Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279 (30 August 2005)

CITATION: Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279

FILE NUMBER(S):

40678/04

HEARING DATE(S): 22/04/05

JUDGMENT DATE: 30/08/2005

PARTIES:

Yoon Shin Lee (Appellant)

Bob Chae-Sang Cha (Respondent)

JUDGMENT OF: Handley JA Bryson JA Campbell AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 5376/02

LOWER COURT JUDICIAL OFFICER: Gibson DCJ

COUNSEL:

Mr J Wheelhouse SC (Appellant)

Mr C Dibb (Respondent)

SOLICITORS:

Banki Haddock Fiora (appellant)

Carroll & O'Dea (Respondent)

CATCHWORDS:

Defamation - Discharge of jury - Whether counsel's address entitled the trial judge to discharge the jury - Adoption - Whether error of discretion - Appeal dismissed.

LEGISLATION CITED:

Defamation Act 1974 (NSW) s7A, 9

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40678/04

DC 5376/02

HANDLEY JA

BRYSON JA

M W CAMPBELL AJA

Tuesday 30 August 2005

YOON SHIN LEE v BOB CHAE-SANG CHA

Judgment

1 HANDLEY JA: I have had the benefit of reading the judgment of Campbell AJA in draft and I agree with his reasons and the orders proposed.

2 The appellant published the first matter complained of, the full text of an auditor’s report into the affairs of the Year 2000 Sydney Olympic/Korean Supporting Committee in its newspaper without comment or qualification. Apart from the bare fact of publication, strictly the republication, of the report in the appellant’s newspaper, there was nothing in the context which could be reasonably considered an adoption of the report but neither was there any material which removed or qualified the imputations it conveyed.

3 I agree with the judgment of McColl JA in John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 para 98 which is part of a longer passage quoted by Campbell AJA that:

“... the question whether the publisher of defamatory hearsay has ‘adopted’ [it] is irrelevant to ... whether the republisher is liable for defamation.”

4 This principle is deeply embedded in the law of defamation. At common law the judgments of courts attracted absolute privilege and the republisher of such a judgment had the benefit of qualified privilege. In other words the republisher of a court judgment who did not adopt it in any way had nevertheless published any defamatory imputations in it and would be liable in damages for that publication if he was guilty of malice.

5 In the same way a newspaper which publishes a letter to the editor without adopting its views publishes any defamatory imputations in it but has the benefit of derivative defences of fair comment and qualified privilege: Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503; Telnikoff v Matusevitch [2002] 2 AC 343, 354-5; Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309; Bass v TCN Channel 9 Pty Ltd (2003) 60 NSWLR 251, 263. There are other examples.

6 For most practical purposes a person who republishes a libel can only escape a finding of publication of the defamatory imputations in it if he has added further material which refutes or undermines those imputations. See John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657, 1661-2 per McHugh J quoted by McColl JA in Obeid [para 97], quoted by Campbell AJA [para 96].

7 I see no basis for interfering with the judge’s discretion to discharge the jury. Accordingly the appeal should be dismissed with costs.

8 BRYSON JA: In a passage in the address of Mr Wheelhouse SC to the jury, Mr Wheelhouse told the jury that his client Mr Lee was not one of the Committee members referred to in the publication: See para [51]. Mr Wheelhouse’s client was Mr Yoon Shin Lee, who is the third defendant. Mr Han Yong Lee is referred to in the publication. Mr Wheelhouse told the jury that his client was a different Mr Lee to the person named Lee referred to in the publication. In saying this Mr Wheelhouse was not restating the effect of any evidence.

9 It has never been suggested that what Mr Wheelhouse said in this passage was not accurate. For Mr Wheelhouse to say what he said in this passage was, in my opinion, quite correct behaviour if it was true. It has long been commonplace, in my experience, for counsel to tell juries who the parties to litigation are, to state their names and point out who they are and where they are in the Court room, without supporting evidence. If what counsel says in this way is accurate it is only useful and is not open to censure. The circumstance that two different Koreans named Lee were in some way involved made the occasion a suitable one for pointing out that they were different persons. In other respects Mr Wheelhouse’s address to the jury led to its discharge; these included his asserting without evidence that the auditors plainly had no relationship with the newspaper; but making clear that his client was not the same person as the Mr Lee referred to in the publication was not a ground for such action.

10 Except that I make the preceding observations, which are not important for the outcome, I agree with M W Campbell AJA.

11 CAMPBELL AJA: This is an application for leave to appeal heard concurrently with the appeal. Leave to appeal was granted at the conclusion of the oral hearing.

12 The case concerns the question whether the trial judge, Gibson DCJ, was correct to accede to the respondent’s application that the jury be discharged made during final address by counsel for the appellant at a hearing pursuant to s 7A of the Defamation Act 1974 (NSW) (the Act).

Statement of the Case

13 The respondent was in 2001 the publisher and proprietor of a Korean language newspaper known as the Sydney Korean Herald.

14 The edition of that newspaper published on 1 March 2001 contained material an agreed English translation of which is set out in Schedule A to this judgment.

15 The edition of that newspaper published on 9 March 2001 contained material an agreed translation of which is set out in Schedule B to this judgment.

16 The edition of that newspaper published on 16 March 2001 contained material an agreed translation of which is set out in Schedule C to this judgment.

17 The originals in the Korean language were tendered and before the jury. The points Mr Wheelhouse made in address as to their appearance and layout appear fairly from his address, portions of which are set out later. No issue in the case requires that I describe those features further.

18 The appellant, who was until 21 March 2001, the President of the Year 2000 Sydney Olympic Australian-Korean Supporting Committee (“the Committee”) sued the respondent in respect of the three matters complained of. He also sued six other defendants in relation to a total of 14 publications.

19 Following various interlocutory hearings a jury trial to deal with the issues required under s 7A to be determined by a jury commenced on 19 July 2004.

20 So far as relevant s 7A provides as follows:

“7A Functions of judge and jury

(1) .....

(2) .....

(3) If the court that:

(a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and

(b) the imputation is reasonably capable of bearing a defamatory meaning,

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

(4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is:

(a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and

(b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.

(5) .....”

21 With seven defendants and 14 publications the course was followed of swearing in one jury and then putting the matters at issue to that jury in convenient groups referred to as Schedules. The jury was called upon to hear the evidence, submissions and summing up and then to answer the relevant questions in respect of each Schedule.

22 After four sets of questions had been answered by the jury the group the subject of this appeal came forward for hearing. It involved a departure from the earlier procedure in that a number of aspects were heard together and there were two sets of questions.

23 Mr Dibb of Counsel appeared for the respondent, the plaintiff below, Mr Hughes of Counsel appeared for Jae Kyung Lee, the publisher of Top Korean News in Australia and the second defendant below. Mr Wheelhouse of Senior Counsel appeared for Yoon Shin Lee the publisher of the Sydney Korean Herald and the third defendant below. Mr Weaver of Counsel appeared for Hak Joo Park and Han Yong Lee, the authors of the material relied upon and the fourth and fifth defendants below.

24 Although there is a further publication the appeal can be dealt with on the basis of the three publications referred to earlier.

25 The two sets of questions were initially submitted to the jury. One in respect of the second, fourth and fifth defendants was in conventional form. The relevant question in respect of the publication of 1 March 2001 reads as follows:

“Has the plaintiff established that the sixth matter complained of (Exhibit M) in its natural and ordinary meaning, conveyed to the ordinary reasonable reader able to read and understand the Korean language any of the following imputations, or imputations not substantially different from them .....”

26 The questions in respect of the third defendant were drawn by Mr Wheelhouse and consented to by Mr Dibb. The relevant question in respect of the publication of 1 March 2001 reads as follows:

“Has the plaintiff established that the third defendant, Mr Yoon Shin Lee, by publishing exhibit “M-1” [an item entitled “Year 2000 Sydney Olympic Australian Supporting Committee Audit Result”] conveyed to the ordinary reasonable reader able to read and understand the Korean language any of the following imputations (or imputations not substantially different from them): ........”.

27 The proposed questions in respect of the later publications were of a similar nature although framed to deal with the specific terms of those publications.

28 Mr Dibb, who conceded that at the time he had agreed to the form of the questions he had not anticipated the issue Mr Wheelhouse proposed to raise, became concerned that the questions might raise an issue as to publication. Accordingly, an additional set of questions dealing with publication were later put to the jury. There was considerable skirmishing as to this matter to which I do not need to go. A sufficient account of this aspect appears from portion of her Honour’s judgment set out hereafter at [85].

29 After tendering the relevant documents Mr Dibb addressed the jury. Mr Hughes then addressed the jury submitting, in short, that the claimed imputations were not carried by the material complained of. He also submitted that some, although not all, of them were not defamatory.

30 Mr Wheelhouse then addressed the jury. After dealing with some general matters Mr Wheelhouse informed the jury that apart from matters similar to those put or to be put by Mr Hughes and Mr Weaver he would be putting an argument “unique to me”, that is, to the case of the third defendant.

31 He later said:

“Members of the jury, the reason why the third defendant’s position is a little out of the ordinary is that these publications, members of the jury, are not reports or arguments in the usual newspaper sense. They are in the clearest way – and this is the way they are presented to the ordinary reasonable reader – reports of auditors. Of course, the auditors are the fourth and fifth respondents for whom Mr Weaver appears.”

32 Mr Wheelhouse then invited the jury to answer “yes” in relation to the preliminary questions as to publication in respect of each of the imputations relied upon against the third defendant.

33 He then told the jury that he would go back to “the nitty-gritty of what the case is about from my client’s point of view.” He read them question 1 and said that his address would be directed to that question and similar questions in relation to the other publications.

34 Having referred to publication, as to which there was no issue, Mr Wheelhouse then said:

“Secondly, Mr Cha must prove that Mr Lee, by the matter, that is to say by the reports that he sued upon, carried to the ordinary reasonable reader of the Korean language the imputation alleged or ones not substantially different from them.

---------

Essentially, members of the jury, Mr Lee denies that by each of the reports he made the imputations alleged. He says that each of the imputations that Mr Cha alleges is in effect a direct charge against him, Mr Cha. Mr Lee says he did not by the publications make the charge because the reports or by the reports he did not adopt or endorse in any way the allegations made by others in those reports. (The emphasis is mine).

Now the question is from the third defendant’s perspective, does each of the reports carry the imputations alleged? We say, members of the jury, that even though the publication is in the Korean language, and you have been asked to consider whether the imputations are carried by the translation, as I say the terms of which have been agreed by the parties, they are translations of the original publications, you must look at and give careful consideration to the original publications to understand the actual appearance of each of the matters of each of the reports and how the ordinary reasonable reader who would have been fluent in the Korean language would have reacted to each of them.”

35 Mr Wheelhouse referred to the importance of the actual appearance of the newspaper articles and said:

“In my submission, the actual appearance of the articles, the original material greatly supports the argument which I am now contending.”

36 He submitted that the ordinary fair minded person would not jump to conclusions of serious criminal conduct when those charged were not expressly contained in the actual literal words used and went on:

“That is more so, members of the jury, when one is looking at a publication that purports to be a serious document, that is to say a report of an auditor.”

37 Mr Wheelhouse put to the jury that the ordinary reasonable reader would be left with an overall impression and that the overall impression of the three publications “is very significant to the message conveyed by each of them.”

38 He put:

“The ordinary reasonable reader in our submission, members of the jury, would read what is clearly stated to be the nature of the article as an audit report. He or she would read the report with care and not go much beyond the express words because of the nature of the material.”

39 He submitted that:

“....the ordinary reasonable reader would have read the reports once, although reading every word of the material, would have given different emphasis and attention to different parts, would have given particular attention to the heading and the stated nature and purpose of the documents and would have taken particular notice of the layout, the headings and the fact most unusually each of the reports is signed by the 4th and 5th defendants. Thus to separate it out, as it were, from a report that has the endorsement or adoption of the newspaper.”

40 Mr Wheelhouse said:

“We say, members, that it is almost beyond argument that the overall impression is that of a publication of a public announcement comprised of an audit report prepared by the 4th and 5th defendants, and it’s an audit report of the year 2000 Sydney Olympic Australian Korean Supporting Committee. It doesn’t purport to be a story or an article as one would usually expect to see in a newspaper.

My client, Mr Lee, submits to you, that the ordinary reasonable reader would not understand that Mr Lee was conveying the imputations by publishing the reports on which he is sued because nothing in any of the publications suggests he endorses or adopts the charges or imputations made by others, if any, in the reports.

It would have been claimed (sic), we say, members of the jury, to the ordinary reasonable reader, from the heading from the content, from the nature of the documents and by the signatures at end of each items (sic) that none was written, nor was the subject of any commentary by the newspaper, we say, members of the jury, it would have been absolutely obvious to the ordinary reasonable reader that each of the items is a public announcement by the auditors of the year 2000 Sydney Olympic Australian Korean Supporting Committee, and that the ordinary reasonable reader would understand that while each of the reports appears in my client’s, the third defendant’s newspaper, that newspaper is only a vehicle through which others have been making statements about the plaintiff.

The ordinary reasonable reader, we say, members of the jury, would understand that the newspaper itself is not making any direct charge against the plaintiff.”

41 Mr Wheelhouse then went to a number of features of the first matter complained of. He drew attention to the heading, the words “Public Announcement” and said:

“So the ordinary reasonable reader underneath “Public Announcement” appreciates immediately that what is being published is a report by the auditors who are obliged to report under the Supporting Committee’s regulation 7.

-------

“In other words, members of the jury, what the ordinary reasonable reader immediately understands, because it’s absolutely brought to their attention by bold type and a very clear heading, that this publication is a report by the auditors of this particular committee to its members, which report is required to be made by regulation, clause 7, and it has to be done by publishing the report in a community newspaper because there was no general meeting of the committee.

In other words, members of the jury, the ordinary reasonable reader will understand this particular publication has an absolute, explicit and clear purpose. It’s not a story or article in the newspaper, it’s like those back pages of the Sydney Morning Herald when they announce some company has gone into liquidation or someone has won a prize. It has that characteristic.”

42 Attention was then drawn to the big border around the article, to the signature of the auditors and to the page full of figures with further signatures.

43 At that stage Mr Dibb made, in the absence of the jury, submissions which ultimately led to an application for discharge of the jury. He said:

“My learned friend is putting the position that unless his client’s newspaper endorses or adopts accusations made that they are not liable for, now this is to mislead the jury very, very severely.”

44 Mr Wheelhouse submitted that this was not so and provided a draft direction which he would be requesting the Judge to give in summing up. That direction read:

“Members of the jury, it is permissible for you to find that by Exhibits “M1, N1 and P1”, the third defendant has not carried to the ordinary reasonable reader of the Korean language any of the imputations alleged if you find the third defendant did not adopt or endorse the making or the publishing of those imputations by other publishers of the same matter.”

45 Mr Wheelhouse indicated that the direction was based upon “a line of authority” commencing with Roland v Harper [1910] HCA 43; [1910] 11 CLR 63 and derived from s 9 of the Act. Counsel made further submissions to which it is unnecessary to go as the relevant issues were argued in more detail on this appeal and are dealt with later.

46 Judge Gibson said:

“What I propose to do now is to get to (sic) jury back. I don’t propose to make any correction, although I consider Mr Wheelhouse has misstated the law, it’s effectively because he got the wrong end of the stick.

However Mr Wheelhouse, you’ve heard what I’m going to say I’m going to be telling them it’s not a question of authorising or endorsing, it’s a question of what meanings they take from the matter complained of or what the ordinary reasonable reader would take from the matter complained of in its form and content. And that is no requirement in law that it be actually expressly or even impliedly authorised or endorsed.”

47 Upon the return of the jury her Honour said:

“Thank you, members of the jury. Remember that when we started this case I said there might be times when we have legal argument and you get to go outside and have a long tea break. That’s what we’ve had but it’s important that you put from your mind any concerns you’ve got about legal issues in the case. Remember that when all of the counsel have finished their addresses, I’m going to sum up for you and I’m going to give you directions as to what the law is. So if you’ve got any questions or concerns, what you should do is just make a note of them and you’ll find hopefully that I will deal with most of them in the address.”

48 Mr Wheelhouse then resumed his address. After some remarks in which he emphasised that directions of law would be given by the judge, he took the jury to the publication of 1 March 2001. He drew attention, amongst other things, to the heading “Public Announcement” in bold, to the stated obligation to report the audit result and to the signatures of the auditors. He then said:

“The ordinary reasonable reader would clearly understand from this that what was being published in the community newspaper was information from the auditors of the year 2000 Sydney Olympic Australian Korean Supporting Committee, I need to read it, to members of that organisation, there is no suggestion to the ordinary reasonable reader in the publication that the auditors’ statements are adopted or endorsed in any way by the newspaper even though it is correct that the actual report is published in the newspaper by Mr Lee.”

49 Later he said:

“Critical to whether you would find that the ordinary reasonable reader would have understood the newspaper as directly charging the opposing politician with the imputation is whether the newspaper would be understood by the ordinary reasonable reader as having adopted or endorsed the criticism. That understanding, in my submission to you, members of the jury, arises from the nature, content, set-up, headlines and appearance of the material.

We say, members of the jury, far from having produced a publication that conveys the message of adoption or endorsement of the auditor’s imputations, the report makes it plain that the newspaper does not.”

50 He then took the jury to what he submitted were a number of ways in which the report made it plain that the publication did not convey a message of adoption or endorsement of the auditors’ interpretations.

51 One matter he put was that the “we” used in the report clearly referred to the persons whose signatures appeared four of five lines below. He went on:

“I should indicate, members of the jury, that none of the committee members including (sic) my client, Mr Lee, although Han Yong Lee is referred to. My client is a different Mr Lee. I don’t think that’s a very controversial point.”

52 Mr Wheelhouse then said:

“As I have suggested, members of the jury, there is no suggestion anywhere in the report that would lead an ordinary reasonable reader to understand or come to the conclusion that the third defendant has endorsed or adopted or agrees with the views of the auditors, particularly has adopted the views of the auditors as his own.

So for those reasons, members of the jury, we say it is permissible for you to find, if you accept the arguments now put to you, that the third defendant has by the report, exhibit M1, not carried to the ordinary reasonable reader of the original material in the Korean language any of the imputations referred to in question 1.

You can find that, members of the jury, these things of course are not written in rock, you can find that, members of the jury, if you are satisfied that the ordinary reasonable reader read and understood the material as the third defendant not adopting or endorsing the direct charges made by the auditors.”

53 Mr Wheelhouse then took the jury to the second and third reports which he said:

“....are the same essentially in form and in content and nature as the first report.”

54 It is relevant to note that he did refer to individual features of these reports in his submissions.

55 Mr Wheelhouse, whilst dealing with the second report, after referring to the actual presence of the signatures, continued:

“...so the ordinary reasonable reader would understand by the material, by the matter, that Mr Lee, my client, has not publishing these direct allegations, he’s merely the vehicle through which the charges – if they arise at all; and I’ll have something to say about that – are made by others. Because the ordinary reasonable reader wouldn’t see the nature, form and content of that as the newspaper adopting or endorsing the audit capturing the heading in the middle of the page, “Contents of the auditors additional report.”

56 After going to the third report and pointing out to the jury various features of the Korean language version, he said:

“We say, members of the jury, that the ordinary reasonable reader of this material in the manner in which – in the unusual manner in which it’s presented, say with the bold heading and the actual signatures, would plainly understand, having read the material in this form, that to the extent that direct charges are made by the two individuals who signed the document at the end, they are correct charges made by those individuals and not the newspaper itself, because there’s no editorialising or commentary or thumbs up, or something like that.”

57 He went on:

“Members of the jury, these are matters that fundamentally go to capacity of the matter complained of to convey the actual imputations alleged by Mr Cha. There may be other imputations, such that, “These two auditors said X.” That may be an imputation, but that is not what is pleaded against my client. My client is being sued on the basis that he, by this matter, published the direct charges which are captured in the imputations. We say, members of the jury, you will find that the ordinary fair-minded reader wouldn’t have come to that conclusion based on the form, content, nature and appearance of these particular documents.”

58 Mr Wheelhouse told the jury that he would now go to the second area of his argument which was what he described as the “well ploughed ground of the imputation discussion”. He said that he and Mr Hughes were “....definitely coming from the same position.” He also pointed out to the jury that “....we’re here dealing with not the truth or the falsity of any of these matters we are dealing with what is conveyed by way of meaning, or charge, or imputation from these articles.”

59 A short time later the jury was released at the conclusion of the usual sitting day. Mr Dibb then renewed his application for discharge of the jury. The following exchange took place:

“DIBB: Yes, your Honour. I renew my application for discharge of the jury. In my submission, Mr Wheelhouse, in his address after our argument, continued to press a view upon the jury that is not the law. That amounts possibly to a defence of innocent dissemination, or possibly to a defence of comment of a stranger. He specifically said at times that the ordinary reasonable reader would not take his client to have published the charges directly.

I understood your Honour following our debate earlier to be of the view that that not was an appropriate way in which to address the jury.

HER HONOUR: No, what I said is there should not be a question of the – it was that Mr Wheelhouse had the wrong end of the stick and what he was doing he was referring to “authorised” or endorsed”. And I noticed that Mr Wheelhouse, who told me he had written out his address beforehand, has continued to read out the same address with no regard to my having said it’s not a question of “authorised” or “endorsed”, he’s just going on and done the same thing. But I remain of the view that it’s a matter that be can be cured by an appropriate direction.

DIBB: Your Honour, what Mr Wheelhouse addressed is not what was conveyed, which would be permissible, but who it was conveyed by. And in my submission he cannot put that argument to the jury.

HER HONOUR: Yes, no, that’s not correct. What he’s doing is he’s not focusing on the ordinary reasonable reader who is the recipient, he’s focusing on the fact that his client made a separate publication in circumstances in which he says that he would not be seen as conveying these imputations about the plaintiff.

WHEELHOUSE: I dispute that, if we have the transcript overnight --

HER HONOUR: Mr Wheelhouse, you went and used that word “endorsed” again.

WHEELHOUSE: -- by the ordinary reasonable reader as having endorsed.

HER HONOUR: You keep using that word “endorsed”. And I keep saying it’s not a question of that. It’s a question of what meanings the ordinary reasonable reader distils from the manner and form and content. And the question of an endorsement, or for that matter a lack of endorsement, which I will now obviously have to address on as well, the circumstances in which your client didn’t endorse it by, for example, have the word “paid advertisement” or something that made it quite clear, or that it was in the advertisement section.”

60 Judge Gibson also raised two other issues. One related to the reference to the different Lees and the other to lack of distinction between the publications. She said to Mr Wheelhouse:

“You addressed as if the authorisation of the official report in the first publication seeps through by osmosis into the 2nd and 3rd. And you spoke as if it was possible about the third publication, no doubt.”

61 As to the second matter the Judge emphasised that she would be telling the jury that they must look to each publication individually. Mr Wheelhouse said that he would reinforce that point himself.

62 On the following morning argument was heard in respect of the application to discharge the jury. There was a good deal of dialogue between the Bench and the Bar to which it is unnecessary to go. The principal issues were dealt with on the hearing of the appeal and I shall refer to them later in this judgment.

63 Judge Gibson concluded that she should discharge the jury on Mr Dibb’s application. Very sensibly, if I may so, the decision was taken, with the consent of all relevant parties, that that result would be achieved by withdrawing the questions relating to the third defendant from the jury. This course allowed the other aspects of the case to continue before the same jury.

The Reasons of the Primary Judge

64 Following the first application to discharge the jury Judge Gibson, after indicating that she did not propose to do so, gave a short ex tempore judgment. I do not considerate it necessary to go to that judgment in detail. The Judge made it clear that she considered that Mr Wheelhouse had erred in his address to the jury. She said:

“What Mr Wheelhouse has said is to assert that the third defendant while admitting publication denies that he has published the imputations because he did not make the charge made by the auditors in the reports in that he did not adopt or endorse the statements made by them. He repeated this later in his address to the jury stating that the ordinary reasonable reader would not understand Mr Lee was conveying the reports because nothing suggested that he endorses or adopts the reports.

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Now, the trouble that I have had with Mr Wheelhouse’s submission is that in talking about authorising or endorsing he in fact has the wrong end of the stick. It is not requirement that there should be an authorising or endorsing, that is not the starting point. The question is what would the ordinary reasonable reader make of all of this? What meaning does ordinary reasonable reader draw from the matter complained of?”

65 It is convenient to repeat that her Honour also said:

“What I propose to do now is to get [the] jury back. I don’t propose to make any correction, although I consider Mr Wheelhouse has misstated the law, it’s effectively because he got the wrong end of the stick.”

66 Mr Wheelhouse then maintained that he had not been putting “the proposition” the Judge considered him to be making and that he would make that “very clear” to the jury. The Judge referred to his opportunity to correct the error and the desirability of doing so.

67 Following the further application to discharge the jury, Judge Gibson heard extensive argument and then commenced the delivery of an ex tempore judgment. With the arrival of the lunch break and the consent of the parties, the Judge announced her decision to direct the jury that they need not answer the questions relating to the third defendant and made certain consequential orders. She said that she would publish her reasons at a later time.

68 On 24 August 2004 her Honour published a written judgment the first part of which consisted of the revised version of her ex tempore reasons delivered on 28 July 2004. I should mention that the judgment refers to the ex tempore reasons of 27 July 2004, however, that appears clearly enough to be a slip and not to be a reference to the ex tempore judgment given on 27 July 2004 in relation to the first application for discharge.

69 Judge Gibson set out “what the areas of difficulty are.” She noted the first as being the allegation that Mr Wheelhouse “put his case about publication too high.” This language does lend some support to Mr Wheelhouse’s submission that the Judge did not, at that stage at least, fully follow the point he was seeking to make. However, I think it simply reflects the difficulty of finding a “tag” for his argument. His own use of “capacity” argument was inappropriate as I shall discuss later.

70 In examining this allegation her Honour went to a number of extracts from the transcript. The first was as follows:

“Essentially, members of the jury, Mr Lee denies that by each of the reports he made the imputations alleged. He says that each of the imputations that Mr Cha alleges is in effect a direct charge against him, Mr Cha. Mr Lee says he did not by the publications make the charge because the reports or by the reports he did not adopt or endorse in any way the allegations made by others in those reports.”

71 The Judge noted the “key” word ‘because“ and referred to the absolute fashion in which this was put, there being no suggestion of “may”. She said: “While there is a general rule that a person who publishes will be liable, there may be circumstances in which the ordinary reasonable reader may draw an inference but this is an exemption to the general rule.” Her Honour did not accept Mr Dibb’s contention that the language used was mandatory but said “it is very close to mandatory”.

72 Her Honour in dealing with references to “endorsement” or “adoption” went next to a passage in which Mr Wheelhouse said:

“To separate out, as it were, from a report that has the endorsement or adoption of the newspaper.”

That quote is from the transcript and not from the judgment which contains an obvious typographical error.

73 The Judge then referred to the following passage:

“My client, Mr Lee, submits to you, that the ordinary reasonable reader would not understand that Mr Lee was conveying the imputation by publishing the reports on which he is sued because nothing in any of the publications suggests he endorses or adopts the charges or imputations made by others, if any, in the reports.”

74 The Judge drew attention to the use again of the word “because”. She said:

“Mr Wheelhouse agreed, and properly agreed, in my view, that these words “because” and “unless” were much the same thing and that of course is the problem. “Because” really does mean the same sort of thing as “unless” or even “only”. That is the difficulty that I have.”

75 As will later appear Mr Wheelhouse disputes the extent of any agreement.

76 Her Honour then referred to other use of the word “only” and “only a vehicle” and expressed the view that in a number of passages to which Mr Wheelhouse referred her he did not “water(s) down what he said.”

77 The Judge referred to the first application to discharge and said:

“I told Mr Wheelhouse that the question of “endorse” or “adopt” was getting the issue back to front, and that what needs to be determined is what the ordinary reasonable reader makes of the matter complained of having regard, of course, to such matters as form, material and presentation and the like. This is the test of what the publication conveys.

I declined then to discharge the jury but I indicated very clearly to Mr Wheelhouse that it was not the law that a repeater of a defamatory statement of another is not liable because he has not adopted or endorsed it. He continued his address on the basis that I indicated that I would be giving this direction to the jury.”

78 Judge Gibson obviously considered Mr Wheelhouse did not continue his address on the basis of the directions she had indicated she would give. She referred to the following passage:

“There is no suggestion to the ordinary reasonable reader of the publication that the auditors’ statements are adopted or endorsed in any way (my emphasis) by the newspaper even though it is correct that the actual report is published in the newspaper by Mr Lee.”

79 The Judge referred to Mr Wheelhouse’s proposition to the jury that the ordinary reasonable reader understands an advertisement as being simply an advertisement and not something that is adopted by the newspaper. She noted the passage:

“We say, members of the jury, far from having produced a publication that conveys the message of adoption or endorsement of the auditors’ imputations, the report makes it plain that the newspaper does not. And it does this in a number of ways, members of the jury.”

80 A passage which her Honour referred to as “the crucial part” is as follows:

“Plainly, members of the jury, there is a debate going on between the publication of material by the committee and the analysis and determination of the accuracy of that material by the auditors. It says, “We looked at this report, it was very much different to what they announced.” And the “we”, members of the jury, is quite plainly the persons whose signatures appear four or five lines below. I should indicate, members of the jury, that none of the committee members including my client, Mr Lee, although Han Yong Lee is referred to. My client is a different Mr Lee. I don’t think that’s a very controversial point. As I have submitted, members of the jury, there is no suggestion anywhere in the report that would lead an ordinary reasonable reader to understand or come to the conclusion that the third defendant has endorsed or adopted or agrees with the views of the auditors, particularly has adopted the views of the auditors as his own.”

81 Within that passage she drew attention to the statement that his client was a different Mr Lee. She a little later links that with an earlier reference where Mr Wheelhouse referred to the publication being “signed by the auditors who on the facts of this material plainly had no relationship with the newspaper.”

82 The Judge then said:

“Then there is the portion at line 30 to 36, which he referred to as his kernel argument which he says it was “permissible” for the jury to find the arguments now put on behalf of the third defendant meaning that the imputations are not carried to the ordinary reasonable reader.

He goes on to say, “This is not written in rock”, at line 39. And the fact that the words “permissible” and “not written in rock” occur is the closest Mr Wheelhouse has been able to take me to any doubt being entertained on this issue.”

83 She referred to the use of the word “can” and “permissible” but did not consider either suggested “may or might or anything like that”, having regard to the context in which they were used.

84 Speaking of the reference to the other Mr Lee and the position of the auditors the Judge said:

“That’s an important part because what is in issue is that interspersed with these references to “endorsed” or “adopted”, we had these references to the auditors, on the face of the material, “plainly” having “no relationship with the newspaper”. The trouble is they may be identified as being the auditors, but to assert that the ordinary reasonable reader has some information that they “plainly” have “no relationship with the newspaper”, and to tell the jury that the third defendant is a very different Mr Lee, all of this interspersed with the other passages mean that one confusion, effectively, is heaped upon another.”

85 The Judge rejected the view that a number of other passages put to her by Mr Wheelhouse supported his contention.

86 Her Honour then said:

“Now, another passage that was complained about by Mr Dibb, I should mention, is the passage at 457, where Mr Wheelhouse asked the jury to put out of their mind any issue of truth or falsity. What Mr Dibb submitted was that in addition to these portions to which I have referred, there were interwoven two things. The first was the issue of intention, in that by its very nature, the reference to endorsement implies intention. It certainly is the case I think that one must be very careful when talking about “endorsement” to indicate to the jury that intention is irrelevant, or to make it quite clear that there has been no suggestion of intention. I can’t see anything that Mr Wheelhouse said to that effect.

The other thing is that there was this issue of truth or falsity. By itself, that passage at page 456 is not a problem, but the multiple Mr Lees and the reference to that is a difficulty and, of itself, allowing – I know Mr Wheelhouse says that he thinks that I can cure it, but this is an issue which would need very careful handling in front of the jury and, in effect, it would need the most careful of directions in circumstances where I don’t think I have that luxury, by reason of the fact that it has occurred on top of – being the icing of the cake effectively – of these other matters that would need correction.”

87 Her Honour also said:

“Now, it’s always desirable for any trial judge to try and make corrections. I indicated yesterday that I would endeavour to make corrections; and perhaps if Mr Wheelhouse had moderated his language after I gave that very clear indication, I could have done so.

The trouble is that I had the additional problems and then, too, the direction that Mr Wheelhouse asked me to make which he handed up to me, and still puts to me would sufficiently resolve the issue, is effectively a one liner saying it is permissible to make such a finding. This doesn’t cure the ill.”

88 The Judge had indicated that she had sought to draft an adequate direction, however, she found this not achievable. She said:

“This is a difficult case already. This is a jury who have been told there are a number of issues that they need to be very careful about. And this brings me to the next problem that I have. That is, that in making these addresses to the jury, Mr Wheelhouse has told the jury that they would find that these publications were in the newspaper by reason of a regulation and spent a lot of time on the first publication saying this. Mr Dibb drew my attention to the fact that the second and in particular, the third publication has no such notation – and, of course, it’s essential that the jury keep each article separate, so there has been an impermissible mingling of the three articles.

So when you list all of the problems we have here, we have a mingling of the articles, we have references to Mr Lee not being connected to the auditors and these are matters that the ordinary reasonable reader wouldn’t have known. For all I know, they might have thought to the contrary with the kind of loose thinking that ordinary reasonable readers have. But then, too, there is this question of whether Mr Wheelhouse has gone beyond the bounds, and that is the difficulty that I have.”

89 Judge Gibson then proposed to summarise “the law in this matter”. However, after discussions with Counsel, the course to which I have already referred was adopted.

90 Her Honour’s judgment then ceases to be a revised ex tempore judgment and, thereafter, takes the form of written reasons for the decision which she had made.

91 After examining a number of authorities and texts Judge Gibson concluded, in effect, that it was not open to Mr Wheelhouse, as he had done, to invite the jury to have regard to the absence of adoption of the report and its features as supporting a finding that the third defendant had not “made” the imputation alleged.

92 Her Honour observed that she regarded “......circumstances in which a jury could be discharged as being absolutely a matter of last resort.”

93 The Judge said:

“Mr Wheelhouse was entitled to make a submission in accordance with Wake that the jury “may” form the view from the manner of layout of the matter complained of that his client did not intend to convey these imputations and indeed he put to me that this was what he had said. However, that is not what Mr Wheelhouse said, as the above extracts from the transcript make clear and indeed as he himself conceded.

It is my view that the matter might have been capable of rectification had Mr Wheelhouse, after my initial judgment refusing to discharge the jury, told the jury that there was no actual requirement for adoption or endorsement but that the jury may consider from issues such as layout or the placement of the publication or the headline or the language that the imputations were not conveyed. This was weak argument, but it was nevertheless an argument which could have been put.”

94 Her Honour, after referring to Mr Wheelhouse’s “adoption argument” then said:

“In the proceedings before me, Mr Wheelhouse elected to put this proposition to the jury in a situation where I had no remedy other than to discharge the jury.”

95 Her Honour also said:

“In addition to the other issues, the second defendant (who had already addressed) had not put these arguments, and according to the second defendant’s submission to me, Mr Wheelhouse’s argument would require at the very least a fresh set of questions by him on the issue, and the vexed question of whether, in those circumstances the plaintiff should be permitted some form of right of reply. The likelihood of the jury becoming confused by this procedure was but a further reason for my arriving at the conclusion that there was no alternative to a discharge as directions on all these issues would have been impossibly convoluted for this and the following further reasons.

Two s 7A juries have been discharged by reason of submissions along the lines made by Mr Wheelhouse. In the present case, there were additional serious matters which created complications. Quite apart from the difficulties in which the second defendant and the plaintiff found themselves (which are discussed above) the third defendant made other substantial errors in the address to the jury by the most unfortunate remarks about Mr Lee. The ordinary reasonable reader would know nothing about any connection between his Mr Lee (the third defendant) and the Mr Lee referred to in the matter complained of, and in addition another of the other parties to this litigation is also called Mr Lee. Mr Wheelhouse impermissibly brought in issues of truth and falsity and poisoned the minds of the jury in relation to the issue of Mr Lee. It is not clear to me how I could have addressed this issue in my summing up apart from telling the jury in the clearest possible terms to put the matter out of their minds, and I note that there have been a number of jury discharges where issues of truth or falsity were put to the jury which to my reading did not go as far as Mr Wheelhouse’s submission on the Mr Lee issue. Then again, in address on the issue of adoption, Mr Wheelhouse impermissibly elided all of the publications. The reference in the first of the matters complained to the official need to publish this report was read as it if applied to all the other publications.

Mr Wheelhouse conceded that the problems of Mr Lee and of the elision of the publications needed correction by me, but attempted to say in relation to the eliding of the publications that he had not yet completed his address and would have tried to fix this up as he went along. However, the portion of his address to which this issue related, namely the issue of adoption, was said by him to have been completed, as he had moved onto the issue of the individual imputations and whether they were conveyed. Accordingly, the poison was already on the jury’s minds and this was the difficulty that I then faced.

In addition, the jury had already been confused by the circumstances in which the plaintiff had been obliged to put the issue of publication as between the plaintiff and third defendant before the jury. The third defendant had originally admitted publication, and on the first day of the trial indicated that there would be some submissions made about these admissions. However, when the other parties in the litigation indicated they were prepared for me to deal with all disputed issues of publication and republication so that the jury need not be troubled by these complexities, the third defendant, somewhat to my surprise, agreed. That agreement regrettably did not last long. Mr Wheelhouse informed me firstly that he had never agreed at all and when taken to the relevant page of the transcript said he was a little hard of hearing. When questions were put to the jury to permit for this issue to be dealt with by the jury, Mr Wheelhouse changed his position again and said that he would tell the jury that they could answer “yes” to these questions.”

96 After observing that section 7A trials are complex enough without needing additional problems her Honour said:

“However, the difficulties caused by Mr Wheelhouse’s address to the jury went beyond a correction of wrong statements of law. It required additional questions for the second defendant and possibly some further address from him and in addition there would need to be a careful and possibly lengthy direction in relation to Mr Wheelhouse’s impermissible eliding of the three publications and his references to Mr Lee.”

97 Her Honour concluded:

“It would be hard to imagine a clearer case where there was a requirement for a jury to be discharged. The “adoption” argument by Mr Wheelhouse is totally contrary to the manner in which Ronald v Harper has been interpreted by the Court of Appeal, the Full Court of the Federal Court and the High Court, and his persistence with this line after I had directed his attention in an earlier discharge application to the real issues in the case was, to use the words chosen by Meagher JA in Nationwide News v Heggie, “provocative”.

Grounds of Appeal

98 The appellant relied upon the following grounds of appeal:

“1. The decision by Gibson DCJ to discharge the jury during counsel for the claimant’s address was not a proper exercise of judicial discretion.

2. Because of the form, nature and content of the first, second, and third matters complained of, it was open to the claimant to submit to the jury that it was permissible for them to find that by publishing each of the first, second and third matters complained of, the claimant did not make the imputations alleged. That is, it was open to the claimant to submit to the jury that by publishing the “matter” alleged, he had not “made” the imputations as required by section 9(2) of the Act. The ordinary reasonable reader of each of the matters would not have understood that each of the matters carried the imputations alleged.

3. In the circumstances of this case, Gibson DCJ made an error of law by denying the claimant the right to make a submission to the jury in accordance with Ronald v Harper [1910] HCA 43; (1910) 11 CLR 63 at 77.

4. As the respondent sought the discharge on grounds which did not justify the making of an order for discharge and in the expectation that if he succeeded he would be entitled to an order for costs in his favour for the trial and as his success in leading the trial judge into error caused the trial to abort, the appropriate order as to costs is that the respondent pay the appellant’s costs of the aborted trial.

The appellant further relies on the Summary of Argument relied upon in the application for leave to appeal.”

Grounds 2 and 3

99 It is convenient to deal with these grounds first and together as they found upon an argument advanced by Mr Wheelhouse based upon certain dicta of Isaacs CJ in Ronald v Harper, of Hodgson JA in Nationwide News Pty Ltd v Heggie (2001) NSWCA 257 and s 9 of the Defamation Act 1974.

100 The argument finds expression in Mr Wheelhouse’s address to the jury in numerous places. An example is when he said:

“My client, Mr Lee, submits to you, that the ordinary reasonable reader would not understand that Mr Lee was conveying the imputations alleged by publishing the reports on which he is sued because nothing in any of the publications suggests he endorses or adopts the charges or imputations made by others, if any. In the reports.”

101 During argument he submitted a draft direction as set out in [33].

102 Mr Wheelhouse, it should be observed, made it clear that he was putting that Mr Lee had not made the imputation as alleged, rather than that the matter complained of did not convey the imputation. As Mr Dibb, at one point observed, if the matter complained of did not convey the imputation then it followed that Mr Lee by publishing the matter complained of did not make the imputation. However, this was not the approach adopted by Mr Wheelhouse.

103 Mr Wheelhouse referred to his argument as a “capacity argument” as distinct from a “publication argument”. As he agreed before this Court the name was unfortunate because of the confusion with the use of that name for issues entrusted to the judge rather than the jury by s 7A. In John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60 a similar concept was referred to as “the adoption submission”. Judge Gibson had also referred to it in her judgment as the “adoption” argument [87].

104 Obeid was handed down after the decision of Judge Gibson and some weeks before this matter was argued. Both Counsel added to their written submissions in relation to the decision before the hearing of this matter. Mr Dibb put that the decision resolved the issues of principle arising in this matter and indicated a withdrawal of the respondent’s consent to leave being granted. Mr Wheelhouse did not go so far, but accepted that the decision had a high degree of relevance to this case.

105 In Obeid the jury was discharged on the basis of a number of contentions put to them by Counsel for the defendant. One of these propositions was an adoption submission exemplified by the following passage:

“(T44/44) Now, if you have as I say, claim and counter claim allegation and denial, one person says X, the other person says the opposite and the key ingredient in all of this is whether the allegation is correct, if you are looking, I suggest, to whether or not the article conveys guilt, you need to look to see whether there is any suggestion in the article that the Sydney Morning Herald or John Fairfax or whatever you want to call it, or the journalist actually adopted one side or the other or is it simply a situation where they say one person says this but the other person denies it.”

106 McColl JA, with whom Sheller JA and McClellan AJA agreed, held that the trial judge was correct to discharge the jury on another basis, however, she examined in detail the adoption submission and held it to be unavailable.

107 The judgment of McColl JA deals comprehensively with reliance, very similar to that in this case, upon the dicta in Ronald and Heggie and I can do no better than to adopt her Honour’s judgment. She said at [87]:

87 That conclusion is sufficient to dispose of the appeal however the adoption and manifest intention submissions should also be considered as they also influenced the trial judge’s decision to discharge the jury.

88 The law of defamation is concerned with damage to reputation: Dow v Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575 (“Dow Jones”) per Gleeson CJ, McHugh, Gummow and Hayne JJ at 600 [25]; per Kirby J at 630 [124]; per Callinan J at 649 [184]). The cause of action in defamation accrues when a defamatory imputation of and concerning the plaintiff is published to a third party. “Liability depends upon mere communication of the defamatory matter to a third person”: Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276 at 288 per Dixon J.

89 All those who might be described as in “any degree accessory” to the publication are liable in defamation: see Webb v Bloch (1928) 41 CLR 331 at 363 – 366. Thus, liability falls upon the printer and distributor of defamatory material, albeit that distributors have the benefit of a defence of innocent dissemination: see Emmens v Pottle (1885) 16 QBD 3539

90 As it is “the publication, not the composition of a libel, which is the actionable wrong (Dow Jones at 600 [25]), the republication of the statements of a third party (“defamatory hearsay”) even as part of a larger publication “...is a new libel and, each [republisher] is liable as if the defamatory statement had originated with [that person]”: Gatley on Libel and Slander [Sweet & Maxwell, 10th Ed, at 6.31]. This statement, (in the form it appeared in the fourth edition of Gatley) was approved by the Privy Council in “Truth” (NZ) Limited v Holloway [1960] 1 WLR 997 (“Truth”).

91 The tort of defamation, accordingly, is a tort of strict liability. A defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care: Dow Jones at 600 [25] per Gleeson CJ, McHugh, Gummow and Hayne JJ. In the case of the republication of defamatory hearsay, the republisher will be prima facie liable in defamation without any requirement that the defamatory hearsay was adopted. That liability may be qualified by the context in which the defamatory hearsay was republished.

92 In “Truth” (NZ) Limited v Holloway, above, the Privy Council approved a direction to a jury to the effect that the publication by the appellant newspaper of an article which included a third party’s statement to “see Phil and Phil would fix it” (“Phil” being understood to mean the plaintiff, a Government Minister) was properly to be dealt with as if the defendant itself said “see Phil and Phil would fix it“. In approving the direction, Lord Denning (who delivered the judgment of the Judicial Committee) observed (at 1102 – 1103) that the case on appeal was a “good instance of the justice of this rule” that being that it would be unjust that the newspaper was not liable for republishing the defamatory hearsay because its publication had the effect of broadcasting it “to the people at large”.

93 Truth was referred to with approval in the unanimous decision of this Court in Wake. In Wake a newspaper reported a statement by a stipendiary steward which included the words “Details of how bookmakers Wake and Field knew Amerigo Lady was ‘dead’ will come out in either their appeals to the Greyhound Control Board or in possible later court action”. The plaintiff pleaded that the matter complained of conveyed the defamatory imputation that “the plaintiff knew that Amerigo Lady was ‘doped’ and had taken dishonest advantage of that knowledge”.

94 The appellant/defendant complained that that imputation ought not have been left to the jury on the basis that the “publication [was] not equivalent to passing on a rumour or embracing or adding weight to a defamatory outcome by a third party ... but [was] merely reporting what a steward had said”. The appellant sought to support that submission by reference to Ronald v Harper at 77 where Griffiths CJ (with whom O'Connor J agreed) said:

“... It is said that when a person repeats a slander he adopts it as his own. That is a very good general rule, but I decline to adopt it as a rule of invariable application. Words injurious to another may be used under such circumstances as to show that the person who has repeated them gives them his own authority. It is entirely a matter of fact ...”

95 The Court of Appeal said of that passage (Wake at 49 – 50):

“The Chief Justice cannot be understood to be asserting in the passage quoted that the publisher of defamatory hearsay is in some special position if he does not adopt the imputation or reaffirm it. There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted. The purpose of the republication will have a significant bearing ... there can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v Daily Telegraph Ltd [1964] AC 234 at 284: ‘For the purpose of the law of libel the hearsay statement is the same as a direct statement, and that is all there is to it’.

Bell v Byrne (1811) 13 Best 554; 104 ER 486 is authority for the proposition that if one asserts defamatory matter as from himself or says that it was asserted or written by another, it is equally the subject of an action.

When a defamatory publication purports to repeat or report the defamatory statement of another it is an essentially different libel from one where the same imputation is conveyed directly. It may require to be charged or defended differently, but it is nonetheless libel.” (emphasis supplied)

96 Thus, while the republisher of defamatory hearsay is liable for the repetition of the defamatory hearsay, the nature of that liability will turn upon the context in which the republication occurred. The nature of the republisher’s liability will be resolved by the decision as to whether, and what, defamatory imputations were conveyed having regard to the publication as a whole. This invokes the traditional test that the question whether a publication would be understood to convey defamatory meanings is determined objectively by reference to the standards of the ordinary reasonable reader and whether that person “would be likely to understand [the publication] in a libellous sense”: Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 745.

97 The jury is required to approach the exercise by considering “what the words of the publication would mean ‘to ordinary men and women going about their ordinary affairs’” as McHugh J explained in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1660 [18] (“Rivkin”). McHugh J described the approach taken by the ordinary reasonable reader (at 1661 – 1662) saying:

“[26] ... although a reasonable reader may engage in some loose thinking, he or she is not a person "avid for scandal" (Lewis v Daily Telegraph [1964] AC 234 at 260). A reasonable reader considers the publication as a whole (Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (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)). Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning (Lewis v Daily Telegraph [1964] AC 234 at 259-260). The reasonable reader considers the context as well as the words alleged to be defamatory (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). 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.’ (Chalmers v Payne (1835) 2 Cr M & R 156 at 159 [1835] EngR 38; [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) But this does not mean that the reasonable reader does or must give equal weight to every part of the publication (Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 at 646). 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 (Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 at 646). Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article (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 ("Truth" (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002-1003). 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 (Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50). But, as Griffith CJ pointed out in Ronald v Harper [1910] HCA 43; (1910) 11 CLR 63 at 77, 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 [1979] 2 NSWLR 679, 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" ([1979] 2 NSWLR 679 at 681) the plaintiff. The New South Wales Court of Appeal unanimously held that the report was incapable of a defamatory meaning concerning the plaintiff.” (footnotes included, emphasis supplied)

98 It will be apparent from this recitation of the authorities that the question whether the publisher of defamatory hearsay has “adopted” the defamatory hearsay is, irrelevant to the question whether the republisher is liable for defamation. Mere publication suffices to attract liability. However the context in which the defamatory hearsay was published, including whether it was in fact “adopted” by the republisher may be relevant to the nature and quality of the republisher’s liability: see Wake; Ross McConnel (above, at 848, per Hunt J), Ainsworth (above, at 831 per Hunt J); Astaire v Campling [1966] 1 WLR 34 at 40 per Davies LJ, at 41 per Diplock LJ (but see also Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1244, 1259); Wheeler v Somerfield [1966] 2 QB 94 at 108 – 109 per Winn LJ.

99 It is important to understand the two senses in which the concept of adoption is employed. Griffiths CJ in Ronald v Harper and McHugh J in Rivkin refer to the concept to explain that the mere publication of defamatory hearsay amounts, without more, to an “adoption of that statement”. I refer to that use of the word “adoption” as the “primary sense”. In its primary sense adoption connotes strict liability for the publication of defamatory hearsay in the sense referred to in Dow Jones.

100 However as is apparent from Wake, Ross McConnel and Ainsworth the concept of adoption is also used in a secondary sense as being one of the matters relevant to determining what, if any, defamatory imputations were conveyed by a publication which includes defamatory hearsay. Thus, in Wake, as I have earlier noted while reaffirming the proposition that the publisher of defamatory hearsay is not in a special position if the imputation is “not adopted”, the Court said that the nature of the libel conveyed by the reporting of defamatory hearsay may depend (inter alia) upon “whether it is adopted, repudiated or discounted”.

101 When the concept of adoption is invoked in the secondary sense it is because it is, or may be, relevant to determining “the nature and quality of the defamatory publication”. In the same vein, the question whether the republisher has repudiated or discounted the defamatory hearsay and the purpose of the republication will all be relevant to whether the imputations conveyed by the defamatory hearsay viewed in isolation are also conveyed in the context of the whole publication: Ross McConnel (above, at 848, per Hunt J).

102 To avoid confusion arising from the use of the concept of adoption in the two senses to which I have referred, it would be preferable, in my view, if the question asked when determining the relevance of the context of the publication was (inter alia) whether the defamatory hearsay had been approved, reaffirmed or endorsed by the republisher.

103 Bik v Mirror Newspapers Limited [1979] 2 NSWLR 679 (“Bik”), to which McHugh J referred in Rivkin, is a singular illustration of how the context in which defamatory hearsay is republished may affect the question of the capacity of the publication to convey a defamatory imputation. In Bik a first instance decision directing that the declaration for defamation be struck out was upheld in relation to a report of parliamentary proceedings. The report disclosed that a witness at a coronial inquiry had alleged that the plaintiff had designed a faulty crane that led to a fatality but also said that the Minister of Justice "completely cleared" the plaintiff. In concluding that the report was incapable as a matter of law of conveying a defamatory meaning of and concerning the plaintiff Herron CJ (with whom Manning JA agreed) said (at 682):

“... from beginning to end, the article sued upon sets out to destroy any suggestion that the plaintiff was guilty of any act or omission which led to the death of the deceased man, Ross.

The whole tenor of the article is to inform the reader that Mr. Bik was wholly cleared, and no fair-minded reader could imply that Mr. Bik bore any responsibility for the fatality. He would read that an injustice had been done by having had for eight years wrongful acts attributed to him, and now he has been cleared of it. So far from being defamatory, the article is laudatory of the plaintiff.” (emphasis supplied)

104 Taylor J observed (at 683) that:

“... ordinary, reasonable, fair minded men reading this article as a whole would conclude that it was being published to remedy the injustice that had been done to the plaintiff. The Minister's object in making the statement was to clear the plaintiff of the injustice of having attributed to him without any foundation, wrong doing, and to ensure that wide publicity be given to his statement so that the wrong done to the plaintiff might be put right and there should be an end to his having without reason and without justice been the target of rumour and suspicion.” (emphasis supplied)

105 There was no issue in Bik as to the newspaper’s liability for publishing the defamatory hearsay. The Court’s conclusion that the imputations of which the plaintiff complained were not capable of being conveyed having regard to the publication as a whole was clearly influenced by the Court’s perception that that the purpose of the publication was to give wide airing to the Minister’s statement that the plaintiff had been “completely cleared”.

106 Wake was applied in Comalco (above) which concerned a broadcast on the ABC’s “Four Corners” programme. The programme consisted of an introduction by a Four Corners presenter to a film made by Granada dealing with the effect on the aboriginal population at Weipa in Queensland of the conduct of open-cut bauxite mining by Comalco, followed by a studio debate. Comalco successfully sued the ABC at first instance for defamation.

107 The ABC sought to argue on appeal that in the context in which it had broadcast the Granada film it should be regarded merely as having provided a forum through which others put forward their view so that it was not liable for the defamatory hearsay. It relied upon the passage in Ronald v Harper to which I have already referred. Smithers J (at 518) rejected that submission as inconsistent with Wake. His Honour was also of the view (at 519 – 521) that, as a matter of fact, the ABC could not be said merely to have provided a forum for others to air their views.

108 Neaves J (at 571) regarded the appellant’s argument as misconceived saying, “[t]he question is not whether the appellant is, in the programme itself making the statements relied upon as being defamatory but whether, by its telecast, it has published material defamatory of Comalco”.

109 Pincus J (at 588) accepted that Griffith CJ’s observations in Ronald v Harper appeared to “imply that one who repeats defamatory words may not be liable unless the person repeating the words gives them his own authority or reaffirms the charge”, but pointed out, referring to Wake, that “the judgment appears not to have been regarded as proper authority for any such rule”. His Honour accepted (at 590) that “[o]rdinarily it appears a publisher of an accusation made by another must defend himself against a defamation suit as if he made the accusation himself”.

110 These principles were affirmed recently in this Court in Heggie - an appeal challenging the trial judge’s decision to discharge a jury after a s 7A hearing because of the manner in which counsel for the defendant addressed the jury.

111 The matter complained of included the statement, “Mr Watkins also accused Mrs Heggie of having double standards, saying he would ‘love to know what the real deal is, what's in it for you’.” The judgment does not set out the balance of the matter complained of or any detail of counsel’s address which led to the jury being discharged. It is plain that counsel’s address dealt with the intention of the publisher to convey the imputations (see [6]) as well as the relevance of adoption in the context of publication of defamatory hearsay. Hodgson JA said (at [22]) that “a fair reading [of counsel for the defendant’s] address to the jury did convey the impression that an imputation is not made by merely publishing an allegation, particularly if both sides of the question are published; and that an imputation is not made if there is no endorsement of the allegation by the publisher”.

112 The Court was unanimous in concluding the appeal should be dismissed. Meagher JA referred to the statement in Gatley on Libel and Slander (6th ed 1967) that "[e]very republication of a libel is a new libel", Wake and Comalco and remarked that “[counsel for the defendant’s] fixation on ‘adoption’ of the libel, and his obdurate refusal to recognise that the newspaper article was republishing Mr Watkins' libel, in the light of those authorities, was thus demonstrably provocative”.

113 Hodgson JA said (at [15]):

“Where the publication is of an assertion that certain words were spoken by another person, the general rule is as stated by Lord Devlin in Lewis v Daily Telegraph Limited [1964] AC 234 at 284:

‘For the purpose of the law of libel, a hearsay statement is the same as a direct statement, and that is all there is to it.’

See also Wake v John Fairfax & Sons Limited [1973] 1 NSWLR 43 at 49 and Australian Broadcasting Commission v. Comalco Limited (1986) 68 ALR 259. It is generally irrelevant whether the publisher would be understood as itself intending to make the imputation or endorsing it in any way. As a general rule, the imputation is made by being published, even if it is published as an imputation made by someone else.” (emphasis supplied)

114 His Honour accepted (at [16]) that there were exceptions to the general rule, such as Harrison and Bik. In his view, the identity of the third party and the circumstances in which that person’s original statement was made as reported in the publication complained of may be relevant. He gave the following illustration (at [20]), in a passage upon which Mr Reynolds placed considerable weight:

“More relevantly to the present case, a report that an opposition politician A accused a government politician B of deceiving the public, in relation to a particular action of the government, would not necessarily be understood as making the imputation that B acted dishonestly and deceitfully, or the imputation that B is a dishonest and deceitful person. Furthermore, if B sued A and the publisher in respect of the publication of that accusation, a finding that A made the imputation would not, as a matter of absolute necessity, require a finding that the publisher also made that imputation. In a case such as that, in my opinion it might be relevant to consider whether the claimed imputation was an allegation made by a person who had an interest in making such allegations and who regularly made them, whether the other side of the picture was published, whether there was any endorsement of the allegation by the publisher or any other suggestion that it was true, and whether there was any intention manifested by the publisher itself to make the allegation. However, all those considerations would only be as matters relevant to the question, does the published material, considered fairly and as a whole, make the claimed imputation.”

115 After giving this illustration Hodgson JA continued (at [21]):

“21 However, in my opinion, it would be quite wrong to suggest that published material, setting out an imputation made by another person, does not itself make the imputation if it merely publishes an allegation, or if both sides of the picture are published, or if there is no endorsement of the imputation by the publisher, or if no intention of the publisher to make the imputation is manifested. Certainly it would be an error to suggest that, because all that is published is an allegation, the publication does not make an imputation. There is in fact no sharp distinction between an allegation and an imputation: an imputation simply is an assertion concerning a person, or a charge or accusation: see Petritsis v Hellenic Herald Pty Limited (1978) 2 NSWLR 174 at 183, 189 and 197; Monte v Mirror Newspapers Limited [1979] 2 NSWLR 663 at 677-8.

22 In my opinion, on a fair reading, Mr. Hale's address to the jury did convey the impression that an imputation is not made by merely publishing an allegation, particularly if both sides of the question are published; and that an imputation is not made if there is no endorsement of the allegation by the publisher. Although questions concerning the circumstances of the original making of the allegation, the publication of both sides of the matter, and the lack of endorsement by the publisher, are matters which might be relied on, if carefully put as part of a submission that the published words did not make the imputation complained of, such matters were in this case used in a way which was both erroneous and liable to confuse the jury.” (emphasis supplied)

116 Fitzgerald AJA held (at [28]) that “If the Councillor's accusation and quoted statement were defamatory of the respondent and that was all that the article relevantly contained, the article also defamed the respondent”. His Honour also accepted, referring to Bik, that if, as the appellant contended, “the article also contains other relevant passages, the words complained of by the respondent must be considered in context to ascertain whether the appellant, by the article, made the defamatory imputations alleged by the respondent. He said (at [29]) that the appellant was entitled to seek to persuade the jury that, when the passages complained of by the respondent were read in context, the article did not defame the respondent. However, he also said (at [30]) that the appellant was not entitled to misinform or confuse the jury by its submissions and concluded (at [31] – [32]) that the trial judge’s conclusion that that was the effect of counsel’s address was correct.

117 A recent illustration of the proposition referred to in Wake that the repetition of defamatory hearsay may be a different libel from that conveyed by the original statement can be seen in Buck v Jones [2002] NSWCA 8 which concerned the publication on a talkback radio broadcast of an allegedly defamatory statement made by a caller. The broadcast provoked several people to sue Mr Alan Jones, the presenter of the radio program, the radio station and the caller claiming damages for defamation. The appeal concerned, in part, one of the plaintiff’s complaint that the jury’s conclusion that the caller’s statement conveyed an imputation but that the same imputation was not conveyed by Mr Jones and the radio station were “necessarily and irreconcilably inconsistent”. The appellant contended that the trial judge ought to have directed the jury that “if it found any of the imputations to have been conveyed by [the caller], those imputations must also have been conveyed by [Mr Jones and the radio station]”.

118 Giles JA (with whom Meagher JA and Grove J agreed) referred (at [61]) to Hodgson JA’s judgment in Heggie and said:

“62 Where the matter published by Mr Jones and 2UE was not coextensive with the matter published by [the caller], even though the matter published by Mr Jones and 2UE was more extensive than the matter published by [the caller], it can not be said that as a matter of law the finding of imputation 6(b) against [the caller] required a finding of the same imputation against Mr Jones and 2UE. The greater publication included the lesser, but what was conveyed by the greater publication was not necessarily the same as what was conveyed by the lesser publication. “ (emphasis supplied)

119 This review of the authorities demonstrates that:

(a) Republication of defamatory hearsay constitutes adoption of the defamatory statement – using “adoption” in the primary sense;

(b) As a general rule the republisher is liable in defamation as if the author of the defamatory hearsay;

(c) To determine what, if any, defamatory imputations are conveyed by the publication in which the defamatory hearsay appears, the matter complained of must be viewed as a whole. Relevant indicia will include whether the defamatory hearsay is approved, reaffirmed and/or endorsed (adopted in the secondary sense), repudiated or discounted and the purpose of the republication.

120 In my opinion the trial judge’s conclusion that the adoption submission was erroneous was correct. The jury could only have understood that submission as meaning that the question whether the matter complained of conveyed the guilt imputations, turned on whether the appellant had actually adopted the sources’ accusations i.e. adopted, in the primary sense, the defamatory hearsay. This was precisely the submission Hodgson JA had said in Heggie (at [21]) was impermissible.

121 I cannot accept Mr Reynolds’ submission that, when viewed in context, what he had put to the jury was that the question whether the appellant had adopted the defamatory hearsay was relevant rather than determinative of whether the guilt imputations were conveyed. The use of the words “I suggest” did not, in my opinion, in any way dispel the force of the adoption submission that the guilt imputations were not conveyed by the matter complained of if the appellant had merely republished the defamatory hearsay.”

108 At 119(b) her Honour referred to “a general rule”. Subject to what follows the cited passages make it clear that the present is not a case that would fall outside the general rule.

109 Mr Wheelhouse, however, submitted that it was such a case. He had prepared, he told Judge Gibson and this Court, an argument modeled upon the remarks of Hodgson JA which, on the rather special facts of this case, enabled the absence of adoption to leave open to the jury a conclusion that Mr Lee had not made the imputation. He submitted that he had not told the jury that adoption was necessary before it could be found that the imputation had been made or conveyed by Mr Lee. Such a course, he accepted, was impermissible in accordance with Heggie (at [21]).

110 There is an issue as to whether that view of how the matter was put to the jury is correct which I shall deal with later. For present purposes I accept that it is so.

111 Mr Wheelhouse founded upon the illustration given by Hodgson JA in Heggie which appears at [114] of my quote from Obeid and in particular the passage:

“Furthermore, if B sued A and the publisher in respect of the publication of that accusation, a finding that A made the imputation would not, as a matter of absolute necessity, require a finding that the publisher also made that imputation. In a case such as that, in my opinion it might be relevant to consider whether the claimed imputation was an allegation made by a person who had an interest in making such allegations and who regularly made them, whether the other side of the picture was published, whether there was any endorsement of the allegation by the publisher or any other suggestion that it was true, and whether there was any intention manifested by the publisher itself to make the allegation.”

112 However, his argument, as presented at the trial and in his written submissions to this Court, did not allow for the qualifications set out by Hodgson JA in the following passages. Immediately following the last quoted passage Hodgson JA said:

“However, all those considerations would only be as matters relevant to the question, does the published material, considered fairly and as a whole, make the claimed imputation.”

He later said:

“Although questions concerning the circumstances of the original making of the allegation, the publication of both sides of the matter, and the lack of endorsement by the publisher, are matters which might be relied on, if carefully put as part of a submission that the published words did not make the imputation complained of, such matters were in this case used in a way which was both erroneous and liable to confuse the jury.”

113 These passages show that it is to the question whether the published words did convey the imputations complained of that the matters mentioned go and not (in a direct sense) to whether the publisher had made them.

114 Mr Wheelhouse relied upon an additional factor that was not raised in Heggie or Obeid. Namely, the terms of s 9(2) of the Act. Section 9 relevantly provides:

“9 Causes of action

(1) Where a person publishes any report, article, letter, note, picture, oral utterance or other thing, by means of which or by means of any part of which, and its publication, the publisher makes an imputation defamatory of another person, whether by innuendo or otherwise, then for the purposes of this section:

(a) that report, article, letter, note, picture, oral utterance or thing is a matter, and

(b) the imputation is made by means of the publication of that matter.

(2) Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient:

(a) in addition to any cause of action which the person defamed may have against the publisher for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication, and

(b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient.”

115 Mr Wheelhouse submitted that the provisions of subs 9(2), which refer first to “where a person publishes any matter ....” and then to “and .... makes an imputation defamatory of another” as leading to the provision “has .... a cause of action against the publisher” support the contention that a distinction can be drawn between the publisher and the person who makes the imputation in an appropriate, he admits rare, case. (emphasis added)

116 The argument, however, overlooks subs 9(1)(b). For the purposes of s 9 (which includes the introductory subs 9(1)), “the imputation is made by means of the publication of that matter.”

117 Thus the publishing of the imputation, which Mr Wheelhouse accepts, amounts to the making of it for the purpose of establishing the cause of action.

118 The relevant parts of s 9 are in the form of the Draft Bill which accompanied the Report of the Law Reform Commission on Defamation published in 1971. The Commission’s “Notes on Proposed Defamation Bill and Rules” contains a detailed discussion of the issues dealt with and considered in the drafting of the section. Nothing in that discussion supports the construction advanced by Mr Wheelhouse.

119 Whilst s 7A was added to the Act much later, the relevant issue it provides for is publication by the defendant and there is no recognition of any issue as to whether the imputation was made, as distinct from published, by the defendant.

120 In my view s 9 does not provide for or support Mr Wheelhouse’s contention that the appellant could put to the jury that he did not make the imputation although he published it. This is, of course, a different question to whether the imputation alleged was not conveyed by the matter complained of and therefore, it would follow, that the appellant had not made the imputation alleged.

121 Grounds 2 and 3 are not made out.

Ground 1

Decision to Discharge a Jury:

122 In Morgan v John Fairfax & Sons Ltd [1998] 13 NSWLR 208 the Court examined in some detail the principles governing the discharge of a jury. (See Kirby P at 211-213; Samuels JA at 219; Clarke JA at 237-239.) The undesirability of discharging a jury, particularly after a long trial, was emphasised by all members of the Court.

123 During address Judge Gibson referred to her view that she regarded the discharge of a jury as “the last resort”. (See Kirby P in Morgan at 212). No doubt in acceptance of the Judge’s awareness of the relevant principles no submissions were made to us which require a detailed examination of them.

Appellate Review of Decision to Discharge a Jury.

124 As McColl JA observed in Obeid a decision to discharge a jury involves the exercise of judicial discretion in an area of practice and procedure. Appellate review of a decision to discharge a jury must be approached with particular caution: Morgan v John Fairfax & Sons Ltd (1998) 13 NSWLR 208 at 221 per Samuels JA, at 237 per Clarke JA.

125 The principles governing appellate review of such a decision were outlined in Morgan (at 214-215) by Kirby P who said:

“1. Where a trial judge has discharged a jury on the ground of misconduct or serious error by counsel, an appellate court should be extremely slow to interfere in the exercise of such a discretion. The reasons for such reluctance are obvious. They include:

(a) the advantages which the trial judge has in seeing the suggested offences in the context of the entirety of the trial: see Street CJ in R v George (at 533-534); citing R v Smith (Court of Criminal Appeal, 8 October 1982, unreported) [reported on other grounds [1982] 2 NSWLR 608];

(b) the advantages which the trial judge has in perceiving factors that may never be fully apparent to an appellate court and which may be specially relevant in the evaluation of alleged misconduct: see, eg, Brereton J in Wishart v Mirror Newspapers Ltd (at 751; 1571; 236);

(c) the recognition of the inescapably opinionative nature of the discretion which the trial judge is called upon to exercise, such decisions being evaluative and not normative in character; and

(d) the particular restraint which is generally exercised by appellate courts in reviewing decisions which may be characterised as concerned with matters of practice or procedure: see Jordan CJ in Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323; 63 WN (NSW) 176 at 179; approved in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177.

2. These considerations, and doubtless others, provide the basis for the repeated expressions of restraint that appear in judgments of appellate courts called upon to review a decision to discharge or to refuse to discharge a jury for misconduct or serious error by counsel. The formulae differ but the instruction remains the same. The language ranges from the injunction that the discretion is ‘so wide that it would be very difficult indeed for this Court to interfere:’ see Taylor (at 389; 691) to the suggestion that the court will intervene only ‘with reluctance and anxiety’: see Wellington v Lake George Mines Pty Ltd (at 328; 75; 629). It is variously stated that the appellant must provide a clear and distinct demonstration that the ‘order was wrongly made’ (see Wishart v Mirror Newspapers Ltd (at 757; 1576; 242) or that the appellate court will hesitate before taking the ‘grave step’ to ‘stigmatise as plainly unjust and unreasonable’ the exercise of a discretion by a trial judge: see Atkinson v Atkinson [1969] VR 278 at 279; (1968) 13 FLR 322 at 323; see also Wake v John Fairfax & Sons Ltd (Court of Appeal, 27 February 1973, unreported) (reported on another point [1973] 1 NSWLR 43); and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 237. Even in the case of criminal appeals, where liberty is at stake and different ultimate criteria apply, the Court of Criminal Appeal has suggested that such applications will ‘rarely succeed’ and this even in the case of a ‘gross’ situation: see R v George (at 534).

3. Nevertheless, there will be cases where an appellate court, with the benefit of more time for reflection, a transcript and the opportunity to stand back from the whole case and to see the conduct complained of ‘against the entire canvass of the trial’, will be in a better position than the trial judge to evaluate the prejudice complained of: cf Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 294; Varga (at 18).

4. If the appellate court concludes that the trial judge's discretion has indeed miscarried and that there is a real possibility that an injustice has occurred, that court, notwithstanding the inhibitions previously stated, may set aside the order complained of and do so not only to ensure justice to the parties before the court but also to uphold the integrity of the legal process.”

126 Similar observations were made by Samuels JA (at 221-222) and by Clarke JA (at 237).

127 In Pavy v John Fairfax Publications Pty Ltd [2004] NSWCA 177 an appeal against the refusal of the trial judge to discharge a jury in a s 7A trial was dismissed. Sheller JA, with whom McClellan AJA and I agreed, said:

“However, I do not think it possible for this Court, removed from the trial courtroom and the atmosphere in which the case was run, to say that her Honour erred in concluding that she would be able appropriately and effectively to deal with the matters raised by counsel for the plaintiff in her directions to the jury.”

128 The same difficulty as to removal from the courtroom and the atmosphere in which the case was run arises in this case, albeit, as Morgan makes clear, that circumstance does not compel a refusal to intervene.

129 It is also relevant that Sheller JA said:

“Of course, her Honour was not considering an application for discharge made at the end of many days of hearing. Further, it probably would have been possible to begin a fresh hearing within a comparatively short time.”

Disposition of Ground

130 Judge Gibson’s principal reason for discharging the jury was because she considered that Mr Wheelhouse had put to the jury, if not in terms in substance, a proposition that had been held to be incorrect in Heggie, namely, that to succeed against the third defendant it was necessary to show that he had adopted the matter complained of.

131 Mr Wheelhouse submitted that he had not intended to and had not, done so but, rather, put the argument which has been dealt with earlier.

132 In my opinion it was open to the Judge to reach the view that she did as to the effect of the material put to the jury by Mr Wheelhouse. Not having the advantage of hearing what was said and, importantly, how it was said I do not think it possible for this Court to conclude that she was in error in forming that view.

133 The course of events is instructive. At the first break in Mr Wheelhouse’s address Mr Dibb submitted that he had transgressed in the way relied upon. It is apparent that at that stage her Honour had a view that that submission was correct. Later, when Mr Dibb submitted that Mr Wheelhouse had continued to transgress, her Honour once again agreed.

134 Semantic and textual examination of Mr Wheelhouse’s address, for example, as to the use of the words “because” and “permissible” may well support the view that an alternative construction of what was said is open.

135 However, no such analysis can reflect the emphasis placed on particular words or phrases in the oral address. The Judge considered that they conveyed to the jury the meanings to which I have referred.

136 Even if the Judge were wrong on this aspect, there remains the circumstance that Mr Wheelhouse had put to the jury and continued to put to it the erroneous submission dealt with in respect of grounds 1 and 2.

137 Judge Gibson was well aware that discharge of the jury was a measure of last resort. After the first application she refused to discharge the jury indicating that she would give appropriate directions although she, correctly, expressed a preference for Mr Wheelhouse to rectify the situation himself. After the second application she again expressed a preference for concluding the matter by direction but, after consideration, on the following day concluded that she was unable to effectively do so.

138 To my mind the words of Meagher JA in Heggie [10] speaking of the experienced trial judge in that case are apt to describe the situation in this matter:

“She knew, and said, that a discharge was a last resort. But she felt – and who can judge the matter better than she – that she was unable to undo all the mischief by giving further directions to the jury.”

139 The Judge referred to her attempt to frame an appropriate direction and the difficulty of doing so in the events that had occurred.

140 There is in this case a further difficulty, although the Judge did not refer to it specifically. The relevant question in respect of the other defendants (which appears at [15]) focuses upon what the matter complained of conveys. The relevant question in respect of the third defendant (which appears at [16]) focuses upon the third defendant and what he conveyed.

141 Mr Dibb had consented to that question and could not ordinarily complain. However, once the matter had been derailed by Mr Wheelhouse’s address the task of putting it back on track would be made more difficult by the presence of a question which laid its emphasis on the wrong issue.

142 Mr Wheelhouse explained to this Court that he had framed the question having regard to both the terms of s 9(2) and s 7A. The observation might be made that much difficulty might have been avoided had Mr Wheelhouse sought a ruling from Judge Gibson on that proposed approach before addresses began.

143 There is, I consider, some force in Mr Dibb’s submission that the jury, experienced as it had become in the unusual circumstances of this trial, may well draw conclusions form the continuance of the theme of Mr Wheelhouse’s address after a period of legal discussion.

144 I consider that a ground for discharge of the jury was made out and that it has not been shown that the mischief could have been rectified by directions. I also consider that it has not been established that the Judge’s exercise of her discretion to, in effect, discharge the jury has miscarried.

145 During addresses the Judge referred to three further matters which caused her concern. She ultimately regarded them as lending weight to her decision to discharge the jury. I should refer to them briefly.

146 The first matter related to Mr Wheelhouse’s reference to the identity of the auditors and there was a latter reference to his client, Mr Lee, not being the auditor Lee. Mr Wheelhouse agreed that he should not have made those references and indicated that he would rectify the relevant mischief in his resumed address. I consider that, standing alone, that is a matter that could have been rectified either by Counsel or by the Judge. As it stood at the time of the discharge it appeared to add a further complication, or potential complication, to the task facing the Judge,

147 The second matter is what Judge Gibson referred to as the “impermissible eliding of these publications”. Mr Wheelhouse had said that the second and third reports “are the same essentially in form and in content and nature as the first report.”

148 There was in fact an important distinction in that the first report referred to publication pursuant to a regulation, a matter upon which Mr Wheelhouse had laid emphasis, whereas the latter two did not.

149 Again Mr Wheelhouse accepted that the matter needed to be rectified and indicated that he would do so. As to that the Judge pointed out that the portion of the address dealing with the adoption argument had been concluded. She observed: “...the poison was already on the jury’s mind and this was the difficulty I then faced”. I consider that, standing alone, that is a matter that could have been rectified either by Counsel or by the Judge. As it stood at the time of the discharge it appeared to add a further complication or potential complication, to the task facing the Judge.

150 The third matter was one in respect of which I think, with respect, her Honour fell into error. She said in her judgment that the difficulties caused by Mr Wheelhouse’s address to the jury “required additional questions for the second defendant and possibly some further address from him.....”.

151 It appears that Mr Hughes, who had completed his address for the second defendant, indicated that he would wish to rely upon the arguments Mr Wheelhouses had later advanced. It is difficult to imagine that an application to reopen would have been granted at that stage in any event. If it were likely to be, in the way the Judge mentioned, a difficulty in the continuance of the trial it would surely have been refused.

152 Having said that, as Fitzgerald AJA observed in Heggie at [33]:

“It is unnecessary to endorse fully the reasons given by her Honour in an ex tempore judgment in order to accept the conclusion that the appellant’s address to the jury was confusing.”

153 It makes no relevant difference if the word “misleading” replaces “confusing”. In this matter it is clear that Judge Gibson regarded the address as both misleading and confusing.

154 The consideration of whether directions would cure the mischief in this case involves, amongst other things, the difficulty of explaining the proper use that may be made of adoption or non-adoption in the ordinary situation. In Heggie Hodgson JA said:

“Although questions concerning the circumstances of the original making of the allegations, ......, the lack of endorsement by the publisher, are matters which might be relied on, if carefully put as part of a submission that the published words did not make the imputation complained of ......” The emphasis is mine.

155 “Carefully” putting such a matter is bound to be difficult where the jury has already been given an approach with a different focus, particularly where that focus has been reinforced by the question provided to them.

156 As I have indicated I do not consider that it has been shown that the Judge’s exercise of discretion has miscarried. Nor do I think that it has been shown there is a real, or indeed any, possibility that an injustice to the third defendant has occurred. It was his Counsel who, amongst other things, persisted in addressing on a basis which the Judge had ruled was not available.

Ground 4

157 This ground deals with costs. On the view I take of the appeal it does not need to be addressed.

Other Matters

158 Whilst not referred to in oral argument the written submissions put:

“.... the claimant respectfully submits that the Trial Judge allowed extraneous or irrelevant matters to guide and affect her, namely her perception that plaintiff’s suffer unfair prejudice in jury trials under s 7A of the Act.”

159 Certain materials are relied upon which I do not consider it necessary to recite.

160 Judge Gibson made her views as to deficiencies in the s 7A procedure very clear and returned to the subject with a frequency which is, with respect, unusual in a judicial officer. However, I can detect no indication that she allowed those views to interfere with appropriate compliance with the statutory provisions nor do I think that a reasonably informed observer would conclude otherwise.

161 Mr Wheelhouse submitted that Judge Gibson had been unfair and mistaken when, after quoting a passage from his address, she said:

“Again, one sees the word “because”. In the course of argument, I asked Mr Wheelhouse if he agreed that the words “because” and “unless” were much the same thing from the point of view of looking at judgments such as Wake, bearing in mind that this word occurs in the passage that is cited in Wake v John Fairfax & Sons Limited [1973] 1 NSWLR 43 49-50, as summarised by Samuels JA in Parker v John Fairfax, which is in turn summarised by the Court of Appeal in John Fairfax & Sons Limited v Obeid (1998) NSWLR 720E.

Mr Wheelhouse agreed, and properly agreed, in my view, that these words “because” and “unless” were much the same thing and that of course is the problem. “Because” really does mean the same sort of thing as “unless”, or even “only”. That is the difficulty that I have.”

162 By reference to the transcript of argument Mr Wheelhouse showed, successfully I think, that even if his concession were more broadly stated, he was intending to confine it to the context of a passage from the judgment of Clarke JA in the case then being discussed John Fairfax & Sons Ltd v Foord 12 NSWLR 720 when he quoted a passage from the judgment of Samuels JA in Parker v John Fairfax (CA, unreported, 30 May 1980) which, in turn, cited the passage in Wake, as follows:

“....and the general principles were expressly affirmed by this Court in Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50. At 50, the Court said this :- ‘There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts it or re-affirms it. .....”

163 However, Mr Wheelhouse’s submission overlooks that Judge Gibson was considering the relevant meanings in that context. The transcript reads:

“WHEELHOUSE: No, your Honour, I was addressing your proposition on the basis that “because” meant the same as “unless” in the passage quoted from Parker by Clarke JA.

HER HONOUR: Once you agree with me, it means the same there and it means the same here. That is my problem. You said to the jury “because”. You have said it as a rule, a general, inflexible rule: “Because my client does not adopt or endorsed he has not published the imputation.”

164 Further, the passage from her Honour’s judgment above indicates that the context “is from the point of view of looking at judgments such as Wake.” It is not to the point that she does not refer to Foord but rather to Wake which is the foundation of the relevant quote.

165 At the least Mr Wheelhouse’s concession accepted that in certain circumstances the words could have the same meaning. Judge Gibson considered that the circumstances of this case, relevantly, were much the same as those, for example, in Wake. Further, it was at least a real possibility that the jury would give the word “because” the meaning which concerned the Judge.

166 Seen in that context I do not consider that the Judge was either mistaken or unfair.

167 In further written submissions, prepared after the judgment on Obeid was handed down, Mr Wheelhouse submitted that that decision supported much of what he put to the jury. That is correct as to certain passages. However, I accept as correct Mr Dibb’s written submission in response where he said:

“Any fair reading of the submission made by Mr Wheelhouse in this case would see that it was not the permissible submission contemplated by Obeid; a submission directed to the question whether, read as a whole and in context, the matter complained of conveyed the imputations. On the contrary, it was a submission that did not deal with the question of whether the imputations were conveyed but rather urged upon the jury repeatedly the view that the Claimant was not responsible for them, even if they were there. That is precisely the submission that Obeid confirms is not open.”

Proposed Orders

168 I propose that the appeal be dismissed with costs.

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ANNEXURES A, B and C follow (with some omissions):

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279001.jpg/$file/2005NSWCA279001.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279002.jpg/$file/2005NSWCA279002.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279003.jpg/$file/2005NSWCA279003.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279004.jpg/$file/2005NSWCA279004.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/LeeChafinal005.jpg/$file/LeeChafinal005.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279006.jpg/$file/2005NSWCA279006.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/LeeChafinal007.jpg/$file/LeeChafinal007.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279008.jpg/$file/2005NSWCA279008.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/LeeChafinal009.jpg/$file/LeeChafinal009.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279010.jpg/$file/2005NSWCA279010.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279011.jpg/$file/2005NSWCA279011.jpg">]

[<img src="/scjudgments/2005nswca.nsf/files/2005NSWCA279012.jpg/$file/2005NSWCA279012.jpg">]

LAST UPDATED: 22/09/2005