Grounds 1 and 4: consideration
45 The appeal falls for determination in the light of the following propositions.
46 First, appellate courts exercise restraint when asked to disturb jury determinations: Rivkin (at [2]) per Gleeson CJ; (at [17]) per McHugh J; (at [109] - [110]) per Kirby J; (at [184] - [185]) per Callinan J; see also John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 (at [115] - [119]) per Kirby J; Australian Broadcasting Corporation v Reading [2004] NSWCA 411. In Rivkin (at [224]) Heydon J appeared to question whether the authorities counselling appellate courts to exercise restraint in interfering with jury verdicts could stand with s 102 of the Supreme Court Act 1970, however I note that in Gacic (at [164]), another s 102 appeal, his Honour joined with Callinan J in affirming the proposition that "[d]ecisions of juries have always, and rightly, been accorded especial respect".
47 Secondly, a finding of a jury concerning defamation may only be overturned if it is one no reasonable jury could reach (Rivkin (at [185]) per Callinan J (with whom Gleeson CJ and Heydon J agreed)), or, as Hunt AJA (Santow JA agreeing) pithily said, if it is an "unreasonable verdict": Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 (at [51]). In Reading (at [53]) Santow JA described it as an "irrationality test".
48 Thirdly, in applying the question whether a jury's determination in a defamation case was one no reasonable jury could reach, it is necessary to bear in mind that "the issue of libel or no libel is usually a matter of 'impression' [hence], appellate courts set aside jury verdicts on the ground of unreasonableness, even less frequently than they set them aside in other actions": Rivkin (at [18]) per McHugh J.
49 Fourthly, occasions for invading the jury's function occur even less frequently when the jury has found that a publication is not defamatory: Rivkin (at [19]) per McHugh J; Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 (at [166] - [174]). To warrant such intervention, the words of the publication must not be capable of anything but a defamatory meaning: Rivkin (McHugh J at [20]). If the words are susceptible of an innocent meaning, the court cannot intervene: Kelly v Daily Telegraph Newspaper Co (1897) 18 LR (NSW) 358 at 361. The defamation must be "clear and beyond argument": Broome v Agar (1928) 138 LT 698 (at 702); see also Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 (at 710) per Hutley JA; (at 716 - 717) per Samuels JA; (at 720) per Mahoney JA.
50 Fifthly, one of the reasons appellate courts exercise restraint, particularly in reviewing a jury's verdict that an imputation was not defamatory, is because in determining whether the imputations found to be conveyed tend to lower the plaintiff's reputation in the view of the ordinary reasonable reader, the jury is required to apply community standards: Radio 2UE Sydney Pty Ltd v Chesterton [2008] NSWCA 66; (2008) Aust Torts Reports ¶81-946 (at [14] per Spigelman CJ; at [19] per Hodgson JA; at [135] per McColl JA). As Callinan J said in Rivkin (at [184]), "[t]he jury is representative of the community [and] [i]ts members are better placed than judges to give meaning to, and evaluate, the spoken and written word and its impact upon the community". It is up to the jury to determine contemporary community standards and, in so doing, to take into account the evolution of societal attitudes: Reader's Digest Services Pty Limited v Lamb [1982] HCA 4; (1982) 150 CLR 500 at 506 per Brennan J (as he then was, with whom Gibbs CJ, Stephen and Wilson JJ agreed and Murphy J agreed generally); Cairns (at 720-721) per Mahoney JA; Rivkin (at [140]) per Kirby J; Beran (at [174]); Reading (at [143] ff) per McColl JA.
51 Sixthly, it is not open to an appellate court to reject a finding that an imputation was either defamatory or not defamatory because it is not a necessary inference or one the Court itself would draw: Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 (at 762 - 3) per Lord Penzance. An appellate court is not entitled to set aside a jury's verdict because the court regards the verdict "as illogical, unsatisfactory or different from that which it would itself have reached: Rivkin (at [17]) per McHugh J. In Rivkin, Callinan J (at [184]) was also of the view that the fact that an appeal lay to the Court of Appeal from a jury verdict did not mean that the Court might substitute the answer that it would give to a question for that of a jury, adding "the occasions for judicial correction of jury verdicts will be extremely rare".
52 Finally, in determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the case on the basis most favourable to the respondent to the appeal: Cairns (at 710) per Hutley JA; Rivkin (at [17]) per McHugh J; Beran (at [110] ff) per McColl JA (Mason P and Beazley JA agreeing); Reading (at [120]) per Ipp JA.
53 The primary judge's direction to the members of the jury (at [46]), that in determining whether the matter complained of conveyed the pleaded imputations and whether they were defamatory, they should assume the ordinary reasonable reader considers the publication as a whole, was consistent with well-established authority: see generally Rivkin (at [26]) per McHugh J, (at [187]) per Callinan J; Reading (at [123]) per Ipp JA.
54 Imputation (a) was published in the context of a headline stating "Witness sees a ghost over cremator" and the statement that in the course of evidence at the Land and Environment Court, the appellant "claimed to have seen a ghostlike figure in the clouds". The jury clearly accepted that, the appellant had stated in court that she had seen a ghost, or a ghostlike figure in or around the crematorium, and it was for this reason that the article conveyed the imputation that she was "demented".
55 The jury then had to determine whether the ordinary reasonable reader applying contemporary community standards would think less of the appellant because of that imputation, or as was argued by Mr Caspersonn whether it was disparaging or derogatory of her. In my view it was open to the jury to conclude that that would not be the reaction of the ordinary reasonable reader, even if, as Mr Caspersonn argued before it, that word "demented" was synonymous with "mad; having a mental problem; being of unsound mind; demented and lacking mental acuity".
56 It may once have been the case that people with mental disabilities were stigmatised by society. As Gordon, Tantillo, Feldman and Perrone explained ("Attitudes regarding interpersonal relationships with persons with mental illness and mental retardation" (2004) 70(1) Journal of Rehabilitation 50, footnotes omitted):
"Ancient Roman and Greek cultures viewed persons with physical disabilities as burdens on society and as less than human … People with mental illness were viewed as either immoral souls punished by God, or as being possessed by demonic spirits requiring exorcisms and other religious interventions …Individuals with mental retardation were mocked, teased and used for social amusement…"
57 However, as the same authors reported (at 50), "[d]uring a time of heightened social awareness, social tolerance in the sixties and seventies began to slowly evolve," an evolution encouraged by social awareness campaigns designed to "increase social acceptance and decrease prejudice towards persons with differing abilities". Although this article deals with issues in the United States, the same trend can, in my view, be discerned in the Australian community. In my view it was open to the jury to conclude that contemporary community attitudes in the twenty-first century, were such that ordinary reasonable readers would not think less of the appellant for being described as demented. This is particularly so in the context of the matter complained of. The observation attributed to the appellant was clearly an odd statement whenever made. However it could be thought to have been tenuously related to the court case with which the matter complained of dealt. The matter complained of did not report that her evidence had been rejected or derided. It reported it in a matter of fact way.
58 Ground 1 is in one sense, somewhat academic for, as I conclude in relation to ground 4, it is possible the jury reached its conclusion by applying the wrong test. However, as shall also become apparent, my view would not differ even had the correct test been applied.
59 Bearing in mind that ground 1 must be approached on a view most favourable to the respondents, it cannot be said, in my view, that the jury's determination that imputation (a) was not defamatory was one no reasonable jury could reach.
60 I would reject ground 1.
61 I turn then to ground 4.
62 As I have said, Mr Caspersonn did not complain at trial about the primary judge's directions to the jury about the test it should apply to determine whether the imputations were defamatory.
63 It may be accepted that a court may consider a ground of appeal complaining about a trial judge's directions to the jury even though no direction or redirection was sought at trial: Uniform Civil Procedure Rules 2005, Pt 51.53(1). Whether the Court will intervene, if error on the trial judge's part is identified, however, depends on whether it appears that a substantial wrong or miscarriage of justice has been occasioned, either in terms of UCPR Pt 51.53 or the common law which would otherwise apply: see Mastronardi v State of New South Wales [2007] NSWCA 54 (at [74] - [76]) per Basten JA (Ipp and Campbell JJA agreeing). Failing to have a case determined by a properly directed jury is not, of itself, a substantial wrong or miscarriage of justice: Channel Seven Sydney Pty Ltd v Mohammed [2008] NSWCA 21 (at [71]) per Giles JA (Campbell JA and Matthews AJA agreeing). It is necessary to consider matters going beyond "the bare question of whether there ha[s] been any departure from applicable rules of evidence or procedure": Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 (at [18]).
64 Even where the Court finds a substantial wrong or miscarriage of justice has been occasioned, it has a discretion as to whether a new trial should be ordered. Failure to seek a direction or a redirection at trial is an important consideration in the exercise of the court's discretion to order a new trial: Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 (at 39); Tory v Megna [2007] NSWCA 13; see also Burchett v Kane published as a note to Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 (at 266); cf Mohammed (at [96]) per Campbell JA.
65 The Court's jurisdiction to order a new trial "depends on the demands of justice": Calin (at 39). The Court has to balance the justice of the appellant having the opportunity of relitigating her claim according to law and the fact that "it may be unjust 'to set aside a verdict for a reason which but for the default of the party moving would never have existed' ": Burchett v Kane (at 273) per Samuels JA citing Burston v Melbourne and Metropolitan Tramways Board [1948] HCA 36; (1948) 78 CLR 143 (at 167); see also Burchett v Kane (at 277 - 278) per Mahoney JA.
66 I turn then to the test to be applied in considering whether an imputation is defamatory.
67 An imputation is defamatory if it "be such as is likely to cause ordinary decent folk in the community, taken in general, to think the less of [the plaintiff]": see Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 (at 172) per Jordan CJ; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 (at 452); Reader's Digest (at 505 - 506) per Brennan J; Rivkin (at [18]) per McHugh J; a test Gummow and Hayne JJ framed in Gacic (at [53]), as one of "tendency", which they described as "pitch[ing] the common law test at a fairly low threshold".
68 In directing the jury on the concept of defamation, the primary judge said (at [57]):
"…To say something is defamatory is to say something which is derogatory or disparaging about them. It has been put by counsel that one way of putting the test is: would ordinary decent members of the community think less of Mrs Mallik by reason of the imputations?"
69 When dealing with imputations 1(a) and (b) his Honour said:
"60…the question really is…would an ordinary decent member of the community or members of the community think less of her because it is suggested she was a person referred to in 1(a) or 1(b) - that is demented or irrational…"
70 The primary judge's directions to the jury about the test to apply when determining whether an imputation was defamatory did not refer either to the likelihood or the tendency of the imputation to cause an ordinary decent member of the community or members of the community to think less of the plaintiff. He erred in this respect. His error ought to have been discerned by experienced defamation counsel appearing for the appellant who should have afforded proper assistance to his Honour by way of corrective submissions: R v Hines (1991) 24 NSWLR 737 (at 743 - 744) per Sully J (Hope A-JA and Mathews J agreeing).
71 A court should not speculate about a jury's reasoning process, but may draw "inevitable or proper inferences from the jury's decision": Grobbelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 4 All ER 732 (at [7]) per Lord Bingham of Cornhill. It is an available, though not necessary, inference that the jury applied a higher threshold to the question whether imputation (a) was defamatory of the appellant than that required by law. I prefer to conclude this was not a necessary inference because both Mr Caspersonn and Ms Evans stated the likelihood/tendency test correctly in the course of their addresses to the jury. His Honour repeated their formulations of the test in terms of tendency to injure the plaintiff's reputation or likelihood of lowering her standing in the community on several occasions in the course of summarising the parties' respective contentions: summing up at ([85] - [87], [116]). Taking the summing up as a whole it is possible to infer that the jury may have correctly applied the tendency test.
72 However, I accept Mr Neil's submission that a summary of the parties' submissions on issues of law does not have the same imprimatur as a formal direction of law given by the trial judge. It should be accepted, therefore, that the primary judge erred in his directions to the jury on the test to be applied to determine whether imputation (a) was defamatory.
73 Accordingly ground 4 is established. The question then arises as to whether a substantial wrong or miscarriage of justice has been occasioned and, if it has, whether a new trial should be ordered.
74 In order to determine whether a substantial wrong or miscarriage of justice has been occasioned by a misdirection to a jury, the Court does not seek to determine what the jury or a hypothetical jury would have determined if properly directed, but must determine for itself, in this case relevantly, whether imputation (a) was defamatory: Channel Seven Sydney Pty Ltd v Mohammed (at [71]); see Tory (at [45] - [46]), applying Weiss to the same effect.
75 In undertaking this exercise, the Court must consider the question as if acting pursuant to the directions which should have been given to the jury: Weiss (at [41], [43] - [44]). This proposition has particular resonance in the defamation context. At this stage of the process, (which is that prescribed by s 7A(3) of the 1974 Act), the Court must be careful to consider the question as a matter of fact, considering the ordinary reasonable reader's reaction to the matter complained of and seeking to identify the contemporary community standards that person would bring to bear. The task undertaken when a judge is engaged in the s 7A(3) exercise is not the s 7A(2) task of determining what defamatory meaning the matter complained of is capable of bearing as a matter of law: see Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 (at [9]) per Gleeson CJ, McHugh, Gummow and Heydon JJ; Gacic (at [20]) per Gummow and Hayne JJ; see also Jones v Skelton [1963] SR (NSW) 644 (at 650 - 651); [1963] 3 All ER 952 (at 958 - 959).
76 In my view for the same reasons I have given when considering ground 1, imputation 1 (a) would not be likely, nor tend, to cause ordinary reasonable readers to think less of the appellant. I reach that conclusion in the light of what I discern to be contemporary community attitudes to mental disability. I have already referred to the changes in community attitudes in this area. In my view "reasonable and right-thinking people" (Cairns (at 179) per Mahoney JA) would hold attitudes to mental disability far advanced from those of the earlier stigmatising times to which I have referred. Rather, in my view, contemporary community standards towards the mentally disabled exhibit tolerance and sympathy, not the disparagement upon which the appellant relied before the jury. This conclusion gains some reinforcement from the discussion which follows of the appellant's submissions based on textbook commentary about whether imputations connoting mental disability are defamatory.
77 As I have said, the appellant said that the question whether imputation (a) was defamatory was put to the jury on the basis of her being "mad; having a mental problem; being of unsound mind; demented and lacking mental acuity". She said that, so put, her argument that it was defamatory had accorded with passages in texts which, she submitted, supported the proposition that it was defamatory to say of a person that he or she was "insane", or a synonym thereof.
78 The first passage the appellant relied upon was from P Milmo and WVH Rogers, Gatley on Libel and Slander, 10th ed (2004) Sweet & Maxwell (at [2.6], footnotes omitted):
"… It is, for instance, defamatory to say of someone that he is insane, or is 'not quite responsible for what he does.' It is true that insanity is a misfortune and not a fault, and that a person suffering there from is an object of pity or sympathy rather than of hatred, ridicule or contempt. But it is no less true that the tendency of such an imputation is to diminish people's confidence in the claimant and even cause them not to associate with him."
79 The second passage the appellant relied upon was from JG Fleming, The Law of Torts, 9th ed (1998) LBC Information Services (at 582, footnotes omitted):
"To say of a man that he is insane or of a woman that she has been raped does not arouse sentiments of animosity but rather sympathy and pity in the minds of decent people. Yet such assertions are defamatory because, without suggesting discreditable conduct, they impute to the plaintiff a condition calculated to diminish the respect and confidence in which he is held. A person's standing in the community, taking people as they are with their prejudices and conventional standards, is just as likely to be impaired by an attribution of misfortune as of contemptible conduct. In this matter, it is to shut one's eye to realities to indulge in nice distinctions."
80 It is important to note the context in which each passage appears. The passage from Gatley appears in the Chapter on Defamatory Imputations, in Section 1 dealing with "What is defamatory". Paragraph [2.6] deals with "Words causing others to shun and avoid one". The concept of words which tend to cause others to shun and avoid a person being defamatory differs from the concept of defamation arising from statements which disparage a person's reputation. Statements which tend to cause others to shun and avoid a person may be non-disparaging, but nevertheless defamatory: Radio 2UE (at [90]).
81 Further, the passage in Gatley on which the appellant relied was immediately followed by the statement:
No doubt, however, words like 'crazy' or 'lunatic' do not necessarily, when taken in context, impute mental disorder."