R 250
Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491
Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331
Williamson v Freer (1874) LR 9 CP 393
Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65
Zoukra v Lowenstern [1958] VR 594; [1959] ALR 42

Texts Cited:

Fraser on Libel and Slander, 7th ed (1936) Butterworth & Co (Publishers) Ltd
M Collins, The Law of Defamation and the Internet, 3rd ed (2010) Oxford University Press
M Gillooly, The Law of Defamation in Australia and New Zealand (1998) The Federation Press
New South Wales Law Reform Commission, Defamation Report 75 (September 1995)
P George, Defamation Law in Australia, 2nd ed (2012) LexisNexis Butterworths
P Milmo and WVH Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell
R E Brown, The Law of Defamation in Canada, 2nd ed (1994) Carswell
Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (1923) Butterworth & Co
T K Tobin and M G Sexton, Australian Defamation Law and Practice, LexisNexis, Butterworths (2003)

Category:

Principal judgment

Parties:

Fred David - First appellant
Suzy David - Second appellant
Youeil Abdishou - First respondent
Joseph Saliba Dadisho aka Joseph Oram - Third respondent
Charles Kochou - Fourth respondent (not represented)
Henrick Isaac - Seventh respondent

Representation:

G O'L Reynolds SC with M F Richardson - Appellants
D A Allen - First and third respondents
T D Blackburn SC with A T S Dawson - Seventh respondent
Banki Haddock Diora - Appellants
Proctor & Associates - First, second and third respondents
Yeldham Price O'Brien Lusk - Seventh respondent

File Number(s):

40283 of 2008

Publication restriction:

No

 Decision under appeal 

Date of Decision:

2008-06-11 00:00:00

Before:

Fullerton J

File Number(s):

SC 20117 of 2006

JUDGMENT

Background	6
Legislative framework	13
The petition	19
THE TRIAL	21
(a) Mr Kochou's evidence	30
(b) Mr Sarkez's evidence	54
(c) Mr Isaac's evidence	59
Exhibits	82
Addresses to the jury	88
(a) Mr Dawson - address to the jury	89
(b) Mr Neil - address to the jury	111
(c) Mr Allen - address to the jury	123
Summing up	131
Questions for the jury	139
Notice of appeal	151
MR REYNOLDS' SUBMISSIONS	155
The publication issue	155
The jury's answers to the imputations question - libel case	169
The jury's answers to the imputations questions - perversity	178
MR BLACKBURN'S SUBMISSIONS	182
The publication issue	182
The jury's answers to the imputations question - libel case	196
The imputations issue	197
MR ALLEN'S SUBMISSIONS	201
CONSIDERATION	203
Setting aside a jury verdict	203
Directed verdict after jury trial	213
Failure to complain about jury directions	226
The publication issue - first limb - publication by circulation	228
(a) The publication issue - error of law	229
(b) Gutnick v Dow Jones	237
(c) Dow Jones v Gutnick	246
(d) Duke of Brunswick v Harmer	262
(e) McLean v David Syme & Co Ltd	270
(f) Publication: other cases	275
(g) Tobin & Sexton	280
(h) Inferring publication	286
The publication issue - second limb - responsibility for publication	288
The jury's answers to the circulation questions - conclusion	300
Utility of jury's answers to the libel case imputations questions	326
The imputations questions - whether test misstated	343
The jury's answers to the imputations question - libel case	360
The jury's answers to the imputations question - slander case	378
Publication to Mr Kochou	381
Orders	391

1. BEAZLEY JA: I have read in draft the judgment of McColl JA. I agree with her Honour's reasons and proposed orders. I only wish to record that the appellant's challenge to the trial judge's directions in publication was novel, if not revolutionary. A novel proposition may represent a proper application or development of existing law. However, the proposition advanced by the appellant that there could be "publication" without communication to another person fits neither of those descriptions. Indeed, it is contrary to all existing principle. Were it to be accepted, it would change the essential nature of defamation. The appellant's submission that this proposition is to be found in the High Court's judgment of Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 is misguided. There is no basis for an argument that the High Court, in that case, changed centuries of basic defamation law. Neither the language used by the High Court, nor its reasoning, gives any support to the proposition advanced.

1. McCOLL JA: The appellants, Fred David and Suzy David, appeal against verdicts entered in favour of the first, third and seventh respondents, respectively Youeil Abdishou, Joseph Dadisho and Henrick Isaac, by Fullerton J following a four week trial before a jury. The trial was conducted for the purposes of s 7A(3) of the Defamation Act 1974 (the "1974 Act") to determine whether the defendants published allegedly defamatory material both in written form (in a document described as a petition) and orally (by the petition being read aloud) at a meeting on 27 November 2005 (the "general meeting") and, if any or all of them did, whether that material carried the imputations of which the appellants complained and whether any imputations so carried were defamatory of them.

1. There were six defendants at trial, each of whom was the beneficiary of a verdict and costs order in his favour. The respondents were the first, third and seventh defendants to the proceedings below. Originally the appellants appealed against the verdicts in favour of all six defendants. The appeals against the second and fifth respondents, Eddy David and Fudor Manso, were dismissed with costs on 8 February 2010. It is not apparent that the appeal against the fourth respondent, Charles Kochou, has been formally terminated. He was not represented on appeal. It was he who read the petition aloud at the general meeting. The appellants do not seek any orders against him. As shall become apparent, he was regarded, at trial, as being in the appellants' "camp" and he gave evidence for them. He had reached a settlement of the proceedings against him with the appellants on certain conditions which were the subject of evidence at the trial.

1. Multiple issues were argued on appeal, however they revolved around three core issues:

(i) whether the jury's finding that the appellants had not established that Mr Abdishou, Mr Dadisho and Mr Isaac published the petition by circulating it at the general meeting was one no jury properly directed could reasonably make;

(ii) whether the jury's finding that the appellants had not established that the imputations were conveyed by the petition was one no jury properly directed could reasonably make;

(iii) if yes to either (i) or (ii), whether the Court should order a new trial on the relevant issue or direct a verdict in the appellants' favour on that issue.

1. For the reasons which follow, I have concluded that the appeal should be dismissed with costs.

Background

1. The appellants, who are siblings, are solicitors. They acted for a Mr Karl Suleman. Mr Suleman, the appellants and most, if not all, of the respondents are of Assyrian origin. Mr Suleman induced many members of the Assyrian community to invest in his business which involved supermarket trolleys. The business collapsed as a result of which many members of the Assyrian community lost their investments. As will become apparent from the terms of the petition, members of the community sought to attribute some of the blame for their losses to the appellants.

1. The respondents decided, during the course of several meetings prior to the general meeting, that they should complain to the Legal Services Commissioner about what they believed was the appellants' involvement with Mr Suleman, his business and their community's lost investments. At some stage it was agreed that their grievances should be set out in a petition to be endorsed by members of the Assyrian community who shared their concerns. Mr Isaac agreed to, and did, draft the petition.

1. The appellants alleged at trial that the respondents published the petition (which they asserted was defamatory of each of them) at the general meeting both by "circulating" it (the "libel case") and by agreeing that Mr Kochou should read it aloud to the general meeting (the "slander case").

1. There were two issues embedded in the questions to the jury on the publication issue relevant to the libel case. First, whether the petition was "circulated" at the general meeting, in the sense that its contents were read by at least one person in the audience (the "reading issue"). Secondly, which, if any, of the defendants was responsible for its "circulation" in that sense (the "responsibility issue"). As to the slander case, it was not disputed that Mr Kochou had read the petition to the general meeting, but, once again, there was a controversy as to whether any of the other defendants had agreed that he should do so.

1. There was also a controversy as to whether, if publication of the petition was established in either the libel or the slander case, the pleaded imputations were conveyed. There was no dispute that if the imputations were conveyed, they were defamatory.

1. The jury rejected the libel case. They decided that the appellants had not established that any of the respondents published the petition by "circulating" it at the meeting. The jury also decided that none of the imputations of which the appellants complained were conveyed by the written publication. The jury accepted part of the slander case. They found that Mr Dadisho and Mr Kochou had published the petition in that Mr Kochou read it to the meeting and Mr Dadisho agreed that he should do so. However, the jury also decided that none of the imputations of which the appellants complained were conveyed by that oral publication.

1. The appellants appeal against the jury's adverse determinations on a number of grounds set out in more detail later in these reasons. In the event they are successful, they seek a new trial or directed verdicts on the issues of publication in the libel case and on whether the imputations pleaded in the libel and/or slander cases were carried by the matters complained of and were defamatory of each of them, with the remaining issues to be remitted to the trial judge for determination.

Legislative framework

1. The Court's jurisdiction to entertain the application to set aside the jury's verdicts and order a new trial or direct a verdict in the appellants' favour derives from s 102 and s 108(3) of the Supreme Court Act 1970: Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575 (at [26]) per Gleeson CJ and Gummow J; Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 (at [127]) per Gummow J.

1. A new trial may not be ordered on any ground, including misdirection, non-direction or other error of law unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned: Uniform Civil Procedure Rules 2005, r 51.53.

1. Section 108(3) provides:

"(3) Where it appears to the Court of Appeal that upon the evidence the plaintiff or the defendant is, as a matter of law, entitled to a verdict in the proceedings or on any cause of action, issue or claim for relief in the proceedings, the Court of Appeal may direct a verdict and give judgment accordingly."

1. As has been said, the trial was being conducted for the purposes of s 7A of the 1974 Act which relevantly provides:

"7A Functions of judge and jury

...

(3) If the court determines that:

(a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and

(b) the imputation is reasonably capable of bearing a defamatory meaning,

the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.

(4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is:

(a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established..." (Emphasis added)

1. There was no controversy on appeal or at trial that the issue of publication was one for the jury. This is, no doubt because, as Levine J explained in Griffith v Australian Broadcasting Corporation [2003] NSWSC 298 (at [15]), despite s 7A(3) being silent as to the jury determining that issue, the effect of the introductory phrase in s 7A(4) which I have emphasised is that, on "a sensible and generous construction of s 7A", the issue of publication is one for determination by the jury. Spigelman CJ (Meagher and Handley JJA agreeing), in Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68; (2001) Aust Torts Reports ¶81-610 (at [19]), had earlier interpreted s 7A as proceeding on the premise that by the time the court comes to determine issues of defences and damages in accordance with s 7A(4), "the issues of both publication and of identification have ... been determined by the jury" in a decision which does not appear to have been drawn to Levine J's attention.

1. As Levine J pointed out, the interpretation of s 7A he favoured was the view the New South Wales Law Reform Commission took in its Defamation Report 75 (September 1995) where (at [3.20]) the Commission recommended that s 7A(3) "should be redrafted to include, as a function expressly assigned to the jury, the determination of the issue of publication [which] [a]t present ... is embedded in s 7A(4)". That step had not been taken before the 1974 Act was repealed on the enactment of the Defamation Act 2005.

The petition

1. The petition as written (which it was agreed at trial was in the same terms as that which was read to the meeting), was as follows:

"PETITION

1. This petition seeks an investigation into the conduct and involvement of professional advisors of Karl Suleman into the scheme operated by Karl Suleman, namely Suzy David, Fred David, Sabrina Jajoo, Phillip Pham, and Andy Isho.

2. This petition is signed by members of or connected members of our Assyrian community. This petition is also supported by the investors of the scheme, their family members, and their friends in a scheme operated by Karl Suleman known as Karl Suleman Enterprises Pty Limited (hereinafter KSE).

3. We enclose the submissions in support of the petition.

4. Our community is a small and concentrated community in western Sydney. Our community is a very close knit community and received a sense of security as far as an Assyrian lawyers were involved, an Assyrian entrepreneur was involved, and there was no reasons that we could not trust one of our owns [sic, as in original]. We have all been affected directly or indirectly by the conduct of these solicitors. Some of our members of community were either the existing clients of these solicitors or were referred by various agents of Karl Suleman to these solicitors for the purpose of refinancing their homes or obtaining finance on their homes to raise funds and to invest in a trolley collection business. Suzy David, Fred David, Sabrina Jajoo, and Andy Isho are all Assyrian lawyers and have acted for most of the members of community.

5. We ask that you consider the evidence of these solicitors as outlined in the submission in support of this petition, the inconsistency and differences in the evidence, the business dealings with Karl Suleman, and the benefits received by these solicitors and their association with Karl Suleman. We require your investigation into the conduct of these solicitors and to assist us to achieve a long due justice for our community. The scheme has caused family breakdown, loss of homes, migration interstate for cheaper housing and lifestyle, and continuing financial hardships among members of our community.

6. It was a common knowledge in our community that Fred David, Suzy David, and Sabrina Jajoo were close associates of Karl Suleman. These solicitors would accompany Karl Suleman at various Assyrian functions. The solicitors association with Karl Suleman gave us the impression that the scheme operated by Karl Suleman was legal. The solicitors consciously decided to remain silent about their knowledge of the scheme and by their association with Karl Suleman gave the impression to our community that the operation of investment if [sic, as in original] legal.

7. The evidence in public examination revealed that scheme operated by Karl Suleman constituted a 'Ponzey' [sic] type pyramid scheme, where investors were not aware of the pyramid nature of the scheme, but were led to believe they were investing in a legitimate trolley collection business generating very large returns.

8. The public examination also revealed various 'agents' of KSE promoted the scheme. The liquidator has since then commenced legal actions against these agents. The liquidator also commenced legal action against Suzy David, Fred David, Dominic David Stamford solicitors and Phillip Pham.

9. Dr. Ludmillah Robinson, a barrister, also gave evidence at the Public examination that she advised both Phillip Pham in February 2000 and Suzy David in September 2000 that KSE business is managed Investment scheme [sic, as in original] and requires registration and licence. These solicitors did not take any steps for registration of the scheme, remained silent in their dealings with our community members, and continued their own personal businesses with Karl Suleman.

10. At no time any of these solicitors disclosed the information that had about the KSE scheme [sic, as in original]. They participated in assisting an illegal operation of a scheme which breached the Corporation Act. These solicitors had obligations to our community to ascertain if the scheme is registered when it affected us. Suzy David says 'Karl Suleman went to Phillip Pham for registration' and she and her brother Fred David continued their personal business with Karl Sulemn [sic, as in original]. Phillip Pham says Karl Suleman told him 'he has licence' and he also continued his personal business with Karl Sulemn [sic, as in original]. Andy Isho says Karl Sulemn [sic] told him 'he obtained it' and he continued his personal business with Karl Sulemn [sic, as in original]. Our community feels betrayed by these solicitors.

11. The solicitors have said that our members of community have been greedy to invest into the scheme. We accept that some of the investors invested into the scheme by greed and these investors' claims have been rejected by the liquidator. However, the majority of our community members are hard working citizens and would not invest into a scheme if they were warned that the scheme was unlawful and did not comply with the laws. The evidence so far indicates to us that it was the solicitors who were greedy. They consciously remained silent about the information that they had in late 2000 that the scheme was managed investment fund and required license and registration with ASIC and they contented [sic, as in original] to act for Karl Suleman and to benefit from their business dealings with him.

12. We ask that you investigate why these solicitors continued their business dealings with Karl Sulman [sic, as in original] in light of their knowledge or at least notice as of late 2000 that the scheme operated by Karl Suleman was unlicensed managed investment fund [sic]. The collapse of KSE occurred on 7 November 2001, and majority of our members of community invested into the scheme in the second half of 2001.

13. Enclosed are copies of hand written notes made by Karl Suleman describing his dealings with the solicitors in particular Suzy David, Fred David, and Phillip Pham.

14. Enclosed is a copy of statement made by a close friend of Karl Suleman namely Johan Latervere. Johan says:

A. He knows Suzy, Fred and Sabrina. He had a close and strong friendship with KS.

B. Prior to November 2001, he would observe KS and Suzy David to have dinner on regular basis at Stamford hotel at Double bay, Sheraton Hotel on the park, travel to Melbourne casino, and travel to US.

C. A week after the collapse of KSE, he was present at a meeting between Karl Suleman and Fred David in which Fred David discussed the subject of purchasing a restaurant at Mosman and Fred David said to him words to the effect; 'I have $500,000 cash money and I want to buy this restaurant'.

D. I noticed KS and Suzy David lived together at a penthouse at unit 1602, level 16, 281 Elizabeth Street, Sydney. I have stayed at that unit overnight.

E. Karl Suleman told him; 'Suzy does not want anybody to know that me and her live together'.

F. From the beginning Suzy David would tell Karl what to say in respect of court cases to others so that he will not get the blame.

G. On several occasion Karl would call Suzy David and ask her for money. On several occasion I observed cash money approximately $1,500 to $2,000 beside a telephone on the kitchen bench KS use to say; 'Suzy has left this money for me. Every time I do not do something she wants, she refuses to give me money. She blackmails me this way'.

H. Suzy David told him to pass a massage to KS that 'tell Karl we never 20 robed [sic] him, we always been there and supported him'.

15. The liquidators report has stated that ASIC and Director of public Prosecution also considering the laying of criminal charges against Karl Suleman and other persons. Horwath in its last report makes reference to a legal action against Fred David for insider trading. Almost 4 years has passed since the collapse of KSE and to his date we have not been informed the reason for the delay in these actions and why those actions have not yet commenced.

16. Thank you for your investigation and you assistance [sic, as in original] in these matters. We look forward to hear from you." (Emphasis in original)

The paragraph numbers did not appear in the original petition or in the exhibit used at trial. I have added them for ease of reference in considering the imputations issue.

1. The appellants alleged in the libel and slander cases that the petition conveyed the following imputations in respect of each of them and that those imputations were defamatory of each of them.

"(a) That s/he had so conducted her/himself in her/his profession as a solicitor that s/he warranted investigation for misconduct in promoting an investment scheme among her/his clients knowing it to be illegal.

(b) That s/he had betrayed the trust of members of the Assyrian community, of which s/he was a member, by remaining silent and not revealing to investors in the Karl Suleman scheme her/his knowledge that it was illegal being in breach of the Corporations Act.

(c) That s/he was guilty of misconduct as a solicitor, in that s/he failed in her/his obligation to ensure that the Karl Suleman scheme was registered.

(d) That in failing in her/his duty to inform investors in the Karl Suleman scheme that it was illegal, s/he acted out of greed with a view to benefiting financially from her/his involvement with Karl Suleman.

(e) That s/he was guilty of misconduct, in that s/he failed to inform investors in the Karl Suleman scheme that it was illegal with the consequences that when the scheme collapsed they lost their money which they would never have invested had s/he told them the truth.

(f) That s/he profited from her/his participation in an investment scheme which s/he knew was Illegal at the expense of investors who faced financial ruin when the scheme collapsed."

THE TRIAL

1. Mr M Neil of Queens Counsel represented the appellants at the trial leading Mr C Dibb. Mr A Dawson represented Mr Isaac. Mr D Allen represented the remaining defendants, other than Mr Kochou who was unrepresented.

1. This was, in one sense, an atypical s 7A trial. It was not conducted "in the detached - and some would say unreal - atmosphere of a jury trial on documentary evidence" where the only issue is whether the imputations are conveyed and, to the extent they are, are defamatory: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657(at [76]); see also John Fairfax Publications v Gacic [2007] HCA 28; (2007) 230 CLR 291 (at [37]) per Gummow and Hayne JJ; (at [107]) per Kirby J. The issue of publication was hotly contested. As Mr G Reynolds of Senior Counsel, who appeared for the appellants on appeal with Mr M Richardson, said, it was "a huge forensic issue".

1. The Fourth Further Amended Statement of Claim (the "FFASC") pleaded that the defendants published the petition "on or about 27 November 2005 and in the following two months". The particulars of publication as to all defendants were:

"(a) The defendants circulated the petition at a meeting of members of the public, including members of the Assyrian community in Sydney, which they organised and conducted at the Assyrian Sports and Cultural Club at Fairfield Heights on the evening of 27 November 2005 ('the Meeting').

(b) Following the meeting, the defendants made copies of the petition available to members of public, including members of the Assyrian community in Sydney, (further particulars of which are best known by the defendants and will be provided after discovery and interrogatories in the present proceedings).

(c) The defendants forwarded copies of the petition to various persons in positions of authority in New South Wales and elsewhere in Australia, (further particulars of which are best known by the defendants and will be provided after discovery and interrogatories in the present proceedings)."

Paragraphs (b) and (c) appear to have been abandoned insofar as they asserted alternative publication cases to that of publication at the general meeting. They did not form part of the case as framed in the questions to the jury. They were not addressed in either written or oral submissions on appeal.

1. The FFASC particularised the publication case against, relevantly, Mr Abdishou and Mr Dadisho on the basis that each was one of the authors of the petition, agreed "with other persons" that Mr Kochou should read it at the general meeting (and that he did read it in English), that each distributed or helped others to distribute the petition at the general meeting and urged people to sign the petition.

1. The FFASC particularised the publication case against Mr Isaac on the basis that he wrote the petition or was one of its authors, that he agreed with one or more of the other defendants to have the petition read aloud at the general meeting and that he urged people at the meeting to sign the petition.

1. The factual controversy on the issue of publication revolved around the questions whether anyone at the general meeting read, or was able to read, the petition, whether any of the defendants was responsible for "circulating" the petition at that meeting in the manner for which the appellants contended and whether any of the defendants agreed that Mr Kochou should read it to the general meeting.

1. The appellants called two witnesses, Mr Kochou (who was, as I have said, a defendant, albeit in the appellants' "camp") and a Mr Sarkez. Save for Mr Isaac, none of the defendants gave evidence. As will become apparent, there was a substantial credit issue as between Mr Isaac and the appellants' witnesses, particularly Mr Kochou.

1. It is only possible to understand the forensic issues on the publication question which the jury had to determine by setting out the evidence in some detail.

1. All parties pointed to evidence they said supported their respective contentions concerning the reasonableness of the jury's verdict. I have endeavoured to refer to that evidence in the following account of the trial. I have confined evidentiary references, other than where the context dictates otherwise, to that concerning the respondents.

(a) Mr Kochou's evidence

1. Mr Kochou gave evidence that in October 2005, Mr Dadisho invited him to a meeting at the Assyrian Culture Club, the purpose of which was to discuss ways of speeding up the process of investors recovering some of the money they had invested in the failed Karl Suleman enterprise. He attended the meeting, as did 10 or 15 other people. Those others included Mr Abdishou, Mr Dadisho and Mr Isaac.

1. According to Mr Kochou, Mr Isaac said "he had this idea about a petition that people would sign [which] will then be circulated to various Government departments [and] as a result the process will be sped up." Mr Kochou said Mr Isaac also "... mentioned that the petition would serve as people's power basically which would act to push the solicitors' insurance company to pay".

1. Mr Isaac said that "the petition [would] need 500 signatures and the best way to obtain them would be in a general meeting where we can have people, as well as their sympathisers ... to sign the forms". Mr Isaac said he would prepare the petition.

1. Mr Kochou said he attended another meeting two weeks later also at the Assyrian Culture Club. Fewer people attended, but all the respondents were there. He said that Mr Isaac again said that the petition needed "500 signatures [for] it to work" and that "the best way" to get those signatures would be at "the general meeting". At the second meeting Mr Dadisho asked Mr Kochou to read the petition at the general meeting because his English was better than the rest of the defendants. Mr Kochou said that at the time of this conversation he was sitting at the same table as Mr Isaac.

1. Mr Kochou said he received the petition from Mr Dadisho a short time before 27 November 2005, the date, it will be recalled, of the general meeting.

1. Prior to the general meeting commencing, Mr Kochou said that he had a conversation with Mr Isaac in the auditorium of the Assyrian Culture Club during which he asked "whether or not it was safe to read this or whether there would be implications". Mr Isaac told him it was "perfectly safe because it is all based on Court evidence".

1. Mr Kochou said there were up to 100 people at the general meeting. Mr Isaac was sitting in the audience, as was Mr David. Mr Dadisho introduced himself as the meeting chairman and started the meeting. Mr Abdishou, Mr Dadisho, Mr Manso and Mr Kochou sat "at the top where everybody can see [them]". Mr Dadisho introduced Mr Kochou as the person "who would read the petition in English". Mr Kochou told the audience that after he read the petition, he would introduce Mr Abdishou who would "basically interpret it ... for those people that could not understand English". He read the petition in English. Mr Abdishou then said to the audience in Assyrian:

"... that basically the contents of the petition involved the Assyrian solicitors ... who had gone and something along those lines worked with Karl Suleman at the same time, brought in or accepted investors into the scheme and he virtually went over the ... ".

At that point in his evidence Mr Kochou's recollection failed him.

1. Mr Kochou recalled at least one question from the audience about why they were not being asked to sign the form but merely to put their name and address. His response had been that he had spoken about this to Mr Isaac, who had said that the name and address on the form would be sufficient.

1. Mr Kochou said there were two copies of the petition at the meeting apart from the one that he had read, each of which was on a table below the stage. During the meeting he saw people "getting up, taking a copy, reading it, passing it around and also after the meeting people came and read those." After the meeting Mr Kochou looked at the petition and flicked through approximately 20 sheets of paper containing signatures, some of them having ten lines, some maybe three or four and some two.

1. Mr Allen cross-examined Mr Kochou first. In that cross-examination, Mr Kochou agreed that the petition had not been ready at any of the meetings prior to the general meeting. He also agreed that he had not picked up and read either of the two copies of the petition he said were on the table below the stage. There were documents available at the meeting for people to sign. These documents were not attached to any other form of document and were sitting "side by side the petition on the table". Mr Kochou said that only one copy of the petition was passed around during the meeting. He did not know whether people who were looking at the petition "actually ... read the entire document". He assumed people were reading the petition. Later he said that "whether they read it [the petition] or not I'm not sure". During the meeting Mr Kochou also saw blank forms with no petition attached being handed out to a number of people. He agreed that people at the meeting were members of the Assyrian community whose first language was not English and that some could not read English. He did not agree, however, that most people at the meeting understood Assyrian far better than they understood English, saying that a lot of people understood English better than Assyrian, especially young people.

1. Mr Dawson cross-examined Mr Kochou over three hearing days, although substantial parts of that period were occupied by argument. In what follows, I have endeavoured to refer to the key points of this cross-examination.

1. Mr Dawson mounted a substantial attack on Mr Kochou's credit. He put to Mr Kochou that he was trying to minimise his involvement in the publication of the petition, a proposition with which Mr Kochou disagreed. Mr Kochou agreed that his wife was worried about the fact that he had been served with the appellants' statement of claim and that they were both worried about losing their house as a result of the proceedings. He agreed that his evidence helped the appellants.

1. Mr Dawson put to Mr Kochou that he had "done a deal with the plaintiffs" to which his first response was "Are you serious? Is that a serious question?" He subsequently agreed, however, that he had "done a deal to tell the truth". Mr Dawson suggested that Mr Kochou had attempted to ensure that the jury did not know that he had done a deal with the appellants, a proposition Mr Kochou denied.

1. It emerged that the "deal" had been enshrined in a settlement document which ultimately became Exhibit 1. Mr Kochou said he had wanted the settlement document to be kept in confidence. The settlement Mr Kochou had reached with the appellants was to the effect that "on the basis he provide[d] evidence of truth to the Court for the purposes of the proceedings, ... in the event [the] proceedings [were] determined adversely against him, the plaintiffs [would] take no step to enforce any judgment as against him".

1. Mr Kochou had also provided an affidavit to the appellants setting out the circumstances surrounding the preparation of the petition and what happened at the general meeting. He accepted that the settlement agreement obliged him to give evidence in accordance with the version he had given to the appellants, otherwise he would be in breach of the agreement and would be lying. The affidavit was prepared at the appellants' office.

1. Mr Kochou was cross-examined about inconsistencies between the evidence he gave in the proceedings and the version set out in various paragraphs of the affidavit. He disagreed with the proposition that the fact of those inconsistencies meant he had lied to the jury.

1. Mr Kochou accepted that his affidavit did not refer to Mr Abdishou saying he was going to translate the petition into a dialect of Assyrian. He also accepted that the effect of his evidence in chief on that fact increased Mr Abdishou's role and decreased his own. He disagreed with the proposition that he was trying to "point the finger at the other defendants away from [himself]". He agreed that he was "opposed" to the other defendants because, as he said: "I'm not with them".

1. Mr Kochou agreed that he had had a couple of meetings with the appellants in 2007, during one of which the second appellant had suggested that he "tell [his] lawyers to cross-claim against Henry Isaac". She had also said words to the effect:

"I want you to give evidence against him to the effect that it is all his fault. Put pressure on your lawyers to cross-claim against him now."

1. Mr Kochou read the petition to the jury. He was asked to do so in the same manner and tone of voice he had used at the general meeting.

1. In addition to Mr Kochou's affidavit (which became Exhibit J), a draft affidavit he had earlier prepared became Exhibit K. Mr Dawson put to Mr Kochou that a number of paragraphs which appeared in the final, but not the draft, affidavit all related to new information about Mr Isaac, a proposition with which Mr Kochou agreed. These included the addition of statements that at the second meeting Mr Isaac said there should be "500 people [at the meeting]" so that there would "be pressure to process things quickly"; that at the third meeting he discussed with Mr Isaac getting a copy of the petition before the general meeting so that, in substance, he could be comfortable with reading it; that before the general meeting he discussed the legal implications of reading the petition out loud with Mr Isaac who reassured him; and that Mr Isaac said to him that he had "a copy of the petition with a form attached to it that is required to make it a valid petition. The additions also included attributing to Mr Isaac for the first time responsibility for a statement that the petition could be filled in not only by investors in Mr Suleman's Enterprises, but also by sympathisers.

1. Mr Kochou agreed that the inclusion of the statements that he had discussed reading out the petition with Mr Isaac before the general meeting made "Mr Isaac look like he was [knowingly involved] in [Mr Kochou] reading the petition out at the [general] meeting", and that that was an important issue in the case.

1. Mr Kochou agreed that a statement in his draft affidavit to the effect that the defendants did not intend to give the petitions out at the general meeting was truthful. This was because they only had two copies. He further agreed that in his final affidavit, the words "since we [the defendants] did not intend to give these petitions out" had been deleted. He also agreed that paragraph 40 of his draft affidavit had said that the majority of attendees at the meeting were completing forms not physically attached to a petition and that that paragraph had been deleted from the final affidavit. He saw people at the meeting sign the form which was the fourth page of the matter complained of.

1. It was put to Mr Kochou that he had "deliberately crafted [his] evidence to suit the plaintiffs' case", to which he responded, in substance, that the "theme" of his draft and final affidavits were "the same".

1. Finally, Mr Dawson put to Mr Kochou a number of questions of a Browne v Dunn nature that are unnecessary to repeat.

(b) Mr Sarkez's evidence

1. Mr Edmond Sarkez gave evidence that he had attended a meeting held about two weeks before the general meeting at which he had seen the petition. Mr Abdishou had a copy of the petition and Mr Sarkez "quickly skimmed through [it]" at that meeting. The meeting he attended appeared to have been for the purpose of discussing ways of promoting the general meeting, but he could not remember seeing Mr Isaac at that meeting.

1. At the beginning of the general meeting, Mr Abdishou outlined what the meeting was going to be about and what the petition was going to be, but spoke in Assyrian and there were parts Mr Sarkez could understand and parts he could not. He saw Mr Isaac sitting at the back at the general meeting.

1. Mr Sarkez said people asked questions at the general meeting and that the legal questions were answered by Mr Isaac. Mr Sarkez saw the whole petition at the meeting and also the signatory page. He said there were not many copies of the first three pages of the petition available, but there "might have been" three or four copies on tables close to the stage. He did not see anyone with those first three pages of the petition. He also saw signatory pages sitting there "for people to sign or to take away and have signed". These were separate from the three pages of the petition. He saw people taking the "signatory sheet, the fourth page" to their table.

1. Mr Sarkez was also cross-examined on matters going to his credit, firstly by Mr Allen. Again, the basis of the cross-examination was discrepancies between an affidavit Mr Sarkez had signed for the appellants' solicitors and his oral evidence - including the fact that his affidavit had made no reference to him skimming the petition at the first meeting he attended.

1. Mr Sarkez had been one of those who sat on the stage at the general meeting. He wished, in hindsight, that he had not. He had received a letter in February 2006 from the appellants' solicitor, Mr Hall, threatening him with legal proceedings. Upon receiving that letter he contacted the second appellant and gave her his version of the events. He swore his affidavit as to the evidence he could give in the proceedings before an employee of the appellants. He had never had any dealings with Mr Isaac.

(c) Mr Isaac's evidence

1. Mr Isaac gave evidence that he had instructions from Mr Abdishou, Mr Dadisho and Mr David and his wife to commence proceedings against the appellants in relation to the collapse of Karl Suleman Enterprises. He had also acted for Mr Manso in proceedings against the appellants in relation to the Karl Suleman Enterprises collapse, which proceedings had settled.

1. He gave evidence about the meetings with the defendants he had attended before the general meeting.

1. Mr Isaac said that at the first meeting he outlined a number of options for those present who were trying to find a way to "[get] rights" in relation to Karl Suleman. None of the options he mentioned at that first meeting was a petition. At the second meeting Mr Abdishou told him the best course would be to complain about the appellants' conduct and get the Legal Services Commissioner to investigate their involvement with Karl Suleman. Mr Isaac told the meeting that such a complaint would not "get their money back" and that they would have to give him "time to write it". He said that he was asked "to go ahead, to prepare the complaint". Mr Isaac agreed that at the first meeting various of those attending talked about having to get justice having regard to the amount of money their families had lost.

1. Mr Isaac told those at the second meeting that he would prepare the documents. He did not want anything to do with the Law Society or the Legal Services Commissioner. The second appellant had "already made a lot of complaints against [him]" and he had been "involved in lengthy proceedings [in] the Professional Standards Department and [he did] not want to take that path again". He said he would write the complaint and give it to those at the meeting who should send it to the Legal Services Commissioner on their own letterhead.

1. Mr Isaac said that after the second meeting he had a conversation with somebody about how to lodge the complaint with the Law Society or the Legal Services Commissioner. He informed that person there were about 700 people who wanted to complain about the appellants and that he had been told to lodge one complaint and get everybody else to support it. After that conversation he started calling the complaint a "petition". He told the other defendants that he had decided to call it a "petition" at a third meeting before the general meeting.

1. Mr Isaac said the purpose of the third meeting was to ask the respondents to stop calling him "on a regular basis" and to tell those present, in substance, that having regard to the amount of material he would have to review to prepare the petition, "it would take a long time".

1. After the third meeting, Mr Dadisho rang Mr Isaac and told him the petition had to be ready by the following Sunday as "they had organised a general meeting" at the Assyrian Culture Club. Mr Isaac said he asked "[w]hat general meeting?" and was told it was a meeting "asking for all the supporters to come in and support the petition." He agreed to get the petition ready by then, but said he told Mr Dadisho not to name anybody at the general meeting. He said at first he refused to attend the meeting because he did not want to get involved, but after phone calls from Mr Abdishou who said they might need somebody to answer legal questions, he agreed to attend.

1. Once he had finished the petition, Mr Isaac printed a complaint form for the Legal Services Commissioner from the internet, filled it out, gave it to Mr Dadisho and told him he had to fill in his name, address and contact details and give the form as a whole to the Legal Services Commissioner.

1. Mr Isaac said he was not told the petition was to be read out at the general meeting and had no expectation that it would be. He also did not think the petition was going to be handed around. He assumed that the 800 supporters Mr Abdishou told him about would turn up to the general meeting and:

"[t]here would be a general discussion that they explored various options and they came to a decision to make a complaint against the professional advisor to Karl Suleman and to get the name and address to support that complaint or petition."

1. Mr Isaac said that when he went to the general meeting he arrived a few minutes late and sat at the back. As soon as he sat down, Mr Abdishou spoke to him about a typing mistake in the petition. During this conversation, Mr Abdishou said "Can you believe this guy's reading it in English?" Mr Isaac then turned to the stage and noticed Mr Kochou was reading the document in English.

1. Mr Isaac asked Mr Abdishou "who told him to read the document?" and Mr Abdishou said "[no] one. It was on the table, he took it and he start reading it." Mr Isaac said that while Mr Kochou was reading the document, he noticed that most of the people in the room "were talking amongst themselves and were hardly listening to him talking." He said Mr Abdishou "was pointing at those people sitting on the stage and said, 'Everybody's doing what they want', and, 'How these people could understand English?'"

1. Mr Isaac said that "the purpose of this document was to be put as a covering letter to the Legal Services Commissioner" and "it wasn't prepared to be read at the general meeting." He said had he known it was going to be read at the general meeting he "would have prepared another document" which would have been without the names, in more of a summary form and probably in Assyrian, not English. He was never asked as to whether the document should be read aloud and never had a conversation with Mr Kochou either face-to-face or on the telephone about reading out the petition.

1. Mr Isaac said that when he spoke to Mr Abdishou at the general meeting, the latter had a copy of the petition. He did not see any other copy of it or see any copy being handed around, nor did he circulate it there.

1. After Mr Kochou had read the document, Mr Isaac said people started asking questions which Mr Kochou was answering in Assyrian. At some stage, Mr Kochou suggested that Mr Isaac would be the best person to answer a question. While he was present at the meeting there was no occasion, other than when Mr Kochou read the petition, when the English language was used.

1. In cross-examination, Mr Isaac said he typed the petition himself, including the heading "Petition". He agreed that he had told one of the defendants that they should have an A4 piece of paper on which signatures could be placed, but did not produce such a piece of paper as a draft. He expected petitioners to sign the signature page and knew that up to 700 or 800 people could do so. However, he said he did not expect people to read the petition before they signed it, having regard, apparently, to the fact that "three thousand of these investors had signed an investment contract without reading [it]". He said he expected the defendants to read it but not anyone else, other than the Legal Services Commissioner.

1. When asked again whether he expected anyone to associate themselves with the petition without having acquainted themselves with "such serious matters by reading them", Mr Isaac repeated that he did not expect anyone to read the petition or the submissions. He pointed out that:

" ... some of those allegations were published in the Daily Telegraph and most of these allegations were well known to the members of [the] Assyrian community."

1. Mr Isaac said he had not raised the matter of the petition at either the first or second meeting at the Assyrian Culture Club, nor had there been any mention at any one of the three preliminary meetings of a general meeting being held. In particular, he denied mentioning at either the first or second meeting that "there was a need for 500 signatures and the best way to obtain them would be in a general meeting where you can have people as well as their sympathisers ... to sign the form".

1. Mr Isaac denied hearing Mr Dadisho say at either the first or second meeting words to the effect "that the petition Mr Isaac is preparing has to be re-read out at the meeting in English" or that Mr Dadisho asked Mr Kochou to read it. He said the preliminary meetings were all conducted in Assyrian. He denied that Mr Kochou said anything at the third meeting about wanting to see a petition that he might have to read out.

1. Before finishing the petition Mr Isaac agreed he came to understand that it might be required for a general meeting. Mr Dadisho asked him how he was going with getting it ready. He denied, however, that at the third meeting Mr Kochou asked him whether it was ready or asked whether he could have a look at it.

1. Mr Isaac first learned a general meeting was proposed a few days before it occurred. It did not occur to him when he heard about it that the petition may be read out at that meeting whether in English or Assyrian. Mr Isaac understood that the petition was "a subject of the general meeting", but "didn't expect them to read the petition" nor did he understand that "people might read it".

1. Mr Isaac gave Mr Abdishou the first three pages of the matter complained of before the general meeting and told him to make one copy for the Legal Services Commissioner, one for their own records and to return the original to him. This was corrected in re-examination to change the reference to Mr Abdishou to Mr Dadisho.

1. Mr Isaac said that when he spoke to Mr Abdishou about the typing mistake in the petition at the general meeting, the latter had the petition in his hand.

1. Mr Isaac denied arriving at the general meeting earlier rather than later and denied having a conversation with Mr Kochou during which Mr Kochou asked him whether it was safe to read the petition and expressed concern that he might be sued. Mr Isaac also denied having a discussion with Mr Kochou at the end of the general meeting.

Exhibits

1. The appellants tendered the transcripts of several radio programmes apparently broadcast on an Assyrian radio station, "Echo of Zinda 2GLFM". The transcripts were a translation of the original broadcasts which were in Assyrian. Mr Abdishou and Mr Dadisho (referred to in the transcript as Mr Oram), as well as a Mr Adam, participated in the first broadcast on 13 November 205, while only Mr Abdishou took part in the second broadcast on 27 November 2005. In the first broadcast, Mr Abdishou informed listeners of the date and venue of "a general meeting of creditors of Karl Suleman Enterprises", the reason for which was to "question why this case has taken so long". In responding to listeners who called in, Mr Dadisho said, relevantly:

"Lawyers ... are writing this letter ... and it is important for Assyrians to sign this document so that it could be released to the government officers and so that they can take steps to inform our people what this scheme is up to and what has been the result to date and why it has taken so long ... Even those who have not participated can come to this meeting and to sign this petition. Of course they can read it and see there is nothing bad in it ..."

1. In the second broadcast Mr Abdishou informed listeners of the outcome of the meeting in the course of which he stated that "[s]ome people have taken the petitions".

1. The appellants also tendered answers to interrogatories by, relevantly, Mr Abdishou, Mr Dadisho and Mr Isaac. Each agreed he was present at a meeting or meetings during October or November 2005 (and prior to the date of the general meeting) at which a proposal to formulate a petition substantially to the effect of the matter complained of was discussed and that all other defendants were present at the meetings he attended.

1. Mr Abdishou and Mr Dadisho each gave the same answer to the following question as follows:

"Q. Was [relevant defendant] present at a meeting on or about 27 November 2005 at the Assyrian Sports and Cultural Club at which the petition that is the matter complained of in these proceedings was read and/or shown and/or distributed to those present?

A. The [relevant defendant] was present at a meeting on or about 27 November 2005 at the Assyrian Sports and Cultural Club when the petition, the matter complained of, was read out".

1. Mr Isaac answered an interrogatory as to his authorship of the petition to the effect that he wrote the first three pages, but did not prepare, or write the words on, the fourth page.

1. As I have said, Mr Kochou's draft and final affidavits on which Mr Dawson had cross-examined Mr Kochou were also in evidence, as was the agreement between the appellants and Mr Kochou dated 23 July 2007 in which the latter agreed to "provide evidence of truth to the Court for the purposes of these proceedings" in consideration for which the appellants agreed that in the event the proceedings were determined adversely to him, they would take no steps to enforce a judgment against him.

ADDRESSES TO THE JURY

1. I shall summarise the addresses to the jury in the order they were made. Mr Kochou did not the jury.

(a) Mr Dawson - address to the jury

1. The theme of Mr Dawson's address to the jury on behalf of Mr Isaac on the libel case was that the appellants had not established publication of the petition in written form. Mr Dawson said that the jury would not be persuaded that anyone at the general meeting read it throughout and that if it was "circulated" at the general meeting, the jury would not be persuaded that Mr Isaac had any role in doing so. Insofar as the slander case was concerned, the jury would not be persuaded that Mr Isaac had any role in asking Mr Kochou to read it to the meeting, nor did he have any prior knowledge that he was to do so.

1. As to the question whether the imputations were conveyed, Mr Dawson put to the jury that the problem was that they were "pitched too high [in that] they all assert guilt of some conduct on the part of the [appellants] [i]nstead of asserting what the real meaning of the publication is, which is they warrant investigation, which is itself, you might think, a defamatory thing to say about somebody".

1. When he came to the issue of publication, Mr Dawson told the jury that they had to be:

"... persuaded that a publication actually took place before you move to consider whether anybody is relevantly responsible for it.

...

If there is no publication it doesn't matter who is responsible, you would answer no to those first questions if you don't think the petition was actually communicated and comprehended by somebody, either orally or in writing at the meeting.

If you are satisfied that a publication in all likelihood did occur, then you do need to consider the second aspect, that is who in the room as defendants, if anyone, is responsible for that happening."

1. Mr Dawson put the issue of publication by Mr Isaac very starkly as turning on whether the jury accepted Mr Kochou as a witness of truth, in which case he conceded the jury would "probably find that [Mr Isaac] was responsible for the publication". However, if Mr Kochou was rejected as a witness of truth and Mr Isaac accepted as such, then the jury would answer "no" to the question about Mr Isaac's role in any publication. He pointed out that their "versions are diametrically opposed, there is not a lot of common ground on the key points" and that as to "the key points of the evidence ... there is a complete forking of the path."

1. Mr Dawson reminded the jury of Mr Kochou's evidence, including that he did not know for a fact that people had read the petition. He also reminded them of the evidence that some of the people at the meeting could not speak or read English. He pointed out that while that did not prove that no one could read English, the jury might have been assisted by the appellants calling some evidence from a person at the meeting who said they were there, saw a copy of the petition and that even though English was not their first language, said they could read it and understand it and that they read the document in its entirety. He emphasised that the appellants had not called "a single person to say that they read it and understood it". Rather, all the jury was left with was the "slightly unsatisfactory evidence about a document being passed around, Mr Kochou accepting that he doesn't really know whether people read it or not, and this uncertainty about how many people in the room spoke or read English." He drew attention to the limited number of copies of the petition at the meeting (at most, on Mr Sarkez's evidence, three or four) and to the fact that Mr Sarkez said he saw people signing the signature pages without the petition attached and did not recall seeing anybody with the petition itself in their hands. He highlighted the fact that Mr Kochou said that although he saw people holding the document he did not know if they read it. He emphasised that these were the appellants' witnesses who were meant to satisfy the jury of elements of the appellants' case.

1. Mr Dawson referred to the evidence that a member of a creditors committee had pointed out to Mr Abdishou that there was an error on the third page of the petition. He accepted that that was some evidence of that person having read the document but queried whether it was read at the meeting or beforehand.

1. Next, Mr Dawson referred to Mr Isaac's evidence that the only copy of the petition he saw at the meeting was that held by Mr Abdishou. Mr Isaac did not see any other copy, did not see any copy being handed around and did not circulate it himself. Mr Dawson pointed out that Mr Neil had not put to Mr Isaac that his evidence was incorrect in these respects. He reminded the jury that a lot of the people at the meeting did not speak English, that Mr Abdishou and Mr Isaac had had a conversation about how ridiculous it was that the petition was being read in English and that, otherwise, the meeting was conducted in Assyrian.

1. Mr Dawson then turned to the question of responsibility for publication. He highlighted the fact that the witnesses on this issue were primarily Mr Kochou and Mr Isaac. He explained why Mr Sarkez had little to say about Mr Isaac who was not at the preliminary meeting Mr Sarkez attended and who only saw Mr Isaac sitting at the back of the general meeting. He did however, draw attention to a discrepancy between Mr Kochou and Mr Sarkez, in that Mr Sarkez said the petition was available at a meeting he attended about two weeks before the general meeting, whereas Mr Kochou said it was not available until after the third meeting he attended. He pointed out that Mr Sarkez and Mr Kochou could not both be correct, suggesting Mr Sarkez's evidence was "wildly inconsistent" with Mr Kochou's. Mr Dawson then went to the differences between Mr Isaac's and Mr Kochou's evidence about the preliminary meetings relating to when the question of the petition was first raised.

1. Mr Dawson characterised Mr Isaac's evidence as being effectively that he was an unwilling participant in the whole process, that he was called upon because he was a solicitor but was reluctant to get involved, that he became involved as a member of the Assyrian community and a solicitor in that community, that eventually he was asked to prepare a complaint about the solicitors or a request for investigation to the Legal Services Commissioner, that he was a man who was proceeding cautiously and that eventually, he got the idea that such a complaint might be called a "petition". He reminded the jury of Mr Isaac's evidence that he called the third meeting to explain what he was going to do in terms of preparing the petition and a bundle of documents, but that after that he did not want to have any involvement in the process.

1. Mr Dawson suggested that Mr Kochou's demeanour was unsatisfactory and that he was evasive when being asked questions. He described Mr Kochou as "cagey" and submitted that his demeanour generally was "the mark of a witness who has got something to hide". He invited the jury to find that some of Mr Kochou's evidence was false, the reason for that being that Mr Kochou did not want the jury to know that the way he came to give his evidence was not through "a usual and legitimate request from the solicitors acting for the parties" but from the second appellant. Mr Dawson suggested that the fact the second appellant sent Mr Kochou the affidavit she wanted him to sign was "a bit of a problem for [Mr Kochou's] independence".

1. Next Mr Dawson suggested that it was also a "bit of a problem" that Mr Kochou agreed to give "evidence of truth" in exchange for no judgment in the case being enforced against him. He invited the jury to think why it would be necessary for Mr Kochou to agree contractually to give evidence of the truth when that was the effect of a witness' oath. He pointed out that he had had to uncover the "deal" in cross-examination and that it had not emerged in evidence in chief. He observed that the "plaintiffs in doing that deal do ... have a financial interest in the outcome of this case ... so, by getting one of the defendants to turn [their] witness ... they are advancing their own private interests in circumstances where you are not going to be told".

1. In the light of those matters, Mr Dawson invited the jury to regard Mr Kochou as a "dishonest witness who decided to give dishonest evidence to help the plaintiffs against the other defendants because he is inherently dishonest." On a more benign note, he suggested that they might regard Mr Kochou as "a man under extraordinary pressure" doing "the only thing he could do to save his house from the threat he'd received, and the only thing he could do assuage his wife's concerns about losing their house."

1. Mr Dawson pointed out that Mr Kochou knew, "because he had read the petition out", that he was a publisher and "exposed". He suggested Mr Kochou was "desperate, having lost $100,000 in the collapse of Karl Suleman Enterprises and then to face the loss of his house, the worry of his wife and the effect on his family" and that "[y]ou might understand that is why he would do such a thing."

1. Mr Dawson therefore suggested to the jury that the impact on Mr Kochou's truthfulness as a witness was to make "his evidence extraordinarily unreliable - and doubly so because it was not his intention and not the plaintiffs' intention ever to tell you about it". Mr Dawson suggested that the jury might conclude that Mr Kochou's desire not to disclose the settlement showed "a consciousness of guilt on his part that what he was going to be telling in his evidence was not really the truth" and that he was "a man who cannot be trusted to tell the truth".

1. Next Mr Dawson reminded the jury of Mr Kochou's evidence that if he gave evidence inconsistent with his affidavit he would be in breach of the settlement agreement and it would not be the truth.

1. He told the jury of Mr Kochou's agreement that "he was pointing the finger directly as he could at Mr Isaac", then took the jury through the paragraphs in Mr Kochou's final affidavit containing new material about Mr Isaac which differs from his draft affidavit. He suggested the final affidavit contained "12 new items of substance about Mr Isaac". One of those items was Mr Kochou's suggestion that, prior to the meetings, Mr Isaac gave his express approval to him reading the petition at the meeting.

1. Mr Dawson then addressed Mr Isaac's evidence. He described his demeanour as "the mark of a truthful witness". He sought to explain why Mr Isaac's evidence that, while he expected people to sign in support of the petition he did not expect anybody to read it, was credible. Those reasons were, in short, that the petition was in English, the intent having been to lodge it with the Legal Services Commissioner, the fact that at the third meeting he had advised those present, when asked whether the meeting could be promoted on the radio, not to use any names (it being suggested that that supported the proposition he would not expect the petition to be circulated or read out at the meeting), that he had been told there was already support for whatever action the group organising the petition decided to take, that the community was already concerned about the relationship between the appellants and Mr Suleman, that many people in the Assyrian community had signed Mr Suleman's loan agreements without reading them and that petitions were often signed without people reading their detail.

1. Mr Dawson painted a picture of Mr Isaac as a cautious man who sought advice from a barrister before preparing the petition as to whether doing so might in some way prejudice court proceedings in train concerning Mr Suleman. He suggested that sort of man would not approve of Mr Kochou reading the petition at the general meeting. He reminded the jury of Mr Isaac's evidence that, if asked, he would have advised Mr Kochou not to read out the petition.

1. Mr Dawson then turned to the question of the imputations. He invited the jury to consider what impression the ordinary reasonable listener or reader at the meeting would have formed. He suggested that the first paragraph seeking an investigation into the appellants' conduct was "powerful" and described "what the document is". Next, he drew the jury's attention to the request in paragraph 4 that the Legal Services Commissioner "consider the evidence" (as opposed to make findings). After referring to other passages which he emphasised called for an "investigation", he suggested that the jury would conclude that the ordinary reasonable listener or reader "would understand this document to be saying these solicitors need to be investigated [but that the authors did not] know whether what they've done is misconduct or is reprehensible or is in some way to be punished [but] want[ed] a determination as to whether that is the case."

1. In contrast, Mr Dawson suggested that the imputations "all go too high". He described the "consistent theme throughout [the] imputations [as] ... all assert[ing] guilt of some kind on the part of the solicitors." He continued:

"That is, these are the kinds of things you would expect by way of finding if the Legal Services Commissioner looked at the complaint, looked at whatever other material was appropriate, and the ordinary reasonable person would assume, I suggest to you, that a process of complaint involves both sides getting to tell their story. These are the sorts of things that the ordinary reasonable person would expect once investigation had occurred if, assessing everything, the relevant body or authority or Commissioner found that there was misconduct or a concern or something wrong with what the solicitors did."

1. Mr Dawson then returned to the ordinary reasonable person's approach. In a passage of which Mr Reynolds complains, he suggested it "may be very simple with the petition being handed around for people to sign it and skim read it ...". Later he repeated this idea:

"If you are satisfied on the evidence that somebody read the document more carefully than just a cursory skim and did perhaps go back and analyse it, I submit to you that you find the imputation is not conveyed on a different basis, namely that on analysis the imputations aren't there."

1. Mr Dawson made substantially the same submissions about the oral publication, although emphasising the lack of attention an ordinary person might pay when listening, querying whether any ordinary reasonable person listening to the petition being read "would come away with an impression" of complicated imputations and, again, submitting that the general impression a listener would receive of the theme of the document was that "there are grounds for an investigation".

(b) Mr Neil - address to the jury

1. Mr Neil summarised the appellants' case to the jury on publication by circulation as follows:

"In very broad overview firstly of the three issues, as far as publication is concerned it is our case - and we would submit that you will accept it - that each of the defendants published at the general meeting the petition by having it made available for circulation. It was there for people to look at, read, circulate. Circulate is a simple English word. Some took it, some looked at it at one end of the large table, according to the evidence. That is evidence of the dealing with it at the meeting, the circulation of it at the meeting, and evidence we say of publication.

Publication, as I said earlier, and as my friend has said to you, need only be to one person. I will come back in more detail to the evidence, but we would submit there is nothing in this evidence that warrants the view that no-one in that room at that general meeting, not one person could read English, not one person could understand English. We would submit to you that the evidence compels a finding on your part that at least one person at the meeting - we would say by inference very many more - read the petition and/or both read it and heard it read out. It was read out audibly, in English, in a way that you have heard Mr Kochou read out."

1. The issue of responsibility for publication on the libel case appears first to have been put in terms of each defendant having made the petition available at the meeting for circulation. On the slander case, Mr Neil referred to Mr Kochou's evidence that he was asked at one of the preparatory meetings to read the petition at the general meeting. Mr Neil drew the jury's attention to the "agreement question", and submitted that "publication [could] be established against all defendants in the oral form by Mr Kochou, by virtue of an agreement that Mr Kochou would read it out".

1. Mr Neil focussed on the evidence relating to Mr Isaac. He put to the jury that Mr Isaac produced the petition knowing it was to be read at the general meeting. He suggested it was sufficient to prove publication by Mr Isaac that, whether or not he thought someone would read the petition, it "was available and people took them up on it and read it". He referred to the evidence that Mr Isaac attended the preliminary meetings before the general meeting at which the petition was discussed, that the petition was his idea, that he was told to "go ahead and prepare it" and that he did indeed prepare it. Mr Neil suggested the jury should reject Mr Isaac's evidence that he did not expect the petition would be read at the meeting as "preposterous" and not in line with answers he gave to the effect that he understood the petition would be a subject of the general meeting.

1. Mr Neil put to the jury that they should believe Mr Kochou and, where they were in conflict, not accept Mr Isaac's evidence. He pointed out that there were many areas where their evidence accorded. He suggested the "main areas" of disagreement between them was when Mr Isaac first raised the question of a petition, whether there was a discussion about whether it was safe for Mr Kochou to read the petition and when, during the various preliminary meetings, a general meeting was first mentioned.

1. Mr Neil suggested it was implausible that no one at the meeting read the petition in view of the fact that many people would have gone to the meeting having heard a radio broadcast advising of its purpose.

1. Mr Neil suggested that the defendants were publishers of whatever Mr Isaac came up with pursuant to the agreement to prepare a petition. He contended the jury should accept Mr Kochou's evidence of being asked, when at the same table as Mr Isaac, to read out the petition. Mr Neil suggested to the jury that it would be "completely unnatural" for Mr Kochou to read the petition out at the meeting if he had not been asked to do so. He submitted the jury would regard Mr Kochou as not having been shaken in cross-examination and that they would accept his evidence to this effect. He suggested that publication could be established against all defendants in the oral form by Mr Kochou by virtue of an agreement that the latter would read the petition out. He pointed out that none of the first, second, third or fourth defendants had given evidence denying the agreement that Mr Kochou should read the petition out. He suggested that the jury could, therefore, think they could not give any evidence that would support the contrary.

1. Mr Neil put to the jury that there was straightforward evidence of publication, that it was a reasonable inference that if somebody appeared to be reading something, they were doing so. He reminded the jury of Mr Kochou's evidence about where the petitions were placed and that he saw some people looking at the document and suggested the defendants' case that not one person who signed the fourth page read the petition was, again, preposterous. He contended they would be satisfied at least one person read the document and one person heard it read out and that one was sufficient. He pointed out that Mr Sarkez heard the petition read.

1. Mr Neil put to the jury that it was sufficient evidence of publication that the credit committee member had identified an error in the petition in its last paragraph, that being a reasonable example that that person had read it to that point.

1. Mr Neil then turned to the attack on Mr Kochou. He submitted there was nothing wrong about the terms in which the settlement agreement was drafted. He suggested that the cross-examination of Mr Kochou about that document was a "failed even tawdry attack". He suggested that Mr Kochou was a "very credible, very honest, very reliable witness and indeed very humble witness".

1. Mr Neil put to the jury that Mr Isaac's attack on Mr Kochou was an attempt by Mr Isaac to minimise his involvement. That attempt was reflected, he contended, in the proposition that Mr Isaac did not think that any one person would read the petition that he prepared.

1. The question whether a jury's answers are inconsistent in an impermissible sense turns first on whether they are "necessarily inconsistent in the sense that they cannot logically stand together". That question is to be determined by interpreting "the findings lying behind and represented by the jury's answers to the questions and in the context of the 'form' or 'template' " in which the questions went to the jury and also by "having regard to any pertinent directions given to the jury": Skalkos v Assaf (at [63] - [64]) per Mason P; Otis Elevators Pty Ltd v Zitis (at 204) per McHugh JA; see also Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65 (at 67) per Hayne J (Gaudron, McHugh, Gummow and Kirby JJ agreeing). The Court must determine whether the jury must have so disregarded or misunderstood the directions the trial judge gave that their verdict denotes a failure to perform the function committed to them "so that its verdict is, in reality, no verdict at all". To reach this conclusion "a wide discretion must be allowed to the jury because its members are not legally trained": Carr Shipping & Trading Co Pty Ltd v Sydney City Council (1963) 80 WN (NSW) 397 (at 406) per Else-Mitchell J (Macfarlan J agreeing).

1. Even if inconsistency is exposed, in order to secure a new trial, the answer to the question must be necessarily inconsistent with the general verdict: Otis Elevators Pty Ltd v Zitis (at 203) per McHugh JA.

1. Finally, the Court must have regard to the conduct of the parties. In Otis Elevators Pty Ltd v Zitis the second question to the jury (see 175) asked what total damages they found. Subsequent questions sought a break-up of the award. Both parties had objected to the trial judge putting questions directed to future loss of income and future pain and suffering, but acquiesced insofar as questions going to the past on both issues were concerned.

1. McHugh J held (at 203 - 204) that none of the break-up questions were questions as to facts permissible pursuant to s 90 of the Supreme Court Act. Because the questions as to the future had been objected to his Honour held (at 204) that they should be disregarded, treating them as falling within the principles established by Arnold v Jeffreys [1914] 1 KB 512 and Barnes v Hill [1967] 1 QB 579, that is to say as questions asked after the jury had, by answering question 2, returned a general verdict. However, as the parties had not objected to the questions as to the past, his Honour also held (at 204) that they should remain on the record. It was too late for consent to the course taken at trial to be withdrawn. Priestley JA (at 192) also held the particular questions as to the past and the future should not have been put after question 2 was answered. However his Honour, too, would have held the parties to the questions counsel had agreed could be put to the jury. Because he accepted that there was no manifest inconsistency in the jury's answers, he did not (see 192 - 193) consider the effect of the answers to the questions the jury should not have been asked. His Honour did however, indicate (at 192) that if the answers had demonstrated the jury had failed properly to discharge their function, "as a general matter" he could not see why that should not be taken into account.

1. In my view the fact that the jury answered questions 2 and 5 does not demonstrate that they failed properly to discharge their function. First, I have concluded that the jury's answers to the circulation questions in the libel case were reasonably open - so their findings in that regard do not demonstrate confusion as to how to answer subsequent questions.

1. Secondly, against the hypothesis that the jury's answers to the circulation questions in the libel case were not reasonably open, that would not "clearly prove" that the jury had failed to discharge their duty in other respects. For example, the appellants do not challenge the jury's finding in the slander case that they had only established publication by agreement between Mr Kochou and Mr Dadisho. That finding, as I have briefly explained (at [315]) was reasonably open to the jury if it rejected Mr Kochou's evidence. That demonstrates the jury's understanding of the issues and their ability to differentiate between issues.

1. Questions 2 and 5 dealt with a distinct issue from the circulation questions in the libel case. They did not involve deciding between the competing credibility of Mr Kochou, Mr Sarkez and Mr Isaac. Answering them merely required the jury to consider what the petition conveyed to the ordinary reasonable reader at the general meeting.

1. Thirdly, the jury's answers to questions 2 and 5 were not inconsistent with the verdicts. A negative answer to the circulation questions would have supported a verdict for the defendants on the libel case, as too, would a negative answer to questions 2 and 5.

1. Fourthly, as I have said, at the most elementary level, the jury did precisely what the written questions asked them to do. Having answered part of question 1, albeit that part as to Mr Abdishou and Mr Kochou relating to the slander case, they proceeded as directed to question 2 and, inexorably to question 5. It is a step too far to suggest the lay jury should have appreciated what the legally trained participants in the trial did not, that once the circulation questions in the libel case were answered negatively, questions 2 and 5 did not arise.

1. Accordingly, in this hypothetical aspect of my reasons, I would conclude that an unreasonable answer to the circulation questions would not have cast an adverse light on the jury's answers to questions 2 and 5.

1. In any event, accepting that the jury should not, in the circumstances have been asked to answer questions 2 and 5, it is now too late for the appellants to complain about answers to questions whose structure they actively sought at trial: Otis Elevators Pty Ltd v Zitis.

1. Accordingly, subject to the question whether the answers to questions 2 and 5 were unreasonable in the sense that they were ones no reasonable jury could reach, the jury's answers to those questions must stand.

The imputations questions - whether test misstated

1. The first question which arises when considering whether the jury's negative answers to the imputations questions were unreasonable is Mr Reynolds' complaint that the respondents misstated the test the jury should apply in determining how the ordinary reasonable reader would have read the petition (by, in short, referring to the possibility that the ordinary reasonable reader might have skim-read the petition) and whether the trial judge compounded that misstatement by drawing attention to Mr Dawson's submission that "the audience at the general meeting ... would have understood the petition called for an investigation".

1. Once again, the appellants did not complain at the trial about the way either counsel for the respondents or the trial judge put the issue of how the jury might conclude the ordinary reasonable reader may have read the matter complained of.

1. Before dealing with that complaint, brief reference should be made to the principles to be applied by an appellate court asked to overturn a jury's finding in a s 7A trial that imputations were not conveyed. Those principles have been expressed in terms similar to those expressed in Mechanical and General Inventions Co Ltd v Austin and Calin v The Greater Union Organisation Pty Ltd. It is not readily apparent that the tests differ. Indeed, in John Fairfax Publications Pty Limited v Rivkin (at [17]), McHugh J expressed the view that the principles developed in common law actions as to the circumstances in which an appellate court is entitled to set aside a jury's verdict equally apply to appeals in defamation actions. Such principles are qualified to some extent, however, by the character of the typical s 7A trial in a written publication case, which is confined to the issue whether the imputations are conveyed in the natural and ordinary meaning of the matter complained of and whether any such imputations were defamatory.

1. Accordingly, it is appropriate to set out some statements of the principle expressed in the context of a challenge a jury's finding in a s 7A trial. Such a finding, Callinan J (Gleeson CJ and Heydon J agreeing) said in John Fairfax Publications Pty Limited v Rivkin (at [185]) can only be overturned on appeal if it was one no reasonable jury could reach: see also John Fairfax Publications Pty Ltd v Gacic (at [51]) per Gummow and Hayne JJ who added the expression "properly directed" to the test, referring to John Fairfax Publications Pty Limited v Rivkin (at [2]) per Gleeson CJ; see also Australian Broadcasting Corporation v Reading [2004] NSWCA 411 (at [120]) per Ipp JA; (at [165]) per McColl JA; Harvey v John Fairfax Publications Pty Ltd (at [51]) per Hunt AJA (Santow JA agreeing).

1. The Court pays considerable deference to the decision of the jury discharging its role as the constitutional tribunal: Hocking v Bell (at 440) per Latham CJ. Thus, generally, an appellate court considering an appeal from a jury verdict is required to apply what Kirby J has described as "the rule of restraint": Liftronic Pty Ltd v Unver (at [64]; see also (at [1] - [2]) per Gleeson CJ; (at [60]) per Gummow and Callinan JJ. Accordingly, the "unreasonableness" test for whether a jury's verdict should be set aside is "usually combined with a caution suggesting that intervention should be 'extremely rare' ": Harvey v John Fairfax Publications Pty Ltd (at [28] - [30]) per Basten JA.

1. The rule of restraint has particular application in the context of a challenge to a jury's decision as to whether imputations were conveyed and/or were defamatory. In that context, Callinan J said in John Fairfax Publications Pty Ltd v Rivkin (at [184]), echoing Latham CJ's statement in Hocking v Bell (at 440 - 441):

"[184] The fact that an appeal lies to the Court of Appeal does not mean that the court may substitute the answer that it would give to a question for that of a jury. Nor does it mean that a finding of a jury should be invested with no more than the authority of a trial judge to whom all questions, including of fact, have been assigned for answer. The jury has an especially significant constitutional role to play in those cases in which it participates. Both as a practical and legal matter, a jury's decision on a factual question, although by no means impregnable, does have an authority over and above that of a decision of a judge sitting alone to determine a factual question. The jury is representative of the community. Its members are better placed than judges to give meaning to, and evaluate, the spoken and written word and its impact upon the community. Nor should it be assumed that juries approach their task with heightened or lowered suspicion and prejudice. History shows that not all lawyers and judges are strangers to suspicion. It may accordingly be accepted that the occasions for judicial correction of jury verdicts will be extremely rare. But such occasions do arise. That they may, and then will require appellate intervention, follows from the right of appeal which the legislature confers in respect of them ... ."

See also (at [2]) per Gleeson CJ; (at [92] - [93]; [109] - [120]) per Kirby J; (at [17] - [22]) per McHugh J which, while expressed in dissent, I do not understand to state the principles differently from the majority's reasons.

1. The ordinary reasonable people of whom the hypothetical audience is composed are considered to be people of "ordinary intelligence, experience, and education", not "avid for scandal", "fair-minded" and are expected to bring to the matter in question their general knowledge and experience of worldly affairs: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 (at [6]) per French CJ, Gummow, Kiefel and Bell JJ.

1. Basten JA explained well the approach to testing the reasonableness of a jury's answers to imputations questions in Harvey v John Fairfax Publications Pty Ltd (at [30]):

"The second limb of the justification for caution in reviewing a jury verdict, discussed by Gleeson CJ in Rivkin, is the so-called 'constitutional role of the jury', reflecting its 'representative function'. In the context of s 7A of the Defamation Act, the first question asked of the jury (and the only question which arose in the present case, as in Rivkin) is whether the published material conveys a particular imputation. This will involve an evaluative judgment, rather than a finding of fact as to the occurrence or nature of particular conduct or events. Thus, the statute vests in the jury, as members of the community, the function of making that evaluative judgment. In the terms adopted by Lord Wright, the jury cannot be said to have failed to perform its duty if, on the natural meaning of the words used in the published material, there was an available conclusion, which was neither tenuous nor fanciful, which was inconsistent with the asserted imputation. The search for such available meanings was undertaken by McHugh J in Rivkin and is an approach which appears to provide some objective basis for avoiding the shifting sands of subjective personal opinion. Nevertheless, because his Honour was in the minority in relation to the outcome of that exercise, it is no doubt necessary to avoid what the Chief Justice referred to in Rivkin at [4] as 'adroit rationalisation' and the danger identified by Kirby J at [128] as an analysis 'excessively defensive of the jury's answers and insufficiently attentive to the appellate court's performance of its independent function to protect a party against a manifestly unreasonable verdict, although the reasons for such error cannot be identified with exact precision'. Nevertheless, some such approach is required because of the need, noted by Lord Wright in Mechanical and General Inventions, to define what is meant by reasonable. As noted by Gleeson CJ in a different context, 'to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [5]. In the present case, the reasons are unknown, but the underlying material can be assessed."

1. With those appellate strictures in mind, I set out some particular principles applied to determining whether imputations are conveyed to the ordinary reasonable reader or listener.

1. Whether, and what, imputation is conveyed by a publication is essentially a matter of impression. The mode or manner of publication is relevant to the question whether the relevant publication would be understood to have conveyed the pleaded imputations. The more sensational a book, for example, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care it may otherwise have been given and the less the degree of accuracy which would be expected by the reader: Amalgamated Television Services v Marsden (at 165) per Hunt CJ at CL (Mason P and Handley JA agreeing).

1. These propositions have particular significance in the case of electronic broadcasts as Hunt CJ at CL (Mason P and Handley JA agreeing) explained in Amalgamated Television Services v Marsden (at 165 -166):

"All of these considerations, and more, apply to matter published in a transient form - and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article, (Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420) and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material."

See also Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 (at [37]) per Gummow, Hayne and Heydon JJ;

1. Although these observations were made in the context of television broadcasts, they are clearly applicable to assessing the circumstances in which the hypothetical member of the audience at the general meeting would have understood the petition as read by Mr Kochou.

1. It is also the case, as Callinan J observed in John Fairfax Publications Pty Ltd v Rivkin (at [187]), that while each publication has to be considered as a whole, the ordinary reasonable reader might pay more attention to "... matters that have been emphasized", such as headlines and "colourful and seductive language". These observations are not directly applicable to the petition which is bereft of both headlines, let alone "colourful and seductive language". However, not all matters of emphasis depend upon florid expression. It may also be achieved by repetition of a theme.

1. Implicit in the tests to which I have referred is the recognition that the hypothetical ordinary, reasonable reader or listener may place a different construction on the matter complained of than that placed by a trained lawyer: see Trkulja v Yahoo! Inc LLC [2012] VSC 88 (at [15]) per Kaye J.

1. In my view, counsel for the respondents did not misstate the test the jury should apply when considering the question whether the imputations should apply. The mode or manner of publication is always a relevant issue. It could hardly be appropriate to suggest to a jury asked to consider whether imputations were conveyed to an ordinary reasonable reader reading a document only during a Grand Final football match that it should apply the ordinary reasonable reader test as if the spectator was reading the document in the reading room of Mitchell Library. It was open to counsel to invite the jury to consider the ordinary reasonable reader reading and listening to the petition in the circumstances of the general meeting. In any event, it should be borne in mind that it was open to the jury to disregard counsels' submissions: Ramrahka v Chaudhry [2006] NSWCA 42 (at [37]) per Basten JA; Giles JA relevantly agreeing (at [9]); Ipp JA agreeing.

1. In considering whether there has been a miscarriage of justice insofar as the summing-up is concerned, the Court must consider the whole of the trial judge's summing-up and determine whether, taken as a whole, her Honour's direction deflected the jury from their proper task: Hargraves v R; Stoten v R [2011] HCA 44; (2011) 85 ALJR 1254 (at [46]). I have summarised the trial judge's directions to the jury on the approach of the ordinary reasonable reader or listener to whether the imputations were conveyed: see [135] - [138] above. Even if my view (at [357]) is incorrect, nothing the trial judge said compounded or endorsed counsel for the respondents' addresses in this respect.

1. Finally, the fact that counsel for the appellants did not complain about this issue at trial is a powerful reason not to entertain this complaint at this stage: Mallik v McGeown, supra; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 (at 498) per Mason CJ, Wilson, Brennan and Dawson JJ; see also Coulton v Holcombe; University of Wollongong v Metwally (No 2) (at 483).

The jury's answers to the imputations question - libel case

1. Determining whether the jury's answers to the imputations questions were unreasonable requires consideration of what impression they could conclude the ordinary reasonable reader would draw from the petition as a whole: John Fairfax Publications Pty Ltd v Rivkin (at [187]) per Callinan J; (at [26]) per McHugh J. That impressionistic approach is to be contrasted with the analytical exercise lawyers engage in, for example, when determining the question whether, as a matter of law, a publication carries imputations - even though that exercise, too, seeks to assess the reaction to it of the ordinary reasonable reader. Once the jury has actually engaged in the exercise, their significance as the constitutional tribunal, as I have explained, assumes significance in determining whether their answers were reasonable - in other words, the rule of restraint is brought to bear in a manner not applied at the preliminary stage in determining a capacity issue.

1. The appellants' submissions referred to a number of passages in the matter complained of upon which they "especially" rely to support their contention that the imputations were conveyed by the petition both in its written and oral forms such as to demonstrate that the jury's negative answers to the imputations were unreasonable. I assume in their favour that the word "especially" was deliberately chosen to indicate they did not exclude consideration of the whole. While the passages on which they "especially" relied were undoubtedly those to which the drafter of the imputations had regard in framing the imputations, they fail, in my view, to give appropriate weight to the way the petition as a whole is framed. It is artificial to approach the exercise of determining the reasonableness of the jury's answers to the imputations questions by focussing on particular passages, rather then seeking to glean the impression the jury was entitled to consider the petition as a whole would have made on the ordinary reader.

1. The petition is set out above (at [19]). The paragraph numbers to which I refer are those I added to deal with this argument efficiently. It is convenient to note, at this stage, that the appellants were not the only professional advisers to Mr Suleman whose conduct the petition sought to bring to the Legal Services Commissioner's attention. Paragraph 1 of the petition also referred to Sabrina Jajoo, Phillip Pham, and Andy Isho as professional advisors of Karl Suleman whose names also appear in other contexts in the petition.

1. The petition is framed as a call for an investigation into the appellants' conduct in respect of Karl Suleman's scheme. That theme is repeated throughout the text.

1. Paragraph 1 opens with the request from its authors/supporters "seek[ing] an investigation into the conduct and involvement" of the appellants and others "into the scheme operated by Karl Suleman". The third paragraph described the remainder of the petition as enclosing "the submissions In support of the petition". Then, the fifth paragraph asks the recipient to:

"[C]onsider the evidence of these solicitors as outlined in the submission in support of this petition: the inconsistency and differences in the evidence, the business dealings with Karl Suleman, and the benefits received by these solicitors and their association with Karl Suleman. We require your investigation into the conduct of these solicitors and to assist us to achieve a long due justice for our community ..." (Emphasis added).

1. The twelfth paragraph repeats the request that the recipient:

"... investigate why these solicitors continued their business dealings with Karl Sulman [sic, as in original] in light of their knowledge or at least notice as of late 2000 that the scheme operated by Karl Suleman was unlicensed managed investment fund [sic]."

1. The sixteenth, and final, paragraph thanks the recipient:

"... for your investigation and you assistance [sic, as in original] in these matters. We look forward to hear from you."

1. The paragraphs to which the appellants refer contain specific reference to such matters as the "solicitors association with Karl Suleman [giving] us the impression that the scheme operated by Karl Suleman was legal ..." and the "solicitors consciously decided to remain silent about their knowledge of the scheme" (para 6); advice a barrister gave to Phillip Pham and the second appellant that "KSE business is managed investment scheme and requires registration and licence" and that "[t]hese solicitors did not take any steps for registration of the Scheme ..." (para 9); "information [the solicitors] ... had in late 2000 that the scheme was managed investment fund and required license [sic] and registration with ASIC"; and "these solicitors' ... knowledge or at least notice as of late 2000 that the scheme operated by Karl Suleman was unlicensed managed investment fund" (para 12).

1. Other parts of the petition are more equivocal about the appellants' knowledge of the legality of the scheme. Thus paragraph 10 refers to "these solicitors ... participat[ing] in assisting an illegal operation of a scheme which breached the Corporation Act [sic]" and refers to "these solicitors" having "obligations to our community to ascertain if the scheme is registered when it affected us" - all matters which might be said to support the underlying premise of imputation (c), that each appellant knew the Karl Suleman scheme was not registered. However the same paragraph then sets out what appears to have been the second appellant's explanation of the appellants' state of mind as to whether the scheme was registered. It quotes her as saying:

"Karl Sulemin [sic] went to Phillip Pham for registration ... Phillip Pham says Karl Sulemin [sic] told him 'he has licence' ... Andy Isho says Karl Sulemn [sic] told him 'he obtained it' ".

Each of the persons identified, including the appellants, are said to have continued their business with Mr Suleman after receiving that advice.

1. Those aspects of paragraph 10 left it open to the jury, in my view, to conclude that the petition did not convey an imputation depending upon the proposition that the appellants had failed in their obligations to ensure the Scheme was registered. Rather, the jury was entitled to find that the ordinary reasonable reader could conclude from the petition that the appellants were of the view that the scheme was registered. Their continuing association with him after receiving the advice referred to in paragraph 10 demonstrated their confidence that it was.

1. In the same vein, the passage from paragraph 12 to which I have referred is prefaced by the request that the recipient of the petition "investigate why these solicitors continued their business dealings with Karl Sulman [sic]" in the light of that knowledge.

1. Imputations (a), (b), (d), (e) and (f) all depended on the proposition that each appellant knew the Karl Suleman scheme was illegal either generally (imputations (a), (d), (e) and (f)) or because s/he knew it was in breach of the Corporations Act (imputation (b)) or was not registered (imputation (d)). In my view, taken in the context to which I have referred where the petition repeatedly called for an investigation, the specific references to illegality appear in the submissions part of the document and, in the case of the registration issue, the countervailing material about the appellants' belief the scheme was registered, it was open to the jury to conclude that the ordinary reasonable reader would not draw those conclusions. It was not fanciful, for example, to find that it was open to the jury to conclude that the ordinary reasonable reader read the petition as drawing these matters to the recipient's attention and inviting that person to consider and characterise the conduct. This view was open to the jury both on the question of whether the appellants knew of the illegality of the scheme as well as whether they should be characterised as having been "guilty of misconduct" (imputations (c) and (e)) or failed in his/her duty (imputation (d)).

1. One aspect of imputation (a) can be dealt with specifically. That imputation depended upon the proposition that each appellant was referred to in the matter complained of as "promoting an investment scheme among his clients knowing it to be illegal". The appellants submitted it was conveyed "especially" by paragraphs 1, 5, the first sentence of 6 and 7. Those paragraphs refer to the appellants either as Mr Suleman's other professional advisers or, in effect, associates of Mr Suleman.

1. The only express reference in the petition to anybody promoting the scheme is the statement, in paragraph 8, that:

"The public examination also revealed various 'agents' of KSE promoted the scheme."

1. The same paragraph revealed that the liquidator has "since then commenced legal action against these agents". In contradistinction to the reference to these "agents", it goes on to refer to the liquidator "also commenc[ing] legal action against" (my emphasis) the appellants. This distinction between the agents who promoted the scheme was also established in paragraph 4 of the matter complained of which refers to "various agents of Karl Sulemin [sic]" by whom "members of our community ... were referred ... to these solicitors ...".

1. In my view, that distinction would have been apparent to the ordinary reasonable reader. Further, in my view, the other references to the appellants' association with Mr Suleman do not suggest that the jury should conclude that they conveyed to the ordinary reasonable reader the proposition that they promoted his scheme. Rather, those passages convey the connotation of advisers and associates, but not promoters. The underlying premise, therefore, of imputation (a) was not established.

1. In my view, paying due deference to the jury as the constitutional tribunal, their rejection of the appellants' imputations in the libel case was not unreasonable.

1. I would reject ground 5.

The jury's answers to the imputations question - slander case

1. The conclusions I have reached in relation to the jury's answers to the imputations questions in the libel case apply with equal, if not greater, force to their answers to the questions in the slander case. The reading of the petition can be likened to the "transient" publication to which I have referred: see [353] above. In that context, it was open to the jury to conclude that the repetition of the theme of the request for an investigation would have had particular resonance for the ordinary reasonable listener - much as a musical refrain that forms the backbone to a composition. Otherwise, the same reasoning substantially applies to the jury's assessment of the impressions the ordinary reasonable listener would have had of the petition.

1. If I had reached the contrary view on this aspect of the case, it is arguable that the Court could not, if it upheld this ground of appeal on this point, enter a verdict in the appellants' favour rather than order a new trial: Harvey v John Fairfax Publications Pty Ltd (at [101] - and see above at [224]). Like Hunt AJA in that case, however, I would leave this question for resolution when the occasion requires.

1. I would reject ground 6.

Publication to Mr Kochou

1. Finally, I turn to the case the appellants seek to advance for the first time on appeal that publication of the petition for the purposes of the libel case was established by the fact that Mr Kochou read the petition in its entirety.

1. In my view the appellants should not be permitted to rely on that point on appeal.

1. First, "a party is bound by the conduct of his case [and] [e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so": University of Wollongong v Metwally (No 2) (at 483). After referring to that passage with approval in Coulton v Holcombe (at 7), the plurality observed that "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial [otherwise] ... the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish".

1. Secondly, it by no means apparent that a reading by Mr Kochou would have constituted publication to a third party such as to amount to publication for the purposes of establishing the cause of action. Prima facie the defendants at trial, of whom Mr Kochou was one, were joint tortfeasors. Thus he was a principal in the act of publication: Webb v Bloch (at 364) per Isaacs J. As his Honour explained (at 365) when characterising the participants in the publication of the libel in that case, "principal and agent inter se are principals in relation to the person defamed [and] the principal and the agent are one" and, (at 365) "[a] composite entity". On this premise, Mr Kochou's reading of the petition resembles the example Gatley (at [6.1]) gives that "A cannot sue B for defaming him to ... B himself; that is to say where B reads to himself his libel on A then locks it away. A must prove that B defamed him to C." It is as if the appellants could rely on, for example any of the respondents reading the petition while sitting at the meeting. It would be absurd to suggest such a reading could constitute publication to a "third party".

1. Tobin & Sexton state (at [5012]) that "[t]here is some doubt as to whether publication by the defendant to a joint tortfeasor provides sufficient basis for an action by the plaintiff", referring to Trantum v McDowell [2007] NSWCA 138. In that case Tobias JA (Beazley JA and Bell J (as her Honour was then) agreeing) considered (at [45] ff) a submission that "a person cannot at the same time be the publisher of the matter complained of as well as its recipient". His Honour referred to Davis v Resources for Human Development Inc 770 A.2d 353 (2001) (at 358), a decision of the Superior Court of Pennsylvania, in which Olszewski J, who delivered the judgment of the court, said:

"It is clear that in Pennsylvania, the communication must be expressed to a third party in order to be 'published'. See Elia v Erie Ins Exchange, 430 Pa.Super. 384, 634 A.2d 657, 660 (1993). Here the communication was between four authors of the letter and the appellant. While four people signed the letter, none of those is a third party for these purposes."

1. Tobias JA (at [48]) distinguished Davis v Resources for Human Development Inc on the basis that it did not apply to the facts of the case before the court in which the claimant wrote a letter making allegations against the opponent which were found to be defamatory then "took the letter to the owner/occupiers of other units within the apartment complex, several of whom signed it": (see headnote). The primary judge found the latter were recipients of the defamatory matter - a decision approved on appeal.

1. Tobias JA also referred (at [49]) to numerous defamation texts which variously cite Davis v Resources for Human Development Inc or, without referring to it, refer to apparently conflicting authority.

1. It is clear from that brief reference to Trantum v McDowell that the learned authors of Tobin & Sexton are warranted in expressing doubt about the current position as to whether publication takes place when a person regarded as a tortfeasor effectively "publishes" the matter to him or herself.

1. It is unnecessary to express a concluded view about this issue as, for the reasons given, I would not entertain it.

1. Finally, on this point, I would add that if the Court was to entertain such an argument and it succeeded, the appellants should bear a substantial costs penalty of both the trial and possibly an earlier trial of the matter aborted at their request.

Orders

1. I would dismiss the appeal with costs.

1. SACKVILLE AJA: I agree with McColl JA.

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Decision last updated: 30 April 2012