John Fairfax Publications Pty Ltd v Rivkin

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, KIRBY, CALLINAN AND HEYDON JJ

JOHN FAIRFAX PUBLICATIONS PTY LIMITED                        APPELLANT

AND

RENE RIVKIN  RESPONDENT

John Fairfax Publications Pty Ltd v Rivkin

[2003] HCA 50

10 September 2003
S353/2002

ORDER

1.   Appeal allowed.

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

On appeal from the Supreme Court of New South Wales

Representation:

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

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

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

CATCHWORDS

John Fairfax Publications Pty Ltd v Rivkin

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

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

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

Defamation Act 1974 (NSW), s 7A.
Supreme Court Act 1970 (NSW), s 102.

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

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

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

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

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

   [1]Hardy, Far from the Madding Crowd, (Claremont Classics 1999) at 183; Herbert, Uncommon Law (Eyre Methuen 1977) at 28.

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" indicates "that the jury has misapplied itself to its task."

16. By special leave, John Fairfax now appeals to this Court against the orders of the Court of Appeal and asks that the order for a new trial of the action be set aside and the verdict entered at the trial be restored.

    Setting aside a civil jury's verdict

17. In determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the case on the basis most favourable to the respondent to the appeal.  The question for the appellate court is not whether the verdict is right or appears to be right but whether in the light of the evidence the verdict shows that the jury failed to perform its duty[2].  As long as the verdict cannot be described as irrational, it must stand[3].  As Else-Mitchell J pointed out in Carr v Sydney City Council[4], an appellate court is not entitled to set aside a jury's verdict because the court regards the verdict "as illogical, unsatisfactory or different from that which it would itself have reached".  These principles apply to appeals in defamation actions as well as to appeals in other common law actions[5]. 

    [2]Mechanical and General Inventions Co v Austin [1935] AC 346; Hocking v Bell (1945) 71 CLR 430 at 498-499; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 227.

    [3]David Syme & Co v Canavan (1918) 25 CLR 234 at 239.

    [4](1963) 80 WN (NSW) 397 at 404.

    [5]Christie v Robertson (1889) 10 LR (NSW) 157 at 160; Ryan v Ross (1916) 22 CLR 1 at 19.

18. Because the issue of libel or no libel is usually a matter of "impression"[6], however, appellate courts set aside jury verdicts on the ground of unreasonableness, even less frequently than they set them aside in other actions.  The need for restraint is heightened by the knowledge that the meaning of a publication and whether it is defamatory depends on whether ordinary reasonable readers would think it had the meaning alleged and, if so, whether that meaning is defamatory.  It is for the jury to say what the words of the publication would mean "to ordinary men and women going about their ordinary affairs"[7]. Juries are more likely than judges to be able to assess the reactions of ordinary reasonable readers. At all events, the collective impression of a jury is more likely to be representative of the community's impression of the publication than the collective impression of a panel of appellate judges, however experienced or learned the panel may be. The New South Wales Parliament has certainly taken that view. In that State, judges decide every issue in a defamation action except meaning and defamation. Given the enactment of s 7A of the Defamation Act, the need for appellate restraint is even greater now than it was in 1990 when Kirby P said "judges must exercise care and restraint in invading the functions reserved by Parliament to juries"[8].

    [6]Lewis v Daily Telegraph [1964] AC 234 at 260 per Lord Reid.

    [7]Lewis v Daily Telegraph [1964] AC 234 at 266 per Lord Morris of Borth-y-Gest.

    [8]Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 88.

19. Occasions for invading the jury's function occur even less frequently when the jury has found that a publication is not defamatory.  Rarely have appellate courts set aside a jury's finding that a publication was not defamatory.  So rarely has it been done that in 1928 in Lockhart v Harrison[9], Lord Buckmaster could say "such cases occur so rarely that within the last century there are only two to which our attention has been drawn in which this power has been exercised."  There have not been many since. 

    [9](1928) 139 LT 521 at 523.

20. It is only when the publication contains a "plain and obvious defamation incapable of any innocent explanation"[10] or where the words are "necessarily"[11] defamatory that an appellate court is entitled to find that no reasonable jury could have failed to find the meaning alleged or that it was defamatory.  As Chief Justice Darley observed in Kelly v Daily Telegraph Newspaper Co[12], if the words of the publication have "any possible construction which can be put upon them, susceptible of an innocent meaning, then the verdict of the jury for the defendants is conclusive and cannot be disturbed."  Hence, an appellate court can set aside a verdict of no libel on the ground of unreasonableness only when the words of the publication are not capable of any but a defamatory meaning[13].  Only when the defamation is "clear and beyond argument"[14] can an appellate court set aside a jury's finding that the publication does not have the meaning alleged or that the meaning alleged is not defamatory. 

    [10]Lockhart v Harrison (1928) 139 LT 521 at 523.

    [11]Geach v Hall (1890) 16 VLR 386 at 389, 391, 392; Blashki v Smith (1891) 17 VLR 634 at 636, 638; Rofe v Smith's Newspapers Ltd (1927) 27 SR (NSW) 313 at 316, PC; Thompson v Truth & Sportsman Ltd (No 1) (1929) 31 SR (NSW) 129 at 134-135.

    [12](1897) 18 LR (NSW) 358 at 361.

    [13]Doyle v McIntosh (1917) 17 SR (NSW) 402.

    [14]Broome v Agar (1928) 138 LT 698 at 702; Cairns v John Fairfax & Sons Ltd [1983] 2 NSWLR 708 at 716-717.

21. Mr Hughes QC, counsel for Mr Rivkin, argued – faintly I thought – that, because the appeal was brought to the Court of Appeal under s 102 of the Supreme Court Act 1970 (NSW)[15], his client "did not have to surmount such a high bar" to have the jury's answers set aside.  Mr Hughes argued that the appeal was "an appeal stricto sensu" and was not comparable with "the common law remedy of motion for a new trial in the exercise of a common law court's supervisory jurisdiction."  The short and obvious answer to these contentions is that the principles to which I have referred have been applied, if they have not been developed, for more than a century by appellate courts hearing appeals under statutory enactments[16].

    [15]"Where, in any proceedings in the Court, there is a trial of the proceedings or of any issue in the proceedings with a jury, an application for:

    ....

    (b)a new trial ...

    shall be by appeal to the Court of Appeal."

    [16]See eg Capital and Counties Bank v Henty (1882) 7 App Cas 741; Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68; Lockhart v Harrison (1928) 139 LT 521; Ryan v Ross (1916) 22 CLR 1.

22. Accordingly, if the articles have rational meanings other than those asserted by Mr Rivkin, the jury's answers to the questions must be upheld and its verdict restored.  Similarly, the jury's answers to any particular question must stand unless the article can have no meaning other than that contended for by Mr Rivkin.

    The tests for meaning and defamation

23. Traditionally, courts have accepted that juries are more likely to find a publication defamatory than a judge.  Lord Devlin famously said[17]:

    "[T]he layman's capacity for implication is much greater than the lawyer's.  The lawyer's rule is that the implication must be necessary as well as reasonable.  The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory."

    [17]Lewis v Daily Telegraph [1964] AC 234 at 277.

24. Consequently, for the purposes of a defamation action, the natural and ordinary meaning of words contains "all such insinuations and innuendoes as could reasonably be read into them by the ordinary man"[18].  Lord Reid said[19]:

    "The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction.  So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs."

    [18]Lewis v Daily Telegraph [1964] AC 234 at 280 per Lord Devlin.

    [19]Lewis v Daily Telegraph [1964] AC 234 at 258.

25. A reader may be acting reasonably even though he or she engages in "a certain amount of loose thinking"[20].  This is because, as Lord Reid also pointed out[21]:

    "The ordinary reader does not formulate reasons in his own mind:  he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it.  But formulated reasons are very often an afterthought."

    [20]Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1163; Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641; Farquhar v Bottom [1980] 2 NSWLR 380 at 386.

    [21]Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1163; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641.

26. However, although a reasonable reader may engage in some loose thinking, he or she is not a person "avid for scandal"[22].  A reasonable reader considers the publication as a whole[23].  Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning[24].  The reasonable reader considers the context as well as the words alleged to be defamatory[25].  If "[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together.[26]"  But this does not mean that the reasonable reader does or must give equal weight to every part of the publication[27].  The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account[28].  Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article[29].

    [22]Lewis v Daily Telegraph [1964] AC 234 at 260.

    [23]Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; Morosi v Broadcasting Station 2GB [1980] 2 NSWLR 418(n).

    [24]Lewis v Daily Telegraph [1964] AC 234 at 259-260.

    [25]Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 at 72, 78; English and Scottish Co-operative Properties Mortgage & Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 at 452.

    [26]Chalmers v Payne (1835) 2 Cr M & R 156 at 159 [150 ER 67 at 68]; Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 at 682, 683-684; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 671.

    [27]Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646.

    [28]Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646.

    [29]Savige v News Ltd [1932] SASR 240; Hopman v Mirror Newspapers Ltd (1960) 61 SR (NSW) 631; Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669.

27. The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party.  The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher[30].  Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it[31].  But, as Griffith CJ pointed out in Ronald v Harper[32], although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not "a rule of invariable application".  The context of the statement may show that it is refuted or undermined by other parts of the publication.  In Bik v Mirror Newspapers Ltd[33], the plaintiff claimed that he was defamed by a report of parliamentary proceedings that disclosed that a witness at a coronial inquiry had alleged that the plaintiff had designed a faulty crane that led to a fatality.  But the report also stated that, in answer to a question, the Minister of Justice "completely cleared"[34] the plaintiff.  The New South Wales Court of Appeal unanimously held that the report was incapable of a defamatory meaning concerning the plaintiff.

    [30]"Truth" (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002-1003.

    [31]Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50.

    [32](1910) 11 CLR 63 at 77.

    [33][1979] 2 NSWLR 679.

    [34][1979] 2 NSWLR 679 at 681.

28. The above principles and considerations are as relevant in determining whether the jury's answers in the present case were reasonable as they are when a court has to consider whether words are capable of a defamatory meaning.  But in a case where the jury has returned a finding of no imputation or no libel, they have less force than in a case where the jury has found the defamatory meaning alleged and pleaded.  They indicate the outer limits of meaning and defamation; they give far less assistance in determining whether the jury was bound to find the defamatory meaning alleged and pleaded.

    The Australian Financial Review article of 21-22 February 1998

29. The Australian Financial Review article, like the two articles in The Sydney Morning Herald, was concerned with the death of Ms Caroline Byrne whose body, according to the articles, was found at the foot of a 30 metre cliff at The Gap "a well-known Sydney suicide spot, almost three years ago."  Mr Rivkin alleged that The Australian Financial Review article contained four imputations.  The Court of Appeal held that it was open to the jury to find reasonably that the article did not have two of the imputations pleaded.  But it held that it was unreasonable for the jury to find that the article did not have the other two imputations pleaded.  Those two imputations were:

    "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;

    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."

    Imputation 1(a)

30. The Australian Financial Review article stated that the Senior Deputy State Coroner had returned an open verdict on Ms Byrne's death "finding that she either jumped, slipped or was pushed from the top of the cliff on the night of June 7, 1995."  The article was headed "It's a BAD BUSINESS".  Above that headline was a drawing outlining a body lying prostrate.  The outline and the heading occupied about 75 per cent of the page. 

31. The article stated that Ms Byrne had been referred to a psychiatrist by her general practitioner two days before her death "complaining of depression, though the doctor stressed at the inquest that she did not feel Byrne was suicidal."  It went on to state that inquiries by The Australian Financial Review raised the possibility that an Australian Securities Commission interrogation of her boyfriend the day before her death may have contributed to her depression.  The boyfriend was identified as Mr Gordon Wood.  The article said that on May 31 1995, Wood and his employer, "high-profile investor Rene Rivkin", had been served with an order by the Australian Securities Commission "to submit to a formal examination by an ASC legal team."  It claimed that the Australian Securities Commission had questioned Wood and Rivkin on 6 June "over the recent trip the two had taken to Zurich, and in connection with its investigation of secret holdings in Rivkin's Offset Alpine Press Group by mystery Swiss investors."  The article said that, during Wood's employment, Mr Rivkin's fortunes were on the rise and that he had controlled Offset Alpine, a public company, since the 1980s.  But it said that, although the company was virtually moribund by 1992, on two occasions since then its share price had been galvanised.  It then stated:

    "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."

32. This paragraph is central to Mr Rivkin's claim that the article contained imputation 1(a).  But the imputation differs in a major respect from the text of the article.  The imputation asserts that the plaintiff's participation in the affairs of Offset Alpine "had diminished his reputation as a sagacious and astute stockbroker".  The jury were entitled to take the view that this imputation meant that, as at the date of the article – 21-22 February 1998 – Mr Rivkin's reputation as a sagacious and astute stockbroker had been diminished by his participation in the affairs of Offset Alpine.  But the relevant paragraph said no more that his reputation as a canny and astute broker had taken a battering in May 1995.  It said nothing as to whether the battering had resulted in any permanent diminution of his reputation.  Moreover, other parts of the article suggested that Mr Rivkin had been cleared of any wrongdoing.  The article expressly stated:

    "No charges were ever laid, and no negative aspersions were ever drawn about any of those investigated by the ASC."

33. The article was also open to the construction that the investigation into Mr Rivkin had been the product of a mistaken communication by Mr Phillip Croll, the Managing Director of his broking house to the Australian Stock Exchange.  The article declared:

    "After the ASC froze the shares on May 3, Croll told the ASC that he had misunderstood the relationship, and that Rivkin did not control the accounts.  'I think you'll find that a little bit of knowledge can be a dangerous thing,' Croll told the AFR on May 9 about his mistake.

    This would have been a tense time for all concerned.  It was difficult for the Swiss companies, which were forbidden by Swiss law from disclosing the real identity of their clients.  It was tense for the real owners of the shares, who were risking the loss of their entire investment to the ASC by instructing the Swiss companies not to name them. 

    It also must 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 a major focus of the ASC inquiry." (emphasis added)

34. Because of these two matters – no reference to permanent diminution and Croll's misunderstanding – it was open to the jury to conclude that the article did not carry an imputation that Mr Rivkin's "participation in the affairs of Offset Alpine Press Group had diminished his reputation as a sagacious and astute stockbroker."  The Court of Appeal's discussion of this imputation was brief.  Grove J said:

    "The argument of [John Fairfax] provided no answer to that of [Mr Rivkin] as it was based upon construction of a selected portion only of the matter complained of."

35. The discussion did not refer to any of the matters to which I have referred as indicating that it was open to the jury to conclude that the article did not bear the imputation alleged.  The Court of Appeal erred in holding that the jury's negative answer to this imputation was unreasonable.

    Imputation 1(b)

36. Imputation 1(b) was cleverly drawn to anchor its content to May 1995.  No doubt that month was chosen because it was during that month that Mr Rivkin – according to the article – was summonsed for a Section 19 examination.  However, the article does not state in terms that the Australian Securities Commission suspected that Mr Rivkin "had engaged in unlawful conduct in connection with the affairs of Offset Alpine Press Group".  And the jury were entitled to reject the proposition that this imputation arose by inference or insinuation.  Immediately after the paragraph stating that "Rivkin's reputation as a canny and astute broker took a battering in May 1995", the article declared that, in the Federal Court on 3 May 1995, the Australian Securities Commission had revealed that the major beneficiaries of Offset Alpine's change in fortune were two Swiss companies.  The article said that those companies "by ignoring Australian reporting requirements, secretly owned 38 per cent of the company, hidden in five Australian nominee companies (which, like Rivkin, were unaware of the size of the total holding)."  Because of this statement, it was reasonably open to the jury to take the view that the Australian Securities Commission had summonsed Rivkin to investigate the circumstances of the Swiss companies and his knowledge of their activities.  The jury were not bound to find that 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".  That was a construction that was open to the jury, but it was not a necessary construction of the article as a whole.  In Lewis[35], Lord Morris of Borth-y-Gest pointed out that it "is a grave thing to say that someone is fraudulent".  It is also "a grave thing to say" that the controller or an officer of a public company has engaged in unlawful conduct in relation to the affairs of that company.  Accordingly, the jury were acting reasonably in refusing to find that the defendant was asserting that the Australian Securities Commission suspected that Mr Rivkin had engaged in unlawful conduct.

    [35]Lewis v Daily Telegraph [1964] AC 234 at 267.

37. The Court of Appeal's reasons do not mention that the article was capable of an innocent construction besides the construction alleged by Mr Rivkin.  Those reasons do not refer to another construction open to the jury – the Australian Securities Commission had summonsed Mr Rivkin to investigate the circumstances of the Swiss companies and his knowledge of their activities.  The Court of Appeal's reasons in respect of this imputation pay insufficient attention to – indeed they do not mention – the principle that an appellate court is entitled to set aside the jury's answers or verdict only when the plaintiff's construction is the only one reasonably open.  The Court of Appeal erred in holding that the jury's answer to question 1(b) was unreasonable.

    The Sydney Morning Herald article of 25 February 1998 

38. On the front page of The Sydney Morning Herald article dated 25 February 1998 was a caption stating:

    "CAROLINE'S WORLD

    AND THE RIVKIN LINK"

    It was accompanied by a photograph of Mr Rivkin smoking a cigar.  The article itself was on page 11 and took up most of the page.  It had a heading "DEATH OF A MODEL".  Above this heading in smaller type were the sentences:  "When the body of Sydney model Caroline Byrne was found at the bottom of The Gap, many who knew her refused to believe it was suicide.  BEN HILLS looks at evidence presented to the Coroner."  The article referred to the Coroner being unable to determine how Ms Byrne had died and that he had left open three possibilities:  "suicide, murder or an accident."  The article declared that there were three theories concerning Ms Byrne's death:  "Suicide; Murder 1; and Murder 2."

39. Suicide was the first theory discussed.  The article mentioned that Ms Byrne's mother had "killed herself with an overdose of drugs and alcohol, apparently as a result of depression".  It said that nine months later:

    "Caroline herself, mourning her mother, tried to commit suicide by taking sleeping pills and lying in a bath full of water.  That attempt failed as (according to Wood) did a later attempt to jump off a building.  Caroline had consulted a psychiatrist and been prescribed medication."

40. It went on to say that:

    "Adding strength to the suicide theory, Caroline went to her GP, Dr Cindy Pan, two days before her death complaining that she had been feeling depressed for a month, and particularly in the previous week.  Pan referred her to a psychiatrist (the appointment was for the afternoon she went missing) saying that the cause of the depression was unknown, but insisting that Caroline had 'no thought of self-harm'."

41. The article also referred to a "14-page posthumous case analysis" by a psychiatrist who declared that, on the evidence of Ms Byrne's father and friends, the risk of her committing suicide was low, that it rose to moderate on Dr Pan's evidence and that it rose to high on Gordon Wood's version of events.

42. Discussion of the Murder 1 theory began by stating that the case had been "written off as just another suicide at The Gap".  But after pressure from Ms Byrne's father, the Coroner had ordered police to re-open inquiries.  The article said that Wood, who had denied ever being near The Gap on the afternoon of Ms Byrne's death, had been identified by two witnesses as one of two men whom they "had spotted [with] a woman with a 'very striking appearance, like a model' walking and chatting with two men" in that area.  The other man was identified as "a Melbourne model-booking agent."

43. The article also said that police and Caroline's relatives were puzzled by Wood's behaviour after he "awoke in front of the TV to find her missing".  He had picked up Ms Byrne's father and her brother and had driven to The Gap "where, after searching for some time, he said he spotted her leg and sandshoe by the weak light of a torch he borrowed from two rock fishermen."  When questioned by police, "he said he had been led to the body by 'some kind of spiritual communication'."  The article said that the Coroner had described Wood's account as a "glaring inconsistency" and had found "'another anomaly' in the way Wood later lied to a number of Caroline's friends, telling them that she had been killed by a car."

44. The article then set out parts of a transcript of an interview between Detective Wyver and Wood that had been tendered as an exhibit at the coronial inquest which "showed one possibility the police were exploring."  According to the article, the interview recorded:

    "Wyver:         Now, I have been informed that on the day of Caroline's death she did not in fact attend work, but she made surveillance of you and in the course of this surveillance she caught you and Rene [Rivkin] having homosexual intercourse.  What can you tell me about that?

    Wood:  Absolute lies.

    Wyver:           OK, 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 you threw her over The Gap.

    Wood:  No, that's not correct, not correct."

45. The article then continued:

    "Wood worked for Rivkin from 1993-96, starting as a 'driver-gofer' and becoming his 'executive assistant'.  He travelled extensively in Australia and overseas with Rivkin, regarded him as 'a father as well as a boss', and was learning about 'stock-markets and trading' from him.  Rivkin bought the apartment Wood and Caroline lived in at Potts Point, and paid for a car, clothes and furniture.

    Wood, who now describes himself as a stockmarket trader, said that he had left Rivkin in 1996 'because I had this dream of getting myself financially set up to take care of Caroline and the family we were planning to have, and when she died that sort of died with her'.

    He said in the interview that Caroline, with whom he was living in what he described as a 'loving, happy relationship', was 'suspicious' of Rivkin.  Asked why, Wood said: '... [Rivkin] used to hang out with a whole stack of people at the cafe which, I am sure, you probably discovered has a reputation for being a hangout for ex-drug dealers ... Joe's Cafe ...

    'Some of Rene's closest cronies are ... have certain criminal backgrounds or are rumoured to have it.  And the fact that Rene is ... has a high degree of interest in good-looking young men ... so she [Byrne] certainly expressed concern about his intentions towards me.'

    But Wood denied he had ever had a homosexual relationship.

    He said in his opinion Caroline had committed suicide by jumping off the cliff.

    Neither Rivkin nor Wood would return telephone calls from the Herald.  Wood was not questioned about this allegation during the inquest, nor was Wyver asked the source of his information.

    Rivkin, who is married with five children, was not called as a witness and did not make a statement to police apart (says Wyver) from a brief 'door-stop' outside one of his haunts, Joe's Cafe in Darlinghurst, several months later when he said he could not recall whether Wood had been driving him the day Caroline died."

46. Finally, the article briefly discussed the Murder 2 theory.  It said that it was the most sinister theory about Ms Byrne's death.  The theory was based on her father's belief that a contract killer had been hired to do away with her.  The article said that her father

    "makes an extraordinary series of allegations about people he claims were behind the murder.  The motive?  She had found out about 'a very serious crime' from which they stood to benefit, and they feared she was about to blow the whistle."

    The last two paragraphs of the article stated:

    "The police investigation did not take into account Byrne's theory, no statements were taken or witnesses called, and [the Coroner] does not mention the allegations in his official finding.

    As far as the police are concerned, Wyver says, the file remains open."

47. Mr Rivkin claimed that the article contained five imputations that were defamatory of him.  He also alleged that if one of the imputations was not made out, the article contained an alternative imputation of lesser gravity. 

48. The Court of Appeal held that, although it was reasonably open to the jury to find that three of the imputations were not made out, the jury had unreasonably found that the other three imputations had not been made out.  Those imputations were:

    "3(a)that the Plaintiff was a person criminally liable in respect of the murder of the late Caroline Byrne;

    ...

    3(c)(ii)that the police had reason to suspect that the Plaintiff had engaged in homosexual intercourse with Gordon Wood;

    (3(d)that the Plaintiff is a close associate of criminals."

    Imputation 3(a)

49. Contrary to the view of the Court of Appeal, it was reasonably open to the jury to find that the article did not contain an imputation that Mr Rivkin "was a person criminally liable in respect of the murder of the late Caroline Byrne."  Indeed, it was open to the jury to hold that there was no imputation that Ms Byrne had been murdered.  The jury were entitled to hold that ordinary people would read the article as meaning no more than that there was a grave suspicion that she had been murdered. 

50. Significantly, the article stated that, after hearing and reading statements from dozens of witnesses including Ms Byrne's father, "examining a cache of forensic evidence and ordering a fresh, more thorough, investigation by the police, the Coroner, John Abernethy, was unable to determine how Caroline Byrne had died."  The article went on to say that the Coroner had "left open three possibilities:  suicide, murder or an accident."  Given this statement, it was open to a jury to conclude that the article contained no imputation that Ms Byrne had been murdered.  A reasonable reader reads the article as a whole.  It is true that such a reader is entitled to give some parts of the article more weight than other parts.  But the jury may have reasoned that, read as a whole, an ordinary reader would conclude that the article was asserting only that Ms Byrne's death gave rise to competing theories of suicide and murder.

51. It is true that the discussion of the Murder 2 theory stated that the belief of Mr Byrne's father was that a contract killer had been hired to do away with her and that an earlier part of the article indicated that her friends believed she was murdered.  But when the article is read as a whole, a jury could reasonably conclude that an ordinary, reasonable reader would not have formed the view that the article as a whole imputed that Ms Byrne had been murdered.  There was a grave suspicion that she had been murdered but the evidence did not establish that she had been murdered.

52. I shall assume, however, contrary to my view, that the jury could not reasonably reject the claim that the article contained an imputation that she had been murdered.  Nevertheless, I cannot see any basis for holding that the jury acting reasonably must have concluded that Mr Rivkin was "criminally liable in respect of the murder of the late Caroline Byrne".

53. The article stated that Mr Rivkin was not called as a witness at the coronial inquiry and did not make a statement to the police apart from a brief interview when he said "he could not recall whether Wood had been driving him the day Caroline died."  The jury were entitled to take the view that ordinary readers would think that it was highly likely that, if Mr Rivkin was even suspected as being implicated in the murder, the Coroner would have called him as a witness.  Because that is so the jury may well have reasoned that an ordinary reasonable reader would not think that Mr Rivkin was "criminally liable in respect of the murder of the late Carolyn Byrne."  If, as it surely is, "a grave thing to say that someone is fraudulent"[36], it is an even graver thing to say that someone is "criminally liable in respect of the murder" of another person.  In the absence of an express assertion to that effect, it is an inference or insinuation that a reasonable reader would draw only if no other reasonable inference was open.  In Mirror Newspapers Ltd v Harrison[37], Mason J pointed out that the "ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty."  Because that is so, this Court held in that case that an ordinary reader would not draw an imputation of guilt from a bare report that a person has been arrested and charged with a criminal offence.  Similarly, the ordinary reasonable reader does not infer that a person is involved in a crime as serious as murder unless the terms of the article point irresistibly to that conclusion.

    [36]Lewis v Daily Telegraph [1964] AC 234 at 267.

    [37](1982) 149 CLR 293 at 300.

54. With great respect to the judges of the Court of Appeal, I have considerable doubts whether imputation 3(a) should have been left to the jury at all.  To find the imputation pleaded, the ordinary reader would have to infer (1) that Ms Byrne was murdered and (2) that Mr Rivkin had a motive for murdering her – because she knew of his homosexuality or financial misconduct.  To find the imputation, the jury would then have to infer from these two inferences that Mr Rivkin either murdered her or was a party to her murder.  However, the course of authority in New South Wales holds that a publisher is not liable for an inference that is derived by drawing an inference from another inference[38].  But assuming that it was open to the jury acting reasonably to find that Mr Rivkin was "criminally liable in respect of the murder" of Caroline Byrne, it seems to me, for the reasons I have given, an impossible proposition to say that the jury were acting unreasonably in refusing to find that the article contained this imputation. 

    [38]TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 687-688; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167.

55. Grove J said:

    "A submission on behalf of [Mr Rivkin] that the article strongly promotes the theory of murder as the cause of death is correct. Added to this is the mention of [Mr Rivkin's] name no less than eleven times in those sections of the article which deal with the theory of murder."

56. Upon this flimsy foundation, the Court of Appeal concluded that "[t]here was no reasonable basis upon which the jury could find that this imputation was not conveyed."

57. At the trial, in the Court of Appeal and in this Court, counsel for Mr Rivkin made much of the fact that his name was mentioned in the article on eleven occasions.  He asked rhetorically what was the point of mentioning Mr Rivkin unless it was to implicate him in the death of Ms Byrne?  The cynical answer may be that, by linking a well-known stockbroker and investor with Ms Byrne, it made the story more newsworthy.  Allegations that Mr Rivkin and Wood had engaged in homosexual intercourse and that Mr Rivkin hung out "with a whole stack of people at the cafe which ... has a reputation for being a hangout for ex-drug dealers" was the sort of irrelevant sensationalism that sells newspaper articles.  So was the statement that some of his "closest cronies are ... have certain criminal backgrounds or are rumoured to have it."  However, whatever the point of introducing Mr Rivkin's name, the articles did not either expressly or by insinuation impute that he was "criminally liable in respect of the murder" of Ms Byrne.

58. The Court of Appeal erred in finding that the jury could not reasonably reject imputation 3(a).

    Imputation 3(c)(ii)

59. Imputation 3(c)(ii) – that the police had reason to suspect that Mr Rivkin had engaged in homosexual intercourse – is obviously built on the statement made by Detective Wyver when interviewing Wood.  However, all that the article said was that Wyver had said he had been "informed that on the day of Caroline's death she did not in fact attend work, but she made surveillance of you and in the course of this surveillance she caught you and Rene having homosexual intercourse."  The detective is then recorded as asking "What can you tell me about that?"  The mere fact that Detective Wyver had been given this information and asked Wood about it does not mean that the jury would be acting unreasonably in holding that it did not mean that "the police had reason to suspect that the Plaintiff had engaged in homosexual intercourse" with Wood.  The imputation that the police had reason to suspect that Mr Rivkin had engaged in homosexual intercourse with Wood means that the police had the impression or tentative belief that Rivkin and Wood had engaged in homosexual intercourse.  It was open to the jury to conclude that a reasonable reader would not infer or insinuate from the detective asking a question on information given to him that he held the tentative belief or impression that the information was true.  Once the information was given to the detective, he was entitled – perhaps bound – to ask the question to see whether it was true and, if so, whether it threw any light on Ms Byrne's death.  But asking the question does not necessarily indicate that he had the mental state which the existence of a suspicion requires.

60. The Court of Appeal's discussion of this imputation makes no mention of these matters.  It appears to assume – erroneously in my opinion – that, in the absence of a statement that Detective Wyver accepted Wood's denial, the reporting of Detective Wyver's question itself conveyed the imputation.  In fairness to the Court of Appeal, its reasoning may reflect the arguments – or lack of them – put forward on behalf of John Fairfax.  Grove J said:

    "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.

    It was submitted on behalf of [John Fairfax] that the publication of the response by Wyver 'OK' 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 'OK' 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."

61. The Court of Appeal erred in holding that the jury could not reasonably reject this imputation.  That Court did not mention that the imputation was made out only if the ordinary reader thought that Detective Wyver had the impression or tentative belief that Rivkin and Wood had engaged in homosexual intercourse.  The Court's reasons contain no analysis of the type of mental state that "the police" had to hold to make out the imputation asserted.  No doubt it was open to the jury to conclude from the asking of the question that an ordinary reader would think Detective Wyver had the relevant impression or belief.  But it was far from a necessary inference.

    Imputation 3(d)

62. Of all the imputations asserted by Mr Rivkin, the imputation that he "is a close associate of criminals" had the strongest basis in what was published.  The article reported Wood as saying:

    "[Rivkin] used to hang out with a whole stack of people at the cafe which, I am sure, you probably discovered has a reputation for being a hangout for ex-drug dealers ... Joe's Cafe ...

    Some of Rene's closest cronies are ... have certain criminal backgrounds or are rumoured to have it."

63. There is little doubt that, if an imputation had been pleaded that closely followed the text of the above quotation, no jury could reasonably reject either it or its defamatory content.  But the imputation pleaded did not follow the text.  It alleged that he was a close associate of criminals.  That obviously meant that his associates were criminals.  But the article did not say that his closest cronies were criminals.  It referred to the cafe as being a hangout for ex-drug dealers and some of Mr Rivkin's closest cronies having "certain criminal backgrounds or are rumoured to have it."  The jury was not acting unreasonably if it held that the article meant only that Mr Rivkin associated with people who had or were rumoured to have a criminal background.  That is a different matter from concluding that his cronies were currently engaged or would, given the opportunity, engage in criminal activity.  Wood's statement was also rather tentative, as the words "are rumoured to have" indicate.  Indeed, the jury may have thought that reasonable readers would conclude that Wood's lack of credibility and his tentative answer alone made it unsafe to infer that Mr Rivkin associated with criminals.  Although it was certainly open to the jury to take the view that the imputation was made out, it was also open to the jury to hold that a reasonable reader would not draw the imputation, as pleaded.

64. In his reasons, Grove J said:

    "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.

    [John Fairfax's] argument to the jury was based upon a flawed assumption that the imputation was alleging that [Mr Rivkin] 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."

65. With great respect, this analysis misses the point.  It was not the meaning of the imputation that was in issue.  It was not a question of whether the imputation alleged that Mr Rivkin was an associate of "active criminals" or whether the imputation drew "a distinction between active and inactive criminals."  The issue was whether ordinary readers would think that the article alleged that Mr Rivkin had associates who were now engaged, or given the opportunity would engage, in criminal activity, that is to say, were criminals.  The existence of a criminal record does not irresistibly point to the conclusion that the person who has that record is a criminal.  There is no rule in the law of defamation or elsewhere that once a criminal, always a criminal.  If ordinary readers thought that the article insinuated that Mr Rivkin's cronies were currently engaged or might become engaged in criminal activity, the imputation was made out.  If they thought that the article meant only that his cronies had or were rumoured to have criminal records – were, for example, ex-drug dealers – the jury could reasonably find that the imputation was not made out.

66. Accordingly, the Court of Appeal erred in holding that the jury's answer on this imputation was unreasonable.

    The Sydney Morning Herald article of 5 March 1998

67. The article of 5 March 1998 was a short report of a television interview with Gordon Wood.  The second paragraph of the article stated that Wood had 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 Mr Rene Rivkin, were 'utter lies'.

    'Utter garbage.  There's absolutely no evidence to support that Caroline had hired anybody or that Rene Rivkin had homosexual sex with me or anybody,' Mr Wood said."

68. The plaintiff sued on four imputations in respect of this article, the most serious of which was:

    "7(a)that the Plaintiff had engaged in homosexual intercourse with Gordon Wood".

69. The jury held that none of the imputations were contained in the article of 5 March, and the Court of Appeal upheld the jury's answers in respect of these imputations.

    An address-in-reply

70. My conclusion that the Court of Appeal erred in finding that the jury had acted unreasonably in respect of certain answers to the questions put to them makes it unnecessary to determine whether, in any event, the Court was correct in ordering a new trial of all questions put to the jury.  As I have indicated, one reason for the Court's order was its conclusion that counsel for the plaintiff should have been given an address-in-reply, a proposition that does not fit well with the common law tradition and practice in civil jury trials.  The rationale for this proposed change in traditional practice is that it is unfair to the plaintiff not to have the opportunity of answering the defendant's arguments concerning the meaning of the article and whether it is defamatory.  But this rationale overlooks the fact that, even in conventional defamation trials, counsel for the plaintiff often does not know what the defendant's counsel will say on the issues of meaning and defamation.

71. It is a fundamental rule of the common law jury trial of a civil cause that, if counsel for the defendant does not call evidence, he or she has the last address. Statutes or Rules of Court may, of course, alter that fundamental rule of the common law. In New South Wales, Pt 34 r 6 of the Supreme Court Rules (1970) gives effect to the common law rule but gives the judge a discretion to alter the order of addresses. It is a discretion, however, that must not be used to negate the general rule. It should be exercised only when the justice of the case requires it.

72. Although a s 7A trial is unique, in principle it does not differ from other civil jury trials in general and more conventional defamation trials in particular. In conventional defamation trials, the defendant often does not call evidence. It is not uncommon for the only evidence in such trials to consist of the plaintiff's evidence, the publication and the circulation figures. Even when the defendant has pleaded fair comment or qualified privilege, its counsel may not call evidence but rely on cross-examination of the plaintiff or his or her witnesses to establish the facts necessary to prove the defence upon which the defendant relies. In all these cases, counsel for the plaintiff must address first and has to rely on his or her wit and intelligence to deal in advance with the arguments that the defendant's counsel may later use. These cases are no different in substance or fairness from the trial under the s 7A procedure.

73. Claims that it is unfair to refuse counsel for the plaintiff an address-in-reply overlook the extraordinary advantage that a skilful counsel, appearing for the plaintiff, gets in the opening address in a defamation trial.  Psychologists take it as a given that selective perception influences our interpretation and understanding of data.  As Scott Plous has pointed out[39]:

    "[I]t is nearly impossible for people to avoid biases in perception.  Instead, people selectively perceive what they expect and hope to see."

    [39]Plous, The Psychology of Judgment and Decision Making, (1993) at 15.

74. Skilled counsel, appearing for the plaintiffs in defamation trials, exploit this and other biases by delaying bringing the contents of the publication to the jury's attention until they have injected the plaintiff's preconceptions and assumptions into the collective mind of the jury.  They begin by discussing the publication in general terms without going to the details.  They plant in the collective mind of the jury an expectation that what they will read will be the imputations for which the plaintiff contends.  Jurors then tend to see in the publication what they expect to see.

75. Most judges allow counsel to discuss the contents of the publication in the opening address on an undertaking to tender the publication when the evidence commences.  Often enough, the publication is tendered and marked as an exhibit during the opening address.  But it is a matter for counsel as to when he or she discusses the contents of the publication with the jury.  If counsel for the plaintiff has exploited the advantage of the opening address, by the time that he or she deigns to discuss the words of the article with the jury, the jury will be ready to read the article with all the preconceptions and assumptions that favour the plaintiff's reading of the publication.  Eradicating the biases, skilfully planted in the collective mind of the jury by counsel for the plaintiff, is no easy task for counsel for the defendant.

76. The real but unstated premise of the complaint of unfairness in counsel for the plaintiff not having an address-in-reply is that in a s 7A trial the jury does not have evidence from the plaintiff as to the falsity of the imputations and the hurt and distress that the publication caused. Because that is so, the jury may assume, unfairly to the plaintiff, that the imputations are true. Falsity and hurt to feelings are, of course, irrelevant to the issues of meaning and defamation in the trial – whether it be a s 7A trial or the conventional defamation trial. But the plaintiff's evidence on those matters usually tends to create sympathy for the plaintiff and sometimes prejudice against the defendant. The s 7A procedure eliminates these advantages for the plaintiff who must conduct the case in the detached – and some would say unreal – atmosphere of a jury trial on documentary evidence.

77. It is unnecessary for me to decide in this case whether this Court should reject so gross a departure from the common law practice and tradition of addresses in civil jury trials as envisaged by the Court of Appeal.  I can only hope that in the meantime that Court will reconsider this departure from a practice and tradition that is now more than 200 years old.

    Conclusions

78. The jury were acting reasonably when they refused to find that the articles conveyed the imputations pleaded.  The Court of Appeal erred in concluding that no reasonable jury could have given the answers that they did.  It follows that the appeal must be allowed and the verdict for the defendant entered by the learned trial judge must be restored.

    Order

79. The appeal should be allowed.  The orders of the Court of Appeal should be set aside.  In their place, this Court should order that the appeal to the Court of Appeal be dismissed with costs.

80. KIRBY J.        This appeal from a judgment of the New South Wales Court of Appeal[40] concerns the law and practice of defamation trials in New South Wales.  By reason of the Defamation Act 1974 (NSW) ("the Act") s 7A, there are special features of such trials, unique to that State[41].

    [40]Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87.

    [41]Noted in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 578-581 [139].

    The facts and relevant legislation

81. Three impugned publications:  The background facts are set out in other reasons[42].  The respondent, Mr Rene Rivkin, sued the appellant, John Fairfax Publications Pty Ltd, in respect of imputations said to have been conveyed to the ordinary reasonable reader concerning Mr Rivkin, and defamatory of him, in three publications of the appellant.  Those publications were The Australian Financial Review of 21-22 February 1998 ("AFR"); The Sydney Morning Herald of 25 February 1998 ("SMH1") and The Sydney Morning Herald of 5 March 1998 ("SMH2"). 

    [42]Reasons of McHugh J at [12]-[16]; reasons of Callinan J at [173].

82. Because the matters complained of are quoted extensively in other reasons[43], I will not repeat them. The appellant did not contest publication. Nor did it dispute that at least one person who had read SMH1 had also read the article in AFR. That concession was relevant to the reliance by Mr Rivkin upon a true innuendo pleaded by him to the effect that those who read SMH1, having read AFR, would have done so with a heightened awareness of the matters previously published, such that the content of SMH1 would thereby have given rise to imputations inculpating Mr Rivkin in the murder of Ms Caroline Byrne ("the deceased")[44].

    [43]Reasons of Callinan J at [174].

    [44]Reasons of Callinan J at [209].

83. A peculiar legal procedure: In accordance with the Act[45], a plaintiff in New South Wales does not sue upon the matter complained of as such.  He or she sues in respect of particular imputations alleged to arise from a close analysis of the publication.  Each established imputation has been held to constitute a separate cause of action[46].  This approach has led to artificiality.  Those complaining about defamatory matter in a publication seek to eke out (often in language different from the publication itself) a multitude of imputations for which the complaining party sues.  The present appeal is far from the worst case of this genre[47]. 

    [45]s 9.

    [46]See Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 190.

    [47]eg Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148-151.

84. No one submitted before this Court that the foregoing approach was wrong. No one suggested that the Constitution implied any limitation or restriction on this procedure or on the respondent's cause of action. Despite the artificiality that it tends to cause – diverting attention from the publication to the lawyer's pleading of the alleged imputations – I shall assume that this is what the New South Wales legislation requires. The problems that have arisen in the present case (as in others) are substantially the outcome of the replacement of what was formerly a comprehensive and intuitive process of jury assessment, taken to reflect community perception of a publication viewed as a whole, by a procedure whereby perception is substantially directed by lawyers towards formulae re-expressed by lawyers and ultimately, for the most part, evaluated and judged by lawyers.

85. In compliance with the foregoing practice, the representatives of Mr Rivkin applied themselves with gusto to the identification of numerous imputations claimed to arise from the three publications in question.  There followed the inevitable pre-trial challenges by the appellant concerning the capability of the publications to give rise to the imputations as pleaded.  There were two interlocutory hearings in the Supreme Court of New South Wales before Levine J.  In a decision in July 1998, his Honour rejected six pleaded imputations alleged to have arisen respectively from AFR and SMH1.  In a further interlocutory decision of September 1998, his Honour struck out four additional pleaded imputations. 

86. By s 7A(1) of the Act it falls to the judge, where proceedings for defamation are to be tried in part before a jury, to determine whether the matter complained of is "reasonably capable of carrying the imputation pleaded by the plaintiff" and "reasonably capable of bearing a defamatory meaning". The section thus recognises a judicial filter. That filter prevents the more imaginative and remote imputations of the pleader from coming before the jury at all. It is important in the present appeal to appreciate (as the judges below would all have done) that Mr Rivkin's imputations had already been subjected to this filter. A number of his imputations had fallen by the wayside. In respect of all of those that remained, Levine J had determined that the matters complained of were reasonably capable of carrying the pleaded imputations and of bearing the defamatory meanings asserted by Mr Rivkin. However, it then remained, in accordance with s 7A(3), for the jury:

    "to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory".

87. In the Court of Appeal, Mr Rivkin pressed a ground of appeal (or application for leave to appeal) against the pre-trial interlocutory rulings of Levine J, claiming that they were too narrow[48].  That ground of appeal was rejected by the Court of Appeal[49].  This Court has not been troubled by such matters.  Their only significance is that they illustrate the hurdles that a person in the position of Mr Rivkin must overcome before having his pleaded imputations considered by the jury.  The contested imputations that the jury considers are not raw and unconsidered.

    [48][2002] NSWCA 87 at [12].

    [49][2002] NSWCA 87 at [151] per Grove J.

88. The attenuated jury trial:  Following the resolution of the interlocutory proceedings (which was no small thing) the limited trial of the matters to be determined by the jury took place between 17 and 23 April 2001 before the primary judge (Simpson J) and a jury of four persons.  There was no oral evidence.  For Mr Rivkin, the three publications were tendered.  The appellant called no evidence.  Remarkably enough, the entire time of the trial was then taken up by the addresses of counsel representing the respective parties.  There followed the charge to the jury by the primary judge. No complaint is made concerning the accuracy of her Honour's instruction to the jury on the law that they were to apply. 

89. At the conclusion of Simpson J's charge, on 23 April 2001, at 11.50 am the jury retired.  At 2.25 pm they returned at the conclusion of their deliberations to announce their answers to the questions left to them concerning the imputations relied on by Mr Rivkin.  As appears in other reasons, the jury found that none of the pleaded imputations was conveyed by any of the matters complained of.  It was therefore unnecessary for the jury to determine whether any of them was defamatory of Mr Rivkin.  Judgment was directed in favour of the appellant.

    The decision of the Court of Appeal

90. Issues in the appeal:  In the Court of Appeal, Mr Rivkin argued, relevantly, two points[50].  The first, variously put, was that the answers given by the jury were appealably erroneous, in the sense that they demonstrated that the jury had acted "perversely" or unreasonably in reaching answers that no reasonable jury could properly have given in the circumstances.  Secondly, Mr Rivkin complained that the primary judge had erred in a procedural ruling at the outset of the trial in refusing his counsel's application for a direction altering the order of addresses so as to permit Mr Rivkin's counsel to address the jury after the address of counsel for the appellant.  That request had been made notwithstanding the fact that the appellant, having called no evidence, would ordinarily enjoy the right of last address to the jury.

    [50][2002] NSWCA 87 at [36].

91. The Court of Appeal unanimously allowed Mr Rivkin's appeal.  It set aside the judgment entered for the appellant.  It ordered that the matter be remitted to the Common Law Division of the Supreme Court for a new trial generally in relation to all of the pleaded imputations upheld by Levine J[51].  The manner in which the Court of Appeal reached these conclusions is described in other reasons[52]. 

    [51][2002] NSWCA 87 at [155] per Grove J; at [1] per Meagher JA; at [3] per Foster AJA.

    [52]Reasons of McHugh J at [15]; reasons of Callinan J at [178]-[182].

92. Approach to jury verdicts:  The principal reasons in the Court of Appeal were written by Grove J.  On the substantive challenge to the appealable unreasonableness (or "perversity" as it was put) of the jury's answers, Grove J acknowledged the particular deference owed to the conclusions of a jury as the "constitutional tribunal" for deciding contested issues of fact[53]; the special respect owed to the jury's answers in defamation actions given the unique legislative preservation of attenuated jury trials in New South Wales in that context[54]; the heavy burden imposed on Mr Rivkin to justify appellate intervention in such a matter[55]; and the various formulae propounded by appellate courts to give effect to the approach of severe restraint ("incontrovertibly wrong"[56], a "decision … such as no jury could give as reasonable men"[57], that the verdict was not "reasonably open" is "clear and beyond argument"[58] and that the verdict is "perverse"[59]).

    [53][2002] NSWCA 87 at [55] per Grove J citing Gatley on Libel and Slander, 9th ed (1998) at 889-890; cf Grobbelaar v News Group Newspapers Ltd [2001] 2 All ER 437 at 487.

    [54][2002] NSWCA 87 at [59] citing Hanrahan v Ainsworth (1990) 22 NSWLR 73 at 88.

    [55][2002] NSWCA 87 at [61].

    [56][2002] NSWCA 87 at [55] citing Evans v Davies [1991] 2 Qd R 498 at 511.

    [57][2002] NSWCA 87 at [55] citing Australian Newspaper Co Ltd v Bennett [1894] AC 284 at 287 and at [56] citing Ryan v Ross (1916) 22 CLR 1 at 22.

    [58][2002] NSWCA 87 at [58], [60] citing Cairns v John Fairfax and Sons Ltd [1983] 2 NSWLR 708 at 716; Broome v Agar (1928) 138 LT 698.

    [59][2002] NSWCA 87 at [54].

93. Although these formulae were criticised by both parties in this Court – the appellant suggesting that they were insufficiently stringent and Mr Rivkin arguing that the reference to "perversity", in particular, went further than the law required – it is clear beyond argument that the Court of Appeal reminded itself that great caution was to be exercised before setting aside the jury's answers after a trial that was otherwise conducted according to law.

94. Grove J then proceeded to address the way in which an "ordinary reasonable reader" would understand the three publications as relating to Mr Rivkin.  With respect to a number of the pleaded imputations relied on by Mr Rivkin, Grove J (with whom on these issues the other judges of the Court of Appeal agreed) concluded that the jury's answers were not unreasonable in the relevant sense.  They could not therefore be disturbed by an appellate court[60].  As an analysis of those imputations, and the conclusions of the Court of Appeal upon them, appears elsewhere, I will not repeat what his Honour said[61]. 

    [60]Jury answers pars 1(c)(i), 1(c)(ii), 3(b)(i), 3(b)(ii), 3(c)(i), 5(b)(i), 5(b)(ii), 7(a), 7(b), 7(c)(i), and 7(c)(ii).

    [61]See esp reasons of Callinan J and the Table set out at [179]-[182].

95. The appellant naturally laid emphasis upon the large number of instances in which the Court of Appeal had concluded that it could not properly disturb the answers of the jury and the fact that all of the answers given in respect of the imputations said to arise from the publication of SMH2 had been upheld by that Court.  Effectively it asked:  if so many of the jury's answers were immune from disturbance, how could others be so wrong?

96. Four unreasonable answers:  The Court of Appeal concluded that some of the answers given by the jury were unreasonable (or "perverse") in the relevant sense.  For convenience those answers may be catalogued as falling into four classes:

    (1)The Offset Alpine imputations (AFR) (Jury answers 1(a) and 1(b));

    (2)The imputation that Mr Rivkin was a person criminally liable in respect of the murder of the deceased.  (SMH1) (Jury answer 3(a));  true innuendo case (AFR and SMH1) (Jury answer 5(a));

    (3)The imputation relating to the suggestion that Mr Rivkin had engaged in homosexual intercourse with Mr Gordon Wood (SMH1) (Jury answer 3(c)(ii)); and

    (4)The imputation that the appellant was a "close associate of criminals" (SMH1) (Jury answer 3(d)).

97. Having concluded that, in these four respects, the jury's answers had miscarried, it became necessary for the Court of Appeal to decide whether to provide relief to Mr Rivkin, specifically whether to order a new trial and, if so, to what extent.  It was in that connection that the Court of Appeal considered two subordinate arguments advanced for Mr Rivkin. 

98. One of these was derived from the "persistently"[62] negative answers to all of the questions asked of the jury on the first issue as well as the relatively short time (less than two and a half hours) of the jury's retirement.  Mr Rivkin submitted that, from these considerations, an inference arose that the jury had "misapplied itself to its task". 

    [62][2002] NSWCA 87 at [112] per Grove J.

99. Grove J was not inclined to attach much significance to the comparatively short retirement of the jury.  He concluded that it was "not open to speculate" about why the jury had returned the uniformly negative answers[63].  However, Foster AJA was more affected by this consideration.  He could not accept that, in such a "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"[64].  He therefore expressed "concern that the verdict was influenced by extraneous considerations"[65].  He cited this concern to reinforce his conclusion in concurring with Grove J's "comprehensive analyses of the evidence and submissions relating to each imputation" and the result that "certain of [the imputations] should be regarded as inevitably established"[66].  The third member of the Court of Appeal (Meagher JA) did not specifically refer to the "short retirement" submission.  However, he expressed agreement with the reasons of both Foster AJA and Grove J.

    [63][2002] NSWCA 87 at [112].

    [64][2002] NSWCA 87 at [7].

    [65][2002] NSWCA 87 at [8].

    [66][2002] NSWCA 87 at [8].

100. Order for a general retrial:  Normally, where, as here, an appellate court upholds an appeal in part, but rejects it in other respects, the relief granted to the partly successful party is confined to those aspects of the appeal upon which that party has succeeded.  It was in this respect that Mr Rivkin's second related submission, concerned with the procedures of the trial, became relevant.  This was supported by a specific ground of appeal argued before the Court of Appeal.  It challenged the interlocutory decision of the primary judge refusing the request for a direction that Mr Rivkin's counsel be allowed to make an opening address and an address in reply at the conclusion of the closing address for the appellant[67]. 

     [67][2002] NSWCA 87 at [36] per Grove J.

101. Before the trial, a letter to the appellant's solicitors had indicated that Mr Rivkin would be seeking such a direction[68]. The proposal was duly advanced and opposed. The primary judge refused it. It was not renewed. On the appeal, however, it was suggested that the course that the trial had then taken (and the inability, in the telescoped s 7A procedures, of Mr Rivkin's counsel to answer arguments of the appellant before the jury) explained the erroneous and uniformly negative answers given by the jury to the questions relating to whether the matters complained of carried the imputations alleged.

     [68][2002] NSWCA 87 at [42] per Grove J.

102. This second factor appears to have influenced the decision of the Court of Appeal to grant a general retrial of all of the imputations upon which Mr Rivkin had sued in the first trial, including those in respect of which Grove J, for that Court, had concluded that (taken alone) the answers were not appealably unreasonable.  Taken together, and considered with the suggested error of the interlocutory ruling on the order of addresses, they were sufficient to persuade the Court of Appeal that the jury had "misapplied itself to its task"[69].  For such a conclusion, the solution in which all three judges of the Court of Appeal ultimately joined was a general order for a retrial.

     [69][2002] NSWCA 87 at [112].

103. Sequence of counsel's addresses: In coming to that conclusion, there were important differences between the reasons of the judges constituting the Court of Appeal about the challenge to the primary judge's refusal to permit Mr Rivkin's counsel a right of reply. Thus, Meagher JA was of the opinion that the issue was governed not by the Supreme Court Rules 1970 (NSW) ("SCR") but by the inherent jurisdiction of the Supreme Court to order its proceedings. He favoured the adoption of a general principle that a plaintiff should have a right of first address and a right of reply.  He expressed the opinion that "[t]he present case illustrates the confusion which results from the failure to accord the plaintiff such a right"[70].  On the other hand, Foster AJA considered that the matter was governed by the Rules of Court[71].  In his view, "rules of universal application" were not the solution.  Least of all, could a rule be propounded permitting a plaintiff both an opening address and a right of reply[72]. 

     [70][2002] NSWCA 87 at [2].

     [71]Pt 34 r 6 SCR.

     [72][2002] NSWCA 87 at [24], [25].

104. The third judge, Grove J, noted earlier interlocutory decisions of trial judges consistent with the approach that had been adopted by the primary judge in the present case[73].  However, he suggested that the inability of a plaintiff's counsel to respond to an argument before the jury, including one that was "tenuous or even silly", was untenable.  He therefore decided that the order of addresses in such trials should be the subject of judicial "regulation", apparently by a universal judicial rule[74]. 

     [73][2002] NSWCA 87 at [46]. The cases include: Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 121 and Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 693.

     [74][2002] NSWCA 87 at [51].

105. Primarily, Grove J favoured a principle that a defendant should address the jury first so that, in that way, the plaintiff was effectively given a right of reply in every case.  But because the other judges in the appeal considered that the plaintiff should normally have the opportunity of first address, Grove J concurred with Meagher JA's opinion on this issue.  He therefore favoured, as a matter of general principle, a procedure whereby "the plaintiff should … subject to discretion, have a right of reply"[75].  As this facility had been denied to Mr Rivkin, and might possibly explain the negative answers to all the questions concerning the capability of the matters complained of to carry the imputations pleaded by the plaintiff, the only orders that would achieve justice in the case were orders for a complete retrial. 

     [75][2002] NSWCA 87 at [53].

188. An even moderately attentive and reasonable, but not unduly suspicious reader of one or more of the articles here, would be bound to ask himself what each or all of them is or are really about:  why is a financial newspaper dwelling and speculating on the "mysterious" death of a young model; what is the "bad" as opposed perhaps to the "sad" business of which the publisher is speaking; why was there so much secrecy; what did Mr Wood and the respondent wish or need to conceal; did the respondent have a motive to procure the death of Ms Byrne; and why are Mr Byrne's allegations given so much prominence?  The repetition of one person's allegations by a newspaper, particularly if accompanied by other, balanced material may not always necessarily carry as an imputation the substance of the allegations, but the fact that an apparently responsible financial and broadsheet publisher has chosen to repeat them may well give them a meaning, credibility and impact that they might not otherwise possess.   

189. The matters that I have just discussed cannot be divorced from a consideration of the question that this Court has to decide, whether the Court of Appeal should have held that the conclusions of the jury on the six imputations which the Court of Appeal found conveyed were ones that no reasonable jury could reject.

190. Counsel for the respondent sought to maintain in this Court the order of the Court of Appeal that there be a retrial on all the imputations although only six of them were held to have in fact been conveyed.  He properly conceded, that although he would urge that such a total retrial was appropriate, he could not, in light of the course that the proceedings had taken, argue that the jury so unreasonably dealt with the nine other imputations not found, that one or more of these should in any event be the subject of a retrial.

191. The result for which the respondent contended therefore was whether there should, as ordered by the Court of Appeal be a retrial on all of the imputations, or on the six found by the Court of Appeal and one other which requires separate treatment.  That does not mean however that the jury's response to all of the alleged imputations is irrelevant.  Indeed that response may well provide an indication of both the diligence and reasonableness, or otherwise, of the way in which the jury undertook their task.  It is for this reason that I propose to give consideration to all of the imputations.  Whether the relatively short duration of the jury's deliberations which Foster AJA in the Court of Appeal thought relevant provides a similar indication, is a matter which I will put aside for the present.

     Imputation 1(a) (Pleading 4(a))

192. The Court of Appeal was correct to hold that the jury's answer in respect of imputation 1(a) was one that no reasonable jury could give.  Paragraph 15 of the relevant article has no other meaning than that the respondent's reputation as a stockbroker, whether as a canny and astute stockbroker, or a sagacious and astute one (and whether rightly so or not) was diminished.  Indeed, the word used, "battering", probably conveys a much stronger imputation than of diminution.  The fact that other parts of the article may go some way towards ameliorating the damage that the paragraph inflicts does not remove the sting contained in it. 

193. Paragraph 15 does not stand alone.  Other parts of the article, for example:  the reference to "slush fund" and the "long-running Offset Alpine saga" in paragraph 9; and the incurring of the large liability for tax, all combine to convey a clear impression of financial ineptitude or worse, in which the respondent as a stockbroker was involved.  The imputation as pleaded did not allege that the diminution in reputation was a permanent one.  Its duration and impact would be matters for the court when it came to assess damages.  So too it was of no consequence that the article may also have said that Mr Croll was mistaken, or the respondent was "cleared of any wrong doing".  It was upon the respondent's canniness and astuteness that paragraph 15 reflected, and not necessarily his probity although that too, taken with the rest of the article, was thrown into question.

     Imputation 1(b) (Pleading 4(b))

194. There is no doubt that the article described and treated the respondent as the controller of the Offset Alpine Press Group ("Offset").  Paragraph 13 speaks of the stripping of Offset in its various incarnations during the period of the respondent's association with it.  There then follows (in paragraph 25) the statement that the respondent became a major focus of an inquiry by the ASC.  These have to be read in the context of other statements in the article:  in paragraph 9, the reference to "secret holdings in Rivkin's Offset Alpine Press Group", "the long‑running Offset Alpine saga", and "where the ASC tried in vain to trace what appeared to function as a $40 million slush fund". (emphasis added)

195. It is important to note the precise words of the imputation.  It refers to June 1995.  The ASC was undoubtedly making inquiries into Offset's affairs.  An important function of the ASC was to unearth, investigate and set in train the punishment of unlawful conduct.  And it was, as the article said, undertaking at least the first and second of those activities with the respondent as its focus.  The ASC then was, as the ASIC now is, an important regulatory authority.  Readers could not reasonably doubt that it would have as its focus in an inquiry persons in respect of whom it believed it had grounds to suspect of unlawful conduct.  The imputation pleaded was not that the respondent had engaged in unlawful conduct.  It was the ASC's reported suspicion of it at the relevant time that was the matter complained of.

196. It was unreasonable for the jury to find that imputation 1(b) was not conveyed.  The Court of Appeal was bound to hold accordingly.

     Imputations 1(c)(i) and 1(c)(ii) (Pleadings 4(c) and 4(d))

197. These imputations can be dealt with together.  Earlier (in the table) I indicated the paragraphs upon which these imputations might be founded.  The Court of Appeal held that the jury's rejection of them could not be said to be unreasonable.  Their only relevance now is what their rejection says of the jury's deliberations, in view of the fact that they were plainly capable of being conveyed, and, in my opinion which cannot be substituted for that of the jury, were conveyed.  The jury's answers certainly suggest that they undertook their task without a full appreciation of its importance and the need for a reasonable degree of diligence in performing it.

     The SMH of 25 February 1998

198. The next imputations are those arising out of the first of the articles in the SMH which bore the headline "Caroline's World and the Rivkin Link".  The headline and the photographs of the persons whom the article discusses are shown, suggestively, in black and white shading.  The language is colourful: "Even at six o'clock on a winter morning, Caroline Byrne would turn heads" (paragraph 1); "Caroline, [Byrne] wrote, was murdered by a contract killer because she knew too much ..." (paragraph 4); "The inquest ... threw more fuel on the bonfire of speculation" (paragraph 4).

199. The name of the respondent is first introduced into the article in paragraph 21.  Later, in paragraphs 34 and 38 it is directly stated (in quoting from a record of interview) that Mr Wood was alleged to have thrown Ms Byrne over the cliff where her body was found following surveillance which resulted in observation of the respondent and Mr Wood engaging in homosexual intercourse.  The article then dwells upon the respondent, his employment of Mr Wood, their travel together, his relationship with Mr Wood as "a father as well as a boss", Ms Byrne's suspicion of the respondent, the respondent's "hang[ing] out with a whole stack of people ... [at] a hangout for ex-drug dealers ... Joe's Cafe" (paragraph 42)  and that "Some of [the respondent's] closest cronies ... have ... criminal backgrounds or are rumoured to have it". (paragraph 43)

     Imputation 3(a) (Pleading 6(a))

200. Even taken with the headline, the passages I have referred to, together with the other matter contained in the article, do not go quite so far as to convey necessarily that the respondent was a person criminally liable in respect of the murder of the late Caroline Byrne.  I would uphold the appeal in relation to this imputation.  The jury was not unreasonable to reject it.  The article is redolent of grave suspicions of murder but does not compel the reader to believe that murder had been committed by the respondent or by the respondent's agency.

     Imputations 3(b)(i) and 3(b)(ii) (Pleadings 6(b) and 6(c))

201. The Court of Appeal held that the jury was not perverse in relation to imputations 3(b)(i) and 3(b)(ii).  I would myself have strongly disagreed with this conclusion, particularly with respect to the second of the imputations.  The headline and the matters in particular to which I have referred in discussing imputation 3(a), and the article overall, in tone and implication, unmistakably I think convey both of these implications.  The words of Lord Devlin in Lewis v Daily Telegraph Ltd[169] are apposite in respect of them:

     "It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt.  It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis.  A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done.  One always gets back to the fundamental question:  what is the meaning that the words convey to the ordinary man:  you cannot make a rule about that.  They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded."

     [169][1964] AC 234 at 285.

202. However, because of the course of the proceedings, my opinion as to these imputations is of no significance, except again, to cast a very grave doubt upon the performance of the jury overall.

     Imputation 3(c)(i) (Pleading 6(d))

203. The Court of Appeal did not decide whether or not the jury erred in relation to this imputation.  In my opinion the jury did err.  The article states in terms that Ms Byrne had "caught [Mr Wood] and [the respondent] having homosexual intercourse".  It is impossible to say that those words did not convey that the respondent had engaged in homosexual intercourse with Gordon Wood.  There is nothing anywhere in the article to correct that assertion.  The fact that it is a repetition of the words of someone else may perhaps lessen its impact but does not change its meaning.  Although this imputation was rejected by the jury, and although the Court of Appeal did not decide whether the jury was correct, it was accepted by the parties that the issue of its conveyance or otherwise remained open in this Court.  Accordingly, I intend to treat it as if it were the subject of a notice of contention.

     Imputation 3(c)(ii) (Pleading 6(e))

204. Equally, the asserted adoption by the police officer of the claim in paragraph 34 apparently earlier made by someone else, coupled with the blunt accusation, albeit again imputed to some other (anonymous) person, necessarily means that the police officer at least entertained the suspicion in question, to the point that he was prepared to put those assertions to Mr Wood.  This imputation was inescapably conveyed.

     Imputation 3(d) (Pleading 6(f))

205. If a person says, as the appellant did in this article, that the respondent frequented a hangout for ex-drug dealers, and that some of his closest cronies have criminal backgrounds, that person is clearly saying that the person in question is a close associate of criminals.  The word "crony" plainly implies both closeness and at least a suggestion of dishonourableness.  The imputation was conveyed and any view to the contrary I would hold to be unreasonable.

     The SMH of 5 March 1998

     Imputation 7(a) (Pleading 9(b))

206. Although the third article records Mr Wood's denial of his having been caught having sex with his boss (the respondent), the flamboyant stockbroker Mr Rene Rivkin, and his description of the allegations as "utter lies" (paragraph 4), the repetition of Detective Wyver's opinion that the evidence given at the inquest indicated that Mr Woods told lies, is certainly well capable of conveying an imputation that Mr Woods had engaged in sexual intercourse with the respondent.  I would have held that it was in fact conveyed, but again my view can have only the limited relevance that a similar view that I hold in relation to some of the other rejected imputations has.

     Imputation 7(b) (Pleading 9(b))

207. For the same reasons as I have stated for my opinion about imputation 7(a), I would reach the same conclusion with respect to this imputation.

     Imputations 7(c)(i) and 7(c)(ii) (Pleadings 9(c) and 9(d))

208. Paragraph 4 of the third article says, almost in terms, despite Mr Wood's denial of it, that surveillance commissioned by the late Ms Byrne had lead to the revelation to her, of a matter which she then had reason to believe, of the engagement by the respondent with Mr Wood in homosexual relations.  This I would have thought necessarily conveyed the pleaded imputations.  The jury and the Court of Appeal were however of a different mind.

     The AFR of 21-22 February 1998 and the SMH of 25 February 1998

     True innuendo

209. I turn now to the true innuendo case.  The substance of this case is that those who read both of the first two articles would have had a heightened suspicion and a greater awareness of the facts and circumstances as they were being stated and implied by the appellant.  In reading and reflecting on, no matter how briefly, the two articles as a composite, a reader would be left with the impression that suicide by Ms Byrne was unlikely because her body was found some distance from the base of the cliff; that the references to the respondent, particularly to his association at Joe's Cafe with his cronies who had criminal backgrounds, and that Ms Byrne possessed embarrassing information about the respondent, that is, information relating to serious crime as referred to in the article in the AFR.  All of this, it is submitted by the respondent, is necessarily to implicate him in the crime of murder.

     Imputation 5(a) (Pleading 7(a))

210. Having regard to my understanding of the two articles I might well have inferred the imputation alleged.  I cannot say however that it would be beyond reason for an ordinary reader to take a different view falling short of the imputation alleged, that there was a possibility of the respondent's involvement, that there was reason to entertain a strong suspicion of the respondent's involvement but these are not the imputations pleaded here.  I would disagree therefore with the holding of the Court of Appeal that the jury's negative answer on this imputation cannot be sustained.

     Imputations 5(b)(i) and 5(b)(ii) (Pleadings 7(b) and 7(c))

211. Again I think I would have reached a different conclusion on these two imputations, particularly the latter, from both the jury and the Court of Appeal.  My view can only however have the limited relevance to which I have referred.

     The disposition of the appeal

212. For the reasons that I have given it is plain that the jury both misunderstood the nature of their task and acted unreasonably.  This was so, in my opinion, in respect of all of the imputations except those alleging criminal liability on the part of the respondent for the murder of Ms Byrne.  The consistent and undiscriminating rejection of all of the imputations is astonishing.  Perhaps the jury believed, or thought they knew something of the respondent.  If the appellant was correct to describe him as it did, as a celebrity, perhaps his presence in the public eye may have told against him.  Who knows?  It is pointless to speculate.  True it is that a jury's verdict is inscrutable, but inscrutability cannot be used as a mask for unreasonableness.

213. The argument of the appellant in the Court of Appeal for the complete retrial ultimately ordered by the Court of Appeal, and the maintenance of that entitlement by the respondent in this Court, is based on the fact of the jury's unreasonableness throughout. The argument does have force. In the end however, I do not think that an appellate court should make such a far reaching order in respect of a jury's answers. The counsels against substitution of a judge's opinion for those of a jury, especially in the performance of the latter's duty under s 7A of the Act should be heeded. I am not prepared to accede to the respondent's submission that there should be a complete retrial.

214. I remain of this view notwithstanding that the jury deliberated for only two hours before reaching their verdict.  Whilst such a short retirement to answer so many questions inspires little confidence, it cannot, particularly in light of the fact that counsel had beforehand addressed them at some length, and that they were directed by the trial judge as to their duty, provide a basis for the complete rejection of the jury's answers.

215. The only other matter (apart from costs) is the order of addresses.  The traditional rules relating to ordinary common law trials are these[170]. If the defendant has called or tendered evidence, the defendant should address first. If the defendant has not called or tendered evidence, the plaintiff should address first. Replies, if any, should be strictly limited to the correction of misstatements of facts. Except for the last matter and a general discretion which has been left to the trial judge, these rules have substantially been adopted in New South Wales. Part 34 r 6 of the Supreme Court Rules provides as follows:

     [170]Phipson on Evidence, 10th ed (1963) at 65-66 [125]-[127].

     "[34.6] Conduct of the trial

     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."

216. The discretion exercised by the trial judge has not been shown to have been erroneously exercised.  The trial judge made no error, particularly as there was nothing in the respondent's address to correct, in refusing the appellant a right of reply.

217. The appellant succeeded in relation to imputations 3(a) (6(a) as pleaded) and 5(a) (7(a) as pleaded).  The appeal should be upheld as to that extent.  A retrial should however be ordered in respect of imputations 1(a) (4(a) as pleaded), 1(b) (4(b) as pleaded), 3(c)(i) (6(d) as pleaded), 3(c)(ii) (6(e) as pleaded) and 3(d) (6(f) as pleaded) for the reasons I have given.  I would make orders accordingly.

218. Because both parties have had their successes and their failures in this Court I would make no orders as to costs.

219. HEYDON J.   I agree with the conclusions of Callinan J in relation to imputations 1(a), 1(b), 3(a), 3(c)(ii) and 3(d) for the reasons he gives.

220. I also agree with his conclusions on imputation 3(c)(i) for the following reasons.  Imputations 3(c)(i) and (ii) were left to the jury as alternatives.  The Court of Appeal held that "at least the alternative pleaded as imputation 3(c)(ii) had been made out".  However, the Court of Appeal did not decide one way or the other whether the jury had been unreasonable in not concluding that imputation 3(c)(i) was conveyed.  Since imputation 3(c)(i) is more serious than imputation 3(c)(ii), there could be some practical importance in deciding the question which the Court of Appeal left undecided.  I agree with Callinan J's reasons for concluding that the words of the article conveyed the imputation and that the jury behaved unreasonably in not so finding.

221. The written submissions of the respondent did not seek a ruling from this Court on the reasonableness of the jury's finding on imputation 3(c)(i).  Since the Court of Appeal's orders gave the respondent a new trial on that imputation, together with all the other imputations, it would have been inappropriate for the respondent to have filed a Notice of Cross Appeal:  there was no order which the respondent was seeking to disturb.  However, had the respondent intended to raise the point from the outset, a Notice of Contention was necessary.  Despite the absence of any relevant Notice of Contention, it became common ground in argument in this Court that this Court was at liberty to reach a conclusion about imputation 3(c)(i).  The parties reached that common ground in the following way.  Counsel for the respondent argued in this Court that since the Court of Appeal had not upheld the jury conclusion on imputation 3(c)(i), but merely left its reasonableness undecided, it was open for the respondent to seek a new trial on that imputation even if the wider argument that he should have a new trial on all the imputations on which the Court of Appeal had agreed with the jury failed.  In the address in reply of counsel for the appellant, it was contended that imputations 3(c)(i) and (ii) were "[m]utually exclusive alternatives".  That is correct in one sense but not another.  The document containing "Questions for the Jury" contained the following note after question 3(c)(ii):  "Answer (c)(ii) only if you have answered (c)(i) 'No'.  Do not answer (c)(ii) if you have answered (c)(i) 'Yes'."  Hence an affirmative answer to question 3(c)(i) was exclusive of any answer to question 3(c)(ii).  But the fact that the Court of Appeal thought question 3(c)(ii) could only have been answered "Yes" left open the issue whether question 3(c)(i) could only have been answered "Yes".  A little later counsel for the appellant indicated opposition to a suggestion that this Court could examine the merits of the Court of Appeal's reasoning in relation to all of those imputations which they held the jury had rightly rejected.  Counsel for the respondent then said he did not support the suggestion.  Counsel for the appellant in turn responded by observing that that spared him saying anything about imputations 3(c)(i) and (ii) beyond a submission he made about imputation 3(c)(ii).  Shortly thereafter counsel for the respondent indicated that his disclaimer of any invitation to examine the correctness of the Court of Appeal's agreement with the jury on the imputations it rejected did not apply to imputation 3(c)(i).  Counsel for the appellant then said that the relevant paragraph of the Court of Appeal's reasons was "expressed in such a way that we would accept that my learned friend may raise that point".  That consensus between the parties obviated the need for any notice of contention about imputation 3(c)(i).

222. The complaint of the respondent about the trial judge's failure to grant leave to the respondent to have an address in reply should be rejected on the ground that, assuming there was power to permit an address in reply, nothing calling for the exercise of that power in a manner favourable to the respondent was pointed to. While it was reasonable for the parties and the trial judge to debate, at the start of the trial, whether the respondent could have an address in reply, the best time to judge when an address in reply is needed is immediately after the close of the address to which it will be a reply. Most "replies" are abuses of process, being only rehashes of what was said in the address-in-chief: a true reply is one which is needed to deal with fresh matter raised in the address to which the reply is directed, and thereby to reduce the risk of injustice. In particular, a reply is needed, if there is power to permit it, where the party seeking to reply would be materially prejudiced without it. A judgment by counsel who might deliver a reply or by the court on questions of injustice and prejudice depends on what the address being responded to contained. The respondent did not submit to the trial judge or to this Court that there was anything prejudicial in the appellant's address to the jury. The respondent did not point to anything which could or should have been said in any address in reply. Accordingly, the present occasion is not a suitable one on which to deal definitively with the existence of any right to an address in reply in cases under s 7A of the Defamation Act 1974 (NSW).

223. I agree with Callinan J's conclusion that the retrial should be limited to imputations 1(a), 1(b), 3(c)(i) and (ii) and 3(d).  I do so for one narrow reason.  While there were features of the jury's performance about which the Court of Appeal was rightly troubled, in a case where the articles taken separately or together were not without complication, where the imputations were numerous and subtle and where there has been considerable diversity of judicial opinion as to what findings should have been made about whether particular imputations could or should have been conveyed, it cannot be inferred either from the universality of the jury's rejection of the imputations or the period of time for which the jury retired or any other circumstance of the case that the jury mistook or failed to perform its function to so great an extent that a retrial should be ordered on all the imputations.  It does not follow from the fact that error has been specifically demonstrated in relation to some imputations that it should be inferred from others. 

224. The question whether the authorities which make it difficult for appellate courts to interfere with jury verdicts can stand with s 102 of the Supreme Court Act 1970 (NSW) should be left for another occasion. A full examination of the question would call for analysis of past authorities in the light of the language of the statutory enactments regulating appeals in force at other times in both New South Wales and other places. It is unnecessary to undertake that extensive inquiry in this case, because the outcome could not be different whatever the answer to the question.

225. I favour the following orders:

     1.        The appeal is allowed.

     2.There is to be a new trial on imputations 1(a), 1(b), 3(c)(i) and (ii), and 3(d).