GORMAN v BARBER & ORS

Court of Appeal (NSW)|2004-09-08|Before: Mason P, Beazley JA, Santow JA, Grove J

CITATION : GORMAN v BARBER & ORS [2004] NSWCA 402 HEARING DATE(S) : 8 September 2004 JUDGMENT DATE : 8 November 2004

JUDGMENT OF : Mason P at 1; Beazley JA at 68; Santow JA at 69 DECISION : Appeal allowed.

CATCHWORDS : Defamation - whether imputation defamatory - imputation that specialist medical practitioner "provides treatment to his patients which is useless, dangerous and causes them harm" - powers of Court of Appeal - Supreme Court Act s108(3) allows Court of Appeal to enter verdict on s7A issue in plaintiff's favour in appropriate case. (D) LEGISLATION CITED : Defamation Act 1974, s7A Supreme Court Act 1970, ss86(1), 108(3) Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Buck v Jones [2002] NSWCA 8 Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 Cinevest Limited v Yirandi Productions Limited [2001] NSWCA 68, Aust Tort Reports 81-610 Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 CASES CITED : Hocking v Bell (1945) 71 CLR 430 at 441-2 (High Court), (1947) 75 CLR 125 (Privy Council) John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Murlarczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46 Pratten v Labour Daily Ltd [1926] VLR 115 Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87 Shergold v Tanner (2002) 209 CLR 126 Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan (2001) 53 NSWLR 343 PARTIES : Richard Francis GORMAN Jane BARBER & Ors FILE NUMBER(S) : CA 40507/03 COUNSEL : Appellant: In Person Respondent: P Gray SC/ ATS Dawson SOLICITORS : Appellant: N/A Respondent: Minter Ellison

LOWER COURT Supreme Court JURISDICTION : LOWER COURT CLD 20706/01 FILE NUMBER(S) : LOWER COURT Grove J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40507/03 CLD 20706/01

MASON P BEAZLEY JA SANTOW JA

Australian Doctor is a magazine published regularly and sent free to fulltime general practitioners in private practice and certain prescribing and staff specialists. It is available to other readers on subscription. The appellant is a registered medical practitioner and a specialist ophthalmologist.

An article about the appellant in Australian Doctor was found by a jury to contain the imputation that the appellant "provides treatment to his patients which is useless, dangerous and causes them harm". The jury nevertheless held that such an imputation was not defamatory.

HELD (per Mason P, Beazley JA and Santow JA agreeing):

The verdict that the imputation was not defamatory was not one that a reasonable jury could reach (John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 applied). • Pleaded imputations must be understood in the context of the matter complained of ( Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 applied)

• Defamation extends to disparagement of reputation in trade, business profession or office, including suggestions of incompetence or even misguided zeal ( Pratten v Labour Daily Limited [1926] VLR 115 and Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 applied) 2. The Court of Appeal is not obliged to order a new trial when it sets aside a verdict under s7A of the Defamation Act 1974. Section 108(3) of the Supreme Court Act permits the Court, in a proper case, to direct a verdict (in this case that the imputation was defamatory) and to give judgment accordingly (Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 discussed and applied; Supreme Court Act s63 applied).

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40507/03 CLD 20706/01

MASON P BEAZLEY JA SANTOW JA

Richard Francis GORMAN v Jane BARBER & Ors JUDGMENT

1 MASON P: The appellant is a registered medical practitioner and a specialist ophthalmologist. 2 The respondents were involved in the publication of an article that prompted the appellant to sue for damages in defamation in the Common Law Division. The first respondent was the author of the article, the second respondent was the publisher of Australian Doctor, the magazine in which the article appeared, and the third respondent was the editor of the magazine when the article was published. Australian Doctor is a magazine published 48 times a year and sent free to full-time general practitioners in private practice and certain prescribing and staff specialists. It is available to other readers on subscription. 3 The matter complained of was as follows: LAW IN PRACTICE Guilty till treatment proven effective Courts are reluctant to accept that unproven treatments will benefit patients. JANE BARBER examines how Australian courts have reacted when confronted with unconventional treatments. The growth of evidence-based medicine has ensured doctors use treatments that are known to be safe and appropriate for patients. Unconventional and alternative methods are criticised as unworthy because they are untested. What makes the following two cases controversial is that there was no scientific proof the treatments offered would benefit patients. Both practitioners - a doctor and a dentist - have appeared before disciplinary tribunals and courts. The first case involves litigation against ophthalmologist Dr Richard Gorman. For many years Dr Gorman has advocated that spinal manipulation assists vision. He claims this unproven treatment helps glaucoma. In 1988, he appeared before the NSW Medical Tribunal to attest that spinal manipulation could assist tunnel vision. Although held not guilty of professional misconduct, conditions were placed on his registration. Further litigation started with complaints to the NSW Health Care Complaints Commission from representatives of two patients who had undergone spinal manipulation under general anaesthetic by Dr Gorman. The first patient did not benefit from the treatment and experienced further glaucomatous damage. The second died while undergoing spinal manipulation under general anaesthetic. The HCCC alleged Dr Gorman was guilty of professional misconduct because he demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine. Dr Gorman objected to the HCCC's handling of his case, asserting that the commission had trained lawyers arguing its case whereas he had been denied procedural fairness because of his inexperience with legal claims. The NSW Supreme Court found in favour of Dr Gorman in September 1998. Pushing for his theories to be taught in universities, Dr Gorman started proceedings against the University of Sydney and others. The Supreme Court threw this claim out in 1999, ruling Dr Gorman had disclosed no reasonable cause of action.(1) In the latest round of litigation, (2) the NSW Supreme Court held that while there was a technical breach of the NSW Medical Practice Act, it was no more than an "irregularity" and not subject to complaint. The second case involved a dentist, Dr Bartrum who thought body parts were related to various teeth. He believed jaw surgery benefited women with gynaecological problems. A patient had consulted Dr Bartrum for five years. She had no apparent dental problems but told the dentist some abnormal cells were detected after a Pap smear. Dr Bartrum informed the patient of his apparent success in performing jaw surgery to assist gynaecological conditions. After a test using a "dermatron" machine, he advised the patient she had a gum infection and required urgent surgery. Post-operatively, the patient's face became swollen and she experienced considerable pain. The patient started proceedings in the SA District Court.(3) The dentist said he relied on the dermatron machine to support his view that the patient needed jaw surgery to treat her gynaecological problems. The first issue for the court to determine was whether the dermatron machine could assist in the diagnosis of dental conditions. The second was whether there could be an interrelationship between dental health and gynaecological health. The court found against the dentist on both issues. After a hearing of the Dental Professional Conduct Tribunal (SA), Dr Bartrum's name was removed from the register and he was suspended from practising for six months. He took a different approach at the tribunal hearing and denied using the dermatron machine as a diagnostic instrument but merely as an extra test. The Tribunal found the dentist's evidence unreliable. The dentist applied to the SA Supreme Court to introduce fresh evidence. He had wanted to lead the evidence about the dermatron machine before the tribunal as he had done in the District Court, but his insurer would not indemnify his costs before the tribunal if he persisted with this defence. The dentist accepted that condition as his insurer was only prepared to base his defence on the fact the dental elements of the case were in the best interests of the patient. He then asked the court not to hear any evidence until it had determined whether he was a victim of a miscarriage of justice by reason of inadequate advice. After the court heard further evidence, Dr Bartum applied to make a late amendment to include details about his use of the dermatron machine. The court refused the application and dismissed the case.(4) Ms Barber is a Sydney-based lawyer. 1. Gorman v University of Sydney & Ors [1999] NSWSC 240. 2. Gorman v Health Care Complaints Commission [2000] NSWSC 1228. 3. Druce v Bartrum, No DCCIV-94-122, 6 October 1995. 4. Bartrum v Dental Board SA, No S6740, 1 July 1998. 4 The appellant pleaded that the matter complained of conveyed five defamatory imputations about himself:

(a) By unsafely carrying out spinal manipulation on a patient, the plaintiff bore responsibility for the patient's death.

(b) The plaintiff had so irresponsibly managed his patient that the Health Care Complaints Commission has accused him of bringing about the death of one of his patients.

(c) The plaintiff is guilty of professional misconduct in doing a spinal manipulation on his patient which led to the patient's death.

(d) The plaintiff is guilty of professional misconduct in doing a spinal manipulation on his patient which caused the patient further glaucomatous damage.

(e) The plaintiff provides treatment to his patients which is useless, dangerous and causes them harm. 5 A trial pursuant to s7A(3) of the Defamation Act 1974 was conducted before Grove J and a jury. The jury rejected imputations (a) - (d). Imputation (e) was found established, but such imputation was held not to have defamed the appellant. 6 In light of these findings Grove J directed entry of judgment in the action for the defendant and ordered the plaintiff to pay the defendants' costs. 7 The appellant appeals by leave, arguing that the jury's finding that imputation (e) was not defamatory was one that no reasonable jury could reach in the circumstances. 8 Initially, the appellant (who was self-represented at this stage of the proceedings) sought a new trial in relation to the finding that imputation (e) was not defamatory. At the hearing, he sought what was effectively a finding that imputation (e) was defamatory. The Court drew the attention of both parties to s108(3) of the Supreme Court Act 1970 and to the decision in Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201. The parties were given leave to file supplementary submissions on the remedial issue and have done so. 9 The principles of appellate review in these matters are well established (see John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, (hereafter "Rivkin"), Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107). The jury represents the community and its determination following a trial involving no misdirection or other miscarriage is entitled to the highest respect. McHugh J has stated that appellate restraint is at its greatest in the context of a jury decision as to whether or not a particular matter is defamatory (see Rivkin at [18]-[19]. See also Beran at [166]-[174]). 10 Nevertheless, this Court has the duty to set aside a verdict based upon the jury's finding if satisfied it is one that no reasonable jury could reach. In proceeding to such a conclusion the Court may sometimes be able to point to factors indicative of undue haste or compromise, but sometimes there will be nothing apparent other than a verdict that lacks rational explanation in accordance with the principles stated in the cases. 11 During the hearing Santow JA drew attention to the two stages inherently involved in appellate review of the jury decision whether an imputation is defamatory. The first stage involves asking whether an "innocent" meaning could be given to the imputation. The second stage involves asking whether the jury could reasonably have concluded that the meaning arrived at was defamatory/not defamatory (as the case may be). In my respectful view, this is a helpful analysis, reminding the appellate court that both hurdles must be addressed if the context indicates that both may have been in play. 12 At trial the appellant was represented by Mr Lynch of counsel and the respondents were represented by Mr Sackar QC and Mr A Dawson of counsel. Counsel addressed the jury at some length as to whether or not the matter complained of carried the five pleaded imputations, but said little about their defamatory import. 13 As to the defamatory aspect of the imputations, Mr Lynch told the jury: I suggest to you all of those, (a) to (e), are plainly defamatory and you will have little difficulty answering yes to all of them. I would be surprised if my learned friend was going to suggest to you if these meanings were conveyed they are not defamatory. They obviously are. They would lead ordinary, fair minded people to shun and avoid a doctor such as this. No patient would want to have anything to do with a doctor such as that. No person would. His reputation would be damaged. People would think the less of him. It is defamatory to say something of somebody that has any of those impacts.

14 Mr Sackar QC said: I need to address the second question, namely whether if you find any of these imputations arise, whether or not you will find them to be defamatory. Members of the jury, there is very little I wish to say to you in relation to that part of the case. It is open to you entirely to come to the view, if you find any of those imputations arise, that those imputations would lessen or lower the standing of Dr Gorman in the community. I do not wish to say anything which is silly in response to that argument. Mr Lynch has fairly put the propositions to you. I need not say any more about that. The principal reason I am not going to say much about it is, first of all, nothing can be said. In addition to that, we suggest, members of the jury, you won't come to question 2 because each of the meanings, when looked at carefully, particularly when one looks at the crucial and important ingredients of each of these meanings, would represent a strained and a tortured meaning.

15 I accept the respondents' submission that the jury were not bound to find imputation (e) was defamatory as if there had been a formal concession. Nevertheless, Mr Sackar's remarks were as close to capitulation as it is possible to imagine. The way in which issue was joined (or more accurately not joined) in the addresses of counsel on the presently critical matter reinforces my conclusion that the appeal should be upheld. 16 Grove J correctly told the jury that an imputation is defamatory if its publication would cause ordinary decent people in the community to think less of the plaintiff. He also reminded the jury that their task in that regard was: … perhaps easier if you got that far because Mr Sackar very fairly said he did not want to make any specific submissions to you about that, but it is a matter entirely for you because parliament has said it is your judgment that is required in respect of that, not mine, and certainly not Mr Lynch or Mr Sackar….

17 Mr Gray SC, senior counsel for the respondents had more to say in this Court than his predecessor at trial about the capacity of the jury not to be satisfied that imputation (e) was defamatory. He reminded the Court that pleaded imputations must be understood in the context of the whole matter complained of (Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165). 18 Mr Gray pointed firstly to the structure of the article, submitting that it contrasted the doctor, Dr Gorman, with the dentist, Dr Bartrum. The latter was dealt with sardonically and portrayed in a generally poor light, with emphasis upon the orders for his removal from the register and the unfavourable findings made against him in the various South Australian courts and tribunals. By contrast, the appellant was portrayed as a doughty, unbowed fighter for a just but unorthodox cause who is still practising medicine. The article drew attention to his forensic successes. 19 In my view, this submission does less than justice to a fair reading of the article, which was uniformly critical of the appellant as regards his treatment of patients and which treated his story as supporting the opinions clearly stated in the opening paragraphs. In any event, the submission does not meet the fact that imputation (e) was found established. 20 Secondly, the headline and the opening sentences in the article were said to focus upon unproven and unconventional treatments as distinct from the demerits of the two practitioners propounding them. The submission was that it was open to the jury to construe the word "Guilty" in the heading as a reference to the treatment as distinct from the treating practitioner. I am prepared to accept the last proposition, for the sake of argument. But again it carries no weight in light of the jury's finding that the matter complained of carried imputation (e). 21 Thirdly, the respondent submitted that one can posit unsuccessful medical procedures that could be characterised as useless, dangerous and harmful but without implication of blame-worthiness, moral turpitude or even incompetence. Mr Gray instanced chemotherapy as a cancer treatment, amputation of a gangrenous limb or a heart transplant as medical procedures embarked upon as a last resort which, even if unsuccessful, would merit the same description as contained in the imputation, without suggesting that the reader should think less of the doctor involved. The imputation did not aver that the appellant had provided the treatment knowingly, consciously, deliberately or uncaringly. Rather, the appellant was portrayed as a passionate but misguided proponent of his treatment who (unlike Dr Bartrum, the dentist) is still in practice, despite the attempts of medical "establishment" to stop him. It was further submitted that one could construe imputation (e) in light of the rejected imputations (a)-(d), thereby reinforcing a possible reading of (e) in a non-defamatory sense. 22 These submissions overlap considerably and are best addressed compendiously. They lie at the heart of the respondent's defence of the verdict. 23 The suggested analogy of the doctor resorting to chemotherapy etc in a last-ditch attempt to save the patient is in my view an example of the fallacious argument rejected in cases such as Greek Herald. Such arguments seek to divorce the pleaded imputation from its textual context. The matter complained of in Greek Herald was held by the jury to impute that the plaintiff was a liar. Such an imputation was clearly defamatory in its particular context. It was quite irrelevant that an ethicist could argue that lies of an entirely different character in a different context are morally defensible. Charlwood Industries was a decision to similar effect. 24 Here the gravamen of the imputation, when read in context, is that the appellant (in his misguided zeal) provides treatment which is useless and dangerous and causes his patients harm. The present tense "provides" is significant, as is the aggregation of the three adjectives. Unlike the chemotherapy and other examples hypothesised in the respondents' submission, the appellant's treatment is portrayed as positively harmful as distinct from being an unsuccessful last-ditch attempt to avert the progression of a terminal disease. 25 The matter complained of is an uncomplimentary expose about the ongoing provision of treatment to a class of the appellant's ophthalmology patients. Two examples of ineffective and unconventional treatment are given, each of them contributing to a worse outcome (death, in the second case). The references to litigation involving the appellant take their colour from the heading and early part of the article. None of the references suggest substantive as distinct from limited or technical vindication of the appellant. 26 This material has been found to convey imputation (e) with its cumulative reference to treatment that is useless, dangerous and harmful. One then inquires about a rational explanation for the jury to have concluded that the imputation was not defamatory. I remind myself of the need for appellate restraint and of the various formulations of the standard of appellate review, discussed in Rivkin. Like Callinan J in Rivkin (at [185]), I will apply the principle that the jury's finding may only be overturned if it is one that no reasonable jury could reach. 27 In my view, the verdict cannot be justified according to this standard. The appellant is recognised in the article as a registered practitioner with an ongoing specialist practice in ophthalmology. The matter complained of is published in a magazine widely distributed to fellow practitioners some of whom would be a pool from which patient referrals might be expected. Senior counsel at trial (who correctly confined himself to the imputation in context) was unable to suggest to the jury any argument or reason why the imputation, if found, would not be defamatory. 28 Much was made about the absence of the word "knowingly" in the imputation in the written submissions in this Court 29 In similar vein, comparison was sought to be drawn between the four rejected imputations and the one that was accepted, on the basis that the former conveyed clear overtones of deliberate and blameworthy conduct. 30 I doubt that it is open to the respondent to have the imputation construed as if it excluded "knowing" conduct. The pattern of treatment adverted to could not have been anything but "knowing" in the sense of being intentional, regardless of how unorthodox or misguided it might be. But I do accept that the imputation does not necessarily carry an assertion that the appellant knew that his treatment was useless, dangerous and harmful (or even that he knew that it had any one of those effects). 31 I also doubt that it was open to the jury or that it is open to this Court to discern the defamatory impact of one imputation by reference to others that were considered and rejected by the jury. No authority was cited in support of such an approach. Each imputation put to the jury differed in substance from the others (cf Supreme Court Rules, Pt 67 r11(3)). 32 But these doubts do not matter. This imputation is directed at a practising doctor. Defamation is not limited to aspersions on an individual's private character. It also embraces disparagements of reputation in trade, business, profession or office, including those suggesting incompetence or even misguided zeal (Pratten v Labour Daily Ltd [1926] VLR 115). 33 In Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 Lord Pearson said (at 1104, citations omitted): I doubt whether the analogy sought to be drawn in the present case between a trader's goods and a professional man's technique is sound. Goods are impersonal and transient. A professional man's technique is at least relatively permanent, and it belongs to him; it may be considered to be an essential part of his professional activity and of him as a professional man. In the case of a dentist it may be said: if he uses a bad technique, he is a bad dentist and a person needing dental treatment should not go to him. In any case, words may be defamatory of a trader or business man or professional man, although they do not impute any moral fault or defect of personal character. They be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity…. It can be suggested that the article complained of in the present case impliedly imputes to the plaintiff lack of judgment and lack of efficiency in the conduct of his professional activity, inasmuch as he has adopted and practised and recommended a method of anaesthetising patients which (as the article says) is dangerous for the patients and may impede good dentistry.

34 To my mind it is self-evidently defamatory for a medical journal to accuse a medical specialist of serious and harmful lack of judgment, as this publication does in the relevant imputation. The article could not fail to have affected the appellant's reputation as a specialist, deterring doctors from referring patients for treatment and lowering the appellant in the estimation of the readership of Australian Doctor. The article must also have embarrassed the appellant in front of friends and colleagues: the contrary was not suggested. 35 The truth or falsity of the imputation does not arise at this stage of the proceedings. 36 I can detect no rational basis upon which the jury's finding can be sustained. I am satisfied that the verdict was one that no reasonable jury could have reached. I would therefore set aside the verdict and the ensuing judgment for the defendant. 37 There was no cross-appeal suggesting that the jury had erred in finding that imputation (e) was established. The respondents nevertheless urge the Court to order a new trial on both arms of the s7A(3) inquiry committed to the jury. I would reject this invitation. Apart from the unreasonable finding about the non-defamatory meaning of the imputation, there is nothing that casts any doubt on the finding that imputation (e) was carried. In my view it clearly was. Unless, therefore a new trial on both issues is mandated by general principle applicable to these matters, I can see no basis for impugning the finding that imputation (e) was established. Needless to say, the respondents did not suggest that there should be a new trial as regards the other rejected imputations. 38 I acknowledge that it is open to the Court of Appeal to remit to a new trial both arms of the s7A(3) issue even if the jury has been found to have acted unreasonably only in the second arm, ie determining whether an established imputation was defamatory. This is the practice that has been applied to date, without the possibility of proceeding otherwise necessarily being adverted to (see the review of the cases in Charlwood Industries at [37]ff). But I am aware of no authority that requires the Court to proceed in this way in every case. Part 51 r 23(3) of the Supreme Court Rules permits the Court to order a new trial as to part. The principles generally governing the exercise of this discretion are discussed in Trustees of the Roman Catholic Church for the Diocese of Sydney v Hogan (2001) 53 NSWLR 343. Their application in various defamation contexts is discussed in Charlwood Industries. There is nothing in the present case to suggest that the jury's flawed conclusion and/or reasoning with respect to the defamatory import of imputation (e) contaminated their findings on the prior issue as to whether that imputation was established. 39 The more significant question raised in this appeal is whether there is any proper basis for ordering a new trial on the defamation issue in light of my conclusion that no reasonable jury could have reached the view that imputation (e) was non-defamatory. This involves consideration of the interaction between s7A of the Defamation Act and s108(3) of the Supreme Court Act. 40 Section 7A of the Defamation Act provides:

7A Functions of judge and jury (1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning. (2) If the court determines that: (a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or (b) the imputation is not reasonably capable of bearing a defamatory meaning, the court is to enter a verdict for the defendant in relation to the imputation pleaded. (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, and (b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. (5) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section. 41 Section 108(3) of the Supreme Court Act provides: 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.

42 In Charlwood Industries, the jury had found that an imputation that the plaintiff lied to its customers was conveyed, but that such an imputation was not defamatory. This Court held that the first finding should have led inevitably in the circumstances to a finding that the imputation was defamatory. The jury's concluding otherwise was perverse. 43 The Court then considered the appropriate remedial response. The judgment was given by Ipp AJA (with whom Sheller and Hodgson JJA agreed). Ipp AJA reviewed the cases in which this Court, having held that a jury had unreasonably refused to find that an imputation was defamatory, considered whether to remit both of the s7A(3) questions or only the question answered "perversely". In some cases, both questions were remitted without any discussion on the particular issue (Murlarczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467, Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46). Ipp AJA observed (at [60]) that the issue was conceded in Buck v Jones [2002] NSWCA 8, where the parties accepted that the Court of Appeal could not substitute a finding in the plaintiff's favour pursuant to s108(3) because a favourable finding would not lead to a verdict in the proceedings. In Cinevest Limited v Yirandi Productions Limited [2001] NSWCA 68, Aust Tort Reports ¶81-610 the Court explained its decision on the basis that the two questions were inextricably intertwined in the particular case. 44 Ipp AJA cited other cases, including Rivkin, which illustrated a similar approach in defamation contexts other than those involving jury verdicts going in different directions in relation to the two branches of the s7A(3) inquiry. 45 Ipp AJA concluded (at [49]) that there were features of Charlwood Industries that indicated that the perversity of the finding that the imputation was not defamatory was the result of a compromise within the jury. Ipp AJA also expressed doubts (at [52], [71]) as to the jury's finding that the relevant imputation existed. For these reasons, the Court ordered that both issues relating to the imputation should be re-tried. 46 Accordingly, the discussion in Charlwood Industries as to this Court's power to direct a verdict on the question whether the imputation was defamatory was obiter. Nevertheless the issue was considered in depth (at [56]-[71]). 47 Ipp AJA held that the source of the Court of Appeal's power to direct a verdict on the question of whether an imputation was defamatory and to give judgment accordingly is s108(3) of the Supreme Court Act (set out above). 48 It was pointed out (at [61]) that the provision makes no distinction between the rights of a plaintiff or of a defendant and that it treats a decision by a jury on a particular issue as a verdict (cf also Supreme Court Act, s102, Defamation Act 1974, s7A(5)). 49 Ipp AJA drew support from statements as to the scope of s108(3)'s predecessor (s7 of the Supreme Court Procedure Act 1900) in Hocking v Bell (1945) 71 CLR 430 at 441-2 (High Court), (1947) 75 CLR 125 at 130-131 (Privy Council). The former passage, in the reasons of Latham CJ that were subsequently approved in the Privy Council, explains that: … if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented."

50 Ipp AJA next observed that, in Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87, Grove J (with whom Meagher JA and Foster AJA agreed) stated (at [153]) that: … the [ Defamation Act ] inhibits any substitution by this Court of answers in lieu of those given by the jury to the series of questions left to them. Reference was made to the general powers of the Court but in my view the requirements of the provisions which I have recited are plain and although in my opinion it was perverse for the jury to answer the questions which I have indicated in the negative, the questions must in due course be answered by a jury and not by a judge or judges.

51 After citing this passage, Ipp AJA held (at [59]) that: Grove J made no reference in his reasons to s 108(3) of the Supreme Court Act . It seems to me, with respect, that in referring to "the general powers of the Court" his Honour was referring to the inherent powers of the Court. In the absence of any specific reference to s 108(3), I do not regard Rivkin as determinative of the issue whether, under s 108(3), the Court of Appeal has power to direct a verdict and give judgment where upon the evidence, the plaintiff or the defendant is, as a matter of law, entitled to a verdict on any issue in the proceedings. 52 Ipp AJA concluded: 67 Applying the principles thus stated, if the imputation is plainly defamatory and, on the relevant material, any other decision would be perverse, it would follow, as a matter of law, that the Court of Appeal may direct a verdict on the issue whether a defamatory meaning arises and give judgment accordingly. 68 Any other result would be quite incongruous. For example, in a case where the Court of Appeal holds that a verdict was perverse by failing to hold that an imputation was defamatory, it would be incongruous to hold a new trial in accordance with law, with all the expense and solemn paraphernalia, when all those involved would know that, should the jury again bring in a verdict that the imputation was not defamatory, that verdict would once more be overturned on the same ground. In such circumstances the practicalities of the situation and common sense cry out for the Court to proceed under s108(3). 53 Finally, in Charlwood Industries, Ipp AJA revisited (at [71]) the appropriateness of applying s108(3) in the particular case. Since it was arguable that the imputation did not arise from the relevant material, the appropriate course in that matter was for the policy under s7A to be followed and for both questions to be re-tried by a jury. 54 The appellant invites the Court to follow and apply the reasoning in Charlwood Industries. 55 The respondents submit that Charlwood Industries was wrongly decided in respect of the interplay between s108(3) of the Supreme Court Act and s7A of the Defamation Act. Section 7A was enacted after s108(3) and should therefore be read as overriding the earlier provision. 56 Furthermore, Ipp AJA is said to have erred when he found support from s7A(5) (which relevantly provides that s86 of the Supreme Court Act 1970 applies subject to the provisions of s7A). Section 86(1) provides that proceedings on a common law claim in which there are issues of fact in a claim in respect of defamation are to be tried with a jury. According to the respondents, the concluding words of s7A(5) of the Defamation Act were inserted to enable the assignment of fact-finding functions to the court (as distinct from a jury) effected by s7A(4) of the Defamation Act to take precedence. 57 So much may readily be accepted. But it does not follow that Ipp AJA erred when he concluded (at [63]) that "the legislature, in enacting s7A, recognised that the Defamation Act would be subject to the provisions of the Supreme Court Act". In any event, it reads far too much into this observation to use it as a springboard for attacking the essential reasoning in Charlwood Industries. Section 7A of the Defamation Act and s86(1) of the Supreme Court Act each deal with the trial of defamation cases and s7A(5) is clearly intended to ensure that s86(1) yields to s7A's allocation of roles between judge and jury. 58 The remedial powers of this Court in the exercise of its appellate functions are another matter altogether. As Ipp AJA pointed out, the language of s108(3) is clearly broad enough to empower this Court to direct an appropriate verdict and judgment if it appears upon the evidence that "the plaintiff or the defendant is, as a matter of law, entitled to a verdict … on any issue … in the proceedings". The Supreme Court Act (s90, heading) and Rules (Pt 51, r2, definition of "verdict") correctly treat a special verdict as a verdict. 59 Indeed, it is the respondents whose reasoning is fallacious in their submission that the enactment of s7A(5) of the Defamation Act "expressly overrode the position under the Supreme Court Act" (Respondents' submissions, par 18). The language of s7A(5) falls well short of what is required to effect an implied repeal of s108(3) of the Supreme Court Act or a qualification upon the jurisdiction conferred on this Court by that provision (cf Shergold v Tanner (2002) 209 CLR 126 at 136[34]-[37]). The two provisions sit easily together. 60 The respondents next submit that Charlwood Industries' criticism of Grove J's remarks in Rivkin was itself erroneous. In my view, this is an unproductive debate. The respondents do not suggest that Grove J's remarks, however interpreted, represent part of the essential reasoning in Rivkin. As the respondents point out, Mr Rivkin did not pursue, either in this Court or the High Court, a claim that the Court of Appeal should substitute its findings for those of the jury pursuant to the Court's power under s108(3) (Respondents' submissions par 23). It is therefore not open to preclude consideration of the correctness of the unambiguous views expressed in Charlwood Industries by suggesting that Rivkin contains a ratio decidendi establishing the opposite proposition. 61 The respondents are on slightly higher ground in adding a rider to Ipp AJA's analysis of Buck v Jones, which correctly observed (at [60]) that the parties in Buck had conceded the absence of this Court's power. The respondents set out the whole of the passage from Buck at [70] in the judgment of Giles JA (with whom Meagher JA and Grove J agreed). The passage, with emphasis added by the respondents, is: It was accepted that the substitution of a finding in Miss Johnson's favour could not be done pursuant to the power in s108(3) of the Supreme Court Act 1970, because a favourable finding would not lead to a verdict in the proceedings. Defences of comment and qualified privilege would remain. It was suggested that power could be found in s23 of the Supreme Court Act, by which the Court has "all jurisdiction which may be necessary for the administration of justice in New South Wales". Even then, there would appear to be the impediment that s7A of the Defamation Act requires that the finding be by a jury . I am relieved from grappling with the question of power, however, because in my view the only course which can be taken is to order a new trial as between Miss Johnson and all three defendants in respect of imputation 6(b).

This suggests that the Court was endorsing the concession. 62 In Charlwood Industries, Ipp AJA effectively rejected the reasoning tentively suggested in the sentence underlined. He pointed out (at [60]) that s108(3) does not confine itself to the Court of Appeal directing an ultimate verdict in the proceedings. Section 108(3) specifically extends to a verdict on any cause of action, issue or claim for relief in the proceedings. I respectfully agree with Ipp AJA's observation and its application to the position of persons like the present appellant. 63 Finally on the question of power, the respondents pointed to the High Court's recent affirmation of the supremacy of the jury's role and the traditional reluctance of appellate courts to interfere with their verdicts in defamation matters (Rivkin esp at [21], [185] and [224]). In my view, nothing in these passages addresses the issue of power under s108(3). The requirement of appellate restraint in the exercise of that power is readily acknowledged. 64 Accordingly, I respectfully adopt the reasoning in Charlwood Industries. I would add two further points in support. First, the reasoning does justice to the generality of the language of s108(3), whereas the respondents' submissions involve finding unexpressed qualifications contradictory of the plain meaning of that provision. Secondly, the reasoning in Charlwood Industries is supported by the general injunction in s63 of the Supreme Court Act which states:

63 Final determination The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided. 65 The respondents then submitted that the power (if it exists) should not be exercised in the present case. They point to the decision in Charlwood Industries not to exercise the power in that case (see par [45] above). They submit that Charlwood Industries, if good law, stands for the proposition that both questions should be remitted for a new trial where it is arguable that the imputation which a jury has unreasonably found to be not defamatory, was not conveyed. I do not dispute such a proposition, but it is not engaged on the present facts. I reject the respondents' submission that it was clearly open to the jury to find that imputation (e) was not conveyed. Unlike the facts in Charlwood Industries, there is nothing in the present case to cast doubt upon the jury's finding that imputation (e) was carried in the matter complained of. In saying this, I do not overlook the respondents' submission that the pleaded imputation required the jury to be satisfied that the matter complained of imputed that the appellant's treatment was useless and dangerous and caused harm. 66 I propose no order in relation to the costs of the proceedings to date in the Common Law Division. In cases where a plaintiff obtains a favourable determination from the jury on both matters committed to the jury by s7A(3) of the Defamation Act, the practice of the court (as I understand it) is that costs are not awarded in the plaintiff's favour at that stage. They are addressed at the conclusion of the proceedings dealing with the matters that are remitted to the court by s7A(4). 67 Accordingly I propose the following orders:

Set aside the verdict for the defendant and consequential costs order entered by Grove J on 21 May 2003. 3. In lieu thereof, direct a verdict with judgment accordingly in the plaintiff's favour on the issue whether imputation (e) was defamatory.

Remit the matter to the Common Law Division to determine the remaining issues in the proceedings.

Respondents to pay appellant's costs of the appeal and have a certificate under the Suitors' Fund Act 1951 if qualified. 68 BEAZLEY JA: I agree with Mason P. 69 SANTOW JA: I agree with Mason P. **********

Last Modified: 11/18/2004 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.

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties

Cases Cited (15)