David v Abdishou

Background 6The appellants, who are siblings, are solicitors. They acted for a Mr Karl Suleman. Mr Suleman, the appellants and most, if not all, of the respondents are of Assyrian origin. Mr Suleman induced many members of the Assyrian community to invest in his business which involved supermarket trolleys. The business collapsed as a result of which many members of the Assyrian community lost their investments. As will become apparent from the terms of the petition, members of the community sought to attribute some of the blame for their losses to the appellants. 7The respondents decided, during the course of several meetings prior to the general meeting, that they should complain to the Legal Services Commissioner about what they believed was the appellants' involvement with Mr Suleman, his business and their community's lost investments. At some stage it was agreed that their grievances should be set out in a petition to be endorsed by members of the Assyrian community who shared their concerns. Mr Isaac agreed to, and did, draft the petition. 8The appellants alleged at trial that the respondents published the petition (which they asserted was defamatory of each of them) at the general meeting both by "circulating" it (the "libel case") and by agreeing that Mr Kochou should read it aloud to the general meeting (the "slander case"). 9There were two issues embedded in the questions to the jury on the publication issue relevant to the libel case. First, whether the petition was "circulated" at the general meeting, in the sense that its contents were read by at least one person in the audience (the "reading issue"). Secondly, which, if any, of the defendants was responsible for its "circulation" in that sense (the "responsibility issue"). As to the slander case, it was not disputed that Mr Kochou had read the petition to the general meeting, but, once again, there was a controversy as to whether any of the other defendants had agreed that he should do so. 10There was also a controversy as to whether, if publication of the petition was established in either the libel or the slander case, the pleaded imputations were conveyed. There was no dispute that if the imputations were conveyed, they were defamatory. 11The jury rejected the libel case. They decided that the appellants had not established that any of the respondents published the petition by "circulating" it at the meeting. The jury also decided that none of the imputations of which the appellants complained were conveyed by the written publication. The jury accepted part of the slander case. They found that Mr Dadisho and Mr Kochou had published the petition in that Mr Kochou read it to the meeting and Mr Dadisho agreed that he should do so. However, the jury also decided that none of the imputations of which the appellants complained were conveyed by that oral publication. 12The appellants appeal against the jury's adverse determinations on a number of grounds set out in more detail later in these reasons. In the event they are successful, they seek a new trial or directed verdicts on the issues of publication in the libel case and on whether the imputations pleaded in the libel and/or slander cases were carried by the matters complained of and were defamatory of each of them, with the remaining issues to be remitted to the trial judge for determination.

Legislative framework 13The Court's jurisdiction to entertain the application to set aside the jury's verdicts and order a new trial or direct a verdict in the appellants' favour derives from s 102 and s 108(3) of the Supreme Court Act 1970: Puntoriero v Water Administration Ministerial Corporation [1999] HCA 45; (1999) 199 CLR 575 (at [26]) per Gleeson CJ and Gummow J; Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 (at [127]) per Gummow J. 14A new trial may not be ordered on any ground, including misdirection, non-direction or other error of law unless it appears to the court that some substantial wrong or miscarriage has been thereby occasioned: Uniform Civil Procedure Rules 2005, r 51.53. 15Section 108(3) provides: "(3) Where it appears to the Court of Appeal that upon the evidence the plaintiff or the defendant is, as a matter of law, entitled to a verdict in the proceedings or on any cause of action, issue or claim for relief in the proceedings, the Court of Appeal may direct a verdict and give judgment accordingly." 16As has been said, the trial was being conducted for the purposes of s 7A of the 1974 Act which relevantly provides: "7A Functions of judge and jury ... (3) If the court determines that: (a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and (b) the imputation is reasonably capable of bearing a defamatory meaning, the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory. (4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established..." (Emphasis added) 17There was no controversy on appeal or at trial that the issue of publication was one for the jury. This is, no doubt because, as Levine J explained in Griffith v Australian Broadcasting Corporation [2003] NSWSC 298 (at [15]), despite s 7A(3) being silent as to the jury determining that issue, the effect of the introductory phrase in s 7A(4) which I have emphasised is that, on "a sensible and generous construction of s 7A", the issue of publication is one for determination by the jury. Spigelman CJ (Meagher and Handley JJA agreeing), in Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68; (2001) Aust Torts Reports ¶81-610 (at [19]), had earlier interpreted s 7A as proceeding on the premise that by the time the court comes to determine issues of defences and damages in accordance with s 7A(4), "the issues of both publication and of identification have ... been determined by the jury" in a decision which does not appear to have been drawn to Levine J's attention. 18As Levine J pointed out, the interpretation of s 7A he favoured was the view the New South Wales Law Reform Commission took in its Defamation Report 75 (September 1995) where (at [3.20]) the Commission recommended that s 7A(3) "should be redrafted to include, as a function expressly assigned to the jury, the determination of the issue of publication [which] [a]t present ... is embedded in s 7A(4)". That step had not been taken before the 1974 Act was repealed on the enactment of the Defamation Act 2005.

The petition 19The petition as written (which it was agreed at trial was in the same terms as that which was read to the meeting), was as follows: "PETITION

1. This petition seeks an investigation into the conduct and involvement of professional advisors of Karl Suleman into the scheme operated by Karl Suleman, namely Suzy David, Fred David, Sabrina Jajoo, Phillip Pham, and Andy Isho.
2. This petition is signed by members of or connected members of our Assyrian community. This petition is also supported by the investors of the scheme, their family members, and their friends in a scheme operated by Karl Suleman known as Karl Suleman Enterprises Pty Limited (hereinafter KSE).
3. We enclose the submissions in support of the petition.
4. Our community is a small and concentrated community in western Sydney. Our community is a very close knit community and received a sense of security as far as an Assyrian lawyers were involved, an Assyrian entrepreneur was involved, and there was no reasons that we could not trust one of our owns [sic, as in original]. We have all been affected directly or indirectly by the conduct of these solicitors. Some of our members of community were either the existing clients of these solicitors or were referred by various agents of Karl Suleman to these solicitors for the purpose of refinancing their homes or obtaining finance on their homes to raise funds and to invest in a trolley collection business. Suzy David, Fred David, Sabrina Jajoo, and Andy Isho are all Assyrian lawyers and have acted for most of the members of community.
5. We ask that you consider the evidence of these solicitors as outlined in the submission in support of this petition, the inconsistency and differences in the evidence, the business dealings with Karl Suleman, and the benefits received by these solicitors and their association with Karl Suleman. We require your investigation into the conduct of these solicitors and to assist us to achieve a long due justice for our community. The scheme has caused family breakdown, loss of homes, migration interstate for cheaper housing and lifestyle, and continuing financial hardships among members of our community.
6. It was a common knowledge in our community that Fred David, Suzy David, and Sabrina Jajoo were close associates of Karl Suleman. These solicitors would accompany Karl Suleman at various Assyrian functions. The solicitors association with Karl Suleman gave us the impression that the scheme operated by Karl Suleman was legal. The solicitors consciously decided to remain silent about their knowledge of the scheme and by their association with Karl Suleman gave the impression to our community that the operation of investment if [sic, as in original] legal.

THE TRIAL 21Mr M Neil of Queens Counsel represented the appellants at the trial leading Mr C Dibb. Mr A Dawson represented Mr Isaac. Mr D Allen represented the remaining defendants, other than Mr Kochou who was unrepresented. 22This was, in one sense, an atypical s 7A trial. It was not conducted "in the detached - and some would say unreal - atmosphere of a jury trial on documentary evidence" where the only issue is whether the imputations are conveyed and, to the extent they are, are defamatory: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657(at [76]); see also John Fairfax Publications v Gacic [2007] HCA 28; (2007) 230 CLR 291 (at [37]) per Gummow and Hayne JJ; (at [107]) per Kirby J. The issue of publication was hotly contested. As Mr G Reynolds of Senior Counsel, who appeared for the appellants on appeal with Mr M Richardson, said, it was "a huge forensic issue". 23The Fourth Further Amended Statement of Claim (the "FFASC") pleaded that the defendants published the petition "on or about 27 November 2005 and in the following two months". The particulars of publication as to all defendants were: "(a) The defendants circulated the petition at a meeting of members of the public, including members of the Assyrian community in Sydney, which they organised and conducted at the Assyrian Sports and Cultural Club at Fairfield Heights on the evening of 27 November 2005 ('the Meeting'). (b) Following the meeting, the defendants made copies of the petition available to members of public, including members of the Assyrian community in Sydney, (further particulars of which are best known by the defendants and will be provided after discovery and interrogatories in the present proceedings). (c) The defendants forwarded copies of the petition to various persons in positions of authority in New South Wales and elsewhere in Australia, (further particulars of which are best known by the defendants and will be provided after discovery and interrogatories in the present proceedings)." Paragraphs (b) and (c) appear to have been abandoned insofar as they asserted alternative publication cases to that of publication at the general meeting. They did not form part of the case as framed in the questions to the jury. They were not addressed in either written or oral submissions on appeal. 24The FFASC particularised the publication case against, relevantly, Mr Abdishou and Mr Dadisho on the basis that each was one of the authors of the petition, agreed "with other persons" that Mr Kochou should read it at the general meeting (and that he did read it in English), that each distributed or helped others to distribute the petition at the general meeting and urged people to sign the petition. 25The FFASC particularised the publication case against Mr Isaac on the basis that he wrote the petition or was one of its authors, that he agreed with one or more of the other defendants to have the petition read aloud at the general meeting and that he urged people at the meeting to sign the petition. 26The factual controversy on the issue of publication revolved around the questions whether anyone at the general meeting read, or was able to read, the petition, whether any of the defendants was responsible for "circulating" the petition at that meeting in the manner for which the appellants contended and whether any of the defendants agreed that Mr Kochou should read it to the general meeting. 27The appellants called two witnesses, Mr Kochou (who was, as I have said, a defendant, albeit in the appellants' "camp") and a Mr Sarkez. Save for Mr Isaac, none of the defendants gave evidence. As will become apparent, there was a substantial credit issue as between Mr Isaac and the appellants' witnesses, particularly Mr Kochou. 28It is only possible to understand the forensic issues on the publication question which the jury had to determine by setting out the evidence in some detail. 29All parties pointed to evidence they said supported their respective contentions concerning the reasonableness of the jury's verdict. I have endeavoured to refer to that evidence in the following account of the trial. I have confined evidentiary references, other than where the context dictates otherwise, to that concerning the respondents.

(a) Mr Kochou's evidence 30Mr Kochou gave evidence that in October 2005, Mr Dadisho invited him to a meeting at the Assyrian Culture Club, the purpose of which was to discuss ways of speeding up the process of investors recovering some of the money they had invested in the failed Karl Suleman enterprise. He attended the meeting, as did 10 or 15 other people. Those others included Mr Abdishou, Mr Dadisho and Mr Isaac. 31According to Mr Kochou, Mr Isaac said "he had this idea about a petition that people would sign [which] will then be circulated to various Government departments [and] as a result the process will be sped up." Mr Kochou said Mr Isaac also "... mentioned that the petition would serve as people's power basically which would act to push the solicitors' insurance company to pay". 32Mr Isaac said that "the petition [would] need 500 signatures and the best way to obtain them would be in a general meeting where we can have people, as well as their sympathisers ... to sign the forms". Mr Isaac said he would prepare the petition. 33Mr Kochou said he attended another meeting two weeks later also at the Assyrian Culture Club. Fewer people attended, but all the respondents were there. He said that Mr Isaac again said that the petition needed "500 signatures [for] it to work" and that "the best way" to get those signatures would be at "the general meeting". At the second meeting Mr Dadisho asked Mr Kochou to read the petition at the general meeting because his English was better than the rest of the defendants. Mr Kochou said that at the time of this conversation he was sitting at the same table as Mr Isaac. 34Mr Kochou said he received the petition from Mr Dadisho a short time before 27 November 2005, the date, it will be recalled, of the general meeting. 35Prior to the general meeting commencing, Mr Kochou said that he had a conversation with Mr Isaac in the auditorium of the Assyrian Culture Club during which he asked "whether or not it was safe to read this or whether there would be implications". Mr Isaac told him it was "perfectly safe because it is all based on Court evidence". 36Mr Kochou said there were up to 100 people at the general meeting. Mr Isaac was sitting in the audience, as was Mr David. Mr Dadisho introduced himself as the meeting chairman and started the meeting. Mr Abdishou, Mr Dadisho, Mr Manso and Mr Kochou sat "at the top where everybody can see [them]". Mr Dadisho introduced Mr Kochou as the person "who would read the petition in English". Mr Kochou told the audience that after he read the petition, he would introduce Mr Abdishou who would "basically interpret it ... for those people that could not understand English". He read the petition in English. Mr Abdishou then said to the audience in Assyrian: "... that basically the contents of the petition involved the Assyrian solicitors ... who had gone and something along those lines worked with Karl Suleman at the same time, brought in or accepted investors into the scheme and he virtually went over the ... ". At that point in his evidence Mr Kochou's recollection failed him. 37Mr Kochou recalled at least one question from the audience about why they were not being asked to sign the form but merely to put their name and address. His response had been that he had spoken about this to Mr Isaac, who had said that the name and address on the form would be sufficient. 38Mr Kochou said there were two copies of the petition at the meeting apart from the one that he had read, each of which was on a table below the stage. During the meeting he saw people "getting up, taking a copy, reading it, passing it around and also after the meeting people came and read those." After the meeting Mr Kochou looked at the petition and flicked through approximately 20 sheets of paper containing signatures, some of them having ten lines, some maybe three or four and some two. 39Mr Allen cross-examined Mr Kochou first. In that cross-examination, Mr Kochou agreed that the petition had not been ready at any of the meetings prior to the general meeting. He also agreed that he had not picked up and read either of the two copies of the petition he said were on the table below the stage. There were documents available at the meeting for people to sign. These documents were not attached to any other form of document and were sitting "side by side the petition on the table". Mr Kochou said that only one copy of the petition was passed around during the meeting. He did not know whether people who were looking at the petition "actually ... read the entire document". He assumed people were reading the petition. Later he said that "whether they read it [the petition] or not I'm not sure". During the meeting Mr Kochou also saw blank forms with no petition attached being handed out to a number of people. He agreed that people at the meeting were members of the Assyrian community whose first language was not English and that some could not read English. He did not agree, however, that most people at the meeting understood Assyrian far better than they understood English, saying that a lot of people understood English better than Assyrian, especially young people. 40Mr Dawson cross-examined Mr Kochou over three hearing days, although substantial parts of that period were occupied by argument. In what follows, I have endeavoured to refer to the key points of this cross-examination. 41Mr Dawson mounted a substantial attack on Mr Kochou's credit. He put to Mr Kochou that he was trying to minimise his involvement in the publication of the petition, a proposition with which Mr Kochou disagreed. Mr Kochou agreed that his wife was worried about the fact that he had been served with the appellants' statement of claim and that they were both worried about losing their house as a result of the proceedings. He agreed that his evidence helped the appellants. 42Mr Dawson put to Mr Kochou that he had "done a deal with the plaintiffs" to which his first response was "Are you serious? Is that a serious question?" He subsequently agreed, however, that he had "done a deal to tell the truth". Mr Dawson suggested that Mr Kochou had attempted to ensure that the jury did not know that he had done a deal with the appellants, a proposition Mr Kochou denied. 43It emerged that the "deal" had been enshrined in a settlement document which ultimately became Exhibit 1. Mr Kochou said he had wanted the settlement document to be kept in confidence. The settlement Mr Kochou had reached with the appellants was to the effect that "on the basis he provide[d] evidence of truth to the Court for the purposes of the proceedings, ... in the event [the] proceedings [were] determined adversely against him, the plaintiffs [would] take no step to enforce any judgment as against him". 44Mr Kochou had also provided an affidavit to the appellants setting out the circumstances surrounding the preparation of the petition and what happened at the general meeting. He accepted that the settlement agreement obliged him to give evidence in accordance with the version he had given to the appellants, otherwise he would be in breach of the agreement and would be lying. The affidavit was prepared at the appellants' office. 45Mr Kochou was cross-examined about inconsistencies between the evidence he gave in the proceedings and the version set out in various paragraphs of the affidavit. He disagreed with the proposition that the fact of those inconsistencies meant he had lied to the jury. 46Mr Kochou accepted that his affidavit did not refer to Mr Abdishou saying he was going to translate the petition into a dialect of Assyrian. He also accepted that the effect of his evidence in chief on that fact increased Mr Abdishou's role and decreased his own. He disagreed with the proposition that he was trying to "point the finger at the other defendants away from [himself]". He agreed that he was "opposed" to the other defendants because, as he said: "I'm not with them". 47Mr Kochou agreed that he had had a couple of meetings with the appellants in 2007, during one of which the second appellant had suggested that he "tell [his] lawyers to cross-claim against Henry Isaac". She had also said words to the effect: "I want you to give evidence against him to the effect that it is all his fault. Put pressure on your lawyers to cross-claim against him now." 48Mr Kochou read the petition to the jury. He was asked to do so in the same manner and tone of voice he had used at the general meeting. 49In addition to Mr Kochou's affidavit (which became Exhibit J), a draft affidavit he had earlier prepared became Exhibit K. Mr Dawson put to Mr Kochou that a number of paragraphs which appeared in the final, but not the draft, affidavit all related to new information about Mr Isaac, a proposition with which Mr Kochou agreed. These included the addition of statements that at the second meeting Mr Isaac said there should be "500 people [at the meeting]" so that there would "be pressure to process things quickly"; that at the third meeting he discussed with Mr Isaac getting a copy of the petition before the general meeting so that, in substance, he could be comfortable with reading it; that before the general meeting he discussed the legal implications of reading the petition out loud with Mr Isaac who reassured him; and that Mr Isaac said to him that he had "a copy of the petition with a form attached to it that is required to make it a valid petition. The additions also included attributing to Mr Isaac for the first time responsibility for a statement that the petition could be filled in not only by investors in Mr Suleman's Enterprises, but also by sympathisers. 50Mr Kochou agreed that the inclusion of the statements that he had discussed reading out the petition with Mr Isaac before the general meeting made "Mr Isaac look like he was [knowingly involved] in [Mr Kochou] reading the petition out at the [general] meeting", and that that was an important issue in the case. 51Mr Kochou agreed that a statement in his draft affidavit to the effect that the defendants did not intend to give the petitions out at the general meeting was truthful. This was because they only had two copies. He further agreed that in his final affidavit, the words "since we [the defendants] did not intend to give these petitions out" had been deleted. He also agreed that paragraph 40 of his draft affidavit had said that the majority of attendees at the meeting were completing forms not physically attached to a petition and that that paragraph had been deleted from the final affidavit. He saw people at the meeting sign the form which was the fourth page of the matter complained of. 52It was put to Mr Kochou that he had "deliberately crafted [his] evidence to suit the plaintiffs' case", to which he responded, in substance, that the "theme" of his draft and final affidavits were "the same". 53Finally, Mr Dawson put to Mr Kochou a number of questions of a Browne v Dunn nature that are unnecessary to repeat.

(b) Mr Sarkez's evidence 54Mr Edmond Sarkez gave evidence that he had attended a meeting held about two weeks before the general meeting at which he had seen the petition. Mr Abdishou had a copy of the petition and Mr Sarkez "quickly skimmed through [it]" at that meeting. The meeting he attended appeared to have been for the purpose of discussing ways of promoting the general meeting, but he could not remember seeing Mr Isaac at that meeting. 55At the beginning of the general meeting, Mr Abdishou outlined what the meeting was going to be about and what the petition was going to be, but spoke in Assyrian and there were parts Mr Sarkez could understand and parts he could not. He saw Mr Isaac sitting at the back at the general meeting. 56Mr Sarkez said people asked questions at the general meeting and that the legal questions were answered by Mr Isaac. Mr Sarkez saw the whole petition at the meeting and also the signatory page. He said there were not many copies of the first three pages of the petition available, but there "might have been" three or four copies on tables close to the stage. He did not see anyone with those first three pages of the petition. He also saw signatory pages sitting there "for people to sign or to take away and have signed". These were separate from the three pages of the petition. He saw people taking the "signatory sheet, the fourth page" to their table. 57Mr Sarkez was also cross-examined on matters going to his credit, firstly by Mr Allen. Again, the basis of the cross-examination was discrepancies between an affidavit Mr Sarkez had signed for the appellants' solicitors and his oral evidence - including the fact that his affidavit had made no reference to him skimming the petition at the first meeting he attended. 58Mr Sarkez had been one of those who sat on the stage at the general meeting. He wished, in hindsight, that he had not. He had received a letter in February 2006 from the appellants' solicitor, Mr Hall, threatening him with legal proceedings. Upon receiving that letter he contacted the second appellant and gave her his version of the events. He swore his affidavit as to the evidence he could give in the proceedings before an employee of the appellants. He had never had any dealings with Mr Isaac.

(c) Mr Isaac's evidence 59Mr Isaac gave evidence that he had instructions from Mr Abdishou, Mr Dadisho and Mr David and his wife to commence proceedings against the appellants in relation to the collapse of Karl Suleman Enterprises. He had also acted for Mr Manso in proceedings against the appellants in relation to the Karl Suleman Enterprises collapse, which proceedings had settled. 60He gave evidence about the meetings with the defendants he had attended before the general meeting. 61Mr Isaac said that at the first meeting he outlined a number of options for those present who were trying to find a way to "[get] rights" in relation to Karl Suleman. None of the options he mentioned at that first meeting was a petition. At the second meeting Mr Abdishou told him the best course would be to complain about the appellants' conduct and get the Legal Services Commissioner to investigate their involvement with Karl Suleman. Mr Isaac told the meeting that such a complaint would not "get their money back" and that they would have to give him "time to write it". He said that he was asked "to go ahead, to prepare the complaint". Mr Isaac agreed that at the first meeting various of those attending talked about having to get justice having regard to the amount of money their families had lost. 62Mr Isaac told those at the second meeting that he would prepare the documents. He did not want anything to do with the Law Society or the Legal Services Commissioner. The second appellant had "already made a lot of complaints against [him]" and he had been "involved in lengthy proceedings [in] the Professional Standards Department and [he did] not want to take that path again". He said he would write the complaint and give it to those at the meeting who should send it to the Legal Services Commissioner on their own letterhead. 63Mr Isaac said that after the second meeting he had a conversation with somebody about how to lodge the complaint with the Law Society or the Legal Services Commissioner. He informed that person there were about 700 people who wanted to complain about the appellants and that he had been told to lodge one complaint and get everybody else to support it. After that conversation he started calling the complaint a "petition". He told the other defendants that he had decided to call it a "petition" at a third meeting before the general meeting. 64Mr Isaac said the purpose of the third meeting was to ask the respondents to stop calling him "on a regular basis" and to tell those present, in substance, that having regard to the amount of material he would have to review to prepare the petition, "it would take a long time". 65After the third meeting, Mr Dadisho rang Mr Isaac and told him the petition had to be ready by the following Sunday as "they had organised a general meeting" at the Assyrian Culture Club. Mr Isaac said he asked "[w]hat general meeting?" and was told it was a meeting "asking for all the supporters to come in and support the petition." He agreed to get the petition ready by then, but said he told Mr Dadisho not to name anybody at the general meeting. He said at first he refused to attend the meeting because he did not want to get involved, but after phone calls from Mr Abdishou who said they might need somebody to answer legal questions, he agreed to attend. 66Once he had finished the petition, Mr Isaac printed a complaint form for the Legal Services Commissioner from the internet, filled it out, gave it to Mr Dadisho and told him he had to fill in his name, address and contact details and give the form as a whole to the Legal Services Commissioner. 67Mr Isaac said he was not told the petition was to be read out at the general meeting and had no expectation that it would be. He also did not think the petition was going to be handed around. He assumed that the 800 supporters Mr Abdishou told him about would turn up to the general meeting and: "[t]here would be a general discussion that they explored various options and they came to a decision to make a complaint against the professional advisor to Karl Suleman and to get the name and address to support that complaint or petition." 68Mr Isaac said that when he went to the general meeting he arrived a few minutes late and sat at the back. As soon as he sat down, Mr Abdishou spoke to him about a typing mistake in the petition. During this conversation, Mr Abdishou said "Can you believe this guy's reading it in English?" Mr Isaac then turned to the stage and noticed Mr Kochou was reading the document in English. 69Mr Isaac asked Mr Abdishou "who told him to read the document?" and Mr Abdishou said "[no] one. It was on the table, he took it and he start reading it." Mr Isaac said that while Mr Kochou was reading the document, he noticed that most of the people in the room "were talking amongst themselves and were hardly listening to him talking." He said Mr Abdishou "was pointing at those people sitting on the stage and said, 'Everybody's doing what they want', and, 'How these people could understand English?'" 70Mr Isaac said that "the purpose of this document was to be put as a covering letter to the Legal Services Commissioner" and "it wasn't prepared to be read at the general meeting." He said had he known it was going to be read at the general meeting he "would have prepared another document" which would have been without the names, in more of a summary form and probably in Assyrian, not English. He was never asked as to whether the document should be read aloud and never had a conversation with Mr Kochou either face-to-face or on the telephone about reading out the petition. 71Mr Isaac said that when he spoke to Mr Abdishou at the general meeting, the latter had a copy of the petition. He did not see any other copy of it or see any copy being handed around, nor did he circulate it there. 72After Mr Kochou had read the document, Mr Isaac said people started asking questions which Mr Kochou was answering in Assyrian. At some stage, Mr Kochou suggested that Mr Isaac would be the best person to answer a question. While he was present at the meeting there was no occasion, other than when Mr Kochou read the petition, when the English language was used. 73In cross-examination, Mr Isaac said he typed the petition himself, including the heading "Petition". He agreed that he had told one of the defendants that they should have an A4 piece of paper on which signatures could be placed, but did not produce such a piece of paper as a draft. He expected petitioners to sign the signature page and knew that up to 700 or 800 people could do so. However, he said he did not expect people to read the petition before they signed it, having regard, apparently, to the fact that "three thousand of these investors had signed an investment contract without reading [it]". He said he expected the defendants to read it but not anyone else, other than the Legal Services Commissioner. 74When asked again whether he expected anyone to associate themselves with the petition without having acquainted themselves with "such serious matters by reading them", Mr Isaac repeated that he did not expect anyone to read the petition or the submissions. He pointed out that: " ... some of those allegations were published in the Daily Telegraph and most of these allegations were well known to the members of [the] Assyrian community." 75Mr Isaac said he had not raised the matter of the petition at either the first or second meeting at the Assyrian Culture Club, nor had there been any mention at any one of the three preliminary meetings of a general meeting being held. In particular, he denied mentioning at either the first or second meeting that "there was a need for 500 signatures and the best way to obtain them would be in a general meeting where you can have people as well as their sympathisers ... to sign the form". 76Mr Isaac denied hearing Mr Dadisho say at either the first or second meeting words to the effect "that the petition Mr Isaac is preparing has to be re-read out at the meeting in English" or that Mr Dadisho asked Mr Kochou to read it. He said the preliminary meetings were all conducted in Assyrian. He denied that Mr Kochou said anything at the third meeting about wanting to see a petition that he might have to read out. 77Before finishing the petition Mr Isaac agreed he came to understand that it might be required for a general meeting. Mr Dadisho asked him how he was going with getting it ready. He denied, however, that at the third meeting Mr Kochou asked him whether it was ready or asked whether he could have a look at it. 78Mr Isaac first learned a general meeting was proposed a few days before it occurred. It did not occur to him when he heard about it that the petition may be read out at that meeting whether in English or Assyrian. Mr Isaac understood that the petition was "a subject of the general meeting", but "didn't expect them to read the petition" nor did he understand that "people might read it". 79Mr Isaac gave Mr Abdishou the first three pages of the matter complained of before the general meeting and told him to make one copy for the Legal Services Commissioner, one for their own records and to return the original to him. This was corrected in re-examination to change the reference to Mr Abdishou to Mr Dadisho. 80Mr Isaac said that when he spoke to Mr Abdishou about the typing mistake in the petition at the general meeting, the latter had the petition in his hand. 81Mr Isaac denied arriving at the general meeting earlier rather than later and denied having a conversation with Mr Kochou during which Mr Kochou asked him whether it was safe to read the petition and expressed concern that he might be sued. Mr Isaac also denied having a discussion with Mr Kochou at the end of the general meeting.

Exhibits 82The appellants tendered the transcripts of several radio programmes apparently broadcast on an Assyrian radio station, "Echo of Zinda 2GLFM". The transcripts were a translation of the original broadcasts which were in Assyrian. Mr Abdishou and Mr Dadisho (referred to in the transcript as Mr Oram), as well as a Mr Adam, participated in the first broadcast on 13 November 205, while only Mr Abdishou took part in the second broadcast on 27 November 2005. In the first broadcast, Mr Abdishou informed listeners of the date and venue of "a general meeting of creditors of Karl Suleman Enterprises", the reason for which was to "question why this case has taken so long". In responding to listeners who called in, Mr Dadisho said, relevantly: "Lawyers ... are writing this letter ... and it is important for Assyrians to sign this document so that it could be released to the government officers and so that they can take steps to inform our people what this scheme is up to and what has been the result to date and why it has taken so long ... Even those who have not participated can come to this meeting and to sign this petition. Of course they can read it and see there is nothing bad in it ..." 83In the second broadcast Mr Abdishou informed listeners of the outcome of the meeting in the course of which he stated that "[s]ome people have taken the petitions". 84The appellants also tendered answers to interrogatories by, relevantly, Mr Abdishou, Mr Dadisho and Mr Isaac. Each agreed he was present at a meeting or meetings during October or November 2005 (and prior to the date of the general meeting) at which a proposal to formulate a petition substantially to the effect of the matter complained of was discussed and that all other defendants were present at the meetings he attended. 85Mr Abdishou and Mr Dadisho each gave the same answer to the following question as follows: "Q. Was [relevant defendant] present at a meeting on or about 27 November 2005 at the Assyrian Sports and Cultural Club at which the petition that is the matter complained of in these proceedings was read and/or shown and/or distributed to those present? A. The [relevant defendant] was present at a meeting on or about 27 November 2005 at the Assyrian Sports and Cultural Club when the petition, the matter complained of, was read out". 86Mr Isaac answered an interrogatory as to his authorship of the petition to the effect that he wrote the first three pages, but did not prepare, or write the words on, the fourth page. 87As I have said, Mr Kochou's draft and final affidavits on which Mr Dawson had cross-examined Mr Kochou were also in evidence, as was the agreement between the appellants and Mr Kochou dated 23 July 2007 in which the latter agreed to "provide evidence of truth to the Court for the purposes of these proceedings" in consideration for which the appellants agreed that in the event the proceedings were determined adversely to him, they would take no steps to enforce a judgment against him.

ADDRESSES TO THE JURY 88I shall summarise the addresses to the jury in the order they were made. Mr Kochou did not the jury.

(a) Mr Dawson - address to the jury 89The theme of Mr Dawson's address to the jury on behalf of Mr Isaac on the libel case was that the appellants had not established publication of the petition in written form. Mr Dawson said that the jury would not be persuaded that anyone at the general meeting read it throughout and that if it was "circulated" at the general meeting, the jury would not be persuaded that Mr Isaac had any role in doing so. Insofar as the slander case was concerned, the jury would not be persuaded that Mr Isaac had any role in asking Mr Kochou to read it to the meeting, nor did he have any prior knowledge that he was to do so. 90As to the question whether the imputations were conveyed, Mr Dawson put to the jury that the problem was that they were "pitched too high [in that] they all assert guilt of some conduct on the part of the [appellants] [i]nstead of asserting what the real meaning of the publication is, which is they warrant investigation, which is itself, you might think, a defamatory thing to say about somebody". 91When he came to the issue of publication, Mr Dawson told the jury that they had to be: "... persuaded that a publication actually took place before you move to consider whether anybody is relevantly responsible for it. ... If there is no publication it doesn't matter who is responsible, you would answer no to those first questions if you don't think the petition was actually communicated and comprehended by somebody, either orally or in writing at the meeting. If you are satisfied that a publication in all likelihood did occur, then you do need to consider the second aspect, that is who in the room as defendants, if anyone, is responsible for that happening." 92Mr Dawson put the issue of publication by Mr Isaac very starkly as turning on whether the jury accepted Mr Kochou as a witness of truth, in which case he conceded the jury would "probably find that [Mr Isaac] was responsible for the publication". However, if Mr Kochou was rejected as a witness of truth and Mr Isaac accepted as such, then the jury would answer "no" to the question about Mr Isaac's role in any publication. He pointed out that their "versions are diametrically opposed, there is not a lot of common ground on the key points" and that as to "the key points of the evidence ... there is a complete forking of the path." 93Mr Dawson reminded the jury of Mr Kochou's evidence, including that he did not know for a fact that people had read the petition. He also reminded them of the evidence that some of the people at the meeting could not speak or read English. He pointed out that while that did not prove that no one could read English, the jury might have been assisted by the appellants calling some evidence from a person at the meeting who said they were there, saw a copy of the petition and that even though English was not their first language, said they could read it and understand it and that they read the document in its entirety. He emphasised that the appellants had not called "a single person to say that they read it and understood it". Rather, all the jury was left with was the "slightly unsatisfactory evidence about a document being passed around, Mr Kochou accepting that he doesn't really know whether people read it or not, and this uncertainty about how many people in the room spoke or read English." He drew attention to the limited number of copies of the petition at the meeting (at most, on Mr Sarkez's evidence, three or four) and to the fact that Mr Sarkez said he saw people signing the signature pages without the petition attached and did not recall seeing anybody with the petition itself in their hands. He highlighted the fact that Mr Kochou said that although he saw people holding the document he did not know if they read it. He emphasised that these were the appellants' witnesses who were meant to satisfy the jury of elements of the appellants' case. 94Mr Dawson referred to the evidence that a member of a creditors committee had pointed out to Mr Abdishou that there was an error on the third page of the petition. He accepted that that was some evidence of that person having read the document but queried whether it was read at the meeting or beforehand. 95Next, Mr Dawson referred to Mr Isaac's evidence that the only copy of the petition he saw at the meeting was that held by Mr Abdishou. Mr Isaac did not see any other copy, did not see any copy being handed around and did not circulate it himself. Mr Dawson pointed out that Mr Neil had not put to Mr Isaac that his evidence was incorrect in these respects. He reminded the jury that a lot of the people at the meeting did not speak English, that Mr Abdishou and Mr Isaac had had a conversation about how ridiculous it was that the petition was being read in English and that, otherwise, the meeting was conducted in Assyrian. 96Mr Dawson then turned to the question of responsibility for publication. He highlighted the fact that the witnesses on this issue were primarily Mr Kochou and Mr Isaac. He explained why Mr Sarkez had little to say about Mr Isaac who was not at the preliminary meeting Mr Sarkez attended and who only saw Mr Isaac sitting at the back of the general meeting. He did however, draw attention to a discrepancy between Mr Kochou and Mr Sarkez, in that Mr Sarkez said the petition was available at a meeting he attended about two weeks before the general meeting, whereas Mr Kochou said it was not available until after the third meeting he attended. He pointed out that Mr Sarkez and Mr Kochou could not both be correct, suggesting Mr Sarkez's evidence was "wildly inconsistent" with Mr Kochou's. Mr Dawson then went to the differences between Mr Isaac's and Mr Kochou's evidence about the preliminary meetings relating to when the question of the petition was first raised. 97Mr Dawson characterised Mr Isaac's evidence as being effectively that he was an unwilling participant in the whole process, that he was called upon because he was a solicitor but was reluctant to get involved, that he became involved as a member of the Assyrian community and a solicitor in that community, that eventually he was asked to prepare a complaint about the solicitors or a request for investigation to the Legal Services Commissioner, that he was a man who was proceeding cautiously and that eventually, he got the idea that such a complaint might be called a "petition". He reminded the jury of Mr Isaac's evidence that he called the third meeting to explain what he was going to do in terms of preparing the petition and a bundle of documents, but that after that he did not want to have any involvement in the process. 98Mr Dawson suggested that Mr Kochou's demeanour was unsatisfactory and that he was evasive when being asked questions. He described Mr Kochou as "cagey" and submitted that his demeanour generally was "the mark of a witness who has got something to hide". He invited the jury to find that some of Mr Kochou's evidence was false, the reason for that being that Mr Kochou did not want the jury to know that the way he came to give his evidence was not through "a usual and legitimate request from the solicitors acting for the parties" but from the second appellant. Mr Dawson suggested that the fact the second appellant sent Mr Kochou the affidavit she wanted him to sign was "a bit of a problem for [Mr Kochou's] independence". 99Next Mr Dawson suggested that it was also a "bit of a problem" that Mr Kochou agreed to give "evidence of truth" in exchange for no judgment in the case being enforced against him. He invited the jury to think why it would be necessary for Mr Kochou to agree contractually to give evidence of the truth when that was the effect of a witness' oath. He pointed out that he had had to uncover the "deal" in cross-examination and that it had not emerged in evidence in chief. He observed that the "plaintiffs in doing that deal do ... have a financial interest in the outcome of this case ... so, by getting one of the defendants to turn [their] witness ... they are advancing their own private interests in circumstances where you are not going to be told". 100In the light of those matters, Mr Dawson invited the jury to regard Mr Kochou as a "dishonest witness who decided to give dishonest evidence to help the plaintiffs against the other defendants because he is inherently dishonest." On a more benign note, he suggested that they might regard Mr Kochou as "a man under extraordinary pressure" doing "the only thing he could do to save his house from the threat he'd received, and the only thing he could do assuage his wife's concerns about losing their house." 101Mr Dawson pointed out that Mr Kochou knew, "because he had read the petition out", that he was a publisher and "exposed". He suggested Mr Kochou was "desperate, having lost $100,000 in the collapse of Karl Suleman Enterprises and then to face the loss of his house, the worry of his wife and the effect on his family" and that "[y]ou might understand that is why he would do such a thing." 102Mr Dawson therefore suggested to the jury that the impact on Mr Kochou's truthfulness as a witness was to make "his evidence extraordinarily unreliable - and doubly so because it was not his intention and not the plaintiffs' intention ever to tell you about it". Mr Dawson suggested that the jury might conclude that Mr Kochou's desire not to disclose the settlement showed "a consciousness of guilt on his part that what he was going to be telling in his evidence was not really the truth" and that he was "a man who cannot be trusted to tell the truth". 103Next Mr Dawson reminded the jury of Mr Kochou's evidence that if he gave evidence inconsistent with his affidavit he would be in breach of the settlement agreement and it would not be the truth. 104He told the jury of Mr Kochou's agreement that "he was pointing the finger directly as he could at Mr Isaac", then took the jury through the paragraphs in Mr Kochou's final affidavit containing new material about Mr Isaac which differs from his draft affidavit. He suggested the final affidavit contained "12 new items of substance about Mr Isaac". One of those items was Mr Kochou's suggestion that, prior to the meetings, Mr Isaac gave his express approval to him reading the petition at the meeting. 105Mr Dawson then addressed Mr Isaac's evidence. He described his demeanour as "the mark of a truthful witness". He sought to explain why Mr Isaac's evidence that, while he expected people to sign in support of the petition he did not expect anybody to read it, was credible. Those reasons were, in short, that the petition was in English, the intent having been to lodge it with the Legal Services Commissioner, the fact that at the third meeting he had advised those present, when asked whether the meeting could be promoted on the radio, not to use any names (it being suggested that that supported the proposition he would not expect the petition to be circulated or read out at the meeting), that he had been told there was already support for whatever action the group organising the petition decided to take, that the community was already concerned about the relationship between the appellants and Mr Suleman, that many people in the Assyrian community had signed Mr Suleman's loan agreements without reading them and that petitions were often signed without people reading their detail. 106Mr Dawson painted a picture of Mr Isaac as a cautious man who sought advice from a barrister before preparing the petition as to whether doing so might in some way prejudice court proceedings in train concerning Mr Suleman. He suggested that sort of man would not approve of Mr Kochou reading the petition at the general meeting. He reminded the jury of Mr Isaac's evidence that, if asked, he would have advised Mr Kochou not to read out the petition. 107Mr Dawson then turned to the question of the imputations. He invited the jury to consider what impression the ordinary reasonable listener or reader at the meeting would have formed. He suggested that the first paragraph seeking an investigation into the appellants' conduct was "powerful" and described "what the document is". Next, he drew the jury's attention to the request in paragraph 4 that the Legal Services Commissioner "consider the evidence" (as opposed to make findings). After referring to other passages which he emphasised called for an "investigation", he suggested that the jury would conclude that the ordinary reasonable listener or reader "would understand this document to be saying these solicitors need to be investigated [but that the authors did not] know whether what they've done is misconduct or is reprehensible or is in some way to be punished [but] want[ed] a determination as to whether that is the case." 108In contrast, Mr Dawson suggested that the imputations "all go too high". He described the "consistent theme throughout [the] imputations [as] ... all assert[ing] guilt of some kind on the part of the solicitors." He continued: "That is, these are the kinds of things you would expect by way of finding if the Legal Services Commissioner looked at the complaint, looked at whatever other material was appropriate, and the ordinary reasonable person would assume, I suggest to you, that a process of complaint involves both sides getting to tell their story. These are the sorts of things that the ordinary reasonable person would expect once investigation had occurred if, assessing everything, the relevant body or authority or Commissioner found that there was misconduct or a concern or something wrong with what the solicitors did." 109Mr Dawson then returned to the ordinary reasonable person's approach. In a passage of which Mr Reynolds complains, he suggested it "may be very simple with the petition being handed around for people to sign it and skim read it ...". Later he repeated this idea: "If you are satisfied on the evidence that somebody read the document more carefully than just a cursory skim and did perhaps go back and analyse it, I submit to you that you find the imputation is not conveyed on a different basis, namely that on analysis the imputations aren't there." 110Mr Dawson made substantially the same submissions about the oral publication, although emphasising the lack of attention an ordinary person might pay when listening, querying whether any ordinary reasonable person listening to the petition being read "would come away with an impression" of complicated imputations and, again, submitting that the general impression a listener would receive of the theme of the document was that "there are grounds for an investigation".

111Mr Neil summarised the appellants' case to the jury on publication by circulation as follows: "In very broad overview firstly of the three issues, as far as publication is concerned it is our case - and we would submit that you will accept it - that each of the defendants published at the general meeting the petition by having it made available for circulation. It was there for people to look at, read, circulate. Circulate is a simple English word. Some took it, some looked at it at one end of the large table, according to the evidence. That is evidence of the dealing with it at the meeting, the circulation of it at the meeting, and evidence we say of publication. Publication, as I said earlier, and as my friend has said to you, need only be to one person. I will come back in more detail to the evidence, but we would submit there is nothing in this evidence that warrants the view that no-one in that room at that general meeting, not one person could read English, not one person could understand English. We would submit to you that the evidence compels a finding on your part that at least one person at the meeting - we would say by inference very many more - read the petition and/or both read it and heard it read out. It was read out audibly, in English, in a way that you have heard Mr Kochou read out." 112The issue of responsibility for publication on the libel case appears first to have been put in terms of each defendant having made the petition available at the meeting for circulation. On the slander case, Mr Neil referred to Mr Kochou's evidence that he was asked at one of the preparatory meetings to read the petition at the general meeting. Mr Neil drew the jury's attention to the "agreement question", and submitted that "publication [could] be established against all defendants in the oral form by Mr Kochou, by virtue of an agreement that Mr Kochou would read it out". 113Mr Neil focussed on the evidence relating to Mr Isaac. He put to the jury that Mr Isaac produced the petition knowing it was to be read at the general meeting. He suggested it was sufficient to prove publication by Mr Isaac that, whether or not he thought someone would read the petition, it "was available and people took them up on it and read it". He referred to the evidence that Mr Isaac attended the preliminary meetings before the general meeting at which the petition was discussed, that the petition was his idea, that he was told to "go ahead and prepare it" and that he did indeed prepare it. Mr Neil suggested the jury should reject Mr Isaac's evidence that he did not expect the petition would be read at the meeting as "preposterous" and not in line with answers he gave to the effect that he understood the petition would be a subject of the general meeting. 114Mr Neil put to the jury that they should believe Mr Kochou and, where they were in conflict, not accept Mr Isaac's evidence. He pointed out that there were many areas where their evidence accorded. He suggested the "main areas" of disagreement between them was when Mr Isaac first raised the question of a petition, whether there was a discussion about whether it was safe for Mr Kochou to read the petition and when, during the various preliminary meetings, a general meeting was first mentioned. 115Mr Neil suggested it was implausible that no one at the meeting read the petition in view of the fact that many people would have gone to the meeting having heard a radio broadcast advising of its purpose. 116Mr Neil suggested that the defendants were publishers of whatever Mr Isaac came up with pursuant to the agreement to prepare a petition. He contended the jury should accept Mr Kochou's evidence of being asked, when at the same table as Mr Isaac, to read out the petition. Mr Neil suggested to the jury that it would be "completely unnatural" for Mr Kochou to read the petition out at the meeting if he had not been asked to do so. He submitted the jury would regard Mr Kochou as not having been shaken in cross-examination and that they would accept his evidence to this effect. He suggested that publication could be established against all defendants in the oral form by Mr Kochou by virtue of an agreement that the latter would read the petition out. He pointed out that none of the first, second, third or fourth defendants had given evidence denying the agreement that Mr Kochou should read the petition out. He suggested that the jury could, therefore, think they could not give any evidence that would support the contrary. 117Mr Neil put to the jury that there was straightforward evidence of publication, that it was a reasonable inference that if somebody appeared to be reading something, they were doing so. He reminded the jury of Mr Kochou's evidence about where the petitions were placed and that he saw some people looking at the document and suggested the defendants' case that not one person who signed the fourth page read the petition was, again, preposterous. He contended they would be satisfied at least one person read the document and one person heard it read out and that one was sufficient. He pointed out that Mr Sarkez heard the petition read. 118Mr Neil put to the jury that it was sufficient evidence of publication that the credit committee member had identified an error in the petition in its last paragraph, that being a reasonable example that that person had read it to that point. 119Mr Neil then turned to the attack on Mr Kochou. He submitted there was nothing wrong about the terms in which the settlement agreement was drafted. He suggested that the cross-examination of Mr Kochou about that document was a "failed even tawdry attack". He suggested that Mr Kochou was a "very credible, very honest, very reliable witness and indeed very humble witness". 120Mr Neil put to the jury that Mr Isaac's attack on Mr Kochou was an attempt by Mr Isaac to minimise his involvement. That attempt was reflected, he contended, in the proposition that Mr Isaac did not think that any one person would read the petition that he prepared. 121Mr Neil also put to the jury in several parts of his address that Mr Isaac was trying to distance himself from the matter, for example, by saying he turned up late at the general meeting and also by saying that at some stage he could not understand what was being said in Assyrian even though he said he understood all their dialects. 122Turning to the question whether the imputations were carried, Mr Neil attacked the proposition advanced by Mr Dawson that the imputations were "pitched too high". He accepted that the petition sought an investigation but submitted that the overwhelming impression it conveyed was that the appellants "failed to inform or warn investors of features of the scheme that they knew about but they didn't tell people about and ... that the investigation is warranted because of the conduct which is said to be misconduct in promoting this investment scheme among his clients known to be illegal." He contended that the petition was expressed in "plain English words, imputing ... misconduct to the plaintiffs."

(c) Mr Allen - address to the jury 123Mr Allen, on behalf of the defendants (other than Mr Kochou), put to the jury that they should find none of his clients was responsible for circulating the petition because there was no evidence that any of them handed out copies to people at the meeting. Nor was there any evidence that any of them was responsible for placing the petitions on the table there. He said there was no evidence that any of his clients, other than Mr Dadisho, had possession of the petition before the start of the meeting. In short, the petition was left on the table and people helped themselves to it but it could not have been put there by any of his clients, there being no evidence to that effect. 124Insofar as the slander case was concerned, Mr Allen distinguished between the roles of Mr Abdishou, Mr Manso and Mr David and that of Mr Dadisho. He contended as to the former three that, on the basis that the petition was not drawn until after the third meeting, they could not have known the substance of what it contained and that there was nothing that suggested they ever saw the petition, let alone knew its contents, so that it could not be said that they formed an agreement with Mr Kochou that he should read it. 125As to Mr Dadisho, he accepted that there was evidence that he asked Mr Kochou to read the petition at the second meeting and gave the petition to Mr Kochou telling him that it was the document he had to read. However, he suggested that the fact that the petition was drafted after the second meeting meant that there could not have been an agreement between Mr Kochou and Mr Dadisho formed at that meeting for the actual petition to be read out, and secondly, that when Mr Dadisho proposed that Mr Kochou read the petition, Mr Kochou did not agree, but said he would decide after he had read it. Next he submitted that Mr Kochou's evidence of when he received the petition from Mr Dadisho was unreliable because he suggested he received it at least six weeks before the meeting whereas he also said he got it a few days before. 126Mr Allen also suggested that Mr Isaac's version of events seemed to be more reliable because of his evidence that he said not to use names in the radio broadcasts advertising the general meeting and, when the jury looked at the radio broadcasts transcripts in evidence, they would see that his clients had not mentioned any names, tending to establish that they acted upon Mr Isaac's warning. 127Next, Mr Allen suggested to the jury that if one accepted Mr Isaac's version of events, there was no agreement to read the petition aloud so as positively to identify the people being complained of. He also relied on Mr Isaac's evidence that Mr Abdishou expressed his dismay when he heard Mr Kochou reading out the petition. Finally, he pointed out that neither Mr David nor Mr Manso were on the stage when the petition was read out, rather they were in the audience. 128Subsequently, after a complaint by Mr Neil, Mr Allen corrected his statement concerning circulation and accepted that placing the petitions on the table could amount to circulation. However, he reiterated his submission that there was no evidence that any of his clients actually placed the petitions on the table. As to the agreement question, he corrected his statement that normally agreement is signified by a request and consent and accepted that agreement could be inferred from the conduct of the parties. Notwithstanding that, he reiterated his submission that there was no agreement between Mr Abdishou, Mr David or Mr Manso with Mr Kochou to read out the petition. He reminded the jury that it had only been drafted after the final preliminary meeting. 129In substance, like Mr Dawson, Mr Allen's submission concerning the imputations issue was that the document was a petition seeking an investigation, rather than making positive allegations. 130Mr Allen suggested to the jury when dealing with whether the imputations were conveyed in the libel case: "The same can be said about the ordinary reasonable reader of the petition, because it is a long document that is not well-written. The reader would have gleaned what the document was about. Even though they wouldn't have read the entire document, they would have gleaned what was being requested was an investigation. Indeed, you have Mr Sarkez, who gave evidence that the way that he read the petition was by skim-reading it."

Summing up 131The trial judge summed up to the jury over three days: 5, 6 and 10 June 2008. No party sought any redirections or further directions during or following the summing up. It can be inferred from the absence of complaint that Counsel at trial accepted that the trial judge adequately summed up the case each sought to advance. 132The trial judge addressed both matters of law and evidence in meticulous detail. It is necessary to set out aspects of her Honour's summing up in detail, having regard to the grounds of appeal and the orders sought. 133The trial judge summed up on the publication issue as follows: "102. The ... issue of publication ... is whether the defendants, or any of them, are responsible for the publication of the petition, either by circulating it at the general meeting, and I will give you directions in a moment as to what is constituted by circulating, or by agreeing that Mr Kochou should read it aloud to the general meeting. ... 107. [Publication] is a first question. Self-evidently the plaintiffs have sought to persuade you that each of the defendants are responsible, by either agreeing that Mr Kochou read the petition out loud, or by circulating the petition which is a way of course of disseminating the contents of the document. 108. Mr Neil has advanced the submission that you would be well persuaded that each is responsible for publication in one or other way. 109. Mr Dawson ... and Mr Allen ... contend to the contrary. Each of them say in effect that they are not responsible for publication by that means. None of them agreed with Mr Kochou that he read the document out aloud in English or you would not be persuaded on balance that that occurred, and/or none of the defendants agreed [t]hat the document would be circulated, that is made available to people at the general meeting by people either being given it or by people going to get it which is, as you will hear in a moment, one of the means or modes by which you will be guided on the question of circulation. ... 129. Let me turn to the question of publication, which is of course the first question for you to resolve. 'Publication' very simply means a communication to a third party of material which is defamatory. It does not matter whether the publication by way of communication, is to one person or to the world. The question of whether it was one person or 101 people or the world would have a bearing on the question of damages which is for a judge to determine later down the line if the matter proceeds that distance. But, for your purposes, publication simply means a communication to a third party. 130. Mr Dawson submitted to you, quite correctly, again by way of example, but it happens in this circumstance to be a useful example, that if a letter was written, let's say, by me which records very shocking and scandalous things that I believe ought be recorded about a neighbour and I put down this set of very derogatory and offensive remarks and conclusions that I've drawn about my neighbour and I put the letter in the bottom drawer of my desk at home and I never tell anyone about it, I lock the drawer and I have the only key and I never communicate the contents of that letter to anybody, I have not, even though I have written that letter and even though it contains scandalous remarks and conclusions, I have not, by my action, published that letter. 131. In this case publication is alleged against each of the defendants by the plaintiffs in very precise terms as set out in question 1 of the jury questions ... 132. There are two methods of publication, that is, two methods by which the plaintiffs contend defamatory material was communicated to a third party. The first is by circulating the petition. The plaintiffs contend that by circulating the petition the material contained within it which the plaintiff contends was defamatory, was communicated to a third party. 133. The other means - and it's not an alternate means, it's an additional means - by which the petition is said by the plaintiffs to have been published was by the defendants agreeing that the petition should be read out by ... Mr Kochou, in English ... 134. In the context of this case, the question of circulation involves you determining whether on the probabilities - that is, whether it is more probable than not - you are satisfied that the petition was available for circulation at the general meeting in multiple copies. The evidence bearing on that question is various. 135. It's Mr Kochou's evidence that there were two tables with petitions laid on them. That evidence was supported by Mr Sarkez. 136. There was also evidence from Mr Isaac himself that there was a copy of the petition in the hand of the first defendant and his attention was drawn to the fact that there was an error on page 3, the typographical error or the transcription error or the misdescription of 'insolvent trading' as 'insider trading'. 137. In order for you to be satisfied on the probabilities that the petition was circulated at the general meeting, you would need to be satisfied that the petition was circulated, in the sense of being looked at, read at the table, or lifted from the table and handed around to one or more of the persons assembled in the auditorium. 138. If you were satisfied that on the probabilities there were at least two copies on the tables at the foot of the stage and that those documents were put into calculation [sic, circulation] by being read by some one or more persons at the table, or taken from the table and circulated, it would be open to you to be satisfied that at least there was circulation of the petition. 139. The related and all important question is, if you were satisfied of that is: who was liable for it? The mere fact that you were satisfied on the probabilities by reference to the evidence that the documents, that is the petition, was available in multiple copies does not allow you to conclude against any of the defendants that they are necessarily liable for circulation. ... 141. For the purposes of giving you guidance as to what is constituted - or relied upon, rather, by the plaintiffs as a publication in this case, it is by alternate methods. One is by circulation. I've dealt with circulation. The other method - that is, by agreement that the publication be read out in English - involves you determining, again, whether or not on the probabilities, you are persuaded that one or more or all of the defendants concurred with or approved of or accepted and understood either by their words or by their conduct that Mr Kochou would read out the publication in English. 142. It is not necessary in order for there to be an agreement that that occur between one or more or all of the defendants that there be a formal request and response. [The trial judge then directed the jury that that agreement could be constituted by the jury being satisfied that any one of the defendants concurred, approved, understood or accepted that Mr Kochou would read out the petition and could be found both from what was said or could be inferred from the defendants' conduct before and at the general meeting]. 145. Circulation is not, as it happens, a particularly complex legal concept, but it is one that requires you to apply your thinking. Not only must you be satisfied that the document, that is the petition, was in fact in the room in multiple copies but that it was put into circulation by being available by that means. [The trial judge then explained the concept of imputations, the ordinary reasonable reader and how that person might read the matter complained of and what 'defamatory' meant. She then turned to the evidence]. 212. Mr Dawson, in the course of his address, correctly identified that publication in this case has two elements. Insofar as the first element is concerned - that is, did a publication take place at all - the law, as you'll be reminded, simply requires that at least one person, insofar as the facts of this case are concerned, read the petition and understood it, in the sense of gathering an understanding of what it contained, and at least one person heard the publication being read and understood it in the same sense. 213. It must also be established to your satisfaction in each case, whether a publication by circulation or reading aloud, that that occurred on the date of the general meeting, namely, 27 November 2005. 214. On this first element, Mr Dawson put to you, by reference to the evidence, that it would be open for you to be persuaded that there was no single person who read the petition that was circulated at the meeting and no single person who heard it being read. Equally, he said it would be open to you to be persuaded to the contrary, namely, that there was at least one person who read it or heard it. His ultimate submission to you was that you could not be sure one way or the other. 215. In essence, he submitted to you that on that question, the first part of the publication question, looking at all of the evidence, the scales would remain equally balanced; that is, neither weighted one side nor the other. 216. He said so far as Mr Kochou was concerned - and Mr Kochou's evidence in that respect was that whilst Mr Kochou saw the petition being handed around and saw that some people had signed the signature page, he simply assumed that what was being handed around was the petition, and simply assumed that it was read, and simply assumed that those who had signed the signature page had in fact read the petition. 217. Mr Kochou did in fact say that he assumed those things because he saw the document, the petition, as he understood it to be, in people's hands and he saw people at the table where the petitions were placed for the consideration of those at the meeting. 218. He drew attention, that is Mr Dawson drew attention, to the fact that Mr Kochou conceded - fairly, you might think - that he could not say for a fact that anyone had in fact read the petition or anyone had in fact heard him read the petition and understood him when he read it out aloud. 219. Mr Sarkez gave evidence, and Mr Dawson reminded you of it, that he regarded or considered there were a number of petitions available for circulation, but Mr Sarkez again conceded that he did not see anyone with the petition in their hands at the meeting. 220. So far as Mr Isaac's evidence is concerned, Mr Dawson reminded you that on his account, that is Mr Isaac's account, a female member of the credit committee appears to have read the document because, according to his evidence, Mr Isaac's evidence, the first defendant drew his attention to the error on page 3 whilst he was sitting at the back of the room. Mr Dawson submitted, however, that there was no evidence as to when that woman read the petition and there is no evidence that the error was detected by her in a petition she read that day. 221. On the question of publication by reading aloud, Mr Kochou gave evidence not only that he in fact read it out loud, but you'll remember Mr Kochou read it out loud for you to hear in the course of giving his evidence. It is entirely a matter for you, ladies and gentlemen, whether you regard Mr Kochou's tone of voice and the pace at which he read the document to be such as to render it understandable by at least one person in the meeting of about 100 people. ... 225. That is why that issue [of whether those present, or one of them, was relevantly proficient in English] ... is important. And I'm not suggesting for one moment that the fact that English may not have been the first language of many in the room is not unimportant. But remember ... what the plaintiffs have to establish is that at least one person amongst that number understood the English language such as to comprehend, that is understand meaningfully ... what the document as read would convey to a person with an ability to read English. 226. Mr Kochou gave this evidence. He agreed that for most of those at the meetings, English would not be their first language. However, he did not agree, when tested by Mr Dawson in cross-examination, that most of those understood Assyrian better than English. He said, Mr Kochou, and I quote: 'A lot understood English better than Assyrian, young people especially.' 227. He said that in order to cover the potential for someone in audience to understand Assyrian better than English, the first defendant attempted a translation of the petition from English to Assyrian. 228. It is not suggested in the evidence, so far as I understand it, that that was a word-by-word translation as with a translation of the document from a professional translator. The document was read out, as Mr Kochou tells you, word for word in English to cover those who understood Assyrian better than English [sic, English better than Assyrian]. A translation was then attempted, as I understand the evidence, in a summary way by the first defendant. 229. Mr Kochou also told you, when tested by Mr Dawson in cross-examination, that some people could not read English. It is a matter for you as to whether you conclude from that that not one person in the room could read English. Mr Sarkez, who was of course at the meeting and who was, it would seem, uncontroversially an English speaker and a competent English speaker, gave this evidence which may bear upon the issue - it's a matter for you to resolve, of course - that it was after the document was read out in English that questions were taken from the floor; that is, questions asked by those who had questions that they wanted answered were posed from the floor and, as you recall the evidence, Mr Kochou again, as I recall it, answered what he could, but called upon Mr Isaac to answer questions that bore technically or significantly upon the content of the document since he was the author of it. 230. That may assist you in coming to a view - it's entirely a matter for you - as to whether the plaintiffs have satisfied you on balance that at least one person in the room who read the document understood it ... of the 100 assembled ... . ... 234. Whilst it is true that there is no evidence called from any person amongst the 100 who were assembled in the auditorium to say from the witness box, 'I heard Mr Sarkez [sic, Mr Kochou] read out the petition and I understood what he was saying', or, 'I was given the petition by my neighbour sitting next to me and he read it, and I read it and we had a talk about it.' There is no evidence of that kind. That much is patently clear to you. 235. However, given that I have reminded you as to what Mr Kochou said about the capacity of the assembled to read and understanding [sic] English and, in particular, that there were young people whose command of English was a lot better than the command of their dialect or the language from their country of origin, the question is whether you are prepared from that evidence to draw the inference comfortably and safely that at least one person in the assembled [sic] understood the English language in its written and spoken form. ... 237. Mr Neil, of course, has something to say to you by way of submissions about this first issue of publication, namely, whether a publication took place at all, and he submitted to you this: He said to you there is nothing in the evidence that warrants the view that not one person heard the petition being read and understood and nothing in the evidence warrants you finding that not one person read the petition and understood it. He said to the contrary. He said the evidence compels a finding, namely, that at least one person was of that capacity. ... 242. I move on ... to the second element, who was responsible. 243. Self-evidently, ladies and gentlemen, if you are not persuaded that at least one person had the document published to them, that is, if the scales do not tip in the favour of the plaintiffs on this issue, they bearing the onus of proof, to put it bluntly, that's the end of the section. It is not necessary for you to go on and consider any further the questions posed for your consideration - and I make that clear to you. It is a matter of logically passing through a series of sluice gates, as it were, in the way in which you approach your analysis of the questions posed. ... 245. On the question of who was responsible for publishing ... by circulating or agreeing that Mr Kochou read aloud, the plaintiffs' case is plain. The plaintiffs' case is that each of the six defendants - that is, all of Mr Allen's clients, Mr Kochou on his own behalf, and Mr Isaac represented by Mr Dawson - is responsible relevantly for the publication not in either one or other ways or, as the plaintiffs would submit, both ways. ... 247. In determining who might be liable for publication by circulation I direct you as follows: The defendant whose case you are considering - and you have to consider them individually, that is the way the questions are posed and that is the way you must apply your thinking - will be liable for circulating the petition if they arranged for, promoted or convened the general meeting knowing or believing, in the sense of reasonably expecting, that at that general meeting the petition, the very document that you have, would be made available. That people would be permitted, encouraged, or allowed to take up the document, and/or encouraged, permitted or allowed to pass the document around, that is to give it to others in order that those people to whom it was given might consider applying their signatures in support of what the petition asks for. 248. Because it is necessary for you to answer that question in the context of the very document that is the subject of the proceedings ... it is necessary for you to give consideration to who of the six defendants knew of the content of the petition at the time of the general meeting. You may have come to the view that there are only two people who knew of the content ... the author of the petition and Mr Kochou, who read it out. You may come to the view that they all knew in the relevant sense, of the content of the petition. ... [The trial judge then explained that it was not necessary for the plaintiffs to establish that a "particular" defendant knew the precise content word for word, that it was sufficient if the jury was satisfied that the relevant defendant knew or believed the petition contained "information about a questionable relationship between the plaintiffs and their association with Mr Suleman and that his investment company led to financial loss suffered by those who had invested in it, such that there are real questions as to the conduct of those solicitors" and that "each of the first, second, third and fifth defendants authorised or agreed that the seventh defendant would prepare a submission that would include references of that kind." She then dealt with the evidence]. 358. The question as to who is responsible seems to me to perhaps be helpfully dissected this way. The question might be put: have the plaintiffs persuaded you that all of the seven defendants are responsible; that is, each of defendants one, two, three, four, five and seven? Have the plaintiffs persuaded you of that on the basis that you are persuaded by Mr Kochou's evidence that each of the defendants, including himself is responsible for publishing the petition by circulating it or having Mr Kochou read it aloud with the approval of others because of what occurred at the preliminary meetings one, two and three culminating in the general meeting as the fulfilment, as Mr Kochou explained it, of what has been decided en route to the general meeting, namely, at the three preliminary meetings. 359. In order for you to be persuaded by Mr Kochou's evidence as to those matters, ... it would be necessary that you are satisfied on the probabilities that he is an honest and reliable witness in relevant respects. Namely, in respect of those matters that are very, very much in issue. 360. It may be that the plaintiffs have persuaded you that some or all of defendants one, two, three, four and five are responsible, but Mr Isaac is not. That is, that you are not persuaded that Mr Kochou has given honest and reliable evidence about Mr Isaac's involvement such that you are able to safely come to the view that Mr Isaac ought bear no responsibility at all for publication of the petition, irrespective of what Mr Kochou may say about the other men that were seated with him around the committee table in the previous meetings and seated with him at the top table on the day of the general meeting. 361. There are two alternatives which are logically open on the evidence, depending very much upon the view that you take of Mr Kochou as the only one of the defendants one, two, three, four and five who has given evidence in these proceedings. You would easily recognise that defendants one, two, three and five have not given evidence, and I am going to say something about that in a moment. 362. The third logical alternative is this; the evidence leaves you utterly undecided as to what the position is so far as Mr Isaac is concerned, or for that matter so far as the liability of any of the other defendants is concerned, except of course Mr Kochou himself. He did not seek to distance himself in any way from the fact of reading out the petition. Indeed, you might think he did not seek in any way to distance himself from the fact that he knew and expected that the petition would be on the tables at the base of the stage, available to be read or picked up and circulated and handed around at the meeting. 363. It may be that in a practical sense they are the three alternatives; either all seven defendants are responsible because you are satisfied Mr Kochou is an honest witness, an honest man, and a man who has given honest and reliable testimony. Or, you are not persuaded that Mr Kochou is honest insofar as his nomination of Mr Isaac as taking the lead and directorial role in the events culminating in the general meeting, such that you are not prepared to find Mr Isaac's involvement as a publisher in borne out through Mr Kochou's evidence. Or, as I say, you are left in such doubt as to leave the metaphorical scales in equal balance on that question, leaving you with the option - if you were to go the distance - of finding Mr Kochou as the only publisher of the material in the relevant sense. [The trial judge explained the significance of parties failing to give evidence or challenging a witness' evidence.] 367. ... [W]hat happened at those three preliminary meetings and the general meeting is the source of evidence that bears directly upon ... whether it was agreed that the general meeting was the forum within which circulation of that document would take place and, indeed, a forum in which potential petitioners would be invited to read the petition so as to determine whether or not they would affix their signatures to it. 368. Remember of course it is those matters - that is whether there was an agreement to publish or whether it was well understood that circulation would occur at the general meeting - that bears very, very directly upon who is responsible ... for the publication. ... 373. Insofar as [Mr Abdishou] is concerned, you will recall that it is Mr Isaac's case that he [Mr Abdishou] was in the back of he auditorium showing him the error in the petition ... that Mr Kochou popped up unannounced ... and commenced to read the petition, and that both Mr Isaac and [Mr Abdishou] expressed surprise ... that that was occurring. 374. That is a significant aspect you might think, of the case that Mr Isaac advances in seeking ... to persuade you that his account of events is the more persuasive and which would render him of course utterly free of a finding adverse to him that he was the publisher by well knowing in advance that that was to occur. ... 378. ... [I]t is for plaintiffs to persuade you that it is more probable than not that Mr Kochou is the one who is telling the truth when he says that Mr Isaac took the leadership role as the legally trained person at each of the three prior meetings. In that capacity he proposed the idea of the petition, he explained how it would achieve the objectives of attracting publicity and a focus to the plight of those who had lost from the collapse of Karl Suleman Enterprises by calling for an investigation into the conduct of the named solicitors, including the plaintiffs. That it was Mr Isaac in that leadership role as a legally trained person who advised more than once that there was no risk of repercussions because the information recited in the petition was in effect a matter of public record drawn from transcripts of evidence. That it was Mr Isaac who encouraged the other defendants to rally community support, and that it was Mr Isaac who approved of those at the general meeting becoming aware of the contents of the petition by Mr Kochou reading it aloud to them and then making it available for those who wished to read it themselves. [The trial judge then outlined Mr Dawson's submission to the effect that Mr Kochou was motivated to protect his own financial position, that he decided to commit perjury and cast the blame of publication of the petition on the 'blameless Mr Isaac': summing-up [380] - [381]. She explained that there was nothing wrong with the settlement document between Mr Kochou and the appellants and that the question whether Mr Kochou had perjured himself had to be judged by reference to the remaining evidence: summing-up [382] - [389]; she outlined the competing submissions on Mr Kochou's and Mr Isaac's credibility: summing-up [390] - [442].] 463. [The issue that] it would seem to me [is] the most [in] contention between the parties [is] the question of who is liable for the publication. You will remember that publication has two elements. First and foremost 'was there a publication at all' and you will remember my directions to you that whether the method of publication you are considering, namely, by circulation or reading aloud is the subject of discussion between you, you will need to be of the affirmative mind, that is satisfied on the balance of probabilities, that at least one person read it or at least one person heard it read such as to comprehend what was contained in the petition, which is the document sued upon. ... 465. One aspect bearing upon this, before I leave it altogether is this: The general meeting was of course convened in the community's cultural club which is a sports club and obviously available for other purposes. You know, and I will take you to the evidence on this matter in due course, that the fact of the meeting was broadcast over the community radio and even though you have had what was broadcast translated into English, as you recall the evidence that broadcast was actually broadcast in the Assyrian dialect or one of them. Whilst the petition, according to Mr Kochou's evidence and Mr Sarkez's evidence was read out in English, the balance of proceedings at the general meetings were, according to the evidence, conducted in Assyrian and again there is no clarity as to which of the four dialects was used, if one of the four, but certainly the balance of proceedings were conducted in Assyrian, which involved the meeting being called to order, there being a very brief outline as to the order or anticipated order of events for the day - that was said in Assyrian - and there was a summary of the petition also delivered in Assyrian for those people for whom English was not the preferred or available means of discourse, and it would also seem that questions were taken from the floor in Assyrian, so that is a matter that I should draw to your attention when you come to consider that first question which is presented for your consideration, namely, are you satisfied on the balance of probabilities that the petition was published. 466. Were you all of an affirmative mind in response to that question you then move to the second question, which is the question I identify as being the most contentious in the course of this hearing. That is who, if anyone other than Mr Kochou, is liable for the publication? [The trial judge then outlined Mr Isaac's evidence and Mr Neil's criticisms of it: summing-up [468] - [616]; and revisited 'general propositions as they concern imputations': summing-up [518] - 534]]" (Emphasis added) 134In the course of the summing-up, the trial judge variously observed that: "47. It seems to me - although ultimately it is for you to decide - but it seems to me that somebody in this case, either Mr Kochou or Mr Isaac, and to a lesser degree perhaps Mr Sarkez, but someone must be telling lies, for the simple reason that the evidence called by the plaintiffs as to what happened at the three meetings prior to the general meeting, and the general meeting, and the evidence called by Mr Isaac as to what happened at the three previous meetings and the general meeting, cannot stand together. 48. ... [I]t seems to me at least that it cannot be that those differences in the accounts can be resolved entirely on the basis that the three men have a thoroughly honest but completely different memory of that series of events. ... 339. The lines drawn between the plaintiffs and the seventh defendant through Mr Kochou as a witness in their case is a very stark and bright line contrast ... . 347. ... When Mr Kochou was under oath and when Mr Isaac was under oath, they each denied they had lied. 348. Accordingly, it falls to you to consider the evidence of each of these two men because on any view, it may be your view - it seems to me that on any view of the evidence their evidence cannot stand together. [The trial judge then summarised Mr Isaac's evidence concerning the three preliminary meetings and the circumstances in which he attended the general meeting] 478. Mr Kochou's evidence is completely contrary to that in almost every respect ... ." 135The appellants do not complain, save in one respect, about the trial judge's summing-up to the jury on the issue of the tests to be applied in determining whether the imputations for which the appellants contended were conveyed. However it is appropriate to record that her Honour directed the jury (summing-up at [519]), in conventional terms, "that the ordinary, reasonable reader, or the ordinary, reasonable listener, is the touchstone for your determining whether or not the imputations the plaintiffs contend for were conveyed". Her Honour explained that that person was "a "hypothetical person", was not a juror nor herself nor anybody in the court room. 136The trial judge then directed the jury, again in conventional terms sourced to Jones v Skelton [1963] SR (NSW) 644 and Lewis v Daily Telegraph Ltd [1964] AC 234 (see also Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716) to assume that the ordinary, reasonable listener or reader either read or heard the whole of the petition and, further, directed the jury to look at the whole article to determine the imputations issue: summing-up at [520]. 137Her Honour also directed the jury that they did not have to be satisfied that the matter complained of conveyed the precise words of the imputations, but, rather, the substance would be sufficient (summing-up at [522] - [523]). Further, that despite the many times the jury had had reference to the matter complained of in the course of the trial, they should approach this exercise on the basis that the ordinary, reasonable reader or listener would not have read it in that fashion: summing-up at [524] - [525]. Her Honour then addressed the arguments of Counsel. 138In the passage of which the appellants complain her Honour referred (summing-up at [528]) to Mr Dawson's submission "that the audience, or those assembled at the meeting, would have understood that the petition called for an investigation ... ". It is this reference which the appellants contend exacerbated those passages of Mr Dawson's and Mr Allen's addresses to the jury which I have set out at [109] - [110] and [130].

Questions for the jury 139The jury was asked to answer the specific questions of fact going to publication, whether the petition (as read or heard) carried the imputations and, if it did, whether any imputation so carried was defamatory, with which it was their function to deal pursuant to s 7A of the 1974 Act. Those questions were left to them in accordance with s 90 of the Supreme Court Act 1970: see generally Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171 (at 195 - 196) per McHugh J. 140There was debate at trial as to the structure of the questions for the jury. Mr Dawson contended, unsuccessfully, that the question on publication in the libel case should be divided into two: whether the appellants had established first, that someone at the general meeting had read and comprehended the petition and, secondly, established that the relevant defendant was responsible for that publication. The form of the questions was that for which Mr Neil contended. 141The questions for the jury were divided into three sections. The first was headed "publication". Question 1 was divided into sections relating to each defendant. The questions in each sub-section were identical save for the insertion of the name of the respective defendant. They were: "(i) Have the Plaintiffs established that [name of defendant] published a petition substantially to the effect of the matter complained in these proceedings by circulating the petition at a meeting at the Assyrian Sports and Culture Club on 27 November 2005? ANSWER: YES/NO (ii) Have the Plaintiffs established that [name of defendant] published a petition substantially to the effect of the matter complained of in these proceedings by agreement with Fourth Defendant that the Fourth Defendant should read the petition aloud at a meeting at the Assyrian Sports and Culture Club on 27 November 2005, which the Fourth Defendant did? ANSWER: YES/NO" I will refer to question 1(i) as the "circulation question" and to question 1(ii) as the "agreement question". As is apparent, question 1(i) addressed the libel case, while question 1(ii) addressed the slander case. 142At the end of Question 1 the jury was directed: "If you answer 'YES' to any part of Question 1 go to Question 2. If you answer 'NO' to every part of Question 1, go no further." 143Question 2 was headed ""The first Plaintiff - Publication in writing". In that section the jury was asked to answer the question whether the first plaintiff had established that the matter complained of carried to an ordinary reasonable reader the imputations of which he complained or imputations not substantially different from them. Question 3 asked the same question in relation to the oral publication. Question 4 asked the question whether the first plaintiff had established that any imputation the jury had found to have been carried was defamatory. 144At the end of question 4, the jury was directed to go to question 5. Questions 5 - 7 repeated questions 2 - 4 in respect of the second plaintiff. 145The jury answered questions 1(i) and 1(ii) "No" in respect of Mr Abdishou, Mr David, Mr Manso and Mr Isaac. They answered question 1(i) "No" in relation to Mr Dadisho and Mr Kochou, but answered question 1(ii) "Yes" in respect of both men. 146Having answered question 1(ii) "Yes" in relation to Mr Dadisho and Mr Kochou, the jury complied with the direction at the end of question 1 and directed its attention to questions 2 (first plaintiff - libel case) and 3 (first plaintiff - slander case), then questions 5 (second plaintiff - libel case) and 6 (second plaintiff - slander case). They answered "No" as to each imputation complained of. Having so answered, the jury complied with the direction at the end of each respective section of the questions and did not proceed to consider whether any imputation was defamatory of either plaintiff. 147After supplying their answers to the questions to the court, the jury was discharged. Mr Dawson then asked for a verdict in favour of all defendants. There was no opposition to that order being made. The trial judge then entered a verdict in favour of each of the six defendants and ordered the appellants to pay their costs. This was the proper course as the jury's answers to the questions required such a verdict: Edmond Weil Inc v Russell (1936) 56 CLR 34 (at 46 - 7) per Dixon and Evatt JJ; McDonnell & East Ltd v McGregor (1936) 56 CLR 50 (at 55, 56) per Dixon J; Skalkos v Assaf [2002] Aust Torts Reports ¶81-644; [2002] NSWCA 14 (at [57]). The verdict entered was a general verdict which the jury's answers are taken to have authorised: Mourani v Jeldi Manufacturing Pty Ltd (1983) 57 ALJR 825 (at 825) per Murphy ACJ, Wilson, Brennan, Deane and Dawson JJ (in the course of rescinding special leave to appeal); Anderson v Ntzounas [1988] VR 748 (at 750 - 751, 752 - 753) per Brooking J (Young CJ and Nicholson J agreeing). 148Once the jury had answered the circulation question negatively in relation to each respondent, it might be thought it would have been apparent to all at the trial that they should not have proceeded to questions 2 and 5 and that they may have misunderstood or misapprehended their precise task. In such circumstances, the trial judge could, in the exercise of her discretion, have sought elucidation as to why they had answered those questions having regard to their answers to the circulations questions. At the same time it must be recognised that the "course of seeking such elucidation is fraught with danger and the discretion to seek it should be exercised sparingly and with care": Mourani v Jeldi Manufacturing Pty Ltd (at 825 - 826); see also Bromley v Tonkin (1987) 11 NSWLR 211 (at 236) per Clarke JA. Further, no counsel asked her Honour to exercise that discretion. 149That being said, the problem with the logic of the questions formulated for the jury's consideration is manifest. The jury should only have been directed to proceed to question 2 if they answered at least one of the circulation questions favourably to the appellants. If (as was the case) they had not, then that was the end of the libel case and question 2 did not arise. There should have been a question at the end of question 1 which discriminated between the answers to the circulation and agreement questions and, depending upon the answers to each, directed the jury either to answer all the remaining questions or to answer either the imputations questions in the libel or slander case. The implications of the erroneous formulation of the questions are manifest in the fact that the jury dealt with question 2 even though they had answered all the circulation questions negatively. The significance of this for the disposition of the appeal is addressed later in these reasons. 150To put those directions in context, I set out what appear to be the relevant parts of the trial judge's summing-up directing the jury as to the significance of, and as to how to answer, the jury questions: "4. The issues which you must determine are the issues encapsulated in the questions which have been drafted by counsel and settled by me, which are before you and entitled, unsurprisingly, 'Questions for the Jury'. So the issues that you have to ultimately determine by either a 'yes' or a 'no' as the questions present themselves are the ultimate issues to be resolved by you. ... 113. ... I just identified for you three specific concepts which arise in an action for defamation and suing someone for defamation is an action in defamation. The specific concepts as they involve you in this case are publication, whether certain imputations were conveyed by that publication and whether the imputations were defamatory. They are questions that you are asked to resolve but let me just fill you in as to the broader issues in an action for defamation. 114. There is a fourth and a fifth issue in an action for defamation and they are these, the fourth follows logically from the third. If there was a defamatory meaning conveyed by the words published, is there a defence. Fifthly, if there is no defence, or any defence that is advanced fails, what damages should be awarded. 115. May I tell you, you are relieved of ever having to consider the fourth or fifth questions. Those questions, if they arise at all, will be determined by a judge sitting without a jury. For reasons of legislative history, which I don't have to tell you about, issues one, two and three in this trial are for you to resolve. Questions four and five, if they arise, will be for a judge to resolve. It may be me, it may be some other judge of this court. ... 151. You will remember that the second issue that is for you to determine and that you would only need to determine were you to find the first questions as to publication is [sic] answered in the positive, is the issue of imputations. The question of imputations are governed by questions 2 and 3 on the jury questions as they relate to Mr David and questions 5 and 6 as they relate to Ms David. ... 161. ... [T]he question posed in 2 and 3 and 5 and 6 in the jury questions is shortly this: whether, in substance, the meanings asserted by the plaintiffs are conveyed by the published materials. ... 517. May I move now, please, to the third issue for your consideration, which is the issue of imputations, and you will remember that the question of imputations is governed by ... [q]uestions 2 and 3 as they concern Mr David and questions 5 and 6 as they concern Ms David, and remembering, of course, that you only come to determine the question of imputations in respect of any one of the defendants if you are satisfied that that particular defendant is liable as a publisher. That is, you are satisfied on the balance of probabilities that he has either published, by agreeing that the document be read out, or published by circulating the documents. ... 539. The questions that have been posed for you in this very compendious document looks like a road map. You would be forgiven for thinking that it looks like a road map, but it's set out that way so that you pass logically through each of the gates of reasoning so as to lead logically to the next set of questions posed for your consideration."

Notice of appeal 151The amended notice of appeal identifies the following grounds of appeal:

1. The trial judge erred in directing the jury that an essential pre-requisite for a finding that the written petition ("the written matter complained of") was published, was that at least one person had read and understood the matter complained of.
2. The decision by the jury (in answer to Questions for the Jury 1(a)(i)) that the first respondent had not published the written matter complained of was perverse.
3. The decision by the jury (in answer to Questions for the Jury 1(c)(i)) that the third respondent had not published the written matter complained of was perverse.
4. The decision by the jury (in answer to Questions for the Jury 1(f)(i)) that the seventh respondent had not published the written matter complained of was perverse.
5. The jury's answers to Questions for the Jury 2(a), 2(b), 2(c), 2(d), 2(e), 5(a), 5(b), 5(c), 5(d), 5(e) and 5(f), that none of the imputations were conveyed by the written matter complained of were perverse.
6. The jury's answers to Questions 3(a), 3(b), 3(c), 3(d), 3(e), 3(f), 6(a), 6(b), 6(c), 6(d), 6(e) and 6(f) that none of the imputations were conveyed by the oral matter complained of were perverse. 152In the event the appeal is successful, the appellants seek orders setting aside the judgments and verdicts for the first, third and seventh respondents and directed verdicts in the appellants' favour on the issues of publication, the fact that the imputations were conveyed and that they were defamatory: s 108(3), Supreme Court Act. 153The appellants identify the following issues as underlying the grounds of appeal in relation to the written publication: (i) whether the jury was misled on the issue of the correct legal test of publication; (ii) the consequences of (i); (iii) whether this Court should direct verdicts on the issue of publication of the petition against Mr Isaac; (iv) whether this Court should direct verdicts on the issue of publication of the petition against Mr Abdishou; (v) whether this Court should direct verdicts on the issue of publication of the petition against Mr Dadisho; (vi) whether there should be directed verdicts in relation to whether the imputations were conveyed; (vii) whether there should be directed verdicts on the issue of whether the imputations were defamatory. 154The appellants' written submissions (paragraph 5.2) disavowed any challenge to the jury's negative answer to the questions whether Mr Abdishou and Mr Isaac published the petition by agreeing with Mr Kochou that he should read the petition to the general meeting. The appellants were content with the jury's finding that Mr Dadisho published the petition in that sense. Thus the only issue in the slander case is whether, if the Court accepts their challenge to the jury's finding that the imputations were not conveyed by the reading of the petition, there should be a directed verdict in relation to that issue and the defamatory issue.

The publication issue 155Mr G Reynolds submitted that the appellants' case at trial on the libel case had been that the respondents published the petition at the general meeting when signatures were sought for it. On the slander case it had been that the respondents had agreed to read the petition out at the meeting. 156Mr Reynolds argued that the trial had miscarried because the jury had been directed incorrectly on the question as to what the appellants had to prove to establish publication. He contended that it was incorrect to direct the jury that they had to be satisfied that at least one person at the general meeting read and comprehended the whole petition - a misdirection he contended was compounded by Mr Dawson advancing substantially the same proposition in the course of his address to the jury. 157Mr Reynolds argued in written and oral submissions that the jury ought to have been directed that it was sufficient to establish publication if the petition was available at the meeting in comprehensible form, whether or not any person at the meeting read and/or comprehended it. 158Mr Reynolds on the one hand eschewed the proposition that availability of the petition in the sense for which he contended meant the tribunal of fact could draw an inference of publication. On his primary test for publication, mere availability in comprehensible form was sufficient to establish publication However, he accepted in the course of argument that if the test of publication required proof that the petition was read and comprehended, then it would be possible in the present case to infer that one person in the audience (bearing in mind the many signatures supporting the petition) did so. 159Mr Reynolds contended that the proposition that the correct test for publication of written defamatory material is whether it was "available in comprehensible form" was established by the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 (at [26] - [28], [44] and [48]). He also contended that support for this proposition was found in the authorities cited in footnote 98 to [27] of Dow Jones v Gutnick, in particular Duke of Brunswick v Harmer (1849) 14 QB 185; (1849) 117 ER 75 and McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513, both of which he argued were authority for the proposition that delivery to a person of matter available in comprehensible form is sufficient to prove publication. He emphasised that the High Court judgments had not stated that "publication occurs when [written matter] is read and comprehended". 160Mr Reynolds also emphasised that in Duke of Brunswick, the evidence was that the Duke's agent had simply made "the purchase and handed the paper, when purchased, to the plaintiff". He submitted that those facts indicated the agent had not "even looked at the defamatory articles, less still that he read it from beginning to end and comprehended it". He contended that the citation of that case in footnote 98 in Dow Jones v Gutnick (at [27]) reflected a "long-established common law rule" accepted by the plurality. He also relied on the statement by Mason and Manning JJA in McLean v David Syme & Co Ltd (at 528) that at common law "the rule was that there was a separate publication of the newspaper to each person to whom it is delivered by the publisher, although there may be a single publication where a large number of copies are delivered to an independent person for distribution". Mr Reynolds submitted that their Honours' sourcing of this proposition to Duke of Brunswick v Harmer, supported the interpretation of Dow Jones v Gutnick for which he contended. 161Mr Reynolds argued that, in accordance with Dow Jones v Gutnick, the trial judge ought to have instructed the jury that the appellants had established publication of the petition if they proved, as was incontrovertible, that it was available to be read at the general meeting, regardless of whether they proved that anyone actually read or understood it. 162Mr Reynolds also submitted that the definitions of "publish" in s 13B of the Wrongs Act 1958 (Vic) and "publication" in s 5 of the Defamation Act 1889 (Qld) were declaratory of the common law meaning of "publication" he advanced. He contended that the statutory provisions which the plurality said in Dow Jones v Gutnick (at [27]) reflected "[t]he bilateral nature of publication underpin[ning] the long-established common law rule that every communication of defamatory matter founds a separate cause of action", did not support the proposition for which their Honours cited them or, at least, were not germane to the issues arising on this appeal. 163In oral submissions Mr Reynolds also contended that, if his Dow Jones v Gutnick test did not find favour, the jury direction on the issue of publication ought to have been to the effect that it was sufficient that the petition was "communicated to someone capable of understanding it" (T K Tobin and M G Sexton, Australian Defamation Law and Practice, LexisNexis, Butterworths (2003) ("Tobin & Sexton") at [5005]). This was in contrast, the direction that the jury was given was to the effect that publication was established if "at least one person ... read the petition and understood it ... and at least one person heard the petition being read and understood it in the same sense": summing-up at [212]. 164Mr Reynolds submitted that if the jury was misled on the critical issue in relation to publication of the petition, all of the verdicts on publication and the jury's answers to the questions in the libel case as to whether the imputations were conveyed by the petition should be set aside. This conclusion followed from the proposition that the jury's negative answer to the first publication issue may have contaminated their consideration of the remaining questions. He argued that without "getting caught up with how the case was presented", it was sufficient to invoke the Court's discretion to set aside the jury's verdict on publication that there had been a misdirection on a matter of law and that the jury may have determined the case on the basis of the misdirection. 165In the event that his primary submission as to the meaning of publication was rejected, Mr Reynolds submitted that, in any event, the appellants were entitled to a directed verdict as to publication of the petition because there was unchallenged evidence that Mr Kochou read it from beginning to end to the meeting and, presumably, comprehended it. 166Next Mr Reynolds contended that each respondent was liable for the publication of the petition because, to some degree, each was an accessory to, and conduced its publication so that they were to be considered principals in the act of publication in accordance with the principles enunciated in Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 (at 364) per Isaacs J. He argued that the undisputed evidence as to Mr Isaac's role in the preliminary meeting, preparing the petition and his knowledge that it would be available at the general meeting to be "read or picked up and circulated and handed around at the meeting" was sufficient to satisfy the "undemanding tests" in that case. 167Mr Reynolds argued that the appellants' case on responsibility for publication as against each respondent was established by the following evidence: (a) The idea for the petition came from Mr Isaac; he drafted the petition on behalf of the respondents; he prepared the petition as part of an attack on the appellants; he told Mr Dadisho how to prepare a signature page which was to be attached to the petition; he knew that the general meeting was to take place and that those on whose behalf he had prepared the petition wanted it before that meeting and that they wanted names and addresses to support the complaint; he finished the petition one or two days before the meeting took place and gave a copy of it to Mr Dadisho; he attended the general meeting to provide answers to legal questions; he knew those on whose behalf he drafted the petition were asking supporters to attend in order to "support the petition"; he knew the petition would be available to be read; he expected the signature page to be signed in support of the petition (although he did not think supporters at the meeting would "bother" to read it) and he knew the petition would be available at the general meeting to be read and it was read out. (b) Mr Dadisho was present at the meetings where the petition was proposed; he instructed Mr Isaac to draft the petition before the general meeting; he received it from him; he handed it to Mr Kochou; he prepared the signature page; he promoted the general meeting on the radio inviting Assyrians to attend to sign the petition; he took copies of the petition to the general meeting where he sat at the head table; he saw copies were available at the meeting; and he asked Mr Kochou to read out the petition, which he did, and introduced him to the audience as the reader. (c) Mr Abdishou was closely involved in the publication of the petition at every stage from its commission to the holding of the general meeting; he promoted attendance at the meeting where the petition was to be signed; he summarised the petition at the meeting in Assyrian (and could therefore be presumed to know its content which he had, in any event, discussed with the woman from the credit committee); that he asked Mr Isaac to attend the meeting, sat at the head table and chaired the meeting; and he knew copies were available at the meeting. 168Mr Reynolds argued that, even on the basis upon which the trial judge directed the jury, the jury's negative answers to the questions dealing with publication were perverse and that the Court should enter a directed verdict in the appellants' favour against each: Supreme Court Act, s 108(3); John Fairfax Publications v Gacic.

The jury's answers to the imputations question - libel case 169Mr Reynolds submitted that the jury's answers in relation to the imputations in the libel case should either be disregarded or set aside because of the form of the questions to the jury. He contended the jury should not have been directed to proceed to question 2 (and indirectly to question 5) if they had answered "No" to all the circulation questions. He argued that if the jury questions had been properly drafted, and the jury properly directed, the jury would not have been asked to determine whether the petition conveyed the imputations in the libel case if they had previously determined it had not been published by circulation. 170Mr Reynolds also argued that the answers may have been influenced by the jury's rejection of the appellants' case on publication or the erroneous addresses on the issue of determining whether imputations were carried - a matter dealt with below. Mr Reynolds submitted that as the jury had been told that they only considered, relevantly, questions 2 and 5, if they were satisfied that a defendant was liable as a publisher, there "must be a considerable risk that the jury's consideration of the questions relating to imputations was contaminated by their rejection of the plaintiffs' case on publication". He contended that the jury "must have realised that the plaintiffs' case in respect of publication of the petition had failed at the point when they considered whether the imputations were conveyed [and] ... may well have thought that the answers to the questions relating to the imputations should be answered 'no' on the basis that the case on imputations had to fail if the case on publication had already failed." 171Alternatively, Mr Reynolds complained that there was a miscarriage of justice in relation to the jury's findings as to whether the imputations were conveyed because counsel for the respondents at trial misstated the test the jury should apply when considering whether the petition conveyed the imputations. This complaint did not reflect a formal ground of appeal, but was another factor directed to persuading the Court to disregard the jury's answers to questions 2 and 5 on the basis that the misstatements may have contributed to the jury's confusion. 172Mr Reynolds submitted the jury should have been asked to consider how a hypothetical reader who had "the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed" (Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 (at 166)) would have read the petition. 173Instead, he complained, counsel for the respondents had incorrectly invited the jury to test the question whether any of the imputations were conveyed by reference to how an actual, as opposed to a hypothetical, reader at the general meeting read the petition and, also, on the basis that the ordinary reasonable reader may have just "skimmed" it. 174This complaint focussed on the following passages in Mr Dawson's address to the jury, particularly the italicised sections: "[W]hat does this document convey to an ordinary person at the meeting ... you might think if it's being passed from person to person, people are skimming it, they're not going back and reading it and analysing it and they're signing it, if that's what's actually happening because of a general impression they get from the document which calls for an investigation. ... Indeed, it may be very simple with the petition being handed around for people to sign it and skim read it and sign and skim read it, if that's what was happening. ... If you are satisfied on the evidence that somebody read the document more carefully than just a cursory skim and did perhaps go back and analyse it, I submit to you that you find the imputation is not conveyed on a different basis, namely that on analysis the imputations aren't there." 175He also complained about the following part of Mr Allen's address to the jury: "The same can be said about the ordinary reasonable reader of the petition, because it is a long document that is not well-written. The reader would have gleaned what the document was about. Even though they wouldn't have read the entire document, they would have gleaned what was being requested was an investigation. Indeed, you have Mr Sarkez, who gave evidence that the way he read the petition was by skim-reading it." 176Mr Reynolds submitted that none of those misstatements were corrected by the trial judge and that to some extent her Honour exacerbated the issue by drawing attention to Mr Dawson's submission that "the audience at the general meeting ... would have understood the petition called for an investigation". 177Accordingly, Mr Reynolds argued that there was a real risk of miscarriage in relation to the jury's findings on whether the imputations were conveyed.

The jury's answers to the imputations questions - perversity 178Mr Reynolds also submitted that there could be little doubt the imputations were clearly conveyed by the petition as written and as read to the meeting and that the jury's findings to the contrary were perverse. He contended accordingly, that the appellants were entitled to directed verdicts or a retrial in relation to the question whether the imputations were conveyed. 179Finally, Mr Reynolds submitted that while the jury correctly, did not determine whether the imputations were defamatory, counsel for the respondents had not challenged the proposition that, if conveyed, they were. Accordingly, he submitted that verdicts should be entered in the appellants' favour on this question. Alternatively, he submitted that any order for a retrial should not include this issue on the basis that it was not in dispute. 180Insofar as the respondents relied upon the proposition that there had been no complaint at trial about the trial judge's "failure" to direct the jury in accordance with what he submitted was the correct principle as to publication or as to how the ordinary reasonable reader would have read the petition, Mr Reynolds submitted that there was no rule that a failure by a party to take an objection at trial prevented that party from relying upon a judge's failure to direct a jury in accordance with the law as a ground for a new trial, but, rather, that the Court had a discretion in such circumstances to so order, relying on Bright v Sampson (1985) 1 NSWLR 346. He contended that the Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 (at [77] - [78]) line of authority did not apply to an appeal from a jury case. 181Mr Reynolds submitted that the discretion should be exercised in the appellants' favour first, because of what he submitted was an egregious error of misinterpretation of Dow Jones v Gutnick; secondly, because of the strength of the appellants' s 7A case; thirdly, the fact that the trial judge fell into error because of the conduct of counsel at the trial; fourthly, the injustice which flowed not only from the egregious error, but also because of the costs the appellants had incurred; fifthly, the fact that the trial went off on a fundamental misconception; sixthly, the fact that Mr Neil at trial made no express concession that Dow Jones v Gutnick did not stand for the proposition for which the appellants now contended; seventhly, that the jury verdict was a decision not based on law; eighthly, that it was the respondents (or presumably their counsel) who were to some extent to blame; ninthly, that any error on Mr Neil's part was inadvertent; tenthly, that failure to take the Dow Jones v Gutnick point could not be said to have been a decision made for tactical purposes; eleventh, that there would be no need for a new trial on publication if the Court directed a verdict in relation to that issue; and twelfth, if there was a new trial there was no specific prejudice, that is to say that the detriment suffered by the appellants in not getting a new trial would be greater than the prejudice the respondents would suffer from that consequence.

The publication issue 182Mr T Blackburn of Senior Counsel, who appeared for Mr Isaac on appeal, but not at trial, with Mr A Dawson, submitted that the proposition that in order to prove publication a plaintiff need do no more than establish that a publication was available in comprehensible form was wrong in principle and contrary to authority. He argued that publication could only be established by proving communication of the petition to a third party who comprehended the defamatory statement or statements. 183Mr Blackburn argued that in order to establish publication insofar as Mr Isaac was concerned, the appellants first had had to establish that publication in the sense for which he contended had actually occurred and, secondly, that Mr Isaac was responsible for the publication. He submitted that it had been open to the jury to find there was no publication by circulation and, further, to find that Mr Isaac was not responsible for any such publication if it did occur. 184Insofar as Mr Reynolds sought to rely on a case of publication based on Mr Kochou reading the petition to the meeting, Mr Blackburn submitted that this case had not been run at trial and, accordingly, could not be advanced on appeal. 185Mr Blackburn submitted that the jury's negative answer to the question whether the petition was "published" at the meeting was not perverse. He pointed to the evidence that there were only two, at most four, copies of the petition at the general meeting, that nobody in the audience gave evidence that he or she read the petition, that a substantial number of those in the audience could not read English, and that the evidence that anyone was observed actually reading it was weak and could have legitimately been rejected by the jury. 186Next, he submitted that Mr Dawson put the case to the jury that it was open to its members to find that publication by circulation had occurred as long as they felt actually persuaded in this respect, but that it was also open to the jury to answer "no" to the relevant question on the basis that the evidence was inconsistent and unsatisfactory so that either the jury would be satisfied that no actual publication had occurred or the jury would not be persuaded one way or the other. He drew attention to the following matters in particular. 187First, no witness gave evidence that he or she had read the petition at the meeting. He contended that Mr Kochou and Mr Sarkez's evidence left entirely open whether any person at the general meeting had read the petition. He drew attention to Mr Kochou's evidence in chief of seeing somebody taking the petition and taking it back to where they were sitting, having been qualified in cross-examination by his evidence that he was "not sure" whether people read it or not. Mr Kochou also accepted that he did not know "for a fact" that anyone actually read the petition but had drawn this conclusion from his observation that the petition had been passed around. Mr Sarkez had said that he could not recall seeing anyone at the general meeting with the petition. 188Mr Isaac's evidence that he had not seen the petition being handed around was not challenged in cross-examination. 189Secondly, the evidence established that there were very few copies of the petition available at the general meeting. Mr Kochou's evidence was that, apart from the copy from which he read, there were only two copies of the petition at the general meeting. They were situated below the stage at the front of the room on a table. Mr Sarkez said that to the best of his recollection "there might have been, I don't know, three of four copies" of the petition on the table near the stage. Mr Isaac said that he did not see anyone with a copy of the petition other than Mr Abdishou. 190Thirdly, Mr Blackburn submitted that the suggestion that people did not read the petition was not improbable in view of the fact that it had been read to the meeting in English and summarised in Assyrian. The evidence established that the signature pages were available separately from the petition which enabled people present to sign those pages without seeing/reading a copy of the petition. Mr Kochou had said in cross-examination that he saw blank signature forms without the petition attached being handed out. Mr Sarkez gave evidence that the signature page was separately available on the tables "for people to sign or to take away and have signed". He "clearly" "recall[ed] ... people took the signature pages away from the table ... the fourth page of the matter complained of and not the petition". 191Fourthly, the evidence left entirely open whether, even if the petition had been passed around (and in that sense "circulated") at the general meeting, any person there who saw it was able to understand it. Mr Kochou said in cross-examination that the first language of most of the people at the meeting was not English. The general meeting was conducted entirely in Assyrian other than when Mr Kochou read the petition aloud in English. Mr Kochou explained in cross-examination that there was a need for the contents of the petition to be explained in Assyrian after he had read it out in English because the first language of the people at the meeting was not English. Mr Isaac gave evidence in chief of Mr Abdishou's reaction of incredulity to Mr Kochou reading the petition in English. He also gave evidence that while Mr Kochou was reading the document "most of the people were talking amongst themselves and were hardly listening to him talking" and that Mr Abdishou had said to him words to the effect "how could these people understand it in English?" 192Mr Blackburn submitted that in the light of that evidence, and in particular, of the few copies of the petition available, the equivocal evidence of whether anyone actually read the petition with comprehension and the fact that a substantial number of people at the meeting evidently did not have facility with the English language, it was open to the jury not to be satisfied, on the balance of probabilities, that any one person read and comprehended the petition 193Next, Mr Blackburn submitted that even if the Court was to find that the evidence compelled the jury to conclude that publication by circulation occurred, the evidence did not compel the conclusion that Mr Isaac was responsible for it. He submitted that mere authorship of the petition, taken in context of the events which occurred, did not make Mr Isaac responsible for publication at the general meeting. He submitted that while the relevant legal principles as to the meaning of publication were established in Webb v Bloch, the question whether Mr Isaac was responsible in that sense was one of fact for the jury to determine. He contended that a defendant is not liable for the "unanticipated and voluntary act of [publication by] another person": P Milmo and WVH Rogers, Gatley on Libel and Slander, 11th ed (2008) Sweet & Maxwell ("Gatley") at [6.11]. 194Mr Blackburn relied upon the evidence concerning Mr Isaac's involvement which I have set out in recounting the details of the trial. He contended that Mr Isaac's agreement to prepare the petition was limited to enabling the group with which he had met at the Assyrian Culture Club to lodge the complaint in their names with the Legal Services Commissioner. He pointed to Mr Isaac's circumspection in advising Mr Abdishou that if he was to talk about the complaint on the radio prior to the meeting, he should not name anybody but merely refer to the "professional advisors to Karl Suleman", advice he said he repeated when he learned of the proposal to convene the general meeting. He said Mr Isaac only attended the meeting reluctantly after persistent requests to be available to answer legal questions. He referred to Mr Isaac's evidence that he was neither told the petition was to be read out at the meeting nor did he expect that it would be read or handed around. He had expected a general discussion, including discussion about the fact a complaint was to be made against the "professional advisors to Karl Suleman" for which support was sought. He had not prepared the petition to be read at the general meeting and, had he known that was proposed, he would have prepared a different document, omitting names, in Assyrian and in summary form. 195Mr Blackburn also relied on the conflict between Mr Isaac's and Mr Kochou's evidence as to their conversations before the general meeting. He submitted that it was open to the jury to accept Mr Isaac's evidence that he had not discussed reading the petition aloud with Mr Kochou prior to the meeting and, accordingly, to reject the appellants' case that he was responsible for publication in the slander case.

The jury's answers to the imputations question - libel case 196Mr Blackburn submitted that the Court should not ignore the jury's answers to questions 2 and 5 essentially because the jury had been addressed on the issue and had heard the "evidence" and because "there appears to be nothing irregular about their answers".

The imputations issue 197Insofar as Mr Reynolds' complained that Mr Dawson misstated the test of whether the imputations were conveyed, Mr Blackburn contended that his submissions did not correctly state Mr Dawson's address to the jury. He submitted that when the address was read as a whole, it was apparent that the misstatement for which Mr Reynolds contended had not occurred, as was evident from the absence of complaint by the appellants' experienced trial counsel. 198Next, Mr Blackburn argued that the attention with which the ordinary reasonable reader is taken to read a written publication, and whether or not he or she would read it a second time, were matters for the jury, which was entitled to take into consideration the nature of the document and the circumstances in which the hypothetical ordinary reasonable reader would have read it. If the jury accepted that the petition was passed around during the meeting, those circumstances included, that the passing around was occurring in the context of signatures being subscribed to the fourth page, that the audience was, at the same time, being addressed by speakers on the stage and that the audience members were talking amongst themselves - all matters which would have distracted their attention from the contents of a lengthy legalistic document. 199Mr Blackburn submitted that it was open to the jury to find that the imputations were not conveyed given the nature and terms of the petition and the fact that the appellants' imputations were pitched at the highest possible level. He contended that as long as the jury's verdict could not be described as irrational, it must stand: John Fairfax Publications Pty Ltd v Rivkin (at [17]) per McHugh J. 200Finally, Mr Blackburn relied on the absence of complaint at the trial about this aspect of Mr Dawson's address and, accordingly, contended that this Court should not interfere: University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 (at 483).

MR ALLEN'S SUBMISSIONS 201Mr D Allen, who appeared for Mr Abdishou and Mr Dadisho, adopted Mr Blackburn's submissions. He also submitted that there was no evidence at trial as to who circulated the petition at the general meeting. Secondly, he contended that the question for the jury as drafted by the appellants in relation to the oral publication was whether there was an agreement with Mr Kochou that he should read the petition at the meeting. He contended that the evidence was that Mr Abdishou never knew the contents of the petition and did not summarise it at the meeting, relying, in this respect, on the brevity of Mr Kochou's account of what Mr Abdishou had said in Assyrian about the petition: see [36] above. Rather, the evidence was that Mr Isaac drafted the petition after the three preliminary meetings, then gave it to Mr Dadisho. The latter, in turn, gave the petition to Mr Kochou saying words to the effect "here is a petition you have to read at the meeting". There was no evidence that Mr Abdishou made any such agreement with Mr Kochou. 202Mr Allen also argued that the jury's negative answers to the question as to whether the imputations were conveyed, while inscrutable, nevertheless were capable of being understood as accepting the respondents' submissions to them that the imputations were pitched too high. He submitted that this was a decision a properly instructed jury could reach, and one which was not open to appellate review.

Setting aside a jury verdict 203A number of general propositions should be stated about appellate intervention in jury verdicts. 204An appeal court may order a new trial in a case where, on conflicting evidence a verdict is found which is said to be against the weight of the evidence if it concludes that "the jury, viewing the whole evidence reasonably, could not properly find it; ... [t]he party seeking a new trial on this ground needs an exceptionally strong case because it must be shown that 'the evidence so preponderates against the verdict as to shew that it was unreasonable and unjust' ": Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 (at 41 - 42) per Mason CJ, Deane, Toohey and McHugh JJ. 205Unlike the powers it exercises on a rehearing pursuant to s 75A of the Supreme Court Act, in the case of a jury verdict this Court has no power to review the evidence except for the purpose of determining what view on the evidence, or on any particular aspect of it, was reasonably open to the jury. Subject to what follows, it must assume that the jury took the most favourable view to the successful party's case which a reasonable jury could take upon the evidence: Zoukra v Lowenstern [1958] VR 594; [1959] ALR 42 (at 595); referred to with approval in Liftronic Pty Ltd v Unver [2001] HCA 24; (2001) 75 ALJR 867 (at [30]) by McHugh J; or, "a view of the evidence most consistent with ... the verdict": Progress & Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651 (at 672) per Jacobs J (Stephen, Mason and Murphy JJ agreeing); Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 (at 710) per Hutley JA; John Fairfax Publications Pty Ltd v Rivkin (at [17]) per McHugh J; Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 (at [110] ff) per McColl JA (Mason P and Beazley JA agreeing). 206These statements are subject to Gleeson CJ's caveat (of relevance, in my view, although expressed in the context of an appeal challenging a direction to a jury by a trial judge to return a verdict in favour of the defendant) that they can "involve a degree of over-simplification": Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [2]). As his Honour continued (footnotes omitted): "Sometimes the evidence in a case cannot be so neatly categorised. A witness may retract, or modify, or explain, his or her own evidence. Or, to take an example given by Jordan CJ, evidence which, if left unexplained, might sustain a case for the plaintiff, may be the subject of explanation by later evidence. If that explanation is one which a jury could not reasonably reject, and 'does not in any relevant aspect involve evidence that is capable of being treated as genuinely in dispute' then it may destroy the effect of the earlier evidence." 207The question for an appellate court is whether it was reasonably open to the jury to make an assessment unfavourable to the unsuccessful party, not whether the appellate court agrees with it: Swain v Waverley Municipal Council (at [19]) per Gleeson CJ. The court must avoid the fallacy of reasoning that because it would not have given the verdict the jury did, that verdict is unreasonable: Swain v Waverley Municipal Council (at [209]) per Kirby J. It is a matter for the jury "to decide whether they accept the plaintiff's evidence, and whether, if they do, they draw from it the inferences which he invites; and it is for them also to decide whether they accept any denials or explanations which the defendant may make": De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 (at 3) per Jordan CJ; Naxakis v Western General Hospital (at [43]) per McHugh J; Swain v Waverley Municipal Council (at [35] - [36]) per McHugh J; (at [204]) per Kirby J. Determining whether the jury verdict was reasonable, does not mean "whether the verdict appears to the appellate court to be right, but whether it is such as to show that the jury have failed to perform their duty": Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 (at 373 - 375) per Lord Wright; referred to with approval by Dixon J in Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 (at 498 - 499). 208In Hocking v Bell (at 440 - 441) - the facts of which are sufficiently well known not to require repetition - Latham CJ emphasised that "[i]n a trial by jury the jury is the constitutional tribunal for deciding issues of fact. Accordingly, his Honour continued: "Where there is a conflict of evidence it is not for the judge at the trial, or for any tribunal on appeal, to determine which witnesses should be believed - that is the responsibility of the jury ... Caution is necessary in applying the principle that a verdict may be set aside if it is against evidence and the weight of evidence. That principle must not be interpreted in such a manner as to deprive the jury of its right of believing one witness on one side against twenty (or any number) of witnesses on the other side." 209Although Latham CJ was of the view (at 460) that there was "very strong evidence for the defendant that [the plaintiff's case] was impossible" (emphasis added), he said that where "the evidence was in conflict ... [i]t is for a jury ... to say which evidence they will accept". Dixon J shared Latham CJ's misgivings about the plaintiff's case: Hocking v Bell (at 487). However, like the Chief Justice, he would not have set aside the verdict, having regard to "the respective provinces of the court and of the jury in matters of fact": Hocking v Bell (at 488). He pointed out (at 490, see also 496 - 498) that: "There is no question in a trial that is regarded as so clearly within the exclusive province of the jury to decide as the reliance to be placed upon the evidence of a witness whom they have seen and heard. The fact must therefore be faced, that however little faith we as judges may have in all this, yet before the defendant can be entitled as a matter of law to a verdict he must so utterly destroy the plaintiff's narrative as to place it outside the competence of a jury to give any credence to the material parts of it, a thing which in my experience I have never seen done with reference to direct oral testimony given upon a civil issue." (Emphasis added) 210On the case advanced at trial, both the issue of publication and, in particular, of Mr Isaac's liability for it, turned on whether the jury accepted Mr Kochou's evidence. In this respect, it must be recalled that both Latham CJ and Dixon J in Hocking v Bell were of the view that resolution of questions of conflicting evidence and credibility were matters for the jury. Latham CJ said (at 440), "[w]here there is a conflict of evidence it is not for the judge at the trial, or for any tribunal on appeal, to determine which witnesses should be believed - that is the responsibility of the jury"; see also Dixon J (at 501). 211A court should not speculate about a jury's reasoning process, but may draw "inevitable or proper inferences from the jury's decision": Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 4 All ER 732 (at [7]) per Lord Bingham of Cornhill; Hall v Swan [2009] NSWCA 371 (at [34]) per Bergin CJ in Eq (Tobias JA and Sackville AJA agreeing); John Fairfax Publications Pty Ltd v Gacic (at [117]) per Kirby J. 212Where the burden of proof is on a party who fails before a jury, the verdict cannot be set aside and a contrary verdict entered unless the jury could do nothing else but find in accordance with that party's contention: as to this issue, see further (at [220] - [224]). A contrary verdict will not be entered where the jury might reasonably have refused to be satisfied about one or more of the issues on which the plaintiff bore the onus of proof: Calin v Greater Union Organisation Pty Ltd (at 46 - 47) per Brennan J.

Directed verdict after jury trial 213If they are successful in setting aside the jury's verdict, the appellants seek, pursuant to s 108(3) of the Supreme Court Act, a directed verdict on all the s 7A issues. I have earlier set out s 108(3) (at [13]). 214Section 108(3) substantially repeats s 7 of the Supreme Court Procedure Act 1900, insofar as entry of a verdict is concerned. In John Fairfax Publications Pty Ltd v Gacic (at [27]) Gummow and Hayne JJ remarked upon the affinity between the two provisions and (at [47]) said that the meaning of s 108(3) was "elucidated by reference to various authorities upon s 7 [of the 1900 Act]". These included the reasons of Starke J and Dixon J in Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 (at 373, 379 - 380) and of Latham CJ (at 441 - 442) and Dixon J (at 497 - 498) in Hocking v Bell. The Privy Council's decision in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125 (at 130 -132) approved the dissenting reasons of Latham CJ and Dixon J: John Fairfax Publications Pty Ltd v Gacic (at [48]) per Gummow and Hayne JJ; (at [145], [147]) per Kirby J; (at [182]) per Callinan and Heydon JJ. The Privy Council's decision in Hocking v Bell and The High Court's decision in Naxakis v Western General Hospital also give guidance on the proper application of s 108(3): Swain v Waverley Municipal Council (at [128]) per Gummow J (with whose reasons Gleeson CJ agreed while also expressing his own reasons). 215The several judgments in John Fairfax Publications Pty Ltd v Gacic also considered s 108(3). A summary of their Honours' reasons reveals the following propositions. 216First, s 108(3) "should be construed amply so as to permit the Court of Appeal to respond to the requirements of justice [which] in the circumstances of a s 7A proceeding ... is sufficiently flexible to cover a case where it appears to the Court of Appeal that, upon the evidence, no reasonable jury could fail to answer a question favourably to the plaintiff: (at [11]) per Gleeson CJ and Crennan J; see also Kirby J (at [103] - [104]). 217Secondly, a jury's determination pursuant to s 7A(3) as to whether the matter complained of carried the imputations pleaded is a determination "on any ... issue ... in the proceedings" and is properly the subject for the exercise by the Court of Appeal of the power conferred by s 108(3): John Fairfax Publications Pty Ltd v Gacic (at [44] - [45]) per Gummow and Hayne JJ; (at [69], [105] - [106]) per Kirby J; (at [184], [195]) per Callinan and Heydon JJ - the latter observing that that result follows if the jury's conclusion on the meaning of the matter complained of was "wholly unreasonable, unavailable or perverse". 218Thirdly, the term "may" in s 108(3) confers a power with a duty to exercise it if the entitlement spoken of is established: John Fairfax Publications Pty Ltd v Gacic (at [27] - [28]) per Gummow and Hayne JJ; Kirby J agreeing (at [128]). In John Fairfax Publications Pty Ltd v Gacic that entitlement was established in circumstances where the only evidence before the jury was the matter complained of and the issues were confined to whether the imputations were carried and, if so, were defamatory: (at [48]) per Gummow and Hayne JJ. 219In De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (at 5), Jordan CJ said that where, in a case of conflicting evidence, the jury found for the plaintiff, but an appellate court concluded that the defendant's rebutting evidence was "overwhelming", it was "expressing the view that the defendant was, as a matter of fact, not of law, entitled to a verdict" and could not, accordingly enter a verdict in the defendant's favour, but only order a new trial. 220In Hocking v Bell (at 442), Latham CJ stated that under s 7 the Full Court could "never direct a verdict for the party upon whom the onus of proof lies ... because the question whether or not the evidence for that party should be believed is essentially and necessarily a matter for the jury". Brennan J's statement to like effect in Calin v The Greater Union Organisation Pty Ltd (at 46 - 47) to which I earlier referred (at [212]) clearly referenced this proposition. 221Handley JA observed in Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675 (at [9]) that he did not understand that s 108(3) had altered the law "that it was not competent for a trial Judge to direct the jury to enter a verdict in favour of the party with the legal onus on a question of fact and that an appellate court could not enter such a verdict either". His Honour too was, no doubt, alluding to Latham CJ's statement in Hocking v Bell (at 442). However in the face of recent decisions of this Court to the contrary which were not "appropriately and directly challenged by counsel for the respondent until the oral argument", his Honour accepted (at [10]) that there may be an exception to those principles in defamation cases in relation to imputations which tend to injure the plaintiff in his trade or business where general community standards are less important. 222Only Callinan and Heydon JJ expressly adverted to this issue on appeal, apparently accepting Handley JA's approach, although their Honours concluded that, in the circumstances of that case, which they apparently regarded as "exceptional", being one of "business defamation ... in which community standards are of less significance than in others, an appellate court may not be as reluctant to enter a verdict without remitting the issues to another jury": John Fairfax Publications Pty Ltd v Gacic (at [170]). 223Gummow and Hayne JJ implicitly adverted to this issue. Their Honours referred to Latham CJ and Dixon J's dissenting judgments in Hocking v Bell (observing they had been "supported by the outcome in the Privy Council") to the effect that "s 7 was inapplicable in favour of the defendant because there had been evidence upon which a jury could reasonably find for the plaintiff": (at [48]). They continued: "In the present case, the only evidence before the jury was the article complained of. There was no dispute as to its publication. The area of contention was the imputations alleged to be carried by it and their defamatory nature. This distinction, for the purposes of s 108(3), between a case such as the present under s 7A and the evidentiary dispute in cases such as Hocking v Bell, was emphasised by Hunt AJA in Harvey v John Fairfax Publications Pty Ltd." 224In the passage from Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 (at [101]) to which their Honours referred, Hunt AJA (with whom Santow JA agreed) said: "Although not expressly stated in that judgment, the logic of applying s 108(3) in favour of an onus-carrying party in such a case is not necessarily inconsistent with the statement by Latham CJ in Hocking v Bell (at 442) that a verdict can never be directed in favour of the onus-carrying party ... This is because the only evidence before the jury in almost all s 7A trials consists of the matter complained of itself. Even where publication by the defendant is an issue for the jury to determine pursuant to s 7A(4), if the matter complained of is in permanent form there will be no evidence given by witnesses on the relevant issues of whether the matter complained of conveys the imputations pleaded by the plaintiff and whether they are defamatory. There is usually therefore no evidence on those issues which it is open to jury to accept or reject. It was the existence of such evidence which Latham CJ had said prevented a verdict being entered in favour of the onus-carrying party. The fact that the plaintiff bears the onus on both of these relevant issues therefore does not preclude the application of s 108(3) in the appropriate case, permitting a verdict or judgment on either of those issues to be entered in the plaintiff's favour if the jury's verdict was such that no reasonable jury could have reached it. The position is not the same where the matter complained of is not in permanent form and where evidence is given on the issue of what was said or done in order to establish what was in fact published, but the availability of s 108(3) in such a case should await determination in the case where that question does arise." (Emphasis added) 225Finally, I note that the Court may exercise its powers under s 108(3) even if the jury has not proceeded to consider the question whether the imputations were defamatory: Hall v Swan (at [120] - [122]). In Harvey v John Fairfax Publications Pty Ltd (at [105]) Hunt AJA said that because of the jury's constitutional role of evaluating the impact of the matter complained of on the community, the court should "rarely, if ever, proceed to decide the issue of whether an imputation is defamatory of the plaintiff before a jury has first determined that issue". In this case, however, where the respondents did not contest that issue at trial or on appeal, I do not understand them to resist the conclusion that, if the Court comes to this question, any imputations it finds were carried were also defamatory.

Failure to complain about jury directions 226The appellants' complaint that the trial judge erred in directing the jury that in order to find the petition was published for the purposes of the libel case it had to find that at least one person read and understood it and its complaint about aspects of counsels' addresses to the jury and the trial judge's summing-up on the imputations issues were not matters of complaint at trial. The principles applicable in such circumstances were set out in Mallik v McGeown [2008] NSWCA 230; [2008] Aust Tort Reports ¶81-971 per McColl JA (Campbell and Bell JJA agreeing) as follows: "[63] It may be accepted that a court may consider a ground of appeal complaining about a trial judge's directions to the jury even though no direction or redirection was sought at trial: Uniform Civil Procedure Rules 2005, Pt 51.53(1). Whether the Court will intervene, if error on the trial judge's part is identified, however, depends on whether it appears that a substantial wrong or miscarriage of justice has been occasioned, either in terms of UCPR Pt 51.53 or the common law which would otherwise apply: see Mastronardi v State of New South Wales [2007] NSWCA 54 (at [74] - [76]) per Basten JA (Ipp and Campbell JJA agreeing). Failing to have a case determined by a properly directed jury is not, of itself, a substantial wrong or miscarriage of justice: Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21 (at [71]) per Giles JA (Campbell JA and Matthews AJA agreeing). It is necessary to consider matters going beyond 'the bare question of whether there ha[s] been any departure from applicable rules of evidence or procedure': Weiss v R [2005] HCA 81; (2005) 224 CLR 300 (at [18]). [64] Even where the Court finds a substantial wrong or miscarriage of justice has been occasioned, it has a discretion as to whether a new trial should be ordered. Failure to seek a direction or a redirection at trial is an important consideration in the exercise of the court's discretion to order a new trial: Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 (at 39); Tory v Megna [2007] NSWCA 13; see also Burchett v Kane published as a note to Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (at 266); cf Mohammed (at [96]) per Campbell JA. [65] The Court's jurisdiction to order a new trial 'depends on the demands of justice': Calin (at 39). The Court has to balance the justice of the appellant having the opportunity of relitigating her claim according to law and the fact that 'it may be unjust "to set aside a verdict for a reason which but for the default of the party moving would never have existed"': Burchett v Kane (at 273) per Samuels JA citing Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143 (at 167); see also Burchett v Kane (at 277-278) per Mahoney JA." 227Finally, at the risk of stating the self-evident, a failure to request a redirection in clear terms is always an important matter: Bromley v Tonkin (1987) 11 NSWLR 211 (at 238) per Clarke JA.

The publication issue - first limb - publication by circulation 228As will be apparent from the foregoing, the appellants' case on the first limb of the publication issue was enlarged in the course of submissions. As I understand their final position, it was first, that the trial judge misdirected the jury on the publication issue because she failed to direct them in accordance with the ratio of Dow Jones v Gutnick for which Mr Reynolds contended. Secondly, that her Honour erred for the same reason because she failed to direct the jury on that issue in accordance with paragraph [5005] of Tobin & Sexton. The appellants accept that their trial counsel did not seek a direction from the trial judge in either of these terms. Finally, that even accepting the trial judge's direction on this aspect of the publication issue, the appellants contend that the jury's finding of no publication by circulation was one no reasonable jury could reach even on the directions given.

229Mr Reynolds complains that the trial judge erred in directing the jury that in order to prove publication by circulation - the first limb of their publication case as I have described it - the appellants had to establish that the petition had been read by at least one recipient. He submits that the test for publication is that it was sufficient to establish publication that the petition was made available by the respondents and a third party (here the audience) had it available for his or her comprehension, regardless of whether that person actually read or comprehended it. This submission appears to be inconsistent with long-established principle about publication for the purposes of defamation. Nonetheless, Mr Reynolds submits that the proposition for which he contends was established by the High Court's decision in Dow Jones v Gutnick. It will be necessary to consider that decision in detail. Before doing so, reference should be made to how defamation texts have dealt with the issue of what constitutes publication for the purposes of the law of defamation. 230Gatley states (at [6.1], footnotes omitted): "No civil action can be maintained for libel or slander unless the words complained of have been published. 'The material part of the cause of action in libel is not the writing, but the publication of the libel.' In order to constitute publication, the matter must be published by the defendant to (communicated to) a third party, that is to say, at least one person other than the claimant. 'A cannot sue B for defaming him to A himself, or to B himself; that is to say, where B reads to himself his libel on A and then locks it away. A must prove that B defamed him to C.' Defamation protects a person's reputation and his reputation is not the good opinion he has of himself but the estimation in which others hold him ... It is not sufficient that the matter has been merely communicated to the third party: it is also necessary that it be communicated in such a manner that it may convey the defamatory meaning and that persons acquainted with the claimant could understand it to refer to him." (Emphasis added) 231Gatley cites, in footnote 1, in support of the first sentence in this extract, Dixon J's statement in Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276 (at 287) that "it is the publication, not the composition of a libel, which is the actionable wrong". This passage from Lee v Wilson was cited by the plurality in Dow Jones v Gutnick (at [25], footnote 97). 232In support of the passage emphasised above at [230], Gatley (at [6.1], footnote 9) states: " 'To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle': Webb v Bloch (1928) 41 CLR 331 (at 363) per Isaacs J. 'Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener or the observer. Until then, no harm is done by it': Dow Jones & Co Inc v Gutnick ... (at [26])". 233Similar statements to that found in Gatley (at [6.1]) can be found in leading defamation texts: see Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (1923) Butterworth & Co at Article 6; Fraser on Libel and Slander, 7th ed (1936) Butterworth & Co (Publishers) Ltd at Article 3; M Gillooly, The Law of Defamation in Australia and New Zealand (1998) The Federation Press at 73; R E Brown, The Law of Defamation in Canada, 2nd ed (1994) Carswell at [7.1] - [7.2]; M Collins, The Law of Defamation and the Internet, 3rd ed (2010) Oxford University Press at [5.01] - [5.03]; P George, Defamation Law in Australia, 2nd ed (2012) LexisNexis Butterworths at [7.2]. The Court was not referred to any text which explained what constitutes publication for the purposes of the law of defamation in the sense for which Mr Reynolds contends. 234As is immediately apparent from their repetition, the classic statements of what constitutes publication focus on the bilateral nature of that concept, that is to say, "the mere communication of the defamatory matter to a third person": Lee v Wilson (at 288). The bilateral nature of publication was emphasised by the plurality in Dow Jones v Gutnick (at [26] and [27]). 235In contrast, it will be observed that Mr Reynolds' submission is that Dow Jones v Gutnick is authority for the proposition that publication can be constituted by a unilateral act, that is to say by the publisher making the defamatory matter available to be comprehended. On his argument, it is irrelevant whether anyone actually comprehended the defamatory matter. This conclusion is said to flow from the citation of Duke of Brunswick v Harmer and McLean v David Syme & Co Ltd with which I deal below (at [262] ff) and [270] ff). 236Before doing so it is necessary to have a clear appreciation of the issues in Dow Jones v Gutnick.

(b) Gutnick v Dow Jones 237Mr Gutnick brought an action in the Supreme Court of Victoria against Dow Jones claiming damages for defamation in respect of its publication of an article entitled "Unholy Gains" in which several references were made to him. The article was contained in an edition of Barron's Online published by Dow Jones on the World Wide Web. The originating process was served on Dow Jones outside Australia in reliance upon rules 7.01(1)(i) and (j) of the Supreme Court (General Civil Procedure) Rules 1996 (Vic). Dow Jones sought to set aside service on the basis that publication of the article in Barron's Online took place when it was available for downloading at the web servers it maintained in New Jersey in the United States. It failed on that application at first instance before Hedigan J: Gutnick v Dow Jones & Company Inc [2001] VSC 305. 238There is a strong similarity between the arguments Dow Jones advanced before Hedigan J and in the High Court on the issue of publication and those Mr Reynolds advances. Hedigan J's reasons touch in greater detail than do the High Court's on some aspects of Dow Jones' arguments (including analysing many of the decisions Mr Reynolds relied upon) and, to that extent, bear repetition. 239The first issue was jurisdiction. Dow Jones submitted that the online article was not published in Victoria but in New Jersey, the location of its web server: Gutnick v Dow Jones & Co Inc (at [6]). It was, Dow Jones contended, published there when, after being placed on its web server in New Jersey, a subscriber (which it accepted included Victorians) "click[ed] on" to request the server to provide access to the relevant document: Gutnick v Dow Jones & Co Inc (at [15]). 240Hedigan J explained Dow Jones' "core submission" as being that "the Internet publication of 'Unholy Gains' occurred when and where the material was uploaded in New Jersey... when it was pulled from the server in New Jersey [and that] that downloading [was] a result of an independent action for which [it] cannot be held 'properly responsible' ". It contended it was not responsible for publishing that "copy" of the article which actually appeared on a subscriber's computer screen in Victoria. Rather, publication occurred when the defamatory material was "delivered to a third party" in New Jersey. Thus, Dow Jones' case was that delivery constituted sufficient publication for the tort of defamation, whether or not the third party comprehended the defamatory material: Gutnick v Dow Jones & Co Inc (at [23] and [65]). Mr Gutnick's case was that the defamatory material was only published when it was made intelligible or manifest to a third party by showing it or making it comprehensible: Gutnick v Dow Jones & Co Inc (at [21]). 241Counsel for Dow Jones sought to support his argument that delivery to the New Jersey web server constituted sufficient publication for the tort of defamation by relying on R v Burdett (1820) 4 B & Ald 115 (a case of seditious libel) and Duke of Brunswick v Harmer: Gutnick v Dow Jones & Co Inc (at [23]). Hedigan J distinguished Burdett, concluding that "[w]hen Burdett has been cited in texts, it is for the proposition that in the case of seditious libel it is uncertain whether composition of the material with the intention that it be published, but without publication, can constitute the offence": Gutnick v Dow Jones & Co Inc (at [27]). 242Hedigan J discussed the first two sentences in the passage from Coleridge J's reasons in Duke of Brunswick v Harmer on which Mr Reynolds relies (see [265] below). He concluded (at [29]) that Coleridge J had drawn "the inference ... that [the newspaper] was read". Hedigan J then said (footnotes omitted): "[30] An examination of the leading texts shows that no major texts on defamation cite Burdett (or for that matter Duke of Brunswick) as authorities for the proposition advanced by the defendant with respect to publication. See Gatley, Tobin and Sexton: Australian Defamation Law and Practice; Duncan and Neill on Defamation; Brown: Law of Defamation, Canada; and Gillooly: The Law of Defamation in Australia and New Zealand. The last does not cite Burdett at all. [31] The plaintiff claims that their researches have failed to reveal any case in which Burdett or Duke of Brunswick are cited for the proposition advanced by the defendant and I note that counsel for Dow Jones did not cite any other supporting authority for the proposition. Instead he focussed more upon the effort to distinguish the long line of authority relied on by the plaintiff. Duke of Brunswick seems only to have been cited as authority for the proposition that each separate publication is a separate wrong. Moreover, [in] the House of Lords in Browne v Dunn ..., with respect to the evidence of one Mrs Cook who had signed a document instructing her solicitor to appear in court to seek to bind over Mr Browne to keep the peace, (Mrs Cook gave evidence she had not read the document), Lord Herschell took the view that there was no publication to her of its contents if she did not read it, but if she did read it she was in the same position as that of the other clients of the defendant who had read it and signed it." 243Hedigan J referred extensively (at [34] - [36]) to authorities upon which Mr Gutnick relied to contend that "actionable publication does not occur unless and until a defamatory meaning is conveyed to a hearer or a reader". Thus his Honour recorded that statements to the effect that "[t]o publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle" appeared in Webb v Bloch (at 363), Amann v Damm (1860) 8 CB (NS) 597, Pullman v Hill (1891) 1 QB 524 (at 527), Beitzel v Crabb [1992] 2 VR 121 (at 127) and Jenner v Sun Oil Company Ltd (1952) Ontario Reports 240. His Honour then summarised numerous other authorities to like effect upon which Mr Gutnick relied (footnotes omitted): "[36] Reliance was placed on a number of other cases to which I do not propose to make extended reference. See Toomey v Mirror Newspapers Ltd (a decision of Hunt, J., a greatly experienced defamation judge), following ... Webb v Bloch; Jones v Amalgamated Television Services (the same judge stating 'Publication takes place where an imputation defamatory of the plaintiff has been communicated to some person other than the plaintiff himself', not founding any part of his reason upon delivery simpliciter but upon communication); Fleetwood v Curley; Amman v Damm; Jones v Davers (slander spoken in a language unintelligible to the auditor is not actionable); Sadgrove v Hole; (with respect to a postcard sent by post, it was stated by the A L Smith MR, 'It is clear that he did not prove any publication of a libel on him until the postcard got into the hands of the builder, because then for the first time could any knowledge arise as to the person to whom the postcard referred.'); Bata v Bata (a case of a defamatory circular letter posted abroad was addressed and published to third parties resident in London in which it was stated by Scott LJ, citing from Lord Esher in Hebditch v MacIlwaine: 'The material part of the cause of action in libel is not the writing, but the publication of the libel'); Lee v Wilson & Ors per Dixon J: 'It is the publication, not the composition of a libel, which is the actionable wrong. Often the person receiving the publicity is not the writer. Injury done by libel arises from the effect produced upon its readers'; Gambrill v Schooley (a case concerned with the dictation of a defamatory matter to a confidential stenographer where Pearson J relied upon statements made in the then current edition of Odgers on Libel and Slander to the effect that publication was the communication of the defamatory words to some third person going on to state that the writing of a defamatory letter coming into the hand of a third person to be read who does not understand and cannot read the language, does not constitute publication of the libel. After referring to the statements of Lopes, LJ in Pullman v Walter Hill Pearson J went on to say 'Appellants' counsel, in his brief, says with equal clearness and accuracy 'Publication, in the law of libel and slander, means the transmission of ideas and thoughts to the perception of a person other than the parties to this suit.' These authorities (and others not necessary for me to revisit) were relied upon by senior counsel for the plaintiff who contended, perhaps non-contentiously, that it was not the writing but the publication of the article which is actionable." 244Hedigan J rejected Dow Jones' contention. He concluded (at [60]) that that the article "Unholy Gains" was published in the State of Victoria when downloaded by Dow Jones subscribers who had met Dow Jones' payment and performance conditions and by the use of their passwords and (at [79]) that the State of Victoria had jurisdiction to entertain the proceedings. His Honour said: "[60] I have concluded that the law in defamation cases has been for centuries that publication takes place where and when the contents of the publication, oral or spoken, are seen and heard, (i.e. made manifest to) and comprehended by the reader or hearer. I reject the defendant's submissions that the Duke of Brunswick case or Burdett established then or now any different rule for publication for the purposes of civil defamation. ... [D]elivery without comprehension is insufficient and has not been the law." 245The Court of Appeal (Buchanan JA and O'Bryan AJA) refused to grant Dow Jones leave to appeal from Hedigan J's decision: Dow Jones & Company Inc v Gutnick [2001] VSCA 249.

(c) Dow Jones v Gutnick 246The High Court unanimously dismissed the appeal Gleeson CJ, McHugh, Gummow and Hayne JJ (with whom Gaudron J agreed) delivered the plurality judgment. Kirby and Callinan JJ delivered separate judgments. In short, the plurality held (at [48]), that "[t]he place of commission of the tort for which Mr Gutnick sues is ... located as Victoria ... where the damage to his reputation of which he complains ... is alleged to have occurred, for it is there that the publications of which he complains were comprehensible by readers". 247In the High Court the central argument concerned identifying the place of publication of the statements of which Mr Gutnick complained. Dow Jones "contended that [they] were published in New Jersey and that it was, therefore, the law of that jurisdiction which would govern all questions of substance in the proceeding with the consequence that the claims made in the originating process were not of a kind mentioned in any of the relevant paragraphs of r 7.01(1) of the Victorian Rules and secondly, that because the law governing questions of substance was not Victorian law, Victoria was a clearly inappropriate forum for the trial of the proceeding": Dow Jones v Gutnick (at [9]). 248The plurality (at [18]) described "[t]he principal burden of the argument advanced by Dow Jones on the hearing of the appeal ... [as being] that articles published on Barron's Online were published in South Brunswick, New Jersey, when they became available on the servers which it maintained at that place". Their Honours identified (at [19]) the emphasis Dow Jones placed in the argument in the High Court on "policy arguments based on what was said to be the desirability of there being but a single law governing the conduct of a person who chooses to make material available on the World Wide Web". Taking that route would avoid the situation where "a publisher would be bound to take account of the law of every country on earth, for there were no boundaries which a publisher could effectively draw to prevent anyone, anywhere, downloading the information it put on its web server": Dow Jones v Gutnick (at 20]). 249The paragraphs from Dow Jones on which the appellants rely are [26] - [28], [44] and [48] which appear in that section of the plurality's reasons headed "Defamation". It is important to put those paragraphs into the context of the plurality's initial observations in this section in paragraph [25]. That passage and those the appellants rely upon are as follows (footnotes included where relevant): "[25] The tort of defamation, at least as understood in Australia, focuses upon publications causing damage to reputation. It is a tort of strict liability, in the sense that a defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care. ... There is, nonetheless, obvious force in pointing to the need for the publisher to be able to identify, in advance, by what law of defamation the publication may be judged. But it is a tort concerned with damage to reputation and it is that damage which founds the cause of action. Perhaps, as Pollock said in 1887, the law went 'wrong from the beginning in making the damage and not the insult the cause of action' for slander but it is now too late to deny that damage by publication is the focus of the law. 'It is the publication, not the composition of a libel, which is the actionable wrong.' (97) [26] Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension. [27] The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action (98). That rule has found reflection from time to time in various ways in State legislation (99) and it would be a large step now to depart from it. [28] If the place in which the publisher acts and the place in which the publication is presented in comprehensible form are in two different jurisdictions, where is the tort of defamation committed? That question is not to be answered by an uncritical application of some general rule that intentional torts are committed where the tortfeasor acts or that they are committed in the place where the last event necessary to make the actor liable takes place. Nor does it require an uncritical adoption of what has come to be known in the United States as the 'single publication' rule, a rule which has been rejected by the Court of Appeal of New South Wales in McLean v David Syme & Co Ltd. Footnote 97 Lee v Wilson (1934) 51 CLR 276 at 287, per Dixon J. Footnote 98 Duke of Brunswick v Harmer (1849) 14 QB 185 [117 ER 75]; McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513 at 519 - 520, 528. Footnote 99 eg, Defamation (Amendment) Act 1909 (NSW), s 7; Defamation Act 1974 (NSW), ss 9(2), 48; Wrongs Act 1958 (Vict), s 12; Wrongs Act 1936 (SA), s 11; Defamation Act 1889 (Q), s 24; Defamation Act 1957 (Tas), s 25; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 (at 537), per Samuels JA. See also Loutchansky v Times Newspapers Ltd [Nos 2-5] [2002] QB 783." (Emphasis added) 250The plurality considered the single publication rule adopted in many States of the United States (the adoption of which was urged by Dow Jones) in terms which do not require consideration. Their Honours then turned (at [38]) to the issue on which Dow Jones placed much emphasis, namely the uniquely broad reach of the World Wide Web. It was in that section of the reasons (headed "Widely disseminated publications") that the next passage upon which the appellants relied (at [44]) appear. Once again it should be set in context, in particular, by reference to what appeared at [42]: "[40] Because publication is an act or event to which there are at least two parties, the publisher and a person to whom material is published, publication to numerous persons may have as many territorial connections as there are those to whom particular words are published. It is only if one starts from a premise that the publication of particular words is necessarily a singular event which is to be located by reference only to the conduct of the publisher that it would be right to attach no significance to the territorial connections provided by the several places in which the publication is available for comprehension. ... [42] Many of these territorial connections are irrelevant to the inquiry which the Australian common law choice of law rule requires by its reference to the law of the place of the tort. In that context, it is defamation's concern with reputation, and the significance to be given to damage (as being of the gist of the action) that require rejection of Dow Jones's contention that publication is necessarily a singular event located by reference only to the publisher's conduct. Australian common law choice of law rules do not require locating the place of publication of defamatory material as being necessarily, and only, the place of the publisher's conduct (in this case, being Dow Jones uploading the allegedly defamatory material onto its servers in New Jersey). ... [44] In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed." (Emphasis added) 251Their Honours then went on to consider (at [45] ff) Dow Jones' contentions that service of the originating process in the proceeding brought by Mr Gutnick should be set aside, and that further proceedings should be stayed on the ground that Victoria was a clearly inappropriate forum for trial of the action. Their Honours noted (at [46]) Mr Gutnick's argument that "he suffered damage in Victoria as a result of the publication made in Victoria when the Barron's Online article was comprehensible to a reader" and accepted that, on that basis, the relevant rule enabling service of originating process out of Victoria in respect of damage suffered in that State was "plainly engaged". Accordingly "the jurisdiction of the Supreme Court of Victoria was regularly invoked by service of the proceeding on Dow Jones": (at [47]). 252Their Honours then turned to the question whether Victoria was, nevertheless, a clearly inappropriate forum because, as Dow Jones contended the substantive issues to be tried in the proceedings would be governed by the law of New Jersey where the defamation had occurred: (at [47]). Their Honours then said: [48] As has been noted earlier, Mr Gutnick has sought to confine his claim in the Supreme Court of Victoria to the damage he alleges was caused to his reputation in Victoria as a consequence of the publication that occurred in that state. The place of commission of the tort for which Mr Gutnick sues is then readily located as Victoria. That is where the damage to his reputation of which he complains in this action is alleged to have occurred, for it is there that the publications of which he complains were comprehensible by readers. It is his reputation in that state, and only that state, which he seeks to vindicate. It follows, of course, that substantive issues arising in the action would fall to be determined according to the law of Victoria. But it also follows that Mr Gutnick's claim was thereafter a claim for damages for a tort committed in Victoria, not a claim for damages for a tort committed outside the jurisdiction. There is no reason to conclude that the primary judge erred in the exercise of his discretion to refuse to stay the proceeding." (Emphasis added) 253The various passages in which the plurality referred to "the material which is alleged to be defamatory [being] available in comprehensible form" or like phraseology, are those which Mr Reynolds submits amount to a clear choice by the plurality that publication occurs where written material is made available in a form which is able to be comprehended, rather than where it is actually comprehended. 254Mr Reynolds accepted that Kirby and Callinan JJ in Dow Jones v Gutnick may have been "veering towards an acceptance of" Mr Gutnick's submissions. In my view their Honours' respective reasons are consistent with the plurality's on the issue of what constitutes publication. 255Kirby J observed (at [124]) that the principles of defamation law invoked by the respondent were "settled and of long standing" and included "that mere composition and writing of words is not enough to constitute the tort; those words must be communicated to a third party who comprehends them", referring to, among others, the two High Court cases to which Gatley (at [6.1]) refers: see [231] above. He observed (at [129]) that "[t]here are a number of difficulties that would have to be ironed out before the settled rules of defamation law ... could be modified in respect of publication of allegedly defamatory material on the Internet". It is unnecessary to recount his Honour's discussion of these difficulties. It is sufficient to note that (at [136]) he concluded Dow Jones' "invitation to re-express the common law" should be refused. Accordingly (at [138]) his Honour agreed with the other members of the Court that a single publication rule should not be adopted "in terms of the place of uploading as the place of publication of allegedly defamatory material on the Internet, which would also govern the choice of applicable law". 256Next, in considering Dow Jones' submission that "even if a single publication rule were not adopted for defamatory publications on the Internet by reference to its special features, the result that it sought still followed from an existing principle of Australian private international law concerning the place of wrongs that have connections with two or more jurisdictions" (see [139]), his Honour said: "[151] In a cause of action framed in defamation, the publication of the material which damages the reputation of the plaintiff is essential. Merely creating and making the material available is insufficient. The material has to be accessed or communicated in a jurisdiction where the plaintiff has a reputation. That will usually be the place where the plaintiff is resident. ..." (Emphasis added) 257Callinan J (at [168]) described the case as raising the question whether "the development of the Internet calls for a radical shift in the law of defamation". He stated (at [184]) that "[t]he most important event so far as defamation is concerned is the infliction of the damage, and that occurs at the place (or the places) where the defamation is comprehended". He accepted Hedigan J's statement of principle that (footnotes omitted): "[198] ... [T]the torts of libel and slander are committed when and where comprehension of the defamatory matter occurs. The rules have been universally applied to publications by spoken word, in writing, on television, by radio transmission, over the telephone or over the Internet. In Browne v Dunn the House of Lords held that there was no publication of a defamatory petition to a person (Mrs Cook) who had signed but not read the petition." (Emphasis added) In support of the first sentence, his Honour cited Webb v Bloch; Lee v Wilson; Jones v Amalgamated Television Services (1991) 23 NSWLR 364; Beitzel v Crabb and Gambrill v Schooley 48 A 730 (1901). 258Callinan J concluded (at [199]) that Dow Jones' "submission that publication occurs, or should henceforth be held to occur relevantly at one place, the place where the matter is provided, or first published, cannot withstand any reasonable test of certainty and fairness." (Emphasis added) 259In my view Mr Reynolds' contention that Dow Jones v Gutnick establishes that publication of the petition was proved by making it available for the audience's comprehension whether or not any member of the audience actually read or comprehended it should be rejected. The submission is antithetical to the plurality's identification (at [26]) of the essential elements of the cause of action for defamation as involving "harm to reputation ... when a defamatory publication is comprehended by [the recipient]" and, further, their Honours' identification (at [26]) of publication in those terms as a "bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension". To the extent that that last phrase suggests inactivity on the recipient's part (that is to say, non-comprehension), it is clearly inconsistent with the introduction to paragraph [26]. The same can be said of the word "comprehensible" in the plurality's reasons (at [44] and [48]). The bilateral nature of the concept of publication is emphasised by the plurality's rejection (at [40] and [44]) of the submission that publication for the purposes of the law of defamation may be determined by reference only to the publisher's conduct and acceptance that that issue is determined by reference to both the publisher's conduct and the comprehension of the publication by the person to whom the material is published. 260The proposition that publication for the purposes of the tort of defamation requires communication of the defamatory material to a third party is supported by the extensive line of authorities to which Hedigan J referred, including Lee v Wilson and Webb v Bloch: Gutnick v Dow Jones & Co Inc (at [34] - [36]). The two authorities I mention are, of course, both High Court authorities, to which the plurality (at [25]), Kirby J ([124]) and Callinan J (at [198]) referred with approval. Mr Reynolds' submission invites the Court to conclude that despite those explicit references, the High Court created the novel principle for which he contends without their Honours explaining why they were overruling long-established authorities. I am not prepared to accept that invitation. 261However, Mr Reynolds submits that this Court should conclude that his analysis of Dow Jones v Gutnick is borne out by the reference at footnote 98 in the plurality's reasons to Duke of Brunswick v Harmer and McLean v David Syme & Co Ltd to which I now turn.

(d) Duke of Brunswick v Harmer 262Gatley (at [6.3], see also [19.14]) cites Duke of Brunswick v Harmer as authority for the proposition that "[e]ach communication of the material is a separate publication and gives rise to a separate cause of action". Like statements appear in Tobin & Sexton (at [5040]; see also [24,055]) and George (at [2.21], [3.12], [6.3], [7.2], [18.6]). This appears, subject to Mr Reynolds' submissions, to be the same sense in which the plurality was referring to it in Dow Jones v Gutnick (at [27]) when citing it as a footnote to the proposition that: "The bilateral nature of publication underpins the long-established common law rule that every communication of defamatory matter founds a separate cause of action." 263In Duke of Brunswick v Harmer the plaintiff, who had been defamed in an edition of a newspaper published in 1830, succeeded in an action based on the sale by the defendant of a single copy of the newspaper in September 1847, which sale defeated a plea of the Statute of Limitations: Harris v 718932 Pty Ltd (formerly Globe Press Pty Ltd) [2003] NSWCA 38; (2003) 56 NSWLR 276 (at [19]) per Handley JA (Stein and Santow JJA agreeing). 264The facts of the case have variously been described as "striking" (Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805; [2002] QB 783 (at [57])) and "remarkable" (Jameel (Yousef) v Dow Jones & Co Inc [2005] EWCA Civ 75; [2005] QB 946 (at [22])). In Jameel (Yousef) v Dow Jones, the Court (at [56]) commented that it did not "believe that Duke of Brunswick v Harmer ... could today have survived an application to strike out for abuse of process". The Duke of Brunswick has been referred to as "an indefatigable litigant" (Spencer Bower, A Code of the Law of Actionable Defamation, 2nd ed (1923) Butterworth & Co at 5, footnote (v)), a description more than warranted by the facts as explained in Jameel (Yousef) v Dow Jones (at [22]): "On 19 September 1830 an article was published in the 'Weekly Dispatch'. The limitation period for libel was then six years. The article defamed the Duke of Brunswick. Seventeen years after its publication an agent of the Duke purchased a back number containing the article from the 'Weekly Dispatch's' office. Another copy was obtained from the British Museum. The Duke sued on those two publications. The defendant contended that the cause of action was time barred, relying on the original publication date. The Court of Queen's Bench held that the delivery of a copy of the newspaper to the plaintiff's agent constituted a separate publication in respect of which suit could be brought. (The law reporters do not indicate what the libel was, and no copy of the offending issue of the Weekly Dispatch appears to have survived. The volumes for 1830 in otherwise complete runs in British Library and the Library of Congress are missing. Other libraries have partial runs, but none of them include 1830. The proceedings seem to have had the intended chilling effect.)" 265Coleridge J delivering his judgment in Duke of Brunswick v Harmer, held (QBD at 189; ER at 76) on those facts that: "The defendant, who, on the application of a stranger, delivers to him the writing which libels a third person, publishes the libellous matter to him, though he may have been sent for the purpose of procuring the work by that third person. So far as in him lies, he lowers the reputation of the principal in the mind of the agent, which, although that of an agent, is as capable of being affected by the assertions as if he were a stranger. The act is complete by the delivery: and its legal character is not altered, either by the plaintiff's procurement or by the subsequent handing over of the writing to him." (Emphasis added). 266Mr Reynolds relies on the first sentence in this passage as indicating that publication was established even though the third party who handed the newspaper to the Duke had not "even looked at the defamatory articles, less still that he read it from beginning to end and comprehended it". 267In Jameel (Yousef) v Dow Jones, the Court of Appeal (Lord Phillips of Worth Matravers MR, Sedley and Jonathan Parker LJJ) described the passage from Coleridge J's reasons set out above, as "somewhat equivocal". In their Honours' view the facts "raised serious doubts as to whether the Duke's agent even read the article". The Court concluded (at [24]) that the case could not "stand as authority for more than the proposition that each separate publication gives rise to a separate cause of action". 268The doubts as to whether the Duke's agent read the article were, in my view, dealt with persuasively by Hedigan J in Gutnick v Dow Jones & Co Inc His Honour concluded (at [29]) that the second sentence in Coleridge J's reasons (see [265]) were "concerned with delivery affecting the mind, that is, the inference was drawn that it was read". Having regard to the language used, and to what his Honour described as the unusual circumstances of the case, Hedigan J did not regard Duke of Brunswick v Harmer as a convincing authority for the proposition on which Dow Jones sought to rely. As he pointed out (at [31]), Duke of Brunswick v Harmer seems only to have been cited as an authority for the proposition that each separate publication is a separate wrong. This, of course, is consistent with the plurality's citation of the decision in Dow Jones v Gutnick. 269In my view that citation does not support the proposition for which Mr Reynolds contends.

(e) McLean v David Syme & Co Ltd 270The same conclusion applies to McLean v David Syme & Co Ltd. That case is also cited in Gatley (at [6.3]) as authority for the proposition that "[e]ach communication of the material is a separate publication and gives rise to a separate cause of action". Tobin & Sexton (at [5040]) cite the judgment both for that proposition as well as that "a remedy can be obtained in the one action for all of the publications". That citation is soundly based as the following discussion reveals. 271In McLean v David Syme & Co Ltd, the plaintiff brought defamation proceedings in New South Wales complaining of statements in an issue of "The Age", which was published by David Syme & Co Ltd. There was evidence at the trial that the average daily circulation of "The Age" in New South Wales was 2,209 copies. About 60 copies were circulated in the area in which the plaintiff lived. Publication was particularised as having taken place in "New South Wales (and other States)". At trial counsel for the plaintiff sought to adduce evidence of circulation outside New South Wales. The trial judge excluded the evidence. On appeal the evidence was held to have been admissible as going, inter alia, to damages. 272In the first passage (at 519 - 520) to which the High Court referred in Dow Jones v Gutnick (at [27]), Asprey JA discussed the rule of pleading that prevented "the statement of more than one legally complete cause of action in one count" and considered whether pleading publication in more than one State contravened it. Two matters are of note. First, his Honour assumed (at 519 - 520) that "when the defamatory matter is contained in a newspaper or other medium of multiple publication there is a publication of the defamatory matter by each copy of the medium in question being distributed to each parson who reads the defamatory matter contained therein" (emphasis added). Next, his Honour quoted Dixon J's statement in Lee v Wilson cited in Gatley (see [231] above) as demonstrating what constitutes the act of publication to found the cause of action at common law. He also referred to Lord Esher MR's statement to like effect in Hebditch v MacIlwaine [1894] 2 QB 54: see [243] above. Secondly, after referring to ss 9 and 10 of the Defamation Act 1958 pursuant to which unlawful publication of defamatory material constituted the cause of action, his Honour cited Duke of Brunswick v Harmer as authority for the proposition that there was a publication (and therefore a separate cause of action) to each of 100,000 people who bought and read a copy of a newspaper. 273In the second passage (at 528) to which the High Court referred in Dow Jones v Gutnick (at [27]), Mason and Manning JJA also referred to Duke of Brunswick v Harmer as authority for the proposition that "there is a single publication of the newspaper to each person to whom it is delivered". Their Honours contrasted that position with the single publication rule developed in the United States. They did not criticise Asprey JA's analysis of what constitutes publication sufficient to found a cause of action. 274Despite the common law's failure to adopt the "theory of the single publication rule", their Honours pointed out (at 528) that "[d]efamation actions of this kind have been dealt with on the footing that the plaintiff may recover damages in respect of the entire issue of a newspaper so long as he proves a publication on one occasion, notwithstanding that there may be multiple publications".

(f) Publication - other cases 275In Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Reports ¶81-127 (at 69,194) Hunt J (as his Honour then was) (at 69,194) also referred to Duke of Brunswick v Harmer as establishing that "there is a separate cause of action in relation to each copy of the newspaper delivered to a reader, whenever it may have been delivered". In that case his Honour also held that where a plaintiff sought to establish that a defendant was "responsible for the publication of someone else's defamatory statement ... physically attached to the defendant's property, he must establish more than mere knowledge on the part of the defendant of the existence of that statement and the opportunity to remove it". Rather, it was necessary that the plaintiff establish, if necessary by inference, that "the defendant consented to, or approved of, or adopted, or promoted, or in some way ratified, the continued presence of that statement on his property so that persons other than the plaintiff may continue to read it" (Emphasis added). His Honour then discussed a number of cases in which placement of defamatory matter on the defendant's property was held to constitute publication by the defendant. It is plain, in my view, that his Honour regarded those authorities as supporting the proposition that the defendant was responsible for publication in such circumstances because it could be inferred that the defamatory matter was communicated to persons other than the plaintiff. 276Mr Reynolds provided to the Court a folder of numerous authorities to which he said reference was made by either Kirby J or Callinan J in Dow Jones v Gutnick and which he contended did not favour Mr Blackburn's proposition that to prove publication the matter complained of must be read through and comprehended by a third party. Hedigan J considered the majority of these judgments (and others) in Gutnick v Dow Jones & Co Inc (at [34] - [36]; see [243] above) as supporting his conclusion that "actionable publication does not occur unless and until a defamatory meaning is conveyed to a hearer or a reader". It is also apparent from his Honour's reference to passages from those authorities that to establish publication, the entirety of the defamatory matter must be communicated to the third party. In my view. acceptance of Hedigan J's analysis of these authorities is sufficient to support the respondents' submission as to what constitutes publication. 277Mr Reynolds also referred to Huth v Huth [1915] 3 KB 32, apparently to support the proposition to which Lord Reading CJ referred (at 39), that in determining whether there is evidence of publication, "the Court will take judicial notice of the nature of the document, i.e., that it is a post-card, and will presume, in the absence of evidence to the contrary, that others besides the person to whom it is addressed will read and have in fact read what is written thereon". However, as his Lordship continued, "[i]f, even in such a case as that, the defendant could establish that the postcard never was read by a single person - although it is very difficult to conceive that the proof could be given - he would, notwithstanding the presumption, succeed in the action, because he would have proved that there was no publication". 278Hunt J referred to Huth v Huth in Urbanchich v Drummoyne Municipal Council (at 69 and 194) as authority for the proposition that "[t]he law both here and in England does recognise that a defendant will not be liable for defamatory material addressed directly to the plaintiff where there is no reason to expect that it may be opened by someone else, notwithstanding that it is in fact opened by a third person and the defamatory contents thereby communicated to that person". It is sufficient to observe that, to the extent Huth v Huth recognises that a defendant may refute a plaintiff's case on publication if the defendant establishes that there was no reason to expect the defamatory matter to be read by a third party, it does not assist the appellants. 279Mr Reynolds also suggested that Callinan J's discussion in Dow Jones v Gutnick (at [198]) of Browne v Dunn (1893) 6 R 67 as recognising that there may be no publication of defamatory matter to a person who signed, but did not read a document, was not a proper reading of the case. In my view that submission should be rejected. As Hedigan J said in Gutnick v Dow Jones & Co Inc (at [31]), Lord Herschell took the view that there was no publication to a Mrs Cook of the contents of the defamatory matter if she did not read it. Brown v Dunn is consistent with the respondents' case at trial that it was open to the jury to conclude that even though members of the audience may have signed the petition, there was no publication unless the appellants also persuaded the jury that one member of the audience, not necessarily a signatory, read it at the general meeting.

(g) Tobin & Sexton 280Mr Reynolds' contention that the trial judge erred in failing to direct the jury that it was sufficient to constitute publication that the petition was "communicated to someone capable of understanding it" should also be rejected. This submission appeared to be, in my view, a version of his primary argument with the slight variation that even though the defamatory matter was communicated to a third party (that is to say, there was some "act" by the recipient), that person did not actually understand it. Conceptually it is difficult to understand, in any event, how the petition could be communicated to someone "capable of understanding it", but who did not actually do so. 281The full passage in Tobin & Sexton from which the quote upon which Mr Reynolds relies states (at [5005]): "The defamatory matter must be communicated to someone capable of understanding it. For example, in the case of a statement in a foreign language, the words must be conveyed to at least one person, not being the plaintiff, who understands the language. Similarly, if words in English are used, there is no publication if the recipient cannot understand, or understand sufficiently, the content of what was said or written. The essential element in publishing is the conveying of the content of the defamatory matter. This is a different notion from that of conveying the defamatory meaning. The recipient of the publication may not have understood what was said or written in a defamatory sense, although the content of the matter complained of was fully communicated. But once communicated to someone capable of fully understanding it, the publication has been effected - the matter has been published. 'A libel does not require publication to more than one person.'" (Emphasis added) 282When read in context, it is apparent that the learned authors were not suggesting that publication was established by mere communication of the defamatory matter to a person capable of understanding, but who did not understand it. Such a proposition would be inconsistent with the second and third sentences of the paragraph. Further, if paragraph [5005] of Tobin & Sexton were to be understood in the sense for which Mr Reynolds contends, it would also be inconsistent with the concept of publication as explained in Dow Jones v Gutnick. In my view, however, the passage is not to be understood in that sense. 283Moreover, Mr Reynolds' submission fails to take into account that the trial judge's direction concerning the necessity that the petition be communicated to at least one person who read and understood it, was, I assume, also directed to encapsulating the respondents' case that a substantial number of those at the meeting did not read and/or understand English. It is a fundamental principle that there no publication to a person who receives a defamatory statement in a language s/he does not understand: Andreyevich v Kosovich (1947) 47 SR (NSW) 357 (at 369) 284Even excluding the language issue, it is difficult to see how this submission relates to the issues fought at trial on publication. That was presented very starkly, insofar as the libel case was concerned, as being whether the appellants had established that at least one person read the petition. 285In my view the trial judge did not err in directing the jury that an essential pre-requisite for a finding that the written petition ("the written matter complained of") was published was that at least one person had read and understood the matter complained of. I would reject the first ground of appeal.

(h) Inferring publication 286It is self-evident that a plaintiff can prove publication without calling evidence in every case that the matter complained of was in fact communicated to a third party. As Gatley says (at [6.9]), if the plaintiff "proves facts from which it can be inferred that the words were brought to the attention of some third person, he will establish a prima facie case". This will be so if it is a matter of reasonable inference that the matter complained of was "actually seen and read by some third party": Gatley (at [34.9]). Such an inference will be particularly obvious "where the matter is contained in a book or distributed in the news media where in practice it would seem impossible to rebut the inference and in such a case it would seem that the presumption of publication would be impossible to displace": Gatley (at [6.14]). Similarly, as the examples given in Gatley (at [34.8]) indicate, proof that a defamatory letter was sent through the post is prima facie evidence of publication to the person to whom it was addressed: Warren v Warren (1834) 1 C M & R 250. The contents of defamatory matter in a telegram are "necessarily communicated to all clerks through whose hand it passes": Williamson v Freer (1874) LR 9 CP 393 (at 395). Publication may also take place where defamatory matter is placed on a notice board in a position in which it could be read by any passer by: Byrne v Deane [1937] 1 KB 818 (at 829) per Greer LJ; see also Greene LJ (at 838). 287However, while the appellants conducted the case on the basis that the jury could infer that at least one person read the petition, they could only get to that stage by calling evidence as to what happened at the meeting. As is apparent from the account of the trial neither of their witnesses on this issue could positively state that any one person read the petition throughout. The appellants then put the submission to the jury that they should infer from those witness' evidence that at least one person did so. As I discuss later in these reasons, it was a matter for the jury whether they were prepared to draw that inference.

The publication issue - second limb - responsibility for publication 288The classic statement of the principle of responsibility for publication of defamatory matter is found in Isaacs J's reasons in Webb v Bloch. In that case the critical facts (see the headnote (at 332)) were that the defendants, B, P, M and C, employed N, a solicitor, to compose, for the purpose of publication to wheat growers, a form of circular which, as drafted, was defamatory of the plaintiff, W. N submitted a draft circular to B who instructed him to publish the circular in the way he thought most advisable. B's action in so doing was confirmed by P, M and C, at least one of whom who did not see the circular before it was published. 289Starke J tried the case without a jury. He held (at 340), without reference to authority, that all the defendants were responsible in law for the issue of the circular, that it was defamatory but that it was published under qualified privilege at common law and that none of the defendants was guilty of malice either in its publication, or in authorising its publication. 290Starke J's decision was reversed on appeal. Knox CJ and Isaacs J (Gavan Duffy J dissenting) held that all the defendants were "responsible in law for the publication" and that although qualified privilege was established, as two of their number knew the statements concerning the plaintiff were untrue, they were guilty of malice which was to be attributed to all defendants. 291The issue of publication arose in the context of determining whether all defendants were responsible for N's malice. Isaacs J (at 363) considered that the differing approaches to this issue emanated from a misunderstanding of "what is meant by 'publication' ". His Honour considered (at 363) that the evidence supported the conclusion that N "was employed in general terms to compose 'a form of circular he would advise being sent to each grower ... [and] was, therefore, employed to compose the circular 'for the purpose of publication', ... [that] [h]is was no subordinate part" and that his distribution of the circular was "the consummation of the task he had suggested and had undertaken, he being selected as the best one to see it effectively carried home to the [recipients] it was intended to affect". His Honour then said: "When that was completed, his 'publication' of the libel did not consist merely in the distribution of the paper vehicle which embodied it. To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle (see per Williams J in Amann v. Damm, quoting Lord Hobart). On the facts of this case, Norman in law 'published' the libel on Webb, even if not he but another had undertaken the actual distribution of the circular: he would still have been one of the principals in relation to Webb." (Emphasis added) 292Isaacs J then returned to the meaning of "publication", which he said (at 363 - 364) was: " ... well described in Folkard on Slander and Libel, 5th ed. (1891), at p. 439, in these words: 'The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.' " (Emphasis in original) 293Isaacs J next stated (at 364, footnotes omitted): "In Parkes v Prescot Giffard QC quotes from the second edition of Starkie: 'All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amendable for the act of publication when it has been so effected.' In R v Paine it is held: 'If one repeat and another write a libel, and a third approve what is wrote, they are all makers of it; for all persons who concur, and show their assent or approbation to do an unlawful act, are guilty: so that murdering a man's reputation by a scandalous libel may be compared to murdering his person; for if several are assisting and encouraging a man in the act, though the stroke was given by one, yet all are guilty of homicide'. A litter later, in R v Drake, that law was reaffirmed. In R v Cooper Lord Denman CJ said: 'If a man request another generally to write a libel, he must be answerable for any libel written in pursuance of his request: he contributes to a misdemeanour and is therefore responsible as a principal.' In that case the defendant was indicted for 'publishing and causing to be published' the libel in question. The judgments show that all the defendant did was to authorise the publication of the libel, in law that he published it." (Emphasis omitted) 294In Isaacs J's view (at 365), applying those principles: "In relation to Webb, it is [N] who was the 'real author,' the master mind, and the defendants, for their own independent objects, no doubt, were the real 'intermediate agents' to disseminate the libel. They cannot employ the master mind for the very purpose, accept its suggestions, approve and disseminate its production, and then disclaim its malice." 295Isaacs J also considered, and rejected (at 365), the respondents' submission that they could not be identified as N's agents (and therefore answerable as publishers) because they had reserved a final right of approval, referring to Pearson & Son Ltd v Dublin Corporation [1907] AC 351 (at 354) where Lord Loreburn LC said: "The principal and the agent are one, and it does not signify which of them made the incriminated statement or which of them possessed the guilty knowledge." And Lord Halsbury said (at 359): "It matters not in respect of principal and agent (who represent but one person) which of them possesses the guilty knowledge or which of them makes the incriminating statement. If between them the misrepresentation is made so as to induce the wrong, and thereby damages are caused, it matters not which is the person who makes the representation or which is the person who has the guilty knowledge." (Emphasis added). 296In Urbanchich v Drummoyne Municipal Council (at 61,192 - 69,193), Hunt J said that care should be exercised in relation to the statement from R v Paine to which Isaacs J referred (see [293] above). It should, his Honour said, be understood in the context that "it was made in a criminal defamation case, in which publication to a person other than the person defamed did not then (or until recently) have to be established." His Honour added (at 69,193): "But, with the qualification so far as a civil action is concerned that each must be instrumental in some degree in communicating the defamatory material to a person other than the plaintiff, the statement approved by Isaacs J nevertheless well describes the equal responsibility of all concerned in that publication, even those who subsequently approve of it." 297Mr Blackburn relied upon Gatley (at [6.11]) to submit that, as a matter of law, a defendant is not liable for the "unanticipated and voluntary act [of publication] of another person". It is not entirely clear whether he contended that that was an apt description of how the circumstances in which the petition came to be at the general meeting. Gatley (at [6.11]) states: "The defendant is liable for unintentional publication of defamatory matter to a third person unless he can show it was not due to want of care on his part." (Emphasis added). 298A number of illustrations of the emphasised phrase are given: the person who reads a defamatory letter aloud in the presence of another person not knowing it to be defamatory, a "publication" of a telephone conversation to an eavesdropper, a "publication" of a letter to a third person who opens a letter addressed to another and a "publication" of a letter locked in a drawer, but stolen and communicated to the world by a thief. 299None of these illustrations is apt to describe the circumstances of Mr Isaac's involvement in the preparation of the petition and its presentation at the general meeting. In that respect his position was, as the trial judge directed the jury (at [247]), that if the jury found that, in any way, he reasonably expected the petition to be available at the general meeting and that people would be permitted to pass it around (and read it), he was responsible in the Webb v Bloch sense.

The jury's answers to the circulation questions - conclusion 300The question whether the jury's negative answers to the circulation questions in the libel case were ones that, viewing the whole evidence reasonably, the jury could not properly find, such as to demonstrate that the jury failed to perform their duty, must be determined on the basis of the evidence and the trial judge's directions of law. That direction, it will be recalled was, in substance, that in order to conclude that the petition had been published, the jury had to be satisfied that the appellants had established that its contents were communicated to "at least one person ... [who] read the petition and understood it": summing-up at (at [129], [132], [138], [212]). 301I earlier said (at [9]) that two issues were embedded in the circulation question: first, the reading issue and secondly, the responsibility issue. A negative answer to the reading issue was sufficient for the jury to answer the circulation question in its entirety negatively for each respondent. 302The trial judge appears to have put the appellants' case on the reading issue most comprehensively when she directed the jury that: "137. In order for you to be satisfied on the probabilities that the petition was circulated at the general meeting, you would need to be satisfied that the petition was circulated, in the sense of being looked at, read at the table, or lifted from the table and handed around to one or more of the persons assembled in the auditorium." 303Her Honour had earlier explained (at [107]) that "circulating the petition ... is a way of course of disseminating the contents of the document". I have no doubt that when the jury heard the direction quoted in the above paragraph, they understood that they had to find that the petition was read by a third party. 304Although the trial judge referred to the petition being "circulated" by being "read at the table" There was, on my reading of the transcript no evidence that any person read it there. Rather, the appellants' case that the petition was circulated amongst the audience at the meeting and that at least one of those people read it in its entirety during that process depended on Mr Kochou's evidence and, to some extent, upon inference. Mr Kochou's evidence was also critical to the respondents' responsibility for what happened at the general meeting. Mr Kochou's credit, as I have said, was substantially in issue. As the jury's view of his credit, if adverse to him, may have influenced its decision on both the reading and responsibility issues, it is convenient to seek to isolate the critical aspects of his evidence on both issues, and the credit matters upon which the respondents relied. 305In chief the key points of Mr Kochou's evidence were: (a) That all respondents were present at each of the three preparatory meetings; (b) That Mr Isaac had the idea of a "petition" from the first of the preparatory meetings, at which all of the respondents were present; (c) That at the first meeting Mr Isaac said the signatures for the petition should be obtained at a general meeting; (d) That much the same conversation occurred at the second meeting but that, in addition, at that meeting Mr Dadisho asked him to read the petition at the meeting because his English was better than the rest of the defendants; (e) That he received the petition from Mr Dadisho a short time before the general meeting; (f) That before the general meeting started he had a conversation with Mr Isaac in the auditorium of the Assyrian Culture Club during which he asked "whether or not it was safe to read this or whether there would be implications"; (g) That Mr Dadisho introduced him to the audience as the person "who would read the petition in English" and that he did so; (h) That there were two copies of the petition at the meeting apart from the one that he had read, each of which was on a table below the stage and that during the meeting he saw people "getting up, taking a copy, reading it, passing it around and also after the meeting people came and read those." 306In cross-examination, Mr Kochou: (a) Agreed that the defendants did not intend to distribute the petition at the general meeting because they only had two copies; (b) Said he did not know whether people who were looking at the petition read the entire document; assumed people were reading the petition; was not sure "whether they read it [the petition] or not"; (c) Agreed that at the meeting there were documents people could sign that were not attached to any other form of document and which were sitting "side by side the petition on the table"; (d) Said that only one copy of the petition was passed around during the meeting; (e) Agreed that he saw blank [signature] forms with no petition attached being handed out to a number of people; (f) Agreed that people at the meeting were members of the Assyrian community whose first language was not English. 307Mr Kochou's credit was attacked on a number of bases: that he had "done a deal" with the appellants "to tell the truth"; that additions to his final affidavit compared with a draft version demonstrated his intention, in substance, to point the finger at the respondents and that there were inconsistencies between his evidence at trial and an affidavit he had signed prior to the trial. 308There were a number of implications of Mr Kochou's settlement with the appellants which it was open to the jury to take into account. First, he initially tried to bluff when Mr Dawson put to him that he had made such an arrangement. He did so in a manner which entitled the jury to consider that he had sought to conceal it. Secondly, Mr Kochou agreed that the second appellant had told him she wanted him to give evidence against Mr Isaac to the effect "that it is all his fault." Thirdly, the changes between Mr Kochou's draft and final affidavits prepared in the appellants' offices as the basis of the evidence he could give in performance of the settlement agreement, were such as to reflect more adversely on the respondents, particularly Mr Isaac. 309Critical changes between Mr Kochou's draft and final affidavits were: (a) The draft stated that the majority of the public were completing forms not physically attached to a petition - a paragraph which had been deleted from his final affidavit; (b) The draft stated that the defendants did not intend to give the petition out at the general meeting - a statement Mr Kochou agreed was truthful; (c) A number of paragraphs which appeared in the final, but not the draft, affidavit all related to new information about Mr Isaac: see [49] above. 310Mr Sarkez's evidence did not advance the appellants' case greatly, if at all. He saw copies of the petition on the table close to the stage. He did not see anyone with the first three pages of the petition. He saw people take the signature pages to their tables. 311Mr Isaac said he did not see anyone other than Mr Abdishou with the petition at the meeting. 312Even on Mr Kochou's evidence, without taking into account the issue of his credit, the evidence that anyone read the petition at the meeting was not strong. His evidence in chief that he saw people at the meeting "reading it", was substantially, if not entirely, undermined by his agreement in cross-examination that he assumed people were reading the petition, that he did not know whether people who were looking at the petition "actually ... read the entire document" and that he was not sure "whether they read [the petition] or not": see [39] above. 313This aspect of the reading issue, however, encompasses not only the proposition that it was open to the jury to reject Mr Kochou's evidence on this issue, but that it was also reasonably open to the jury not to draw the inference that at least one member of the audience read the petition. 314In my view, contrary to Mr Neil's forceful submission to the jury, the proposition that no one in the audience read the petition at the meeting was not "preposterous". Mr Isaac's rather resigned response that he did not expect people to read the petition before they signed because "three thousand of these investors had signed an investment contract without reading [it]" could well have struck a chord with the jury. Moreover the jury was also entitled to take into consideration the fact that those on the stage were addressing the audience, no doubt at least in part, about the subject of the petition. Mr Kochou, whether asked to do so or not, had read it to the meeting in English and Mr Abdishou had summarised it in Assyrian. The petition was a closely typed legalistic document of three pages. There were few copies of it at the meeting. Signature forms were available separately from the petition, so that it was possible to sign without reading, or even thumbing through, the petition itself. Finally there was the fact that the petition was in English and there was evidence that many in the audience could not read that language. In the light of those facts, it was, in my view, open to the jury to accept the respondents' case that the appellants had not established that any of them had "circulated" (in the sense of communicated the contents by anyone in the audience reading) the petition to those at the general meeting. 315Finally, I would observe that the jury's decision on the slander case, that none of the respondents other than Mr Dadisho agreed with Mr Kochou that he should read the petition to the meeting is a powerful indication that the jury rejected Mr Kochou as a witness of truth. It also supports the view that the jury rejected Mr Kochou's evidence that he saw people reading the petition. To reach that finding in the slander case, the jury must have rejected first, Mr Kochou's evidence that the topic of him reading the petition at the general meeting was discussed at the preparatory meetings at which all the respondents were present and secondly, his evidence of conversations with Mr Isaac about reading the petition prior to the general meeting. Conversely, the jury must have accepted Mr Isaac's denials that he heard any such discussion or participated in any such conversations and accepted his evidence that Mr Abdishou was talking to him when they became aware Mr Kochou was reading the petition and told Mr Isaac "no-one" had told Mr Kochou to do so, to conclude that neither of those respondents agreed with Mr Kochou that he should read the petition to the meeting. The jury's conclusion that Mr Dadisho had agreed with Mr Kochou that the latter should read the petition aloud was established by the facts that Mr Dadisho gave the petition to Mr Kochou prior to the meeting and introduced him as the person who would read it aloud. 316Thus it is an available inference that the jury's negative answer to the reading issue turned on their rejection of Mr Kochou as a witness of truth - a conclusion which was clearly open to them. 317Accordingly, a negative answer to the reading issue in respect of each respondent was not one no reasonable jury could reach. The appellants have not established that the jury failed to discharge their duty in this respect. 318Against the possibility that others may differ as to the reasonableness of the jury's answer to the reading issue, I shall consider whether a negative answer to the responsibility issue was one no reasonable jury could have reached. It has to be borne in mind, however, that it is an available, and probable, inference that the jury answered the reading issue negatively so that the responsibility issue did not arise. They had been directed that the reading issue was the first question and that, in effect, only if satisfied of that question in the appellants' favour, should they address the responsibility issue: summing-up (at [129], [139], [243] - [244]). 319There was, it will be recalled, no challenge to the trial judge's directions to the jury as to what was capable of constituting any defendant's individual responsibility for publication - if the jury was satisfied that any such defendant had published the petition by circulating it in the manner for which the appellants' contended. To set consideration of this issue in context, that direction was: "247... The defendant whose case you are considering - and you have to consider them individually, that is the way the questions are posed and that is the way you must apply your thinking - will be liable for circulating the petition if they arranged for, promoted or convened the general meeting knowing or believing, in the sense of reasonably expecting, that at that general meeting the petition, the very document that you have, would be made available. That people would be permitted, encouraged, or allowed to take up the document, and/or encouraged, permitted or allowed to pass the document around, that is to give it to others in order that those people to whom it was given might consider applying their signatures in support of what the petition asks for." 320Some aspects of the evidence were incontrovertible. Thus, there was evidence that each respondent was present at meetings prior to the general meeting at which a proposal to prepare a petition substantially to the effect of the petition was discussed. They all knew the petition was to be discussed at the general meeting. Mr Isaac prepared the petition after the third preparatory meeting and gave it to Mr Dadisho some time before the general meeting, at the same time explaining to him how to prepare the signature page. Mr Abdishou and Mr Dadisho actively promoted the general meeting to members of the Assyrian community. It is apparent from the radio broadcasts that they knew the petition would be brought to the meeting. Mr Dadisho chaired the meeting and introduced Mr Kochou as the person who would read the petition to the meeting. Mr Abdishou, at some point, was on the stage and summarised the contents of the petition to the audience in Assyrian. 321Mr Isaac's evidence was to the effect that he was asked to prepare a complaint about the appellants to the Legal Services Commissioner, that he raised the idea of calling it a petition at the third preparatory meeting. In contrast to Mr Kochou's evidence, he denied having said anything about a need for 500 signatures at any of the preparatory meetings, or about reading the petition aloud at any meeting. He prepared the petition, but not the signature page. He learned a general meeting "asking for supporters to come in and support the petition" had been organised sometime after the third meeting. He attended the meeting reluctantly. He did not expect the petition to be read out or handed around at the general meeting. He did not expect people at the meeting to read the petition. The only people he expected would read it were the other defendants and the Legal Services Commissioner. On the issue of the slander case, he said he was surprised (as was Mr Abdishou) when Mr Kochou started to read the petition. He denied any conversation with Mr Kochou about the latter reading the petition aloud at the meeting. He did not see anyone other than Mr Abdishou with the petition at the meeting and did not circulate it himself. 322As to all respondents, it was open to the jury, if they accepted that Mr Kochou's draft affidavit was the "truthful" version of events, to accept the statement in the draft that, effectively, none of the defendants intended to give the petitions out because there were so few copies there, so that none of the respondents intended the petition to be circulated amongst the audience. However apart from being used in cross-examination directed to challenging Mr Kochou's credit, none of the respondents appears to have relied on that evidence at trial. Even if they had, the inference was almost inescapable, as the trial judge effectively directed the jury (summing-up (at [266] - [267], [270])) that one or more placed the petition on a table where it was possible for a member of the audience either to read it there, or pick it up and read it elsewhere in the auditorium. Having regard to their collaboration at the preparatory meetings in devising the petition, Mr Isaac's drafting of the petition and Mr Abdishou and Mr Dadisho's knowledge that it would be substantially to the effect of the matter complained of (answers to interrogatories: [84] above), and all their involvement/participation in varying manners in the general meeting, it would, in my view, have been unreasonable for the jury to answer the responsibility issues adversely to the appellants. 323However, for the reasons I have given, the jury's decision that the appellants had not established that any of the respondents had circulated the petition in the manner set out in the questions to the jury was not unreasonable. 324I would therefore reject grounds 2, 3 and 4. 325Against the possibility that another court may reach a different view, I should consider the remaining issues: Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 (at [12]).

Utility of jury's answers to the libel case imputations questions 326The first question that arises is what, if any, weight should be attached to the jury's negative answers to the imputations questions in the libel case. As I have said, having answered "No" to the circulation questions, they should not have been directed to deal with questions 2 (and indirectly question 5) - the first imputations question in each appellant's libel case. The trial judge also directed the jury in terms of the questions, without discriminating between the libel and slander cases, that they should proceed to the imputations questions if they answered the publication questions "positively": summing-up (at [151], [514]) - see [150] above. 327Mr Reynolds' submission that the answers to questions 2 and 5 may have been influenced by the jury's rejection of the appellants' case on publication suggests that the jury was confused as to how to approach its task. This submission, it will be apparent, places no weight on the written direction to the jury to continue to question 2 after answering the publication questions if they had answered " 'yes' to any part of question 1". Nevertheless, Mr Reynolds submits, in substance, that the jury's answers to the circulation question (that is to say, their answers in the libel case) give some insight into the jury's thinking (see MacKenzie v R [1996] HCA 35; (1996) 190 CLR 348 (at 365) per Gaudron, Gummow and Kirby JJ). He contends that the jury's (erroneous) negative answers to the publication questions in the libel case distracted the jury from properly considering the imputations questions such that they cannot be said to have properly discharged their function. Once again, it should be emphasised, in the light of my findings on publication, that consideration of this question proceeds only on the unestablished proposition that the jury's findings on that question were erroneous. 328Whether what a party contends is "a jury's unreasonable finding on one issue or question should be regarded as destructive of any or all of its findings on another must ... depend on all the circumstances of the case, particularly the charge of the trial judge and the whole conduct of the trial": Coroneo v Kurri Kurri & South Maitland Amusement Co Ltd [1934] HCA 21; (1934) 51 CLR 328 (at 345 - 346) per Rich, Evatt, and McTiernan JJ. In so saying, their Honours referred with approval to Isaacs and Gavan Duffy JJ's statement in Ryan v Ross [1916] HCA 43; (1916) 22 CLR 1 (at 33 - 34, footnotes omitted) that: "The onus lies on the party seeking a new trial to clearly prove the necessity. It is not enough to raise a doubt. If any case cited can be supposed to lay down the proposition that, because a jury finds contrary to the evidence on one or several issues in a case, they should be considered as practically disqualified from deciding a totally distinct and separate issue, we respectfully decline to adopt it. In Turnbull & Co v Duval, the Privy Council said: 'A new trial ought never to be lightly granted.' In Dakhyl v Labouchere, in 1907, Lord Loreburn L. said: 'In all cases it is a most deplorable result, not to be entertained upon any but the most solid grounds, as the only means of redressing a clear miscarriage.' " (Emphasis added) 329Coroneo v Kurri Kurri Amusement Co Ltd was applied in Huysse v Snowy Mountains Hydro-Electric Authority [1975] 1 NSWLR 401 where (at 408 - 409), Samuels JA refused to set aside a jury's findings on liability even though he considered they "may be somewhat curious [and] [i]t may even be conceded that they might be regarded as inconsistent, but they fall very far short of providing any satisfaction that in pronouncing them the jury failed to perform their duty"; see also Hutley JA (at 404) - no jury impropriety even though "difficult to understand" findings; Mahoney JA (at 410) - verdict not set aside where no indication jury "so misunderstood the nature of their task as to warrant a finding for the plaintiff". 330Mr Reynolds did not contend expressly that the jury's answers to questions 2 and 5 were inconsistent with their answers to the publication questions in the libel case, although that is manifest to a person well versed with how the issues in a s 7A trial are to be determined. Mr Blackburn contended, however, that cases dealing with inconsistent jury answers were, at least, a useful point of reference for determining the approach an appellate court may take to any such answers, whether inconsistent or answers to questions that should not have been asked. 331The question whether a jury's answers are inconsistent in an impermissible sense turns first on whether they are "necessarily inconsistent in the sense that they cannot logically stand together". That question is to be determined by interpreting "the findings lying behind and represented by the jury's answers to the questions and in the context of the 'form' or 'template' " in which the questions went to the jury and also by "having regard to any pertinent directions given to the jury": Skalkos v Assaf (at [63] - [64]) per Mason P; Otis Elevators Pty Ltd v Zitis (at 204) per McHugh JA; see also Wynbergen v Hoyts Corp Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65 (at 67) per Hayne J (Gaudron, McHugh, Gummow and Kirby JJ agreeing). The Court must determine whether the jury must have so disregarded or misunderstood the directions the trial judge gave that their verdict denotes a failure to perform the function committed to them "so that its verdict is, in reality, no verdict at all". To reach this conclusion "a wide discretion must be allowed to the jury because its members are not legally trained": Carr Shipping & Trading Co Pty Ltd v Sydney City Council (1963) 80 WN (NSW) 397 (at 406) per Else-Mitchell J (Macfarlan J agreeing). 332Even if inconsistency is exposed, in order to secure a new trial, the answer to the question must be necessarily inconsistent with the general verdict: Otis Elevators Pty Ltd v Zitis (at 203) per McHugh JA. 333Finally, the Court must have regard to the conduct of the parties. In Otis Elevators Pty Ltd v Zitis the second question to the jury (see 175) asked what total damages they found. Subsequent questions sought a break-up of the award. Both parties had objected to the trial judge putting questions directed to future loss of income and future pain and suffering, but acquiesced insofar as questions going to the past on both issues were concerned. 334McHugh J held (at 203 - 204) that none of the break-up questions were questions as to facts permissible pursuant to s 90 of the Supreme Court Act. Because the questions as to the future had been objected to his Honour held (at 204) that they should be disregarded, treating them as falling within the principles established by Arnold v Jeffreys [1914] 1 KB 512 and Barnes v Hill [1967] 1 QB 579, that is to say as questions asked after the jury had, by answering question 2, returned a general verdict. However, as the parties had not objected to the questions as to the past, his Honour also held (at 204) that they should remain on the record. It was too late for consent to the course taken at trial to be withdrawn. Priestley JA (at 192) also held the particular questions as to the past and the future should not have been put after question 2 was answered. However his Honour, too, would have held the parties to the questions counsel had agreed could be put to the jury. Because he accepted that there was no manifest inconsistency in the jury's answers, he did not (see 192 - 193) consider the effect of the answers to the questions the jury should not have been asked. His Honour did however, indicate (at 192) that if the answers had demonstrated the jury had failed properly to discharge their function, "as a general matter" he could not see why that should not be taken into account. 335In my view the fact that the jury answered questions 2 and 5 does not demonstrate that they failed properly to discharge their function. First, I have concluded that the jury's answers to the circulation questions in the libel case were reasonably open - so their findings in that regard do not demonstrate confusion as to how to answer subsequent questions. 336Secondly, against the hypothesis that the jury's answers to the circulation questions in the libel case were not reasonably open, that would not "clearly prove" that the jury had failed to discharge their duty in other respects. For example, the appellants do not challenge the jury's finding in the slander case that they had only established publication by agreement between Mr Kochou and Mr Dadisho. That finding, as I have briefly explained (at [315]) was reasonably open to the jury if it rejected Mr Kochou's evidence. That demonstrates the jury's understanding of the issues and their ability to differentiate between issues. 337Questions 2 and 5 dealt with a distinct issue from the circulation questions in the libel case. They did not involve deciding between the competing credibility of Mr Kochou, Mr Sarkez and Mr Isaac. Answering them merely required the jury to consider what the petition conveyed to the ordinary reasonable reader at the general meeting. 338Thirdly, the jury's answers to questions 2 and 5 were not inconsistent with the verdicts. A negative answer to the circulation questions would have supported a verdict for the defendants on the libel case, as too, would a negative answer to questions 2 and 5. 339Fourthly, as I have said, at the most elementary level, the jury did precisely what the written questions asked them to do. Having answered part of question 1, albeit that part as to Mr Abdishou and Mr Kochou relating to the slander case, they proceeded as directed to question 2 and, inexorably to question 5. It is a step too far to suggest the lay jury should have appreciated what the legally trained participants in the trial did not, that once the circulation questions in the libel case were answered negatively, questions 2 and 5 did not arise. 340Accordingly, in this hypothetical aspect of my reasons, I would conclude that an unreasonable answer to the circulation questions would not have cast an adverse light on the jury's answers to questions 2 and 5. 341In any event, accepting that the jury should not, in the circumstances have been asked to answer questions 2 and 5, it is now too late for the appellants to complain about answers to questions whose structure they actively sought at trial: Otis Elevators Pty Ltd v Zitis. 342Accordingly, subject to the question whether the answers to questions 2 and 5 were unreasonable in the sense that they were ones no reasonable jury could reach, the jury's answers to those questions must stand.

The imputations questions - whether test misstated 343The first question which arises when considering whether the jury's negative answers to the imputations questions were unreasonable is Mr Reynolds' complaint that the respondents misstated the test the jury should apply in determining how the ordinary reasonable reader would have read the petition (by, in short, referring to the possibility that the ordinary reasonable reader might have skim-read the petition) and whether the trial judge compounded that misstatement by drawing attention to Mr Dawson's submission that "the audience at the general meeting ... would have understood the petition called for an investigation". 344Once again, the appellants did not complain at the trial about the way either counsel for the respondents or the trial judge put the issue of how the jury might conclude the ordinary reasonable reader may have read the matter complained of. 345Before dealing with that complaint, brief reference should be made to the principles to be applied by an appellate court asked to overturn a jury's finding in a s 7A trial that imputations were not conveyed. Those principles have been expressed in terms similar to those expressed in Mechanical and General Inventions Co Ltd v Austin and Calin v The Greater Union Organisation Pty Ltd. It is not readily apparent that the tests differ. Indeed, in John Fairfax Publications Pty Limited v Rivkin (at [17]), McHugh J expressed the view that the principles developed in common law actions as to the circumstances in which an appellate court is entitled to set aside a jury's verdict equally apply to appeals in defamation actions. Such principles are qualified to some extent, however, by the character of the typical s 7A trial in a written publication case, which is confined to the issue whether the imputations are conveyed in the natural and ordinary meaning of the matter complained of and whether any such imputations were defamatory. 346Accordingly, it is appropriate to set out some statements of the principle expressed in the context of a challenge a jury's finding in a s 7A trial. Such a finding, Callinan J (Gleeson CJ and Heydon J agreeing) said in John Fairfax Publications Pty Limited v Rivkin (at [185]) can only be overturned on appeal if it was one no reasonable jury could reach: see also John Fairfax Publications Pty Ltd v Gacic (at [51]) per Gummow and Hayne JJ who added the expression "properly directed" to the test, referring to John Fairfax Publications Pty Limited v Rivkin (at [2]) per Gleeson CJ; see also Australian Broadcasting Corporation v Reading [2004] NSWCA 411 (at [120]) per Ipp JA; (at [165]) per McColl JA; Harvey v John Fairfax Publications Pty Ltd (at [51]) per Hunt AJA (Santow JA agreeing). 347The Court pays considerable deference to the decision of the jury discharging its role as the constitutional tribunal: Hocking v Bell (at 440) per Latham CJ. Thus, generally, an appellate court considering an appeal from a jury verdict is required to apply what Kirby J has described as "the rule of restraint": Liftronic Pty Ltd v Unver (at [64]; see also (at [1] - [2]) per Gleeson CJ; (at [60]) per Gummow and Callinan JJ. Accordingly, the "unreasonableness" test for whether a jury's verdict should be set aside is "usually combined with a caution suggesting that intervention should be 'extremely rare' ": Harvey v John Fairfax Publications Pty Ltd (at [28] - [30]) per Basten JA. 348The rule of restraint has particular application in the context of a challenge to a jury's decision as to whether imputations were conveyed and/or were defamatory. In that context, Callinan J said in John Fairfax Publications Pty Ltd v Rivkin (at [184]), echoing Latham CJ's statement in Hocking v Bell (at 440 - 441): "[184] The fact that an appeal lies to the Court of Appeal does not mean that the court may substitute the answer that it would give to a question for that of a jury. Nor does it mean that a finding of a jury should be invested with no more than the authority of a trial judge to whom all questions, including of fact, have been assigned for answer. The jury has an especially significant constitutional role to play in those cases in which it participates. Both as a practical and legal matter, a jury's decision on a factual question, although by no means impregnable, does have an authority over and above that of a decision of a judge sitting alone to determine a factual question. The jury is representative of the community. Its members are better placed than judges to give meaning to, and evaluate, the spoken and written word and its impact upon the community. Nor should it be assumed that juries approach their task with heightened or lowered suspicion and prejudice. History shows that not all lawyers and judges are strangers to suspicion. It may accordingly be accepted that the occasions for judicial correction of jury verdicts will be extremely rare. But such occasions do arise. That they may, and then will require appellate intervention, follows from the right of appeal which the legislature confers in respect of them ... ." See also (at [2]) per Gleeson CJ; (at [92] - [93]; [109] - [120]) per Kirby J; (at [17] - [22]) per McHugh J which, while expressed in dissent, I do not understand to state the principles differently from the majority's reasons. 349The ordinary reasonable people of whom the hypothetical audience is composed are considered to be people of "ordinary intelligence, experience, and education", not "avid for scandal", "fair-minded" and are expected to bring to the matter in question their general knowledge and experience of worldly affairs: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 (at [6]) per French CJ, Gummow, Kiefel and Bell JJ. 350Basten JA explained well the approach to testing the reasonableness of a jury's answers to imputations questions in Harvey v John Fairfax Publications Pty Ltd (at [30]): "The second limb of the justification for caution in reviewing a jury verdict, discussed by Gleeson CJ in Rivkin, is the so-called 'constitutional role of the jury', reflecting its 'representative function'. In the context of s 7A of the Defamation Act, the first question asked of the jury (and the only question which arose in the present case, as in Rivkin) is whether the published material conveys a particular imputation. This will involve an evaluative judgment, rather than a finding of fact as to the occurrence or nature of particular conduct or events. Thus, the statute vests in the jury, as members of the community, the function of making that evaluative judgment. In the terms adopted by Lord Wright, the jury cannot be said to have failed to perform its duty if, on the natural meaning of the words used in the published material, there was an available conclusion, which was neither tenuous nor fanciful, which was inconsistent with the asserted imputation. The search for such available meanings was undertaken by McHugh J in Rivkin and is an approach which appears to provide some objective basis for avoiding the shifting sands of subjective personal opinion. Nevertheless, because his Honour was in the minority in relation to the outcome of that exercise, it is no doubt necessary to avoid what the Chief Justice referred to in Rivkin at [4] as 'adroit rationalisation' and the danger identified by Kirby J at [128] as an analysis 'excessively defensive of the jury's answers and insufficiently attentive to the appellate court's performance of its independent function to protect a party against a manifestly unreasonable verdict, although the reasons for such error cannot be identified with exact precision'. Nevertheless, some such approach is required because of the need, noted by Lord Wright in Mechanical and General Inventions, to define what is meant by reasonable. As noted by Gleeson CJ in a different context, 'to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it': Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [5]. In the present case, the reasons are unknown, but the underlying material can be assessed." 351With those appellate strictures in mind, I set out some particular principles applied to determining whether imputations are conveyed to the ordinary reasonable reader or listener. 352Whether, and what, imputation is conveyed by a publication is essentially a matter of impression. The mode or manner of publication is relevant to the question whether the relevant publication would be understood to have conveyed the pleaded imputations. The more sensational a book, for example, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care it may otherwise have been given and the less the degree of accuracy which would be expected by the reader: Amalgamated Television Services v Marsden (at 165) per Hunt CJ at CL (Mason P and Handley JA agreeing). 353These propositions have particular significance in the case of electronic broadcasts as Hunt CJ at CL (Mason P and Handley JA agreeing) explained in Amalgamated Television Services v Marsden (at 165 -166): "All of these considerations, and more, apply to matter published in a transient form - and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article, (Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420) and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material." See also Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60 (at [37]) per Gummow, Hayne and Heydon JJ; 354Although these observations were made in the context of television broadcasts, they are clearly applicable to assessing the circumstances in which the hypothetical member of the audience at the general meeting would have understood the petition as read by Mr Kochou. 355It is also the case, as Callinan J observed in John Fairfax Publications Pty Ltd v Rivkin (at [187]), that while each publication has to be considered as a whole, the ordinary reasonable reader might pay more attention to "... matters that have been emphasized", such as headlines and "colourful and seductive language". These observations are not directly applicable to the petition which is bereft of both headlines, let alone "colourful and seductive language". However, not all matters of emphasis depend upon florid expression. It may also be achieved by repetition of a theme. 356Implicit in the tests to which I have referred is the recognition that the hypothetical ordinary, reasonable reader or listener may place a different construction on the matter complained of than that placed by a trained lawyer: see Trkulja v Yahoo! Inc LLC [2012] VSC 88 (at [15]) per Kaye J. 357In my view, counsel for the respondents did not misstate the test the jury should apply when considering the question whether the imputations should apply. The mode or manner of publication is always a relevant issue. It could hardly be appropriate to suggest to a jury asked to consider whether imputations were conveyed to an ordinary reasonable reader reading a document only during a Grand Final football match that it should apply the ordinary reasonable reader test as if the spectator was reading the document in the reading room of Mitchell Library. It was open to counsel to invite the jury to consider the ordinary reasonable reader reading and listening to the petition in the circumstances of the general meeting. In any event, it should be borne in mind that it was open to the jury to disregard counsels' submissions: Ramrahka v Chaudhry [2006] NSWCA 42 (at [37]) per Basten JA; Giles JA relevantly agreeing (at [9]); Ipp JA agreeing. 358In considering whether there has been a miscarriage of justice insofar as the summing-up is concerned, the Court must consider the whole of the trial judge's summing-up and determine whether, taken as a whole, her Honour's direction deflected the jury from their proper task: Hargraves v R; Stoten v R [2011] HCA 44; (2011) 85 ALJR 1254 (at [46]). I have summarised the trial judge's directions to the jury on the approach of the ordinary reasonable reader or listener to whether the imputations were conveyed: see [135] - [138] above. Even if my view (at [357]) is incorrect, nothing the trial judge said compounded or endorsed counsel for the respondents' addresses in this respect. 359Finally, the fact that counsel for the appellants did not complain about this issue at trial is a powerful reason not to entertain this complaint at this stage: Mallik v McGeown, supra; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 (at 498) per Mason CJ, Wilson, Brennan and Dawson JJ; see also Coulton v Holcombe; University of Wollongong v Metwally (No 2) (at 483).

The jury's answers to the imputations question - libel case 360Determining whether the jury's answers to the imputations questions were unreasonable requires consideration of what impression they could conclude the ordinary reasonable reader would draw from the petition as a whole: John Fairfax Publications Pty Ltd v Rivkin (at [187]) per Callinan J; (at [26]) per McHugh J. That impressionistic approach is to be contrasted with the analytical exercise lawyers engage in, for example, when determining the question whether, as a matter of law, a publication carries imputations - even though that exercise, too, seeks to assess the reaction to it of the ordinary reasonable reader. Once the jury has actually engaged in the exercise, their significance as the constitutional tribunal, as I have explained, assumes significance in determining whether their answers were reasonable - in other words, the rule of restraint is brought to bear in a manner not applied at the preliminary stage in determining a capacity issue. 361The appellants' submissions referred to a number of passages in the matter complained of upon which they "especially" rely to support their contention that the imputations were conveyed by the petition both in its written and oral forms such as to demonstrate that the jury's negative answers to the imputations were unreasonable. I assume in their favour that the word "especially" was deliberately chosen to indicate they did not exclude consideration of the whole. While the passages on which they "especially" relied were undoubtedly those to which the drafter of the imputations had regard in framing the imputations, they fail, in my view, to give appropriate weight to the way the petition as a whole is framed. It is artificial to approach the exercise of determining the reasonableness of the jury's answers to the imputations questions by focussing on particular passages, rather then seeking to glean the impression the jury was entitled to consider the petition as a whole would have made on the ordinary reader. 362The petition is set out above (at [19]). The paragraph numbers to which I refer are those I added to deal with this argument efficiently. It is convenient to note, at this stage, that the appellants were not the only professional advisers to Mr Suleman whose conduct the petition sought to bring to the Legal Services Commissioner's attention. Paragraph 1 of the petition also referred to Sabrina Jajoo, Phillip Pham, and Andy Isho as professional advisors of Karl Suleman whose names also appear in other contexts in the petition. 363The petition is framed as a call for an investigation into the appellants' conduct in respect of Karl Suleman's scheme. That theme is repeated throughout the text. 364Paragraph 1 opens with the request from its authors/supporters "seek[ing] an investigation into the conduct and involvement" of the appellants and others "into the scheme operated by Karl Suleman". The third paragraph described the remainder of the petition as enclosing "the submissions In support of the petition". Then, the fifth paragraph asks the recipient to: "[C]onsider the evidence of these solicitors as outlined in the submission in support of this petition: the inconsistency and differences in the evidence, the business dealings with Karl Suleman, and the benefits received by these solicitors and their association with Karl Suleman. We require your investigation into the conduct of these solicitors and to assist us to achieve a long due justice for our community ..." (Emphasis added). 365The twelfth paragraph repeats the request that the recipient: "... investigate why these solicitors continued their business dealings with Karl Sulman [sic, as in original] in light of their knowledge or at least notice as of late 2000 that the scheme operated by Karl Suleman was unlicensed managed investment fund [sic]." 366The sixteenth, and final, paragraph thanks the recipient: "... for your investigation and you assistance [sic, as in original] in these matters. We look forward to hear from you." 367The paragraphs to which the appellants refer contain specific reference to such matters as the "solicitors association with Karl Suleman [giving] us the impression that the scheme operated by Karl Suleman was legal ..." and the "solicitors consciously decided to remain silent about their knowledge of the scheme" (para 6); advice a barrister gave to Phillip Pham and the second appellant that "KSE business is managed investment scheme and requires registration and licence" and that "[t]hese solicitors did not take any steps for registration of the Scheme ..." (para 9); "information [the solicitors] ... had in late 2000 that the scheme was managed investment fund and required license [sic] and registration with ASIC"; and "these solicitors' ... knowledge or at least notice as of late 2000 that the scheme operated by Karl Suleman was unlicensed managed investment fund" (para 12). 368Other parts of the petition are more equivocal about the appellants' knowledge of the legality of the scheme. Thus paragraph 10 refers to "these solicitors ... participat[ing] in assisting an illegal operation of a scheme which breached the Corporation Act [sic]" and refers to "these solicitors" having "obligations to our community to ascertain if the scheme is registered when it affected us" - all matters which might be said to support the underlying premise of imputation (c), that each appellant knew the Karl Suleman scheme was not registered. However the same paragraph then sets out what appears to have been the second appellant's explanation of the appellants' state of mind as to whether the scheme was registered. It quotes her as saying: "Karl Sulemin [sic] went to Phillip Pham for registration ... Phillip Pham says Karl Sulemin [sic] told him 'he has licence' ... Andy Isho says Karl Sulemn [sic] told him 'he obtained it' ". Each of the persons identified, including the appellants, are said to have continued their business with Mr Suleman after receiving that advice. 369Those aspects of paragraph 10 left it open to the jury, in my view, to conclude that the petition did not convey an imputation depending upon the proposition that the appellants had failed in their obligations to ensure the Scheme was registered. Rather, the jury was entitled to find that the ordinary reasonable reader could conclude from the petition that the appellants were of the view that the scheme was registered. Their continuing association with him after receiving the advice referred to in paragraph 10 demonstrated their confidence that it was. 370In the same vein, the passage from paragraph 12 to which I have referred is prefaced by the request that the recipient of the petition "investigate why these solicitors continued their business dealings with Karl Sulman [sic]" in the light of that knowledge. 371Imputations (a), (b), (d), (e) and (f) all depended on the proposition that each appellant knew the Karl Suleman scheme was illegal either generally (imputations (a), (d), (e) and (f)) or because s/he knew it was in breach of the Corporations Act (imputation (b)) or was not registered (imputation (d)). In my view, taken in the context to which I have referred where the petition repeatedly called for an investigation, the specific references to illegality appear in the submissions part of the document and, in the case of the registration issue, the countervailing material about the appellants' belief the scheme was registered, it was open to the jury to conclude that the ordinary reasonable reader would not draw those conclusions. It was not fanciful, for example, to find that it was open to the jury to conclude that the ordinary reasonable reader read the petition as drawing these matters to the recipient's attention and inviting that person to consider and characterise the conduct. This view was open to the jury both on the question of whether the appellants knew of the illegality of the scheme as well as whether they should be characterised as having been "guilty of misconduct" (imputations (c) and (e)) or failed in his/her duty (imputation (d)). 372One aspect of imputation (a) can be dealt with specifically. That imputation depended upon the proposition that each appellant was referred to in the matter complained of as "promoting an investment scheme among his clients knowing it to be illegal". The appellants submitted it was conveyed "especially" by paragraphs 1, 5, the first sentence of 6 and 7. Those paragraphs refer to the appellants either as Mr Suleman's other professional advisers or, in effect, associates of Mr Suleman. 373The only express reference in the petition to anybody promoting the scheme is the statement, in paragraph 8, that: "The public examination also revealed various 'agents' of KSE promoted the scheme." 374The same paragraph revealed that the liquidator has "since then commenced legal action against these agents". In contradistinction to the reference to these "agents", it goes on to refer to the liquidator "also commenc[ing] legal action against" (my emphasis) the appellants. This distinction between the agents who promoted the scheme was also established in paragraph 4 of the matter complained of which refers to "various agents of Karl Sulemin [sic]" by whom "members of our community ... were referred ... to these solicitors ...". 375In my view, that distinction would have been apparent to the ordinary reasonable reader. Further, in my view, the other references to the appellants' association with Mr Suleman do not suggest that the jury should conclude that they conveyed to the ordinary reasonable reader the proposition that they promoted his scheme. Rather, those passages convey the connotation of advisers and associates, but not promoters. The underlying premise, therefore, of imputation (a) was not established. 376In my view, paying due deference to the jury as the constitutional tribunal, their rejection of the appellants' imputations in the libel case was not unreasonable. 377I would reject ground 5.

The jury's answers to the imputations question - slander case 378The conclusions I have reached in relation to the jury's answers to the imputations questions in the libel case apply with equal, if not greater, force to their answers to the questions in the slander case. The reading of the petition can be likened to the "transient" publication to which I have referred: see [353] above. In that context, it was open to the jury to conclude that the repetition of the theme of the request for an investigation would have had particular resonance for the ordinary reasonable listener - much as a musical refrain that forms the backbone to a composition. Otherwise, the same reasoning substantially applies to the jury's assessment of the impressions the ordinary reasonable listener would have had of the petition. 379If I had reached the contrary view on this aspect of the case, it is arguable that the Court could not, if it upheld this ground of appeal on this point, enter a verdict in the appellants' favour rather than order a new trial: Harvey v John Fairfax Publications Pty Ltd (at [101] - and see above at [224]). Like Hunt AJA in that case, however, I would leave this question for resolution when the occasion requires. 380I would reject ground 6.

Publication to Mr Kochou 381Finally, I turn to the case the appellants seek to advance for the first time on appeal that publication of the petition for the purposes of the libel case was established by the fact that Mr Kochou read the petition in its entirety. 382In my view the appellants should not be permitted to rely on that point on appeal. 383First, "a party is bound by the conduct of his case [and] [e]xcept in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so": University of Wollongong v Metwally (No 2) (at 483). After referring to that passage with approval in Coulton v Holcombe (at 7), the plurality observed that "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial [otherwise] ... the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish". 384Secondly, it by no means apparent that a reading by Mr Kochou would have constituted publication to a third party such as to amount to publication for the purposes of establishing the cause of action. Prima facie the defendants at trial, of whom Mr Kochou was one, were joint tortfeasors. Thus he was a principal in the act of publication: Webb v Bloch (at 364) per Isaacs J. As his Honour explained (at 365) when characterising the participants in the publication of the libel in that case, "principal and agent inter se are principals in relation to the person defamed [and] the principal and the agent are one" and, (at 365) "[a] composite entity". On this premise, Mr Kochou's reading of the petition resembles the example Gatley (at [6.1]) gives that "A cannot sue B for defaming him to ... B himself; that is to say where B reads to himself his libel on A then locks it away. A must prove that B defamed him to C." It is as if the appellants could rely on, for example any of the respondents reading the petition while sitting at the meeting. It would be absurd to suggest such a reading could constitute publication to a "third party". 385Tobin & Sexton state (at [5012]) that "[t]here is some doubt as to whether publication by the defendant to a joint tortfeasor provides sufficient basis for an action by the plaintiff", referring to Trantum v McDowell [2007] NSWCA 138. In that case Tobias JA (Beazley JA and Bell J (as her Honour was then) agreeing) considered (at [45] ff) a submission that "a person cannot at the same time be the publisher of the matter complained of as well as its recipient". His Honour referred to Davis v Resources for Human Development Inc 770 A.2d 353 (2001) (at 358), a decision of the Superior Court of Pennsylvania, in which Olszewski J, who delivered the judgment of the court, said: "It is clear that in Pennsylvania, the communication must be expressed to a third party in order to be 'published'. See Elia v Erie Ins Exchange, 430 Pa.Super. 384, 634 A.2d 657, 660 (1993). Here the communication was between four authors of the letter and the appellant. While four people signed the letter, none of those is a third party for these purposes." 386Tobias JA (at [48]) distinguished Davis v Resources for Human Development Inc on the basis that it did not apply to the facts of the case before the court in which the claimant wrote a letter making allegations against the opponent which were found to be defamatory then "took the letter to the owner/occupiers of other units within the apartment complex, several of whom signed it": (see headnote). The primary judge found the latter were recipients of the defamatory matter - a decision approved on appeal. 387Tobias JA also referred (at [49]) to numerous defamation texts which variously cite Davis v Resources for Human Development Inc or, without referring to it, refer to apparently conflicting authority. 388It is clear from that brief reference to Trantum v McDowell that the learned authors of Tobin & Sexton are warranted in expressing doubt about the current position as to whether publication takes place when a person regarded as a tortfeasor effectively "publishes" the matter to him or herself. 389It is unnecessary to express a concluded view about this issue as, for the reasons given, I would not entertain it. 390Finally, on this point, I would add that if the Court was to entertain such an argument and it succeeded, the appellants should bear a substantial costs penalty of both the trial and possibly an earlier trial of the matter aborted at their request.

Orders 391I would dismiss the appeal with costs. 392SACKVILLE AJA: I agree with McColl JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 April 2012