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: