Mallik v McGeown

[2008] NSWCA 230

New South Wales

Court of Appeal

CITATION:	Mallik v McGeown & Anor [2008] NSWCA 230 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 August 2008
JUDGMENT DATE:	26 September 2008
JUDGMENT OF:	McColl JA at 1; Campbell JA at 128; Bell JA at 129
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	DEFAMATION – trial – whether jury determination that imputation the plaintiff was demented was not defamatory was one no reasonable jury could reach – whether jury determination that imputations not conveyed by publication was one no reasonable jury could reach – Defamation Act 1974 s 7A(3) - APPEAL AND NEW TRIAL – misdirection by trial judge – whether primary judge misdirected jury on the test for determining whether an imputation is defamatory – whether alleged misdirection led to a substantial wrong or miscarriage of justice – Uniform Civil Procedure Rules 2005 Pt 51.53 - APPEAL AND NEW TRIAL – non-direction by trial judge – whether substantial wrong or miscarriage of justice sufficient to warrant new trial order where trial judge did not direct jury on case not raised by party – Uniform Civil Procedure Rules 2005 Pt 51.53 - APPEAL AND NEW TRIAL – whether primary judge’s directions sufficient to cure submissions by respondents’ counsel – Uniform Civil Procedure Rules 2005 Pt 51.53 - LEGAL PRACTITIONERS – duty to the court – misdirection as ground of appeal – duty of counsel to specify at trial part of summing-up complained of and redirections sought. (D)
LEGISLATION CITED:	Defamation Act 1974 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
CATEGORY:	Principal judgment
CASES CITED:	Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Australian Broadcasting Corporation v Reading [2004] NSWCA 411 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 Broome v Agar (1928) 138 LT 698 Burchett v Kane [1980] 2 NSWLR 266(n) Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143 Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21 Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521. Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 Gardener v Nationwide News Pty Limited [2007] NSWCA 10 Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 4 All ER 732 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 John Fairfax Publications Pty v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 Jones v Skelton [1963] SR (NSW) 644; [1963] 3 All ER 952 Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 Kelly v Daily Telegraph Newspaper Co (1897) 18 LR (NSW) 358 Lutwyche v Jiweni Pty Ltd (Court of Appeal, 30 July 1998, unreported, BC9803438) Mallik v McGeown [2007] NSWSC 438 Mastronardi v State of New South Wales [2007] NSWCA 54 Morawski v State Rail Authority (NSW) (1988) 14 NSWLR 374 Morgan v Lingen (1863) 8 LT 800 R v Hines (1991) 24 NSWLR 737 Radio 2UE Sydney Pty Ltd v Chesterton [2008] NSWCA 66; (2008) Aust Torts Reports 81-946 Reader’s Digest Services Pty Limited v Lamb [1982] HCA 4; (1982) 150 CLR 500 Singleton v Ffrench (1986) 5 NSWLR 425 Tory v Megna [2007] NSWCA 13 Uren v Australian Consolidated Press Ltd (1965) 66 SR (NSW) 271 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581
TEXTS CITED:	Gordon, Tantillo, Feldman and Perrone, "Attitudes regarding interpersonal relationships with persons with mental illness and mental retardation” (2004) 70(1) Journal of Rehabilitation 50 P Milmo and WVH Rogers, Gatley on Libel and Slander, 10th ed (2004) Sweet & Maxwell JG Fleming, The Law of Torts, 9th ed (1998) LBC Information Services
PARTIES:	Therese Mallik - Appellant William McGeown - First Respondent Hunter Valley Independent Newspapers Pty Ltd - Second Respondent
FILE NUMBER(S):	CA 40356 of 2007
COUNSEL:	M J Neil QC /D A Caspersonn - Appellant L Evans - Respondents
SOLICITORS:	Harris Wheeler - Appellant N/A - Respondents

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 20255 of 2006
LOWER COURT JUDICIAL OFFICER:	Hall J
LOWER COURT DATE OF DECISION:	4 May 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	[2007]NSWSC 438

CA No: 40356/2007
SC No: 20255/2006

McCOLL JA
CAMPBELL JA
BELL JA

26 September 2008

Therese Mallik v William McGeown & Anor

The appellant brought proceedings to recover damages in respect of an article published by the respondents, entitled “Witness sees ghost over cremator”. She alleged that the matter complained of conveyed an imputation that she was “demented” (“imputation (a)”) and two other imputations (“imputation (b)” and “imputation (c)”). At a trial conducted pursuant to s 7A(3) of the Defamation Act 1974, a jury found the matter complained of conveyed imputation (a), but that it was not defamatory. The jury found imputations (b) and (c) were not conveyed.

The appellant’s case at trial was that imputation (a) was defamatory because it was disparaging of her. On appeal, she maintained that argument but submitted in the alternative that the Court could nevertheless consider the jury’s verdict on the basis that imputation (a) was defamatory even though it was non-disparaging because it might tend to cause people to shun and avoid her.

The appellant also complained about directions given by the primary judge. She submitted that the primary judge had erred in his directions to the jury as to the test for when a disparaging imputation was defamatory. She also submitted the primary judge gave insufficient directions to cure various parts of counsel for the respondents’ address to the jury.

Held, dismissing the appeal (per McColl JA, Campbell and Bell JJA agreeing):

In relation to imputation (a)

1 It was open to a jury applying contemporary community standards to conclude that imputation (a) was not disparaging, and therefore not defamatory: (at [56] – [58]).

2 The primary judge misdirected the jury on how to determine whether an imputation was defamatory: (at [68] – [71]).

Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449; Reader’s Digest Services Pty Limited v Lamb [1982] HCA 4; (1982) 150 CLR 500; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657; John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 referred to.

3 In order to determine whether a new trial should be ordered the Court had to determine whether a substantial wrong or miscarriage of justice had occurred and, to that end, had to determine whether imputation (a) was defamatory: (at [64]).

Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 applied.

4 A new trial should not be ordered because, although the primary judge had misdirected the jury, there was no substantial wrong or miscarriage of justice because imputation (a) was not disparaging in light of contemporary community attitudes to mental disability: (at [77])

Morgan v Lingen (1863) 8 LT 800; Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581 referred to.

5 It was not in the interests of justice to order a new trial to permit the appellant to run a “shun and avoid” case where that case was not raised at trial: (at [88]-[89]).

As to imputations (b) and (c)

6 The jury’s determination that neither imputations (b) or (c) were conveyed was not one that no reasonable jury could reach: (at [97] – [102]).

John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657; Gardener v Nationwide News Pty Limited [2007] NSWCA 10 referred to.

As to the primary judge’s directions

7 The primary judge’s directions were adequate to cure issues he perceived arose from counsel for the respondents’ address to the jury: (at [113).

Observations in relation to the assistance legal practitioners should give the Court

8 The primary judge’s direction to the jury as to the meaning of defamatory ought to have been discerned by experienced defamation counsel who should have afforded proper assistance to the primary judge by way of corrective submissions: (at [71])

R v Hines (1991) 24 NSWLR 737 referred to.

9 There is an onus on counsel to seek in clear terms any redirection which he or she regards as necessary to correct, for instance, an error or omission in the summing up: (at [110]).

Singleton v Ffrench (1986) 5 NSWLR 425; Lutwyche v Jiweni Pty Ltd (Court of Appeal, 30 July 1998, unreported, BC9803438) referred to.

(1) Appeal dismissed with costs.

********** - 1 -

CA No: 40356/07
SC No: 20255/06

McCOLL JA
CAMPBELL JA
BELL JA

Friday 26 September 2008

Therese Mallik v William McGeown & Anor

Judgment

1 McCOLL JA: Therese Mallik, the appellant, appeals from the decision of a jury in a trial conducted pursuant to s 7A(3) of the (the “1974 Act”) to determine whether an article William McGeown and Hunter Valley Independent Newspapers Pty Ltd, the respondents, published in the Cessnock Independent on 25 October 2005, “Witness sees a ghost over cremator” (the “matter complained of”), in its natural and ordinary meaning conveyed three imputations of and concerning the appellant and, if it did, whether the imputations conveyed were defamatory of her. Her appeal is brought pursuant to s 102 of the Supreme Court Act 1970.

2 The matter complained of stated:

“ WITNESS SEES A GHOST OVER CREMATOR

Therese Mallik of Nulkaba leader of the Nulkaba Residence Group against the cremator at St. Patricks was one of a number of people who gave evidence at the Land and Environment Court held at Cessnock. In her evidence she claimed to have seen a ghostlike figure in the clouds.

She said she was also concerned with issues raised in the site inspection on day one of the hearing which was part of the formal evidence given in court.
Commissioner Stanford Watts after hearing all the evidence reserved his judgement which should be handed down in about three weeks as to whether the number of bodies burnt at St. Patrick’s cremator can be increased to 800.
The owners of the cremator appealed against a decision by Cessnock City Council to reject an expansion application and to extend their operating hours and reduce the crematorium chamber from 900 degrees to 700 degrees.”

3 At the s 7A trial before Hall J and a jury of four, the appellant argued that the matter complained of conveyed the following imputations and that each was defamatory of her:

“(a) the plaintiff was demented;

(b) the plaintiff gave evidence in the Land and Environment Court that was worthless, absurd and lacking in any credibility; and

(c) the plaintiff was an irrational person in that her word could not be believed because she said she saw imaginary things.”

4 The jury found that the matter complained of conveyed imputation (a), but that it was not defamatory. It found imputations (b) and (c) were not conveyed.

Grounds of appeal

5 The appellant relies on the following grounds of appeal:

1. The jury’s determination that imputation (a) was not defamatory was one that no reasonable jury, properly directed, could reach.

2. The jury’s determination that imputation (b) was not conveyed was one that no reasonable jury, properly directed, could reach.

3. The jury’s determination that imputation (c) was not conveyed was one that no reasonable jury, properly directed, could reach.

4. His Honour erred in his directions to the jury as to the meaning of defamatory.

5. His Honour erred in that his directions to the jury were inadequate and/or insufficient to correct submissions of counsel for the Respondents as to:

(i) the factual premise that the Appellant had in fact actually given the evidence as reported in the matter complained of;
(ii) the intentions of the Respondents;

(iii) that the ordinary reasonable reader would have background knowledge of what is going on in the article and would conclude ‘here she goes again’, and the robustness or otherwise of the Appellant;

(iv) what in fact a judge would make of such evidence given in a court of law and that the jury should approach their task as if they were a judge in a court hearing such evidence;

(v) that the Appellant’s claim was trivial and a storm in a teacup;

(vi) [abandoned]
(vii) matters that related to issues of defences and damages;
6. Further, his Honour’s directions were inadequate and/or insufficient in light of substantial media publicity about the trial.

The course of the trial

6 The s 7A trial commenced on 10 May 2005 and concluded the following day. The matter complained of was tendered, becoming exhibit A, while the questions for the jury became exhibit B. Counsel for the appellant Mr D A Caspersonn, addressed the jury, followed by Ms L Evans for the respondents. The primary judge then summed up. The transcript does not record the length of the jury’s deliberations.

7 During her address to the jury, counsel for the respondents made a number of submissions which the appellant argues were impermissible and which are the subject of ground 5. She said:

“The whole flavour of the article is death, crematoria…it’s not far-fetched that you would refer to something as being ghostlike when you are giving evidence about a crematorium. You could even say that it’s a flourish in her evidence…I mean is it outside the ordinary reasonable reader what they could have found or read into the article that’s something to do with a by-product of the crematorium process?”
“But looking at the title you might think Cessnock Independent, the word independent, won’t that put the ordinary reasonable reader on notice that this is a publication which takes perhaps a view on important local issues…think that the word independent in the very title of the paper shows that this is a paper which takes a stand on issues…”
“…This is a serious article that the defendants take very seriously, I submit…There is no question that the defendants intend in this article to be taken seriously…”
“Now the evidence given by the plaintiff in opposition to the appeal is considered by the defendant as worthy of putting on the front page…And he [the first defendant] is taking her seriously, I submit the ordinary reasonable reader would find, he is taking her seriously…And the fact that the defendant did take the matter seriously…But my submission is that the defendants took it seriously…”
“Now the ordinary reasonable reader would think that the defendant was entitled to mention an interesting piece of evidence that happened in the case. It is a pretty dry topic. It’s all pretty dry stuff, so you may find that that’s why an interesting piece of evidence which the defendant considered newsworthy was put in that article…”

8 Mr Caspersonn argued that these submissions proceeded on the basis that the appellant in fact gave the evidence referred to in the matter complained of and that this would lead to the jury considering the truth of the article, which was not relevant to the s 7A trial. Secondly, he contended the submissions raised the intention of the respondents, which was also not relevant. The appellant’s written submissions on appeal also complained that Ms Evan’s submissions impermissibly suggested pro-respondents motives such as the respondents taking a stand on issues, free speech and the like, which raised elements of defamation defences and, again, were irrelevant.

9 No reference was given to the trial transcript suggesting such complaints were made at trial. Although, as the later discussion reveals, while failure to complain at trial is not fatal to a complaint on appeal, it is a matter to be taken into account in any final discretionary determination. The primary judge ordered counsel for the respondents to withdraw these parts of her address so as not to suggest that the appellant gave the evidence. Ms Evans sought to comply with that direction. However, after she had closed her address, Mr Caspersonn took issue with aspects of this address too, in substance submitting that Ms Evans had not corrected her earlier submissions to the jury.

10 His first complaint arose from Ms Evans’ statement:

“I submit that goes to the article being taken seriously by the defendant. I also mention that you can expect, or the ordinary reasonable reader will expect, some strong views from the newspaper called the Cessnock Independent.”

11 Mr Caspersonn contended this statement impermissibly referred to the respondents’ intentions and beliefs, and distracted the jury from its task of considering the ordinary reasonable reader’s reaction to the matter complained of.

12 Mr Caspersonn’s second complaint arose from Ms Evans’ statement:

“I’d also say that the ordinary reasonable reader might think that every day a judge or commissioner in this case would hear perhaps odd bits of evidence…A judge or commissioner must take that seriously and weigh it up. So I submit the plaintiff was giving evidence in a court case and it was taken seriously by the defendants…For example, the judge might say I believe this witness gave truthful evidence, however I find there was not a ghost in the clouds and make his decision [This is by way of submission, I don’t ask you to find that happened in this case, because we don’t go into what the truth or falsity was]. Also, there is nothing in the article, I submit for the ordinary reasonable reader to think that the plaintiff did not believe her evidence. So what’s put, I submit, possibly from imputation B, but definitely from imputation C, I am sorry to consider them together at this point, but there is nothing to say that she didn’t take her own evidence seriously.”

13 Mr Caspersonn complained that this statement again reinforced the suggestion that the appellant actually gave the evidence, and did so believing it, again impermissibly raising the truth of the matter complained of. Further, he contended that the statement impermissibly invited the jury to accept the proposition that there was nothing out of the ordinary for judges to hear evidence that no rational person could give, and that judges could pick and choose what is cogent evidence.

14 Mr Caspersonn’s third complaint arose from Ms Evans’ statement:

“She may have said something in court that was newsworthy according to the defendant because they published an article purporting to refer to what she said…Back on the point of that article – takes the purported evidence seriously for the reason outlined. I submit the ordinary reasonable reader might think that this is the very reason why any reference to ghostlike was newsworthy. That might be why it is on the front page because it is an important local issue taken up by the Cessnock Independent and they consider that part newsworthy [not going to the truth of it].”

15 Mr Caspersonn again contended this statement raised the fact that events referred to had occurred and, again, the intention of the respondents. In his written submissions he argued this statement also raised elements of defences such as public interest. Again, I have not been able to identify that complaint in the trial transcript. In any event, in my view the jury would not have turned its mind to issues of public interest let alone the terms of considering it as an issue relevant to the questions posed for its determination.

16 Ms Evans also submitted to the jury:

“The ordinary reasonable reader might wonder why, if demented, this person was giving evidence? The ordinary reasonable reader might consider that as the head of the group the plaintiff might be robust enough to take even mild criticism but I don’t even put this as mild criticism. At the most I submit it says ‘here she goes again’. Now the ordinary reasonable reader sitting in Cessnock, perhaps with a background of what is going on in this article which we don’t know, perhaps would think ‘here she goes again’. They might even raise an eyebrow, but it doesn’t go nearly as far as the plaintiff is demented.”

17 Mr Caspersonn complained that the words “here she goes again” also raised the issue of truth by asserting that the appellant had given the evidence referred to in the matter complained of and had done so on a previous occasion. He argued that this was reinforced by the reference to the ordinary reasonable reader in Cessnock having background knowledge that the appellant had given such evidence before. He also contended that Ms Evans’ submission raised the effect of the imputations on the appellant, a matter going only to damages.

18 Mr Caspersonn’s final complaint about Ms Evans’ address arose from her statement:

“…This was an important local issue and based on the article going back to the article only…The ordinary reasonable [sic, reader] in Cessnock may know something of the background. We don’t know. We don’t have the benefit of knowing the background…This may have been something worthy of raising an eyebrow in what is a dry article otherwise, apart from the headline and the end of paragraph 1. And I submit that the defendant thought it was [not going to the truth or falsity of it]. … It is certainly open to you that this is all a storm in a teacup, in my submission and I ask that you find it is a storm in a teacup.”

19 Mr Caspersonn submitted that, as with previous statements, this submission raised the respondents’ intention, suggested to the jury that there was more to the story than what was in the matter complained of, and that the people of Cessnock would know the details and, again, suggested that the appellant had given evidence of the sort referred to in the matter complained of on another occasion.

20 The primary judge decided that Ms Evans’ address had not constituted a retraction of her earlier statement that the appellant had given the evidence referred to in the matter complained of. He said he would tell the jury that it was not to proceed on any assumption that the appellant had given that evidence. He also held that Ms Evans’ invitation to the jury to accept the proposition that there was nothing out of the ordinary for judges to hear such evidence everyday and that was not a problem because judges could select what evidence was cogent, distracted the jury from its task.

The summing–up

21 The summing-up commenced on the first day of the s 7A hearing. I set out below relevant passages.

22 The primary judge dealt at length with the issue of the truth or falsity of the matter complained of, and the issue of whether the appellant had given the evidence referred to. He said:

“51 So the plaintiff must persuade you, on the balance of probabilities, that the impression formed by the ordinary reasonable reader in these circumstances includes the meanings which the plaintiff ascribes to this article, the imputations or at least one of them. The final matter is this: The issue for you to determine has nothing to do with the truth or the falsity of what is written.

52 I just repeat that, that the issue for you has nothing to do with the truth or the falsity of what is written. You are concerned with the meaning of the article, not whether what is written in it is true or false. The imputations or the meanings do not depend upon whether the ordinary reasonable reader believed – what he or she read. When you think about it, the reason is simple. The ordinary reasonable reader would not know one way or the other. They would not know whether what is written was true or whether it was false. And if you think about, they would have no way of knowing. The ordinary reasonable reader or readers do not have somebody sitting beside them saying, ‘Well, that is true, that is false’ or making any comment at all.

53 The ordinary reasonable reader or readers would simply read what they read. They form an impression about what is written and what is being said about a person – in this case the plaintiff – referred to in the article so that is what you are concerned with, the meaning of what is conveyed, not the issue of the truth. As I said, the defendant, and indeed the plaintiff, will have the opportunity, if this case goes further, of dealing with the issues of truth or falsity of whatever may have been said.

54 There is just one aspect of the present matter. Miss Evans, in the course of her address to you, referred to the ghosts or the ghost-like figure, and it may have been conveyed to you that the plaintiff indeed did give that evidence. This is another example of where you are not to assume that the plaintiff did give that evidence. And, in so far as that may have been conveyed to you, you are not to proceed on the basis that the plaintiff, in fact, did give that evidence.

55 So I would just remind you, you are not here to evaluate the truth or the falsity of what is said, just like the ordinary reasonable reader would not be able to evaluate it for the reasons I have mentioned. The plaintiff must be able to establish, on the balance of probabilities, that the impression formed by the ordinary reasonable reader includes the meanings which she has ascribed to the article.”

23 On the first day, the primary judge directed the jury as to the meaning of defamatory:

“57 The final aspect is the meaning of the word ‘defamatory’…To say something defamatory is to say something which is derogatory or disparaging about them. It has been put by counsel that one way of putting the test is: would ordinary decent members of the community think less of Mrs Mallik by reason of the imputations?
...
60 So, the question really is, applying the third test, whether ordinary decent members of the community would think less of the plaintiff by reason of the imputation being 1(a) or 1(b) or 1(c), or all of them, or any two of them, or would an ordinary decent member of the community or members of the community think less of her because it was suggested she was a person referred to in 1(a) or 1(b) – that is, demented or irrational – or would they think less or her because it conveyed the meaning she would give evidence which lacked credibility – was worthless, absurd and lacked credibility.”

24 At the end of the first day, the primary judge invited counsel to address him on any matters arising from his summing-up. Mr Caspersonn made no complaint.

25 On the second morning of the hearing Mr Caspersonn complained about media reporting of the trial said to have been broadcast by Channels 9 and 10, as well as about reports he said had been published in the Newcastle Herald and the Maitland Mercury. He handed to his Honour a document purporting to be a transcript of a broadcast on Channel 9. Its author was not identified. No recording of the broadcast was tendered. Ms Evans objected to the purported transcript as not proving the broadcast of which Mr Caspersonn complained. It did not become an exhibit, nor was it marked for identification. A document said to be that handed to his Honour was reproduced in the Combined Appeal Book without objection by the respondents. There was no evidence of what Channel 10, the Newcastle Herald and the Maitland Mercury were said to have published.

26 The Channel 9 document purported to describe the s 7A hearing, interspersed with an interview with the first respondent. According to the documents the broadcast also depicted the appellant walking in a street. She did not make any response to a question from the reporter. The document indicated the broadcast purported to repeat part of Mr Caspersonn’s address to the jury about the imputations, then showed the first respondent denying he had “said that in the paper”. It then purportedly referred to part of Ms Evans’ address.

27 Mr Caspersonn submitted that in the light of the broadcast the primary judge should give the jury a clear direction to disregard anything said in the media, or that its members may have located by any internet searching.

28 Mr Caspersonn then sought a direction about the “storm in a teacup” statement Ms Evans had made in her address to the jury, an application inspired it appears by the final statement purportedly made in the broadcast that:

“The jury…must decide if it’s all a storm in the teacup or if Mr McGeown’s ghost defamed Mrs Mallik and made her seem demented.”

29 Mr Caspersonn argued that the reference to a “storm in a teacup” impermissibly introduced a concept of triviality which would distract the jury from its task of considering the issue of whether the imputations were defamatory.

30 The primary judge said he would direct the jury that insofar as the “storm in a teacup” submission might suggest it was for them to evaluate the ultimate significance of the imputations, weight or damage was a matter to be dealt with at a later stage and that its function was to evaluate whether the matter was derogatory or defamatory in a relevant sense. In his view such a direction would not diminish Ms Evans’ submission that the matter complained of was so “light-weight” as not to be derogatory, while also making sure that the jury was reminded of its role.

31 Mr Caspersonn said he was satisfied with his Honour’s proposed direction if his Honour also reminded the jury of his submission, as I understand the transcript, about considering the question whether the imputations were defamatory in the context of how its members would feel if they were the subject of the matter complained of, the imputations’ appearance on the front page of the newspaper, and other matters of context to which he had drawn the jury’s attention.

32 The primary judge asked Mr Caspersonn whether a direction which reminded the jury of Mr Caspersonn’s submission and that it was not its function to assess the weight of the matter complained of, but merely whether it was defamatory or not, would meet his concerns. Mr Caspersonn said that direction would suffice.

33 Mr Caspersonn then raised another complaint about the purported reference in the broadcast to the proposition that the appellant had given the evidence referred to in the matter complained of. He accepted that the primary judge had already given the jury a clear direction on this point but submitted that the re-agitation of the proposition in the purported broadcast was “quite unfair to the plaintiff”. At this stage the primary judge reminded Mr Caspersonn that he had to elect whether he wished to seek a discharge of the jury or deal with any possible damage by way of direction. Mr Caspersonn confirmed he was pursuing the latter course.

34 Ms Evans complained that the primary judge’s proposed direction might undermine her submission that the imputations were not conveyed. His Honour said he would distinguish between capacity and weight. In relation to the “storm in a tea cup” statement, he observed to Ms Evans that it was not the jury’s role to make such a finding and that “something’s got to be said to keep them focused.”

35 His Honour then resumed his summing-up. He referred to the appellant’s submissions on defamatory meaning:

“85 …Mr Caspersonn then went on in his submissions…He said they are in the matter complained of and you have to put them back into the context of the matter complained of, that the circumstances of the publication tend to cause decent folk, people in the community, to think less of the plaintiff.
86 …He repeated that phrase ‘tend to damage her reputation’…He says that the concept of defamatory, you might think, is ‘tend to damage reputation’, ‘tend to injure reputation’, ‘likely to lower his or her standing in the community of right-thinking members of the community’…
87 …he said that you would be satisfied…that it or they – those indications [sic, imputations] – would likely tend to be defamatory of the plaintiff…All those words are there before you and he said they would tend to damage her reputation, injure her reputation…”

36 He also referred to the respondents’ submissions on defamatory meaning:

“116…Miss Evans…addressed the question of defamatory as meaning ‘tending to lower the plaintiff, Mrs Mallik, in the estimation of right-thinking members of the community’.”

37 His Honour gave the following directions in relation to the respondents’ motives and intentions:

“106 Moving then to Miss Evans’ submissions. She said that we don’t, the ordinary reasonable reader, this is dealing with imputations, think that the defendant was entitled to mention any interesting piece of evidence. That happened in this case. A little later she said you may find that is why an interesting piece of evidence was put in the article.
107 I will deal with that. You may find that is why an interesting piece of evidence which the defendants considered newsworthy was put in the article and I say about that that you are not permitted to speculate what the defendants did consider. That is not part of your function, you understand your function. You can’t speculate as to whether the defendants considered it newsworthy. You can’t speculate as to what they considered in terms of whether it was newsworthy. You can [sic, can’t] speculate as to what they concluded as to whether it was newsworthy or not. You’re just looking at the article in line with the instructions I have given you, firstly, whether the imputations are there.
108 Secondly, I wanted to make mention of how you can focus on your task. Miss Evans said that the article does not go nearly as far as saying that the plaintiff was demented. This is one of the questions you will answer for the parties, as to whether the article went that far or not, and that it must have been on the same theme said, that the ordinary reasonable reader might consider that as the head of the group, the plaintiff might be robust enough to take even mild criticism. At the most I submit it says ‘Here she goes again’ I am not sure what that was intended to convey but that is a matter for you.
109 I remind you that you’re not assessing the truth of whether she said it or not and there was no suggestion she had said it before or at all. Your task is confined to the issues that we have dealt with.”

38 His Honour directed the jury as to imputation (b):

“111 … Miss Evans draws [sic, attention to?] imputation 1(b) and she said ‘let us look at worthless, absurd – the meaning of that. I submit it does not say the evidence was worthless and I submit you don’t have to look any further than the article itself. It is a matter you would consider and give such weight as you consider it should be given. And a further submission went back to that theme, the article’
‘…and I submit that goes to the article being taken seriously by the defendants. I would say the ordinary reasonable reader would not find it was worthless. It is the same point as before because look how seriously it was taken and, similarly, I submit that is not carried by the article either that the evidence given is absurd.’
112 Again, a submission that you would give consideration to and Miss Evans said the ordinary reasonable reader would find that the article takes this plaintiff seriously and again she has been mentioned as the leader of the Residents Group in the first line.
113 There was a submission made also to this effect and, indeed, I will read it: ‘I did not say anything about the ghost-like figure was said in these proceedings but you might think, does that mean that the evidence is worthless or absurd.’ One word of caution here I give you, we don’t know what the intended reference to odd things embraces. I suppose you can have a lot of things and other things that are imaginary. You don’t have any information here as to what judges or commissioners might hear of odd things. So it is a matter for you to determine whether that aids or assists you in your task.”

39 In relation to the “storm in a teacup” statement, the primary judge said:

“119 Finally, Miss Evans concluded in these terms: she said that you should not think where there is smoke there is fire and she said it is certainly open to you. It may be a storm in a teacup. As to that submission, you will evaluate it as to its validity by considering the issues that have been spoken about by both counsel and the directions I have given, that a submission that something is a storm in a teacup may or may not be right. It is something for you to assess.
120 Mr Caspersonn said in determining whether it is defamatory that you, as judges of the fact, may evaluate it by saying what if it was me being referred to in the article rather than the plaintiff and then look at it and make a decision about how you might answer the questions.”

40 Mr Caspersonn did not complain, at trial, about any aspect of the primary judge’s summing up.

41 As I have already mentioned, the jury found that imputation (a) was conveyed, but not defamatory of the appellant, and that imputations (b) and (c) were not conveyed.

Grounds 1 and 4: jury determination that imputation (a) was not defamatory

42 Grounds 1 and 4 can be considered together.

43 Mr M Neil of Queens Counsel, who appeared with Mr D Caspersonn for the appellant on appeal but not at trial, submitted in substance that the jury having found an imputation of “some form of mental problem, some form of instability, some form of irrationality, some form of imbalance, some form of problem of a mental nature” in the context of the evidence the appellant was said to have given, a negative answer to the question whether that imputation was defamatory had all the hallmarks of irrationality referred to in John Fairfax Publications Pty v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 (as “present[ing] a challenge even to the most adroit rationalisation” (at [4]) per Gleeson CJ, “border[ing] on the starry-eyed” (at [146]) per Kirby J or, somewhat less colourfully, “one that no reasonable jury could reach” (at [185]) per Callinan J).

44 Ms Evans submitted that the appellant had put imputation 1(a) before the jury on the basis that “demented” was synonymous with “insanity”. She contended that it was open to the jury to conclude that the word had a less grave meaning and to find that imputation (a) was not defamatory.

Grounds 1 and 4: consideration

45 The appeal falls for determination in the light of the following propositions.

46 First, appellate courts exercise restraint when asked to disturb jury determinations: Rivkin (at [2]) per Gleeson CJ; (at [17]) per McHugh J; (at [109] – [110]) per Kirby J; (at [184] – [185]) per Callinan J; see also John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 (at [115] – [119]) per Kirby J; Australian Broadcasting Corporation v Reading [2004] NSWCA 411. In Rivkin (at [224]) Heydon J appeared to question whether the authorities counselling appellate courts to exercise restraint in interfering with jury verdicts could stand with s 102 of the Supreme Court Act 1970, however I note that in Gacic (at [164]), another s 102 appeal, his Honour joined with Callinan J in affirming the proposition that “[d]ecisions of juries have always, and rightly, been accorded especial respect”.

47 Secondly, a finding of a jury concerning defamation may only be overturned if it is one no reasonable jury could reach (Rivkin (at [185]) per Callinan J (with whom Gleeson CJ and Heydon J agreed)), or, as Hunt AJA (Santow JA agreeing) pithily said, if it is an “unreasonable verdict”: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 (at [51]). In Reading (at [53]) Santow JA described it as an “irrationality test”.

48 Thirdly, in applying the question whether a jury’s determination in a defamation case was one no reasonable jury could reach, it is necessary to bear in mind that “the issue of libel or no libel is usually a matter of ‘impression’ [hence], appellate courts set aside jury verdicts on the ground of unreasonableness, even less frequently than they set them aside in other actions”: Rivkin (at [18]) per McHugh J.

49 Fourthly, occasions for invading the jury's function occur even less frequently when the jury has found that a publication is not defamatory: Rivkin (at [19]) per McHugh J; Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 (at [166] – [174]). To warrant such intervention, the words of the publication must not be capable of anything but a defamatory meaning: Rivkin (McHugh J at [20]). If the words are susceptible of an innocent meaning, the court cannot intervene: Kelly v Daily Telegraph Newspaper Co (1897) 18 LR (NSW) 358 at 361. The defamation must be “clear and beyond argument”: Broome v Agar (1928) 138 LT 698 (at 702); see also Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 (at 710) per Hutley JA; (at 716 – 717) per Samuels JA; (at 720) per Mahoney JA.

50 Fifthly, one of the reasons appellate courts exercise restraint, particularly in reviewing a jury’s verdict that an imputation was not defamatory, is because in determining whether the imputations found to be conveyed tend to lower the plaintiff’s reputation in the view of the ordinary reasonable reader, the jury is required to apply community standards: Radio 2UE Sydney Pty Ltd v Chesterton [2008] NSWCA 66; (2008) Aust Torts Reports ¶81-946 (at [14] per Spigelman CJ; at [19] per Hodgson JA; at [135] per McColl JA). As Callinan J said in Rivkin (at [184]), “[t]he jury is representative of the community [and] [i]ts members are better placed than judges to give meaning to, and evaluate, the spoken and written word and its impact upon the community”. It is up to the jury to determine contemporary community standards and, in so doing, to take into account the evolution of societal attitudes: Reader’s Digest Services Pty Limited v Lamb [1982] HCA 4; (1982) 150 CLR 500 at 506 per Brennan J (as he then was, with whom Gibbs CJ, Stephen and Wilson JJ agreed and Murphy J agreed generally); Cairns (at 720–721) per Mahoney JA; Rivkin (at [140]) per Kirby J; Beran (at [174]); Reading (at [143] ff) per McColl JA.

51 Sixthly, it is not open to an appellate court to reject a finding that an imputation was either defamatory or not defamatory because it is not a necessary inference or one the Court itself would draw: Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 (at 762 – 3) per Lord Penzance. An appellate court is not entitled to set aside a jury's verdict because the court regards the verdict "as illogical, unsatisfactory or different from that which it would itself have reached: Rivkin (at [17]) per McHugh J. In Rivkin, Callinan J (at [184]) was also of the view that the fact that an appeal lay to the Court of Appeal from a jury verdict did not mean that the Court might substitute the answer that it would give to a question for that of a jury, adding “the occasions for judicial correction of jury verdicts will be extremely rare”.

52 Finally, in determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the case on the basis most favourable to the respondent to the appeal: Cairns (at 710) per Hutley JA; Rivkin (at [17]) per McHugh J; Beran (at [110] ff) per McColl JA (Mason P and Beazley JA agreeing); Reading (at [120]) per Ipp JA.

53 The primary judge’s direction to the members of the jury (at [46]), that in determining whether the matter complained of conveyed the pleaded imputations and whether they were defamatory, they should assume the ordinary reasonable reader considers the publication as a whole, was consistent with well-established authority: see generally Rivkin (at [26]) per McHugh J, (at [187]) per Callinan J; Reading (at [123]) per Ipp JA.

54 Imputation (a) was published in the context of a headline stating “Witness sees a ghost over cremator” and the statement that in the course of evidence at the Land and Environment Court, the appellant “claimed to have seen a ghostlike figure in the clouds”. The jury clearly accepted that, the appellant had stated in court that she had seen a ghost, or a ghostlike figure in or around the crematorium, and it was for this reason that the article conveyed the imputation that she was “demented”.

55 The jury then had to determine whether the ordinary reasonable reader applying contemporary community standards would think less of the appellant because of that imputation, or as was argued by Mr Caspersonn whether it was disparaging or derogatory of her. In my view it was open to the jury to conclude that that would not be the reaction of the ordinary reasonable reader, even if, as Mr Caspersonn argued before it, that word “demented” was synonymous with “mad; having a mental problem; being of unsound mind; demented and lacking mental acuity”.

56 It may once have been the case that people with mental disabilities were stigmatised by society. As Gordon, Tantillo, Feldman and Perrone explained (“Attitudes regarding interpersonal relationships with persons with mental illness and mental retardation” (2004) 70(1) Journal of Rehabilitation 50, footnotes omitted):

“Ancient Roman and Greek cultures viewed persons with physical disabilities as burdens on society and as less than human … People with mental illness were viewed as either immoral souls punished by God, or as being possessed by demonic spirits requiring exorcisms and other religious interventions …Individuals with mental retardation were mocked, teased and used for social amusement…”

57 However, as the same authors reported (at 50), “[d]uring a time of heightened social awareness, social tolerance in the sixties and seventies began to slowly evolve,” an evolution encouraged by social awareness campaigns designed to “increase social acceptance and decrease prejudice towards persons with differing abilities”. Although this article deals with issues in the United States, the same trend can, in my view, be discerned in the Australian community. In my view it was open to the jury to conclude that contemporary community attitudes in the twenty-first century, were such that ordinary reasonable readers would not think less of the appellant for being described as demented. This is particularly so in the context of the matter complained of. The observation attributed to the appellant was clearly an odd statement whenever made. However it could be thought to have been tenuously related to the court case with which the matter complained of dealt. The matter complained of did not report that her evidence had been rejected or derided. It reported it in a matter of fact way.

58 Ground 1 is in one sense, somewhat academic for, as I conclude in relation to ground 4, it is possible the jury reached its conclusion by applying the wrong test. However, as shall also become apparent, my view would not differ even had the correct test been applied.

59 Bearing in mind that ground 1 must be approached on a view most favourable to the respondents, it cannot be said, in my view, that the jury’s determination that imputation (a) was not defamatory was one no reasonable jury could reach.

60 I would reject ground 1.

61 I turn then to ground 4.

62 As I have said, Mr Caspersonn did not complain at trial about the primary judge’s directions to the jury about the test it should apply to determine whether the imputations were defamatory.

63 It may be accepted that a court may consider a ground of appeal complaining about a trial judge’s directions to the jury even though no direction or redirection was sought at trial: Uniform Civil Procedure Rules 2005, Pt 51.53(1). Whether the Court will intervene, if error on the trial judge’s part is identified, however, depends on whether it appears that a substantial wrong or miscarriage of justice has been occasioned, either in terms of UCPR Pt 51.53 or the common law which would otherwise apply: see Mastronardi v State of New South Wales [2007] NSWCA 54 (at [74] – [76]) per Basten JA (Ipp and Campbell JJA agreeing). Failing to have a case determined by a properly directed jury is not, of itself, a substantial wrong or miscarriage of justice: Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21 (at [71]) per Giles JA (Campbell JA and Matthews AJA agreeing). It is necessary to consider matters going beyond “the bare question of whether there ha[s] been any departure from applicable rules of evidence or procedure”: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 (at [18]).

64 Even where the Court finds a substantial wrong or miscarriage of justice has been occasioned, it has a discretion as to whether a new trial should be ordered. Failure to seek a direction or a redirection at trial is an important consideration in the exercise of the court’s discretion to order a new trial: Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 (at 39); Tory v Megna [2007] NSWCA 13; see also Burchett v Kane published as a note to Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (at 266); cf Mohammed (at [96]) per Campbell JA.

65 The Court’s jurisdiction to order a new trial “depends on the demands of justice”: Calin (at 39). The Court has to balance the justice of the appellant having the opportunity of relitigating her claim according to law and the fact that “it may be unjust ‘to set aside a verdict for a reason which but for the default of the party moving would never have existed’ ”: Burchett v Kane (at 273) per Samuels JA citing Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143 (at 167); see also Burchett v Kane (at 277 – 278) per Mahoney JA.

66 I turn then to the test to be applied in considering whether an imputation is defamatory.

67 An imputation is defamatory if it “be such as is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the plaintiff]”: see Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 (at 172) per Jordan CJ; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 (at 452); Reader's Digest (at 505 – 506) per Brennan J; Rivkin (at [18]) per McHugh J; a test Gummow and Hayne JJ framed in Gacic (at [53]), as one of “tendency”, which they described as “pitch[ing] the common law test at a fairly low threshold”.

68 In directing the jury on the concept of defamation, the primary judge said (at [57]):

“…To say something is defamatory is to say something which is derogatory or disparaging about them. It has been put by counsel that one way of putting the test is: would ordinary decent members of the community think less of Mrs Mallik by reason of the imputations?”

69 When dealing with imputations 1(a) and (b) his Honour said:

“60…the question really is…would an ordinary decent member of the community or members of the community think less of her because it is suggested she was a person referred to in 1(a) or 1(b) – that is demented or irrational…”

70 The primary judge’s directions to the jury about the test to apply when determining whether an imputation was defamatory did not refer either to the likelihood or the tendency of the imputation to cause an ordinary decent member of the community or members of the community to think less of the plaintiff. He erred in this respect. His error ought to have been discerned by experienced defamation counsel appearing for the appellant who should have afforded proper assistance to his Honour by way of corrective submissions: R v Hines (1991) 24 NSWLR 737 (at 743 – 744) per Sully J (Hope A-JA and Mathews J agreeing).

71 A court should not speculate about a jury’s reasoning process, but may draw “inevitable or proper inferences from the jury’s decision”: Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 4 All ER 732 (at [7]) per Lord Bingham of Cornhill. It is an available, though not necessary, inference that the jury applied a higher threshold to the question whether imputation (a) was defamatory of the appellant than that required by law. I prefer to conclude this was not a necessary inference because both Mr Caspersonn and Ms Evans stated the likelihood/tendency test correctly in the course of their addresses to the jury. His Honour repeated their formulations of the test in terms of tendency to injure the plaintiff’s reputation or likelihood of lowering her standing in the community on several occasions in the course of summarising the parties’ respective contentions: summing up at ([85] – [87], [116]). Taking the summing up as a whole it is possible to infer that the jury may have correctly applied the tendency test.

72 However, I accept Mr Neil’s submission that a summary of the parties’ submissions on issues of law does not have the same imprimatur as a formal direction of law given by the trial judge. It should be accepted, therefore, that the primary judge erred in his directions to the jury on the test to be applied to determine whether imputation (a) was defamatory.

73 Accordingly ground 4 is established. The question then arises as to whether a substantial wrong or miscarriage of justice has been occasioned and, if it has, whether a new trial should be ordered.

74 In order to determine whether a substantial wrong or miscarriage of justice has been occasioned by a misdirection to a jury, the Court does not seek to determine what the jury or a hypothetical jury would have determined if properly directed, but must determine for itself, in this case relevantly, whether imputation (a) was defamatory: Channel Seven Sydney Pty Ltd v Mohammed (at [71]); see Tory (at [45] - [46]), applying Weiss to the same effect.

75 In undertaking this exercise, the Court must consider the question as if acting pursuant to the directions which should have been given to the jury: Weiss (at [41], [43] – [44]). This proposition has particular resonance in the defamation context. At this stage of the process, (which is that prescribed by s 7A(3) of the 1974 Act), the Court must be careful to consider the question as a matter of fact, considering the ordinary reasonable reader’s reaction to the matter complained of and seeking to identify the contemporary community standards that person would bring to bear. The task undertaken when a judge is engaged in the s 7A(3) exercise is not the s 7A(2) task of determining what defamatory meaning the matter complained of is capable of bearing as a matter of law: see Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 (at [9]) per Gleeson CJ, McHugh, Gummow and Heydon JJ; Gacic (at [20]) per Gummow and Hayne JJ; see also Jones v Skelton [1963] SR (NSW) 644 (at 650 – 651); [1963] 3 All ER 952 (at 958 – 959).

76 In my view for the same reasons I have given when considering ground 1, imputation 1 (a) would not be likely, nor tend, to cause ordinary reasonable readers to think less of the appellant. I reach that conclusion in the light of what I discern to be contemporary community attitudes to mental disability. I have already referred to the changes in community attitudes in this area. In my view “reasonable and right-thinking people” (Cairns (at 179) per Mahoney JA) would hold attitudes to mental disability far advanced from those of the earlier stigmatising times to which I have referred. Rather, in my view, contemporary community standards towards the mentally disabled exhibit tolerance and sympathy, not the disparagement upon which the appellant relied before the jury. This conclusion gains some reinforcement from the discussion which follows of the appellant’s submissions based on textbook commentary about whether imputations connoting mental disability are defamatory.

77 As I have said, the appellant said that the question whether imputation (a) was defamatory was put to the jury on the basis of her being “mad; having a mental problem; being of unsound mind; demented and lacking mental acuity”. She said that, so put, her argument that it was defamatory had accorded with passages in texts which, she submitted, supported the proposition that it was defamatory to say of a person that he or she was “insane”, or a synonym thereof.

78 The first passage the appellant relied upon was from P Milmo and WVH Rogers, Gatley on Libel and Slander, 10th ed (2004) Sweet & Maxwell (at [2.6], footnotes omitted):

“… It is, for instance, defamatory to say of someone that he is insane, or is ‘not quite responsible for what he does.’ It is true that insanity is a misfortune and not a fault, and that a person suffering there from is an object of pity or sympathy rather than of hatred, ridicule or contempt. But it is no less true that the tendency of such an imputation is to diminish people’s confidence in the claimant and even cause them not to associate with him.”

79 The second passage the appellant relied upon was from JG Fleming, The Law of Torts, 9th ed (1998) LBC Information Services (at 582, footnotes omitted):

“To say of a man that he is insane or of a woman that she has been raped does not arouse sentiments of animosity but rather sympathy and pity in the minds of decent people. Yet such assertions are defamatory because, without suggesting discreditable conduct, they impute to the plaintiff a condition calculated to diminish the respect and confidence in which he is held. A person’s standing in the community, taking people as they are with their prejudices and conventional standards, is just as likely to be impaired by an attribution of misfortune as of contemptible conduct. In this matter, it is to shut one’s eye to realities to indulge in nice distinctions.”

80 It is important to note the context in which each passage appears. The passage from Gatley appears in the Chapter on Defamatory Imputations, in Section 1 dealing with “What is defamatory”. Paragraph [2.6] deals with “Words causing others to shun and avoid one”. The concept of words which tend to cause others to shun and avoid a person being defamatory differs from the concept of defamation arising from statements which disparage a person’s reputation. Statements which tend to cause others to shun and avoid a person may be non-disparaging, but nevertheless defamatory: Radio 2UE (at [90]).

81 Further, the passage in Gatley on which the appellant relied was immediately followed by the statement:

No doubt, however, words like ‘crazy’ or ‘lunatic’ do not necessarily, when taken in context, impute mental disorder.”

This supports Ms Evans’ submission.

82 Gatley refers to Morgan v Lingen (1863) 8 LT 800 in which Martin B, summing up in a defamation case, directed the jury that “a statement in writing that a lady’s mind is affected” was primâ facie a libel. There was a defence of privilege. The jury found for the defendant. History does not record, of course, whether it did so because it concluded, notwithstanding the direction, that the statement was not defamatory or because the defence was established. However, accepting the former possibility would indicate that as early as the mid-nineteenth century a jury rejected the proposition that, as a matter of fact, an imputation attributing mental affectation was defamatory.

83 Martin B’s direction in Morgan should also be contrasted with the more nuanced approach adopted in Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581, the first case footnoted in par [2.6] of Gatley. Youssoupoff concerned the question whether it was defamatory to say that the plaintiff had been the victim of rape. Slesser LJ said (at 587) in the passage to which Gatley refers:

“…as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule or contempt by reason of some moral discredit on her part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on their part . It is for that reason that persons who have been alleged to have been insane … have been held to be entitled to bring an action to protect their reputation and honour.” (emphasis added)

84 The passage from Fleming the appellant relied upon also appears in the context that non-disparaging words can be defamatory if they cause a person to be shunned and avoided. Fleming supported that proposition by reference to two of the three cases footnoted in par [2.6] in Gatley, Morgan and Youssoupoff.

85 Mr Neil conceded that the appellant’s case was not put to the jury on the basis that imputation (a) was defamatory because it would tend to cause people to shun and avoid her. Rather her case was put to the jury on the conventional basis, that imputation (a) was defamatory because it was disparaging or derogatory.

86 Mr Neil nevertheless contended that the Court could consider the jury’s verdict on imputation 1(a) as if it had been put to the jury that while that imputation may be non-disparaging, it might nevertheless cause people to shun and avoid her. For the reasons I have explained, once the Court is considering the question whether a substantial wrong or miscarriage of justice has been occasioned by a misdirection, the Court considers the question as if acting pursuant to the directions which should have been given to the jury. The appellant’s case was not put to the jury as one of non-disparaging imputations. The Court cannot assess the question of substantial wrong or miscarriage, therefore, in that light.

87 Indeed an understanding of the non-disparaging sense in which imputations of mental disability may be understood to be defamatory, contextualises the reasonableness of the jury’s determination in this case. While what texts say about what is, or may be, defamatory, is not determinative of the reasonableness of the jury’s answer, the passages from Gatley and Fleming, Morgan and Youssoupoff, give a telling insight into the development of community attitudes to mental disability. They recognise that the ordinary member of the community’s response to mental disability may well be one of sympathy and pity, not hatred, ridicule or contempt, the latter being the conventional trilogy invoked by a plaintiff asserting the publication of a disparaging imputation.

88 The Court can order a new trial even where no direction on a matter was sought at trial (UCPR 51.531(a)) but it is still necessary for the appellant to persuade the Court that the non-direction occasioned a substantial wrong or miscarriage. A finding of that nature may be appropriate where the matter upon which the judge failed to direct the jury as to a matter of law was essential to the way the parties were placing their case before the jury. It is a different question, however, in my view, to say that a substantial wrong or miscarriage was occasioned when the primary judge did not direct the jury on an alternative way of putting the case which was available to a party, but which was not raised at trial. It was open to the appellant to run a case that imputation (a) was defamatory because, although non-disparaging, the imputation would tend to cause members of the community to shun and avoid her. She chose not to do so. The demands of justice do not insist that the appellant be given a new trial to run a new case. It would, in my view, be unjust to set aside this jury’s determination.

89 In my view although the primary judge erred in directing the jury on the meaning of the concept of defamation on the disparaging imputation case as put before the jury, no substantial wrong or miscarriage has been thereby occasioned and a new trial should not be ordered.

90 Ground 4 should be rejected.

Grounds 2 and 3: whether the jury’s determinations that imputations (b) and (c) were not conveyed were ones no reasonable jury, properly directed, could reach

91 Mr Neil submitted the matter complained of conveyed that the appellant had testified to a court that she saw a ghost or equivalent, that such evidence could not be right and, accordingly, the ordinary reasonable reader would conclude she had given evidence that was worthless, absurd and lacked credibility. He argued that a reasonable jury could not fail to find that this imputation, or one which was not substantially different, was conveyed. The jury’s answer to the contrary, he contended, “present[ed] a challenge even to the most adroit rationalisation”: Rivkin (at [4] – [5]) per Gleeson CJ.

92 Mr Neil submitted that the matter complained of clearly conveyed imputation (c). He relied on his submissions in relation to imputation (b). He contended the jury’s finding was beyond the range of findings reasonably available: Gardener v Nationwide News Pty Limited [2007] NSWCA 10 (at [58]).

93 Ms Evans pointed to the fact that imputation (b) pleaded three acts or conditions: “worthless, absurd and lacking in any credibility”. She contended it was open to the jury to find that not all of these acts or conditions were conveyed. In reply, Mr Neil submitted the imputation did not contain three inviolable separate acts, and that it merely followed the form suggested by the primary judge when dealing with a strike-out application: see Mallik v McGeown [2007] NSWSC 438 (at [20] – [21]).

94 Ms Evans also argued that the appellant’s submissions assumed that the matter complained of said she had seen a ghost. She observed that the article also referred to a “ghostlike figure in the clouds”. She contended that the reference to a “figure” was a reference to something tangible and that accordingly, it was open to the jury to conclude there was something of value in the appellant’s evidence. Finally she contended that there was a heavy onus on the appellant to show that the matter complained of conveyed the imputation that the appellant’s evidence lacked “any credibility”.

95 Ms Evans submitted that it was open to the jury to find that imputation (c) was not conveyed because it was confusingly worded. She contended that the imputation suggested that the appellant saw imaginary things, but, logically, if she saw them, they were not imaginary to her. Alternatively, the imputation could have been suggesting the appellant saw things imaginary to other people. Further, Ms Evans submitted it did not follow from the condition of not being believed, that the appellant was irrational.

Grounds 2 and 3: consideration

96 I have already set out the tests to be applied in considering this question.

97 In my view the jury’s determination that neither imputations (b) or (c) were conveyed was not one no reasonable jury could reach.

98 Imputation (b) did, in my view, involve the jury finding that the evidence attributed to the appellant carried the three qualities referred to. It is of little assistance to the appellant to seek to invoke the primary judge’s determination on the strike–out application. His Honour was carrying out his s 7A(2) function which involved ruling on what, as a matter of law, the matter complained of was capable of conveying. It was, in my view, not unreasonable for the jury to conclude that the matter complained of did not convey that the evidence attributed to the appellant carried all of those qualities. It may appear to those skilled in the law, that if she gave the evidence attributed to her that it had those qualities, but the question the jury answers is one of fact. As I have said it is an impressionistic exercise. In my view it was open to the jury to conclude that the ordinary reasonable reader would not form the view that the evidence attributed to the appellant, as a matter of impression, had the three qualities described in imputation (b).

99 Imputation (b) had none of the hallmarks of the imputation Gleeson CJ described in the terms to which I have referred: cf Rivkin (at [4] – [5]).

100 I am also of the view that the jury’s determination that imputation (c) was not conveyed was not unreasonable. Imputation (c) was, in my view, tortured in its expression. It contained three propositions: that the appellant said she saw imaginary things, that as a consequence her word could not be believed and that because her word could not be believed she was an irrational person. The last proposition depended upon the middle proposition. In my view a conclusion that the ordinary reasonable reader would not, as a matter of impression, draw the latter conclusion from the former premise was not an unreasonable one.

101 I would reject grounds 2 and 3.

Ground 5: the respondents’ address to the jury

102 Mr Neil submitted that the primary judge gave insufficient directions to cure counsel for the respondents’ irrelevant submissions to the jury. He argued that Ms Evans’ address had created a misleading effect which had led to a miscarriage of justice. He further contended that the primary judge had failed to give proper or sufficient directions to the jury to overcome the erroneous considerations the respondents’ address had placed before them.

103 Mr Neil submitted that Ms Evans’ erroneous submissions had both a joint and several misleading effect.

104 First, Mr Neil submitted that the primary judge’s directions (at [106] – [107]) regarding the submissions on the respondents’ motives, intentions and newsworthiness were “not strong enough”. He argued that very soon after that direction, his Honour repeated a submission by counsel for the respondents raising intention and told the jury it was a submission it would have to give consideration to (at [111] – [112]).

105 Secondly, Mr Neil submitted that the point about how judges would judge and assess matters was not retracted or corrected but was merely repeated as a submission (at [113]) and left to the jury to see if it aided or assisted it in its task.

106 Thirdly, Mr Neil submitted that the references to “here she goes again” which introduced the notion that the appellant had given evidence before, and to the robustness of the appellant, were referred to as a matter for the jury (at [108] – [109]) and not adequately corrected.

107 Fourthly, Mr Neil submitted that the primary judge did not redirect the jury about the “storm in a teacup” statement and that the primary judge did not direct the jury not to assess the weight of the article. Instead, he complained, the primary judge merely repeated (at [119]) counsel for the respondents’ submissions without re-direction and said it was a matter for them to assess.

108 Ms Evans submitted that the primary judge’s summing up was sufficient to cure any prejudice arising from the statements complained of. Ms Evans also contended that if the appellant was not satisfied with the primary judge’s directions, it was open to her to ask for a re-direction, and she had elected not to do so.

Ground 5: consideration

109 The trial judge has jurisdiction to curb and correct extravagances of advocacy and the remedy as a general rule should reside with him or her. Transgressions and improprieties by counsel may require a conclusion that a trial miscarried. However, generally, the jury is presumed to be capable of heeding the instructions of the trial judge, notwithstanding counsels’ addresses: Justin v Associated Newspapers Ltd (1966) 86 WN (Pt 1) (NSW) 17 (at 28) per Wallace P; (at 44 – 45) per Walsh JA; see also Uren v Australian Consolidated Press Ltd (1965) 66 SR (NSW) 271 (at 290, 298) per Walsh JA; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (at 237) per Hutley JA.

110 There is an onus upon counsel to seek in clear terms any redirection which he or she regards as necessary to correct, for instance, an error or omission in the summing-up: Singleton v Ffrench (1986) 5 NSWLR 425 (at 440) per McHugh JA (Samuels JA agreeing). Taking “at the proper time and in the proper way proper objections to the trial judge's summing-up in a particular case is a fundamentally important aspect of the legal profession affording proper assistance to trial judges: R v Hines (at 743 – 744). In Lutwyche v Jiweni Pty Ltd (Court of Appeal, 30 July 1998, unreported, BC9803438) Mason P and Beazley JA (Sheller JA agreeing on this point) said it should become part of the practice of the Court of Appeal that an appellant whose legal representatives failed to seek at trial a direction on a matter sought to be agitated on appeal should provide an explanation for the failure to take that objection. In my view where, as in this case, no such explanation is proffered, the available inference is that counsel was content with the summing-up, at least until the jury returned a determination adverse to his client.

111 While failure to seek a re-direction is not necessarily fatal to an application for a new trial, there is no doubt that it is a most material matter: Morawski v State Rail Authority (NSW) (1988) 14 NSWLR 374 (at 381) per Clarke JA (McHugh JA agreeing) referring to Burchett v Kane (at 266 and referring to 270, 272 – 273, 276 – 277); Bright v Sampson and Duncan Enterprises Pty Ltd (1985) 1 NSWLR 346 (at 350, 360) and Eggins v Brooms Head Bowling and Recreational Club Ltd (1986) 5 NSWLR 521.

112 In my view the primary judge’s directions to the jury were adequate to cure issues he perceived arose from Ms Evans’ address to the jury.

113 His Honour clearly directed the jury that it was not relevant to its determination to speculate about the respondents’ motives. His passing reference (at [112]) to the proposition that the article took the appellant seriously would not, in my view, distract the jury from that direction. Rather it drew attention to the respondents’ submission in that the matter complained of did not convey imputation (b).

114 As to the reference to how judges consider evidence in court, in my view his Honour’s direction did as much justice as it could to what was, at best, an obscure submission to the jury, and an equally obscure complaint.

115 There was something of an irony in Mr Caspersonn’s complaint about Ms Evans’ address, to the extent that she might have suggested to the jury that the appellant had indeed given the evidence referred to in the matter complained of. Mr Caspersonn’s address contained substantially the same allusion. For example, he submitted to the jury:

“In her evidence, i.e., and you would think, members of the jury, the ordinary reasonable reader is thinking the Land and Environment Court she has gone and given formal evidence. There is a formal report here, she has given some evidence. In her evidence she claimed to have seen a ghost like figure in the clouds … the ordinary reasonable reader would think she has given evidence in court that she has seen a ghost …”

116 I am also of the view that the proposition that suggesting to the jury that the appellant had given the evidence referred to in the matter complained of, would raise in the jury’s mind the issue of the truth or falsity of the matter complained of, attributed to the jury a greater knowledge of the law of defamation than one would ordinarily expect. True it is, that counsel are entitled to be concerned at a s 7A hearing that a jury should not be distracted by issues of truth or falsity of the matter complained of or the imputations. However, in my view, the primary judge’s directions to the jury that truth or falsity were not relevant to its considerations were clear and there is no reason to suppose that any submissions about whether or not the appellant had in fact given the evidence referred to distracted the jury from its task.

117 This conclusion applies, too, to the “here she goes again” submission.

118 Finally, I turn to the “storm in a teacup” complaint. I have earlier set out the exchange which took place when Mr Caspersonn sought a redirection about this statement. The primary judge gave the jury (at [121]) at least part of the direction Mr Caspersonn had agreed would meet his concern, that which reminded the jury of Mr Caspersonn’s submission. He did not clearly direct the jury that it was not its function to assess the weight of the matter complained of. Once again it is worth noting that Mr Caspersonn did not complain of this and the available inference is that he did not regard the omission as a significant one.

119 In my view, however, the primary judge’s omission in this respect does not lead to a conclusion that the trial miscarried. The primary judge directed the jury that its function was to resolve the questions placed before it. There were only two questions and his Honour gave the jury clear directions (albeit erroneous in relation to the second question as to the concept of defamatory) as to how to deal with them. In my view it should not be inferred that the “storm in a teacup” submission distracted the jury from its task of complying with his Honour’s directions in considering the questions.

120 In my view, the primary judge did not err in the steps he took to correct the submissions by counsel for the respondents.

121 Ground 5 should be dismissed.

Ground 6: adequacy of directions in the light of media publicity

122 Ground 6 is that the primary judge’s directions were inadequate and/or insufficient in light of substantial media publicity about the trial.

123 The appellant does not complain about the direction the primary judge gave after Mr Caspersonn complained about the media publicity. No further direction was sought by Mr Caspersonn that, in the light of the media publicity, earlier directions ought be revised and/or supplemented.

124 The appellant now submits that the “substantial media publicity” is a “further troubling matter that should be taken into account in considering whether there has been a miscarriage of justice.”

125 The first point is there was no evidence that there was “substantial media publicity” concerning the trial. At best, an unproved document was handed up in Court purporting to be a transcript of a Channel 9 broadcast. No evidence was adduced as to any other publicity concerning the trial. Even if it was, the primary judge’s direction to the jury not to take into account media publicity was clearly regarded by counsel as sufficient at trial and has not, in my view, been demonstrated to have been inadequate in the light of the outcome.

126 Regrettably, this ground of appeal smacks of desperation. It is a forlorn attempt to salvage a lost cause. It should be rejected.

Orders

127 In my view the appeal should be dismissed with costs.

128 CAMPBELL JA: I agree with McColl JA.

129 BELL JA: I agree with McColl JA

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02/02/2009	-	Addendum: - Paragraph(s) After handing down judgment, on the respondent's application the stay granted by Hall J in relation to the costs of the s7A trial was lifted.
18/03/2009	-	paragraph numbering incorrect - Paragraph(s) all paragraphs
18/03/2009	-	page numbering corrcted - Paragraph(s) headnote pages