Greek Herald Pty Ltd v Nikolopoulos

[2002] NSWCA 41

Reported Decision: (2002) 54 NSWLR 165

New South Wales

Court of Appeal

CITATION:	GREEK HERALD PTY LTD v NIKOLOPOULOS & ORS [2002] NSWCA 41
FILE NUMBER(S):	CA 40100/01
HEARING DATE(S):	12 November 2001
JUDGMENT DATE:	5 March 2002
PARTIES :	GREEK HERALD PTY LTD v GEORGE NIKOLOPOULOS & ORS
JUDGMENT OF:	Mason P at 1; Wood CJatCL at 31; Young CJ in Eq at 32

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CL 20071/99
LOWER COURT JUDICIAL OFFICER :	Dowd J

COUNSEL:	Appellant: T Molomby Respondents: C Evatt/ J C Henness
SOLICITORS:	Appellant: Tony Lazaropoulos Respondents: Brock Partners
CATCHWORDS:	Defamation - direction to jury - imputations under the Defamation Act 1974 - whether pleaded imputations are to be understood in the context of whole matter complained of. - Procedure - order for new trial on ground of non-direction - whether the lack of a direction led to a substantial wrong or miscarriage of justice. (D)
LEGISLATION CITED:	Defamation Act 1974 ss 7A, 9(2) Supreme Court Rules 1970 Pt 67 r 11
CASES CITED:	A B Parry & Sons Pty Ltd v The K G Murray Publishing Co (unreported, NSWSC, Hunt J, 10 April 1980) Attorney-General of Ontario v Dieleman (1994) 117 DLR (4th) 449 Australian Broadcasting Corporation v McBride [2001] NSWCA 322 Bayne v Parker [1976] 1 NSWLR 191 Bremridge v Latimer (1864) 12 WR 878 Broome v Agar (1928) 138 LT 698 Chakavarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68 Dakhyl v Labouchere [1908] 2 KB 325 Dougherty v Nationwide News Pty Ltd (1968) 88 WN (Pt 1) NSW 146 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297 Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 Minister for Immigration v Eshetu (1999) 197 CLR 611 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited [1971] 1 NSWLR 472 Singleton v Ffrench (1986) 5 NSWLR 425 Templeton v Jones [1984] 1 NZLR 448 Towne v Eisner 254 US 418 (1918) Watkin v Hall (1868) 3 QB 396
DECISION:	Appeal dismissed with costs.

CA 40100 of 2001
CL 20071 of 1999
MASON P
WOOD CJ at CL
YOUNG CJ in Eq


Tuesday 5 March 2002

GREEK HERALD PTY LTD v George NIKOLOPOULOS & Ors

The plaintiffs, directors of the Canterbury-Marrickville Olympic Soccer Football Club, sued the Greek Herald for defamation in respect of several articles published in 1999. The jury rejected all imputations save one which was found to be established and defamatory, namely that the plaintiffs lied to members of the Club.

During the trial, in the absence of the jury, counsel for the defendants sought a direction that the issue whether an imputation was defamatory had to be assessed from its terms alone, without importing any significance to the words from the knowledge the reader had from the article or of the affair generally. The trial judge refused the application. On appeal, the appellants argued that the jury cannot resort to the matter complained of in order to determine whether the imputations are defamatory and must decide solely on the terms of the pleaded imputations.

HELD by Mason P (Wood CJ at CL concurring) dismissing the appeal:

A pleaded imputation is to be examined in the context of the matter complained of. The imputation is to capture the essence of the specific matters imputed in relation to the plaintiff (referred to Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 and Singleton v Ffrench (1986) 5 NSWLR 425). There will necessarily be questions of degree, and pleadings must not be permitted to assume an independent self-referential function. The substance, as distinct from the precise words of the pleaded imputation, will bind the plaintiff (referred to Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749). Words must be read in context, and the context may clarify or intensify the sting of a facially benign imputation.

Young CJ in Eq:

Due to the restructuring of the Defamation Act 1974 and substituting the imputation as the cause of action, it follows that the defamatory quality of the imputation must be assessed entirely within its own terms (distinguished Australian Broadcasting Corporation v McBride [2001] NSWCA 322 and Nationwide News Pty Ltd v Heggie [2001] NSWCA 257). Words pleaded must, in their own terms, be as precise as the circumstances allow (referred to Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 and Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68). The principal problem in this case arose due to the imprecise way in which the imputation was pleaded.

However, when a defendant takes a pleading point of this nature near the conclusion of the trial, and the technical point is correct and not upheld by the trial judge, justice in these circumstances may not require a new trial. Due to the lateness of taking point, its relative triviality and difficulty in a new trial means that a new trial should not be ordered (referred to Dakhyl v Labouchere [1908] 2 KB 325, Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297, and Bayne v Parker [1976] 1 NSWLR 191).

Orders

1. Appeal dismissed with costs.

CA 40100 of 2001
CL 20071 of 1999
MASON P
WOOD CJ at CL
YOUNG CJ in Eq


Tuesday 5 March 2002

GREEK HERALD PTY LTD v George NIKOLOPOULOS & Ors

JUDGMENT

1 MASON P: The issue in this appeal is whether Dowd J erred in refusing to direct the jury that, when assessing whether an imputation was defamatory, they were to do so from its terms alone without importing any significance to the words of the imputation from the knowledge the reader had from the article or the affair generally.

2 The matter complained of was published in Greek in the Greek Herald of 20 January 1999. In translation, it reads:

TRANSLATION
Our Editor TH SKALKOS reveals
Why did they hide from the members
of Marrickville Olympic a bigger offer
for the purchase of their ground?
SEE ARTICLE ON PAGE 54

SCANDAL
Why did they hide from members
of Marrickville Olympic
a better offer
for their ground?

The properties of our clubs are considered properties of our community, for which the members and the directors of our community organisations decide, however, these do not cease to be in essence properties for us all.

Having this in mind, one is enraged even more when one realizes that the property of a community organisation, such as the Canterbury Marrickville Olympic is sold at a price which is by $200,000 lower than that at which it could have been sold. Simply in order that certain people could earn money, openly but also secretly.
Without going around and without saying too much, following what I have been informed and confirmed on my return from a trip to Greece, the Canterbury Marrickville Olympic Committee of Management, after two general meetings and unsuccessful attempts, it convened a third meeting and managed to convince the members to approve the sale of their ground to the neighbouring Masonic Club, at the sale price of $2,200,000. The members approval was given following general meetings upon general meetings for the same issue and after the directors assured the members that THERE WAS NO OTHER offer for the ground of their club.
This is exactly where the lie is, that is the concealment of the truth and the obvious existence of personal interests, which would be served with the sale of the ground to the Masonic Hall and above all with the purchase of a particular other ground. Which in turn may blow up and lead to bankruptcy our only financially robust, at this point, soccer club, but in the meantime, those who are to benefit will benefit!
The truth, which the members were not told about and which the directors and the president of Canterbury Marrickville Olympic knew personally, was that there was another offer for the club ground, bigger by $200,000 than the offer of the Masonic Club or any other offer.
The said offer was made by me personally and by the well-known businessman of our community Mr Vangelis Danias but for reasons which the directors of Canterbury Marrickville Olympic will need to explain to us, the members were not advised of its existence.
Why?
Is it because the granting of the exclusivity of sale of the ground to the real estate agency of Mr Ronis was about to expire and so it would not receive the commission for the sale, unless the buyer was the Masonic Club? Or are there any other benefits from the Masonic Club to anyone who would secure for it the ground, which is situated exactly next door to it.
Finally, how much more can a real estate agency expect to benefit from a big and risky, for Canterbury Marrickville Olympic, purchase of a building, whose price could reach, as we hear, the sum of $5,000,000 and which is, of course, beyond the capabilities of the soccer club?
All the above are thoughts based on indications and especially on the fact of hiding our offer from the members of Canterbury Marrickville Olympic, which the president and the directors did not have the right to do. Especially, when they were asked in the course of the last general meeting “if there was any other than that of the Masonic Club”?
Perhaps the president and certain members of the management committee are our friends in other ways but this will not prevent us from denouncing the actions which may benefit certain pockets but undoubtedly harm the club, to the property of which we have ALL contributed through the years and for which we have all co-operated, some in small ways and others in bigger way, in order to be maintained.
It should be noted that apart from the moral obligation, the president and the directors of Canterbury Marrickville Olympic may also have legal responsibilities for the fact that they hid from the members a more advantageous offer for the sale of the club’s property which was made very seriously and not by just anyone but by known businessmen with ….

3 (Two other publications were the subject of action, but the plaintiffs’ claims relating to them were rejected by the jury.)

4 The plaintiffs were directors of the Canterbury-Marrickville Olympic Soccer Football Club Ltd. They pleaded several imputations, only one of which was found established and defamatory, namely that:

(c) The plaintiffs lied to members of the Canterbury-Marrickville Olympic Soccer Football Club.

5 The publication (and translation) went into evidence and the jury had them when they retired to deliberate.

6 Counsel for the defendants argued that merely to be accused of lying was not defamatory, without specification of what the lie was about, why it was told, or its effect. Reference was made to an adult telling a child about Father Christmas and a fire officer telling people in a crowded theatre with an inferno behind the scenes that there was no cause for alarm.

7 The learned trial judge directed the jury that they had to decide two issues referable to each pleaded imputation: (1) what was conveyed? and (2) was it defamatory of the plaintiffs? There were the standard directions about the roles of judge and jury, the need to approach the issues dispassionately, and onus of proof.

8 The jury were informed that the word “imputation” was not a technical word and that it was usually in the nature of an accusation or charge, said to have been conveyed by the words. They were specifically instructed to look at the imputations in the context of each publication as a whole (see esp pars 27, 32 of the directions). Their first task was to decide whether the charges or imputations were proved to have been conveyed by the words of the publication, reading it as an ordinary reasonable reader (see esp pars 28-31, 36-37). The plaintiffs were not bound to the precise words of the imputations (par 33) and were to keep in mind that the newspaper was circulated generally (par 34).

9 In the absence of the jury counsel for the defendants sought a direction that the issue whether an imputation was defamatory had to be assessed from its terms alone, without importing any significance to the words, from the knowledge the reader had from the article or of the affair generally. Specifically, he submitted that:

when one assesses whether [imputation (c)] is defamatory, one looks just at those words, and does not import into them, for example, what the lie was about, which one knows from the article, why the lie was told, of which the plaintiffs assert one version in earlier imputations, and of which I asserted and addressed them on those earlier imputations. That, in my submission, would be wrong for them to import anything about the lie at all from the article. All they know is, as it is drafted, the plaintiffs lied to the members of the club. They do not know when or what is about. They do not know how important it was, if important at all. They do not know why, or with what result or intent, nothing.

10 The learned judge refused the application in the following terms:

Application has been made by Mr Molomby for a further direction, dealing with the question of the context in which the question as to whether imputations were defamatory, whether the plaintiffs can go outside the question itself.
Mr Molomby contended, as I understand him, that the jury must be directed to look at the words of the question itself and whether that question, that imputation, is defamatory, looking at the question alone, not aided by the knowledge gained from the other articles, the other material in the article.
In my view, to give such a direction would oblige the pleader in framing question, to have contained within those questions all of the information, notwithstanding that in the light of a whole series of preparatory advice, before the question the imputation could be put. (sic)
In my view, that would make the task for the jury unnecessarily complicated. I have already given a direction they must look at the article themselves, and each article, only that article, the imputations can only be looked at in the light of the context, the jury cannot divorce its mind from, as an ordinary reasonable reader, from the whole of the article, because it is an impression that they are looking at, and I consider that if Mr Molomby’s contention is correct, that it would oblige prolix and unnecessary complex questions which would unnecessarily fetter the jury in the difficult task they have.
I therefore decline to give that direction.

11 The appellants (defendants) accept that the jury are to be given the matter complained of in order to determine whether it conveys the pleaded imputations. But they oppose any resort to that matter for the second phase of determining if the imputations are defamatory.

12 In this Court, as below, the appellants rely particularly on s9(2) of the Defamation Act 1974 which provides:

(2) Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient:
(a) in addition to any cause of action which the person defamed may have against the publisher for the publication of that matter to that recipient of any other defamatory imputation made by means of that publication, and
(b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient.

13 Since the published imputation is the cause of action the jury need look no further than the imputation itself to determine if it is defamatory, so the argument goes.

14 Section 9(2) departs from the common law. The reasons are explained by the New South Wales Law Reform Commission in its Report No 11, Defamation (1971) Appendix D §§36-56. The Commission pointed out that, even publication to a single recipient would or might in some circumstances give rise to multiple causes of action. Reform along the lines of s9(2) would resolve some existing uncertainties and promote clarity in formulating true issues. Thus:

44. The publication to one recipient of a defamatory statement may support more than one cause of action. There is one cause of action if the statement is defamatory in its natural and ordinary meaning, that is, in its direct meaning together with any false innuendoes. There is another cause of action for each defamatory imputation arising by true innuendo. It is unnecessary to say how far this was so at common law: it is established that it is so in the presence of legislation in the terms of section 72 of the Common Law Procedure Act, 1899 . See Harvey v. French ((1832) 1 C. and M. 11; 149 E.R. 293), Watkin v. Hall ((1868) L.R. 3 Q.B. 396), Sim v. Stretch ([1936] 2 All E.R. 1237), Grubb v. Bristol United Press Ltd ([1963] 1 Q.B. 309), Lewis v. Daily Telegraph Ltd ([1964] A.C. 234), Pedley v. Cambridge Newspapers Ltd ([1964] 1 W.L.R. 988).

45. We pass to another question. Suppose that the matter published makes two distinct defamatory imputations in its direct meaning, suppose for example, that the words published are "X is a liar and X is a thief". Does this give X one or two causes of action? One view is that the wrongful act is the publication of the report, article, speech or other matter as a whole. On this view it is necessary, in order to establish a cause of action, that there is some defamatory imputation, but one is enough: other defamatory imputations would go to damages, not to the establishment of other causes of action. This is the view inherent in the judgment of Fry L.J. in Macdougall v. Knight ((1890) 25 Q.B.D. 1, at p. 10).

46. The other view is that each distinct defamatory imputation arising on the direct meaning of the matter published gives rise to a separate cause of action. This view, for which we have found no direct authority, must be a tacit assumption lying behind the authorities on the question whether the plaintiff can be required to put in evidence the whole of the report, article, speech or other matter published. If he had but one cause of action for the publication of the whole, one would expect that he would fail unless the whole were put in evidence. But the authorities approach the question differently: as a rule the whole matter must be put in evidence, not because the publication of the whole is the wrongful act, but because the words complained of may have an effect when seen in their context different from their apparent effect in isolation. See Gatley, paragraph 1230. We need not make a firm choice between these views so far as the present law is concerned, but it is a matter which we must take into account in attempting to clarify the position as to causes of action.
47. If it is right that there is a separate cause of action for each distinct defamatory imputation arising on the direct meaning of the matter published, a problem will arise where two or more such imputations are the ground for an imputation by false innuendo. Under which cause of action is that false innuendo to be litigated? We do not know what answer the present law would give.
48. We think that the law reviewed in paragraphs 37 to 47 is unsatisfactory. First, there is the distinction between separate publications to each recipient, as in the case of a newspaper, and a single publication to numerous recipients, as in the case of a speech to a numerous audience. We do not think that the distinction is useful, and it may be troublesome in borderline cases. The concept of a single publication to a numerous audience may itself be troublesome where the matter published may carry a variety of true innuendos depending on the various facts and circumstances known to the recipients. Further, there may be a defence, for example, of qualified privilege as to some recipients but not as to others: see section 20 of the proposed Bill.

49. There are also difficulties in the distinction between the natural and ordinary meaning of the matter published (that is, the direct meaning with any false innuendoes) and the true innuendo. Sometimes the distinction is clear enough, as where A and B are, and are living as, man and wife, and a newspaper reports that A is engaged to be married to C. The report will bear a meaning defamatory of B only to those recipients who know that A and B are living as man and wife. But in other cases the distinction is unreal. Suppose the words complained of are "X is a Casanova", and it is alleged that the words carry the imputation that X is a libertine. On one view, the associations of the word "Casanova" are so much a matter of common knowledge that the imputation is the natural and ordinary meaning of the words. Others might think that the case called for evidence of the reputed exploits of the eighteenth century adventurer, on the view that the words would bear that meaning only to those recipients who know of that reputation. The meaning of any communication depends in part on what is in the mind of the recipient. To make the existence of a separate cause of action depend on whether the extraneous facts are common knowledge or not is bad because to do so is to found a distinction on something inherently unascertainable.
50. We think that the solution most likely to promote an analysis which will lead to just results, is to provide that a person defamed has a separate cause of action for each defamatory imputation published of him and for each person to whom the publication is made.
51. The solution proposed in paragraph 50 shares, and indeed, aggravates, the defects of the present law, arising because of the multiplicity of causes of action which may attend the dissemination of defamatory matter. The defects include problems of the extent to which more than one action can be brought against the same defendant in respect of the same, report, article, speech or other problems of prolixity in pleadings, and problems relating to verdicts and assessment of damages.

15 Neither these detected mischiefs nor the Commission’s projected reforms support the appellants’ challenge to the directions given by Dowd J. Goals of clarifying true issues and limiting disputes relating to abuse of process are in no wise incompatible with maintenance of the position that a pleaded imputation is to be examined in the context of the matter complained of.

16 In my view, the appellants’ submission is contrary to the general rules of pleading and basic principle.

17 Part 67 r11 of the Supreme Court Rules relevantly provides:

(2) A statement of claim -
(a) shall, subject to subrule (3), specify each imputation on which the plaintiff relies; and
(b) shall allege that the imputation was defamatory of the plaintiff.
(3) A plaintiff shall not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same report, article, letter, note, picture, oral utterance or thing, unless the imputations differ in substance.

18 The pleader’s task is to capture the essence of the specific matters imputed in relation to the plaintiff. Necessarily there will be questions of degree and “if a problem arises, the solution will usually be found in considerations of practical justice rather than philology” (per Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137). In this as in other areas, pleadings serve the ends of justice: they must not be permitted to assume an independent self-referential function. The pleaded imputation remains “the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand” (per Mahoney JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 428). It is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury’s capacity to enlarge the issues.

19 A plaintiff’s pleaded imputations set the scene for the contest which follows. The defendant’s pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory or the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations (Defamation Act, ss15(2), 16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771).

20 The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-6).

21 These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455, Minister for Immigration v Eshetu (1999) 197 CLR 611 at 534). Holmes J reminds us that:

A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used: Towne v Eisner 254 US 418, 425 (1918).

22 Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see Fleming, The Law of Torts 7th ed p588).

23 The defendants wish to have the imputation removed from the context of the article as a whole so that the jury can be invited to debate the moral issue whether lying is always wrong, and whether (if it is not) it is defamatory of a person to say that he or she lied. Such matters may befit a philosophy seminar. But they are so divorced from the reality of the true dispute between the litigants as to be a wasteful perversion of justice. After all, it was pleaded that the imputed lie was to the members of the Club of which the plaintiff were the directors.

24 This pleading may well have been ambiguous and embarrassing. If so it should have been objected to on that basis. Had the objection been taken and upheld, the plaintiffs would have been forced to greater specificity, with possible consequences as regards the defences open to the defendants and the jury’s determination on the matters reserved for them. But these points were not taken at trial and they are not issues before this Court.

25 Precedent also favours the respondents.

26 At the point of general principle, it is well established that the words complained of must be construed as a whole and in context (see the passage from Gatley on Libel and Slander set out in the judgment of Young CJ in Eq, which I have had the advantage of reading). I have endeavoured to explain why s9(2) does not and was not intended to depart from this principle.

27 On the specific point, passages in Australian Broadcasting Corporation v McBride [2001] NSWCA 322 at [47] and [107] and Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 at [29] support the proposition that the jury are to embark upon their two-fold task by considering the pleaded imputations in the context of the matter complained of. I agree with Young CJ in Eq that the particular point taken in the present appeal does not appear to have been taken in those earlier appeals. Nevertheless, I consider the dicta persuasive and correct.

28 The principle which I would uphold in this appeal must not become the passport to sloppy or ambiguous pleading of imputations. It is, however, incumbent on the parties to thrash out the true issues at the pre-trial stages. If a pleaded imputation lacks a sting or if the sting has multiple barbs, then the plaintiff should be challenged to clarify the pleaded imputation.

29 In the present case it would have been better if the content of the lie imputed to the plaintiffs were spelled out. For one thing, this would have placed in proper focus the defendants’ argument to the jury that some types of lying may be morally justifiable, with the possible consequence that the instant accusation was not defamatory. There are lies and lies, just as every accusation of theft is not defamatory (cf Broome v Agar (1928) 138 LT 698 at 702). Nevertheless, it remains generally true that accusations of lying or theft are defamatory. The upshot is that judge and jury are entitled to a true joinder of issue in pleadings if a naturally defamatory meaning is in genuine dispute (cf Supreme Court Act 1970, s63).

30 The appeal should be dismissed with costs.

31 WOOD CJ at CL: I have read in draft the judgment of Mason P. I agree, for the reasons given, that the appeal should be dismissed with costs.

32 YOUNG CJ in EQ: This is an appeal from the refusal of Dowd J to give a direction to a jury during the imputation phase of a defamation trial.

33 The plaintiffs complained of material published in the Greek Herald of 20 July 1999 for which the respondents were responsible. The plaintiffs alleged that a series of defamatory imputations arose from that material. They also alleged that two other editions of the same paper were defamatory, but it is unnecessary to mention these further as the jury found against the plaintiffs in respect of these other editions.

34 Dowd J and a jury of four were sitting pursuant to s 7A of the Defamation Act 1974. The jury only responded positively to the plaintiffs in respect of the imputations pleaded in para 4(c) and (d) of the final version of the statement of claim. These paragraphs were as follows:

“4. The matter complained of and set out in paragraph 3 [that is the material in the Greek Herald of 20 January 1999] in its natural and ordinary meaning conveyed the following imputations each of which are defamatory of the plaintiffs:-
(c) the plaintiffs lied to members of the Canterbury Marrickville Olympic Soccer Football Club;
(d) the plaintiffs hid from members of the Canterbury Marrickville Olympic Soccer Football Club a more advantageous offer for the sale of the Club’s property.”

35 The jury found the first imputation established and that it was defamatory. It found the other imputation established but found it was not defamatory.

36 The question that arises in the present appeal arises because when the learned Judge asked counsel whether there was any other matter that he should put to the jury just before the jury were to retire the defendants’ counsel asked for a direction that the jury must when they were assessing whether an imputation was defamatory do so from its terms alone without importing any significance to the words from the knowledge the reader had from the article or of the affair generally. His Honour declined to give that direction.

37 Mr Molomby, who appeared for the appellants both here and below, submitted that as a matter of principal he was entitled to the direction.

38 He put that in New South Wales the imputation is the cause of action; see s 9 of the Act. The imputation is meant to be the ultimate distillation of the plaintiffs’ complaint. In the instant case the imputation pleaded was that the plaintiffs lied to members of the Club. One just looks at those words and does not import into them, for example, what the lie was about (which, of course one knows from the article) or why the lie was told. It would be wrong for the jury to import anything about the lie at all from the article. All they should know is that the plaintiffs lied to members of the Club; they do not know when or what it is about, or how important it was, if important at all.

39 Two things should be said about this submission before dealing with its merits. The first is that it is really a pleading point. The real point is that if the plaintiffs wished to say that the lie was to be assessed in the context of the article they would have had to plead para (c) such as: “The plaintiffs as directors of the Club lied to members of the … Club in that … “. Had that been the form of the pleading there would have been no argument that the jury could have considered the whole of the material in assessing whether the lie was defamatory.

40 The second point is that this pleading point was taken at the very end of the imputation trial. Although the plaintiffs were represented by an able and experienced defamation lawyer in Mr Evatt, it is most unfortunate that the procedure permits a point like this to be sprung on the plaintiff at the very close of the trial when it has no opportunity to amend the pleadings. However, two counter-balancing points should also be made about this. The first is that the plaintiffs never at any stage sought to amend the pleadings, they merely submitted that the direction should not be made, and secondly, there is nothing in the rules of practice and procedure which requires defendants to disclose this sort of point earlier, even if its effect is to ambush the plaintiff. Whatever the result of this appeal, the Defamation List Judges will probably need to examine defendants’ counsel more thoroughly to see that there is no such “killer point” up their sleeves for last minute use.

41 There is no doubt that the newspaper article and its translation were tendered to the jury by consent. That is evidently the usual practice in this sort of trial, but following it may have assisted lulling the plaintiffs into not re-examining their pleadings too closely.

42 There is no doubt at all that the newspaper was relevant for some purposes of the imputation trial. Ordinarily, if evidence is legally admissible in proof of some issue in the case its evidentiary use should be confined to that purpose; see Cross on Evidence 5th Australian ed (Butterworths, Sydney, 1996) [1655]. It would not appear that the Evidence Act has altered this rule so that we are not assisted by the fact that the newspaper was admitted without objection.

43 The appellants’ assertion runs contrary to long standing practice. That practice, quoting from the 8th edition of Gatley on Libel and Slander (Sweet & Maxwell, London, 1981) [102] is that:

“The words complained of must be construed as a whole. ‘It is necessary to take into consideration, not only the actual words used, but the context of the words’ per Lord Halsbury LC in Nevill v Fine Arts Co [1897] AC at pp 72, 78. Words which are not in themselves defamatory may, from the whole context in which they are published, convey a defamatory imputation. Conversely, this or that sentence may be considered defamatory, but there may be other passages which take away their sting. … The defendant is entitled to have read as part of the plaintiff’s case the whole of the publication from which an alleged libel is extracted, and also any other document referred to which qualifies or explains its meaning. If a libel is contained in a letter, the whole of the correspondence of which the letter forms part should be taken into consideration. If a libel is contained in a newspaper paragraph, not only the paragraph but also the heading must be taken into account.”
In the 9th (1998) edition of Gatley the paragraph is rearranged and what I have quoted appears as [3.27] and [3.28].

44 However, Mr Molomby submits that because of the restructuring of the NSW legislation and substituting the imputation as the cause of action, it must follow that the defamatory quality of the imputation must be assessed entirely within its own terms. Otherwise he says, the imputation is not truly representing the cause of action.

45 Mr Molomby cites in aid of his submission, the analogous situation where a plaintiff cannot in the course of an argument about form with respect to the ambiguity of words used rely for refinement or clarification of the words pleaded on the text of the matter complained of: the words pleaded must, in their own terms, be as precise as circumstances allow; see eg Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.

46 It is certainly true that the law of pleading has always looked strictly at the way in which the libel or imputation is pleaded. The plaintiff was entitled to choose how he or she pleaded the allegedly defamatory material and was then confined to that pleading. The consequence under the Rules of Hilary Term 1834 was that the defendant was not permitted to plead the whole article; see Bremridge v Latimer (1864) 12 WR 878; Watkin v Hall (1868) 3 QB 396, 402; Templeton v Jones [1984] 1 NZLR 448, 42 and Chakavarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 528.

47 In Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68, Spigelman CJ, with whom Meagher and Handley JJA agreed, said at [21] that the Defamation Act s 7A(3) must be construed as if the words read “the jury is to determine whether the matter complained of carries the imputation pleaded by the plaintiff and if it does, whether the imputation is defamatory of the plaintiff. Although I have quoted this out of context, it again focuses attention that in this Act one must look to the way in which the imputation is pleaded. In the present case the imputation was pleaded very generally and that I believe is the source of the problem.

48 However, in Australian Broadcasting Corporation v McBride [2001] NSWCA 322 at [47], this Court, consisting of Beazley, Ipp and Fitzgerald JJA, had to consider a pleading point in a defamation action. Ipp AJA said at [47]:

“A transcript of the … program in question is annexed to the statement of claim. The transcript forms part of the context in which the pleaded imputations are to be understood. It is relevant and admissible for the purposes of demonstrating the force and effect of the imputations pleaded and giving colour to and explaining the significance of them.”
His Honour supported that statement by citing Dougherty v Nationwide News Pty Ltd (1968) 88 WN (Pt 1) NSW 146, 149; Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited [1971] 1 NSWLR 472, 477 and A B Parry & Sons Pty Ltd v The K G Murray Publishing Co, Hunt J, 10 April 1980.

49 At first blush this passage appears to support the respondents’ point of view. However, when one looks at it a little more deeply one can see that the pleading in McBride’s case actually set out the newspaper concerned. There is no doubt at all in the instant case that had the imputation been widely pleaded, the point would not have arisen. Mr Molomby’s point is that the matter arises because of the imprecise way in which the imputation was pleaded.

50 Again, in Nationwide News Pty Ltd v Heggie [2001] NSWCA 257, Fitzgerald AJA said at [29]:

“I accept the first step in the appellant’s article, namely, that it was entitled to seek to persuade the jury that, when the passages complained of by the respondent are read in context, the article did not defame the respondent.”
However, his Honour was not directing his mind to the particular point argued in this appeal, and indeed was following what was commonly accepted by the defamation bar up until the time Mr Molomby raised the point in the second half of 2001.

51 Mr Evatt, for the respondents, said that one must look at the way the trial was run. If there was some ambiguity about the imputation, then it was for the Court, not for the jury, to decide the matter; see eg Singleton v Ffrench (1986) 5 NSWLR 425 at 431.

52 In my view, Mr Molomby’s submission is correct. The matter is, however, a narrow pleading point and the submission made by Mr Molomby will only be true if there is an imprecise pleading of the imputation.

53 I do not consider that the way the trial was run affects the outcome. Indeed, it would seem from what both counsel have told us, and from the transcript, that the jury were actually asked to speculate about things such as whether telling one’s children that Santa Claus exists is a lie which would be defamatory.

54 There was discussion before us as to whether some ordinarily offensive terms could be said to be innocuous. Thus, words like “get away you old bastard” may well not be defamatory and to call someone a killer may be even laudatory of a boxer. Even to call a police officer “killer” may merely mean the officer has a singleness of purpose in cleaning up crime. However, all these are really fanciful examples and had little to do with the instant case. There is a theoretical problem that if the jury do not see the context, counsel will in future cases put fanciful submissions like this. I do not believe this is a serious problem if the imputations are precisely pleaded or the problems are identified early on in the case.

55 I should note that in Attorney-General of Ontario v Dieleman (1994) 117 DLR (4th) 449, 670-1 Adams J held that a sign “Dr X kills unborn babies” was not defamatory.

56 Mr Evatt’s fallback position is that the appeal should only be allowed under Part 51(23) of the Supreme Court Rules if there has been some substantial injustice caused by the failure to give a direction and this is not the case.

57 The rule provides that the Court of Appeal should not order a new trial on the ground of non-direction unless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.

58 The rationale for the rule flows from the traditional attitude of the law as well reflected by what Lord Loreburn LC said in Dakhyl v Labouchere [1908] 2 KB 325, 327 that:

“In all cases (a new trial) is a most deplorable result, not to be entertained upon any but the most solid grounds as the only means of addressing a clear miscarriage.”

59 A new trial ought not to be ordered if the Court is satisfied that the error did not really bear upon the result: Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297.

60 However, on the other hand, each party is entitled to have his or her case decided by a jury properly instructed on the relevant law; see eg Bayne v Parker [1976] 1 NSWLR 191, 201.

61 In my view when a defendant takes a pleading point of this nature at the very heel of the hunt there is a great deal to be said that even if the technical point is correct and is not upheld by the trial judge, a new trial should not be awarded to the defendant. The whole structure of the modern Supreme Court Rules is for just cheap and speedy trials. It may well be that a defendant has no duty to bring up such a point, but if it adopts the tactics of waiting until the last moment to spring its surprise then justice may not require a new trial. This is in accordance with the principle that a new trial is to be avoided if possible. A defendant who waits until the last moment has only itself to blame for the point not being properly considered at an early stage in the proceedings. Of course, then the plaintiff may have amended the pleading of the imputations so the defendant doubtless thought it was justified in taking the small risk of waiting until the last moment.

62 Mr Evatt said that there was an additional reason why, in this particular case, a new trial should be avoided. First, he said that it would be absurd for the jury merely to speculate on the ethical values associated with lies and perhaps be read passages from Augustine, Erasmus and Bonhoeffer. This would be the way in which the case would have to be conducted if there was a new trial on the only question as to whether an imputation that the plaintiffs had lied to members of the Club was or was not defamatory.

63 There is some validity in this submission but the same problem would have emerged at the first trial had the direction been made. Indeed, at the first trial the jury were evidently addressed about lies about Father Christmas and the like.

64 However, on balance, it seems to me that the lateness of taking the point, its relative triviality, and the difficulty in a new trial, means that the Court should not order a new trial in this case. Accordingly, in my view, the appropriate order is that the appeal should be dismissed.

65 In view of the reasons of Mason P and Wood CJ at CL, it is not necessary for me to consider what orders for costs should flow from these reasons.

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