Bennette v Cohen

Bennette v Cohen - [2005] NSWCA 341 - NSWCA 2005 case summary — Zoe

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MONDAY, 24 OCTOBER 2005 JERRY LEE BENNETTE v IAN COHEN Judgment 1 BEAZLEY JA: I agree with Bryson JA. 2 BRYSON JA: The appellant Mr Bennette sued the respondent Mr Cohen in the Common Law Division for damages for defamation. The hearing before Hulme J and the jury extended over six days and the jury made its determination on 30 August 2004. The appellant now appeals against part of a verdict entered after determination by jury in accordance with s 7A(3) of the Defamation Act 1974. 3 The proceedings arose out of words spoken by the respondent at public meetings held at the Suffolk Park Hall, near Byron Bay New South Wales, on 7 April 2001 and 19 May 2001. The Third Further Amended Statement of Claim (hereinafter TFASC) dated 5 September 2003 included allegations to the effect that on 7 April 2001 the respondent whilst addressing a meeting of about 40 to 50 people spoke words which carried defamatory imputations against the appellant. Schedule A to the TFASC is a seven-page transcript of a recording, made by a person who attended the meeting of 7 April 2001 on the appellant's behalf, of what the respondent said when addressing the first meeting, and of several other minor events. The tape recording and other evidence showed that the respondent said the words in Schedule A. The whole of what he said is relevant but the principal source of the alleged defamatory imputations appears in the following passages:- (Red 5) The guy, um, has been through a lot of court situations. In fact, um, I have, um, I actually have a cheque in my pocket at the moment from Mr Bennette and he lost a case that he took against me, ah, where he's claiming that, er, I was, er, so threatening that he was in fear of his life and he took an AVO out against me because I went down to the site, asked by a number of people in the community to have a look at where he was working on the days that he was doing things that we consider not just, uh, inappropriate or, um, you know, environmental vandalism, which is what is occurring down there, but that he was working illegally. So I went down there, had a few words with him, ah, which were, uh, not particularly heated although as we walked away he sort of made some comments and so I called him a bully. I think I called him a thug and a bully and it came out in court and to be quite honest, he is. …………. And it's fantastic to see so many people here tonight and, ah, we're supporting Bill but we're supporting ourselves and we're supporting the environment and the man is relentless. To think that he got a, and this is what started the problem I think, he got an award from the Department of Land & Water Conservation - digging a ditch through and yeah, you know, a lot of us don't have the time and energy to chase every one of the things that we have done and I believe, or should I say if I'm in, in doubt ask a question, if you think you're going to get hit by defamation, did he manipulate the system? I'll leave it up to you. 4 The appellant alleged that the words spoken conveyed eleven defamatory imputations, and I set them out with the jury's determinations on the first question:- (Red 72) Q1. Has Mr Bennette, the plaintiff, established Mr Cohen, the defendant, published matter which conveyed to an ordinary reasonable listener of and concerning the plaintiff any of the following imputations or imputations which do not differ in substance. (a) the plaintiff is a vexatious litigant. FOREPERSON: No.

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The jury's verdict that imputation (c) is not defamatory be set aside. 2. Verdict on that issue be directed in favour of the appellant. 8 The Notice of Appeal was filed purportedly as of right, and until the hearing the appellant did not seek leave to appeal. The appellant did not comply with Pt 51 r 8 of the Supreme Court Rules 1970, with which it would be necessary to comply if the right of appeal was that conferred by s 101(1) of the Supreme Court Act 1970, as that right of appeal is restricted by s 101(2)(r) by reference to an amount or value of $100,000. The respondent objected to the competency of the appeal by a letter of 27 October 2004 and applied by Notice of Motion filed on 8 February 2005 for an order that "the appeal… be struck out on the grounds that the Appellant should have sought leave to appeal from the decision of the jury and is not entitled to appeal as of right." By consent of the parties the Registrar ordered that the Notice of Motion be adjourned to the time of hearing the appeal. This was not a convenient course; the question whether appeal lay without leave should have been determined at a relatively early point when it would not have been necessary for the parties to prepare fully for a hearing of the appeal. During the hearing of the appeal Senior Counsel for the appellant applied orally for leave to appeal, and sought leave to file Notice of Motion and supporting affidavit. The Court did not decide whether to allow the Notice of Motion to be filed or whether to grant leave to appeal, but took those matters under consideration when reserving judgment. Senior Counsel sought to read an affidavit of Mr T. J. Carter, solicitor, sworn 4 February 2005 to show what should have been shown by an affidavit under Pt 51 r 8; the contents of the affidavit were ruled inadmissible. 9 Where determinations of juries under s 7A of the Defamation Act 1974 are challenged it appears to have been the practice, usually but perhaps not invariably, to seek leave to appeal as required by s 101(2)(e) of the Supreme Court Act 1970 for an appeal from: an interlocutory judgment or order in proceedings in the Court;

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An observation to a similar effect was made in that case in the Court of Appeal: Waverley Municipal Council v Swain [2003] NSWCA 61 at para 8. The Court there referred to s 75A, which excepts appeals arising out of trial with a jury when making provision for appeals by way of rehearing. 11 Classification of the decision under appeal as interlocutory or final does not have a part in s 102. The terms of s 102 show contemplation that there could be a trial with a jury of an issue in proceedings which was not a trial of the proceedings, but of something less; s 102 also shows contemplation that there may be an application for the setting aside of a verdict after a trial of an issue in proceedings with a jury even though the proceedings as a whole have not been determined; these are interlocutory. Section 102 contains faint reflections of historical differences between procedures by which jury decisions were challenged at Common Law, and rights of appeal created by statute. In the procedural reforms effected by the Supreme Court Act 1970 it was necessary to make it clear that the applications referred to in s 102, which earlier were heard by the Full Court, should be heard by the Court of Appeal, as otherwise they might (for the first time) have been heard by the Court constituted by a single judge. 12 The difficulty in understanding s 102 is to know its relation to s 101; does s 102 create a right of appeal, and empower the Court of Appeal to hear and determine appeals, or does s 102 do no more than direct the applications to which it applies to the procedural course of appeal to the Court of Appeal, but subject to any limitations which are provided for otherwise, including the limitations in s 101? The provisions of s 102 do not easily fit into the scheme of s 101, in particular into the requirement which s 101, which has been amended many times, has always made for leave to appeal from an interlocutory judgment or order but not, or not in the same terms, from a final judgment or order. A verdict is not a judgment, nor is it an order. The verdict of a jury at a trial of proceedings could be seen as having an interlocutory character, although in the usual course it would be followed, almost immediately, by a judgment based on it; but that usual course would not always be followed, and much would depend in the circumstances which led to there being a trial of an issue in proceedings with a jury, not being a trial of the proceedings. Section 102(a) relates to setting aside a verdict , an expression not found in s 101, as well as a judgment , a key but undefined expression in the working of s 101; paragraph (b) does not use any corresponding expressions and paragraph (c) refers only to a verdict. The opening words of s 101(1):- Subject to this and any other Act…an appeal shall lie to the Court of Appeal…

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show that if a right of appeal is conferred elsewhere in the Supreme Court Act 1970 than in s 101 the provisions of s 101 including the restrictions on the right of appeal do not apply to it. It is only the presence of s 101 which raises any question about the operation of s 102; if s 102 stood on its own there could be no doubt that it confers a right of appeal and empowers the Court of Appeal to hear appeals. 13 Section 102 of the Supreme Court Act 1970 was enacted long before s 7A of the Defamation Act 1974 and without contemplation of procedure of the kind for which s 7A provides, but that procedure falls within the reference in s 102(2):- …a trial…of any issue in the proceedings with a jury… 14 In Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 at [62] the view of Ipp AJA appears to have been that an answer given by a jury to a question posed under s 7A is a verdict within the meaning of s 102. A jury's answer to a question left to them by the judge is not a verdict for all procedural purposes - see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 761, dealing with legislation no longer in effect - but the verdict for the respondent which the Court in fact entered in the present case in reliance on those of the jury's answers which favoured the respondent is a verdict of a kind of which s 102(a) speaks. A jury's determination in accordance with subs 7A(3), although not referred to in that subsection as a verdict, falls within the ordinary meaning of the word "verdict", no less so because it is usually and I would think necessarily given in the form of answers to questions, and in my opinion it falls within the meaning of "verdict" in s 102(a). Compare Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [45] (Hunt AJA). As Ipp AJA observed in Charlwood Industries Pty Ltd v Brent: Indeed, if an answer given by a party to a question posed under s 7A were not to be regarded as a verdict, there could be no appeal from the jury's decision.

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The force of this observation is shown by the absence of reference to appeals against verdicts in s 101, which gives rights of appeal against judgments and orders. Even if it was not appropriate for Hulme J to enter the verdict for the defendant on the basis of the jury's determination on some imputations (and in my opinion it was appropriate) a verdict in fact was entered, and its entry gave rise to a right of appeal under s 102(a). 15 The appeal, as the Notice of Appeal of 12 October 2004 shows, is an application for the setting aside of the jury's determination, and that determination has been embodied in a verdict. In the circumstances I am of the opinion that the appellant has a right of appeal to the Court of Appeal conferred by s 102. The appellant may have but has not exercised another right of appeal conferred by s 101, which would be subject to the requirement for leave in s 101(2)(e); but the right of appeal which he has exercised is not subject to the requirement for leave in s 101(2)(e) notwithstanding the interlocutory character of the verdict. Because the verdict is not a final judgment or order, the value and amount limits in s 101(2)(r) could not apply to it, so that the appellant was not required to comply with Pt 51 r 8 of the Supreme Court Rules 1970. There is no requirement for leave to appeal and leave should not be granted. The appellant should not be given leave to file the Notice of Motion claiming leave to appeal. 16 Senior Counsel for the appellant made an alternative submission claiming that appeal lay under s 103 of the Supreme Court Act 1970, which relates to appeal by leave from a decision of any question or issue ordered to be decided separately. It was contended that the direction for setting the proceedings down and appointing a date for trial with a jury under s 7A(3) was an order that the issue be decided separately. I am of the opinion that the direction was not such an order and that s 103 does not apply. Section 103 applies where there has been an order that a question or issue be decided separately from any other question or issue. Such orders are provided for by Pt 31 r 2 of the Supreme Court Rules. This is not the course which is taken when the Common Law Division conducts a hearing with a jury as it proceeds step by step through the course indicated by the terms of s 7A of the Defamation Act 1974. Decisions of the Federal Court of Australia to which counsel referred were not decisions on legislation corresponding to s 103 or on procedural courses corresponding to those under s 7A: see Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421, Arrowcrest Group Pty Ltd v Gill (1993) 46 FCR 90. 17 Practice Note 114 relating to the Common Law Division Defamation List states the practice in which a Statement of Claim is served with a Notice of Motion for Directions. On the return of the Notice of Motion the defendant is required to state whether it admits publication, issues for the s 7A trial are identified, issues as to the form and capacity of imputations are determined and the proceedings are set down for the s 7A trial. No Defence is filed at this stage. Orders for separate decision of questions are not part of the practice stated in Practice Note 114. 18 A direction setting a day for a s 7A trial with a jury is not an order of the kind referred to in s 103: such an order does not say what an order should say to conform to s 103. Nicholas J on 16 September 2003 ordered that the proceedings before him be conducted pursuant to Pt 31 r 2 as a separate trial of four questions, and then proceeded to determine whether the imputations alleged were capable of arising and were reasonably capable of being defamatory, and were to go to the jury. We were told that it has been the practice at directions hearings to make an order under Pt 31 r 2 for the decision separately from any other question of the matters for determination by the Court under s 7A(1). If this is the practice it is a good practice as it makes clear that the Court is not undertaking determination of all the issues mentioned in s 7A at the one hearing in which there is a determination by the judge under s 7A(1), then the issues for determination by the jury under s 7A(3) are taken up, and the judge proceeds to deal with the issues mentioned in s 7A(4) when the jury's determination is available; that would be unmanageably complex. In concept there could be an order under Pt 31 r 2 for decision separately from any other question of the issues which the jury is to determine, but in this case there was not and such an order seems superfluous as s 7A specifies which issues are to be determined by the Court and which by the jury and makes it quite clear that the determination by the jury is separate from the determination of other issues. 19 If leave to appeal were necessary I would be of the view that it should be granted, because the appellant's challenge to the jury's determination on imputation (c) is important to the parties, the merits of the appeal were fully argued, and some aspects of the matters argued may be of general importance; and on the whole it is better to determine the issues between the parties now than to require the appellant to bring another appeal against whatever determinations are finally made in the proceedings; it is likely that the dispute about imputation (c) would be a live issue in any appeal arising from the final judgment, whenever that may be given. The procedural course has been unsatisfactory, but in the situation which now exists the best thing to do would be to grant leave and determine the merits of the appeal before going to the next stage under s 7A. 20 Senior Counsel for the appellant contended that the Court of Appeal should direct a verdict for the appellant upon imputation (c) and give judgment accordingly, in exercise of the power conferred by s 108(3) of the Supreme Court Act 1970. Counsel for the respondent, while his primary position was that the jury's determination should stand, contended that if it were set aside the Court should not determine the issue itself, but should order a new trial, and that the new trial should relate to both the issues on imputation (c) which were before the jury. Neither party contended for a new trial on wider issues. The appeal was not based on any claim that there had been misconduct of counsel or misdirection by the Trial Judge. Adverse observations on the conduct of opposing counsel at the trial were offered to the Court of Appeal (as is almost universal in defamation appeals) but it was not contended that the Court of Appeal should intervene for that reason.

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21 A directed verdict under s 108(3) is available notwithstanding s 7A(3) and its allocation of functions to the jury; see Gorman v Barber (2004) 61 NSWLR 543 at 554-555 [57-58]. The subject of a determination of a jury under s 7A is limited and readily identifiable. This has exposed jury determinations to appellate review which had been rare when juries determined all issues and returned general verdicts in defamation. In Lockhart v Harrison (1928) 139 LT 521 at 523, referred to by McHugh J in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50, (2003) 77 ALJR 1657 at 1660 [19] it was said that only two such cases in a century were known. This has not been the experience in the operation of s 7A, but appellate interventions remain rare. The word "perverse" in the Notice of Appeal of 12 October 2004 states the test too highly, and in Harvey v John Fairfax Publications Pty Ltd at [55], [56] Hunt AJA reviewed case law on formulations of the test in recent times, commencing with Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708, and showed the state of opinion in the Court of Appeal as now informed by judgments in the High Court in John Fairfax Publications Pty Ltd v Rivkin. The cases where the Court of Appeal has intervened have been extreme, involving imputations of occupational dishonesty or incompetence, or of personal violence. The usual formulation is that the verdict if it is to be set aside must be one that no reasonable jury properly directed could reach; variations in expression are not significant. If the appeal is to succeed the appellant must show that no reasonable jury properly directed could reach the conclusion, on a publication which carried the imputation that the appellant had done illegal work which severely damaged the environment, that the imputation was not defamatory. The test challenges the appellate judge to restrain the influence of the judge's own interpretation and views, and to consider instead the range of determinations open to reasonable persons; intervention is justified only when there is no range. 22 If this test is satisfied the Court of Appeal has discretionary power under s 108(3) to direct a verdict for the appellant on that issue and give judgment accordingly; the alternative to doing so is to exercise the Court's Common Law discretionary power, as amplified by Pt 51 r 23, to grant a new trial of all or some of the issues determined by the verdict, or to withhold a new trial and allow the verdict to stand. Senior Counsel for the appellant did not ask the Court to order a new trial, but recognised that the Court might decide to do so and contended that at any new trial there should be close limits as to the issue to be determined and the evidence to be admitted. Senior Counsel contended that if the test for overturning a verdict, stringent as it is, is satisfied the jury acting reasonably on a retrial could only reach a verdict favourable to his client; hence the Court should enter a directed verdict. In this connection Senior Counsel referred to Callinan J in John Fairfax Publications Pty Ltd v Rivkin at [185]: "The law as I understand it to be, and which I will apply, is that a finding of a jury may only be overturned if it is one that no reasonable jury could reach." Another and possibly more stringent formulation was given by McHugh J at [20]: It is only when the publication contains a "plain and obvious defamation incapable of any innocent explanation" or where the words are "necessarily" defamatory that an appellate court is entitled to find that no reasonable jury could have failed to find the meaning alleged or that it was defamatory. (McHugh J went on to give supporting references). 23 Counsel for the respondent contended that if the verdict were set aside (which he opposed) there should be a new trial of both the questions which the jury decided on imputation (c); whether the matter complained of carried the imputation and whether the imputation was defamatory. He contended to the effect that the determinations of the jury on both matters were closely related and that if one were unreliable both should be treated as unreliable. Neither party contended in any event for a new trial on any imputations other than imputation (c). I see no possible grounds supporting an order for a new trial generally or on any wider issues than those upon imputation (c), as no ground for dissatisfaction with any other part of the jury's findings is discernible. 24 When determinations by juries of one or other issue in s 7A(3) have been set aside, the Court of Appeal has on a number of occasions remitted one or both issues to a new trial by jury; see Gorman v Barber at 552-553 at [43] where Mason P referred to a number of cases in which there had been new trials. Section 108(3) of the Supreme Court Act 1970 was not always adverted to in these cases. It is in my opinion established by Gorman v Barber that the Court may direct a verdict under s 108(3) notwithstanding the allocation of roles between judge and jury in s 7A. The test for the Court's intervention, understood with the benefit of the decision in the High Court in John Fairfax Publications Pty Ltd v Rivkin, is stringent and would not readily be satisfied, but when it is satisfied a directed verdict seems appropriate. If the jury's determination under s 7A(3) is set aside because it is unsatisfactory for some other reason such as indications of compromise a further determination by jury would be appropriate. There are no indications in this case that the jury's decision was reached with undue haste or compromise; see Gorman v Barber at [10]. Discussion by Hunt AJA in Harvey v John Fairfax Publications Pty Ltd at [100] to [108] illustrates that there are complexities in the application of s 108(3), but does not to my reading call into doubt the authority of Gorman v Barber; see particularly [104] and [107].

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25 In considering whether the imputation was defamatory it was for the jury to consider the meaning of the words used and of the imputation in the context of the respondent's address to the meeting. The principle on which this is so is explained in Greek Herald Pty Ltd v Nikolopoulos & Ors (2002) 54 NSWLR 165 in the judgment of Mason P at 172 - 173 [19] to [27]. The whole passage is important but I will abstract some passages: [21] …Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction… [22] Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true… [26] At the point of general principle, it is well established that the words complained of must be construed as a whole and in context… [27] …The jury are to embark upon their two-fold task by considering the pleaded imputations in the context of the matter complained of. 26 Some events at the trial illustrate circumstances in which the jury reached their decision. Counsel for the respondent objected to the terms of the opening address presented to the jury by Senior Counsel for the appellant and after some debate Hulme J told the jury, before oral evidence began, to bear in mind that the appellant bore the onus of proof on the balance of probabilities of the various matters which he asserted. (Combined Book 32) 27 In the course of his closing address to the jury Senior Counsel for the appellant read out the whole transcript of the words spoken by the respondent at the meeting. Senior Counsel dealt with each alleged imputation and in relation to imputation (c) read out the passages from the transcript which refer to environmental vandalism and to working illegally. In relation to environmental vandalism Senior Counsel said (Combined 36):- Is that a strong expression? The imputation doesn't say "environmental vandalism" it says "severely damaging the environment" but that's what I mean about in substance the same, it is exactly the same in substance. If you say " someone is an environmental vandal" it means they severely damaged the environment. He goes on after mentioning environmental vandalism and hammers the point home. He says, lest there be any doubt "which is what is occurring down there" in other words he is saying, that is what it is. It is environmental vandalism. He adds "but that he was working illegally". What the imputation says, "done illegal work which severely damaged the environment". How I ask you rhetorically members of the jury, could there be any doubt about whether that message could have been conveyed to a listener. 28 The appellant's case with respect to imputation (c) was presented to the jury clearly by his Senior Counsel but some other imputations had much more prominence. In the context of imputation (k) Senior Counsel referred to the later passage relating to digging a ditch and said (Combined 44):- Then he says this. He says, "This is what started the problem" - just pausing there the listener would think well what problem are you talking about Mr Cohen? Well he explains. He says, "Well Mr Bennette got an award from the Department of Water & Land Conservation" for digging a ditch. So he his suggestion is that he has won some kind of environmental award for digging a ditch from a Government department. Doesn't that sound odd? The suggestion here is that there is something sinister going on. It is ridiculous to get an award for, "Digging a ditch." Why this is what is raised by Mr Cohen - why did this Government department give him an award for doing basically for doing nothing? Well, he goes on, by saying "don't have the time and energy to chase everyone of the things". He says, "If you think you are going get hit by defamation? Did he manipulate the system? I'll leave it up to you.

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Later (at Combined 63) counsel said: So we would suggest to you that what is not conveyed to the ordinary reasonable reader which you should circle no in question 1 is (a), (b), (c), (f), (g), (h), (i), (j), (k). But (d) and (e) would be conveyed to the ordinary reasonable listener. 31 With respect to the question whether the imputations were defamatory counsel for the respondent said: (Combined 63-65) That brings us to the issue as to question 2 whether in respect of those imputations you have answered yes in question 1, "has Mr Bennette established that the imputation was defamatory of him". To be defamatory it would have to injure the reputation of Mr Bennette. Is Mr Bennette's reputation injured in the eyes of reasonable or good thinking members of society, what would right-thinking people, would they think less of Mr Bennette because of those imputations. You don't know anything about Mr Bennette's reputation as it is, and there is no evidence about it. As I say, that's for another day, what my friend did say this at 168. This transcript is official. This is what is said in court and my address is taken down, as Mr Reynolds' and the evidence of the witnesses and so on is, and if there is any part you want read or looked up you have only got to send a note and it will be read to you. But he did say this: "Could anyone, I ask you, look my client in the eye and say that any one of those meanings does not have a tendency to cause ordinary people to think the less of him." You don't have to look Mr Bennette in the eye, you just have to determine whether these imputations were defamatory and would be likely to or would have a tendency to injure Mr Bennette's reputation. Now, whether an imputation is defamatory depends on the context and the circumstances of the publication of the matter which conveys that imputation. For example, a speech made in a serious formal function in the Great Hall of Sydney University would be expected to be taken seriously by the ordinary reasonable listener and imputations conveyed, the ordinary reasonable listener might very well find them defamatory. That's one extreme. But where do we hear thug, bully, I don't mention all these adjectives. At a meeting like this in the Suffolk hall, at the racecourse, at the football. Now, I don't know if any of you have been to the racecourse or the football, but at the racecourse there's eight or more horses in the race and there is a winner and there are punters around the saddling yard who back all the horses. The ones who back the winner there are jeering, and what are the others doing? They are calling out to the jockey you - I am not going to say it - Beadman, you so-and-so. They are abusing the jockey. At the football sometimes the referee makes a decision, so-and-so Harrigan, your a so-and-so. That is abuse, and abuse and insults are not defamation. That's well settled. So if you think that any imputations conveyed by Mr Cohen from the speeches that he made amounted to vulgar abuse or insults then they are not defamatory. Abusive language, insults are not defamatory because no-one would take them as conveying a defamatory meaning and the ordinary reasonable listener would be entitled to think they were not intended to convey a defamatory meaning. Words that are said in the heat of passion, such as Mr Cohen's speech with a supporting crowd, you would be entitled to think were never meant to be other than a bit of a tirade of abuse against Mr Bennette and no way intended to injure Mr Bennette's reputation, no way intended to convey any defamatory meaning or did convey a defamatory meaning. I think my friend virtually conceded this in his address at 168 line 10. My friend actually said in his submissions, recognised this abuse, vulgar abuse. He says, "Mr Cohen, if I may use a colloquial expression, loads up and gives Mr Bennette both barrels." And that's what he did, just like the punter expressing his rage at George Moore or Darren Beadman or the football spectator venting his rage against Bill Harrigan, the referee with pointless vituperations, vulgar abuse, it is a matter of speech. This is a matter of fact for you to determine, but Mr Reynolds himself said that Mr Cohen is loading up and giving Mr Bennette both barrels, which he did. Now, what are typical words said in the passion of the speech in the heat of the moment, what are typical words that could be construed as vulgar abuse, insults. Well, thug, Mr Bennette is a thug, a thug, a thug, a bully, a bully, a bully. Not once, not twice. If you look at all the imputations, (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), all sit in the heat of the moment, government corruption, vexatious litigant, he is letting off steam, a tirade of abuse, which we say would not be understood as being defamation. 32 Counsel for the respondent did not refer further to imputation (c) except in a passage where he asked the jury to give favourable answers. 33 The address to the jury by counsel for the respondent was followed by an application by Senior Counsel for the appellant for discharge of the jury. Hulme J did not discharge the jury, but he gave the jury directions which corrected a number of things which counsel for the respondent had said. 34 After the conclusion of addresses Hulme J heard submissions on some matters with which it was contended that the summing-up should deal. The copy of Hulme J's summing-up in the Red Appeal Book is marked "Draft", it is not certified by his Honour or his Associate, and at places it is difficult to follow suggesting need for revision. Part 51 r 30(1)(b)(iv) of the Supreme Court Rules 1970 has not been complied with and the results are unsatisfactory. The poor state of preparation is a factor adverse to the grant of leave to appeal, though not a conclusive factor. In quotation from the summing-up I will make what I regard as obvious revisions, indicated in italics. 35 Senior Counsel for the appellant, among other things, made submissions the burden of which was that counsel for the respondent had presented or assumed the wrong view of the law in his submissions relating to vulgar abuse. Senior Counsel's contentions were to the effect (transcript 274) that Hulme J should withdraw any consideration of "this whole idea of 'vulgar abuse'" from the jury because the imputation alleged could not as a matter of law constitute vulgar abuse at all. Senior Counsel contended that treatment of the issue of vulgar abuse or mere vulgar abuse was not governed by the decision of the Court of Appeal in Mundey v Askin [1982] 2 NSWLR 369 as that was a decision on the Defamation Act 1958 and was therefore not applicable to the Defamation Act 1972. 36 Hulme J directed the jury to put out of their minds some matters which counsel for the respondent had mentioned. The fifth of these directions was (Red 24-25): Mr Evatt also said that of (delete of) abusive language, insults are not defamatory . That is wrong. Words which are mere abuse or insults are not defamatory. But that only poses the question whether what was said was mere abuse or insults or did it go further. I suggest that what you do here is concentrate on the questions you have been asked. 37 When dealing with the imputations Hulme J said: (Red 26-27) The first paragraph dealing with matters other than what I call legal proceedings is (c). Can I particularly draw your attention to the words "illegal work" and "severely damaged the environment". The inspiration for this suggested imputation is the part of the speech which was in these terms: "I went down to the site asked by a number of people in the community to have a look at where he was working on the days that he was doing things that we consider not just inappropriate or, you know, environmental vandalism, which is what is occurring down there but that he was working illegally." Now, the words "working illegally" were used. The word "environmental" was used. The word "vandalism" was used. The words "severely damaged" were not. It is a matter of whether you infer what was said conveyed that imputation. 38 Soon afterwards Hulme J said: (Red 27-28) Could I just go back for one moment to 1(c) and tell you that the tape reference to the passage relied on there is at about 36.4. I do not intend to try to give you all the tape references for those where there are numerous ones but where there is one little paragraph relied on I should seek to do so. 39 When dealing with the question whether imputations were defamatory, there is no record of Hulme J dealing specifically with imputation (c); in this respect the record may well be defective. 40 At the conclusion of the summing-up Senior Counsel for the appellant asked Hulme J for several redirections, none of them relating to imputation (c). Counsel for the respondent asked his Honour to direct the jury that the imputations would not necessarily be defamatory if the jury were of the opinion that they amounted to vulgar abuse; counsel did not accept the phrase "mere vulgar abuse" (Red 53-56). The burden of this submission is shown by this passage (Red 55-56):- EVATT: I want your Honour to direct the jury in considering whether the imputations plainly were defamatory, they are entitled to take into account the circumstances of the publication; whether the words were said in the heat of passion or similar; were they a tirade and if the jury came to the conclusion that the words were insults or vulgar abuse or insults and mere vulgar abuse - I prefer the former to the latter - then that would not be defamatory and would not be likely to injure the reputation of the plaintiff. In other words, that what was said the jury are entitled to come to the conclusion may have been said in the heat of the moment and could be construed by them as vulgar abuse or mere vulgar abuse and therefore would not amount to defamation. Now, I ask your Honour to put that. That was the -- HIS HONOUR: Yes. EVATT: --basis of my submissions. Counsel for the respondent asked for several other directions, not specifically relating to imputation (c) and said: (Red 58) As I say, my main argument in respect of all the imputations was this issue of vulgar abuse. I think that is the only matter I wish to draw to your Honour's attention.

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Senior Counsel for the appellant opposed any further direction on the subject of vulgar abuse (Red 60). 41 Hulme J then gave some further directions to the jury. Among these was the following: (Red 64) He [counsel for the respondent] also submitted that I should point to you and I do, that in considering whether the imputations arose and were defamatory, you were entitled to take into account the circumstances of the publication, whether what was said was said in the heat of passion; for example, just a tirade, and these are my words not his, whether they should be regarded as "mere" - I emphasise that word - "vulgar abuse and insult". 42 After the jury retired, the jury asked questions in these terms:- (MFI-2) 1) Does the context in which the speech was given have a bearing on what is defamatory? Should or can the ordinary reasonable listener (the Jury) take into account that the speech was delivered to an audience which was likely to be "anti" Bennette & "pro" Cohen, given that it was a fund raising occasion in support of McKay against Bennette. Therefore is the impact of the Imputation(s) less likely to be defamatory? 2) In 1(c) two meanings are contained in the one statement. If one meaning is found and the other is not is the entire statement dismissed/disregarded? 43 The questions show that the jury gave close consideration to their task and among other things to imputation 1(c). Their second question relates to whether the matter complained of carried imputation 1(c). Their first question does not to my mind indicate any concern with the question of mere vulgar abuse. 44 After hearing counsel's submissions Hulme J gave the jury the following further direction: (Red 68-69) HIS HONOUR: In answer to your questions which I have marked for identification and directed they be kept with the Court file, I respond this way to the opening words. Does the context in which the speech was given have a bearing on what is defamatory. The circumstances of the speech are relevant I pick an example, way away from this case. A jester, a joke teller on a stage, I might hear him saying things and take the view that the fact it is just a bit of a farce is relevant to bear in mind and may mean nothing, what was said, but in answer to the body of that second question, should or can the ordinary reasonable listener, the jury, take into account the speech that was delivered to, I will say a particular audience, I am summarising, the answer is no. They do not take into account the pre-existing views or opinions or pre-disposition of the audience. In answer to your question numbered 2, I am slightly misquoting, if two meanings are contained in the one statement and only one is found and the other is not, I would answer this way. If the imputation is contained in 2 components, and only one is made out then the imputation is not established unless the part not established is inconsequential so that what remains is still the substance established. 45 The deliberations of the jury are unknown and there is no means of knowing whether the question of vulgar abuse or mere vulgar abuse had any influence on their decision on imputation (c). To my mind, necessarily surveying the question from a distance, it is difficult to see how any conclusion other than that imputation (c) was defamatory could be reached except on the basis of considerations of whether or not the statement was likely to affect the appellant's reputation. 46 The authoritative source of the law of New South Wales relating to vulgar abuse in defamation is the decision of the Court of Appeal (Moffitt P, Reynolds and Samuels JJA) in Mundey v Askin [1982] 2 NSWLR 369. This case was decided in 1975 in proceedings under the Defamation Act 1958, but was reported later. In that case the defendant had in a political speech referred to a number of persons including the plaintiff with a number of adverse expressions, and in one of the two statements which were alleged to be the sting of the defamation he had referred to a class of persons including the plaintiff as "vermin". There was not then legislation to the effect of s 7A(3) of the Defamation Act 1974 and the questions which the jury was directed to answer did not differentiate between the determination that the matter complained of carried an identified imputation and determination that the imputation was defamatory; the questions asked treated those issues separately, but not in the manner for which s 7A(3) provides: see the questions to the jury at 371. In my opinion this does not make the observations of the Court which I will set out any the less applicable.

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47 In my opinion Mundey v Askin establishes the law of New South Wales on vulgar abuse in defamation and it is not useful to refer to authorities or texts based on or influenced by defamation law in England or in any other jurisdiction in which there is or long was some significant distinction between slander and libel. We were referred to Gatley on Libel and Slander, 10th Edition (London 2004) at paragraph 3.33, pages 116-117; that highly respected text refers to authorities and principles from other jurisdictions but does not state the law of New South Wales. 48 The relevant passage in the judgment of the Court in Mundey v Askin (371-372) is as follows:- Secondly, it is submitted that his Honour fell into error in directing the jury (to use the expression of counsel for the appellant) that "the defence of 'vulgar abuse' was available". In the course of his directions the learned judge told the jury, in substance, that if they thought that any of the words complained of were no more than vulgar abuse, it was open to them to take the view that they were not defamatory. This, it is argued, he should not have done, because he was putting a substantial defence which had never been pleaded. We do not think this argument is right. In England, the general rule is that oral defamation - slander - is not actionable without proof of special damage. There are exceptions; of which the imputation of a criminal offence is one. Hence, in answer to an action based upon an imputation of that kind, and unsupported by any special damage, it was open to a defendant to plead that the words were spoken in jest, or as mere vulgar abuse, and were therefore neither intended nor understood to convey the imputation. See Gatley , 7th ed (1974), par 162, at pp 160, 161 and the precedent at p 639; and Uren v Australian Consolidated Press Ltd (1969) 71 SR (NSW) 29, at p 40; 90 WN (Pt 2) 1, at pp 10, 11, per Sugerman JA, as he then was. There, the plaintiff sued upon written material; and Sugerman JA said that the trial judge's reference to "mere vulgar abuse" was a misdirection, because the concept had never applied to other than oral defamation. Wallace P (at pp 33, 34; 4, 5) took the view that the character of the words - even though "mere vulgar abuse" - must be considered in the light of the definition contained in s 5; and this, it seems, the trial judge had failed to make clear. We do not think that his Honour was intending to put any defence of "mere vulgar abuse" to the jury; such a defence has no place in the law of New South Wales. Plainly enough, his Honour was endeavouring to point out that words might be abusive, vulgar or objectionable (and he was referring particularly to the use of the word "vermin"), without being defamatory. As he said, they might injure a man's pride without injuring his reputation. No exception can be taken to this. Certainly, if his Honour had said without more that, if the jury considered the words to constitute vulgar abuse they were not actionable, that might well have been a misdirection: because, as Wallace P indicated in Uren's case, abusive language may well tend to injure a man's reputation. But here his Honour was plainly drawing a distinction between what he called mere vulgar abuse, and defamatory matter. As he said: "The question is whether it was vulgar abuse or whether it was a matter that was likely to affect his reputation." Hence, the learned judge's remarks cannot be regarded as charging the jury that if the words were abusive they could not be defamatory. He was pointing out, wisely, we think, that abuse alone would not necessarily attract the definition in s 5, because words understood by reasonable men in that sense might fail to convey any imputation by which the plaintiff's reputation was likely to be injured. We do not consider this to have been a misdirection. 49 Section 5 of the Defamation Act 1958 was in the following terms:- 5. Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him, is called defamatory, and the matter of the imputation is called defamatory matter. The imputation may be expressed either directly or by insinuation or irony. 50 The Defamation Act 1974 does not contain a corresponding definition, and gives effect to the Common Law; see s 4(2): 4(2) The law relating to defamation, in respect of matter published after the commencement of this Act, shall be as if the Defamation Act 1958 had not been passed and the common law and the enacted law (except that Act and any enactments repealed by that Act) shall have effect accordingly.

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51 In my opinion it is clear from the passage I have set out from Mundey v Askin that there is not a dichotomy between vulgar abuse (or mere vulgar abuse) on the one hand and defamatory matter on the other, and that it does not follow from establishing that the matter complained of was mere vulgar abuse that it was not defamatory. What is for decision is whether the words spoken bore a meaning that was likely to affect the reputation of the person spoken of. "Vulgar abuse" and "mere vulgar abuse" are not terms of art nor are they capable of high definition or detailed exposition; but in determining the meaning of words used and whether their meaning was defamatory it may be open to consideration whether the terms used and the context in which they were used were such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them. This would not be the right conclusion on all statements which could accurately be described as vulgar abuse or mere vulgar abuse; much vulgar abuse is highly defamatory. "Mere vulgar abuse" is not a good or clear vehicle for the expression of the element in the interpretation of the words used that brings about the result that they were not likely to affect reputation. This topic has become associated with the expression "mere vulgar abuse" in a way which I cannot dispel, but I regard this as unfortunate because the matter under consideration is not whether the publication constitutes mere vulgar abuse, but whether the imputation which it conveys has a defamatory meaning: it may not have a defamatory meaning because the terms or the manner in which it is spoken show that it is not likely to injure reputation. 52 Section 13 of the Defamation Act 1974 deals with unlikelihood of harm and creates a defence where the person defamed was not likely to suffer harm; s 13 applies only to imputations which are defamatory, and deals with a different subject to that which I am at present considering. 53 Senior Counsel's submissions sought to promote their Honour's words (at 372D) "…that might well have been a misdirection:" into authority for the proposition that it would always be a misdirection to say that if words constituted vulgar abuse they were not defamatory. On the whole of the passage from Mundey v Askin, the position is less simple. As appears at 372D, abuse alone would not necessarily be defamatory because words understood by reasonable people as being abuse might fail to convey any imputation by which reputation was likely to be injured. 54 In his address to the jury counsel for the respondent on the whole (but not uniformly) presented vulgar abuse as an alternative to defamatory matter. In his submissions to Hulme J he asked for a direction that imputations would not necessarily be defamatory if they amounted to vulgar abuse: the "not necessarily" qualification and the room for decision were not easy to detect in what counsel said to the jury, although perhaps not entirely absent. The record of what Hulme J said on this subject is unreliable and may be defective but it is clear that he told the jury that it was wrong to say that abusive language and insults are not defamatory, and that they should concentrate on the questions they were asked. There was room for counsel to take a position which conformed to Mundey v Askin and to ask for a direction close to the terms of the observations of the Court of Appeal in that case at 372D: but counsel did not ask in those terms. If the verdict of the jury can be explained in the terms of those observations it is not an unreasonable verdict, whether or not those terms were put before them in the Trial Judge's direction. 55 The determination of whether words have a defamatory meaning is a task committed by s 7A of the Defamation Act 1974 to the jury and not to judges of the Court. This continues an allocation of responsibility which is now centuries old and of constitutional significance. The view in the mind of a judge that the judge would not or could well not have reached the same conclusion as the jury, or that the outcome of the jury's reasoning is difficult or impossible to follow is not necessarily an indication that something has gone astray with the jury's reasoning. What it is most likely to indicate is that the jury is functioning as the legislature concluded it should to decide a question which the legislature concluded should not be for a judge. A view of a judge that the jury's determination is difficult to follow or is incomprehensible is not an indication that the jury's decision is wrong or should be set aside; that can only be done where it is clear to the members of the Court of Appeal or to a majority of them that what the jury has decided is outside the range of the rational. 56 The spoken word may convey none of the force of its literal meaning. What it is that words actually convey in the circumstances in which they were spoken is the thing that the jury is to decide. The jury were in a position to consider the terms in which the respondent made adverse observations about the appellant, the nature of the observations made, and the effect of the respondent's diction, delivery and emphases. The jury heard a sound recording of the whole of what was said in the respondent's address, and this may have assisted them to understand the meaning of the words; whether and how hearing the sound recording assisted them was within their province. It was for the jury to determine whether an imputation which the words used actually conveyed had any defamatory meaning, or whether or not they would injure reputation in the understanding of the hypothetical referees referred to in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505-506 (Brennan J):- When no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees - Lord Selborne's reasonable men ( Capital and Counties Bank v. Henty (1882) 7 App Cas 741 at 745 or Lord Atkin's right-thinking members of society generally ( Sim v Stretch (1936) 52 TLR 669 at 671; [1936] 2 All ER 1237 at 1240) or Lord Reid's ordinary men not avid for scandal ( Lewis v Daily Telegraph Ltd [1964] AC at 260; [1963] 2 All ER 151 at 155) - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ( Byrne v Deane [1937] 1 KB 818 at 833), being a standard common to society generally ( Miller v David (1874) LR 9 CP 118; Myroft v Sleight (1921) 90 LJKB 883; ( Tolley v J S Fry & Sons Ltd [1930] 1 KB 467 at 479). 57 Senior Counsel for the appellant referred us to a number of cases in which imputations have been held to be defamatory, or have been found to be defamatory on appeal; the nature of defamation is that there are no close analogies. I see much in support of the view that imputation (c) is defamatory. The appellant, said elsewhere in the respondent's address to be a developer, is said to have done illegal work which severely damaged the environment. The view is open that it is very adverse to the reputation of a developer to impute that his work severely damaged the environment, and to impute that his work was illegal; the relation of the imputation to the appellant's work closely touches his reputation. On the other hand there is no indication whatever of what the illegality was; the statement and the imputation never reach what the illegality was, and illegality can be attributed to many behaviours, some of them severely adverse to reputation, but some of them not adverse at all. It is not difficult to break some law while working, and there is no indication of how the work was illegal. Reasonable people could think none the worse of a person of whom it had been said that he was working illegally. An imputation which never reaches any clarity about what the illegality is might be thought not to injure reputation. There is a wide range of acts and events that might be thought to damage the environment, and to do so severely, and the imputation and the address in the course of which the imputation was made never reached any clarity and never gave any indication at all of what the damage was or of how it was severe. It does not seem to me to be beyond the range of the rational to conclude that the imputation, which was not accompanied by any indication of what was actually referred to, would not harm the appellant's reputation. The offensive nature of the imputation should not be allowed to mask the need to consider its effect on reputation. To my mind it is not beyond the range of the rational to decide to the effect that reasonable people, right thinking members of society generally, ordinary men not avid to scandal would not understand that imputation in a defamatory sense. In my opinion reasonable people could take the view that the references to working illegally and severe environmental damage were so indefinite and imparticular that they could not injure the appellant's reputation. 58 What the hypothetical referees would understand is a decision in making which members of the jury, in their plurality, have advantages over myself. The attraction of a conclusion that imputation (c) is defamatory increases with the intensity of focus on the terms of the imputation themselves; to reasonable people the meaning may not look the same way in context, and it is my opinion that, in context, a determination that the imputation would not harm reputation and was not defamatory is within the wide range of conclusions reasonably available. 59 In my opinion the Court of Appeal should order:

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