Richard Martin TORY v Michael MEGNA

Civil Procedure Act 2005, s56 LEGISLATION CITED: Defamation Act 1974, s7A Supreme Court Rules, Pt51 r23

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 Balenzuela v DeGail (1959) 101 CLR 226 Bennette v Cohen (2005) 64 NSWLR 81 CASES CITED: Brown v Churchill (2006) 31 WAR 246 Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297 General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234 Mundey v Askin [1982] 2 NSWLR 369 Weiss v The Queen (2005) 224 CLR 300

PARTIES: Richard Martin Tory; David John Marshall (Appellant) Michael Megna; Russell James Lloyd (Respondent)

R McHugh SC; A Dawson (Appellant) COUNSEL: T Molomby SC; R Rasmussen (Respondent)

SOLICITORS: D Bricknell, Osborne Bricknell Howell (Appellant) V Dominello, Etheringtons Solicitors (Respondents)

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

• 28 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40003/06

SPIGELMAN CJ BEAZLEY JA BRYSON JA

Monday 19 February 2007 Richard Martin TORY v Michael MEGNA Judgment 1 SPIGELMAN CJ: This appeal arises from a jury trial, presided over by Studdert J, pursuant to s7A of the Defamation Act 1974 (NSW). A jury found that the Appellant was the publisher of the 17 matters complained of and that each of the 87 imputations pleaded was both conveyed and defamatory of the Respondent. 2 The First Respondent, Mr Megna, was a councillor of Drummoyne Council from 1987 to 2000, and Mayor from 1990 to 1993 and 1996 to 1999. The Appellant, Mr Tory, the second defendant at trial, was a long-time resident of the Drummoyne municipality who had been involved in various local issues and through that involvement had, from time to time, had contact with the first defendant, Mr Marshall. The Second Respondent, Mr Lloyd, was the general manager of Drummoyne Council from 1993 to 2000 and the second plaintiff at trial. The first defendant, Mr Marshall, was a councillor on Drummoyne Council contemporaneously with Mr Megna and had previously been Mayor. Mr Marshall was joined in the appeal just prior to the hearing. He filed a submitting appearance. I will refer to Mr Tory as the Appellant and Mr Megna as the Respondent.

3 The publications complained of were anonymous. They were distributed to letterboxes in the Drummoyne municipality as community circulars. They appeared at the rate of about one per month from February 1998 to December 2000, and then again in 2003, although some may have also been distributed as early as 1997. Complaint was made by the plaintiff about 17 newsletters out of a total number of about 20 published during the period between 1998 and 2003. The newsletters were distributed under the banner of an organisation called the Drummoyne Council Ratepayers Association ("DCRA"), (save for one under the name "Community View"). All were otherwise anonymous.

Publication 4 Most of the evidence presented at trial related to the issue of publication. Although the cases against the first and second defendant were presented together, there were significant differences between them on the issue of publication. Both defendants denied publication at trial. Separate defence cases were run. Before proceedings were commenced against the Appellant, Mr Marshall had sought to shift the responsibility for publication to the Appellant. 5 The evidence did not relate to all publications complained of. However, the plaintiff submitted that the consistency of theme throughout the newsletters, as well as the dangers associated with detection, made it likely that they were all produced by the same small group of people. The plaintiff therefore sought to make a case that the evidence connecting particular publications to Mr Marshall or to the Appellant was capable of sustaining a case that each published all of the material complained of. 6 The evidence implicating the first defendant at trial, Mr Marshall, in publication was stronger than the evidence in relation to the Appellant. It involved some direct evidence pertaining to some, thought not all, of the publications. In 2004, solicitors acting for the Respondent obtained Court orders to visit Mr Marshall's house and search for materials connected to the circulars. They found photographic negatives of an edition of the newsletter and printing equipment capable of reproducing the newsletter in the garage in addition to spoiled copies. Mr Marshall had professional experience as a printer. Indeed, Mr Marshall admitted to reproducing some of the material in 2003. One witness suggested that Mr Marshall acknowledged that he was responsible for the publications in conversations. There was evidence that Mr Marshall was seen distributing the newsletters on several occasions. Mr Marshall also admitted to setting up the email address that appeared on the publications distributed in 2003. 7 The Appellant denied publication and the case against him was largely circumstantial. 8 The direct evidence against the Appellant consisted of Mr Marshall's answers to questions during Anton Piller and preliminary discovery proceedings before Judge O'Keefe (6 February 2004). Mr Marshall had said that the Appellant had written the circulars he had distributed, had given the newsletters to him to print and had collected them afterward. Mr Marshall also initially gave evidence that he had given access to the email account, the address of which appeared on the circulars, to the Appellant. 9 However, Mr Marshall retracted this evidence at trial, saying that he was mistaken about the involvement of the Appellant and claiming that the stress of the Anton Pillar process had left him confused. The Appellant submitted that Mr Marshall implicated the Appellant in order to spread the potential liability and generally sought to impugn the reliability of his evidence by pointing to its contradictions. Mr T Molomby SC, who appeared for the Respondent at trial, also questioned Mr Marshall's truthfulness in cross-examination. In these circumstances, this direct evidence against the Appellant was weakened. Nevertheless, it was open to the jury to reject the retraction and, accordingly, the case against the Appellant was not entirely circumstantial. 10 The plaintiff's circumstantial case against the Appellant emphasised the supposedly close connection between the first and second defendants. Although it is not contested that the Appellant had some dealings with Mr Marshall, the nature of their relationship was in issue at trial. 11 The plaintiff also relied on the following evidence in its circumstantial case: · The Appellant's wife rented the post office box printed on the circulars, although the Appellant claimed he did not know why this address appeared on the circulars and there was no actual mail regarding the circulars received at this address. There was some evidence that Mr Marshall had access to the box. · Phone records that suggested contact between the Appellant and Mr Marshall at key moments as events unfolded. · Association between the Appellant and Mr Marshall regarding the use of Senior Citizen's Club premises for the Red Shield Appeal; the fact that Mr Marshall had done printing work for the Appellant's business; the fact that the Appellant handed out how to vote cards for Mr Marshall, following contact over a proposed development that the Appellant opposed; and Mr Lloyd's evidence that he saw the Appellant and Mr Marshall engaged in conversation after a Council meeting. · The plaintiff pointed to the similarity between the terms of correspondence between the Appellant and Mr Lloyd and the content of the publications. In response, the Appellant pointed out that numerous other people had access to copies of this correspondence. · The plaintiff also pointed to coincidences between the matters referred to in the newsletters and areas likely to be of direct concern to the Appellant. · There was evidence from a couple, Mr and Mrs Wright, who witnessed some unknown individuals making deliveries on 29 August 2003 and recorded the number plate of the car they were using. (This evidence was given by Mr Dominello, solicitor for the Respondents, over objections by the Appellant, as Mr and Mrs Wright were unavailable.) That car was registered to a company of which the Appellant was a director and secretary, and was used by his brother. However, the Appellant, Mrs Tory, and their daughter, gave evidence that the Appellant was at a restaurant at the time the deliveries were allegedly made and it was not suggested that either the Appellant or his brother were actually seen at this location on the night in question. · There was also evidence from the Respondent that the Appellant attended Council meetings regularly from about 1996 to 2000 and was often observed taking notes. The Appellant contested this evidence and claimed his commitment to viewing BBC's The Bill, broadcast at the same time as the meetings, was proof he did not attend regularly.

The Imputations Submission 12 Grounds 1 and 2 were dealt with together. They state: "1 That the learned trial judge's direction of law to the jury as set out below (at page 57 of the summing up on 9 September 2005) was a misdirection: 'Mr Dawson submitted that you would not find these imputations arise because the source of the imputations is such a rubbishy production that the ordinary reasonable reader would just cast it aside. I am putting to you in a summary form some of the submissions that were made by Mr Dawson, but I have decided that it would not be a valid approach for you to adopt to act on that submission so summarised. Here I am giving you a direction of law members of the jury and if I am wrong it will be for some appellate court to correct me.' 2 That the learned trial judge, having given the direction set out in ground 1 above, erred in not directing the jury that, if the jury found any of the pleaded imputations to have been conveyed, it could take the submissions referred to into account when considering whether any such imputation was defamatory." 13 His Honour's direction to the jury followed upon an interlocutory judgment in which his Honour outlined the submissions made on this matter, relevantly, as follows: "[2] Mr Dawson, in the course of his submissions to the jury, invited the jury to approach the matter on this basis: you would not find these imputations arise because the source of the imputations, namely the circular they are looking at, is such a rubbishy publication that nobody would heed anything it contained. That is a shorthand summary of the thrust of Mr Dawson's submissions. … [3] Mr Dawson referred to Mundey v Askin (1982) 2 NSWLR 369 as authority for the proposition that matter that amounts to mere vulgar abuse may be found to be not defamatory. Words may be abusive, vulgar or objectionable without being defamatory. Words may constitute vulgar abuse but yet not be matters likely to affect a person's reputation." 14 His Honour concluded: "[8] It is regrettable that this issue has to be determined in haste in the course of a trial in which the summing up is about to commence. However, absent authority which supports Mr Dawson's submission, it seems to me that the jury must be instructed along what are now traditional lines in the course of a hearing under s7A. Section 7A(3) provides: '(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.' [9] This sub-section directs the jury's attention to the matter published and considering its content to determine whether the matter complained of carries the imputation or imputations and if it does then the jury is to determine whether any imputation conveyed is defamatory. [10] The focal issue for the ordinary reasonable reader is the impression as to what the publication is saying. [11] There does not seem to me to be room on the present hearing for the jury to entertain the sort of question which Mr Dawson has posed in his submissions, and I do not intend to give the jury instruction consistent with those submissions by Mr Dawson which I have identified. [12] It seems to me that such questions are for later consideration if the matter advances beyond this trial under s7A. The substance of Mr Dawson's submissions would attract later attention to s13 of the Defamation Act. " 15 Section 13 creates a defence of unlikelihood of harm, which defence must be considered by a judge, following the s7A hearing. 16 Mr A Dawson, who appeared for the Appellant at trial, made only one submission regarding the imputations, a submission that was framed as globally applicable to all 87 imputations. If the jury found that the Appellant had published the offending material, the Appellant put an argument, referred to by Mr R McHugh SC, who appeared on appeal, as the "imputations submission" or "take no notice" or the "not take seriously" submission. It was referred to by Mr Dawson at trial as "the vulgar abuse submission". 17 The submission was that the jury would find the imputations pleaded were not conveyed because the ordinary, reasonable reader would not take any notice of the matters complained of. It was submitted that such a reader would not take them seriously, given that the publications were "junk mail", "just rubbish" and "a political scandal sheet" and that no "impression" would be conveyed to the reader because of the "rubbishy nature" of the publication. 18 This was the only substantive submission made by the Appellant with respect to the 87 imputations. Following an application by the Respondents, Studdert J gave the direction to the jury to disregard the imputations submission as a matter of law, as set out above. 19 Originally, the Appellant's submission at trial was directed only to Question 1 before the jury, i.e. whether the imputations were conveyed. After Studdert J's direction, Mr Dawson sought a direction with respect to Question 2, i.e. whether the imputations were defamatory. 20 Mr Dawson submitted in this respect: "DAWSON: That on the second question, that is whether or not any imputations found to be conveyed are defamatory, that the jury can have regard to the nature of the publication, the vulgar language that is used, the circumstances in which they received it, the ordinary reasonable reader that is, its subject matter generally, the style layout et cetera. They can take those matters into account on the question of whether or not the imputations would tend to cause ordinary right-thinking people to think less of the person about whom that thing is said." 21 His Honour regarded this aspect of the matter as covered by his earlier ruling and said: "HIS HONOUR: I'm sorry, I am against you. I feel I am constrained to be against you and I am not going to reagitate. I have ruled on it and I am not going to depart from the ruling that I have given at this late stage. I have directed the jury and I do not propose to give a further direction." 22 Following Studdert J's direction to the jury to disregard that submission, the Appellant was left with no submissions to consider on the imputations if they found that the Appellant was responsible for publication. 23 The Appellant identifies the main issue in this appeal to be whether it was open to the Appellant, as a matter of law, to make the imputations submission to the jury. The primary issue, the Appellant submits, is whether it is permissible to consider the nature of the publication as relevant to meaning. He also identifies a subsidiary issue of principle, namely whether this submission, if allowed, is applicable to Question 1 or Question 2. The Appellant submitted below that it was relevant to the first question (whether the imputations were conveyed) and maintains this position on appeal. Although the Appellant concedes that the submission may instead go to the second question, he submits that the issue has not been considered under the 1974 Act. The Appellant further submits that Mundey v Askin [1982] 2 NSWLR 369 does not resolve this latter issue because it predates the two staged approach required under the 1974 Act. 24 The Appellant submits that this Court's decision in Bennette v Cohen (2005) 64 NSWLR 81, delivered after the trial, resolves the issue of principle regarding the availability of the "imputations submission" to the jury in a s7A trial. However, Bennette v Cohen does not resolve the issue of whether the "imputations submission" is available for Question 1 or 2. Therefore, in the Appellant's submission, the trial judge in this case was in error when he delivered his judgment of 9 September 2005 and gave his direction on the same day. 25 The approach of Studdert J is inconsistent with the following reasons of Bryson JA, with whom Beazley JA and Brownie AJA agreed, in Bennette v Cohen: "[51] … [T]here is not a dichotomy between vulgar abuse (or mere vulgar abuse) on the one hand and defamatory matter on the other, and that it does not follow from establishing that the matter complained of was mere vulgar abuse that it was not defamatory. What is for decision is whether the words spoken bore a meaning that was likely to affect the reputation of the person spoken of. 'Vulgar abuse' and 'mere vulgar abuse' are not terms of art nor are they capable of high definition or detailed exposition; but in determining the meaning of words used and whether the terms used and the context in which they were used were such that there was no likelihood of their affecting the reputation of the person spoken of; that no notice would be taken of them the matter under consideration is not whether the publication constitutes mere vulgar abuse, but whether the imputation which it conveys has a defamatory meaning: it may not have a defamatory meaning because the terms or the matter in which it is spoken show that it is not likely to injure reputation." 26 It is, of course, a significant matter for the trial judge to direct a jury that a submission of counsel which is open to be accepted should be disregarded by the jury. However, it is not the case that whenever that occurs the appeal must be allowed.

Substantial Wrong or Miscarriage 27 Even if the trial judge did commit an error, this Court must apply Pt 51 r23 of the Supreme Court Rules: "23(1) The Court of Appeal shall not order a new trial: (a) on the ground of misdirection, non direction or other error of law … unless it appears to the Court of Appeal that some substantial wrong or miscarriage of justice has been thereby occasioned." 28 When applying Pt 51 r23, this Court must have regard to s56 of the Civil Procedure Act 2005 which relevantly provides: "56(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Court must seek to give effect to the overriding purpose … when it interprets a provision of the Act or any of the rules." 29 Section 56 has its origins in Pt 1 r3 of the Supreme Court Rules. Although Pt 51 remains in those rules and has not yet been transferred to the Uniform Civil Procedure Rules, the words "rules of court" in s56 encompass the Supreme Court Rules as well as the Uniform Rules. 30 Accordingly, when interpreting the words "substantial wrong or miscarriage" in Pt 51 r23, this Court is required by s56(2) to "give effect to the overriding purpose". Where the Court is concerned with a word of such elasticity as "substantial" there may be more scope for applying s56(2) than would be the case in other interpretative contexts. 31 The Appellant's case at trial, and on appeal, on the imputations submission was an all or nothing submission. There was no suggestion that some of the imputations were more likely to be set aside by the ordinary reasonable reader. This was clearly, as Mr McHugh accepted on appeal, a tactical choice. This is a significant element in determining whether or not there has been a "substantial wrong or miscarriage". 32 Mr McHugh submitted that the test of a "substantial miscarriage of justice" was whether the legal error may have affected the result. He further submitted that in the case of a jury trial such as this, this Court should not "second guess" what a jury might have done absent the misdirection. 33 The Appellant relied on Balenzuela v DeGail (1959) 101 CLR 226 and General Motors-Holden's Pty Ltd v Moularas (1964) 111 CLR 234. 34 Balenzuela was an appeal from this Court before the Judicature Act rules, reflected in Pt 51 r23, were adopted in this State. However, Dixon CJ stated that the position at common law and under the Judicature rules did not materially differ. (See 101 CLR 226 at 232-233.) His Honour suggested that the test was whether the error "would not have affected the result" (supra at 232.8) or that the jury "may have been influenced in their verdict by the misdirection" (supra at 233.5; emphasis added). His Honour went on at 236.3 to refer to a test of whether, in the case of a misdirection "a verdict … might not have been found" (emphasis added). 35 Furthermore, at 235, Dixon CJ said, relevantly: "The form in which the judicature rule is cast seems to indicate an intention that the court should not grant a new trial unless it reached a positive opinion, in other words unless it was persuaded that a substantial wrong or miscarriage had been occasioned by the error. This may form one distinction between the two rules … Another distinction perhaps may be that a rather more substantial wrong or miscarriage has been required under the judicature rule than had been required at common law. But the existence of the distinction is doubtful. It must be remembered that the law relating to the grant of new trials was one that had continued to develop." 36 I pause to note that the law relating to new trials has continued to "develop" in the 50 years since Balenzuela, as reflected, for example in the overriding purpose provision in the Rules, reflecting as it does the different contemporary approach to court control of the course of civil litigation. 37 Dixon CJ went on to say at 235, in a passage relied upon by the Appellant: "But whether it be the rule at common law or under the judicature system a much more important restraint must be observed upon the discretion of the court to refuse a new trial. The court, where the determination of questions of fact is not entrusted to it, cannot substitute its judgment for that of the jury in purporting to decide whether a substantial wrong or miscarriage has occurred." 38 His Honour also said at 101 CLR 226 at 236-237, that the court should not "speculate on the effect which [the error] would have produced on the jury". 39 I note that in Moularas supra at 254-256, Menzies J applied the approach of Dixon CJ in Balenzuela to a case under the judicature rules. (See also at 259 per Windeyer J.) 40 The history of the judicature rule and its interpretation was recently considered by the Court of Appeal of the Supreme Court of Western Australia in Brown v Churchill 31 WAR 246; [2006] WASCA 17 at [1], [3]-[10], [41]-[62]. 41 It is clear that, where the Court concludes that the relevant error could not (or equivalent terminology) have affected the result, then the Court cannot be satisfied that there had been a "substantial wrong or miscarriage". Nevertheless, there is authority which suggests that such a conclusion can be reached where the error involved a matter that was tangential in the way identified by Herron CJ (with whom Sugerman JA agreed) in Freeman v G J Coles & Co Ltd [1967] 1 NSWR 297 at 300: "What has to be looked at is the essential justice of the case and for the appellate Court to see whether the error of the judge, if there was one, really bore upon the ultimate result".

(Referred to with approval in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [92], [96].) 42 This test is more consistent with contemporary practice of civil litigation than the various formulations in Balenzuela. Nevertheless, as will appear below, it is not necessary to adopt a different test in the present case. 43 The respect that the Court must give to the role of the jury, relevantly in a s7A context, identified in Balenzuela, has been acknowledged in many contexts. Nevertheless, even in a criminal context a court of criminal appeal will, where appropriate, allow an appeal on the basis that a jury decision is unsafe. Furthermore, when determining whether a new trial is required after legal error has been identified, there is a well established body of jurisprudence with respect to the application of the proviso. 44 It is always dangerous to substitute a different form of words for a statutory formulation. The High Court has emphasised this consideration when considering the proviso on a criminal appeal. This is a matter cognate to the judicature rule now reflected in Pt 51 r 23. (See Weiss v The Queen (2005) 224 CLR 300 at [12]-[18].) The reasoning in Weiss on the proviso is, as the Court said in Brown v Churchill, (supra, esp at [1] and [10]), applicable to the application of the rule found in Pt 51 r23. 45 The relevant extract from Weiss is: "[35] The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred'. [36] By hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial. If there was not, there is no occasion to consider the proviso. In cases, like the present, where evidence that should not have been adduced has been placed before the jury, it will seldom be possible, and rarely if ever profitable, to attempt to work out what the members of the trial jury actually did with that evidence. In cases, like the present, where the evidence that should not have been adduced has been placed before the jury, it will seldom be possible, and rarely if ever profitable, to attempt to work out what the members of the trial jury actually did with that evidence. In cases, like the present, where the evidence that has been wrongly admitted is evidence that is discreditable to the accused, it will almost always be possible to say that that evidence might have affected the jury's view of the accused, or the accused's evidence. And unless we are to return to the Exchequer rule (where any and every departure from trial according to law required a new trial) recognition of the possibility that the trial jury might have used wrongfully received evidence against the accused cannot be treated as conclusive of the question presented by the proviso. [37] This may suggest that reference may be made to what a reasonable jury, properly instructed, would or might have done. That would at least make the inquiry objective and take away what might be said to be the element of speculation implicit in the 'this jury' test. … [39] Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt. [40] Reference to inevitability of result (or the converses references to 'fair' or 'real chance of acquittal') are useful as emphasising the high standard of proof of criminal guilt. They are also useful if they are taken as pointing to 'the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record' [ Fox v Percy (2003) 214 CLR 118 at 125-125 [23]per Gleeson CJ, Gummow and Kirby JJ]. But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, in this case, s568(2) of the Crimes Act . It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred [cf Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at 1720 [11]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ; at 1722-1723 [23]-[24]; 193-194 per Kirby J]. The statutory task and the proviso [41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence [ Driscoll v The Queen (1977) 137 CLR 517 at 524-525 per Barwick CJ: Storey (1978) 140 CLR 364 at 376 per Barwick CJ: Morris v The Queen (1987) 163 CLR 454; M v The Queen (1994) 181 CLR 487; Festa (2001) 208 CLR 593 at 631-633 [121]-[123] per McHugh J] and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record [ Fox v Percy (2003) 214 CLR 118 at 125-126 [23] per Gleeson CJ, Gummow and Kirby JJ], the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. [42] It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration." 46 This reasoning is not entirely consistent with Balenzuela and should be adopted for purposes of Pt 51 r23. In the present case, however, I would have reached the same conclusion with respect to whether there has been a "substantial wrong or miscarriage" even if the Balenzuela formulations had been applied. 47 The circulars were unsolicited, unsigned and not addressed to any person. They were distributed by being placed in letterboxes or under front doors. No doubt for these reasons they were given the appellation "junk mail" by counsel for the Appellant at trial when addressing the jury. The appellation is less helpful on appeal. 48 Nevertheless, when the full range of circulars is assessed, (including those not sued upon), in the comprehensive manner which Weiss indicates should occur, I am satisfied that the Appellant's submission below was quite hopeless and that, accordingly, no substantial wrong or miscarriage has occurred. A reasonable jury could not have concluded that the circulars should be treated with the disdain that the Appellant submitted. 49 The circulars do contain extravagant and colourful language, e.g. "a shocker", "howlers", "they couldn't have given a stuff", "five pages of 'bull'", "environmental shonk", "political bull", "dropkick stuff", "putrid", "talk about a dill", "absolute crap", "breathtaking deception", and "pigs might fly". 50 There is also language which could be described as "abusive" even vulgarly so: e.g. "sneak", "devious", "vermin", "deviates", "bludger", "phoney", "grubs", "stupid and nervous guilty grin", "that idiot Megna", "incompetent", "shonky like Megna", "corrupt". There were also numerous references to lying. 51 However, these references are scattered through long passages of prose and it is only in two circulars (the 13th and 16th matters complained of) that more than two or three appear in the one circular. Neither these references, nor the harmless colloquialisms and conversational style, are such that any circular, let alone the entire body, could reasonably be characterised in the way for which the Appellant contended. 52 Despite the use of strident language throughout and the circumstances of distribution, the circulars had a number of characteristics that encouraged a reader to take them seriously. These characteristics are, in my opinion, determinative of the issue under Pt 51 r23. 53 The characteristics are: · All but one was published under the name of the "Drummoyne Council Ratepayers Association", with the slogan "Investigating decision making by Drummoyne Council and its Councillors". The authors refer to themselves as "a group of concerned residents … who wish to make public the atrocious decision-making, lies and waste of public moneys in this Council". References to residents informing the Association of council actions, encouragement to write to the Association, and promises to respond to letters from residents as space permits, also encourage the perception that the circulars were designed to be a serious attempt to communicate with residents of the municipality about local government through a community newsletter. · They were published on a fairly regular (i.e. usually a monthly) basis, with references within individual circulars to past and future circulars, as if they were an ongoing and reliable community information source with an audience who followed their publication. · The themes contained in the circulars were fairly repetitive and there appears to have been little attempt to 'spice up' the content as would be expected from a scandal sheet or reminiscent of junk mail. Indeed, in the eighth matter complained of the introduction sums it up, when it states: "More variations on the same theme, month after month." Similarly, in the tenth matter complained of it was written "Month after month, our Circulars are filled with muck from Drummoyne Council, its Councillors, Lloyd, management, everything being a variation on the same themes of wastage and, in general, cost to the Community." · The circulars contained detailed references to council business and events at a local government level, including references to council documents and council meetings. · The council business highlighted in the circulars could be described as the operational or procedural side of local government and assumed quite a high level of interest on the part of the reader, an assumption uncharacteristic of junk mail. For example, topics in one typical circular included: the Council's "Five Dock Main Street Programme" and its implications for a particular pedestrian crossing, the Council's "verbal advice" policy for residents asking questions of the council over the counter, pending changes to the Environmental Planning and Assessment Act 1979, the decisions Council was making about informing residents of development proposals and proposed amendments to the "Drummoyne Local Environmental Plan 1986". · The vast majority of the circulars were several pages of dense and detailed text, separated into two columns. Few of the usual stylistic devices, such as pictures or enlarged text, which are common in junk mail, are used. Two circulars are exceptions to this standard style. Circular June 1999, is more reminiscent of political posters than newsletters, with significantly bigger writing and stylistic devices designed to gain the immediate attention of readers. This issue was a special issue to address the proposed amalgamation of Drummoyne Council into Canada Bay Council, the biggest issue that had faced the municipality during the period of publication. There was also a change in style in the final publication complained of, Circular August/September 2003, although that is probably explained by the significant gap between the date of publication for the other circulars and this one. 54 The overall impression of each circular is that it was a serious attempt to communicate information. A reasonable jury, properly instructed could not have accepted the submission that the ordinary reasonable reader would have put any, let alone every one, of the publications aside. If the Appellant had sought orders for a retrial limited to the imputations which employed abusive language - "sneak", "devious vermin", "deviate" - the position may have been different. For sound tactical reasons he did not do so. 55 There was, in my opinion, no substantial wrong or miscarriage. These grounds of appeal should be dismissed.

Ground of Appeal 3 56 This ground arises from his Honour's failure to give certain directions sought at trial by the Appellant's counsel with respect to four aspects of the address to the jury by Mr Molomby. Counsel for the Appellant addressed first and could not reply to the matters of which complaint was made to the trial judge. (Three matters were abandoned.) 57 Two matters involve assumptions or propositions not put to the Appellant in cross-examination. The Appellant relies on the "rule" in Browne v Dunn and asserts that the case falls within one of the well established applications of the principle of fairness, as set out in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) (1983) 1 NSWLR 1 esp at 24D-E). 58 With respect to two other matters, the Appellant contends that Mr Molomby misstated, or did not accurately reflect, the evidence.

Ground 3a - References to legal advice 59 In the 13th matter complained of the following extract appears: " … legal advice to us confirms that 'criminal libel' did appear in ONE EDITION issued in May this year. That edition was not produced by this association but by counsellors Leslie and Megna." 60 The reference in this circular is to what has been referred to as a bogus circular issued, allegedly, by the Respondent in a form made to appear as if it was one of the series of circulars sued upon. 61 In the course of the proceedings a document was tendered addressed to residents of the municipality and headed "Defamatory Circular". The document purported to be issued in the name of the Appellant's company, Victory Finance Pty Ltd. That circular stated: "Legal advice to Victory Finance concludes that both the Company and Rick Tory have been seriously defamed and that a criminal act has been committed by the writers of this particular circular." 62 The transcript of Mr Molomby's address to the jury with respect to the plaintiff's case against Mr Tory extends to approximately 55 pages, most of which is devoted to the issue of publication. Towards the end of his address, and by way of the last particular of the circumstantial case on publication, Mr Molomby directed the jury's attention to the Victory Finance circular. He first referred to a paragraph in the circular which identified the so-called bogus circular as not having been produced by the Ratepayers Association. He submitted to the jury that a person who was concerned to distinguish a genuine from a bogus circular was clearly a participant. He described this aspect as "a real give away". 63 Mr Molomby then went on to refer to the reference in the Victory Finance circular to legal advice suggesting that a criminal libel had occurred. He then directed the jury's attention to the passage in the 13th matter complained of which states "legal advice to us" and described this as a "a real slip". He then put the following: "'Legal advice to us', legal advice to Victory Finance and Rick Tory. There could be no reason why the editorial collective, if it wasn't Mr Tory or Mr Marshall behind this newsletter, would be going off to get legal advice for them." 64 He went on to refer to this as "a moment of the guard dropping". 65 The complaint based on the "rule" in Browne v Dunn is that, as a matter of fairness, Mr Molomby should have put, during the course of his cross-examination of Mr Tory, the contention that the reference to "legal advice to us" in the matter complained of was a reference to the legal advice obtained by the Appellant and his company which had been referred to in the Victory Finance circular. It was not in the circumstances appropriate for him to address in this manner and Studdert J should have directed the jury to disregard the submission. 66 The thrust of the complaint is that the Appellant was denied an opportunity of explaining the reference to "legal advice to us". Specifically, he was denied the opportunity of giving evidence about to whom the advice that he and his company did obtain could have been circulated or otherwise made available. He was not able to explain how it was that the real authors of the circulars may have had access to that legal advice. 67 The thrust of Mr Molomby's address to the jury was to emphasise the words "to us" in the matter complained of. If, as the Appellant contended, the author of the circular was somebody else, there could be no reason why such a person would obtain legal advice as to whether or not the Appellant had been defamed to the criminal standard in the bogus circular. This is the basic thrust of the proposition. 68 The matter upon which the Appellant sought a direction was the fact that it was not open to make a submission that linked the reference in the matter complained of to the acknowledgement in the Victory Finance circular that advice of that character had been obtained by Mr Tory. 69 The fact that Victory Finance and Mr Tory had in fact obtained such advice was widely known by reason of the circulation of the Victory Finance circular, which is dated 28 May 1999. (The matter complained of was November 1999.) It was quite unnecessary to put to Mr Tory that the existence of such advice was known to others. Furthermore, as Mr Tory was maintaining the position that he was not the author of the circular, he could not possibly explain the use of the terminology which indicated that it was the author of the circular who had obtained the relevant legal advice. What Mr Molomby did was to direct the attention of the jury to the fact that the Appellant had obtained legal advice of that precise character whilst making the directly pertinent submission, and one which the Appellant does not contend was in any way inappropriate, that it was unlikely that a person would obtain legal advice about whether some other person had been defamed. 70 The reference in the matter complained of is not to "legal advice available to us" it is to "legal advice to us". I can see no relevant unfairness from the fact that Mr Molomby did not put the link to the Appellant so that he had the opportunity to explain how the author could have become aware of the advice. In any event, I can see no substantial wrong or miscarriage.

Ground 3d - The correct spelling of Tsirekas 71 This ground turns on a somewhat convoluted submission made by Mr Molomby to the jury concerning the incorrect spelling of a name of a councillor, Mr Tsirekas. His name appears in the circular spelt in a number of different and mostly incorrect ways. An incorrect spelling of his name had also appeared in some correspondence that the Appellant addressed to the Council. 72 The thrust of Mr Molomby's submission was, on the assumption that there was a single author of all of the relevant circulars, that that author was someone who was "very badly confused" about or "terminally confused" about the spelling of a name. He then asserted that Mr Tory was so confused. 73 This issue turns on the assertion, during the course of making submissions about this matter, that Mr Tory had access to Council documents. Mr Molomby pointed out that the spelling of the name was accurate in those sections based on quotations from Council documents, but otherwise many different spellings appeared. 74 Mr Molomby made his submission to the jury in the following terms: "So we are talking about someone who can get it wrong even when he is presented with it right. In other words, we are talking about someone who is very badly confused about this name. There are not a lot of candidates for that and Mr Tory is certainly one. He acknowledged in this court when I raised the topic with him he has always been badly confused about this name. What do you [accept] about somebody who is badly confused about a name? They will get it right sometimes, they will get it wrong sometimes, they can even get it right and wrong in the same article. That is a very important point in showing it is the same person. There is no argument open here that the person who got it right was one person and the person who got it wrong was another person because, I will show you, the writer got it right and wrong in the same article." 75 Mr Molomby then proceeded to take the jury through examples of misspelling within the circulars, before concluding: "So you see there is pretty strong evidence, there are two examples, one where the two spellings are used in the same article and there is another one where they are both used in different articles in the same edition, that the author was terminally confused about this. That's Mr Tory, and there is no evidence of anybody else with knowledge of council affairs and exposure to council things. If you asked anyone on the street how you spell this councillor's name you might gets lots of variations. We are not talking about that. We are talking about someone close to the heart of the action, someone who has seen these documents, who has actually quoted. There is an example there of a Council document quoted." 76 The Appellant's ground of appeal is based on the proposition that there was no evidence that he had access to any Council documents, or at least not to any which spelled the name. That he did have such access was never put to the Appellant in cross-examination. 77 On appeal, Mr Molomby submitted that it was implicit in the entire case on publication that the Appellant had access to Council documents, which had been extensively quoted throughout all the circulars. Furthermore, he submitted that there were examples in the Appellant's correspondence with Council of quotations from Council documents. 78 The basic submission to the jury, in my opinion, was so unlikely to have influenced any juror's opinion, that I could not conclude, even if there were an obligation to put this matter under the "rule" in Browne v Dunn, that it would have made any difference. 79 I have set out above the substantial circumstantial case of the Respondent on the issue of publication. The link between the various misspellings and the fact that the person who did this had access to Council documents is so tangential, that I can see no significance in the failure to expressly put a matter which was, in my opinion, implicit in the case of the Respondent. 80 In my opinion, on no view could this matter alone, or in combination with any of the other matters complained of, have constituted a substantial wrong or miscarriage.

Grounds 3e & 3f - Misstatement & Misrepresentation of the Evidence 81 The Appellant complains that Mr Molomby unfairly misquoted the Appellant's evidence in his closing address by omitting certain sections. The first matter was a quotation from the Appellant's evidence regarding his willingness to distribute circulars like those published. The second matter related to Mr Marshall's reasons for implicating the Appellant. 82 In his address to the jury Mr Molomby did seek to paint the Appellant as the sort of person who would publish circulars of the character in issue. In the course of making such a submission Mr Molomby referred to and quoted from his cross-examination of the Appellant about his opinion of those who had issued the circular. One of the questions and answers was as follows: "Q You say you wouldn't do it because you have no interest. Apart from having no interest, you saw no reason why you should not, did you?" A Well, if it was something I was interested in and I was really driven to it I probably would do it, but it wouldn't be about a council, it would be about something else ." 83 The underlined passage was omitted from the purported quotation by Mr Molomby to the jury of the answer to that question. This omission made a material difference to the answer. 84 At trial, counsel for the Appellant submitted to Studdert J that the submission made by Mr Molomby was "not available in the terms it was put". In response to that submission Studdert J said: "You want me to remind them of the text of that. I will do that. I think that's fair." 85 His Honour did read the text of the whole of the answer. His Honour did not, however, make any additional comment. He did not draw the attention of the jury to the context in which Mr Molomby had used the answer or to the fact of the omission in Mr Molomby's actual address. On appeal it was submitted that this matter required more effective correction by his Honour, because Mr Molomby had relied upon it as some kind of admission on the part of the Appellant. It was not sufficient merely to read out the full quotation. 86 However, at trial, his Honour indicated what he was going to do and there was no objection taken to that course. 87 The misquotation was clear and did undermine the proposition for which Mr Molomby was contending in that part of his submissions, namely that the fact a person "probably" would publish matter of that character was a relevant matter which increased the probability that he did in fact publish the material complained of. 88 This was not an insignificant misquotation. His Honour did correct it, however, without the elaboration which would have reduced whatever sting it may have had when the submission was originally made. In view of the lengthy addresses and summing-up that the jury had received, it was quite likely that some jurors may have failed to appreciate the significance of his Honour reading the whole of the quotation to them. 89 In my opinion this ground has been made out. However, neither alone nor in combination with any other matter does it reach the level of constituting a substantial wrong or miscarriage of justice. 90 The second submission which counsel at trial submitted to Studdert J was not open was a submission by Mr Molomby that Mr Dawson had not put to Mr Marshall any reason for his evidence at the hearing before Justice O'Keefe which implicated the Appellant. In the course of his address to the jury Mr Molomby accepted that Mr Dawson had put to Mr Marshall that he had a motive to share the blame but added: "Mr Dawson did not suggest to Mr Marshall in cross-examination any reason he would have for picking on Mr Tory. He suggested you have got a reason to share the blame, sure, share the blame is there, but why pick on Mr Tory as the one to dump it on?'" 91 The Appellant submitted that this was put to Mr Marshall in the following passage: "Q What I want to suggest to you, Mr Marshall, is that you have transposed a true factual situation, that is, Mr Tory coming to your house to collect printing for Victory Finance, on to what you have been accused of doing in these proceedings to try and blame Mr Tory. A Two different situations, no connection between them whatsoever. Q And the reason that you blamed Mr Tory when you were being cross-examined by Mr Molomby last year was because he was the first person you could think of who had been to your house to collect printing for a legitimate purpose and you thought you could make the story fit? A No." 92 In the course of his supplementary directions to the jury after legal argument, his Honour did not correct the assertion that Mr Dawson at trial had failed to put any reason for him "picking on Mr Tory", to use Mr Molomby's phrase. 93 I would not have thought that the jury would have placed any weight on an assertion by Mr Molomby that Mr Dawson had not put a particular proposition, save insofar as an inference may be available that there was not, in fact, any reason for seeking to transfer the blame to Mr Tory, rather than to someone else. The latter was the thrust of this part of Mr Molomby's address. 94 His Honour's supplementary direction to the jury was, in terms, directed to the substance of the question before the jury rather than to any issue of form in terms of the responsibility of counsel, when he said: " … Mr Dawson's submission is that when that evidence was given Mr Marshall was concerned to spread the blame about and Mr Dawson submitted for that reason that you would not treat that evidence as being reliable. And further, that of course Mr Marshall resiled from it in this court where he said only against Mr Tory that he picked up the printed material." 95 This did not remind the jury of the reason suggested in cross-examination for Mr Marshall choosing Mr Tory rather than someone else, i.e. that he was "the first person you could think of". However, what was sought at trial was a direction that the particular submission by Mr Molomby was not open. 96 As a matter of fairness, it may have been advisable to remind the jury of the fact that cross-examination did occur, contrary to Mr Molomby's submission. However, in my opinion, neither on its own nor in combination with any other matter is this capable of constituting a substantial wrong or miscarriage of justice.

Conclusion 97 The appeal should be dismissed with costs. 98 BEAZLEY JA: I agree with Spigelman CJ. 99 BRYSON JA: I agree with Spigelman CJ. **********

26/02/2007 - Pt 21 r23 should read Pt 51 r23 - Paragraph(s) 30

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