John Fairfax Publications Pty Ltd v Rivkin

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, KIRBY, CALLINAN AND HEYDON JJ

JOHN FAIRFAX PUBLICATIONS PTY LIMITED                        APPELLANT

AND

RENE RIVKIN  RESPONDENT

John Fairfax Publications Pty Ltd v Rivkin

[2003] HCA 50

10 September 2003
S353/2002

ORDER

1.   Appeal allowed.

2.   Order that there be a new trial on imputations 1(a), 1(b), 3(c)(i), 3(c)(ii), and 3(d).

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with T D Blackburn and A T S Dawson for the appellant (instructed by Freehills)

T E F Hughes QC with T D F Hughes for the respondent (instructed by Gilbert & Tobin)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

1. GLEESON CJ.   The facts are set out in the reasons for judgment of Callinan J, with which I agree.  I would make the following additional observations.

2. The issue before the Court of Appeal was fairly expressed in the notice of appeal to that Court as being whether each of the answers given by the jury to the questions submitted was an answer that no reasonable jury properly directed could have given.  It is not uncommon, and not inappropriate, for judicial reference to such an issue to be accompanied by admonitions intended to remind appellate courts of a need for restraint.  Sometimes such restraint is said to be necessitated by a practical consideration:  juries, unlike trial judges sitting alone, do not give reasons for their decisions, and their decisions are, to that extent, unexaminable.  Sometimes it is said to reflect deference to the constitutional role of the jury, and to its representative function.  In defamation actions in New South Wales, that function is now considerably restricted, but at least it survives to the limited extent exemplified in the present appeal.  It is to the practical consideration that I wish to return.

3. Comments about the difficulty of challenging a jury's decision are often made in a context in which the jury has returned a single inscrutable verdict.  That is not quite the present case.  Here the jury gave answers to a number of questions.  In each case, the question was divided into two parts:  whether the matter published by the appellant of the respondent conveyed a certain imputation; and, if so, whether the imputation was defamatory.  The jury returned a negative answer to the first part of each question.

4. As the reasoning of the Court of Appeal demonstrates, the strength of the respondent's case in relation to the alleged imputations varied.  The most serious alleged imputation was that the respondent was criminally liable in respect of the murder of a young woman whose body was found at the base of a cliff.  The finding that the matter published did not convey that imputation was reasonably available to the jury.  The articles treated the whole matter of the young woman's death as a mystery.  The possibility that she was the victim of homicide, was presented as an…