MALAN vy SILVAS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and Cripps JJA 14-15 April 1992, 3 July 1992 [1992] NSWCA 143 DEFAMATION — PROCEDURAL FAIRNESS DISPENSING WITH JURY ERRORS OF LAW The appellant was the defendant in the District Court to an action for defamation. He represented himself. The trial judge found for the plaintiff and the defendant appealed on the following grounds: 1. That the trial judge erred in not allowing the defendant to lead evidence of the plaintiff's alleged bad reputation or of incidents of alleged misconduct by the plaintiff; 2. That the trial judge denied the defendant procedural fairness by not informing him of his right to seek an adjournment to amend the pleadings; 3. That the trial judge had erred in dispensing with the jury. Held: 1. The defendant had not given notice of his intention to lead evidence of bad reputation as required by the District Court Rules. In the absence of such notice his Honour was entitled to refuse to admit such evidence and it was not shown that he had erred in doing so; 2. In the circumstances of a civil case, it is not part of the duty of a trial judge to advise a party, even if unrepresented, that he may seek an adjournment to amend his particulars; 3. It had not been shown that in dispensing with a jury pursuant to a statutory power, the trial judge had erred. District Court Act 1973 Defamation Act 1974 Supreme Court Rules District Court Rules Hanrahan v Ainsworth (1990) 22 NSWLR 73 Chappell v Mirror Newspapers Ltd (1984) Aust Tort Rep 80-691 Bickel v John Fairfax and Sons Ltd (1981) 2 NSWLR 474 Anderson v Mirror Newspapers (No 2) (1986) 5 NSWLR 735 Plato Films Ltd v Speidel (1961) AC 1090 Scott v Sampson (1882) 8 QBD 491 Hobbs v CT Tinling and Co Ltd (1929) 2 KB 1 Kelly v John Fairfax and Sons Ltd (1982) 2 NSWLR 478 Mirror Newspapers v Fitzpatrick (1984) 1 NSWLR 643 > Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 King v John Fairfax and Sons Ltd (1983) 1 NSWLR 31 MacPherson v The Queen (1981) 147 CLR 512 Laker Airways Ltd v Department of Trade (1977) 1 QB 643 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Langford v Turnbull (unreported, Court of Appeal, 29 May 1990) Gatley on Libel and Slander, 8th edition Handley JA In this matter I have had the benefit of reading in draft form the reasons for judgment of Sheller JA. I agree with those reasons and with the orders he has proposed. I only wish to add some brief comments on the pleadings. Para2 of the statement of claim pleaded the publication complained of in the following terms: 2 UNREPORTED JUDGMENTS "On Sunday 8 January 1989 at approximately 5.00 pm the defendant published of and concerning the plaintiff the following slander by communicating such words to the plaintiff in the presence of Messrs CI Untaru, Constantin Chirita and Dan Malureanu at 11 Myrtle Street, Granville in the State of New South Wales: 'What did you do with the $1,000.00 I gave you towards the purchase of the house in respect of which the sale fell through? You put the money in your pocket because you never accounted to me for them." (hereinafter referred to as 'the matter complained of")." Since the Defamation Act 1974 the cause of action for defamation in this State is the making of an imputation defamatory of the plaintiff and not the defamatory publication as such. Accordingly a plaintiff is required to plead the defamatory imputation or imputations sued upon. In this case the plaintiff did so in para3 of the statement of claim as follows: "The matter complained of in its natural and ordinary meaning conveyed the following imputations each of which is defamatory of the plaintiff: (a) That the plaintiff dishonestly misappropriated monies. (b) That the plaintiff had failed to carry out his duties as a solicitor." There was some discussion during argument as to the proper construction of para3. It was suggested that the plaintiff may have pleaded imputations of general dishonesty and a general failure to carry out his duty as a solicitor rather than narrow imputations confined to the particular conveyancing transaction in which he was retained for the defendant. In my opinion the statement of claim should not be construed as alleging general imputations of this kind. The imputations were pleaded as conveyed by the natural and ordinary meaning of the words spoken by the defendant. It is clear that the moneys referred to in para3(a) as misappropriated by the plaintiff are the $1,000 referred to in para2 paid to the plaintiff by the defendant. Similarly "his duties" as a solicitor referred to in para3(b) which it was said the plaintiff failed to carry out were his duties as a solicitor to account to his client for moneys received. This represents the natural and unforced meaning of the statement of claim and I do not think that it is reasonably open to any other interpretation. Indeed I cannot see how the words spoken by the defendant are capable of conveying any imputation of general dishonesty, general misappropriation or general failure to carry out the duties of a solicitor. The words spoken only refer to a single transaction between the parties and $1, 000 paid by the defendant to the plaintiff in respect of that transaction. It seems to me that if the plaintiff had attempted to plead any general imputations based on this publication they could have been struck out. Sheller Jaintroduction This is an appeal against a decision given on 10 May 1991 by his Honour Judge Levine QC in the District Court. The appellant was the defendant in a defamation action commenced by the respondent by an ordinary statement of claim dated 2 May 1989 to recover damages in respect of words alleged to have been spoken in Romanian on 8 January 1989 by the appellant of and concerning the respondent to the respondent in the presence of three other persons at 11 Myrtle Street Granville As pleaded in para2 of the second amended statement of claim the words translated into English were: "What did you do with the $1,000 I gave you towards the purchase of the house in respect of which the sale fell through? You put the money in your pocket because you never accounted to me for them." URJ MALAN v SILVAS (Sheller Jaintroduction) 3 These words were referred to as "the matter complained of". It was alleged in para3: "The matter complained of in its natural and ordinary meaning conveyed the following imputations each of which is defamatory of the plaintiff: (a) That the plaintiff dishonestly misappropriated monies. (b) That the plaintiff had failed to carry out his duties as a solicitor." The plaintiff claimed aggravated damages particulars of which were pleaded as follows: "A. The plaintiff's belief that the imputations are false. B. The refusal of the defendant to apologise to the plaintiff as requested by the plaintiff in writing including letters to the defendant from the plaintiff or his solicitors dated 11 January 1989, 20 February 1989 and 12 April 1990. C. The fact that the publication of the matter complained of was part of a campaign of vilification of the plaintiff by the defendant as evidenced by: (a) various letters of complaint written to McDonell Morgan Milne and Salier and McDonell Milne Broun and Fowler and McDonell Milne Fowler; (b) complaints made by the defendant to the Law Society of New South Wales; (c) a letter of complaint from the defendant's wife written to the Law Society of New South Wales at the request and instigation of the defendant; (d) persuading and inciting Mrs Maria Calnegru, a former client of the plaintiff, to display a placard in the vicinity of the Supreme Court of New South Wales, prepared by the defendant and Mr Constantin Chirita, containing disparaging statements about the plaintiff; and (e) a letter dated 18 January 1989 from the defendant to Mr Sperling of McDonell Milne Broun and Fowler; D. The continuous repetition of the defamatory publication to" various persons referred to including "(i) those persons who saw the placard displayed by Mrs Maria Calnegru referred to in SC(d) above. " A defence was filed dated 12 September 1989 in the following terms: 1. The defendant denies he is indebted as alleged. 2. The defendant does not admit that on or about the 8th January 1989 he published or spoke the words alleged to be slanderous as set out in para'2' of the Statement of Claim. 3. The defendant does admit that a conversation took place on the date referred to but says that such conversation could not reasonably be said to infer or imply those imputations referred to in para'3' of the Statement of Claim. 4. In the alternative the defendant relies upon the defence of contextual truth, and denies that there was any malice in the words spoken and alleges that is (sic) was fair comment in the context of the circumstances." HEARING The plaintiff filed a requisition for trial with a jury and the matter was listed as a jury trial. On 14 August 1990 for reasons given in a judgment delivered on that day and on the application of the plaintiff his Honour dispensed with the jury pursuant to s79A of the District Court Act 1973. The defendant acted for himself and appeared in person on the trial, which ran for thirteen days during the months of August, September, October and December 1990. His Honour found for the plaintiff and awarded him $60,000 damages. APPEAL The grounds of appeal, as they were put in argument, were four, namely, that his Honour had erred 1. in ruling that evidence rebutting evidence of the good reputation of the respondent could not be led by the appellant without first giving the respondent particulars of the rebuttal evidence; 4 UNREPORTED JUDGMENTS 2. in denying procedural fairness to the appellant by failing to inform him of his right to seek an amendment so that particulars of the rebuttal evidence could be supplied, if the appellant was required to do so in the circumstances; 3. in ruling that evidence concerning the appellant's knowledge of allegations about particular acts of the respondent in a professional capacity could not be led by the appellant where it related to transactions other than those in which the appellant or his wife were involved; 4. in deciding to dispense with the jury in that he failed to have regard to relevant considerations, being the identity of the respondent as a member of the legal profession and the factors peculiar to defamation trials referred to by Kirby Pin Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 88. The appellant sought to have the verdict and judgment for the plaintiff set aside and an order that the matter be returned to the District Court for retrial. As the grounds of appeal were developed in argument a number of other matters were raised which included the following: (a) the extent to which the plaintiff could lead and the effect of his leading evidence of his reputation in chief; (b) the extent to which and the manner in which the defendant could rebut such evidence; (c) whether the imputations pleaded were limited to the particular occasion of pocketing the $1,000 or should be read more widely; (d) the nature of the claim for aggravated damages and whether that claim allowed the defendant to lead evidence of the plaintiff's reputation generally or of particular incidents said to be discreditable. In summary questions arose as to whether the defendant could lead evidence of the plaintiff's alleged bad reputation or of particular incidents of alleged misconduct by the plaintiff in justification or in rebuttal of the plaintiff's evidence or in answer to the claim for aggravated damages or without giving particulars. The answer given was that even if the imputations, as pleaded, were widely cast the defendant had expressly limited its justification to the truth of the words spoken and was accordingly prevented from seeking to justify the imputation by evidence of other incidents; that the claim for aggravated damages was founded, as the pleading showed, upon the plaintiff's belief that the imputations were false and that, in particular, not upon falsity alone or malice; and that evidence from the defendant referring to the plaintiff's reputation could only go to mitigation of damages and accordingly by operation of Pt49 r17(2) of the District Court Rules had to be particularised. EVIDENCE I summarise the evidence so far as it is relevant to this appeal. The plaintiff gave evidence about his experience and practice as a solicitor and his position in the Romanian community and in organisations concerned with that community. He gave evidence as to his feelings about how other people in the room in which the words were spoken might react to them. Evidence was called on his behalf as to his good reputation, prior to January 1989, in the Romanian community, as a solicitor and amongst particular barristers and solicitors associated with Government Insurance Office work. The plaintiff gave the following evidence in chief: "Q. Mr Silvas, what is your belief as to true or false of the imputation that you dishonestly misappropriated moneys? A. It is a falsity. URJ MALAN v SILVAS (Sheller Jaintroduction) 5 Q. What is your reaction to the fact that that false imputation has been published about you? A. It has shocked me, it has depressed me, it continues to depress me and it has affected my personal life. Q. What is your belief as to the truth or falsity of the imputation that you failed to carry out your duties as a solicitor? A. I know it to be totally untrue and false. Q. What has been your reaction to the publication of that imputation which you believed to be false? A. It distresses me. It grieves me. It has shocked me from the word go and it has affected me. Q. I take it to this date that Mr Malan has refused to apologise to you? A. No apologies, on the contrary he has made additional insults and allegations." The plaintiff was recalled to give evidence about his reaction to a placard which had been displayed near the main entrance of the Supreme Court. The placard included this statement "investigates solicitor T Silvas on charges of misconduct and fraud in common law (claim no re 860622 and house purchase... A Milan" (sic)). The defendant admitted he was the moving force in bringing the sign into existence and taking it to the Supreme Court. On the third day of the trial in response to an application for 19 of the District Court Rules, the defendant is recorded as indicating that his defence was to try and prove that the plaintiff dishonestly misappropriated moneys, and that the plaintiff failed to carry out his duties as a solicitor in relation to the conveyancing matters transactions (sic). As appears from his Honour's judgment this was understood to be limited to two payments to the plaintiff, one in the sum of $1,000 and another in the sum of $850, in connection with two conveyancing transactions to which the defendant and his wife were parties. His Honour found that these imputations had not been proved to be true. As to the second imputation his Honour regarded certain personal injuries workers' compensation litigation of the defendant's wife to be relevant. A great deal of evidence was given during the course of the hearing in relation to her workers' compensation claim and common law action. His Honour accepted the evidence given by the plaintiff and a barrister that they both acted with propriety in the circumstances. The defendant gave evidence in his case. He then called a Mr Berechet. During the course of Mr Berechet's evidence in chief he was asked if he knew the reason why the plaintiff was excluded from the Romanian Association. Objection was taken to this question on the basis that if the defendant wished to lead evidence of the plaintiff's reputation this had to be expressly pleaded. The evidence, which the defendant wished to lead, was taken on the voir dire. It was that four people including the plaintiff should be expelled from the organisation because they had tried to use people from outside the organisation to destroy it. His Honour excluded this line of enquiry. He rejected the following questions: "Q. Do you know any other people from the Romanian community to have trouble with Mr Silvas in January 1989 prior to January 1989? Q. Have you had any complaint from the Romanians for the organisation about Mr Silvas?" A little later his Honour said: "You asked about some further questions to ask Mr Berechet, I will not allow you to ask questions of Mr Berechet on which you can show that Mr Silvas had a bad reputation. Now there is a reason why I am not allowing you to ask that, while you are appearing for yourself, some of the rules are relaxed, but not all the rules can be relaxed. Mr Silvas is suing you because he says you have attacked his reputation, he had a good reputation and you attacked it and he has suffered harm. One of the rules is that if you want to come along and say he had a bad 6 UNREPORTED JUDGMENTS reputation, you have got to give notice. You should have told Mr Silvas' solicitors that a long time ago. This is a very strict rule which I am not prepared to relax. That is the reason why you are not allowed to give this evidence. It does not mean that you did not have questions to ask, it does not mean that you might not have material about it, all it means that I will not allow you to do it so late in this case. That is a rule and it is a legal rule and it is in the rules of Court and I think it is also in the Defamation Act. This is one case, one circumstance where I am applying the rules strictly, no relaxation. That is why you cannot ask those questions." GENERAL CONSIDERATIONS The defendant pleaded justification and was taken, by his Honour, to have relied upon s16 of the Defamation Act 1974 and qualified privilege under s22 and at common law. However, he regarded the only issue as being whether or not the imputations were true or substantially true and found that they were not shown to be so. The defendant's defence allowed him to lead evidence to show that the plaintiff had dishonestly misappropriated the $1,000 and by so doing had failed to carry out his duties as a solicitor. The appellant argued before us that the imputations were expressed more widely so that it was open to him, for this reason, to lead evidence of other conduct of the plaintiff alleged to be discreditable. On a proper construction of the statement of claim I think the imputations were confined to the particular incident referred to in the spoken words. More importantly, as I have indicated, when asked to particularise his defence in justification the defendant limited himself to attempting to prove that the plaintiff's conduct in the course of the two conveyancing transactions justified the words spoken. The plaintiff was entitled, but not obliged, to lead evidence of his reputation; see for example Bickel v John Fairfax and Sons Ltd (1981) 2 NSWLR 474 at 481-3; Anderson v Mirror Newspspers (No 2) (1986) 5 NSWLR 735 at 737G. In Chappell v Mirror Newspapers Ltd (1984) Aust Tort Rep 80-691 at 68,946, Moffitt P, with whose judgment Samuels and Priestley JJA agreed, said: "The quality and strength of the person's reputation or its frailty has always been relevant to damages but not to liability for libel and now not for defamation generally (s8). All regardless of prior reputation have a right not to be defamed. Once a slur is cast on a man's reputation by the publication of defamatory imputation the law accepts that by the very nature of things, it is not possible to know how far the poison may run, so that the liability of the publisher of the defamatory imputation does not depend on whether it can be proved or disproved on the balance of probabilities that actual damage has or has not resulted or will or will not result. The question of damage itself does not depend on proof of actual damage." It was open to the defendant to cross examine the plaintiff's witnesses on reputation as to the grounds of their belief and as to particular facts known to them which would tend to shake that belief; see per Lord Denning in Plato Films Ltd v Speidel (1961) AC 1090 at 1139. The plaintiff could be cross examined as to his credit, so, in the language of Moffitt P in Chappell's case at 68,953, "when there is little contest as to what he is called to testify to but where, because it is 'put on credit', he is forced to admit past conduct which hopefully will lead the jury to give him nominal damages, because the jury will regard the plaintiff as worthless and with him his reputation". Subject to providing particulars, the defendant could have called evidence to challenge the evidence of the plaintiff's witnesses on the plaintiff's reputation. URJ MALAN v SILVAS (Sheller Jaintroduction) 7 Moffitt P pointed out in Chappell's case at 68,951: "Despite some earlier hesitation and doubt about the matter, it is now settled law that a prior tarnished reputation of the relevant type provides ground to mitigate damage from a defamatory imputation and that evidence of persons who testify directly to a tarnishing of a plaintiff's general reputation in that respect is admissible. Conscious of the need to prevent a rogue being awarded the same damages as a person of unblemished reputation, the law accepted the relevance to damages of a prior tarnished reputation, but, having done so, has been confronted with claims as to the evidence which should be put before a jury to found an inference that a plaintiff bears a bad prior reputation, where, if evidence of some types is admitted, it would be calculated to distract the jury from the real issues in the trial and lead to trials within the trial of the conduct of the plaintiff in the past, in some cases over his entire life." Pt49 r17(2) of the District Court Rules requires that where a defendant intends to make a case in mitigation of damages by reference to "(b) the character of the plaintiff' he shall give particulars of the facts and matters on which he relies to make that case. The defendant failed to comply with this rule and it was on that basis that his Honour refused to allow him to lead evidence of the plaintiff's reputation. The word "character" means the character the plaintiff bears in public estimation, that is to say the plaintiff's reputation; compare Pt67 r18(2)(b) of the Supreme Court Rules where the expression used is "the reputation of the plaintiff'. Even then such evidence must go to general reputation. The defendant cannot on this basis lead evidence of specific instances of misconduct, no doubt because, to adapt the language of Devlin LJ, as he then was, in Plato Films Ltd v Speidel at 1100 what has to be investigated is not whether the plaintiff is in truth a good or a bad man but whether he is reputed to be a good or a bad man. "What is relevant is what sort of reputation the plaintiff has in fact, not whether he ought to have it or not". See also Scott v Sampson (1882) 8 QBD 491 particularly at 504-5; Hobbs v CT Tinling and Co Ltd (1929) 2 KB 1 at 21 and Plato Films Ltd v Speidel in the House of Lords at 1124, 1135, 1144 and 1148 subject only to the view of Lord Radcliffe that evidence of matters of notoriety may be admissible. The evidence taken on the voir dire was not admissible and the two questions which I have set out were rightly rejected on the issue of general reputation. The law in New South Wales is shortly and accurately stated in the judgment of Hunt J in Kelly v John Fairfax and Sons Ltd (1982) 2 NSWLR 478 at 479-80: "A defendant who relies upon evidence of general bad reputation is not entitled to lead evidence of specific instances of misconduct: Scott v Sampson (1882) 8 QBD 491, at 505. The witnesses to be called by the defendant as to reputation can be asked in chief only what they know of the general reputation of the plaintiff in the relevant sector: Plato Films Ltd v Speidel (1961) AC 1090, at 1123, 1139, 1400, 1147. Those witnesses may, of course, be cross examined by counsel for the plaintiff as to the grounds upon which they say that the plaintiffs reputation was bad in that sector and as to what their belief is based upon: ibid at 1140. But, in the absence of a defence of truth or particulars pursuant to Pt67, r18(3), a defendant is never entitled to lead evidence of specific instances of misconduct. It is, however, open to a defendant to cross examine the plaintiff as to such specific instances of misconduct where they go to his credit as a witness: Hobbs v CT Tinling and Co Ltd (1929) 2 KB 1 at 18, 19. 8 UNREPORTED JUDGMENTS But, once the plaintiff has denied those matters, the defendant is bound by those denials and is not entitled to lead evidence to contradict them: see also Associated Newspapers Ltd v Dingle (1964) AC 371; Wishart v Mirror Newspapers Ltd (1963) SR (NSW) 745; 80 WN 1567." AGGRAVATED DAMAGES The plaintiff claimed aggravated damages. S46(1) of the Defamation Act defines "relevant harm" as meaning, in relation to damages for defamation, in the case of a plaintiff who is living, "harm suffered by the person defamed". subs(2) provides that damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm and subs(3) provides that damages for defamation shall not include exemplary damages and shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm. Thus aggravated damages must be compensatory and would usually be awarded only in relation to the injury to the plaintiffs feelings though they may also be awarded for conduct which has the effect of increasing the injury to the plaintiff's reputation. Conduct on the part of the defendant which is relevant to the issue of aggravated damages need not be malicious, but it must be in some way unjustifiable, improper or lacking in bona fides; see Bickel v John Fairfax and Sons Ltd at 497 and Mirror Newspapers v Fitzpatrick (1984) 1 NSWLR 643 at 653 and Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75. As Hunt J explained in the lastmentioned case, a plaintiff can claim aggravated damages resulting from the falsity of the imputations upon which the plaintiff relies. To such a claim the defendant's knowledge of the falsity is irrelevant unless his state of mind affected the harm done to the plaintiff, that is to say the plaintiff was aware of the defendant's knowledge. Here the plaintiff did not claim aggravated damages on the basis of the falsity of the imputations or the defendant's knowledge of that falsity. Thus in answer to the claim for aggravated damages the truth or falsity of the matter complained of was irrelevant. Nor did the plaintiff allege malice. He pleaded only his belief that the imputations were false. On this basis he led evidence that he had suffered harm. Part of that evidence I have quoted. The appellant relied upon what Hunt J said in King v John Fairfax and Sons Ltd (1983) 1 NSWLR 31 at 33-34. But the dictum assumes that the plaintiff has asserted, upon the issue of aggravated damages, that the matter complained of was false. That is not the present case. His Honour found the matters relied upon in aggravation of damages to have been established and was satisfied that none of the conduct complained of was proper, bona fide, or justified. I can summarise what I have said in this way. It was open to the defendant in justification to lead evidence of the truth of the imputations in accordance with particulars of defence given by him, that is to say to justify the words spoken by reference to the transactions in which the plaintiff had acted on the defendant's behalf. It was open to the defendant to attack the general reputation of the plaintiff by leading evidence of general bad reputation having given the necessary particulars required by the rules. It was open to the defendant to cross examine the plaintiff as to his credit. But, in my opinion, outside the limits of the justification particularised, on no basis was it open to the defendant to lead evidence from witnesses as to particular instances of what might be said to be discreditable conduct. GROUNDS OF APPEAL URJ MALAN v SILVAS (Sheller Jaintroduction) 9 I turn now to the grounds of appeal. In the course of his judgment Levine DCJ said that he had not permitted the defendant to raise the issue of "bad reputation", "he not having complied with the rules as to giving notice thereof'. His Honour continued: "That prohibition was strictly applied. On the other hand in the context of the defence of justification material was received relating to other conveyancing transactions though in the end the success or failure of the defence fundamentally will relate to the particular conveyancing transactions in respect to which the substance of the alleged defamatory remarks related." The first point of the notice of appeal in its amended form was that his Honour erred in ruling that evidence rebutting evidence of the good reputation of the respondent could not be led by the appellant without first giving the respondent particulars of the rebuttal evidence. As I have pointed out the plaintiff was entitled to lead evidence of reputation. There was no question of the plaintiff having to give notice that he intended to do so. Evidence led by the defendant as to the plaintiffs reputation could only be in mitigation of damage. Plainly Pt49 r17(2) (a) required the defendant to give notice and entitled his Honour to refuse to admit such evidence in the absence of such notice. Further the transcript of the evidence suggests that the defendant proposed to lead evidence of specific acts of misconduct. On no view, as was conceded on behalf of the appellant, was this admissible. This leads to the second ground of appeal, namely, that his Honour denied procedural fairness to the appellant by failing to inform him of his right to seek an amendment of his particulars or an adjournment so that particulars could be supplied. Even at the hearing of the appeal no indication was given of what these particulars would have been had an adjournment been allowed. I do not regard it as part of the duty of a trial judge in the circumstances of a civil case such as this to enter the arena to advise a party, even if unrepresented, that he may apply for an adjournment or that he may seek to amend his particulars. No doubt there will be occasions when a judge will see fit to take such steps. But this is a matter entirely for his discretion in running the trial and I do not think that it is here shown that his Honour erred in the manner suggested. Reference was made to the dictum of Mason J, as he then was, in MacPherson v The Queen (1981) 147 CLR 512 at 534: "To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial." There is, in my opinion, no legitimate analogy between the rights of an accused appearing in person in a criminal trial where his liberty may be at stake and the rights of one party in civil litigation which have to be balanced even handedly with the rights of the other party or parties. In the course of his judgment in MacPherson at 546 Brennan J referred to a passage in the judgment of Lawton LJ in Laker Airways Ltd v Department of Trade (1977) 1 QB 643 at 724: "Tn a case such as this I regard myself as a referee. I can blow my judicial whistle when the ball goes out of play; but when the game restarts I must neither take part in it nor tell the players how to play." His Honour went on to say that there is distinction between telling the players how to play and telling them the rules of the game. I do not think in the present case it could be suggested that the appellant did not know that he could apply for an adjournment or amend his particulars. By this stage the trial was in its eighth day. In the course of his judgment Levine DCJ said: "I must say however that Mr Malan as a litigant in person conducted himself with increasing competence as 10 UNREPORTED JUDGMENTS the case progressed with increasing astuteness notwithstanding the obvious frustrations with language, procedure and the like." It was submitted on behalf of the respondent that the appellant knew that he had the right to amend. It was pointed out that his original defence had been struck out and he had been given leave to amend it. In my opinion his Honour was under no duty to suggest to the defendant that he could or should provide particulars such as would enable him to call evidence that the plaintiff had a bad reputation. The next ground of appeal is confused. It is argued that his Honour erred in disallowing questions to several witnesses concerning the plaintiff's conduct in other conveyancing transactions. The answers to these questions, it is claimed, would have been a step in showing, in defence to the claim for aggravated damages, that the defendant had an honest belief in the truth of alleged misconduct by the plaintiff such as to justify the defendant's conduct between the date of publication and the date of trial. Such evidence would be of no relevance on justification; see generally Gatley on Libel and Slander, 8th ed, para 352. In reality this was another way by which the appellant sought to get in evidence relating to particular acts of alleged misconduct by the plaintiff. If the appellant's state of mind was relevant, in my opinion, the limit to which he could go was to give evidence that he believed in the truth of the imputations. It was not suggested on behalf of the appellant that he was prevented from calling evidence as to his state of mind after the publication of the matter complained of and during the periods when the events occurred upon which the respondent relied in support of his plea of aggravated damages. In my opinion this ground of appeal fails. The final ground of appeal challenges the decision to dispense with the jury on the basis, it is said, that his Honour failed to have regard to relevant considerations, being the identity of the respondent as a member of the legal profession and matters peculiar to defamation trials referred to by Kirby P in Hanrahan v Ainsworth at 88 when he said: "the role of the jury must, under the present law, be energetically defended in defamation actions". It was conceded on behalf of the appellant that in considering whether or not the jury should be dispensed with his Honour did not trespass into the area of immaterial considerations referred to by this Court in Pambula District Hospital v Herriman (1988) 14 NSWLR 387 and Langford v Turnbull (unreported, Court of Appeal, 29 May 1990). Hanrahan v Ainsworth was decided in the Court of Appeal on 12 December 1990 after his Honour had given his decision. The argument for the appellant was that in carefully weighing the considerations which ultimately led him to dispense with the jury, and which are set out in his reasons for judgment of 14 August 1990, his Honour made no reference to the particular fact that the action was one between a professional person seeking to vindicate his reputation as such and a member of the public involving the application of standards concerning dealings between them. For my part and having read the reasons given by his Honour I am not satisfied that he did not take these matters into account. It was in the forefront of the litigation as disclosed by the pleading that the plaintiff based his claim upon the fact that he was a practising solicitor, that the defamation related to a transaction between him and the defendant and that the imputation went to his reputation as such. In the course of his submissions to the judge the appellant said having referred to an incident at the Court between himself and the plaintiff: URJ MALAN v SILVAS (Cripps JA) 11 "That is why I say I don't feel yourself offended (sic) because the nature of knowing what had happened with me in connection with the solicitor and in the Court and this case I became suspicious. That is the only reason why I wanted to have a jury." His Honour then said: "T understand that point. I will say this that I do not know and have never heard of Mr Silvas. I do not know and have never heard of you either." In the course of his judgment on 14 August 1990 his Honour said: "\...the fact that really concerned me and convinced me in favour of dispensing with the jury is this, that whilst Mr Malan may well have a right to have this case as far as he is concerned heard by a jury, I have formed the view in all the peculiar circumstances to which I have referred that the exercise of that right in his favour will create a potential for prejudice against the plaintiff totally disproportionate to the benefit or consequence of Mr Malan's right." To dispense with a jury for the reasons so stated pursuant to a power conferred by the legislature is not, in my opinion, inconsistent with the importance of the role of the jury in defamation actions referred to by Kirby P. In my opinion this ground of appeal also fails. CONCLUSION The appeal should be dismissed with costs. Cripps JA I agree with the reasons of Handley and Sheller JJA and the order proposed by Sheller JA. Appeal dismissed with costs. Counsel: Appellants: TF Robertson Respondent: JS Wheelhouse/J Baird Solicitors: Appellant: Patrick King and Co Respondent: Ternes and Salier