John Fairfax Publications Pty Ltd v Rivkin

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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…

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Details
Case
[2003] HCA 50
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the New South Wales Court of Appeal concerning a defamation action brought by Mr Rene Rivkin against John Fairfax Publications Pty Ltd. Mr Rivkin alleged that three publications by the appellant conveyed defamatory imputations about him. The appellant did not dispute publication or that some readers of one publication had also read another, which was relevant to Mr Rivkin's claim of a true innuendo.

The central legal issues before the High Court were whether the jury's findings, which determined that the publications did not convey any of the imputations pleaded by Mr Rivkin, were unreasonable to the extent that no reasonable jury, properly instructed, could have reached such conclusions. Additionally, the Court considered the scope of a new trial when only some of a jury's findings on particular imputations might be deemed unreasonable, and whether the trial judge erred in refusing the plaintiff leave to address the jury in reply.

The High Court found that the jury's refusal to find that the articles conveyed the pleaded imputations was a reasonable conclusion. The Court of Appeal had erred in holding that no reasonable jury could have made such findings, particularly given the brevity of the jury's deliberation and their universally unfavourable answers to the alleged imputations. The High Court allowed the appeal, setting aside the orders of the Court of Appeal and ordering that the appeal to that court be dismissed with costs.

Orders

Orders of the court

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).

Background

Background to the litigation

This appeal from a judgment of the New South Wales Court of Appeal[40] concerns the law and practice of defamation trials in New South Wales. By reason of the Defamation Act 1974 (NSW) ("the Act") s 7A, there are special features of such trials, unique to that State[41].[40]Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87.[41]Noted in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 578-581 [139].The facts and relevant legislation Three impugned publications: The background facts are set out in other reasons[42]. The respondent, Mr Rene Rivkin, sued the appellant, John Fairfax Publications Pty Ltd, in respect of imputations said to have been conveyed to the ordinary reasonable reader concerning Mr Rivkin, and defamatory of him, in three publications of the appellant. Those publications were The Australian Financial Review of 21-22 February 1998 ("AFR"); The Sydney Morning Herald of 25 February 1998 ("SMH1") and The Sydney Morning Herald of 5 March 1998 ("SMH2"). [42]Reasons of McHugh J at [12]-[16]; reasons of Callinan J at [173]. Because the matters complained of are quoted extensively in other reasons[43], I will not repeat them. The appellant did not contest publication. Nor did it dispute that at least one person who had read SMH1 had also read the article in AFR. That concession was relevant to the reliance by Mr Rivkin upon a true innuendo pleaded by him to the effect that those who read SMH1, having read AFR, would have done so with a heightened awareness of the matters previously published, such that the content of SMH1 would thereby have given rise to imputations inculpating Mr Rivkin in the murder of Ms Caroline Byrne ("the deceased")[44].[43]Reasons of Callinan J at [174].[44]Reasons of Callinan J at [209]. A peculiar legal procedure: In accordance with the Act[45], a plaintiff in New South Wales does not sue upon the matter complained of as such. He or she sues in respect of particular imputations alleged to arise from a close analysis of the publication. Each established imputation has been held to constitute a separate cause of action[46]. This approach has led to artificiality. Those complaining about defamatory matter in a publication seek to eke out (often in language different from the publication itself) a multitude of imputations for which the complaining party sues. The present appeal is far from the worst case of this genre[47]. [45]s 9.[46]See Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 190.[47]eg Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148-151. No one submitted before this Court that the foregoing approach was wrong. No one suggested that the Constitution implied any limitation or restriction on this procedure or on the respondent's cause of action. Despite the artificiality that it tends to cause – diverting attention from the publication to the lawyer's pleading of the alleged imputations – I shall assume that this is what the New South Wales legislation requires. The problems that have arisen in the present case (as in others) are substantially the outcome of the replacement of what was formerly a comprehensive and intuitive process of jury assessment, taken to reflect community perception of a publication viewed as a whole, by a procedure whereby perception is substantially directed by lawyers towards formulae re-expressed by lawyers and ultimately, for the most part, evaluated and judged by lawyers.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ HUGH J KIRBY J HEYDON J
It is unnecessary for me to decide in this case whether this Court should reject so gross a departure from the common law practice and tradition of addresses in civil jury trials as envisaged by the Court of Appeal. I can only hope that in the meantime that Court will reconsider this departure from a practice and tradition that is now more than 200 years old.Conclusions The jury were acting reasonably when they refused to find that the articles conveyed the imputations pleaded. The Court of Appeal erred in concluding that no reasonable jury could have given the answers that they did. It follows that the appeal must be allowed and the verdict for the defendant entered by the learned trial judge must be restored.Order The appeal should be allowed. The orders of the Court of Appeal should be set aside. In their place, this Court should order that the appeal to the Court of Appeal be dismissed with costs. This appeal from a judgment of the New South Wales Court of Appeal[40] concerns the law and practice of defamation trials in New South Wales. By reason of the Defamation Act 1974 (NSW) ("the Act") s 7A, there are special features of such trials, unique to that State[41].[40]Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87.[41]Noted in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 578-581 [139].The facts and relevant legislation Three impugned publications: The background facts are set out in other reasons[42]. The respondent, Mr Rene Rivkin, sued the appellant, John Fairfax Publications Pty Ltd, in respect of imputations said to have been conveyed to the ordinary reasonable reader concerning Mr Rivkin, and defamatory of him, in three publications of the appellant. Those publications were The Australian Financial Review of 21-22 February 1998 ("AFR"); The Sydney Morning Herald of 25 February 1998 ("SMH1") and The Sydney Morning Herald of 5 March 1998 ("SMH2"). [42]Reasons of McHugh J at [12]-[16]; reasons of Callinan J at [173]. Because the matters complained of are quoted extensively in other reasons[43], I will not repeat them. The appellant did not contest publication. Nor did it dispute that at least one person who had read SMH1 had also read the article in AFR. That concession was relevant to the reliance by Mr Rivkin upon a true innuendo pleaded by him to the effect that those who read SMH1, having read AFR, would have done so with a heightened awareness of the matters previously published, such that the content of SMH1 would thereby have given rise to imputations inculpating Mr Rivkin in the murder of Ms Caroline Byrne ("the deceased")[44].[43]Reasons of Callinan J at [174].[44]Reasons of Callinan J at [209]. A peculiar legal procedure: In accordance with the Act[45], a plaintiff in New South Wales does not sue upon the matter complained of as such. He or she sues in respect of particular imputations alleged to arise from a close analysis of the publication. Each established imputation has been held to constitute a separate cause of action[46]. This approach has led to artificiality. Those complaining about defamatory matter in a publication seek to eke out (often in language different from the publication itself) a multitude of imputations for which the complaining party sues. The present appeal is far from the worst case of this genre[47]. [45]s 9.[46]See Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 190.[47]eg Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148-151.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HUGH J, KIRBY J, HEYDON J

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