John Fairfax Publications Pty Ltd & Anor v Gacic & Ors
[2007] HCATrans 79
•22 February 2007
[2007] HCATrans 079
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S480 of 2006
B e t w e e n -
JOHN FAIRFAX PUBLICATIONS PTY LTD
First Appellant
MATTHEW EVANS
Second Appellant
and
ALEKSANDRA GACIC
First Respondent
LJILJANA GACIC
Second Respondent
BRANISLAV CIRIC
Third Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 22 FEBRUARY 2007, AT 10.19 AM
Copyright in the High Court of Australia
__________________
MR T.D.BLACKBURN, SC: May it please the Court, I appear with my learned friend, MR D.R. SIBTAIN, for the appellants. (instructed by Freehills)
MR G. O’L REYNOLDS, SC: May it please the Court, in this matter I appear for the respondents with my learned friends, MR C.A. EVATT and MR P. KULEVSKI. (instructed by Beazley Singleton)
GLEESON CJ: Yes, Mr Blackburn.
MR BLACKBURN: May it please the Court. The principal issue in this appeal is whether the respondents were entitled to the entry of a verdict in their favour by the Court of Appeal as a matter of law in circumstances where the Court of Appeal had determined to set aside the verdicts delivered by the jury as being verdicts which no reasonable jury, properly instructed, could have given.
GUMMOW J: Where do we see the order that the Court of Appeal made? Is it page 187?
MR BLACKBURN: Yes, if the Court pleases.
GUMMOW J: What was going to happen?
MR BLACKBURN: What was going to happen was that – it is a little bit complex, your Honour, but what was going to happen was that imputations (a) and (c) ‑ ‑ ‑
GUMMOW J: I know, but when were the respondents going to get their hands on some money and how?
MR BLACKBURN: The case proceeded this way. There was the customary ‑ ‑ ‑
GUMMOW J: Under these orders what was going to happen?
MR BLACKBURN: The respondents were not entitled to any money under these orders because all that had happened was the preliminary hearing to decide whether the ‑ ‑ ‑
GUMMOW J: What do the orders provide as to what was to happen next?
MR BLACKBURN: That there be a retrial in relation to imputation (d) and that there be verdicts for the appellants in respect of imputations (a) and (c). That still did not entitle the respondents to any money because ‑ ‑ ‑
GLEESON CJ: Has there ever been a defence filed?
MR BLACKBURN: An amended defence, no, your Honour, not yet.
CALLINAN J: Is there a defence – I am sorry, I could not – has there been a defence filed? There is no defence filed at all, is there?
MR BLACKBURN: I am not sure whether there was a defence filed in relation to the issues under section 7A of the Defamation Act.
CALLINAN J: So we do not know whether there will be a truth defence or some sort of a comment defence or anything.
MR BLACKBURN: No, there has not.
KIRBY J: Is this the usual thing under this strange procedure?
MR BLACKBURN: It is, your Honour. What normally happens is that there is what is called a 7A defence filed which just goes to the issues raised by the jury trial and then, depending on the outcome of the 7A trial, if there are further matters to be determined by a judge sitting alone, then a timetable is set for the filing of a defence and other matters.
GUMMOW J: This is section 7A of the 1974 Act.
MR BLACKBURN: This is 7A of the 1974 Act.
GUMMOW J: You must not assume that we, in a…..fashion are conversant with this folklore. You will have to at some stage explain to us how section 7A works and how it worked in this case and so forth.
MR BLACKBURN: I will, your Honour.
GUMMOW J: It is not the High Court of New South Wales, you know.
MR BLACKBURN: I propose to go to the history of the matter in a moment which I hope will clarify those matters. Before I do that may I just briefly state what we see is the main issue in this appeal. It is, in effect, we put the issue more generally, does a determination by the Court of Appeal that a verdict was unreasonable permit the Court of Appeal, pursuant to section 108(3), to enter judgment in favour of the unsuccessful party as a matter of law?
GUMMOW J: It says “direct a verdict”, 108(3), which is drawn from the 1900 statute, is it not, section 7.
MR BLACKBURN: It is section 7.
GUMMOW J: It says:
the Court of Appeal may direct a verdict and give judgment accordingly.
MR BLACKBURN: Yes, “as a matter of law”.
GUMMOW J: How was that discharged in this case?
MR BLACKBURN: What went wrong in this case, your Honour, was that the court purported to direct verdicts on imputations (a) and (c) as a matter of law but they were not entitled to do so for two fundamental reasons. The first of those is that the verdicts entered by the Court of Appeal were not entered as a matter of law for the reason that, on all the authorities, the question whether the evidence presented for the onus‑carrying party is sufficient to discharge that onus to the point of conclusiveness so that a contrary verdict would be unreasonable is a question of fact, not law, and the authorities speak with one voice on that issue.
KIRBY J: Now, the point that you are presenting to us is really a point concerning the giving effect by the Court of Appeal of its powers, whether the power was there and, if so whether they exercised it correctly. But standing back behind that there is a question, at least in my mind, as to whether an issue which was determined in the Court of Appeal against you is correct and is before us, and that is whether the law of defamation knows two categories, one specially protective of business enterprises, or whether that is simply a matter that is relevant to the calculation of any damages or the understanding of what the defamation was. Now, you argued your case before the jury consistent with what I understood the law to be, but you do not appear to have raised that matter in this Court. That is to say, you appear to accept that there is this special species of defamation of defaming people in their business capacity. Now, can I put that completely out of account? It is not raised by your notice of appeal ‑ ‑ ‑
MR BLACKBURN: No, it is not, your Honour.
KIRBY J: ‑ ‑ ‑ or by your argument, but I am not at all convinced that that is a correct view of the law.
MR BLACKBURN: We do not appeal on the basis that ‑ ‑ ‑
KIRBY J: Why should business people have a special protection and category?
MR BLACKBURN: Well, your Honour, they do not ‑ ‑ ‑
KIRBY J: It is an outrage.
CALLINAN J: It puts them in a more onerous situation and it is not to their advantage. They have to prove something which is much harder to prove than a natural person and in the ordinary course.
GUMMOW J: It goes back to the South Hetton Coal Case, does it not, in the 1890s?
MR BLACKBURN: It does. We do not take issue with the determination of the Court of Appeal that there was a misdirection by the trial judge on that issue and neither do we take issue with what was said about the way that I put that matter to the jury.
KIRBY J: Let that be on your head then as far as I am concerned, because I am not at all convinced that that is correct. It is a very unconceptual way of looking at the law of defamation.
MR BLACKBURN: Your Honour, we certainly say that it is not a test that favours the owner of the business. I think my learned friend puts in his submissions that the threshold is a much lower one, the bar is much lower under that test. That is not part of our submissions at all.
KIRBY J: This is really the very evil of dealing with the common law on a basis of case by case and people in this defamation practice creating their nice little categories instead of looking at the matter conceptually. However, you have not raised it, you do not raise it and I will just proceed on the basis of the issues in the record and deal with it on that basis as best I can but I will do so very uncomfortably. I do not think you were wrong in the way you addressed the jury and, by the way, the pleading which the Court of Appeal said had not raised the general question of the public’s response to the defamation talks of damage to the credit reputation trade in terms of bringing them into public hatred, ridicule and contempt, which is the general law of defamation.
MR BLACKBURN: Yes.
KIRBY J: Anyway, we will not go there. You have not raised it. You do not want to raise it and I will just put it aside but, as far as I am concerned, I do not think business people have any special category.
MR BLACKBURN: May I make this observation, your Honour. I do not think I was wrong in what I said to the jury either, but one is careful about selecting ‑ ‑ ‑
KIRBY J: You cannot have it both ways, Mr Blackburn. You are confined to your notice of appeal and it does not raise this issue. I am therefore put in the uncomfortable position of dealing with this case on a premise of the content of the law that I do not agree with, that I fundamentally disagree with, surrendering the law of defamation for the hypotheses and cases of defamation lawyers.
GLEESON CJ: Mr Blackburn, is there an error in your notice of appeal?
MR BLACKBURN: There is just at the end, your Honour.
GLEESON CJ: Paragraph (g) on page 193 seems to omit the word “not”.
MR BLACKBURN: Yes, your Honour, I have an amended notice of appeal which includes the word “not”.
GLEESON CJ: You do not need to file it. We will write the word “not” in before the word “defamatory” in the appeal book.
MR BLACKBURN: Thank you, your Honour. Before I briefly go to the history of the matter can I just foreshadow the submissions that we will be making on the principal issue, as we see it, that I have outlined. May I say this, the question whether the respondents were entitled to have verdicts entered for them as a matter of law under section 108(3) can on one view be shortly answered by posing this question: would the trial judge have been permitted to direct the jury to return verdicts for the plaintiff on those imputations in this case? The answer to that question must be no, for the simple reason that section 7A(3) of the Defamation Act 1974 reposes that duty, that is the duty of finding as a matter of fact whether the imputation was conveyed and whether it was defamatory, to the jury. So that the trial judge would have had no power on an application by the plaintiff to ‑ ‑ ‑
GUMMOW J: You have to start with section 7A(1), do you not?
MR BLACKBURN: I do.
GUMMOW J: ‑ ‑ ‑ which reflects the line of thinking that goes back to Capital and Counties Bank.
MR BLACKBURN: I beg your pardon, your Honour.
GUMMOW J: Section 7A(1) in the division of function between judge and jury in defamation cases reflects what Lord Blackburn was saying in Capital and Counties Bank in 1880, does it not?
MR BLACKBURN: Yes. The meaning of the matter complained of is fundamentally a matter of fact for the tribunal of fact in contradistinction, perhaps, to the more general rule that a meaning of a document raises a question of law. But in the law of defamation, the meaning of the matter complained of, the document or the publication or whatever it is, is always a question of fact.
KIRBY J: This procedure has been substantially changed by the new uniform Defamation Act, has it not?
MR BLACKBURN: It has, your Honour, but ‑ ‑ ‑
KIRBY J: Why are we tarrying over this antique?
MR BLACKBURN: Because the problem is only going to become more acute, your Honour, because at least in those States and Territories which have retained juries, under the new uniform act, section 22 – I am afraid we have not put this on our list but to answer your Honour’s question – section 22 of the uniform legislation in those jurisdictions which retain juries, or retain the possibility of juries, provides by section 22(2) that the jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established. So that far from the problem going away by the repeal of section 7A, the problem may become more acute and more commonplace because there are other factual issues that will have to be decided by the jury in respect of which the Court of Appeal could, if it chose to do so, direct verdicts for the unsuccessful party in the way that they have done here. So the problem is still with us and it will probably get worse. Can I go back briefly to section 7A, if the Court pleases.
KIRBY J: I wonder why they did not go back to the good old system where the jury did everything.
MR BLACKBURN: It is a very good question, your Honour.
GUMMOW J: But it never did everything. It was Capital and Counties Bank which said the question of whether it was reasonably capable was for the judge.
MR BLACKBURN: Yes. Section 7A(1) provides us, as the Court sees, that the judge and not the jury is to determine the question of capacity and:
(2) if the court determines that:
(a)the matter is not reasonably capable of carrying the imputation . . .
(b)the imputation is not reasonably capable of bearing a defamatory meaning,
the court is to enter a verdict for the defendant in relation to that imputation.
Then section 7A(3) provides that:
if the court determines that:
(a)the matter is reasonably capable of carrying the imputation –
that is, answers the capacity question in the affirmative, and –
(b)the imputation is reasonably capable of bearing a defamatory meaning,
the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory.
That is the parliamentary prescription. It is a question of fact to be decided by the jury. Plainly, we say, there are no circumstances in which a trial judge could, because he or she thought that the matter was flagrantly defamatory or for some other reason, direct the jury to find for the plaintiff.
CALLINAN J: Mr Blackburn, I am sorry to interrupt you but I am just a little interested in the chronology. Had there been an earlier hearing before the 7A trial as to the question whether the imputations were capable of being conveyed?
MR BLACKBURN: Your Honour, there had, not one that I was involved in.
CALLINAN J: It is just it is not in your chronology. There is only one thing, and I am interested in ‑ ‑ ‑
MR BLACKBURN: I am sorry. I am told that each of the imputations was challenged on a capacity basis.
CALLINAN J: And it was held that each had the capacity to convey the – the article had the capacity to convey each of the imputations.
MR BLACKBURN: Yes.
CALLINAN J: Did the judge who determined that matter give reasons?
MR BLACKBURN: I think so, your Honour ‑ ‑ ‑
GLEESON CJ: It would have been Justice Nicholas, would it not?
MR BLACKBURN: Yes, it would have been Justice Nicholas. There was a time when his Honour was not always giving reasons on these applications. My learned junior tells me that he gave some reasons and they are in a transcript but I do not think they are part of the appeal book.
CALLINAN J: I would like to see them; they are part of the record of the case. Perhaps at some stage a copy could be made and could be provided to us.
MR BLACKBURN: Yes. So, in short, and this is a submission that I will develop, if the trial judge could not direct a verdict for the plaintiff, then no more can the Court of Appeal pursuant to section 108(3) direct a verdict for the respondents in this case as a matter of law. It is not a matter of law. It is a matter of fact.
KIRBY J: Now, you did not have to have a jury trial. It could have been tried by a judge sitting alone, but did ‑ ‑ ‑
MR BLACKBURN: No, under the section 7A regime, your Honour, there must be ‑ ‑ ‑
KIRBY J: It says “if,” does it not?
MR BLACKBURN: Yes, but then that takes one back to, I think, the repealed section 86 of the Supreme Court Act which prescribes trial by jury in New South Wales in a defamation case unless the parties consent or prolong the examination of documents.
KIRBY J: We had better have that, because my understanding is you have a right to a trial by jury.
MR BLACKBURN: We do.
KIRBY J: And it is a right that you exercised and you have been, you say, deprived of that right ultimately by the order of the Court of Appeal.
MR BLACKBURN: Yes. We will certainly provide that, your Honour. We say we did have a right and the only exceptions are the familiar ones of either consent by the parties ‑ ‑ ‑
GUMMOW J: Section 86(1) of the Supreme Court Act 1970 read:
Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury.
Then subsection (2):
Despite subsection (1), the Court may order all or any issue of fact be tried without a jury if –
as you say –
(a)any prolonged examination of documents . . . or
(b) or all parties consent to the order.
MR BLACKBURN: Yes.
KIRBY J: There used to be a provision either in the Supreme Court Act or the Common Law Procedure Act about certain matters specifically, and defamation used to be specifically referred to. Fraud was referred to, but all of that is gone.
MR BLACKBURN: Yes, wrongful imprisonment. All of that is gone and I think what we have now is the provision which one sees in some other jurisdictions that a jury will be empanelled if there are special reasons for doing so, or something to that effect. It is very hard now to empanel a jury generally in common law cases in New South Wales. I think that the predecessor of the section in recent history, your Honour, used to be section 88, and it provided for trial by jury in cases of defamation, wrongful imprisonment and some other categories. I am sorry, I do not have that to hand.
KIRBY J: In any case, 86(1) does make a specific reference to defamation and it appears to indicate it is the will of Parliament that:
Proceedings on a common law claim . . . in respect of defamation are to be tried with a jury.
MR BLACKBURN: Yes, and that was our entitlement and that is what Parliament provided and, as we say, the trial judge could not have ‑ ‑ ‑
KIRBY J: Why would that be so? Why would Parliament make this exceptional provision?
MR BLACKBURN: As we understand it, your Honour, the thinking is that people chosen at random from the community are best suited to decide issues where community standards are so important. That is one of our complaints about the reasons of the Court of Appeal. It is fundamentally a matter of community standards whether a publication does in fact convey to the ordinary reasonable reader a particular defamatory sting and whether that sting conveyed, or the meaning conveyed, is such that ordinary decent folk in the community would tend to think less of the person about whom it is said.
KIRBY J: Yes, but that is where this special so-called category – cosy little category – for business enterprises comes in because they said, “Well, you don’t have to look at community standards for that. We can know what business people – the hurt for business people – because we can understand that.”
MR BLACKBURN: Your Honour, with great respect, that was fundamentally wrong because it is self‑evidently a matter for community standards whether even on – accepting that test is properly part of the law - whether it is a matter fundamentally of community standards, whether ordinary people would tend to think the less of a business person, or in this case a restaurateur, whether what was said about them was a slight upon their business competence. It is self‑evidently a matter of community standards. We do not understand how the Court of Appeal can say otherwise.
When one approaches it from that basis one begins to realise that the so-called test of an attack on the competence of a business person is really not that far removed, if different at all, from the general test, which is would the defamatory publication tend to lower the person in the estimation of ordinary decent people in the community, your Honour, which is why we – although we have not sought special leave on the point, we retain a slight sense of grievance about it but we did not seek leave on it.
KIRBY J: Do not waste our time. If you do not put it on the record it is not relevant.
MR BLACKBURN: If the Court pleases. Would it be convenient to the Court if I briefly went to the history of the matter and how the matter has progressed.
GLEESON CJ: Yes.
MR BLACKBURN: If the Court pleases, the matter complained of was published in The Sydney Morning Herald on 30 September 2003. It was a restaurant review. I do not propose at this stage to take the Court to the contents of the review but in consequence of the publication of that review the respondents sued for defamation and injurious falsehood. The issues on the injurious falsehood claim still have to be determined at some future time, as do the remaining issues on the defamation claim, that is, any defences.
GLEESON CJ: Are we concerned with the argument that went on about imputation (d)?
MR BLACKBURN: No, your Honour, you are not. There was a trial pursuant to section 7A of the Defamation Act and what happened – I should perhaps say that the imputations are set out in paragraph 9 in page 2 of the appellants’ submissions.
GUMMOW J: Going back to the point Justice Callinan raised with you, we do not know what happened at the earlier stage, do we?
MR BLACKBURN: At the capacity stage?
GUMMOW J: Yes.
MR BLACKBURN: I am told by my learned junior, your Honour, that ‑ ‑ ‑
GUMMOW J: Is there a court file? The court file should be here. Has it just been something that has sunk beneath the surface of the ocean?
MR BLACKBURN: As I understand it, your Honour, his Honour Justice Nicholas gave some reasons which are in the transcript, but he did not publish a separate judgment.
GUMMOW J: Someone had better extract them from the transcript and supply them to us. It does not have to be done right now, but otherwise the record is incomplete.
MR BLACKBURN: The imputations are at paragraph 9 on page 2 of the appellants’ submissions. The Court will see them there:
(a) The plaintiff sells unpalatable food at Coco Roco.
(b) The plaintiff charges excessive prices at Coco Roco.
(c) The plaintiff provides some bad service at Coco Roco.
I pause there to observe that that was an imputation which the Court of Appeal said was unarguably defamatory, merely that a restaurateur provides some bad service at the restaurant, which, in our submission, with respect, cannot be right.
CALLINAN J: Why not?
MR BLACKBURN: Your Honour, to say that ‑ ‑ ‑
CALLINAN J: I mean, you have got defences. You may have a truth defence.
MR BLACKBURN: Yes, but, your Honour ‑ ‑ ‑
CALLINAN J: That is the trouble with these trials. I am sure that the fact that the jury are considering imputations in a vacuum or the fact that they may have a view about the possibility of a defence which is not before them may infect their reasoning and their attitude to the question with which they are concerned. I know that judges can direct and do direct but I wonder whether the whole process is a little unreal. You may have all sorts of defences, but it seems to me that if you say something is done badly in a restaurant, it is plainly defamatory. How could it be other than defamatory?
MR BLACKBURN: Your Honour, to say that a restaurateur provides some bad service in a restaurant, it is quite open to a jury, in our submission, to decide in this day and age that that firstly is not going to lower the restaurateur in the esteem of decent folk in the community because some of their staff provide bad service, neither is it something which necessarily reflects on the competence of the restaurateur in his or her trade. Now, that is fundamentally ‑ ‑ ‑
CALLINAN J: Why would the reviewer single it out and talk about it unless it were a relevant matter? If it is a matter of no consequence to the public, which is what you are really saying, then why bother to write about it? Why single it out?
MR BLACKBURN: No, your Honour. Your Honour is expressing a view and your Honour is, in effect, being a juror in saying that, how could it not defamatory, but it is quite possible and open to a juror to decide that it was not defamatory, that it did not reflect on the competence of a restaurateur in his or her trade.
CALLINAN J: You will have to talk for a long time to persuade me of that. A well-run organisation is one that involves very careful supervision of staff and requires staff to perform, particularly in a service industry. I mean, a restaurant is a service industry par excellence.
MR BLACKBURN: Your Honour, surely it is a question on which reasonable minds may differ. A juror might think that merely because some bad service is provided at a restaurant because of a waiter who is a bit slack does not reflect on the competence of the restaurateur. It must be something which is subject to two points of view, in our submission, and it is strange, in our respectful submission, to find that that is necessarily defamatory as necessarily reflecting on the competence of the proprietor of the restaurant. I mean, we all know that some waiters are not very good and some waiters are better and some waiters are slack and careless and the jury may well have thought that is an occupational hazard of running a restaurant.
KIRBY J: Anyway, you have a right to request a jury. Parliament has said that these matters will normally be dealt with by a jury. You have requested the jury and you want the verdict of a jury. You had a pretty good run on the first jury and you might get a good run on the second one minus the so-called misdirection.
MR BLACKBURN: Yes.
GUMMOW J: How can there be a jury trial if one does not know what the issues are at common law because the pleadings are not closed? How does all this happen?
MR BLACKBURN: Your Honour, normally what is called a 7A defence or defence of the issues pursuant to section 7A is filed. If that did not happen in this case, I do not know why it happened.
GUMMOW J: Sorry, you are talking in folklore again. Just explain to me why.
MR BLACKBURN: Certainly, your Honour. Normally what happens is a direction is made for a filing of a defence ‑ ‑ ‑
GUMMOW J: Not just “normally” but in terms of the law, basic common law process.
MR BLACKBURN: Your Honour, the rules provide for the filing of a defence. The practice has been that an order is made to file a defence only on the issues raised by section 7A of the Act. And then, if any of the imputations make it through the jury stage, further direction is made for filing of a defence, discovery and interrogatories and so on, on the remaining issues, that is the ‑ ‑ ‑
GLEESON CJ: The theory being that the defendant has to know what he has to defend and what arises for defence is not the article, it is the imputation.
KIRBY J: And it is very protective of you and your client because you can just lie quietly in wait and you can argue and you can have all sorts of interlocutory arguments about what is the imputation and what is reasonably available and you can argue before the jury and then only do you have to reveal your battle lines.
MR BLACKBURN: Your Honour, it is protective of both sides because ‑ ‑ ‑
KIRBY J: No, it is mainly protective of you.
MR BLACKBURN: Neither side has to spend a lot of money, in theory anyway your Honour, gearing up for a trial which may be unnecessary. This procedure arose out of Court of Appeal’s decision in Radio 2UE v Parker in 1991 where ‑ ‑ ‑
GLEESON CJ: What is the reference to that?
MR BLACKBURN: It is (1991) 21 ‑ ‑ ‑
KIRBY J: I hope I was no party to that decision.
MR BLACKBURN: You were not, your Honour, but what Justices Clark and Handley said, and particularly ‑ ‑ ‑
GUMMOW J: What is the name of the case?
MR BLACKBURN: Radio 2UE Pty Ltd v Parker (1992) 29 NSWLR 448.
CALLINAN J: This New South Wales preoccupation with imputations - the general issue is pleaded in every other place, I think, and trials are conducted perfectly adequately and I think much more shortly.
MR BLACKBURN: Indeed.
CALLINAN J: It is very much a New South Wales invention, all of this.
MR BLACKBURN: Yes, your Honour.
KIRBY J: Anyway, we are stuck with it in the legislation, at least for this case.
MR BLACKBURN: We are, in the old legislation, it is no longer the cause of action under the uniform legislation. What was said particularly by Justice Handley in Parker v 2UE was that after a long jury trial, a jury is ill equipped at the end of it to determine defamatory meaning, therefore, the determination of defamatory meaning should be put right up the front of the trial and then if any of the imputations survive, the trial can proceed.
GUMMOW J: You keep using this word “trial”, you see.
GLEESON CJ: The key provision was section 9 of the Defamation Act 1974 which provided that the cause of action was not on the matter, it was on the imputation.
HAYNE J: Now, you refer to a 7A defence. We do not know whether one was filed in this action and if one was filed, we do not know what was in it. When are we going to get to a landing on that question?
MR REYNOLDS: Perhaps I can assist your Honours. There was some correspondence on this issue where we sought clarification and John Fairfax conceded that no defence had been filed. That is in correspondence.
GLEESON CJ: No section 7A defence?
MR REYNOLDS: Or any other defence.
GLEESON CJ: Or any other defence.
HAYNE J: Mr Blackburn, what was the issue that was joined and in respect of which a jury was empanelled to hear evidence and render a verdict?
MR BLACKBURN: The issue that was joined, your Honour, was whether the imputations were conveyed and whether they were defamatory. My learned friend Mr Evatt made no application in relation to the fact that there apparently was not a defence filed and the respondents in this case were content to allow the 7A trial to proceed notwithstanding the absence of a defence. So one can say with a degree of confidence that the issues were whether the imputations were conveyed and whether they were defamatory, because they were the issues the jury were asked for their judgment on.
GUMMOW J: In terms of section 7A, which particular subsection?
MR BLACKBURN: Section 7A(3). What the jury determined was that imputations (a) and (c) were conveyed but were not defamatory. It determined that imputation (b) was not conveyed and that imputation (d) was not conveyed.
HAYNE J: Where do I find in the appeal book the record of the jury’s answers?
MR BLACKBURN: Page 119.
KIRBY J: You will have to speak up, please.
MR BLACKBURN: I am sorry, page 119.
GLEESON CJ: And 109?
MR BLACKBURN: Pages 120 and 121. There are three pages. For some reason the plaintiff posed jury questions in relation to each plaintiff individually when there was really no reason to do so.
GLEESON CJ: Page 109 and following you will find the transcript of questions asked of the jurors and the foreperson’s answer to those questions.
MR BLACKBURN: Yes.
KIRBY J: They did not take long, did they - 55 minutes.
MR BLACKBURN: That is pretty standard for a section 7A trial, your Honour.
KIRBY J: Is it?
MR BLACKBURN: In fact, some of them only take about half an hour.
KIRBY J: How long did the actual full trial take?
MR BLACKBURN: I think it was two days, your Honour, a day and a half. The Court of Appeal concluded that the jury’s findings that imputations (a) and (c) were not defamatory of the respondents were unreasonable.
GUMMOW J: Pursuant to what statutory path was the function of the Court of Appeal to decide that?
MR BLACKBURN: Section 102, I think, your Honour, of the Supreme Court Act.
HAYNE J: Are the answers given by the jury to the questions presented to them to be treated as a verdict?
MR BLACKBURN: We would accept, your Honour, that they could be described as special verdicts being answers to particular questions of fact put to the jury for their determination.
GLEESON CJ: Indeed, if there had been a whole trial of the entire action together they are typical of the sort of questions that might have been put to juries.
MR BLACKBURN: Yes, they probably would have been the first set of questions put to the jury if the trial had been allowed to go through to completion.
KIRBY J: Was that ever done under this procedure?
MR BLACKBURN: Under the 7A procedure, your Honour?
KIRBY J: Yes.
MR BLACKBURN: No.
KIRBY J: That is to say that you took the jury’s verdicts under 7A and then the judge proceeded to deal with any matters of defence?
MR BLACKBURN: Yes.
KIRBY J: That was sometimes done.
MR BLACKBURN: That was sometimes done. Particularly, your Honour, in the early stages of the 7A procedure it frequently happened that the jury would be empanelled, they would deliver their answers and then the rest of the trial would proceed, but I think around about 2000 the practice sprang up of discharging the jury and standing the matter over and then there would be a further set of directions for the preparation of the remaining part of the trial before a judge alone.
KIRBY J: The jury had nothing to do with the calculation of the damages?
MR BLACKBURN: No.
KIRBY J: Part of this change was to get juries out of computing the damage?
MR BLACKBURN: Yes.
KIRBY J: I think that was protective of your clients too. Anyway, it is irrelevant.
MR BLACKBURN: It may have been intended to be, your Honour, but whether it is a good idea or not history is still determining.
HAYNE J: Can I just stay a little while, Mr Blackburn, because you are going to have to educate me. In the law, as distinct from the lore, there is a lot of lore in this area. Can I go to page 126 of the appeal book which is the notice of appeal to the Court of Appeal. The verdict is there described as:
a verdict in favour of the Respondent with costs.
The verdict is not identified as what you say is a special verdict constituted by answers to questions.
MR BLACKBURN: No, it is not, your Honour, but I think we and the Court of Appeal understood the orders sought, that is, that – I am sorry, could I just ask your Honour to direct me again to ‑ ‑ ‑
HAYNE J: Page 126 at about line 44:
The answers resulted in a verdict in favour of the Respondent with costs.
Do you see that at about line 45 on 126?
MR BLACKBURN: Yes. No, well, you see, your Honour, what happened there was because ‑ ‑ ‑
GUMMOW J: Is that a reference back to 123?
MR BLACKBURN: The answers to the jury resulted in a verdict in favour of my clients - the whole of the case, verdict and judgment – because the whole of the case was disposed of by the jury’s answers.
HAYNE J: I understand that.
MR BLACKBURN: All the respondents’ causes of actions were extinguished by the ‑ ‑ ‑
HAYNE J: I understand that.
MR BLACKBURN: What resulted was that in those circumstances ‑ ‑ ‑
HEYDON J: Was the injurious falsehood case disposed of?
MR BLACKBURN: No.
HEYDON J: In that case the whole case was not disposed of.
MR BLACKBURN: That remains.
HEYDON J: Only the defamation case.
MR BLACKBURN: That remains, but what ‑ ‑ ‑
HEYDON J: You said the judge gave a verdict in favour of the respondents with costs.
MR BLACKBURN: On the imputations.
HEYDON J: Yes, but that is not the verdict in the whole case.
MR BLACKBURN: In respect of the causes of actions represented by the imputations. Each imputation is a separate cause of action and each of the imputations failed, each of those causes of action failed, so that ‑ ‑ ‑
KIRBY J: Was this order on 123 entered by agreement of the parties? Did Mr Evatt then agree that that would follow from the special verdicts, as you have described them? We do not have a transcript explaining how that order happened to be entered.
MR BLACKBURN: I am not sure that it is not in the – I thought it was in the appeal book. If the Court goes to page 86 ‑ ‑ ‑
KIRBY J: It may be 117 where her Honour ‑ ‑ ‑
MR BLACKBURN: About line ‑ ‑ ‑
KIRBY J: At the end she says:
I think the costs of the claims in defamation.
Mr Evatt says:
I don’t want to be heard in opposition to that.
HER HONOUR: I direct the plaintiffs are to pay the defendants’ costs of the claims brought in defamation.
Where does she say that judgment follows from the special verdicts? Anyway, perhaps that can be found and we can be told.
MR BLACKBURN: Perhaps at about line 45.
KIRBY J: Do not waste your time on it now.
MR BLACKBURN: Line 45 on page 116 her Honour said:
I will direct the entry of judgment for the defendant in respect of each of the four causes of action pleaded in paragraph 4 of the amended statement of claim.
The Court of Appeal determined that the jury’s verdict was unreasonable in relation to the finding that imputations (a) and (c) were not defamatory. In relation to the jury’s finding that imputation (b) is not conveyed, that finding was not interfered with. In relation to imputation (d) the court ordered that that be remitted for a retrial, but on an issue that this Court is not concerned with, and the issue briefly was whether statements made by Justice Hunt sitting in the Court of Appeal about whether the issue of inference on inference was a question of fact, not of law, were wrong.
KIRBY J: Another bit of lore in my opinion.
MR BLACKBURN: It may well be, your Honour, but the Court need not concern itself with ‑ ‑ ‑
KIRBY J: It is relevant to us, it seems to me, unless we are kept out of it by something said at the special leave hearing, in that the general rule would be if you were remitting part of the matter to the jury you would remit the whole. Instead of that there is this bifurcation now which one would assume is going to be quite expensive, that a particular aspect of a case is sent back to a jury trial and the other aspects of the case are to proceed before a judge sitting alone hearing any defences and determining them. Why, if you have decided that there must be another jury trial, you would not take what would seem a normal course of remitting the matter to the jury is not entirely clear to me.
MR BLACKBURN: Remitting the whole of the matter to the jury, your Honour?
KIRBY J: The whole of the 7A question to the jury.
MR BLACKBURN: Your Honour, the difficulty with that is that the court could find no fault with the jury’s finding that imputation (b) was not conveyed, and therefore there is absolutely no reason to remit imputation (b) for a retrial because the jury found that the imputation was not conveyed and the court could find no fault with that finding.
KIRBY J: But the other one, (d) I think it is, has been sent back for jury trial, has it not?
MR BLACKBURN: It has, your Honour.
KIRBY J: (b) was the overpricing, was it not?
MR BLACKBURN: (b) was the overpricing, yes.
KIRBY J: And that is not now in issue.
MR BLACKBURN: It is not, no, but imputation (d) has been sent back because the Court of Appeal decided that the view of Justice Hunt that the question of inference on inference was a matter of fact, not law was wrong. If Justice Hunt had said what he had said in the Court of Appeal, with the culmination of a number of earlier decisions where the question had been ventilated, and it was simply overruled or said to be wrong by Justice Ipp with the agreement of his fellow judges ‑ ‑ ‑
KIRBY J: You would have to be a genius to work your way through these subtleties.
MR BLACKBURN: Your Honour, the question was the subject of high authority, it was a considered judgment of Justice Hunt. He said that in the appropriate case, if the imputation factually arose out of a process of inference on inference, then the imputation could be regarded as not being conveyed. He said that in Marsden’s Case ‑ ‑ ‑
CALLINAN J: It had been earlier said by Lord Devlin, had it not, and also Lord Hodson, I think.
MR BLACKBURN: Indeed, and also in Mirror Newspapers v Harrison in this Court.
CALLINAN J: Not entirely satisfactory intellectually though, is it, that the idea that the mind would discriminate carefully between an inference and an inference upon an inference. The natural mental process, one would think would be, “What’s that mean?”, or, to be colloquial, “What’s that writer on about?”
MR BLACKBURN: It may not be the most felicitous way of expressing it but the point is that an inference, as Justice Hunt and other judges have said, is something that the reader adds, it is not something that the reader understands that the ‑ ‑ ‑
CALLINAN J: It all came out of that English case though, did it not, which questioned what might be thought beyond a suspicion. One might entertain a suspicion and if you went beyond a suspicion you were drawing an inference upon an inference.
MR BLACKBURN: Yes, Lewis v Daily Telegraph.
CALLINAN J: But following that there were a number of cases, were there not, that said that, in effect, people could say whether smoke was fire and if you pleaded it properly, you could still get damages so long as you were pleading that it gave rise to a suspicion because that imputation itself could be defamatory.
MR BLACKBURN: Yes but what was forbidden was to infer guilt where in fact the author was not imputing guilt.
CALLINAN J: So it really became a matter of pleading. If you pleaded that the article conveyed that there was a suspicion about somebody, an official suspicion, as it were, that was all right but if you pleaded that the person was guilty because, for example, there was an investigation, that was too much, that was not open.
MR BLACKBURN: No, if the matter did not impute it, it was not open.
CALLINAN J: I rather think that something that was very fact-specific has been embellished into a principle far beyond what was required and has itself caused some problems.
KIRBY J: And it is not alone in this field.
MR BLACKBURN: The problem, if I may make this observation, is just with the use of the term “inference on inference”. It is not the way it is normally expounded to a jury. What is normally said to the jury is that if you think that the reader would not understand the author to be saying this, that it is just something that has been added by the mind of the reader, then that is an inference on an inference.
CALLINAN J: That is very artificial, is it not? The mind of the reader will always draw conclusions, which is another way of making a further inference about matter that has a tendency or capacity to impugn somebody.
MR BLACKBURN: Well, it is a question of fact in every case, though, your Honour. I mean, as I think Lord Devlin said in Lewis, you can never make a rule about what a matter means. It is the purest question of fact and every case is ‑ ‑ ‑
CALLINAN J: I think you can make a rule about what some matters mean. If you say somebody is a murderer, I mean, it is just far too absolute. There are plenty of things you can say about a person that are inescapably and unmistakably defamatory.
MR BLACKBURN: Yes, but it is still ‑ ‑ ‑
CALLINAN J: Then if there is justification for saying it, then there are all sorts of defences available. But looking at the objective single question whether something is defamatory or not, it is often possible to say that it is unanswerably defamatory. How can you say if somebody is a murderer, that is not defamatory?
MR BLACKBURN: Your Honour is divorcing it from context, but to take your Honour’s point, which is an extreme hypothetical, if I stand outside in the street saying Mr X is a murderer and there is no other context, then taking that extreme case one can say that it is certainly defamatory if there is no other context but it is still a question of fact and ‑ ‑ ‑
CALLINAN J: No, the other context may give you a defence but it does not alter the defamatory nature or character of the statement made, and this is the problem in this area.
MR BLACKBURN: No, your Honour. If ‑ ‑ ‑
CALLINAN J: Everybody strays off into the defences.
MR BLACKBURN: Your Honour, if my placard says “Mr X is a murderer but I’m a lunatic and you shouldn’t believe a word I say”, it is quintessentially a matter for the tribunal of fact whether it conveys the imputation that Mr X is a murderer.
CALLINAN J: I do not think that is right either.
MR BLACKBURN: But in any event, it is a question of fact which in New South Wales the Parliament has given to the jury to determine.
KIRBY J: Now, the issue of the inference on an inference, let me get it clear. You say we do not have to deal with that issue because that is the matter that is the subject of the remitter to a jury that is not in contest in this Court. Is that correct?
MR BLACKBURN: It has not been raised, your Honour, no.
KIRBY J: The only way it could be relevant is argumentatively that, having made an order that part of what is left go to a jury, that that was a matter that is relevant to what is the proper disposition having regard to the dicta in this Court, including recently, that where part of a matter goes back the whole should ordinarily go back. Now, that involves a discretionary question which Justice Ipp was careful to acknowledge and take into account. I rather gathered from the written submissions that at the special leave hearing there was some concession by you that you were not raising discretionary questions in this Court.
MR BLACKBURN: No, your Honour. We have seen that in our learned friend’s submissions and, with great respect, it completely misrepresents what I said. Early on in the special leave hearing his Honour the Chief Justice asked me in relation to the operation of section 108(3) whether we said that the error raised by what the Court of Appeal did went to a question of power or discretion under section 108(3).
Our submission was and remains that there was no power in the Court of Appeal to substitute, in effect, its own findings of fact and enter a verdict in favour of the respondents. That is still our submission. I was not asked, as I understand it, and was not talking about the discretion of the Court of Appeal, having made its findings, to remit matters back for trial.
GLEESON CJ: I understand you to have two arguments. One is that on the true construction of section 108(3) and in the facts and circumstances of this case the plaintiff was not as a matter of law entitled to a verdict and therefore the Court of Appeal was not empowered to direct a verdict.
MR BLACKBURN: Yes.
GLEESON CJ: Alternatively - and this is the matter of some decisions by Justice Hunt, I think, and others - if on the true construction of section 108(3) the Court of Appeal was empowered to direct a verdict, it should not have directed a verdict.
MR BLACKBURN: Yes, we say that but I did not understand your Honour to be putting to me at the special leave hearing that no question of discretion arose in any part of this case. I did not understand ‑ ‑ ‑
GLEESON CJ: No, nor did I.
MR BLACKBURN: No.
GLEESON CJ: I understand you to have two points about section 108.
MR BLACKBURN: Yes, that is correct.
GLEESON CJ: I think the point you were being asked is whether what transpired in relation to imputation (d), although not the subject of any ground of appeal, may be a matter relevant to your second argument, that is your discretionary argument in relation to 108.
MR BLACKBURN: Yes, that is so.
GLEESON CJ: That is to say, do you wish to argue that this being a case in which something is going back to a jury, that is to say imputation (d), even if the power existed, which you deny, to direct a verdict on imputations (a) and (c), it was a power that should not have been exercised?
MR BLACKBURN: No, your Honour, we do not cavil with the decision of the Court of Appeal to remit imputation (d).
GLEESON CJ: No, what I asked you was something different. Having regard to the fact that imputation (d) has been remitted, is it one of your arguments that the remitter of imputation (d) was itself a reason, if there be a discretion, for not exercising the discretion in favour of entering a verdict on imputations (a) and (c)?
MR BLACKBURN: Yes, your Honour.
GLEESON CJ: That is what I understood.
KIRBY J: Justice Ipp deals with this at some detail at the end of his reasons. He acknowledges the usual authorities and says that on balance he thinks that the orders of Justice Beazley are the right ones in this case, so he did address the principles. I do not think we should get that out of – I have asked you that question out of line. I think it is better that you get back – we have been all over the restaurant in this case.
GLEESON CJ: No, unfortunately, it is not a question of getting back to anything. You have not yet put your argument on your first point which concerns the construction of section 108(3).
MR BLACKBURN: No, I have not. May I go to that now, if the Court pleases. Can I put it this way. The Court of Appeal has very limited power after a jury trial to substitute or to make findings of fact and to substitute its own findings of fact for those of the jury. Those powers, in our submission, such as they are, are wholly contained in section 107 of the Supreme Court Act and section 108.
Section 107 provides – and I am paraphrasing – that instead of setting aside the verdict and ordering a new trial on the question of the amount of debt or damages or the value of goods, the court can make its own assessment if it is satisfied that it is able to do so and if the parties consent. So there is one very limited power that the Court of Appeal has to make findings of fact after a jury trial.
KIRBY J: Where is that in 107?
MR BLACKBURN: Not just consent. Other matters have to be satisfied. Yes, your Honour.
KIRBY J: I see, it is in 107(c).
MR BLACKBURN: Yes. The only other power given to the Court of Appeal in the Supreme Court Act to enter a verdict after a jury trial is given in section 108. Section 108(2), in effect, as we understand it, permits the Court of Appeal, effectively, to nonsuit a plaintiff where an application could have been made under the rules for the dismissal of the proceedings and enter a verdict for the defendant.
KIRBY J: Could you just help me on a construction point in 107(c)? The first subparagraph is:
The parties consent to the exercise -
Then there is (ii) and joining (ii) and (iii) is the preposition “or.” Now, is that to be taken as “or” after (i). In other words, are each one of them true alternatives?
MR BLACKBURN: It seems to be distributive, your Honour. They seem to be independent. It may perhaps be that there has to be consent and (i) or (ii) has to apply or it may be that ‑ ‑ ‑
KIRBY J: There was no consent in this case.
MR BLACKBURN: No, but in this case, your Honour, it is not a question of the Court of Appeal reassessing the amount of debt or damages or the value of goods. It does not even apply. What I am simply trying to do is point up the very limited power of the Court of Appeal after a jury trial either to find facts or to substitute a verdict or to enter a verdict.
KIRBY J: But if you merely go to (i) and (ii), does that then get you to the powers of drawing inference and making findings of fact? You say you are not at the stage of assessing an amount of damages and that therefore the whole section does not apply in the context of a 7A proceeding because you have not had your chance of a defence.
MR BLACKBURN: Yes, and it could never apply because under the 7A procedure it is the trial judge in any event who assesses damages.
KIRBY J: So it is 108 or nothing?
MR BLACKBURN: Yes.
CALLINAN J: You have never had a trial on damages.
MR BLACKBURN: No.
CALLINAN J: So 107 could not apply.
MR BLACKBURN: Those two sections – if I may just make this observation – stand in very marked contradistinction to what section 75A of the Act provides. Section 75A(2) expressly does not apply to a trial with a jury in the court.
KIRBY J: That is the general power of the Court of Appeal in civil appeals.
MR BLACKBURN: Yes.
KIRBY J: We do not have 75A in the photocopy.
MR BLACKBURN: I thought your Honours had reprint No 12. That is what we were told by the ‑ ‑ ‑
GLEESON CJ: That is the one I am working from.
KIRBY J: I just have a photocopy.
MR BLACKBURN: The point we make is, as the Court will be aware, although the Court of Appeal has extensive powers to make findings of fact, draw inferences, enter verdicts when a civil trial has been conducted before a judge alone, it does not have those powers after a jury trial. We say that in this case, apart from section 108, not only did the Court of Appeal have no power to enter a verdict in favour of the plaintiffs but the power to find the verdict or find the facts was reposed in the jury by section 7A of the Act.
GLEESON CJ: It comes to a question, does it not, whether a decision that the jury’s verdict was unreasonable is equivalent to a conclusion that upon the evidence the plaintiff is, as a matter of law, entitled to a verdict?
MR BLACKBURN: Yes, that is the question, your Honour, and all the authorities, in our submission, answer that question effectively “No” for a number of reasons but the fundamental point is this - and I will have to develop the point by reference to authority - but for the respondents to be entitled as the onus‑carrying parties to judgment as a matter of law, there must be facts found which entitle them to the entry of a verdict as a matter of law.
The Court of Appeal has and had no power to find that the imputation was defamatory. They did not so find. The court had no power to find that and, absent that crucial factual finding, it is impossible, in our submission, that the respondents could be entitled to a verdict as a matter of law.
GLEESON CJ: In the present case was the only evidence the article itself?
MR BLACKBURN: Yes.
GLEESON CJ: So the expression in subsection (3), “upon the evidence” in its application to this case means “upon the article”?
MR BLACKBURN: Your Honour, it cannot simply mean “upon the article”. It must mean “on the evidence” in the sense of “upon the facts that have been found”. The strange thing about a section 7A trial is that the evidence is usually uncontested but it is, of course, a grave error to conflate uncontested evidence with undisputed facts.
KIRBY J: Yes, but an argument put against you is that this is not a case where there is any evidence of impression, there is no witness’s character and assessment, there is no examination of the journalist as to his motivation; it is just a piece of paper. That goes before the court as well as it went before the jury and the court, having found that it would be so unreasonable to find another conclusion - this is somewhat similar to Justice Callinan’s question to you earlier. Is it not self‑evident, is it not clear, would it not be perverse? Would it not be so perverse as to amount to an error of law not to find that it was defamatory of the plaintiff, leaving it then for you to justify or raise any of the other defences that are available to defeat at least that stage of the conclusion?
MR BLACKBURN: The answer to that question, your Honour, is this. It is one thing for the Court of Appeal to make a determination or a finding that the answer given by the jury was so unreasonable that no reasonable jury could have given it. The court has always had that power preparatory to deciding whether in its discretion to order a new trial. That is quite a different fact, if it be a fact, than a finding that the imputation was not defamatory. A finding that the imputation was not defamatory is a central fact in issue in the trial. A finding by the Court of Appeal that the verdict of the jury was unreasonable is entirely irrelevant to any issue in the trial and it is not a fact upon which a verdict could be entered. The only fact upon which the verdict could be entered in this case is – there are two facts, both reposed in the jury – firstly, whether the imputation was conveyed and, secondly, whether the imputation was defamatory. It is only after those facts are found, in our submission, that a verdict could be entered as a matter of law. It would be an error, in our submission also, to conflate or mix up two entirely separate facts or findings. The one finding that the Court of Appeal is empowered to make, namely that the verdict of the jury was perverse, and, secondly, a finding that the imputation was conveyed or that it was defamatory ‑ ‑ ‑
HEYDON J: But it is perverse because it was conveyed and it was defamatory. They are just two sides of the same coin.
MR BLACKBURN: Your Honour, no, with respect, because as a matter of ordinary lay usage one could say that if the Court of Appeal determines that the finding of the jury was unreasonable, what they are really saying is that the imputation was conveyed. But that is the trouble; Parliament has provided that the Court of Appeal does not have power to make that second finding using the word “finding” as a legal term of art. It just does not and did not have the power to make that finding.
HAYNE J: Why not, under 108(3) and this aspect of it, “that upon the evidence the plaintiff . . . is entitled . . . to a verdict” on “an issue in the proceedings”, the issue relevantly being – there would be more than one issue, but the issue relevantly being the 7A issue?
MR BLACKBURN: Yes, the relevant issue is the 7A issue but in ‑ ‑ ‑
HAYNE J: Can I just take it a little slower. It is not a question of being entitled to a verdict in the proceeding, is it?
MR BLACKBURN: Not a final verdict necessarily.
HAYNE J: No. I would not have though it was an entitlement to a verdict in the proceedings at all.
MR BLACKBURN: I am so sorry, your Honour, no. That is another subsidiary point that we make, that section 108(3) does not apply here because the resolution of the particular issue did not entitle the respondents to a verdict in the proceedings. It entitled them perhaps to a special verdict if it was a matter of law but it did not entitle them to final verdict.
KIRBY J: No, but the distinction that Justice Hayne is calling attention to is between “entitled to a verdict in the proceedings”, by inference the whole proceedings, or “a verdict . . . on any cause of action, issue or claim”, a verdict on any issue. Therefore, all that old law about jury trial has to fit into this particular statute which is referring to an issue which, in turn, refers back to 7A and, therefore, it is a very special instance. It is a question of whether the plaintiff was entitled to any verdict on the issue of the 7A, namely, “reasonably capable of bearing a defamatory meaning”.
MR BLACKBURN: Yes, but then the concluding words of the subsection are “and give judgment accordingly”.
CALLINAN J: Mr Blackburn, the unattractive aspect of your submissions is that if you are right and a jury has been perverse, you want the Act to be construed so that you can go back and have another shot at trying to get another jury to give another perverse verdict or perverse decision.
MR BLACKBURN: Your Honour, the authorities are clear that ultimately, if the jury continue to deliver verdicts which the appeal court considers unreasonable, it is the Court of Appeal which must give way, not the jury. The proposition your Honour puts to me proceeds, in our respectful submission, on the assumption that the matter can just keep on ping-ponging forth between the jury and the Court of Appeal until the jury get it right. That is not, in fact, what the authorities say. If juries continue to baffle ‑ ‑ ‑
CALLINAN J: How many goes do they get at it, three or four or three perversities, they are ‑ ‑ ‑
MR BLACKBURN: Your Honour, can I give you an example in recent history, the case of Harvey v John Fairfax. It was a case where two juries determined that an imputation was not conveyed and, on the second occasion it went to the Court of Appeal, the Court of Appeal did not order a retrial.
CALLINAN J: I do not regard that as of any assistance to the construction of the section.
MR BLACKBURN: Can I just take the Court to what Sir Owen Dixon said in Hocking v Bell (1945) 71 CLR 488. At about point 6 on that page his Honour said this:
In New South Wales the power of the court to enter judgment contrary to the actual verdict of the jury is limited to cases in which the party against whom the jury has found is entitled as a matter of law to a verdict. Otherwise, in New South Wales, “a general verdict can only be set right by a new trial; which is no more than having the cause more deliberately considered by another jury, when there is a reasonable doubt or perhaps a certainty that justice has not been done. But to this there is a limit. Juries may baffle the court by persisting in the same opinion, and in such cases it has been the practice for the latter ultimately to give way”.
If the Court pleases, Hocking v Bell was a good example of that very thing where a jury persisted ‑ ‑ ‑
CALLINAN J: In the classically common law cases, not subject to an appeal, any challenge would have to be by writ of error, would not it?
MR BLACKBURN: But, your Honour, this case stands in no different ‑ ‑ ‑
CALLINAN J: No, I am talking about the history. The citation is the text of 1852. Everything was tried by juries in those days, was it not, and the only appeal…..common law.
MR BLACKBURN: But, your Honour, in practice in this case the effect is no different because the Court of Appeal’s powers after a jury trial are so limited. The Court of Appeal does not, did not then, and still does not have the power to draw inferences, make findings of fact or substitute verdicts.
HEYDON J: Was there a section 108(3) in force in England in 1852?
GUMMOW J: I think it was introduced by section 7 of the Supreme Court Procedure Act 1900 and looking at Hansard for 11 September 1900, page 2803, what the Attorney-General said – and this picks up what Justice Callinan has been putting to you – the new section 7:
gives the court power to order a nonsuit or a verdict to be entered, whereas there is no power now except to order a new trial -
The New South Wales Law Reform Commission in the report that preceded the Supreme Court Act in 1969, their Report 69 said section 108 continues the power of the Court of Appeal to dispose of an appeal by final order where it is practicable to do so rather than admit the case to the Court at first instance. That seems to be the history of it.
MR BLACKBURN: Yes.
GUMMOW J: In Shepherd v Felt and Textiles 45 CLR 359- which is on your list, I think, is it not ‑ ‑ ‑
MR BLACKBURN: Yes.
GUMMOW J: ‑ ‑ ‑ Sir Owen Dixon discusses this:
The statutory power of the Supreme Court of New South Wales –
he talks about. He refers to the English Order LVIII rule 4. If you look at LVIII rule 4, it is not that dissimilar from 75A that we now have.
CALLINAN J: Mr Blackburn, am I right in thinking – you may have already said this – that there was no evidence at all called? The only evidence was the article itself?
MR BLACKBURN: Yes.
CALLINAN J: Was there anything else before the jury?
MR BLACKBURN: No, just the article, your Honour.
CALLINAN J: So no witness, no demeanour. There is nothing of that kind?
MR BLACKBURN: No. The point your Honour raises about - as I understand the point your Honour is making, that it seems unsatisfactory that the court should not have the power to substitute a verdict when it determines that the finding of the jury was unreasonable, it is a question of what the statute means. If that is what the Parliament has provided, so be it. It is a matter to take up with your local member ‑ ‑ ‑
CALLINAN J: Yes, but if there is ambiguity in the construction or if there is ambiguity in the language, then we could certainly have regard to what would appear to be an unlikely result and an unlikely intention if there is any ambiguity, and that is classical statutory construction, is it not?
MR BLACKBURN: The answer though to what I think is implicit in what your Honour is saying to me that it is an unsatisfactory result, is that it is the appellate court that must ultimately give way, not the jury. That is why on one view the state of the law we now have is that the matter is remitted for a further trial for a further determination in accordance with section 7A of the Defamation Act for the jury’s determination, and if the jury persist in their view that the imputation is not defamatory, ultimately the appellate court gives way.
CALLINAN J: That is what I am asking you. How many goes do you get at it?
MR BLACKBURN: Well, in Harvey v John Fairfax, your Honour, the Court of Appeal declined to send the matter back for a new trial after the second jury.
CALLINAN J: That is really creating a special rule for a particular cause of action and I really think that is an unlikely result and an unlikely intention.
MR BLACKBURN: Well, no, your Honour, I mean the ‑ ‑ ‑
CALLINAN J: Nobody doubted, for example, in Swain’s Case that the Court of Appeal could do what it did. This Court reversed it. Nobody doubted that that jury question there was not something that could have been finally resolved by a Court of Appeal. You want to set up a special rule for defamation actions.
MR BLACKBURN: No, your Honour. We say that rule would apply in any jury case. Ultimately it is the appeal court that must give way.
CALLINAN J: So you are saying in every jury case the jury has to be given at least two shots at it no matter how perverse the verdict might be? Is that what you are saying?
MR BLACKBURN: That is what the law prescribes, your Honour, particularly in relation to defamation because of section 7A and now section 22 of the Defamation Act.
GLEESON CJ: Mr Blackburn, in that case that you just mentioned, Harvey, in paragraph [101], the essence of the issue raised by Justice Callinan in relation to the matter of evidence is addressed, is it not?
MR BLACKBURN: It is.
GLEESON CJ: In the first sentence at paragraph [101], and I cannot work out who the author of this is ‑ ‑ ‑
MR BLACKBURN: Justice Hunt, your Honour.
GLEESON CJ: Justice Hunt. It said:
Although not expressly stated in that judgment, the logic of applying s 108(3) in favour of an onus-carrying party in such a case is not necessarily inconsistent with the statement by Latham CJ in Hocking v Bell . . . There is usually no evidence on those issues which it is open to jury to accept or reject.
He was pointing out that usually all the jury has is the defamatory matter, there being no question of there being any evidence for the jury to accept or reject. The reason given by Chief Justice Latham in Hocking v Bell for saying you cannot direct a verdict in favour of an onus-carrying party disappears. Now, whether that is right or wrong, that is what this argument turns on, is it not?
MR BLACKBURN: It does, your Honour, but, with great respect, that proposition is wrong because it makes – and it is the fundamental error which we say infects this way of thinking. It is a mistake to confuse or to conflate uncontested evidence, which is what his Honour Justice Hunt is referring to, with undisputed facts. In this case, there remain two fundamental questions of fact for the jury which were whether the imputations were conveyed and whether the imputations were defamatory.
KIRBY J: The second is a bit awkward though, is it not, given a conclusion that no reasonable jury could conclude otherwise?
MR BLACKBURN: I will have to take your Honours to authority, but that is no more than, in effect, a statement of opinion by the Court of Appeal prefatory to determining whether to exercise its jurisdiction to remit the matter for a new trial.
KIRBY J: I am still concerned with the matter Justice Hayne raised, and that is the use of the word “issues,” and whether or not all of the old law that you want to bring in by the rubric of “as a matter of law” comes in when you are dealing with this very peculiar, particular, specific defamation focus procedure as section 7A. If that is all that is involved and if that is an issue and if the conclusion of the Court of Appeal is that it would be unreasonable to conclude otherwise and if all that was involved was the matter complained of and there is no other evidence and no issue of credibility, it seems a little unreal to then say it has to go back to a jury even though no reasonable jury could reach a different conclusion. It seems a contradiction in terms.
MR BLACKBURN: No, your Honour, because a second jury might take a different view and then the question becomes, should the Court of Appeal give way? Should it order a retrial?
HAYNE J: But the hypothesis for consideration is that the first Court of Appeal has concluded that it was not open to a jury, properly instructed, reasonably to reach the conclusion which it did.
MR BLACKBURN: Yes, your Honour, but that is a very different thing, in my submission.
HAYNE J: That is to say, the conclusion is no reasonable jury might find what they found.
MR BLACKBURN: Yes, but your Honour, one has to look at that finding in terms of what the Court of Appeal is empowered to do. The Court of Appeal has always been empowered to make that finding for the purpose of determining whether the matter should be sent back for a retrial. It is fundamentally distinct from a finding of fact of a material issue in the trial.
The Court of Appeal has no power to decide that an imputation was defamatory and the two are absolutely distinct. If it was an appeal from a judge, a trial by judge alone, then the Court of Appeal has the powers which are set out in section 75A. It can draw inferences of fact. It can make findings of fact, those facts being relevant to the causes of action, whether the causes of action are made out. But a determination that the Court of Appeal has traditionally always been able to make that ‑ ‑ ‑
GUMMOW J: You cannot have a tradition that started in the 1970s.
MR BLACKBURN: No, your Honour, I am so sorry. The court in banco and its predecessors.
GUMMOW J: You mean habitually.
MR BLACKBURN: What the court in banco prior to 1970 was empowered to make was a determination that no reasonable jury, properly instructed, could have reached that result. That is a factual finding which is entirely irrelevant to any issue in the cause of action. It is not a fact in issue in the trial. It is completely distinct from a factual finding that the imputation was defamatory or that it was conveyed which are facts in issue in the trial and are relevant to the cause of action.
The Court of Appeal and the Supreme Court in banco has always had the power to make the first finding but it has nothing to do with whether the cause of action is made out. It never has had and still does not have the power to make the second finding after a jury trial. One can say, as a matter of lay usage, that if the Court of Appeal has determined that no reasonable jury could have made the factual finding, then it is saying in effect that the factual finding is wrong and that in fact the imputation was defamatory. One can say that as a matter of lay usage but at that point the Court of Appeal runs out of power as a matter of law because it does not have the power to find that the imputation was conveyed. If that is an inconvenient result it is a matter for the Parliament.
GUMMOW J: Is there anything more in it than what Justice Starke said in Shepherd v Felt and Textiles in his usual terse fashion at 45 CLR 373, “Where on the uncontroverted facts” – here we just have the article, “an issue” – that is the second ‑ ‑ ‑
MR BLACKBURN: Your Honour, we would agree with that ‑ ‑ ‑
GUMMOW J: Just a minute, the 7A issue:
must be determined in favour of one party, then –
that is the matter of law –
as a matter of law, that party is entitled to the verdict in the action or upon the issue.
The 7A issue.
MR BLACKBURN: We would agree with that proposition, your Honour, but the trouble is in this case there were not uncontroverted facts. The fundamental facts in issue in the 7A trial were in keen controversy. It is not a question of uncontroverted evidence or undisputed evidence, it is a question of uncontroverted facts.
GUMMOW J: I do not understand what you are saying, Mr Blackburn.
MR BLACKBURN: Your Honour, it is this, that it was for the jury to determine whether the facts in issue, namely, whether the imputation was conveyed and whether the imputations were defamatory, were true or not or existed or not. I will have to take the Court to some authorities, if I may. Can I take the Court first to McPhee v S. Bennett Ltd (1935) 52 WN (NSW) 8 at page 9?
GLEESON CJ: Have you agreed on a division of the time with Mr Reynolds?
MR BLACKBURN: We have not formally, your Honour.
GLEESON CJ: If you have not by lunchtime, you can make an agreement over lunch. What page?
MR BLACKBURN: Page 9. May I preface reading from this case by making this observation. We say that the entry of a verdict as the Court of Appeal did in this case was not the entry of a verdict as a matter of law and this passage, beginning at the second paragraph on page 9 from this judgment, illustrates that proposition.
CALLINAN J: Mr Blackburn, if what you say is right, why would the Court of Appeal be able to reverse it and do what you say they cannot do here when they have a second shot at it after the jury has had two goes at it? What changes? As I understand it, you have conceded and you contend that the authorities say that the Court of Appeal at some stage can call a stop and say, “The game’s got to stop”. What is it about the second occasion that distinguishes it from the first occasion?
MR BLACKBURN: It is a question of discretion, your Honour.
CALLINAN J: Are you are telling me that there is a rule, an inflexible legal rule that a jury has a right to be perverse twice?
MR BLACKBURN: No, I am not saying that, your Honour. I am saying that the question of whether a matter is remitted for a new trial is a matter of discretion.
CALLINAN J: The discretion should always be exercised the first time by remitting the matter for a new trial but it ought not to be exercised a second time that way even though everything remains exactly the same.
MR BLACKBURN: It is a matter for the discretion of the appeal court, your Honour. In Hocking v Bell I think there were four trials, or three anyway, but ultimately the Court of Appeal ‑ ‑ ‑
CALLINAN J: We try to avoid that sort of multiplicity of trials and prolongation of litigation these days - I do not know how successfully, but that is what we are trying to do.
MR BLACKBURN: Your Honour, it would be very easy if the Parliament of New South Wales enacted a provision similar to the provisions of section 75A ‑ ‑ ‑
CALLINAN J: But you are saying this must be a judge-made rule if there is such a rule, “We’ll give them one opportunity to be perverse but not two”. Parliament does not say that anywhere, does it?
MR BLACKBURN: I am not saying that, your Honour. I am saying that ultimately ‑ ‑ ‑
CALLINAN J: But you are adopting decisions which you say inevitably involve that proposition.
MR BLACKBURN: They inevitably involve the proposition that at some point, if the jury persist in their opinion, it is the appeal court that must give way and there comes a point ‑ ‑ ‑
KIRBY J: It may be that the way it is reasoned is that although we as judges think that it is not defamatory and although that was said by an earlier Bench, we have such respect for jury trial that we will reconsider our inclination and accept what the jury has now repeatedly concluded. That is the commonsense and practicality of the common law. I do not find it all that difficult and it is pretty well known that that happened in Hocking v Bell and the courts say that “As judges we think it’s not defamatory or not negligent but if the jury keeps saying it is, we should accept that”. That is the way the system works.
MR BLACKBURN: There is nothing strange or remarkable about that proposition, in my submission, nothing at all. It would be even open to the Court of Appeal to say, “We don’t actually change our view but we note that two juries have decided differently and in our discretion in deference to the jury’s opinion, we won’t remit it for a new trial”, and there would be ‑ ‑ ‑
KIRBY J: It might be even before you get to defences that a jury of citizens coming into court could say of the matter complained of, “We rather enjoy the reviews of restaurants in the newspaper and we think the big end of town restaurants have got to be willing to accept a bit of criticism and that’s the type of free society we live in and we don’t want to get into issues of the defences, we just don’t think this is defamatory according to the stands of Australian society today”.
CALLINAN J: Once a jury does that, they are into the defences.
MR BLACKBURN: No, your Honour.
CALLINAN J: Once they do that, they are not considering properly – they are not carrying out their duty of considering the precise questions which they are asked. Once they start thinking in terms of what is the big end of town or the little end of town, and what is fair or what is not fair or what they like to read, they are not considering the questions that they are asked. It has nothing to do with those matters. They might provide good defences – they might – they certainly do not have anything to say about the questions which were put to them.
KIRBY J: It could be relevant to whether it is capable of being defamatory in Australian society today. If you are a believer in free speech, then that could well be a view the citizens could take.
MR BLACKBURN: A citizen could easily take the view that the reflections made on a restaurateur, the proprietor of a restaurant, in imputations (a) and (c) were not such as in the 21st century to reflect on the competence of the restaurateur in their trade or profession, either on the question of service or food. It may reflect on the competence of the chef and it may reflect on the competence perhaps of the front‑of‑house person who supervises the waiting staff, but it is demonstrably self‑evidently open to a jury, in our submission, to find – and particularly in relation to imputation (c) – that an imputation that the restaurant provides some bad service is not such as to reflect on the competence of the proprietor of the restaurant.
Now, that may be a conclusion which this Court disagrees with or thinks is wrong but that is not the question. Is the jury entitled to come to that view? The reason, on one view, why the State of the law in New South Wales is that this matter has to go back for a retrial and the Court of Appeal cannot just substitute its view is that it is for the jury, and if the jury persist in that view, then the Court of Appeal will stand corrected. That is the state of the law.
GLEESON CJ: I think we have that point.
MR BLACKBURN: Your Honour, can I go to McPhee v Bennett at page 9, the passage beginning in the second paragraph, and this is in support of our submission that the respondents were simply not entitled the entry of a verdict as a matter of law. Sir Frederick Jordan said this:
The question whether there is any evidence of a particular fact is also a question of law –
and I omit the citations –
But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law –
and that, of course, is the situation that we have here. The jury had to determine whether the admittedly uncontested evidence was sufficient to establish the facts in issue. Then his Honour went on to say:
unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact.
It is not the case here:
If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive. In that case the party upon whom the burden of proving the fact lies must fail. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it.
And I interpolate, it can just as easily not accept that the undisputed evidence establishes the fact contended for:
There are, no doubt, authorities which decide that, in a trial at nisi prius, if the evidence is all one way, and there is no reason to doubt its genuineness and accuracy, the trial judge may take the question from the jury, and a full court may set aside a perverse finding of a jury if he does not. This is, however, because both the trial judge and the full court have a certain measure of control over a jury’s finding of fact; and it is this which enables a full court to set aside a verdict on the ground that it is against the evidence and the weight of evidence, notwithstanding that this is a question of fact.
Now, that establishes, and the subsequent authorities I wanted to take the Court to establish, that the question whether the evidence given to the court by an onus-carrying party is so sufficient as to be conclusive, such that any contrary verdict would be unreasonable, is a pure question of fact. Therefore, the entry of a verdict in favour of the onus-carrying party after such a determination by the Court of Appeal cannot be the entry of a verdict as a matter of law. It is a pure question – it raises ‑ ‑ ‑
KIRBY J: The question is whether all of that law applies to the very special procedures of 7A issue for determination, whether you pick it up and apply it where it was, in a sense, defensive of the rights of the jury trial, period, but whether that really applies equally in this particular case where it is a jury determination of a very particular issue where it is just the document and it is said that no reasonable jury could find otherwise.
MR BLACKBURN: Your Honour, it must apply with its full force, in our submission, because it is the very circumstance postulated by Sir Frederick Jordan. It is a question of fact whether the evidence is sufficient to establish the facts contended for by the plaintiff. It does not matter a jot that the evidence is uncontested. It does not matter a whit because the question for the jury is not one of sifting through the evidence and assessing demeanour and so on. It is, in a 7A trial, a particular function of assessing whether the evidence establishes the fact the plaintiff contends for. So that what Sir Frederick Jordan said does apply, in our submission, in its full force.
The next case that I would like to take the Court to is Clark v Flanagan (1934) 52 CLR 416 at 427which is on our list. At about point 9 on that page – again this is in the judgment of Sir Owen Dixon. This was a case, and there were a number of them where – it was an appeal from the Workers’ Compensation Commission. The question was whether the appeal was on a matter of law. At the bottom of ‑ ‑ ‑
GUMMOW J: How is this going to help us in construing section 108(3)?
MR BLACKBURN: It is a short statement of the principle, your Honour.
GUMMOW J: What principle?
MR BLACKBURN: That the question whether the evidence conclusively establishes a fact so as to make any contrary finding perverse is a pure question of fact. Beginning at the bottom of page 427 ‑ ‑ ‑
GUMMOW J: For the purposes of this appeal section.
MR BLACKBURN: I am sorry, your Honour?
GUMMOW J: For the purposes of this peculiar appeal structure under the workers compensation legislation.
MR BLACKBURN: Yes. Well, it is just a statement of the principle, your Honour.
GUMMOW J: All right.
MR BLACKBURN: At the bottom of page 427 it was contended that:
the Commission was bound in point of law to find that at the time of injury the workman was at the tree ostensibly working. It must be conceded that the material before the Commission strongly supports such a conclusion of fact, but the initial burden of proof is upon the applicant and the question whether he has so completely discharged it as to make a finding to the contrary unreasonable is not a question of law.
There is a reference to Shepherd v Felt and Textiles and Driver v War Service Homes Commissioner.
GUMMOW J: There are endless cases on section 44 of the Administrative Appeals Tribunal Act (Cth) on this question, but I do not think they give us any help on what section 108(3) of the New South Wales statute means.
MR BLACKBURN: In our submission, it does provide assistance, your Honour.
GUMMOW J: With its deep root in the common law system of trial by jury which the workers compensation courts and tribunals do not have.
MR BLACKBURN: Your Honour, the Court of Appeal can only exercise its power under section 108(3) if it thinks that the party is entitled to a verdict as a matter of law.
GUMMOW J: The question is what the phrase “as a matter of law” means in that section. The notion between law and fact is an extraordinarily slippery one and it slips and slides over various areas of the law.
MR BLACKBURN: We accept that, your Honour. It may be of some assistance to go to some decisions on section 7 of the Supreme Court Procedure Act which was the predecessor of section 108. I will take the Court to Hocking v Bell (1945) 71 CLR 430 at page 498. This was a case where section 7 was in issue. I should say that Chief Justice Latham and Justice Dixon were in the minority when the matter went to the Privy Council subsequently. The Privy Council approved the views that had been expressed by Chief Justice Latham and Justice Dixon. The second paragraph at page 498:
In the case of Driver v War Service Homes Commissioner [No. 1] Cussen A-CJ, in reference to an application for an order that arbitrators state a special case, fully discussed the matter and collected the authorities. He ends his discussion by saying:- “From these cases I concluded that where there is a real conflict of evidence, no question of law . . . arises, and that no such question arises even if the evidence . . . is all on one side, if on that side is the onus of proof, but that the question whether there is or is not any evidence upon which there might properly be a finding in favour of the person upon whom is the onus of proof may be a question of law.”
There is a reference to Shepherd v Felt and Textiles.
GUMMOW J: Shepherd v Felt and Textiles is a useful case because it was a pure document case, was it not?
MR BLACKBURN: Yes, but of a very different kind, your Honour. It was not a defamation case. Well, no, your Honour, the distinction is important because in a pure document case the construction of the document may be a question of law, but it is never a question of law in a defamation case. Can I just take the Court to paragraph 20 of our submissions where we have extracted a passage from the speech of Lord Devlin in Lewis v Daily Telegraph where his Lordship said this:
In general the meaning of words is a matter of law and therefore need not be pleaded, though where there is a difficult question of construction in issue it is usual and convenient to do so. But in defamation the meaning of words is a question of fact, that is, there is libel or no libel according to the impression the words convey to the jury and not according to the construction put upon them by the judge.
Your Honour Justice Gummow, that is the distinction between Shepherd v Felt and Textiles and this case. But there is another distinction. In Shepherd v Felt and Textiles the facts were regarded by the appeal court as fully found; there were no facts to be found by the tribunal of fact in Shepherd v Felt and Textiles and that is why it was held proper to enter a verdict in favour of the defendant, be it noted, not the onus-carrying party, because there were no further facts to be found and the application of the facts to the law inevitably led to a verdict in favour of the defendant.
KIRBY J: Why is that not analogous to this case where there are no further facts to be found? They are all there in the document which the court can read as well as the jury.
MR BLACKBURN: Your Honour, there were further facts to be found – the only two facts in the trial – and they were fundamental, namely, whether the imputation was conveyed and whether it was defamatory.
HAYNE J: What do you say as to what Justice Dixon says in Shepherd at the foot of page 379 over to 380?
MR BLACKBURN: Your Honour, what I say about that is this – and we respectfully agree with it:
sometimes, the facts from which a legal conclusion arises in favour of the party who has the onus of proof, appear in a manner which entitles or requires the Court to notice and act upon them.
Your Honour, that is the distinction between Shepherd v Felt and Textiles and this case. The facts in this case do not appear because nobody has found them.
HAYNE J: Read on.
This may be because facts are admitted or undisputed, or because the question turns upon the interpretation or effect of documents.
Is this not of the last class?
MR BLACKBURN: No, your Honour, because this is a defamation case and it has been said on many occasions – Lewis v Daily Telegraph is one such occasion – that the interpretation or effect of documents, while it might normally be matter of law, is unarguably ‑ ‑ ‑
HAYNE J: Let us leave aside this slippery distinction between fact and law. Let us focus upon the role of the appellate court. The undisputed premise for your argument is, is it not, that the Court of Appeal held that a jury reasonably instructed could not reach the conclusions the jury reached?
MR BLACKBURN: Yes, which was a factual determination by the Court of Appeal.
HAYNE J: Well, fact, legal – as I say, let us eschew that distinction because it carries too much baggage. That is the premise. That being so, why does it not follow under 108 that the issue thus presented was an issue on which, as a matter of law, no other conclusion being reasonably open to a properly instructed tribunal of fact, entitled the Court of Appeal to direct a verdict on that issue?
GUMMOW J: Can I just add, the relevant matter of law is the law regulating juries, right?
MR BLACKBURN: No, your Honour. The relevant law is section 7A.
GUMMOW J: In the section, that is what they are talking about.
MR BLACKBURN: Yes, section 7A of the Defamation Act.
GUMMOW J: All right.
MR BLACKBURN: To answer your Honour Justice Hayne’s question ‑ ‑ ‑
GUMMOW J: That seems to carry with it the notion that 7A(3) cannot apply in these cases. The question is, at what level do you pitch the notion of matter of law? The matter of law is perversity of juries, as Justice Callinan has been talking about. And that is what Sir Owen Dixon is talking about.
MR BLACKBURN: Your Honour, perversity of juries is a question of fact, not a question of law. That is what all the cases say.
GUMMOW J: We all know juries just try facts, right?
MR BLACKBURN: Yes.
GUMMOW J: There are a whole lot of legal principles about when they do and do not go off the rails and that is questions of law, that is all I am saying to you.
MR BLACKBURN: Your Honour, in my submission, no. The authorities that I have taken the Court to conclusively establish that the question whether the jury’s decision was perverse or unreasonable raises no question of law, it raises a question of fact.
GUMMOW J: If it is a pure question of fact, under the common law system that would then have to be itself tried by a jury, would it not?
MR BLACKBURN: No, your Honour, because it is not a fact in issue in the case. It is a determination the Court of Appeal is empowered to make for the purpose of determining whether there should be a new trial but, your Honours ‑ ‑ ‑
CRENNAN J: What about if the perversity issue is whether there is any evidence of a particular fact?
MR BLACKBURN: Your Honour, that is a question of law.
CRENNAN J: That is right.
MR BLACKBURN: But that is quite different. May I take the Court to another case on our list which is Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at page 155.
KIRBY J: It is cruel of you to cite this case.
GUMMOW J: I have to say to you that Justice Kirby’s dissent in this case is often relied upon in construing section 44 of the Administrative Appeals Tribunal Act, which is an illustration of this slippery distinction. To an uninstructed observer this case appears as a decision of the majority designed to cut down the avenue of appeal to the Court of Appeal in workers compensation matters, to be brutal, and that did not seem to be to us the policy at 44 of the Administrative Appeals Tribunal Act because it was the only access to the judicial power of the Commonwealth, so it all depends on the context.
MR BLACKBURN: Yes, but the significance of the passage at 155 in the judgment of Justice Glass points up the distinction between what you might call the situation we have here and the situation where a plaintiff is nonsuited. I hope perhaps to answer your Honour Justice Crennan’s question. Where a defendant goes to court and says, or at a jury trial, for example, says, “This issue should be taken from the jury because upon the whole of the evidence there is no evidence fit to go to the jury on this issue contended for by the plaintiff”, that raises a question of law. But, on all the authorities, in our submission, where the issue is whether the evidence conclusively determines an issue in favour of the onus‑carrying party, such that any contrary verdict would be perverse, unarguably raises a question of fact because such a determination assumes that the jury have accepted all the evidence as establishing the fact concerned.
Whether the assumption is made because it is assumed that the jury will believe one witness over the other, or whether the assumption is that the jury will find the fact from the undisputed evidence, the assumption is there and it cannot raise a question of law, in our submission. I will not read the passage on 155 going into 156 but his Honour Justice Glass highlights the distinction between the two cases, the nonsuit case, as it were, where the defendant who does not have the onus says there is no issue fit to go to the tribunal of fact which is a question of law, and the case where it is asserted that the issue in favour of the onus-carrying party is conclusive which always raises a question of law. So we say that the question determined by the Court of Appeal raises no question of law at all, it raises a question of fact on high authority and, therefore, the application of the section in this case is stillborn.
What would have been a question of law in this case is if at the trial the defendant had made an application after the evidence was tendered, for the issue to be taken from the jury. In practice, that does not happen because there is a defamation list and they have arguments about capacity but the application could have been made and sometimes is in defamation cases that, upon the evidence tendered, there is no issue to go before the jury on the questions it has to answer and that is a question of law for the trial judge.
The other submission we make on the section 108 point is this, and I have started to make the submission. In order to enter a verdict for a party under section 108(3), the facts must be fully found and I have already submitted to the Court that in this case the only facts, that is whether conveyed and whether defamatory, the second of those facts was not found by anybody, not found by the jury, not found by the Court of Appeal because it had no power to do so. That is a precondition, in our submission, for the operation of section 108; there must be no further facts be found. And the point was comprehensively made, in our submission, by ‑ ‑ ‑
GUMMOW J: On an issue? The section talks about issues, does it not?
MR BLACKBURN: Yes, your Honour, but the use of the word “issue” there means it is ejusdem generis ‑ ‑ ‑
GUMMOW J: I thought you had agreed that that phrase was apt to include a section 7A(3) procedure.
MR BLACKBURN: No, your Honour, sorry. What we say about “issue” is it simply ejusdem generis with cause of action issue or claim, entitled to a verdict in the proceedings on any cause of action, issue or claim for relief in the proceedings.
GUMMOW J: There is a submission that section 7A issues can never give rise in their resolution to a 108(3) situation. The section just does not bite, cannot bite at all.
MR BLACKBURN: No, your Honour, it could only give rise to a 108(3) situation if the defendant said at the trial, “There is no evidence fit to go to the jury ‑ ‑ ‑
GUMMOW J: At trial of what?
MR BLACKBURN: At the trial of the 7A issue. The defendant said, “Here’s the evidence and there is nothing in that evidence that bears on the facts in issue, namely whether the imputation was conveyed, and the issue should be taken from the jury”. That is the only relevance that section 108(3) could have to the 7A process, in our submission.
GUMMOW J: That has to be your starting point, I would have thought.
MR BLACKBURN: Yes, your Honour ‑ ‑ ‑
GUMMOW J: If you are right about that, everything else that happened in the Court of Appeal disappears. If you are right, I mean that is an issue of construction.
MR BLACKBURN: Yes, indeed.
GUMMOW J: Where do we see that in your written submissions?
MR BLACKBURN: Paragraph 42.
GLEESON CJ: Yes.
MR BLACKBURN: Can I take the Court to Hocking v Bell and the judgment of Chief Justice Latham? At page 441, about point 4 in the passage beginning:
But in New South Wales the Judicature system is not in force, and the powers of a Full Court are less extensive. After a trial by jury the Full Court upon appeal has no power to draw inferences of fact ‑ ‑ ‑
GUMMOW J: Just stopping there for a minute. Order 58 rule 4 is the ancestor of section 75A, is it not?
MR BLACKBURN: Yes, your Honour. That is correct.
and though it may order a new trial where the verdict is against evidence and the weight of evidence, it cannot order a verdict to be set aside and judgment to be entered for the party against whom the verdict was given unless the conditions prescribed by the Supreme Court Procedure Act 1900, s. 7, are satisfied. Section 7 provides –
and the text is there set out. We say that in substance it has the same effect as the current section 108(3) although it deals with other matters as well, probably contained in section 108(2). His Honour went on to say this.
Thus, in the present case the Full Court could properly order a verdict to be entered for the defendant only if the defendant is “as a matter of law entitled to a verdict.” If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony -
Pausing there, I interpolate - and to decide whether they accept the evidence as establishing the facts the plaintiff contends for. Then, if the Court pleases, there is a passage which at first blush may seem against us but is not. I read on:
But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case -
There is a reference to what Justice Starke said in Shepherd v Felt & Textiles, but then his Honour went on to say this – and bear in mind that Hocking v Bell was a case where the defendant was the party who was applying for judgment. His Honour the Chief Justice’s comments at the bottom of page 441 have to be seen in that context. But then to make it perfectly clear, the Chief Justice went on to say:
Under s. 7 the Full Court can never direct a verdict for the party upon whom the onus of proof lies (the plaintiff in this case), because the question whether or not the evidence for that party should be believed –
we interpolate, accepted as proving the fact in issue –
is essentially and necessarily a matter for the jury.
Now, I said that what is said at the bottom of page 441 at first blush may appear to be against us, but, properly understood, it is not because his Honour could not possibly have been saying that indiscriminately either plaintiff or the defendant, if it is determined that the verdict was unreasonable then the other party can get a judgment, because his Honour expressly contradicts any such proposition with what he says at page 442:
the Full Court can never direct a verdict for the party upon whom the onus of proof lies –
because it is a question for the jury whether the evidence is accepted.
KIRBY J: But is that on the hypothesis that there are facts to be determined?
MR BLACKBURN: Yes, we would say, yes, your Honour.
KIRBY J: But here what extra facts are there to be determined given that it is simply a question of evaluating the matter complained of, which is a written text?
MR BLACKBURN: The only fact to be determined, your Honour, whether the written text conveyed the imputation and whether it was defamatory. That is the only and fundamental fact to be determined in a 7A trial. It is entirely irrelevant that there was no dispute about demeanour or credit.
KIRBY J: Do you say that though it may be true in a theoretical way that judges can decide those matters as well as juries, Parliament has said it shall be tried by jury, you have elected for jury, and you lost the jury verdict that you won at first on the first trial on a misdirection and you should go back to the jury to have a proper and due trial by jury, which is your entitlement?
MR BLACKBURN: It is the only thing that can happen, your Honour, in our submission, because there was just no power in the Court of Appeal - for the reasons that we have advanced – to effectively substitute its own finding of fact for the contrary finding of fact of the jury. That is what happened. The error, in our submission, was to elide or conflate the finding or non‑finding of the fact in issue, namely, “Was this imputation defamatory?” which is a relevant fact in the cause of action, but something entirely different to the Court of Appeal’s determination that the verdict was perverse, which has nothing to do with any fact in issue in the trial and is irrelevant to the cause of action and is not part of the evidence in the trial.
KIRBY J: But if you read the matter complained of, pretty clearly it is very critical of the restaurant. Take the oysters, the only oyster they found any good was the natural oyster. Whenever anything was done by the restaurant it ruined it and that, on the face of things, given its place and its clientele, would be damaging to the restaurant.
MR BLACKBURN: Yes, your Honour, but the issue was whether the defamatory imputations chosen by the plaintiff and conveyed and found to have been conveyed were regarded by the jury as defamatory. Now, it does not answer that question simply to say, well, you look at the restaurant review and it was highly critical. It does not answer the question that the jury had to answer, namely, was the particular defamatory meaning which the plaintiff chose and complained of defamatory of the plaintiffs?
HAYNE J: You conflate two separate considerations, do you not? You conflate the notion of a question of fact, the question of fact being the question presented by 7A of the separate and distinct consideration of 108(3) whether, as a matter of law, you are entitled to a verdict. Now, is that conflation permitted? It is not immediately apparent to me why such a conflation can be made given the hypothesis for consideration I have earlier identified to you, namely, not reasonably open to conclude. Is it not as a matter of law then the entitlement of the plaintiff to the favourable determination of the issue presented in the 7A hearing?
MR BLACKBURN: I will answer that in two ways, your Honour. The first point I have already made, the authorities say otherwise and I will not say any more about that, but the second point I have already made is that section 7A provides the decision is to be made by the jury. But the third point is this – I may already have made this point – it may, in substance, in lay parlance it may be correct to say that if the Court of Appeal says that the verdict is perverse they are in fact saying that the imputation is conveyed. That does not answer the question in the realm of the law. In law, when the Court of Appeal says, as a matter of fact, your decision was wrong and perverse it is not saying that imputation was conveyed because, of course, it has no power to do so.
If it is saying, as a matter of fact or a matter of opinion, if the Court of Appeal is raising a question of fact, namely, that the decision was perverse, it was a decision which no reasonable jury could have given, it is raising a question of fact which cannot entitle the plaintiff, as a matter of law, to the entry of a verdict. There is a complete discontinuity between the two matters, in our submission, your Honour.
KIRBY J: I take the force of the authorities you have drawn to our notice but why, in point of principle, would one not say, in today’s age where rationality is a high standard of our courts, whether jury trial or judge trial, that if a finding can be impugned as perverse that in today’s age that can be seen as an error of law, because to say that a finding of fact is perverse is a very serious thing, to say, “Well, we accept that, it is just the privilege of a jury to muck it up?” Why do we not now say that a seriously wrong finding that really is not available and is designated as perverse is to be seen as an error of law?
MR BLACKBURN: Your Honour, I think I only have one answer to that and I hope it is a good one, but even given the fluidity of the whole issue of what is a question of law, the jury determining whether or not an imputation was conveyed cannot possibly make an error of law, it can only make an error of fact.
GLEESON CJ: You have to put it that high because we do not have to move mountains here, it is just a question of statutory construction.
MR BLACKBURN: Yes, your Honour, it is.
GLEESON CJ: Which usually, surprising as this may be to some people, turns on questions of what is sensible and just and, often, what is convenient.
MR BLACKBURN: Your Honour, the legislative scheme we have provided by Parliament is that the Court of Appeal’s option in a case such as this is either to do nothing, not to exercise its discretion to omit the causes of action for a new trial, or to remit them for a new trial. We would not accept the proposition at all that if a second jury finds that these imputations are not defamatory then some sort of injustice is done to the plaintiff. That is not a self-evident proposition to us and we cannot accept it. We would say that if a second jury defines that these imputations are not defamatory then justice has undoubtedly been done because two juries have made that finding and the Court of Appeal should either accept that the jury’s finding is right or defer to the jury and not exercise ‑ ‑ ‑
HAYNE J: It is an odd result, is it not, Mr Blackburn. We have been round this loop, I think, at least three times this morning but it is an odd result that on appeal No 2, the Court of Appeal solemnly says to itself, “We think no reasonable jury could possibly have arrived at this conclusion but despite the fact that we have solemnly arrived at this conclusion, we are going to reach the opposite”. You do some unusual thinking as a judge perhaps but that is distinctly different, I would have thought.
MR BLACKBURN: No, that is the law. Secondly, we, while accepting the force of what your Honour the Chief Justice says, we do not accede to the proposition that because the Court of Appeal has determined that the four people chosen to be the jury somehow got it wrong, then an injustice has been done because a second jury might agree with them.
HEYDON J: It would still be an injustice if the second one got it wrong.
MR BLACKBURN: Not at all, your Honour, because ‑ ‑ ‑
HEYDON J: Ten could get it wrong and it would be a gross injustice.
MR BLACKBURN: No, your Honour, because it may be that the jury got it right and the Court of Appeal got it wrong, if I may say so with great respect.
HEYDON J: Yes, but it is a question of bringing one’s own mind to the problem and seeing whether the juries are right or the Court of Appeal is right. Speaking generally, one, of course, naturally thinks oneself is right. If one reaches that conclusion an injustice has been done to a plaintiff who has been put through those processes.
MR BLACKBURN: I understand, with respect, what your Honour puts to me but it may not be that clear‑cut. If a second jury comes back with the same result then there is a real live question about who has been done the injustice. It is not self-evident that simply because a second jury brings in the same answers as the first jury then the plaintiffs have been done an injustice. We cannot accept that proposition.
I understand what your Honour puts to me about the Court of Appeal having determined that it was perverse and the Court of Appeal taking that view but it may be that the jury takes a different view. That is why Sir Owen Dixon in Hocking v Bell approved the statement that he quoted. It is not the jury that gives way ultimately. It is the Court of Appeal that gives way.
HEYDON J: It is the plaintiff that gives way ultimately, because if the Court of Appeal keeps sending it back it is a question as to how much money and energy the plaintiff is prepared to spend on this process.
MR BLACKBURN: May I just develop that further, your Honour. Parliament has provided that the jury is the arbiter of the community values involved in determining whether an imputation is defamatory. If the community, as represented by the jury, tolerates the criticism and says that it is not defamatory, then why should it be said that the jury get it wrong ‑ ‑ ‑
HAYNE J: That is an argument against appellate control of juries. Now, that argument, I think, probably was lost when, the 17th century. There has been appellate control of juries for a very long time.
MR BLACKBURN: There has been, your Honour, but the appellate control over juries in New South Wales after a jury trial is very limited and your Honours have seen what it is. We say it is largely restricted to sending a matter back for a retrial except where as a matter of law when the facts are fully found and the facts require a legal conclusion the Court of Appeal can interfere and substitute a verdict. That is not the case here. It is not just a question of the Court of Appeal purporting to reverse a fact found by the jury. The jury did not find it. No one has found the relevant fact.
How can it be said that as a matter of law the respondents are entitled to the entry of a verdict? The only thing that can be done, in our submission, is to remit those imputations for a new trial and section 108(3) gives nothing to the point. The second matter we raise in this appeal is the issue of community standards.
KIRBY J: I thought the second matter was the discretionary matter. Are you going to come to that?
GLEESON CJ: Or have you said what you want to say about it?
MR BLACKBURN: No, I have not said what I want to say about that matter.
GLEESON CJ: We need to hear what you want to say about that matter.
MR BLACKBURN: Your Honour, what we say about the discretionary point is simply this. The Court of Appeal determined in its discretion that there was nothing infecting the jury’s finding in relation to imputation (b) and that there was no need and no reason to remit imputation (b) for a new trial, it apparently being the case that if the verdict was available and there being no suggestion that the jury had misbehaved in relation to that imputation. That was an exercise of discretion which, in our submission, this Court should not interfere with.
KIRBY J: Yes, but there was the second discretionary question. That is to say, you keep conceding that first one but we want to hear you on the second one. Having decided that one matter would go back to the jury, was it a misapplication of the discretion, and a misapplication of the authority of this Court, that ordinarily the whole matter should be dealt with by the one tribunal for the Court of Appeal to further bifurcate the matter and not send both matters back to the jury.
HEYDON J: Which ground of appeal does this present argument relate to? Sorry to cut across Justice Kirby’s question.
MR BLACKBURN: It is ground (f), your Honour.
GLEESON CJ: I think that was what you were about to come to a moment ago ‑ ‑ ‑
MR BLACKBURN: It was. It is inextricably tied up with the question of discretion. We said ‑ ‑ ‑
HEYDON J: Which paragraph of the written submissions deals with discretion?
MR BLACKBURN: Your Honour, the submissions begin at paragraph 43.
HEYDON J: That certainly goes to ground, or may well go to ground (f) but where does discretion fit in?
MR BLACKBURN: What happened, your Honour, was that we submitted to the Court of Appeal that imputations (a) and (c) should, in the exercise of the court’s discretion whether to substitute a verdict under section 108 or remit those imputations for a retrial, that the imputation should be remitted for a retrial because the question of whether the imputations were defamatory raised a fundamental question of community standards which the jury should answer. That submission was rejected but the Court of Appeal said, “Well, when you come to the question of whether it is defamatory, when you come to the test of whether the imputation affects a person in their trade or profession, community standards are not important”.
GUMMOW J: Now, Mr Blackburn, this word “may” in section 108(3) means, does it not, is empowered?
MR BLACKBURN: Yes.
GUMMOW J: I have read you what was said in the Hansard, “a new power that they did not have before”. How could one say that if upon the evidence a party, as a matter of law, was entitled to a verdict that nevertheless that person has to go and endure a new trial? In other words, what is this discretion everyone is talking about in 108(3)? It is couched in the language of entitlement, present entitlement. Why would you postpone and subvert the present entitlement by subjecting the unfortunate person with the entitlement to a further ordeal which might lead to a loss of that entitlement?
MR BLACKBURN: Your Honour, I can give your Honour an example of why that should be so. Let it be assumed that the jury have found that an imputation was not conveyed and therefore did not get to the question of whether the imputation was defamatory, the Court of Appeal determined that it was a perverse finding that the imputation was not conveyed. The question whether it was defamatory has not been considered by the jury. In our submission, it would be highly undesirable in those circumstances for only half of those two questions to be remitted for the jury and that the whole of the imputation should be remitted to the jury for their determination of whether it was conveyed and whether it was defamatory. That would be an example of a court exercising its discretion to send the whole of the question back even though the jury had made a perverse finding in relation to only one of the questions.
GLEESON CJ: Yes.
MR BLACKBURN: The error that we say the Court of Appeal made in deciding not to remit the imputation for a new trial was this, that they say general community standards are unimportant in the question of whether an imputation is injurious to a person in his or her trade or occupation. That must, in our submission, be wrong. That must be wrong.
The jury are representatives of the community. They are best placed to judge both the meaning of a matter complained of and a fortiori, in our submission, whether the imputation reflects on the competence of a person in his or her trade or profession as they are best placed to consider whether an imputation would tend to make people think the less of the plaintiff.
KIRBY J: This is all bound up in this notion that if there is this separate subcategory of defaming a person in respect of their business or trade but do you say that, assuming there is that subcategory, that that is also a matter for the assessment of ordinary citizens and that there is no special knowledge that courts have of that?
MR BLACKBURN: Undoubtedly, your Honour.
KIRBY J: Is that what the Court of Appeal said, that there was some special knowledge that courts had and that, therefore, this was not particularly a matter that a jury had to give a verdict on?
MR BLACKBURN: Not that the courts had special knowledge, your Honour, but that the question of whether the imputation injured the plaintiff in his or her trade or profession was not a question which required the interposition of community standards to any significant degree.
GLEESON CJ: Rightly or wrongly, they said they were in as good a position to decide that as a jury.
MR BLACKBURN: Yes, which is simply to ignore, in our submission, the rationale of why Parliament has prescribed - has given this task to juries. It must be wrong, in our submission, to say, and what they did say was that the consideration of whether imputations of that kind are defamatory raises no particular question of community standards.
CALLINAN J: Mr Blackburn, on your earlier submissions, they could decide that the second time. So it is a matter, you say, that they cannot decide the first time but they can decide it after there has been a second perverse verdict, whether there are community standards involved or not. Is that not what you have told us? You have told us that the jury has to be given another go at it.
MR BLACKBURN: That is what the law provides, your Honour.
CALLINAN J: You say that is what the law provides. There are some decisions that say that but there is no statute that says that. It does not make any sense to me, frankly. Why adopt two? Why not adopt three or four just to make sure?
MR BLACKBURN: Your Honour, the state of the law is that it is a matter of discretion for ‑ ‑ ‑
CALLINAN J: You say the state of law. There are some statements by judges to that effect.
KIRBY J: I may be wrong, but I understood that to be a different issue. That is the issue of how one resolves repeated disagreement between the Court of Appeal and the jury. Your present point is that when you get to the discretionary question of whether you have a general retrial or whether you bifurcate and enter a verdict and judgment on the separate issue and those matters that have been upheld as perverse, you simply ignore the parliamentary statement that this is, prima facie, to go to a jury and you somehow say that there is this subcategory of defamation that the Court of Appeal can just as easily determine for itself as a jury.
MR BLACKBURN: That is the point we make, your Honour.
KIRBY J: That is, I think, a separate question from the ping‑pong issue in Hocking v Bell.
MR BLACKBURN: It is.
GLEESON CJ: How long do you expect to require to complete your argument?
MR BLACKBURN: Your Honour, I think probably about a quarter of an hour.
GLEESON CJ: Very well. That will give you ample time, will it, Mr Reynolds?
MR REYNOLDS: I think more than enough, your Honour.
GLEESON CJ: We have a cafeteria here. We will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Blackburn.
MR BLACKBURN: Thank you, your Honour. If the Court pleases, can I conclude what I want to say on the discretion point and the point we make is this. The determination of the Court of Appeal that there were no community standards involved in determining whether imputations (a) and (c) were defamatory is, in our submission, wrong for the arguments that I have already advanced.
If that is correct, the exercise of the court’s discretion as to what to do with these imputations, whether to enter verdicts pursuant to section 108(3) or to remit them for a new trial was infected by that error and the point falls to be determined in those circumstances by this Court. That point was squarely raised in paragraph (f) of our notice of appeal which is at appeal book page 193. The question then remains, if the exercise of the court’s discretion was infected, why should imputations (a) and (c) be remitted for a new trial.
My friend, as I understand it, raises the point that a particular matter of discretion which we did not explicitly raise was this, namely, if section 108(3) does empower the Court of Appeal to remit - to enter a verdict in favour of the respondents in this case, should that particular discretion be exercised? Well, insofar as we have not raised that confined matter expressly, really, we make exactly the same submission about it as we make about the issue of whether imputations (a) and (c) should go back because this Court can exercise the discretion fresh in consequence of the error made by the Court of Appeal.
What we say about that is simply this. As has been put to me in the course of argument this morning, this Court in a number of cases, including Waterways v Fitzgibbon(2005) 79 ALJR 1816 – it is not on our list - but I think also in Swain’s Case, and possibly also in Naxakis, have said that it is a sound general principle, but if there is to be a new trial then it ought to be of the whole case unless the court thinks that it will do more injustice by setting the matter at large.
Now, the submission we make is simply this. What injustice would be set at large by remitting imputations (a) and (c) for a new trial given that imputation (d) is going back for a new trial anyway? It would be desirable, in our submission, for one jury to determine the three causes of action. It is difficult, in our submission, to see that any injustice could be done to the respondents given that the matter is going back for a new trial anyway on imputation (d). That is the point we make about the discretion.
The penultimate issue is this – I say the penultimate issue because there is one remaining subsidiary issue and that is our argument that section 108(3) only applies in the case of a final verdict and judgment. On that issue we are content to rely on what we have said in our written submissions at paragraphs 41 and 42, but we do seek to hand up to the Court the document that we referred to or the matter that we referred to in paragraph 42 of our submissions, and that is the minor amendment that was made to section 108 in 1989 where the words “of the entry of judgment” were removed and the words “give judgment” were inserted for the purpose of allowing the swift or swifter entry of judgment.
GUMMOW J: Have you looked at the explanatory note?
MR BLACKBURN: Yes, the explanatory note is annexed, your Honour. I am sorry, the second reading speech, not the explanatory memorandum. I do not wish to make any further submissions on that question apart from what is contained in paragraphs 41 and 42 of our written submissions.
KIRBY J: How do you reconcile that submission with the fact that the words of section 108(3) talks of:
entitled to a verdict in the proceedings or on any cause of action, issue ‑ ‑ ‑
MR BLACKBURN: This way, your Honour. It is possible, indeed it does happen from time to time, that the whole case is resolved by the determination of one issue and that is the meaning that ought to be given to the words, “cause of action, issue or claim for relief”. It does not alter our argument that it only applies to the situation where a final verdict and judgment could be entered.
KIRBY J: It does not say final judgment, it says, “direct a verdict and give judgment accordingly”.
MR BLACKBURN: Indeed.
KIRBY J: In fact, the Court of Appeal did enter a judgment.
MR BLACKBURN: No, not for the plaintiff, your Honour.
KIRBY J: No, but it does not say for the plaintiff. It says “accordingly”.
MR BLACKBURN: Yes, and what that means, your Honour, is that the subsection applies in circumstances where, by virtue of the entry of the verdict, the court can then give judgment. The subsection talks about directing a verdict and giving judgment accordingly.
KIRBY J: But earlier in the subsection it talks about:
upon the evidence the plaintiff or the defendant is, as a matter of law, entitled to a verdict ‑ ‑ ‑
MR BLACKBURN: Yes, that is so, your Honour. But then, in those circumstances, the power that the court has is to “direct a verdict and give judgment accordingly” which suggests that the power is limited to those situations where the entry of the verdict entitles the party to judgment. That is our submission.
GLEESON CJ: Yes.
KIRBY J: So your submission is that “verdict” or “judgment accordingly” is the verdict in the proceedings as previously stated in the subsection?
MR BLACKBURN: That kind of verdict which entitles the party for whom it is entered to have judgment in the proceedings. In other words, it might be called a final verdict. That brings me to the last issue and that issue is whether the Court of Appeal was correct in determining that imputations (a) and (c) were verdicts which no reasonable jury, properly directed, could have found.
In our submission, in relation to both of these imputations, that determination by the Court of Appeal fails to take into account a number of matters. The first is the well‑established principle, and we have referred to several cases in our written submissions that I do not propose to take the Court to, Nevill v Fine Art and General Insurance Company and Greek Herald Pty Ltd v Nikolopoulos, at paragraph 47. Those cases stand for the proposition that in determining the defamatory quality of an imputation and whether an imputation is defamatory, the jury must have regard to the written matter or the published matter from which the imputation arises.
The restaurant review, which is the subject of these proceedings, condemned some of the food, or even quite a bit of the food, but it approved of some of the food as well so the jury, in our submission, could not have taken the imputation to mean that all the food served up by the restaurant was unpalatable. The imputation is simply that the plaintiff serves unpalatable food. The jury, in our submission, could not have taken that to mean that every morsel of food was unpalatable because that is not what the matter complained of says. The question of the defamatory meaning must be assessed in the context.
GLEESON CJ: One of those oysters was quite good.
MR BLACKBURN: There were other things that were nice, apart from the oysters, your Honour, the steak.
CALLINAN J: They would need to be for the price.
KIRBY J: All of them were said to be, by inference, good until the restaurant did something to them.
MR BLACKBURN: In any event, your Honour, we say that the jury must have understood the imputation to mean that some of the food was unpalatable and the Court of Appeal did not take that into account. The Court of Appeal also failed to consider, in our submission, that the jury might perfectly legitimately have considered that criticism of the food on one or two occasions did not reflect generally on the competence of the restaurateur as a trader. It was quite possible and it would have been quite legitimate for the jury to take that view. We do not know what the jury thought, obviously, but it was open to the jury to take that view.
The Court of Appeal failed to consider that the reader, or the jury, might have considered the restaurant review as a critique, one person’s opinion about the food.
CALLINAN J: Is that not a matter for defence?
MR BLACKBURN: No, your Honour. No doubt this matter will be defended on the basis of comment but ‑ ‑ ‑
CALLINAN J: Well, that is comment. I am sorry, that is comment.
MR BLACKBURN: It is, your Honour, but the jury were entitled to think, “Oh, well, this is one person’s opinion of it, but we do not think it reflects on the reputation of the - the owner of the restaurant as a trader.”
CALLINAN J: One person’s opinion expressed – what does The Sydney Morning Herald claim its readership is? One million people?
MR BLACKBURN: I do not know about that, your Honour, but it is quite large.
CALLINAN J: I mean, it is intended to present a view – and I leave out any adjectives, either fair or unfair – but it is intended to present a review to go to probably a million people, a million readers, and you suggest that it can be taken in the way you have just put it. I am sorry. I have a lot of difficulty with that.
MR BLACKBURN: The jury may have thought or may have come to the view that the ordinary, reasonable reader would consider it as a critique and not as necessarily reflecting on the trader’s reputation.
CALLINAN J: I do not understand that. It seems to me that that contains two utterly contradictory statements.
MR BLACKBURN: The proposition is this, your Honour ‑ ‑ ‑
KIRBY J: If you say a restaurant catering in a particular part of Sydney for the business community mainly, I suppose, summary:
Unpalatable flavours on one hand and pricey but good steak with flawed garnishes on the other add up to a restaurant where the view is the best bit. And you can’t eat that.
The summary is very negative indeed so it is hard to say that the overall force of the matter complained of is not very damaging to such a business.
MR BLACKBURN: But, your Honour, these are quintessentially matters for the jury. The jury may have thought, “Well, in this day and age we see things like this in the newspaper all the time. We see good reviews, bad reviews”, but the ordinary, reasonable people who read it are not necessarily going to think that it reflects on the owner in their trading reputation. Now, that may appear to be a surprising conclusion to members of the Court and the Court of Appeal, but the question is, was it open to the jury to do so or, as the Court of Appeal put it in Cairns v John Fairfax, is the case against the verdict clear and beyond argument?
I think one of the tests that was approved by this Court in Rivkin has certainly approved by the Court of Appeal since. That is the question that the Court has to answer, with respect: is the case against the verdict clear and beyond argument? Is it so unreasonable that no reasonable jury could have delivered it? One must distinguish between one’s own opinion and the test, the test being, was it so unreasonable that no reasonable jury could have given the answer?
Now, as we say, the verdict in relation in particular to (a) may strike the Court as surprising, but that is not the test. The test is, effectively, was it reasonably open to the jury to come to that conclusion or was it so unreasonable that no reasonable jury could have done it? In our submission, one’s personal views do not intrude into that question. The jury have a wide area in which to move.
The jury might have considered, in this case, that some criticism, even severe criticism, can be made without reflecting on the restaurateur’s trading reputation. That is the question they had to determine. Did this imputation reflect on the restaurateur’s trading reputation? The jury might have thought, “Well, we have all seen restaurant reviews and film reviews and so on”, but we do not think that the ordinary reader would necessarily think that this reflects on the trading reputation of the restaurateur.
KIRBY J: I think we have gone round and round this, but the essential point is on this first issue. It is not on the whole merits of the case because you get to the merits of the defences and excuses and so on later. On this issue is that summary and all of the material. It is pretty hard to say that it is not damaging to a reputation of a restaurant.
MR BLACKBURN: Your Honour, the jury ‑ ‑ ‑
KIRBY J: Any reasonable jury could reach another view that it was not very critical.
MR BLACKBURN: Reviews of this kind one sees them every week in the newspaper, every other day. The jury may have thought, “Well, okay, this is a review. It is one person’s opinion. It is not going to damage the trading reputation of the owner of the restaurant”.
KIRBY J: Yes, I have to say I saw one recently and was rather critical and I thought I must go back to that restaurant. I have not been there for years.
MR BLACKBURN: QED, your Honour. It is a matter for the jury what they make of a reflection of that kind and the jury may have, for example - and one speculates because one does not know what the jury thought - they may have thought that this is really a reflection on the chef rather than the proprietor. We do not know what they thought but there were many ways in which they could have legitimately got to the answer that they gave, in our submission. It is only where the court is of the view that it is so unreasonable that no reasonable jury could have given the answer that it can be set aside.
There is another matter and it is this. To say of a trader in a particular case, or to say of a person that they, to take imputation (c), for example, that they provide some bad service, whether that is defamatory or not depends on who you are saying it about. If you say of a surgeon that they provide some bad service there may be more general agreement that that would reflect upon the professional reputation of the surgeon. It may be a very different proposition if you say it about a restauranteur. The jury may have legitimately thought everybody knows that even in the best restaurants you get some bad service, but it hardly reflects upon the trading reputation of the owner of the restaurant.
KIRBY J: That is not a very good argument. You are the general newspaper of record in New South Wales, Sydney. You go to an undistinguished group of millions of people, or hundreds of thousands, so you have to take everyone. Certainly, you have to take lots of people in the restaurant business and the restaurant going business.
MR BLACKBURN: Your Honour, people in the restaurant business would be the last people to think that it reflected on the trading reputation of the restauranteur to say that they provide some good service.
KIRBY J: I am sure they are just as nasty to each other as lawyers.
MR BLACKBURN: Yes, they probably are, your Honour, but whether they would think it was a reflection on the trading reputation of a restauranteur to say that. If the court was against us on imputation (a), in our submission it could not possibly be said of imputation (c) that the answer given by the jury was so unreasonable that no reasonable jury could have given it. Question whether it is defamatory to say that a restauranteur provides some bad service. It is a quintessential kind of question that is for the jury and if the appellate court disagrees with it, it does not matter unless the answer reaches that extremely high standard of unreasonableness.
The case against the verdict is clear and beyond argument. In our submission, with great respect, it was just wrong for the Court of Appeal to conclude that the answer to imputation (c) was unreasonable or so unreasonable that no jury could have given it, properly instructed.
It certainly is not, in our submission, clear and beyond argument or can be regarded as so unreasonable that no properly instructed jury could reasonably have given it. It calls for the imposition of community standards and the jury’s determination, particularly in relation to imputation (c) ought to be respected and accepted. Unless there are any other matters I can assist the Court with, those are my submissions.
GLEESON CJ: Thank you, Mr Blackburn. Yes, Mr Reynolds.
MR REYNOLDS: Thank you, Chief Justice. Your Honours, there are eight points, as I understand, that are not raised by my learned friend on this appeal. I want to be quite deliberate about this because I want to suggest in due course that there has been an attempt to expand a little the grounds of the appeal outside the notice of appeal and the written submissions. So I will deal with each of the points that I understand that are raised by the appeal and I shall number them.
The first and principal point, as we understand it, raised by the appeal is the question of whether section 108(3) of the Supreme Court Act permits the Court of Appeal to direct verdicts after a section 7A trial where the only evidence is a newspaper article. Now, I want to submit, with respect, that the submissions that your Honours have heard here today on this point are misconceived and misconceived for three reasons.
The first is that the submissions that have been made do not appreciate a fundamental distinction in this area and that is the distinction between primary facts and inferences or conclusions from those facts. We submit, first of all, that one cannot have a directed verdict in relation to primary facts found or to be found by a jury but, secondly, one can have a directed verdict where there is a dispute as to the conclusion or inference of fact that is to be drawn from the primary facts provided that two conditions are made out. The first condition is that the primary facts must be uncontroversial. The second is that the conclusion or inference from those facts is such that no reasonable jury could fail to draw it.
I will come back to that first fundamental proposition in my submissions in a moment. The second difficulty with the submission is that it flies in the face, we submit directly in the face, of several High Court decisions and is utterly inconsistent with them. The third reason we say the submission should be rejected is that even the cases which my learned friend relies upon are, in fact, not authority in his favour but rather authority against him.
Now, can I develop the first and primary submission that we make, namely that the notion of uncontroverted facts relates to the issue of primary facts rather than conclusions from those facts, by taking your Honours in a moment to some cases on a particular issue in this Court and that issue is the issue of directed verdicts in favour of defendants on the issue of contributory negligence.
Lawyers practising these days of course tend to forget that before legislative amendment the defence of contributory negligence was a complete defence. The cases that I am going to take your Honours to in a moment relate to a time where there was a complete defence if the defendant showed, the onus of course being on him or her, that the plaintiff was guilty of contributory negligence. Years ago, particularly in New South Wales these were issues which were determined by juries, that is certainly in personal injuries cases.
There were a great many decisions dealing with the issue of whether a defendant could seek a direct verdict from a trial judge that his defence of contributory negligence was made out but the jury had necessarily to come to the conclusion that that defence was made out and therefore the judge should withdraw that issue from the jury and direct a verdict in favour of the defendant. Before getting to the detail of those cases, which I will come to a moment, can I just lay a little bit of groundwork.
Those cases, or the way you would try and set up that submission if you were counsel appearing for a defendant was you would try and seek admissions from the plaintiff in cross‑examination as to certain facts which were not controversial. Once you had those admissions as to the primary facts, if you got them in a certain form and obviously they needed to be highly favourable to the defendant, you could then submit to the trial judge that on the basis of those primary facts which were not controversial that an inference or conclusion of fact had to be drawn by the jury, or putting it another way, that no reasonable jury, properly instructed, could fail to draw the conclusion of negligence.
Obviously, the question of whether or not there was contributory negligence was controversial. Putting it another way, the question of what conclusions should be drawn from those facts was a matter of controversy but the primary facts, if they were undisputed, would enable a defendant in that situation to seek a directed verdict. The first of those cases that I will take your Honours to briefly – and there are two of them - they are both called Williams. The first is Williams v Smith (1960) 103 CLR 539.
I will not bother to take your Honours through the detail of the judgment but if your Honours go to page 542 your Honours will see the statement from Shepherd’s Case which is being applied by four Justices of this Court. At page 545 at about point 3 the judgment says this:
this is not a case where one could say, in obedience to the rule of law which I have attempted to describe, that there were facts of which there could be no doubt, against which the jury could not in any way find, and which, as a matter of law, amounted to contributory negligence and, as a matter of law, constituted a cause of the accident.
On the previous page at about point 6, the principle is again referred to, namely:
To show that they were not merely wrong –
that is talking about the jury -
but that the contrary view must conclusively have been taken, it would be necessary to have an incontrovertible state of facts whether by admission or otherwise which, on themselves, were as a matter of law equivalent to contributory negligence ‑ ‑ ‑
GLEESON CJ: Is this about judgments non obstante veredicto?
MR REYNOLDS: No, not as I understand it. I think this was a case where there had been an application for directed verdict in front of the jury and what happened was, in the High Court, the defendant was applying to have a directed verdict under, I think it was, section 7 of the Supreme Court Procedure Act. But your Honours will see there, the distinction is drawn between these two notions: one, of the primary facts which, of course, had to be admitted or uncontroversial and, secondly, the question of the conclusion from those facts which, of course, was a very hot issue. So in this case the only primary facts on the evidence are this article and the only controversy is about a conclusion to be drawn from those facts, namely, whether the particular imputation was defamatory.
The second case, also called Williams, namely Williams v Commission for Road Transport (1933) 50 CLR 258, in this case the leading judgment was delivered by Sir Owen Dixon with whom Justices McTiernan and Evatt agreed.
KIRBY J: What is the principle you are seeking to extract from the case?
MR REYNOLDS: Both a specific one and a more general one. The specific one, of course, is that a directed verdict could have been given in relation to the old defence of contributory negligence if, one, the primary facts were undisputed and, two, the conclusion of contributory negligence was one which any reasonable jury would have been bound to come to.
The more general proposition relates to this issue of directed verdicts under the old section 7 and the new section 108(3) and that is, when one is talking about a question of law within the meaning of the section, a directed verdict may be given if the primary facts are uncontroverted if ‑ ‑ ‑
GLEESON CJ: But these are cases about setting aside a verdict in favour of a plaintiff, are they not, both Williams Cases.
MR REYNOLDS: I think that is right, Chief Justice, but the ‑ ‑ ‑
GLEESON CJ: Where do we specifically find a statement that not only can the verdict for the plaintiff not be sustained but the defendant was entitled to a verdict by direction?
MR REYNOLDS: These are cases where they articulate the principle that provided certain conditions are made out, a defendant can get a verdict by direction. The point that your Honour the Chief Justice is making is that although the Court refers to that as “the relevant principle”, in the particular case they did not find in favour of the defendant. That does not alter, I submit, the statement of principle. What it means is that although the principle as stated is stated to be correct, it was found that on the particular facts the ‑ ‑ ‑
GLEESON CJ: Where is the best passage in this one that we are looking at that says the verdict ‑ ‑ ‑
MR REYNOLDS: At 264 about point 7:
In examining the question whether the verdict of the jury can be set aside on the ground that contributory negligence was conclusively proved . . .
HAYNE J: There his Honour is speaking about the powers of the Full Court, is he not?
MR REYNOLDS: Quite, and the point that is ‑ ‑ ‑
HAYNE J: Not a question of directed verdict at trial.
MR REYNOLDS: No, quite, but we would submit the same principle would apply ‑ ‑ ‑
GLEESON CJ: That is what I am ‑ ‑ ‑
HAYNE J: Well, that is a very large proposition, Mr Reynolds, a very large proposition. Both of these cases are concerned and concerned only, I think, with whether the Full Court was right to intervene as it did to substitute verdict for the defendant when there had been verdict at trial for the plaintiff.
MR REYNOLDS: Your Honour is quite correct. If I may put it this way, in a technical sense there is no doubt that the precise issue which the Court is addressing is the one that your Honour has just raised with me, but I submit that a Full Court’s powers are at least as broad as a trial judge’s. Your Honour, I will take you to ‑ ‑ ‑
HAYNE J: That is a very large proposition, Mr Reynolds, a long way away from 108(3) which is the immediate question of construction that confronts us.
MR REYNOLDS: Your Honour, let me put it another way. This is a case about section 7. Section 7 is the predecessor of section 108(3), which deals precisely with the principles to be applied under 108(3) and I rely upon it as authority in relation to section 108(3) and that is ‑ ‑ ‑
KIRBY J: But the outcomes are restoration of the verdict of the jury.
MR REYNOLDS: Quite.
KIRBY J: It is an outcome respectful of the jury’s decision.
MR REYNOLDS: If your Honour goes to the bottom of page 264 the principle is stated again that the defendant:
must make out that there was no reasonable explanation of the conduct which the evidence shows consistent with the presence of due care on the part of the plaintiff’s husband -
et cetera.
GUMMOW J: You have to start a bit above that. At 264, six lines from the bottom that says “The verdict of the jury” et cetera. That is a recitation of section 7, is it not?
MR REYNOLDS: That is quite right, your Honour.
GUMMOW J: So that is what they are talking about?
MR REYNOLDS: That is what they are talking about, although they are being a bit elliptical, so to go back to the matter your Honour Justice Hayne raised with me – perhaps I have jumped in a little too quickly here – they are talking about the equivalent of section 108(3). Going back to the point your Honour the Chief Justice made, although that is the principle or the principle as I have attempted to state it, again your Honour will see from the top of page 265 that on the facts of this particular case the Court found that it was nonetheless open to the jury to find the contributory negligence was not made out and therefore there could be no directed verdict. But in terms of what the relevant principle is, it is, I submit, as it is stated in the first case of Williams v Smith and also in this case.
GLEESON CJ: In the case with which we are concerned, could Justice Bell have directed the jury to enter a verdict for the plaintiff on imputations (a) and (c).
MR REYNOLDS: Absolutely. I will be coming to that in due course. If your Honour would like me to deal with that now, I will.
GLEESON CJ: No, you take your own course.
MR REYNOLDS: Thank you, your Honour.
KIRBY J: Direct the jury to enter a verdict for your client?
MR REYNOLDS: Direct the jury to enter a verdict that imputations (a) and (c) were defamatory, yes. I will explain in due course how that would have happened, but to anticipate things my learned friend read a passage from Sir Frederick Jordan’s judgment in McPhee v Bennett and the way it would work is counsel would submit that on the issue of whether the imputation was defamatory that issue should be taken away from the jury because as a matter of law the plaintiff was entitled to succeed. The judge would then ‑ ‑ ‑
GLEESON CJ: Has that ever happened?
MR REYNOLDS: No, it does not happen, for very good reason and can I explain why and it obviously informed the decision which my learned friend, Mr Evatt, made in this case. I am delving back a little bit into matters of lore and also of history of New South Wales but, basically, I would suggest that most experienced counsel these days appearing for plaintiffs do not ask for directed verdicts because the risk that they run is that the Courts of Appeal these days tend not to like directed verdicts or issues being taken away from juries.
Your Honours might remember a decision of Justice Yeldham in a case called Albrighton v Royal Prince Alfred Hospital where his Honour directed a verdict in favour of the defendant in that case and some of your Honours ‑ ‑ ‑
KIRBY J: Directions in favour of the defendant for want of evidence are well known although they have become much less common with the decline of jury trial but directed for the plaintiff who is the onus bearer is a complete heresy as far as I am concerned. You show me a recorded case – one.
MR REYNOLDS: Well, your Honour, I am sorry to say ‑ ‑ ‑
KIRBY J: It is usurping the role of the jury.
MR REYNOLDS: I am sorry to say this, your Honour, your Honour embarrasses me but there are two decisions of this Court that are precisely in point on that issue where this Court directed verdicts in favour of plaintiffs. The first is Heydon v Lillis (1907) 4 CLR 1223 and the second is Edmond Weil Incorporated v Russell (1936) 56 CLR 34. Now, of course, it is ‑ ‑ ‑
HAYNE J: What do you say these cases establish, Mr Reynolds? I do not want there to be some misunderstanding about this. What do you say they establish - that a judge at trial can direct a jury to return a verdict for the plaintiff, because that is the proposition I understood you were asked to provide authority for.
MR REYNOLDS: What these cases are, are two cases where this Court, utilising the powers under the old section 7 of the Supreme Court Procedure Act, has directed verdicts in favour of plaintiffs. I submit, and if it is convenient, I would like to deal with this issue of the question of the relationship between the powers of a Full Court and the relationship of a trial judge a little bit later in my argument, but if your Honour would like me to I am happy to deal with it now.
HAYNE J: Take such course as you think best, Mr Reynolds.
MR REYNOLDS: As your Honour pleases. To answer your Honour Justice Kirby, these two cases are both cases where this Court, pursuant to section 7, directed that verdicts be entered in favour of plaintiffs. My submission that I will be making, both to this Court but, in particular, to your Honour Justice Hayne, is that the powers of the Full Court in that situation are “at least as wide as those of the trial judge” and that they are, although if one is being absolutely precise about it, not exact authority on the issue of a trial judge directing the entry of verdict for a plaintiff, then because the powers of the Full Court are at least as wide, I submit that they show comfortably that a trial judge in those situations could have directed the entry of a verdict in favour of the plaintiff.
So if I can step back a little to the particular case that we are dealing with here, it is a case where the primary facts are not in dispute. Your Honours will have seen, and I might just pause here for a moment and take your Honours to our submissions – respondent’s submissions, paragraph 12. Your Honours will see there, in particular, the point and again some of your Honours made it with my learned friend, namely that there is only one piece of evidence. There is no controversy as to what the article was so, therefore, on the proposition that I am embracing, the primary facts are uncontroversial. The only question is as to the conclusion to be drawn from those facts. So that is the first bundle of authorities that I rely upon in this Court in support of the proposition that I am trying to sustain.
The second case, which I will come to in a moment, involves another issue where the primary facts are uncontroversial but where there is a hot dispute as to the conclusion to be drawn from those primary facts. The second line of cases deals with defamation cases involving the defence of fair report.
So to give your Honours an example of the sort of case that I am talking about, if one assumes that there is, let us say, a judgment of this Court ‑I will use Cole v Whitfield as an example – and The Sydney Morning Herald, say, the day after the case, publishes a supplement where they simply print the whole of the judgment because it is such an important case. They have a special lift‑out. Let it be assumed that somebody is mentioned in the lift‑out, also mentioned in the judgment, sues The Sydney Morning Herald for defamation and The Herald says this lift‑out is covered by the defence of fair report.
Now, how would that be handled either at the trial or, if it be relevant, how would it be handled in the Court of Appeal in relation to section 108(3)? The question of whether a report is fair, it is well established, is an issue of fact. It is a conclusion of fact and in that case that I have posited would involve a comparison of the lift‑out with the text of the judgment.
Now, I submit that there is a case in this Court which embraces the proposition that the judge can direct the entry of a verdict in favour of the defendant and therefore withdraw the question from the jury if no reasonable jury properly instructed could have come to any other conclusion other than that the report was fair and accurate.
So let it be assumed that there are, say, three minor misprints in the printing of Cole v Whitfield - typographical errors, if you like - and the matter is raised before a trial judge or it would not matter if it was raised in the Court of Appeal. I submit that if the typographical errors were of no consequence that a trial judge could direct the jury to bring in a verdict in favour of the defendant. Likewise, if it went to the Court of Appeal, the Court of Appeal under section 108(3) would be able to also direct a verdict under that section in favour of the defendant.
Now, if we move from – I will come to the case in a moment – if we move from that situation to the particular issue we are dealing with here, in that situation the primary facts, namely the particular lift‑out and the judgment of this Court, are uncontroversial. There is a hot controversy about whether or not the report is fair and accurate. Here there is no dispute as to the primary facts, namely the article. There is a hot controversy about a conclusion to be drawn from those facts, namely whether or not the relevant imputation is defamatory. I submit that this case, this line of country, is on all fours with the issue that your Honours are looking at.
Can I take your Honours, having told your Honours there was a decision on this point, to the decision of this Court in Leslie v Mirror Newspapers (1971) 125 CLR 332 and the ‑ ‑ ‑
GUMMOW J: Just before we do that, if we are construing section 7 and 108(3), Heydon v Lillis 4 CLR, certainly both in the Chief Justice and Justice Isaacs, contemplates a direction to return verdicts for plaintiffs.
MR REYNOLDS: Certainly, I mean I submit that whilst I take the point ‑ ‑ ‑
GUMMOW J: The whole object of the section, according to Sir Samuel Griffith was the intention of the legislature was that there would not be an insistence “upon unnecessary and useless further litigation”.
MR REYNOLDS: Quite, so what is happening – and I will be coming back to that proposition that your Honour has ‑ ‑ ‑
CALLINAN J: Mr Reynolds, could I just ask you this question. I know it is a somewhat different point, but it underlies, I think, some of the problems here. When Lord Devlin said that in defamation the meaning of words is a question of fact, his Lordship said that in Lewis, can you tell us whether there was a practice in England or a rule in England that required imputations to be pleaded in the precise way that they are here and have to be or are in New South Wales in fact?
MR REYNOLDS: I believe that I can, although I should sound this note of caution and that is that I have not refreshed my recollection of that area in order to prepare for this case. But with that caveat let me answer your Honour’s question in this way. My understanding is that at the time Lewis v Daily Telegraph was decided there was a practice that a plaintiff could provide particulars of the meanings which he or she said were conveyed by the particular matter complained of.
CALLINAN J: Would they be only in cases though in which false innuendo was being pleaded, …..an extended meaning if you like?
MR REYNOLDS: Leaving aside the question of true innuendos, but rather as your Honours says focusing on false innuendos or, as it is often put, meanings or imputations arising out of the natural and ordinary meaning, strictly the cause of action in the United Kingdom was based on the matter complained of so that the issue that the jury had to look at was whether the matter complained of was defamatory.
CALLINAN J: That is why I asked the question. What Lord Devlin was concerned with was something quite different from what juries are concerned with here because here the practice and the understanding of the Defamation Act (NSW) is that the meaning is settled and distilled.
MR REYNOLDS: Quite. That is the revolutionary aspect of the 1974 Act.
CALLINAN J: I am not too sure that – I think it is a good thing, I do not know, but that is undoubtedly the position, it seems to me. So you have to read what Lord Devlin said in that light.
MR REYNOLDS: Obviously, his Lordship was looking at a slightly different situation.
CALLINAN J: I do not know what his Lordship or the jury had before them. Here, in a sense you wonder why it is even necessary to give the jury in New South Wales, for the 7A trial anyway, the matter. Really in theory perhaps all they should get is the imputation.
MR REYNOLDS: Your Honour, certainly there is an argument for that if the only issue the jury would have to decide was whether the imputation was defamatory.
GLEESON CJ: They are always first deciding whether the matter conveys the imputation.
MR REYNOLDS: Quite so. In the normal case therefore, you do have to have the article there to determine whether the meaning is conveyed, but I was dealing with the situation where it could conceivably have arisen in this case where there was a retrial directed only on the issue of whether the imputation was defamatory and your Honour Justice Callinan is quite right. In that particular situation one probably would not need, indeed I submit one would not have the article before the jury in order to determine that issue.
GLEESON CJ: The passage you rely on in Leslie is at the bottom of 336 and the top of 337, I presume?
MR REYNOLDS: Your Honour has read my mind precisely. Perhaps if your Honours can read that passage. Picking up, if I may, what fell from your Honour the Chief Justice in relation to the two Williams Cases, it is true that on the facts in this case, although the particular principle was articulated in the way that I described it earlier, the court found that a verdict should not be directed because it was still open to the jury to come to a view that the report might not have been fair because, unlike the example that I gave earlier about Cole v Whitfield, there were more substantial differences between the report and the judgment that were relevant in this case.
That statement of principle by Sir Garfield – can I give your Honours jus a reference to the 10th edition of Gatley on Libel and Slander - we have not given your Honours copies of this although my learned friend should have one - paragraph 34.16. There is reference there – can I give your Honours a couple of references. This is paragraph 34.16 in the 10th edition where the author has embraced the proposition citing Sir Garfield’s judgment that:
The judge can withdraw the question from the jury if no reasonably minded jury properly directed could have come to any other conclusion than that the report was fair and accurate.
There are some English decisions referred to there and your Honours can view those, perhaps, at your leisure. One was a case called Kimber which was relied upon in Leslie v Mirror Newspapers and there are some later decisions, one of which is called Kingshott v Kent Newspapers [1991] 1 QB 88 where Lord Justice Bingham discusses Sir Garfield’s statement and applies it. I would submit that those two lines of authority in this Court support the proposition that I am trying to get to, namely, that when is one is looking to the notion of uncontroverted facts one is talking about primary facts and not the inferences or conclusions that are to be drawn from them.
Your Honour Justice Gummow has already raised this matter with my learned friend I think twice this distinction that I am drawing and your Honour, as I recall, raised with my learned friend a particular passage in the judgment of Justice Starke in a case called Shepherd v Felt and Textiles of Australia Ltd. It might be convenient, rather than taking your Honours back to Shepherd’s Case, to take your Honours to Hocking v Bell (1945) 71 CLR 430, but in particular to page 442 because Sir John Latham there quotes the passage from Shepherd.
Your Honours see at page 442, point 2, there is a quotation which he adopts from Justice Starke’s judgment in Shepherd which we say encapsulates with precision the proposition ‑ ‑ ‑
GUMMOW J: That is picked up in Leslie at 337.
MR REYNOLDS: Quite, and the proposition is, this is at point 2:
“Where on the uncontroverted facts the action or an issue must be determined in favour of one party, then, as a matter of law, that party is entitled to the verdict in the action or upon the issue.
This is the important sentence:
And it is necessarily wrong to leave any conclusion or inference in such circumstances as a question of fact to the jury.”
If your Honours go back a page, Sir John Latham at the bottom of page 441 says much the same thing. He says:
But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case -
Now, that, in a nutshell, is the proposition that I rely on in this case as the reason, in technical terms, why the Court of Appeal was entitled as, Sir John says, as “a matter of law” to direct a verdict.
GUMMOW J: Yes, but what happens then, Mr Reynolds? How does your client get its hands on some money and who determines those processes?
MR REYNOLDS: Under section 7A of the Act ‑ ‑ ‑
GUMMOW J: Section 7A(4), but what is going to happen in this case?
MR REYNOLDS: What is going to happen? As someone has pointed out, we do not yet have a defence so it may be that John Fairfax and Sons will simply pay my client some money but if there is to be a trial, it might be just on damages or there may be, as Justice Callinan has said, a defence of fair comment, we do not know.
KIRBY J: Presumably, under the orders of the Court of Appeal you would have to proceed first with the remaining jury item and then when that is concluded go back to a judge, sitting alone, to determine defences and, if you get through to it, damages.
MR REYNOLDS: Quite.
GLEESON CJ: And, in the meantime, there is apparently in the wings an action for injurious falsehood.
MR REYNOLDS: Quite, and that would, one assumes, be dealt with also by the trial judge, only, unlike the question of defamation, no jury would of course deal at all with that issue.
GUMMOW J: But I just do not understand how these orders provide for any of this.
MR REYNOLDS: How the orders do?
GUMMOW J: Of the Court of Appeal at 187. It is not a criticism of you or of Mr Blackburn, specifically. Now, what the primary judge did appeared at 123, she entered judgment.
MR REYNOLDS: Your Honour, it may be convenient if I deal with a couple of what I will describe as infelicities in the orders because it is not unimportant and I suspect that it may have caused some confusion in this case. That order there, at page 123, at line 39, is obviously wrong. The order that should have been made is that verdicts be directed to be entered, as your Honours see at pages 119 to 121. That is the order that should have been made.
I think your Honour Justice Heydon was, if I may respectfully say so, onto this point earlier on when your Honour adverted to the fact that there was a claim for injurious falsehood. Your Honour fastened on this particular order, I would suggest, quizzically and your Honour was perhaps wondering how a judgment could be entered on one of two causes of action in a case. The answer is, of course, that it should not have been because it is an impossibility, if there are two causes of action, to have judgment entered on one cause of action.
So the answer, responding to your Honour Justice Gummow, is that that order should not have been made. What should have happened is simply that verdicts be directed to be entered in accordance with pages 119 to 121, as my learned friend ‑ ‑ ‑
GUMMOW J: How would that order link up with 7A(3)? It would have to reflect 7A(3), would it not? That is what was going on. It was a determination.
MR REYNOLDS: Yes, well, it is simply entering onto the court’s records the verdict of the jury determining the matters referred to in section 7A(3), formalising it. Whilst I am on the question of orders, I should perhaps just note this because I may come back to it, strictly order 3 by the Court of Appeal at page 187 is also inapt, that is that “There be verdicts for the appellants in respect of imputations (a) and (c)”.
GUMMOW J: That is what I am worried about, yes.
MR REYNOLDS: Your Honour, I will deal with it in a moment. There were already verdicts in favour of the plaintiffs on the question of whether imputations (a) and (c) were conveyed. All the Court of Appeal had to do were enter special verdicts under section 108(3) that imputations (a) and (c) were defamatory, and that is what they should have done. It is not possible to enter a verdict for a plaintiff in respect of an imputation for the simple reason that there may well be some defence in which case you could not have a verdict on that cause of action because it may be that that cause of action is resolved against the plaintiff.
GUMMOW J: I thought someone said at some stage this morning that the case was conducted before Justice Bell on the basis that there was not going to be an offence, that there was some correspondence, or something or other.
MR REYNOLDS: Not exactly. I mean, Mr Evatt could have adopted a very technical approach, I assume, and because there was no defence filed he perhaps could have asked for judgment, or something ‑ ‑ ‑
GLEESON CJ: I think there are two different kinds of defence that are being spoken about. It was said, first of all, that there was some discussion or correspondence about a section 7A defence but we know that there is going to be a defence of comment, perhaps a defence of justification.
MR REYNOLDS: Well, maybe.
GLEESON CJ: Yes, let us assume. A restaurant review might attract a defence of comment.
MR REYNOLDS: Your Honour, one assumes that is distinctly on the cards, particularly in light of what my friend has said. One assumes that after the residual 7A trial is completed that there be a defence generally in relation to the residue of the action.
CALLINAN J: There might be contextual imputation ‑ ‑ ‑
GUMMOW J: Anyhow, that means order 3 is a nonsense.
MR REYNOLDS: Quite, but I just wanted to straighten it out because your Honour ‑ ‑ ‑
GUMMOW J: What do we do about it? If we dismiss this appeal, we bless it in some way.
MR REYNOLDS: One way is that it is clear that the parties would read it in this way, that there be verdicts for the appellants in respect of imputations (a) and (c) in respect of the section 7A issues.
GUMMOW J: I am not concerned about how the parties read it. It is on the record of the Supreme Court.
MR REYNOLDS: But, your Honour, let me respond in terms of strict law.
GUMMOW J: No, just law.
MR REYNOLDS: Well, I hope commonsense as well, your Honour.
GUMMOW J: It is not loose law, hard law, just law.
MR REYNOLDS: It may be that the appeal has to be allowed only in order to correct that order.
KIRBY J: You have not sought a cross-appeal against it and, in fact, you are relying on section 108(3) to sustain what the Court of Appeal has done and it talks of entering a verdict and giving judgment accordingly.
MR REYNOLDS: You can enter a verdict or you can enter a verdict and give judgment.
KIRBY J: You have assiduously refrained from doing what this Court unanimously has repeatedly said you have to do – construe the statute. That is the starting point, not all these ancient cases. You have to start with the Act. There are tricky questions in the Act, as was revealed this morning.
MR REYNOLDS: Your Honour, I will be coming back to the Act but ‑ ‑ ‑
KIRBY J: At last. Of course, at last.
GLEESON CJ: You are still on point one of eight.
MR REYNOLDS: I am, striving manfully to complete point one of eight.
GLEESON CJ: Yes, and you have already made an agreement on a division of time with your opponent. At least, you were told to.
MR REYNOLDS: That is true, your Honour, but we assumed in the light of the discussion that occurred just before lunch that there was no need to actually divide time formally between us, in that I said I would be finished if my learned friend only went for 15 minutes. He went a bit longer than that. Obviously it is difficult for me to anticipate the precise level of questioning to which I will be subject.
GLEESON CJ: Yes, quite. But we expect an agreement on the division of time that will give your opponent adequate time for reply. Now, in relation ‑ ‑ ‑
MR REYNOLDS: Your Honour, I apologise if failure to come to that agreement is perceived as flouting ‑ ‑ ‑
GLEESON CJ: If you do not come to an agreement we will make one for you. Now, the question is, what do you say should be in the order instead of paragraph (3)?
MR REYNOLDS: Well, I say that it should be direct a verdict for the appellants in relation to imputations (a) and (c) or direct verdicts for the appellants in respect of imputations (a) and (c) that those imputations are defamatory. That is the substance of it.
KIRBY J: I did not hear the last words.
MR REYNOLDS: That the imputations are defamatory.
GLEESON CJ: No, could you please state, for the purpose of the transcript so that we can see it when we come to write our judgments, what is the order that you say should be made instead of (3), assuming you otherwise succeed?
MR REYNOLDS: There be verdicts for the appellants that imputations (a) and (c) are defamatory.
CALLINAN J: For the respondents in this Court.
HEYDON J: No, I think this order is an order of the Court of Appeal which you are straightening up. The appeal will be allowed to that extent, but otherwise dismissed.
MR REYNOLDS: I am sorry. I am assuming a correction of the order in the order made by the Court of Appeal.
GLEESON CJ: I think we understand what you say the correction should be.
MR REYNOLDS: I am sorry about the lack of precision, your Honour. Now, your Honours, there are a couple of things that I would like to deal with at this point. The first is that although we have been talking in particular about section 108(3), as your Honour Justice Gummow and, I think Justice Hayne, remarked earlier, the question of what is an issue of law and what is an issue of fact has been much litigated in this Court.
The distinction that I have been trying to draw between primary facts on the one hand and inferences of fact on the other is one that was dealt with recently in a decision in this Court called Vetter v Lake Macquarie City Council (2001) 202 CLR 439. Your Honours should have photocopies of pages 450 to 451 and there the principle we rely upon is stated in a couple of places. There is a quotation by your Honour the Chief Justice and Justices Gummow and Callinan at about point 3 on page 450 quoting from Sir Frederick Jordan that:
“[I]f the facts inferred . . . from the evidence . . . are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.”
On the other page at about 451 at about point 8 there is reference to a statement by Sir Anthony Mason where there is a mixed question of fact and law and it is there stated that
a question exclusively of law arises . . . if, on the facts found only one conclusion is open.
KIRBY J: This is in respect of statutory expressions whereas the question before us is not in a statute but in a ‑ ‑ ‑
MR REYNOLDS: With respect, that is the next point I wanted to raise and that is that it is in a statute. As your Honour the Chief Justice pointed out earlier on, apropos this precise point, the word “defamatory” is used in section 9 which is a term of legal science, and I would submit that it does come within that ‑ ‑ ‑
KIRBY J: But the meaning of the words which are in question here are words “in the matter complained of”.
MR REYNOLDS: No, your Honour, we are looking at the question of whether the imputation is defamatory, the word “defamatory” being used in section 9. That is the point that we are focusing upon. Before I leave this area, can I say two extra things? The first is that I should alert your Honours to the existence – although I have adverted to it already – of some of the statements made in Edmond Weil Incorporated v Russell (1936) 56 CLR 34.
Now, although I have articulated the proposition that we are adopting, that is, that the primary facts have to be uncontroversial but that the issue arises in relation to controversial conclusions and that the test to be applied is whether that conclusion is reasonably open, this was a case – this Edmond Weil Case – where there was a dispute as to primary facts, or it appears that way. If your Honours go to page 48, your Honours will see at about point 3 – this is Justices Dixon and Evatt, who are the majority here, talk about what Mr Cahn knew and at about point four:
it was scarcely open to the jury to find that Brodsky was one of the two men whom the defendant met in Cahn’s office in New York and that he there agreed –
et cetera. They talk about the nature of the cause of action at about point 7 which was:
a special contract to pay ascertainable amounts of money in given conditions. The answer is that the conditions were not fulfilled which would impose such a liability.
Your Honours will see from the order that there was a verdict and judgment directed for the plaintiff. Now, although, in one sense, this case is very much in our favour because it appears there – I should sound a note of caution and that is that I have not been able to read this case very, very closely, but this case goes even further than the decisions that I referred to earlier in that it suggests that even as to primary facts, if no reasonable jury could fail to come to a conclusion then a directed verdict may be entered in favour of a plaintiff.
Now, if the case – and I have said I have not had the opportunity of reading it really closely – does in fact say that, we concede that it is inconsistent with later statements of principle to which I have taken your Honours even though, of course, it is technically, at least at first blush, in my clients’ favour.
The other thing is that the precise issue your Honours are looking at today was dealt with by Mr Spencer Bower in his book A Code of the Law of Actionable Defamation in the second edition, and your Honours have a photocopy of page 43 where the great jurist deals with the issue that your Honours are looking at in his formulation of the Code in the third line there at the top of page 43 where he talks about:
the question whether . . . in its primary sense –
a publication is –
capable of being construed as non‑defamatory . . . are questions of law.
It you go to the footnote, this is at about point 7 on the page, you see the principle articulated:
The function of the judge is not limited to the determination of the question whether the matter is capable of a defamatory meaning in its primary sense; it is also his duty to consider whether it is capable of any other than a defamatory meaning, and, if he holds that it is not, to direct the jury to this effect, whereupon, if they refuse to obey such direction, this is misconduct on their part and ground for a new trial.
So, going back, as your Honour Justice Kirby rightly enjoins me to do, to the terms of section 108(3), this is, within the meaning of that section, a matter of law, as Mr Spencer Bower says, a question of law. Now, of course, the cases to which he refers are defamation cases where there was a trial on all issues so there could not be a directed verdict but there could be a direction as a matter of law that because the publications were necessarily defamatory that the jury had to take the judge’s view on that point as gospel.
CALLINAN J: Mr Reynolds, can I bring you back to section 7A, and I am sorry to keep on talking about this, but is there any section of the Defamation Act which in terms requires you to plead imputations? Obviously, section 7A assumes, but not necessarily, I would not have thought, in its language, that in all cases they will be pleaded. What is it, if anything, that compels litigants in New South Wales to plead imputation rather than simply to plead that the matter is defamatory and not plead any imputations at all?
MR REYNOLDS: Your Honour, section 9, as your Honour the Chief Justice has remarked, is the key section in that regard.
GLEESON CJ: The words are “the person defamed has, in respect of that imputation, a cause of action”.
CALLINAN J: So we have to get it out of that though.
MR REYNOLDS: To answer your Honour, it comes from the Rules of Court which specify, and your Honour the Chief Justice dealt with this in Drummoyne Municipal Council v ABC, there is there under the Rules an obligation on the part of the pleader to “specify” – that is the word used – the imputation. So that is where the practice comes from.
CALLINAN J: Thank you.
GLEESON CJ: Does that cover your first point?
MR REYNOLDS: Yes, your Honour. Given the constraints of time, can I simply say this if I may, and obviously if your Honours want me to go to the cases I will, but the cases that my learned friend dealt with are cases which are talking about situations where there is a controversy as to primary facts, not a controversy as to inferences or conclusions to be drawn from those facts.
Can I deal with simply one of those cases to make that point, and that is the decision of Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. Can I just take your Honours very briefly to the passage of Justice Glass at about page 156C where Justice Glass talks about the point that I have been trying to make. He says there that:
A finding of fact in the Commission may nevertheless reveal an error of law . . . A possibility of this kind exists with ultimate findings of fact –
I interpolate that is conclusions or inferences –
but not with respect to primary findings of fact . . . Further an ultimate finding of fact . . . may reveal error of law if the primary facts found are necessarily within or outside a statutory description ‑ ‑ ‑
HAYNE J: Mr Reynolds, can I just go back to this question of orders. It seems to me that the order of the Court of Appeal might perhaps have more conveniently read as follows: 1. Appeal allowed with costs; 2. Set aside the orders of Justice Bell made on 2 June 2005 and in their place order that (a) the issues of whether the matter complained of by the plaintiffs carry each of the imputations identified as imputations (a) and (c) - carry those imputations, be determined, yes, and whether each of those imputations is defamatory be also determined, yes; (b) the issues of whether the matter complained of carry the imputation identified as imputation (d) and whether that imputation is defamatory be remitted for determination by a jury in accordance with section 7A of the Defamation Act 1974 (NSW); (c) would be, I think, a variant or it may simply be the text of order 6 dealing with costs below and (3) would be a certificate.
MR REYNOLDS: I am sorry, your Honour, it is a bit difficult to take all of that in.
HAYNE J: I understand that, but it seems to me unless you do it in considerable detail and record that there is a determination of issues and what those issues are that are determined, the order miscarries.
GLEESON CJ: Both parties would have an opportunity to consider the discussion that has emerged during the course of the day about what orders ought to have been made assuming otherwise the decision of the Court of Appeal was correct and you can put in, within seven days any written submissions you want to make about the forms of orders.
MR REYNOLDS: Thank you, your Honour. Does your Honour wish also submissions as opposed to simply the form of the order because ‑ ‑ ‑
GLEESON CJ: Please yourselves.
MR REYNOLDS: If your Honour pleases. My learned friend, Mr Evatt, at the special leave application noted that there were four decisions of the Court of Appeal that had come to the conclusion that applying the principles we have discussed it was possible to enter verdicts. I will just list those for the record. They are Charlwood v Brent [2002] NSWCA 201, Gorman v Barber (2004) 61 NSWLR 543, Harvey v John Fairfax [2005] NSWCA 255 and, of course, there is this case. That is the first argument. The second argument is ‑ ‑ ‑
KIRBY J: I suppose you would agree that where a judgment is set aside for incorrect instructions to the jury the normal remedy is to remit the matter for retrial without the error that has been made at the first instance? That is the normal process.
MR REYNOLDS: If verdicts are set aside then the court has a discretion as to what issues it orders for a retrial. As a general rule the court will often order that all issues be redetermined, that the court has a discretion ‑ ‑ ‑
KIRBY J: But exceptionally in this case the Parliament of New South Wales has provided that defamation actions, so named, are to be tried by a jury. Is that not a very important consideration to be taken into account by the Court of Appeal before taking that right and facility away?
MR REYNOLDS: Your Honour, that raises the question of whether that discretion is miscarried and that is one of the points that I will be dealing with in due course.
KIRBY J: We have a submission that it did.
MR REYNOLDS: Yes, your Honours did, and as I say, I will be coming to that in a moment. But before I do, can I come to the second point which I understand to be put against my clients, which is this proposition, that my learned friend says that the Court of Appeal cannot direct a verdict in favour of the plaintiff because the trial judge could not have done so. Now, I think I dealt with this briefly before, but I submit there are two responses that I have to that submission.
The first is that I submit there is absolutely no doubt that the trial judge had the power and could have directed in this case if application had been made to her, to direct verdicts that imputations (a) and (c) were defamatory. In terms of how that would have happened, the way it would have happened procedurally is if counsel for a plaintiff wanted to suggest that that issue should be taken away from the jury and a verdict entered for his clients on the issue of whether the imputations were defamatory, we would raise that with the judge. The judge would make a determination as to whether that submission of law succeeded. If it did the issue would be taken away from the jury. The jury would then be given one issue for determination, namely whether the imputations were conveyed. They would then come in. They would give their special verdicts on those issues.
The judge would then have a discretion. She or he could deal with it in either of two ways. The judge could either formally direct the jury to enter a verdict that imputations (a) and (c) were defamatory or, alternatively, as Sir Owen Dixon said in a number of cases, the trial judge would have inherent power not to go through that process but simply himself or herself to direct the entry of verdicts that imputations (a) and (c) were defamatory. Now, there is not the slightest difficulty with that process occurring before a trial judge. True it is that it is not often done because ‑ ‑ ‑
KIRBY J: Certainly is not. I never heard of it in my 12 years in the Court of Appeal.
MR REYNOLDS: Well, Sir Frederick Jordan refers to it in McPhee v Bennett in the page your Honours have been taken to. This is in The Weekly Notes, volume 52, in particular at page 9. Your Honours will see in the first column there, Sir Frederick – this is about the first column on page 9, about point 6 or 7:
if the evidence is all one way –
notice the use of that word rather than “inference” –
and there is no reason to doubt its genuineness and accuracy –
I interpolate, as here –
the trial judge may take the question from the jury -
They just take it away from them, only give them one issue to determine, and then, as I have said, he can handle the matter in either of two ways after they have given their special verdict in relation to the issue of whether those imputations are conveyed.
KIRBY J: I will have to read that carefully but it appears to be in the context of where the party upon whom the burden of proving the fact fails to prove it then that party must fail, which is a verdict by direction for a want of establishing your cause of action. It is not a verdict by direction to usurp the function of the constitutional tribunal.
MR REYNOLDS: Your Honour, one thing that decisions in this Court make clear is that there is not any distinction in this regard between the position of a plaintiff or a defendant.
KIRBY J: I do not think the two cases you have cited bear that out. If there are any other cases you might include them in your note, but it is all heresy as far as I am concerned.
MR REYNOLDS: It is much more difficult, obviously, for a plaintiff to be able to get a directed verdict because in practical terms unless the number of issues are very small or there is only one or two, in order to get a directed verdict the plaintiff would have to show that on all the issues he needs to succeed on he is entitled to succeed and therefore to get a final directed general verdict. Now, as a matter of experience of life, that is going to happen very, very rarely.
Of course, there is a special situation that applies here because there are only a couple of issues that normally go to the jury and, therefore, the possibility in practical terms of it happening arises. That is not to deny the technical availability of such a directed verdict that it is an explanation of, or I have attempted to explain why it is that it does not happen very often.
Now, responding to the proposition that my learned friend put that the Court of Appeal cannot direct a verdict because the trial judge could not and I have submitted that a trial judge could easily have done that, my second response is that even if the trial judge could not have directed a verdict it was open to the Court of Appeal to direct a verdict and the reason is that the Court of Appeal’s powers are wider than those of the trial judge.
That proposition articulated by Justice Isaacs in Heydon v Lillis (1907) 4 CLR 1223 at the top of page 1229 where he said:
It seems to me that the legislature, in framing that section, intended to give the Full Court at least as much power as a Judge had.
Justice Higgins said he was of the same opinion. Now, could I just explore that for a moment about what may be going through Justice Isaacs’ mind. The main point I would like to pick up on in this regard is something that your Honour the Chief Justice talked about or raised with my learned friend about convenience. There are a couple of cases and I will come to them in a moment where this Court has said that one of the rationales behind section 108(3) and its predecessor is avoiding futility and by that they mean avoiding the futility of a further retrial where necessarily there would have to be a directed verdict at that retrial.
To illustrate the proposition that the Full Court’s powers must necessarily be wider than a trial judge’s, can I take as an example a situation where there is consideration about whether a directed verdict be given in favour of a plaintiff. Assume at the trial there were a multiplicity of issues and that the plaintiff was not able to seek a general verdict in his or her favour because he was not able to say apropos every issue that no reasonable jury would have to find in his favour. Assume that the matter then goes before a Full Court or the Court of Appeal and the Court of Appeal considers, in the exercise of their discretion in accordance with cases such as Pateman v Higgin and Coroneo v Kurri Kurri Investments, that only one issue should be the subject of a retrial.
Their Honours then look at the question of whether or not, if that issue were to be submitted for a retrial, the trial judge at that retrial in the future would be bound to enter a directed verdict in favour of the plaintiff. Now, they could, as happened in this case, come to the conclusion that because the trial judge would be bound to direct a verdict, it would be a futility to order a retrial and, I submit, it is well established that on that basis the Full Court or this Court would be entitled to direct a verdict.
KIRBY J: Is it as high as that or it is enough for you to say because a jury acting properly must bring in a verdict in favour of your client, that it is a futility?
MR REYNOLDS: I have to satisfy that test, there is no doubt about that. Just going back to the proposition that I am trying to get to, I submit that the Court of Appeal’s powers are wider than that of a trial judge and the example that I have just given proves it because, on the example I have given, it would be impossible for the trial judge to direct a verdict but, I submit, the Full Court or a Court of Appeal, because there was only one issue, would be able to direct a verdict even though, ex hypothesi, the trial judge would not have been able to.
The futility principle has been articulated – can I give your Honours a couple of references in a couple of cases. One is called Hampton Court Ltd vCrooks (1957) 97 CLR 367 and at page 377 at about point 8 Justices McTiernan, Fullagar, Kitto and Taylor directed a verdict and one of the bases was that a new trial would be futile. The same point was made in Heydon v Lillis(1907) 4 CLR 1223 at page 1228. This was the passage that your Honour Justice Gummow read out to my friend where Chief Justice Griffith, with whom the other judges agreed, talked about avoiding unnecessary and useless further litigation.
KIRBY J: This is direction of a verdict in favour of the defendant against the party that bore the onus for want of evidence of negligence on the part of the defendant, very orthodox stuff. It used to be a daily event when I first went to the Bar.
MR REYNOLDS: Your Honour, I have attempted to explain why it is that this situation did not come up more often.
KIRBY J: That was not a daily event, I can tell you that.
MR REYNOLDS: No, not in favour of a plaintiff, of course it was not.
KIRBY J: It was a never‑never event.
MR REYNOLDS: Your Honour, we have to look at why that was as a practical matter, because what your Honour is suggesting is because, in effect, it did not happen very often, therefore, it cannot be available as a matter of law, and I suggest that it is available as a matter of law, and I have explained why it did not occur very often. Very simply, it is because no plaintiff in anything like a usual case would be in a position to be able to seek a directed verdict because he would have to satisfy this extraordinarily high test of no reasonable jury, et cetera, in relation to every issue that he had to establish.
Now, it is only where we get a very rare case where there is a very limited trial on only one or two issues that this possibility fructifies in a way that enables a plaintiff to take advantage of the particular principle of law, and I submit, with great respect, that these two cases in the High Court certainly make it clear that the Full Court had the power, and I submit they also suggest that a trial judge also had the power to direct a verdict in favour of the plaintiff.
My learned friend’s third submission, as I understand it, is that the Court of Appeal can only direct a verdict under section 108(3) where the Court of Appeal directs the entry of judgment on that issue. Now, that submission is made in my learned friend’s reply at paragraph 2. One only has to state that submission, I submit, in order to see why it is untenable, and the reason why it is untenable is for the very reason that the first order made by Justice Bell is – I think your Honour Justice Gummow said – obviously wrong, and it is that you cannot have a judgment entered in a case on one issue rather than the whole case.
In any event, if your Honours go to section 108(3) it is clear that when, I submit, one looks at the text that the powers of the Court of Appeal are to direct a verdict on – as the section says – any “issue” or “any cause of action”. There is no reason for reading the section down in order to say that one would have to also have a judgment ordered in relation to an issue, but as I say, it is not possible, as we noted earlier, for a judgment to be entered only on a particular issue.
The fourth submission, as I understood it, was my learned friend said that the Court of Appeal could not enter a verdict under section 108(3) because it was not a final verdict. The description “final verdict” is not really a term of art. I assume that in using that expression my learned friend meant a general verdict disposing of the whole case. So that what my learned friend’s submission is, as I understand it, that the word “verdict” in section 108(3) only includes general verdicts and does not include special verdicts on particular issues in the case.
The first and obvious response to that particular submission is that the text of the section talks in terms about issues. That makes it clear, I submit, that one is not talking – and also causes of action – that one is not talking necessarily about a general verdict. The other point I would make just to explain things is that this is not a matter – and I think your Honour Justice Heydon may have raised this with my friend earlier – which is raised in either the notice of appeal or the submissions and does catch us by surprise.
The other response that I would make, and I need to - the reason I have mentioned that it takes us by surprise is that I need to refer on this point to an authority which I have not given your Honours. Your Honours’ tipstaves can perhaps give your Honours a copy of section 102 of the Supreme Court Act which ‑ ‑ ‑
GUMMOW J: We have the reprint of the Act.
GLEESON CJ: We have the Act - reprint of the Supreme Court Act.
MR REYNOLDS: It is obviously in the same section of the ‑ ‑ ‑
GUMMOW J: Exactly. All these things are in Part 7 and 102 is the starting point, really.
MR REYNOLDS: It is. Your Honours will see in (a) it talks about “the setting aside of a verdict”. That is the right of appeal from a verdict. My learned friend, Mr Evatt, and I had a case against each other about a year ago called Bennette v Cohen (2004) 64 NSWLR 81. What happened was that my client lost on some issues in the section 7A trial and although most of the appellants from section 7A trials had sought leave my client purported to appeal as of right under section 102. My learned friend, Mr Evatt, took an objection as to the competency of the appeal and said that there was no verdict from which my client could appeal within the meaning of section 102. The Court of Appeal held that verdicts in section 7A trials amounted to verdicts within the meaning of section 102. I submit that by similar reasoning the word “verdict” in section 108 should also be interpreted so as to include verdicts in section 7A trials.
The fifth point that I would like to deal with is the submission made, as I understand it, as an appeal from the Court of Appeal’s exercise of discretion and it is to this effect that because the Court of Appeal remitted imputation (d) they should also have remitted imputations (a) and (c), generally, also as part of the retrial. This, too, takes us by surprise. It is not in the notice of appeal and it is not in the written submissions, on any view, although my learned friend flagged it in his argument to your Honours.
KIRBY J: There is no Coulton v Holcombe type procedural unfairness in the court dealing with the matter?
MR REYNOLDS: No, there is just the difficulty of counsel having to formulate submissions, hearing the submission made one minute and then having to respond fairly quickly ‑ ‑ ‑
GLEESON CJ: You are already in a position where people are putting in notes of authorities and submissions. If you need time to consider this matter you can put it in your written submissions.
MR REYNOLDS: I would appreciate that, your Honour. Perhaps if I can do that and I will simply leave the matter in abeyance until that is done. The sixth point my learned friend articulated was a submission about community standards. He submitted that the Court of Appeal’s reasoning somehow miscarried because he said the Court of Appeal was wrong, and these are my notes, first of all, because they held that community standards were unimportant and second of all because they held that no community standards were involved.
Now, I submit that that is a misstatement and, with respect, a considerable misstatement of what the Court of Appeal’s reasoning was on this point. If your Honours go to our submissions, if they are handy, at paragraphs 34 to 44 we attempt to outline what the Court of Appeal’s reasoning was on these points. There are three relevant passages I should take your Honours to. The first is at page 162 at about line 38 where Justice Beazley refers to the notion of questions of community standards and at line 39 says “That might be so, but only in the broadest of senses”, talking of course about a trade libel, that is, having a tendency to injure the plaintiff in his or her professional trade.
KIRBY J: Yes, but as pleaded, you went on to say “and have been brought into public hatred, ridicule and contempt”, the normal words.
MR REYNOLDS: Your Honour, if I can use an Americanism, the law of the case so far as this case is concerned is that the test of what is defamatory is that formulated by the Court of Appeal and there is no appeal from it. As your Honour has noted earlier on, that is what we have to stick with. The point that Justice Beazley is making is that when one applies a trade libel sense, it does raise questions of community standards and she says:
That might be so, but only in the broadest of senses.
The second point that Justice Beazley makes is at page 163 at about line 12 where she says that:
The question whether a restaurant serves unpalatable food or provides some bad service does not raise questions of community standards of the type discussed in Cairns v John Fairfax.
KIRBY J: Which paragraph was that?
MR REYNOLDS: That is 163 at about lines 10 to 20. Now, of course, Cairns v John Fairfax, which was a cause célèbre in its day, was about sexual morality and her Honour’s point is that notions of unpalatable food and service do:
not raise questions of community standards of the type discussed in Cairns v John Fairfax.
Now, the third statement on this point by Justice Ipp ‑ ‑ ‑
KIRBY J: They surely do raise issues of community standards.
MR REYNOLDS: No one in the Court of Appeal said otherwise, your Honour, and that is the point that I am trying to make. At page 141 at line 55 Justice Handley talked about:
imputations which tend to injure the plaintiff in his trade or business where general community standards are less important.
My learned friend’s submission, and I have noted it twice, is “no community standards involved” and “community standards are unimportant.” That is simply not what the Court of Appeal said and I submit that the observations made by their Honours, particularly on the assumption that the trade libel test is the correct test of what is defamatory, were unexceptionable. That is the first response we put.
The second – and my learned friend raised it with your Honours earlier on – is that on the transcript, as we understood it, my learned friend confined his appeal to questions of power, not exercise of discretion. Your Honours were taken to that earlier. But the third point is this, that the reason this is talked about is on the question of the exercise of the Court’s discretion about whether to remit the issue of whether these imputations are defamatory, or whether or not a directed verdict should be made.
Now, that is a classic, we submit, exercise of discretion in a matter of practice and procedure which would therefore involve the principles well known to your Honours from Sir Frederick Jordan’s judgment in In re Will of Gilbert (1946) 46 SR (NSW) 318 ‑ ‑ ‑
GLEESON CJ: We understand those, thank you.
MR REYNOLDS: ‑ ‑ ‑ at page 323 adopted by this Court in numerous cases, one of which I could give to your Honours if your Honours wanted it ‑ ‑ ‑
GUMMOW J: Adam P Brown.
MR REYNOLDS: That is the case I was going to refer your Honours to, but the point is this, that my learned friend has not even attempted to shoulder the onus of overcoming the difficulties formulated by Sir Frederick in that judgment about trying to overturn an exercise of discretion on a matter of ‑ ‑ ‑
KIRBY J: He does say that there is a fundamental point and that is Parliament has assigned it is a jury trial, is a matter natural to jury trial, he has demanded the jury and that is his entitlement, and that should not be taken away lightly.
MR REYNOLDS: Your Honour, that sounds awfully like, with respect, a ninth point which is that the discretion to direct a verdict rather than remit the matter for further retrial miscarried because ‑ I will try and formulate it – the Court of Appeal failed to take account of a relevant factor, namely, that Parliament had entrusted the question of whether or not the imputations were defamatory to a jury rather than to a court of judges. I think that is a fair summation of what your Honour just put to me. Again, it is not something that has been canvassed in the notice of appeal or the submissions ‑ ‑ ‑
KIRBY J: It is pretty obvious.
MR REYNOLDS: Your Honours, I would submit that one of the great difficulties ‑ ‑ ‑
KIRBY J: As far as I am concerned, it is pretty important.
MR REYNOLDS: Your Honour, I have not ‑ because it takes me by surprise – I have not re‑read the judgment to see where it is that their Honours refer to that matter, but my recollection is, for what it is worth, that at various stages in the judgment, their Honours refer to the fact that – with respect, a very obvious fact – Parliament has entrusted that issue for determination to a jury.
KIRBY J: You will have your opportunity to respond in the written submission that you are going to be sending in.
MR REYNOLDS: If your Honour is flagging the possibility that I can also address this further point, and if your Honour the Chief Justice permits me to do so – I assume from your Honour’s nod that your Honour has ‑ ‑ ‑
GLEESON CJ: I thought the argument against you that was put on “discretion” was the one that you have dealt with already, that is to say, it was claimed that the discretion miscarried because they made an error about community standards and that therefore we should re‑exercise the discretion ourselves.
MR REYNOLDS: That is what I thought.
GLEESON CJ: That is the argument that is in the written submissions.
MR REYNOLDS: I am here ready, willing and eager to put an argument. I have put an argument on that point. That is the only issue I understood to be raised on this question.
GLEESON CJ: You can deal with this additional matter in your note.
MR REYNOLDS: I will.
KIRBY J: There was also the whole reference back point which I think you have dealt with.
GLEESON CJ: That is the paragraph (d) matter?
MR REYNOLDS: I am sorry, yes, your Honour. Point 7, on the test of whether these imputations were necessarily defamatory. In our submissions at paragraph 21 and following we have underlined the proposition that the test – and this is sometimes forgotten, although if I may say so while he is here, this is something that Mr Evatt always raises or tends to raise before juries and that is the test of whether something is defamatory is a tendency test. One does not need to prove on the balance of probabilities that someone’s reputation was in fact injured. All one needs to show is that there is a tendency in that regard.
Now, here where we are talking about a trade libel, the relevant tendency is one to injure a person in his or her profession or trade. I submit that that is not a very difficult test to surmount, and in particular, if it is said of a restaurateur that they serve unpalatable food or provide poor service in their restaurant, I submit as I have to submit, that those imputations are obviously and necessarily defamatory. There could be no doubt about it.
I submit that if your Honours put your Honours’ selves notionally in the position of a jury, that your Honours would not regard that any submission my learned friend has made as a submission that could seriously be put to a jury there as a tribunal of fact on those issues. Now, let me deal briefly with the ‑ ‑ ‑
KIRBY J: So it means you can never really have a critical restaurant review and win on the first point. You are straight for the defences.
MR REYNOLDS: No, one could not say that. But let me say this, if one is talking about a restaurant review that says there is bad service and unpalatable food I agree with what your Honour has just put to me, but the review may say other things. It may say the food is terrific, the service is terrific, et cetera.
CALLINAN J: Well, there was a reasonable comment. I mean subject to it being able to be put as matter of comment ‑ ‑ ‑
MR REYNOLDS: That is the matter my learned friend raised and your Honour was straight on to it, and that is you cannot make submissions on this notion of what is defamatory by going to the – anticipating a defence that might be put. To do that in front of a jury would be cheating and a judge would pull you straight up on that and say to you, if you were addressing a jury, he would no doubt interrupt you and say, “There is no fair comment defence raised for the determination of the jury”, so notions of it being, as my learned friend said, opinion, critique or otherwise, are utterly irrelevant to the jury’s determination of what is defamatory.
Let me say further, that even if one could put a submission in that regard on whether an imputation was conveyed, one certainly could not put it on the issue of whether an imputation when one looked at its text was defamatory.
CALLINAN J: The appellants have to say, in order to succeed, I would have thought, that some community standard ‑ or something else, but I think it is put as a community standard – in some way is capable of and obliterates completely the defamatory impact of the unmistakably clear words.
MR REYNOLDS: Your Honour, we say that it is, to use a colloquialism, what the Americans would call a “no brainer” to suggest that if you are a restaurateur and you are serving food that is unpalatable and your service is no good, that it does not have the requisite tendency. Indeed, my learned friend, if your Honours review the transcript, gave this what Mr Hughes, QC, would call a very light touch in front of the jury. I think there are about five lines where he barely touched on the issue, perhaps on the basis that you never know your luck in a big city with a jury, but all these submissions that have been put to your Honours ‑ ‑ ‑
KIRBY J: Pretty effective light touch.
MR REYNOLDS: I am sorry, your Honour?
KIRBY J: It was pretty effective. Maybe they just took the view that you do not want to stifle restaurant reviews.
MR REYNOLDS: I do not underestimate my learned friend’s rhetorical skills at all, your Honour, and, as you say ‑ ‑ ‑
CALLINAN J: There was an erroneous direction anyway.
MR REYNOLDS: That is the problem.
GLEESON CJ: You still have to give him time to exercise his rhetorical skills in the reply to you.
MR REYNOLDS: Your Honour, I am nearly there. My learned friend has flirted – and I say this before I deal specifically with these points in this regard – with a decision called Nikolopoulos (2002) 54 NSWLR 165 and that talks about the possibility, when the jury is considering whether an imputation is defamatory, of viewing the imputation in the context of the matter complained of.
Now, the point that we would make about that case is that it does not permit, on the issue of whether an imputation is defamatory, the jury or, for that matter, counsel to alter the substance of the imputation by, as it were, interpolating little bits and pieces from the article. One can test it this way. If the imputation on its face is necessarily defamatory without regard to the article, if one then looks at the article and one forms the view that in the context of the article the imputation is not necessarily defamatory, then it must be ex hypothesi that the article has been used to alter the substance of the imputation. Your Honours will have seen from the questions that the notion of an imputation in substance is part of a jury’s questions. If you go to 119 at about line 20 it talks about “imputations not different in substance”.
Just to deal very briefly with my learned friend’s point, his first point was that it was an opinion piece or a critique and your Honour Justice Callinan dealt with that and I have also dealt with it briefly, and that is, that might be a defence, but it certainly does not affect whether or not an imputation is defamatory. His second point, as I understood it, was that the imputation (a) – the two imputations, by the way, are at page 147 at lines 20 to 30.
GLEESON CJ: How long do you expect to require to complete your argument?
MR REYNOLDS: About another three minutes I think, your Honour. That is, imputation (a) that it only criticises some of the food. We submit that when your Honours look at the text of the imputation it is clear that it is general in form. It says “sells unpalatable food” and to talk about it,
criticising only some of the food is an alteration in substance of the imputation. The third submission he made is that the imputation about the food, that is, imputation (a), would damage the reputation of the chef, not the proprietor. The problem is that the jury has found that that imputation was conveyed of and concerning the plaintiffs who are restaurateurs.
In seeking to suggest that it is more a criticism of the chef rather than the proprietor, what my learned friend is doing is undermining the very finding of the jury. Can I just give your Honours a reference as to why that is impermissible. There is a case called Bass v Permanent Trustee (1999) 198 CLR 334 at page 360 and it talks about a decision of Lord Justice Diplock, as he was at the time, called Fidelitas Shipping and it makes the point that where there is a separate trial of an issue, as there was here, it is not open to a party to:
advance argument or adduce further evidence directed to showing that the issue was wrongly determined.
That is in the quote at page 360 at about point 2. What my learned friend is doing here is trying to undercut the jury’s verdict on the finding that the imputation was conveyed of the restaurateurs as opposed to the chef or the proprietors. My learned friend made the same point in relation to imputation (c) about service. He said that reflected on the staff not on the restaurateurs. That has the same problem.
My learned friend’s final submission related to imputation (c) where he pointed out that it only related to some bad service at the restaurant. Your Honours, on our submission, it cannot seriously be suggested that to say of a restaurateur that his service is bad is not defamatory unless it is stated that all of the service is bad. Those are my submissions on the seventh point.
The eighth point is on the question of costs and we rely on our written submissions in that regard. I apologise to the Court and in particular to your Honour the Chief Justice for my misestimate of the time that I had made of my submissions.
GLEESON CJ: Yes, thank you, Mr Reynolds. Yes, Mr Blackburn.
MR BLACKBURN: May it please the Court.
GUMMOW J: Are you attending to the provision to us of Justice Nicholas’ reasons?
MR BLACKBURN: Your Honour, I have made some inquiries about that. We have to procure the transcript which we do not have. There were two occasions apparently when the issue of the capacity of the imputations was ‑ ‑ ‑
GLEESON CJ: You can send that in to us.
MR BLACKBURN: Yes, if that is acceptable to the Court, not all of it.
GLEESON CJ: You can send that in to us.
MR BLACKBURN: Thank you, your Honour. Just in relation to what Sir Samuel Griffith said in Heydon v Lillis, can I draw the Court’s attention to what Justice Dixon said in Hocking v Bell 71 CLR at page 498? His Honour said this at about point 5:
What precisely Griffith C.J. meant in Heydon v. Lillis by the expression “perverse verdict” in the passage to which my brother Starke has referred, I am not sure. Sometimes it is used to describe a disregard of a direction from the judge. Sometimes it refers to a finding contrary to that which the facts of the case legally demand. But I think it always means something more than a verdict against the weight of the evidence . . . In any case, the meaning and effect of the terms used in s. 7 of the Supreme Court Procedure Act are too clear and well settled to be affected by the choice of expression of the late Chief Justice.
That, in our submission, is hardly a ringing endorsement by Sir Owen Dixon of what the learned Chief Justice said in Heydon v Lillis. The next point is just in relation to Leslie v Mirror. The passage that my friend referred to at page 337 is, of course, purely obiter and the paragraph concludes at page 337 at about point 5 with this statement by Sir Garfield Barwick:
But there is no need in this case to resolve either question which might be thought to be involved in the reasons for judgment of Latham C.J. in Hocking v. Bell and Dixon J. in Shepherd v. Felt and Textiles of Australia Ltd., namely whether, even in such cases the issue must be left to the jury, their verdict if unreasonable being subject to being set aside as perverse.
So those obiter remarks hardly stand for a proposition of law that my learned friend can rely on.
Primary facts, in our submission – the meanings that the jury is asked to find in published matter and the question of whether those meanings are defamatory in our submission do not stand in the same position as an inference or conclusion from primary facts. The question the jury have to decide is whether the ordinary reasonable reader would have had conveyed to him or her the meanings the plaintiff contends for from the publication.
It is true that the only evidence before the jury on that question is usually the publication itself, but that question – that factual question, in our submission, hardly stands in the same position as an inference or conclusion that the tribunal of fact simply draws from a primary fact which is given in evidence or established in evidence. We would say that the factual questions to be answered by the jury in a 7A trial can be properly characterised as primary facts. They are akin to primary facts even though they are not constituted by oral evidence or documentary evidence. As I understood my learned friend’s submission, he says that primary facts cannot be the subject of, cannot be used to found a verdict under section 108(3).
The next point relates to community standards and my friend has taken me to task on what he said was a misrepresentation of what was said by Justice Handley and/or Justice Beazley in the Court of Appeal. The effect, in our submission, of what was said by Justice Beazley at paragraphs 71 and 72 of her judgment which appears at pages 162 to 163 of the appeal book, the effect of what her Honour said was that community standards were unimportant in assessing whether a trade libel, as my friend puts it, was defamatory.
The statements made by her Honour were said against the background of a submission by me, repeated at 162 of the appeal book at about line 30, that community standards were involved in the question of whether these imputations were defamatory. The effect of what her Honour said, in our submission, in response to that in paragraphs 71 and 72 of her judgment was effectively that community standards were not important in resolving the question whether a trade libel was defamatory.
She said in particular at about line 40 on page 162 in response to the submission that I had made, “That might be so, but only in the broadest of senses.” In effect, her Honour was saying that community standards are not important in determining libels of this kind and the submission that we had made that it should be remitted for a jury trial because community standards were important was not accepted by her Honour.
I have not dealt with every case that my learned friend has referred to. I probably should say something very briefly about Edmond WeilIncorporated v Russell (1936) 56 CLR. Of course the Court will read the case for itself, but it seems to us that what was being dealt with in that case was a question of the Full Court allowing the appeal from the judgment entered by the trial judge saying that the jury’s determination should stand. The majority in this Court disagreed, but it is clear from the report that the
giving of judgment for the plaintiff was on the basis that as a matter of law, there was no proper basis for the jury’s answer. It does seem to us that there was some kind of agreement involved in that case, but it is not clear from the report, but it does not stand for the proposition which my learned friend advances.
Finally, on the question of costs, we rely on what we have said in reply. This matter went to the Court of Appeal because my learned friend, Mr Evatt, pronounced himself satisfied with the directions given by the trial judge and then, when he got an adverse result, went to the Court of Appeal to complain about the very direction that he accepted in the court below.
It is possible – and these things, of course, are only ever possibilities – that if Mr Evatt had made the complaint that he made to the Court of Appeal we would not be here, none of this would have happened. In relation to my learned friend’s written submission that the issue of the correctness of the use of section 108 was not raised in the Court of Appeal, that had been the subject of three or four decisions culminating, I think, in Gorman v Barber over the previous couple of years. It is wholly improbable, in my submission, that had I applied to the Court of Appeal to reopen that question it would have been permitted, given the proximity of Gorman v Barber.
HEYDON J: But you did apply.
MR BLACKBURN: I think the complaint was, your Honour, that my application was too late. It seems to us, and this is all speculation, that it is improbable that we would have been permitted to ventilate it even if we had applied in a timeous fashion. It was always going to be a special leave point, in our submission, and it is impossible to say that had we made the application earlier, then the Court of Appeal would have found in our favour and we would not have wound up in the High Court. Indeed, it is just impossible to speculate about it. Those are my submissions. May it please the Court.
GLEESON CJ: Thank you, Mr Blackburn.
MR REYNOLDS: Your Honour, may I reply to one matter very briefly. Might the Court permit a response on that submission in paragraph 4 of my learned friend’s reply in writing? Mr Evatt would like to respond to that briefly. Thank you, your Honour.
GLEESON CJ: Yes. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.
AT 4.29 PM THE MATTER WAS ADJOURNED
0
16
0