Keramianakis & Anor v Regional Publishers Pty Ltd

[2008] HCATrans 331

[2008] HCATrans 331

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S311 of 2008

B e t w e e n -

CONSTANTINE KERAMIANAKIS

First Applicant

DR ALBERT SMAGARINSKY

Second Applicant

and

REGIONAL PUBLISHERS PTY LTD

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 23 SEPTEMBER 2008, AT 10.16 AM

Copyright in the High Court of Australia

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the appellants with my learned friends, MR A.A. HENSKENS and MR R.J. ANDERSON.  (instructed by Pryor Tzannes & Wallis)

MR J.S. WHEELHOUSE, SC:   May it please the Court, I appear for the respondent with MR M.F. RICHARDSON.  (instructed by Johnson Winter & Slattery)

FRENCH CJ:   Yes.  Mr Reynolds.

MR REYNOLDS: Thank you, Chief Justice. Your Honours, I need to raise a preliminary matter at the outset of this appeal and it is this, that it is my duty, melancholy as it is, to inform your Honours that there is a series of cases directly relevant to the interpretation of section 127 of the District Court. In this Court, interpreting almost identical words in section 73 of the Constitution, the effect of those decisions, at least prima facie, is to give my learned friend, Mr Wheelhouse, a number of arguments which are presently not in play in the submissions which prima facie at least are against my client.

The effect of those arguments being relevant to this appeal – I think Mr Wheelhouse and I are agreed – means that the Court at the outset runs into a section 78B problem. That is a shorthand way, of course, of referring to section 78B of the Judiciary Act and the injunction contained therein, which is no doubt very familiar to your Honours.

FRENCH CJ:   That is not to say that the matter is one arising under the Constitution. The arguments you refer to are arguments by analogy, are they, from section 73?

MR REYNOLDS:   Your Honour, with respect, is quite correct. It is not a matter arising under the Constitution, but it is a matter involving its interpretation.

GUMMOW J:   What is the point?

MR REYNOLDS:   Well, there are a series of them.

GUMMOW J:   We are on the edge of suspense.

MR REYNOLDS:   Can I hand up to your Honours ‑ ‑ ‑

GUMMOW J:   Just tell us the point.

MR REYNOLDS:   If I could hand to your Honours, even though I suspect it is going to be the respondent that is going to be raising these issues, we have tried to set out the points in what we call the draft notice. What happened historically was that there were a number of appeals early on in this Court’s history direct from single judges entering verdicts after jury trials and there were some early decisions which favoured the view that the Court had jurisdiction under section 73. In R v Snow, which we have referred to in paragraph 5, there was a split, as I recall, three‑three on this issue.

HAYNE J:   Yes, but that was an appeal against a judgment entered in consequence of a verdict of not guilty.

MR REYNOLDS:   Quite, and there were other issues which were in play.

HAYNE J:   Which was the determinative issue in Snow.

MR REYNOLDS:   I think that is right, your Honour, yes.

We have listed in paragraph 6 of what we have called a draft notice the series of points which we suggest arise from this series of cases which give my learned friends, at least provisionally, a number of arguments which are relevant directly to the construction of the virtually identical words in section 127. To deal directly with the question that your Honour the Chief Justice asked me, we have given your Honours’ tipstaves a bundle of cases and one of the cases is Attorney General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315.

Without delving into this in great detail there are relevant passages, particularly at pages 327 and 328, the substance of which is to say that there is a matter involving the interpretation of the Constitution, although, I surmise, not a matter arising under it. If the similar words – that expression is used at page 328 at about point 3 – have been the subject of interpretation in a constitutional case and if the decisions on the constitutional issues are relevant to the point of statutory construction, a fortiori if they are essential to it, then that means there is a matter involving interpretation of the Constitution.

Now, that point is made about halfway down page 327 and on page 328.  Similar words are found at about point 3 on the page, and the conclusion is halfway down page 328:

It follows from what we have already said that the interpretation of s. 75(iii) and (iv) is essential or relevant to the determination of the issues in the present case.

Therefore, the Court held there was a matter involving the interpretation of the Constitution. Now, in this series of cases, some of which we have mentioned in paragraph 5, your Honours will see there is a welter of arguments which arise under section 73 and which are also directly in play in relation to section 127.

CRENNAN J:   So this is an analogical argument, is it?

MR REYNOLDS:   No.

CRENNAN J:   Well, how does one factor in your reply submission that you did not press the submission that this Court should enter verdicts?

MR REYNOLDS:   Yes, that goes to the ultimate ‑ ‑ ‑

CRENNAN J: That is why I have asked you whether it is by analogy that you believe the point arises, under the Constitution.

MR REYNOLDS:   No.  That just goes to the issue of relief and no other issue.

CRENNAN J:   Yes, I understand that, but what I am asking you is whether these arguments in relation to section 73 give rise to the need for 78B notices because inevitably, as I think it was said on 328, there will be some necessary determination or interpretation of section 73 arising out of the arguments about section 127. Is that how you are putting it?

MR REYNOLDS:   If your Honour goes back to page 327, at about point 5, the Court says:

Then, as it seems to us, the cause involves the interpretation of the Constitution if the interpretation of one or more of its provisions is “essential or relevant” to the question of statutory interpretation ‑ ‑ ‑

CRENNAN J:   It is the latter, basically, is it?

MR REYNOLDS:   Also, we would submit the former, but that is a harder argument, I concede.  It is definitely, we submit, relevant and I would submit it will be essential for your Honours to look at the jurisprudence on ‑ ‑ ‑

HAYNE J:   Well, let us get down to taws, shall we, Mr Reynolds, because I think that you are at risk of diverting us.  What is the verdict of the jury that is in issue in this case?  The jury answered questions.  It never returned a verdict.  It did not return a special verdict; it did not return a general verdict.  How do we get in to the stream of authority concerning appeals against jury verdicts? 

MR REYNOLDS:   Well, your Honour, this is an issue which has been looked at in New South Wales in the Court of Appeal in a decision, which is on our list of authorities, called Bennette v Cohen and this precise issue of whether, speaking broadly, a jury’s determination in one of these section 7A trials amounted to a special verdict was specifically addressed and determined, and the Court of Appeal held that there were special verdicts involved.

GUMMOW J:   Held for what purpose?

MR REYNOLDS:   For the purpose of determining whether an appeal lay direct to the Court of Appeal or whether leave was required because there was an interlocutory judgement.  So they addressed that issue.  That is the main point of the case that was determined, or one of the two main points.  We have used that expression all throughout our submissions and my learned friends have not taken issue with it.  That is my essential response to your Honour.

CRENNAN J:   It is a verdict for the purpose it is being treated as a final order.

MR REYNOLDS:   Certainly as far as Mr Keramianakis is concerned there has to be a final order because he lost the whole of his case against the Dubbo “Liberal”, that is Regional Publishers.

HAYNE J:   But once the jury came back there had to be a motion for judgment, did there not, and there was?

MR REYNOLDS:   In substance there was an application that the judgment be entered by reason of the verdict.

HAYNE J:   The judge, contrary to the application of the moving party said, there will be entry of a verdict.  The moving party asked for judgment.

MR REYNOLDS:   We would need to go back to look at the orders, but I submit that the substance of the orders was that – it is at page 581, mainly the first two paragraphs.

HAYNE J:   Yes.  I had in mind 573 at line 29 and I am incorrect.  It was your present junior who spoke in terms of “in respect of judgment”.  His Honour interjected, “Verdict you mean.”  Yes, the order as taken out records a verdict.  It is not immediately apparent to me that that is an apt expression.  Juries return verdicts, judges make orders or give judgment.

MR REYNOLDS: Your Honour, one of the issues that arises in that regard is that the provisions of section 7A of the Defamation Act also impact to some extent on this. If I can take your Honours to that provision. Whatever the general law provision is, there is a statement in section 7A(2) that indicates if “the court is to enter a verdict”, if there is a determination on a particular issue, and I can inform your Honours that the practice by reason of the use of that expression has been, when there are these trials under section 7A for judges to enter verdicts either directly under subsection (2) or by extrapolation from the use of that term in it, and that is a fairly well‑established practice and was no doubt something which was influencing the parties in this particular case.

Your Honour is quite right that the case, in substance, or the order, in substance, apropos Mr Keramianakis vis-à-vis Regional Publishers, is that there be verdicts and that there be judgment accordingly in favour of that other defendant.

GUMMOW J: Section 7A is not drafted with a deep sense of procedural consciousness, I might say.

MR REYNOLDS:   Your Honour is not, with respect, the first to make that observation.

GUMMOW J:   What happens, Mr Reynolds, with subsection (3), for example?  It says “the jury is to determine” this, if the jury determines, the court is to determine.  How are these determinations given force as an act in the law, so to speak?

MR REYNOLDS:   By the entry of verdicts.

KIEFEL J:   Is that combining two steps though?  Is the statute here reflecting the earlier common law which referred to juries’ findings from which a verdict was ascertained, and the verdict was ascertained by reference to those findings, but the verdict could be not acted upon if a judge ruled on a matter of law which was contrary to the verdict?  If that is correct there is findings, verdict and entry of a judgment as three steps, is there not?

MR REYNOLDS:   Perhaps.

KIEFEL J:   This does not suggest a general verdict because a general verdict would have to be across all issues.

MR REYNOLDS:   Quite, and that is the point made in Bennette v Cohen, that, of course, we are not dealing here with a general verdict; we are dealing here with only a portion, a small portion, of the issues in the case.

KIEFEL J:   But the determinations here are meant to be findings of fact because the defamation trials are split, fact and law, judge to law, jury to fact, and it comes together into a verdict.

MR REYNOLDS:   Without getting into a debate with your Honour about whether there are small issues of law involved in this, in substance what your Honour is putting to me is correct.

FRENCH CJ:   Are you accepting that the interpretation of the case law on the interpretation of section 73 raises issues which are essential to the determination of this appeal?

MR REYNOLDS:   Yes, and as a fallback I submit they are relevant.  As your Honours would understand, these are matters that at least prima facie do not favour my client and which I feel bound to draw to your Honours’ attention.

KIEFEL J: Forgive me, I cannot, for myself, quite understand what section 73 has to do with the question of the jurisdiction of the Supreme Court of New South Wales to entertain an appeal from a judgment entered consequent upon the jury doing something.

MR REYNOLDS:   Yes.

KIEFEL J: We will leave that to one side. How do the cases on section 73 resolve that issue? That is still the issue, is it not, or are you saying that the question has now shifted to what the powers of this Court are, regardless of what the powers of the Supreme Court of New South Wales are?

MR REYNOLDS:   I am suggesting that there are three key words: appeal, judgment and order in section 73 and also in section 127, and that the jurisprudence of this Court interpreting, in effect, those three words gives the respondent the arguments which we have set out in paragraph 6 and, I might add, of probably a few more ‑ ‑ ‑

GUMMOW J: The phrase in section 73 is “judgments, decrees, orders, and sentences”.

MR REYNOLDS:   Quite.

GUMMOW J:   Which is deliberately chosen to be as wide as possible.

HAYNE J:   The phrase in 127(1) is:

A party who is dissatisfied with a Judge’s . . . judgment or order in an action may appeal to the Supreme Court.

If you are concerned – if in truth what you think you are doing is appealing against a jury verdict, 127 puts you out of court straight away, does it not, because 127 gives you a right of appeal if you are dissatisfied with a judge’s judgment or order in an action?

MR REYNOLDS:   Well, we say, looking at the provisions of the order, that we have an order made by the judge directing the entry of the verdict.

FRENCH CJ:   The judges in this case are assessing – I use that word in a general sense – the legal effect of the jury’s findings and then making an order based on that.  Is that how you would put it?

MR REYNOLDS:   In general terms, I would agree with that, your Honour, yes.

FRENCH CJ:   It does not automatically follow.  I mean, the judge does not simply rubber stamp the jury’s findings, but it has to be an interpretation of their legal significance, in terms of disposition of the case.

MR REYNOLDS:   There is some case law which suggests that in substance the judge has no alternative when verdicts are given other than to enter them if there is no application for ‑ ‑ ‑

FRENCH CJ:   You may have no alternative because the law requires it.

MR REYNOLDS:   Exactly, yes.

FRENCH CJ:   But the judge still makes a judgment that the law requires it.

HAYNE J:   You speak of entering a verdict.  In a civil matter a jury’s verdict is returned, there is then a motion for judgment in consequence of the verdict returned by the jury.  If the jury has returned a general verdict, the judge effectively must give effect to that general verdict, query what is to happen if leave is reserved to move non obstante.  But if you say the order at 581 is an order directing entry of a verdict, I note that that is not how it is phrased, it seems to be an order on that construction which is I understand it what you are presently urging, something that is concerned with the recording of what the jury has done.

That seems to me, Mr Reynolds, I make no bones about it, to fly in the face of what is well‑established, long‑established, practice concerning the relationship between judge and jury in a trial by jury of a civil action.  If the Defamation Act is framed on an assumption contrary to that long‑established practice, so be it, the Defamation Act rules, but it is not apparent to me, I should say to you, that the adoption of the compression of two steps that you see in 7A(2) where ordinarily a judge would direct a jury to return a particular verdict if certain facts were established, and that is compressed in 7A(2) to the judge entering the verdict, just as you encounter in courts of criminal appeal entry of a verdict of acquittal, but it is not ‑ ‑ ‑

MR REYNOLDS:   Which is an order.

HAYNE J:  It is, but it is not apparent to me that 7A mandates this compression in a case like the present where the jury answer questions, the judge would ordinarily, I would have thought, be expected to entertain a motion for judgment in consequence of the answers given, ordinarily the judge would have no option but to enter judgment accordingly, but the appeal would lie against the order, not the verdict and the appeal would lie on one of three bases; wrong direction, wrong admission or rejection of evidence or that last category usually summed up as perverse verdict. I had understood the last was the field for debate in this case. But where we get into section 73 is not yet apparent to me, Mr Reynolds.

MR REYNOLDS:  We get into section 73 because there are a whole lot of cases which are, in substance, the same situation as your Honours have here before you where the Court has had to look at whether or not there is jurisdiction under section 73 to entertain the appeal and whether this Court has powers to make relevant orders where there is a purported appeal of substantially the same kind as my clients brought to the Court of Appeal. Now, it may be that in order to make good the submission that I am making that I have to take your Honours to the legal case on this.

FRENCH CJ:  Just before you do, Mr Reynolds, I think it is reasonably well established the mere fact that somebody asserts that a case is one which involves the interpretation of the Constitution, what arises under it, does not of itself attract the application of section 78B.

MR REYNOLDS:   No, it has to be an arguable ‑ ‑ ‑

FRENCH CJ:  Indeed, and it may be that one way of proceeding – just speaking for myself here – would be to hear the full argument on both sides and then determine for ourselves whether we think it is reasonable to say, as you contend or accept, I should say, that the interpretation of section 73 is somehow essential or relevant to the disposition of this case.

MR REYNOLDS:  Well, your Honour, with respect, my provisional reaction to that is to say that that would fly in the face of section 78B.

FRENCH CJ:   That depends on whether we accept your assertion.

MR REYNOLDS:   Quite.  Well, the easiest way perhaps for me to deal with the matter is to take your Honours briefly to a few relevant passages in the decision, which your Honours’ associates have, of Musgrove v McDonald (1905) 3 CLR 132 and this involved a judgment after a jury’s verdict. I am going to indicate some passages which give my friends some arguments. If your Honours go to page 139 at about point 8 Sir Samuel Griffith says:

This is undoubtedly a judgment of the Court, and . . . an appeal lies from it to this Court.  The judgment is not, however, on the face of it, open to any objection.

Then further on at page 142 at about point 3 he refers to a decision of Mr Baron Parke in Nathoobhoy Ramdass.  Baron Parke, about halfway down the page, says that:

Undoubtedly such a verdict, in a common law suit, might be indirectly appealed from, in an appeal against the judgment in that suit, which is founded on that verdict –

Then at page 143, halfway down the page, there is reference to a decision of the Privy Council in Tronson v Dent and over the page at page 144 at about point 4 the quotation says:

the judgment of the Court is manifestly a right judgment, so long as the verdict remains.  If the verdict stands, no other judgment can be given . . . it is only against an act of the Court that an appeal lies . . . an application for a new trial; not an appeal against an act of the Court, but an application to have the verdict of the jury set aside, and a new trial granted . . . The judgment, as I have already said, cannot be appealed against, while the verdict stands ‑ ‑ ‑

GUMMOW J:   This is the point, is it not, in the middle of page 144?  At this time the understanding was appeals were things that happened in Chancery, right?  At common law you are in the realm of motions for setting aside the verdict and granting a new trial, is that not right?  And the question these people were grappling with was how to accommodate common law procedures into the new motion of appeal which applied generally under judicature processes starting in the 1870s.

MR REYNOLDS:   I think that is right, your Honour.

GUMMOW J:   That is what they were wrestling with.

MR REYNOLDS:   The main passage, if your Honours are looking for it, is at page 147 at about point 3.  Their Honours there say:

We think that the fair result of all these cases is, that it was the settled rule of the Judicial Committee that an appeal did not lie to the Sovereign-in-Council from a verdict of a jury, or from a judgment of the Court founded upon it, unless there had been a previous application to the Supreme Court for a new trial. And we think that the provisions of the Constitution . . . should be read in the light of this rule, and that, if they are so read, an application for a new trial after verdict, upon whatever ground, does not fall within the words “appeals from all judgments decrees orders and sentences ‑ ‑ ‑

GUMMOW J:   So the appeal would be from the outcome of the motion for a new trial.

MR REYNOLDS:   That is right, at common law.

GUMMOW J:   Yes.

MR REYNOLDS:   And that is the point made in other cases.

KIEFEL J:   But that is a motion to set aside a verdict.

MR REYNOLDS:   Well, a motion to the judge that the verdict ‑ ‑ ‑

KIEFEL J:   Judgment not be entered upon the verdict.

MR REYNOLDS:   Yes, that is right, or the other way round, but essentially, if the judge made a determination one way or the other on that question, an appeal could then be brought to an intermediate Court of Appeal and thence to the ‑ ‑ ‑

GUMMOW J:   But the common law just did not know this word “appeal” as we know it.

MR REYNOLDS:   No, that is right, but they were dealing with application for new trials from jury verdicts because juries found the facts. 

GUMMOW J:   That is why we find it all rather curious.

MR REYNOLDS:   We do.

GUMMOW J:   The root of the anxiety is that it is manifested in these early High Court cases, I think.

MR REYNOLDS:   So, if one extrapolates from some of those statements which we have tried to summarise in paragraph 6 ‑ ‑ ‑

GUMMOW J:   We looked at this, to some degree, in Gacic did we not?  Was not a section in Gacic introduced in this period?

MR REYNOLDS: Yes, section 108 of the Supreme Court Act, as I recall, which is what was the subject of Gacic ‑ ‑ ‑

GUMMOW J:   The Common Law Procedure Act 1899, I think.

MR REYNOLDS: Yes, I think section 7 of the Common Law Procedure Act and your Honours, Justices Gummow and Hayne, looked at some of the common law history of this in that.  As my recollection is, only obliquely, though.

GUMMOW J:   I do not know if it was oblique.

HAYNE J:   At page 307, paragraphs 47 and following, I think, 230 CLR at 291, particularly 307, 47 and following.

MR REYNOLDS:   Would your Honour bear with me for one moment?

GUMMOW J:   Anyhow, you were replying to the Chief Justice, I think.

MR REYNOLDS:   I am attempting to, your Honour.  There is a very brief case of Fieman v Balas (1930) 47 CLR 107. This also involved a verdict and a judgment. The Court said at page 108 that:

This appeal must be dismissed.  So long as the verdict stands the judgment is correct.  In view of the authorities cited we cannot alter the verdict.

So this is not so much jurisdictional, if I can put it that way, as going to the powers of the Court on an appeal under section 73 to alter the verdict.

GUMMOW J: No, they are saying that is why there is not an appeal within the meaning of the section in the Constitution because we cannot, as it were, act on it, we cannot alter the verdict.

MR REYNOLDS:   We cannot alter the verdict.

GUMMOW J:   Then a debate broke out to this effect, that you could get here from the New South Wales Full Court or the Victorian Full Court and so on after a motion for a new trial but the question then was, is that interlocutory or not, did you get it as of right or did you need leave or special leave and there was a great line of cases about that, too.

CRENNAN J:   Bennette v Cohen picks up that point, does it not?

FRENCH CJ:   But the premise of your concern is that this is an appeal from a judgment entering a jury’s verdict?  When I look at (i) and (vi) of your draft notice everything else seems to follow from that.

MR REYNOLDS:   We have said a judgment entering a jury’s verdict or an order directing the entry of the verdict.  That is one way of characterising.

FRENCH CJ:   It depends upon the characterisation of the order appealed from in this case.

MR REYNOLDS:   One has to characterise it, but that is only one way of characterising it.

FRENCH CJ: I am talking in terms of the significance of section 73 for the purposes of this case.

MR REYNOLDS:   Yes, a judgment or an order, a judgment after a jury’s verdict or an order directing the entry of a jury’s verdict.  There may be other ways of putting it.

KIEFEL J:   Well, what do you say - there is a combination?  Does it stand as the ascertainment of a verdict on the part of the jury by reference to the answers, together with an entry of what should have been expressed as a judgment upon the verdict?  Do you say – is that a correct approach?  Is that what you have to do?

MR REYNOLDS:   It may depend upon which of the two plaintiffs we are concentrating on, because as I said before, the effect of the – if I can put it generally – dismissal by the jury of Mr Keramianakis’ case against Regional Publishers ‑ ‑ ‑

KIEFEL J:   It means that it does not have the effect of a ‑ ‑ ‑

MR REYNOLDS:   Yes.

KIEFEL J:   Yes.

MR REYNOLDS:   But that is the end of his case, so that may be in a slightly different ‑ ‑ ‑

KIEFEL J:   Category.

MR REYNOLDS:   ‑ ‑ ‑ category, but ‑ ‑ ‑

FRENCH CJ:   Just bear with us for a moment, Mr Reynolds.  Is there anything more you would like to say on this preliminary issue, Mr Reynolds, at this stage?

MR REYNOLDS:   There are a few things, your Honour. I would wish, anticipating some reliance by my learned friend upon these authorities, to be able to look carefully at how I would attempt to distinguish them from the particular situation involved in this case. I accept that provisionally there are a number of points which we have perhaps only roughly adumbrated in paragraph 6 which are against me, and I would like the opportunity of being able to present argument to show that these statements made by the High Court on those points are either distinguishable, given the particular statutory regime under the District Court Act, or I would also like to – and this is my anticipation – to present an argument in effect saying that some of these decisions may be incorrectly decided.  Now, that statement needs some further adumbration.

CRENNAN J:   When did these matters surface, Mr Reynolds?

MR REYNOLDS:   Well, when did it first occur to me, if that is your Honour’s question?  On Friday afternoon when I started to think of possible statutory provisions which may be similar to this.  If I can just go back to the arguments I would want to present.  What happened is there was a fairly furious debate early on in this Court’s history.  Your Honours have photocopies of The Commonwealth v The Brisbane Milling Company 21 CLR 559. I am not going to go to this case other than the front of it, its first page, where your Honours will see that there was a decision of this Court in Baume v The Commonwealth which was overruled and where Musgrove v McDonald was affirmed.

So there was an earlier decision which fully supported, as I understand it, my clients on these various issues, and although your Honour Justice Hayne, I accept, it is correct that the decision in R v Snow (1915) 20 CLR 315 involved a lot of issues, one of the issues was the question of jurisdiction on which on my reading the Court split three‑three. One of the other aspects of this is that Justice Isaacs, particularly in that decision of The Commonwealth v Brisbane Milling, particularly at pages 574 and 575, articulated a distinction between an appeal from a misdirection, on the one hand, and an appeal from a perverse jury verdict on the other, and said that an appeal would lie from the former but possibly not from the latter.  In other words, it depends on how one characterises the particular error, whether it is an error of the judge underlying the verdict or whether it is simply an error on the part of the jury.

If your Honours look down our draft list of points there are issues about whether this is a judgment, whether this is an appeal, whether there is a power to set aside the jury’s verdict, whether there is the power to order a new trial.  This issue of acquiescence which my learned friend relies upon has also loomed large here, whether, as Justice Isaacs says – this is (vii) – one has to talk about an incorrect act of a judge and in (viii) and (ix), whether or not one has to find a misdirection for perversity or inconsistency.

Having raised the matters with your Honours, in order to advance my client’s case on this appeal I feel I have to deal satisfactorily with the matters we have raised and I have to take your Honours through these cases and either distinguish them on various bases or else submit, and I will if I have to do this, that they are wrongly decided as decisions under section 73 of the Constitution, and it may be that I need leave to reopen these decisions given that there was obviously a substantial imbroglio early on in this Court’s history with a substantial split in the authorities.

My submission is – and I hope your Honours, given that these are matters provisionally against me, would accept that it is bona fide – that these are matters which are relevant to your Honours’ determination and which I expect will certainly be taken up by my learned friends and which I am going to have to respond to at some level.

Your Honours have seen the terms of the decision of this Court in the Commonwealth Savings Bank Case. I submit that that decision makes it very clear that once there is a statutory provision in the Constitution which is similar or relevantly identical and the case law on the interpretation of that provision is either essential to the resolution of the case or even relevant to it, that then the Court is in the position where section 78B is live and where the injunction contained in it comes into force and I submit that that is the position which now obtains.

FRENCH CJ:   Thank you, Mr Reynolds.

GUMMOW J:   You do not know at the moment whether your opponent is going to rely on all of this.  You are in an elaborate exercise of confession and avoidance.

MR REYNOLDS:   As I understand it, I am sure he will not mind my saying, from our discussion this morning is that he does wish to rely on it and, if I may use a colloquialism, why would he not?

GUMMOW J:   I can think of some reasons.

MR REYNOLDS:   This is all grist for the mill of his client’s argument one way or another. I am also in some obvious difficulty having noticed the points provisionally in my learned friend’s favour late in the piece and, for what it is worth, I do not feel that I could respond to the arguments I understand will be put without looking at issues such as whether the principles of construction of section 73 and, for that matter, other provision in the Constitution mean that the principles of construction that obtain in that regard are relevantly different from those that apply to the interpretation of a statutory provision such as section 127.

I have also mentioned that I may wish to distinguish these various arguments that are referred to in the section 73 cases and, as I say, I may also wish to say that they are wrong or should be revisited or confined in some way and I submit that those issues are relevant to each and every issue obtaining in the appeal. Now, I do not feel at the moment that I can do those arguments justice and I accept and, indeed, apologise for the inadequacy of the presentation of the arguments which I have given to your Honours this morning. But what I do submit, for what it is worth, is that it is arguable that this appeal involves the interpretation of the Constitution for the reasons that I have given and that in that situation, even if, if I may be so bold, my learned friend disclaimed any reliance upon these matters, necessarily we are in the country covered by section 78B.

I gather your Honour the Chief Justice was inviting me to focus on that 78B issue and I think that is for the time being as much as I can say about it.

FRENCH CJ:   Yes.  I think we should hear from Mr Wheelhouse.  Thank you, Mr Reynolds.

MR REYNOLDS:   If your Honour pleases.

MR WHEELHOUSE:   May it please the Court.  I confess to have not had the opportunity to look at the cases that my learned friend has kindly drawn to my attention this morning, however, I am able to say to the Court this.  It is fundamental to the respondent’s submission that when the parties consented to or answered questions and the jury brought the questions in that entitled my client to a verdict in respect of the first appellant and a verdict in respect of one of the causes of action being imputation (a) in relation to the second appellant, the trial judge conducting the trial, Judge Puckeridge, could not refuse to enter a judgment consistent with those questions, notwithstanding that the jury may not have been asked to bring in a general special verdict.

Our submission is that the jury’s answers are treated as a general verdict – contrary to Justice Haynes’s, I think, indication a moment ago – even though the judge actually orders that there be a verdict in favour of the successful party.  So if my learned friend’s proposition is correct that the cases that he has referred me to do support that proposition, namely, where juries answer questions that entitle one or other of the parties to a verdict and a trial judge has no authority but to enter a verdict consistent with the answer to those questions, then I would be relying upon the various cases to support that proposition, although I confess to have only read them sitting at the Bar table, as my learned friend has been speaking, and very superficially.

Our position, your Honours, is first, subject to the High Court’s ability to withstand the injunction in relation to foreshadowed 78B cases, we would prefer to have the appeal proceed and put our submissions to the Court which are quite brief. Secondly, we adopt Justice Crennan’s foreshadowed position, namely, this is really an analogous argument rather than an attempt to distinguish or contradict prior interpretations of section 73 of the Constitution.

Our preliminary position is, not having had a large opportunity to examine the various matters, we do not see at this stage a 78B issue arising. We do accept that there may be an analogous argument on the construction of section 73 open to us on the basis of the cases my learned friend has pointed to and as indicated, most particularly, it is a central part of the respondent’s argument that we say once the jury answers questions as they are required to under section 7A of the Defamation Act, that entitles a party to a cause of action in respect of a particular imputation by reason of section 9 of the old Act, that being the cause of action, that is treated as a jury verdict although the formality of directing its entry comes as a result of, in effect, doing what Judge Puckeridge did here, was accepting a submission from the defendant’s - the respondent in this forum - application for judgment based on the answers.

For that latter proposition we were particularly relying on Chief Justice Dixon in Russell v The Victorian Railways Commissioners which is to the same effect.

GUMMOW J:   Could you say that again, Mr Wheelhouse?

MR WHEELHOUSE:   For that last proposition, namely, that a judge has no authority but to direct verdict when answers given by a jury entitle a party to a verdict means that even though the judge directed there be a verdict for the party that is equivalent to a jury’s verdict rather than an act of judgment on the part of a trial judge.  I think I am saying something contrary to what Justice Hayne said in the course of discussion with my

learned friend in that regard and, as I say, we rely on that proposition, it having been enunciated in dicta by Chief Justice Dixon I think in the Russell v The Victorian Railways Commissioners.

HAYNE J:   Have you a citation for that case, Mr Wheelhouse, please?

MR WHEELHOUSE:   Yes, your Honour.  It is [1948] VLR – no, that is the first instance.  I am sorry, your Honour, I might have give an incorrect citation.

FRENCH CJ: It is [1948] VLR 118.

MR WHEELHOUSE:   Yes, and the passages that I have, at 131, point 9.  I just might have the wrong citation.

HAYNE J:   Yes, that is in the judgment of Mr Justice O’Bryan.

MR WHEELHOUSE:   Mr Justice O’Bryan.  Your Honour is quite correct.  I am sorry, it was not Justice Dixon.  I apologise.  So our position then, your Honours, is that we would wish to proceed with the appeal today if possible, but I am not in a position to indicate with any comfort whether the cases my learned friend has referred to do produce the injunction required under 78B.  If it please the Court.

FRENCH CJ:   Yes.  Thank you, Mr Wheelhouse.  Mr Reynolds.

MR REYNOLDS:   I will reply very briefly just to what my learned friend has said. I have composed an argument to present to your Honours on the appeal and my view is that at every step of it, I am going to have to confront the statements made in these various High Court cases under section 73. I mention that for two reasons: first of all, because again that means we are interpreting the Constitution or that issue as involved, but also I have to at some point look to specifically reframing what I have put in earlier submissions in the light of what has been there said.

Can I give your Honours just one example of that?  In our submissions in reply at paragraph 22 – and this is, with respect, a good example of the difficulty that I am in at the moment.  I have there characterised – that is the expression used at the second last line – the reasoning of the Court of Appeal as going to inconsistency or discrepancy rather than a matter of an error in the summing‑up or a failure to give directions.  Now, that goes back to the distinction which Justice Isaacs drew and it may be that I have to reformulate that in order to take account of what Justice Isaacs said provisionally - if the characterisation that I have given to the judgment is accepted in those terms, then even Justice Isaacs may have been against me on the issue of power or jurisdiction. 

But if, on the other hand, we are talking here – and I can reframe it as a challenge to the directions or to an error in the summing‑up, then provisionally Justice Isaacs would be in my client’s favour.  The difficulty that I face as a practical matter will be to reformulate at every step my submissions, taking into account these decisions of the High Court which I have not yet fully digested.  If your Honour pleases, that is all I wanted to say in reply.

FRENCH CJ:   Thank you, Mr Reynolds.  The Court will adjourn for a short time to consider the course it takes. 

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.47 AM:

FRENCH CJ:   Having regard to the course of argument this morning the Court will adjourn the case to a date to be fixed. 

In view of the appellant’s indicated desire to consider restructuring the argument on the appeal the Court directs:

1.The appellant to file and serve supplementary written submissions and any application for leave to amend the notice of appeal on or before 10 October 2008.

2.The respondent to file and serve supplementary written submissions on or before 24 October 2008.

3.The appellant to file and serve a written reply, if any, on or before 31 October 2008.

4.The parties to serve any notice required under section 78B of the Judiciary Act 1903 as soon as convenient after 24 October 2008.

5.The Court may list the matter for directions before a single justice.

6.The costs of today will be reserved.

Justice Hayne had one or two matters to raise with counsel before we adjourn.

HAYNE J:  There are some matters that, it seems to me, that counsel might usefully consider in the course of reconsidering the matter. The cases to which Mr Reynolds referred this morning are, at least for the most part, perhaps all of them, cases concerning general verdicts of juries. It is to be observed that section 126 of the District Court Act 1973 (NSW) gives power to that court:

after judgment in an action, order that a new trial of the action be had –

Section 127 of the District Court Act by contrast provides that:

A party who is dissatisfied with a Judge’s or a Judicial Registrar’s judgment or order in an action may appeal to the Supreme Court. 

Counsel may think it relevant or useful to consider whether the powers given to the District Court in respect of new trials and motions for new trial would ordinarily find their application in cases in which a jury has returned a general verdict properly so‑called and that section 127, the right of appeal to the Supreme Court, will find its application in cases in which a jury has returned a special verdict properly so‑called or has answered questions submitted for their consideration without returning any verdict, for it is, it seems, a possible point of view that for a jury to answer questions does not constitute a jury returning a verdict. (See, in particular, McDonnell & East Limited v McGregor (1936) 56 CLR 50 as considered more recently by this Court in Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575, particularly at 577 to 578, 592 to 593 and 618 to 619).

FRENCH CJ:   Just to add to your homework, gentlemen, section 80 of the District Court Act 1973 and its heading might be worthy of consideration. We cannot say it has been a productive morning, but these things happen. We will adjourn.

AT 11.52 AM THE MATTER WAS ADJOURNED