Keramianakis v Regional Publishers Pty Ltd - [2007] NSWCA 375

NEW SOUTH WALES COURT OF APPEAL

CITATION: KERAMIANAKIS & ANOR v REGIONAL PUBLISHERS PTY LTD [2007] NSWCA 375
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40545/06

HEARING DATE(S): 12 September 2007

JUDGMENT DATE: 21 December 2007

PARTIES:
Constantine Keramianakis – First Appellant
Albert Smagarinsky – Second Appellant
Regional Publishers Pty Ltd - Respondent

JUDGMENT OF: Beazley JA Basten JA Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 10264/01

LOWER COURT JUDICIAL OFFICER: Puckeridge DCJ

LOWER COURT DATE OF DECISION: 7 August 2006

COUNSEL:
A Henskens/N Furlan – Appellants
J S Wheelhouse SC - Respondent

SOLICITORS:
Pryor Tzannes & Wallis – Appellants
Johnson Winter & Slattery - Respondent

CATCHWORDS:
DEFAMATION – whether answers of jury perverse or unreasonable – whether error in directions of trial judge to jury – identification – ordinary reasonable reader – adoption or endorsement of defamatory allegation by publisher.[ ]
JURISDICTION – right of appeal from civil jury trial in District Court – application for new trial – [District Court Act] 1973, ss 126 and 127 – [Supreme Court Act] 1970, s 75A, Part 7.[ ]
PROCEDURAL FAIRNESS – refusal to permit right of reply – discretion of trial judge – Uniform Civil Procedure Rules 2005, r 29.6.[ ]
WORDS & PHRASES – “Judge’s judgment or order” – “decision of a Judge” – [District Court Act] 1973, s 127.

LEGISLATION CITED:
[Civil Procedure Act] 2005 (NSW), s 90
[Courts Legislation Further Amendment Act] 1995 (NSW), s 183A
[Courts Legislation Amendment Act] 1996 (NSW), Schedule 1.3 [3]
[Courts Legislation Amendment Act] 2006 (NSW), Schedule 4 [3]
[Defamation Act] 1974 (NSW), s 7A
[District Courts Act] 1912 (NSW), ss 98, 142
[District Court Act] 1973 (NSW), ss 4, 81, 126, 127, 128
[District Court (Amendment) Act] 1975 (NSW), ss 3, 4
[Federal Court Act] 1976, s 23
[Interpretation Act] 1987 (NSW), s 30
[Supreme Court Act] 1970 (NSW), ss 19, 48, 75A, 101, 102, 105, 106, 107, 108
Supreme Court Rules 1970 (NSW), Part 51 r 23
Uniform Civil Procedure Rules 2005 (NSW), r 29.6, r 36.4, r 36.11

CASES CITED:
[Anthoness v Bland Shire Council] (1960) 77 W.N. 506
[Balenzuela v De Gail] (1959) 101 CLR 226
[Calin v Greater Union Organisation Pty Ltd] (1991) 173 CLR 33
[Conway v The Queen] [2002] HCA 2; (2002) 209 CLR 203
[Echo Publications Pty Ltd v Tucker] [2007] NSWCA 73
[Favell v Queensland Newspapers Pty Ltd] [2005] HCA 52; (2005) 79 ALJR 1716
[Fox v Percy] (2003) 214 CLR 118
Gacic v John Fairfax Publications Pty Ltd] [2006] NSWCA 175, (2006) 66 NSWLR 675
[Gerlach v Clifton Bricks Pty Ltd] [2002] HCA 22; (2002) 209 CLR 478
Hill v Cooke (1958) 75 W.N. 82
[John Fairfax Publications Pty Ltd v Gacic] [2007] HCA 28; (2007) 235 ALR 402
[John Fairfax Publications Pty Ltd v Obeid] [2005] NSWCA 60; (2005) 64 NSWLR 485
[John Fairfax Publications Pty Ltd v Rivkin] [2003] HCA 50; (2003) 77 ALJR 1657
[Harvey v John Fairfax Publications Pty Ltd] [2005] NSWCA 255
[Liftronic Pty Ltd v Unver] [2001] HCA 24; (2001) 179 ALR 321; (2001) 75 ALJR 867
[Morgan v John Fairfax & Sons Ltd] (1988) 13 NSWLR 208
[Nationwide News Pty Ltd v Heggie] [2001] NSWCA 257
[Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751
[Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam] [2003] HCA 6; (2003) 214 CLR 1
[Shepherd v Felt and Textiles of Australia Ltd] (1931) 45 CLR 359
[Swain v Waverley Municipal Council [2005] HCA 4; (2005) 250 CLR 517
[The Nominal Defendant v Hook] (1965) 113 CLR 641
[Thomson Australian Holdings Pty Ltd v Trade Practices Commission] (1981) 148 CLR 150
[Unver v Liftronic Pty Ltd] [1999] NSWCA 278
[Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan] (1931) 46 CLR 73
[Yoon Shin Lee v Bob Chae-Sang Cha] [2005] NSWCA 279
[Zarth v Williamson] [2006] NSWCA 246

DECISION:
(1) Appeal dismissed.[ ][ ](2) No order is made as to costs.[ ][ ](3) If a different order is sought in relation to the costs of the appeal, the parties are directed to file written submissions within 14 days.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40545/06
DC 10264/01
BEAZLEY JA
BASTEN JA
ROTHMAN J
21 December 2007

Constantine KERAMIANAKIS and Anor v REGIONAL PUBLISHERS PTY LTD

Headnote

The Appellants, Drs Keramianakis and Smagarinski, are two medical practitioners who established the “Dubbo Skin Cancer Centre”. The Respondent, Regional Publishers Pty Ltd, was the publisher of a newspaper, the Daily Liberal. On 22 March 2001, an article was published in the Daily Liberal entitled, “Claims skin clinic misleading public”.

The Appellants brought proceedings in defamation in the District Court, alleging that the article gave rise to three imputations against them, namely:

(a)that the plaintiffs as medical practitioners were more concerned with making money than with the well-being of their patients;
(b)that the plaintiffs were medical practitioners who had misled the public;
(c)that the plaintiffs as medical practitioners had charged excessive fees for medical services.

In the proceedings before the District Court, the jury found that the article gave rise to two imputations, (b) and (c), in relation to Dr Smagarinski but not in relation to Dr Keramianakis. The jury found that imputation (a) was not made out in relation to either Appellant. The present appeal is brought in relation to each of imputations which were found not to have been made out.

The Court held, dismissing the appeal:
(per Basten JA, Beazley JA and Rothman J agreeing)

If the Court has power to intervene, the negative answers of the jury to the two questions concerning imputations (b) and (c), with respect to Dr Keramianakis, should be set aside as based on a misunderstanding of the law, due to the unsatisfactory form of the questions and the potentially confusing directions given to the jury: [27].

It was open to the jury to distinguish between imputations (a) and imputations (b) and (c). There was no basis for holding that there was manifest unreasonableness in the jury’s answers. It was open to the jury to find that imputation (a) was not conveyed by the article read as a whole: [31], [32], [35].

Whether a publisher will be liable in defamation where it publishes the defamatory allegations of another depends on an assessment of the allegation in the whole of the article in which it appears: [41]

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657; John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485; Yoon Shin Lee v Bob Chae-SangCha [2005] NSWCA 279, applied.
Nationwide News Pty Ltd v Heggie [2001] NSWCA 257, considered.

Although the directions given to the jury in relation to endorsement or adoption were potentially confusing, it is apparent that in upholding imputations (b) and (c) in relation to Dr Smagarinski, but not (a), the jury was reading the article as a whole, in a legally appropriate manner: [53].

It is a discretionary matter for the trial judge to determine whether a right of reply should be permitted or not. The trial judge’s discretion is not confined to any particular provisions in Part 34, r 6 of the Supreme Court Rules 1970 or its equivalent in the Uniform Civil Procedure Rules 2005: [60]. Procedural unfairness implies a degree of unfairness sufficient to vitiate the proceedings before the jury. In the circumstances, the ground of complaint is without substance: [62].

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657, referred to.

(per Basten JA, Beazley JA agreeing, Rothman J dissenting)

The right of appeal was never available in relation to a jury verdict in the District Court, but only from the ruling, order, direction or decision of a judge in point of law or upon a question of evidence. As a result of the history of amendments to the Supreme Court Act 1970, there is no provision empowering this Court to make orders on an appeal arising from proceedings in the District Court involving a trial with a jury: [87].

Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321; (2001) 75 ALJR 867, not followed.
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; The Nominal Defendant v Hook (1965) 113 CLR 641; Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203, considered.
Fox v Percy (2003) 214 CLR 118, referred to.

A judgment entered on the basis of a jury verdict does not naturally fall within the present language of s 127 of the District Court Act: [88]. A challenge to a jury verdict is available by application for a new trial, prior to the entry of judgment, pursuant to s 126 of the District Court Act 1973. Where this procedure is not taken, there is no power in this Court to hear an appeal against a judgment or order entered on the basis of a jury’s verdict as being “a decision of a Judge”: [94].

Part 51, r 23 of the Supreme Court Rules does not confer a power to order a new trial, but assumes the existence of a power: [95]. Neither does r 23 impliedly invoke a power available under the general law: [97].

In relation to a civil jury trial in the District Court, the right of appeal is limited to an appeal against a judge’s judgment or order: [98]. The powers conferred on the Court to deal with any appeal arising out of a trial by jury in the District Court are confined to those matters raised by ss 106 and 107 of the Supreme Court Act: [99].

(per Rothman J)

The dichotomy between an application for a new trial on the one hand and an appeal on the other, prior to the 1995 amendments to the District Court Act, does not lead to the conclusion that the current s 127 of the Act, granting a right of appeal, is not intended to deal with jury verdicts: [116].

There is no specific power in relation to appeals from a judgment of a judge of the District Court sitting with a jury. But the absence of a specific power does not give rise to an implied limitation on the jurisdiction otherwise conferred. Sections 23, 63 and 91 of the Supreme Court Act and s 90 of the Civil Procedure Act 2005 would each allow the quashing of such a judgment and an order remitting the matter back to the District Court for a new trial: [127].

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40545/06
DC 10264/01
BEAZLEY JA
BASTEN JA
ROTHMAN J
21 December 2007

Constantine KERAMIANAKIS and Anor v REGIONAL PUBLISHERS PTY LTD

Judgment

BEAZLEY JA: I agree with Basten JA.
BASTEN JA: The Appellants are two medical practitioners who established a clinic in Dubbo known as the “Dubbo Skin Cancer Centre”. They were the plaintiffs in proceedings in defamation in the District Court arising out of an article published in the Daily Liberal on 22 March 2001 entitled “Claims skin clinic misleading public”. The second defendant (the present Respondent) was the publisher of the newspaper. One local general practitioner quoted in the article was Dr Bruce Wagstaff, who was the first defendant in the proceedings at trial.
The Appellants each alleged that both the comments made by Dr Wagstaff to the reporter and the published article gave rise to three imputations against them, namely:
“(a)That the … plaintiff as a medical practitioner was more concerned with making money than with the well-being of his patients.
(b)That the … plaintiff is a medical practitioner who had misled the public.
(c)That the … plaintiff as a medical practitioner had charged excessive fees for medical services.”
The proceedings, having been commenced in 2001, were brought under the Defamation Act 1974 (NSW), now repealed. Pursuant to s 7A(3), a jury was asked to determine whether the matters complained of carried the imputations identified and whether such imputations were defamatory. To the extent that one of the Appellants, Dr Keramianakis, was not expressly identified in the article, the jury was also required to determine whether the imputation was defamatory of him.
The jury was left with 34 questions and it is clear from requests they made for assistance that they applied themselves diligently to their task. They answered all the questions in relation to Dr Wagstaff favourably to the Appellants and those answers are not challenged. Accordingly, Dr Wagstaff was not a party in the present appeal.
In relation to the published article, the jury made distinctions between the Appellants and between the imputations. Thus, they found that the article gave rise to only two imputations, (b) and (c), and only in relation to Dr Smagarinski. They held that imputation (a) was not made out against either Appellant and that imputations (b) and (c) were not made out as against Dr Keramianakis. The present appeal is brought by the Appellants in relation to those negative answers.
As presented in submissions, the appeal gave rise to the following issues:
(1)In relation to each of the imputations which was said not to arise, were the jury’s answers perverse, or unreasonable?
(2)In relation to imputation (a) was there inconsistency between the answers given in relation to the statement by Dr Wagstaff to the reporter and the answers in relation to the publication of that statement in the article?
(3)Was there inconsistency between the conclusion that the article gave rise to imputations (b) and (c) in relation to Dr Smagarinski, but not in relation to Dr Keramianakis?
(4)Did the trial judge err in the directions given to the jury in relation to the imputations in question?
(5)Did the refusal of the trial judge to permit counsel for the Appellants an address in reply, prior to his summing-up, constitute procedural unfairness?
(6)If any one or more of the foregoing grounds is made out, should the Court:
(a)enter a verdict in favour of the relevant appellant with respect to such imputations, or
(b) remit matter for a new trial?
In the course of oral argument, it became apparent that questions of relief were more complex than had been identified in the written submissions. An issue arose as to the power of this Court to enter verdicts in relation to a trial by jury conducted in the District Court. Further, if a retrial were necessary, and in circumstances where there had been no cross-appeal in relation to the verdict favourable to the Appellants, how, if at all, should the matters to be determined on a new trial be restricted?
A consideration of the provisions potentially relevant to the power of this Court to make orders on the appeal, particularly by way of a substituted verdict, gave rise to additional questions relating to the jurisdiction of the Court to hear an appeal from the verdict of a jury in civil proceedings in the District Court. It would generally be logical to deal with questions of jurisdiction first, however, as will appear below, the jurisdiction of the Court arguably depends upon the nature of the appeal and may, to an extent, depend upon the precise issue raised in the appeal. In particular, it is necessary to consider whether the appeal was from a “judgment or order” of the judge, or the verdict of the jury.
There is, in my view, no basis for this Court to substitute a verdict for that of a jury, even if it had jurisdiction to entertain the appeal. Further, I conclude that the Court lacks jurisdiction to entertain the appeal in any event. However, if I am wrong in relation to jurisdiction, I would in any event uphold the appeal only in relation to the conclusion that imputations (b) and (c) did not arise in relation to Dr Keramianakis: the only relief available would be an order for a retrial of the questions relevant to those two causes of action.

Rejection of imputations (b) and (c)

The substance of the publication, which gave rise to imputations (b) and (c), may be found in the first three paragraphs of the article, which read as follows:
"A new skin cancer clinic has fallen foul of Dubbo's medical fraternity following accusations the service is being misrepresented to the public.
Local GPs claim patients are being charged exorbitant amounts for skin and lesion treatments which could be performed by their family doctor.
According to critics, people are prepared to pay more than double for the service under the mistaken belief specialists are treating them."
Comments from Dr Smagarinski by way of response were included in the article. There was reference to clinic patients paying $85 for an initial consultation with the explanation that the consultation lasted between 20 and 30 minutes and reflected the service's high overheads. A comment in parenthesis compared that figure with "an average $35 at a local GP". In relation to misrepresentation, Dr Smagarinski apparently denied that they had ever claimed to be specialist dermatologists, but rather did claim that "[w]e specialise, in that skin cancer treatment is all we do".
In substance, the article repeated claims, together with an explanation (in relation to the alleged misrepresentation) and a justification (in relation to the excessive charges). Reading the article, including the heading, as a whole, the jury were nevertheless satisfied, at least in relation to Dr Smagarinski, that the two relevant imputations were made out and were defamatory of him. Given those conclusions, which are not challenged, there is an issue as to why the jury did not make similar findings in relation to Dr Keramianakis. Although he was not named in the article, it is clear that the complaints concern the Dubbo Skin Cancer Centre, which is said to be owned by "two Sydney-based medicos". In his published comments, Dr Smagarinski consistently used the first person plural pronoun "we". There was nothing in the article to suggest that the representations and the charges were not the joint responsibility of both the Appellants. The only obvious justification for differential treatment is the failure of the article to name Dr Keramianakis. However, in relation to that question of identification, two questions were asked and answered by the jury as follows in relation to the newspaper publisher:
"Q1.Has the first plaintiff established that the article published in the Daily Liberal on or about 22 March 2001 was published to at least one person with knowledge of the extrinsic facts who understood the article as referring to the first plaintiff. Is your answer yes or no?
Foreperson: Yes.
Q2.Has the first plaintiff established that a person who knew the extrinsic facts proved true by the plaintiff could reasonably understood [sic] that the plaintiff was the person referred to?
Foreperson: Yes."
The formulation of the two questions left something to be desired, but, the jury having answered both in the affirmative, there can be no doubt that they were satisfied that Dr Keramianakis was identified as a person of whom the imputation was published. Accordingly, that basis for distinction between the Appellants in relation to imputations (b) and (c) falls away.
The Respondent sought to explain the differential treatment of the Appellants by reliance on the different treatment in their counsel's address to the jury. (They were, of course, jointly represented at trial as on the appeal.) Thus counsel argued that the transcript of the address with respect to Dr Smagarinski and the publication in the article covered some six pages: Tcpt, 03/08/06, pp 263-269. Identification was dealt with in relation to Dr Keramianakis over some two pages of transcript and the question of the imputations was dealt with in one paragraph. Accordingly, it was contended, the case that the imputations applied equally to both was contradicted by the manner in which counsel addressed.

This comparative exercise should, however, be rejected as inconsequential. After referring to the fact that the article consistently dealt with the doctors in the plural, counsel for the plaintiffs invited the jury to conclude that "the ordinary, reasonable reader would understand the matter – understanding the matter complained of would be – refers to Dr Keramianakis would find the same imputations conveyed about him as are conveyed about Dr Smagarinsky [sic] for similar reasons to the reasons I've already submitted to you": Tcpt, 03/08/06, p 271 (70). In other words, it was put to the jury that the doctors were in an identical position, once identification was established. It should be added that counsel for the defendant did not invite the jury to distinguish between the two plaintiffs in answering questions as to whether the article conveyed the imputations: Tcpt, 04/08/06, p 325 (40).
If this were where the matter rested, it would be proper to conclude that the challenged negative answers in relation to imputations (b) and (c) in relation to Dr Keramianakis should be set aside because, for no apparent reason, a distinction had been drawn and the distinction could not be justified on the evidence, or by reference to the manner in which the trial was conducted. However, one might have some disquiet in attributing apparent irrationality to a jury which had addressed and answered so many of the questions as were put to them and as they were required to answer, distinguishing where distinction appeared appropriate. In fact, the matter does not rest there, because an explanation for their conduct is available and underlies a challenge raised by the Appellant Keramianakis to the directions given by the judge in summing-up.
As noted at [13] above, the first two questions asked of the jury in relation to the first plaintiff (Dr Keramianakis) in relation to the published article concerned identification. The plaintiff ran his case relying on extrinsic evidence of identification, namely knowledge that he was one of two doctors who operated from the Dubbo Skin Cancer Centre. The evidence included a photograph of a sign indicating the location of the Centre in the building and which included the names of both doctors. According to Dr Smagarinski's reported comments in the article, the service had seen 1,500 patients in nine months. One might reasonably have inferred that there were potential readers of the Daily Liberal who knew relevant extrinsic facts. Nevertheless, the case for the plaintiffs at trial was run on the basis that the relevant extrinsic facts were known to a particular individual, namely Ms Judith Berryman, who worked for the Dubbo Skin Cancer Clinic as a receptionist.
This evidence established identification of Dr Keramianakis as one of the doctors referred to in the article, though not by name. However, and perhaps unnecessarily, the second question went on to ask if a person who knew the extrinsic facts "could reasonably understand that the plaintiff was the person referred to". The introduction of a reasonableness test at that point provided the opportunity for confusion. The following question concerned the imputations and read as follows:
"3.Has the first plaintiff established that the article published in 'The Daily Liberal' on or about 22 March 2001 conveyed to the ordinary reasonable reader the following imputations..."
Because the jury is not invited in a defamation trial to set aside prejudice and special knowledge and form their own opinion as to the matter complained of, but rather to hypothesise a person to be identified as the "ordinary reasonable reader" and attribute views to that person, there is understandable scope for confusion where they have been told that identification of the plaintiff is to be determined by reference to the opinion of a particular individual whom they may well think is not an ordinary reasonable reader. That reference to the fictional character may have led to confusion in the present case can only reinforce the concerns expressed by Kirby J in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at [23]-[26].
The judge commenced his summing-up in the present case on the morning of Friday, 4 August 2006. After lunch, the jury came back with a note which included the following question:
"In question 1 for first plaintiff does the 'at least one person' have to be an ordinary reasonable reader?"
The question referred to must have been question 1 in relation to the article set out above at [13]: it related to identification. Because question 2 referred to a reasonableness test, a thoughtful jury might well have concluded that identification had to be by an ordinary reasonable reader, albeit one with knowledge of the relevant extrinsic facts. To suggest that there would be error in considering the reasonableness of the identification by reference to the concept of what the ordinary reasonable reader might infer, is to affirm the triumph of jargon over substance. Yet both parties agreed that the question should be answered 'no' and the trial judge so answered it. It is desirable to set out his Honour's answer in full. Thus, after repeating the question, he stated (Tcpt, Summing-up, 04/08/06, p 16-17):
"No. There has to be at least one person but it is for you to understand or it is for you to find what the ordinary reasonable reader or hearer would understand from the words used. But they have to be published to one person and I will again come to that in the remaining of my summing-up."
It is possible that the jury thought they understood this answer, because they did not repeat the question. Somewhat later in the summing-up, his Honour dealt with identification of the Appellants by the newspaper’s reporter, Ms Stone. That was important in relation to the alleged defamation by Dr Wagstaff, which occurred in two conversations with Ms Stone. That slander involved a more complicated set of issues, in part because Dr Wagstaff had two conversations with the reporter and because the reporter was not aware of the names of either of the Appellants until after the first conversation and after she had spoken on the telephone to Dr Smagarinski. Having referred to those matters, his Honour continued (Tcpt, p 30):
"The plaintiff relies on that evidence of the phone call as extrinsic facts known to Ms Stone such that the two conversations should be read together, or be considered together, and with that knowledge of that extrinsic facts, a reader would consider that ordinary reasonable person armed with that particular knowledge understand the defamatory imputations alleged to be directed at the plaintiff."
When his Honour came to the article in the newspaper, he read out the first question involving the identification of Dr Keramianakis and continued (Tcpt, p 40):
"In relation to that first question, what was put to you by Mr Wheelhouse is correct. The plaintiff is relying on the evidence of Ms Berryman as to the extrinsic facts was published to at least one person with knowledge of the extrinsic facts. The knowledge of the extrinsic facts is that knowledge of Ms Berryman. And you have heard counsel indicate those extrinsic facts and what she was relying upon.
So again it is published just to one person. That one person is not the reasonable reader. That one person however, has to have knowledge of the extrinsic facts referred to by Ms Berryman. Then armed with that knowledge, would understand the article as referring to the first plaintiff."
After some further exposition of the concept of extrinsic facts, his Honour then turned to question 2 (which he identified as question 3, an error which was probably inconsequential because the jury had the questions before them and he proceeded to read it out verbatim). He then continued (Tcpt, p 41):
"That again comes down to the question of reasonableness, that a person who knew the same extrinsic facts known to Ms Berryman could reasonably understand that the plaintiff was the person referred to? That is the first plaintiff, Dr Keramianakis. So you would have regard to Exhibit A in that regard.
Questions 3 and 4 concern the question of whether or not the imputations are conveyed to an ordinary reasonable reader – or question 3 does, and question 4 raises the question of defamation."
His Honour then turned to a question in relation to the concept of defamation and directed that it was not a sectional interest of Dubbo that should be looked at, but "right thinking people of the general community". After some further brief directions identifying the exhibits, the jury retired. The reference in the passage quoted above to Exhibit A is somewhat obscure, if accurately recorded, because Exhibit A was a copy of the page of the Daily Liberal containing the article.
Whilst seeking to make due allowance for the fact that the transcript of a summing-up may not do justice to the level of communication between the presiding judge and jury at the trial, the questions asked by the jury, together with the responses given, give rise to little confidence that the point of confusion was resolved. A careful and thoughtful jury might well have been left with the impression that, where identification by at least one person was required, the imputations were to be judged by reference to that person's state of knowledge and understanding. Given her special position as an employee of the Dubbo Skin Cancer Centre at the relevant time, it would be understandable if the jury concluded that the article did not convey the imputation suggested to Ms Berryman. Such an approach would be wrong, but it would explain the apparent discrepancy between the findings with respect to imputations (b) and (c) as between the two Appellants. There being no other explanation consistent with the established facts and a proper understanding of the law, the negative answers to the two questions concerning imputations (b) and (c), with respect to Dr Keramianakis, should be set aside, as based on a misunderstanding of the law, resulting in part from the form of the questions and in part from the directions given.

Rejection of imputation (a)

The first imputation, in relation to each of the Appellants, was that he, as a medical practitioner "was more concerned with making money than with the well-being of his patients". That imputation may have been consistent with the imputation concerning overcharging, which the jury upheld in relation to Dr Smagarinski, but their rejection of the first imputation suggests that they looked, correctly, for other evidence to support the allegation that priority was given to making money. And, indeed, there was such evidence in the article in the following paragraph:
"Local GP Bruce Wagstaff said the clinic was an example of entrepreneurial medicine that was 'more concerned with making money than the well-being of patients'."
The first argument put forward for the Appellants was that, simply by looking at the article, it was manifestly unreasonable not to find that the imputation was made out. Alternatively, if not made out in its terms, there was inconsistency between the conclusions that imputations (b) and (c), which also involved the reporting of claims or complaints, were made out but that (a) was not.
There are a number of reasons for rejecting these submissions. First, the misrepresentation imputation was clearly far stronger. It was contained in the heading, it formed the basis of the excessive charging imputation, it was the first complaint identified in the text of the article, and it was the subject of a riposte from Dr Smagarinski which was in turn followed by a reiteration of the complaint in the final paragraphs. The jury might well have considered that there was a lack of balance in relation to that imputation. Similarly, in relation to excessive charging, although Dr Smagarinski explained that they may have undertaken consultations which were longer than a standard consultation (if that was the implication of his statement) and that they had higher overheads (because the premises were not in use each day and no doubt because they had to travel from Sydney) there was nevertheless a clear imputation available that they provided no different service from that provided by local practitioners at significantly lower cost.
By contrast, the complaint of giving preference to money-making over well-being of patients was limited to a single paragraph amongst 23 paragraphs and was sourced to Dr Wagstaff. There was no comment or supportive material. On the other hand, the comments of Dr Smagarinski that they were flooded with patients and had detected 500 cases of malignant melanomas in nine months and that they had feedback from patients who were grateful for the service, directly contradicted the complaint. Further, the explanations for their high charges may not have rebutted the imputation that they were excessive, but may have provided a reasonable answer to an imputation of preferring money over patient welfare. Thus, taking the article as a whole, the distinction drawn by the jury was open to them on an entirely rational basis.
The second limb of the Appellants' argument was that the Court should exercise a higher level of scrutiny of the jury's answers than otherwise, if satisfied that there was some manifest unreasonableness with respect to the negative answers as to imputations (b) and (c). Reliance was placed on the comments made by Gleeson CJ in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at [3]-[6]. However, as suggested above, the findings of the jury in that regard may have been in error, but were explicable. There is no basis for suspicion in this case of a kind which would justify heightened scrutiny. Rather, it is necessary to consider each challenge on its merits.
The third limb to the Appellants' argument was there was inconsistency between the favourable answers given in relation to Dr Wagstaff and the negative answers given in relation to the same material, quoted from Dr Wagstaff, as found in the article.
When considering the material complained of in the article, the jury was directed to consider the article as a whole. Similarly, when considering the material supplied by Dr Wagstaff, in the course of two conversations with the reporter, Ms Stone, it was necessary to consider the conversations as a whole and in light of the jury's finding that they comprised one publication. However, the questions in relation to whether the identified imputations were conveyed, were asked by reference to "the words set out in the attached schedule or words substantially to the same effect". The schedule read as follows:
"(a)The First Stone Conversation
1Stone: I am doing an article about the Dubbo Skin Cancer Centre. Can you tell me what your views are about the Centre so that I can put them in the article?
2Wagstaff: 'Their advertising suggests they are offering a specialist service when they are not.
3These doctors do not have higher qualifications. They are not dermatologists.
4In other words the service they are offering is already here in town. We are concerned first, that people are being misled and second, that they are being charged excessive fees.
5Patients do not need a referral to go to the clinic. At least with a specialist there is communication back and forth and the information is updated on the patient's records.
6Can you send me a draft of what you will quote me as saying prior to publication?'
(b) The Second Stone Conversation
7Wagstaff: 'The quotes you have attributed to me in the draft article are alright except that the words "the clinic was an example of entrepreneurial medicine that was concerned with flying in making a buck and flying out" should be changed to 'the clinic was an example of entrepreneurial medicine that was more concerned with making money than the well-being of patients.'"
There can be little doubt that the content, context and flavour of these remarks, taken as a whole, were significantly different from the content, context and flavour conveyed to the ordinary reader by the whole of the article. The jury was entitled to find that imputation (a) was conveyed by the conversation but that no such imputation was conveyed by the article itself.
The fourth limb of the Appellants' case was that the inconsistency just noted was explicable by reference to what were said to be misleading statements in the address to the jury on behalf of counsel for the publisher of the newspaper.
It is thus necessary to consider whether, even if the distinction drawn appears to have been reasonably open, the jury were led into error by the submissions of counsel for the publisher of the newspaper. The complaint made in that regard is that counsel told the jury that unless the paper expressly endorsed one side of the debate or the other the imputations were not conveyed by it. The relevant passage in the transcript read as follows (Tcpt, 04/08/06, p 324-325):
"Our seventh point members of the jury is this; what the newspaper doesn't do so far as information provided to the ordinary reasonable reader is concerned, is say either side is correct. It merely reports the debate. It doesn't endorse either side of the debate. It reports a debate that the public should hear, the competing views, but in my respectful submission to you members of jury the newspaper article does not invite a conclusion adverse to the plaintiffs. It doesn't give anyone a thumbs up.
The eighth point members of the jury is that in our submission is an ordinary reasonable reader would understand the matter as not containing any endorsement of the Wagstaff allegations by the publisher or any suggestion that they were true and properly founded.
In other words members of the jury – this is my ninth point, there is no intention manifested to the ordinary reasonable reader by the publisher itself to make the allegations contained in the alleged imputations."
The Appellants contended on the appeal that this passage involved egregious error, repeated several times.
The proposition that a publisher will not be liable in defamation, because relevant imputations are not conveyed, where it publishes without adopting the allegations of another is undoubtedly wrong in principle. The history of that principle is helpfully summarised by McColl JA in John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485 at [87]-[119].
The high point of the Appellants' argument was a passage in the judgment of Hodgson JA in Nationwide News Pty Ltd v Heggie [2001] NSWCA 257 at [21] in which his Honour stated:
'However, in my opinion, it would be quite wrong to suggest that published material, setting out an imputation made by another person, does not itself make the imputation if it merely publishes an allegation, or if both sides of the picture are published or if there is no endorsement of the imputation by the publisher, or if no intention of the publisher to make the imputation is manifested."
Read literally, that sentence suggests that publication of an allegation by a third party must convey an imputation no matter what the context. However, when his Honour's statement is read in context, it is clear that it was not intended in the absolute terms in which it is expressed. What is in truth required is an assessment of the allegation in the whole of the article in which it appears. In the third proposition derived by McColl JA from the review of the authorities in Obeid the principle is identified in the following terms, at [119]:
"(c)To determine what, if any, defamatory imputations are conveyed by the publication in which the defamatory hearsay appears, the matter complained of must be viewed as a whole. Relevant indicia will include whether the defamatory hearsay is approved, reaffirmed and/or endorsed (adopted in the secondary sense), repudiated or discounted and the purpose of the republication."

Again, to put this conclusion in context, it is necessary to refer to a passage in which her Honour distinguished two senses in which the term "adoption" is deployed in this area of discourse. Thus, her Honour stated:
"[99]It is important to understand the two senses in which the concept of adoption is employed. Griffiths CJ in Ronald v Harper and McHugh J in John Fairfax Publications v Rivkin refer to the concept to explain that the mere publication of defamatory hearsay amounts, without more, to an “adoption of that statement”. I refer to that use of the word “adoption” as the “primary sense”. In its primary sense adoption connotes strict liability for the publication of defamatory hearsay in the sense referred to in Dow Jones & Co Inc v Gutnick.
[100]However as is apparent from Wake, Ross McConnel Kitchen & Co Pty Ltd and Ainsworth Nominees Pty Ltd the concept of adoption is also used in a secondary sense as being one of the matters relevant to determining what, if any, defamatory imputations were conveyed by a publication which includes defamatory hearsay. Thus, in Wake, as I have earlier noted while reaffirming the proposition that the publisher of defamatory hearsay is not in a special position if the imputation is “not adopted”, the Court said that the nature of the libel conveyed by the reporting of defamatory hearsay may depend (inter alia) upon “whether it is adopted, repudiated or discounted”.
[101]When the concept of adoption is invoked in the secondary sense it is because it is, or may be, relevant to determining “the nature and quality of the defamatory publication”. In the same vein, the question whether the republisher has repudiated or discounted the defamatory hearsay and the purpose of the republication will all be relevant to whether the imputations conveyed by the defamatory hearsay viewed in isolation are also conveyed in the context of the whole publication: Ross McConnel Kitchen & Co Pty Ltd (at 848) per Hunt J)."
This statement of principle, is consistent with, and indeed relies upon, the statements made by McHugh J in John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [26]-[27]. As Handley JA noted in Yoon Shin Lee v Bob Chae-SangCha [2005] NSWCA 279 at [6]:
"For most practical purposes a person who republishes a libel can only escape a finding of publication of the defamatory imputations in it if he has added further material which refutes or undermines those imputations."
Again, it does not follow that the addition of a refutation will necessarily have that effect: it will be a matter for the jury to consider in reading the article as a whole.
Questions of law are not always translated accurately and precisely into propositions put by counsel in addressing a jury. Distinctions between ‘adopting’ in a "primary sense" and in a "secondary sense" are most unlikely to find their way into such an address. But the unexplained use of the concept is likely to mislead a jury because, in its ordinary meaning it may be understood as requiring some positive element of acceptance of the allegation as one's own. There are of course obvious differences between affirmatively adopting an allegation, repeating it without comment and repeating it in order to refute it. (These are given by way of example, rather than as covering the field of possibilities.) For the purposes of a defamation action, the critical point is that both the first and second alternatives may convey the imputations, as indeed may the third, although usually it would not.
Read in isolation, the comments set out above were undoubtedly capable of misleading the jury into believing that the newspaper publisher could not be liable for repeating an allegation sourced to a third party unless it "adopted" or "endorsed" the allegation, so as to make it its own. The correct approach for the jury was to ask whether a normal reader, setting aside prejudices and special knowledge, would think that the imputations were conveyed by the article. The fact that certain complaints were sourced to third parties was not irrelevant in that context, but did not prevent the imputation being conveyed.
Despite the basis of the Appellants' complaint about the passage in counsel's address, they nevertheless face three inter-related difficulties on appeal. The first difficulty is that one should not read the passage in isolation, any more than one reads one part of the article complained of in isolation. The context within which the passage fell was one involving repeated statements, both from counsel and from the trial judge, as to the correct approach.
The second and third difficulties are that no request for a discharge was made at trial, nor does it seem likely that the jury was in fact distracted from its proper task.
The Appellants claimed that the statements made to the jury in the present case were similar to the statements made in Obeid and in Yoon Shin Lee v Bob Chae-SangCha, and set out by Campbell AJA at [39]-[50]. However, in both cases the jury had been discharged by the trial judge on account of counsel's conduct, and the discharge was challenged on appeal. The situation in the present case is entirely different in that not only was the jury not discharged, but there was no application for a discharge. Indeed, there was no request to the trial judge to correct the statements made by counsel by expressly directing the jury that adoption or endorsement was unnecessary.
The Appellants responded that failure to raise the matter at trial was not a fatal objection to the challenge now presented, relying on Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675 at [75]-[76]. However, as noted in that passage by Beazley JA (Handley and Ipp JJA relevantly agreeing) the question raised is whether despite the failure to seek a redirection, some substantial wrong or miscarriage was occasioned for the purposes of Part 51 r 23 of the Supreme Court Rules 1970 (NSW).
In Obeid, McColl JA set out a statement of principle from the judgment of Kirby P in Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 at 214-215 concerning appellate review of a decision to discharge a jury: Obeid at [55]. The thrust of the statement was to note the difficulty for an appellate court in assessing the effect of particular conduct of counsel, in the course of a jury trial. When a jury is discharged, it must be because the trial judge has concluded that the minds of the jury have been poisoned to such an extent that directions by the trial judge run a real risk of being ineffective. That must be a rare case. Were it otherwise, there would be a tendency to ascribe undue influence to counsel, inadequacy to the trial judge and an inability on the part of jurors to listen to and follow the judge's directions. In any event, there was no justification, nor was one offered, for the proposition that the jury should have been discharged in the present case had an application been made in a timely fashion.
The final difficulty faced by the Appellants is that they sought no directions from the trial judge in relation to the passage complained of in counsel's address. There was a response of lack of opportunity, which will be addressed below; otherwise, the response was merely that the Appellants should not be deprived of a proper trial because of the inadvertence or mistake of their counsel.
This submission should be rejected. There was no evidence before this Court of inadvertence, or mistake, although trial counsel, who also appeared on the appeal for the Appellants, made the suggestion from the bar table. Failure to ask for directions might have resulted from one of a number of causes, including counsel's incompetence, inadvertence, a strategic decision not to seek a direction or an assessment that no direction was necessary. Putting aside incompetence, which was not suggested, the other three causes are open. However, the most likely is that counsel at trial simply did not assess the situation as requiring correction.
In any event, it is tolerably clear in the present case that whatever potential for error may have been created by the passage in counsel's address, taken in isolation, the potential did not eventuate. There was no express statement of adoption or endorsement in relation to any of the allegations which gave rise to the imputations, with the possible exception of the words in parenthesis setting out the fees of a local general practitioner, which might have been seen as the newspaper's comment on the claim of overcharging. Otherwise there was no implied endorsement or adoption of one allegation rather than another. Accordingly, it is apparent that, in upholding imputations (b) and (c) in relation Dr Smagarinski, but not (a), the jury was not applying some overall test of adoption or endorsement, but rather was reading the article as a whole, in a legally appropriate manner.

Procedural unfairness

There remains a ground of complaint based on the failure of the trial judge to permit counsel for the Appellants (the plaintiffs below) a right of reply, following the addresses to the jury on behalf of the defendants. This unfairness was said to have been exacerbated by the refusal of the trial judge to hear counsel for the Appellants as to why he should be given a right of reply.
The conduct of the trial was under the control of the trial judge who was undoubtedly required to ensure procedural fairness to all parties and to comply with relevant rules of court. The only relevant rule was found in Uniform Civil Procedure Rules 2005 (NSW), r 29.6. Although the language is somewhat obscure, if it applies, r 29.6(4)(c) appears to allow a right of reply to a plaintiff after the defendant has called evidence and made final submissions. However, the rule does not apply in its terms because it only applies in the case of one plaintiff and one defendant and in the absence of any cross-claim or cross-summons: r 29.6(1)(a). Even if it did apply, it would be subject to any direction of the Court.
On any view, this was not a case in which the Appellants were deprived of an opportunity to put their case to the jury. Counsel addressed on the plaintiffs' case in opening and after the evidence was complete. According to the transcript, he took as long as both of the defendants in addressing the jury.
After the trial judge had commenced his summing-up, at the first adjournment, the following exchange took place in the absence of the jury (Tcpt, Summing-up, 04/08/06, pp 10-11):
"HENSKENS: Your Honour not having heard me on my application for a reply submission could I now formally record for the transcript the matters that I would have raised with the Court if your Honour had given me an opportunity.
HIS HONOUR: I do not think it is appropriate when addresses have been concluded and which the judge is then about to commence a summing up to have submissions by way of reply. That is on the transcript.
…
HIS HONOUR: … I again repeat that I do not consider it is appropriate in a case of this nature and a 7A application for you to have a right of reply.”
As the exchange continued, counsel asserted that there were matters of fact involving errors, which required correction and errors on matters of law. His Honour indicated that if these were drawn to his attention he would “certainly redirect the jury in relation to that matter if there are errors of fact” and noted that counsel was most certainly entitled to raise matters of law with him: Tcpt, p 11. After lunch, counsel did seek to raise what he described as “one matter” (Tcpt, p 12) but which in fact extended into other issues, partly in response to the receipt of a question from the jury. The jury question raised an issue related to the confusion discussed above. It is not necessary to consider that matter further. The other matter sought to be raised concerned possible speculation about the questions which formed part of the communication between the journalist, Ms Stone, and Dr Wagstaff: p 12. That matter has no present relevance.
Upon completion of the summing-up, his Honour invited counsel to raise with him any further matters of law or fact which needed to be considered: Tcpt, p 44.
There was a somewhat attenuated reference to John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 by counsel in seeking a right of reply during the trial. On the appeal, he called in aid passages in the judgments in the High Court to the effect that it was a discretionary matter for the trial judge to determine whether a right of reply should be permitted or not: see 77 ALJR 1657 at [8] (Gleeson CJ), at [159]-[161] (Kirby J) and at [215]-[216] and [222] (Callinan J). However, these passages provide no support for the Appellants, except at a high level of generality. As noted above, the trial judge’s discretion was not confined by any particular provisions found in Part 34, r 6 of the Supreme Court Rules or its current equivalent in the UCPR. It was not suggested that his Honour was not appraised of the fact that plaintiffs’ counsel sought a right of reply. Further, in order to establish error the Appellants must demonstrate practical injustice in the sense that they lost an opportunity which in fairness they should have had to advance their case: compare, in the administrative law context, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [36]-[38] (Gleeson CJ).
In a trial before a jury, the judge has a number of competing demands to consider. Whilst each party must be given a reasonable opportunity to address the jury and to raise matters with the judge in relation to the summing-up, that opportunity must be subject to temporal restraints and it will be a matter for the trial judge to decide when the opportunity is exhausted. It is clear from the transcript in the present case that counsel for one of the defendants was pressing, with some persistence, a concern that the jury should not be kept waiting. Whether that was a tactical device or a real concern, was very much a matter for his Honour to consider. However, his Honour was clearly receptive to these concerns and said at one stage, addressing counsel for the plaintiffs, “Yes, look I don’t think you understand time”: Tcpt, p 12.
The complaint of procedural unfairness is misconceived. The phrase implies a degree of unfairness sufficient to vitiate the proceedings before the jury. To seek to characterise what was in substance no more than a complaint as to the balance achieved by the trial judge in allocating time as between the parties is to dress up an entirely discretionary procedural judgment into an apparent complaint of serious error. The ground is without substance and is rejected.

Powers conferred by Supreme Court Act

Neither party contended that the right of appeal in the present case arose under the Supreme Court Act 1970 (NSW). Nevertheless, because the powers of this Court are, primarily if not solely, identified in the Supreme Court Act, it is necessary to start by referring to the provisions in the Supreme Court Act, namely ss 101 and 102, which confer a right of appeal to this Court. Further, the operation of these provisions may assist in understanding the structure of the equivalent provisions in the District Court Act 1973 (NSW), to which reference will be made below.
Section 101(1) reads as follows:
“101 Appeal in proceedings before the Court
(1)Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from:
(a) any judgment or order of the Court in a Division … .”
Section 102 makes separate provision in relation to an appeal after a jury trial, in the following terms:
“102     Appeal after jury trial
Where, in any proceedings in the Court, there is a trial of the proceedings or of any issue in the proceedings with a jury, an application for:
(a)          the setting aside of a verdict or judgment,
(b)         a new trial, or
(c)the alteration of a verdict by increasing or reducing any amount of debt, damages or other money,
shall be by appeal to the Court of Appeal.”
These separate provisions reflect historical differences in relation to rights of appeal and orders for new trials, as they developed under the general law. The history is more clearly apparent in relation to the District Court Act and will be discussed below. The effect of s 102 is to identify the various forms of challenge which could be taken to a verdict of a jury, or a judgment resulting from proceedings with a jury, so as to reclassify each as involving an “appeal” to this Court. It is commonly accepted that the proceeding is thereafter an appeal to which s 101(2) applies, but importantly for present purposes, it is an appeal to which ss 105-108 may apply. Those provisions identify the powers available to this Court on such an appeal.
The principal powers of this Court in respect of appeals from judgments and orders in civil proceedings are found in s 75A of the Supreme Court Act. However, as stated in sub-s 75A(2) that section does not apply to “an appeal arising out of” a trial with a jury:
“(2)This section does not apply to so much of an appeal as relates to a claim in the appeal –
(a)for a new trial on a cause of action for debt, damages or other money …; or
(b)for the setting aside of a verdict, finding, assessment or judgment on a cause of action of any of those kinds,
being an appeal arising out of:
(c) a trial with a jury in the Court, or
(d) a trial:
(i)with or without a jury in an action commenced before the commencement of section 4 of the District Court (Amendment) Act 1975, or
(ii)with a jury in an action commenced after the commencement of that section,
in the District Court.”
Although it uses more succinct language, s 105 of the Supreme Court Act operates in reference to appeals from jury trials excluded from the operation of s 75A by sub-s 75A(2). The purpose of s 105 is to render ss 106 and 107 applicable to such appeals. If s 105 had picked up s 108, in addition to ss 106 and 107, part of the present problem would not have arisen; however, it does not have that effect and s 108(1) deals with the application of s 108 itself.
As originally enacted in 1970, s 105 operated with respect to a trial with a jury in proceedings in the Supreme Court, and a trial with or without a jury in proceedings in a District Court. In that respect, as now, it complemented s 75A which did not apply to any appeal from the District Court in its civil jurisdiction, as identified in s 75A(2)(a) and (b), whether the trial was with or without a jury: par (b).
The first break in this pattern occurred with the District Court (Amendment) Act 1975 (NSW) (“the 1975 Amendment Act”), which had the effect of limiting review of a judgment after a trial with a jury (otherwise than in respect of a ruling, order, direction or decision of a judge) to an application for a new trial, as opposed to an appeal: see the 1975 Amendment Act, s 3(t) and (u) and s 4(1), amending ss 127 and 128 of the District Court Act as then in force, and ss 75A and 105 of the Supreme Court Act.
Section 106 of the Supreme Court Act is limited (now, as then) to matters occurring subsequent to the trial which make it appear that the damages awarded at trial were manifestly too high or too low. Section 107 has a broader operation, but is also limited to “an issue of the amount of debt or damages or of the value of goods” as found at trial. The purpose and operation of s 107, and its predecessors, were discussed by Samuels JA in Radakovic v R G Cram & Sons Pty Ltd [1975] 2 NSWLR 751 at 763-764 (Hutley and Mahoney JJA agreeing). It is, as its terms suggest, directed to the reassessment of damages after a jury trial. Neither of these provisions apply in the present case.
Section 108 is of potential relevance, because it is concerned with the power to direct the entry of a verdict: s 108(3). However, the section applies only to an appeal “in proceedings in the Court in which there has been a trial with a jury”: s 108(1). A reference to the “Court” is to the Supreme Court: Supreme Court Act, s 19. The right of appeal in relation to a trial by jury in proceedings in the Court is conferred by s 102 of the Supreme Court Act. Accordingly, ss 102 and 108 operate in tandem.

Right of appeal: District Court Act

The notice of appeal in the present proceedings was filed in September 2006. A right of appeal is granted from the District Court by s 127 which provides now (as it did then):
“127 Right of appeal to Supreme Court
(1)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.”
The term “judgment” is defined, in relation to an action, to mean “judgment given or entered up in the action”: s 4. The term “order” is not defined. The Appellants argued that the appeal was in fact brought from a judgment or order of the trial judge, albeit one which reflected the answers given by the jury to each question. Pursuant to UCPR r 36.11, the verdicts were set out in a minute of the judgment or order of the Court.
As a matter of fact, that submission did not fully reflect the circumstances of the case. First, reference was made to the order as recorded by an assistant registrar in the District Court on 30 April 2007, pursuant to r 36.11 of the Uniform Civil Procedure Rules, dealing with entry of judgments and orders. However, that provision does not effect the making of the judgment or order, nor does it fix the time at which the judgment or order took effect. Rather, the judgment or order takes effect on the date on which it was given or made, unless the Court otherwise directs: r 36.4. In the present case, the judgment or order was made by the trial judge in the course of the proceedings on 7 August 2006. The transcript, relevantly for present purposes, recorded his Honour stating:
“There will be a verdict for the second defendant in respect of the claim by the first plaintiff Con Keramianakis.”
The order is correctly recorded in those terms in the minute. It was made immediately following the return of the jury’s answers and was made without opposition from counsel for the present appellants.
Secondly, the submission does not fully reflect the terms of the amended notice of appeal, which stated that the Appellants “appeal against all of the jury findings that imputations pleaded by the Appellants were not conveyed and the verdicts and judgments with costs entered in favour of the Respondent by Puckeridge DCJ on 7 August 2006”. The grounds, as noted above, were threefold: they alleged that the jury’s answers were “perverse, unreasonable and an answer that no reasonable jury properly directed could have given”; that the directions given by the trial judge were inadequate and that there was a denial of procedural fairness. There was no complaint that the judgment as entered did not properly reflect the findings made by the jury. Apart from the question of procedural unfairness, which has been rejected, the challenge was to the findings made by the jury and the adequacy of the directions given.
In support of the availability of the appeal the Appellants relied upon language adopted in the joint judgment in Fox v Percy (2003) 214 CLR 118 at [24] referring to a judgment or order of a trial judge (in the Supreme Court) which “gives effect to the jury’s verdict”. To similar effect Kirby J in Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 179 ALR 321; (2001) 75 ALJR 867 stated at [65]:
“The Court of Appeal had undoubted jurisdiction and power, in this case, to hear the appeal from the judgment of the District Court based on the jury’s verdict.”
In this Court, in Unver v Liftronic Pty Ltd [1999] NSWCA 275, no point was taken in relation to jurisdiction or power. Brownie AJA (with whom Mason P agreed) stated at [5]:
“The appellant was injured on 20 February 1995, in the course of his employment by the respondent. On the trial of his action for damages, the jury found that the respondent had been negligent, but that the appellant had been guilty of contributory negligence. The appellant appeals from the decision of the trial judge, Dodd DCJ, allowing the question of contributory negligence to go to the jury, and from the jury's assessment that the appellant should bear 60 per cent of the responsibility for the damage.”
Returning to the comment of Kirby J in the High Court, there was an ambiguity in the reference to “undoubted jurisdiction and power”. His Honour should be understood as saying that jurisdiction and power were not in issue. That they were not appeared from the transcript of the hearing in the High Court, on 11 October 2000, when senior counsel for the appellant noted that the Court of Appeal had substituted its own view on contributory negligence for the finding of the jury: Tcpt, lines 25-30. Kirby J inquired:
“Do you concede that that course was available in a jury trial? I assume it is but I do not know.”
Counsel then referred to Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, quoting a passage in which the Court upheld the power of a court of appeal to order a new trial if the jury reached a conclusion which was so strongly against the evidence as to be one that reasonable jurors could not reach: at p 41. Kirby J noted that it merely related to ordering a retrial and restated his question as to “the source of the power to substitute a different opinion on the quantum or percentage of their contributory negligence”: Tcpt, line 55. Counsel replied that there was “power in the Supreme Court Act, your Honour, and there is the common law power”, only to renege on the latter point when McHugh J noted that no such power existed at common law. In the end, counsel was forced to concede that he could not identify the specific power and was “ashamed to confess I did not turn my mind to it, because it has in my experience been done habitually in the Court of Appeal”: line 80.
The reference to a statutory power in the Supreme Court Act could only have been a reference to s 108, which does not apply to appeals from jury trials in the District Court. Thus it appears that Liftronic was argued at all stages upon a false premise that this Court had power to substitute a verdict or finding for that of the jury. There appears to have been no discussion at all in relation to the right of appeal to this Court. In the result, the judgment in this Court was reversed (by Gleeson CJ, McHugh, Gummow and Callinan JJ), Kirby J dissenting. It is clear that the comments of Kirby J do not bind this Court on the question of jurisdiction or power.
The Appellants also contended that this Court has, since 1995, “heard and dealt with many appeals concerning jury verdicts in the District Court without any concern that the Court of Appeal lacked jurisdiction to hear the appeal”. Three cases were identified. One, Echo Publications Pty Ltd v Tucker [2007] NSWCA 73 was an appeal from proceedings before a judge and jury in the Supreme Court and not the District Court. A second, Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279 involved an appeal from the decision of a trial judge in the District Court to discharge a jury. Thirdly, Zarth v Williamson [2006] NSWCA 246 involved an appeal from a trial before a jury in a defamation action in the District Court in which this Court rejected two applications for leave to appeal, but did assume the existence of a jurisdiction and power to set aside the jury’s findings: at [43] (Bryson JA). There may have been other cases which have not been identified. However, significantly, no case has been identified in which the point was raised.
No doubt it would seem surprising if today there were no appeal at all from a jury verdict in a civil matter. However, it is necessary to evaluate this response in the light of the relevant general law and statutory history and by reference to the express conferral of a right to seek a new trial in the District Court proceedings and any apparent power in this Court to set aside a verdict and order a new trial in the District Court.
As noted above, the Supreme Court Act, as originally enacted and in its present form, confers powers on this Court with respect to appeals from trials with a jury in the District Court: ss 105, 106 and 107. However, their operation has always been limited in the manner discussed above and given their history, they provide only a limited basis for inferring an intention, after 1995, that this Court has the same jurisdiction with respect to appeals from jury trials in the District Court, as it has in relation to appeals from a Supreme Court jury trial.
The history of general law powers to order a new trial or set aside a verdict was considered in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 108 (Dixon J) and more recently in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [7]-[31] (Gaudron ACJ, McHugh, Hayne and Callinan JJ). Separate procedures by way of application for a new trial and an appeal, formerly dealt with in ss 98 and 142 of the District Courts Act 1912 (NSW) (“the 1912 Act”), reflected their common law antecedents. By 1957, s 98 provided:
“Every judgment of any District Court, except as in this Act provided, shall be final and conclusive between the parties but the judge may -
(1) in any case order a new trial … .”
Section 142 provided:
“If either party in any District Court -
(a)in any action in which the amount claimed exceeds ten pounds; …
is aggrieved by the ruling order direction or decision of the judge in point of law or upon the admission or rejection of any evidence, such party may appeal from the same to the Supreme Court … .”
Those provisions were considered in The Nominal Defendant v Hook (1965) 113 CLR 641; Windeyer J described their origin and effect at pp 656-657:
“But the policy of the Act is plain. It is that a District Court is to dispose finally of the cases which come before it, except that where more than ten pounds is involved there is an appeal to the Supreme Court, but only on a point of law. Applications for new trials and for setting aside judgments obtained irregularly and fraudulently are to be made to the District Court judge, not to a superior court. They are to be disposed of finally in the District Court unless they involve some question of law. That is the effect of ss 98 and 142. These are derived ultimately from the English County Courts Act passed before the Judicature Acts. They thus still reflect the fundamental common law distinction between a motion for a new trial and an appeal to correct error of law. An application for a new trial was made to the court from which the judgment issued. An appeal on a question of law was by bill of exceptions and error and was a proceeding in a superior court. The two forms of remedy were up to a point alternatives at common law, as are ss 98 and 142. …
Under s 98 a new trial may be granted by the District Court judge on any ground of fact or of law that would justify a common law court in banc granting a new trial of an action that had been tried at nisi prius. But a new trial cannot be granted on a ground that would entitle the party to judgment. That is to say, an objection that would lead an appellate court to reverse a decision and enter judgment for the appellant cannot be made a ground for a new trial … . Appeal, not new trial, is the proper remedy in a case of that sort.”
These provisions were replaced by ss 126, 127 and 128 of the District Court Act 1973 as enacted. Thus, an application for a new trial could be made to the District Court (s 126) or to the Supreme Court (s 127) or an appeal could be taken to the Supreme Court (s 128). Under s 128, which was the successor to s 142 of the 1912 Act, a right of appeal was given “from the ruling, order, direction or decision of the Judge in point of law, or upon the admission or rejection of any evidence, in an action”. The Supreme Court was empowered, on an appeal, to order a non-suit, or a new trial, or give that verdict and such judgment as was appropriate to that verdict: s 128(3). This latter provision, which was to substantially the same effect as s 108 of the Supreme Court Act, remained in force until 1995, when the Courts Legislation Further Amendment Act 1995 (NSW) (“the 1995 Amendment Act”) repealed ss 127 and 128, as they then stood. Section 127 was not replaced, perhaps on the assumption that the grounds on which a new trial might be ordered by the Supreme Court would not be greater than those upon which an appeal might be allowed and that one of the remedies available on a successful appeal would be the ordering of a new trial. The new s 127 read as follows:
“127 Right of appeal to Supreme Court
(1)A party who is dissatisfied with a decision of a Judge may appeal to the Supreme Court.”
This constituted a variation of the previous s 128(1): however, previous sub-s 128(3), which conferred powers on the Supreme Court, including the power to substitute a verdict or to order a new trial, was simply omitted. Whether it was considered that sufficient powers were contained in ss 105-107 of the Supreme Court Act, which would have had operation in respect of an appeal from a trial by jury in the District Court, is unclear. However, those powers were in effect limited to quantum appeals and there is now an absence of any general provision empowering this Court to make orders on an appeal arising from proceedings in the District Court involving a trial with a jury.
Otherwise, the replacement of s 128(1) with the new s 127(1) appears to have had two relevant effects. One was to remove the limitation on an appeal, formerly expressed in terms of an appeal “in point of law …” so as to permit dissatisfaction with a decision of a judge, of a kind which might permit a wider challenge. At least in relation to an action tried without a jury in the District Court, the terms of s 75A of the Supreme Court Act would operate, allowing an appeal by way of rehearing. But, what was the intended effect of limiting the appeal to dissatisfaction with a “decision of a Judge” in circumstances involving a trial by jury? It is clear that a “decision” would not be limited to a final judgment or order because sub-s 127(2) imposed a requirement of leave on an appeal from an interlocutory judgment or order. However, a direction to a jury would not readily be identified as a judgment or order or as a “decision”. If it were intended to grant a right of appeal in this way from the final judgment or order of the trial judge, based upon a jury verdict, one would expect some clearer expression. A judgment entered on the basis of a jury verdict does not naturally fall within the description “a decision of a Judge”.
If there had always been a broad right of appeal from a judgment in a jury matter, one might infer that the new terminology was intended to avoid verbosity rather than limit rights of appeal. However, as explained above, that was not the case. The right of appeal was never available in relation to the jury verdict, but only from the ruling, order, direction or decision of the judge in point of law or upon a question of evidence. That would not, of course, prevent a challenge to a jury verdict by way of appeal, but the means of challenge would have involved an application for a new trial, prior to the entry of judgment. A refusal to grant a new trial might have led to an appeal so long as the ground raised a point of law. Such a challenge is still available pursuant to s 126 of the District Court Act, but, as the Respondent noted in its supplementary written submissions, no objection was taken to the trial judge entering judgment on the basis of the jury’s verdict: see s 126(1)(b) or (2). The Appellants’ case is that, despite not adopting that procedure, they can appeal against a judgment or order entered on the basis of the jury’s verdict as being “a decision of the Judge” and challenge the final judgment or order on the basis of any error identifiable at any stage of the proceedings, in accordance with the principles (though not identified in these terms in the course of argument) discussed in Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [6]-[8] (Gaudron, McHugh and Hayne JJ).
It may be noted that a consequential amendment to the District Court Act made by the 1995 Amendment Act, s 183A, was followed by an explanatory note in the following terms:
“The proposed amendments simplify the provisions of the District Court Act 1973 relating to appeals against decisions of the District Court. The appeals will be to the Supreme Court. Section 48 of the Supreme Court Act 1970 assigns such an appeal to the Court of Appeal. As a result of the amendments, most appeals will lie as of right while some will require the leave of the Supreme Court. In addition a person will no longer be able to make an application to the Supreme Court for a new trial.”
The second reading speech provided no further elucidation relevant to the present question.
The form of s 127 introduced by the 1995 Amendment Act was varied the following year by the Courts Legislation Amendment Act 1996 (NSW) which replaced the phrase “decision of a Judge” with the phrase “Judge’s judgment or order in an action”: Schedule 1.3 [3]. Subsection (1) remained in that form until the Courts Legislation Amendment Act 2006 (NSW) when it was amended by adding, after “Judge’s”, the phrase “or a judicial registrar’s”: Schedule 4 [3]. Nothing turns on that last change.
Subsection 127(2) has, since 1995, provided that leave is required in particular circumstances, none of which suggest that the appeal might include an appeal against a jury verdict.
Following the 1995 Amendment Act, a challenge to a judgment or order in a jury case may have depended upon a decision of the trial judge, said to be in error. However, there are two reasons why that view need not be pursued. First, at the date of commencement of the present proceedings, the statutory language conferred a right of appeal on a party who was dissatisfied “with a Judge’s … judgment or order in an action”, the earlier reference to “a decision” having been removed by the Courts Legislation Amendment Act 1996 (NSW), Schedule 1.3 [3].
The second reason is more significant. Assuming that there is some right of appeal of the kind contended for by the Appellants, it is necessary to identify the source of power in this Court to address the issues raised in this case. For the purposes of ss 75A and 105 of the Supreme Court Act, there is no dispute that a cause of action in defamation is a cause of action for damages: see s 75A(2)(a). Absent any power to substitute a verdict, it involves a claim for a new trial. It also involves a claim for the setting aside of a verdict, finding or judgment: s 75A(2)(b) and s 105. Whatever the precise ground of appeal relied upon, there can be no dispute that the appeal is one “arising out of” a trial with a jury in the District Court. It follows that, whatever the nature of the challenge, s 75A does not confer any powers on this Court in relation to the appeal. Further, this not being a quantum appeal, no relevant power can be found in ss 105-107.
The Appellant raised two further arguments. The first was that Part 51, r 23 of the Supreme Court Rules conferred a specific power to order a new trial subject to certain constraints. However, the form of that rule does not support the submission. Rule 23(1) provides that this Court “shall not order a new trial … unless it appears to the Court … that some substantial wrong or miscarriage has been thereby occasioned”. It is clear that the rule assumes not only the existence of the power, but that the circumstances for its exercise have arisen. It is not to be seen as a provision with the dual function of impliedly conferring a power and then expressly subjecting it to a constraint. Indeed, such a construction would be inconsistent with its well understood history. The rule reflects a common law principle: see Balenzuela v De Gail (1959) 101 CLR 226 at 234-235 (Dixon CJ).
Nor can it be inferred, in relation to an appeal from the District Court, that r 23 impliedly invokes a power available under the general law. Prior to the 1995 Amendment Act, the District Court Act had provided in clear terms for the availability of applications for a new trial and by way of appeal. There was no reason to suppose that any general law right of review remained in force. That is in part because s 81 of the District Court Act, as enacted, provided:
“81Subject to this or any other Act, a judgment in an action shall, unless set aside in accordance with this Act, be final and conclusive between the parties to the action.”

That provision remains in force. Accordingly, the general law principles and procedures no longer have operation and, not being in force or existing at the time of the 1995 Amendment Act, they were not revived as a result of the repeal of former ss 127 and 128: Interpretation Act 1987 (NSW), s 30(1)(a).

Conclusions

In relation to a civil jury trial in the District Court, the right of appeal is now limited to an appeal against the judge’s judgment or order. There will be circumstances in which such an appeal may arise, particularly where a judgment is given or made following the rejection of an application for a new trial, or is allowed to stand following the rejection of such an application. The precise scope of the power to appeal need not be addressed in the present case, because it does not arise.
The powers conferred on this Court to deal with any appeal arising out of a trial by jury in the District Court will in effect be confined to those matters raised by ss 106 and 107 of the Supreme Court Act. The powers conferred by those sections are not relevant in the present case.
It follows that the present appeal must be dismissed.
Against the event that others take a different view, I would determine the other issues in the following ways. If there had been power to address the grounds raised above, error has been established in relation to the negative answers given by the jury concerning imputations (b) and (c), in relation to Dr Keramianakis. The error would be sufficient to justify setting aside the verdicts, applying general law principles. The next question would be whether this Court could and should direct a verdict and give judgment accordingly.
Absent a statutory power, there could be no power in this Court to enter a verdict. As noted by Dixon J in Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 at 379:
“Without statutory authority the Court could not enter a verdict in lieu of that set aside, unless empowered to do so by a reservation made at the trial with the consent of the parties actual or implied.”
Assuming the existence of power, the circumstances in which it is appropriate for the Court to enter a verdict on appeal were discussed by Hunt AJA in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [90]-[115]. Those principles were further considered in Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675 by Beazley JA at [58]-[74]. In circumstances where the Court held that the jury had been incorrectly directed and that the only verdict which could have been returned on a proper direction was that the imputations were defamatory, judgment was entered to that effect: Beazley JA at [74], Handley JA agreeing at [1] and Ipp JA agreeing with some further remarks at [134]-[139]. Subject to a variation in the form of the orders, both the availability of the power to direct a verdict and the judgment given were affirmed in the High Court: see John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 235 ALR 402 at [11]-[13] (Gleeson CJ and Crennan J), [27]-[54] (Gummow and Hayne JJ) and [184]-[188] and [195] (Callinan and Heydon JJ).
A similar conclusion would be appropriate in the circumstances of the present case, although it should be expressed in different terms. Thus, it is not that Dr Keramianakis is entitled as a matter of law to a verdict based on affirmative answers to the questions with respect to imputations (b) and (c), but that he is entitled to such a verdict on the basis that the same jury has determined that Dr Smagarinski is entitled to such verdicts and because there were no relevant points of distinction between their circumstances. That conclusion is fortified by the explanation for the disparate verdicts, namely the confusing directions in relation to identification and the conveying of imputations, which led the jury to a distinction based upon an incorrect understanding of the law.
I have set out the conclusions in the preceding four paragraphs against the possibility that others take a different view in relation to the existence of an appeal and the powers available to this Court. However, on the view I take in relation to those matters, the appeal should be dismissed. Because of the basis of the dismissal, I would be inclined not to order that either party pay costs, but would give the parties an opportunity to file written submissions within 14 days if some different order is sought in relation to the costs of the appeal.
ROTHMAN J: I have had the advantage of reading the draft reasons for judgment of Basten JA. With unfeigned respect, and with great reluctance, I am unable to agree with his conclusion on the availability of an appeal.
I agree with Basten JA that, to the extent there exists a right of appeal, the negative answers to imputations (b) and (c) with respect to Dr Keramianakis to which Basten JA refers, ought be set aside as either or both unreasonable or based on a misunderstanding of law. I also agree with Basten JA that the jury’s answers to alleged imputation (a) should stand and I agree with his reasons therefor. Further, I agree with the reasons of Basten JA on the complaint as to a denial of natural justice.
I turn then to the availability of an appeal. Because I apprehend that this will be a dissenting judgment, I will seek to deal with these reasons as briefly as possible. It is necessary to remark that the effect of the jury verdict on imputations (a), (b) and (c) with respect to Dr Keramianakis was that on 7 August 2006 the trial judge issued orders (Black p 453) being a verdict for the second defendant and requiring Dr Keramianakis to pay the second defendant’s costs. That order was based on the jury verdict. It was entered on 30 April 2007.
As Basten JA observes, s 127 of the District Court Act 1973 provides for an appeal to the Supreme Court, either as of right or by leave, by any party who is dissatisfied with a District Court judge’s judgment or order. Dr Keramianakis is such a party. Section 127 is in the following terms:
“127(1) 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.
(2) The following appeals lie only by leave of the Supreme Court:
(a) an appeal from an interlocutory judgment or order,
(b) an appeal from a judgment or order as to costs only,
(c) an appeal from a final judgment or order, other than an appeal:
(i)that involves a matter at issue amounting to or of the value of $100,000 or more, or
(ii) that involves (directly or indirectly) any claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 or more,
(d) an appeal from a judgment or order on an application for summary judgment under the rules,
(e) an appeal from an order made with the consent of the parties.
(3) In any other case, an appeal lies as of right.”
By operation of s 48 of the Supreme Court Act 1970 such an appeal is assigned to the Court of Appeal: s 48(1)(a)(iv) and s 48(2)(f) of the Supreme Court Act.
There is no express or implied qualification on the right of appeal conferred by s 127 of the District Court Act. Neither the history of the provision, nor the absence of specific powers in relation to such an appeal, qualify the right of appeal granted. Nor does it qualify the duty of the Court to hear and determine such an appeal.

The History of the Legislation

The reasons for judgment of Basten JA set out the history of the appeal provisions and the history of those statutory provisions under which application could be made to the Supreme Court for a new trial in the District Court. Such an application was not strictly an appeal, but was treated as such for the purposes of sections 106 and 107 of the Supreme Court Act, as it then existed.
Further, under the prior statutes, application could be made to the District Court (as it can now) for a new trial. If the decision of the District Court on such an application were such as to be wrong in law, an appeal could be taken under the then s 128 of the District Court Act. But, if no error of law were made in that decision, no appeal could lie: see Anthoness v Bland Shire Council (1960) 77 W.N. 506; Hill v Cooke (1958) 75 W.N. 82. Nevertheless, theoretically, application could be made to the Supreme Court for a new trial, even though such an application may have been made to and refused by the District Court.
As earlier stated, an application to the Supreme Court for a new trial under the pre-1995 Act was not an appeal, but was, for certain purposes, treated as an appeal. The capacity of a party to approach the Supreme Court for a new trial was abolished with the repeal of s 127 of the pre-1995 District Court Act. The amendment in 1995 both repealed the provision granting a right to apply to the Supreme Court for a new trial and broadened the basis upon which an appeal could be pursued to include factual issues (e.g. verdict against the weight of evidence, excessiveness or inadequacy of damages) that had previously not been amenable to appeal, but only to a new trial application. The 1995 amendment referred to an appeal against a “decision” of a judge, as distinct from a “judgment or order” as is currently the position, but, if there be a distinction between those words, nothing of present relevance turns on it.
Of relevance to the construction of the current jurisdiction is the terms of s 127(4) in the pre-1995 Act. It declared that a new trial could be ordered “on the ground that a verdict, finding or assessment of the judge, whether sitting with or without a jury” was against the weight of the evidence. Thus, the legislature had, at that stage, treated a verdict of a judge, sitting with a jury, as a verdict of the judge.
It seems to me, therefore, that the dichotomy between an application for a new trial on the one hand and an appeal on the other, prior to the 1995 amendments, does not lead to the conclusion that the current s 127, granting a right to appeal, is not intended to deal with jury verdicts.

Current Powers of the Court

The reasons for judgment of Basten JA recite the current provisions of the Supreme Court Act (and Rules) dealing expressly with appeals from a jury verdict in proceedings in the Supreme Court. I agree with Basten JA that s 75A of the Supreme Court Act does not deal with appeals from the District Court of the kind here pursued.
I turn then to the provisions of Part 7 of the Supreme Court Act. Section 101 provides for a right of appeal to the Court of Appeal from a judgment or order of the Supreme Court in a Division, and does not affect an appeal from the District Court. Likewise, s 102 deals with a jury trial in the Supreme Court and not the District Court.
Section 105 of the Supreme Court Act applies sections 106 and 107 “where the appellant seeks a new trial or the setting aside of a verdict … after a trial with a jury in an action … in the District Court”. The current proceeding is an appeal seeking the setting aside of a verdict after a trial with a jury in an action in the District Court. Section 106 of the Supreme Court Act has no relevant application. Section 107 of the Supreme Court Act applies to allow the substitution of a verdict by the Court of Appeal instead of ordering a new trial. It does not limit the capacity to order a new trial.
Assuming, without deciding, that the words “and give such judgment and make such order as the nature of the case requires” (s 107) require as a precondition the satisfaction of s 107(b) (or, otherwise that the words grant the power only to make additional or ancillary orders), then s 107 applies only to jury verdicts where the order on appeal would be an order for damages (or a sum of money).
However, s 107 of the Supreme Court Act does not prevent, either expressly or impliedly, the exercise of a power to order a new trial. It is the grant of an alternative power to be exercised in the discretion of the Court.
Section 108 of the Supreme Court Act applies expressly only to appeals from proceedings in the Supreme Court where there has been a trial with a jury. Again, it provides an alternative power to the grant of a new trial.
As a consequence of the foregoing, there is no specific power (as distinct from jurisdiction) in relation to appeals from a judgment of a judge of the District Court sitting with a jury. Section 75A of the Supreme Court Act grants specific power in relation to non-jury trials.
But the absence of a specific power does not give rise to an implied limitation on the jurisdiction otherwise conferred. Such a limitation would arise only if the grant of jurisdiction either expressly or impliedly limited the power of the Court to grant a remedy of any kind. It is the corollary to the discussion by the High Court in Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150.
It would be otherwise if there were no power in the Court of Appeal to make any orders to correct the error. But the provisions of s 23, s 63 and s 91 of the Supreme Court Act and s 90 of the Civil Procedure Act 2005 would each allow the quashing of the judgment and an order remitting the matter back to the District Court for a new trial. Such provisions must grant power at least as extensive as s 23 of the Federal Court Act 1976: see Thomson, supra; and no other express provision expressly or impliedly requires a limitation on the jurisdiction conferred.

Conclusion

Nothing in the foregoing should be taken as a qualification on the general rule that it is only on certain limited bases that a judgment based on a jury verdict will be overturned: Swain v Waverley Municipal Council [2005] HCA 4; (2005) 250 CLR 517. The trial process must continue to have primacy, especially a trial process involving a jury: Swain at 519, [2] per Gleeson CJ.
But there is a right to appeal conferred by statute and, in my view, no express or implied statutory limitation preventing orders being made by this Court to give effect to the appeal. Those orders include an order for a new trial. The provisions of s 7A of the Defamation Act 1974, under which this trial proceeded, require a jury verdict on these issues and no general power could be used to qualify that requirement.
I would make the following orders:
(a) Appeal allowed in part;
(b)Judgment of Puckeridge DCJ giving a verdict for the second defendant in respect of the claim by the first plaintiff be set aside;
(c) New trial ordered;
(d)Respondent to pay the First Appellant’s costs, as agreed or assessed.

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AMENDMENTS:

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LAST UPDATED: 21 December 2007