John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, KIRBY, CALLINAN AND HEYDON JJ

JOHN FAIRFAX PUBLICATIONS PTY LIMITED APPELLANT

AND

RENE RIVKIN RESPONDENT

John Fairfax Publications Pty Ltd v Rivkin

[2003] HCA 50

10 September 2003

S353/2002

ORDER

1. Appeal allowed. 2. Order that there be a new trial on imputations 1(a), 1(b), 3(c)(i), 3(c)(ii), and 3(d).

On appeal from the Supreme Court of New South Wales

Representation:

B W Walker SC with T D Blackburn and A T S Dawson for the appellant (instructed by Freehills)

T E F Hughes QC with T D F Hughes for the respondent (instructed by Gilbert & Tobin)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

John Fairfax Publications Pty Ltd v Rivkin

Defamation – Appeal – Where jury found that matter did not convey any of the imputations pleaded – Whether jury's findings on particular imputations were ones which no reasonable jury properly instructed could reach – Scope of new trial where some only of the jury's findings were unreasonable.

Practice and procedure – Order of addresses – Where plaintiff addressed jury first and defendant followed – Where trial judge refused plaintiff leave to address in reply – Whether trial judge erred in exercise of discretion – Whether order of addresses governed by rules of court or inherent jurisdiction of court.

Appeal – Defamation – Whether jury's findings on alleged imputations were ones which no reasonable jury properly instructed could reach – Relevance of brevity of jury's retirement and universally unfavourable answers to alleged imputations.

Defamation Act 1974 (NSW), s 7A.

Supreme Court Act 1970 (NSW), s 102.

1. GLEESON CJ. The facts are set out in the reasons for judgment of Callinan J, with which I agree. I would make the following additional observations. 2. The issue before the Court of Appeal was fairly expressed in the notice of appeal to that Court as being whether each of the answers given by the jury to the questions submitted was an answer that no reasonable jury properly directed could have given. It is not uncommon, and not inappropriate, for judicial reference to such an issue to be accompanied by admonitions intended to remind appellate courts of a need for restraint. Sometimes such restraint is said to be necessitated by a practical consideration: juries, unlike trial judges sitting alone, do not give reasons for their decisions, and their decisions are, to that extent, unexaminable. Sometimes it is said to reflect deference to the constitutional role of the jury, and to its representative function. In defamation actions in New South Wales, that function is now considerably restricted, but at least it survives to the limited extent exemplified in the present appeal. It is to the practical consideration that I wish to return. 3. Comments about the difficulty of challenging a jury's decision are often made in a context in which the jury has returned a single inscrutable verdict. That is not quite the present case. Here the jury gave answers to a number of questions. In each case, the question was divided into two parts: whether the matter published by the appellant of the respondent conveyed a certain imputation; and, if so, whether the imputation was defamatory. The jury returned a negative answer to the first part of each question. 4. As the reasoning of the Court of Appeal demonstrates, the strength of the respondent's case in relation to the alleged imputations varied. The most serious alleged imputation was that the respondent was criminally liable in respect of the murder of a young woman whose body was found at the base of a cliff. The finding that the matter published did not convey that imputation was reasonably available to the jury. The articles treated the whole matter of the young woman's death as a mystery. The possibility that she was the victim of homicide, was presented as an open question. It appeared from the articles that the respondent had never even been questioned by the police about the matter. On the other hand, the jury's answer in relation to another of the imputations presents a challenge even to the most adroit rationalisation. 5. One of the publications, in the course of paragraphs bearing the headline "Death of a Model", reported an unqualified and uncontradicted assertion that the deceased was suspicious of the respondent because he "used to hang out with a whole stack of people at [a] cafe which ... has a reputation for being a hangout for ex-drug dealers ... [and] [s]ome of [the respondent's] closest cronies are ... have certain criminal backgrounds or are rumoured to have it". The pleaded imputation was that the respondent was a close associate of criminals. The negative answer to the question whether the matter published conveyed that imputation is, to use a familiar simile, like the thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before[1]. 6. While the same test is to be applied to each answer - whether it was an answer that no reasonable jury properly directed could have given - restraint on the part of an appellate court is likely to wane when one of the answers is of that quality. When an appellate court is reviewing a trial judge's findings of fact, it may conclude that a particular finding is so glaringly improbable that the level of scrutiny to which all the findings are to be subjected should be intensified. Put another way, the benefit of a doubt that might be given to a trial judge's findings in one context might be forfeited in another. The same may happen if, because a jury has answered a number of questions, there is a better than usual opportunity to assess its form. 7. It does not follow, however, that it is unnecessary to deal with the appellate challenge, on its merits, in the case of each individual answer. In the present case, the Court of Appeal so completely lost confidence in the manner in which the jury addressed its task that the Court concluded that there should be a new trial on all questions. That was partly because the Court of Appeal took a more favourable view of some aspects of the respondent's case than I would take. What is said above in relation to the murder imputation is an example. 8. I agree that there is no basis for interfering with the trial judge's discretionary decision as to the order of address by counsel. 9. I agree with the orders proposed by Callinan J. 10. McHUGH J. The principal issue in this appeal is whether the Court of Appeal of the Supreme Court of New South Wales erred in holding that no jury could reasonably find that two publications sued upon as being defamatory of the plaintiff did not contain certain imputations concerning him. If the Court of Appeal did not err in so holding, a second issue arises. It is whether that Court erred in holding that there should be a general new trial concerning all imputations pleaded in respect of those articles and another article even though the Court held that the jury acted reasonably in finding that the articles did not contain many of the imputations pleaded. 11. In my opinion, the Court of Appeal erred in holding that no reasonable jury could find that the two articles did not contain the relevant imputations.