JOHN FAIRFAX PUBLICATIONS v RENE RIVKIN [1999] NSWCA 164 | Case summary

The claimant sought leave to appeal from interlocutory decisions in the defamation list. One issue was whether the imputation that the plaintiff was criminally liable in respect of murder was ambiguous because it could include remoter forms of criminal liability. A second issue was whether the plaintiff, in seeking to establish a true innuendo, was required not only to plead the extrinsic facts but also to prove their objective truth. There were other challenges to the plaintiff's pleadings. The application of s 7A of the Defamation Act 1974 on appellate interference with interlocutory decisions was also considered. HELD : dismissing the summons for leave to appeal: (1) The imputation was not ambiguous and remoter forms of criminal liability were not covered. State Government Insurance Office v Rees (1979) 144 CLR 549 at 561 applied. (2) There is no general principle applicable to true innuendos that the extrinsic facts which the special group of readers bring to their understanding of the publication must exist otherwise than in their belief or opinion. Mirror Newspapers Limited v World Hosts Pty Limited (1979) 141 CLR 632 at 641 applied. (3) The Court should apply to defamation proceedings governed by s 7A of the Defamation Act 1974 the strict principles against appellate interference with interlocutory orders. The Will of Gilbert (1946) 46 SR (NSW) 318 at 323. ORDERS Summons for leave to appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

1 HANDLEY JA: This is a summons for leave to appeal from two interlocutory decisions of Levine J in the defamation list, the first on 17 July 1998 and the second on 18 September 1998. The action is one to which s 7A of the Defamation Act 1974 as amended applies. 2 Two principal questions have been argued by Mr Neil QC for the claimant. The first challenges certain imputations pleaded by the plaintiff. It is sufficient for present purposes to refer to imputation 7(b) of the amended statement of claim, which is that the publication relied upon conveyed an imputation that the father of the late Carolyn Byrne had reason to suspect that the plaintiff was "a person criminally liable in respect of her murder". 3 Mr Neil has submitted that this imputation is ambiguous and requires clarification by amendment and that the matter is of sufficient importance to warrant this Court interfering at this stage and allowing the appeal. The ambiguity is said to lie in the extent of the criminal liability for murder introduced by the words "in respect of" rather than "for", it being accepted that the latter would not be ambiguous. 4 The circumstances in which a person may be liable at common law for murder are conveniently summarised in Halsbury Fourth Edition vol 11, paras 42-44. Mr Neil submitted that the words "in respect of" would allow a jury properly instructed to find that the imputation could be conveyed if the publication asserted that the plaintiff had harboured the perpetrator after the event, or was guilty of misprision of felony in relation to the murder. 5 The words "in respect of" are capable of a very wide meaning, but their meaning in an appropriate context can be quite narrow, as the High Court held in State Government Insurance Office v Rees (1979) 144 CLR 549 at 561. The present context which involves criminal liability for the crime of murder is narrowly focussed and specific. In my opinion the natural and ordinary meaning of the imputation would exclude the remoter types of criminal liability which Mr Neil suggested would be open. 6 It is well-established that the meaning of a defamatory imputation in a pleading is a question for the judge, not the jury. The trial judge in this case will therefore have to direct the jury as to the proper meaning of the imputation and other imputations in similar terms. He or she will have to explain to the jury in clear language what they would have to find in order to decide that this imputation was conveyed by the publication. 7 Mr Hughes QC for the opponent has accepted that criminal liability in respect of the murder would require either that the person had been the principal, that is had actually pushed the deceased over the cliff, or was an accessory who had aided and abetted the murder by being present when the crime was committed or who had counselled or procured the crime beforehand. He also submitted that participation in a conspiracy to have the deceased murdered would satisfy the language of the imputation. Where the conspiracy has been successfully carried out the conspirators would be liable for the crime of murder in addition to the crime of conspiracy and the allegation of conspiracy would add nothing to the ordinary accessory liability of those who counsel and procure the commission of a crime. 8 I have recorded Mr Hughes' submission about the meaning of the imputation, firstly because it appears to me to reflect its natural meaning in any event, and secondly because this Court is proposing to dismiss the summons and the plaintiff should be held to the meaning which Mr Hughes has given to this imputation and should not be permitted to adopt a different one. In any event, as I have said, the meaning appears to me to be the natural and probable one which could only be changed by a formal amendment. 9 The second matter raised by Mr Neil concerns the true innuendo pleaded as conveyed by the second publication complained of in the light of matter in the first publication complained of, both published by the claimant, the first in "The Financial Review" and the second in the "Sydney Morning Herald". The submission urged upon Levine J, and repeated in this Court by Mr Neil, is that it is not open to the plaintiff to rely solely upon the statement of those matters in the first publication to establish that the second conveyed a true innuendo. The plaintiff, it is submitted, must not only plead the extrinsic facts said to support the special meaning, but must prove their objective truth. 10 In my judgment this submission involves a fundamental misunderstanding of the nature of a true innuendo. This was explained in Mirror Newspapers Limited v World Hosts Pty Limited (1979) 141 CLR 632 at 641 in the joint judgment of Mason and Jacobs JJ: "When read in conjunction with extrinsic facts, words may in the law of defamation have some special or secondary meaning additional to or different from their natural and ordinary meaning. This special or ordinary meaning is not one which the words viewed in isolation are capable of sustaining. It is one which a reader acquainted with the extrinsic facts will ascribe to the matter complained of by reason of his knowledge of those facts because he will understand the words in the light of those facts". 11 This exercise involves the construction of the publication for the special purposes of the law of defamation. This may require reference to other publications incorporated in that sued on or to extrinsic facts known to a special group of readers which they will bring to their understanding of that publication. In my judgment there is no general principle which requires that the facts, which the special group of readers bring to their understanding of the publication, must exist otherwise than in their belief or opinion. 12 The remaining issues sought to be raised by the summons involved other pleading questions, whether particular imputations were capable of being conveyed by one or other of the publications sued upon, whether particular imputations were capable of being regarded as defamatory by a jury and whether particular imputations differed in substance from others so as to infringe the rule against double pleading. 13 This Court has hitherto been liberal in granting leave to appeal in cases of this kind because all questions of fact including damages had to be decided at the trial by a jury. An erroneous decision at first instance that particular imputations were capable of a defamatory meaning or were capable of arising, if allowed to stand, normally made a new trial inevitable if the jury awarded damages for that imputation and their verdict was challenged on appeal. 14 As I said, this trial will be governed by s 7A of the Defamation Act and under the regime established by this section the issues for a jury will be limited to determining whether the imputations pleaded by the plaintiff were conveyed by the publication complained of and were defamatory. All other issues of fact and law and the quantum of damages will be matters for the trial judge. 15 This means that this Court is no longer constrained, as it has been in the past, to be liberal in granting leave to appeal from interlocutory decisions on pleading questions arising in the defamation list. The decisions of single judges on such questions can now be allowed to stand until trial. If those decisions are erroneous they can be corrected on appeal after the final judgment in the action when this Court will have the benefit of the judge's findings of fact. In most cases it should no longer be necessary to order a new trial just because an imputation has been wrongly left to the jury. All issues can be determined finally in the appeal and this Court would normally be in a position to reassess the damages. 16 In these circumstances the Court should apply in defamation proceedings governed by s 7 A the strict principles against appellate interference with interlocutory orders stated by Jordan CJ in The Will of Gilbert (1946) 46 SR (NSW) 318 at 323. I would propose therefore that the summons for leave to appeal be dismissed with costs. 17 SHELLER JA: I agree. 18 BROWNIE AJA: I agree. 19 HANDLEY JA: They are the orders of the Court.

JOHN FAIRFAX PUBLICATIONS v RENE RIVKIN

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