Harvey v John Fairfax Publications Pty Ltd

CATCHWORDS: Plaintiff's imputation unreasonably rejected by jury - verdict set aside and new trial ordered - plaintiff's imputation rejected by second jury - whether judgment should be entered that, as a matter of law, the imputation was in fact conveyed - whether issues of imputation being conveyed and defamatory of the plaintiff should be tried by the same tribunal - Whether a third trial should be ordered where two juries had made the same unreasonable finding - heavy burden on appellant - whether jury's verdict should be allowed to stand notwithstanding appellate court's view that, had there been only one trial, there should have been a new trial - Application by plaintiff before second trial to add imputations to his Statement of Claim that could and should have been pleaded in the first trial - not pleaded in first trial in order to obtain maximum tactical advantage - whether it facilitates the just, quick and cheap resolution of the real issues in litigation to permit a plaintiff to plead imputations in second trial after he has failed to obtain that advantage in the first trial - New pleading practice in defamation litigation of pleading imputations in the words of the matter complained of, rather than (as was previously the practice) in order to identify the act or condition attributed to the plaintiff by the publication giving rise to the defamation - whether compliance with SCR Pt 67 r 11(2)

Civil Procedure Act 2005 Defamation Act 1974 Public Health Act 1991 LEGISLATION CITED: Suitors Fund Act 1951 Supreme Court Act 1970 Supreme Court Procedure Act 1900

Ainsworth v Burden [2005] NSWCA 174 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Amalgamated Television Services v Marsden [1999] NSWCA 313 Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338 Australian Broadcasting Corporation v Reading [2004] NSWCA 411 Australian Energy Ltd v Leonard Oil NL (No 2) [1988] 2 Qd R 230 Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Bickel v John Fairfax & Sons Ltd [1982] 1 NSWLR 498 Black v Houghton [1966] Qd R 435 Broome v Agar (1928) 138 LT 698 Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413 Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 Cinevest Ltd v Yirandi Productions Ltd [2000] NSWCA 68 Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (2000) 97 FCR 313 Coulton v Holcombe (1986) 162 CLR 1 Clough v Frog (1974) 4 ALR 615 Commissioner for Railways v Bielewicz (1962) 63 SR 466 Cropper v Smith (1884) 26 Ch D 700 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Edmond Weil Inc v Russell (1936) 56 CLR 47 Ellis v Grant (1970) 91 WN 920 Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported) General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Gorman v Barber (2004) 61 NSWLR 543 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 Hardy v Harris (Court of Appeal, 21 March 1986, unreported) Harvey v John Fairfax Publications Pty Ltd [2003] NSWCA 70 Harvey v John Fairfax Publications Pty Ltd [2004] NSWSC 188 Heath v Goodwin (1986) 8 NSWLR 478 Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Heydon v Lillis (1907) 4 CLR 1223 Hocking v Bell (1942) 42 SR 130 Hocking v Bell (1942) 66 CLR 671 CASES CITED: Hocking v Bell (1943) 43 SR 154 Hocking v Bell (1944) 44 SR 468 Hocking v Bell (1945) 71 CLR 430 Hocking v Bell (1945) 75 CLR 125 Horton v Jones (No 2) (1939) 39 SR 305 House v The King (1936) 55 CLR 499 Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51 Illawarra Newspapers Pty Ltd v Butler (Court of Appeal, 12 November 1980, unreported) John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Jones v Skelton [1963] SR 644 Jones v Sutton (No 2) [2005] NSWCA 203 Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 Lewis v Daily Telegraph Ltd [1964] AC 234 Maple v David Syme & Co Ltd [1975] 1 NSWLY 97 Mechanical and General Inventions Co Ltd v Austin [1935] AC 346 Meckiff v Simpson [1968] VR 62 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 National Australia Bank Ltd v Nobile (1988) 100 ALR 227 Naxakis v Western General Hospital (1999) 197 CLR 269 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 77 ALJR 1165 Repatriation Commission v Nation (1995) 57 FCR 25 Rigby v John Fairfax Group Pty Ltd (Court of Appeal, 1 February 1996, unreported; special leave to appeal refused: (1996) 17 Leg Rep SL2a) Singleton v Ffrench (1986) 5 NSWLR 425 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 Slim v Daily Telegraph Ltd [1968] 2 QB 157 State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 Stubbs v Russell [1913] AC 386 Sungravure Pty Ltd v Middle East Airlines Airlban SAL (1975) 134 CLR 1 Swain v Waverley Municipal Council (2005) 79 ALJR 515 Thomson v Lambert [1938] 2 DLR 545 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Williams v Hunt [1905] 1 KB 512 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697

PARTIES: John Harvey v John Fairfax Publications Pty Ltd

B R McClintock SC - Appellant COUNSEL: T D Blackburn SC / K P Smark - Respondent

Carney Lawyers - Appellant SOLICITORS: Freehills Solicitors - Respondent

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40960 of 2004 SANTOW JA BASTEN JA HUNT AJA Friday 5 August 2005 HARVEY v JOHN FAIRFAX PUBLICATIONS PTY LTD

The plaintiff sued on five imputations based on an article published in the defendant's newspaper. At a trial of these imputations pursuant to s 7A of the Defamation Act 1974, the jury found that none of the imputations had been conveyed by the matter complained of. On appeal, the Court of Appeal held that only the jury's verdict in relation to the first imputation was "not reasonably open" to them to reach. A new trial of the first imputation was ordered. Prior to the second s 7A trial, the plaintiff applied to the Defamation List Judge for leave to amend his Statement of Claim by adding nine more imputations to the one which had been sent back for a new trial. The judge refused the application. At the second trial, the jury again found that the first imputation had not been conveyed by the matter complained of. The plaintiff sought leave to appeal against the jury's verdict as perverse or unreasonable and also against the judge's refusal of his application to plead the additional imputations. He argued his appeal in the alternative. If he succeeded both in relation to setting aside the jury's verdict on the remaining imputation and in relation to the refusal by the judge to permit him to add nine further imputations, he sought a new trial of all ten imputations. However, if he succeeded only in setting aside the jury's verdict on the one remaining imputation, he sought to have a verdict or judgment entered in his favour that, as matter of law, the first imputation was in fact conveyed by the matter complained of. In answer to the application to amend, the defendant had submitted to the judge that, as the plaintiff, exercising reasonable diligence, might have brought forward the nine new imputations at the first trial, he was debarred by an issue estoppel in accordance with Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 from raising them after the first trial. The judge rejected the application to amend on this basis, notwithstanding that the new case was sought to be raised in the same proceedings (which had not been concluded) rather than in new proceedings. Held, the judge erred in rejecting the amendments sought on that basis. Another ground on which the defendant had opposed the application to amend was cognate to the first and related to the Anshun principle. It was that, notwithstanding that the application to amend was in the same proceedings, it was an abuse of process to allow him to plead causes of action which he failed to plead before the first s 7A trial. The judge rejected the plaintiff's application on this basis also, either because the orders made by the Court of Appeal in the first appeal precluded any new imputations being added to the imputation for which a new trial had been ordered or because it was an abuse of process. Held (by Santow JA and Hunt AJA), whichever way the judgment may be interpreted, the judge erred. In determining the application to amend and exercising its own discretion, the Court of Appeal held (by Santow JA and Hunt AJA): (1) The power to grant an amendment given by SCR Pt 20 r 1 must be exercised in a way which gives effect to the overriding purpose of the Supreme Court Rules to facilitate the just, quick and cheap resolution of the reals issues in the proceedings (Pt 1 r 3). Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51; Jones v Sutton (No 2) [2005] NSWCA 203 referred to (2) It does not facilitate the just, quick and cheap resolution of the real issues in litigation to permit a plaintiff to split his or her case, in the particular structural context provided by the Defamation Act 1974, because to do so invites a tactical approach by plaintiffs which should not be condoned. If a party elects to go to trial on issues which may have been formulated for that party's maximum tactical advantage, and if he fails to obtain that advantage, he should not be granted leave to replead his case at a new trial fortuitously granted to him on another issue. (3) Five of the nine new imputations sought to be added were "fall-back" imputations (that is, imputations of lesser seriousness) relating to imputations which had been rejected by the jury at the first trial and which the Court of Appeal had refused to send back for a new trial. The four remaining imputations related to parts of the pleaded article of which no complaint had been made in the first trial. There is a discretion to refuse an amendment along lines which may properly be described as being "akin" to both an Anshun issue estoppel and an abuse of process, in that the plaintiff is now seeking to make a case which he could and should have made at the first trial but may not have done so for tactical reasons, and without providing any reasonable explanation for not having done so. State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146; Ainsworth v Burden [2005] NSWCA 174 referred to (4) Leave to appeal against the refusal by the judge to permit the amendments was granted but the appeal was dismissed. Held (by Basten JA): (1) The judge was correct in holding that the orders of the Court of Appeal in the first appeal precluded any new imputations being added to the Statement of Claim. (2) Alternatively, if wrong in that respect, the approach taken by Santow JA and Hunt AJA is adopted. In relation to the plaintiff's application for the second jury's verdict to be set aside and for judgment to be entered in his favour that, as a matter of law, the first imputation was in fact conveyed by the matter complained of, Held (by Santow JA and Hunt AJA): (1) The test to be satisfied before a jury's verdict will be set aside is no longer whether the jury's verdict is perverse. Rather, the test is now whether the verdict was unreasonable in the sense that it was one which no reasonable jury could reach. Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708; Hardy v Harris (Court of Appeal, 21 March 1986, unreported); Harvey v John Fairfax Publications Pty Ltd [2003] NSWCA 70; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; Gorman v Barber (2004) 61 NSWLR 543 Australian Broadcasting Corporation v Reading [2004] NSWCA 411 followed (2) A straight forward standard to be applied in determining whether the jury's verdict was unreasonable is whether the appellant's case impugning that verdict is "clear and beyond argument". Broome v Agar (1928) 138 LT 698; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708; Harvey v John Fairfax Publications Pty Ltd [2003] NSWCA 70 followed John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 referred to (3) It is not appropriate to exercise the power to enter a verdict or judgment in every case where a plaintiff succeeds in having a jury's verdict in a s 7A trial set aside as unreasonable. The general rule is that, where the case on one issue and the case on another issue are not in distinct compartments, those issues should not be decided by different tribunals. Whether an imputation was conveyed and whether that imputation is defamatory of the plaintiff is a clear instance where the two issues should ordinarily be determined by the same tribunal because the issues are usually interdependent. The Court of Appeal should rarely, if ever, proceed to decide the issue of whether an imputation is defamatory of the plaintiff before a jury has first determined that issue, because of the jury's especially significant constitutional role (although by no means an impregnable one) in evaluating the impact of the matter complained of on the community. It is not possible in every case to say with confidence in advance what impression the matter complained of may have on a jury. Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374; Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201 followed Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Gorman v Barber (2004) 61 NSWLR 543 referred to (4) A judgment entered for the plaintiff that the imputation was in fact conveyed would mean there must still be a new s 7A trial on the issue of defamation. That fact does not preclude an application for a directed verdict on the first issue pursuant to s 108(3), but it remains relevant to whether the order should rather be a new trial of both issues where those two issues would better be determined by the same tribunal. This is such a case. Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201; Gorman v Barber (2004) 61 NSWLR 543 referred to (5) The fact that two juries had returned the same verdict and that it would be a third trial of the same issue is a matter which may be taken into account in determining whether judgment should be entered in favour of the plaintiff. This is particularly so in the light of the traditional reluctance of appellate courts to interfere with the verdicts of juries in defamation cases. Heydon v Lillis (1907) 4 CLR 1223; Edmond Weil Inc v Russell (1936) 56 CLR 47; Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 referred to Hocking v Bell (1945) 71 CLR 430; Hocking v Bell (1945) 75 CLR 125 discussed and applied (6) An order for a further new trial is discretionary. All the circumstances of the case must be considered, including the fact that there had been more than one trial. An appellate court should be reluctant to order a yet further new trial. The unsuccessful party assumes a heavy burden in seeking such a further new trial. The jury's verdict may be allowed to stand notwithstanding the appellate court's view that, had there been only one trial, there should have been a new trial. Hocking v Bell (1945) 71 CLR 430; Hocking v Bell (1945) 75 CLR 125 applied (7) In the present case, the jury's verdict should be allowed to stand. Held (by Basten JA): (1) The second jury's verdict was not unreasonable. (2) Alternatively, if it is not appropriate to determine that issue, the jury's verdict should stand for the reasons given by Hunt AJA. Counsel for the plaintiff referred to a new pleading practice in defamation litigation whereby the plaintiff pleads his imputations in the words of the matter complained of, rather than (as was previously the practice) in order to identify the act or condition attributed to the plaintiff by the publication giving rise to the defamation, which usually has to be distilled or inferred from those words. Observations (by Hunt AJA, with whom Santow JA agreed): (1) Such a pleading practice completely ignores the substantial importance of the plaintiff's imputations in relation to most of the issues which arise in defamation proceedings. Jones v Skelton [1963] SR 644; Lewis v Daily Telegraph Ltd [1964] AC 234; Slim v Daily Telegraph Ltd [1968] 2 QB 157; Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174; Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697; Jones v Skelton [1963] SR 644; Illawarra Newspapers Pty Ltd v Butler (Court of Appeal, 12 November 1980, unreported); Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474; Bickel v John Fairfax & Sons Ltd [1982] 1 NSWLR 498; Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Rigby v John Fairfax Group Pty Ltd (Court of Appeal, 1 February 1996, unreported; special leave to appeal refused: (1996) 17 Leg Rep SL2a; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 discussed and followed (2) The plaintiff is required by SCR Pt 67 r 11(2) to identify for the defendant in his imputation the act or condition which he will ask the jury to accept was understood by the ordinary reasonable reader as having been attributed to him by the matter complained of. Imputations will invariably be a distillation rather than a restatement of the words which were published. Merely pleading the words of the matter complained of as the imputation for which the plaintiff contends - where those words do not adequately distil the act or condition attributed to the plaintiff, and thus identify his cause of action - is not a compliance with Pt 67 r 11(2). Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174; Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Singleton v Ffrench (1986) 5 NSWLR 425; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Rigby v John Fairfax Group Pty Ltd (Court of Appeal, 1 February 1996, unreported; special leave to appeal refused: (1996) 17 Leg Rep SL2a); Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 followed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40960 of 2004 SANTOW JA BASTEN JA HUNT AJA Friday 5 August 2005 HARVEY v JOHN FAIRFAX PUBLICATIONS PTY LTD

Judgment 1 SANTOW JA: I agree with Hunt AJA in his conclusions and reasons on the matters necessary to resolve this appeal. In particular as to the issue of whether leave to amend was erroneously refused by Levine J, I agree with his conclusions that: (a) the discretion of the trial judge miscarried and therefore must be exercised again, but that (b) so exercised, the same end-result should follow. I do so in both cases for the reasons articulated by Hunt AJA. 2 I would add these observations, having regard also to what is said by Basten JA, whose judgment I have had the advantage of reading in draft. 3 Levine J exercised his discretion to deny leave to amend on three bases, in order to reach an end-result which on its face was not unreasonable. The first basis (Anshun estoppel) and third basis (Court of Appeal order) were in error for the reasons stated by Hunt AJA. Neither were therefore available as a basis for the discretion sought to be exercised. The second basis (abuse of process) expressed to be alternative to the first were the latter incorrect, was incompletely articulated. 4 That second basis was said to be "On an abuse of process cognate with the principle in Anshun". That leaves unclear precisely how abuse of process cognate with Anshun estoppel should operate in determining an application for leave to amend in the same proceedings, here to add further imputations. The considerations applicable to such leave go beyond whether it was unreasonable not to have pleaded them in the first instance, though that remains a material consideration. Those broader considerations are explained by Hunt AJA and also Basten JA. They include for example the principle that a party should not ordinarily be shut out from litigating an issue which was fairly arguable, in circumstances where any prejudice to the other side caused by a late amendment could be adequately compensated by payment of any costs thereby incurred. Those considerations also include that which is mandated by the injunction to be "just, quick and cheap", for the reasons Hunt AJA explains. 5 Furthermore, it is impossible from para [23] of the reasons of Levine J to identify to what extent the third basis (supposed constraint from the Court of Appeal's order 3) played any part in the exercise of his discretion. He does not say whether or not he saw this third basis as wholly independent of the second "abuse of process" basis. Logically, if granting leave to amend were to have breached the Court of Appeal's original order, that would have been relevant to any abuse of process. 6 In actuality, as Hunt AJA explains, a later leave to amend the pleadings in order to add new imputations different in substance from the four remaining ones then before the Court of Appeal would not have breached the Court of Appeal's order 3. It is trite law that court orders are to be construed in light of the other orders made and the reasons for judgment; see note by Justice P W Young in (1998) 72 ALJ 117 and the authorities he cites. There is nothing in the other orders made or in reasons for judgment, which indicated any intention on the part of the Court of Appeal to preclude a future leave to amend, always provided that any new imputations sought to be added differed in substance from the four remaining ones. 7 Finally, I agree generally with the observations of Hunt AJA on the undesirable pleading practice that appears to have arisen more recently in defamation proceedings. While those observations were not necessary for the disposal of the appeal, they were the subject of discussion in these proceedings, and have an underlying bearing upon applications to amend by adding new imputations. If the original pleading of an imputation adequately distils the act or condition attributed to the plaintiff there should be less likelihood of any need to amend by adding new imputations, particularly of the fall-back kind held back for unjustified forensic advantage. 8 BASTEN JA: The present proceeding is an application for leave to appeal from - (a) a refusal by the trial judge to allow the Claimant to amend his claim by adding new imputations, and (b) the finding of the jury that the remaining imputation was not conveyed by the publication in question. Refusal of leave to amend 9 Section 9(2) of the Defamation Act 1974 (NSW) provides: "(2) Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher …." This provision establishes that each imputation identified by a plaintiff may constitute a separate cause of action for the statutory tort thus created. Section 9 further provides as follows: "(3) Where a person has brought proceedings … for defamation against any person in respect of the publication of any matter, that person shall not bring further proceedings for defamation against the same defendant in respect of the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought. (4) Rules of court may prohibit or regulate the reliance by a plaintiff in proceedings for defamation on several imputations alleged to be made by means of the same matter published by the defendant, where the several imputations do not differ in substance." 10 Both of these subsections are relevant to the present proceedings. Thus, in relation to the imputations which were found not to be conveyed by the relevant publication by the first jury, which findings had not been overturned on appeal, the plaintiff was faced with a judgment in bar of any further proceedings on that cause of action. In relation to new imputations, the Claimant accepted that such imputations could only be raised if they differed in substance from those already pleaded and considered by the first jury: see Supreme Court Rules, Part 67, r 11(3). 11 In addition, what the Claimant sought to do before the trial judge, by way of amendment of the statement of claim, was to invoke a discretionary power to add fresh causes of action, pursuant to Part 20 of the Supreme Court Rules. His Honour exercised his discretion adversely to the Claimant in respect of the proposed additional imputations. Accordingly, it is necessary for the Claimant to demonstrate an error of principle in the way in which his Honour approached the question of amendments. 12 His Honour dealt with the matter at two, or possible three, levels. The conclusion reached by his Honour is set out at [23] of the judgment and reads as follows: "I am of the view that the plaintiff is disentitled to the relief he seeks by reason of the first leg of the Anshun argument advanced for the defendant not being excluded by authority, that is, in such a circumstance as the present, the fact that there is no separate proceedings in which the status of the latter is considered in relation to the former, does not preclude the application of the same principles, secondly, if that be incorrect, and on the second basis advanced for the defendant, that on an abuse of process basis cognate with the principle in Anshun , the plaintiff should fail, as the plaintiff should fail by reason of the peculiar nature of the existing order on foot of the Court superior to me, that there be a new trial limited to imputation (a). I do not see any way that I can make an order that would amount to setting aside or disregarding the effect of the order made by the Court of Appeal between these parties (see Marsden , above, particularly at paras [34]-[36], per Mason P). 13 It is tolerably clear from this passage that his Honour correctly understood that he was not simply applying the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 589 at 602 and 604. That case cannot, in its terms, operate in a circumstance where an existing proceeding has not been completed by way of a final judgment. In the present case, at the time the application to amend was made, there was an outstanding imputation which had yet to be considered by a jury. Thus, the reference to "the first leg of the Anshun argument" would appear to be a reference to a passage set out earlier in the judgment at [15]. "[15] The reference to this part of the judgment in Anshun I take to be read with their Honours' subsequent remarks … to the effect that the plaintiff cannot now, by reason of having been awarded a new trial by the Court of Appeal, raise matters for the determination in that trial because those matters were so relevant to the subject matter of the first trial that it was unreasonable for the plaintiff not to have relied upon them." 14 His Honour referred to Counsel for the Opponent (the defendant before him) acknowledging that it was necessary to deal with the fact that there were separate actions in Anshun. 15 There are, however, two problems with the manner in which his Honour concludes this aspect of his reasoning. First, he refers to the application of "the same principles", without identifying what those principles were. Nevertheless, one may infer that there might be an abuse of the process of the Court where, having run a trial on the basis of five imputations and failed in respect of all but one, the Claimant was seeking to use the opportunity of the retrial on the remaining imputation to allow him to agitate nine fresh imputations, which, in order to succeed, must be found to differ in substance from those already agitated. If that is a correct analysis, it is not so much the principles established by Anshun which are being applied, as the factors or considerations which may properly be found to justify a refusal of amendment to add the new causes of action. The second matter of concern is that, whatever the factors or considerations which were to be taken into account, his Honour did not expressly explain how they should be applied. 16 The approach adopted by the Claimant in relation to that aspect of the reasoning of the primary judge was that, in accordance with the principles stated in State of Queensland v J L Holdings Pty Ltd (1996-97) 189 CLR 146 at 154, a party should not be shut out from litigating an issue which was fairly arguable, in circumstances where any prejudice to the other side caused by a late amendment could be adequately compensated by payment of any costs thrown away. Thus, the Claimant argued, that it might have been opportunistic to take advantage of the existence of the retrial in order to expand significantly the causes of action it wished to plead, but, so long as those imputations were fairly open, it should not be precluded from doing so. 17 As I do not see that the first reason given by his Honour involved the direct application of Anshun, I do not see the second basis of his Honour's reasons at [23] as involving some analogous principle: rather, there are two parts to the reasons, the second picking up and relying upon the form of the relief granted by the Court of Appeal, after the first jury trial, ordering "a new trial confined to imputation (a)." 18 In relation to this second matter, his Honour had regard to what this Court had said in Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313. That case had involved an appeal from an interlocutory judgment with respect to the conditions on which inspection was to be permitted of certain documents produced on subpoena. In substance, the trial judge had granted leave to the plaintiff in those proceedings and its legal advisors to inspect the documents. This Court varied the order by also granting leave to the defendant and its legal advisors to inspect the documents: [1999] NSWCA 313 at [11] and [19]. In the course of argument, the respondent in those proceedings had indicated that it might wish to raise other bases for resisting inspection, if the matter were remitted. He was offered, but did not take up, opportunities to file a notice of contention, and address the additional arguments. The order of this Court was formulated only after those opportunities had been given and had not been availed of. Undeterred, when the matter went back to the trial judge, the respondent (plaintiff) thought to raise the additional issues and did so successfully, leading his Honour to make a different order with respect to inspection to that made by this Court. When the matter came back before this Court, the Court was minded to express in unequivocal terms the error of the trial judge in seeking to reach a different conclusion by reference to what he had described as "the undecided issues". The Court stated at [34]: "The orders made by this Court … gave rise to no issue estoppel or res judicata, because there was no final judgment … . Nevertheless, it is difficulty to conceive of circumstances where, even in a change of circumstances, it would be open to a court lower in the judicial hierarchy to set aside or disregard the effect of the order of an appellate court superior in the judicial hierarchy. Naturally, an appellate court may expressly or impliedly leave open the right to extend or revisit particular issues. For example, it may remit a matter to be dealt with further (in accordance with the appellate court's reasons), or it may otherwise make it plain that the disposal of an interlocutory appeal is limited in its operations…" 19 The President went on to consider the possibility of their being a change in circumstances and stated at [39]: "If, to take the hypothetical example discussed during argument, the appellant's solicitors had announced their intent to breach the principles in Home Office v Harmon [1983] 1 AC 280, then such a change of circumstances would have enlivened a power to stay the inspection order leading to its setting aside or variation. Whether the power to stay the order could have been exercised otherwise than by a judge of appeal is a nice question. But no such situation presented itself in this case." The Opponent accepted that Amalgamated Television Services was not on all fours with the present case, because it could not be said in the present case that the question of additional imputations had been debated in the Court of Appeal after the first trial. What had been debated was whether the findings of the jury in respect of each imputation which it had rejected should be set aside. The reasoning of the Court demonstrated that it rejected the arguments for the Claimant in respect of all but one imputation. Accordingly, so it was argued, the order of the Court should be understood as requiring a retrial of imputation (a), but that such a retrial should follow its own course, in relation to possible amendments. Thus, the use of the term "confined" should be understood merely as excluding any further trial with respect to the other imputations already pleaded. 20 In my view, there is a difficulty with this argument. Had the Claimant at the date of the judgment of this Court anticipated the possibility of pleading further imputations, I have little doubt that he would have objected to the form of order used by the Court of Appeal for the very reason that it might preclude the inclusion of additional imputations. Further, even assuming that the Court merely intended to exclude any further trial of the imputations pleaded, the order would require a judgment as to whether the fresh imputations not only differed in a substantial respect, but covered different ground. For example, one imputation rejected by the first jury, whose finding was upheld by this Court, was imputation (b) to the following effect: "The plaintiff had so seriously mismanaged two companies of which he was a director as to make them insolvent." The Court noted that the plaintiff had relied upon a number of paragraphs in the publication in support of that allegation. One of the paragraphs read: "Nor was there any vestige of the political wheeler-dealer who, for more than a decade, had the ear of some of the most powerful conservative politicians in the country - … Victorian Premier Jeff Kennett and WA Premier Richard Court, from whom he wheedled more than $2 million of taxpayers money for sports promotions that ultimately flopped." The proposed new imputations included the following: "(d) That the plaintiff wheedled more than $2 million from the Premiers of Victoria and Western Australia for sports promotions which ultimately flopped. (e) That the plaintiff wasted $2 million which he had wheedled from the Premiers of Victoria and Western Australia for sports promotions which ultimately flopped." If the Claimant were not entitled to reagitate old (b), would this Court, on the first appeal have permitted him to add new imputations (d) and (e)? Even accepting that the effect of order made by the Court should be understood by reference to the matters argued before it, it is difficult to answer that question. In my view, the proper course was to treat the order of the Court of Appeal as inconsistent with the addition of new imputations. The belated formulation of further imputations should be treated as a change of circumstance which would require variation of the order of the Court. In my view the trial judge was correct to decline to proceed on the basis that the order of this Court did not mean what it said. As the President noted in Amalgamated Television Services , an unanticipated change of circumstances does not mean that the trial judge can treat himself or herself as not bound to follow an order of this Court. Whilst it is true that this Court gives reasons for its orders, it is not the task of a trial judge to refashion the orders actually made, by reference to the reasons. 21 No application has been made to this Court to vary the order made on 9 April 2003. Had such an application been made, it might well have been met with the response that the appropriate time to seek such a variation was before the second trial and, at the latest, after his Honour gave judgment rejecting the additional imputations, on the basis that the order of this Court precluded a grant of leave. Counsel for the Claimant suggested that any encouragement to interlocutory appeals would set an unfortunate precedent and that the Claimant should not be penalised for reserving his rights in relation to the interlocutory judgment until after the further trial by jury of the remaining imputation. There are, however, several reasons for rejecting this submission. First, as Amalgamated Television Services itself demonstrates, there are times when issues may properly be the subject of an interlocutory appeal and should be addressed. Secondly, it is in a sense the artificiality of the structure imposed on a trial by s 7A of the Defamation Act which gives rise to a greater incentive for interlocutory challenges than might otherwise be the case. Thirdly, even had the jury upheld imputation (a) both as to it being conveyed by the publication and as to its defamatory character, there would have remained defences available to be litigated. The defendant had pleaded qualified privilege, an issue which was clearly likely to be relied upon in the event of a jury-finding favourable to the Claimant. Accordingly, the argument in favour of "saving up" interlocutory appeal points is by no means as clear in relation to such a proceeding as might be the case in other circumstances. Finally, the fact that the trial judge relied, at least in part, on the existence of the order of the Court of Appeal should, in the unusual circumstances of the case, have alerted the Claimant to the desirability of dealing with that aspect of the matter promptly and before any further trial of the remaining imputation. 22 In my view the judgment of the trial judge in this respect was correct. Whilst I accept that his Honour's reasons with respect to the "Anshun argument" might have invited a grant of leave to appeal, in my view the second basis relied upon was sufficient and was expressed with clarity. Further, any challenge should have been brought prior to the second jury trial. On that basis leave to challenge the rejection of the proposed amendments should be refused. 23 In reaching this conclusion, I am conscious of the fact that an order of the Court must be read in its context and that, where there is ambiguity, the reasons for judgment may be considered: see Young J "Construing Court Orders" (1998) 72 ALJ 117. However, the principal recent Australian cases relied upon are not, in my view, determinative of the matter, against the approach adopted above. In Australian Energy Ltd v Leonard Oil NL (No. 2) [1988] 2 QdR 230, Andrews CJ, speaking for the majority stated at 232(10): "The matter was substantially argued on the basis that what was sought is an interpretation of the declaration made by McPherson J. I take the view that the question is wider than that and involves interpreting the terms of the Agreement … to see whether AEL is entitled under it to payments … ." It is clear from that statement, and the discussion which follows, that the issue determined by the Full Court went beyond the construction of the orders made by the trial judge. Thus, where the issue was whether the judgment in favour of Australian Energy, which held that it was entitled to royalties on petroleum extracted after the grant of a lease, extended to payments for petroleum extracted before the grant of the lease, the majority held that a declaration of right should be made that it was so entitled. Thomas J held that no such declaration should be made, but that Australian Energy would not be estopped from seeking such a declaration in other proceedings. In the other reported case, Repatriation Commission v Nation (1995) 57 FCR 25, the Full Court of the Federal Court held that an earlier judgment of a single judge remitting a "matter" to the Administrative Appeals Tribunal involved the remittal of so much of the matter as remained outstanding and did not permit the Tribunal to reconsider a matter which had properly been determined by the earlier Tribunal. As noted by Beaumont J at 34D-E, the reference to "matter" in the remittal order was properly understood as a reference to "the only issue tendered for determination by the Court", rather than the whole of the matter originally agitated before the Tribunal. 24 The effect of these authorities (and the earlier cases referred to by Beaumont J in Nation at 33-34) is to permit a Court construing an order to have recourse to surrounding circumstances, including particularly the reasons for judgment. Adopting that approach, I remain of the view that the order made by this Court in resolution of the first appeal should not be read down in the way proposed. Nevertheless, if I am wrong in this respect, I adopt the alternative approach relied on by Hunt AJA at [63]-[89]. Challenge to imputation (a) 25 The Claimant separately challenges the finding of the jury that imputation (a) was not conveyed, on the ground that such a finding was "unreasonable". In this respect, the Claimant relies upon the judgment of the first Court of Appeal in this matter: Harvey v John Fairfax Publications Pty Ltd [2003] NSWCA 70 at [10]-[16]. Imputation (a) read as follows: "The plaintiff, in his operation of a farm, endangered public health." The principal passage in the article which gave rise to this imputation read as follows: "Ian Lumsden, general manager of the local Yass Shire Council, says that Harvey was running about 1,000 turkeys in a paddock adjacent to the hotel and 'it became a health issue because the residents got upset about the feathers blowing everywhere and turkey s… getting into the creek.' The Council took him to court and 'we must have won because the turkeys disappeared'." 26 The first question raises an issue as to the test to be applied in determining whether the finding of the jury can be allowed to stand. The second is whether this Court is bound to follow the approach adopted by the Court on the first appeal in circumstances where a second jury has declined to reach a conclusion said to be "clear and beyond argument". 27 When the Court considered this matter on the earlier occasion, it relied upon the judgment of this Court in Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87. An appeal to the High Court in that matter was subsequently upheld: see John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657. However, the test applied by this Court with respect to the individual findings made in that case was upheld by Callinan J, with whom Gleeson CJ and Heydon J agreed: see, at [183]-[185]. However, the High Court did disagree with the approach of this Court in rejecting the proposition that a new trial should be ordered with respect to all of the imputations, including those which had not been found to be so unreasonable that no reasonable jury could have adopted them. 28 The jurisdiction of this Court to set aside a verdict of a jury and order a new trial is derived from s 102 of the Supreme Court Act 1970 (NSW). The grounds of review are, however, found in general law principles derived from the authorities referred to by Callinan J in John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at 183: see also at [17]-[20], per McHugh J. Although the test is sometimes stated as one of "unreasonableness" (as by Samuels JA in Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 716) that common term is usually combined with a caution suggesting that intervention should be "extremely rare": Rivkin at [184]. In Mechanical and General Inventions Co Ltd v Austin (1935) AC 346, Lord Wright, in a passage relied on by Dixon J in Hocking v Bell (1945) 71 CLR 430 at 498-499 stated: "For the appellate court to set aside the verdict of a jury as being against the weight of evidence, merely because the court does not agree with it, would, in my judgment, be to usurp the functions of the jury and to substitute their own opinion for that of the jury: that would be quite wrong. Much more is necessary in order to justify the setting aside of a jury's verdict where there is some evidence to support it. No doubt the test can be roughly described as being whether the verdict of the jury was reasonable, but what is meant by reasonable in this connection, must be carefully defined." His Lordship continued, in the passage quoted by Dixon J: "The question in truth is not whether the verdict appears to the appellate court to be right, but whether it is such as to show that the jury have failed to perform their duty." 29 As Gleeson CJ noted in Rivkin at [2] part of the basis for restraint in relation to jury verdicts is that juries "do not give reasons for their decisions, and their decisions are, to that extent, unexaminable". As was recognised by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, considering whether a decision of the Commissioner involved an error of law, the conclusion reached may "on a full consideration of the material that was before him, be found to be capable of explanation only on the ground of some such misconception". Thus, his Honour continued: "If the result appears to be unreasonable on the supposition that he addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in someway he must have failed in the discharge of his exact function according to law." With a jury verdict there is, of course, no need to identify an error of law, as opposed to an unsupportable factual finding. With that qualification, the same approach may be adopted. 30 The second limb of the justification for caution in reviewing a jury verdict, discussed by Gleeson CJ in Rivkin, is the so-called "constitutional role of the jury", reflecting its "representative function". In the context of s 7A of the Defamation Act, the first question asked of the jury (and the only question which arose in the present case, as in Rivkin) is whether the published material conveys a particular imputation. This will involve an evaluative judgment, rather than a finding of fact as to the occurrence or nature of particular conduct or events. Thus, the statute vests in the jury, as members of the community, the function of making that evaluative judgment. In the terms adopted by Lord Wright, the jury cannot be said to have failed to perform its duty if, on the natural meaning of the words used in the published material, there was an available conclusion, which was neither tenuous nor fanciful, which was inconsistent with the asserted imputation. The search for such available meanings was undertaken by McHugh J in Rivkin and is an approach which appears to provide some objective basis for avoiding the shifting sands of subjective personal opinion. Nevertheless, because his Honour was in the minority in relation to the outcome of that exercise, it is no doubt necessary to avoid what the Chief Justice referred to in Rivkin at [4] as "adroit rationalisation" and the danger identified by Kirby J at [128] as an analysis "excessively defensive of the jury's answers and insufficiently attentive to the appellate court's performance of its independent function to protect a party against a manifestly unreasonable verdict, although the reasons for such error cannot be identified with exact precision". Nevertheless, some such approach is required because of the need, noted by Lord Wright in Mechanical and General Inventions, to define what is meant by reasonable. As noted by Gleeson CJ in a different context, "to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it": Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at [5]. In the present case, the reasons are unknown, but the underlying material can be assessed. 31 That assessment was undertaken in relation to the particular imputation in question by this Court in considering the first jury verdict. While it was not suggested that the judgment in that matter was binding on this Court, it was put, correctly, that the reasoning with respect to the first imputation should be treated as persuasive. The analysis accepted by the President was that proposed by the appellant as "incontrovertibly conveyed", namely (at [11]): "- the plaintiff was formerly a turkey farmer - he ran about 1,000 turkeys in a paddock - his operation 'became a health issue because the residents got upset about the feathers blowing everywhere and turkey s… getting into the creek' - the Yass Shire Council took the plaintiff to court over the issue and won, thereby causing the turkeys to be removed." 32 No doubt it is true to say that the appellant's summary in that case was what the material "incontrovertibly conveyed", because the summary was no more than a paraphrase or quotation of the material itself. The critical question was whether what was incontrovertibly conveyed was that the plaintiff, in the operation of his farm, "endangered public health". 33 It is helpful to ask whether there is an alternative to the asserted imputation, being a natural meaning of the words used, leading to a conclusion which is neither tenuous nor fanciful. In my view the jury might have reasoned as follows: the cause of the Council's response was identified as residents being upset about the feathers and excrement produced by the turkeys. That might well affect adversely the amenity of a small community. There would have been pressure placed on the Council to take steps to remedy the problem. The Council may have sought to enforce a condition of the development consent for the turkey farm and may well have identified the substance of the complaint as a health issue. 34 This reading of the material does not, of itself, answer the relevant question. The next step is to consider the asserted imputation. That imputation is vague in that it could cover a wide-range of conduct, of varying degrees of seriousness. At the minor end, people with streaming colds using public transport put the health of the travelling public at risk. Nevertheless, a cold is not a serious illness. On the other hand, quite a different view might be taken of a potentially serious infectious illness such as SARS or TB. A jury might reasonably consider that a threat to public health was only engaged in the latter cases. It might reasonably consider that the concept of "public health", invoked by the Claimant, involved more than an unidentified risk to the health of a few members of a small community. It would not be irrational for the jury to think in terms of the kinds of health risks which might engage the operation of Part 2 of the Public Health Act 1991 (NSW). No doubt the Claimant could have framed the imputation more precisely, in order to catch less serious conduct. However, it did not do so and cannot, in my view, complain if the jury could reasonably be understood as taking a view that the imputation identified a threat of some seriousness and that the conduct referred to in the publication did not fit that description. 35 Finally, I note that a point of distinction from the earlier case arises from the mere fact that a second jury has decided that the imputation is not conveyed. There was debate at the hearing as to whether a second decision should, of itself, lead this Court to adopt a different approach. The Claimant conceded (perhaps tactically) that a third opportunity should be accorded, though it might be a final opportunity. However, such decisions are not to be determined on a statistical basis. In my view the appropriate response to rejection by a second jury is to scrutinise more closely the possibility that the decision was not unreasonable. That closer scrutiny, based on the considerations set out above, lead me to the conclusion that the Court should not interfere on this occasion. 36 If, for the reasons identified by Hunt AJA, it is appropriate to determine whether the verdict of the jury with respect to the remaining imputation was one which was not open to a reasonable jury, I would respectfully adopt the reasoning of his Honour at [90]-[117]. Other matters 37 In the course of argument, the Claimant referred to the decision in this Court in the matter of Gorman v Barber [2004] NSWCA 402. He was no doubt moved to refer to the case because of the obvious doubts about the administration of justice which arise where this Court holds that a particular verdict was not reasonably open, only for a further jury to reach the same conclusion. Unless, as a matter of law, the second jury would have been compelled to reach the only available verdict, it would not be told of the decision of this Court in relation to the first verdict. That led to a consideration of the conclusion in Gorman v Barber that, pursuant to s 108(3) of the Supreme Court Act, the Court could direct a particular verdict where one party was entitled to the verdict "as a matter of law". 38 On the conclusions reached above, no issue arises as to the direction of a verdict in the present case. Nor did the Claimant seek such an order from the Court in his notice of appeal. Had such an order been sought, and had reliance been placed on the decision in Gorman, Counsel for the Opponent stated that the Opponent would have wished to challenge the correctness of the decision. That issue does not arise. There was a further consideration which might have been relevant, had the Appellant been successful in relation to imputation (a), but not in relation to the proposed additional imputations. The claim in relation to the turkeys was entirely peripheral to the main theme of the article. It had nothing to do with financial mismanagement or concerns about the use of public moneys. It was at best a colourful detail which appears to be dated to the late 1970's. 39 Indeed, it is possible that the jury was affected by the peripheral nature of the allegation, taken in the context of the article as a whole, it is also entirely possible that the Claimant foresaw the difficulty of convincing a jury of the specific imputation in relation to the turkey farm, especially if it were treated as a matter of any seriousness, and sought to add the further additional imputations, in order to present a case of potential importance and substance. In my view, even if contrary to the views set out above, there were merit in the challenge to the jury's verdict with respect to the lone implication (a), I would not be inclined to grant leave to agitate that point. 40 HUNT AJA: The applicant for leave to appeal, John Harvey, is the plaintiff in proceedings claiming damages for defamation in the Common Law Division. On 2 January 1998, he sued the defendant, as the publisher of the Sydney Morning Herald newspaper, in relation to a long article headed "The man who sank Elle" which had been published on 20 September 1997 alongside coloured photographs of the plaintiff and of Elle MacPherson. The lead-in paragraph of the article reads: What do a beautiful supermodel, three premiers, 30 racing-car drivers and millions of taxpayers have in common? They all wish they had never heard of a man named John Harvey. The article was very critical of the plaintiff's financial and organisational abilities. Reference to the particular part of the matter complained of relevant to the present appeal is made later in this judgment. 41 The present action did not come on for the trial of the pleaded imputations in accordance with s 7A of the Defamation Act 1974 until August 2001. Section 7A, introduced in 1994, brought about a substantial change in the conduct of defamation litigation. Previously, the jury determined every issue of fact which arose in the case. Many of those factual issues related to questions of law which it was the function of the judge to determine for the purposes of defences pleaded by the defendant. This led to considerable complexity in the conduct of even the most straight-forward cases, resulting in many appeals being successful. The NSW Law Reform Commission suggested that the undoubted value of juries (representing the community) in determining whether a particular imputation was conveyed and whether it is defamatory of the plaintiff does not in reality extend to other issues somewhat more removed from the sensitivities of community values, and that, where the borderline between issues of fact and issues of law is often blurred, the resolution of disputed facts and issues of credibility is often best left to judges whose training, experience and tradition of detachment better equips them to deal with these issues than a jury in cases where the liberty of the subject is not in issue (DP 32, pars 4.24-31; LRC 75, pars 3.6-11, 3.21-29). 42 Section 7A is presently in the following terms: 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. [The provisions of subs (5) are not relevant here.] The s 7A trial is held after the plaintiff has filed his Statement of Claim and before the defendant is required to plead to it. The result is that the issues between the parties are considerably reduced for the remainder of the proceedings. 43 At the stage of the s 7A trial in 2001, the plaintiff had pleaded five imputations. The jury found that none of the imputations had been conveyed by the matter complained of. The plaintiff appealed from the jury's verdicts on the basis that they were perverse or unreasonable and seeking a new trial of all five, but this Court, having considered each of the five imputations, held that only the jury's verdict in relation to the first imputation was one which was "not reasonably open" to them to have reached: Harvey v John Fairfax Publications Pty Ltd [2003] NSWCA 70 at [16]. It allowed the appeal in part and ordered a new trial of the first imputation. 44 Prior to the second trial, the plaintiff applied to Levine J, sitting as the Defamation List Judge, for leave to amend his Statement of Claim by adding nine more imputations to the one which has been sent back for a new trial. The application was refused on 22 March 2004: Harvey v John Fairfax Publications Pty Ltd [2004] NSWSC 188. The second trial of the one remaining imputation (that is, the imputation which the first jury had rejected) took place in August last year. The jury again found that it had not been conveyed by the matter complained of. The plaintiff has once more sought leave to appeal against the jury's verdict as perverse or unreasonable, and also against Levine J's refusal of his application to plead the additional imputations. 45 There was a procedural irregularity in entering judgment in relation to the second trial. The judgment, dated 19 August 2004, says merely: Enter a verdict for the defendant in respect of imputation 3(a) in the Further Amended Statement of Claim dated 27 November 2003. Section 7A(2)(a) of the Defamation Act provides that, where a judge has determined that the matter complained of is not reasonably capable of carrying (that is, conveying) an imputation pleaded by the plaintiff, or that the imputation is incapable of conveying a defamatory meaning, the judge "is to enter a verdict for the defendant in relation to the imputation pleaded". There is no similar provision where the jury finds that the imputation was not in fact conveyed or was not in fact defamatory. It may well be appropriate for a similar verdict to be entered in relation to the jury's finding, but it is unnecessary in the present case to decide that issue. 46 In this case, however, the imputation on which the jury gave its verdict was the only imputation remaining in the Statement of Claim which had not been disposed of, and the appropriate judgment therefore was a final judgment for the defendant in the action. An appeal would then lie from that final judgment to the Court of Appeal where that appeal involves a matter at issue amounting to or of the value of $100,000 or more: Supreme Court Act 1970, s 101(2)(r). Where that amount cannot be said to have been an issue in the proceedings, leave to appeal is required: s 101(2). 47 There was also a further procedural irregularity by the plaintiff, this time in commencing the present appeal in this Court. Apparently on the assumption that leave was not required, the plaintiff filed an appeal as of right. He did so within the time limited for doing so, on 14 September 2004. The defendant challenged the competence of that appeal by letter dated 24 October. On 4 November, the plaintiff filed an application for leave to appeal. This was out of time. On 11 November, the Registrar of the Court of Appeal made an order accepting the material already filed as compliance with the rules relating to submissions in support of an application for leave to appeal, and he made orders for the further prosecution of the leave application. On 14 February 2005, the Registrar directed the plaintiff to discontinue the appeal as of right filed in September, which he did on 15 February. 48 The plaintiff accepts that he needs both leave to appeal and an extension of time within which to file his application for leave to appeal. The application for leave is based on the argument that this Court, having said in the previous appeal that it was clear and beyond argument that the imputation in question was conveyed, the defendant is precluded from contending otherwise by either an estoppel or a res judicata. The defendant, without necessarily accepting that argument, does not oppose the grant of leave. 49 The particular passages in the matter complained of on which the plaintiff relied as establishing the imputation in question in this appeal played a relatively unimportant part of the article as a whole. They are not directly related to the plaintiff's financial and organisational abilities, although the general criticisms of those two abilities of the plaintiff formed part of the context in which the material on which the imputation was based had to be considered by the jury. The plaintiff was said by the matter complained of to have run a guesthouse in Binalong, 80 kilometres north of Canberra and "within a rural electorate", where he raised turkeys. He was also said to be the owner of a 62-foot schooner, of which the first owner was said to have been gaoled for his part in a bogus $66 million foreign exchange transaction and the second owner to have been through a "rocky [financial] patch" two years earlier. The three specific paragraphs to which the plaintiff points are:

But it is the third part-owner who has been in the spotlight recently. John Thomas Harvey, former turkey farmer, dentist and guesthouse proprietor, confidant of premiers, consultant to some of the country's biggest businesses and sports promoter extraordinaire, must be wondering whether there is a curse attached to the Anitra-May after two of the companies of which he was a director went into liquidation and a third became embroiled in an ugly legal dispute. … Ian Lumsden, general manager of the local Yass Shire Council, says that Harvey was running about 1,000 turkeys in a paddock adjacent to the hotel and "it became a health issue because the residents got upset about the feathers blowing everywhere and turkey s--- getting into the creek". The Council took him to court and "we must have won because the turkeys disappeared". Harvey was also a loser in his election campaign, but impressed the party nabobs sufficiently to be appointed Federal director of the NCP, the youngest in the party's history. 50 The imputation based on this material was that - (a) The plaintiff, in his operation of a farm, endangered public health. This Court ruled in the first appeal that the rejection by that jury of this imputation was unreasonable, as it was "clear and beyond argument" that the imputation was conveyed (at [16]). There has been no argument put in the present appeal that the second jury's verdict also rejecting this imputation was reasonably open to it, and accordingly this Court has not independently considered the ruling made in the earlier appeal. 51 Nevertheless, it is worthwhile emphasising that - before setting aside a jury's rejection of a plaintiff's case that a particular imputation was conveyed by the matter complained of (or that that imputation was defamatory of the plaintiff) - the test to be satisfied is no longer whether the jury's verdict was perverse. Rather, the test is now whether the verdict was unreasonable in the sense that it was one which no reasonable jury could have reached: (1) In Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708, Samuels JA said (at 716) that a jury's verdict which is unreasonable must be set aside. Although in the minority as to the application of that test in that case, that was the test which was applied. (2) In Hardy v Harris (Court of Appeal, 21 March 1986, unreported), Kirby P posed the test (at 1) as being whether the jury's verdict was "perverse - one which no reasonable jury could have reached, acting rationally". Glass JA (with whom Priestley JA agreed) posed the test similarly (at 5) as being whether the jury's verdict was "perverse ie that the verdict is one which reasonable men could not have reached or that it is not susceptible of any rational explanation". (3) In John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657, Callinan J stated his understanding of the law to be applied in that case (at [185]) as being that "a finding of a jury may only be overturned if it is one that no reasonable jury could reach". Gleeson CJ said (at [1]) that he agreed with the reasons of Callinan J, and posed the issue in that appeal (at [2]) as being whether each of the answers given by the jury "was an answer that no reasonable jury properly directed could have given". McHugh J said (at [20]) that an appellate court is entitled to find that no reasonable jury could have failed to find the meaning alleged or that it was defamatory only where the matter complained of was incapable of any innocent meaning or where the words are necessarily defamatory. Kirby J referred (at [119]) to the criterion for intervention with a jury's verdict as being the failure of the jury to perform their function as the Defamation Act contemplated, but gave as an example where the verdict or decision was "manifestly unreasonable". Heydon J did not examine the test to be applied, but he did agree (at [220]) with the reasons of Callinan J in relation to one of the imputations being considered, that the jury had acted unreasonably in not finding that the imputation had been conveyed. (4) In Gorman v Barber (2004) 61 NSWLR 543, Mason P stated the test (at [10] and [26]) as being that the appellate court must be satisfied that the jury's verdict was one which no reasonable jury could reach. Beazley and Santow JJA agreed with Mason P. (5) In Australian Broadcasting Corporation v Reading [2004] NSWCA 411, the parties accepted that, in the terms of Rivkin , the issue was whether the jury's verdict "was one that no reasonable jury could reach" (see [9]). It was restated (at [53]) as being whether it was "one that no reasonable jury, properly directed, could reach". Ipp JA (at [120]) followed the formulation of McHugh J in Rivkin , deciding (at [137]) that it was neither unreasonable nor irrational for the jury in that case to have concluded that the imputation in question was not defamatory. McColl JA identified (at [165]) that the test was whether the verdict was "one no reasonable jury could reach". In Rivkin , the High Court has suggested that perversity was a more demanding test for an appellant to satisfy than unreasonableness (at [111], [179], [183]). In these reasons, I will refer to an unreasonable verdict in the sense that it was one which no reasonable jury could have reached. 52 In this Court's earlier decision, the standard adopted (at [7]) in determining whether the jury's verdict was unreasonable was whether - … the imputations were ones to which no reasonable person could have come. The jury must be allowed great latitude, but if the case impugning the verdict is "clear and beyond argument", then the verdict may be set aside. The description of the standard as requiring the appellant's case to be "clear and beyond argument" is taken from the judgment of Sankey LJ in Broome v Agar (1928) 138 LT 698 at 702. His Lordship had used it in connection with the appellant's argument that the jury's verdict was perverse (see 700). That phrase was adopted by Samuels JA in Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 716-717, in connection with the appellant's case that no reasonable jury could have found the imputation in question in that case was not defamatory of the plaintiff (see 713). The standard has now been accepted by the High Court: John Fairfax Publications Pty Ltd v Rivkin at [20], [119], [183]; although as one of many appropriate standards. It is, however, a straightforward standard to be applied, and one which, in my respectful opinion, is well-suited as a common sense standard of almost universal application. 53 The plaintiff has submitted that the defendant was in any event estopped by this Court's earlier judgment from arguing that the second jury's verdict was either perverse or unreasonable in the sense discussed. I do not accept that submission. If an estoppel had arisen, it would have prevented the defendant from arguing at the second trial that the imputation was not conveyed. That clearly could not have been this Court's intention in ordering a new trial of that imputation. There was no suggestion in any of the reasons expressed by the High Court in Hocking v Bell (1945) 71 CLR 430 - a decision to which detailed reference is made later in this judgment (at pars [92] et seq and [112] et seq, infra) - that the decision of the NSW Full Court that jury's verdict in the first trial was perverse estopped the plaintiff from subsequently leading evidence at the new trial supporting her case that the defendant had been negligent when he operated on her, or from arguing on appeal from the second concluded trial that the same verdict given at that trial was not perverse. Nor was there any suggestion in the reasons given by the High Court in John Fairfax Publications Pty Ltd v Rivkin that the decision of this Court that the jury's verdicts in the first trial were unreasonable estopped the defendant from subsequently arguing at the new trial that the imputations rejected by that jury should also be rejected by the jury in that new trial. There could be no point in sending a matter back for a new trial after an unreasonable jury's verdict if the losing party were unable to argue that its case should be accepted by the jury. The unsuccessful party in the appeal is not required to remain mute at the new trial. Nor is that party required to stand with both hands metaphorically tied behind his back in what he can argue before the jury. Nor is he estopped from defending the jury's verdict on appeal from the second trial where the same verdict has been given. 54 The plaintiff has argued his appeal in the alternative. If he succeeds both in relation to setting aside the jury's verdict on the remaining imputation and in relation to the refusal by Levine J to permit him to add nine further imputations, he seeks a new trial of all ten imputations. However, if he succeeds only in setting aside the jury's verdict on the one remaining imputation, he seeks to have a verdict or judgment entered in his favour that, as matter of law, the first imputation was in fact conveyed by the matter complained of. It is logical, therefore, to commence with the refusal of Levine J to permit the plaintiff to add nine further imputations to the remaining imputation from the first trial before the second s 7A trial took place. 55 This issue can be discussed initially without reference to the nature of the imputations sought to be added, and therefore without the need to set out at this stage either the imputations themselves or the passages in the matter complained of on which they are based. As there is some dispute as to the precise basis on which Levine J rejected the application, however, it is necessary to set out in full what the judge said in his judgment: [12] The defendant opposes the application on essentially 2 bases. The first basis I will merely call the " Anshun basis"; the second basis relates to the imputations now sought to be relied upon and questions of form, capacity and difference in substance. [13] Strictly there can be some overlap between the two bases. [14] The defendant relies upon the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, in particular the extract, at 598 in the joint judgment of Gibbs CJ, Mason, and Aickin JJ, from Henderson v Henderson (1843) 3 Hare 100; 67 ER 313 where Sir James Wigram VC said (at 3 Hare 115; 67 ER at 319): The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. [15] The reference to this part of the judgment in Anshun I take to be read with their Honours' subsequent remarks at pages 602 and 604 to the effect that the plaintiff cannot now, by reason of having been awarded a new trial by the Court of Appeal, raise matters for the determination in that trial because those matters were so relevant to the subject matter of the first trial that it was unreasonable for the plaintiff not to have relied upon them. Mr Blackburn SC clearly acknowledged that advancing the proposition in this way does not deal with the fact that there were separate actions in the Anshun matter, a distinguishing factor upon which Mr McClintock SC relied. [16] Bearing in mind that limitation, nonetheless, it was argued for the defendant on an alternative basis, notwithstanding that, as luck would have it, there is only one proceedings, that akin to the principle in Anshun, and I assume by reason of it potentially being an abuse of the processes of the Court, the plaintiff should not be allowed now to amend to plead causes of action which it failed to plead prior to the s 7A hearing in August 2001. [17] Mr McClintock SC argued that Anshun does not preclude a plaintiff from running a "different" case. He acknowledged that there was a role for res judicata to play in this present application in the sense that by reason of the defendant having the benefit of verdicts in relation to all but one of the imputations sued upon it was necessary for the plaintiff to show that the proposed causes of action, i.e. the imputations, differed in substance from those rejected by the jury. [18] Nothing in Anshun, it was submitted for the defendant, prevents a party from litigating new material in the same proceedings, to put it shortly.

[It is agreed by both parties to the appeal that the reference in [18] to "the defendant" should be read as a reference to "the plaintiff".]

[19] The problem here, with respect to the position of both parties, is that the Court of Appeal has made its order that there be a new trial limited to imputation (a). [20] Order 2 made by the Court of Appeal set out in para [34] is: "Set aside the verdict and costs order entered by Kirby J". In view of order 3 being that there be a new trial confined to imputation (a), I have understood the order of the Court of Appeal not to set aside the verdicts entered in relation to the remaining imputations. [21] It is a matter of some concern to me that to accede to the plaintiff's application would put the plaintiff in the position of abusing the processes of the Court in the light of [the] order made by the Court of Appeal. Indeed, were I to make the order, then it would seem to me that the effect of the Court of Appeal's order, in the light of the history of the matter which came to that Court, would be completely negated in terms of justice having been done between the parties in that Court as reflected in the order that the learned President made. [22] In this area I have had regard to what the Court of Appeal said in Amalgamated Television Services v Marsden [1999] NSWCA 313 in relation to the propriety of a trial judge displacing the Court of Appeal's order by reference to matters which were not argued in the Court of Appeal. Indeed, in this instance, matters could not have been argued in the Court of Appeal because the plaintiff chose to create his new case in July 2003. [23] I am of the view that the plaintiff is disentitled to the relief he seeks by reason of the first leg of the Anshun argument advanced for the defendant not being excluded by authority, that is, in such a circumstance as the present, the fact that there is [sic] no separate proceedings in which the status of the latter is considered in relation to the former, does not preclude the application of the same principles; secondly, if that be incorrect, and on the second basis advanced for the defendant, that on an abuse of process basis cognate with the principle in Anshun, the plaintiff should fail, as the plaintiff should fail by reason of the peculiar nature of the existing order on foot of the Court superior to me, that there be a new trial limited to imputation (a). I do not see any way that I can make an order that would amount to setting aside or disregarding the effect of the order made by the Court of Appeal between these parties (see Marsden, above, particularly at paras [34]-[36], per Mason P). 56 Despite the view expressed by the judge in [13] that "there can be some overlap between the two bases" on which the defendant opposed the plaintiff's application, he does not appear to have taken into account the form or capacity of the new imputations or whether they differed in substance as required by SCR Pt 67 r 11(3) (authorised by s 9(4) of the Defamation Act) in his consideration of the three issues he identified - the two raised by the defendant (see [15] and [16]) and the third he raised himself (at [19]). The ultimate bases on which the amendments were rejected are stated in [23] as being (i) the "first leg of the Anshun argument advanced for the defendant", (ii) the defendant's "abuse of process" argument, and (iii) what the judge interpreted as a ruling by this Court in the first appeal precluding the plaintiff's right to add further imputations before the new trial of the first imputation. Each of these bases requires some elucidation. 57 It is convenient to dispose of the third basis first. The defendant had not objected to the amendment on this basis, and we were informed that the issue was not raised by the judge during the hearing. The plaintiff, however, expressly disclaims any complaint of procedural unfairness. The first three orders made by this Court in the earlier appeal were in the following terms: 1. Appeal allowed in part. 2. Set aside the verdict and costs order entered by Kirby J. 3. Order a new trial confined to imputation (a). In my view, the interpretation given by Levine J to this Court's third order was erroneous. 58 As stated earlier (at par [43] supra), the plaintiff had appealed from the first trial asserting that the jury's rejection of each of the five imputations was perverse or unreasonable and seeking a new trial of all five, but this Court held that only the jury's verdict in relation to the first imputation had "not [been] reasonably open" to the jury. After discussing each of the five imputations, the Court (at [32]) dealt with the plaintiff's alternative argument that "established perversity in relation to a single imputation would entitle him to a new trial on all imputations". The Court said (ibid) that that proposition could not be accepted in this case, and (at [33]): In the present case, only one finding has revealed real cause for concern and there is nothing about it that suggests cross-infection. 59 It was in this context that the Court's third order was made in the terms "Order a new trial confined to imputation (a)". There is no suggestion in the judgment that any application by the plaintiff to add further imputations to his Statement of Claim was contemplated - no doubt because no-one would have contemplated such an unusual prospect - so that this order could be interpreted as intended to forestall such an application. In my opinion, the intention of the Court in making the third order was (to adopt a phrase) clear and beyond argument in the context identified in the previous paragraph. That intention was to reflect the Court's rejection of the plaintiff's application for all five imputations to go back for a new trial where only one had been found to have been unreasonably rejected by the jury. The third order must be interpreted as being limited to achieving that result. 60 This Court's decision in Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313 (to which Levine J referred at [22]-[23]) was therefore irrelevant to the application by the plaintiff to amend his Statement of Claim. In that case, the plaintiff had persuaded the judge to hear further submissions in relation to the inspection of documents when this Court had already rejected the plaintiff's submission in a previous interlocutory appeal that it was open to him to do so (at [22] et seq). There was no application by the plaintiff in the present case in the first appeal to amend his Statement of Claim by adding further imputations, and his subsequent application to amend was not made in the face of any order or ruling in the first appeal. 61 The second order of this Court in the first appeal, to which the judge referred in [20], did not preclude any attempt by the plaintiff to add further imputations before the second trial, although the judgments for the defendant on the remaining imputations would preclude the plaintiff from attempting to add further imputations which did not differ in substance from those remaining imputations: Pt 67 r 11(3). 62 I would therefore reject the third basis on which the judge disallowed the amendments sought by the plaintiff to his Statement of Claim. 63 The judge described the first basis of the defendant's objection to the amendments sought as having been based on the High Court's decision in Port of Melbourne Authority v Anshun Pty Ltd which (at 602-603, 604), stated very generally, estops one party from setting up in subsequent proceedings between the same parties either a claim or a defence which was so relevant to the subject matter of the first action that it would be expected that it would have been raised in the earlier proceedings, and where it was unreasonable for that party not to have done so. 64 The plaintiff has argued that no such issue estoppel can arise unless there are two separate proceedings between the parties and unless the proceedings giving rise to the issue estoppel have been concluded. The defendant initially denied before this Court having placed any direct reliance on the issue estoppel principle stated in Anshun. There was no transcript taken of the argument before Levine J, and the written submissions, we were told, were not fully developed. In the light of the statements made by Levine J in his judgment, however, the defendant conceded during the hearing of the appeal that such a submission "may" have been made "simply to keep the point open" and then left. The defendant also expressly agreed during the appeal with the submission made by the plaintiff that an issue estoppel can arise only where there are two separate proceedings between the parties and where the proceedings giving rise to the issue estoppel have been concluded. In my view, the agreement between the parties as to the effect of the Anshun case so far as it affected the present matter was correct. 65 As I understand the way in which the defendant now argues its case, it relies on Anshun only for the manner in which the statement in Henderson v Henderson (quoted by the judge at [14]) was translated in Anshun (at 602-603) into the principle that, where the relevant issues could have been determined in the first trial of the one proceeding, and it was unreasonable that they are not, there is a discretion to refuse an amendment within that one proceeding to raise those issues in the second trial of those proceedings. However, although Levine J (at [16]) identified an alternative basis of the defendant's opposition to the amendments as being related to the principle in Anshun, he described it as being based on an abuse of process rather than a matter to be taken into account in the exercise of discretion. The defendant has not disowned that interpretation of its argument at first instance. 66 The judge held (at [23]) that the fact that there were no separate proceedings "did not preclude the application of the same principles". Insofar as he meant that an Anshun issue estoppel may still arise within the same proceedings in relation to an amendment to the pleadings, he was in error. In relation to the defendant's alternative basis, the judge merely said (at [23]) that the plaintiff should fail, without making any express finding that the application to amend constituted the abuse of process he had seen as the basis of the defendant's argument. It may be that the judge intended at [23] to reject the plaintiff's arguments in answer to this second basis principally because of his interpretation of this Court's third order in the previous appeal. If he did so, he was in error for the reasons given in pars [57]-[62] supra. If he did not reject those arguments on that basis, he has given no reasons for rejecting them - in a case where clearly it would be expected that reasons be given. In either event, error has been established, and the plaintiff is entitled to have his application reconsidered by this Court: House v The King (1936) 55 CLR 499 at 505. 67 In the usual course, an application to amend a pleading will be granted unless the pleading (or that part of the pleading) as sought to be amended would have been struck out if it had been contained in the original pleading: Horton v Jones (No 2) (1939) 39 SR 305 at 309-310; Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413 at 425; Commissioner for Railways v Bielewicz (1962) 63 SR 466 at 468; Heath v Goodwin (1986) 8 NSWLR 478 at 482. It would be struck out (and thus the amendment will not be permitted) only where the claim is manifestly groundless: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129. It was not suggested that the present claim sought to be added was manifestly groundless, nor could it be so suggested. 68 A judge does, however, have a discretion to refuse an amendment. See, generally, Ainsworth v Burden [2005] NSWCA 174 at [51]-[52], [57]-[59]. The traditional statements are that the discretion to refuse an amendment to a party's pleadings may not be used to punish a party for mistakes made in the conduct of that party's case (Cropper v Smith (1884) 26 Ch D 700 at 710), and that amendments should be allowed unless it appears that an injustice would thereby be occasioned to the other party which cannot be cured by costs: Clough v Frog (1974) 4 ALR 615 at 618. These statements were reiterated and reinforced by the High Court in State of Queensland v JL Holdings Pty Ltd (1997) 186 CLR 146 at 152-155. 69 The plaintiff relies on the provisions of Pt 20 r 1(1) - that "[t]he Court may at any stage of the proceedings" grant an amendment - and in r 1(2) - that "[a]ll necessary amendments shall be made for the purpose of determining the real questions raised … by the proceedings" - as encapsulating those traditional statements. He says that amendments may even be made on appeal, citing Classic Gourmet Sausages Pty Ltd v Leda Commercial Properties Pty Ltd (2000) 97 FCR 313 at [81]-[84]. In that case, the Federal Court (sitting on appeal from the Supreme Court of the Australian Capital Territory) allowed an amendment to add a party to the appeal in order to correct a formal defect in the proceedings in the Supreme Court. There are many such cases where this Court has allowed amendments to the pleadings in order to make them conform with the issues which had been litigated at the trial. That is not this case. 70 The reference to the "real issues raised … by the proceedings" in Pt 20 r 1(2) is to the real issues raised by the existing factual matters being litigated in the trial, or (where the amendment is sought on appeal) those which were litigated in the trial from which the appeal is brought: Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446; National Australia Bank Ltd v Nobile (1988) 100 ALR 227 at 235-236. That is not this case either. An amendment raising new issues entirely different from those litigated in the trial will not be permitted during an appeal by way of rehearing, as such a course denies the interests of expedition, finality and justice: Coulton v Holcombe (1986) 162 CLR 1 at 6-8, 10-11. 71 None of this is to suggest that an amendment can never be granted where a new trial has been ordered after a successful appeal and before that new trial has taken place. Subject to questions of prejudice to the other party which cannot be cured by an order for costs, amendments have frequently be granted in such a case. But there is usually some reasonable explanation demonstrated for the need to amend which goes beyond the mere failure of a party to obtain the tactical advantage he had sought to gain by the way his case was pleaded at the first trial. In the absence of such an explanation, the discretion to refuse an amendment should more readily be exercised in such a case.

72 The overriding purpose of the Supreme Court Rules is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (Pt 1 r 3(1)), and effect is required to be given to that overriding purpose when any power given by the rules is exercised or when any rule is interpreted: Pt 1 r 3(2). This has been the case since at least 2000 (when Pt 1 r 3 was inserted), if not also before then (see Supreme Court Act, s 76A; Pt 26 r 1). The provisions of Pt 1 r 3 have been reproduced in the Civil Procedure Act 2005, s 56. The specific instruction to judges given by Pt 1 r 3(2) is applicable to the exercise of the power given by Pt 20 r 1 to grant an amendment to the pleadings at any time (Idoport Pty Ltd v National Australia Bank Ltd (2000) 49 NSWLR 51 at [45], where Einstein J referred to the rule in the context of what had been said by the High Court in Queensland v JL Holdings Pty Ltd), although the power to grant an amendment to the pleadings must still be exercised with due regard to the dictates of justice. The decision in Idoport was referred to with approval by this Court in Amalgamated Television Services Pty Ltd v Marsden (No 2) (2003) 57 NSWLR 338 at [62], when the Court added that the parties are not free to disregard that stricture either. The effect of Pt 1 r 3 is not confined to ensuring that there has been a compliance with the rules of court; the rule is also concerned with the manner in which proceedings are conducted: Jones v Sutton (No 2) [2005] NSWCA 203 at [48]-[49]. 73 In my opinion, it does not facilitate the just, quick and cheap resolution of the real issues in litigation to permit a plaintiff to split his or her case, in the particular structural context provided by the Defamation Act 1974, because to do so invites a tactical approach by plaintiffs which should not be condoned. If a party elects to go to trial on issues which may have been formulated for that party's maximum tactical advantage, and if he fails to obtain that advantage, he should not be granted leave to replead his case at a new trial fortuitously granted to him on another issue. Prior to the 1974 Act (which by s 9(2) made each imputation conveyed by the matter complained of a separate cause of action), a plaintiff simply sued on the matter published by the defendant. Each imputation representing a natural and ordinary meaning of the matter complained of was included within the one cause of action. The jury was directed to determine only whether the matter complained of was defamatory of the plaintiff; if so, whether any of the pleaded defences were made out; and, if not, what damages should be awarded. 74 Over the years, some order came to be enforced in relation to the imputations for which the plaintiff contended. In this State, particulars of the imputations for which the plaintiff contended were first ordered in Ellis v Grant (1970) 91 WN 920 at 925, at a time when the old common law pleading system still obtained. In England (and Wales), however, it had earlier been suggested that, where the matter complained of does not speak for itself as to the clear imputations conveyed, the plaintiff should plead those imputations or indirect meanings which went beyond the literal meaning of the matter complained of and which the plaintiff contended was inherent in or implied by that matter, or which could reasonably be read into it by the ordinary reasonable reader: Lewis v Daily Telegraph Ltd [1964] AC 234 at 280. Although not a pleading requirement, the practice of pleading the plaintiff's imputations based on the natural and ordinary meaning of the matter complained of became common in England. A pleaded imputation was regarded as the most injurious meaning which the matter complained of could bear; the plaintiff was not permitted to rely on a more injurious meaning, but he was permitted to rely on a less injurious meaning, one which fell broadly within the imputation pleaded: Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175, 185. 75 Following the creation in this State of a separate cause of action for each imputation in 1974, and with the introduction of the modern pleading system, Pt 67 r 11(2) required the plaintiff to specify in his Statement of Claim each imputation on which he relied. The imputation pleaded in this State can no longer be regarded as the most injurious meaning which includes within it all the less injurious meanings which fall broadly within its terms. Each imputation must stand alone, and it includes within it only those meanings which do not differ in substance from that pleaded: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 676. This means that a plaintiff must chose the imputations which he pleads with some care. If the jury does not accept the imputation pleaded, the plaintiff does not succeed unless he has also pleaded, in the alternative, a less serious meaning which the jury might accept. These alternative imputations have become known as "fall-back" imputations, and they are correctly regarded as differing in substance from the more serious imputation. The plaintiff sometimes has to make some difficult choices. In my experience, it is fair to say that in most defamation cases involving the media there is usually some truth in what was published. In such circumstances, the plaintiff's case depends on the inclusion within the matter complained of one or more inaccuracies which, it is usually asserted by the plaintiff, make the publication as a whole very much more serious a defamation than the publication merely of what was true. 76 It is therefore necessary for the plaintiff to plead an imputation which he believes (or gambles) the defendant cannot justify as true. The difference between what is true and what has been published is sometimes great. As Spencer Bower remarked, headlines (which are usually the work of a sub-editor rather than the journalist who wrote the article) "provide a soil most favourable to the production of defamatory matter": The Law of Actionable Defamation (2nd Edn, 1923), p 294. Another ready source of error is the process of editing an article to fit it within the available space. There are many ways in which an article which is accurate when it is written becomes inaccurate by the time it is published.

77 On the other hand, the difference between what is true and what has been published is in some cases very narrow. In such cases, the plaintiff is forced to plead an imputation which, although capable of being conveyed, is sometimes somewhat far-fetched and which may not be accepted by a jury which has been directed in accordance with the law that the ordinary reasonable reader is not avid for scandal and must be taken as having considered the matter complained of as a whole. In such a case, overall success or failure for the plaintiff virtually depends on the jury's acceptance of an imputation which is by no means assured of success, because any imputation less serious in nature which he may plead is likely to be successfully justified by the defendant as true. 78 If a plaintiff chooses to plead an imputation which is by no means assured of success without the alternative of a fall-back imputation, and if the jury does not accept it, there is much to be said - in compliance with Pt 1 r 3 - for the exercise of the discretion to refuse to allow the plaintiff to mend his hand at a second trial by pleading what should have been a fall-back imputation at the first trial and taking the chance that the defendant will not succeed in a plea of truth. 79 This is not a direct application of an Anshun issue estoppel. Nor is it a rejection of the amendment on the basis that it is an abuse of process such as was considered in some defamation actions where multiple defamation actions based on the same material had been brought against the same defendant and where all could readily have been comprehended within the one action: Williams v Hunt [1905] 1 KB 512 at 514; Thomson v Lambert [1938] 2 DLR 545 at 560; Meckiff v Simpson [1968] VR 62 at 65; Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 99. A claim becomes an abuse of process usually only where the same issue is sought to be re-litigated in different proceedings: Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 410-414. None of this is the present case. 80 The present case does, however, raise the possible exercise of the discretion to refuse an amendment along lines which may properly be described as being "akin" to both an Anshun issue estoppel and an abuse of process, in that the plaintiff is now seeking to make a case which he could and should have made at the first trial but may not have done so for tactical reasons, and without providing any reasonable explanation for not having done so. The Defamation Act itself makes it clear that the plaintiff is expected to sue on all the imputations of which he complains in the matter published, in that s 9(3) precludes any further action being based on the same matter published without leave. That restriction is a relevant consideration (although not a substantial one) in the exercise of the discretion to refuse an amendment to plead new imputations after there has already been one trial.

81 In my opinion, there is considerable tension between (a) exercising the power given by Pt 20 r 1 to permit the plaintiff in an action for defamation to mend his hand for a second trial as if there never had been an earlier trial and without any reasonable explanation for not pleading a fall-back imputation at the first trial, and (b) at the same time exercising that power so as to facilitate the just, quick and cheap resolution of the issues raised by the plaintiff in his Statement of Claim. An order that the plaintiff pay the costs thrown away by the amendment - notwithstanding that such costs could or would, if expressly stated, include the costs of everything done by the defendant from the time of pleading the original Defence - does not always compensate the defendant for the prejudice suffered, even when ordered on an indemnity basis. Many defamation plaintiffs are not able to meet such an order for costs, so that the proceedings become a "Sydney or the bush" endeavour on the part of the plaintiff and an unfair burden on the defendant. The efficacy of an order for costs is also relevant to the exercise of the discretion to refuse an amendment: State of Queensland v JL Holdings Pty Ltd at 154-155; Ainsworth v Burden at [62]. 82 In the present case, we were informed, the plaintiff's many serious delays in prosecuting his action resulted from his comparative lack of means. Moreover, he allowed the first trial to proceed with what he must have regarded as the most serious imputations available from this article, without fall-back imputations pleaded in the alternative, and he ultimately lost on four of the five imputations pleaded. Five of the nine new imputations sought to be added are fall-back imputations relating to imputations which were rejected by the jury at the first trial and which this Court refused to send back for a new trial. The four remaining imputations relate to parts of the pleaded article of which no complaint was then made. 83 The third of the original imputations so rejected was: (c) The plaintiff had behaved in so bad a manner as an employee of the NSW Premier, Nick Greiner, as to warrant his peremptory dismissal by Mr Greiner. It was based on the material identified in this Court's decision in the first appeal at [21]. The two new imputations which would replace this imputation are in these terms: (f) The plaintiff behaved in an increasingly overbearing manner towards Ken Hooper during a controversy over the eastern Creek Raceway. (g) The plaintiff had been sacked by the New South Wales Premier, Nick Greiner. The new imputation (f) merely repeats the words of the matter complained of. The word "imputation" is properly used with reference to any act or condition asserted of or attributed to a person: Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91; Sungravure Pty Ltd v Middle East Airlines Airlban SAL (1975) 134 CLR 1 at 10. In the present case, the matter complained of does identify the plaintiff's overbearing conduct as the relevant "condition", and the lack of specificity in the imputation is a deficiency which flows from the matter complained of and not the pleader: John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 726; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-138. But the imputation remains ambiguous as a result of its inclusion of the reference to the object of the plaintiff's overbearing nature being the Premier's press secretary. If this is said to add to the sting, the additional sting should be spelt out in the imputation. If it was not intended to add to the sting, the reference should be deleted in order to avoid confusion: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155; Drummoyne Municipal Council v Australian Broadcasting Corporation at 138, 155. The new imputation (g) does not identify the defamatory sting, in that it remains open to the jury to choose as the reason for the "dismissal" between misconduct (which the first jury had already rejected) or incompetence or merely being difficult to work with. The matter complained of does not even assert that the plaintiff had been dismissed but only that, when the plaintiff gave an ultimatum to the Premier to choose between himself and the Premier's long-standing press secretary (to whom the plaintiff is said to have been over-bearing), the Premier chose the press secretary. He was not "sacked" in the sense used in the imputation at all. At most, the matter complained of expressly asserts only that the Premier chose his press secretary in preference to the plaintiff when the plaintiff delivered that ultimatum. This could be interpreted as having resulted from his overbearing nature. The failure to identify the defamatory sting raises the problem that the two new imputations may be in breach of Pt 67 r 11(2), which requires that they differ in substance from each other. But, even if all these apparent defects be cured, both imputations are clearly ones which could and should have been pleaded for the first trial as alternatives to imputation (c). 84 The fourth of the original imputations rejected by the jury was: (d) The plaintiff had defrauded the company of which he was a director of $170,000. It was based on the material identified in this Court's decision in the first appeal at [24]. The two new imputations which would replace this imputation are in these terms: (i) The plaintiff withdrew two cheques totalling $170,000 to which he was not entitled from a company, International Sports Services Ltd. (j) The plaintiff breached his duties as a director of International Sports Services Ltd by withdrawing two cheques totalling $170,000 from that company. The jury at a new trial confronted by imputation (i) may understand it as asserting that the plaintiff knew that he was not entitled to the money and thus defrauded the company, in which case this imputation would impermissibly not differ in substance from the imputation for which judgment has already been entered for the defendant: Pt 67 r 11(2). If the jury understand imputation (i) as asserting only that the withdrawal was made by mistake or otherwise innocently, the imputation would not be defamatory. The defamatory sting must be clearly identified so that the new imputations also differ in substance from the imputation for which the defendant already has judgment in its favour and from each other. Leave could not be granted to plead a new imputation which is not different in substance from that which led to judgment for the defendant. Imputation (j) does not identify how the withdrawal of the money was in breach of the plaintiff's duties as a director, and the same problem arises as in relation to imputation (i) as to what the defamatory sting is. But, even if those apparent defects be cured, the imputations are clearly ones which could and should have been pleaded for the first trial as alternatives to imputation (d). 85 The fifth of the original imputations rejected by the jury was: (e) The plaintiff dishonestly refused to pay his just debts. It was based on the material identified in this Court's decision in the first appeal at [28]. The new imputation which will replace this imputation is in these terms: (h) The plaintiff did not pay his debts. Once more the new imputation does not identify the defamatory sting, in that, whilst an imputation that a person cannot pay his debts is capable of being defamatory ( Stubbs v Russell [1913] AC 386 at 392), an imputation that he has not paid his debts, without more, is not so capable, as it does not suggest that he is either unable or unwilling to do so: Black v Houghton [1966] Qd R 435 at 436-437, 438. Once more, even if that apparent defect be cured, the imputation is clearly one which could and should have been pleaded for the first trial as an alternative to imputation (e). 86 The remaining four new imputations are based on passages in the matter complained of which are entirely discrete from the passages on which he relied for the imputations at the first trial, and each new imputation relates to an entirely distinct subject matter from those previously pleaded. Each of them is marred by defective pleading of the much same nature as that already discussed, but it is unnecessary to rehearse those defects here. (I refer to a major problem arising out of what is apparently a new pleading practice at the end of this judgment, at par [80] et seq .) Each of the passages could and should have been relied on in the first trial, and the relevant imputation could and should have been pleaded if the plaintiff actually regarded them as "real" questions raised by the matter complained of. He has given no reasonable explanation for not having complained of those passages or subject matters in the first trial. The addition of these four new imputations would appear, in the circumstances of this case, to be contrary to the spirit of s 9(3) of the Defamation Act (see par [80] supra ). 87 Counsel for the plaintiff has suggested (in passing) that it was perhaps his own inadequacy which led to the plaintiff's failure to plead all nine of these new imputations in the first trial. I intend no disrespect to counsel or to his suggestion when I say that his able, astute and extensive experience in defamation litigation serves only to confirm the very clear impression conveyed by the objective facts in this case that the decision not to plead these new imputations in the first trial was the result of tactical considerations of the type already discussed (at pars [75]-[77] supra ), not of any inadequacy or incompetence on his part in drafting the imputations pleaded. 88 The plaintiff has also sought to draw comfort from the general practice in relation to separate trials of the capacity of the matter complained of to convey the pleaded imputations pursuant to Pt 31 r 2. Where the judge rules that the matter complained of is incapable of conveying any pleaded imputation, it is usual to grant liberty to amend to plead a new imputation in the place of that imputation. The grant of leave to amend after a jury had not been satisfied that the matter complained of did in fact convey the pleaded imputation is, the plaintiff says, no different from granting leave after the judge has ruled in a separate hearing that the imputation is incapable of being conveyed. I do not accept that the two situations are comparable. Separate hearings of the capacity issue are held during the regular Defamation List motion day. In every sense, rulings on capacity are interlocutory and not final in nature. On the other hand, the trial as to whether the imputations were in fact conveyed is in every sense a trial, with all the formality of a jury trial. To treat such a trial as something at which the plaintiff can chance his arm on a particular imputation without risk that the defendant may succeed subsequently on a defence of truth to a fall-back imputation of lesser seriousness, and then to permit him to amend virtually at will until he pleads an imputation which is accepted by the jury, is not in my view exercising the power to grant amendments in order to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 89 As noted in par [66] supra , the reasoning by which Levine J rejected the plaintiff's application to amend is unclear, because it is expressed by reference to distinctions drawn in the argument before him which were not themselves entirely clear. Nevertheless, for the reasons I have given, the judge reached the correct decision. Accordingly, I propose that leave to appeal against the refusal by the judge to permit the amendments be granted but that the appeal be dismissed. 90 I turn now to consider whether the plaintiff is at this stage entitled to judgment that, as a matter of law, imputation (a) was conveyed by the matter complained of. Section 108 (3) of the Supreme Court Act 1970 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. 91 In Heydon v Lillis (1907) 4 CLR 1223, the High Court gave consideration to the predecessor of this section, s 7 of the Supreme Court Procedure Act 1900, which provided: In any action, if the Court in Banco is of opinion that the plaintiff should have been nonsuited, or that upon the evidence the plaintiff or the defendant is as a matter of law entitled to a verdict in the action or upon any issue therein, the Court may order a nonsuit or such verdict to be entered. Griffith CJ said (at 1228) that these words should be construed literally, and continued: If the jury give a perverse verdict in favour of the defendant, the plaintiff may move to have a verdict entered for him; if they give a perverse verdict in favour of the plaintiff the defendant may have a verdict entered for him. Isaacs J and Higgins J agreed with the Chief Justice (at 1228, 1229). In that case, the jury had disagreed and the NSW Full Court had declined to exercise its power under s 7 on the ground that it had no jurisdiction to do so where the jury had not given a verdict. The High Court disagreed with that interpretation and, having considered the evidence for itself, ordered that a verdict be entered for the plaintiff. 92 In Hocking v Bell, the jury at the first trial had found a verdict for the plaintiff. This was set aside by the NSW Full Court as being unreasonable in the face of such a preponderance of evidence in favour of the defendant that the jurors could not have applied their minds to it, and a new trial was ordered: Hocking v Bell (1942) 42 SR 130. The High Court refused leave to appeal: Hocking v Bell (1942) 66 CLR 671 (note). Two successive juries thereafter failed to agree on a verdict, being equally divided. After the third trial, the defendant moved the Full Court for judgment, relying on the following statement by Starke J in Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373: Where on the uncontroverted facts the action or an issue must be determined in favour of one party, then, as a matter of law, that party is entitled to the verdict in the action or upon the issue. And it is necessarily wrong to leave any conclusion or inference in such circumstances as a question of fact to the jury. The Full Court held that the facts on which the defendant relied were not uncontroverted, and dismissed the motion: Hocking v Bell (1943) 43 SR 154 at 156, 167. In the fourth trial, the jury again found for the plaintiff. The Full Court unanimously held that there was such a preponderance of evidence against an acceptance of the plaintiff's case that this verdict must be set aside: Hocking v Bell (1944) 44 SR 468. By majority, a verdict was entered for the defendant, although the reasons of each of the judges forming the majority differed for taking such a course. Davidson J held (at 490) that, although the evidence given by and for the plaintiff amounted to a prima facie case, when that evidence was considered in the light of the evidence given by and for the defendant in the last trial (which went far beyond the evidence previously given) the plaintiff's case was so overwhelmed as to reduce it to less than a mere scintilla. Halse Rogers J held (at 495-496) that the jury's answer to the special question posed went beyond the plaintiff's particulars and (at 497) that there was no evidence to support that answer. Roper J held (at 509) that the fact that the jury's answer went beyond the plaintiff's particulars did not deprive her of her verdict in the light of the way the case had been conducted, and that there should be a further trial as there was evidence to support a verdict in her favour. 93 In the plaintiff's appeal to the High Court, Latham CJ referred to s 7 of the Supreme Court Procedure Act , and said (at 441-442): But there must be a real issue of fact to be decided, and 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 in the case. He then quoted the passage from Shepherd v Felt & Textiles of Australia Ltd already quoted in the previous paragraph. The Chief Justice held (at 442) that the court could never direct a verdict for the party carrying the onus of proof because the question whether or not the evidence for that party should be believed was essentially and necessarily a matter for the jury. He said (at 442) that, where there is conflicting evidence, a ruling by an appellate court that the jury's verdict was against the weight of the evidence is no more than a conclusion that the defendant was as a matter of fact (not of law) entitled to a verdict, and (at 445) that in such a case the defendant cannot be said, as a matter of law, to be entitled to a verdict though he may have strong grounds for claiming a new trial. He held (at 462) that the Full Court had not been justified by s 7 in substituting its own opinion on the conflicting evidence for that of the jury. He next dealt with the issue of what should be done where successive juries persisted in returning perverse verdicts, a separate subject to which I will return later. 94 Starke J also referred to s 7 (at 486), and interpreted the reference by Griffith CJ to a "perverse" verdict in Heydon v Lillis as meaning "a verdict that a jury could not reasonably find on the evidence". He said that "[t]here is no evidence if the evidence is such that a jury on that evidence could not reasonably find the challenged verdict". He held (at 487) that the Full Court was justified in finding that there was no evidence on which the jury could reasonably find a verdict for the plaintiff and in applying s 7 in favour of the defendant. 95 Rich J held (at 468) that the NSW Full Court had been correct in entering judgment for the defendant, as it had an inherent jurisdiction to prevent a miscarriage of justice by the abuse of its process by the successive perverse verdicts. 96 Dixon J disagreed (at 498) with the interpretation Starke J had placed on the statement by Griffith CJ in Heydon v Lillis , and said that the meaning and effect of the terms used in s 7 were too clear and well settled to be affected by the choice of expression of Griffith CJ; he said that, in any event, the expression "perverse verdict" always meant something more than a verdict against the weight of the evidence. He did not agree with the entry of judgment for the defendant. He, too, dealt with the issue of what should be done where the jury persisted in returning perverse juries, a subject to which I will return. 97 McTiernan J construed s 7 of the Supreme Court Procedure Act (at 502) in the same way as Starke J had and, for the same reasons, came to the same conclusion (at 507) that there was no evidence supporting the verdict. He said (at 503) that, if however it were not correct to say that there was no such evidence, rather than restore the verdict for the plaintiff he would agree with the order preferred by Roper J (dissenting in the Full Court) that a yet further new trial should be held. 98 The majority of the High Court accordingly dismissed the appeal from the judgment entered for the defendant (Latham CJ and Dixon J dissenting). The plaintiff appealed to the Privy Council, which upheld her appeal and restored her verdict: Hocking v Bell (1945) 75 CLR 125. Their Lordships (at 130-131) preferred the view of s 7 of the Supreme Court Procedure Act expressed by Latham CJ, quoting the passage already quoted in par [93] supra , and adding (at 131): The Chief Justice's application of the section is, as it seems to their Lordships, perfectly in point. If, at the end of the hearing of witnesses, the evidence is all one way, so that no jury can reasonably find for the plaintiff, and a verdict and judgment in favour of the plaintiff are nevertheless given, it is within the competence of the Supreme Court to direct that verdict and judgment should be entered for the defendant. 99 In Edmond Weil Inc v Russell (1936) 56 CLR 47, in the hearing of a commercial cause with a jury, the trial judge held that the jury's verdict for the defendant was not open on the evidence, and entered judgment for the plaintiff. The defendant appealed to the NSW Full Court, which held that there was evidence to support the jury's finding and allowed the jury's verdict to stand. It entered judgment for the defendant. The High Court, although doubting whether the trial judge (rather than the Court in Banco) had power to take the course he did, agreed with him that there was no evidence to support the jury's verdict and, in accordance with s 7 of the Supreme Court Procedure Act , held that the plaintiff was entitled to verdict as a matter of law. There was no discussion of principle in relation to s 7. 100 In Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201, this Court considered whether, based on this line of authority, it should direct the entry of a verdict or judgment pursuant to s 108 of the Supreme Court Act in favour of the plaintiff where a jury in a trial of the plaintiff's imputations pursuant to s 7A of the Defamation Act had found that an imputation that the plaintiff company lied to its customers in the course of its business had been conveyed but that it was not defamatory. Having found that the second finding was perverse (at [32]), and that s 108(3) applied to verdicts in a s 7A trial (at [61]-[63]), the Court held (at [67]-[68]) that: … if the imputation is plainly defamatory and, on the relevant material, and 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. 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 s 108(3). 101 Although not expressly stated in that judgment, the logic of applying s 108(3) in favour of an onus-carrying party in such a case is not necessarily inconsistent with the statement by Latham CJ in Hocking v Bell (at 442) that a verdict can never be directed in favour of the onus-carrying party (see par [93] supra ). This is because the only evidence before the jury in almost all s 7A trials consists of the matter complained of itself. Even where publication by the defendant is an issue for the jury to determine pursuant to s 7A(4), if the matter complained of is in permanent form there will be no evidence given by witnesses on the relevant issues of whether the matter complained of conveys the imputations pleaded by the plaintiff and whether they are defamatory. There is usually therefore no evidence on those issues which it is open to jury to accept or reject. It was the existence of such evidence which Latham CJ had said prevented a verdict being entered in favour of the onus-carrying party. The fact that the plaintiff bears the onus on both of these relevant issues therefore does not preclude the application of s 108(3) in the appropriate case, permitting a verdict or judgment on either of those issues to be entered in the plaintiff's favour if the jury's verdict was such that no reasonable jury could have reached it. The position is not the same where the matter complained of is not in permanent form and where evidence is given on the issue of what was said or done in order to establish what was in fact published, but the availability of s 108(3) in such a case should await determination in the case where that question does arise. 102 However, it is not appropriate to exercise the power to enter a verdict or judgment in every case where a plaintiff succeeds in having a jury's verdict in a s 7A trial set aside as unreasonable. Both s 7 of the Supreme Court Procedure Act and s 108(3) of the Supreme Court Act use the permissive "may" rather than the imperative "shall". In Hocking v Bell , both Latham CJ and the Privy Council (which approved the Chief Justice's application of s 7 in that case) left it to the court to determine whether it was appropriate to exercise that power in the particular case (see pars [92], [98] supra ). The fact that there is no dispute in this appeal that (adopting the language used by Latham CJ and approved by the Privy Council) "only one conclusion can be said to be reasonable" - that the imputation was in fact conveyed - does not, therefore, settle the matter. 103 In Charlwood Industries Pty Ltd v Brent , this Court referred (at [45]-[46]) to the general rule that, where the case on one issue and the case on another issue are not in distinct compartments, those issues should not be decided by different tribunals. The authorities for that proposition are collected in Morgan v John Fairfax & Sons Ltd (1991) 23 NSWLR 374 at 381. See also Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 472. Whether an imputation was conveyed and whether that imputation is defamatory of the plaintiff is a clear instance where the two issues should ordinarily be determined by the same tribunal because the issues are usually interdependent. As already stated (at par [72] supra ), before the 1974 Act and the creation of separate causes of action for each imputation, the jury was asked simply whether the matter complained of was defamatory of the plaintiff. 104 Where, for example, there is a real dispute that a particular imputation was conveyed, and the jury accepted that it was conveyed but then unreasonably found that that imputation was not defamatory, it would usually be unjust to the defendant to exercise the power given by s 108(3) to enter a verdict or judgment for the plaintiff on the issue of defamation. That was the approach of this Court in the Charlwood Industries case. It was said (at [52]) that in that case it was "not self-evident that the imputation existed", and accordingly, despite the unreasonableness of the jury's verdict that the imputation was not defamatory, both issues were sent back for a new trial (at [70]-[72]). On the other hand, in Gorman v Barber (2004) 61 NSWLR 543, where a jury similarly found that the imputation had been conveyed but unreasonably found it not to be defamatory of the plaintiff, there was nothing suggested which cast any doubt on the finding that the imputation in question had been conveyed ([37], [65]). Nor was there any suggestion - for example, that the verdicts resulted from a compromise - that there was any contamination of that finding by the flawed finding that the imputation was not defamatory ([38]). Judgment was entered in favour of the plaintiff on that issue. I flag the point that, in that case, there was no further part to be played by the jury in the proceedings. 105 The present case is different from both those cases. The jury has answered only the first of the two issues which arose in relation to imputation (a): was it conveyed, and (b) was it defamatory? Understandably in those circumstances, the jury was not required to say (and it did not say) whether, even if it had been conveyed, that imputation was or was not defamatory. Juries are usually directed not to proceed to the second issue if they have found for the defendant on the first. But the interdependence of the two issues remains. This Court should rarely, if ever, proceed to decide the issue of whether an imputation is defamatory of the plaintiff before a jury has first determined that issue. That is because the jury has an especially significant constitutional role (although by no means an impregnable one) in evaluating the impact of the matter complained of on the community: John Fairfax Publications Pty Ltd v Rivkin at [184] (see also at [92]). The rejection by this Court of an appeal against the jury's verdicts in Cairns v John Fairfax & Sons Ltd on the basis that they were unreasonable is a good example of the width of the discretion given to a jury as representing the community (see at 710, 720-721). It is not possible in every case to say with confidence in advance what impression the matter complained of may have on a jury. It is usually only when a jury does give a verdict which surprises the lawyers that the issue of the reasonableness of that verdict can safely be argued. 106 An imputation must be considered in the light of the material on which it is based: Cinevest Ltd v Yirandi Productions Ltd [2000] NSWCA 68 at [45]-[46]. The relevant part of the matter complained of in the present case does not necessarily suggest that the extent to which public health was being endangered by the plaintiff was more than minimal. That a case depending on the material left in this case for the jury to consider remained in the Supreme Court would surprise many, although the reason that it was not remitted to the District Court was probably one of convenience at that stage. But, absent an existing unreasonable verdict by a jury on this issue, and for the reasons expressed in the last paragraph, I do not accept that this is a case in which this Court should say for itself that any verdict that the imputation was not defamatory of the plaintiff must be an unreasonable one. 107 A judgment entered for the plaintiff on the first of those issues would mean there must still be a new s 7A trial. That fact does not preclude an application for judgment to be entered on the first issue pursuant to s 108(3): Charlwood Industries at [60]-[61]; Gorman v Barber at [62]). However, it remains relevant to whether the order should rather be a new trial of both issues where those two issues would better be determined by the same tribunal. In my opinion, this is such a case. Were this an appeal from the first trial in which the jury unreasonably found that the imputation was not conveyed by the matter complained of, I would unhesitatingly order a new trial of both issues in relation to imputation (a) so that the one tribunal decides both issues. 108 But this is an appeal from the second trial in which the jury returned the same verdict, and different considerations arise. Where there have already been two trials pursuant to s 7A, the fact that a judgment entered for the plaintiff on the first issue requires a third trial pursuant to s 7A is a matter which may be taken into account in determining whether any action at all should be taken pursuant to s 108(3). This is particularly so in the light of the traditional reluctance of appellate courts to interfere with the verdicts of juries in defamation cases ( John Fairfax Publications Pty Ltd v Rivkin at [2], [18]-[19], [92]-[93], [110], [184]) as well as the matters discussed in the four preceding paragraphs of this judgment. This would normally lead to the next issue in this appeal, which is whether the time has come to call a halt to the succession of "unreasonable" verdicts. 109 However, in order to avoid the application of these principles in the present case, it was argued by the plaintiff that the jury in the second trial had been perverse in the more specialised sense given it by Kirby J in Rivkin (at [111]), of deliberate or blind contrariness, obduracy or idiosyncrasy, to which list I would add a misapprehension by the jury as to its function: Rivkin at [162], [167]. The plaintiff's argument is based on the fact that the jury's verdict that the imputation was not conveyed was delivered by them within a very short period after their retirement to consider their verdict. The transcript indicates that it was ten minutes, but the plaintiff says that it was only five minutes. That rather arid dispute need not be settled, as it was indeed a very short period. But that has to be seen in the context of what happened during the trial. 110 Counsel for the plaintiff agreed that he had opened the case by drawing the jury's attention to the passage on which it was claimed the imputation was based (it is less than 200 words), and that he would have described the context in which those words appeared. The jury would have had their own copies of the article before them at this stage. It was hardly necessary for every word in the remainder of the article to be studied by the jury with any care for that purpose. It was the general sense of the remainder of the article as a whole which was important in considering the relevant passage in its context. Counsel took the same approach when he opened this appeal. It did not take very long, but it was sufficient to demonstrate effectively the context of the relevant passage. I gained no further benefit from reading the whole article for myself. Counsel for the plaintiff then gave his closing address, followed by an address by counsel for the defendant. It was accepted during the appeal that the relevant matter complained of (or the substance of it) had been read to the jury three times. The judge drew the jury's attention to the relevant passage and its substance once more, and recapitulated the arguments which had been put in relation to that passage and its context. By lunch-time, the judge had concluded his directions concerning the issue whether the imputation had been conveyed, and after lunch he completed his directions and his recapitulation of the arguments on the issue of whether it was defamatory of the plaintiff. The lunch hour was one hour long. It is not unreasonable to assume that there would have been some discussion amongst the jurors during that adjournment. I agree with Kirby J in Rivkin (at [164]-[165]) that juries may (and indeed are expected) to discuss the case amongst themselves before their final retirement, although a very short adjournment may nevertheless indicate a failure of the process. See also Callinan J (at [214]) and Heydon J (at [223]). Bearing in mind the short and simple issue for the jury to determine in the present case, it would not have required much discussion between the four jurors. 111 In these circumstances, it seems to me, there can be no inference of perversity in the sense now adopted from the fact that the jury did not take the time to read through the whole of the newspaper article after their formal retirement and before delivering their verdict. It is hardly surprising that the jury did not take longer. The only thing which is surprising is the answer which the jury gave, but that is more indicative of the unreasonableness of their verdict than it is of deliberate or blind contrariness, obduracy, idiosyncrasy or a misapprehension of their function. 112 The prospect of successive unreasonable jury verdicts being set aside and successive orders for new trials was another issue considered by the High Court in Hocking v Bell . It was held (at 445, 463, 468, 499-500, 503) that an order for a further new trial was discretionary in such a case, but the way in which the discretion was exercised in that case differed as between the majority and the minority. In the light of the Privy Council's decision upholding the decision of the two dissenting justices in the High Court to restore the jury's verdict for the plaintiff, it is necessary only to refer to what was said by the dissenters, Latham CJ and Dixon J. 113 In exercising the discretionary power to grant a new trial, Latham CJ held (at 445) that the court should consider all the circumstances of the case, including in that particular case the fact that there had been more than one trial. Ultimately, he held (at 463) that, because this was the second jury verdict in favour of the plaintiff, an appellate court should be reluctant to order a yet further new trial, and (at 464) he held that the jury's verdict should be allowed to stand, even though the appellate court would have come to a conclusion different from the jury's verdict. 114 In discussing successive unreasonable verdicts, Dixon J quoted (at 488) from History of Trial by Jury (1852), Forsyth, at 191: But to this ["a general verdict can only be set right by a new trial"] there is a limit. Juries may baffle the court by persisting in the same opinion, and in such cases it has been the practice for the latter ultimately to give way. Dixon J came to the same conclusion as Latham CJ. He said (at 499-500) that the fact that a new trial had already be held with the same result as the first was relevant to the exercise of discretion, and an important consideration to that issue, and that the fact that there had been two concurring verdicts must carry weight. After citing authority, he said (at 500) that the unsuccessful party assumed a heavy burden in seeking a yet further new trial. Despite his strong feeling that the jury's verdict was mistaken, based as it was on a natural incredulity concerning the successful plaintiff's story and on the cogency of the countervailing evidence, Dixon J concluded (at 502) that, in such circumstances, the decision rested with the jury, that if the result was unjust theirs was the responsibility, and that the jury's verdict should be restored. 115 There was no criticism by the Privy Council of the reasoning which led each of Latham CJ and Dixon J to restore the jury's verdict in the last trial because it had been the second verdict in favour of the plaintiff, notwithstanding that each of them considered that, had there been only one trial, there should have been a new trial. 116 The High Court has considered some aspects of Hocking v Bell more recently, in Naxakis v Western General Hospital (1999) 197 CLR 269 and Swain v Waverley Municipal Council (2005) 79 ALJR 515. Both appeals arose out of claims made for damages for personal injuries, and the High Court was concerned not with the power of an appellate court to enter judgment for the plaintiff where the jury's verdict for the defendant was (or would have been) unreasonable, but rather whether there was any evidence on which a jury could reach a verdict for the plaintiff. Those decisions do not add to the body of judicial learning on the issue with which the present appeal is concerned. 117 In my opinion, there was sufficient substance in the plaintiff's submissions as to warrant (i) an extension of time for filing the application for leave to appeal and (ii) the grant of leave to appeal from both the judgment entered. Nevertheless, the course followed in Hocking v Bell should be followed in the present case by allowing the jury's verdict to stand. The appeal should therefore be dismissed. However, the present judgment for the defendant was erroneously limited to imputation (a) (see pars [45]-[46] supra ). As that imputation was the only imputation remaining in the Statement of Claim not disposed of, there should be judgment in favour of the defendant in the whole of the action. That result should carry with it orders that the plaintiff pay the defendant's costs of the action and of this appeal. 118 Before proposing the orders to be made in this appeal, it is necessary to say something concerning what counsel for the plaintiff has described (apparently accurately) as a new pleading practice in defamation litigation developed since the introduction of s 7A jury trials. This new practice is to plead the imputations for which the plaintiff contends in the words of the matter complained of itself, rather than (as was previously the practice) in order to identify the act or condition attributed to the plaintiff by the publication giving rise to the defamation, which usually has to be distilled or inferred from those words. Such a practice has certainly been followed to the letter by the plaintiff in this case in relation to the imputations which he sought to add, although not in relation to the imputations which were originally pleaded. 119 There was considerable discussion of this pleading practice during the course of the appeal. It completely ignores the substantial importance of the plaintiff's imputations in relation to most of the issues which arise in defamation proceedings: (a) As I have already stated (at par [73]), each imputation on which the plaintiff relies has since the Defamation Act 1974 become a separate cause of action pursuant to s 9(2) of that Act. (b) If the defendant pleads a defence of truth pursuant to s 15 of the Act, he is required to plead it to the particular imputation - that is, he must prove that the plaintiff's pleaded imputation is true: s 15(2). (c) If the defendant pleads a defence of contextual truth pursuant to s 16 of the Act, the contextual imputations on which he relies must be related to the plaintiff's pleaded imputations: s 16(1). (d) If the defendant pleads a defence of qualified privilege pursuant to s 22 of the Act, and even though that defence is not pleaded to the plaintiff's imputations, he must establish that his conduct in publishing the matter to the persons to whom it was published was reasonable under the circumstances (s 22(1)(c)), by showing that the imputations pleaded by the plaintiff were relevant to the information published: Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 711-712. (e) If the defendant pleads a defence of comment, that defence is available only pursuant to Division 7 of the Act. Again, the defence is not pleaded to the plaintiff's imputations. Nevertheless, the defence of comment by either the defendant or by a servant or agent of the defendant will be defeated if it is shown that, at the time the comment was made, it did not represent the opinion of the defendant (s 32(2)) or that such servant or agent did not have the opinion represented by the opinion: s 33(2). If, therefore, the defendant answers an interrogatory by saying that he or his servant or agent did not intend to convey any particular imputation pleaded by the plaintiff, and if the comment is congruent with that imputation, the defendant must fail in relation to his defence of comment: Illawarra Newspapers Pty Ltd v Butler (Court of Appeal, 12 November 1980, unreported); Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 485-486 (this ruling was not challenged in the subsequent appeal to this Court: Bickel v John Fairfax & Sons Ltd [1982] 1 NSWLR 498). 120 As already stated with reference to High Court authority (at par [83] supra ), the word "imputation" is properly used with reference to any act or condition asserted of or attributed to a person. In Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 183, Reynolds JA accepted that High Court authority as applying to the 1974 Defamation Act , and it has so been accepted in many cases since. It has been the accepted view of this Court for at least the last ten years (see par [125] infra ). 121 In Petritsis , Samuels JA said (at 191) that imputations will invariably be a distillation rather than a restatement of the words which were published. That this must be so is a necessary consequence of the facts that (a) words are but instruments by which people express and convey their meaning ( Lewis v Daily Telegraph Ltd , at 266), but that (b) outside of legal documents, it is recognised that the words used by people are imprecise instruments for that purpose: Slim v Daily Telegraph Ltd at 171. Very rarely is the act or condition attributed to the plaintiff expressly stated in the matter complained of, rather is it more usually implied or to be inferred: Jones v Skelton [1963] SR 644 at 650. The charge is often to be read only between the lines ( Lewis at 258), or by insinuation ( Ibid at 280), or it may be so near the surface that it is hardly hidden at all, or it may be more difficult to detect: Ibid at 278. But what is clear, beyond the possibility of any contradiction, is that in very few cases will the words of the matter complained of plainly identify the act or condition attributed to the plaintiff of which he complains. 122 In Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported), Samuels JA (with whom Moffitt P and Reynolds JA agreed) said (at 5): It is not always sufficient that an imputation should repeat the language of the matter published. Sometimes that will be enough, but more often an imputation must distil rather than recapitulate. Samuels JA went on to say (at 6): There are two matters of general relevance which the proceedings raise. It is essential that imputations should be clear and precise. This standard will often not be met merely by adopting the language of the matter published. It must be borne in mind that the purpose of an imputation is to specify the meaning which the language of the matter, which may be imprecise or rambling and prolix, is alleged to convey. I add also that the elucidation of the meaning of an imputation should not be left to an application for particulars. Hence an imputation may need to be couched in terms significantly different from those which the matter employs. Further, a plaintiff may rely upon as many imputations as he desires, provided that they do not infringe the requirements of Pt 67 r 11(3). This sub-rule does not justify or entail rolling up a number of separate and independent defamatory assertions into one imputation. 123 It is too late to leave the identification of that act or condition which the plaintiff will ask the jury to find was conveyed to the ordinary reasonable reader - or, even worse, the meaning intended by the imputations pleaded by the plaintiff - to be ascertained at the trial of the defences in the case, where it is for the judge and not the jury to determine whether those defences have been made out (s 7A(4)). The difficulties which arise where the act or condition alleged to have been attributed to the plaintiff is not clearly defined for that purpose are well illustrated by the confusion which occurred in the trial of Singleton v Ffrench (1986) 5 NSWLR 425. They are described at 433-436. It is imperative that the judge know precisely what imputations the matter complained of has been found by the jury to have conveyed in order to determine those defences. That is very unlikely to have been made clear if the imputations are merely stated in the words of the matter complained of itself. 124 There has been a lot of judicial time spent in this Court over the years debating the need for precision in the way a plaintiff pleads his imputations in a defamation action. The debate came to a head in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. Gleeson CJ described (at 137) the requirement of Pt 67 r 11(2) that the plaintiff's Statement of Claim "shall … specify each imputation on which the plaintiff relies" as requiring the plaintiff to specify in his Statement of Claim the act or condition which he claims was attributed to him by the matter complained of. The Chief Justice agreed (at 138) with a statement made at first instance in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155, that: The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends. Priestley JA came to the same conclusion as the Chief Justice. He said (at 155) that the plaintiff's imputations must identify the meaning for which he contends with sufficient clarity to let the defendant know the case he has to meet and to enable him to plead substantially in answer to it. On the other hand, Kirby P preferred to follow the earlier decision in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, which permitted (at 687) a plaintiff to plead an imputation which covered "defamations of different seriousness" (cf Pt 67 r 11(3)) and to have any imputation put to the jury "in general terms", and which held (at 688, 693) that the defendant, having used the words, is not entitled to have the plaintiff identify in his imputation the meaning which he will ask the jury to accept how those words were understood by the ordinary reasonable reader. However, Kirby P did quote without apparent dissent (at 143) the first of the two passages from the judgment of Samuels JA in Feros I have already quoted (at par [122] supra ). 125 In Rigby v John Fairfax Group Pty Ltd (Court of Appeal, 1 February 1996, unreported; special leave to appeal refused: (1996) 17 Leg Rep SL2a), the approach of Gleeson CJ and of Priestley JA in Drummoyne Municipal Council was held (by Priestley JA (at 12), with whom Meagher JA agreed) to be "well settled". Kirby P (at 1) acknowledged with regret that his dissent in Drummoyne had been "to no avail". In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162, this Court said that, in Drummoyne , it had once again reaffirmed its earlier stand - in cases such as Feros v West Sydney Radio Pty Ltd and Singleton v Ffrench - that an imputation must be stated with sufficient precision as to avoid the likelihood of confusion in relation to the meaning for which the plaintiff contends. That statement made it abundantly clear, if indeed it had not been made clear before, that the plaintiff is not obliged in his imputation to identify what the defendant intended to convey by what was published. What the plaintiff is obliged to do is to identify for the defendant in his imputation the act or condition which he will ask the jury to accept was understood by the ordinary reasonable reader as having been attributed to him by the matter complained of. 126 Merely pleading the words of the matter complained of as the imputation for which the plaintiff contends where those words do not adequately distil the act or condition attributed to the plaintiff, and thus identify his cause of action, is not a compliance with Pt 67 r 11(2). The whole point of having the jury determine whether the imputations were conveyed before the defendant is obliged to plead to the plaintiff's Statement of Claim is completely lost. Counsel for the plaintiff sought to excuse this non-compliance with Rule 11(2) on the basis that the new pleading practice has been forced on plaintiffs as the only way in which they can obtain a verdict in their favour from juries in s 7A trials. He said that, because s 7A trials are very short (usually only a day or a day and a half), juries do not understand their task, they are not very good at it, they appear to resent not hearing from the plaintiff as to whether the matter complained of is true or false (which, he suggested, is the only thing which really counts with them), and that, no matter how often they are told that truth or falsity is irrelevant to their task, they appear to believe that this evidence is being withheld from them by the plaintiff's lawyers. He says that this is illustrated by the number of unreasonable verdicts in s 7A trials which are being set aside by this Court on appeal. Under the old system, he said, juries came to understand their task after being involved in the process for a week or more.

127 Justification for pleading the imputations in the words of the matter complained of is sought in a statement by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (at 137), that the requirement placed by r 11(2) on the plaintiff to specify the act or condition which he claims was attributed to him cannot go beyond doing the best that can reasonably be done in the circumstances. It is said that, as the plaintiff does not know the precise sense the defendant intended to convey, the most he can reasonably do in the circumstances is to use the defendant's own words in his imputations. This is a complete misinterpretation as to what the Chief Justice said in Drummoyne . 128 Gleeson CJ said (at 137) that the requirement that the plaintiff specify the act or condition he claims was attributed to him raises questions of degree, and that the satisfaction of that requirement depends on the circumstances of the particular case, as the attribution of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. Therefore, the Chief Justice said, the requirement placed on the plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances, and the appropriate degree of specificity needs to be related to the nature and content of the defamatory matter. Those statements do not justify this new method of pleading imputations. 129 To start with, the issue is not what the defendant intended to convey; the issue is how the ordinary reasonable reader interpreted what the defendant said. What the Chief Justice made clear when he commenced his remarks on this subject was that the plaintiff must specify the act or condition "which he claims was attributed to him" and he concluded his remarks by accepting the test formulated at first instance (already quoted in par [124] supra ) that the issue which has to be decided in the particular case is "whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends ". The plaintiff is required to specify the act or condition which he contends was understood by the ordinary reasonable reader as being attributed to him by the matter complained of. Unless his imputation identifies that act or condition, the defendant has no way of knowing whether he can plead various defences to the publication. He is entitled to have that identification made before pleading. The trial judge who has to decide the defences pleaded is also entitled to have identified the act or condition found by the jury to have been understood by the ordinary reasonable reader as being attributed to the plaintiff by the matter complained of. 130 It is true that there does appear to be a number of unreasonable verdicts in s 7A trials being set aside on appeal, but I suspect that the complaint now being made is an attempt at self-justification by counsel who have not had the experience with juries which is necessary to communicate with them adequately, rather than an acceptable explanation for those unreasonable verdicts. Indeed, if the complaint is correct that juries resent not having evidence of truth or falsity in order to determine whether something is or is not defamatory no matter how many times they are told that such evidence is irrelevant (see Ainsworth v Burden at [87]-[92]), that suggests that juries never understand the issue, for I do not accept that an immersion in a trial for one or two weeks instead of a day and a half is likely to improve their understanding of that issue. Nor do I accept that juries never understand the issue.

131 If the number of unreasonable verdicts being set aside on appeal is indeed too high, it may well be time for consideration to be given to either a return to the previous system of complete jury trials or to having every issue in a defamation action being determined by a judge. However, the reasons given by the NSW Law Reform Commission for recommending the present division of functions (DP 32, Chapter 4, and LRC 75, Chapter 3) remain very valid today. I do not believe that the present incidence of unreasonable verdicts in s 7A trials is in truth any greater than the incidence of new trials being ordered before the current mix was introduced, when comparatively few complete jury trials survived on appeal.

132 However, whether or not the complaint now made is accurate, this new pleading practice claimed by counsel for the plaintiff must be stopped if the judges who have to determine the remainder of the issues in the trial are to be able to make proper findings on those other issues. There is no way in which they will be able to do so if the plaintiff's imputations are not properly pleaded. 133 I propose that the following orders be made: 1. Leave is granted to the plaintiff to appeal from the refusal by Levine J on 22 March 2004 to grant him leave to amend his Statement of Claim. 2. The appeal against the order made by Levine J on 22 March 2004 is dismissed. 3. The time for filing an application for leave to appeal from the judgment entered for the plaintiff on imputation (a) on 19 August 2004 is extended until 4 November 2004. 4. Leave is granted to the plaintiff to appeal from that judgment. 5. The judgment entered on 19 August 2004 is varied by deleting both paragraphs and inserting in lieu thereof: 1. Judgment for the defendant in the action. 2. The plaintiff is to pay the defendant's costs of the action. 6. The plaintiff is ordered to pay the costs of this appeal; if eligible, he is to have a certificate under the Suitors Fund Act 1951. --------------------------

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