New South Wales Court of Appeal CITATION : Rivkin v John Fairfax Publications Pty Limited [2002] NSWCA 87 FILE NUMBER(S) : CA 40345/01; 40346/01 HEARING DATE(S) : 19 - 21 November 2001 JUDGMENT DATE : 26 March 2002 PARTIES : Rene Rivkin v John Fairfax Publications Pty Limited JUDGMENT OF : Meagher JA at 1; Foster AJA at 3; Grove J at 27 LOWER COURT JURISDICTION : Supreme Court LOWER COURT 20084/98 FILE NUMBER(S) : LOWER COURT Simpson J/ Levine J JUDICIAL OFFICER : COUNSEL : T.E.F. Hughes QC and T.D.F. Hughes (Appellant) W.H. Nicholas QC and T.D. Blackburn (Respondent) SOLICITORS : Gilbert & Tobin (Appellant) Freehill Hollingdale & Page (Respondent) CATCHWORDS : DEFAMATION - DEFAMATORY IMPUTATIONS - WHETHER CONVEYED BY PUBLICATION - JURY - PERVERSITY - TRIAL OF LIMITED ISSUES - PROCEDURE - ORDER OF ADDRESSES BY COUNSEL - INTERLOCUTORY ORDERS - CHALLENGE BY DEFENDANT TO PLEADED IMPUTATIONS - PLAINTIFF AVAILS HIMSELF OF LEAVE TO AMEND - ABANDONED PLEADINGS - WHETHER LEAVE SHOULD BE GRANTED TO RAISE AGAIN - CAPACITY OF PUBLICATION TO CONVEY SPECIFIC IMPUTATIONS LEGISLATION CITED : Defamation Act 1974 Amalgamated Television Services Pty Ltd v Marsden 1998 43 NSWLR 158 Brooker v Roszykiewcz 1963 37 ALJR 246 Cairns v John Fairfax & Sons Ltd 1983 2 NSWLR 708 Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68 David Syme & Co v Lloyd 1984 3 NSWLR 346 Drummoyne Municipal Council v Australian Broadcasting Corporation 1990 21 NSWLR 135 CASES CITED: Grobbelaar v Newsgroup Newspapers [2001] All ER 437 Hanrahan v Ainsworth 1990 22 NSWLR 73 Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 121 National Employers Mutual General Assurance Association Ltd v Manufacturers Mutual Insurance Ltd 1989 17 NSWLR 223 Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 693 Sinclair v John Fairfax & Sons Ltd CA(NSW) Unrep 4 March 1986 Thompson v Truth & Sportsman Ltd 1929 31 SR (NSW) 129 DECISION : (1) APPEAL ALLOWED, NEW TRIAL ORDERED; (2) APPLICATION FOR EXTENSION OF TIME AND LEAVE TO APPEAL DISMISSED The respondent published articles in newspapers which the appellant claimed to convey imputations which were defamatory of him. Pursuant to s7A of the Defamation Act 1974 a hearing was held before a judge and jury as to whether pleaded imputations were conveyed and, if so, whether they were defamatory of the appellant. Following a very short retirement the jury, which had been asked to consider a large number of alleged imputations arising out of three articles (two of which were quite lengthy) and imputations pleaded as true innuendoes answered to every question that the pleaded meaning was not conveyed. They did not therefore consider whether any such imputation was defamatory of the appellant. HELD: Analysis showed that many of the imputations were necessarily conveyed by the publication. It should be concluded that the jurors had misapplied themselves to their task and there should be a new trial in relation to all imputations pleaded. The express provisions in s7A require that the conveyance of defamatory imputation must be determined by a jury. Prior to the s7A hearing interlocutory applications were dealt with by a judge who did not, in the event, preside at it. The first arose out of an application for leave for the appellant to file an amended statement of claim but questions of whether pleaded imputations should be struck out were debated and a ruling given that leave to file an amended statement of claim be granted on condition that certain challenged imputations were not repleaded. The appellant filed an amended document accordingly and did not seek to appeal against the ruling until after the s7A hearing. HELD: An extension of time and leave to appeal should not now be granted. The amended statement of claim provoked further challenge to the capacity of the publication to convey some alleged imputations and a separate trial of these issues was held pursuant to Pt31 r2. The appellant did not challenge some rulings adverse to him following that hearing until after the s7A trial. It was claimed that such appeal lay as of right or, alternatively, leave was sought. HELD: It was not necessary to decide in this case whether such an appeal lay as of right because it could be determined that the rulings of the primary judge were not erroneous and the appeal and application for leave should be dismissed. The entire evidence before the jury consisted of copies of the three articles complained of. A procedural application that, in that circumstance counsel for the defendant (respondent) should address the jury first, followed by counsel for the plaintiff (appellant) was refused. It was argued but this ruling was erroneous and in the alternative that the refusal of a right of reply if counsel for the plaintiff was required to address first was erroneous. HELD: The order of address is a matter for discretion of the trial judge. Subject to that discretion, particularly in a case where the evidence consists of no more than tender of matter complained of, the plaintiff should ordinarily address first (Per Meagher JA and Foster AJA, Grove J contra) but, in that event should have a right of reply (per Meagher JA and Grove J). Per Foster AJA: The question of address in reply should be determined in the discretion of trial judges in accordance with circumstances as they manifest from case to case. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40345/01 CA 40346/01 MEAGHER JA FOSTER AJA GROVE J Tuesday 26 March 2002 RENE RIVKIN v JOHN FAIRFAX PUBLICATIONS PTY LIMITED Judgment 1 MEAGHER JA: I am in general agreement with the judgment of Grove J in this matter, and also with that of Foster AJA. 2 The only matter on which there can be any room for contention concerns the order of addresses to the jury in a case under s7A of the Defamation Act. In my view, the following is the position: i. Pt34 r6 of the Supreme Court Rules has little, if anything, to do with such cases. It applies to "trials" properly so-called, not to the strange semi-interlocutory determinations called for by s7A. ii. What addresses are appropriate in a s7A case, and in what order, are matters in the discretion of the trial judge, exercising the Court's inherent jurisdiction. iii. However, for the reasons given by Foster AJA, it is difficult to see how the plaintiff should not have the right of first address. iv. Equally, for the reasons given by Grove J, he should also have a right of reply. The present case illustrates the confusion which results from the failure to accord the plaintiff such a right. v. The course of the decided cases at first instance which seem contrary to proposition 4 should be regarded as wrongly decided. 3 FOSTER AJA: I have had the advantage of reading the draft judgment of Grove J. I agree with the orders that his Honour proposes. I also agree with his Honour's reasons, with the exception of the portion that deals with the appellant's complaint relating to the trial judge's decision as to the order of addresses in the trial. I shall return to this question later. 4 The setting aside of a jury's decision must, of course, be approached with extreme caution by an appellate Court. Such decisions are, however, not invulnerable to the appellate process. In Brooker v Roszykiewcz (1963) 64 37 ALJR 246 Taylor J said of the appeal then being considered by the High Court: "..this case presents rare and exceptional features which satisfy me that it is one where 'the jury must have failed to appreciate the evidence or allowed themselves to be distracted by irrelevant considerations'. (Packham v Commissioner for Railways (1941) 41 SR (NSW) 146 at 151). 5 In my view this appeal has, also, exceptional features which point clearly to the jury having failed to perform the task entrusted to them and to their having, consequently, fallen into appellable error. 6 The jury's task was not a simple one. It was required to consider closely the imputations claimed to arise from each of the articles complained of and also those said to arise by way of innuendo, it having been conceded that some readers of the second article would have considered it in the light of facts asserted in the first. The question whether each of the alleged imputations would have been gained by an ordinary reasonable reader of the articles required a close consideration of the content and structure of each article together with its accompanying headlines, photographs, pointers and side notes. 7 Whilst it is true that the members of the jury might have had some time during the conduct of the case to discuss these complex questions in a preliminary way, I am satisfied, as a matter of common sense, that their main deliberations would necessarily have been confined to the period in which they were considering their verdict in the jury room, after having had the benefit of counsels' addresses and the trial judge's summing-up. The Court was advised that the period of deliberation prior to verdict, was of the order of two hours, which included the ordinary lunch hour. For my part, I cannot accept that, in this significantly short period of time, the jury could have properly focused upon the complex issues of this case, even if one allows, in their favour, that they attended carefully to the addresses of counsel and the judge's summing-up. 8 When I consider that the jury returned the answer "no" to each one of the alleged imputations at the end of this significantly short period of deliberation, I experience grave concern that the verdict was influenced by extraneous considerations. Grove J's comprehensive analyses of the evidence and submissions relating to each imputation, including his Honour's conclusions that certain of them should be regarded as inevitably established (with which conclusions I respectfully agree) serve further to indicate that this jury failed properly to address its task. 9 In particular, I am satisfied that it could not have given proper consideration to the powerful arguments on behalf of the plaintiff which posed the question why the plaintiff should have been referred to in the articles at all, let alone being accorded such extraordinary prominence in them. 10 I am amply satisfied that this is one of the exceptional cases where a jury's verdict should be set aside on the ground of perversity. I agree, with respect, with Grove J that, in the circumstances, it is appropriate that there be a new trial in respect of all the pleaded imputations. 11 I also agree with his Honour's decisions in respect of the appellant's challenge to the interlocutory orders. 12 Those given on 17 July 1998 were in respect of the appellant's application for leave to file an amended statement of claim. Leave was granted subject to certain conditions, namely that the amended statement of claim should not contain the relevant imputations. In this appeal, the appellant seeks to reverse the orders of Levine J, resulting in the reinstatement of the imputations. I agree with Grove J that the relevant orders were interlocutory and that leave to appeal was and is required. I also agree with Grove J that, for the reasons his Honour expresses, that such leave should not now be granted. 13 As to the orders of Levine J on 18 September 1988, made in the Part 32 r 2 hearing, I agree with Grove J that Levine J was correct in holding that the imputations as framed could not go to the jury. Accordingly, the question whether the appellant's appeal from these orders was brought as of right or could only be brought with the leave of this Court, can, in my view, await a more appropriate case for decision. 14 I turn now to the question in which I find myself in disagreement with Grove J. 15 As a ground for the ordering of a new trial, the appellant complained that her Honour erred in refusing his application made pursuant to Pt 34 r 6 of the Supreme Court Rules for a direction altering the order of addresses to the jury. Specifically, senior counsel for the appellant, at the outset of the trial, sought a direction that, after his opening address to the jury and the address of counsel for the defendant, he should be given a right of reply. This application was refused. No reasons were given by her Honour but, in rejecting the application, her Honour was acting in accordance with first instance decisions in respect of similar applications. 16 The circumstances of the application and its refusal are set out in the judgment of Grove J and I shall not repeat them in these short reasons. It is clear that a trial pursuant to s 7A of the Defamation Act, 1974 can produce particular problems in the area of counsels' addresses. This is particularly so when, as is very frequently the case, there is no evidence in the trial other than the tendering by the plaintiff of the documentary material constituting the matters complained of. That is, of course, what happened in the present proceedings. The only evidentiary material before the jury consisted of the three newspaper articles. 17 Senior counsel contended that, had he been given the right to reply, he could have dealt with the submissions made on behalf of the defendant in a manner that would have been far more compelling than was possible in the course of a necessarily impartial judicial summing-up. The denial to him of an opportunity to reply, in his submission, adversely affected the outcome of the trial and should lead to the granting of a new trial. 18 Senior counsel supported this submission by arguing that Pt 34 r 6 combined with the essentially artificial nature of a s 7A trial, such as the present one, which leaves for a future hearing, by a judge alone, issues in respect of which a defendant might reasonably be expected to adduce evidence, unreasonably prevents a plaintiff, who would ordinarily have the right of the last address, from being able to exercise that right in respect of the issues submitted to the jury by the section. I consider that there is force in this argument, but, as I shall explain, I do not consider that it can require the establishment of a rule that, in all circumstances, there should be a right of reply accorded to the plaintiff in cases such as the present. I am of the view, however, that, had the application been renewed after the address by the defendant in the present case and had been, again, refused, then, arguably, a ground for a retrial would have existed. 19 Grove J has set out the provisions of s 7A of the Defamation Act, 1974 and also the provisions of Supreme Court Rules, Pt 34 r 6. I shall not set them out again. I note, as has Grove J, that the Pt 34 r 6 provisions predate the coming into effect of s 7A, with the result that the rule-making authority would not have had in mind the particular problems that could arise in a s 7A trial. 20 I am of the view that, in a case such as the present, where no evidence is adduced other than the matters complained of in documentary form, that sub-rules 4, 5 and 6 of S.C.R. Pt 34 r 6 have no relevant work to do. There can be, in those circumstances, no real question of any election on the part of the opposite party "to adduce evidence or not to adduce evidence". The result is that those sub-rules have no application. Furthermore, sub-rule 2(a) can realistically apply only to sub-rule 3, which provides that, in a case such as the present, the plaintiff make the opening address to the jury. 21 It may be noted that sub-rule 2(b) can have no application in a two party case such as the present one and that sub-rule 2(a) is, in any event, subject to sub-rule 6(1). 22 The result, in my opinion, is that in a 7A trial such as the present one, the Court has a general discretion to give directions "as to the order of addresses and generally as to the conduct of the trial." In exercising this discretion, no regard need be paid to the provisions of sub-rules 4, 5 and 6 which are appropriate only to an ordinary trial, where evidence is adduced by the plaintiff and the defendant is in a true position of election as to whether or not to call evidence. However, in my opinion, it would only be in the rarest cases that the Court, in exercising its discretion under r 6.1, would take from a plaintiff the opportunity to make the opening address. 23 As I see the situation, it would be productive of injustice to the plaintiff in a 7A trial and conducive to confusion on the part of the jury, if the plaintiff were not allowed to make the opening address. Such address is, in my view, necessary for the explanation to the jury of the plaintiff's case by indicating, in particular, how the imputations relied upon are said to arise from the matter or matters complained of. If the opening of the case were left to the defendant, then the jury could be significantly confused as to the nature of the plaintiff's case. The defendant's counsel would have to state the plaintiff's case for the purpose of opposing it. I can foresee significant forensic problems arising from such a procedure. Accordingly, I respectfully disagree with the proposal advanced by Grove J in his judgment. 24 I do not, however, accept that a proper exercise by the Court of its discretion under sub-rule 6(1) should inevitably result in the plaintiff in a 7A trial being accorded both an opening address and a right of reply. It is essential, of course, for the proper conduct of this form of trial that the jury fully understand its relevant role and have the issues for determination clearly explained. If a trial consists only of the presentation to the jury of copies of the matter or matters complained of, followed by an address by counsel for the plaintiff and then an address by counsel for the defendant and then a further address by counsel for the plaintiff followed by a summing-up by the trial judge, it may well be that this procedure would impose an intolerable burden on the jury's powers of attention, concentration and comprehension. Additionally, the question of the permitted scope of the plaintiff's right of reply would frequently be the subject of debate and decision in the absence of the jury. This might also lead to confusion, a matter adverted to by Grove J. 25 There is obviously no perfect solution to this problem. I am satisfied, however, that the solution does not lie in the laying down by this Court of rules of universal application. The matter must be left to the discretion of the trial judge, as contemplated by sub-rule 6(1). The trial judge necessarily assumes the responsibility of ensuring, so far as humanly possible, that the jury understands its limited role and is also seized of the submissions of both sides bearing upon the imputations and is in a proper position to evaluate those submissions. If the trial judge forms the view that such an evaluation can properly be accomplished only if the plaintiff's counsel is accorded a right of reply then, in my view, the according of such a right falls within the discretion provided by sub-rule 6(1). If, on the other hand, the trial judge is of the view that any problems can be properly dealt with in his or her summing-up after considering, if necessary, any application for special directions, then this course would be equally open and appropriate. 26 It is for these reasons that I respectfully differ from Grove J in this aspect of the appeal. As I have said, I am otherwise in agreement with his Honour's reasons and the orders that he proposes. 27 GROVE J : There is before the Court an appeal against judgment entered in favour of the respondent/defendant following a trial between 17 and 20 April 2001 before Simpson J and a jury in an action seeking damages for defamation brought by the appellant/plaintiff, of limited issues pursuant to s7A of the Defamation Act 1974 (the Act). There is also before the Court a summons seeking extension of time for applying for leave to appeal and for leave to appeal. This summons is said to be precautionary and is designed to ensure that the appellant is not debarred from challenging rulings of Levine J in the action previous to trial that certain pleaded imputations were incapable of arising from the matters complained of, that others did not differ from each other in substance or, in some further instances and for reasons given in judgments delivered on 17 July 1998 and 18 September 1998, that the pleadings were otiose. It can be noted that the respondent sought leave to appeal against some other determinations comprehended in those decisions but the Court (differently constituted) refused leave on 19 May 1999. 28 It will be necessary to recite greater detail but the action was founded upon three articles published respectively in the Australian Financial Review dated 21-22 February 1998 (the AFR article), the Sydney Morning Herald of 25 February 1998 (the first Herald article) and the Sydney Morning Herald of 5 March 1998 (the second Herald article). Publication by the respondent of all of these was not disputed. 29 Each article made reference to the death of a young woman named Caroline Byrne (whose body was found at the Gap at Watsons Bay in the early hours of 8 June 1995) and to Gordon Wood (described as Ms Byrne's partner) and to the appellant who was at times Mr Wood's employer. The texts of the matters complained of reveal that a coroner's inquest into Ms Byrne's death returned inconclusive findings shortly before the dates of publication. 30 The issues at trial, following amendments consequent upon the rulings of Levine J were whether the publications conveyed to the ordinary reasonable reader imputations as follows: From the AFR article in its natural and ordinary meaning: 1."(a) that the Plaintiff's participation in the affairs of Offset Alpine Press Group had diminished his reputation as a sagacious and astute stockbroker; (b) that in May 1995 the Australian Securities Commission had reason to suspect that the Plaintiff had engaged in unlawful conduct in connection with the affairs of Offset Alpine Press Group; (c) (i) that the late Caroline Byrne had reason to suspect that the Plaintiff had involved Gordon Wood in unsavoury dealings connected with the affairs of Offset Alpine Press Group; or (ii) that the late Caroline Byrne suspected that the Plaintiff had involved Gordon Wood in unsavoury business dealings connected with the affairs of Offset Alpine Press Group." 31 From the first Herald article in its natural and ordinary meaning: 3."(a) that the Plaintiff was a person criminally liable in respect of the murder of the late Caroline Byrne; (b) (i) that the father of the late Caroline Byrne had reason to suspect that the Plaintiff was a person criminally liable in respect of her murder; or (ii) that the father of the late Caroline Byrne suspected that the Plaintiff was a person criminally liable in respect of her murder. (c) (i) that the Plaintiff had engaged in homosexual intercourse with Gordon Wood; or (ii) that the police had reason to suspect that the Plaintiff had engaged in homosexual intercourse with Gordon Wood. (d) that the Plaintiff was a close associate of criminals." 32 Further from the first Herald article to those who had knowledge of matters stated as facts in the AFR article (the true innuendo case) : 5."(a) that the Plaintiff was a person criminally liable in respect of the murder of the late Caroline Byrne. (b) (i) that the father of the late Caroline Byrne had reason to suspect that the Plaintiff was a person criminally liable in respect of her murder; or (ii) that the father of the late Caroline Byrne suspected that the Plaintiff was a person criminally liable in respect of her murder." 33 And from the second Herald article in its natural and ordinary meaning: 7."(a) that the Plaintiff had engaged in homosexual intercourse with Gordon Wood; (b) that the police had reason to suspect that the Plaintiff had engaged in homosexual intercourse with Gordon Wood; (c) that the late Caroline Byrne had reason to suspect that the Plaintiff had engaged in homosexual intercourse with Gordon Wood; (d) that the late Caroline Byrne suspected that the Plaintiff had engaged in homosexual intercourse with Gordon Wood." 34 In answer to a series of coordinate questions, the jury answered every one in the negative. It became unnecessary on those findings and they did not answer whether any of such imputations would have been defamatory of the plaintiff. Judgment in the action for the defendant was directed. 35 The recitation of the pleaded imputations reproduces the terms in which they were left to the jury. In order to maintain a workable reference system I have adopted the enumerations used in an index to the transcript of addresses provided to this Court although I note that it does not exactly coordinate with some cross references (AB Orange 2T, 3I, 3S and 4D) to paragraph numbers in the Further Amended Statement of Claim printed at AB Red 128-133. The adoption should assist to avoid confusion when I come to the leave applications in respect of Levine J's rulings where the grounds are expressed by reference to paragraphs of pleaded imputations numbered 4 and 6. 36 Against those findings of the jury and the consequent judgments, three grounds of appeal were advanced: "1. Considered individually, each of the answers given by the jury to the questions submitted to them was an answer that no reasonable jury properly directed could have given. 2. Considered in the aggregate, the answers given by the jury to such questions demonstrate that the jury acted perversely. 3. Her Honour erred in the exercise of her discretion in refusing the application made pursuant to Pt 34 r6 on behalf of the Appellant for a direction altering the order of addresses to the jury." It is convenient, as counsel did in oral submissions to address ground 3 first. THE ORDER OF ADDRESS 37 A trial governed by s7A of the Act is limited to restricted finding by the jury. Section 7A(3) provides: "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." 38 In the event of jury findings in favour of a plaintiff, s7A(4) assigns to the Court (constituted by a judge) the determination of defences as to both fact and law and the assessment of any damages, to the exclusion of the jury. 39 By reason of an assumption in expression of s7A(4) which refers to a determination by the jury that the defendant has published material conveying an imputation defamatory of the plaintiff, s7A(3) is construed, in the event of dispute, so as to assign those issues, that is to say publication by the defendant and identification of the plaintiff as the person in respect of whom an imputation has been conveyed, to the jury: Cinevest Limited v Yirandi Productions Limited [2001] NSWCA 68. 40 SCR Pt 34 r6 provides: "6(1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial. (2) Subject to subrule (1) - (a) where the only parties are one plaintiff and one defendant, and there is no cross-claim, the order of evidence and addresses shall be as provided by the following subrules of this rule; and (b) in any other case, the order of evidence and addresses shall be as provided by the following subrules of this rule, subject to such modifications as the nature of the case may require. (3) The beginning party may make an address opening his case and may then adduce his evidence. (4) Where, at the conclusion of the evidence for the beginning party, no document or thing has been admitted in evidence on tender by the opposite party, the opposite party may elect to adduce evidence or not to adduce evidence. (5) If, pursuant to subrule (4), the opposite party elects not to adduce evidence, the beginning party may make an address closing his case and then the opposite party may make an address stating his case. (6) If, pursuant to subrule (4), the opposite party elects to adduce evidence, the opposite party may make an opening address before adducing his evidence and after adducing his evidence he may make an address closing his case and thereupon the beginning party may make an address closing his case." 41 As indicated by the foregoing, what has come to be referred to as a "section 7A trial" does not extend beyond determination of very limited issues. The legislative amendments which gave rise to the existence of such a trial came into effect in 1995. Part 34 Rule 6 was in its current form well before then and has not since been amended to accommodate a "trial" which is markedly different in content from what would have been understood to constitute a trial when the rule was formulated. 42 Prior to the hearing, solicitors for the appellant gave notice to the solicitors for the respondent that directions would be sought from the presiding judge as follows: "We note that the proceedings are listed for a S7A hearing on 17 April 2001 and advise as follows: 1. It is our intention to apply at the commencement of the S7A hearing, after the jury has been empanelled and in their absence, for directions under Part 34 Rule 6(1) as to the order of the evidence and addresses in this case. 2. The directions that we shall seek are as follows: (a) that counsel for the Plaintiff shall be entitled to make an opening address during the course of which the three articles complained of may be tendered in evidence; (b) that if the Defendant does not go into evidence for the purposes of the s.7A trial, counsel for the Defendant shall be entitled to make a closing address immediately after the conclusion of the opening address for the Plaintiff; (c) that counsel for the Plaintiff shall be entitled to make an address in reply at the conclusion of the closing address for the Defendant. 43 The letter then added: 3. We noticed that under the defence as filed the Defendant has raised defences of justification to some of the imputations relied upon by the Plaintiff. The ground of the proposed application is that unless the procedure outlined above is followed the Plaintiff, as the party bearing the onus of proof, would be at an unfair forensic disadvantage under the s.7A procedure by being deprived of the last address in a case which, but for the procedure, would involve the Defendant going into evidence on the issue of justification. 4. We shall seek leave to file in court a notice of motion returnable as above seeking orders as indicated and making provision for costs." 44 As foreshadowed an application was made. It was opposed. It has alternatively been submitted that a direction should have been given at least that a single address on behalf of the respondent should have preceded a single address on behalf of the appellant. Her Honour was informed that the respondent had agreed and was prepared to admit that at least one person who had read the first Herald article had read the AFR article thus obviating any necessity for the appellant to prove the knowledge of extrinsic facts to support the true innuendo case. It followed that the evidential content of the trial in its entirety would, as it did, consist of copies of the three articles constituting the matters complained of. 45 Her Honour refused "all applications" but did not at that stage, and does not appear to have been later asked, to give reasons. 46 It can be noted however that a similar application had been refused by Levine J in Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 121 about two months earlier. In the course of refusal his Honour had said: "7. In a pre-trial defamation trial, but after the judgments in Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 and TCN Channel 9 Pty Limited v Mahoney (1993) 32 NSWLR 397 where on the issues of defamatory imputations the defendant has not gone into evidence, the practice has been (as exemplified in RZ Mines (Newcastle) Pty Limited & Anor v Newcastle Newspapers Pty Limited & Anor (Hunt CJ at CL, unreported, 16 November 1994), and Harris v Perkins 10735 of 1991), and in the absence of any application for specific directions, for the order of addresses to follow the usual course. 8. Here we are concerned with, first, a post-1995 defamation action, and, second, a situation where an application has been made. 9. Whilst the proposed direction limits the sought right of reply to be one in the strict sense, no basis other than mere forensic advantage or disadvantage has in my opinion been advanced which persuades me to depart from the usual order of addresses as is referred to in Pt 34 r6(5). 10. The reference in the course of submissions to pre-1995 and pre- Parker and Mahoney cases is of no assistance because, first, the legislature has intervened to create the new separate trial, artificial as it may well be described. Discrete, in fact, it is. 11. Secondly, that separate trial is conducted before a separate forum, namely the jury. Thus in the context of this case, the old scheme, as I will describe it, as relied upon as a basis for the directions sought, vis-à-vis the forum constituted by the jury, cannot apply. But, of course, it may still apply to the forum constituted by the trial judge. 12. Further, and of critical importance, is that the role of the trial judge and his summing up to the s.7A jury cannot be overlooked. 13. It will be open to the plaintiff's counsel, at the end of the address by counsel for the defendant, to seek any directions considered appropriate and required in the interests of justice in the light of such address." 47 Counsel have drawn attention to my refusal of a similar application in Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 693. However I remarked: "Mr Hughes has reminded (me that) I did not specifically say I had refused his alternative application, (that if counsel for the plaintiff was required to address first, he should have a right of reply), I consider there is a great deal of force in the complaint which is made that in these particular trials a plaintiff is placed in a disadvantaged position having to address first and anticipate anything that might be said on behalf of various defendants and I consider there is a great deal to be said for the notion that an address in reply or an alteration of the order of address might be considered. However, as I said yesterday, I think it desirable that I maintain comity with other judges who have taken the view the ordinary course set out in the rules should be followed." 48 It can be anticipated that the frequent course of a "s7A trial" will follow that of the present litigation, that is, there will be no evidence other than the exhibiting of a matter complained of. In such a case it would strain language to assert that the defendant has "elected not to adduce evidence" as contemplated by a Part 34 Rule 6(5). The situation has arisen because the statute has created what Levine J, in my view accurately, referred to as an "artificial" or "discrete" trial. The mandatory procedures expressed in Rule 6(2) are subject to Rule 6(1) and there is therefore a discretion to be exercised. 49 It is perceptible that discretionary judgment may have to be reached after weighing the effect of circumstances where there are contested issues such as publication, identity or existence of persons having knowledge of extrinsic facts but in the commonest cases of a "s7A trial" where the evidence consists solely of tender of a matter complained of, fairness and practicality favour permitting a plaintiff, whose pleaded imputations have been found capable of being conveyed and being defamatory, to respond to the arguments of a defendant disputing that such have either been conveyed or are defamatory of the plaintiff. 50 Senior counsel for the appellant emphasized that a plaintiff carried the onus of proof of all issues but that would be the case in a conventional trial where a defendant has deliberately elected to call no evidence and I do not consider that to be a reason for departing from the order of address specified in SCR Pt 34 R6(5). However a "s7A trial" has potential for peculiar difficulties. As counsel also pointed out provided the evidence is not misquoted, a party will not be able successfully to obtain counter directions from the presiding judge on the ground that the opponent has put an argument which is tenuous or even silly. A jury should not be required to deliberate without response to an argument of such a nature. 51 In my opinion the balance of fairness should be achieved by regulation of the order of address rather than the grant of a right of reply to a plaintiff who has already initially addressed. Given the abbreviated nature of the trial it is manifestly undesirable that after principal addresses a jury be required to wait while any dispute as to the content of a reply is determined. It is also undesirable that, where there is dispute as to content of addresses on facts, risk be taken that a trial judge in responding to applications for correction or direction give an impression, albeit unfounded, of partiality. I am conscious that applications of such a nature are dealt with in the course of trial not limited by s7A but a "s7A trial" has an apparent capacity to magnify that risk. 52 As already noted there were no reasons published for refusal of the application in respect of the order of address, but in the circumstances of the case, that is, the tender of no evidence beyond tender of the matters complained of, the balance of fairness should have required the defendant to address first. Consideration of what relief, if any, should follow can be postponed whilst other grounds of appeal are addressed. 53 Since preparation of the foregoing, I have had the opportunity of reading the draft judgments of Meagher JA and Foster AJA. There is a majority of opinion that, subject to discretion, the plaintiff should address first. I should then restate my alternative view that the plaintiff should, again subject to discretion, have a right of reply with which view Meagher JA has expressed his agreement. Perversity 54 The jury found that none of the pleaded imputations had been conveyed and grounds 1 and 2 attack the findings on an individual basis and on the basis that perversity is demonstrated by the aggregation of negative answers. 55 There is no doubt that the burden undertaken by the appellant in such a challenge is heavy. The extent of inhibition upon intervention to set aside a jury verdict in a defamation case was recently analysed in England in Grobbelaar v Newsgroup Newspapers [2001] All ER 437 where Jonathan Parker J wrote @ 487 : "It is clear on authority that this court will only set aside the verdict of a jury in a defamation case on very strong grounds. As it is put in Gatley on Libel and Slander (9th edn. 1998) pp 889-890 (para 36.19): 'The jury are the constitutional tribunal for the decision of libel or no libel, and only in an extreme case will their verdict be set aside as unreasonable. If the words complained of are capable of a defamatory meaning and the jury have found in fact that the words do bear that meaning, the court will not set aside the verdict. And where, though the words are capable of a defamatory meaning, the jury have found in fact that the words do not bear that meaning, the verdict will not be set aside unless it is unreasonable. In the absence of a misdirection the appellate court will only interfere with a finding of the jury if it was one which a jury, viewing the whole of the evidence reasonably, could not properly find.' On the other hand - 'The fact that the subject matter of the jury's deliberation in such a case is a matter involving the law of defamation and of fact finding in that area does not involve some special magic. In this as in any other area of fact a jury are capable of arriving at a conclusion which is incontrovertibly wrong and which can be set aside on appeal.' (See Evans v Davies [1991] 2 Qd R 498 at 511 per Macrossan CJ). In Australian Newspaper Co Ltd v Bennett [1894] AC 284, where the issue was as to the meaning of the words complained of, the Privy Council (at 287) said: 'It is not disputed that, whilst it is for the Court to determine whether the words used are capable of the meaning alleged in the innuendo, it is for the jury to determine whether that meaning was properly attached to them. It was therefore the province of the jury in the present case to determine whether the words used … bore the defamatory sense alleged. [The judge below] observed in the course of his judgment that he admitted that the Court would only be justified in reversing the finding of the jury "if their decision upon that point is such as no jury could give as reasonable men." This is a correct statement of the law. Their Lordships have not, any more than the Court below had, to determine in the present case what is the conclusion at which they would have arrived, or what is the verdict they would have found. The only point to be determined is, whether the verdict found by the jury, for whose consideration it essentially was, was such as no jury could have found as reasonable men.' As that passage makes clear, it is not for an appellate court to second guess the jury: it is for the jury to find the facts. On the other hand, as Macrossan CJ said in the Australian Newspaper case (sic Evans v Davies ) in the passage quoted above, a verdict in a defamation case involves no 'special magic'. Where it is plain from the jury's verdict that in reaching it the jury has fundamentally misdirected itself – in other words, where the verdict is so plainly wrong that no jury, acting reasonably, could have reached it – then the appellate court has not only the power but the duty to intervene." 56 There is ample Australian authority to similar effect. In Ryan v Ross 1916 22 CLR 1 (the detail of which is unnecessary) upholding a Queensland Full Court judgment setting aside a jury verdict and ordering a new trial Barton J said (at 22): "I am of opinion that the jury, in finding that the publication was not defamatory have come to a conclusion at which no reasonable men could have arrived." 57 In Thompson v Truth and Sportsmen Limited & Anor (No 1) 1929 31 SR (NSW) 129 James J reached a conclusion that words in a publication were "necessarily defamatory and that the verdict of the jury (to the contrary) on that issue is inherently wrong": @ p135. 58 In Cairns v John Fairfax & Sons Limited 1983 2 NSWLR 708 Samuels JA said (at p 716): "………… although the nature of the issue of libel or no libel is such that a jury must be allowed great latitude, the rule still is that if their verdict is unreasonable it must be set aside, in this class of case as in any other. However, I take it that the test requires a case against the verdict which is 'clear and beyond argument' : Broome v Agar (1928) 138 LT 698 …………….". 59 In all of these regards it is apt to bear in mind the observations of Kirby P in Hanrahan v Ainsworth 1990 22 NSWLR 73 @ 88: "The role of the jury must, under the present law, be energetically defended in defamation actions. This is because Parliament has energetically preserved the function of the jury in such actions where, in so many others, jury trial has been abolished: see Supreme Court Act 1970, s88(b). No doubt Parliament has so provided because of the intangible considerations raised by defamation actions, the hotly disputed contests about the actions and motives of those involved and the highly individualized determination of a money verdict where the plaintiff is entitled to succeed. Whilst the law remains as it is stated in s88(b) of the Act, judges must exercise care and restraint in invading the functions reserved by Parliament to juries. In a sense, the jury represents a microcosm of the community. Experience teaches that juries are well fitted to determining sensibly the issues of fact which typically arise in resolving issues of liability in defamation actions. " 60 The argument of the respondent was succinctly summarized. Its written submission was: "The answers given by the jury were reasonably open. Their apparent rejection of the invitation from the appellant to adopt the process of reasoning advocated to support a finding that each meaning was in fact conveyed to the ordinary reasonable reader was not unreasonable or perverse having regard to the way in which the jury was asked to approach the questions, it simply cannot be said that the answers, either individually or together, indicate that the jury failed to perform its duty." 61 With the issues as stated and the heavy burden on the appellant in mind, reference should be made to the individual imputations pleaded. It was, of course, requisite for the jury to have regard to each of the individual (subject to the qualification of inclusion by reference in respect of the true innuendo case) publications as a whole, but there were apparent sources in the text for asserted imputations and it will suffice to confine reference to those portions which is in substantial accordance with the stance adopted in respective addresses to the jury. 62 Although the statement of claim had annexed to it typescripts of each of the matters complained of with a side bar numerical sequence, argument before the jury and in this court was conducted by reference to copies of the publications enumerated paragraph by paragraph; numbers also being assigned to pointers, sketches, photographs, headlines and subheadings. It will be convenient to continue the latter. The AFR Article Imputation 1(a) 63 Imputation 1(a) "that the plaintiff's participation in the affairs of Offset Alpine Press Group had diminished his reputation as a sagacious and astute stockbroker" was contended by the appellant to be derived from the very words of paragraph 20 "but Rivkin's reputation as a canny and astute broker took a battering in May 1995 when the ASC took legal action to freeze a major part of Offset Alpine's share register" in coordination with an earlier statement (in paragraph 17) that the appellant "controlled the public company". 64 The respondent's argument was summarized to the jury "and our submission to you is the natural and ordinary meaning of the words just do not demonstrate, if you like, the support for the proposition or assertion being put that the publisher is making the assertion, that Mr Rivkin's participation in the affairs was what brought about the diminishing of his reputation as a sagacious and astute stockbroker". 65 In her charge to the jury Her Honour epitomized the contest as turning upon whether the publication conveyed to the ordinary reasonable reader simply that the appellant's reputation was damaged by what the ASC had done in freezing a major part of the share register or whether the controller (as he had been described) would have to take responsibility for whatever it was that caused the ASC to act. 66 The argument of the respondent provided no answer to that of the appellant as it was based upon construction of a selected portion only of the matter complained of. The appellant's contention was in its essence left unanswered and I would assess it clear beyond argument that the imputation was necessarily conveyed by the words of the publication. Imputation 1(b) 67 Imputation 1(b) "that in May 1995 the Australian Securities Commission had reason to suspect that the plaintiff had engaged in unlawful conduct in connection with the affairs of Offset Alpine Press Group". The appellant's argument directed attention to numerous aspects of the matter complained of. Attention was drawn to the three references to "bad business" (the flag on the front page, the headline below the sketch of a body outline and another headline above the substantial text). The sidenote proclaimed "new information about the events surrounding the death, disclosing details of a secret investigation into some controversial business dealings". Therefore the ordinary reasonable reader would inevitably associate these matters and the appellant with the dealing. Reference was made to paragraph 30 "it must also have been a tense time for Rivkin and his personal assistant Gordon Wood, not merely because it now seemed that, unbeknownst to Rivkin, his company had had a covert takeover but also because thanks to Croll's misunderstanding Rivkin himself had become the major focus of the ASC inquiry." There was also reference to surveillance, investigation and examination in earlier parts of the publication. 68 The submission of the respondent was put in these terms: "What ultimately we will be putting to you, members of the jury, is that such material as there is to be found in this article really lends no support to the contention that a reader would take from it that the Australian Securities Commission have reason to suspect that he, Mr Rivkin, had engaged in unlawful conduct in connection with the affairs of this organization." 69 Counsel took the jury to parts of the article, in particular reports of an interview wherein the appellant was recorded as saying that corporations had been clients of his for more than fifteen years and were indignant at the ASC's move and that he had flown to Zurich to try to explain "what it was all about". 70 The submission of the appellant was that the ordinary reasonable reader could not fail to conclude that all of this activity of the ASC was generated by a reasonable suspicion by the ASC that the plaintiff had engaged in unlawful activity in connection with the affairs of Offset Alpine. 71 Not only is the imputation powerfully conveyed but the respondent's submission is effectively couched in the abstract. There is only one corporation mentioned as the focus of enquiry and no reasonable basis for the negative answer by the jury was available. Imputations 1(c)(1) and 1(c)(2) 72 These imputations were left to the jury as alternatives and were pleaded "that the late Caroline Byrne had reason to suspect that the plaintiff had involved Gordon Wood in unsavoury business dealings connected with the affairs of Offset Alpine Press Group" or "the late Caroline Byrne suspected the plaintiff had involved Gordon Wood in unsavoury business dealings connected with the affairs of Offset Alpine Press Group". 73 The appellant relied particularly upon paragraph 52 which read "in a transcript of a police interview tendered at the inquest Wood said: 'He was sort of like a father to me, if you like, as well as a boss'. Wood said Rivkin advised him how to treat Byrne though Caroline had 'a lot of suspicions about him'. This related partly to the colourful crowd at Rivkin's favourite coffee shop, Joe's Café in Kings Cross." It was contended that one or other of those imputations inevitably arose. The use of the word "partly" would necessarily cause the ordinary reasonable reader to inquire as to other bases for stated suspicions and the reader would be driven to conclude that it must have been events described in the article. These included controversial business dealings which were the subject of a secret investigation in the course of which Wood and the appellant were kept under surveillance and summonsed for examination after return from Zurich. 74 As the terms of the portion of the publication which I have recited show there was no definition in the publication of the suspicions which Ms Byrne was said to have had about the appellant and the argument on behalf of the respondent was put to the jury in these terms: "And we say, there is simply no basis for suggesting that whatever her suspicions about Mr Rivkin might have been, was put in the plural, whatever the suspicions might have been there was no rational or fair basis for jumping to a conclusion that one of those suspicions would have included a suspicion of the kind formulated in 1(c) or 1(d)." (The reference is to the relevant imputations). 75 In the context of the article it is difficult to imagine what suspicions of the appellant Ms Byrne would have had other than those related to the immersion of Mr Wood with the appellant in unsavoury dealings concerning Offset Alpine Press Group but, again, the issue is whether a jury was bound to find in terms of the pleaded imputation (or one not substantially different from it) and in its terms the article leaves open the focus of Ms Byrne's suspicions and in my view a conclusion that they related to unsavoury business dealings with the specific connection to the particular corporation was not inevitable. The First Herald Article Imputation 3(a) 76 Imputation 3(a) asserted "that the plaintiff was a person criminally liable in respect of the murder of the late Caroline Byrne". The appellant's case on this issue was constructed upon references to multiple statements in the course of the article but, additionally, counsel noted that a challenge had been made in the course of address to the jury in which the question was asked why the appellant was introduced into the story of Caroline Byrne's death at all if not to suggest that he had a hand in it. It was an accurate assertion that counsel for the respondent did not attempt to respond to that challenge, either at trial or in the course of the appeal. 77 The article towards its beginning postulates three possible causes of death namely suicide, murder or accident and proceeds without further discussing the possibility of accident at all. A theory of suicide is heavily discounted following a rhetorical question "so why would she kill herself?" Reference is made to a posthumous case analysis by a psychiatrist who estimated the "odds of suicide" as low on the evidence of her friends, rising to moderate on the evidence of a Dr Pan, a general practitioner to whom Ms Byrne had said that she was feeling depressed and to high if one accepted the version of events put forward by Gordon Wood. The article then proceeds to refer critically to the conduct of Gordon Wood, from time to time in scathing terms particularly referring to an assertion that he had "later lied to a number of Caroline's friends, telling them that she had been killed by a car." 78 A submission on behalf of the appellant that the article strongly promotes the theory of murder as the cause of death is correct. Added to this is the mention of the appellant's name no less than eleven times in those sections of the article which deal with the theory of murder. 79 The transcript of address shows that counsel for the respondent not only did not seek to respond to the challenge already mentioned but was content to put to the jury that they would not find the construction urged upon them on behalf of the appellant. Other than this denial I am unable to detect any basis upon which it was argued that the appellant's claim that the imputation is conveyed had not been made out. It should be observed that at one point the submission of the appellant was misquoted to the jury by counsel for the respondent to suggest that the appellant's submission was that the particular inference on particular paragraphs were "the murderers are Wood and Rivkin". 80 There was no reasonable basis upon which the jury could find that this imputation was not conveyed. Imputations 3(b) (i) and 3(b)(ii) 81 Imputations 3(b)(i) and 3(b)(ii) are in the alternative and assert "that the father of the late Caroline Byrne had reason to suspect that the plaintiff was a person criminally liable in respect of her murder" or "that the father of the late Caroline Byrne suspected that the plaintiff was a person criminally liable in respect of her murder". 82 The appellant's submission was that the publication was asserting that as a matter of fact Mr Byrne had reason to suspect the appellant was personally criminally liable or suspected that he was and it was contended that the article plainly said so. The response of the respondent pointed to the statement in the publication that "Byrne makes an extraordinary allegation about people he claims were behind the murder". It was submitted that the jury would find, particularly having regard to the description "extraordinary" that the article was discounting these allegations and not suggesting that they were credible. 83 It was within the scope of the exercise of the jury's discretion to accept that submission. Imputations 3(c)(i) and 3(c)(ii) 84 Imputations 3(c)(i) and 3(c)(ii) are again pleaded in the alternative and they are "that the plaintiff had engaged in homosexual intercourse with Gordon Wood" or "that the police had reason to suspect the plaintiff had engaged in homosexual intercourse with Gordon Wood". 85 Part of the matter complained of includes this extract (paragraph 36): "An interview tendered as an exhibit at the inquest showed one possibility the police were exploring. The transcript reads: Wyver: Now, I have been informed that on the day of Caroline's death she did not in fact attend work, she made surveillance of you and in the course of this she caught you and Rene (Rivkin) having homosexual intercourse. What can you tell me about that? Wood: Absolute lies. Wyver: O.K., and then I have been informed that as a result of that an argument between her and you ensued. Is there anything ……….. Wood: No. Wyver: ……………and that you went to the Gap and threw her over the Gap. Wood: No, that's not correct, not correct." 86 The article itself does not disavow the reported hearsay statement beyond reportage of the denial by Wood who is, as previously mentioned, published as a person who had lied (to a number of Ms Byrne's friends in respect of her death) and about whose credibility the matter complained of was generally dismissive. 87 It was submitted on behalf of the respondent that the publication of the response by Wyver "O.K." to Wood's assertion that these were absolute lies left it open to the jury to conclude that the publication conveyed neither of the imputations. That proposition is logically suspect because following "O.K." is the question concerning the alleged argument which is based upon the factual supposition that such homosexual intercourse had occurred. Given that circumstance, it was inevitable that at least the alternative pleaded as imputation 3(c)(ii) had been made out in the sense that it must have been conveyed that the police had reason to suspect that the factual supposition had substance. Imputation 3(d) 88 Imputation 3(d) asserted "that the plaintiff was a close associate of criminals". 89 The publication expressly recorded as part of an interview with Wood that he had said that Rivkin: "used to hang out with a whole stack of people at the café, which, I am sure, you probably discovered has a reputation for being a hangout for ex drug dealers …………..Joe's Café ………. Some of Rene's closest cronies are …….have certain criminal backgrounds or are rumoured to have it." (paragraph 39). 90 The appellant contends that the imputation arises in the plainest terms. The respondent argued to the jury that they might pay attention to the reference to "ex drug dealers" and conclude that the publication was conveying that they were no longer such and by reference to that the article is making it plain that "the people with whom he is described as associating may have been criminals in the past, paid their debt to society you might think". 91 The imputation does not involve the ordinary reasonable reader drawing a distinction between active and inactive criminals. A miscreant who has undergone whatever was required by the imposition of penalty does not emerge absolved of crime to a point where description as a criminal has become somehow fallacious. 92 The respondent's argument to the jury was based upon a flawed assumption that the imputation was alleging that the appellant was the associate of "active criminals" in which terms it was not expressed. Once the assumption is removed it becomes clear beyond argument that the imputation is conveyed. The AFR Article and the First Herald Article – The True Innuendo Case Imputation 5(a) 93 Imputation 5(a) asserted "that the plaintiff was a person criminally liable in respect of the murder of the late Caroline Byrne". Imputations 5(b)(i) and 5(b)(ii) 94 These imputations are pleaded in the alternative "that the father of the late Caroline Byrne had reason to suspect that the plaintiff was a person criminally liable in respect of her murder" or "that the father of the late Caroline Byrne suspected that the plaintiff was a person criminally liable in respect of her murder". 95 It is convenient to deal with these imputations together. 96 The submission on behalf of the respondent to the jury was summarized in counsel's address in which he referred to the extreme nature of the claim being made by the appellant and concluded "in other words, it demonstrates, we would suggest to you, that in order to reach conclusions as reflected in these off several imputations, it is necessary to simply stretch the language, the contents of the both articles, read together, and that which they can reasonably sustain". 97 The submission of the appellant was that the combined effect of the AFR article and the first Herald article was necessarily to instil in the mind of the ordinary reasonable reader an idea that there was a causal link between events investigated by Australian Securities Commission and the death of Caroline Byrne. The express focus of the AFR article was the revelation of "new information about the events surrounding the death disclosing details of a secret investigation into some controversial business dealings". 98 It suffices to observe that the imputation pleaded as 5(a) is even more strongly conveyed in the case of a reader with requisite extrinsic knowledge than the similar imputation pleaded in respect of the first Herald article standing alone, and a bare invitation to the jury not to find it made out does not constitute an argument permitting rejection of plain meaning. The negative answer by the jury cannot be supported. 99 However a different conclusion should to be reached in respect of the alternatives pleaded as imputations 5(b)(i) and 5(b)(ii) having regard to the availability for the jury to accept the argument advanced by the respondent that the inclusion of the description "extraordinary" amounted to a disclaimer of the validity of Mr Byrne's reported suspicions and reasons. The Second Herald Article Imputation 7(a) 100 Imputation 7(a) asserted "that the plaintiff had engaged in homosexual intercourse with Gordon Wood". The article appeared under a headline "Boyfriend denies killing model" and the portion relied upon in relation to this imputation read: "Mr Gordon Wood, who was engaged to marry Ms Caroline Byrne before her death in May 1996, told the Seven Network's Witness program that suggestions made in a police interview that he had thrown Ms Byrne off the Gap after surveillance she commissioned, allegedly caught him having sex with his boss, the flamboyant stockbroker Rene Rivkin, were 'utter lies'. Utter garbage. There is absolutely no evidence to support that Caroline had hired anybody or that Rene Rivkin had homosexual sex with me or anybody, Mr Wood said." (paragraphs 4 and 5). 101 The claim by the appellant that the imputation was conveyed was based upon the further content of the article which reported a detective stating that evidence indicated that Mr Wood had told lies and that there were a lot of inconsistencies in his story. The article further reported "Mr Wood claimed he had not lied once". 102 The contest before the jury included the proposition on behalf of the respondent that the appellant's case necessitated an ordinary reasonable reader disregarding the reported denials of Mr Wood and it was contended that it would not be reasonable to adopt that stance as an ordinary reasonable reader would accept those denials at face value. 103 It was open to the jury to accept that argument. Imputation 7(b) 104 Imputation 7(b) asserted "that the police had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood". 105 In her charge to the jury the learned trial judge epitomized the arguments of the appellant that the reader would infer that the police would not have asked the questions recited from the interview unless they had reason for suspicion and the response by the respondent referring to the denials which were published in the report. 106 Again, this was an issue upon which it was open to the jury to find either argument sustained. Imputations 7(c) and (d) 107 Imputations 7(c) and (d) were left to the jury as alternatives and pleaded "that the late Caroline Byrne had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood " or "that the late Caroline Byrne suspected that the plaintiff had engaged in homosexual intercourse with Gordon Wood". 108 The contest was left to the jury without complaint, on the basis that each counsel were relying upon the same sort of material (in support of argument on the preceding imputation) and the conclusion must be the same, that it was open to the jury to sustain either argument. 109 The persistently negative answers by the jury to all questions whether an imputation had been conveyed were therefore in my opinion perverse in respect of those above identified emerging from the AFR article and the first Herald article and on the true innuendo case but not perverse in respect of others above identified and alleged to emerge from the same publications. None of the negative answers in respect of the second Herald article was in my opinion so perverse. 110 The question then arises as to whether a new trial should be ordered in respect of only those imputations in respect of which perversity of answer has been found. Even where the negative answer has not been found perverse in relation to a pleaded imputation, there were nevertheless arguments capable of supporting the appellant's contentions (including contentions supporting the pleaded imputations alleged to arise out of the second Herald article) and the refusal of the application for an address in reply (or the alternative of change in the order of address) must contribute to a determination whether there has been miscarriage attracting an order for new trial on some or all of the answers. 111 The appellant (expressly in ground 2) sought to attach significance to the aggregation of negative answers. In the case of a number of these I have concluded that they were unacceptable in any of the terms of the tests as they have been expressed from time to time. 112 It is not open to speculate upon why the jury may have persistently returned these negative answers. The issue of whether a meaning is conveyed by a matter complained of and whether it is defamatory does not involve assessment by the tribunal of fact of any matter touching upon the persona or reputation of a plaintiff, the truth of the imputation, privilege or other matters previously dealt with in a "complete" libel trial but in the circumstances, that is to say constant rejection of the cause of a litigant in many cases in defiance of reasonableness, it is apt to conclude that the jury has misapplied itself to its task. 113 In those circumstances I consider that there should be a new trial of all the imputations which were before the jury. The Interlocutory Rulings 114 The next matter of contest involves challenges to pre trial rulings by Levine J on the capacity of intended imputations to be conveyed by the publications and the allied issue concerning the need for extension of time or for leave. 115 At a hearing before His Honour on 3 July 1998 the appellant sought leave to file an amended statement of claim alleging that, inter alia, the AFR article conveyed in its natural and ordinary meaning, imputations concerning the appellant as follows: "4(b) That in May 1995 the Australian Securities Commission had reason to suspect that the plaintiff had engaged in unlawful conduct in connection with the affairs of Offset Alpine Press Group; (c) that in May 1995 the Australian Securities Commission suspected that the plaintiff had engaged in unlawful conduct in connection with the affairs of Offset Alpine Press Group; (f) that there was reason to suspect that the plaintiff was a person criminally liable in respect of the murder of the late Caroline Byrne; (g) that the plaintiff's conduct gives rise to a suspicion that he was a person criminally liable in respect of the murder of the late Caroline Byrne." 116 Further, the proposed amended statement of claim asserted that the first Herald article, inter alia, conveyed in its natural and ordinary meaning concerning the appellant: "6(e) that the police had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood; (f) that the police suspected the plaintiff had engaged in homosexual intercourse with Gordon Wood; (g) that the plaintiff practised a hypocritical double standard of sexual conduct in that although he was a married man with five children, he engaged in homosexual intercourse with Gordon Wood; (h) that there was reason to suspect that the plaintiff practised a hypocritical double standard of conduct in that although he was a married man with five children, he engaged in homosexual intercourse with Gordon Wood." 117 In the first of the judgments referenced above, Levine J held that imputations 4(b) and (c) did not differ in substance within the meaning of Part 67 rule 11(3) and therefore could not properly be pleaded together, and that, in any event, imputation 4(c) was otiose because an ordinary reasonable reader would take from the article that any suspicions held by the Australian Securities Commission would necessarily be reasonable. He further held that imputations 4(f) and (g) were defective for failure to disclose the identity of the holder of the suspicion and that the imputations were incapable of being defamatory of the appellant. In relation to the proposed pleading of imputations arising out of the first Herald article the learned judge held that imputation 6(c) and (f) did not differ in substance and could not properly be pleaded together. He also held that imputations 6(g) and (h) were incapable of arising and that imputation 6(h) was defective for the additional reason that it did not identify the holder of the suspicion. 118 As has been stated the proceedings were not, as is commonly the case, the specific trial of a separate question of law pursuant to Part 31 as to whether pleaded imputations should be struck out, but identical considerations were undertaken in the context of the application for leave to file the amended statement of claim. 119 Until the matter now before the Court, no application for leave to appeal against any part of the decision made on 17 July was lodged by the appellant. Effectively his Honour granted the appellant leave to amend subject to conditions that the proposed imputations subject of his determinations above set out were not pleaded in any amended statement of claim. 120 The appellant filed an amended statement of claim on 31 July 1998 and did not include imputations which were the subject of his Honour's ruling however the amended pleading contained fresh imputations in terms as follows: "4(e) That the circumstances surrounding the death of the late Caroline Byrne were such that the defendant had reason to suspect the plaintiff to be a person criminally liable in respect of the murder of the late Caroline Byrne; (f) That the circumstances surrounding the death of the late Caroline Byrne were such that the defendant suspected the plaintiff to be a person criminally liable in respect of the murder of the late Caroline Byrne; (g) That the circumstances surrounding the death of the late Caroline Byrne were such as to give the reasonable reader of the matter complained of reason to suspect that the plaintiff to be a person criminally liable in respect of the murder of the late Caroline Byrne; (h) That the circumstances surrounding the death of the late Caroline Byrne were such as to make the reasonable reader of the matter complained of suspect the plaintiff to be a person criminally liable in respect of the murder of the late Caroline Byrne." 121 A challenge by the respondent to the capacity of the AFR article to convey the above imputation was heard at a separate trial pursuant to Part 31 R2 and dealt with by Levine J in his judgment of 18 September 1998. 122 In relation to imputations pleaded as 4(e) and (f) his Honour observed "In my reading of the matters complained of there is simply nothing, and that includes not merely the fact that the defendant was the publisher, that would enable an ordinary reasonable reader to come to the view that it is being said that the defendant had the suspicion or suspected". 123 In relation to imputation 4(g) and (h) his Honour upheld a submission by the respondent that what was pleaded did not constitute imputations of and concerning the plaintiff in any relevant sense in that no act or condition was identified which would lead to the calling in question of the plaintiff's character or actions. Adverting to the submission which he upheld he observed "What they do is say no more than that the plaintiff is a person who has been defamed by the publication that is to say it is nothing more than the consequence of a defamatory publication being published without specifying the imputation." 124 His Honour ordered the imputations 4(e) (f) (g) and (h) be struck out. 125 Consequently the appellant filed a further amended statement of claim, the imputations pleaded being those ultimately considered and rejected by the jury. 126 It appears that until the application for extension of time and leave to appeal presently before the Court no application for leave to appeal against the decision of 17 July or 18 September 1998 was filed. 127 As already noted, the appellant contends that its applications for extension of time and leave to appeal are precautionary and he contends that the challenges are brought before the Court as of right. The respondent disputes this proposition and opposes the making of an order extending time or for the grant of leave. 128 It is convenient first to refer to submissions on behalf of the respondent. It was pointed out that following the orders made on 18 September 1998 the respondent sought leave to appeal against certain of the orders made (not affecting the imputations held impermissible mentioned above) and the application was heard by the Court (differently constituted) on 19 May 1999. The respondent's summons was dismissed but the respondent asserted, without demur on the part of the appellant, that the appellant did not raise in those proceedings at all, any matter by way of appeal from any of the orders made (contrary to the appellant's contentions) by Levine J on either 17 July or 18 September 1998. 129 It was contended that by filing the amended statement of claim on 31 July 1998 the appellant in effect acquiesced in and accepted the conditions imposed in the grant of leave to amend. The appellant took advantage of the order by pleading the new imputations and thus elected to proceed in accordance with that pleading and should be taken to have foregone the opportunity of seeking leave to appeal from the conditions imposed. The true nature of the application presently before the Court was described as an attempt to revive the previously abandoned imputations. The Orders of 18 September 1988 following Pt31 R2 Hearing 130 The primary position adopted by the appellant is that he appeals as of right against the specified orders made on 18 September 1998. Reliance is placed upon David Syme & Co v Lloyd 1984 3 NSWLR 346 where Glass JA said (at 349): "If a defendant to a defamation proceeding succeeds in having all the plaintiff's imputations ruled out he is entitled to final judgment and the plaintiff can appeal from that judgment as of right. If the defendant (as here) fails to have any of the plaintiff's imputations ruled out, the order made is interlocutory, but this Court would ordinarily decline to grant leave to appeal preferring to await the result of the trial. After jury verdict the present defendant is entitled to appeal as of right against the judgment entered against it upon the ground that the plaintiff's evidence is insufficient to establish the claim and that the jury verdict was therefore wrong in law. If the judge at the separate trial rules out some imputations and not others, the court would again be inclined to refuse leave save in exceptional circumstances. A policy of this kind in relation to leave to appeal against interlocutory orders made in the Defamation List would accord with the views expressed by Hutley JA in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 692 (which I share) that the separate trial procedure should not be employed for the resolution of disputes of this kind which are best left to be dealt with at the trial." 131 Priestley JA expressed his agreement, however Samuels JA said (at 358): "I do not, however, join in the view expressed about the employment of the separate trial procedure." His Honour did not elaborate. 132 An obvious situation arises when imputations desired to be relied upon by a plaintiff are struck out in that there is then nothing dealt with at trial in relation to such pleaded causes of action. The matter was discussed by McHugh JA in Sinclair v John Fairfax & Sons Limited, unreported CA (NSW) 4 March 1986 where his Honour observed: "The defendant submitted that we should refuse leave to appeal since the decision of Hunt J was interlocutory and could be the subject of an appeal if the plaintiff was unsuccessful at the trial. Reliance was placed on David Syme & Co v Lloyd [1984] 3 NSWLR 346 at 348-349, 358, 359. That case decides that if, before the trial, on a preliminary point argued under Pt 31 R2, a judge decides that a publication is capable of a particular meaning, the defendant may challenge the decision on any appeal against a verdict for the plaintiff. But different considerations apply when a judge holds before trial that an imputation is incapable of arising from published material. No issue will go to the jury on the impugned imputation. It will form no part of the issues upon which the verdict is taken. Invariably, the order giving effect to the decision will strike the imputation out of the pleadings. If the plaintiff succeeds at the trial on a different imputation, it would seem hard on him that he should have to appeal against the verdict in his favour on the ground that he might have obtained higher damages if the impugned imputation had gone to the jury. It would mean that any verdict in his favour could only be regarded as provisional until the fate of the appeal on the imputation was resolved. If the plaintiff fails at the trial, his position may not be much better. To preserve his position, the plaintiff could seek leave at the trial to amend his pleadings to add the imputation which has already been held to be incapable of arising. In the event of a verdict for the defendant, he might then base an appeal on the refusal to allow the amendment. Perhaps the plaintiff, in the event of a verdict for the defendant, might also be able to appeal against the preliminary decision holding that the imputation did not arise. Consideration would have to be given to whether this can be done in New South Wales since, under s9 of the Defamation Act 1974, the imputation is the cause of action. The verdict in the action is in respect of the imputation or imputations left to the jury. It seems incongruous that a jury's verdict could be set a side on a basis that was not part of the issues they tried or the result of any conduct at the trial. I shall assume, however, that, by one means or another, a plaintiff, who has lost on a preliminary question of law under Pt 31 R2 as to the meaning of an imputation, can appeal against the decision after a verdict at the trial. Nevertheless, speaking generally, leave should be given more readily in the case of a plaintiff seeking to appeal against an adverse preliminary decision as to the meaning of a publication than in the case of a defendant. If the plaintiff persuaded this Court after the trial that the preliminary finding on the imputation was erroneous, a new trial would have to be ordered, since the issue has not been litigated. This is a strong reason for granting leave to appeal when there is an arguable case that the judge has erred in holding, pursuant to Pt 31 R2, that the published words are incapable of a particular imputation. The necessity for granting leave to appeal to an unsuccessful defendant is not so pressing. If a preliminary finding is made erroneously in favour of the plaintiff, a new trial after verdict is not inevitable. The jury may reject the imputation or the defendant may successfully raise some defence to it. No doubt there are many cases where a preliminary finding that published words are capable of a particular meaning will increase the cost or the length of the hearing unless reversed. In that and other cases the grant of leave to appeal to a defendant in an arguable case may be necessary. But on the whole I think that leave will be more readily granted to plaintiffs than defendants who wish to appeal against adverse preliminary findings as to the meaning of publications." 133 The appellant's contention amounts to an application of McHugh JA's stated assumption. 134 It is a consequence of s9 of the Act that each imputation of a defamatory kind conveyed by a publication vests in the person concerning whom it is published a cause of action and an order that a pleaded imputation be struck out or otherwise prevented from being determined has a consequence equivalent to judgment against that person on that cause of action. 135 The respondent submitted that after a hearing pursuant to Pt 31 in which a plaintiff has lost an imputation on the basis that it is incapable of arising from the matter complained of he is confronted with a choice to either accept the ruling and proceed to trial on other imputations or exercise his rights under s103 of the Supreme Court Act to seek leave to appeal. It seems a little anomalous that the appellant should have to seek leave to appeal in circumstances where the effect of the order was the same as the loss of the cause of action by entry of judgment, but a question of statutory interpretation becomes involved. 136 The apparent difficulty led to a difference of opinion in this Court in National Employers Mutual General Assurance Association Limited v Manufacturers Mutual Insurance Limited 1989 17 NSWLR 223 where a construction to s103 of the Supreme Court Act 1970 was adopted by the majority which (as Meagher JA observed in dissent) in effect read the words "except where the decision is final" into the provision which reads: "An appeal shall, by leave of the Court of Appeal, lie to the Court of Appeal from a decision in proceedings in the court of any question or issue ordered to be decided separately from any other question or issue." 137 Insofar as that decision held that it was open to an appellant to raise the correctness of any interlocutory order made as a step in the proceedings leading up to final judgment, the respondent has submitted that the proposed imputations were entirely irrelevant to the final judgment in this case as they were not part of the material before the jury at any stage. That is, of course, entirely accurate when related to the judgments entered for the respondent by Simpson J on the causes of action derived from the imputations left to the jury. What the appellant seeks to challenge is the final loss of the causes of action above recited and identified as 4(e), (f), (g) and (h). 138 Although, having regard to National Employers Mutual General Assurance Association Limited, I am of the view that an appeal probably lay as of right (ignoring stipulated time limits for the filing of such an appeal), the issue can be dealt with relatively expeditiously on the basis that Levine J's rulings have not been shown to be erroneous. 139 His Honour ruled that imputations 4(e) and (f) would not go to the jury on a basis which he stated: "In my reading of the matters complained there is simply nothing, and that includes not merely the fact that the defendant was a publisher, that would enable an ordinary reasonable reader to come to the view that it is being said that the defendant had the suspicion or suspected. There may be cases by reason, for example, of the publication of editorial material in the strict sense an argument along those lines could be advanced but in this instance it is not available." 140 Senior counsel for the appellant argued that the publisher in particular by the headline ("It's A Bad Business") and by the side note ("What was going through the mind of well-connected Sydney model Caroline Byrne in the hours before her mysterious death? Neil Chenoweth reveals new information about the events surrounding the death disclosing details of a secret investigation into some controversial business dealings") made available to the ordinary reasonable reader a conclusion that the publisher was endorsing the content of the article. 141 In determining what may be conveyed to an ordinary reasonable reader a test of reasonableness needs to be applied. In Amalgamated Television Services Pty Limited v Marsden 1998 43 NSWLR 158 @ 166 Hunt CJ at CL stated: "What must be emphasised is that it is the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded by the plaintiff. In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken: ………" 142 It was within the scope of the sound exercise of his Honour's judgment to conclude as he did. 143 In relation to imputations 4(g) and 4(h), criticism was directed to a submission (on behalf of the respondent) recited by Levine J in these terms: "……….. it is submitted that these do not constitute imputations of and concerning the plaintiff in any relevant sense, no act or condition is identified which would lead to the calling into question of the plaintiff's character or actions". 144 However, his Honour's conclusion was manifestly founded upon the following statement "What they do is say no more than that the plaintiff is a person who has been defamed by the publication, that is to say it is nothing more than the consequence of a defamatory publication being published without specifying the imputation itself". 145 The nature of the pleading requirement is that a plaintiff must "specify" the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him: see Drummoyne Municipal Council v Australian Broadcasting Corporation 1990 21 NSWLR 135 @ 137. The pleaded imputation is therefore a statement of what is capable of being understood by the ordinary reasonable reader of the matter complained of. The awkwardness of applying that requirement to a pleaded imputation which in its own terms incorporates an allegation of making "the reasonable reader of the matter complained of" to have reason or to suspect something about a plaintiff was acknowledged but it was contended that this did not vitiate the pleading. 146 I am unable to agree for the reason that, as Levine J held, upon analysis the pleading does no more than allege that the appellant was a person who had been defamed by the respondent. The Orders Made On 17 July 1998 147 The appellant's stance in relation to the rulings adverse to him given by Levine J on 17 July 1998 is slightly different in that it is conceded that entitlement to appeal as of right may be debatable. It was contended however that the reasons for decision in the respondent's application dealt with by this Court on 19 May 1999 made it clear that interlocutory appeals concerning the capacity of published matter to convey defamatory imputations were not appropriate. In that case Handley JA (with whom Sheller JA and Brownie AJA agreed) referred to the circumstance that in trials governed by s7A of the Defamation Act, all issues of fact and law and the quantum of damages will be matters for a trial judge rather than the conveyance of imputations and their defamatory character and he added: "This means that this Court is no longer constrained, as it has been in the past, to be liberal in granting leave to appeal from interlocutory decisions on pleading questions arising in the defamation list. The decisions of single judges on such questions can now be allowed to stand until trial. If those decisions are erroneous they can be corrected on appeal after the final judgment in the action when this Court will have the benefit of the judge's findings of fact." 148 The appellant's submission adds content to his Honour's remarks which is not there and it is clear that his Honour was not referring to decisions which withdraw an imputation from decision as there will be no benefit of findings either by the judge or the jury in relation to them. 149 The proceedings determined by the judgment of 17 July 1998 were not, as I have mentioned, separate trial proceedings pursuant to Part 32 but the determination of a motion brought by the appellant seeking leave to amend his statement of claim. The orders adverse to him were clearly interlocutory and leave to appeal was and is required together with, in the circumstances that have now risen, an extension of time. 150 This leads to a consideration of the respondent's contention that the filing of the amended statement of claim on 31 July amounted to an election by the appellant to accept the ruling and proceed with the causes of action enshrined in that new pleading. 151 In my view the respondent's contention should be upheld. To hold otherwise would enable the appellant to proceed upon amended pleadings but leave an earlier pleading in a state of (revivable) suspense. In the event that the appellant wished to insist upon the vitality of the imputations rejected by Levine J on 17 July 1998 it was incumbent upon him to seek remedy then. He ought not be permitted to proceed (as he did) upon amended imputations and then, when disappointed, seek to litigate the abandoned imputations. Orders 152 Section 7A of the Act is explicit in its terms in relation to the functions of judge and jury and in particular: "(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." 153 It follows that the statute inhibits any substitution by this Court of answers in lieu of those given by the jury to the series of questions left to them. Reference was made to the general powers of the Court but in my view the requirement of the provision which I have recited are plain and although in my opinion it was perverse for the jury to answer the questions which I have indicated in the negative, the questions must in due course be answered by a jury and not by a judge or judges. 154 The appellant has been successful in the appeal against the determinations following the "section 7A trial" but the respondent has succeeded in relation to the applications focussed upon the rulings given by Levine J in July and September 1998. The order for costs should reflect the relative successes. 155 I would order the appeal be allowed and the judgments entered following the answers by the jury be set aside and the issues returned to the Common Law Division for new trial. The applications for extension of time, and for leave to appeal, and appeal against the judgments of Levine J delivered on 17 July 1998 and 30 September 1998 should be dismissed. The appellant should pay the respondent's costs of those applications and the respondent should pay the appellant's costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.