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[2007] HCA 28
High Court of Australia
2007-06-14
Crennan JJ
Original judgment source is linked above.
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
1. Set aside the orders of the Court of Appeal of the Supreme Court of New South Wales made on 30 June 2006 and in their place make the following orders:
2. Set aside the orders of Bell J made on 2 June 2005 and in their place order that:
(a) verdicts be entered that the matter complained of by the appellants carries each of the imputations identified as imputations (a) and (c) and that imputations (a) and (c) are defamatory;
(b) a verdict be entered for the respondents in relation to imputation (b); and
(c) the issues of whether the matter complained of carries the imputation identified as imputation (d) and whether that imputation is defamatory be remitted for determination by a jury in accordance with s 7A of the Defamation Act 1974 (NSW).
3. The appellants to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled.
4. Order that the appellants pay 25 per cent of the respondent' costs of the trial before Bell J and a jury, the respondents pay 50 per cent of the costs of the appellants of that trial, and that the balance of the costs of that trial abide the outcome of the further trial pursuant to s 7A of the Defamation Act 1974 (NSW)."
On appeal from the Supreme Court of New South Wales
T D Blackburn SC with D R Sibtain for the appellants (instructed by Freehills)
G O'L Reynolds SC with C A Evatt and P Kulevski for the respondents (instructed by Beazley Singleton Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Defamation - Statutes - Interpretation of Supreme Court Act 1970 (NSW) ("Supreme Court Act") - Section 108(3) - Defamation action - Appeal challenging findings of a jury made under s 7A(3) of the Defamation Act 1974 (NSW) ("Defamation Act") on specific issues put to the jury - Powers of an appeal court to direct a verdict for the plaintiff on such issues in the event of a successful appeal.
Statutes - Interpretation - "May" - Appeal challenging findings of a jury on specific issues in defamation proceedings - Whether Supreme Court Act, s 108(3) confers a power, with a duty to exercise that power once the relevant entitlement to a verdict on any issue in the proceedings is established as a matter of law.
Statutes - Interpretation - Supreme Court Act, s 108(3) - Defamation Act, s 7A - Defamation action - Jury found that there were imputations conveyed but that those imputations were not defamatory - Role of the jury in defamation proceedings - Whether the Court of Appeal must order a new trial where it holds that a jury's answers to issues put to the jury in defamation proceedings are unreasonable.
Defamation - Business defamation - Nature of the test for defamation where a plaintiff alleges damage to business reputation - Procedure in jury trials in New South Wales - Application of Defamation Act, s 108(3).
Words and phrases - "any cause of action, issue or claim for relief", "may", "direct a verdict and give judgment accordingly", "as a matter of law", "entitled to a verdict", "business defamation".
Defamation Act 1974 (NSW), ss 7A, 9, 46, 46A.
(a) The respondent sells unpalatable food at Coco Roco
(c) The respondent provides some bad service at Coco Roco.
"The appellants had recently opened their restaurant at King Street Wharf. The appellants had promoted the restaurant in terms: 'A new level of dining comes to Sydney's King Street Wharf'. The restaurant had been fitted out expensively and had extensive views of Darling Harbour. The style and price of the food was, as it appears from the article, intended to indicate that this was a high class restaurant. As I have indicated, the location at Darling Harbour was itself prestigious in a city which is sophisticated and cosmopolitan. > > The food served in any restaurant is its essential business. If the food is 'unpalatable' the restaurant fails on the very matter that is the essence of its existence. This is especially so of a purportedly high class restaurant. To say of a restaurateur of such an establishment that they sold 'unpalatable' food injures that person in their business or calling and because of that, is defamatory. In my opinion, no reasonable jury properly directed could reach any other verdict. > > Service is also an integral part of the experience of dining. Good service is expected at a high class restaurant. It is part of what the patron pays for. It is almost trite to say that poor service, even occasional poor service within the one dining experience, will not be tolerated by patrons of an expensive 'swank' restaurant. To say, therefore, that the appellants provided 'some bad service' at Coco Roco, even though the damnation was not total, would injure a person in their business or calling as a restaurateur and was likewise defamatory. No reasonable jury properly directed could reach any other verdict."
"[I]f a case was set down for trial by a jury, and either party was dissatisfied with the result, the dissatisfied party, if there had been a verdict, might move for a new trial. Later a form of procedure had been adopted by which a verdict was taken, leave being reserved to either party to move to have it set aside or a different verdict or a nonsuit entered. Then the Court in Banco on motion could make the appropriate order. But if no leave was reserved all that the Court could do was to grant a new trial, and if there was no verdict there was nothing to be done but to set the case down again for trial, because nothing could be done except after a verdict, which was the foundation of the procedure. You could not depart from that rule, however plain the right might be, except by having leave reserved. Then the [New South Wales] legislature, being no doubt aware of the change that had been effected in the law and practice in nearly all other parts of the British dominions, passed, amongst other enactments, s 7 [of the Supreme Court Procedure Act 1900 (NSW) ('the 1900 Act')]."
"(1) 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. > > (2) If the Court in Banco orders a new trial of any action, issue, or question which has been tried before a Judge without a jury, it may direct such new trial to be heard before a Judge either with or without a jury."
Of s 7 in this form, Griffith CJ said in Heydon v Lillis[12]:
Primâ facie, the words are to be construed literally, as they stand. They begin 'In any action,' and the succeeding words show that the provision is exactly applicable to every case where there has been an attempt to try a case with a Judge or a jury, where there has been a trial; they apply to all cases in which the plaintiff should have been nonsuited, or, on the evidence, the plaintiff or the defendant was entitled to a verdict as a matter of law. These words cover every case."
"Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury."
Section 102 is a general provision dealing with appeals after jury trials and provides:
"Where, in any proceedings in the Court, there is a trial of the proceedings or of any issue in the proceedings with a jury, an application for: > > (a) the setting aside of a verdict or judgment, > > (b) a new trial, or > > (c) the alteration of a verdict by increasing or reducing any amount of debt, damages or other money, > > shall be by appeal to the Court of Appeal."
Section 108 was included as a special provision to continue[15]:
"the power of the Court of Appeal to dispose of an appeal by final order where it is practicable to do so, rather than remit the case to the Court of first instance".
"(1) This section applies to an appeal to the Court of Appeal in proceedings in the Court in which there has been a trial with a jury. > > (2) Where it appears to the Court of Appeal that on the evidence given at the trial a verdict for the plaintiff could not be supported and that, pursuant to any provision of the rules, an order ought to have been made for the dismissal of the proceedings either wholly or so far as concerns any cause of action in the proceedings, the Court of Appeal may make an order of dismissal accordingly. > > (3) 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." (emphasis added)
"[W]hen a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application. > > For these reasons, we are of opinion, that the word 'may' is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises."
This Court in terms has applied this reasoning in decisions including Finance Facilities Pty Ltd v Federal Commissioner of Taxation[18] and most recently in Leach v The Queen[19]. In R v Commonwealth Industrial Court; Ex parte The Amalgamated Engineering Union, Australian Section[20], Fullagar J indicated that "[t]o overcome this very important rule of construction" a strong and direct provision is required. None is found in s 108(3) of the 1970 Act. The reference to entitlement to a verdict points in the other direction and to the operation of the rule of construction.
"What is proposed is that at an early stage in a defamation action a jury will be required to answer two questions. The first is whether the imputations alleged are conveyed by the published material. The second is whether, if the answer to that question is yes, the imputations are defamatory. If the jury answers either of those questions no, the judge will enter judgment for the defendant. > > That is what occurs now in defamation cases where a jury is empanelled. It is where the jury answers the threshold questions in the affirmative that the change will take place. In proceedings at present the jury is retained to determine some questions of fact inherent in certain defences. Under this bill that will not occur. Having dealt with the preliminary questions the jury will be discharged from further participation in the trial, which will then proceed before the judge alone, he or she determining all defences and, in due course, assessing any damages. By allocating to the jury what is a vital decision in the trial the arrangement maintains an appropriate degree of community involvement. At the same time, by providing that the trial shall thereafter proceed before the judge alone, a substantial amount of time and money will be saved and the complexities which now arise in the course of a trial because of the current division of functions of judge and jury will be overcome."
"Falsity and hurt to feelings are, of course, irrelevant to the issues of meaning and defamation in the trial - whether it be a s 7A trial or the conventional defamation trial. But the plaintiff's evidence on those matters usually tends to create sympathy for the plaintiff and sometimes prejudice against the defendant. The s 7A procedure eliminates these advantages for the plaintiff who must conduct the case in the detached - and some would say unreal - atmosphere of a jury trial on documentary evidence."
2. Set aside the verdicts for the [appellants]. > > 3. There be verdicts for the [respondents] in respect of imputations (a) and (c). > > 4. The [respondents'] claim in relation to imputation (d) be remitted for determination by a jury in accordance with s 7A of the [1974 Act]."
"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."
It will be apparent that, as in this case, the determination by the jury at the second stage of whether the matter complained of carries the imputation and, if so, whether it is defamatory, falls for determination in the absence of consideration of any defence that would be litigated only at the third and final stage.
"1. Appeal allowed with costs. > > 2. Set aside the orders of Bell J made on 2 June 2005 and in their place order that: > > (a) verdicts be entered that the matter complained of by the [respondents] carries each of the imputations identified as imputations (a) and (c) and that imputations (a) and (c) are defamatory; > > (b) a verdict be entered for the [appellants] in relation to imputation (b); and > > (c) the issues of whether the matter complained of carries the imputation identified as imputation (d) and whether that imputation is defamatory be remitted for determination by a jury in accordance with s 7A of the [1974 Act]. > > 3. The [respondents] to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled."
There is also a dispute as to the appropriate provision for costs, consideration of which can be deferred until later in these reasons.
"[s]ometimes it is used to describe a disregard of a direction from the judge. Sometimes it refers to a finding contrary to that which the facts of the case legally demand. But I think it always means something more than a verdict against the weight of the evidence".
"In Morgan v Savin[34] Willes J decided that when the circumstances of the engagement and the dismissal are all proved by written documents in evidence, the question whether the dismissal was justified is one of law for the decision of the Court and not for the jury. In the present case the contract is in writing and the justification for its termination is found in the telegrams and the letter of the appellant the despatch of which is undisputed. In my opinion the jury could not adopt any explanation or modification of these documents which is compatible with a due observance on the part of the appellant of the condition of his contract of agency. I therefore agree with the Supreme Court in thinking the respondent was, as a matter of law, entitled to a verdict."
"The food served in any restaurant is its essential business. If the food is 'unpalatable' the restaurant fails on the very matter that is the essence of its existence. This is especially so of a purportedly high class restaurant. To say of a restaurateur of such an establishment that they sold 'unpalatable' food injures that person in their business or calling and because of that, is defamatory. In my opinion, no reasonable jury properly directed could reach any other verdict. > > Service is also an integral part of the experience of dining. Good service is expected at a high class restaurant. It is part of what the patron pays for. It is almost trite to say that poor service, even occasional poor service, within the one dining experience, will not be tolerated by patrons of an expensive 'swank' restaurant. To say, therefore, that the appellants provided 'some bad service' at Coco Roco, even though the damnation was not total, would injure a person in their business or calling as a restaurateur and was likewise defamatory. No reasonable jury properly directed could reach any other verdict." (original emphasis)
"4. Order that the [respondents] pay 25 per cent of the [appellants'] costs of the trial before Bell J and a jury, the [appellants] pay 50 per cent of the costs of the [respondents] of that trial, and [that] the balance of the costs of that trial abide the outcome of the further trial pursuant to s 7A of the [1974 Act]."
"[T]he plaintiffs have been greatly injured in their character, credit, reputation, trade and profession and have been brought into public hatred, ridicule and contempt."
"85 Trial without jury unless jury required in interests of justice > > (1) Proceedings in any Division are to be tried without a jury, unless the Court orders otherwise. > > ... > > 86 Common law claim - defamation > > (1) Proceedings on a common law claim in which there are issues of fact on a claim in respect of defamation are to be tried with a jury. > > (2) Despite subsection (1), the Court may order that all or any issue of fact be tried without a jury if: > > (a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury, or > > (b) all parties consent to the order."
"90 Special verdict > > It shall be the duty of a jury to answer any question of fact that may be left to the jury by the presiding Judge at the trial. > > ... > > 102 Appeal after jury trial > > Where, in any proceedings in the Court, there is a trial of the proceedings or of any issue in the proceedings with a jury, an application for: > > (a) the setting aside of a verdict or judgment, > > (b) a new trial, or > > (c) ... > > shall be by appeal to the Court of Appeal. > > ... > > 107 Substituted verdict > > Where, in an appeal to which this section applies: > > (a) the Court of Appeal would, but for this section set aside the verdict, finding, assessment or judgment and order a new trial on an issue of the amount of debt or damages or of the value of goods, > > (b) the Court of Appeal is satisfied that: > > ... > > it is fully able to assess the amount of debt or damages or the value of the goods on perusal of the evidence ... and > > (c) (i) the parties consent to the exercise of the powers given by this section, > > (ii) it appears to the Court of Appeal to be desirable to exercise the powers for the purpose of avoiding a multiplicity of trials, or > > (iii) it appears to the Court of Appeal that, as a result of an error of law on the part of the trial judge or (where there has been a trial with a jury) a manifest error on the part of the jury, some item of debt or damages or valuation has been wrongly included in or excluded from the assessment, > > the Court of Appeal may draw inferences and make findings of fact, assess the amount of debt or damages or the value of goods in such sum as in the opinion of the Court of Appeal the debt or damages or value ought to be assessed if a new trial were had forthwith and substitute that sum for the sum awarded in the Court below and give such judgment and make such order as the nature of the case requires."
. The respondents' claim for injurious falsehood has not been heard. Nor, pending the outcome of these proceedings, have any issues of the defences to defamation or of damages (if any) been decided[69];
. Given that this appeal concerns only imputations (a) and (c), this Court is unconcerned with those parts of the Court of Appeal's reasons that address the suggested prohibition on supporting a defamatory imputation such as (d) by drawing an inference based on an inference[72].
"Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him, is called defamatory, and the matter of the imputation is called defamatory matter. > > The imputation may be expressed either directly or by insinuation or irony." (emphasis added)
"[D]efamation is concerned to protect the plaintiff's business reputation just as much as his or her personal or social attributes, so that statements which disparage a person in his or her calling will also be branded as defamatory."
(1) The appellate power issue: Did the Court of Appeal err in concluding that it had the power, pursuant to s 108(3) of the Supreme Court Act, to substitute its own answers for those of the first jury in respect of imputations (a) and (c)?
(2) The exercise of power issue: If the Court of Appeal had such power, did it err in exercising that power in the circumstances of this case by failing to order a retrial before the second jury of all of the issues that were held to have miscarried before the first jury?
Appellate power exists to direct a verdict for the plaintiff
"Each side is equally entitled to justice. The appellate court must, of course, pay proper respect to the jury verdict. The jury are the fact finders. In a civil case, the jury, as fact finders, are entitled to the same respect, no more and no less, than that which is due to a trial judge sitting without a jury. The difference is that the trial judge's reasoning will be, or should be, on the face of the judgment whereas the jury's reasons, being undisclosed, will need to be re-constructed by the appellate court. Subject to that important difference, however, the factual conclusions of juries in civil cases should, in my opinion, be treated by an appellate court no differently, with no greater and no less respect, than the factual conclusions of judges."
"The oracular utterance of the jury contains no reasoning, no elaboration. But it is not immune from review. The jury is a judicial decision-maker of a very special kind, but it is a judicial decision-maker none the less. While speculation about the jury's reasoning and train of thought is impermissible, the drawing of inevitable or proper inferences from the jury's decision is not, and is indeed inherent in the process of review."
"[I]f the imputation is plainly defamatory and, on the relevant material, any other decision would be perverse, it would follow, as a matter of law, that the Court of Appeal may direct a verdict on the issue whether a defamatory meaning arises and give judgment accordingly. > > 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 ... In such circumstances the practicalities of the situation and common sense cry out for the Court to proceed under s 108(3)."
"The question whether a restaurant serves unpalatable food or provides some bad service does not raise questions of community standards of the type discussed in Cairns v John Fairfax."[122]
"[T]he layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory."
"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 ... in evaluating the impact of the matter complained of on the community."
"[S]hould the jury again bring in a verdict that the imputation was not defamatory, that verdict would once more be overturned on the same ground."
An appellate court, in such a case, might take that course. However, in several well-known instances, appellate judges have ultimately accepted that jurors were entitled to reach a conclusion different from that of the judges.
"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."
In Hocking v Bell, Dixon J, like Latham CJ, concluded that such was the course that this Court should adopt. It was that conclusion that ultimately prevailed in the Privy Council.
(a) The respondents sell unpalatable food at Coco Roco. > > (b) The respondents charge excessive prices at Coco Roco. > > (c) The respondents provide some bad service at Coco Roco. > > (d) The respondents are incompetent as restaurant owners because she/he employs a chef at Coco Roco who makes poor quality food.
The Section 7A Trial
"7A Functions of judge and jury > > (1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning. > > (2) If the court determines that: > > (a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or > > (b) the imputation is not reasonably capable of bearing a defamatory meaning, > > the court is to enter a verdict for the defendant in relation to the imputation pleaded. > > (3) If the court determines that: > > (a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and > > (b) the imputation is reasonably capable of bearing a defamatory meaning, > > the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory. > > (4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: > > (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and > > (b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. > > (5) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section."
(1) Where a person publishes any report, article, letter, note, picture, oral utterance or other thing, by means of which or by means of any part of which, and its publication, the publisher makes an imputation defamatory of another person, whether by innuendo or otherwise, then for the purposes of this section: > > (a) that report, article, letter, note, picture, oral utterance or thing is a matter, and > > (b) the imputation is made by means of the publication of that matter. > > (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 for the publication of that matter to that recipient: > > (a) in addition to any cause of action which the person defamed may have against the publisher for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication, and > > (b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient. > > ... > > (5) Notwithstanding subsection (2), where proceedings for defamation in respect of the publication of any matter are tried before a jury, the jury shall, unless the court otherwise directs: > > (a) give a single verdict in respect of all the causes of action on which the plaintiff relies. > > (5A) Notwithstanding subsection (2), if the court or the jury (if any) finds for the plaintiff as to more than one cause of action in the same proceedings for defamation, the court may assess damages in a single sum. > > (6) This section does not affect: > > (a) any law or practice relating to special verdicts, or > > (b) the powers of any court in case of vexatious proceedings or abuse of process."
"46 General > > (1) In this Part relevant harm means, in relation to damages for defamation: > > (a) harm suffered by the person defamed, or > > (b) where the person defamed dies before damages are assessed, harm suffered by the person defamed by way of injury to property or financial loss. > > (2) Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm. > > (3) In particular, damages for defamation: > > (a) shall not include exemplary damages, and > > (b) shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm."
"Crash and Burn > > When dining on the view is the only recommendation > > If a restaurant serves good as well as bad food, do you give it the benefit of the doubt? I wouldn't do that with a three chef's hat restaurant, so why should I do it here? Especially when more than half the dishes I've tried at Coco Roco are simply unpalatable. > > Coco Roco is the swank new eatery at King Street Wharf. The opening was touted as 'Sydney's most glamorous restaurant'. If glamour peaked at about 1985, then perhaps they're right. Something about the polished stainless steel around the open kitchen and the black reflector tiles in the bathroom make me feel I should be wearing a pink shirt and a thin leather tie. Maybe it's just me. > > What isn't disputable is that this place has had a $3 million fitout, has views westwards over the water and scored Sarah O'Hare as its official guest at the opening. It has set itself up as a flash restaurant with big-end-of-town prices. Its business card even boasts that 'A new level of dining comes to Sydney's King Street Wharf.' I couldn't agree more. > > Coco Roco is actually two restaurants: Coco, the posh place upstairs off Lime Street, and sibling Roco, also smartly fitted out on the foreshore. Forever in pursuit of excellence, we chose the more expensive option. > > Expensive is right. Mains skid dizzily from a vegetarian dish at just under $30 and crash over the $50 mark. It's a brave restaurateur who tries that without the goods to back it up. > > A degustation of oysters ($28 for six/$40 for 12) arrives as different flavoured bivalves, rather than as oysters from various regions. There's a saffron infused gin one. There's a seafood foam which looks like it's been piped on top. The texture is scary and, let's be polite, not to my tastes. The limoncello, however, is worse - flavours jangle like a car crash; all at once it's sickly sweet, overtly alcoholic, slippery, salty and bitter. > > Only the lone natural oyster is gloriously free from interference and there's an exquisite verjuice jelly on another. > > Next up, the carpaccio of beef ($22) comes with a dreary roast almond paste underneath and far too many yellowing rocket leaves on top. The meat itself is fine, although the parmesan cheese strips taste tired. > > Small Queensland scallops ($24) on jagged shells with cauliflower and vanilla nearly work but are uninteresting. > > Why anyone would put apricots in a sherry-scented white sauce with a prime rib steak is beyond me. A generous chock of meat comes perfectly rested, medium as ordered. But the halves of apricot are rubbery and tasteless (which is probably a good thing). I scrape the whole wretched garnish to one side. The meat has a good length of flavour and is a damned fine steak, even if it is $52. I can't help but think at this price I could be dining at Rockpool. > > On a side dish, three house-made mustards - milk, Guinness and lavender - prove that some things are better left alone. > > The other main, roast chicken ($35) is outstandingly dull, which is odd considering it's a Glenloth bird that I usually love. > > A few days later, in the interests of impartiality, I'm back. This time it's salad to start ($8), sweetly dressed with honey and balsamic vinegar and topped with fine cress. It's not great but passable, except for a few wilting leaves. > > A poached beef fillet ($46) shows, like last visit, that they can cook steak. This time it's medium rare, although the meat is curiously dry on the edges. But the accompanying broth is well below average. It is sticky sweet with port and overcooked potatoes floating in it do it no favours. Oxtail and sweetbread dumplings are a delight, however. > > I've never had pork belly that could almost be described as dry. Until tonight. A generous square of pig's paunch ($33) is snuggled into a mass of starchy lentils. The meat is unevenly spiced with Moorish flavours and the lentils are poor. Texturally, it brings to mind the porcine equal of a parched weetbix. > > For dessert, honeycomb cheesecake ($17) has little to recommend it, with its soggy pastry base. Compared with the raspberry and shiraz sorbet, however, it's heaven. > > A dismal pyramid of sorbet ($15) jangles the mouth like a gamelan concert. Poached berries underneath are OK, except for what I guessed might have been soggy blackberries. > > It could be argued that Coco is still settling in. But apricots in sherry-scented white sauce aren't meant to garnish a rib eye of beef. The menu isn't held back by minor glitches; it's flawed in concept and execution. > > In a city where harbourside dining has improved out of sight in recent years, Coco Roco is a bleak spot on the culinary landscape. > > ... > > The address: 17 Lime Street, King Street Wharf, City. > > ... > > The Hours: Coco lunch Tue-Fri noon-3pm, dinner Tue-Sat from 6pm. (Roco lunch and dinner daily.) > > The Food: Contemporary Mediterranean. > > The Wine List: Good, solid list with plenty of interest. > > The Owners: Aleksandra and Liliana Gacic, Branislav Ciric. > > The Chef: Adam Birtles. > > The Service: Good and bad. > > The Noise: Could get loud. > > The Vegetarians: Three dishes, plus plenty of sides. > > The Wheelchair access: Yes to Roco, stairs to Coco. > > The Cards: Major except Diners Club. > > The Bill: Entrees $17-$24, mains $28-$52, desserts $15-17. Less at Roco. > > The Value: A shocker. > > The Summary: Unpalatable flavours on one hand and pricey but good steak with flawed garnishes on the other add up to a restaurant where the view is the best bit. And you can't eat that. > > Coco Roco, city, 9/20."
"Addresses to the jury: > > [Respondents'] case > > The [respondents] had specifically pleaded a case of business defamation in paragraph 6 of the Statement of Claim and this was the basis upon which their counsel addressed the jury. No case of general defamation was pleaded or pursued before the jury. When addressing the jury the [respondents'] counsel explained the way that the [respondents] brought their claim in these terms: > > '... that imputation if you found it to be conveyed [was] likely to injure the [respondents'] reputation in their business, trade or profession as restaurant owners. Any imputation which suggests some unfitness or incompetence for a trade, business or profession is defamatory and we say that these imputations are defamatory because they injure the [respondents'] reputation in their trade or profession.' > > [Appellants'] case > > However, senior counsel for the [appellants] took a different approach altogether and made the following comments to the jury in respect of imputation (a): > > 'Now, members of the jury, you haven't heard much about the test of what is defamatory. Her Honour will explain it to you, the legal test; because that is her Honour's job. > > Incidentally, if her Honour says anything to you about the law that conflicts with what Mr Evatt or I have said, then you follow her Honour ... > > The test of whether something is defamatory is whether the thing would tend to make ordinary decent people in the community think the less of the [respondents]. It is a very simple test. It is the usual way it is put ... [s]ometimes it is put slightly differently but that is the usual test and her Honour, I apprehend, will tell you something like that or very similar to that.' > > Senior counsel continued, in relation to imputation (a): > > 'How is it defamatory? How would it tend to make decent people think less of another person, even if they are the owner of a restaurant, to say that they sell unpalatable food? I mean, isn't it just it is one of those things. If you sell unpalatable food, then maybe you are a restaurant owner who owns a restaurant which isn't very good, but how does it make an ordinary decent person think less of somebody else to say that they sell unpalatable food? > > ... Isn't it a bit neutral? You think, "Oh, well, yep, he says that this person sells unpalatable food. Yeah, okay, fine", but you are not going to march around are you, going to make some sort of judgment of that person or think any the less of them. > > It is a matter for you, members of the jury, but if you think that ordinary decent people, which is the test, in the community would tend to think the less of somebody because it is said about them that they sell unpalatable food, well, it is a matter for you. You are the community arbiters on that question.' > > Senior counsel for the [appellants] then dealt with imputation (b). The jury found that imputation (b) was not conveyed by the article. There is no appeal from that finding. However, it remains relevant to refer to senior counsel's comments to the jury as to the meaning of defamation in relation to this alleged imputation so as to provide an overview of the approach taken at trial by the [appellants] to defamatory meaning. Thus, having referred to the terms of imputation (b), senior counsel said: > > 'Again you have got this problem, you might think - and I don't want to labour the point - but you might think that you have got this problem that even if the reader thought that the prices were excessive, the reader who reads this article on the bus or at the table or whatever, is not going to get a meaning that these individual people who are just named in the side-bar are charging - it is just not a meaning that is going to occur to the reader, is it?' > > Senior counsel concluded his address in relation to imputation (b) by saying: > > 'It wouldn't make the reader, you might think, think less of someone if that were said ...' > > The same approach was taken when senior counsel for the [appellants] addressed the jury in relation to imputation (c). He again asked the jury to consider how it was defamatory of the [respondents] to say that they provided some bad service in the sense that 'nobody [was] going to think the less of them' because of what was said in that part of the article. > > Senior counsel for the [appellants] then dealt with imputation (d). He indicated to them that no defamatory imputation could arise where there was an inference upon an inference. This latter goes to the second ground of appeal. In relation to this ground of appeal, senior counsel for the [appellants] also suggested to the jury that the imputation was not defamatory. In that respect, he said: > > 'Is the ordinary reader going to think, or decent people, going to think the less of somebody? I should tell you that it is only fair to say that it can also be defamatory of somebody if you impugn their professional competence in their job. It is what the law says. But at the end of the day it is your decision.' > > That was the only reference in senior counsel's address to a business defamation. > > Directions sought > > Before her Honour commenced her summing [up] and in the absence of the jury, counsel for the [respondents] indicated to her Honour that he needed some directions. The exchange between her Honour, Mr Evatt, counsel for the [respondents] and Mr Blackburn SC, senior counsel for the [appellants], was as follows: > > 'EVATT: On defamatory meaning, my friend put that the test, which is pretty standard test -- (sic) > > HER HONOUR: He did, at the very end. > > EVATT: But not applicable to this case. > > HER HONOUR: He did, at the very end. > > EVATT: I know that, but that was -- > > BLACKBURN: I am happy for any correction. > > EVATT: I have the relevant passages from Gatley. > > BLACKBURN: I am happy for any corrections. > > HER HONOUR: I intend telling the jury that whilst, ordinarily, the notion of something being defamatory carries with it that it would lower a person in the estimate of ordinary, right thinking members of the community, the case here depends upon another aspect of the notion of being defamatory, acknowledged by Mr Blackburn towards the conclusion of his address, and that is that the meaning conveyed would be likely to injure a person in his or her trade or profession by reason of suggesting unfitness or incompetence or something of that nature. Does that address your problem? > > EVATT: Yes. That's what I put. My friend just, in the last minutes of his address, did make a number of correct statements but four times he said about the ordinary reasonable reader, even if they read the side bar, and he said that at long intervals of time. But he did end up saying that they would have to read the whole of the article. > > BLACKBURN: I accept that. I am happy for any reinforcement.' > > Trial judge's directions to the jury > > In her summing up to the jury, her Honour dealt with the question of defamatory meaning in the following terms: > > 'Let me now turn to the question of whether or not the imputations that are pleaded are defamatory ... > > Generally, defamatory means having the tendency to lower a person in the estimate of ordinary, right-thinking members of the community. But there is another way in which an article or publication may be defamatory and it is the way that the [respondents] put their case here. It is important you understand that the question of whether or not the imputations were defamatory of the [respondents] takes up the concept of whether they may have the tendency to injure a person in his or her profession or trade by the suggestion of unfitness or incompetence or the like. Just to make that clear. Generally, defamatory means having the tendency to lower a person in the estimate of ordinary right-thinking members of the community but equally, and importantly for this case, defamatory has the meaning of having a tendency to injure the [respondents] in his or her profession or trade by the suggestion of unfitness or incompetence.' > > After further summing-up to the jury on matters not relevant to this ground of appeal, her Honour concluded by asking counsel for the parties whether there were any matters they wished to raise. Mr Evatt, counsel for the [respondents], replied in the negative."
"HER HONOUR: What I propose saying to the jury, subject to anything further that either of you want to put to me, is this, or words to this effect, because I have not made a note of it: Mr Blackburn told you something about the law relating to inferences. You will recall he addressed submissions that the law of defamation does not admit of an imputation being drawn by a process of inferential reasoning involving one inference being drawn upon another inference. > > BLACKBURN: That's correct. > > HER HONOUR: There is provision, if an imputation is not, as a matter of law, capable of arising, for that matter to be tested before a judge. The question for you is, as a matter of fact, whether an ordinary reasonable reader, reading this article, would have understood that article to be conveying the meaning set out in paragraph (d). That is a question of fact. It is not necessary or desirable for you to analyse the matter by reference to what you were told concerning legal principles, about whether it involves a process of inferential reasoning, or something to that effect. > > Now, Mr Evatt, would that address your concerns? > > EVATT: I think it would."
"Members of the jury, there is a matter that is necessary for me to give you further directions in relation to. It arises out of the question ... of the imputation pleaded in questions 1, 3 and 5(d) and to the submissions that Mr Blackburn made to you concerning the law. I did not wish to convey to you, and I do not direct you, that anything Mr Blackburn said to you was wrong as a matter of law. It is the law that a defamatory imputation cannot be drawn or conveyed by a process of reasoning that involves drawing one inference upon another inference. That correctly states the law. The matter that I wanted to make clear to you was that if, as a matter of law, the imputation pleaded in questions 1, 3 and 5(d) was not capable of arising, you would not be concerned with it. That does not mean that if you, in your role as the trier of fact, conclude that the imputation does not arise because it involves the ordinary reasonable reader drawing one inference upon another inference, if that is the process of reasoning that you are attracted to, then you would find that the imputation does not arise. This leads me necessarily to tell you something briefly about the process of inferential reasoning. > > An inference is a conclusion drawn from a number of established facts. If (a), (b) and (c) are proved as facts, then one might conclude or infer that (d) is also a fact. An inference relevantly means a conclusion that you draw from the established material. I do not propose to go back to the factual submissions advanced with respect to the imputation pleaded in (d) of those questions. You understand that, as a matter of law, imputation (d) is capable of arising; whether you find that it does or not is a matter for you, and in answering that question you are concerned with whether the ordinary reasonable reader would have taken, from the article, the meaning that each of the [respondents], that he or she is incompetent as a restaurant owner because he or she employs a chef at Coco Roco who makes poor quality food."
(a) Reasonableness of the jury's answers and the relevance of community standards
(b) Interpretation of s 108(3) of the Supreme Court Act 1970 (NSW)
"The question of whether an imputation involves an inference upon an inference is a question of capacity, which, under the provisions of s 7A(1) of the Defamation Act must be determined by the court and not by the jury. In this case, if the [appellants] wished to contend that the imputation contained an inference upon an inference, it was necessary for them to do so before the judge. It was not a jury question."
"As oral argument in the appeal on this question developed the clearer it became that this analysis was not appropriate for the consideration of a jury, who were likely to be distracted and confused by its complexities."
"while reasoning based on an inference drawn from an inference should be looked at with caution, there is no absolute rule of law that precludes such reasoning in an appropriate case ... The question as to the meaning that the words convey to the ordinary person should be a simple and straightforward one, as befits a law that governs the everyday life and actions of all levels of persons in the community. The question should not be obscured by overly complex and subtle metaphysical distinctions that stand as a formidably esoteric barrier to what should be an easily comprehensible reasoning process akin to common sense."
"108 Nonsuit or verdict after jury trial > > (1) This section applies to an appeal to the Court of Appeal in proceedings in the Court in which there has been a trial with a jury. > > (2) Where it appears to the Court of Appeal that on the evidence given at the trial a verdict for the plaintiff could not be supported and that, pursuant to any provision of the rules, an order ought to have been made for the dismissal of the proceedings either wholly or so far as concerns any cause of action in the proceedings, the Court of Appeal may make an order of dismissal accordingly. > > (3) 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."
(a) Reasonableness of a jury's decision and the power of a Court of Appeal to substitute a different decision
"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. In such a case a direction should be given to the jury that as a matter of law the verdict must be for the party entitled to succeed ..." (emphasis added)
"If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. 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 ..."
(d) Interpretation of s 108(3) of the Supreme Court Act
[1] The Defamation Act was repealed by the Defamation Act 2005 (NSW) but continues to apply because of the date when the causes of action accrued.
[3] [2005] NSWCA 255 at [104].
[4] Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175.
[5] Capital and Counties Bank v Henty (1882) 7 App Cas 741 at 775-776; Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 80 ALJR 1672 at 1687 [45]; [2006] HCA 46; 229 ALR 457 at 473.
[7] See Walker, The Practice of the Supreme Court of New South Wales at Common Law, 4th ed (1958) at 109-123.
[8] (1835) 1 C M & R 919 [149 ER 1353]. See Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 306-307 [13].
[9] [1912] HCA 56; (1912) 14 CLR 721 at 728-729.
[10] Dairy Farmers Co-operative Milk Co Ltd v Acquilina [1963] HCA 59; (1963) 109 CLR 458 at 463-464.
[11] See the discussion by Windeyer J in Balenzuela v De Gail [1959] HCA 1; (1959) 101 CLR 226 at 242-243.
[15] New South Wales, Law Reform Commission, Report on Supreme Court Procedure, Report No 7, (1969) at 15.
[16] [1851] EngR 970; (1851) 11 CB 755 [138 ER 672].
[17] [1851] EngR 970; (1851) 11 CB 755 at 773 [138 ER 672 at 679].
[18] [1971] HCA 12; (1971) 127 CLR 106 at 134-135.
[19] [2007] HCA 3; (2007) 81 ALJR 598 at 608 [38]; [2007] HCA 3; 232 ALR 325 at 337.
[20] [1960] HCA 46; (1960) 103 CLR 368 at 378.
[21] [2002] NSWCA 201 at [70]. See also Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [102].
[23] New South Wales, Legislative Assembly, Parliamentary Debates (Hansard), 29 November 1994 at 5901.
"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."
[25] [2003] HCA 50; (2003) 77 ALJR 1657 at 1670 [76]; [2003] HCA 50; 201 ALR 77 at 94.
[26] [1851] EngR 970; (1851) 11 CB 755 [138 ER 672].
[28] [1931] HCA 21; (1931) 45 CLR 359 at 373, 379-380 respectively.
[29] [1945] HCA 16; (1945) 71 CLR 430 at 441-442, 497-498 respectively.
[30] [1945] HCA 16; (1945) 71 CLR 430 at 498.
[31] Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125 at 130-132.
[33] [1931] HCA 21; (1931) 45 CLR 359 at 380.
[35] See John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1658 [2], 1698-1699 [185]; [2003] HCA 50; 201 ALR 77 at 78, 130.
[36] [2006] NSWCA 175 at [56]- [57].
[37] Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 452.
[38] Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175.
[39] That trial was conducted pursuant to the Supreme Court Act, s 86 and the Defamation Act 1974 (NSW), s 7A(3). Section 86 of the Supreme Court Act was repealed with the enactment of the Defamation Act 2005 (NSW), Sched 6.17. Section 21 of that Act provides for (limited) jury trials in defamation proceedings. Note also Supreme Court Act, s 85(6).
[40] See also Defamation Act 2005 (Vic); Defamation Act 2005 (SA); Defamation Act 2005 (Q); Defamation Act 2005 (WA); Defamation Act 2005 (Tas); Defamation Act 2006 (NT); Civil Law (Wrongs) Act 2002 (ACT).
[41] It was not suggested that transitional arrangements in the 2005 Act affected the future trial of the respondents' claims against the appellants, which remain to be determined in accordance with the law and procedures stated in the Defamation Act. See 2005 Act, Sched 4 Pt 2.
[42] See Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 578-581 [139]; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1677 [119]; [2003] HCA 50; 201 ALR 77 at 104-105.
[43] The appellants agreed that they could be so described. See [2007] HCATrans 079 at 706-708.
[46] Court of Appeal Order 4. See [2006] NSWCA 175 at [105].
[47] In respect of imputations (a) and (c).
[48] [2003] HCA 50; (2003) 77 ALJR 1657; 201 ALR 77.
[49] Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87.
[50] See Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1685 [170], 1702-1703 [213], [217], 1704-1705 [223], [225]; [2003] HCA 50; 201 ALR 77 at 116, 135-136, 138.
[51] Judiciary Act 1903 (Cth), s 37.
[52] Charlwood Industries Pty Ltd v Brent [2002] NSWCA 201. See also cases referred to in [2006] NSWCA 175 at [59]- [74].
[53] Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 225.
[54] See reasons of Gleeson CJ and Crennan J at [1].
[55] Reasons of Callinan and Heydon JJ at [153]-[155], [161].
[57] s 108. Reasons of Callinan and Heydon JJ at [179]. Also set out are the provisions of the Supreme Court Procedure Act 1900 (NSW), s 7. See reasons of Callinan and Heydon JJ at [167] fn 167.
[58] See New South Wales v Commonwealth [2006] HCA 52; (2006) 81 ALJR 34 at 140-141 [470]; [2006] HCA 52; 231 ALR 1 at 127; Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43; (2006) 80 ALJR 1509 at 1529 [91]; [2006] HCA 43; 229 ALR 1 at 25; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 396-397.
[59] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125-127 [22]- [26].
[63] Reasons of Callinan and Heydon JJ at [157].
[64] Defamation Act, s 7A(3). See reasons of Callinan and Heydon JJ at [156].
[65] Defamation Act, s 7A(4).
[66] Drummoyne Municipal Council v Australian Broadcasting Commission (1990) 21 NSWLR 135 at 148-151; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162.
[67] Kenyon, Defamation: Comparative Law and Practice, (2006) at 159-161.
[68] Relevantly, the 2005 Act, s 6(3). Section 22(2) of that Act provides: "The jury is to determine whether the defendant has published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendant has been established."
[69] Including in respect of imputations (a) and (c). See reasons of Gummow and Hayne JJ at [41]-[42].
[70] [2007] HCATrans 079 at 2734-2735. See also at 3423-3424.
[71] [2007] HCATrans 079 at 559-564, 630-639.
[72] [2006] NSWCA 175 at [11]- [25] per Handley JA, [77]-[92] per Beasley JA, [107]-[133] per Ipp JA. See reasons of Gleeson CJ and Crennan J at [4].
[73] [2005] NSWCA 175 at [32].
[74] As for example in a sporting, religious, associational or different relationships; cf Sim v Stretch [1936] 2 All ER 1237. See reasons of Gleeson CJ and Crennan J at [2].
[75] See, for example, Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7 at 20, 32; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 484-488; Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13; (1994) 179 CLR 520 at 544-550; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 at 549-551 [79]- [83], 591-594 [203]-[211]; Leichhardt Municipal Council v Montgomery (2007) 81 ALJR 686; 233 ALR 200.
[76] [1975] HCA 6; (1975) 134 CLR 1 at 3. Section 5 of the 1958 Act, which was also s 5 of the Defamation Act 1957 (Tas), was repeated almost verbatim from the Criminal Code (Q), s 366, in turn a re-enactment of the Defamation Law of Queensland 1889.
[79] [2006] NSWCA 175 at [50] per Beasley JA (Handley and Ipp JJA concurring at [1] and [106]).
[80] Milmo and Rogers (eds), Gatley on Libel and Slander, 10th ed (2004) at 36-37 [2.7], cited by Beasley JA: [2006] NSWCA 175 at [32].
[81] Balkin and Davis, Law of Torts, 3rd ed (2004) at 557 [18.2]. See also Fleming, The Law of Torts, 9th ed (1998) ("Fleming") at 582.
[82] Australian Law Reform Commission, Unfair Publication: Defamation and privacy, Report No 11, (1979) at 47-48 [84]. See s 9(1)(c) of the Draft Commonwealth Bill for an Unfair Publication Act, Appendix C at 210-211; cf Trindade, Cane and Lunney (eds), The Law of Torts in Australia, 4th ed (2007) at 339-340.
[83] See [2006] NSWCA 175 at [40]- [51], [75]-[76].
[85] Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW), 171 at 172. See also Fleming at 582-583.
[87] See reasons of Gleeson CJ and Crennan J at [6].
[88] Reasons of Gummow and Hayne JJ at [18], [41].
[89] Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at 579 [199].
[90] Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 88.
[91] Lewis v Daily Telegraph Ltd [1964] AC 234 at 277, 281; reasons of Gummow and Hayne JJ at [20].
[92] Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1661-1662 [23]- [26] per McHugh J; [2003] HCA 50; 201 ALR 77 at 82-83.
[93] Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 at 486, 488, 497-498. See also [1947] HCA 54; (1947) 75 CLR 125 (PC).
[94] Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 151.
[95] Shepherd v Felt and Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 373; Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 at 441-442. See reasons of Callinan and Heydon JJ at [185]-[186].
[96] The respondents quoted Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3rd ed (1940), vol 9 at 305-306 (s2495) and authorities cited therein, including Leach v Burr [1903] USSC 61; 188 US 510 at 513 (1903); Jerke v Delmont State Bank 223 NW 585 at 590 (1929). See also City of Chanute v Higgins 70 P 638 at 640 (1902); McCaskill v Ford Motor Co of Canada (1955) 17 WWR 239 at 245.
[97] Reasons of Callinan and Heydon JJ at [186] fn 166.
[98] Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269; Swain [2005] HCA 4; (2005) 220 CLR 517.
[99] Reasons of Callinan and Heydon JJ at [195] fn 179, quoting the speech of the Hon J P Hannaford: New South Wales, Legislative Council, Parliamentary Debates (Hansard), 22 November 1994 at 5472.
[100] Knight v F P Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 422-423 [108]; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 at 499-500 [84]. See also reasons of Gleeson CJ and Crennan J at [11].
[101] Supreme Court Act, s 102 (emphasis added).
[102] Reasons of Gummow and Hayne JJ at [44]-[45].
[103] Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1677 [119]; [2003] HCA 50; 201 ALR 77 at 104-105.
[105] Reasons of Gummow and Hayne JJ at [18], [41], [45].
[107] Reasons of Callinan and Heydon JJ at [185]-[186], quoting Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 373 and also citing Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 at 441-442.
[108] [2003] HCA 50; (2003) 77 ALJR 1657 at 1676 [116]; [2003] HCA 50; 201 ALR 77 at 103-104.
[109] [2002] 1 WLR 3024; [2002] 4 All ER 732.
[110] [2002] 1 WLR 3024 at 3053 [75]; [2002] 4 All ER 732 at 759. See also Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1676 [116]; [2003] HCA 50; 201 ALR 77 at 103-104.
[111] [2002] 1 WLR 3024 at 3029-3030 [7]; [2002] 4 All ER 732 at 737-738.
[112] In the now discarded language, "perverse": Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1675 [111]; [2003] HCA 50; 201 ALR 77 at 102.
[115] cf reasons of Gummow and Hayne JJ at [24]-[27].
[117] [2002] NSWCA 201 at [67]- [68].
[119] Reasons of Gummow and Hayne JJ at [27]-[28]. See also reasons of Gleeson CJ and Crennan J at [12].
[122] Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 720.
[123] [2006] NSWCA 175 at [74]. See also at [56]-[57].
[124] cf reasons of Gummow and Hayne JJ at [51]-[54].
[125] See reasons of Gleeson CJ and Crennan J at [12]. See also reasons of Gummow and Hayne JJ at [27]-[28].
[126] Reasons of Gleeson CJ and Crennan J at [12].
[127] Reasons of Gleeson CJ and Crennan J at [13].
[128] cf reasons of Gummow and Hayne JJ at [48], [51]-[53].
[129] Reasons of Gleeson CJ and Crennan J at [13].
[130] Swain [2005] HCA 4; (2005) 220 CLR 517 at 568-569 [160].
[131] [2003] HCA 50; (2003) 77 ALJR 1657 at 1661-1662 [23]- [28]; [2003] HCA 50; 201 ALR 77 at 82-84.
[133] [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1163.
[134] Harvey [2005] NSWCA 255 at [105] per Hunt AJA.
[136] cf reasons of Gleeson CJ and Crennan J at [13].
[138] [1945] HCA 16; (1945) 71 CLR 430; (1947) 75 CLR 125 (PC).
[139] [1945] HCA 16; (1945) 71 CLR 430 at 445, 463, 468, 499-500.
[140] [1945] HCA 16; (1945) 71 CLR 430 at 444-445.
[141] [1945] HCA 16; (1945) 71 CLR 430 at 488.
[146] Reasons of Callinan and Heydon JJ at [188].
[147] Holmes, The Common Law, (1882) at 1.
[148] [2006] NSWCA 175 at [134]- [139].
[149] Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521 at 527. See also Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at 1820-1821 [20], [22], 1836 [133]; [2005] HCA 57; 221 ALR 402 at 408, 429; CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at 475 [81]; [2006] HCA 1; 224 ALR 1 at 21.
[150] Reasons of Callinan and Heydon JJ at [191]-[194].
[151] Since repealed by the Defamation Act 2005 (NSW), s 46, however it was common ground that the 1974 Act continues to apply in this case.
[152] Sections 14, 15 & 16; including contextual truthful imputations.
[157] Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 at [33]- [42]. Note that text in bold is the emphasis of the trial judge (Bell J), and the text in italics is the emphasis of Beazley JA in the New South Wales Court of Appeal.
[160] Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 at [90].
[162] [2006] NSWCA 175 at [113], [119].
[163] [2007] HCATrans 079 at 26, lines 1086-1087.
[164] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1660 [17] per McHugh J, 1676 [115] per Kirby J, 1698 [184] per Callinan J; [2003] HCA 50; 201 ALR 77 at 80, 103, 129-130.
[165] Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 at 379 per Dixon J; Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 at 441 per Latham CJ; Williams v Smith [1960] HCA 22; (1960) 103 CLR 539 at 542 per Dixon CJ, McTiernan, Fullagar, Kitto and Menzies JJ.
[166] Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 at 441 per Latham CJ and at 488 per Dixon J (their Honours' reasons for judgment were approved by the Privy Council in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125 at 130-132); De Gioia v Darling Island Stevedoring & Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 4 per Jordan CJ.
[167] Section 7 of the Supreme Court Procedure Act 1900 (NSW) stated: "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."
[168] [2007] HCATrans 079 at 18, lines 706-707.
[169] Lewis v Daily Telegraph Ltd [1964] AC 234 at 281 per Lord Devlin.
[170] [1931] HCA 21; (1931) 45 CLR 359 at 373.
[171] Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430 at 441-442.
[172] Section 9(6) preserves special verdicts.
[175] See the criticism of the New South Wales requirements in this regard in the second reading speech for the Defamation Bill 2005 (NSW) to replace the Defamation Act. New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 October 2005 at 18683:
"Clause 8 will bring a significant but very welcome change to NSW law. Under the current NSW law, each defamatory imputation (or meaning) gives rise to a separate cause of action. In all other jurisdictions, it is the publication of defamatory matter that gives rise to the cause of action.
In a speech to university students some years ago, the former Supreme Court Defamation List Judge, the Honourable Justice David Levine RFD, lamented the 'excruciating and sterile technicalities' that resulted from making the imputation the cause of action. 'Fortnight after fortnight I have to deal with arguments concerning whether a pleaded imputation is proper in form and is capable of arising from the relevant publication ... The amount of the Court's time, let alone litigants' resources, expended profligately in the determination of what words, sentences and phrases mean is positively scandalous: and this is at the initiation of proceedings ... Matters of principle have been elevated to an obsessive preoccupation, the playthings of forensic ingenuity, fantasy and imagination, at the expense of the early, quick and cheap litigation of real issues that affect the people involved in libel actions ... The question is not simply what does a publication mean and whether what it means is defamatory. The jury has to determine, in the no doubt novel environment for the jurors of the courtroom and the jury room, whether the words that constitute the imputation carefully crafted by lawyers are in fact carried by the publication complained of to ordinary reasonable people'.
Clause 8 will finally put an end to this needless complexity. Clause 8 reflects the position at common law by making it clear that it is the publication of defamatory matter that is the basis for a civil action for defamation. Both the NSW Law Society and the NSW Bar Association strongly support this long-awaited change."
[178] Lewis v Daily Telegraph Ltd [1964] AC 234 at 285 per Lord Devlin.
[179] Presenting the second reading speech, the Attorney-General, the Hon J P Hannaford said:
"At present the jury is retained to determine some questions of fact inherent in certain defences. Under this bill that will not occur. Having dealt with the preliminary questions the jury will be discharged from further participation in the trial, which will proceed before the judge alone, he or she determining all defences and, in due course, assessing any damages. By allocating to the jury what is a vital decision in the trial the arrangement maintains an appropriate degree of community involvement. At the same time, by providing that the trial shall thereafter proceed before the judge alone, a substantial amount of time and money will be saved and the complexities which now arise in the course of a trial because of the current division of functions of judge and jury will be overcome." New South Wales Legislative Council, Parliamentary Debates (Hansard), 22 November 1994 at 5472.
# John Fairfax Publications Pty Ltd
Gacic \[2007\] HCA 28; 235 ALR 402
(2006) 80 ALJR 1672
(2005) 224 CLR 300
(1912) 14 CLR 721
(1963) 109 CLR 458
(1959) 101 CLR 226
(1971) 127 CLR 106
(2007) 81 ALJR 598
(1960) 103 CLR 368
(2003) 77 ALJR 1657
(1931) 45 CLR 359
(1945) 71 CLR 430
(1947) 75 CLR 125
(1998) 193 CLR 519
(2006) 81 ALJR 34
(2006) 80 ALJR 1509
(1997) 187 CLR 384
(1996) 186 CLR 389
(2003) 214 CLR 118
(1990) 21 NSWLR 135
(1998) 43 NSWLR 158
(1985) 156 CLR 7
(1987) 162 CLR 479
(1994) 179 CLR 520
(2001) 206 CLR 512
(2007) 81 ALJR 686
(1975) 134 CLR 1
(2005) 220 CLR 517
(1990) 22 NSWLR 73
(1985) 4 NSWLR 139
(1999) 197 CLR 269
(1992) 174 CLR 178
(1999) 198 CLR 380
(2004) 220 CLR 472
(1957) 97 CLR 521
(2005) 79 ALJR 1816
(2006) 80 ALJR 458
(1960) 103 CLR 539