New South Wales Court of Appeal CITATION: Lane & Anor v Reid [2005] NSWCA 198 HEARING DATE(S): 18/05/05 JUDGMENT DATE: 18 May 2005 JUDGMENT OF: Brownie AJA at 1; Hodgson JA at 17; Bryson JA at 21 DECISION: 1. Leave to appeal granted, notice of appeal to be filed within seven days. 2. Appeal dismissed. 3. Claimants to pay opponent's costs of the application and the appeal. CATCHWORDS: Defamation - Counsel's address to jury - Whether jury should have been discharged - Whether direction to jury was adequate. LEGISLATION CITED: Defamation Act 1974 s 7A John Fairfax Publications Pty Ltd v Rivkin (2003) HCA 50, 201 ALR 77 Morgan v John Fairfax & Sons Pty Ltd (1988) 13 NSWLR 208 CASES CITED: Crolll v McRae (1930) 30 SR 137 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Shaun Patrick Lane - First Appellant PARTIES: The Rehabilitation Company Pty Ltd - Second Appellant John Charles Reid - Respondent FILE NUMBER(S): CA 041037/04 J S Wheelhouse SC - Appellants COUNSEL: S M Littlemore QC - Respondent Corrs Chambers Westgarth - Appellants SOLICITORS: Walsh & Blair - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 1490/04 LOWER COURT JUDICIAL OFFICER: Sorby DCJ - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 041037/04 HODGSON JA BRYSON JA BROWNIE AJA 18 May 2005 SHAUN PATRICK LANE & ANOR v JOHN CHARLES REID Judgment 1 BROWNIE AJA: The plaintiff sued the defendants for damages for defamation. There was a jury trial at which the jury considered the questions whether the matter published carried certain imputations, and if so whether those imputations were defamatory of the plaintiff: Defamation Act 1974 s 7A. 2 During the course of the hearing the learned trial judge, Judge Sorby, rejected an application made by the defendants to discharge the jury, and in due course the jury answered various questions that had been left to it. The defendants now seek leave to appeal, first from the refusal of his Honour to discharge the jury, and secondly in substance complaining that a direction his Honour gave to the jury was inadequate in the circumstances. If leave to appeal is granted, the appeal is to be heard at the same time. 3 The matter published consisted of an e-mail allegedly sent by the defendants to some dozens of people, said to be members of the Association of Rehabilitation Providers in the Public Sector. Four imputations were left for consideration by the jury, namely (a) that the plaintiff had been passing himself off as a rehabilitation provider when he had no right to do so, (b) that he is unscrupulous in his conduct, (c) that although he is no more than a personal trainer he will diagnose psychological conditions which he is not qualified to do, and (e) that although accredited by WorkCover a government body for case management in rehabilitation, his qualifications were inadequate. The jury found that the matter published conveyed all four of these imputations, but that only imputations (a) and (b) were defamatory of the plaintiff. 4 At the trial the only evidence consisted of a copy of the e-mail. Counsel for the plaintiff, Mr Littlemore QC addressed the jury, and at the conclusion of that address and in the absence of the jury, counsel for the defendant, Mr Wheelhouse SC applied unsuccessfully for the discharge of the jury. Then Mr Wheelhouse addressed the jury. At the conclusion of that address and in the presence of the jury this exchange took place. The case referred to was John Fairfax Publications Pty Limited v Rivkin (2003) HCA 50, 201 ALR 77. "HIS HONOUR: Mr Littlemore, in reply - rather than debate, though. MR LITTLEMORE: No strictly-- HIS HONOUR: Given the lateness of the hour, I don't think I'll be sending the jury out this afternoon, Mr Littlemore, so you have some time. MR WHEELHOUSE: Your Honour I would object. My learned friend doesn't have a right to reply. HIS HONOUR: Why not? MR WHEELHOUSE: Rivkin. HIS HONOUR: I need to understand what that word means. MR WHEELHOUSE: Yes, well your Honour, the High Court has held in Rivkin v Fairfax & Sons that there is no right of reply, except in extraordinary circumstances. MR LITTLEMORE: We say the circumstances are so extraordinary that my learned friend's address was so misleading to the jury that it is necessary-- HIS HONOUR: I will have a look at the authority. MR LITTLEMORE: If your Honour pleases 5 After the exchange mentioned and in the absence of the jury there was further debate. The defendants sought a discharge of the jury. His Honour declined to order that and later in the course of his summing up to the jury said this: "Yesterday, members of the jury, at the conclusion of Mr Wheelhouse's address to you, Mr Littlemore said in court that the address was misleading. Members of the jury, this trial is adversarial with two sides pitted against the other. Occasionally words inadvertently are said that have no relevance to the trial or its conduct. Such a word was "misleading" as used by Mr Littlemore, and you must put that word and its ordinary meaning and any possible meaning entirely out of your minds." 6 On the present application the defendants submit that his Honour ought to have discharged the jury, and alternatively that he ought to have directed the jury in stronger terms than those just quoted. Both at trial and on this application, Mr Wheelhouse founded his submissions to the large extent upon what Kirby P said in Morgan v John Fairfax & Sons Pty Limited (1988) 13 NSWLR 208, focusing to a large extent upon para 4 at pp 211 to 212. I am not sure that it is really necessary to use the expression "personal opinion" that Kirby P used. The submission is just as effective I think, if one assumes that extraneous material was introduced for the consideration of the jury by the words that Mr Littlemore used. 7 It is not in issue that all litigants in a jury trial have the right to have their cases fairly tried, free from bias and prejudice and free from the intrusion of extraneous matters, calculated to cause the jury improperly to arrive at a determination: Croll v McRae (1930) 30 SR 137, at 143. Nor is it necessary for appellants such as the defendants here to establish that the trial actually miscarried by reason of the introduction of the extraneous material: Morgan para 6 at p 212. Rather in this case the questions on appeal appear to commence with the question whether the trial judge was wrong, when he considered that the words used by Mr Littlemore, whilst having an effect which was unfortunate, could have been cured by an appropriate direction. 8 Reading the transcript of what occurred at the trial it seems reasonably clear that the words of the judge, first quoted, constituted a tentative neutrally expressed inquiry by him to Mr Littlemore, whether Mr Littlemore claimed a right to address the jury in reply, and it seems that both counsel quickly became rather heated. With the benefit of hindsight it is regrettable that neither counsel asked his Honour to send the jury from the court room before anything further was said. Be that as it may, the defendants now submit that what Mr Littlemore said using the expressions "so extraordinary" and "so misleading", in the incomplete sentence "We say that the circumstances are so extraordinary, that my learned friend's address was so misleading to the jury that it is necessary ..." contained "a very serious and grave allegation" that was "completely unprovoked." On the other hand the plaintiff made submissions that the words used were justified in the circumstances, and the plaintiff now points to four separate ways in which it is submitted what Mr Wheelhouse had said to the jury in address was misleading. 9 The first question for his Honour to decide was whether the use of the word "misleading" in the context had the dire effect for which the defendants contended, and still contend. It seems accurate to say that at trial the focus was on the word "misleading", whereas in this Court the focus is more upon the compound expression used. Judge Sorby considered that, although the words of Mr Littlemore, and particularly the word "misleading", should not have been used, the consequences could be cured. 10 The defendants submit now, as practically speaking they must do if they are to succeed now, that his Honour misdirected himself by not concluding that the expression, used in its context, could not be cured by an appropriate direction to the jury. In my view the submission fails. As his Honour considered, I consider that the use of the expression, whilst regrettable, could have been cured by an appropriate direction. The context should not be overlooked, nor should one fail to give the context appropriate weight. As is common in jury trials in defamation cases, the addresses on both sides were vigorous and robust. The plaintiff's address prompted an application to discharge the jury and the defendants' address was no less colourful or emphatic. 11 The written submissions of the plaintiff refer to what Brennan J, as he then was, said in Carson v John Fairfax & Sons Limited (1993) 178 CLR 44 at 79, in the context of a strongly contested trial: "Sensitivity about the submissions of counsel in the course of a jury address should not be too sharpened. It must be an extreme case ... in which counsel's address can be seen to have caused a miscarriage of justice." 12 I think it is clear that his Honour did direct himself, notwithstanding the submissions of Mr Wheelhouse now, to the appropriate question. He considered whether or not the trial might miscarry by reason of what Mr Littlemore had said, and he concluded that an appropriate direction would cure the situation. His Honour was, of course, in a better position to judge that than this Court is. 13 The debate before his Honour commenced late one afternoon and resumed the next morning. Initially Mr Littlemore sought, as I read the transcript at least, the right to address the jury in reply. The next day he did not press that application. For a time the focus of the debate was whether what Mr Littlemore had said, had had the effect of depriving the defendants of their lawful forensic advantage of having the right of last address to the jury. That point is considered by some to be a powerful advantage for defendants. In the event the trial judge did consider whether what had been said had a detriment which could or could not be cured, and he concluded that it could be. 14 His Honour also considered that what Mr wheelhouse had said to the jury in his address went too far, in one of the four respects for which Mr Littlemore relied when he made the remark under consideration. That does not seem to me to be very important in the present circumstances, but it is not entirely without weight. Mr Wheelhouse had referred in his address to the jury to the various imputations pleaded, as having different shades of meaning, and as having been pleaded in this way so as to possibly attract a greater award of damages. His Honour considered that these submissions should not have been expressed before the jury, and his Honour seems to have taken this into account to some extent, in coming to the view that something should be said to the jury. I see no error in that regard. Nor do I see any error in his Honour's conclusion that an appropriate address to the jury would have cured any disadvantage that might otherwise have been suffered by reason of what was said by Mr Littlemore. 15 The remaining question is therefore whether the direction given was sufficient in the circumstances. It seems to me to be quite ample for that purpose. I propose therefore that leave to appeal be granted, but that the appeal be dismissed with costs. 16 I would just add one other matter. Reference was made to the decision in Croll where the Full Court had to consider the trial judge's decision declining to discharge the jury. In that case Ferguson ACJ, who was the trial judge, declined to discharge the jury towards the end of a very long trial, saying in substance that it was better in the circumstances to receive the verdict of a jury because that might be the end of the case. That was if I might say so with respect, a very sensible view, but it is a far cry from the circumstances of this case. 17 HODGSON JA: I agree. 18 Mr Wheelhouse accepted the applicability to this case of principles governing the intervention of appellate courts, as set out by Kirby P in Morgan at 213. 19 There may be cases in which the intervention of appellate courts can be more readily justified. In Croll v McRae (1930) 1930 31 SR(NSW) 137, as Brownie AJA has pointed out, the trial judge gave as the reason for not discharging the jury that the case was near its conclusion, and as there might be a verdict for the defendant it was better to let it go on to a conclusion. In those circumstances, in my opinion, and in circumstances such as those, it would be appropriate that the Appeal Court exercise the discretion afresh. 20 This is not such a case, because the trial judge reached a concluded view as to the proper course, not being one based on merely pragmatic considerations. In this case the Court should not intervene unless it reaches the view that the primary judge either actually made an error justifying intervention, or reached a conclusion indicative of such an error. Substantially for the reasons given by Brownie AJA, I do not reach that view. It was open to the primary judge to conclude that there was no real possibility of prejudicial effect that could not be corrected by a direction, and also to reach the conclusion that the direction he gave was appropriate to correct any such possibility, and in my opinion no error has been demonstrated in the way he reached those conclusions. 21 BRYSON JA: I agree. 22 HODGSON JA: So the order of the Court is: 1. Leave to appeal granted, notice of appeal to be filed within seven days. 2. Appeal dismissed. 3. Claimants to pay opponent's costs of the application and 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. 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