John Fairfax Publications Pty Ltd v Rivkin

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,McHugh J,Kirby J,Callinan J,Heydon J
• Judgment Date: 10 September 2003
• Neutral Citation: 2003-0910 HCA A,[2003] HCA 50
• Docket Number: S353/2002
• Date: 10 September 2003

[2003] HCA 50

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Kirby, Callinan and Heydon JJ

S353/2002

John Fairfax Publications Pty Limited

Appellant

and

Rene Rivkin

Respondent

Representation:

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

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

Defamation Act 1974 (NSW), s 7A.

Supreme Court Act 1970 (NSW), s 102.

John Fairfax Publications Pty Ltd v Rivkin

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

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

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

ORDER

1. Appeal allowed.

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

1 Gleeson CJ. The facts are set out in the reasons for judgment of Callinan J, with which I agree. I would make the following additional observations.

2 The issue before the Court of Appeal was fairly expressed in the notice of appeal to that Court as being whether each of the answers given by the jury to the questions submitted was an answer that no reasonable jury properly directed could have given. It is not uncommon, and not inappropriate, for judicial reference to such an issue to be accompanied by admonitions intended to remind appellate courts of a need for restraint. Sometimes such restraint is said to be necessitated by a practical consideration: juries, unlike trial judges sitting alone, do not give reasons for their decisions, and their decisions are, to that extent, unexaminable. Sometimes it is said to reflect deference to the constitutional role of the jury, and to its representative function. In defamation actions in New South Wales, that function is now considerably restricted, but at least it survives to the limited extent exemplified in the present appeal. It is to the practical consideration that I wish to return.

3 Comments about the difficulty of challenging a jury's decision are often made in a context in which the jury has returned a single inscrutable verdict. That is not quite the present case. Here the jury gave answers to a number of questions. In each case, the question was divided into two parts: whether the matter published by the appellant of the respondent conveyed a certain imputation; and, if so, whether the imputation was defamatory. The jury returned a negative answer to the first part of each question.

4 As the reasoning of the Court of Appeal demonstrates, the strength of the respondent's case in relation to the alleged imputations varied. The most serious alleged imputation was that the respondent was criminally liable in respect of the murder of a young woman whose body was found at the base of a cliff. The finding that the matter published did not convey that imputation was reasonably available to the jury. The articles treated the whole matter of the young woman's death as a mystery. The possibility that she was the victim of homicide, was presented as an open question. It appeared from the articles that the respondent had never even been questioned by the police about the matter. On the other hand, the jury's answer in relation to another of the imputations presents a challenge even to the most adroit rationalisation.

5 One of the publications, in the course of paragraphs bearing the headline ‘Death of a Model’, reported an unqualified and uncontradicted assertion that the deceased was suspicious of the respondent because he ‘used to hang out with a whole stack of people at [a] cafe which … has a reputation for being a hangout for ex-drug dealers … [and] [s]ome of [the respondent's] closest cronies are … have certain criminal backgrounds or are rumoured to have it’. The pleaded imputation was that the respondent was a close associate of criminals. The negative answer to the question whether the matter published conveyed that imputation is, to use a familiar simile, like the thirteenth stroke of a clock: not only wrong in itself; but such as to cast doubt on everything that went before 1.

6 While the same test is to be applied to each answer - whether it was an answer that no reasonable jury properly directed could have given - restraint on the part of an appellate court is likely to wane when one of the answers is of that quality. When an appellate court is reviewing a trial judge's findings of fact, it may conclude that a particular finding is so glaringly improbable that the level of scrutiny to which all the findings are to be subjected should be intensified. Put another way, the benefit of a doubt that might be given to a trial judge's findings in one context might be forfeited in another. The same may happen if, because a jury has answered a number of questions, there is a better than usual opportunity to assess its form.

7 It does not follow, however, that it is unnecessary to deal with the appellate challenge, on its merits, in the case of each individual answer. In the present case, the Court of Appeal so completely lost confidence in the manner in which the jury addressed its task that the Court concluded that there should be a new trial on all questions. That was partly because the Court of Appeal took a more favourable view of some aspects of the respondent's case than I would take. What is said above in relation to the murder imputation is an example.

8 I agree that there is no basis for interfering with the trial judge's discretionary decision as to the order of address by counsel.

9 I agree with the orders proposed by Callinan J.

10 McHugh J. The principal issue in this appeal is whether the Court of Appeal of the Supreme Court of New South Wales erred in holding that no jury could reasonably find that two publications sued upon as being defamatory of the plaintiff did not contain certain imputations concerning him. If the Court of Appeal did not err in so holding, a second issue arises. It is whether that Court erred in holding that there should be a general new trial concerning all imputations pleaded in respect of those articles and another article even though the Court held that the jury acted reasonably in finding that the articles did not contain many of the imputations pleaded.

11 In my opinion, the Court of Appeal erred in holding that no reasonable jury could find that the two articles did not contain the relevant imputations.

Statement of the case

12 Rene Rivkin, ‘a stockbroker, a company director and a prominent member of the business and financial community in Australia’, sued John Fairfax Publications Pty Limited for damages for defamation in the Supreme Court of New South Wales. He sued on three separate publications. The first was an article in The Australian Financial Review dated 21-22 February 1998. The second was an article in The Sydney Morning Herald dated 25 February 1998. The third was an article in The Sydney Morning Herald dated 5 March 1998.

13 He alleged that each of these articles, in their natural and ordinary meaning, contained defamatory imputations against him. He also alleged that the article of 25 February 1998 had an extended meaning (a true innuendo) to those persons who had read The Australian Financial Review article. John Fairfax admitted that it had published the articles and that at least one person who read the article of 25 February 1998 had also read The Australian Financial Review. But it denied that the articles contained the imputations that Mr Rivkin alleged or that the imputations were defamatory.

14 In accordance with the requirements of s 7A of the Defamation Act 1974 (NSW), a jury was empanelled and asked to answer a series of questions as to whether the articles contained the imputations alleged and, if so, whether they were defamatory. Because of the limited role of the jury in such a proceeding, no oral evidence was called. Indeed, the only evidence before the jury were copies of the three articles. After a retirement of two hours, the jury held that Mr Rivkin had not established that any of the articles contained any of the imputations alleged. It made no findings as to whether or not those imputations were defamatory, if they had been made. As a result of the jury's answers, the trial judge entered a verdict for John Fairfax.

15 Mr Rivkin appealed to the Court of Appeal of New South Wales against the entry of the verdict for John Fairfax. His principal ground of appeal was that ‘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.’ The Court of Appeal (Grove J, with whom Meagher JA and Foster AJA agreed) held that nine answers given by the jury were reasonably open to them but that no jury could reasonably have given six of the answers. Despite finding that nine of the jury's answers were reasonable, the Court ordered a new trial on all questions. It did so for two reasons. First, the Court held that Mr Rivkin's counsel should have been given a right of reply to the address of counsel for John Fairfax. Secondly, it held that the ‘constant rejection of the cause of a litigant in many cases in defiance of reasonableness’...