Maitland v Nationwide News Pty Ltd
[2004] NSWCA 155
•14 May 2004
CITATION: Maitland & Anor v Nationwide News Pty Limited [2004] NSWCA 155 HEARING DATE(S): 8 October 2003 JUDGMENT DATE:
14 May 2004JUDGMENT OF: Mason P at 1; McColl JA at 5; Davies AJA at 81 DECISION: 1. Extend the time for filing the application for leave to appeal to 30 April 2003. 2. Grant the appellants leave to appeal upon their undertaking to file in the Registry of the Court within 48 hours a Notice of Appeal in the form of the draft handed to the Court and to pay the filing fee in respect thereof. 3. Dismiss the appeal. 4. Order the appellants to pay the costs of the appeal including the application for an extension of time. CATCHWORDS: DEFAMATION - PRACTICE AND PROCEDURE - appeal from jury decision - whether jury's finding that imputations not conveyed was one which no reasonable jury could reach - whether period of jury's deliberation so short as to suggest failure to perform its function - principles governing granting extension of time for filing application for leave to appeal. (D) LEGISLATION CITED: Defamation Act 1974 (NSW) s 7A
Supreme Court Rules 1970 (NSW) Pt 36 r 4, Pt 51 r 4
Workplace Relations Act 1996 (Cth) s 4, s 4A, Schedule 1BCASES CITED: Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
Outboard Marine Australia Pty Limited v Byrnes [1974] 1 NSWLR 27
Stollznow v Calvert [1980] 2 NSWLR 749PARTIES :
John Maitland (Claimant)
Construction Forestry Mining and Energy Union (Second Claimant)
Nationwide News Pty Limited (Opponent)FILE NUMBER(S): CA 40348/03 COUNSEL: R K Weaver (Claimants)
T D BlackburnSC/A F Gemmell (Opponent)SOLICITORS: R L Wyburn & Associates (Claimants)
Blake Dawson Waldron (Opponent)
LOWER COURTJURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 20665/01 LOWER COURT
JUDICIAL OFFICER :Levine J
CA 40348/03
SC 20665/01Friday, 14 May 2004MASON P
McCOLL JA
DAVIES AJA
FACTS
The appellants brought proceedings in the Supreme Court to recover damages in respect of defamatory imputations they alleged were conveyed by an article the respondent published in the Daily Telegraph (the “matter complained of”).
In a hearing pursuant to s 7A of the Defamation Act 1974 (NSW), the jury found that the appellants had failed to establish that the matter complained of conveyed any imputations concerning either appellant. Levine J entered judgment in the respondent’s favour.
The appellants appealed from the jury’s decision on three grounds:
1. that, considered individually, each of the jury’s answers was an answer that no reasonable jury properly directed could have given.
2. that, considered in the aggregate, the answers given by the jury demonstrated that the jury acted perversely.
3. that the speed with which the jury returned its verdict gave rise to the inference that the jury had misdirected itself as to its task and acted perversely.
The appellants sought an extension of time within which to seek leave to appeal. The application for leave to appeal should have been filed no later than 11 March 2003. It was filed approximately seven weeks later on 30 April 2003.
HELD per McColl JA (Davies AJA agreeing, Mason P dissenting), granting leave to appeal:
1. Where there are genuine issues to be litigated and the respondent has suffered no prejudice, an application for an extension of time for leave to appeal may be considered benignly: Outboard Marine Australia Pty Limited v Byrnes [1974] 1 NSWLR 27; Stollznow v Calvert [1980] 2 NSWLR 749; Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer (1998) 195 CLR 516 referred to.
2. The appellants ought to be granted an extension of time for filing the application for leave to appeal.
per McColl JA (Davies AJA and Mason P agreeing), dismissing the appeal:
3. The jury’s finding that the imputations were not conveyed could only be successfully challenged on appeal if they were decisions no reasonable jury could reach: John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 applied.
4. The jury’s finding that none of the imputations were conveyed was not one no reasonable jury could have reached.
5. The period of the jury’s deliberation was not so extreme and disproportionate as to suggest either bias on its part or a failure to apprehend its proper function: John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 referred to.
6. On an appeal from a s 7A trial the transcript of counsel’s addresses to the jury should be provided to the Court of Appeal as a matter of course.
ORDERS:
1. Extend the time for filing the application for leave to appeal to 30 April 2003.
2. Grant the appellants leave to appeal upon their undertaking to file in the Registry of the Court within 48 hours a Notice of Appeal in the form of the draft handed to the Court and to pay the filing fee in respect thereof.
3. Dismiss the appeal.
4. Order the appellants to pay the costs of the appeal including the application for an extension of time.
CA 40348/03
SC 20665/01Friday, 14 May 2004MASON P
McCOLL JA
DAVIES AJA
Judgment
1 MASON P: I have had the benefit of reading in draft the reasons of McColl JA.
2 I am not persuaded that it is just to extend time for bringing the present application for leave to appeal. The claimants and their legal advisers were actively considering whether or not to appeal form the earliest time yet they took no steps to alert the opponent about the matter until the summons was filed, well outside the time allowed in the Rules. Instructions to appeal were received in late March 2003, yet the summons was not filed until 30 April 2003. This Court virtually had to beg the claimants to proffer any explanation for their and their lawyer’s defaults and lack of consideration for the interests of the opponent.
3 I agree with McColl JA as to the substantive issues and her proposal as to the inclusion of a transcript of counsel’s address in the Court of Appeal record.
4 I would dismiss the summons with costs.
5 McCOLL JA: The claimants seek leave to appeal from a jury’s decision in a hearing before Levine J pursuant to s 7A of the Defamation Act 1974 (NSW) that the claimants had failed to establish that an article published by the respondent in the Daily Telegraph on 10 July 2001 conveyed any imputations concerning either claimant.
6 The claimants faced an initial hurdle of seeking an extension of time within which to seek leave to appeal. For the reasons which I detail below, I am of the view that leave should be granted.
7 The application for leave to appeal and the appeal were heard concurrently. As I am of the view that the claimants should be given leave to appeal, I shall refer to the respective parties as the first appellant (John Maitland), the second appellant (Construction Forestry Mining and Energy Union) and the respondent.
8 In my view the jury’s conclusion that none of the imputations were conveyed was not one no reasonable jury could have reached.
Extension of time for leave to appeal
9 The jury’s decision was given on 10 February 2003. Following the jury’s decision that none of the imputations was conveyed the trial judge, Levine J, entered judgment in the respondent’s favour.
10 The summons seeking an extension of time for seeking leave to appeal as well as leave to appeal was filed on 30 April 2003. No holding summons was filed. The respondent’s first ground of objection to the application for leave to appeal was that no explanation had been given as to why the application was not made within the 28 days limited by Pt 51 r 4 of the Supreme Court Rules.
11 Despite the respondent’s objection, when the matter was called on for hearing the appellants had not filed any evidence in support of the application for an order extending the time. When this matter was drawn to the attention of Mr Weaver, who appeared for the appellants, he submitted that there had been “minimal” actual prejudice to the respondent caused by the delay. While Mr Blackburn SC, who appeared with Mr Gemmell for the respondent, conceded that he could not point to any prejudice, he maintained his objection to the late filing both because of the absence of explanation and also because as in the respondent’s submission the appeal was hopeless, there was no ground for granting an extension of time.
12 The Court made it clear to the appellants that it was inappropriate to file an application for extension of time and not to condescend to proffer any evidence in support. Mr Weaver then sought, and was granted, the opportunity to bring forward evidence to explain the delay.
13 An affidavit was subsequently filed in Court sworn by the appellants’ solicitor, Mr Whyburn. The respondent objected to paragraph 6 of the affidavit as being hearsay. The Court advised the parties it would consider that objection together with the affidavit as a whole when considering its ruling on the application.
14 Mr Whyburn’s affidavit reveals that counsel advised on the prospects of bringing an appeal the day after the jury’s decision. Thereafter discussions were held with the first appellant in relation to an appeal. The appellants’ solicitors were advised that a decision about any appeal had to be referred to the National Executive Committee of the second appellant. According to Mr Whyburn’s recollection, in March 2003 the first appellant, who was the National Secretary of the second appellant, was regularly overseas in his capacity as President of an international federation of transport and mining unions. Formal instructions to proceed with the appeal were received in late March 2003. Counsel was briefed to draft appeal notices and advise in relation to the contents of the White Folder required in applications for leave to appeal. Follow-up emails were forwarded to counsel over a fortnight or so and the appeal papers received from counsel on 15 April 2003. It appears that shortly thereafter the employee who was handling the administrative work on the file went on annual leave and failed, due to oversight, to file the appeal papers until returning from that leave.
15 Mr Whyburn frankly acknowledged that while difficulties were experienced in obtaining instructions in relation to the appeal, the matter could also have been handled more expeditiously by the appellants’ legal advisors.
16 In considering whether the discretion to extend time for leave to appeal ought be granted, the Court is concerned to determine whether strict compliance with the rules will “work an injustice” upon the claimants: Gallo v Dawson (1990) 93 ALR 479 at 480 per McHugh J. In Outboard Marine Australia Pty Limited v Byrnes [1974] 1 NSWLR 27 at 30 the Court of Appeal (Reynolds, Hutley and Bowen JJA) held that “where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time”.
17 It is relevant to consider the prospects of success of the appeal. If it is clear that the appeal will fail in the sense that it is not “arguable” or not “fairly arguable”, that may militate against granting an extension of time: Jackamarra v Krakouer (1998) 195 CLR 516 at 529 [34] per Gummow and Hayne JJ (who dissented in the result but not in the principle to be applied in determining the outcome). It is also relevant to take into account the blamelessness of the party personally for the delay. The fault of a plaintiff’s solicitor in causing delay should not, as a matter of course, be attributed vicariously to the plaintiff: Stollznow v Calvert [1980] 2 NSWLR 749 at 753 per Moffitt P (with whom Hope and Mahoney JJA agreed).
18 The application for leave to appeal should have been filed no later than 11 March 2003. It was filed approximately seven weeks later on 30 April 2003.
19 The explanation proffered by the appellants’ solicitor can hardly be said to be impressive. Neither the appellants or their solicitors appear to have had more than passing regard to the time limited by the Supreme Court Rules for filing an application for leave to appeal. There is no indication that the appellants’ solicitors drew the appellants’ attention to the fact that any such appeal had to be filed by 11 March at the time they sought instructions concerning appealing. Having said that I would note that it appears from paragraph 6 of Mr Whyburn’s affidavit which I would admit (cf Pt 36 r 4 Supreme Court Rules) that the appellants’ solicitors sought urgent instructions in relation to the appeal on or about 12 March 2003. From that it might be inferred that by that stage they were conscious that the time limited by the Rules had expired.
20 By the time formal instructions to proceed with the appeal were received in late March 2003 a comparatively brief period had elapsed from when the application for leave to appeal ought to have been filed. Had the summons seeking leave to appeal been filed soon thereafter, the period in respect of which the extension was sought may only have been a matter of a fortnight or so. Thereafter, as I have already pointed out, responsibility for the substantive delay of a month or so lies at the feet of the appellants’ solicitors. That delay ought not in this case be sheeted home to the appellants.
21 The explanation for the delay is less than satisfactory. It amounts to blasé indifference to the Rules. Nevertheless the respondent properly concedes that it has suffered no prejudice. In my view, the appeal is not “hopeless” as the respondent submits. There are genuine issues to be litigated warranting benign consideration of the application for an extension of time. In my view, the appellants ought be granted an extension of time for filing the application for leave to appeal.
22 Taking this approach should not be seen as sanctioning the appellants’ failure to file evidence to support the application for an extension of time. Parties who seek the Court’s indulgence should provide a satisfactory explanation for their non-compliance with the times limited by the Supreme Court Rules.
Statement of the Case
23 The first appellant, as I have said, is the National Secretary of the second appellant. The second appellant is said to be an “organisation” pursuant to the Workplace Relations Act 1996 (Cth) which, according to s 4 of that Act, means that it is an organisation registered under the Registration and Accountability of Organisations Schedule (see also s 4A, Schedule 1B).
24 On 10 July 2001 the respondent published an article by Piers Akerman entitled “Militant Mobs find safe haven” in the Daily Telegraph (the “matter complained of”). I have set out the text of the matter complained of, with the paragraphs numbered as they were in Schedule A to the appellants’ Second Further Amended Statement of Claim, in the schedule to this judgment.
25 The matter complained of was illustrated by an image clearly intended to depict a person wearing a hard hat of the nature of those worn by workers on construction sites over which a garment similar to a balaclava with an opening only for the eyes had been pulled.
26 The first appellant complained that the matter complained of conveyed six imputations defamatory of him. They were:
- “5. (a) The First Plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, obstructed a police investigation by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police in that investigation.
- (b) The First Plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, engaged in standover tactics by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation a police investigation.
- (c) The First Plaintiff, as National Secretary of the Construction, Forestry, Mining and Energy Union, condoned violent, destructive rampages at the offices of employers.
- (d) The First Plaintiff, as National Secretary of the Construction, Forestry, Mining and Energy Union condoned a violent, destructive attack on the premises of the Johnson Tile company.
- (e) The First Plaintiff, as National Secretary of the Construction, Forestry, Mining and Energy Union, condoned the use of standover tactics to achieve union ends.
- (f) The First Plaintiff, as National Secretary of the Construction, Forestry, Mining and Energy Union, condoned the use of standover tactics in which the Johnson Tile company was threatened that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigators.”
27 The second appellant complained that the matter complained of conveyed five imputations of and concerning it. Those imputations were:
- “6. (a) The Second Plaintiff engaged in standover tactics by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with a police investigation.
- (b) The Second Plaintiff condoned violent, destructive rampages by union members at the offices of employers.
(c) The Second Plaintiff condoned a violent, destructive attack on the premises of the Johnson Tile company.
- (d) The Second Plaintiff condoned the use of standover tactics to achieve union ends.
- (e) The Second Plaintiff condoned the use of standover tactics in which the Johnson Tile company was threatened that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigators.”
28 At the s 7A hearing on 10 February 2003 publication was admitted. There were no issues as to identification. The only evidence was the matter complained of. Apart from that tender the trial comprised addresses by counsel for the appellants, counsel for the respondent and the trial judge’s summing up.
29 The first question the jury was required to answer was whether each appellant had established that the matter complained of, in its natural and ordinary meaning, conveyed to the ordinary reasonable reader each of the imputations (or imputations which did not differ in substance from them) relied upon by the respective appellant. To the extent that the jury answered “yes” to any of those imputations, it was then asked to consider whether the relevant appellant had established that the imputation to which an affirmative answer had been given was defamatory of that appellant.
30 According to the appellants’ summary of argument the jury retired to consider its verdict at approximately 3.20 pm on 10 February 2003 and indicated its preparedness to return at approximately at 3.35 pm. The verdict was delivered at 3.45 pm. According to the transcript of the summing up, the jury retired to consider its verdict at 3.10 pm. This accords with the respondent’s submissions.
31 The jury found that none of the imputations pleaded by either appellant was conveyed.
Issues on Appeal
32 The appellants complained that, considered individually, each of the answers given by the jury to the questions submitted to them was an answer that no reasonable jury properly directed could have given: John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; 77 ALJR 1657.
33 They further complained that, considered in the aggregate, the answers given by the jury to such questions demonstrate that the jury acted perversely.
34 The appellants also contended that the speed with which the jury returned its verdict gave rise to the inference that the jury had misdirected itself as to its task and acted perversely.
- The Summing Up
35 The appellants did not provide a transcript of counsel’s addresses to the jury in the White Book. The respondent did not complain or furnish the transcript itself. The parties left it to the Court of Appeal to glean the nature of their addresses to the jury from the summing up.
36 The trial judge’s summing up took the following course.
37 After giving the jury general directions including making it clear to them that each plaintiff’s case was to be considered separately, imputation by imputation, the trial judge drew the jury’s attention to the fact that the fundamentally important paragraphs in the matter complained of were paragraphs 12 and 13, 22, 23 and 24.
38 He explained that the parties were at issue as to whether any allegation of threats, blackmail, or of violence could be laid at the feet of either appellant. He pointed out that the appellants’ counsel had argued that as a general proposition, when the whole of the matter complained of was read, there could be “no doubt in your mind that the relevant conduct is sheeted home to either Mr Maitland or the Union”. In contrast, he pointed out that the respondent had submitted that there was no threatening or condonation but that the matter complained of was saying nothing more than that either Mr Maitland or the Union had achieved a realistic settlement of a possible area of dispute in the manner, distasteful though it might be, that unions operate vis à vis industry.
39 The trial judge drew the jury’s attention to the use of the word “condoning” in the imputations and to the respondent’s submission that, particularly in relation to the first appellant, the matter complained of said no more than that he “announced” the deal. The trial judge pointed out that the respondent had submitted that the matter complained of was silent as to anything else that the first appellant was said to have done other than to “announce”.
40 The trial judge drew the jury’s attention to the first appellant’s submission that as he held the position of National Secretary of the Union, by announcing the deal with the tile company, a reasonable reader reading between the lines would conclude that he had played some part in procuring, organising or reaching the deal.
41 He dealt with the respondent’s further arguments in relation to the question whether the first appellant had condoned in the sense complained of in the various imputations. The first proposition was that the jury should consider whether by announcing a deal a reasonable reader would understand that the announcer had condoned the conduct or played some part in the activities leading up to the deal, the violence which, according to the matter complained of, had been violence of the AMWU, not the second appellant. He reminded the jury of the respondent’s argument that even if a reasonable reader reading between the lines would conclude that the National Secretary had played some part in the deal being arranged, even that level of participation fell short of the notion of condoning the conduct of the other.
42 The trial judge drew the jury’s attention bluntly to the extreme positions which the appellants on the one hand and the respondent on the other had apparently taken. He said:
- “To be perfectly candid, members of the jury, if you find some difficulty in resolving the competing submissions, I can understand that. The plaintiff, the defendant says, has pitched its case beyond any reasonable construction of this article. The plaintiff says, no, it pitched it within its very boundaries. When you take it from the beginning to the end, and you read it through from beginning to end, and in particular, paragraphs 12 and 13 link up in the end with paragraph 22.”
43 In relation to the imputation of obstructing a police investigation by threatening an employer, the trial judge drew the jury’s attention to the respondent’s argument that the matter complained of was incapable of conveying that what was being threatened was carried out by the second appellant.
44 He also directed the jury that they should consider whether the ordinary reader would understand the matter complained of to be conveying that the appellants condoned the acts of the AMWU rampaging through the premises as described in the matter complained of either by entering into an agreement or by the second appellant volunteering its assistance to the “renegade AMWU”.
45 No further directions were sought by counsel after the trial judge concluded his summing up.
The Appellants’ submissions
Submissions on Appeal
46 The appellants acknowledged that they bore a heavy burden in seeking to overturn the jury’s verdict: John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657. Nevertheless, they submitted that the jury’s answers were such that no reasonable jury, properly directed, could have given. The appellants submitted that the brief time of the jury’s retirement indicated that the jury had acted in an impressionistic way rather than putting themselves in the position of the ordinary reasonable reader required to determine whether each of the eleven imputations was conveyed by the matter complained of.
47 The appellant submitted that when the whole matter complained of was read, especially paragraphs 12 and 13, the meanings pleaded arose and that no jury acting reasonably could have found otherwise.
48 Mr Weaver argued that the whole matter complained of conveyed the meaning that the second appellant, on behalf of the AMWU, had interfered with Johnson Tiles to ensure that the police received no assistance in their investigation of the attack at that company’s premises.
49 The appellants submitted that the illustration and the emotive headline made it clear that the matter complained of was openly critical of unions and, specifically, the appellants. They submitted that paragraphs 4 to 11 set up serious allegations of violent behaviour at the premises of two companies including Johnson Tiles.
50 The appellants submitted that paragraphs 12 and 13 “leave no doubt as to the meaning intended and conveyed by the writer”.
51 The first appellant submitted that imputation 5(a) arose from paragraphs 12 and 13 and that it was clear from paragraph 22 that the conduct referred to was to be attributed to the first appellant. The first appellant submitted that the fact that it was he who was said to have obstructed the police investigation was clear from:
(a) the fact that he is identified as the National Secretary of the Union;
(b) the fact that he is identified as having announced the deal with the tile company;
(c) the fact that the Union was identified as “his Union”; and
(d) the statement attributed to him that he had “nothing to hide” but would not cooperate with a “political circus”.
52 Mr Weaver acknowledged that the matter complained of did not make clear the nature of the deal the first appellant had announced. Nevertheless he submitted that the matter complained of conveyed that part of the deal involved stymying the police investigation. He argued that “the tenor of the article, drawn from the contents of paragraphs 16 to 27 inclusive, deplores a type of behaviour and sets up the first appellant as an instigator and leader of that behaviour”.
53 Imputation 5(b) was also said to arise from paragraphs 12, 13 and 22 of the matter complained of.
54 The appellants submitted that once the ordinary reasonable reader was satisfied that the respective appellants had taken the active roles identified, in relation to the first appellant, in imputations (a) and (b) and in relation to the second appellant in imputation (a), it followed that each appellant had “condoned” violence and standover tactics.
55 In addition to that general submission, Mr Weaver argued that imputations 5(c), (d), (e) and (f) clearly arose from paragraphs 14 and 22.
56 Insofar as the second appellant was concerned, Mr Weaver submitted that “on any reading of the matter complained of imputation 6(a) must arise”. He argued that imputation 6(a) was “all but baldly stated in paragraphs 12 and 13” and that “no jury acting reasonably could have found that the imputation did not arise”.
57 I have already set out the general submission advanced in relation to the “condoning” imputations. In addition, the written submissions starkly asserted on behalf of the second appellant that “similarly, imputation 6(b) – (e) all arise”.
The respondent’s submissions
58 The respondent submitted that the matter complained of stated that the second appellant “apparently made it clear to [Johnson Tiles] that it could encounter difficulties with a $6 million extension unless it cooperated with the trade union”. The respondent submitted that none of this required the jury to draw the necessary inferences in the first appellant’s favour so as to find any of the imputations upon which he relied was conveyed. The respondent submitted that it was “fanciful” to suggest that the case against the jury’s answers was “clear and beyond argument”.
59 The respondent drew attention to the fact that the first appellant was not mentioned until six paragraphs from the end of the matter complained of when paragraph 22 identified him as the National Secretary of the second appellant who had announced an undefined deal with Johnson Tiles. The respondent argued that even if it was the jury’s view that the second appellant had engaged in threatening behaviour, it was not apparent that the first appellant had been involved at any stage prior to the announcement.
60 In relation to imputations 5(c) – (f), the respondent submitted that even if the jury concluded that the matter complained of conveyed that the first appellant knew about or was even involved in putting together a deal to put the industrial trouble behind both Johnson Tiles and the AMWU, it did not follow that the matter complained of also conveyed that the first appellant had condoned the occurrence of standover tactics or violent, destructive rampages.
61 Mr Blackburn said that he squarely put to the jury the respondent’s argument that the ordinary reasonable reader would not understand the matter in the sense relied upon by the appellants. He had suggested to the jury that the ordinary reasonable reader would understand the appellants’ intervention (assuming, I gather, that the jury might conclude the first appellant’s involvement pre-dated the announcement of the “deal”), as a bit of “heavy-handed realpolitik” whereby they bluntly told Johnson Tiles that it could encounter difficulties with its extension if it did not “back off”, but that the ordinary reasonable reader would not understand the matter complained of as saying that the second appellant was, itself, going to be the source of the tactics on the $6 million extension site referred to in paragraph 13.
62 The respondent submitted that as it put that interpretation of the matter complained of “fairly and squarely to the jury” that was an interpretation open to the jury which it must have accepted.
63 It submitted that if the jury accepted that proposition then it also followed that the jury was not obliged to accept the notion that the appellants condoned the various problems at the building site or the violence at Johnson Tiles premises.
64 The respondent submitted that nothing could be drawn from the period the jury spent deliberating upon its verdict. According to its note the jury retired at 3.10 pm and returned at 3.45 pm. It noted that the jury had had the matter complained of and the questions over the luncheon adjournment. It submitted that there was nothing unusual about a jury, deliberating for approximately 30 minutes (to use the mean of the parties’ competing submissions about the period the jury deliberated) in a s 7A trial where the matter complained of was not lengthy.
65 It submitted that even if the appellants’ record was accurate, it would not provide grounds for an inference that the jury had failed to perform their duty.
Consideration
66 In my view the jury’s decision that none of the imputations was conveyed was not one no reasonable jury could reach.
67 The matter complained of explored the reasons why, in the author’s opinion, the Federal Government should hold an inquiry into allegations of corruption and criminal activity in the construction sector. It used various illustrations, including the conduct allegedly engaged in by “ultra militant members” of the AMWU, to demonstrate why, according to the author, such an inquiry was called for.
68 The role of the appellants was, however, not clearly defined. It was common ground between the parties that paragraphs 12, 13 and 22 of the matter complained of were critical to the success of the appellants’ argument as to whether or not the various imputations were conveyed.
69 At the heart of the appellants’ argument was the proposition that the matter complained of could be read as conveying that the “deal” which Johnson Tiles had entered into with the second appellant included persuading the company not to cooperate with police investigating the attack at its premises.
70 An alternative approach was that the conduct attributed to the second appellant in paragraph 13 in respect of what it had “made … clear to” Johnson Tiles should be read as conveying that the Union had threatened Johnson Tiles and that because of that threatening behaviour the matter complained of conveyed that the first appellant had “obstructed a police investigation” (imputation 5(a)) and that each appellant had engaged in standover tactics (imputations 5(b) and 6(a)).
71 The alternative argument advanced by the respondent which I have already set out was that paragraphs 12 and 13 in particular should be understood as conveying that the Union had engaged in no more than typical union activity and brought home, albeit perhaps bluntly, to Johnson Tiles the necessity to resolve an industrial dispute to ensure that it did not escalate.
72 As the trial judge made clear to the jury the parties’ approaches to the matter complained of were widely divergent. The jury was confronted with a stark choice as to which position it accepted.
73 The jury received the traditional directions as to the qualities of the ordinary reasonable reader, into whose shoes they were required to place themselves. They were directed, in essence, that the ordinary reasonable reader was fair-minded with a capacity for loose thinking and reading between the lines. They were also directed that the ordinary reasonable reader did not hold irrational prejudices and drew sensible and rational rather than “stupid” conclusions.
74 Acceptance of the appellants’ argument required the jury to engage in a significant step: to infer from the announcement of an undefined “deal” that the appellants had engaged in the egregious conduct set out in the imputations. At its highest the conduct which the matter complained of directly laid at the respective appellants’ feet was that the first appellant had “announced the deal” (para 22) which the second appellant had done with Johnson Tiles (para 12) and that the second appellant had made it clear to the company that it could encounter difficulties with some building work if it did not co-operate with the Union (para 13). While that was an argument a reasonable jury, charged with the directions concerning the ordinary reasonable reader to which I have referred, might reach, it was not, as the appellants submitted, “clear and beyond argument”.
75 The respondent’s argument was, in my view, an equally available interpretation of the matter complained of. It was one which a reasonable jury could accept.
76 Little can be drawn, in my view, from the period of time the jury deliberated. Whether it was 20 to 25 minutes as submitted by the appellants or 35 to 40 minutes as submitted by the respondent, the fact is that the matter complained of was short, it had been before the jury since the trial commenced that morning and no doubt detailed addresses were presented by counsel as well as the trial judge’s pellucid summing up. The issues had been well and truly brought home to the jury by the time they retired.
77 In my view, having regard to the fact that the matter complained of was short, the trial was brief and the battle lines were starkly drawn between the parties, it could not be said that the period of the jury’s deliberation was so extreme and disproportionate as to suggest either bias on its part or a failure to apprehend its proper function: cf John Fairfax Publications Pty Limited v Rivkin, above, at [66] per Kirby P.
78 In my view the appeal should be dismissed.
Note
79 In my view on an appeal from a s 7A trial the transcript of counsel’s addresses to the jury should be provided to the Court of Appeal as a matter of course.
Orders
80 I would make the following orders:
1. Extend the time for filing the application for leave to appeal to 30 April 2003.
2. Grant the appellants leave to appeal upon their undertaking to file in the Registry of the Court within 48 hours a Notice of Appeal in the form of the draft handed to the Court and to pay the filing fee in respect thereof.
4. Order the appellants to pay the costs of the appeal including the application for an extension of time.3. Dismiss the appeal.
81 DAVIES AJA: I agree with McColl JA.
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1. THE DAILY TELEGRAPH, TUESDAY JULY 10 2001, PAGE 17
2. Militant mobs find safe haven
3. Piers Akerman
4. If ALP leader Kim Beazley, his trade union mates and the bulk of the left-leaning media had their way, former industrial relations minister Peter Reith would forever be linked with the balaclava-clad security forces needed to clear dock workers from the wharves.
5. The fact that the waterfront had historically been a hotbed of corruption and the home of some of the nation’s worst criminals was conveniently overlooked.
6. Just as conveniently ignored is the fact that the docks are now reformed to a large degree and the levels of production the MUA had claimed were impossible are now the norm.
7. Peter Reith achieved the unachievable in the face of vehement and sometimes violent opposition from the worst elements of the Labor Left, supported by such people as Jennie George and the Premier of NSW Bob Carr.
8. Now the balaclavas are back and are being worn by the ultramilitant members of the Australian Manufacturing Workers Union.
9. And despite a well-documented report of a rampage through the offices of Skilled Engineering in Victoria, during which a balaclava-clad mob of about 40 unionists, allegedly led by the AMWU’s state boss Craig Johnston ran riot, Labor is still protecting its trade union mates.
10. According to the police reports, the mob smashed its way into Skilled Engineering’s premises with a crowbar then proceeded to demolish computer equipment and other office furniture, before systematically smashing windows with chairs, leaving the terrified staff to prepare an inventory of the extensive damage, estimated at about $300,000.
11. A similar mob had attacked another company, Johnson Tiles, earlier the same day, damaging manufacturing equipment and leaving the staff shaken.
12. Police have charged six people including Johnston over the rampage at Skilled Engineering but it has now emerged that Johnson Tiles is refusing to co-operate with police investigators after entering into a deal with the Construction Forestry Mining and Energy Union, and no charges have been laid relating to the havoc caused at the tile company.
13. The nation’s main construction union apparently made it clear to the company that it could encounter difficulties with a $6 million extension unless it co-operated with the trade union, which volunteered its assistance to the renegade AMWU.
14. It has also been reported in The Sydney Morning Herald that a group of senior union leaders attempted to pressure the Victorian Premier Steve Bracks and ACTU secretary Greg Combet to prevent charges being laid.
15. Obviously, the whole situation reeks. Don’t be lulled in a false sense of security because these recent events occurred in Victoria. The same attitude to the law is to be found in NSW.
16. Just over a month ago, the NSW branch secretary of the nation’s CFMEU main construction union, Andrew Ferguson, had his authority to enter building sites revoked by the Australian Industrial Relations Commission.
17. The revoking of Ferguson’s “right of entry” permit followed complaints by a CSR subsidiary, CSR Humes, that Ferguson obstructed work.
18. With Labor governments in all states except South Australia, it should come as no surprise that state industrial relations ministers are opposed to Federal Government plans to hold an inquiry into allegations of corruption and criminal activity in the construction sector.
19. In the words of the harlot Mandy Rice Davies, they would, wouldn’t they?
20. The Federal Government, which had been reviewing a 10-page report prepared by the Employment Advocate, Mr Jonathan Hamberger, into allegations of money laundering, bribery, theft, fraud, kickbacks for union officials, mis-use of union funds, false invoicing, employment of illegal immigrants and breaches of company and tax laws, before the recent violent rampages in Victoria has yet to announce whether it will conduct a royal commission.
21. The Federal Opposition’s industrial relations spokesman, Arch Bevis, has attacked the report and planned inquiry as having “all the trimmings of a cheap political witch-hunt”.
22. The national secretary of the CFMEU, John Maitland, who announced the deal with the tile company, said his union had “nothing to hide” but added it would not co-operate with a “political circus”.
23. Combet said the Federal Government was trying to use the union movement as part of its re-election strategy.
24. Try to tell that the workers who watched the balaclava-clad thugs who smashed their way into their workplaces.
25. Union corruption must be stamped out wherever it appears.
26. The Federal Opposition stands to lose if it tries to prevent an inquiry.
27. It should show that it has clean hands by offering to participate and co-operate with any investigation instigated by the Federal Government.
Last Modified: 05/17/2004
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