Sonda v Signorelli

[2004] NSWCA 134

CITATION:	SONDA v. SIGNORELLI [2004] NSWCA 134
HEARING DATE(S):	03/03/2004
JUDGMENT DATE:	6 May 2004
JUDGMENT OF:	Beazley JA at 1; Santow J at 62; Howie J at 69
DECISION:	1. Appeal allowed; 2. Orders made by Gibson DCJ on 19 August 2003 be set aside; 3. An order that the answer of the jury to the questions asked of them on 9 July 2003 be the verdict of the Court; 4. Judgment for the appellant in the proceedings accordingly; 5. An order that the respondent pay the appellant's costs of this application and the proceedings in the court below
CATCHWORDS:	DEFAMATION - Section 7A of Defamation Act (NSW) 1974 - "Jury trial" - Trial process. - NEW TRIAL - Section 126(2) of District Court Act (NSW) 1973 - Test to be applied - Whether the verdict is one at which no reasonable jury could have arrived - Trial judge not to question correctness of jury verdict.
LEGISLATION CITED:	Defamation Act 1974 District Court Act 1973
CASES CITED:	Beran v Channel Seven [2003] NSWCA 272 Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202 Costains (Australia) Pty Limited v Atkinson (5 October 1995, unreported) John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 Nationwide News Pty Limited v Warton [2002] NSWCA 377
PARTIES :	Tracie Sonda (Appellant) Paul John Signorelli (Respondent)
FILE NUMBER(S):	CA 40797/2003
COUNSEL:	S. Wheelhouse SC/M. Richardson (Appellant) T. Hale SC/T. Thawley (Respondent)
SOLICITORS:	Corrs Chambers Westgarth (Appellant) Solari Legal (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC8847/2002
LOWER COURT JUDICIAL OFFICER :	Gibson DCJ

- 3 -

CA 40797/2003

BEAZLEY JA
SANTOW JA
HOWIE J

6 May 2004

SONDA v. SIGNORELLI

The appellant was Mayor of the Council of Sutherland Shire. The respondent was the owner or manager of a function centre in the Shire in respect of which he had made a development application to construct a disabled lift. The Mayor, concerned at the representations alleged to have been made by the respondent as to the Council’s purported rejected of the application, wrote to him in strong terms about the matter. The Mayor subsequently sent her letter to persons who had signed a petition supporting the respondent’s wish to have a disabled lift.

The respondent commenced proceedings for defamation claiming that the letters carried the imputation that the respondent deliberately misled patrons of the function centre to induce them to sign a petition. The proceedings were conducted pursuant to s.7A of the Defamation Act (NSW) 1974 which provides for a jury trial. The jury found that the imputation that the respondent had deliberately misled patrons of his function centre was not conveyed to the ordinary reasonable reader.

Immediately upon the jury withdrawing, the respondent made an application under s.126 of the District Court Act (NSW) 1973 for a new trial on the basis of the perversity of the verdict. That application was heard and determined by the trial judge in the respondent’s favour.

HELD per Beazley JA (Santow JA and Howie J agreeing):
(i) The application made in this case was only properly made under s.126(2). Subsection (1) had no application.

(ii) Under s.126(2) in order to establish “sufficient cause” to set a jury verdict aside in a s.7A trial, it is necessary to determine whether it was one at which no reasonable jury, properly instructed, could have arrived: Costains (Australia) Pty Limited v Atkinson (5 October 1995, unreported), John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77.

(iii) It is relevant, in determining that question to consider the manner in which the parties put their respective cases to the jury: Beran v Channel Seven [2003] NSWSC 272.

(iv) In determining an application under s.126(2) and applying the above test, it is not for the court to enter further into the debate so as to ask whether in its opinion the jury was right or wrong.

HELD per Santow JA:
(i) Where there is a difference between “the truth” and “the whole truth”, that difference does not invariably render the incomplete version a deliberate lie.

Orders

1. Appeal allowed.

2. Orders made by Gibson DCJ on 19 August 2003 be set aside.

3. An order that the answer of the jury to the questions asked of them on 9 July 2003 be the verdict of the Court.

4. Judgment for the appellant in the proceedings accordingly.

5. An order that the respondent pay the appellant’s costs of this application and the proceedings in the court below.

CA 40797/2003

BEAZLEY JA
SANTOW JA
HOWIE J

6 May 2004

SONDA v. SIGNORELLI

Judgment

1 BEAZLEY JA: This an appeal from an order made by Judge Gibson of the District Court in respect of a defamation action in which she ordered that the hearing of the action be discontinued and a new s.7A jury trial be held: see Defamation Act (NSW) 1974. Her Honour stated that she made the order, pursuant to s.126(1)(b)(i) and s.126(2) of the District Court Act (NSW) 1973.

2 The defendant in the Court below seeks leave to appeal from this order. The Court has directed that the summons for leave to appeal and if granted, the appeal, be heard together.

3 I will refer to the defendant interchangeably as appellant or Mayor and the plaintiff as the respondent or Mr. Signorelli.

Background

4 The appellant was, at the time the alleged defamatory matter was published, the Mayor of the Council of Sutherland Shire.

5 The matter complained of was contained in a letter written by the Mayor to a number of persons who had signed a petition relating to the construction of a disabled lift in a function centre called Doltone House (the letter to the petitioner), together with two other letters which were enclosed with the letter to the petitioner. The first of the enclosed documents was a letter to the respondent, Mr. Signorelli, from the Mayor dated 21 May 2002 (the 21 May letter to Mr. Signorelli). Mr. Signorelli was, it seems, the owner or manager of the function centre. The second letter was a letter written anonymously by a resident in the Shire to the General Manager of the Sutherland Shire Council relating to the disabled lift (the anonymous letter).

The letter to the petitioner

6 In the letter to the petitioner, the Mayor pointed out that the petitioner “may not have been made fully aware of the background of this issue”, so she attached a copy of the 21 May letter to Mr. Signorelli. She confirmed to the petitioner that Council would support a disabled lift provided it was constructed within the existing premises and in accordance with an order of the Land and Environment Court. The letter pointed out that Mr. Signorelli’s proposal involved the making of other additions to the premises and would be in breach of the Court order. The letter continued:

“Also attached is a copy of a letter to the General Manager [of the Council] received from a resident supporting Council’s position. I trust this clarifies the position for you.”

The 21 May letter to Mr. Signorelli

7 In the 21 May letter to Mr. Signorelli, the Mayor said:

“I am concerned with the misleading way in which you are claiming to patrons of your establishment that Council will not support a disabled lift in Doltone House.
You know very well, that Council will support a disabled lift provided it is constructed within the existing premises. Any proposed works must be in accordance with the order from the Land and Environment Court.”

8 The letter continued by dealing with the plaintiff’s Development Application in respect of the disabled lift, setting out the reasons why it had been rejected. The grounds for rejection included that the application involved an expansion of the building which was incompatible with the residential neighbourhood, that it was contrary to an order of the Land and Environment Court and it was an inadequate amenity for persons with a disability. The letter further recorded that the plaintiff had been invited to submit a new application “incorporating a lift within the existing envelope of the building”. The letter concluded:

“I will provide this information to all those who have signed the petitions, pointing out that the information you gave them is misleading to say the least.”

The anonymous letter from the local resident

9 The anonymous letter was from an unnamed local resident and ratepayer to the General Manager of the Council. The resident informed the General Manager that whilst attending a function at Doltone House a statement had been made by

“… the master of ceremonies that the local residents of Sylvania Waters would not allow Doltone House to put in a ‘disabled lift’ and could the patrons sign a petition supporting Doltone House.”

10 The letter did not identify who the “master of ceremonies” was, nor was there evidence on the point. In particular, there was no evidence that it was the respondent. According to the resident, most of the patrons at the particular function were from outside the Shire. The letter continued:

“…
I know as a matter of fact that this statement [that the residents … would not allow a disabled lift] is untrue and grossly misleading as the local residents had not objected … the residents only requested that the ‘disabled lift’ be built internally not externally as shown in [the] D.A.
The misleading way in which Doltone House is obtaining their petitions should be taken into serious consideration if they are ever presented to council and regarded as void.” (emphasis added)

The jury trial

11 The plaintiff commenced proceedings for defamation. The proceedings were set down for a s.7A jury trial commencing on 9 July 2003.

12 A short explanation of the trial process under the Defamation Act is warranted at this point.

13 Section 7A of the Defamation Act prescribes the functions of judge and jury in a defamation trial. Sub-section 1 provides that if the matter is to proceed before a jury it is for the court, and not the jury, to determine whether the matter complained of is reasonably capable of carrying the imputation and if it is, whether the imputation is reasonably capable of being defamatory. If the court determines either of those matters in the negative, it is then to enter a verdict for the defendant in relation to the imputation pleaded: s.7A(2).

14 If the court determines both of those questions affirmatively, then the question whether the matter complained of carries the imputation and if so whether it is defamatory is a matter for the jury: s.7A(3). The jury’s function, as prescribed by sub-s. 3, has attracted the expression “the s.7A jury trial”. If the jury determines both of those matters affirmatively, that is, in favour of the plaintiff, then the matter proceeds before the judge to determine whether any defence has been established and the amount of damages: s.7A(4). If the jury answers “no” to either the first or second question, it follows that the Court must then act to enter a judgment for the defendant.

15 The only evidence in the s.7A jury trial comprised the letters which contained the matter complained of. Counsel for the respective parties then addressed and her Honour summed-up to the jury and gave them directions. There was no complaint by either party as to the approach taken by the other in the addresses to the jury and no application was made to the trial judge to give the jury specific directions arising out of the addresses. The jury was then asked to determine the following two questions:

1. Has the plaintiff, Paul John Signorelli established that the matter complained of, namely the letters dated 22 August 2002, 22 May 2002 and 6 May 2002, conveyed to the ordinary reasonable reader the following imputation (or an imputation which does not differ in substance from the following imputation):
(a) that the plaintiff deliberately misled patrons of Doltone House in order to induce them to support a petition to the Council concerning Doltone House

Yes/No

2. If you have answered ‘yes’ to question 1(a), has the plaintiff, Paul John Signorelli, established that the imputation was defamatory of him?

Yes/No ”

16 The jury returned the answer “No” to the first question. It thus became unnecessary for them to answer the second question.

17 Immediately upon the jury withdrawing and before her Honour entered a verdict for the defendant as would normally follow under s.7A after a negative answer to the first question, senior counsel for the respondent made an application under s.126 of the District Court Act for a new trial “[o]n the basis of the perversity of the verdict; and … any confusion which might have arisen on the question of endorsement”. That application was heard and determined by her Honour on 5 August 2003 and is the subject of the summons for leave to appeal and if granted, the appeal.

Section 126

18 Section 126 provides:

Order of the Court for new trial
(1) The Court in its discretion may, after judgment in an action, order that a new trial of the action be had if: …
(b) the action is tried with a jury and on the day on which the jury gives its verdict in the action a party to the action:
(i) in the presence of the other party,
(ii) …
makes application for the order, or …
(2) The Court may, before judgment in an action and if no verdict in the action has been entered, order, on sufficient cause being shown, that the hearing of the action be discontinued and that a new trial be had.”

19 A preliminary question arose on the appeal as to whether the appropriate application in this case was an application under s.126(1) or s.126(2) as those sections provide distinct sources of power under which the Court may act.

20 When making the application to her Honour, senior counsel for Mr Signorelli did not differentiate between the two sub-sections. In acceding to the application, her Honour stated that she made the Order under both sub-sections. It is apparent, both from the way that the matter was argued before the trial judge and in the manner in which the parties initially approached the matter in this Court, that the distinction between the sub-sections was not discerned at the time of the hearing before her Honour.

21 Clearly, the application was only properly made under sub-s.2 as there was no judgment in the action or verdict entered when the application was made. Sub-section 1 only applies “after judgment in the action”.

22 The distinction between the two sub-sections is, or at least may be, of significance depending upon whether sub-s.2 involves a discretionary determination or whether, upon, “sufficient cause [being] shown” the Court is required to make an order. By contrast, by the express terms of sub-s. 1, the court is vested with a discretionary power.

By the end of the oral argument on the appeal, counsel for each party accepted that sub-section 2 was the provision and had adopted the position that the exercise of power under sub-s. 2 was discretionary even if the substantive condition of its operation, that is, “ sufficient cause being shown ”, had been established. I will put the question whether s.126(2) is discretionary to one side for the moment, because there was no dispute between the parties that, in a defamation action after a s.7A jury trial, in order to be entitled to an order under either sub-section, her Honour had to determine the same question, namely whether the answer given by the jury was one “ that no reasonable jury could [have given] ”: John Fairfax Publications v. Rivkin (2003) 77 ALJR 1657 per Callinan J at [185]. See also Gleeson CJ at [6]. McHugh J at [17] and [78]; Kirby J [118-119]; and Heydon J at [223].

Trial Judge’s Reasons

23 Her Honour, in a carefully researched judgment, dealt first with the proper approach to be followed under s.126 as explained by Kirby P (Gleeson CJ and Sheller JA agreeing), in Costains (Australia) Pty. Limited v. Atkinson (5 October 1995 unreported) at [3], namely that:

“The Court must ask itself whether the verdict is one to which no reasonable jury, properly instructed, could have arrived”.

This, in effect, is the test adopted in Rivkin, so that the test to be applied on a s. 126 application is the same test as that to be applied on an appeal from a jury verdict. In determining that question, it is necessary as Kirby P further stated at [3] – [4]:

“In testing the jury’s verdict, the Court must approach the evidence upon the assumption that the jury took a view of the evidence most consistent with the amount of the verdict, be it high or low. See Progress and Properties Ltd v. Craft (1976) 135 CLR 651 at 672.”

24 Kirby P was dealing with an application under s.126(1) made in respect of a verdict in a trial for personal injuries sustained in a workplace accident. The s.126 application related to a jury’s award of damages. This case is different in that there is no award of damages. However, the approach to the jury’s determination is the same in the sense that the Court is required to view the imputation alleged in a light most favourable to the appellant. This is because, having found that the imputation was not conveyed, the jury must have rejected the respondent’s case and accepted that of the appellant.

25 Her Honour considered that the power granted by s.126 was subject to the same limitations as would govern the grant of a new trial by the Supreme Court. She made that comment on the premise that s.126 involved the exercise of a discretion. Her Honour further observed that an application for a new trial could be based on alleged errors of fact as well as errors of law and that an order for a new trial could be limited to an issue in the trial, for example, such as damages.

26 No issue was taken by either party to these statements of principle.

27 Her Honour next reviewed the circumstances in which a jury verdict could be set aside in defamation trials. At the time of delivery of her Judgment on 19 August 2003, the High Court’s decision in Rivkin had not been delivered. However, both parties on the appeal considered that her Honour had in effect, applied the correct test. The complaint which is made by the appellant is that, notwithstanding that her Honour had accurately set out the principles which applied, she had failed correctly to apply them to the circumstances of this case.

28 In a section in her judgment headed “Analysis of the matter complained of” her Honour dealt with the question whether she should order a new trial. She concluded that the jury’s negative answer to the question whether the imputation was conveyed should be set aside. Her principal reason in coming to this conclusion is contained in [48], where her Honour said:

“However an application of the old-fashioned stringent test outlined by the authorities cited in Rivkin … to the matter complained of demonstrates that this is one of those rare cases where the jury verdict is not merely against the evidence, but perverse. The defendant says in her letter of 21 May 2002, in trenchant terms, that she will be providing the information in that letter to all those who have signed the petition, ‘ Pointing out that the information you gave them is misleading to say the least ’ and that is exactly what she has gone on to do. There is no question of the plaintiff supplying really wrong or inaccurate information about the disabled lift because he knows ‘ very well ’ to the contrary and his statements are ‘ untrue and grossly misleading ’. This is not only the kind of conduct that the Court of Appeal described as ‘ deliberate ’ in Warton but the very words of the plaintiff’s imputation repeated not once but (in the case of ‘ misleading ’) four times in a context of the plaintiff ‘ very well ’ knowing the contrary”.

29 The appellant contended that it is apparent from this passage that her Honour failed to consider the manner in which the respective parties had put the case to the jury and in particular failed to consider the appellant’s case. She thus failed to determine whether the jury could, on the cases put, have reasonably determined the question in the way they did. I agree that the question that her Honour had to determine, namely whether no reasonable jury could have arrived at the verdict in question, required her to engage in that process (see Beran v. Channel Seven [2003] NSWSC 272) . It is necessary, therefore, to understand the way that the case was put to the jury during the addresses of counsel for the parties, in order to determine whether her Honour had regard to those cases.

Mr. Signorelli’s case to the jury

30 Mr. Signorelli’s case to the jury was that the imputation conveyed in the matter complained of was that he had “deliberately misled” the patrons of Doltone House in order to induce them to sign a petition. Senior counsel for Mr. Signorelli addressed the jury on the basis that this meant that the respondent had lied. For example, he said to the jury:

“We can phrase it on the basis that the plaintiff is deliberately misleading , that the plaintiff is lying , or to use that phrase, that the plaintiff is being perhaps a little [economical] with the truth”. (T. 21) (emphasis added)

31 He repeated this in various ways. For example, he quoted from the portion of the 21 May letter to Mr. Signorelli that stated:

“… the information you gave them is misleading, to say the least. It is a lot more than just misleading … ‘You know very well it’s misleading’”

telling the jury that this amounted to saying:

“[Y]ou are deliberately misleading the public”, … pointing to the fact that it is deliberately so. He’s lying” (emphasis added)

32 However, cognisant of the argument that the word “deliberately”, did not appear in the text of the matter complained of, senior counsel for Mr. Signorelli explained to the jury:

“The letters don’t actually say ‘deliberately misled’ … [T]he contrast between the first and second paragraph [of the 21 May letter] makes it absolutely plain that it is a case of deliberately misleading … [ I]t doesn’t actually say that the person was lying but that’s clearly what that phrase means ” (emphasis added)

33 Thus, on the way the respondent’s case was put to the jury, the jury were being asked to decide whether an imputation was conveyed, not only that the respondent had engaged in conduct that was deliberately misleading, but that he was, in fact, dishonest in his conduct. This case was broader than the imputation pleaded. The imputation pleaded was that the respondent had “deliberately misled” persons in relation to the disabled lift, the word “deliberately” itself having to be inferred.

34 An allegation that conduct or statements are misleading does not necessarily mean that the conduct or statement is alleged to be a lie or complete falsehood. A statement could be misleading without being false per se, e.g. where it reveals only part of the truth. However, that is not how the respondent asked the jury to view this imputation. Senior counsel specifically put to the jury that what was conveyed by the matter complained of was that he had deliberately lied, that is, that he was dishonest. The consequence of the respondent putting his case this way was to ask the jury to determine that a serious, “most grave” libel had been published.

The Mayor’s case to the jury

35 Senior counsel for the Mayor addressed the jury on the basis that the ordinary reasonable reader would not read the letters in that way. Rather, he submitted that the ordinary reasonable reader would have understood that what had been published was “the council’s position in the debate, namely contrary to the contention of the developer, who was saying that the council wouldn’t approve the development; the council would approve the development subject to [conditions]”. He suggested to the jury that if it had been the intention to say that the respondent had “deliberately misled” the petitioners, the 21 May letter would have said so expressly.

36 Senior counsel went on to explain to the jury that a person who alleged defamation could rely upon a number of imputations, some serious, some not so serious, but that if a plaintiff chose “the most grave” imputation that might arise from the matter complained of, that person was at risk that the jury might find that the most grave imputation did not arise. He pointed out that in this case there were a number of imputations which could have been alleged. He put this proposition directly in context:

“Members of the jury, this is not a case where the plaintiff says, ‘I am defamed because it has been published of me that I misled petitioners. This is not a publication which it says of me that I failed to provide accurate information to petitioners.’ He says that this is a publication which accuses me of telling an outright lie to petitioners”

He reminded the jury that that meaning was only obtained by drawing inferences and innuendos from the matter complained of, and that the ordinary reasonable reader would not do that, nor would that reader “ quickly jump to the conclusion that what’s being said about [the respondent] is the most serious and grave charge ”.

37 Senior counsel for the appellant next explained that it was not necessary for the jury to consider whether other imputations were conveyed. They were concerned with the imputation about which they had been addressed, which was an imputation of the gravest kind. He repeated that, had the appellant intended to make that grave imputation, it would be expected that specific words to that effect would be contained in the material. He reiterated that the only way to find the words “deliberately”, “lie”, “porky”, “economical with the truth” was “to tweak them out”.

Alleged error

38 The appellant submitted that her Honour erred in three respects. First, she argued that it could not be said that the alleged matter complained of must have conveyed the imputation. This was the fundamental challenge to her Honour’s determination. Secondly, the appellant contended that her Honour failed to have any regard to the way the respective cases of the parties had been put to the jury in reaching her conclusion that the jury’s answer was one no reasonable jury could reach. Rather, it was submitted, she had substituted her own view as to whether the imputation was conveyed. This particular challenge comprised the major portion of the argument on the appeal. Thirdly, and this challenge may be no more than a combination of the first and second challenges, the appellant contended that her Honour failed to consider whether there were different ways the jury could have interpreted the matter complained of and only considered an interpretation that inevitably led to a conclusion that the question whether the imputation was conveyed should be answered “yes”.

39 In order to determine whether the appellant’s contentions are made out, it is necessary to consider in some detail, her Honour’s approach to the question for her determination. Her Honour’s “Analysis of the matter complained of” is contained in [42]- [49] of her reasons.

Approach of trial judge to the jury’s answer

40 Her Honour first identified the matter complained of: [42]. She then referred to the contents of the Mayor’s letter to the petitioner: [43] and the 21 May letter to Mr. Signorelli: [44].

41 At [45] her Honour dealt with the anonymous letter from the local resident stating that it complained of “untrue and grossly misleading statements by the plaintiff that Council would not allow a disabled lift to be built”. However, this was an incorrect understanding of the letter. The subject of complaint in the letter was that the master of ceremonies had stated at a function “[t]hat the local residents of Sylvania Waters would not allow Doltone House to put in a ‘disabled lift’” (emphasis added). A mistake in a judgment as to the meaning of a particular document does not necessarily lead to appealable error. Some mistakes can be innocuous. However, her Honour’s wrong understanding of the letter is relevant for two reasons. It is convenient to deal with the first of those now, namely the question of endorsement. Senior counsel for the appellant had raised the question whether, by publishing the resident’s letter to the petitioner, the appellant had thereby endorsed the statements made in it. Her Honour did not directly address that question. However, it is clear that she considered that the appellant did endorse the contents. This is apparent from her comments at [46] to which I refer shortly. However, when the subject matter of the anonymous letter is correctly understood, it becomes possible, and even likely, that its publication to the petitioner was as a matter of information to put the petitioner “[I]n the picture”. It was also a means of pointing out to the petitioner that the local residents were supporting the Council’s position.

42 At [46] her Honour considered whether the jury’s answer could stand on the tests stated by the Court in Channel Seven Sydney Pty Limited v Parras [2002] NSWCA 202 and Nationwide News Pty Limited v Warton [2002] NSWCA 377. Both those cases were appeals from determinations in s.7A jury trials. In Parras the Court was concerned with the question whether a television broadcast conveyed the imputations alleged. Mason P (Handley JA and Ipp AJA agreeing) said at [17] “The issue in this Court in relation to the imputations is not whether the jury was right or wrong, but whether it was open to them to find that the ordinary reasonable viewer would have understood the news segment in the defamatory senses pleaded” (emphasis added). The Court concluded that the jury determination that the imputations were conveyed should stand except in respect of one imputation.

43 Warton was also an appeal to the Court from a determination by a jury in a s.7A jury trial. Relevantly for present purposes, the question considered by the Court was whether it was perverse for the jury to infer of the plaintiff that he was a dishonest man from statements made in relation to a specific dishonest act. In that context, Heydon JA stated at [61] “The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them.” (emphasis added)

44 Her Honour attributed to the statements of Mason P and Heydon JA the enunciation of a more liberal test than was later stated by the Court of Appeal in Rivkin. On that supposedly even more liberal test, her Honour considered that the jury’s finding in this case would be set aside as the imputation “was open to ordinary reasonable readers to infer”.

45 Parras and Warton were different from this case in that the Court in each was dealing with a jury determination that an imputation had been conveyed. Even so, the test in determining whether the determinations could stand involved the application of the same test. For my part, I do not consider that the tests stated by the Court in either of those cases was different in substance from that in Rivkin. One of the two possible answers to the question “whether the determination was one at which no reasonable jury could arrive”, is that it was open to them to so decide. The other answer is that it was not open. It is not for the Court to enter further into the debate so as to ask whether in its opinion the jury was right or wrong.

46 In my opinion, both Mason P and Heydon JA in the passages to which her Honour referred were doing no more than positing the answer to the proper question for their determination. But in any event, it is not necessary to delay over the status of the tests stated by Mason P and Heydon JA respectively as the appeal proceeded on the basis that the test to be applied was that stated by the High Court in Rivkin. Nor did her Honour do so. However, she did use her view of those cases to reinforce her conclusion that the imputation was conveyed. To this extent, her reasoning in this paragraph is relevant in that it underscores the one dimensional approach her Honour took to the determination in substituting her view for a consideration of what view or views were reasonably open to the jury. That approach, as I consider further below, was not correct.

47 Her Honour next, at [47] exposed her view on the operation of s.7A, having first stated that “jury verdicts should be set aside only in the exceptional circumstances outlined… in Cairns and Mideastern Airlines”. The statements in those authorities may now be subject to some qualification given comments made in Rivkin. However, as the appeal does not involve that aspect of her Honour’s judgment, it is not appropriate to embark upon any consideration of that question.

48 There then followed her Honour’s critical conclusion at [48]. I have already set out that paragraph in full. However, it is necessary to consider her Honour’s reasoning in this paragraph in some detail.

49 Her Honour commenced her conclusion by reference to “the old-fashioned stringent test in Rivkin”. At the time of her judgment, the High Court’s decision in Rivkin had not been handed down and her Honour’s reference was to the Court of Appeal’s decision. In Rivkin, Callinan J considered that “… the Court of Appeal may have adopted a more demanding test than the law requires”. The test, as stated by the High Court (in slightly different language in each of the judgments), to be applied in determining whether a jury verdict should be set aside is whether “the finding is one that no reasonable jury could reach” per Callinan J at [185]. As I have already indicated that is the same test as stated by Kirby P in Costains. It may be, therefore, that her Honour applied a more stringent test than was required. Had she correctly applied an even more stringent test than that then her Honour’s conclusion would withstand scrutiny on a less stringent test. However, that does not resolve the issues in this case as the essential challenge to her Honour’s determination is that, having stated the principles to be applied, her Honour failed correctly to apply those principles to the question she had to determine.

50 In the next portion of [48] her Honour stated:

“The [appellant] says, in her letter of 21 May 2002, in trenchant terms , that she will be providing the information in that letter to all those who have signed the petition.”

51 “Trenchant” is a word of variable meaning but at least means “emphatic” or “forceful”. It can also mean “acerbic”, “biting” “cutting”: Macquarie Dictionary. According to Roget’s Interactive Thesaurus it has the conceptual meaning of “unkindness”. Assuming for the moment that her Honour was using the word to mean “emphatically” it is still necessary to know to what her Honour was directing her remarks. If she meant to say no more than that the Mayor was stating emphatically that she was going to provide the letter to the persons who had signed the petition, then the comment would seem to be directed to questions of publication or perhaps malice. However, those matters were not in issue.

52 It seems more likely that her Honour was directing her comments to the final words of the letter, namely, “pointing out that the information you gave them is misleading to say the least”. Those words seem to be the real shaft in this part of the 21 May letter to Mr Signorelli. If her Honour was directing her comment to that part of the letter then her Honour’s judgment must be viewed as a statement that the words “misleading to say the least” conveyed the imputation alleged, or when viewed with the other comments in the letter, bore the imputation alleged. That, of course, is an available view. However, the question that her Honour had to consider was whether that was the only view or, to put it another way, whether a reasonable jury could have come to some alternate, less critical understanding of the phrase, as submitted by the appellant.

53 Her Honour next stated that there was no question of the plaintiff supplying really wrong or inaccurate information about the disabled lift because he knows “very well to the contrary”. Her Honour married that statement with the statement taken from the anonymous letter: “These statements are ‘untrue and grossly misleading’”. As I have already indicated, her Honour misunderstood the anonymous letter. In my view, by taking those two statements in conjunction, her Honour’s misunderstanding of the anonymous letter fortified her view that the imputation was conveyed. This is the second reason why her Honour’s misunderstanding of the letter has relevance beyond the fact of mistake as to the subject matter of the letter.

54 Finally, her Honour stated that “this is not only the kind of conduct the Court of Appeal described as ‘deliberate’ in Warton but the very words of the plaintiff’s imputation repeated not once but (in the case of “misleading”) four times in a context of the plaintiff ‘very well knowing to the contrary’. For myself, I do not consider that the passage in Warton upon which her Honour relied assists. The Court in that case was concerned with the question whether the material complained of contained the imputation that the plaintiff was a dishonest person. The word “dishonest” did not appear in the text of the article. Having found that the imputation was conveyed, the Court was then required to consider the further question whether a publication which related to a single specific incident was capable of supporting an imputation of general application. Heydon JA in the passage relied upon by her Honour, said at [61]:

“The article does not suggest that the plaintiff’s act is other than an isolated act of dishonesty, but it does suggest that it is a most serious act of dishonesty … The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them”.

55 That was a different question from the question her Honour was considering. However, owHowher Honour’s approach at this point was to interpret the words of the letters as meaning only one thing, namely that it involved an accusation of lying. She did so without giving consideration to any alternate view that could be taken of the matter complained of. For example, she did not consider whether a jury could have understood the Mayor to be telling Mr Signorelli, in strong terms, no more than that he was putting forward wrong or inaccurate information to various persons in the community.

56 It is also apparent from her Honour’s reasoning in [48] that she took a one-sided view of the context in which the statements were made. The matter of contention between the Mayor and Mr Signorelli was not whether a lift would be allowed or not allowed. It was a dispute about the conditions upon which a lift would be allowed. That is pointed out in the second paragraph of the 21 May letter to Mr Signorelli when the Mayor states “You know very well that Council will support a lift provided it is constructed within existing premises … and in accordance with the order from the Land and Environment Court”. The jury were entitled, indeed were obliged, to take that context into account in determining whether the matter complained of conveyed the imputation of deliberate misleading or dishonesty.

57 In my opinion, her Honour’s approach to the matter complained of, as articulated in this section of the judgment and in particular in [48], led her into ultimate error. There is no doubt that it was open to the jury to find that the imputation alleged, (both in the pleadings and as argued) namely that there had been a deliberate misleading and lying, was conveyed. But that was not the matter for her Honour’s determination on the application before her. Her Honour was required to determine whether no reasonable jury could have answered “no” to the question whether the imputation was conveyed. That task had to be undertaken by reference to the case put by each of the parties to the jury. The appellant put reasons to the jury why they would not accept that the imputation was one of deliberate dishonesty. Nowhere does her Honour deal with that. In my opinion, her failure to do so demonstrated that she was merely substituting her own, very strongly held view, that the imputation either as pleaded or argued, was conveyed. That approach was erroneous.

58 Her Honour thus failed to properly address her task under s.126. For that reason the appeal should succeed. The appellant seeks an order that the jury’s determination that the imputation was not carried “be recorded as the Order of the Court and judgment entered for the appellant in the proceedings”. To be entitled to that order, the Court also has to be satisfied that her Honour’s finding that no reasonable jury could have arrived at the determination it did was wrong, on the proper application of s.126.

59 In my opinion, it was open to the jury to determine that the imputation was not conveyed. The imputation was alleged at the most serious level. In order to be conveyed, it was necessary for the jury to infer two notions not expressly stated in the letter, namely the notion that there was an allegation of deliberateness and the notion that there was an allegation of dishonesty. In other words, the very aspect of seriousness that was alleged had to be inferred. It was certainly open for the jury to draw the inference and determine that the imputation was conveyed. However, it was also open for the jury not to do so. As the appellant had argued before the jury the matter complained of could well have carried imputations of a less grave import than that alleged. As part of that consideration, it may have concluded that the Mayor did not endorse the comments in the anonymous letter from the resident but communicated the contents of that letter for information purposes.

60 In my opinion, it could not be said that no jury could reasonably have determined that the grave imputation alleged was not carried. It follows that there was “no sufficient cause” to trigger the operation of s.126(2). Accordingly, the appellant is entitled to the order she seeks. In reaching this conclusion I have found it unnecessary to determine the question whether s.126(2) involves the exercise of a discretion once a determination has been made that “sufficient cause” is shown. The Court was given no assistance on the question and the issue may be left for an occasion when it arises directly. I would only make the comment that in this case, if the Court was required to exercise a discretion, it would not involve any additional consideration than a determination of the question whether any reasonable jury could have arrived at the determination it did.

61 The effect of my conclusion is that the appellant was entitled to have a verdict entered in her favour by the trial judge after the jury had given its answers. That ought now be entered. Accordingly I make the following orders:

1. Appeal allowed.

2. Orders made by Gibson DCJ on 19 August 2003 be set aside.

3. An order that the answer of the jury to the questions asked of them on 9 July 2003 be the verdict of the Court.

4. Judgment for the appellant in the proceedings accordingly.

5. An order that the respondent pay the appellant’s costs of this application and the proceedings in the court below.

62 SANTOW JA: I agree in general with the judgment of Beazley JA, though I would emphasise the following.

63 I consider that the carefully reasoned judgment of Gibson DCJ, with respect, fell into error for one principal reason. In discharging the verdict of the jury, the trial judge failed to acknowledge the possibility that, in assessing this particular material (the two letters), a jury need not be unreasonable (in the sense of giving an answer that no reasonable jury could give) in concluding that, while the respondent may have mislead, there was no deliberate falsehood. The case put to the jury by the plaintiff at trial was indeed one of deliberate falsehood. Though reference was made to being economic with the truth, the bar was raised rather higher than that. The sting of such an imputation of deliberate falsehood, if found to be conveyed, will render more probable an affirmative answer to the second question as to whether the imputation so understood was defamatory. It may also increase any eventual damages. But the plaintiff then runs the risk that a jury which would have answered “yes” to an imputation of being misleading when put in the address to the jury without reference to “deliberate”, will not be prepared to give an affirmative answer to an imputation of falsehood when deliberateness is also attributed in address to the jury.

64 The material in the Mayor’s letter of 21 May to Mr Signorelli starts by saying “I am concerned with the misleading way you are claiming to patrons of your establishment that Council will not support a disabled lift in Doltone House”. So far there is no statement that Mr Signorelli is being deliberately misleading.

65 She then goes on to say “you know very well that council will support a disabled lift provided it is constructed within the existing premises”. The jury could infer, without being unreasonable, that Council would not support a disabled lift as proposed, that is to say, not within the existing premises.

66 This is a further factual matter that the Mayor found omitted from the respondent’s explanation. To state that “you know [something] very well” does not mean that its omission by the plaintiff constitutes a deliberate falsehood. It could be understood by a jury as meaning no more than that there was a fact known to the respondent which the respondent chose not to add. That may be misleading, but it is not necessarily a deliberate lie. A jury could conclude there was no deliberate falsehood, despite one side complaining about the other’s version of the truth being incomplete, when it was correct as far as it went. Where there is a difference between “the truth” and “the whole truth”, that difference does not invariably render the incomplete version a deliberate lie. That will generally depend upon intention as well as whether the omitted statement would falsify the statement that was included, as distinct from placing it in a different but not necessarily contradictory light by giving additional context.

67 Council did not allow the lift to be built outside the premises. In that sense the application was either refused or had an unacceptable condition imposed, which the applicant appears to have treated as amounting to the same thing. A jury, without answering in a way no reasonable jury could answer, could conclude that it was misleading to omit the fact that the lift could be built within the existing premises, but that this was not a deliberate falsehood, for one or both of two reasons. The first possible reason is that there was no deliberate or intended falsehood. The second possible reason is that the omitted fact would not have falsified the statement actually made. Clearly one could not preclude either or both possibilities as open to a jury which was not unreasonable, in the sense described above.

68 I should add that such a conclusion is consistent with the approach by the High Court in John Fairfax Publication v Rivkin (2003) 77 ALJR 1657. In so respecting the jury’s verdict, one is not, in the words of Kirby J, bordering on the starry-eyed, or indulging in clever verbal hypotheses (at [146]).

69 HOWIE J: I have read the draft judgments of Beazley JA and Santow JA. I agree with the orders proposed and the reasons of Beazley JA and also the additional reasons of Santow JA.

**********

Last Modified: 05/10/2004