Sarma v The Federal Capital Press of Australia Pty Ltd

Court of Appeal (NSW)|2002-03-14|Before: Stein JA, Santow JA, Grove J

CITATION : Sarma v The Federal Capital Press of Australia Pty Ltd [2002] NSWCA 93 FILE NUMBER(S) : CA 40352/01 HEARING DATE(S) : 14 March 2002 JUDGMENT DATE : 5 April 2002

PARTIES : Vimala Sarma (Appellant) The Federal Capital Press of Australia Pty Limited (Respondent) JUDGMENT OF : Stein JA at 1; Santow JA at 24; Ipp AJA at 36

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CL 20390/00 FILE NUMBER(S) : LOWER COURT Grove J JUDICIAL OFFICER :

COUNSEL : C A Evatt (Appellant) B A M Connell (Respondent) SOLICITORS : Ward Maxwell & Co (Appellant) Minter Ellison (Respondent) CATCHWORDS : DEFAMATION - libel - published review of dance performance - jury finds imputation established but not defamatory - whether finding of jury perverse Defamation Act 1974, s 7A - ND LEGISLATION CITED : Defamation Act 1974, s 7A Freedom of Information Act 1982 (Cth) Browne v Agar (1928) 138 LT 698 Buck v Jones [2002] NSWCA 8 Cairns v John Fairfax & Sons Ltd (1983) 2 NSWLR 708 Carr v Inland Revenue Commissioners [1944] 2 All ER 163 Cinevest Ltd v Yirandi Productions Ltd (2001) ATR 81-610 Duplany v Davis (1886) 3 TLR 1184 CASES CITED: Greek Herald Pty Ltd v Nickolopoulos [2002] NSWCA 4 Hocking v Bell (1942) 42 SR(NSW) 130 Hopwood v Muirson (1945) KB 313 Mechanical & General Inventions Co v Austin [1935] AC 346 Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 Prestia v Aknar (1996) 40 NSWLR 165 Young v Wicks (1986) 13 FCR 85 DECISION : Appeal dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40352/01 CL 20390/00

STEIN JA SANTOW JA IPP AJA

Friday, 5 April 2002 Vimala SARMA v FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED The respondent (The Federal Capital Press of Australia Pty Ltd) is the publisher of The Canberra Times. In the newspaper of 2 May 2000 the respondent published a review of a dance performance by the appellant, Ms Sharma, which took place on 30 April 2000 at Hawker College in Canberra. She had performed a particular sophisticated Indian dance, the Shingara. The transcript of the article complained of is attached hereto. Ms Sharma appeals from proceedings heard on 30 April 2001 by Grove J and a jury. The proceedings were a trial pursuant to Section 7A of the Defamation Act in which the jury found that the imputation "the plaintiff as a dancer is incompetent as a dance performer" was conveyed by the newspaper review but that the imputation was not defamatory of her. She appeals from that part of the decision of the jury in which they found that the imputation was not defamatory on the ground that the finding of the jury was perverse or unreasonable. Held: On the appeal, per Stein JA, Santow JA and Ipp AJA agreeing:

In order to succeed the appellant must show that, upon the most favourable meaning of the imputation, the finding of the jury was perverse. To be a perverse verdict, it must be so unreasonable that it could not be said that the jury performed its judicial function or, that to allow the verdict to stand would be to permit a miscarriage of justice.

Mechanical & General Inventions Co v Austin [1935] AC 346 applied
Hocking v Bell (1942) 42 SR(NSW) 130 applied
Cinvest Ltd v Yirandi Productions Ltd (2001) ATR 81-610 applied

In this instance, the imputation makes no express mention of any professional capacity on the part of the appellant. Further, there was no evidence before the jury that the appellant was a professional dancer. Nor could that conclusion be derived from the article itself. Using the word "calling" adds nothing of relevance to the term "profession".
It was open to the jury to find that the imputation was not defamatory of the appellant. The context of the article would not inevitably lead a jury to find that the imputation (found by the jury) would cause ordinary decent people in the community to think less of the appellant.
The jury verdict was not perverse nor was it a miscarriage of justice.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40352/01 CL 20390/00

STEIN JA SANTOW JA IPP AJA

Friday, 5 April 2002 Vimala SARMA v FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LIMITED Judgment 1 STEIN JA: With the leave of the court the appellant, Vimala Sarma, appeals against a jury decision in a trial pursuant to s 7A of the Defamation Act 1974 (the Act). 2 The respondent is the publisher of the Canberra Times. In the newspaper of 2 May 2000 the respondent published a review of a dance performance of the appellant which took place on 30 April 2000 at the Hawker College in Canberra. It is convenient to annex to these reasons a transcript of the newspaper article. 3 There were two questions which the jury were asked to answer. The first question was: Does the publication, more probably than not, convey to the ordinary reasonable reader the following imputation or an imputation not substantially different: That the plaintiff as a dancer is incompetent as a dance performer?

To this the jury answered 'Yes'. 4 The second question was: Is that imputation defamatory of the plaintiff, that is, would the publication of that imputation cause ordinary decent people in the community to think any less of the plaintiff?

To this the jury answered 'No'. Accordingly, Grove J entered a verdict for the respondent/defendant. 5 The appellant contends, as it has to, that the jury finding on the second question was perverse. Counsel for the appellant, Mr Evatt, acknowledges that this is an onerous task. Nonetheless, he submits that the jury having found that the publication conveyed to the ordinary reasonable reader the imputation that she 'as a dancer is incompetent as a dance performer', it must inevitably follow that the imputation was defamatory of the appellant because it would cause ordinary decent people to think the less of her. 6 The starting point for consideration of the appellant's submission is that the parliament has left the question of libel or no libel to the jury. Section 7A was inserted into the Act in 1994. Prima facie, a jury verdict should be respected. 7 To succeed the appellant has to show that, upon the most favourable meaning of the imputation, the finding of the jury was perverse, Cairns v John Fairfax & Sons Ltd (1983) 2 NSWLR 708 at 710. The case against a verdict must be 'clear and beyond argument', see Samuels JA in Cairns (at 716 - 717), quoting from Sankey LJ in Browne v Agar (1928) 138 LT 698. It has been acknowledged that the jury has a wide discretion in the sense that its verdict may only be set aside 'in an extreme case', Mahoney JA in Cairns at 720. So it is clear that the jury must be allowed great latitude in its decision-making. 8 Further, in Cairns (at 720) Mahoney JA noted that in cases where the defamatory quality of the imputation depends on general community attitudes to conduct, there is more difficulty in a court finding that a jury could not form a particular view as to community standards. 9 To be a perverse verdict, it must be so unreasonable that it could not be said that the jury performed its judicial function (Mechanical & General Inventions Co v Austin [1935] AC 346) or, that to allow the verdict to stand would be to permit a miscarriage of justice (Hocking v Bell (1942) 42 SR (NSW) 130). 10 It has repeatedly been said that an appellate court must guard against the tendency to set aside a jury verdict because it would have come to a different decision. 11 In Cinevest Ltd v Yirandi Productions Ltd (2001) ATR 81-610 at 67,031 Spigelman CJ noted that the test to be met to interfere with a jury's verdict was a high one and a finding could only be rejected if perverse or unreasonable. However, the court found that the particular conduct relied on concerned the business affairs of a company in its dealings with investors and must have an affect on the reputation of the company in its business affairs. 12 For a recent discussion of perversity in jury verdicts see Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 and also Buck v Jones [2002] NSWCA 8. 13 Counsel for the appellant places emphasis on the words in the imputation of 'the plaintiff as a dancer'. He submits that the imputation is to be examined in the context of the article complained of (Greek Herald Pty Limited v Nickolopoulos [2002] NSWCA 41 at [15]). When the article is examined Mr Evatt says that it will be seen that the appellant 'is a dancer of such purported calibre she holds herself out for public criticism'. He submits that it should be assumed that such trenchant criticism (in the review) would only be in respect of a professional or skilled performer, as say compared to a once only performance by an inexperienced dancer or student. 14 It is important to acknowledge that the pleading did not maintain that the appellant was a professional dancer. The imputation was only 'as a dancer'. There was no evidence that the appellant was a professional dancer. However, in his address to the jury Mr Evatt so described her. Respondent's counsel did not interrupt but later objected in the absence of the jury. 15 When counsel for the respondent came to address the jury, he pointed out to them that there was no evidence to suggest that the appellant was a professional dancer. He said that the contention of the appellant's counsel that they should find the imputation defamatory because she was a professional dancer was not open to them. 16 In his Summing-Up Grove J directed the jury in conventional terms that the only evidence before them was the article complained of and that they were to decide the case upon the evidence. 17 It is the submission on behalf of the appellant that when the article is examined to obtain the context, it is apparent that the appellant was engaged in a public dance performance and following her calling or vocation. From the article it is submitted that it is clear that the dancer is holding herself out as being able to perform a particular and sophisticated Indian dance, the Shringara. From the article the jury would see that it was a serious performance. Mr Evatt submits that it was irrational for the jury to draw an inference other than that the imputation was defamatory of the appellant. Indeed, he went so far as to suggest that the imputation was inevitably defamatory of the appellant. 18 A calling or vocation means no more than following a profession or trade. Using the word 'calling' adds, in my opinion, nothing to the argument. Nor can I see that a reading of the article complained about leads to the conclusion that the appellant was a professional dancer. So it comes down to the imputation, found by the jury, of the appellant 'as a dancer is incompetent as a dance performer'. 19 I can not accept that the context of the article must or should have inevitably lead to the jury finding that the imputation (found by the jury) would cause ordinary decent people in the community to think less of the appellant. 20 In my view, it was open to the jury to find that the imputation was not defamatory of the appellant. The context of the article was capable of leading the jury to a view that the appellant had a pastime as a dancer of Indian dances and that ordinary decent people in the community would not think less of her after reading the review. 21 I am unable to conclude that the jury verdict was perverse. It cannot be said that it is clear and beyond argument that the verdict was bad. This is not 'an extreme case'. The jury must be given great latitude in exercising its function. Another factor here relevant is that the jury's answer to libel or no libel involved the application of general community attitudes. It is for a jury to form a particular view as to prevailing community standards. 22 Whichever way the test is formulated, I am not persuaded that the jury did not perform its proper function. The verdict does not amount to a miscarriage of justice, nor can it be seen as irrational. Whether I would have come to a different conclusion is, or course, quite beside the point. 23 In my opinion, the appeal should be dismissed with costs.

24 SANTOW JA: I concur in the judgment and reasons given by Stein JA and adopt his elaboration of the material facts, I also agree with the observations of Ipp AJA. I wish to add only these observations of my own.

25 The imputation, which the jury found was conveyed, was in these terms: "The Plaintiff as a dancer is incompetent as a dance performer". The jury then found the imputation not defamatory. It is that verdict which is the subject of this appeal.

26 It is long settled that any imputation which may tend to injure a person's reputation in a business, employment, trade, profession, calling or office carried on or held by him is defamatory; see "Galley on Libel and Slander" (Sweet & Maxwell, 1998) at 2.26. I agree with Stein JA that the term "calling" adds nothing of relevance here to the term "profession". The substantive question here is whether the jury's determination that the relevant imputation was not defamatory was a perverse verdict; that is, so unreasonable that it could not be said that the jury performed its judicial function (Mechanical & General Inventions Co v Austin [1935] AC 346) or, that to allow the verdict to stand would be to permit a miscarriage of justice (Hocking v Bell (1942) 42 SR(NSW) 130).

27 Consider only the words of the imputation found by the jury and its context provided by the evidentiary circumstances before it, excluding any gratuitous observations of assumed fact by Counsel. On that basis, would it have been so unreasonable as to amount to perversity for the jury, in reaching their verdict that the imputation was not defamatory, to have concluded that the imputation did not refer to the Plaintiff as a professional dancer? In so posing the issue, it is essential to remember that the question is not whether in the Court's view the jury's conclusion was right or wrong. It is rather, whether that conclusion was, in the Court's view, so manifestly wrong as to be perverse. This is most especially as the jury are the judge of those community standards which bear on the matter, not the Court.

28 The starting point is that the imputation makes no express mention of any professional capacity or calling on the part of the Plaintiff. In identifying what was properly before the jury, I must exclude the observations to the jury in opening by Plaintiff's Counsel, to the effect that the Plaintiff was a professional. There was no evidence to that effect and Defendant's Counsel later, in the absence of the jury, did properly object to that observation.

29 All that was relevantly known to the jury was that (a) this was a performance in Canberra at a College, (b) the Canberra Times had evidently considered the dance performance of sufficient importance to its readers to review, and (c) what was performed was a sophisticated traditional Indian dance, the Shringara.

30 I consider that those circumstances are not such as to compel the conclusion that the performance must have been by someone who was a professional dancer. It is not unknown for a newspaper to review the performance of a significant traditional cultural event, though it be performed by someone who was not a professional, as indeed might be the more likely with a traditional dance. This can be so, though the performance still called for special skills in its competent performance. Here the jury knew that the dancer came from the Indian community from whence the dance found its traditional roots. So it could have rationally judged that the performer was not, or not quite, a professional.

31 In doing so, the jury could rationally have concluded that there are gradations between the rank amateur dancer with no special skills, and higher levels of skill still falling short of those of a professional dancer, finally reaching the level of a professional dancer. Those intermediate stages might be described as those of a rank unpolished amateur, a gifted amateur approaching semi-professional status and finally close to, but not quite at professional level. To ignore the possibility of that potential middle ground, is to commit the logical fallacy of the undistributed middle, in which one is either rank amateur or accomplished professional, with nothing in between. I consider there is nothing inherent in the circumstances of a dance performance at a College the subject of newspaper review, or in the sophisticated nature of the dance, that should have led a jury inevitably to have concluded that the Plaintiff was to be judged against the standards of a professional dancer, such that the imputation with its reference to "the Plaintiff as a dancer" was of necessity an imputation injuring the Plaintiff in her profession or calling.

32 That the defamatory quality of the imputation is dependent on general community attitudes was stated by Mahoney JA in Cairns v John Fairfax & Sons Ltd (1983) 2 NSWLR 708 at 720. Indeed the evolving notion of what at a particular stage is, or is not, a "profession" should itself be judged by reference to contemporary community understanding and usage of that term. Thus in Young v Wicks (1986) 13 FCR 85 at 90, Beaumont J, in deciding that the air navigation activities of a pilot could not be considered "professional affairs" for the purposes of the Freedom of Information Act 1982 (Cth), concluded that the term "professional affairs" could not be extended to include such activities without some evidence that the community perceived them as falling within that category: He concluded that "in the absence of any evidence of any such usage, it is not, in my opinion, open to the applicant to seek to extend the ordinary dictionary meaning of the term 'professional affairs' " (at 90). In Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 166, du Parcq LJ said the test was whether "the ordinary man, the ordinary reasonable man - the man, if you like to refer to an old friend, on the Clapham omnibus - [would] say now, in the time in which we live, of any particular occupation, that it is properly described as a profession". Finally, what is or is not a profession is not dependent on whether the activity is conducted for reward, though that be a frequent correlate; see Prestia v Aknar (1996) 40 NSWLR 165 at 185-6.

33 These considerations reinforce the importance of leaving to the jury the question of whether the imputation is to be judged as one pertaining to the Plaintiff as a professional dancer or something less, when the evidentiary facts before the jury do not preordain the answer.

34 That the jury answered the question as it did, is not therefore to be treated as a perverse verdict. I would therefore adopt the same conclusion as Stein JA at para 20 of this judgment, namely that the context of the article was capable of leading the jury to a view that the Appellant has a pastime as a dancer of Indian dances and that ordinary decent people in the community would not think less of her after reading the review. That word "pastime" is apt to encompass that undistributed middle to which I have made earlier reference. In those circumstances it necessarily follows that the jury verdict was not perverse.

35 In my opinion, the appeal should be dismissed with costs.

36 IPP AJA: The defamatory imputation found to exist was "that the plaintiff as a dancer is incompetent as a dance performer". This elliptical statement is difficult to understand. Mr Evatt, counsel for the appellant, submitted that it meant that the plaintiff, who is a professional dancer, is incompetent as a dancer. Such an imputation would clearly be defamatory. Just as it is defamatory to write of a professional actor that he cannot act (Duplany v Davis (1886) 3 TLR 1184) so is it defamatory to write of a professional dancer that she cannot dance. 37 For the appellant to succeed, however, she had to show that the article was written of her "in the way of" her profession as a dancer and "touched" her professional reputation: Hopwood v Muirson (1945) KB 313 at 320-323. As part of this task the appellant had to prove that she was a professional dancer, or that dancing was her "calling". This had to be proved by evidence and not simply by an allegation in a pleading, or by informing the Court from the bar table. 38 The only evidence tendered was the article in which the allegedly defamatory remarks were contained. The article did not say, expressly, that the appellant was a dancer. This would have to be implied from the article itself. I agree with the view expressed by Stein JA, in the reasons to be published by him, which I have had the benefit of reading, that it was open to the jury to have found that the article suggests no more than that the appellant danced as a pastime. 39 The jury's verdict indicates that they were not satisfied on a balance of probabilities that the appellant was a professional dancer or that dancing was her calling. I do not think that was a perverse finding. 40 I agree with Stein JA that the appeal should be dismissed with costs.

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