Habib v Nationwide News Pty Ltd

[2007] NSWCA 91

Appeal Outcome: Special leave refused with costs by the High Court - 14 December 2007

New South Wales

Court of Appeal

CITATION:	HABIB v NATIONWIDE NEWS PTY LIMITED [2007] NSWCA 91 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19/03/07
JUDGMENT DATE:	18 April 2007
JUDGMENT OF:	Ipp JA at 1; Basten JA at 54; Handley AJA at 66
DECISION:	Appeal dismissed with costs
CATCHWORDS:	DEFAMATION – challenge to jury decision under s 7A(3) of the Defamation Act 1974 (NSW) that a newspaper article did not convey two imputations that were defamatory of the appellant – whether the jury’s answers were unreasonable – whether senior counsel for the respondent made submissions to the jury that were “misleading, impermissible and unjustifiable”, thereby giving the jury an opportunity to consider matters extraneous to the real issues in the trial – whether the trial judge misdirected the jury as to how they were to understand senior counsel’s submissions and the issue they were to determine
LEGISLATION CITED:	Defamation Act 1974 (NSW), s 7A(3) Supreme Court Act 1970 (NSW), ss 102, 108(3) Supreme Court Rules 1970 (NSW), Pt 51, r 23(1)(d)
CASES CITED:	Abraham v The Advocate Co Ltd [1946] 2 WWR 181 Australian Consolidated Press v Uren (1966) 117 CLR 185 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Fayn v Thompson Properties (Unreported, Supreme Court of New South Wales, Hunt J, 22 October 1991) Holford v The Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Jones v Dunkel (1959) 101 CLR 298 Jones v Skelton [1963] 1 WLR 1362 Lewis v Daily Telegraph Ltd [1964] AC 234 Manning v Bernard Manning & Co Pty Ltd (1960) 101 CLR 345 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Ohlstein v E & T Lloyd [2006] NSWCA 226 R v Ball (1961) 61 SR (NSW) 37 R v Ngo [2003] NSWCCA 82 Readers Digest Services Pty Ltd v Lamb (1981) 150 CLR 500 Schulmann v Peters [1961] ALR 209 Singleton v Ffrench (1986) 5 NSWLR 425
PARTIES:	Mamdouh Habib (Appellant) Nationwide News Pty. Limited (Respondent
FILE NUMBER(S):	CA 40360/2006
COUNSEL:	C A Evatt/W Nicholson (Appellant) G O'L Reynolds SC/A Leopold (Respondent)
SOLICITORS:	Peter Erman (Appellant) Blake Dawson Waldron (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 020350/05
LOWER COURT JUDICIAL OFFICER:	Kirby J
LOWER COURT DATE OF DECISION:	24/05/2006

CA40360/06
SC20350/05

Ipp JA
Basten JA
Handley AJA

18 April 2007

HABIB v NATIONWIDE NEWS PTY LIMITED

Headnote

Facts

This appeal concerns a jury decision made under s 7A(3) of the Defamation Act 1974 (NSW). The appellant, Mamdouh Habib, claimed damages for defamation. Mr Habib argued that an article published on 18 August 2005 in The Daily Telegraph , in its natural and ordinary meaning, conveyed to the ordinary reasonable reader the following two imputations (or imputations not substantially different therefrom), each of which were defamatory of Mr Habib:

1. That Mr Habib is attempting to deceive Centrelink by seeking a disability pension when he is not disabled.

2. That Mr Habib is the sort of person who will try to live off Australian taxpayers even though he is fit to work.

The jury found that both imputations were not conveyed in the article. As a consequence, it was unnecessary for the jury to consider whether what had been said was defamatory.

Mr Habib challenged this finding on appeal.

Issues for Determination by the New South Wales Court of Appeal

The issues for determination by the Court of Appeal were as follows:

(i) whether the jury’s answers to the two questions were unreasonable;

(ii) whether senior counsel for the respondent, Mr G O’L Reynolds, SC, made impermissible submissions to the jury; and

(iii) whether the trial judge, Kirby J, misdirected the jury.

HELD:

In relation to (i):

Per Ipp JA (Basten JA and Handley AJA agreeing)

(a) An ordinary reasonable reader could construe the article in two ways: (i) that the article was highly sceptical of Mr Habib’s claim that he suffered from clinical depression and that the ordinary reasonable reader would regard the article as suggesting that Mr Habib’s claim that he was clinically depressed as a false ground for his claim for a disability pension; or (ii) that Mr Habib’s claim that he was clinically depressed was genuine. This second view carried with it an understanding on the part of the ordinary reasonable reader that one could compete in the City to Surf fun run even although that person was disabled to such an extent that he or she could not work.
(b) The choice between these two views was a matter for the jury and it was open to the jury to find, as they did, that the ordinary reasonable reader would have understood the article in the non-defamatory sense.

(c) The jury’s task is to decide what it is that is within the general knowledge of the ordinary reasonable reader. In seeking to do this, jurors can draw upon their own knowledge and experience of human affairs.

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Lewis v Daily Telegraph Ltd [1964] AC 234; Jones v Skelton [1963] 1 WLR 1362, applied.

Per Basten JA
(d) This was not a case in which Mr Habib could argue that he was entitled, as a matter of law, to favourable answers to the questions put to the jury.
Supreme Court Act 1970 (NSW), s 108(3), referred to.
(e) The test of unreasonableness of a kind sufficient to set aside a jury verdict is of a high order. Moreover, courts should exercise restraint when considering whether to disturb jury verdicts on the basis of unreasonableness.
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, applied.
In relation to (ii):

Per Ipp JA (Basten JA agreeing)

(f) The submissions made by counsel for the respondent, when regard is had to them as a whole, would have been understood by the jury to be submissions as to the views that would be held by the ordinary reasonable reader. Thus, nothing counsel said would have justified a new trial being ordered.
(g) Even if counsel for the respondent made submissions that did not relate to the views held by the ordinary reasonable reader, it is only in an extreme case in which counsel’s address could be seen to have caused a miscarriage of justice.

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, applied.

Per Basten JA

(h) In any case, one must not place too much emphasis on the language used by counsel when addressing the jury and too little on the trial judge’s assessment of its likely effect on the jury. Here, whilst counsel for the respondent did use colourful language at times, it is unlikely that the jury “was necessarily impressed or distracted by advocacy”.

Per Handley AJA (in dissent)

(i) Counsel for the respondent, whilst referring to the views of the ordinary reasonable reader, asserted that a person suffering from clinical depression could still run in the City to Surf fun run and finish in the top 20 per cent. Though the ordinary reasonable reader is entitled to draw upon his or her own knowledge and experience of human affairs, what was asserted by counsel was a medical fact, was not based on evidence and could not have been within the general knowledge of the ordinary reasonable reader.
(j) The principle enunciated by Brennan J in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 79 does not apply in cases where counsel’s submissions are not supported by evidence and, potentially, are material misstatements of fact.

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, distinguished.

In relation to (iii)

Per Ipp JA (Basten JA agreeing)

(k) Before substituting its discretion for that of a trial judge, an appellate court must be of the clear view that the trial judge manifestly exercised his or her discretion incorrectly, not that the appellate court would have exercised its discretion differently.

R v Ball (1961) 61 SR (NSW) 37; R v Ngo (2003), referred to.
(l) Here, even if counsel for the respondent made submissions to the jury that were impermissible, the trial judge, Kirby J, did not make any directions as regards issues outlined in the appellant’s grounds of appeal that disadvantaged the appellant. Indeed, it was entirely within his Honour’s discretion to sum up and direct the jury as his Honour had done.
Per Basten JA

(m) Even if the trial judge misdirected, or did not direct, the jury in such a way as to demonstrate an error of law, such an error was not one that gave rise to a substantial wrong or miscarriage of justice.

Per Handley AJA (in dissent)
(n) The trial judge did not cure the material misstatements of fact made by counsel for the respondent when addressing the jury. The appellant was entitled to a stronger direction as regards Mr Reynolds’ statements as to whether a person who genuinely was clinically depressed could run successfully in the City to Surf fun run. Kirby J should have directed the jury that “they were not entitled to assume as a medical fact that this was possible, and they were not entitled to act on Mr Reynolds’ suggestion that this was a medical fact”.
(o) Even although misdirections or non-directions by trial judges on questions of fact or evidence do not necessarily call for a new trial being ordered, in this case the jury was required to decide a question that was not in fact the subject of evidence.

Manning v Bernard Manning & Co Pty Ltd (1960) 101 CLR 345; Holford v The Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497, distinguished.

Orders (by majority)

The appeal is dismissed with costs.

CA40360/06
SC20350/05

Ipp JA
Basten JA
Handley AJA

18 April 2007

HABIB v NATIONWIDE NEWS PTY LIMITED

Judgment

1 IPP JA:

The s 7A appeal

2 This is an appeal from a jury decision under s 7A(3) of the Defamation Act 1974 (NSW). The appellant claimed damages for defamation arising out of an article published by the respondent on 18 August 2005 in the Daily Telegraph.

3 At trial, the appellant alleged that the article, in its natural and ordinary meaning, carried two imputations that were defamatory of him. No innuendo was alleged. The jury, under s 7A, was required to determine whether the article (being the matter complained of) carried the two imputations and, if so, whether the imputations were defamatory.

4 The questions put to the jury were based on (and in effect incorporated) the two pleaded imputations. The questions were as follows:

“Has the plaintiff established that the article in ‘The Daily Telegraph’ of 18 August 2005 conveyed to the ordinary reasonable reader the following imputation or imputations not substantially different therefrom: -
(a) the plaintiff is attempting to deceive Centrelink
by seeking a disability pension when he is not
disabled YES/NO
(b) the plaintiff is the sort of person who will try to
live off Australian taxpayers even though he is
fit to work YES/NO ”


The jury answered both questions in the negative and the appellant appeals from their decision.

The matter complained of and the linking of the imputations

5 I shall set out the parts of the article that are most relevant to these proceedings. At trial, the article was divided into sections - largely paragraphs - and numbered for the sake of easy reference. I shall adopt that form of numbering.

“ 1. A Stretch But Habib Wants His Pension
…
3. Former Guantanamo Bay inmate Mamdouh Habib took part in Sunday’s City to Surf fun run despite the fact he is seeking a disability pension from Australian taxpayers.
4. Yesterday Habib was maintaining his hectic pace, addressing a meeting of radical university students, denouncing the US government as terrorists and condemning Australia’s hard line on suspects.
5. As our picture shows, the former terror suspect has a long way to go before convincing Centrelink that he is unfit to work.
6. Mr Habib who claims he suffers clinical depression, ran the City to Surf last weekend in a personal best of 82 minutes and 25 seconds.
7. And he showed no signs of fatigue yesterday when he lectured students at the University of Western Sydney … .
8. Mr Habib finished the City to Surf in the top 20%, beating 40,000 other runners.
…
11. In 1999, claiming depression, Mr Habib quit his job as a small business owner and began receiving $470.00 a fortnight.
12. His family continued to receive the payments while he was in Pakistan and during his subsequent imprisonment in Guantanamo Bay.
…”

6 The two pleaded imputations were linked. They were both based on the assertion that the appellant was dishonestly seeking a form of social welfare when he was not disabled and was fit to work. The article suggested only one possible ground for the appellant’s entitlement to a disability pension, namely, his claim that “he suffers clinical depression” (para 6) and “depression” (para 11).

7 The sting of the imputations as pleaded, according to the appellant, was that he was dishonestly seeking a disability pension on the ground of clinical depression when, as is demonstrated by the fact that he ran the City to Surf fun run, he was not disabled by the depression from working. As Mr Evatt, who together with Mr Nicholson appeared for the appellant, put it, “he is falsely claiming that he is disabled”. And, other than his depression (to which – on this view – reference was made in sceptical and ironic terms), “he has no disability”.

8 The respondent contended that the article did not convey any element of dishonesty. It submitted that the ordinary reader would understand the article to mean that a person suffering from clinical depression may be able to compete successfully in the City to Surf run, but – at the same time – may be disabled from working. It submitted that the ordinary reasonable reader would understand the appellant to be suffering, genuinely, from clinical depression.

9 Essentially, the arguments relating to each imputation were the same. Thus, should the appellant succeed in regard to the first imputation, he would necessarily succeed in regard to the second; and, should he fail in regard to the first, he would inevitably fail in regard to the second. Mr Evatt accepted this.

The notice of appeal

10 The appellant’s notice of appeal raises nine grounds of appeal that, in turn, incorporate several sub-grounds. These grounds fall into the following categories:

(a) The jury’s answers to the questions were unreasonable;

(b) Counsel for the respondent made impermissible submissions to the jury; and

(c) The trial judge, Kirby J, misdirected the jury in several respects.

Were the jury’s answers to the questions unreasonable?

11 Although the notice of appeal asserts that the jury’s decision was unreasonable, Mr Evatt did not make any oral submissions in support of this ground and invited the Court simply to look at the article.

12 The ordinary reasonable reader could understand the article in two different ways. One possible view is that the article is highly sceptical of the appellant’s claim that he suffers from clinical depression and the ordinary reasonable reader would understand the article to mean that the appellant’s claim that he is depressed is not bone fide, is a chimera, and is a false ground for his claim for a disability pension. The other possible view that might be conveyed to the ordinary reasonable reader is that the appellant’s claim to be clinically depressed is genuine and, for that reason, his claim for a disability pension does not reflect adversely upon his reputation. Inherent in this latter view is an understanding on the part of the ordinary reasonable reader that a person with clinical depression is capable of running the City to Surf fun run in a personal best time as the appellant purportedly did, but still be disabled from working.

13 Mr Evatt submitted that the meaning and effects of clinical depression were not matters within the knowledge of the ordinary reader. He submitted that it was not open to the jury to come to any view as to these matters. At one point, he went so far as to submit that, without expert evidence, a jury could not find that a person with clinical depression could run a relatively long distance as the appellant was reported to have done. Eventually, however, he withdrew the submission that expert evidence should have been led.

14 The appellant did not plead the imputations as a true innuendo; thus, the meaning upon which he relied to establish the imputations pleaded was the natural and ordinary meaning of the words published: Readers Digest Services Pty Ltd v Lamb (1981) 150 CLR 500 at 505. In that case (at 505 to 506), Brennan J (with whom the other members of the High Court agreed) said:

“Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees – Lord Selborne’s reasonable men … or Lord Atkin’s right thinking members of society generally … or Lord Reid’s ordinary men not avid for scandal … - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees …
It follows that the challenged evidence was not admissible to show the meaning which the hypothetical referees would place upon the words in the book. In Abraham v The Advocate Co Ltd [1946] 2 WWR 181 at 182 Lord Goddard, delivering the advice of the Judicial Committee, said that witnesses ‘cannot be asked what meaning they attached to the words because that is the very question the jury have to decide …’”

15 The choice between the two views that I have outlined in [12] was a matter for the jury. The way in which the appellant pleaded his case meant that the jury had to determine (without the aid of evidence) whether the ordinary reasonable reader would understand the words used in the article as defamatory in the sense pleaded by the appellant. It was immaterial whether the jury had a proper technical understanding of what is meant by “clinical depression”. The words in the matter complained of might or might not carry technical meanings, or abstruse meanings that would not ordinarily be known to the ordinary reasonable reader. But that did not affect the task of the jury, which was to decide what meaning ordinary reasonable readers would in fact attribute to the words in the matter complained of, drawing on their own knowledge and experience of human affairs: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301. The jury had to determine whether ordinary reasonable readers had any understanding of clinical depression and what that understanding was.

16 In my view it was open to the jury to come to either of the two views that I have described; in particular, it was open to them to find that the ordinary reasonable reader would have understood the article in the non-defamatory sense that I have set out.

17 Accordingly, I would not uphold the first ground of appeal.

Counsel’s submissions to the jury

18 The next ground of appeal is that Mr Reynolds SC (who appeared for the respondent at the trial, and who, with Mr Leopold, appeared for the respondent on appeal) made “misleading, impermissible and unjustifiable submissions” to the jury.

19 While Mr Evatt based this submission on a number of propositions put by Mr Reynolds, the crucial passage on which he relied was the following:

“Well, it is not that my views are important on this, it is yours. But what I am trying to say is that when this idea of clinical depression is mentioned in the context of this article, the ordinary reasonable reader would think; well, I would have thought it is very likely – very likely – that Mr Habib, and for that matter all of the other people who are at Guantanamo Bay, have a form of clinical depression.
Well, what about this idea of clinical depression on the one hand and running in the City of Surf in [sic] the other? What is the reaction of a ordinary reasonable person reading that? Is it; oh he ran in the City to Surf and he could not have clinical depression? Is that the reaction of a reasonable reader?
If you, in a discussion with a few people, and one person said; oh, Bill’s told me he is clinically depressed and going to see someone about it, if somebody said; that can’t be right, he ran in the City of Surf last week, would you think that an intelligent or reasonable observation, or would you think it was ridiculous? I would suggest it is obviously ridiculous.
The point is that Mr Habib obviously could be clinically depressed to quite a serious degree and still be able to run in the City to Surf, otherwise you would have to say anybody who is a good runner could not be clinically depressed. Members of the jury, that is just complete nonsense – it has to be. It’s absurd.
That is the sort of reaction that the reasonable reader would have reading this article, that is; sure, he is well enough, physically well enough, to be able to run in the City to Surf, but there has to be a high likelihood that he has clinical depression.
Now, I talked to you about the reaction of ordinary reasonable people to this idea of clinical depression and I am trying to be as short as I can, so I will not talk to you about that at length, but what I would ask you to do is to think, in your own mind, and possibly to talk between yourselves, about what is the reaction these days among reasonable men and women to this idea of clinical depression, because I suggest that in the last few years particularly, the reaction of most reasonable people in society is to realise that this is a serious issue, a serious problem, a serious medical condition, not something that people just laugh about behind their hand. Again, it is a matter for you. You are the judges, you have to think of the idea of an ordinary reasonable reader reading this article.”

20 The main complaint made by Mr Evatt was that Mr Reynolds had submitted, as a matter of truth, that the appellant “could be clinically depressed to quite a serious degree and still be able to run in the City to Surf”. Mr Evatt argued that the jury would understand Mr Reynolds to have stated that “people suffering clinical depression can still run in the City to Surf race but nonetheless be entitled to claim a disability pension because of the depression”.

21 Mr Evatt submitted that Mr Reynolds’ “statement of truth” to the jury was exacerbated by his observation, “you would have to say anybody who is a good runner could not be clinically depressed. Members of the jury, that is just complete nonsense – it has to be. It’s absurd”.

22 In my view, however, when regard is had to Mr Reynolds’ submissions as a whole, all the submissions of which the appellant complains would have been understood by the jury to be submissions as to the views that would be held by an ordinary reasonable reader. Throughout Mr Reynolds’ address, he emphasised that the question was: what would the ordinary reasonable reader have thought about the issues raised by the questions before the jury. In the passage that I have quoted, reference is made several times to the ordinary reasonable reader. In context, the jury would have understood that Mr Reynolds was arguing that this notional person would hold the views for which he was contending. That was the essential point of his submissions.

23 In any event, the trial judge explained with clarity to the jury what task they were duty-bound to undertake. He referred to the passage in the transcript that recorded Mr Reynolds’ submissions which were the main subject of the appellant’s complaint and said:

“I am concerned to direct your mind to the issue which you must address. The concern that I have is that you may have got the impression from what Mr Reynolds said that it is a medical fact that a person can be clinically depressed to a serious degree and still run in the City to Surf and record times of 82 minutes and so on. However, the only material before you which you have is the article. The article does not state in terms that, medically, a person could have clinical depression and could run in the City to Surf”.

24 Kirby J went on to emphasise that the test was “the impression of the ordinary reasonable reader to the words that appear in the article”. His Honour said, “That is the bedrock that you must keep coming back to. The view of the ordinary reasonable reader”.

25 His Honour reminded the jury that the ordinary reasonable reader, “in forming that impression can draw on their knowledge and experience of human affairs”. He told the jury they had to apply their minds “to the ordinary reasonable reader and their knowledge and experience of human affairs; matters within their knowledge and experience of human affairs”. These directions were strictly in accord with the authorities and no complaint can be made about them.

26 Mr Evatt submitted that the statement by the judge (in the passage I have quoted) that the article did not state “in terms” that, medically, a person could have clinical depression and could run in the City to Surf, watered down his Honour’s remarks and, indeed, reinforced the error that Mr Reynolds had made. I do not agree. His Honour merely stated, accurately, that the article did not contain any reference to whether there would be any impediment, from a medical point of view, for a person with clinical depression to run in the City to Surf. His Honour’s directions as a whole emphasised to the jury that they were to determine the questions before them by reference to the article alone and to what an ordinary reasonable reader would regard the article as conveying.

27 In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, Brennan J (at 79) said:

“In the context of a strongly contested trial, sensitivity about the submissions of counsel in the course of a jury address should not be too sharpened. It must be an extreme case, as in AustralianConsolidated Press v Uren (1966) 117 CLR 185, in which counsel’s address can be seen to have caused a miscarriage of justice.”

28 Even if I were to be wrong in considering that Mr Reynolds’ submissions at trial concerned the views of the ordinary reasonable reader, in the light of the directions of the trial judge and the approach indicated in Carson v John Fairfax & Sons Ltd the appellant’s arguments that those submissions should lead to a retrial cannot be sustained.

The trial judge’s directions to the jury

29 The appellant has adopted a scattergun approach in the notice of appeal when dealing with the directions Kirby J gave to the jury. He makes no less than 15 complaints about these directions. Some of these complaints are unarguable, others are barely so. I have previously expressed a view as to the merits of such an approach and what it suggests about the merits of a party’s case. In Ohlstein v E & T Lloyd [2006] NSWCA 226, I said at [60] to [61]:

“In The Cherry Orchard Chekhov wrote:
“When a lot of remedies are suggested for a disease, that means it can’t be cured.”

The message underlying Chekhov’s observation is applicable to the conduct of litigation.
An extravagantly excessive number of causes of action, or grounds of appeal, or particulars of negligence, are often a sign of serious problems with the health of the case being advanced. At the very least, they demonstrate a lack of appropriate consideration in formulating the issues and are obstacles in the path of justice. Apart from causing unnecessary delay and costs, the scattergun approach obscures the true issues, camouflages the pleader’s best points, and unnecessarily complicates the task of the judge.”

30 The grounds of appeal concerning Kirby J’s directions are as follows:

(a) “His Honour failed to give clear directions to the jury that the address of [Mr Reynolds] to the extent it related to the appellant having clinical depression … should be disregarded”.

(b) His Honour failed to direct the jury that “it was not open to an ordinary reasonable reader to find a person can be clinically depressed to a serious degree and still run in the City to Surf fun run”.

(c) His Honour failed to direct the jury that “it was not open to the ordinary reasonable reader to find the elements of the respondent’s case”. These “elements” were said to be as follows:

(i) The appellant “could be clinically depressed to a quite serious degree and still be able to run”.

(ii) The appellant has clinical depression.

(iii) The appellant has serious clinical depression.

(iv) “Clinical depression is a psychological or psychiatric overlay”.

(v) “Those who work in hospitals recognise clinical depression as being a most serious unresolved medical problem”.

(v) “The appellant is fit physically and able to run but disabled psychiatrically”.

(vi) “The appellant is unfit to work”.

(vii) “The appellant was clinically depressed by reason of his experience and treatment in Guantanamo Bay”.

(viii) The appellant’s “clinical depression would enable him to apply for a pension”.

(ix) “Centrelink required a medical report about the Plaintiff’s clinical depression”.


(d) His Honour erred “in directing the jury that the ordinary reasonable reader can draw upon his or her own knowledge and experience of human affairs including knowledge, if any, of the phenomena of clinical depression”.

(e) His Honour erred “in directing the jury that the submission made on behalf of the appellant to the effect that persons would be more likely to believe of a person with a bad reputation what is said about them [sic], had nothing to do with the issues”.

(f) His Honour’s summing up and directions “disadvantaged the appellant because his Honour instructed the jury at length as to the essential elements of the respondent’s case that the appellant could be clinically depressed to quite a serious degree but still be able to run in the City to Surf yet failed to refer to or summarise any of the submissions made on behalf of the appellant”.

31 Before discussing these many grounds, it would be appropriate to make some preliminary observations. The authorities make it plain that “[b]efore substituting its own discretion for his, the appellate court must be clearly of the view, not that it would have exercised its discretion differently, but that the trial judge manifestly exercised his wrongly”: R v Ball (1961) 61 SR (NSW) 37 at 41 to 42 per Brereton J (applied in R v Ngo [2003] NSWCCA 82 at [49]. The point is, as Windeyer J said in Jones v Dunkel (1959) 101 CLR 298 at 314:

“So much depends upon what counsel said in their addresses; upon incidents in the course of the trial, the significance of which at the time, and their apparent impression upon the jury, the transcript cannot reveal. So much, too, depends upon the judge’s view of what guidance the particular jury should have in the particular case; upon how far he may think it unnecessary to go over matters on which counsel addressed; or, on the other hand, on how far he may think he should bring into sharper focus matters which counsel blurred. And much depends on how far he may think it desirable, after advocacy is spent, to redress the balance”.

Windeyer J’s remarks were applied by the majority of the High Court in Schulmann v Peters [1961] ALR 209 at 213 to 214 and the same approach was laid down by Menzies J at 215.

32 It follows that proper respect must be paid to the trial judge’s discretion in determining what matters need to be raised before the jury and, in particular, what comments need to be made about counsels’ addresses.

33 I would add that the remarks of McHugh JA (with whom Samuels JA agreed) in Singleton v Ffrench (1986) 5 NSWLR 425 at 440 are pertinent to many of the appellant’s complaints. His Honour said:

“If a party is to rely as a ground of appeal on a misdirection in a summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give”.

34 I turn now to the specific complaints the appellant makes.

35 I have above dealt with the complaints set out in [30](a) above when expressing the opinion that Kirby J’s directions as to any suggestion that Mr Reynolds had told the jury that the appellant in fact was clinically depressed were appropriate. I would add that, practically speaking, the difference between the appellant claiming to have clinical depression (which the article reported and the jury were entitled to take into account), and the appellant in fact having clinical depression, does not seem to me to be of particular significance. Finally, on this issue, Mr Evatt did not at trial specify with precision what direction, in his submission, the judge should have given.

36 I have above dealt with the complaints set out in [30](b) above when expressing the opinion that it was indeed open to an ordinary reasonable reader to believe that a person can be clinically depressed to a serious degree and still run in the City to Surf fun run.

37 I have also dealt with [30](d) when expressing the opinion that the task of the jury was to determine (without the aid of evidence) whether the ordinary reasonable reader would understand the words used in the article as being defamatory in the sense pleaded by the appellant.

38 I turn now to [30](c). At trial, in the absence of the jury, Mr Evatt submitted to the judge:

“[Mr Reynolds] was not entitled to submit that the plaintiff could be still clinically depressed to a quite serious degree and still be able to run; that the plaintiff has got clinical depression; that clinical depression is a psychological overlay; that those who work in hospitals recognise clinical depression as being a most serious unresolved medical problem; that clinical depression is a psychiatric illness; that the plaintiff has a quite serious form of clinical depression; that he can reason; he is physically okay, but he is disabled, psychiatrically. All of these are submissions put to the jury by my learned friend which your Honour has not corrected by direction”.

Mr Evatt proceeded to submit:

“My friend submitted to the jury that Centrelink says they need a medical report about the plaintiff’s clinical depression – that was one of his submissions – that he was unfit to work, clinically depressed by reason of his experience in Guantanamo Bay; he has clinical depression and is therefore disabled; his clinical depression is traumatic to such a degree that it makes it difficult for him to work.”
Your Honour did not correct any of these submissions nor did your Honour give a direction that there was no support for those submissions in the article and they could not be inferred by an ordinary reasonable reader.”

39 The grounds set out in [30](c) have been taken from these submissions. They can all be dealt with compendiously, in a general way, although I shall, in addition, refer specifically to some of them.

40 Generally, the [30](c) grounds are premised on the proposition that the statements said to have been made by Mr Reynolds were made as statements of truth, whereas I have concluded that, to the extent that Mr Reynolds made any of the statements in question, they were subject to the qualification that they were views to which an ordinary reasonable reader would have come. Secondly, if Mr Reynolds did go further than that, the trial judge’s directions quite properly corrected the position and gave the jury clear instructions as to the task they were in law required to undertake. I have dealt with this point previously. Thirdly, it is incorrect to describe the matters set out in [30](c) as “elements of the respondent’s case”. They were merely arguments advanced in support of the proposition that the imputations pleaded were not defamatory.

41 The majority of the appellant’s complaints, set out in the [30](c) grounds, concern directions the appellant says the judge should have given concerning clinical depression. The appellant contends, for example, that his Honour should have directed the jury that it was not open to the ordinary reasonable reader to find that the appellant “could be clinically depressed to a quite serious degree and still be able to run”, that the appellant has serious clinical depression, that clinical depression “is a psychological or psychiatric overlay” and that the appellant “is fit physically and able to run but disabled psychiatrically”. These, or some of them, were matters that Mr Reynolds had submitted to the jury should be taken into account.

42 I have expressed the view that the jury had to determine, without the aid of evidence, whether ordinary reasonable readers would understand the words used in the article, including the references to clinical depression, as conveying the meanings pleaded by the appellant. I have expressed the view that the jury had to determine, amongst other things, whether ordinary reasonable readers had any understanding of clinical depression and what that understanding was. That being so, it was open to Mr Reynolds to make the submissions he did as to the ordinary reader’s understanding of the effects of clinical depression that, according to the article, the appellant claimed to have, and it was open to the jury to accept those submissions. Accordingly, I would not uphold the appellant’s arguments in this regard.

43 The references to the appellant being unfit for work but being fit physically were matters that an ordinary reasonable jury could properly understand from the import of the article itself.

44 Mr Reynolds’ reference to persons working in hospitals who “recognise clinical depression as being a most serious unresolved medical problem” was a reference to a notionally extreme position made in the course of arguing that the jury were required to take a balanced position in determining the views of an ordinary reasonable reader. The reference complained of had no material significance.

45 Mr Reynolds’ submissions concerning the appellant being clinically depressed by reason of his experience and treatment in Guantanamo Bay were based on references to material in the article and in the course of arguing that an ordinary reasonable reader might regard the appellant as being seriously depressed. There was nothing wrong or improper in this submission.

46 In my view, the grounds referred to in [30](c) are without substance.

47 I turn now to the ground referred to in [30](e). In the course of his directions to the jury, the trial judge said:

“I think Mr Evatt in the course of his address did raise one issue which was, with great respect to him, frankly irrelevant, and which you should put to one side. I think he said that a person would be more likely to believe of [sic] a person with a bad reputation what is said about them. Now that has nothing to do with the issues which you are confronted with. You are confronted with the two questions, which are the questions 1 and 2, which are concerned with what meanings arise; and secondly, whether or not those meanings are defamatory. They are the only issues that you are concerned with. So you should put out of your mind any suggestion along the lines that was put.”

48 The “suggestion” to which his Honour was referring was a submission by Mr Evatt in the following terms:

“Even a person with a damaged poor reputation is entitled to protect such reputation that he has … The fact is the worst [sic] a man’s reputation, … the more ready are people to believe defamatory imputations about him. If you have got a bad name, a bad reputation, then people reading something else about you are more likely to believe it.
Defamatory statements could, therefore, make a person’s bad reputation even worse. In theory, Ned Kelly could bring a defamation action”.

49 Mr Evatt’s submissions went to damages. The question of damages was not an issue before the jury. The judge’s directions to the jury in regard to this matter were, accordingly, entirely correct.

50 The ground referred to in [30](f) is based on the fact that the trial judge instructed the jury at length as to the issues before them, and the relevant law, but did not summarise the arguments advanced by the appellant or by the respondent. His Honour explained this to the jury, saying:

“Ordinarily in these summings up where the case goes on a little longer I do give a potted version of the addresses of counsel. However, this case only went for the day yesterday, and you were obviously paying attention to counsels’ addresses, and I have no doubt that they are fresh in your minds, and it seems unnecessary for me, therefore, to remind you of what was said beyond this, that you should consider the various arguments by counsel and give them such weight as you believe they deserve”.

51 It was entirely within his Honour’s discretion to adopt the approach that he did. His summing up and directions did not thereby disadvantage the appellant.

52 The final ground of appeal is “[i]n coming to their decision the jury must have taken extraneous facts into account”. Mr Evatt made no oral submissions in support of this ground and it is without substance.

53 I would dismiss the appeal with costs.

54 BASTEN JA: The key passages in the article complained of are set out by Ipp JA at [5] above. They need not be repeated here. Similarly, his Honour has set out the pleaded imputations at [4] and, as explained at [6] and [9], the imputations were treated by the Appellant as each being to similar effect and as involving an element of dishonesty.

55 At [12] his Honour sets out the alternative views, as they were presented in argument. The first identified the article as revealing a “highly sceptical” approach to the applicant’s claim for a pension and might also have gained support from what was described as “his hectic pace” in addressing meetings of university students and the fact that he “showed no signs of fatigue”, when doing so: article, at pars 4 and 7. Indeed, it was said that he had “become a regular on the speaking circuit”: par 17. The inference that his claim was unjustified might also have arisen in part from the statements that he had previously claimed depression and received a pension, which resulted in overpayments (par 10), apparently because his family continued to receive the payments whilst he was in Pakistan and in Guantanamo Bay (par 12). Nevertheless, his case was presented primarily by reference to the inference that his successful City to Surf run was inconsistent with an inability to work, albeit the latter was based on clinical depression. The alternative view was said to depend on the understanding that a person with clinical depression is nevertheless capable of a competitive long-distance run.

56 It may be that the derogatory imputation is that which is more likely to be drawn, bearing in mind the possibility that -

“[T]he layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.”

See Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277 quoted by McHugh J in John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [23].

57 At the heart of the Appellant’s argument with respect to the imputations are two straightforward propositions. The first is that the ordinary reader would consider that a person who is fit enough to run competitively cannot suffer from depression so as to be unfit for work. Secondly, a claim to suffer from depression, so as to be unfit for work, in such circumstances, must be knowingly false. This, it is said, is the message which was conveyed to the ordinary reader. The Respondent’s contention took issue with the first proposition and asserted that it was well-understood that clinical depression, of a kind which might render someone unfit for work, was not inconsistent with strenuous physical exercise. The ordinary reader would, counsel told the jury, understand that to be a known fact. If counsel were wrong to assert that as a matter of fact, then, the Appellant argues, the trial judge was required to take appropriate steps to correct the misstatement. It was for that reason that the Appellant stressed in argument before this Court the precise terms of counsel’s misstatement and the apparent inadequacy of the direction given to the jury in an attempt to correct the error.

58 When the respective approaches of the parties are presented in these stark terms, the fact that the imputations were rejected may, as Handley AJA notes, appear surprising: at [67]. One is then inclined to give more careful consideration to possible errors in the way that the defendant’s case was presented to the jury and to view more critically the possible inadequacy of the trial judge’s directions.

59 However, and despite the manner in which the respective cases were presented, it is possible that the jury took a more nuanced approach to their task. Thus, the jury could have read the article, not as suggesting that the plaintiff was not depressed, but as suggesting that he was not entitled to a pension even if he were depressed. Thus, although the article suggested that Centrelink might take some convincing as to his entitlement, that was not because his claim to be depressed was false, but because his state of depression did not (and should not) justify the payment of a pension. On that approach, ‘clinical depression’ might allow for different levels of disability. Some people who were clinically depressed might be unfit for work, others might not.

60 Further, the jury might have rejected the view that the ordinary reader would infer that the claim was dishonest, merely because, as the article suggested, a pension entitlement should be rejected. An unjustified or rejected claim is not necessarily a false or fraudulent claim. It may be colloquially described as a “try on” but so long as the second imputation was understood to invoke an element of dishonesty, (no doubt to justify a worth-while award of damages) the jury may well have accepted that the ordinary reader would distinguish a failed claim from a false claim and would not read the suggestion of falsity into the paragraphs complained of.

61 One circumstance which the ordinary reader might well have taken into account was that none of the Appellant’s activities, as reported, were undertaken secretly, or even privately. Speaking at public meetings and taking part in a ‘fun run’, with thousands of other participants, were highly visible activities. This was not a case in which a claimant for financial assistance was privately engaging in activities which were inconsistent with a claim based on disability.

62 The right of appeal in this case is conferred by s 102 of the Supreme Court Act 1970 (NSW). That provision does not identify the appropriate grounds of appeal, but Part 51, r 23 of the Supreme Court Rules 1970 provides that the Court shall not order a new trial unless it appears that, relevantly, there has been a misdirection or non-direction and that “some substantial wrong or miscarriage has been thereby occasioned.”

63 This was not a case in which the plaintiff could argue that he was entitled, as a matter of law, to favourable answers to the questions put to the jury: c.f. Supreme Court Act, s 108(3). Accordingly, even if successful he would only obtain a new trial. In those circumstances, Part 51, r 23 governs his entitlement to such an order. Although in terms neither s 102, nor r 23 refers to intervention on the basis that the verdict of the jury was “one that no reasonable jury could reach”, it must be accepted that the general law principles continue to apply: see r 23(1)(d) and John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [17] (McHugh J), [92] (Kirby J), and [184]-[185] (Callinan J, with whom Gleeson CJ agreed). The test of unreasonableness, of a kind sufficient to set aside a jury verdict, is of a high order: Rivkin at [119] (Kirby J) and [185] (Callinan J, with whom Gleeson CJ and Heydon J agreed): see also at [18]-[20] (McHugh J perhaps expressing himself more strongly than other members of the Court). Furthermore, it is equally well-established that this Court must generally adopt a restrained approach to intervention in relation to verdicts given by juries: see Rivkin at [2]-[7] (Gleeson CJ), [17] (McHugh J), [109]-[113] (Kirby J), [184] (Callinan J), c.f. at [224] (Heydon J).

64 In the present case, there is nothing similar to the circumstances of Rivkin in which at least one of the answers given by the jury was “like the thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before”: at [5] (Gleeson CJ). Although, unlike Rivkin, the appeal was not run in the present matter purely by reliance on the unreasonableness of the answers given by the jury, it is not easy, nor appropriate, to dissect the grounds of appeal with too much refinement. If the answers given by the jury do not seem unreasonable, it will be less easy for the plaintiff to establish a substantial wrong or miscarriage. On one available approach (explained above), the misstatement made by counsel for the defendant may have been largely immaterial. Furthermore, this Court should not readily differ from the trial judge’s assessment of what is reasonable and appropriate by way of directions, in particular circumstances. As Handley AJA convincingly demonstrates, the trial judge expressed himself far more forcefully in his discussion with counsel, than he did in seeking to ameliorate the effects of counsel’s misstatement, in directing the jury. On the other hand, it should not be assumed that the view expressed in argument was a final view as to the seriousness of the error identified in counsel’s address. Rather, it should be assumed that, on reflection, his Honour took a different approach deliberately, having assessed the error in the circumstances of the case.

65 There are no doubt benefits to be derived from having available to an appellate court a full transcript of counsels’ addresses to the jury and argument in relation to appropriate directions. One benefit is that the Court obtains a better understanding as to precisely what direction was sought. However, as with evidence, care must be taken not to give too much weight to the language which appears on the paper and too little to the trial judge’s assessment of its likely effect on members of the jury. In this case, a reading of the transcript suggests that both counsel indulged in florid language from time to time. I would not assume that the jury was necessarily impressed or distracted by advocacy, nor that particular passages, taken out of context, had the significance that is now sought to be attached to them. There was no actual misdirection or non-direction by the trial judge; nor am I persuaded that there was any inadequacy in the direction given with respect to the matters raised by the grounds of appeal, sufficient to demonstrate error of law. Even if there were, it was not an error which gave rise to a substantial wrong or miscarriage. Accordingly, in my view the orders proposed by Ipp JA should be made, so that the appeal is dismissed with costs.

66 HANDLEY AJA: In this appeal I have had the benefit of reading the judgment of Ipp JA in draft and gratefully adopt his summary of the facts and the proceedings.

67 No one would have been surprised if the jury had found that the imputations pleaded by the plaintiff were conveyed by the article and were defamatory. It is indeed surprising that they were rejected.

68 The article juxtaposed the fact that the appellant claimed a disability pension based on his clinical depression with the fact that he had run well in the City to Surf and finished in the first 20 percent. The plaintiff’s case was that the ordinary reasonable reader would think that the plaintiff’s success in the race (the fact) was inconsistent with a genuine claim to the pension (the claim).

69 The defendant’s case was that the ordinary reasonable reader would think that the fact and claim were consistent. The article did not say this and the headline “A stretch but Habib wants his pension” would normally be read as insinuating otherwise.

70 There was no evidence, nor could there be (Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500, 506) of the general knowledge of the ordinary reasonable reader. The jury bring their general knowledge of human affairs with them, and rely on their own experience when deciding what is within the general knowledge of the ordinary reasonable reader (general knowledge).

71 This principle was affirmed in Lewis v Daily Telegraph Ltd [1964] AC 234, 258, 265, 273, 281; and Jones v Skelton [1963] 1 WLR 1362 PC. In the latter case Lord Morris of Borth-y-Gest said at 1370-1:

“The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd … The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense” (emphasis supplied).

72 This passage deals with the position where the plaintiff relies on general knowledge. In Lewis v Daily Telegraph Ltd (above) Lord Devlin referred to this situation when he said (281):

“The pleader must ask himself whether he contemplates that evidence will be called in support of the allegation: if he does, it is a legal innuendo and if he does not, it is not. If he is in doubt, he can plead in two paragraphs; and then if at the trial his opponent agrees or the judge rules that it is a matter of general knowledge, the legal innuendo can be dropped.”

See also the unreported judgment of Hunt J in Fayn v Thompson Properties (22 October 1991) p 2 cited by the trial judge (red 121) who said:

“It is for the trial judge to determine whether any particular facts or circumstances are within the general knowledge of the community.”

73 The Judge in ruling whether a matter is one of general knowledge so that a true innuendo is not necessary must apply his or her own understanding of what is general knowledge. Although this is normally left to the jury, there must be limits as Lord Morris of Borth-y-Gest, Lord Devlin and Hunt J recognised.

74 The parties cannot call evidence to establish the limits of general knowledge. However evidence may be admissible on a capacity hearing by the judge to establish that a fact on which a plaintiff relies cannot be part of general knowledge because it is a scientific or medical impossibility or improbability.

75 Here it was the defendant who relied on general knowledge to defeat the imputations pleaded by the plaintiff. A defendant need not plead the meaning or meanings on which it relies nor disclose in advance that it is relying on some fact being within general knowledge. However the trial judge must have some capacity to exercise control over extravagant claims that facts are within general knowledge.

76 In a clear case the jury could be discharged. In other cases they can be given strong and emphatic directions. The trial judge could ask counsel appearing for the defendant (who is going to address last) whether he or she intends to rely upon some fact being within general knowledge. If necessary the judge could require the matter to be argued in the absence of the jury before ruling on whether counsel can refer to the fact in his address.

77 Mr Reynolds SC made a number of factual assertions to the jury which were only permissible and relevant if they formed part of general knowledge. He said (red 54) “those who work in the hospitals regard this [clinical depression] as one of the most serious important unresolved medical problems in our society”.

78 At red 58 he said:

“If you, in a discussion with a few people, and one person said; oh Bill’s told me he is clinically depressed and going to see someone about it, if somebody said; that can’t be right, he ran in the City to Surf last week, would you think that an intelligent or reasonable observation, or would you think it was ridiculous? I would suggest it is obviously ridiculous .

The point is that Mr Habib obviously could be clinically depressed to quite a serious degree and still be able to run in the City to Surf , otherwise you would have to say anybody who is a good runner could not be clinically depressed. Members of the jury, that is just complete nonsense – it has to be. It’s absurd .

That is the sort of reaction that the reasonable reader would have reading this article, that is; sure, he is well enough, physically well enough, to be able to run the City to Surf, but there has to be a high likelihood that he has clinical depression ” (emphasis supplied).

79 At red 59-60 he said:

“That is conducive to the ordinary reasonable reader thinking about Mr Habib and the likelihood of him of having depression and thinking; well, the likelihood of that I would have thought of that is quite high, and even if he is not tortured, it is likely that anybody who had to spend time in Guantanamo Bay would have what psychologists or psychiatrists call some psychological overlay because of that” (emphasis supplied).

80 At red 62 he said:

“I have already gone through with you all of the material, at least briefly, that would suggest to the ordinary reasonable reader that The Telegraph is saying there is a high likelihood that his man has a form of clinical depression. But his problem is this, that physically he is okay, he can run, as a lot of people with, one imagines, depressive illnesses can . He can do exercise. So he is able-bodied. His disability is a psychiatric one” (emphasis supplied).

81 While Mr Reynolds’ address included frequent references to the views of the ordinary reasonable reader, in the passages quoted he asserts as a medical fact that a person suffering from clinical depression that prevented him working for a living could run in the City to Surf and finish in the first 20 percent.

82 I very much doubt if this is within general knowledge. It is certainly not within my general knowledge after sitting in countless personal injury appeals involving claims of clinical depression. During argument in the absence of the jury after Mr Reynolds had completed his address the trial judge said (red 72):

“… you have said that there is no problem with someone who has got clinical depression running in the City to Surf, and an ordinary reasonable reader would recognise that. I must say, I don’t know that , and I don’t think an ordinary reasonable reader would know that … I think you purported to give expert evidence from the Bar Table about what was within the capacity of a person who has clinical depression” (emphasis supplied).

83 Mr Evatt did not apply for a discharge but sought directions that the jury were not entitled to assume that the plaintiff suffers from clinical depression and that there was no evidence that a person suffering from clinical depression could run in such a race (red 71). During argument the following day the Judge said to Mr Reynolds (red 83-4):

“… I think the way in which you put it is really stating a medical, or what could be, a medical fact … I think frankly, having looked at the authorities, it was incumbent for you to have raised these issues with me before you dealt with them in the way you did, and you not having done that, I think in fairness to the plaintiff I am obliged to deal with the issue and try and focus the jury’s attention on the issue as I see it … I do feel that your discussion, as recorded … did go beyond a legitimate limit of an ordinary reasonable reader” (emphasis supplied).

84 In his summing up (red 112) the Judge quoted the passage from Mr Reynolds’ address at red 58 (para [13]) and continued:

“I am concerned to direct your mind to the issue which you must address. The concern that I have is that you may have got the impression from what Mr Reynolds said that it is a medical fact that a person can be clinically depressed to a serious degree and still run in the City to Surf and record times of 82 minutes and so on. However, the only material before you which you have is the article. The article does not state in terms that, medically, a person could have clinical depression and could run in the City to Surf” (emphasis supplied)

85 Subsequently (red 113) the Judge told the jury that the ordinary reasonable reader can draw upon their own knowledge and experience of human affairs. In my judgment these directions were not nearly strong enough to cure the prejudice created by the assertions of fact in Mr Reynolds’ address, to which he lent his authority as Senior Counsel, which were not based on evidence, and were not manifestly within general knowledge.

86 The jury should have been told that there was no evidence that a person who was genuinely clinically depressed could successfully run in the City to Surf, that they were not entitled to assume as a medical fact that this was possible, and they were not entitled to act on Mr Reynolds’ suggestion that this was a medical fact. Their task was to consider whether the ordinary reasonable reader would think this was possible and they should consider whether the article was really saying that the fact was consistent with the claim.

87 I fully accept the principle stated by Brennan J in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 79 quoted by Ipp JA. However in my opinion it is not relevant where counsel makes statements to the jury which are not supported by evidence, and suggests that something is a medical fact which the trial Judge and a Judge of Appeal do not know is a medical fact. Particularly is this so where he tells them that any other view would be absurd, purporting, as the Judge said (para [17]), to give expert evidence from the Bar Table. Material misstatements of fact in an address to the jury are serious and must be corrected. In some cases they may justify allowing counsel for the plaintiff a right of reply (John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, 1703 per Callinan J).

88 After the summing up Mr Evatt applied for further directions. He said (red 118-9):

“I would ask your Honour to direct the jury that my learned friend was not entitled to submit that the plaintiff could be clinically depressed to a quite serious degree and still be able to run … Your Honour did not correct any of those submissions nor did your Honour give a direction that there was no support for those submissions in the article and they could not be inferred by an ordinary reasonable reader.”

89 Mr Evatt sought other redirections (red 119) which the Judge refused to give. His decision on these other matters was within his discretion and this Court should not interfere. However I am troubled about the adequacy of the directions given at red 112, 113 (paras [19], [20]). These were not nearly as strong as the Judge’s statements during argument in the absence of the jury. The plaintiff was entitled to a stronger direction of the kind referred to in para [21].

90 The Judge had told the jury that the article did not state “in terms” that medically a person could have clinical depression and run in the City to Surf but in my judgment this was not sufficient. What is not stated in terms may often be conveyed because it is implied or inferred from what is said. The Judge’s direction may have encouraged the jury to think that this was implied in the article or could be inferred from it. The ordinary reasonable reader could only do this if it was general knowledge that the claim was consistent with the fact.

91 The plaintiff was not entitled to a direction that the ordinary reasonable reader could not infer that he could be clinically depressed and still run in the City to Surf. He was entitled to a direction that the jury had to consider what the ordinary reasonable reader knew about clinical depression and whether in the light of that knowledge, if any, the reader would think this was possible. They should then have been directed that if they found that the effects of clinical depression were not within general knowledge they should disregard the suggestion that the ordinary reasonable reader would think that the claim was consistent with the fact.

92 Misdirections or nondirections on questions of fact or the evidence do not necessarily warrant an order for a new trial. As the High Court said in Manning v Bernard Manning & Co Pty Ltd (1960) 101 CLR 345, 351:

“… speaking generally, the court will not interfere where the whole question is one of the treatment by the judge, still less by counsel, of matters of fact.”

93 In Holford v The Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497, in a judgment that has frequently been approved by the High Court, Cussen J said at 520 (see also 527):

“It would not even be enough in most cases that the Judge had made some mistake, or was under some misapprehension with reference to the facts, strictly so called, as it may be assumed that in most cases the jury, who heard the evidence, and are capable of forming their own opinion as to the facts, will be guided by the evidence given.”

94 This is not such a case. Here the jury had to decide a matter which was not the subject of evidence given before them. They had to decide whether the effects of clinical depression were general knowledge. Unless they concluded that it was they could not find that the ordinary reasonable reader would read the article with the understanding that the fact and the claim were consistent.

95 The Judge’s directions did not focus the jury’s attention on this issue. Acting reasonably they could not accept Mr Reynolds’ argument unless they first found that the effects of clinical depression were within general knowledge. If the jury could not find that this was a matter of general knowledge they could be expected, acting reasonably, to find that the plaintiff’s imputations were conveyed.

96 The defendant was only able to suggest one reason why the plaintiff’s imputations had not been conveyed. In the words of the High Court in Manning v Bernard Manning & Co Pty Ltd (above) at 351 this was a case where the summing up was “likely to distract the jury’s attention from the real issue or issues on which liability depends”.

97 In the passage quoted (para [24]) Mr Evatt asked for precise redirections which met the standard referred to by McHugh JA in Singleton v Ffrench (1986) 5 NSWLR 425, 440, although he was not entitled to an unqualified direction that the ordinary reasonable reader could not infer that the fact and claim were consistent.

98 The request for redirections in these terms was justified in substance and was sufficiently precise although in redirecting the Judge would have to add a qualification.

99 Since writing the above I have had the benefit of reading the judgment of Basten JA in draft. While the Court does exercise restraint when considering whether to disturb the verdict of a jury on the ground that it is unreasonable, this presupposed that the jury has been properly directed after a trial according to law.

100 The principle of restraint does not apply if there has been a material misdirection or non-direction. The question then is whether there has been a substantial wrong or miscarriage with SCR Pt 51 r 23. In this case there was.

101 In my judgment the plaintiff is entitled to a new trial.

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23/04/2007 - Lower Court File Number on the coversheet corrected. - Paragraph(s) NA