See Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277 quoted by McHugh J in John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [23].
57 At the heart of the Appellant's argument with respect to the imputations are two straightforward propositions. The first is that the ordinary reader would consider that a person who is fit enough to run competitively cannot suffer from depression so as to be unfit for work. Secondly, a claim to suffer from depression, so as to be unfit for work, in such circumstances, must be knowingly false. This, it is said, is the message which was conveyed to the ordinary reader. The Respondent's contention took issue with the first proposition and asserted that it was well-understood that clinical depression, of a kind which might render someone unfit for work, was not inconsistent with strenuous physical exercise. The ordinary reader would, counsel told the jury, understand that to be a known fact. If counsel were wrong to assert that as a matter of fact, then, the Appellant argues, the trial judge was required to take appropriate steps to correct the misstatement. It was for that reason that the Appellant stressed in argument before this Court the precise terms of counsel's misstatement and the apparent inadequacy of the direction given to the jury in an attempt to correct the error.
58 When the respective approaches of the parties are presented in these stark terms, the fact that the imputations were rejected may, as Handley AJA notes, appear surprising: at [67]. One is then inclined to give more careful consideration to possible errors in the way that the defendant's case was presented to the jury and to view more critically the possible inadequacy of the trial judge's directions.
59 However, and despite the manner in which the respective cases were presented, it is possible that the jury took a more nuanced approach to their task. Thus, the jury could have read the article, not as suggesting that the plaintiff was not depressed, but as suggesting that he was not entitled to a pension even if he were depressed. Thus, although the article suggested that Centrelink might take some convincing as to his entitlement, that was not because his claim to be depressed was false, but because his state of depression did not (and should not) justify the payment of a pension. On that approach, 'clinical depression' might allow for different levels of disability. Some people who were clinically depressed might be unfit for work, others might not.
60 Further, the jury might have rejected the view that the ordinary reader would infer that the claim was dishonest, merely because, as the article suggested, a pension entitlement should be rejected. An unjustified or rejected claim is not necessarily a false or fraudulent claim. It may be colloquially described as a "try on" but so long as the second imputation was understood to invoke an element of dishonesty, (no doubt to justify a worth-while award of damages) the jury may well have accepted that the ordinary reader would distinguish a failed claim from a false claim and would not read the suggestion of falsity into the paragraphs complained of.
61 One circumstance which the ordinary reader might well have taken into account was that none of the Appellant's activities, as reported, were undertaken secretly, or even privately. Speaking at public meetings and taking part in a 'fun run', with thousands of other participants, were highly visible activities. This was not a case in which a claimant for financial assistance was privately engaging in activities which were inconsistent with a claim based on disability.
62 The right of appeal in this case is conferred by s 102 of the Supreme Court Act 1970 (NSW). That provision does not identify the appropriate grounds of appeal, but Part 51, r 23 of the Supreme Court Rules 1970 provides that the Court shall not order a new trial unless it appears that, relevantly, there has been a misdirection or non-direction and that "some substantial wrong or miscarriage has been thereby occasioned."
63 This was not a case in which the plaintiff could argue that he was entitled, as a matter of law, to favourable answers to the questions put to the jury: c.f. Supreme Court Act, s 108(3). Accordingly, even if successful he would only obtain a new trial. In those circumstances, Part 51, r 23 governs his entitlement to such an order. Although in terms neither s 102, nor r 23 refers to intervention on the basis that the verdict of the jury was "one that no reasonable jury could reach", it must be accepted that the general law principles continue to apply: see r 23(1)(d) and John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [17] (McHugh J), [92] (Kirby J), and [184]-[185] (Callinan J, with whom Gleeson CJ agreed). The test of unreasonableness, of a kind sufficient to set aside a jury verdict, is of a high order: Rivkin at [119] (Kirby J) and [185] (Callinan J, with whom Gleeson CJ and Heydon J agreed): see also at [18]-[20] (McHugh J perhaps expressing himself more strongly than other members of the Court). Furthermore, it is equally well-established that this Court must generally adopt a restrained approach to intervention in relation to verdicts given by juries: see Rivkin at [2]-[7] (Gleeson CJ), [17] (McHugh J), [109]-[113] (Kirby J), [184] (Callinan J), c.f. at [224] (Heydon J).
64 In the present case, there is nothing similar to the circumstances of Rivkin in which at least one of the answers given by the jury was "like the thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before": at [5] (Gleeson CJ). Although, unlike Rivkin, the appeal was not run in the present matter purely by reliance on the unreasonableness of the answers given by the jury, it is not easy, nor appropriate, to dissect the grounds of appeal with too much refinement. If the answers given by the jury do not seem unreasonable, it will be less easy for the plaintiff to establish a substantial wrong or miscarriage. On one available approach (explained above), the misstatement made by counsel for the defendant may have been largely immaterial. Furthermore, this Court should not readily differ from the trial judge's assessment of what is reasonable and appropriate by way of directions, in particular circumstances. As Handley AJA convincingly demonstrates, the trial judge expressed himself far more forcefully in his discussion with counsel, than he did in seeking to ameliorate the effects of counsel's misstatement, in directing the jury. On the other hand, it should not be assumed that the view expressed in argument was a final view as to the seriousness of the error identified in counsel's address. Rather, it should be assumed that, on reflection, his Honour took a different approach deliberately, having assessed the error in the circumstances of the case.
65 There are no doubt benefits to be derived from having available to an appellate court a full transcript of counsels' addresses to the jury and argument in relation to appropriate directions. One benefit is that the Court obtains a better understanding as to precisely what direction was sought. However, as with evidence, care must be taken not to give too much weight to the language which appears on the paper and too little to the trial judge's assessment of its likely effect on members of the jury. In this case, a reading of the transcript suggests that both counsel indulged in florid language from time to time. I would not assume that the jury was necessarily impressed or distracted by advocacy, nor that particular passages, taken out of context, had the significance that is now sought to be attached to them. There was no actual misdirection or non-direction by the trial judge; nor am I persuaded that there was any inadequacy in the direction given with respect to the matters raised by the grounds of appeal, sufficient to demonstrate error of law. Even if there were, it was not an error which gave rise to a substantial wrong or miscarriage. Accordingly, in my view the orders proposed by Ipp JA should be made, so that the appeal is dismissed with costs.