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[2007] NSWCA 10
Court of Appeal (NSW)
2007-02-19
Mason P, Tobias JA, Bryson JA, Howie J
Original judgment source is linked above.
CITATION: Gardener v Nationwide News Pty Limited [2007] NSWCA 10
JUDGMENT OF: Mason P at 1; Tobias JA at 2; Bryson JA at 3
DECISION: (1) Appeal allowed with costs.; (2) Set aside the determinations of the Jury on Questions 2, 5(c) and 7 and order a new trial of Questions 2, 3, 4, 5(c), 6(c), 7 and 8.
CATCHWORDS: DEFAMATION - Jury determinations under s.7A(3) - A series of three articles in Daily Telegraph related to Acclaim Education, a college with conduct of which the appellant was associated which coached HSC students - many references to fraud, cheating, investigations and scandal - First article did not name appellant, later articles identified her by name, photographs and adverse personal history as the person referred to - Jury answered questions on whether readers of first article identified her (yes) whether it was reasonable to identify her (no), answered questions on whether imputations relating to history were conveyed in second and third articles (no). Jury found that another imputation which did not relate to the College was conveyed and was defamatory (convicted of bank robberies). The C.A. set aside three determinations that imputations were not conveyed and ordered new trial on those imputations and whether they were defamatory, and refused to set aside two other challenged determinations: decision turned on detailed address to contents of articles. Consideration of - appellate power to set aside jury verdict - proof that identification by reader is reasonable where the person referred to is not named and identification depends on reader's special knowledge or on reader's interpretation after seeing identification in later publication - Held if it is incontrovertible from later publication that identification was correct, that fact predominates in assessing whether it was reasonable to make the identification.
Common Law Procedure Act 1899 s.160 LEGISLATION CITED: Defamation Act 1974 s.7A(3) Supreme Court Act 1970 s.102
Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Carr Shipping and Trading Co Pty Ltd v Sydney City Council (1963) 80 WN (NSW) 397 Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 David Syme & Co. v. Canavan (1918) 25 CLR 234 Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 CASES CITED: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hocking v Bell (1945) 71 CLR 430 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Lewis v Daily Telegraph Ltd [1964] AC 234 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
PARTIES: Rachel Gardener - Appellant Nationwide News Pty Limited - Respondent
COUNSEL: T. Molomby SC & C.J. Dibb - Appellant T.D. Blackburn SC & S.T. Chrysanthou - Respondent
SOLICITORS: D'Arcy Soloman - Appellant Blake Dawson Waldron - Respondent
LOWER COURT JURISDICTION: Supreme Court - Common Law Division
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40106/06
MASON P TOBIAS JA BRYSON JA
Monday 19 February 2007 RACHEL GARDENER v NATIONWIDE NEWS PTY LIMITED Judgment 1 MASON P: I agree with Bryson JA. 2 TOBIAS JA: I agree with Bryson JA. 3 BRYSON JA: The appellant, who was the plaintiff in the Common Law Division, appeals pursuant to s.102 of the Supreme Court Act 1970 from some of the answers given by the jury in their determination under s.7A(3) of the Defamation Act 1974. Her claims were based on a series of three articles published in the Daily Telegraph on Monday 20 and on 21 and 22 June 2005. The proceedings were commenced by Statement of Claim filed on 24 June 2005. The trial under s.7A took place before Howie J and a jury on Tuesday 14 and on 15 and 16 February 2006. Statements in the articles which are not contentious show that the appellant was a teacher of English at Homebush Boys High School and that she tutored at and was in some way involved in the conduct of Acclaim Education, a tutoring college at Homebush, where students were tutored for the Higher School Certificate examination in English. 4 The first matter complained of is the leading article on the front page of the Daily Telegraph for 20 June 2005, which is continued on page 4. The article is headed "HSC FOR SALE". This article included these passages (and I use paragraph numbers which did not appear in the article but were attributed to them by counsel). 1. HSC FOR SALE 2. Students buying top marks from tutor cheats 3. HUNDREDS of children have been able to buy their way into university in a cash-for-coursework scam being run by a Sydney teacher. 4. The Daily Telegraph can reveal a teacher from a state-run high school has been earning up to $5000 a subject to do school work for pupils. 5. The teacher's company is accused of faking work to help more than 250 pupils win university places. 6. In one case, the agency took two pages of rough notes written by a Year 12 pupil and converted them into a 32-page novelette, which got 48 marks out of 50. 7. In another, the agency wrote four poems from scratch and gave them to a pupil to enable her to get the UAI grades she needed to get into university. 8. The teacher or her agency is not registered with any tutoring organisation so is not subject to any controls or checking. 9. The HSC examination is split into two elements: coursework and assessments that make up 50 per cent, and an exam which constitutes the remainder. 10. The BMW-driving teacher is paid up to $5000 a subject to cheat on the coursework requirements. 5 Later passages include: 22. Ethical tutoring agencies, many of which are registered with the Australian Tutoring Authority, would offer additional teaching to help them improve their work. 23. This particular agency, however, took the draft and reworked it themselves, cheating the system. … 28. The owner of the tutoring agency claimed last night the allegations were false. 29. She said the agency was bound by a code of conduct that required students to do their own work. 30. "This is the first I have heard of it," she said. 31. "It is absolutely untrue. We have codes of conduct and making kids do their own work is in that." 6 A break-out in the article is headed "Project a true work of fiction": 33. THE year 12 pupil from a school in Sydney's inner-west had already achieved success in English but wanted to push up the bar. 34. The girl and her parents explained to the agency she had already passed three-unit English but wanted to go one better. 35. Passing four-unit English was the pinnacle but the centrepiece involved a huge project of creative writing - an 8000-word novelette. 36. Part of the test was to conduct research to support the writing and to keep a log book. 37. This she had done but when it came to writing her novelette, her inspiration dried up after eight lacklustre paragraphs. 38. Her tutor joined her in a brainstorming session where they worked out plot and how the characters would develop. All that was left was to cheat. 39. After the pupil left, the agency's boss penned the story based on the brainstorming. 40. The 32-page paper was then tendered as the pupil's own work and it achieved 48 marks out of 50. 41. The agency charged for almost 50 hours of work at $60-an-hour. 7 On page 4 para 11 there is a photograph with the caption "Out of school … a boy enters the home of the teacher/tutor". The photograph shows a street scene in front of a suburban house, and there is an unidentifiable boy carrying a satchel walking on the pavement, a black BMW car in the foreground right and a paperbark tree in the centre foreground. In the middle ground are fences and vegetation. 8 The article did not name the appellant, or identify her by reference to a photograph or an address. The "state-run high school" referred to in para 4 was not identified in this article. 9 The second matter complained of is the leading article on the front page of the Daily Telegraph for the following day 21 June 2005. The article is headed "CHEAT SHEET 261 students under investigation in HSC cash for uni scandal" and continues on page 3 under the headline "Teacher was a bank robber." In this article the appellant was named several times; there is a photograph of her and there is no photograph which could possibly show anyone else, and there is a greatly reduced photograph of the front page from the previous day. The article includes these passages on page 1: 5. Meanwhile, the teacher at the centre of the cash-for-coursework scam was yesterday uncovered as former bank robber, now Sydney tutor, Rachel Gardener. 6. The probe was prompted by a Daily Telegraph investigation into a Sydney tutoring college, which took up to $5000 per subject to do HSC coursework. 7. Acclaim Education in Homebush is run by Ms Gardener, 53, who has been on unpaid leave since the start of the year from her job teaching English at Homebush Boys High. 8. She denies claims from a former employee that she and other Acclaim staff doctored work for students to help them attain higher marks. 9. "This is the first I have heard of it," Ms Gardener said. "It is absolutely untrue. We have codes of conduct and making kids do their own work is in that." 10 Under a heading "STUDY SCAM" on page 1 are several passages including: 15. ■ Teacher at the centre of the controversy uncovered as a former bank robber 11 Under a heading "Cheat sheet checks From Page 1", passages on page 3 include: 22. The whistleblower, who worked for Acclaim for two years, told The Daily Telegraph : "You can literally buy your child into university. It is unethical. 23. I knew what I was doing. I was so well trained in it, it was a cut and paste job in some cases." … 26. Opposition education spokeswoman Jillian Skinner called for the teacher concerned to be sacked.
A small reproduction of the previous day's headline is captioned 57. Outrage…how we broke the scandal story yesterday. 15 Passages of comment by Maralyn Parker include: 58. Devastating for the honest students COMMENT BY MARALYN PARKER …
19 The reader is referred to page 21, where there is a photograph of the appellant over the caption "60. Scandal … Rachel Gardener, the teacher accused of taking cash for HSC work". All the material on page 21 appears under the by-line "Maralyn Parker" (with her photograph) and this no doubt explains expression in the first person. Comment by Maralyn Parker includes:
Note: if you have answered "no" to question 1, go directly to question 5. 2. If you have answered "yes" to question 1, has the plaintiff established that such identification by that person was reasonable? Yes / No Note: if you have answered "no" to question 2, go directly to question 5. 3. If you answered "yes" to question 2, then has the plaintiff established that the first matter complained of conveyed to the ordinary reasonable reader any of the following imputations (or any imputation not different in substance)? (a) The Plaintiff was a cheat in that she took money to perform coursework forming part of the students' HSC assessment with the intention that the students would pass off the Plaintiff's work as the students' own. Yes / No (b) The Plaintiff solicited corrupt payments by offering to perform coursework forming part of students' HSC assessment in return for up to $5000 per subject. Yes / No
(c) The Plaintiff operated a tutoring business that engaged in fraud. Yes / No 4. If you answered "yes" to any of questions 3(a), 3(b), or 3(c), has the Plaintiff established that any such imputation was defamatory of her? (a) The Plaintiff was a cheat in that she took money to perform coursework forming part of the students' HSC assessment with the intention that the students would pass off the Plaintiff's work as the students' own. Yes / No (b) The Plaintiff solicited corrupt payments by offering to perform coursework forming part of students' HSC assessment in return for up to $5000 per subject. Yes / No (c) The Plaintiff operated a tutoring business that engaged in fraud. Yes / No
SECOND MATTER COMPLAINED OF - "Cheat sheet", "Teacher was a bank robber", and "Devastating for the honest students"
(d) The Plaintiff has been convicted of bank robberies. Yes / No
(d) The Plaintiff has been convicted of bank robberies. Yes / No
THIRD MATTER COMPLAINED OF - "Scandal of HSC: the 446 cheats", "High price of cheating", and "Vital lesson to learn from the scandal".
22 In the Amended Notice of Appeal the appellant claimed among other things an order that Question 2 be answered in the affirmative. Argument on appeal established that the appellant pursued the alternative claim in the Amended Notice of Appeal for a new trial on the issue of identification in Question 2. It was not contended by either party that a general new trial was called for in any circumstances. 23 The grounds on which the Court of Appeal may set aside a determination by a jury are limited. In Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41-42 Mason CJ, Deane, Toohey and McHugh JJ said: The correct principle is that a court on appeal may order a new trial if the jury has reached a conclusion which is against the evidence in the sense that the evidence in its totality preponderates so strongly against the conclusion favoured by the jury that it can be said that the verdict is such as reasonable jurors could not reach.
Authority in this Court and in other jurisdictions supports the appellant's submission: Hocking v Bell (1945), 71 CLR 430, at pp 440, 442, per Latham CJ; p 468; per Rich J; p 487, per Starke J; p 499, per Dixon J; Brooker v Roszykiewcz (1963), 37 ALJR 246, at p 248, per Kitto J; p 250, per Taylor J; p 251, per Menzies J; Jones v Spencer (1897), 77 LT 536; Metropolitan Railway Co v Wright (1886), 11 App Cas 152; Phillips v Martin (1890), 15 App Cas 193. It should be noted that, in Hocking v Bell , Dixon J drew a distinction between cases, on the one hand, in which the verdict is vitiated by some legal error, such as material misdirection or misreception of evidence, or was perverse in the sense that the jury disregarded the judge's direction and, on the other hand, cases where, on conflicting evidence, a verdict is found which is said to be against the weight of evidence: (1945) 71 CLR, at p 499. In the cases last mentioned, as Starke J noted, "the verdict is not disturbed unless the jury, viewing the whole evidence reasonably, could not properly find it" (emphasis added): (1945) 71 CLR, at p487. The 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 show that it was unreasonable and unjust": Metropolitan Railway Co v Wright (1886), 11 App Cas, at p 155. 24 The High Court in John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 made statements of the test on appeals in the context of jury determinations under s.7A; these were collected in Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 by Beazley JA at [53]. Justice Beazley gave this resolution of their effect: Thus, an appellate court will only interfere with a jury verdict if it is one that no reasonable jury, properly directed, could have given. 25 The appellate power over jury verdicts was extensively considered in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 by Hunt AJA. In Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [17], [22] McColl JA reviewed and stated the effect of John Fairfax Publications Pty Ltd v Rivkin and other authorities which now govern the test for appellate intervention. As her Honour there showed, there is a need for restraint on the part of the appellate court but it is wrong to clutch at straws in defence of a verdict. See too Gacic v John Fairfax Publications Pty Ltd at [53] (Beazley JA).
26 The test has been stated in a number of ways but in my understanding it is sufficient to say that a determination under s.7A is only to be set aside if it is a determination which reasonable people, properly directed as to the law and acting on the evidence in accordance with the law, could not find. Juries, not judges, determine the meaning and effect of matter alleged to be defamatory, whether the matter is written or spoken. This continues an allocation of responsibilities now centuries old and of constitutional significance, and leaves to the jury the function "… to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory" which s.7A(3) gives to them. 27 As several of the Questions were determined favourably to the appellant it can be taken that the jury did not act with studied perversity so as to answer adversely to the appellant without real consideration. The jury's determinations were not perverse in the sense that the jury disregarded the judge's directions, a sense spoken of in Hocking v Bell (1945) 71 CLR 430 at 499 by Dixon J. It remains open for consideration whether each adverse answer could have a reasonable basis. 28 A line of decisions commencing with Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 and reviewed in Gacic v John Fairfax Publications Pty Ltd by Beazley JA at [50]-[70] supports the view that the Court of Appeal may itself enter a verdict where an imputation is plainly defamatory, in so doing setting aside a determination under s.7A. The High Court of Australia granted special leave to appeal against this Court's decision in Gacic v John Fairfax Publications Pty Ltd on 8 December 2006. It might be thought that the reasoning which supports disposition by the Court of Appeal of the question whether matter was defamatory also supports disposition by the Court of the question whether an imputation was plainly conveyed; but this is not authoritatively supported by a decision in which the Court of Appeal has done so; see Harvey v John Fairfax Publications Pty Ltd. Senior Counsel for the appellant did not ask the Court of Appeal itself to enter a verdict, but pursued the alternative ground of appeal which claimed a new trial.
29 Senior Counsel for the appellant referred to a passage in the judgment of Else-Mitchell J in Carr Shipping and Trading Co Pty Ltd v Sydney City Council (1963) 80 WN (NSW) 397 at 404 where among other things Else-Mitchell J said: But it is not a ground for setting aside a verdict that the jury have reached a conclusion which this court regards as illogical, unsatisfactory or different from that which it would itself have reached.
30 Senior counsel pointed particularly to the reference to "a conclusion which this Court regards as illogical". Justice Else-Mitchell was dealing with the practice and statute law of 1963, including s.160 of the Common Law Procedure Act 1899 which stated the powers of the Supreme Court in Banco to set aside a verdict in terms of the practice and using the language of that time; both now obsolete and not reproduced in the language of s.102 of the Supreme Court Act. With respect, I do not think that Else-Mitchell J's reference to a conclusion which the court regards as illogical was happily expressed, or was intended to be a complete exposition of the part played by logic in review of jury verdicts. It would usually be the case that if a verdict was not available in logic it was unreasonable and should be set aside; but logic is not always of much use in the interpretative exercise required for a jury determination under s.7A relating to whether an imputation is conveyed and whether it is defamatory. Whether an imputation is conveyed by a publication is essentially a matter of impression - see Mahommed v Channel Seven Sydney Pty Ltd at [23] and [24] (McColl JA) - and logic does not govern decision. In my view this passage from Carr Shipping and Trading Co Pty Ltd v Sydney City Council does not have a place in the case law relevant to appellate control over determinations under s.7A. There are more recent expositions, of higher authority and better considered. 31 Two witnesses gave evidence dealing with the identification of the appellant in the first matter complained of. Mr R. J. Sinclair gave evidence that he purchased the Daily Telegraph with the article printed on 20 June 2005 and read it. His evidence to the effect that he identified the article as referring to the appellant was (CB 22): A. That was, well, Acclaim Education or, as we call it, Rachel's place. One of my children was going there. 32 He said he identified the article as referring to someone in particular "Mainly due to the photograph" and he understood the article to refer to "Rachel, the owner of the business" whose full name was "Rachel Gardener, I think". 33 His evidence continued (CB 22): Q. What made you think that this article referred to Rachel Gardener? A. Well, there was a couple of things. It mentioned the fact that the BMW-driving teacher, and then I looked at the photo and the streetscape is how that street appears with the car in question and the paperbark trees in the street and the, like, picket fence.
Q. What sort of motor vehicle does Rachel Gardener drive, to your knowledge? A. It was a black BMW.
Q. How do you come to identify the scene in - you are referring here to the photograph on what is page 4 where it says, "Out of school…a boy enters the home of the teacher/tutor". How do you identify that scene? When have you seen that scene before? A. It is the way the street appears where the tutoring place is.
Q. When have you been in that street? A. Just to drop off and pick up my son while he is attending the tutoring.
Q. So how long did your son attend tutoring at those premises? A. Approximately 18 months, I think.
Q. How often would you drop him off there? A. Once a week. Not every week, but almost once a week. 34 Cross-examination established to the effect (CB 28) that Mr Sinclair had seen the rear of other BMW cars which answered the description of what was seen in the photograph, that this is nothing unusual or uncommon and he has seen the BMW logo a lot of times before. Cross-examination also established (CB 29) that Mr Sinclair had seen a great many picket fences and a great many paperbark trees. 35 Cross-examination on these subjects concluded (CB 29): Q. I mean look at this photograph, that is a suburban scene, can I suggest to you, that could be any number of hundreds or thousands of places in Sydney? A. It could be. 36 Mr Sinclair when later recalled said to the effect that he saw the later two articles on the days they were published. 37 Mr G. J. Williamson gave evidence to the effect that he met the appellant Rachel Gardener in the middle of 2005 when he enrolled his son at the college. He saw her take classes. He paid fees, sometimes by cash, sometimes by cheque made out to Acclaim College which he gave to the appellant most of the time, or to staff. His evidence also showed that on the date of publication of the article, after another person had brought the article to his attention, he bought a copy of the Daily Telegraph, glanced through the article including page 4, identified the college and associated it with the appellant Rachel Gardener. His evidence was (CB 33): Q. Can you tell us what made you associate this article with Rachel Gardener? A. Just where the photo was, the BMW in the driveway, the streetscape. I parked out there several times over a few months. Q. So when had you parked outside the college? A. Every Saturday afternoon for several months. Q. How long would you be parked on each occasion? A. About an hour. Q. So I understand you to be saying, do I, that you parked there, you stayed there for an hour, or you went away? A. Yes, I went inside the college sometimes and sometimes went back out to the car while the tutoring was on. Q. So you waited? A. Yes. Q. And this had gone on for some months? A. Yes. Q. Looking at that photograph, do you recognise that scene? Do you say you recognise that scene as being the front of Acclaim College? OBJECTION. LEADING. QUESTION WITHDRAWN. Q. What does that photograph depict, do you think, Mr Williamson? A. With the article I assumed that it was Acclaim College because of the fence and her car was always parked in the driveway, the BMW. I assume it is her car. I'm not sure. Q. You cannot be sure it is her car? A. No, but it was always there, yes. Q. And did you recognise the boy in the picture? A. No. Q. Did you recognise the tree in the picture? A. There's several trees in the street, yes, but yes, I stood there many a time and had a cigarette while I was waiting, yes. 38 Mr. Williamson was cross-examined on how often he had attended at the college and on the basis of his assuming that the BMW car in the photograph was the appellant's car, and also said in cross-examination (CB 35): Q. I think you said that it suggested the college to you because of the streetscape, is that right? A. Yes. Q. You are not really able to say, to really be any more explicit than that? A. No. It just looked familiar. Q. Well, can I just suggest this to you, that it is really a scene that it could be just about anywhere in suburban Sydney, couldn't it, paperbark tree, green picket fence? A. I am not disputing that, no. Q. You are not saying it is the only paperbark tree outside a green picket fence in Sydney, are you? A. No, I am not. Q. It is possible, isn't it, that in fact the scene you see in that photograph could be at some other address and not the address of the Acclaim College where you took your son? A. It is possible. 39 It is altogether incontrovertible that the appellant was the person referred to in the first article; this is incontrovertible because the respondent published the second article the following day, referred back to the first article expressly and proclaimed the identification with references to the appellant's name and with her photograph. The form of Questions 1 and 2 left it open to the jury to base an affirmative answer to Question 1 upon a finding that the appellant was identified by Mr Sinclair, or by Mr Williamson, or by both of them; or possibly by neither of them but by some unidentified person or persons whose existence is established by inference; or by all these processes. These lines of reasoning were left to the jury in the trial judge's directions, and the jury was not called on by the terms of the Questions to indicate the particular line or lines of reasoning which they adopted. Clearly in answering Question 1 they adopted some one or more of these possible lines of reasoning. 40 The terms of Question 1 invoke the burden which lay on the appellant of proving that readers of the first article identified her as the person referred to; in strictness, the tort is proved if only one person did so, and the terms of Question 1 reflect the strict position. Two witnesses called at the trial gave oral evidence directed to establishing that each of them knew the appellant and identified her as the person referred to in the first article; and dealt, in evidence and in cross-examination, with the facts and circumstances which relate to this identification. The cross-examination of these witnesses did not extend to suggesting that they have not in fact made the identification which they claimed to have made. (They did not say that they identified the appellant as the person spoken of in the first article by reference back from the second article, in which she was clearly identified: Senior Counsel for the respondent spoke of the absence of such evidence as if it were a material omission and a matter of complaint, but there is no substance in this.) When addressing Question 2 it was for the jury to decide, in the case of each of these witnesses, whether the facts and circumstances that the witness referred to were such that it was reasonable for the witness to make the identification. The evidence relevant to decision on Question 2 was not limited to the facts and circumstances which each witnesses mentioned. Decision on whether their identifications were reasonable was also affected by and in my view on any reasonable approach was overwhelmingly dominated by the incontrovertible fact that identification of the appellant as the person referred to was correct. 41 Another line of reasoning put before the jury in relation to Questions 1 and 2 related to inference based on the probabilities about whether the appellant was identified by at least one person who read the first article, and whether that identification was reasonable, and on inference from the notorious fact that the Daily Telegraph is a daily newspaper of very wide circulation, particularly in the suburbs of Sydney including Homebush. Circumstances furnished a strong basis on which the jury could infer that some person or more than one existed, who read the Daily Telegraph of 20 June 2005, and knew sufficient circumstances relating to the appellant, the Acclaim College, tutoring HSC students and events in Homebush to make the identification. The material upon which the inference could be made is very strong; but it was for the jury to decide whether they should make it. The grounds available for such a finding are even stronger when it is accepted that an identification by a reader is sufficient if the reader made it on reading the second article, recollecting the first article and understanding that the appellant was the person referred to in the first article. When regard is paid to the nature of the appellant's activity in conducting the coaching college, and to the circulation of the newspaper, the probability that one or more persons saw the first article and identified her from knowledge of facts and circumstances relating to her, and also the probability that one or more persons saw the first article and came to identify her with knowledge based on seeing the identification of her in the second article the following day, perhaps with other special knowledge, are each extremely high. 42 It cannot be known which line of reasoning led the jury to answer Question 1 affirmatively. They may have decided that one or other or both of the witnesses actually had made the identification of which each witness spoke; they may have rejected one or both of them but based their affirmative answer on more general reasoning about the probabilities of the appellant's having been identified by some of the Daily Telegraph's readership; they may have accepted all available supporting lines. Questions 1 and 2, which were adopted early in the hearing, are not expressed in terms which would expose which line of reasoning the jury adopted; and it was not necessary to frame the question in more detail than it was framed. Because of the form of Questions 1 and 2 it is for the appellant to show on appeal that the jury's negative answer to Question 2 was not reasonably available in any of the lines of reasoning by which they may have arrived at a positive answer to Question 1. 43 Although there was some discussion during argument of the appeal about whether it was appropriate to divide Questions 1 and 2 or to roll up their subject matter in one question, the adoption of separate questions is not the subject of any ground of appeal. The reason for asking Question 2 as well as Question 1, and for treating them as two questions dealing with different subjects, rather than rolling them up in one question to the jury, can be understood from the masterly and influential judgment of Samuels JA in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348. Justice Samuels at 371 referred to authorities which showed that identification, publication of and concerning the plaintiff, was an essential element in the cause of action, and referred particularly to David Syme & Co. v. Canavan (1918) 25 CLR 234 at 238 per Isaacs J: "The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?" Steele related to an allegedly defamatory newspaper article which did not name or describe any person. Literally the first article falls within Isaacs J's reference to whether words that do not specifically name the plaintiff refer to him or not. 44 Justice Samuels referred to Morgan v Odhams Press Ltd [1971] 1 WLR 1239 and other authority which showed that the reasoning which produces an identification in the mind of the reader does not need to be clear or precise; it can be well short of intractable. Justice Samuels said (372F): Their Lordships in Morgan's case ([1971] 1 W.L.R. 1239;[1971] 2 All E.R. 1156) then went on to indicate the manner in which the ordinary sensible reader must be supposed to read the material from which the identification of a plaintiff may be inferred in such cases as this. First, he may be permitted to draw "rather far-fetched inferences" (per Lord Reid [1971] 1 W.L.R. 1239, at p. 1244; [1971] 2 All E.R. 1156, at p. 1162 citing Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 33 and Hough v. London Express Newspapers Ltd. [1940] 2 K.B. 507) and is prone to engage in "a certain amount of loose thinking" (per Lord Reid [1971] 1 W.L.R. 1239, at p. 1245; [1971] 2 All E.R. 1156, at p. 1163); secondly, "the average reader does not read a sensational article with cautious and critical analytical care" (per Lord Morris [1971] 1 W.L.R. 1239, at p. 1254; [1971] 2 All E.R. 1156, at p. 1170), and the article here in question may properly be regarded as "sensational". Thirdly, it must be assumed that he may read the article "casually and not expecting a high degree of accuracy" (per Lord Pearson [1971] 1 W.L.R. 1239, at p. 1270; [1971] 2 All E.R. 1156, at p. 1184). It is evident that what is primarily in issue is the reasonableness of the conclusion to which the reader comes, rather than his possession a priori of the attributes employed to define him. To speak of a reasonable inference drawn by a reasonable reader may be circuitous since the impression made by the article tends to establish the nature of the qualities brought to its scrutiny. If there are no rational grounds for the inference sought to be pressed, then, ex hypothesi, the reader did not, on the relevant occasion, muster the attributes which he was bound to bring to his hypothetical task. But it may be, as Lord Donovan said in his dissenting speech ([1971] 1 W.L.R. 1239, at p. 1264; [1971] 2 All E.R. 1156, at p. 1179) that the requirement that the article must convey a defamatory meaning concerning the plaintiff to a reasonable person possessed of knowledge of the extrinsic facts postulates "… not merely a reasonable person but also a reasonable conclusion". With these principles in mind, it becomes possible to set out with some precision the criteria which must be satisfied if the plaintiff is to get to the jury. First, there must be evidence capable of satisfying the jury that persons with particular knowledge of the plaintiff believed that the article referred to her. 45 Justice Samuels went on to refer to case law dealing with the manner of proof of that fact, which can be proved either by showing that there are people with knowledge of special facts or by calling persons to show their knowledge and their understanding of the publication. Justice Samuels went on at 374: Secondly, there must be evidence capable of satisfying the jury that the witnesses did possess the particular knowledge of the plaintiff which enabled them to make the identification they asserted: and, thirdly, that those who did identify the plaintiff were ordinary sensible readers. I have already expressed some doubt whether this last matter constitutes an independent ingredient: but I will assume that it does.
Finally, there must be evidence capable of satisfying the jury that those with particular knowledge of the plaintiff who, as ordinary sensible readers read the article with the degree of latitude permitted, and who honestly identified the plaintiff as the person referred to, could reasonably come to that conclusion. 46 Any purpose for establishing that the identification was reasonable which can be identified from the reasoning of Samuels JA is well satisfied if it is shown that the identification was correct. Justice Samuels' observations are of course directed to the facts then before the Court of Appeal, in which the newspaper article did not name the plaintiff and any identification of the plaintiff depended only on knowledge of circumstances relevant to him, and on inference from that knowledge and from the contents of the article. Justice Samuels did not address circumstances like the present where there is evidence, outside the terms of the first article namely in the second article in which the respondent establishes and indeed proclaims the identification of the person referred to as the appellant. Nor did Isaacs J in David Syme v Canavan. It was not disputed that the identification proclaimed in the second article can come under consideration in deciding whether some member or members of the unascertained readership probably identified the appellant as the person referred to in the first article; that it is open to inference that they did so with the aid of seeing the second article the following day or later and came to the identifying conclusion on that basis. That line of reasoning is not available for the witnesses who gave oral evidence; they gave a different account of their process of identification. 47 There is in my opinion no reason in principle why, when deciding the question whether the identification made by the two witnesses was reasonable, the incontrovertible fact that the identification was correct is not relevant. That it was correct is so predominant a matter in assessing reasonableness that I find it difficult to understand why it was thought necessary to ask the jury to answer Question 2. For a schedule or check list of the elements of the cause of action, Question 2 is a relevant matter; on the facts of the present litigation I do not see how it is possible to infuse reality into the issue of reasonableness of identification of the appellant as the person referred to in the first article. The respondent itself proclaimed that she was, and this vindicates the reasonableness of the thinking of any person who had earlier come to the same conclusion on the basis of what was in the first article together with that person's special knowledge. 48 Senior Counsel for the respondent observed that an identification can objectively be correct but it may be entirely unreasonable. This expresses a logical possibility; it is not appropriately related to the circumstances of the identification by the two witnesses who gave evidence, or of the group of persons identification by whom could be the subject of inference. None of these persons is in any way in the situation of having nothing at all to go on but having made a correct guess by accident.
49 Senior counsel for the respondent submitted that the jury might well have thought that it was highly improbable that there was a reader of both the first article and the second article who would remember back to where a particular person was referred to or the particular College was referred to; that person was not going to think "… I also remember that particular teacher was referred to in a particular college and this must be that person." Counsel's exploration of the way in which this issue could possibly be considered served, in my judgment, to enforce the simple unavailability to reasonable minds of the line of reasoning for which counsel so contended. 50 The appellant's complaint is to the effect that the jury as reasonable people could not have failed to find for the appellant on Question 2, in the circumstances of the evidence before them and particularly having regard to the answer which they had found to Question 1. Whether the evidence of Mr Sinclair, and also the evidence of Mr Williamson was to be accepted was for the jury to determine. Their evidence as recorded shows, in my opinion, a very strong case in support of identification by each witness of the appellant as the person referred to in the first matter complained of and on principally by reference to their evidence of recognition of the scene in the photograph, and supported by the evidence of knowledge of acts typical of the appellant and consistent with what the first article said. In my opinion it was within the province of the jury to decide if the evidence of either or both of them should or should not be relied on; however if the jury relied on the evidence of either or both of them to find an answer to Question 1 that the appellant was identified by at least one person who read the first matter complained of, it would, in my opinion, be irrational and perverse not to find also that the identification was reasonable. On any reasonable approach to the articles the second article establishes that the appellant indeed was the person referred to in the first article. In the presence of this incontrovertible fact there is no room, in the absence of irrationality or perversity, for reasonable people to reach the conclusion that identification of the appellant was not reasonable. If another line of reasoning is adopted, the inference that at least one person who read the first matter complained of identified the plaintiff as the person referred to in the first matter, with knowledge of circumstances referred to in the first article or with the aid of the plain information published the following day in the second article, is one which a reasonable person charged with finding facts could not resist. The Daily Telegraph is published daily; it is notorious that many thousands of copies are sold daily in Sydney and elsewhere; in all rationality, the conclusion that no person at all identified the appellant as the person referred to in the first matter when information in the second matter came to that person's knowledge cannot be reached on a reasonable basis. 51 In my opinion the answer given by the jury to Question 2 should be set aside and a new trial should be ordered on that question, and on Questions 3 and 4 which were not answered. 52 Imputations in the second article. The imputation in Question 5(a) is not directly borne out by any of the passages which I have quoted from the second article, or by any other passage. No statement to the literal effect that the appellant falsified work for HSC students there appears. There are close approaches to such a statement in para 5 - "… the teacher at the centre of the cash-for-coursework scam …", in para 8 which refers to claims "… that she and other Acclaim staff doctored worked for students to help them attain higher marks"; para 37 "The teacher behind the cash-for-coursework scandal …" para 40 " Ms Gardener last night denied helping students cheat on their HSCs", the caption to the photograph "accused HSC cheat" and other references. In my opinion the view that the second article conveyed the imputation in Question 5(a) was reasonably available, indeed the allegation was strongly supported by a number of references in the article to cheating. However there is no plain statement that the appellant falsified work for HSC students; that is, that she did so herself. Although a determination the other way could have caused no surprise, it is not the case, in my opinion, that reasonable people deciding the facts could not come to the conclusion to which the jury came. 53 There are a number of passages which could be read as supporting the imputation alleged in Question 5(b); yet there is no direct and clear statement to the effect that the appellant herself obtained payments up to $5,000 per subject to perform coursework forming part of students' HSC assessment; or that she acted corruptly in doing so, or that she intended that students would pass off her work as the students' own work. The finding that that imputation was made is in my opinion available, and is supported, for example, by the headlines "CHEAT SHEET" and "… HSC cash-for-uni scandal", by reference to the appellant as "the teacher at the centre of the cash-for-coursework scam" to "… a Sydney tutoring college, which took up to $5000 per subject to do HSC course work"; to the appellant's denying "… claims from a former employee that she and other Acclaim staff doctored work for students to help them attain higher marks" and other closely similar references to the appellant. Not all passages in the second article point to the appellant, or point solely to the appellant; she is "at the centre" and there are references to "other Acclaim staff"; she is said to be " behind the cash for course work scam". Her denial is reported, and at a number of places references to a cheat or to cheating do not point directly to her. Overall the strong support which the second article gives to a finding that this imputation was conveyed is no more than strong. Again a favourable finding would have caused no surprise, but it was not in my opinion wrong for reasonable people, charged by law with the task of determining the issue, not to conclude that imputation 5(b) as alleged is conveyed. 54 In my opinion the imputation in Question 5(c) is, on any reasonable approach to the second article, an imputation which the second article makes. It is indeed the whole subject of the second article; if the article does not convey the imputation that the appellant operated a tutoring business which engaged in fraud, no object or meaning for the article can be imagined. The contentions of senior counsel for the respondent included the contention that it was open to the jury to accept that the fraudsters were the students who submitted the course work and not the tutors of the College. This contention could not be upheld on any rational view of the terms of the second article. That the tutoring business was engaged in fraud is supported by the headings and references to the appellant and to Acclaim Education which I have earlier set out, and many references throughout. To take two high points (and there are others) in para 5 of the second article the appellant is "… the teacher at the centre of the cash-for-coursework scam …" and in para 37 she is "The teacher behind the cash-for-coursework scandal …". That the appellant operated the tutoring business, and that the tutoring business engaged in fraud, is the whole burden of the article; except only and importantly for its references to her being sentenced to imprisonment - time served - many years ago in France in relation to gang offences against banks, the subject of imputation 5(d) which the jury found was conveyed. 55 In the presence of this material a decision that the article did not convey imputation 5(c) "The plaintiff operated a tutoring business that engaged in fraud" is beyond the range of decisions reasonably available. 56 Some other passages in the second article which clearly stated the same effect, including para 27 and para 63 might, at least in concept, be thought to have their force blunted by their being quotations or attributed statements; this led to debate about the effects of observations by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 283-284 which concluded: "For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it." Senior counsel for the appellant made claims which in my view were unduly high about the effect of this passage which, in my understanding, and notwithstanding the forceful terms of the last sentence, leaves it to the jury to make the further interpretative step whether the person publishing the material complained of is endorsing the matter attributed to another person. I do not think that further examination of this is required for decision, as the contents of the second article established imputation 5(c) whether or not the attributed statements are under consideration. 57 In my opinion the Court of Appeal should set aside the jury's finding on Question 5(c) and order a new trial on that question, and on Question 6(c) which relates to whether that imputation was defamatory. 58 Imputations in the third article. With respect to Question 7(a) I am of a similar view to that I have expressed for Question 5(c). References to cheating in contexts referring to the appellant are scattered throughout the third article; and the third article is all about her, as the prominent photograph shows. Although it cannot be said that the imputation in Question 7(a) is entirely literally a quote from the third article, it is in my opinion so clearly conveyed by the terms of the article that the jury's finding is beyond the range of findings reasonably available. 59 Although as my judgment shows I am of the view that the jury was in error and acted unreasonably in answering some but not all of the Questions put to them, I do not regard it as appropriate to set aside all their answers and direct a general new trial on all issues. In my opinion new trial is required only on the particular questions on which my conclusions are adverse to the jury's answers, that is Question 2 (and consequently Questions 3 and 4, which depend on it), Question 5(c) (and Question 6(c)) and Question 7(a) (and Question 8(a)). 60 In my opinion the Court of Appeal should order:
(2) Set aside the determinations of the Jury on Questions 2, 5(c) and 7 and order a new trial of Questions 2, 3, 4, 5(c), 6(c), 7 and 8.
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(1991) 173 CLR 33
(1918) 25 CLR 234
(1945) 71 CLR 430
(2003) 77 ALJR 1657