Evans v Davies [1990] QSCFC 62 [1991] 2 Qd R 498

' / o v b 0* . 10 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND FULL COURT BEFORE : REVISED copies issued i Court Reporting Bureau | Date- ^ //c> l<p-C/ | Appeal No. 7.7 of 1990 The Chief Justice (Mr. Justice Macrossan) Mr. Justice Shepherdson Mr. Justice de Jersey BRISBANE, 7 SEPTEMBER 1990 (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.) BETWEEN : ALLAN EDWARD EVANS and ROSS ALEXANDER McLEAN (Plaintiffs) - and - Respondents KENNETH H. DAVIES (First Defendant) Appellant - and - TOWERS HART & DAVIES (a firm) (Second Defendant) Appellant JUDGMENT THE CHIEF JUSTICE: Mr. Justice Shepherdson, Mr. Justice de Jersey and I constituted the Court which heard this matter. The order I would make is: allow the appeal; set aside the judgment and order entered below; set aside the jury's answers to questions 1(a) and 1(c) and direct that the answer "Yes" be recorded in relation to each of those questions; direct that the answer "Yes" be recorded to question 2; set aside the answer to question 4; order that there be a new trial on the issues raised by the defences of qualified' O fo&DJ 10 20 30 40 50 60 [1990] QSCFC 62 -- 1 of 97 -- 1 10 20 30 40 50 60 privilege and on the issue of damages; order that the costs of the proceedings below and of the appeal follow the event of the retrial. I publish my reasons. MR. JUSTICE SHEPHERDSON: I would allow the appeal. I would set aside the judgment pronounced in favour of the plaintiffs against the defendant for $95,000, with costs to be taxed, and order that there be a new trial. I agree with the Chief Justice as to the order proposed as to the costs of the trial . I would order that the respondents pay the appellants,' costs of the appeal, to be taxed. I would grant the respondents an indemnity certificate under s.15 of the Appeal Costs Fund Act. I publish my reasons. THE CHIEF JUSTICE: I am authorised by Mr. Justice de Jersey to say that he agrees the appeal should be allowed and with the order w'hich I proposed. I am authorised to publish his reasons, and I now publish them. The order of the Court will be as I have proposed. i 10 30 60 2 -- 2 of 97 -- fc a i<o(<oG-X/ THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No.77 of 1989 BETWEEN : ALLAN EDWARD EVANS and ROSS ALEXANDER McLEAH (Plaintiffs) Respondents -and- KENNETH H. DAVIES (First Defendant) Appellant -and- TOWERS HART & DAVIES (a firm) (Second Defendant) Appellant CHIEF JUSTICE SHEPHERDSON J de JERSEY J Reasons for judgment delivered by the Chief Justice, Shepherdson and de Jersey JJ. on the 7th September, 1990. The Chief Justice and de Jersey J concurring in the orders made . "APPEAL ALLOWED, SET ASIDE THE JUDGMENT AND ORDER ENTERED BELOW, SET ASIDE THE JURY'S ANSWERS TO QUESTIONS 1(a) and 1(c) AND DIRECT THAT THE ANSWER "YES" BE RECORDED IN RELATION TO EACH OF THOSE QUESTIONS; DIRECT THAT THE ANSWER "YES" BE RECORDED TO QUESTION 2; SET ASIDE THE ANSWER TO QUESTION 4; ORDER THAT THERE BE A NEW TRIAL ON THE ISSUES RAISED BY THE DEFENCE AS A QUALIFIED PRIVILEGE AND ON THE ISSUE OF DAMAGES; ORDER THAT COSTS OF THE PROCEEDINGS BELOW AND OF THE APPEAL FOLLOW THE EVENT OF THE RETRIAL." -- 3 of 97 -- IN THE SUPREME COURT OF QUEENSLAND Before the Full Court The Chief Justice Mr. Justice Kelly S.P.J. Mr. Justice Connolly Appeal No. 77 of 1989 BETWEEN : ALLAN EDWARD EVANS and ROSS ALEXANDER McLEAN (Plaintiffs) Respondents -and- KENNETH H. DAVIES (First Defendant) Appellant -and- TOWERS HART & DAVIES (a firm) (Second Defendant) Appellant JUDGMENT - THE CHIEF JUSTICE Delivered the seventh day of September, 1990 CATCHWORDS: Counsel: Mr. I.D.F. Callinan Q.C. and Mr. P.D.T. Applegarth for the Appellants . Mr. R.N. Chesterman Q.C. and Mr. S.S.W. Couper for the Respondents. Solicitors': Messrs. Connolly Suthers for the Appellants. Messrs. Riba, Dent & Smith for the Respondents. 27, 28 and 29 March, 1990 Hearing dates : -- 4 of 97 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 77 of 1989 BETWEEN : ALLAN EDWARD EVANS and ROSS ALEXANDER McLEAN (Plaintiffs) Respondents -and- KENNETH H. DAVIES (First Defendant) Appellant -and- TOWERS HART & DAVIES (a firm) (Second Defendant) Appellant JUDGMENT - THE CHIEF JUSTICE Delivered the seventh day of September , 1990 The relevant facts are set out in the reasons of Shepherdson and de Jersey JJ. On the first point which falls for consideration I agree with their conclusions. The learned trial judge should not have admitted and relied upon the affidavits of those who had been jurors at the trial to set aside the judgment which he had first entered on the basis of their answers . There is no doubt about the guiding principle applicable when an attempt is made to introduce, through jurors, an explanation of their earlier verdict or answers upon which judgment has been entered. The courts will not receive evidence from jurors stating what they intended to find or would, but for some alleged error, have found in cases where they have plainly brought in a contrary finding. In Ellis v. de Heer [1922] 2 K.B. 113 at 121 Atkin L.J. referred to "the general rule that the -- 5 of 97 -- 2 Court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be. The reason why that evidence is not admitted is two-fold, on the one hand it is in order to secure the finality of decisions arrived at by the jury, and on the other to protect the jurymen themselves and prevent their being exposed to pressure to explain the reasons which actuated them in arriving at their verdict." His Lordship added, "To my mind it is a principle which it is of the highest importance in the interests of justice to maintain and an infringement of the rule appears to me a very serious interference with the administration of justice". Other cases demonstrate that members of a jury are not permitted later to say that they meant something different from the answers which they gave at the trial. In Boston v. W.S. Bagshaw & Sons [1966] 1 W.L.R. 1126 at 1137 Denning M.R. said "I am quite satisfied that we cannot receive evidence from these jurors to say they meant something different from what was given in their verdict clearly expressed at the time and, indeed, assented to by them all in the presence of the judge" . Nanan v The State [1986] 1 A.C. 860 is a decision of the Privy Council which fully supports these statements and this Court in R , v , Challinger ' [1989] 2 Qd.R. 352 has adopted the same position. It is the jurors' formal answers on which they have reached agreement and which they unanimously agree shall be brought in as their answers which, on being announced, are paramount. When their verdict or their answers are accepted and they are -- 6 of 97 -- 3 discharged their authority and function end. They are not later to be cajoled into making a retraction or permitted to be questioned by the parties in an attempt to introduce some variation, disharmony or disagreement into the previous picture of unanimity. Policy forbids it and what the jury members later think about their verdict is irrelevant since they are functus officio. There is, however, a distinct category of cases where it may be shown that the jury did not, in fact, agree upon the answer taken from them because some error occurred in conveying to the Court the verdict which they unanimously agreed should be given. Wigmore identifies this category exactly in Vol . 8, Ch. 84, p. 721 where the following appears - "it is universally conceded that a unanimous error of the jury in delivering the verdict as already unanimously agreed on in the jury room may be shown for the purpose of correcting it to correspond, or, when this is not safely to be done, of ordering a new trial". The italics are the author's. Quite a number of cases will be found within this category and they should not in any way be understood as being in opposition to the general principle which has previously been stated. Rather, they should be seen as fully consistent with it since they show that the courts can take steps to ensure that what the jurors have finally agreed shall be delivered as their unanimous• verdict is correctly taken and acted upon as their verdict. Notwithstanding the formal requirements surrounding the taking of the verdict in court under the time-honoured procedures designed to ensure both that it is the unanimous verdict of all -- 7 of 97 -- 4 members of the jury and that it is correctly recorded, in a number of cases it has been found that this safety net has not been fully effective. A case much relied upon by the learned trial judge here is R. v. Cefia (1979) 21 S.A.S.R. 171 but when examined it is seen to fall into the distinct category of cases to which Wigmore (supra) refers as do further cases such as: Baker v. Miles (1731), Cook C.P. 66; 125 E.R. 961; Cogan v. Ebden [1757] 2 Kenyon 24; 96 E.R. 1094; McCulloch v. Ottawa Transportion Commission [1954] 2 D.L.R. 443; Danis v. Saumure [1956] 3 D.L.R. (2d) 221. These authorities enable a distinction to be drawn between instances where there is error occurring at a point between verdict agreed and verdict communicated from others where it may be sought, impermissibly, to delve into the preceding deliberations of the jurors. The limited avenue of correction mentioned by Wigmore is sometimes resorted to in the interests of justice. It does not involve intrusion into the area of the jury's deliberations but examines only errors or inaccuracies which have occurred in conveying to the court the final verdict resulting from the jury's deliberations. The qualification upon the general rule which this distinct category represents does not help the appellant/plaintiffs here. Basing themselves upon a case of alleged error they seek to demonstrate it by inviting the court to examine the processes of the jury's deliberations prior to the time when they reached agreement on their answers. This is just what is not permitted. When the jurors' affidavits are looked at it quite clearly appears that they were unanimously agreed upon what were to be brought in as their answers but they seek to assert that some preceding error -- 8 of 97 -- 5 had occurred in the course of their deliberations which led them to provide answers which they would not have furnished had the preceding error not occurred. This cannot be allowed. The unanimous answer of the jury formally given after a direction free from relevant error binds the jurors as much as it binds the parties. In the present case the learned trial judge was wrong in thinking that the case disclosed by the affidavits fell within some exceptional area where investigation of the jury's preceding deliberations was permissible. The judge allowed himself to be persuaded to undertake an examination of the jury's reasoning, that is their private jury room deliberations, when there was no justification for it. It may be that at some future time exceptional cases will occur such as cannot presently be envisaged and that they will force some further qualification to be made upon the general rule but I see no difficulty with the present case. It falls clearly within the area governed by authority where the course which the learned trial judge was induced to undertake is prohibited. Although, strictly, it is not necessary to add it, it can be said as well, bearing in mind the strong traditional reluctance of the courts to move in the direction which His Honour did, that the factual basis offered in support is, when the affidavits are examined, far from convincing. The affidavits result from private approaches made by one side in the proceedings to members of the jury after they had been discharged and judgment had been entered. It is true that before approaching the jurors to enable affidavits to be prepared, the -- 9 of 97 -- 6 plaintiffs' legal advisors disclosed to the court in advance what they proposed to do and their action was not prohibited nor was any step taken to discourage them. The foreman's affidavit appears to be in terms which have been professionally settled and the affidavits of the other three members of the jury simply express formal concurrence with the foreman's version. No testing of these statements by the opposing parties was undertaken and while, of course, it was quite proper that this should not have been permitted it does show the insecure basis upon which the jury's subsequent assertions must be seen to rest. His Honour said that he regarded the foreman's proffered explanation as "credible". If he meant by this that he regarded the explanation as possibly correct then no exception can be taken to it, but if he meant to suggest that the assertions in the foreman's affidavit should be regarded as convincing, then it is difficult to agree. The affidavit itself leaves too much unanswered as His Honour noted. Not least among the difficulties is the foreman's statement that although the jury did not detect that question number one asked them to say whether ex. 6 had the ordinary and natural meanings set out in that question, they nevertheless turned their minds to that exact topic and arrived at a view upon it but still failed to observe what question number one asked them to answer. This .examination of the contents of the affidavits need proceed no further since the simple and correct answer which the Court must give is that once it is detected that the affidavits purport to deal with the details of the jury's deliberations they should, under the rule already referred to, be disregarded. -- 10 of 97 -- 7 The result is that the plaintiff/respondents are not entitled to retain the benefit of the substituted judgment which was entered, in their favour upon the basis which appealed to the trial judge. There are other matters now to be considered since the respondents argue that the judgment originally entered by His Honour in the defendants' favour should not be re-entered. These were the questions put to the jury and the answers which they gave: "1 . Is the ordinary and natural meaning of ex. 6 that: (a) the plaintiffs' conduct in accepting the appointment was unethical :- Answer:- No. (b) that the plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants :- Answer:- No . (c) the plaintiff should have on ethical grounds refrained from accepting the appointment :- Answer:- No. 2. If you answer "Yes" to any part of question one - Was any such meaning defamatory of the plaintiffs :- Answer:- N/A. 3. Was ex. 6 published by the Defendants to any of the following bodies:- (a) The A.B.I.S. Community Co-operative Society Limited Answer:- Yes. (b) 'The Aboriginal Development Commissioner. Answer:- No. (c) The Department of Aboriginal Affairs. Answer:- No . -- 11 of 97 -- 8 4. If "Yes" to any part of question three, what damages? Answer:- $95,000.00" The plaintiffs as respondents to the appeal have sought to maintain the substituted judgment which the trial judge entered in the circumstances which have already been canvassed. Alternatively, they seek to maintain judgment in those terms upon a further basis which must be examined although it may at this point be noted that after the jury brought in the answers counsel for the plaintiffs did not then move for judgment and did not oppose the defendants' motion for judgment. In the further alternative, the respondents ask for a new trial on the basis of the state of the evidence and the form of the jury's answers. The respondents contend that they are entitled to maintain the judgment on the basis that question one should be answered "Yes" in one, some, or all of its sub-headings (a), (b) and (c). The strength of this submission will be examined shortly. In pressing for judgment on this basis the respondents did not cross appeal but the circumstances of this case are unusual. Judgment had been entered for them below and they simply seek to retain it whether on the basis on which the trial judge had finally entered it or otherwise. I have already stated my conclusion that the judge was not entitled to enter judgment for the plaintiffs on the basis that he did. A further question then is whether the judge would have been justified in entering judgment for the respondents, or alternatively whether judgment for the respondents can now be sustained, on the basis of the jury's answers. When the jury -- 12 of 97 -- 9 brought in their answers counsel for the respondents suggested to the judge that the answers displayed inconsistency, but they did not then take the step of moving for judgment. They now repeat that there was an inconsistency but in their submissions to this court they did not seem to suggest that the answers, considered alone, represent a sufficient basis to justify entry of judgment in their favour - rather they say upon that aspect that it demonstrates that there should be a new trial. It will be necessary to look at this alleged inconsistency to see how far it takes the respondents but, first, there are some more general observations which may be made. In the present case the jury were not asked to find a verdict, either general or special. The form of a general verdict is, in the usual case, simply the jury's statement of the party for whom they find with an assessment of damages if their finding is for the plaintiff: see per McHugh J.A. in Otis Elevators Ptv. Ltd, v. Zitis (1986) 5 N.S.W.L.R. 171 at 197. A special verdict in the technical sense involves the jury's finding on all of the facts in issue accompanied by a form of disclaimer so that the legal effect of their findings will depend upon the correct view in law which the jury leave to the court thus making their finding one either for the plaintiff or the defendant depending upon the legal entitlement as it should be adjudged: see per McHugh J.A. in Otis Elevators (supra) at 197-198 and per Gavan Duffy J. in Russell v. Railways Commissioners [1948] V.L.R. 118 at 122. The giving of a special verdict differs then in form from the simpler procedure of answering of selected questions which are often left to a jury -- 13 of 97 -- 10 by the trial judge. In addition to the last-mentioned two cases, reference may be made on this point to McDonnell and East v . McGregor (1936) 56 C.L.R. 50 at 55-56 and Morosi v. Mirror Newspapers [1977] 2 N.S.W.L.R. 749 at 760. It is however the general practice in Queensland in civil jury trials to require the jury to discharge their function by answering a number of questions which are considered by the judge to be necessary to adjudicate upon the issues which remain for decision. The answers will commonly involve consideration of both fact and law and as to the latter ingredient the jury take their instruction from the judge. Gavan Duffy J. in Russell v. Railways Commissioners (supra) at 123-4 considered that the trial judge, in his discretion, controlled this process and that, ultimately, the decision to follow this course did not depend upon the consent of the parties. This is essentially a point of procedure and I would agree that the opinion which he expresses should be taken as correct under modern conditions in this State. I also think it is correct that the judge can require answers to the questions which he puts to the jury and he is not obliged to inform the jury that they may, if they wish, bring in a general verdict in lieu. In Queensland, I consider that the judge's right to require answers to questions stems from his general power to control the course of the trial and his right is not, in practical terms, diminished by the absence of a specific provision such as exists in New South Wales requiring a jury to furnish answers: s. 29 The Supreme Court Act (N.S.W.) 1970. The trial judge's right in Queensland will be supplemented by s. 46 of The Jury Act but it should no longer be -- 14 of 97 -- taken as limited in every respect by the practice and procedure which may have been applicable in the High Court in England at the time of the enactment of the Queensland legislation in 1929. The difference between the provision of special verdicts and the answering of specific questions at the judge's direction should be regarded as largely a matter of form not substance: Otis Elevators case (supra) at 195 and Russell v. Railways Commissions (supra) at 122-123. I should not, however, be taken as suggesting that a trial judge has the right, without the parties' consent, to put questions which will determine only some of the issues still alive in the trial, reserving the rest for determination by himself. To do this would limit the parties' full right to trial by jury. In the present case no problem arose on these aspects because it was with the consent of the parties that the selected questions were put. In fact, the record discloses that the judge's own preference had been to put different questions which, on being answered, would not have been productive of the inconsistency said to arise here. At this point, the alleged inconsistency should be examined. As will appear, there were certain deficiencies in the form of the questions put. It should be noted that question two does not ask the jury generally to say whether ex. 6 was defamatory of the plaintiffs but only whether any of the suggested meanings are defamatory if it should be found that they represent the ordinary and natural meaning of the document. In view of the negative answer which the jury gave to each part of question one, they quite properly, in deference to the form of question two, refrained from -- 15 of 97 -- 12 answering it altogether. This, it must be assumed, is what they meant by the answer "N/a". However, the jury then went on to answer question three as they appear to have been directed to do. Their answer was that the defendants published ex. 6 to A.B.I.S. but not to the two other bodies named. This answer is clear and no difficulty arises in connection with it. Question four presents problems. The introductory words were probably intended to read "if 'Yes' both to the question two and to some part of question three" . At more than one point in the summing up this is how the jury were directed to proceed. Still, the dominant direction which the jury would have taken with them to the jury room as indicating the course they should adopt was that constituted by the wording of question four as it stood. It asked for an answer even if, by implication, negative or non positive answers were given to questions one and two. At more than one point in the summing-up the jury had been told, expressly or by strong implication, that damages were to be assessed only if the matter was defamatory and a publication had occurred. I am prepared to assume that the form of a summing-up can, in certain circumstances, be relevant to a consideration of what a jury has decided by the answers which they have given, that is as part of the background assisting in an understanding of their answers, but ordinarily every attempt will be made to ensure that the questions put are self-sufficient. What counsel for the respondents here refers to as "inconsistency" arises because the jury were told to assess damages if they were satisfied that the relevant matter was -- 16 of 97 -- 13 defamatory and had been published and they were told to assess on the basis of the harm done by reason of the defamatory publication. After the jury's answers were returned those answers were accepted and the jury were discharged before counsels' views on the form of the answers were sought. Because the jury have found damages in a substantial sum when they were told, in effect, not to assess them unless they considered that there had been a publication which was defamatory of the plaintiff this might have been one of those cases, fortunately rare, where the judge might have felt it desirable to question the jury to explain the answers they were bringing in: cf. Mourani v. Jeldi Manufacturing Co. Ptv. Ltd. (1983) 57 A.L.J.R. 825. This course was not followed and, the answers having been taken and the jury discharged, it is not possible, in my opinion, to say that in view of the very clear nature of the jury's answers to questions one and two there remained any competing implication from their answer to question four which should be given effect to, so as to displace the effect of the answers to the earlier questions. It should nevertheless be said at this point that the jury's assessment of damages cannot be taken as one arrived at by them on the hypothetical basis that a defamation of the plaintiffs had occurred. They had not found any defamation, so there could be no reliable and acceptable basis upon which it might be thought that they were proceeding to assessment. It is not like a case of damages for personal injuries where it might be said that the plaintiff's loss is the same and will be measured in the same way whether or not a relevant causative -- 17 of 97 -- agency is held to be tortious. Here the damage or substantial damage will only be suffered if there is some defamation. In addition, there is the feature that the judge told the jury to assess damages, if at all, only as compensation for a defamation which had occurred. Accordingly, in no eventuality will it be necessary to consider the appellant/defendants' submission that the assessment should be regarded as excessive and should on that account be set aside. It is not possible to be confident that the assessment proceeded on some proper basis. The assessment then simply cannot be relied upon and this is for reasons other than its mere quantum. If, in other respects, the respondents are held to be entitled to retain part of the judgment which was, in substitution, entered in their favour then there would have to be a new trial on the question of damages . Since the respondents cannot, before this Court, base themselves upon some aspect of the jury's answers which might be argued as being in their favour (and they did not so argue below), it is necessary to pass to the next proposition which they assert. They submit that, notwithstanding the jury's answers and the course which was taken below in respect of them, this Court has jurisdiction, which it should exercise, to enter judgment for them. The power of this Court in a proper case to enter judgment on appeal contrary to the findings of a jury is the next matter to be considered. In the present case, without opposition from the parties, the jury were discharged without any general verdict being taken -- 18 of 97 -- from them. This is the course commonly followed in jury trials in this State. The position is then taken to be that the parties have consented to the next common step when the trial judge enters judgment in accordance with the jury's findings. If the parties do not wish the presumption of consent to apply, it is incumbent upon them, in good time, to make their position clear by notifying some appropriate reservation: see Edmond Weil Incorporated v, Russell (1936) 56 C.L.R. 34 at 46 and McDonnell & East v. McGregor (supra) at 55-57. The trial judge in the present case accordingly became obliged to enter judgment in accordance with the jury's answers. Some general debate continues on the question whether a trial judge himself has power to enter judgment contrary to a jury's findings, in effect, disregarding the answers which they have returned. Before the position was affected by the introduction of relevant statutory rules of procedure, the greatest relief which could be ordered without the consent of the parties was a new trial and orders for new trials would, in appropriate cases, be made by the court in banc to which court there would usually be reserved the power to enter such judgment as was called for upon the basis of the jury's verdict. However, by consent or custom, there would also be reserved to the court in banc the power to enter a non suit or a verdict proper in law whether or not in conformity with the jury's verdict. The procedure is stated in the last two cases cited but nothing in those cases gives any support to the view that the trial judge could, or under more modern conditions can, enter judgment contrary to the jury's verdict or answers other than in cases when leave to do -- 19 of 97 -- 16 so has been specially reserved by him prior to the verdict being taken. Members of the High Court were evenly divided upon the question in the later case of Phillips v. Ellinson Brothers Ptv. Ltd. (1941) 65 C.L.R. 221. A single judge of the Supreme Court, Wanstall J. , in Savers v. Perrin and Ors . No. 2 [1966] Qd.R. 74 considered that, as trial judge, he did have this power: see at 84-85 where reference is made to the views of Philp J. in Smith v , McKeough [1954] St.R.Qd. 17 although it may be noted that in the latter case, on appeal, (1953) 89 C.L.R. 520, Williams A.C.J. referred to the question as not being authoritatively decided. The real question probably now is whether 0. 42 r. 6 of the Rules of the Supreme Court applies to extend the power of the trial judge in significant respects and whether the use of the phrase "not inconsistent with the findings of the jury" (the same phrase which in 0. 7 0 r. 11 and 0. 70 r. 26 is expressed to qualify the Full Court's power) introduces any substantial limitation upon the power which the rule might confer. A decision on this important question is not called for in the present case because no application was made below by the plaintiff/respondents for judgment notwithstanding the jury's findings. In passing, it is difficult to resist making the observation that there appear to be strong reasons, procedurally , for denying the trial judge this power, that is unless before taking the verdict or answers the point has in some fashion been reserved. The history given and the reason advanced by Rich and McTiernan JJ. in Phillips v. Ellinson (supra) in addition to the observations in Edmond Weil -- 20 of 97 -- Incorporated v. Russell (supra) and McDonnell & East v. McGregor (supra) are persuasive even though there are undoubtedly cases in England where the opposite conclusion has been reached. It is not asking too much to demand that when a party wishes to argue before the trial judge that in the state of the evidence he is entitled to a non suit or judgment in his favour, he should raise the matter before the jury's verdict is taken, although the trial judge then might, for obvious reasons, still take the verdict, reserving his own decision in the meantime. It might, of course, be difficult for the judge to do this without directing a verdict if the evidence is in fact all one way as will be assumed in typical examples which come to mind. It must be conceded that, as far as a trial judge's power is concerned the answer is not authoritatively established by any decision to which we were referred. The difficulties which attend the giving of an answer on this question no doubt stem from the course of history of procedure in this area together with the fact that the statutory rules of court are not as full or as completely clearly expressed upon this point as they might be. On this aspect, it is enough for present purposes to say that no additional obstacles should be regarded as placed in the respondents' path by the fact that they did not move for judgment before the trial judge, against the answers, unfavourable to them, which the jury had returned. There is no doubt about the power of this Court to set aside a judgment entered in accordance with the jury's verdict or answers in cases where there is no evidence to support the verdict or answers or where they are perverse and such as no -- 21 of 97 -- 18 reasonable jury could possibly find. In some cases, the result will be a new trial (the power to order which is given to this Court and not to the trial judge) but, in other cases, there is a power to be exercised, although only with great caution, to set aside the verdict and judgment and enter a contrary judgment. The relevant statutory provisions are to be found in the Rules of the Supreme Court in 0. 42 r. 6 already referred to and in 0. 70 especially rr. 10, 11 and 26. While it is true that the power which is given to the Court on appeal by 0. 70 r. 11 to draw inferences of fact is expressed to be limited to such as is "not inconsistent with the findings of the jury" (the same phrase as appears in 0. 42 r. 6) this has not been regarded as an obstacle when the court considers that the jury's verdict or answers should be set aside and a contrary judgment entered. A power to make supplementary findings which are consistent with a jury's answers is clearly a beneficial one in cases where the jury's findings are unchallenged or are justified and where a further matter, perhaps collateral only, has not been covered by those findings so that a consistent extension of them will not involve a large step. This, no doubt, is the sort of situation to which the words of the rules apply. It is fundamentally a different matter when the verdict or answer given by the jury is unsustainable or perverse. The appeal court does not then engage in any process of building on to what the jury have expressly found by drawing inferences which are consistent. It sets aside the finding entirely and in this situation is free under a procedure which has been sanctioned by authority to substitute the finding which the jury -- 22 of 97 -- 19 should have made but has unreasonably failed to make. In this, it is not restricted by the inhibiting words of the rule which were introduced with a different situation in mind. This is the justification which is stated by Starke J. in Baird v. Maaripilis (1925) 37 C.L.R. 321 at 334 and his reasoning has been adopted in Smith v. McKeough (1953) 89 C.L.R. 520 at 526. It is no longer relevant that for some of the cases in England where the approach described has been adopted there may have been additional justification because the corresponding statutory rule did not contain the apparently limiting words "not inconsistent with the findings of the jury" nor that one early case in Queensland which set out along the same path was decided when those words did not appear in the corresponding Queensland Rule which is now 0. 70 r. 11: see Clark & Fauset v. Municipality of Brisbane (1895) 6 Q.L.J. 131 especially at 137 per Chubb J. The approach adopted in the last-mentioned case was applied without hesitation in Barns v. The Queensland National Bank Limited [1906] St.R.Qd. 133 at 157, after the Queensland Rules of 1900 came into force, a fact noticed by Higgins J. in the course of the more cautious approach which he expressed in Baird v. Magripilis (supra) at 324 and he himself expressed no disapproval of it. This beneficial interpretation, which is now authoritatively supported, represents a principle of procedure which should be regarded as established. It was applied in this Court in Conrad v. The Chermside Hospital Board [1 982] Qd.R. 242 especially at 251, again a case, like Baird v. Magripilis (supra), where the power was exercised to set aside a jury finding made against the party on whom the burden of -- 23 of 97 -- 20 proof lay and to enter judgment in favour of that party. In Conrad the court reminded itself, in the words used by Starke J. in Baird v. Magripilis, that the power in question "is a strong power [which] must be exercised with considerable caution". It may thus be accepted that this Court has, as the respondent contends, a relevant power (which incidentally the High Court decided it did not possess on appeals taken directly to it from a judge of first instance: see e.g. McDonnell & East Ltd, v. McGregor (supra) at 53-54). This Court then is entitled in a proper case to set aside the jury's answers and enter judgment in a contrary sense. The question is whether it should, as the respondents contend, exercise this power and set aside the jury's findings on question one and enter findings favourable to the respondent on that question and on question two. This requires the evidence and the pleadings to be looked at a little more closely. The defendant/appellants wrote a letter, ex. 6, to the plaintiff/respondents which they caused to be published to A.B.I.S. and which contained the following matter: "Whilst we hand over all records . . . that is not to say that we see no ethical reason to prevent your firm accepting appointment as Accountant for the Society" and "therefore, whilst we believe it is unethical for your firm to accept the appointment, we suggest that your advice to the Board should have been along those lines, nevertheless ... we do not object to your acceptance of the appointment" . The pleaded ordinary and natural meanings of the letter containing the material which has just been quoted were meanings -- 24 of 97 -- 21 which the jury were asked to consider and they by their answers rejected them. The specified meanings were, (a) the plaintiffs' conduct in accepting the appointment was unethical, (b) that the plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants and (c) the plaintiffs should on ethical grounds have refrained from accepting the appointment. Essentially, the writers, who were professional men, were stating in the letter which they caused to be published their view and their belief concerning the plaintiffs' conduct, also professional men, and they used the words already quoted . The plaintiffs pleaded and relied upon innuendoes of the kind which have come to be called "popular" or "false" to distinguish them from innuendoes of that other kind where additional facts beyond the published words themselves need to be known to the recipient of the communication before a defamatory meaning can be read into them. Opinions vary on the question whether it is strictly necessary to plead popular innuendoes although the practice has its advocates: e.g. per Lord Devlin in Lewis v. Daily Telegraph [1964] A.C. 234. If a plaintiff does choose to plead meanings and implications upon which he relies then there is substantial reason for thinking that, as is ordinarily the case when particulars of a pleading are given, he is bound by them: Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157 per Salmon L.J. at 185 and per Gibbs and Stephen JJ. in Sungravure Ptv. Ltd, v. Middle East Airlines Airliban S.A.L. (1975) 1 34 C.L.R. 1 at 7-8 and 14-15. The trend of modern authority seems to lie in this direction and there is -- 25 of 97 -- 22 a lot to support it although Griffith C.J. in Rvan v. Ross (1916) 22 C.L.R. 1 at 11 seemed to be of the view that a plaintiff was not confined to those of the obviously applicable meanings which he might happen to select. In the present case the plaintiffs accepted the procedure adopted at the trial under which these, the quoted meanings, were the only alleged meanings upon which the jury's answers were sought. These are the meanings then to which we are obliged to confine our attention. The respective functions of judge and jury in a defamation trial are well settled. It is the function of the judge to decide if the words said to have been published are capable of bearing a defamatory meaning (and in particular, the defamatory meaning alleged) and it is the jury's task to say if the words are in fact defamatory, that is, do bear that meaning. The question for the judge is commonly described as one of law and that for the jury one of fact, and although there has been criticism of expressing the test in this fashion (see per Lord Reid in Morgan v. Odhams Press Ltd. [1971] 1 W.L.R. 1 239 at 1 242H - 1243A and per Diplock L.J. in Slim v. Daily Telegraph Ltd . (supra) at 174) the description is a convenient one. Section 367 of the Criminal Code enshrines the distinction between the respective roles so far as it applies in Queensland. Before us no issue arises upon the capacity of the words of ex. 6 to be defamatory. The submission which is made by the respondents is the reverse, namely that on no reasonable view are the words capable of being regarded as other than defamatory. The submission is that within the meaning of the -- 26 of 97 -- 23 authorities already discussed the negative answers given by the jury to question one are perverse. The conclusion which the Court is required to come to in the present case is uncomplicated. There is not a context, a set of surrounding circumstances, which in significant respects affects or modifies the meaning which is attributable to the words of ex. 6. The meaning which the defendant/appellants meant to convey by their letter is irrelevant: see per Lord Loreburn in Hulton v. Jones [1910] A.C. 20 at 23. It is equally irrelevant whether any of the officers or staff of A.B.I.S. accepted the viewpoint expressed in the letter: see per Lord Reid in Morgan v. Odhams Press Ltd, (supra) at 1246E. The letter was published to a body with whom both the plaintiffs and the defendants were or had been in an accountant/client relationship. The plaintiffs were to take over appointment as accountants to the client and the defendants were losing to the, plaintiffs the appointment which they had previously held. This Court is at no disadvantage in arriving at an opinion on the question whether the letter was defamatory, that is necessarily defamatory. The question is whether this is a matter upon which reasonable minds may differ. The respondents can only succeed if it is a question on which reasonable minds cannot differ that is if the letter is necessarily defamatory in one or more of the senses stated in question number one. Language is not a precise instrument. It is probably true that most phrases uttered can convey a range of meanings. Some of this range will constitute the ordinary and natural meaning -- 27 of 97 -- 24 of the words used. A number of judges have expressed the view that the words of a communication can have a number of meanings each of which will qualify for the description of "ordinary and natural" although, of course, there may be other meanings as well conveyed to certain readers or listeners which could not properly be so described: see e.g. per Lord Devlin in Lewis v. Daily Telegraph Ltd, (supra) and per Lord Morris in the same case at 265 and the judgment of the Privy Council in Jones v. Skelton [1963] 1 W.L.R. 1362 at 1370-1371 which contains the statement that the "ordinary and natural meaning may therefore include any implication or inference which a reasonable reader . . . should draw from the words" . In Slim v. Daily Telegraph Ltd . (supra) at 1 68-1 69 Lord Denning M.R. accepted that the ordinary and natural meaning of a communication could include a plurality of imputations although Diplock L.J. appeared to voice a preference for the view that the communication could have only one natural and ordinary meaning (see especially at 173-175). This debate and apparent difference may not involve a matter of substance only of form. After all, a statement conveying some meaning can be drafted as a simple composite (perhaps a lengthy one) or it can be divided to express a number of separate implications or inferences. To say "you are a thief" to a person of good reputation speaking with apparent seriousness in front of witnesses is to defame him. If a jury were to find otherwise there would be no difficulty with the proposition that their finding was perverse. The fact that the subject matter of a jury's deliberations in such a case is a matter involving the law of defamation and of -- 28 of 97 -- 25 fact finding in that area does not involve some special magic. In this as in any other area of fact a jury are capable of arriving at a conclusion which is incontrovertibly wrong and which can be set aside on appeal. This has been done in a number of cases involving defamation. In view of the present debate it may be more helpful to cite instances where jury findings against defamatory meaning have been set aside. In Ryan v. Ross (supra) the jury's verdict that certain matter published was not defamatory was set aside and a new trial was ordered. Griffith C.J. at 13 expressed the test in this fashion: It is "difficult to think that reasonable men could say that it is not defamatory"; Powers J. in the same case at 38 spoke of the question as being whether the publication "necessarily casts an imputation" and see per Barton J. at 18-19 and per Issacs J. and Gavan Duffy disagreeing as to the result but at 25 and 27 stating the question in similar terms, viz. whether words "are necessarily actionable" and "incapable" of being considered otherwise. In Blashki v. Smith 17 V.L.R. 634 a jury verdict that a publication was not libelous was set aside because it "necessarily" bore a libelous meaning, a new trial being ordered. In Christie v. Robinson (1889) 10 N.S.W.R. 157 a verdict for the defendant was set aside and a new trial ordered it being said that if a jury's libel verdict is clearly wrong it will be set aside like any other. Doyle v. McIntosh (1917) 17 S.R.N.S.W. 402 was a case where a general verdict for the defendant was set aside and a new trial ordered on the basis that the verdict was "unreasonable" and in Thompson v. Truth and Sportsmen Ltd. No. 1 (1929) 31 S.R.N.S.W. 129 on appeal it was -- 29 of 97 -- 26 adjudged that the publication was necessarily defamatory. In the context of an unsustainable finding that the publication was not defamatory it was in Levi v. Milne [1827] 4 Bing 195, 130 E.R. 743 at 199 observed that "juries are not judges of the law". There are, of course, numerous instances of jury verdicts finding in favour of libel which have also been set aside. To alter somewhat the simple example which I gave previously one may consider the case of a person saying to another of good reputation and speaking with apparent seriousness in front of witnesses "I believe you are a thief" I would again accept the conclusion as inevitable that the person so described has been defamed. But the question for us to consider is whether he has been defamed because amongst the implications conveyed by the remark there is the proposition "you are a thief"? In short, do the words necessarily convey both "I believe you are a thief" and "you are a thief". In the simple context which the example provides I would conclude that both meanings or implications are conveyed by the utterance. This is the question which arises in the present case. The defendant/appellants communicated in terms of a belief or opinion which they expressed. They did not express their view tentatively or in a way which acknowledged the possibility of error or as one previously held but now abandoned or as anything other than a point of view currently held and communicated. While it is true that they simply asserted something as their opinion, the meaning they intended to convey is irrelevant. In Lewis v. Daily Telegraph (supra) Lord Devlin at 285 said "Although suspicion of guilt is something different from proof -- 30 of 97 -- 27 of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire The words of ex. 6 which the defendants used express no qualification upon their opinion. The respondents do not appear to have pressed for a directed verdict below and the trial judge left the matter of the meaning of the words and the question of defamation quite open in his summing up although from his remarks it might be detected that he considered that the substantial issues were publication (this being put in issue in the trial) and damages. The result was that, left at large as they were, the jury found that the defendants7 words did not bear the meanings set out in question one. I consider that those answers and in particular the answers to 1 (a) and (c) should be set aside as necessarily wrong. Apart from the further matters to which I must now turn I consider that it follows that this Court could itself answer question two "Yes" since the context is so confined and, that being so, this Court may be "satisfied that it has before it all the materials necessary for finally determining the question(s) in dispute" (in the words of 0. 70 r. 26). The court is empowered to act as well under the provisions of 0. 70 r. 11. A further question now arises however because the trial judge took from the jury the defences of qualified privilege which had been pleaded by the defendants . -- 31 of 97 -- 28 The portions of the letter, ex. 6, which can (and as I believe, should) be regarded as defamatory have already been quoted. Beyond those statements there is nothing of significance in the letter except for the defendant firm's statement of willingness to hand over the records of A.B.I.S. which the plaintiffs' firm would need, as accountants, to prepare the accounts of A.B.I.S. The allegations of an unethical stance on the plaintiffs part are not made in extravagant language. If the defence of privileged occasion is otherwise available to the defendants this is not a case where any extraneous matter which exceeds the bounds of the privilege has been included in the communication. The two relevant heads of privilege are those arising under sub-ss. (3) and (5) of s. 377 of the Code which read as follows : "It is a lawful excuse for the publication of defamatory matter - (3) if the publication is made in good faith for the protection of the interests of the person making the publication, or of some other person, or the public good; (5) if the publication is made in good faith for the purpose of giving information to the person to whom it is made with respect to some subject as to which that person has, or is believed, on reasonable grounds, by the person making the publication to have, such an interest in knowing the truth as to make his conduct in making the publication reasonable under the circumstances" . At the conclusion of the evidence the trial judge ruled that the defences of qualified privilege were not available and he withdrew those matters from the jury's consideration. Under the Code the task of ruling upon this question falls to the -- 32 of 97 -- 29 trial judge just as it did at Common Law: Telegraph Newspaper Co. Ltd, v. Bedford (1934) 50 C.L.R. 632 per Starke J. at 646 citing Hebditch v. Macllwaine [1894] 2 Q.B. 54 at 58 and per Evatt J. at 657; Queensland Newspapers Ptv. Ltd, v. Baker [1937] St.R.Qd. 153 per Webb J. at 167 and per Henchman J. at 189 and Calwell v. Ipec Australia Ltd . (1975) 135 C.L.R. 321 at 329, 330 per Mason J. If the trial judge in the present case had ruled that the occasion was privileged, the matter of the defences would then have had to go to the jury, that is, for them to decide whether good faith had been shown to be absent. Good faith is a matter for the jury and the burden of proving its absence would have lain upon the plaintiffs under s. 378 of the Code . The relevant definition of good faith appears in s. 377 in these terms: "For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed or by any other improper motive, and does not believe the defamatory matter to be untrue". In dealing with the aspect which it fell to him to decide, that is in deciding whether the occasion of the publication was privileged, the trial judge had to consider the circumstances of the publication: who published it, when, why, and in what circumstances as indicating whether there was a relationship between the parties giving rise "to a social or moral right or duty" (per Starke J. in Bedford's case (supra) at 647 quoting James v. Baird (1916) S.C. (H.L.) 163) and whether the subject -- 33 of 97 -- matter of the publication was too widely stated and contained material falling outside the protection given by the statute (per Starke J. ibid and per Lord Loreburn in Adam v . Ward [1917] A . C . 309 at 321). An appreciation of what Parke B. declared to be the criterion at Common Law for judging whether an occasion is privileged assists in understanding the judge's role under s. 377(3) and (5) - "made by a person in the discharge of some public or private duty whether legal or moral or in the conduct of his own affairs in matters where his interest is concerned", on the basis that the publication is "for the common convenience and welfare of society": Tooqood v. Spyrinq 1 C.M. & R. 181, 149 E.R. 1044 at 193. It is necessary, of course, to have continuously in mind the actual words of the two sub-sections. When the function committed to the jury of deciding upon the aspect of good faith (defined in s. 377) is considered it will be seen that, in some aspects, there is or can be a close relationship between their task and that of the judge. Evatt J. remarked on this connection in Bedford 's case at 663 where he said "Before any question of 'good faith' arises, the precise occasion and reason of the protection is assumed to have been defined and settled, so that the judge is enabled to direct the jury on the elements constituting 'good faith' in the light of his closely interrelated ruling in favour of qualified protection". As to the aspect of relevance which may arise for consideration in the judge's determination whether the occasion is privileged and then as an element of good faith which will be considered by the 30 -- 34 of 97 -- 31 jury see also Calwell v. Ipec Australia Ltd . (supra) per Mason J. at 330. However, the judge must take care to reserve to himself the whole decision on the question whether the occasion was privileged and the extent to which he will be entitled and required to seek findings from the jury to assist him can be expected to lie only in fundamental areas of disputed fact: cf. per Mason J. at 331. Examples of disputed issues upon which the ultimate question for a judge's decision could depend are whether the matter was published and if so to whom. In the present case the trial judge ruled that the occasion was not privileged within either sub-s. (3) or (5) and he did this before the disputed question of publication was resolved. Accordingly, he considered the question on the hypothetical basis that publication had been made to all three of the entities referred to in the questions going to the jury but their subsequent answer found that publication was made only to A.B.I.S. In argument before us it was complained that- the judge did not separately consider privilege in respect of each of the three alleged recipients and so was in error in failing to concentrate sufficiently upon the privilege attaching to the publication to A.B.I.S. We now have to consider publication made only to that body without being distracted by possibly different considerations which may be relevant in the case of publication to the other two named bodies. We have to make up our own minds on the question giving weight to any advantages which His Honour may have possessed by reason of his position as trial judge. His ruling did not result from his being placed in an advantageous position. The wording of the plea in the -- 35 of 97 -- 32 defence did not make altogether clear the basis upon which the claim to privilege depended. The terms of the ruling indicate that the argument advanced at the conclusion of the evidence did not as clearly as it might have done support the relevant claim of privilege. This, perhaps, is what led His Honour to reject the submission then advanced of what could constitute the "subject" of the communication as one relating to peripheral matters. There are some indications given by His Honour in the course of his ruling which are not altogether easy to defend. In deciding whether, under sub-s. (3), the publication was "made . . . for the protection of the interests of the person making the publication" His Honour was occupied by what the defendant Davies was "required" to do or what it was "necessary" for him to do in the circumstances. In judging this question he appears to have been unduly influenced by the fact that Davies could have taken any complaint of unethical conduct to the professional body, the Australian Society of Accountants. In the end, the factual circumstances were not difficult. The plaintiffs had for a time been the accountants for A.B.I.S., then the defendants for a brief period were engaged and then the defendants lost the appointment again to the plaintiffs. The exchanges between the parties over this last circumstance resulted in the publication in question. His Honour accepted that the defendant Davies would have had an interest in maintaining his firm's professional reputation and in particular in retaining the professional link with the client. He thought, however, that this was not enough to make the occasion of the communication privileged under sub-s. (3). -- 36 of 97 -- 33 The purpose of the communication to A.B.I.S. can be stated in this fashion: it was to inform A.B.I.S. of the view that there were ethical objections in the way of its chosen accountants taking the appointment, the author of the letter nevertheless stating that he would co-operate in handing over the necessary records . The subject matter for the purposes of consideration under sub-s. (5) can then be stated as being the ethical propriety of the client's chosen accountants accepting the appointment. A.B.I.S. would have or the defendants could on reasonable grounds have believed A.B.I.S. would have an interest in being alerted to this issue. In giving evidence, Davies appears to have been defensive and reluctant to answer questions but it may be conceded that he continued to maintain that he had a belief in the breach of ethical standards involved in the plaintiffs' taking over the appointment. It is possible to justify Davies bringing this view to the client's attention. In judging the occasion in terms of the defence under s. 377 (5) it is not fair to the defendants to consider the matter solely from the point of view of the interest they would have in retaining or regaining their engagement. It can be thought of as a matter of relevance for the client to be alerted to the fact that it was contended that the accountant it was engaging was proposing to undertake the work in breach of ethical injunctions applicable to it. A client might, with profit, weigh the desirability of engaging the professional services of one who, as it was said, was not prepared to abide by the ethical standards of his profession. It was not a matter -- 37 of 97 -- 34 of mere academic interest, because the attitude involved might be thought to say something in terms of standards, scrupulousness and general reliability. The communication may not in the end have weighed with A.B.I.S. to the point of influencing its decision but it can be regarded as having an interest in knowing of the matter. The plaintiffs might have had a lot which they could say on the issue of the defendants' good faith. They may have wished to say that Davies was motivated solely by spiteful ill will towards the persons to whom he was losing the appointment or a desire, by improper means, to destroy the standing of the plaintiffs as a step towards regaining the appointment but these matters would have lain in the area of good faith which it would be for the jury to determine. I consider that the defence raised under sub-s. (5) should have been allowed to go to the jury on the basis that the occasion of the communication fell within this area of privilege. The conclusion that A.B.I.S. can be regarded as having an interest in receiving the information contained in ex. 6 also takes the debate upon the applicability of sub-s. (3) a certain distance. I would conclude that the defence under the last-mentioned sub-section should also have gone to the jury. The person making the publication, Davies on behalf of his firm, would perhaps have had an interest in maintaining the firm's professional standing in the eyes of their erstwhile client but, more clearly, they would have had an interest in regaining the client now or in the future. Even though other persons in the position of the defendants may have kept their -- 38 of 97 -- 35 counsel and suffered their disappointment in silence thinking that honour demanded it, it can nevertheless be accepted that Davies could properly have felt entitled to pursue a different and more actively defensive course. The defendants can be regarded as justified in making a statement casting their own behaviour in a favourable light and drawing to the attention of the client the comparatively unsatisfactory professional behaviour of the competitor to whom they were losing the business, at least temporarily. They could, in the protection of their interest properly have felt justified in drawing to the attention of the client the comparison between the behaviour of their firm and that of the plaintiffs hoping that the client would note the comparison favourable to themselves and move, sooner or later, to bring the business back to them. Their own interests which they were seeking to protect and advance can be seen as involved in the action which they undertook. The publication did not relate to some collateral disparagement or scandal and was not made to a recipient having no involvement with the issue. The sub-section may not offer a defence to foul means as well as fair, employed in the protection of self interest, but it can apply to conduct which I would apprehend falls within those accepted community norms which underpin the welfare of society. The result is that, subject to the question of good faith, the publication should be regarded as being within the area of protection accorded to "legitimate self defence", to employ the phrase appearing in Lord Macnaughton's judgment in Macintosh v. Dun [1908] A.C. 390 at 401. -- 39 of 97 -- 36 The judgment which was entered below in favour of the respondents should be set aside and a new trial ordered, restricted, so far as is possible, to the applicability of the defences of qualified privilege which were raised and the issue of damages. I would not disturb the jury's finding that ex. 6 was published to A.B.I.S. and that it was not published to the other two bodies named in the questions submitted to them. I have already stated my views upon the inevitability of a finding that the plaintiffs were defamed subject to the jury's view upon the issue of good faith under the defences raised. In the unusual circumstances of this case and in light of the respective contentions both below and before us I think it is right that the costs of the first trial and of the appeal should follow the event of the retrial. -- 40 of 97 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 77 of 1989 Before the Full Court The Hon. The Chief Justice Mr. Justice Shepherdson Mr. Justice de Jersey BETWEEN : ALLAN EDWARD EVANS and ROSS ALEXANDER McLEAN (Plaintiffs) Respondents AND: KENNETH H, DAVIES (First Defendant) Appellant AND : TOWERS HART & DAVIES (a firm) (Second Defendant) Appellant JUDGMENT - SHEPHERDSON J. - FULL COURT Delivered the Seventh day of September, 1990 CATCHWORDS: DEFAMATION - Trial by Jury - Trial Judge receives affidavit evidence from Jurors some days after jury discharged - Jury returned special verdicts - Failed to answer one question - Trial Judge reverses earlier judgment pronounced for defendants. APPEAL - 0.71. Rules 11 and 26 - Whether affidavit evidence from jurors properly received. Counsel: Mr. Callinan Q.C. and Mr. Applegarth for the Appellant . Mr. Chesterman Q.C. & Mr. Couper for the Respondents. Solicitors: Messrs. Riba Dent & Smith, Cairns for the Respondents . Messrs. Connolly Suthers, Townsville for the Appellants. Hearing Dates: 27th and 28th March, 1990. -- 41 of 97 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Appeal No. 77 of 1989 BETWEEN : ALLAN EDWARD EVANS and ROSS ALEXANDER McLEAN (Plaintiffs) Respondents AND: KENNETH H. DAVIES (First Defendant) Appellant AND: TOWERS HART & DAVIES (a firm) (Second Defendant) Appellant JUDGMENT - SHEPHERDSON J. - FULL COURT Delivered the Seventh day of September, 1990 The appellants are the first and second defendants named in an action begun in the Supreme Court of Queensland at Townsville in which the plaintiffs, who are the respondents, claimed damages including aggravated damages for defamation together with interest. The respondents required the action to be tried by jury. According to the Statement of Claim, the alleged defamation lay in part of a letter dated 29th November, 1984 written by the first defendant to Allan Evans and Associates, a firm of public accountants of which the plaintiffs were the members. The letter (omitting formal parts) reads: "Re: ABIS COMMUNITY CO-OPERATIVE SOCIETY LTD. We are in receipt of your letter of the 23rd November, 1984. We would like to clarify one point made in your letter. Whilst we will hand over all records in our possession, to assist you, that is not to say that we -- 42 of 97 -- 2 see no ethical reason to prevent your firm accepting appointment as Accountant for the Society. We believe that as we were appointed Accountants in April, 1984, that we should have been allowed to complete the Financial Statements to the 30th September, 1984. The reasons for the same are as follows 1. At the 30th September, 1984, we were the Accountants for the Society. 2. We have requested on a number of occasions since that-time that the books be presented to us for preparation of the Financial Statements for the Society. 3. The decision taken by the Board in November seems to be based on false information provided. Therefore, whilst we believe it is unethical for your firm to accept the appointment, we suggest that your advice to the Board should have been along those lines, nevertheless, taking account of the urgency of the situation, we do not object to your acceptance of the appointment." The defamatory part was said to lie in the whole letter, save for the first two sentences. At the material times the appellant first defendant was a public accountant and a member of the firm which is the appellant second defendant. The letter in question was alleged to have been published to (inter alia):- 1. A.B.I.S. Community Co-Operative Society Limited ("ABIS ”). 2. Aboriginal Development Commission. 3„. The Department of Aboriginal Affairs. The statement of claim alleged that the letter published referred to the plaintiffs' appointment as accountants for ABIS; that the defendants knew or ought to have known that at all times the acceptance of the appointment by the plaintiffs as accountants to ABIS complied with the ethical pronouncements of the Australian Society of Accountants and that by the words of -- 43 of 97 -- 3 the letter complained of the defendants meant and were understood to mean that:- (i) The plaintiffs' conduct in accepting the appointment was unethical. (ii) That the plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants. (iii) That the plaintiffs should have on ethical grounds refrained from accepting the appointment. The statement of claim went on to allege damage and that the words were published by the defendants out of ill . will towards the plaintiffs or one of them and with a motive of increasing or retaining professional fees payable to the defendants from various aboriginal and Islander based clients and with expectation that the prospective material advantages would outweigh any prospect of loss. In their defence the appellants did not admit publication of the letter complained of. They also pleaded the defences of qualified protection under s. 377(3) and 377(5) of the Criminal Code . The action was tried before Carter J. and jury at Townsville on the 13th, 14th, 15th, 16th and 17th days of November, 1989. Both sides called evidence. The learned trial Judge ruled that the defences under ss . 377(3) and (5) were not to be left to the jury. The background to the dispute in general terms was as follows. A full meeting of directors held at the office of ABIS on 20th November, 1984 unanimously agreed that the accounting work for the organisation be carried out by the plaintiffs' firm. By letter dated 21st November, 1984 written to the first -- 44 of 97 -- 4 plaintiff Allan Evans, ABIS notified Evans of that appointment. The letter stated (inter alia):- "Would you therefore use this letter as your letter of appointment and arrange for the immediate retain (sic) of our files to your possession." On 21st November, 1984 the plaintiffs' firm wrote a letter to the second defendant enclosing the letter of 21st November, 1984 received from ABIS confirming the plaintiffs' appointment. This letter read: "Should there be no objection on your part I would like to collect the files that were handed to your firm in early April this year along with any other records and information of the company that has been generated. Your early reply in this matter would be greatly appreciated to enable me to collect the files as a matter of urgency." (See Ex. 2). On 23rd November, 1984 the plaintiffs again wrote to the second defendant - the letter was addressed to the first defendant. This letter (Ex. 3) referred to the letter of the 21st instant and a subsequent meeting between Allan Evans and the first defendant. It stated (inter alia) that the second defendant was not prepared to release any files until his firm's account was paid. On 29th November, 1984 the second defendant wrote a letter which was signed by the first defendant addressed to the plaintiffs' firm Allan Evans and Associates. The text of that letter has already been set out. That letter which was Ex. 6 was alleged to have been published by the defendants to ABIS, the Aboriginal Development Commission'and the Department of Aboriginal Affairs. I see no need to refer to subsequent correspondence which went into evidence. To return to the proceedings at the trial. After the learned trial Judge had ruled against the defendants on the -- 45 of 97 -- 5 defences under s. 377(3) and 377(5) the transcript for 16th November, 1989 shows His Honour said:- "Gentlemen, it seems to me that the questions for the jury should be as follows:- 1 . Was the letter dated 29 November 1984, exhibit 6, defamatory? 2. If the answer to question 1 is yes, was the letter dated 29 November 1984, exhibit 6, published to - (a) ABIS Community Co-Operative Society Limited; (b) The Aboriginal Development Commission; (c) The Department of Aboriginal Affairs. 3. If the answer to question 2 is yes, what damages? I will need to hear submissions from you in relation to the form of the questions.” Thereafter, following some discussion between counsel and the learned trial Judge in regard to the possible publication by a lady then in Court in a local newspaper of His Honour's reasons as to the defences which might be read by the jury before giving a verdict, Mr. Chesterman Q.C. who was leading counsel for the plaintiffs said - "We would agree with the questions Your Honour proposes with one exception" . The transcript then shows "Notetaking ceased at 3.07 p.m. at the direction of His Honour". Thereafter counsel addressed the jury and His Honour summed up the case to the jury. After His Honour completed his summing up on 17th November, the transcript shows there was some discussion between both counsel and His Honour as to what His Honour had told the jury about aggravated damages. His Honour said that he did not propose to redirect the jury on behalf of either counsel. The transcript shows that at 4.23 p.m. the jury returned having answered the questions left to them. I shall set out exactly what the transcript shows . It will be noted at once that the questions which His Honour had initially proposed -- 46 of 97 -- 6 were varied, presumably at the insistence of plaintiffs' counsel- The transcript shows :- "The jury returned at 4.23 p.m., having answered the questions as follows - 1 . Is the ordinary and natural meaning of Exhibit 6 that: (a) the Plaintiffs' conduct in accepting the appointment was unethical Ans . No. (b) that the Plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants? Ans . No . (c) the Plaintiffs should have on ethical grounds refrained from accepting the appointment? Ans . No, 2. If you answer yes to any part of question 1 was any such meaning defamatory of the Plaintiffs? Ans. N/A. 3. Was Exhibit 6 published by the defendants to any of the following bodies: (a) the A.B.I.S. Community Co-Operative Society Limited? Ans. Yes . (b) the Aboriginal Development Commission? Ans. No. (c) the Department of Aboriginal Affairs? Ans. No . 4. If yes to any part of question 3, what damages? Ans. $95,000 . HIS HONOUR: Members of the jury, thank you for the attention that you've given to the case. I must say I have been enormously impressed by the attentive and conscientious way you went about your duties. You had a difficult task to perform and you have carried out your duties in accordance with the highest standards of jury service. Jury service is a very honourable form of public service. It's also very onerous. I am able to discharge you now with the thanks of the State for your services as jurors. Does somebody move for judgment? MR. WALL: I do, Your Honour. -- 47 of 97 -- 7 HIS HONOUR: Do you have anything to say, Mr. Chesterman? MR. CHESTERMAN: In view of the answer to question 1, I don't think I can, Your Honour. There's inconsistency, of course, but in view of the answers to question 1, I don't think I can. HIS HONOUR: What judgment do you move for? MR. WALL: For the defendants with costs, Your Honour. HIS HONOUR: I give judgment for the defendants with costs to be taxed. MR. WALL: If Your Honour pleases. The Court adjourned at 4.27 p.m." It will be noted that when His Honour asked Mr. Chesterman whether he had anything to say, the latter said that in view of the answers to question 1 he did not think he could but he pointed out that there was inconsistency. He did not identify that inconsistency. This was not the end of this matter although it might fairly be argued that it was the end of the trial. The matter came before His Honour in Chambers at Brisbane at 2.15 p.m. on 21st November, 1989. The weekend of the 18th and 19th November had intervened. Mr. Chesterman Q.C. appeared for the plaintiffs and Mr. Applegarth who had been Junior Counsel for the defendants at the trial also appeared. The transcript of proceedings at this time shows that His Honour had asked counsel to attend because the Registrar of the Court in Townsville had faxed to His Honour a copy of a letter dated 21st November, 1989 written by the plaintiffs' solicitor, who is a Cairns solicitor, to the Registrar. Mr. Applegarth had not seen that letter. The text of the letter appears in an affidavit of Robin Lindsay Smith the plaintiffs' solicitor filed in a later proceeding before His Honour. Part of that letter read:- -- 48 of 97 -- 8 "Following the taking of the verdict on the 17th November the jury was discharged. On Monday, the 20th November, 1989 Mr. Evans, one of the plaintiffs, was approached by one of the jurors who indicated his surprise at the article which appeared in the Townsville Bulletin on Saturday, the 18th November, 1989 indicating that the plaintiffs had been unsuccessful in the action and had been ordered to pay costs. The juror indicated that it had been the intention of the jury to award damages in accordance with the finding made by them in the sum of NINETY-FIVE THOUSAND DOLLARS ($95,000-00) to the plaintiffs and the juror further indicated that it had been the intention of the jury to find that the words published were defamatory of the plaintiffs. It appears that there was some confusion by the jury with regard to the first question submitted to them for their determination. We understand, that an approach was made by another juror directly to the Registry of this Honourable Court concerning the matter. It appears to us, that the verdict of the jury as conveyed to the Court did not properly represent the findings of the jury and in those circumstances, we ask that His Honour Mr. Justice Carter re-convene the Court so that the verdict can be corrected. In this regard we refer you to The Queen v, Cefia (1979) 21 S.A.S.R. 171." The letter went on to ask that a copy be sent to the learned trial Judge. The transcript of the proceedings at 2.15 p.m. on 21st November, 1989 shows that neither the trial Judge nor counsel had had sufficient time to consider any authorities. Mr. Applegarth really had no instructions on the matter. Copies of the letter were given to both counsel and the matter resumed before His Honour at 4.36 p.m. on 21st November, 1989. Again, these proceedings were transcribed. The transcript shows that His Honour then had no intention of speaking to the jury. He said:- "I should make it clear that my reading of the authorities indicates that the Judge needs to be particularly careful about the way in which the jury is approached in the matter and I wouldn't intend to enter into any discussions with them of any great -- 49 of 97 -- 9 length. I would have thought that the first step was for there to be put before me, in an appropriate form or in the proper form, material upon which I can act. Now, I don't regard the letter as sufficiently indicating the basis upon which I should do anything." Later Mr. Chesterman said "We will approach the jurors and get an affidavit from them". To which His Honour responded "That really is a matter for yourself". Mr. Chesterman referred to having his solicitors take out a notice of motion. His Honour referred to some authorities. Mr. Applegarth then said to His Honour:- "There is one matter I should raise because I have only briefly looked at it and it concerns the obtaining of affidavits and that is that there is an obvious difficulty in obtaining an affidavit, and I say this as a general proposition, that it depends very much upon the question asked and I wonder whether it ought to be a matter that is taken up by the Registrar ...." His Honour said:- "I don't think I would, anticipating your submission Mr. Applegarth - I don't think I would impose upon the Registrar. I don't think it is his function. I think it is matter between the parties and I would simply allow the matter to take its course ... I think some of the cases suggest that affidavits have been obtained by a party who seeks to rely upon them. Whether or not they will be admitted, of course, is another question" . It is quite clear that at that stage all relevant authorities had not been considered and the matter of obtaining any affidavits was left to the parties. Thereafter, the plaintiffs' solicitors, through Brisbane agents, filed a notice of motion returnable before the learned trial Judge on 24th November, 1989. That notice of motion sought primarily that the judgment for the defendants pronounced on 17th November, 1989 with costs to be taxed, be vacated and that in lieu there be judgment for the plaintiffs against the defendants for $95,000.00 with interest. The notice of motion -- 50 of 97 -- TO was supported by affidavits of the four jurors. The affidavit of the plaintiffs' sdlicitor, Robin Lindsay Smith, to which I have already referred was also relied on. This affidavit shows the circumstances under which the affidavits from the jurors were obtained. Mr. Smith's affidavit shows that on 22nd November, 1989, as a result of advice from counsel, he telephoned Mr. Messer, a partner of a Townsville firm of solicitors, and requested Mr. Messer to approach each of the jurors in relation to the matter and obtain from them "an affidavit relating to the verdict delivered". Mr. Smith then disclosed the contents of a facsimile message sent to Mr. Messer on the same day. That facsimile gave the names and addresses of the jurors and included the following "We enclose a copy of the list of questions and answers given by the jury. Clearly the jury somehow mishandled the answers to question 1 . The answers to question 1 are quite simply in conflict with the answers to questions 3 and 4. Could you please urgently obtain from each of the jurors an affidavit regarding their answers to the questions and advise us as soon as this has been done." No transcript was made of the proceedings when the notice of motion was heard by Carter J. on 24th November, 1989. The appellants sought to read in this Court an affidavit of Leon David Pommer, a Townsville solicitor as to the hearing on 24th November, 1989. This Court gave no ruling on that application. The appellants also sought to rely upon an affidavit of William Ernest Burrows, a clerk in the Supreme Court Registry at Townsville, as to a conversation alleged to have been had with N., one of the jurors. Again this Court gave no ruling on the admissibility of that affidavit before this Court. In the view which I take of this matter it is unnecessary for the Court to refer to either of these affidavits. On 28th -- 51 of 97 -- 11 November, 1989 the learned trial Judge delivered reasons for judgment. The judgment pronounced on 17th November, 1989 had not been perfected. His Honour recited the history of the matter from the time the jury retired to consider its verdict. Of the hearing of the notice of motion he said:- "When the hearing of the notice of motion commenced counsel for the defendants objected to the admissibility of the affidavit material sworn by the four jurors. I reserved for consideration the objection because it seemed to me that the admissibility or otherwise of the material sworn by the four jurors depended ultimately upon the question whether by reference to it the state of the law is such that one is empowered to correct the judgment taken as a result of my having acted upon the answers given by the jury on the afternoon of Friday, 17th November ." His Honour then set out the relevant part of the affidavit sworn by N. who was one of the four jurors. That portion of N.'s affidavit was as follows "2. I believe that the verdict delivered was incorrect because of a misunderstanding by the jury as to question 1. 3. The Jurors (with unanimity from the outset of our deliberations) were of the view that: (a) The Plaintiffs' conduct in accepting the appointment was not unethical; (b) That the Plaintiffs did not act contrary to ethical pronouncements of the Australian Society of Accountants; (c) That the Plaintiffs need not on ethical grounds have refrained from accepting the appointment. We were also of the view that the ordinary and natural meaning of Exhibit 6 was that: (a) The Plaintiffs' conduct in accepting the appointment was unethical; (b) The Plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants; and -- 52 of 97 -- 12 (c) The Plaintiffs should on ethical grounds have refrained . from accepting the appointment. 4. We interpreted question 1 as asking us to answer, not in relation to what Exhibit 6 meant, but rather in relation to the substance of the allegations contained in Exhibit 6. 5. We concluded on the evidence that the Plaintiffs had not acted improperly in any way, but that Exhibit 6 meant that they had, and in accordance with that conclusion our findings should have been "Yes" in relation to paragraphs 1(a), 1(b) and 1(c). It was only because we misunderstood the nature of the question that we answered "No" in each case. 6. We did not answer question 2 because that question was framed in such a way that it was only necessary to answer it if we had answered "Yes" to any part of question 1 . Had we correctly understood question 1 , and answered "Yes" to each part of it, we. would have gone on to find that Exhibit 6 was defamatory of the Plaintiffs. 7. Our answers to questions 3 and 4 are correct. 8.. It was only because of our misunderstanding of question 1 that the error arose. There was complete unanimity in relation to our conclusions on the evidence . 9. Thus, our findings on the evidence were inadvertently mis-stated because of our misunderstanding of the question. The true answer to question 1(a), 1(b) and 1(c), was "Yes" in each case." The other three jurors had sworn affidavits in each of which they virtually rubber-stamped what N. had sworn in his affidavit by saying that each was "in full accord with the contents of that affidavit". To return to the learned trial Judge's reasons, His Honour considered a number of authorities. He correctly recognized, to use his words: "The general rule is that a jury cannot be permitted to impeach its own verdict: Boston v. W.S, Bagshaw & Sons (1966) 1 W.L.R. 1135; Lalchan Nanan v. The State (1986) 1 A. C . 860". He went on to say that the cases illustrated the contest between on the one hand the compelling policy considerations which operated against permitting the jury to resile from its verdict -- 53 of 97 -- 13 and on the other the interest of justice in ensuring that the jury correctly communicates to the Court and to the community that which it has decided in the jury room. He said:- "The policy considerations can never be so compelling however as to justify in all cases what might otherwise be seen to be a gross miscarriage of justice in a particular case. The resolution of these competing considerations might be seen to be reflected in the rule that if the answer of the jury which is communicated to the Court is different from that agreed upon in the jury room the policy considerations should give way in favour of permitting the jury to correct its answers. The source of the error might be a mere clerical slip, or perhaps inadvertence or perhaps error arising in some other way. Objectively speaking it might with truth be said that a person or a group of 4 or 12 persons cannot be heard to say that when they said 'Not Guilty' they meant 'Guilty' or. that when they said 'Yes' they meant 'No'. However the rule seems to assume that such an unlikely event may well occur with a jury and the cases seem to acknowledge the reality of errors of that kind. On the other hand the jury cannot be allowed to seek to alter its answer correctly communicated because it misunderstood in error the consequences or the legal effect of what was found and correctly communicated to the Court". His Honour considered the jury's affidavits and recognized that they had sworn that they answered "No" to each part of question 1 because of an error in understanding what was expected of them. His Honour appears to have placed some importance on the jury's having proceeded to answer question 3 discriminating as between the three parts of it and then answering question 4. In the end, he decided that he had power to vacate the judgment, that the degree of lapse of time after which the verdict of jury may be corrected must depend on its particular circumstances and that he should vacate the judgment. His Honour did so and gave judgment for the plaintiffs against the defendants for $95,000.00 with costs to be taxed. -- 54 of 97 -- The present appeal is brought by the appellant defendants against that judgment. There is no cross appeal by the plaintiffs. The appellants rely on a number of grounds . They have sought leave to add a further ground, 5A, the effect of which is that this Court should receive fresh evidence on the hearing of the appeal namely the evidence from W. E. Burrows as to an alleged conversation between him and the juror, N., on 20th November, 1989. This Court did not give leave to the appellants to add that further ground and in fact deferred ruling on it. The Court also deferred any ruling on admissibility on the hearing of the appeal of the affidavits of Pommer and Burrows. I turn now to ground 1 which reads: 1 • THE LEARNED TRIAL JUDGE ERRED IN LAW IN VACATING THE JUDGMENT GIVEN FOR THE DEFENDANTS AND THEN GIVING JUDGMENT FOR THE PLAINTIFFS . This ground centres on receipt of the affidavits of the jurors and reliance on them by the learned trial Judge. Mr. Callinan Q.C., counsel for the appellants in this Court, criticized the actions of the solicitors for the respondents in approaching the jurors and discussing with them the answers returned to questions 1 and 2. I have already mentioned the way in which Mr. Smith, the plaintiffs' solicitor, says he handled this aspect of the matter. Mr. Smith probably felt that he was acting in the best interests of his client and no doubt, because a juror had spoken to his client, felt that he was obliged to follow the matter further. In Ellis v, Deheer (1922) 2 K.B. 11.3 Atkin L.J. at 121 said:- "The Court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was 14 -- 55 of 97 -- 15 given or by way of statement as to what he believed its effect to be." The relevant authorities on this topic of admissibility of jurors' affidavits were gathered and discussed by the Privy Council in Lalchan Nanan v. The State (1986) 1 A.C. 860. That case was followed by this Court sitting as the Court of Criminal Appeal in R. v. Challinqer (1989) 2 Q.R. 352. I do not propose to repeat here all that was said in Challinger (see especially pp. 363 and 364). I shall however repeat part of the extract from the judgment of the Privy Council in Lalchan Nanan's case which was quoted in Challinqer's case:- "Two reasons of policy have been given as underlying the principle. The first is the need to ensure that decisions of juries are final; the second is the need to protect jurymen from inducement or pressure either to reveal what has passed in the jury room, or to alter their view : see Ellis v. Deheer (1922) 2 K.B. 113, 121 per Atkin L.J. Lord Denning expressed the principle very clearly in Boston v. W.S. Bagshaw & Sons (Note) (1966) 1 W.L.R. 1135, 1136 when he said:- 'To my mind it is settled as well as anything can be that it is not open to the Court to receive any such evidence as this. Once a jury have given their verdict and it has been accepted by the Judge, and they have been discharged, they are not at liberty to say they meant something different . ' 11 In the same case Harman L.J. said at 1137:- "It would be destructive of all trials by jury if we were to accede to this application. There would be no end to it. You would always find one juryman who said 'that was not what I meant' and you would have to start the whole thing anew. Interest reipublicae ut sit finis litium." In R . v . Wooler (1817) 6 M. & S. 366; 105 E.R. 1280 at 374; 1283, Bayley J. said:- "But great danger would be likely to follow from receiving affidavits of jurors after their verdict has been recorded. It ought to be done with great caution and circumspection." -- 56 of 97 -- 16 In my view the general rule must be that members of a jury cannot and must not be approached to give explanations of verdicts in both criminal and civil cases after verdicts have been recorded. The reasons for this rule have been stated. There will however always be cases (no doubt rare) where a juryman comes forward after the verdict has been recorded to make some statement about what has passed in the jury room. The reasons for that event will no doubt be varied e.g. the juror may believe that an error has occurred or he may wish to sell his story to a newspaper. In the instant case, we have one juror at least approaching a Registrar of the Court three days after the verdict and thereafter solicitors interviewing the four jurymen. I consider that in a case such as the present, the solicitors, with knowledge of the substance of one juryman's statement to the Registrar were entitled to speak to him -to find out whether the matter complained of was one of which in accordance with well established principle, the juror was not permitted to speak or it was one of the comparatively rare cases in respect of which he is allowed to speak e.g. as to what took place in open court. I do not think that in the present case the solicitor should have spoken to the other three jurymen. I also think that the solicitors, having found that the first juryman was speaking of a misunderstanding in the jury room, should not have taken the matter further as they did. I would add that in the general case I consider it quite wrong for a juryman to sell to a newspaper his story as to what occurred in the jury room and for any member of the media to encourage such a story. On the question of admissibility of evidence from jurors the rule is well settled. That is that for the purpose of -- 57 of 97 -- setting aside the verdict, evidence from jurors is not admissible to prove what discussions took place in the jury box or in the jury room (see also Ras Behari Lai & Others v. The King-Emperor (1933) 50 T.L.R. 1 at 2. That rule does not exclude jurymen from swearing to what took place in open court ( Roberts v. Hughes (1841) 7 M. & W . 399; 151 E.R. 821. Mr. Callinan did not rely on Challinqer' s case alone. He cited numerous authorities including Wigmore on Evidence, (McNaughton Revision) vol . VIII, paras. 2348, 2349 and 2356. I pause at this stage to point out that in the present case the transcript of what occurred when the jury returned with the answers to the questions left to it, does not show precisely what occurred. For example, in a criminal case the practice is for the Associate to ask the foreman - "Are you agreed upon your verdict" or words to that effect and after the foreman has responded by pronouncing the jury's verdict the Associate further says - "So says your Foreman, so say you all" or words to like effect to which each member of the jury is expected to respond. On the civil side, one would have expected similar questions to have been asked of the jury foreman and for those questions and answers to be shown in the transcript. This is not to say that such procedure was not followed in the present case. In my view, given that it may on occasion become necessary • to know exactly what occurred at the time the jury returns its verdict, it is highly desirable, to say the least, that the shorthand writers transcribe all that is said in open court including the questioning of the foreman and jury members as to their verdict. This is necessary to ensure that the verdict or verdicts given is or are unanimous. -- 58 of 97 -- 18 I mention s. 46 of the Jury Act 1929-1982 which reads :- "46. Application of Rules of High Court of Justice in England. In every case whatsoever of trial or assessment by jury, when no other mode of proceeding is specially provided, the jurors and jury and every trial or assessment by them shall, as far as may be practicable, be subject to the same rules and manner of proceeding as would be observed in the High Court of Justice in England on the like trial or assessment" . Mr. Carter, in the annotation to his work "Carter's Criminal Law of Queensland" (7th edition) refers to 26 Halsbury's Laws of England (4th ed . ) para. 601-700 for the manner of proceeding in the High Court of Justice in England. Halsbury does not specifically refer to the questioning of the jurors as to their verdict. The importance of unanimous verdicts is well illustrated in Ellis v. Deheer (supra). There, on an application for a new trial of an action tried before a jury on the ground that the verdict as delivered by the foreman was not the verdict of the whole jury the Court admitted affidavits of certain of the jurors that they did not hear the verdict delivered and did not assent to it and, the Court, accepting those statements to be true held they were not precluded from granting a new trial by the fact that the objection to the verdict was not taken until after the jury had been discharged. I have noticed that in the case of Boston v. W.S. Bagshaw and Sons (supra) (which was reported also as a Note in 1967 2 All E.R. 87) Lord Denning's judgment shows the questions asked of the jury and the answers given. "... the jury were asked 'Were the defendants actuated by malice' to which they answered 'No' . The Associate asked them in accordance with the time honoured practice: 'Are they the answers of you all'. The foreman answered 'They are ? ." That case was also one in which there was a motion for a new trial. In Nanan's case (supra) I note that Lord Goff of -- 59 of 97 -- 19 Chieveley in delivering the judgment of the Privy Council (at p. 873) when discussing a submission that it was necessary for the Court to direct the jury on the need for unanimity, where unanimity was reguired by law, referred to one of the members of the Court of Appeal of Trinidad and Tobago in Nanan's case having said:- "That the trial Judge ascertained the jury's unanimous verdict by 'the time honoured practice of addressing two questions through the Clerk of the Court to the foreman in the presence and hearing of all the jurors The importance of the questioning of the jury at the time of taking a verdict was emphasised in the judgment of Berwick C.J. in Milqate v. The Queen (1964) 38 A.L.J.R. at p. 162 where he said:- "Therefore the Clerk of Arraigns formula on the taking of a verdict should not be expressed in a perfunctory way nor allowed to appear as a mere statement of an assumed or concluded state of affairs which should be clearly interrogative of the members of the jury." Although as I have said there is no suggestion in this case that the answers to the questions pronounced in open court were not dissented from by any member of the jury I have taken this opportunity, because of what I perceive to be a defect in the transcription of the record of proceedings, of explaining the need to record all that is said in open court when a verdict, be it a verdict in a criminal or a civil proceeding, is brought in. I return to the case of Boston v. W.S. Bagshaw & Sons (1966) 1 W.L.R. 1135, a decision approved by the Privy Council in Nanan's case (supra) . As I have said the case was noted on the motion for a new trial. The substantive appeal is reported in 1967 2 Q.B. 108. The facts on the motion for a new trial are not dissimilar from those which obtain in the present case. It -- 60 of 97 -- 20 will suffice if I read portion of Lord Denning the Master of the Rolls' judgment (at p. 1136): — "This is a motion for a new trial. We are told that there are affidavits from all the twelve jurymen, in which they wish to go back on some of the answers given by them in open court. They were given several questions to answer. They deliberated for five hours and came back into court with answers which were as clear as could be. It is not possible that there could be any misunderstanding as to the questions or the answers. In respect of each of two publications the jury were asked: 'Were the defendants actuated by malice?' To each they answered : 'No'. The associate asked them, in accordance with the time-honoured practice: 'Are they the answers of you all?' The foreman answered: 'They are'. The answers were duly recorded and they were discharged. On the next day the judge, after argument, held that on those answers the plaintiff failed and the defendants were entitled to judgment. It appears that the jurors did not anticipate the result. They read it in the newspapers and some of them communicated with the plaintiff and his solicitors. Further inquiries were made. Then all the twelve jurors made affidavits indicating that they gave those two answers under a misapprehension; that they meant to find malice; and that they would, if they could, change these answers so as to say that the defendants were actuated by malice. Mr. Hirst asks us to receive those affidavits and to order a new trial. To my mind it is settled as well as anything can be that it is not open to the court to receive any such evidence as this. Once a jury have given their verdict, and it has been accepted by the judge, and they have been discharged, they are not at liberty to say they meant something different." Lord Denning then went on to consider other authorities to which it is unnecessary to here refer. Harman L.J. and Diplock L.J. agreed, with the former making the quote which I have already mentioned in these reasons. To return to the present case, when one looks at the contents of the affidavit of N. - and it is necessary only to look to that because the other three jurors have agreed with what he says - one finds N. saying in paras. 4 and 5 that it was only because the members of the jury misunderstood the nature of -- 61 of 97 -- 21 question 1 that the jury answered "No" to each part of question 1 . N. has also gone on to explain why the jury did not answer question 2 and to say that was "because that question was framed in such a way that it was only necessary to answer it if we had answered 'Yes' to any part of question 1". He has said that had the jury correctly understood question 1 and answered "Yes" to each part, the jury would have gone on to find that Ex. 6 was defamatory of the plaintiff. In these parts of his affidavit N. is saying what took place in the jury room and these statements clearly offend the old and well established principle as restated by Lord Atkin in Ellis v. Deheer and confirmed yet again in Lalchan Nanan v. The State and by this Court in R. v. Challinqer . The historical analysis by the Privy Council in Nanan's case shows that the principle can be traced back at least as far as R. v. Woofer in 1817. Nanan ' s case itself is one in which the Court refused to receive affidavits from the foreman and three other jurors stating that they had not been aware that all had to be agreed upon the verdict and that eight had been in favour of one verdict and four of another. The rejection of this affidavit evidence had serious consequences indeed for the applicant defendant who had been convicted on a charge of murder and sentenced to death. He had appealed against the conviction on grounds other than non-unanimity of the verdict. The Judge did not direct the 12 jurors that their verdict had to be unanimous. In the presence and hearing of all the jurors the Clerk of the Court asked the foreman whether he and the other members of the jury had agreed upon a unanimous verdict and the foreman said they had. The Clerk then asked him whether the defendant was guilty or not guilty as charged and the foreman replied that the -- 62 of 97 -- 22 defendant'was guilty. No protest was made by any juror and the Clerk did not ask whether the verdict was one on which all members of the jury were agreed. Nanan's case may be thought to have brought about a "hard" or "unfair" result but it was clearly in accord with well established principle. Given that state of the law one asks why should these affidavits by N. and the other jurymen be admitted. The learned trial Judge in his reasons given on the 28th November, 1989 clearly accepted the rule which had been repeated in such cases as Ellis v. Deheer , Boston v. W.S. Bagshaw & Sons and Lalchan Nanan v. The State . His Honour thoroughly considered these authorities. After so doing he went on to say:- "The trial Judge however has a discretion to elucidate any perceived ambiguity in a jury's answers and to elucidate one or other and in that circumstance to give the jury the opportunity of amending its answer to remedy manifest error or mistake. However this discretion should be exercised sparingly and with care : Mourini v. Jaldi Manufacturing Ptv. Ltd. (1983) 57 A.L.J.R. 825". Mourini' s case involved an appeal after a trial before a Judge and jury in New South Wales on a claim for damages for personal injuries for negligence and breach of statutory duty. In that case the trial Judge had found it necessary to ask certain questions of the jury because the foreman had made a statement that the appellant's injury was covered by the compensation money he had been getting. The jury had been asked a series of questions .and to the damages question had written "Nil". The jury answered "No" to the question of common law negligence and "Yes" to the question of statutory negligence. The Judge instructed the jury in accordance with certain legislation that they must put the compensation moneys out of their consideration. There were two further retirements for -- 63 of 97 -- 23 consideration of its verdict and further directions from the Judge after which the jury found verdicts for the respondent on the common law count and for the appellant for $1,000.00 on a statutory count. The High Court held that (inter alia) the Judge had rightly taken the course he did in seeking elucidation of the answer to the question on damages and giving the jury an opportunity to amend its answer to remedy manifest error or mistake. The High Court also held the Judge was also entitled in the very unusual circumstances which had arisen to overcome by further direction his omission in his summing up to give any real direction in relation to the Workers' Compensation payments. The High Court held that the discretion to seek such elucidation as the Judge had done should be exercised sparingly and with care. It is apparent that in Mourini ' s case the Judge had questioned the jury before the jury was discharged. With respect, I consider that Mourini ' s case does not apply to the present case and that the learned trial Judge erred in deciding that he had such a discretion. I say that because by the time the motion by the plaintiffs had come on for hearing before the learned trial Judge on 24th November, 1989 the jury had long since been discharged after having given their special verdicts and without giving any general verdict. The effect of the discharge without any objection by counsel for either party meant that the Judge's control over the jury had ended (see McDonnell ' & East Ltd, v. McGregor ((1936) 56 C.L.R. 50 at p. 56-57) and Edmond Weil Incorporated v. Russell ((1936) 56 C.L.R. 34 at pp . 46-47). The learned trial Judge, having decided that he had the discretion to which I have referred, then considered in some detail Boston v. W.S. Bagshaw & Sons , and later said:- -- 64 of 97 -- 24 "It is also clear from the cases that giving these principles due weight, nonetheless there are circumstances in which the Court will act on the unanimous assertion of the jurors that a mistake was made ." He referred to the South Australian Supreme Court decision of The Queen v. Cefia (1979) 21 S.A.S.A.R. 171. I shall return to Cefia shortly. His Honour then referred to other authorities including Wigmore on Evidence vol . VIII, para. 2355, McCulloch v. Ottawa Transportation Commission (1954) 2 D.L.R. 443, Dardarian v. Schnieder (1956) 3 D.L.R. 292 and Davies v. Saumure (1956) 3 D.L.R. 221. He then said:- "The cases illustrate the contest between, on the one. hand, the compelling policy considerations which operate against permitting a jury to resile from its verdict and, on the other, the interests of justice in ensuring that the jury correctly communicates to the court and to the community that which it has decided in the jury room. The policy considerations can never be so compelling however as to justify in all cases what might otherwise be seen to be a gross miscarriage of justice in a particular case. The resolution of these competing considerations might be seen to be reflected in the rule that if the answer of the jury which is communicated to the court is different from that agreed upon in the jury room, the policy considerations should give way in favour of permitting the jury to correct its answers. The source of the error might be a mere clerical slip, or perhaps inadvertence or perhaps error arising in some other way. Objectively speaking it might with truth be said that a person or a group of four or 12 persons cannot be heard to say that when they said 'Not Guilty' they meant 'Guilty' or that when they said 'Yes' they meant 'No'. However the rule seems to assume that such an unlikely event may well occur with a jury and the cases seem to acknowledge the reality of errors of that kind. On the other hand the jury cannot be allowed to seek to alter its answer correctly communicated because it misunderstood in error the consequences or the legal effect of what was found and correctly communicated to the court." His Honour then went on to consider the contents of the jurors' affidavits. In the course of this he said:- "... it is clear that the jurors all say unequivocally that having considered question 1 and its three parts they unanimously decided upon an affirmative answer but answered 'No' in each case because of an error in -- 65 of 97 -- 25 understanding what was expected of them. Having been unanimous that they should answer 'Yes' in each case and that they had also agreed unanimously that the letter was defamatory they refrained from answering question 2 because of its form His Honour considered the jurors' assertions to be credible and later said:- "I see no reason to doubt the credibility of what they now assert. Of course they were not cross-examined nor was application made to cross-examine. If such an application were made it must of necessity have been refused because any cross-examination would have needed to delve into the matter of the jury's deliberations in the room." On the aspect of the jury having been discharged the learned trial Judge said:- "The mere fact that the jury has been discharged does not operate to bar the application to correct the answers given. There is no case which holds that this is so. Rather the concern appears to focus on the dispersal of the jury once it has been discharged. It is clear from Cef ia that the trial Judge had discharged the accused having regarded the jury's verdict and some of the jurors had left the court room but were still within the precincts of the court." It is necessary to consider The Queen v, Cefia (1979) 21 S.A.S.R. 171 because of the apparent importance placed on it by Carter J. The facts in that case as taken from the headnote were :- "The foreman of the jury, when called upon to give the verdict of the jury said 'Not Guilty' . The trial Judge discharged the jury and the prisoner and some of the members of the jury left the court room but were still in the court building. The Registrar was in the process of adjourning the court and the Judge was leaving the bench when an officer of the court who had been informed by one of the jury called out that there had been a mistake. The trial Judge recalled the jury and upon questioning, the foreman and each member of the jury stated that the verdict reached had been 'Guilty' and that the foreman had said 'Not Guilty' in error. The Judge accepted the verdict of 'Guilty' and sentenced the prisoner." On appeal upon the ground that the verdict - as originally announced should have remained the verdict, it was held that the -- 66 of 97 -- 26 jury were entitled to correct the error made by the foreman and that the appeal should be dismissed. The report of the case contains a transcript of what occurred both when the verdict was first returned and after the jury were reassembled. One notes that the trial Judge referred to the verdict having been "simply a slip of the tongue". Cefia's case, in my opinion, fell within the class of case referred to in Wigmore (McNaughton Edition) at para. 2355. That paragraph deals in part with a situation where the error at the time of announcement of the verdict is a unanimous one by all the jury. The authors of Wigmore say:- "When the verdict as announced or delivered is different - and all of the jurors agree that it is different - from the verdict as assented to in the jury room at the time of voting, the case is the same as that of a deed which by mutual or common mistake does not conform to the original agreement as avowedly made by the parties to the deed. Just as such a deed may be reformed in equity upon satisfactory proof of error (para. 2417 infra), so such a verdict may be corrected to represent the verdict actually agreed upon by the jury as a whole" King C.J. and Sangster J. in Cef ia decided the case was covered by the principle that where a jury has in fact agreed upon its verdict but by error has communicated not that verdict but something else that jury - acting unanimously - may correct that error and correctly communicate the verdict actually agreed upon (see p. 173). Their Honours referred to the above para. 2355 and a number of other authorities which were examples of that principle.' In my respectful view Cef ia is distinguishable from the instant case. I do not consider that the fact that in Celia's case the jury had been discharged but had not then left the court precincts was of such moment that the learned trial Judge should have followed it for that reason. In the view which I take of the present matter, it is not one in which it is -- 67 of 97 -- 27 necessary to decide whether there is a time limit after which a correction of a jury verdict may not be made. With respect, I do not find the argument that because the jury in Cef ia had been discharged, that that case should be relied on to show that in the present case the learned trial Judge should have power to correct the jury's special verdicts after they had been discharged. I say that because, first of all Cef ia was a case in which a slip of the tongue was corrected by the jury acting unanimously when it correctly communicated the verdict which they had actually agreed on in the jury room and secondly because the present case is quite different because here, the learned trial Judge frankly said that the jurors answered all the parts of question 1 "No" through an error in understanding. With respect, I fail to see that the present case falls outside the principle recently restated in Lalchan Nanan v. The State (supra). 1 have come to the conclusion that in the present case the learned trial Judge erred in admitting the affidavits of the jurors and in deciding that he could rely on them to vacate the judgment he had already entered and instead that he could give judgment for the plaintiffs. The present case is one when, to use the words of Hope J.A. in McCulloch v. Ottawa Transportation Commission [1954] 2 D.L.R. 443 at p. 445:- "No evidence can be received by way of affidavit or otherwise after delivery of the verdict to explain some, error or mistake which occurred during the deliberation of the members of the jury in the jury-room before arriving at a verdict." On this ground the appeal must succeed. Mr. Chesterman however, argues that his clients, having succeeded in obtaining judgment, are entitled to support the correctness of the judgment appealed from. Although he did not -- 68 of 97 -- 28 quote any particular authority I understood him to be relying on the well known decision of N.R.M.A. Insurance Limited v. B. & B. Shipping and Marine Salvage Co. Ptv . (1947) 47 S.R. N.S.W. 273 at p. 282. I note that in Mallet v. Mallet (1984) 156 C.L.R. 605 Mason J. (as he then was) said (at p. 629):- "it is well settled that the respondent to an appeal is entitled to support the correctness of the judgment appealed from by an argument not presented below, at least when that argument does not depend on an issue of fact not litigated in the lower courts : N.R.M.A. Insurance Limited v. B. & B. Shipping & Marine Co. ((1947) 47 S.R. N.S.W. 273 at p. 292; Suttor v. Gundowda Ptv. Ltd. (1950) 81 C.L.R. 418 at p. 438)." It is to be noted that Mason J.'s view is qualified in that the supporting argument must not depend on an issue of fact not litigated in the lower court. Mr. Chesterman argues that the letter, Ex. 6, is clearly defamatory and that the jury as reasonable men would have understood it of the plaintiffs and in the defamatory sense (Halsburys Laws of England) 4th ed., vol . 28, para. 225). He has argued that the jury properly directed could only have answered question 2 "Yes" . In saying this I note from the above para. 225 the author says:- "The questionwhether the words complained of are defamatory of the plaintiff is a question of fact for the jury . . . the true test according to the authorities is whether in the circumstances in which the statement was published, reasonable men to whom the publication was made would understand it of the plaintiff and in a defamatory sense." Authorities are cited for these propositions. Mr. Chesterman relies on cases such as Baird v. Magripilis (1925) 37 C.L.R. 321, Conrad v. The Chermside Hospitals Board (1982) Q.R. 242 and Smith v. McKeough (1953) 89 C.L.R. 520 to show the power in this court to set aside a jury's verdict against a party carrying the burden of proof and to substitute -- 69 of 97 -- 29 an affirmative finding. These authorities show that it is a power to be exercised with considerable caution. I shall shortly return to Baird v. Maaripilis . The course which Mr., Chesterman seeks to tread has a number of obstacles for him. First is the fact that the jury did not answer question 2 and there is therefore no finding that the letter complained of was defamatory. There is then no finding for this Court to set aside. How therefore can this Court substitute on that vital issue - "Was Ex. 6 defamatory?" - a finding favourable to the plaintiffs? Second, what of the appellants' further ground of appeal namely ground 9 that the learned trial Judge erred in law in rejecting the defences of the defendants under s. 377(3) and s. 377(5) of the Criminal Code. If this Court should conclude that that ground is made out then, in the absence of any other reason for allowing the appeal, there would be an order for a new trial. The defendants however as appellants oppose an order for a new trial and say that because the learned trial Judge gave judgment in favour of the plaintiffs because of inadmissible evidence from the jurors, that judgment should be set aside and the earlier judgment pronounced in favour of the defendants restored. In such event the defendants say it matters not to the defendants whether a special verdict was sought from the jury on one or both of the defences under s. 377(3) and s. 377(5). Third, and probably most important, is the principle stated by Dixon J. in McDonnell East Ltd, v. McGregor (1936) 56 C.L.R. 50 at p . 54:- -- 70 of 97 -- 30 "If the court below takes a general verdict or findings from a jury and if, after having done so, it has no authority under the law governing its procedure to interfere with the verdict or findings of the jury or to disregard them but is required to give effect to them, then this court stands in a like position and it cannot go behind the verdict or findings." And His Honour's statement at p. 56 of the same case:- "When a jury answers specific questions and is discharged without giving a general verdict, the jury and the parties are, in the absence of express objection, taken to have authorised the court to enter such verdict and consequent judgment as flows in law from. the answers which are given." In the case now before this Court the jury did answer some specific questions without giving a general verdict. The jury did not answer probably the most important question - question 2. It appears a reasonable inference that plaintiffs' counsel at the trial was not content to allow the specific question in terms of question 2 to be left to the jury as the learned trial Judge had suggested but required as well a question in terms of question 1 to be submitted to the jury for its answer. The jury's answers to question 1 led the plaintiffs' counsel at the trial to say . to . the learned trial Judge (as appears from the earlier quoted portion of the transcript) that although the answers were inconsistent he could say nothing against His Honour pronouncing judgment for the defendants. The position of the learned trial Judge after the jury was discharged was set out by Dixon J. in McDonnell & East v. McGregor (supra) at p. 57:- "No doubt until a general verdict is returned the Judge has full control. But that is because the trial has not concluded and the jury is there under his direction to perform whatever duties are imposed by law upon it. But after its discharge the position is necessarily different. Henchman J. had no authority to do other than he did and upon appeal from his judgment this Court has no greater power to go behind the findings or add to them". -- 71 of 97 -- 31 What Mr. Chesterman seeks from this Court is this - assuming the appeal is allowed on the basis that the jurors' affidavits were wrongly admitted into evidence then he says this Court should permit the judgment given to stand, by in effect correcting the answers to question 1 so that answers to all those questions are "Yes" and by adding to the jury's findings by answering question 2 in favour of the plaintiffs. It may be thought, on the authority of McDonnell & East v. McGregor (supra) that we have no power to do that. It may also be thought that if this Court corrects the answers to question 1 and answers question 2 "Yes" it is doing so in circumstances where there has been no motion by the plaintiffs who are the present respondents to set aside the jury's special verdict in its answer to question 1 . True it is there has been no appeal by the plaintiffs against His Honour's judgment in their favour. It is also true that there has been no application under 0. 70, r. 21 to set aside the verdict or finding given in answer to question 1. Thus, Mr. Chesterman is in effect asking this Court to set aside the findings in the answers to question 1 and make an additional finding. In Baird v. Magripilis (supra), this Court set aside a finding of a jury taking the view that it was not a finding which the jury, viewing the evidence reasonably, could properly reach. In that case the jury had given a special verdict by answering . "No" to a question which was later set aside and answered "Yes". That is I think an essential difference between that case and the present one in that here the jury did not answer question 2. This Court's powers on appeal stem from 0. 70, r. 11. One cannot ignore 0. 70, r. 26. Rule 11 expressly refers to the powers of this Court "upon the hearing -- 72 of 97 -- 32 of an appeal" and Rule 26 expressly refers to powers of this Court "upon the hearing of an application for a new trial or to set aside the verdict or finding of a jury". Both rules refer to the power of this Court to "draw inferences of fact not inconsistent with the findings of the jury". In Baird v. Magripilis when the case was in the High Court on appeal from this Court, Starke J. said (at p. 338) - in a passage which was quoted by Williams A.C.J. in giving the judgment of a later High Court in Smith v. McKeough (1953) 89 C.L.R. 520 (at p. 526):- "Under the Judicature Rules, an appellate Court, where all the facts are before it, and it is satisfied that the evidence is such that only one possible verdict could reasonably be given, is not bound to order a new trial, but has jurisdiction to give any judgment and make any order which ought to have been made, notwithstanding the verdict of a jury Millar v, Toulmin ((1886) 17 Q.B.D. 603; Allcock v. Hall ((1891) 1 Q . B. 4 4 4; Skeate v. Slaters Ltd. ((1914) 2 K.B. 429, at p .441; Winterbotham Gurney & Co. v. Sibthorp and Cox ((1918) 1 K.B. 625); Clouston & Co. v. Corrv ((19 06) A . C . 122); Paguin Ltd, v. Beauclerk ((19 06) A . C . 148; Everett v. Griffiths ((1921) 1 A.C. 631; and cf. Toulmin v. Millar ((1887) 12 A.C. 746. The Rules of the Supreme Court of Queensland are not precisely the same as the Judicature Rules (cf. Order LXX., rr . 11 and 26). They allow 'any inferences of fact not inconsistent with the findings of the jury, if any'. It is not disputed that the Supreme Court has always exerted the same power under its Rules as the Court of Appeal has exerted under the Judicature Act . And I think this practice can be supported as a matter of law. The court clearly has jurisdiction to set aside the verdict of a jury which is unreasonable or perverse, and if a finding is set aside and no longer exists, then it seems to me that the authority to draw inferences of fact under the Rules may be exercised (cf. United States v. Motor Trucks Ltd. (1924) A.C. 196). But that authority will only be exerted where the evidence is such that only one possible verdict could' reasonably be given upon the evidence: it is a strong power and must be exercised with considerable caution (1925) 37 C.L.R., at p. 334." It seems to me that if the answer to each part of question 1 still stands, there having been no appeal brought against those findings, if this Court did answer question 2 "Yes" it would be making an additional finding and a finding quite inconsistent -- 73 of 97 -- 33 with the findings of the jury in answer to question 1 . In the circumstances of this case it is unnecessary to decide whether either rr. 11 or 26 gives this Court power to do that. In the way in which this case has proceeded and the arguments presented, this Court must first decide whether or not the answers to any of the three parts of question 1 must be set aside and any of those parts answered "Yes". I say that because unless that is done, this Court, if it does decide that question 2 must now be answered and answered "Yes", will be giving an answer inconsistent with the findings in the answers to each part of question 1. This Court has undoubted power to set aside the findings of the jury in their answers to each part of question 1 . ( Baird v. Magripilis (supra) and Conrad v. The Chermside Hospitals Board (1982) Qd. R. 242. As I have said these cases also show that that power is to be exercised with considerable caution. Question 1 I have already set out. Each part was prefaced by the words "Is the ordinary and natural meaning of Ex. 6 that: " Thus, this Court is required to consider Ex. 6 and if it reaches the conclusion that the only one possible answer which could reasonably be given to any part of question 1 is "Yes" then it must set aside the finding in such part and substitute its own finding. In Blashki v. Smith (1891) 17 V.L.R. 634 at p. 639 A'Beckett J. described the Court's task in that case with these words :- "To upset the verdict we should see no escape from a libellous interpretation". The jury answered question 1 as follows:- -- 74 of 97 -- 34 "1 . Is the ordinary and natural meaning of Exhibit 6 that: (a) the Plaintiffs' conduct in accepting the appointment was unethical Ans . No. (b) that the Plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants? Ans. No. (c) the Plaintiffs should have on ethical grounds refrained from accepting the appointment? Ans . No. " In my view when one reads Ex. 6 only one possible answer can reasonably be given to each part of that question and especially parts (a) and (c) and there is no escape from that answer which is "Yes". I would therefore set aside the jury's findings in their answers to each part of question 1 and substitute the answer "Yes" to each part. This leaves them the next matter and that is whether or not this Court should now answer question 2 - a question which, given the way in which question 1 was framed, the jury declined to answer. It may finally be said that given that this Court has substituted answers to question 1, that the answer to question 2 should be given by a jury at a new trial, the jury at the first trial having declined to answer that question because of the way in which question 2 was drafted. Nevertheless, I think that this Court should consider whether or not question 2 should be answered, because the answer bears on whether the qualified defences issue is alive or dead. -- 75 of 97 -- 35 I bear in mind the words of Lord Loreburn L.C. in Paquin Ltd, v. Beauclerk (1906) A.C. 148 at p. 161 (quoted by Starke J. in Baird v. Magripilis) - "Obviously the Court of Appeal is not at liberty to usurp the province of a jury; yet if the evidence be such that only one conclusion can properly be drawn I agree that the Court may enter judgment." This present case is in a number of ways unigue and it may be said that uniqueness justifies this Court answering question 2. The matters giving the case its unique and I would add exceptional quality are :- 1. On 17th November, 1989 the learned trial Judge gave judgment for the defendants with plaintiffs' counsel not arguing against that course. 2. On 24th November, 1989 the learned trial Judge vacated that judgment and, for reasons already canvassed, gave judgment for the plaintiffs for $95,000.00 3. We have no way of knowing whether, had the judgment not been reversed, the plaintiffs would have applied to set aside all or any of the findings of the jury in their answers to question 1 . The time for such motion had not expired by 24th November, 1989. It is quite clear that if this Court, having decided that any part of question 1 should be answered "Yes" then sends the matter back for a new trial, leaving to the jury the question "Was the letter Ex. 6 defamatory of the plaintiff" and if it be correct that only one possible answer can reasonably be given to that question namely "Yes" there is always a risk that the jury may perversely answer the question "No". In such event, the matter would once again appear in this Court which would be asked to set aside that finding and answer the question "Yes". -- 76 of 97 -- 36 In my respectful view, this Court should in an appropriate case avoid the possibility of such a state of affairs occurring, if the course it takes brings to an end proceedings between the parties. Such a step would be taken with considerable caution. The focus then is on the answer to question 2. If this Court concludes that there is no escape from answering that question "Yes" and if that answer would bring to an end proceedings between the parties then in my view it should do so. As I have said the case is exceptional and, it may be said, this Court is adding to the jury's findings if it answers question 2 (cf. Dixon J. in McDonnell & East Ltd, v. McGregor (1936) 56 C.L.R. 50 at p. 57). However, "public interest demands that justice be provided as swiftly and as economically as possible" (per Sir John Donaldson M.R. Naylor v. Preston Area Health Authority (1987) 1 W.L.R. 958 at 967). I have read the reasons of the Chief Justice and I agree with his conclusion that in effect the only possible answer which could reasonably be given to question 2 is "Yes". I agree with his reasons for that conclusion. The prefacing of the phrase "it is unethical ..." with the words "we believe" do not, in my view, affect the meaning of the statement "it is unethical". Next there are the qualified defences under s. 377(3) and (5) of The Criminal Code . I have read what the Chief Justice has to say in his reasons on this aspect. I agree with his reasons and the course he proposes as to a new trial save that I do not agree that it should be limited so far as possible, to consideration of the defences of qualified privilege and the matter of damages. Nor would I allow the findings in the answers to question 3 to stand. These are matters for a fresh -- 77 of 97 -- 37 jury at the new trial. Because there has to be a new trial, I would not add to the jury's findings by answering question 2. This is not an appropriate case for the Court to answer that question. How the learned trial Judge deals with the views expressed by this Court as to the only answer which can reasonably be given to the question "Was the letter of 29th November, 1984 defamatory of the plaintiff" will no doubt unfold at the trial. I note that in Doyle v. McIntosh (1917) 17 S.R. N.S.W. 402 the New South Wales Court of Appeal ordered a new trial in a libel action on the ground that the words used were only capable of a defamatory meaning and that the verdict was unreasonable. There then followed a motion for leave to appeal to the Privy Council. Pring J. in giving his reasons on that motion said (at p. 415):- "Mr. James ... contends that on the second trial the Judge would be bound to tell the jury that they must find a verdict for the plaintiff. That proposition I altogether deny. The Judge who presides at the next trial must leave the question of libel or no libel to the jury ." The libel there was contained in a newspaper article. Here the defamation is found in a letter. In my opinion there should be a new trial and the jury should be asked to decide (inter alia) whether or not the letter of 29th November, 1 984 was defamatory of the plaintiffs. I say this because there will be a new trial, the answer to that question is a matter for the jury and not the Judge, the parties are entitled to have the question answered by the jury and the jury have also to consider the matter of publication (see question 3), the qualified defences and the matter of damages. There is no need for this Court to formally answer -- 78 of 97 -- 38 question 2 because such an answer will not bring to an end these proceedings between the parties. Before I conclude I should I think mention the old decision of Hendle v. Qualtrough (1899) 9 Q.L.J. 218. In that case Chubb J. held that the power to set aside or disregard the findings of a jury was not confined to the Full Court but might be exercised by a judge at first instance where it appeared on the hearing after trial, either from some point of law or from some fact not comprised in the questions of fact submitted to the jury, that the ultimate decision ought in point of law to be contrary to the finding. In reaching that conclusion His Honour had regard to a number of authorities including Ex-Parte Morgan (1876) 2 Ch.D. 72 and especially observations of James L.J. (at p. 82) and Baggallay J. (at p.93) and Brett J. (at p. 96). As I read Hendle v. Qualtrough it is really an example of a judgment non obstante veredicto and an example of the principle exemplified by Baird v. Magripilis . Chubb J. enquired whether on the findings as they stood the plaintiff was entitled to judgment or whether, notwithstanding the findings and consistently with them, on undisputed facts, or in point of law, the defendant was entitled to judgment. The result of his enquiry was judgment for the defendants. I do not think Hendle v. Qualtrough conflicts in any way with the order which I propose in the present case. I would add for the sake of historical completeness a reference to Savers v. Perrin (No. 2) (1966) Qd.R. 74 where at pp. 85 and 86 Wanstall J. (as he then was) pointed out that Chubb J .' s decision was affirmed by this Court in an unreported decision. Wanstall J. obtained the old file on that case and in his -- 79 of 97 -- 39 reasons made certain comments based on the information on the file. In my opinion the appeal must be allowed. I would allow the appeal, set aside the judgment of Carter J. pronounced in favour of the plaintiffs against the defendants for $95,000.00 with costs to be taxed and order that there be a new trial. I agree with the Chief Justice as to the order he proposes as to the costs of the trial. I would order that the respondents do pay the appellants costs of the appeal to be taxed. The respondents sought an indemnity certificate under s. 15 of The Appeal Costs Funds Act 1973 (as amended) on the basis that this appeal, if successful, involved a question of law. The appeal has proceeded on questions of law. The question arises - should a certificate be awarded in a case such as the present where the respondents actively sought the judgment which was, in my respectful view, erroneously entered? Such considerations . were discussed in Lauchlan v. Hartley (1980) Qd. R. 149 at 151 and Brisbane City Council v. Ferro Enterprises Pty. Ltd. (1976) Qd. R. 332. The reasons of Carter J. demonstrate that the respondents' contentions were arguable. His Honour and the parties were confronted with a very unusual situation and the respondents' course is understandable. I would grant the respondents an indemnity certificate under s. 15(1) of the Act. -- 80 of 97 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 77 of 1989 Before the Full Court The Chief Justice Mr. Justice Shepherdson Mr. Justice de Jersey BETWEEN : ALLAN EDWARD EVANS and ROSS ALEXANDER McLEAN (Plaintiffs) Respondents -and- KENNETH H. DAVIES (First Defendant) Appellant -and- TOWERS HART & DAVIES (a firm) (Second Defendant) Appellant JUDGMENT de JERSEY J. Delivered the day of 990. CATCHWORDS : Civil jury trial - entry of judgment following announcement of jury's findings - subsequent reception of affidavits by jurors deposing to mistake - entry of contrary judgment in accordance with views expressed in affidavits - whether correct to receive affidavits - whether error deposed to such as to warrant vacating judgment entered in accordance with findings - whether findings open on evidence - whether findings inconsistent - qualified protection Counsel: Mr. I.D.F. Callinan Q.C. with him Mr. P.D.T. Applegarth for appellants Mr. R.N. Chesterman Q.C. with him Mr. S.S.W. Couper for respondents Solicitors Messrs Connolly Suthers for appellants Messrs Riba Dent and Smith for respondents Hearing dates: 27th, 28th, 29th March, 1990 -- 81 of 97 -- IN THE SUPREME COURT OF QUEENSLAND Appeal No. 77 of 1989 BETWEEN : ALLAN EDWARD EVANS and ROSS ALEXANDER McLEAN (Plaintiffs) Respondents -and- KENNETH H. DAVIES (First Defendant) Appellant -and- TOWERS HART & DAVIES (a firm) (Second Defendant) Appellant Delivered the JUDGMENT - de JERSEY J. day of y 1990 The respondents are members of a firm of public accountants practising in Townsville. The appellants are another firm of public accountants also practising in Townsville, and a partner of that firm, Mr. Davies. From 1979 to April, 1984, the respondents acted as accountants for an Aboriginal housing co-operative society named A.B.I.S. Community Co-operative Society Ltd. (A.B.I.S.). In April, 1984, A.B.I.S. terminated the respondents' retainer, and engaged the firm of Schafferius and Davies, which merged three months later with Towers and Hart, hence the appellant named Towers Hart and Davies. The appellant Mr. Davies took over responsibility for the affairs of A.B.I.S. -- 82 of 97 -- 2 These circumstances led to a defamation suit brought by the respondents against the appellants. The respondents alleged that the appellants defamed them by a letter dated 29th November, 1 984. The respondents' firm is the addressee of that letter, but the respondents alleged that the appellants published the letter to A.B.I.S. and two bodies which provide A.B.I.S. with funds, the Aboriginal Development Commission and the Department of Aboriginal Affairs. The terms of the relevant parts of the letter follow: "Whilst we will hand over all records in our possession, to assist you, that is not to say that we see no ethical reason to prevent your firm accepting appointment as Accountant for the Society. We believe that as we were appointed Accountants in April, 1 984, that we should have been allowed to complete the Financial Statements to the 30th September, 1984. The reasons for same are as follows :- 1. At the 30th September, 1984, we were the Accountants for the Society. 2. We have requested on a number of occasions since that time that the books be presented to us for preparation of the financial Statements for the Society . 3. The decision taken by the Board in November seems to be based on false information provided. Therefore, whilst we believe it is unethical for your firm to accept the appointment, we suggest that your advice to the Board should have been along those lines, nevertheless, taking account of the urgency of the situation, we do not object to your acceptance of the appointment." By their amended statement of claim, the respondents pleaded three "false innuendoes", in para. 9: "By the said words the Defendant meant and were understood to mean that:- (i) The Plaintiffs' conduct in accepting the appointment was unethical; -- 83 of 97 -- 3 (ii) That the Plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants; (iii) The Plaintiffs should have on ethical grounds refrained from accepting the appointment." A Judge and jury tried the case in the Supreme Court at Townsville. The letter dated 29th November, 1984 became Ex. 6 in the proceedings. The questions left to the jury, and its answers, were these: "1 . Is the ordinary and natural meaning of Exhibit 6 that : (a) the Plaintiffs' conduct in accepting the appointment was unethical? Ans . No. (b) that the Plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants? Ans. No. (c) the Plaintiffs should have on ethical grounds refrained from accepting the appointment? Ans. No. 2. If you answer yes to any part of question 1 was any such meaning defamatory of the Plaintiffs? Ans. N/A . 3. Was Exhibit 6 published by the defendants to any of the following bodies: (a) the A.B.I.S. Community Co-operative Society Limited? Ans. Yes. (b) the Aboriginal Development Commission? Ans. No. (c) the Department of Aboriginal Affairs? Ans. No. 4. If yes to any part of question 3, what damages? Ans . $ 95,000 After the jury delivered those answers, which occurred in Townsville on Friday 17th November, 1989, Counsel for the appellants moved for judgment. Senior Counsel for the respondents said that in view of the answer to question 1 , he -- 84 of 97 -- 4 did not think that he could move for judgment in favour of the respondents, notwithstanding what he suggested was inconsistency- in the answers. The learned trial Judge then gave judgment for the appellants, with costs. On Tuesday 21st November, 1989 Counsel for the parties appeared before the learned Judge in his Chambers at Brisbane, at his request. The Judge informed them that the Registrar of the Court at Townsville had received a letter from the solicitors for the respondents, which included these paragraphs: "On Monday the 20th November, 1989, Mr Evans, one of the Plaintiffs, was approached by one of the Jurors who indicated his surprise at the article which appeared in the Townsville Bulletin on Saturday the 18th November, 1989 indicating that the Plaintiffs had been unsuccessful in the action and had been ordered to pay costs. The Juror indicated that it had been the intention of the Jury to award damages in accordance with the finding made by them in the sum of NINETY-FIVE THOUSAND DOLLARS ($95,000-00) to the Plaintiffs and the Juror further indicated that it had been the intention of the Jury to find that the words published were defamatory of the Plaintiffs. It appears, that there was some confusion by the Jury with regard to the first question submitted to them for their determination. We understand, that an approach was made by another Juror directly to the Registry of this Honourable Court concerning the same matter. It appears to us, that the verdict of the Jury as conveyed to the Court did not properly represent the findings of the Jury and in those circumstances, we ask that His Honour Mr Justice Carter re-convene the Court so that the verdict can be corrected. In this regard we refer you to The Queen v. Cefia (1979 ) 21 S.A.S.R. 171 After some discussion, Counsel for the respondents indicated that they would approach the jurors to obtain affidavits on the matter. The Judge reserved the question of their admissibility for . future argument. -- 85 of 97 -- 5 The solicitors for the respondents did approach the jurors, and obtained affidavits from them. N swore an affidavit which included these paragraphs: "2. I believe that the verdict delivered was incorrect because of a misunderstanding by the jury as to question 1. 3. The Jurors (with unanimity from the outset of our deliberations) were of the view that: (a) The Plaintiffs' conduct in accepting the appointment was not unethical ; (b) That the Plaintiffs did not act contrary to ethical pronouncements of the Australian society of Accountants; (c) That the Plaintiffs need not on ethical grounds have refrained from accepting the appointment . We were also of the view that the ordinary and natural meaning of Exhibit 6 was that: (a) The Plaintiffs' conduct in accepting the appointment was unethical; (b) The Plaintiffs were acting contrary to the ethical pronouncements of the Australian Society of Accountants; and (c) The Plaintiffs should on ethical grounds have refrained from accepting the appointment. 4. We interpreted question 1 as asking us to answer, not in relation to what Exhibit 6 meant, but rather in relation to the substance of the allegations contained in Exhibit 6. 5. We concluded on the evidence that the Plaintiffs had not acted improperly in any way, but that Exhibit 6 meant that they had, and in accordance with that conclusion our findings should have been "Yes" in relation to paragraphs 1(a), 1(b) and 1(c). It was only because we misunderstood the nature of the question that we answered "No" in each case. 6. We did not answer question 2 because that question was framed in such a way that it was only necessary to answer it if we had answered "Yes" to any part of question 1 . Had we correctly understood question 1 , and answered "Yes" to each part of it, we -- 86 of 97 -- 6 would have gone on to find that Exhibit 6 was defamatory of the Plaintiffs. 7. Our answers to questions 3 and 4 are correct. 8. It was only because of our misunderstanding of question 1 that the error arose. There was complete unanimity in relation to our conclusions on the evidence. 9. Thus, our findings on the evidence were inadvertently mis-stated because of our misunderstanding of the question. The true answer to question 1(a), 1(b) and 1(c), was "Yes" in each case." Each of the other jurors, B L and W, swore an affidavit in which he said that he had read N's affidavit, and went on to state: "I am in full accord with the contents of that Affidavit. The answers to questions 1(a), 1(b) and 1(c) should have been "Yes" in each case, and the answer to question 2 should also have been "Yes"." On Thursday 23rd November, the respondents filed a notice of motion in which they sought an order vacating the judgment entered at the conclusion of the trial and in lieu, judgment for the respondents for $95,000.00 together with interest and costs. In support of the notice of motion, the respondents relied on the affidavits of the jurors to which I have referred. When the motion came on for hearing on Friday 24th November, Counsel for the appellants objected to the admission of those affidavits. The learned Judge reserved his decision on that point. Ke gave judgment on Tuesday 28th November, vacating the judgment entered at the conclusion of the trial and giving judgment for the respondents for $95,000.00 and costs. In urging the learned Judge to receive the jurors' affidavits and overturn the judgment, Counsel for the -- 87 of 97 -- 7 respondents relied principally on a decision of the South Australian Full Court, R. v. Cefia (1979) 21 S.A.S.R. 171. His Honour relied on that case, and some Canadian decisions, as justifying his interference with the earlier judgment. He said that he found the jurors' assertions credible, and accepted that they had made a mistake. He said: "After due consideration of the matter I am persuaded that the jury having agreed in the jury room unanimously that the ordinary and natural meaning of ex. 6 was as set out in question 1 and that the letter on account of it having such meanings was defamatory, nevertheless wrote the answers "No" and "n/a" in error and that therefore the answers do not accurately record the result of the jury's deliberations as to what they actually decided in the jury room in relation to the substance of questions 1 and 2. It follows that the case comes within the principles applied in R. v. Cefia and in the Canadian cases." The first question arising on the appeal is whether it was right for the learned Judge to vacate the judgment given at the trial and enter a contrary judgment, in reliance on the jurors' affidavits . There Is a well-established general principle that the court will not receive evidence from members of a jury as to the reasons for their verdict or findings, or as to what they believe the effect of them to be. In Nanan v. The State ( 1 986) 1 A. C . 860, 870, the Privy Council endorsed this statement of the principle taken from the Court of Appeal's decision in Ellis v. Deheer (1922) 2 K.B. 113, 212 (Atkin L.J.): "The Court does not admit evidence of a juryman as to what took place in the jury room, either by way of explanation of the grounds upon which the verdict was given, or by way of statement as to what he believed its effect to be." -- 88 of 97 -- 8 Lord Denning M.R. explained the reasons behind the rule in Boston v. W.S. Baoshaw & Sons (1966) 1 W.L.R. 1135, 1136: "The reasons are twofold: first, to secure the finality of decisions arrived at by the jury; secondly, to protect the jury themselves and to prevent them being exposed to pressure or inducement to explain or alter their views. If this were to be permitted, where is it to stop? After a jury have solemnly found a man "guilty" and he has been sentenced, are they to be at liberty next day to return and say they meant to find him "not guilty"? It cannot be ." R. v. Challinqer (1 989) 2 Qd.R. .352 provides a recent example of the application of this principle. In .cases of manifest error or mistake on the part of a jury, a trial Judge may in court seek elucidation from the jury. But even doing that is fraught with danger. It should only be done sparingly and with care. A Judge should certainly not thereby-seek to delve into the reasons behind the verdict. That limited .capacity in a trial Judge to seek to elucidate a verdict was confirmed in Mourani v. Jeldi Manufacturing Ptv. Ltd. (1983) 57 A.L.J.R. 825, 826. But once the jury has been discharged, it will almost invariably be wrong to summon them back for questioning about their verdict, as illustrated by Divan v. Belfast Corporation (1969) N.I.L.R. 34. That limited exception aside, the duty of the trial Judge, upon announcement of a jury's findings, is to enter judgment in accordance with those findings. That is the extent of his .authority,. See McDonnell and East Ltd, v. McGregor (1936) 56 C.L.R. 50, 55 and Prestinenzi v. Steel Tank and Pipe Consolidated Ptv. Ltd. (1981) V.R. 421, 440. Once the learned Judge had done that in this case, he should not in my view have -- 89 of 97 -- 9 varied the judgment later on the basis of the affidavits of the jurors. His doing that was contrary to the well-established general principle to which I have referred. R. v. Cefia , supra, upon which the Judge relied in support of the course he took, was a very different case from this one. The foreman of a jury had announced a "not guilty" verdict and the Judge discharged the jury, which then left the court room. A juror informed a court officer that there had been a mistake, and the jurors, none of whom had left the court building, immediately returned to the court. In answer to questions from the Judge, the foreman and each juror said that the verdict was indeed guilty. The Judge then accepted that verdict and sentenced the prisoner. The South Australian Full Court considered the case covered by the principle that "where a jury has in fact agreed upon its verdict but by error has communicated not that verdict but something else, that jury - acting unanimously - may correct that error and correctly communicate the verdict actually agreed upon." (p. 173) One notes that the error in communication which occurred in Cefia emerged from answers to questions asked of the jurors publicly in court, by the Judge, and before the jurors had left its precincts, and that the Judge's questions did not probe the deliberations which had occurred in the jury room. Quite apart from the very different circumstances in which this alleged error was presented to the learned Judge - after the jurors had been discharged, after at least one of them had read a newspaper report of the proceedings, after they had discussed the matter with the solicitors for only one of the parties, and after they had signed affidavits some days after the conclusion of the -- 90 of 97 -- 10 trial - there is no acceptable evidence that an error in communication of that character occurred in this case. Looking to the affidavits, one sees that they suggest that the jurors did intend to give the answers recorded, although the jurors may have misunderstood the first question. Correcting the answers to record the responses they say they would have made to the questions had they properly understood the questions, does not seem to. me to involve merely correcting an error in the communication of a previously agreed answer. The procedure followed here did in truth involve an "explanation of the grounds" upon which the answers were given, and an examination of what the jurors believed the effect of those answers to be, and the procedure therefore contravened the well-established and soundly-based prohibition confirmed in Ellis v. Deheer. The Canadian cases to which the learned Judge was referred included McCulloch v. Ottawa Transportation Commission (1954) 2 D.L.R. 443, where an appeal court received affidavits as to the jurors' true verdict, and corrected what was on any view "a clerical error . . . either in recording that verdict in the jury room or by the jury in reporting it to the court ” (p. 445). Other cases relied on before us by the respondents, such as Cogan v. Ebden 96 E.R. 1 094 and Baker v. Miles 125 E.R. 961, are similarly distinguishable. The course followed in this case was fraught with risk. The impetus for reconsideration was apparently a newspaper report of the proceedings, which led to interviews between the jurors and the solicitors for one of the parties. That produced -- 91 of 97 -- N's affidavit, which was presumably drafted by a lawyer to reflect that lawyer's interpretation of what N was saying. The result is far from clear,, and as the learned Judge pointed out, he was "not clear about the exact nature of the error in understanding to which the jurors succumbed". Then the other jurors read N's affidavit and adopted what N said. Finally, the Judge concluded that the evidence was credible, notwithstanding that that evidence had not been tested orally, not even by questioning from the Judge, let alone cross-examination by the appellants . Owen J. usefully highlighted the problems inherent in this sort of procedure in Hutchison v. Australian Newspaper Co. (1899) 15 W.N. (N.S.W.) 318, 319: "it is clear that these affidavits cannot be read. I reject them on the broad principle that the Court ought not to receive the evidence of jurymen, under any circumstances, as to what took place in the jury room. To admit evidence of that kind would be a novel, and, in my opinion, a most dangerous practice. The law requires the jury, while they are considering their verdict, to be locked up so that they may be kept away from all outside influence, and if anyone were known to converse with the jury, during the trial, on the matters which they had to determine, it would be considered a very grave offence. If, when the case is over and the jury are at large, they were allowed to make affidavits as to what took place in the jury room, the consequences might be most disastrous. In this case it is impossible to suppose that there can have been any unfair or underhand dealing, or that the jurymen are not giving their evidence perfectly truthfully and free from bias or prejudice or pressure. But what I have to consider is the general principle applicable to all cases, and I lay it down broadly, as far as my judgment can go, that under no circumstances whatsoever should the Court receive the affidavits of jurymen as to what took place in the jury room. There are two of the cases cited which shew this very clearly. The first is Owen v. Warburton. There it was sought to read the affidavits of jurymen as to what took place in the jury room.. Mansfield, C.J., in -- 92 of 97 -- 12 delivering the judgment of the Court, said: 'We have conversed with the other Judges upon this subject, and we are all of opinion that the affidavit of a juryman cannot be received. It is singular, indeed, that almost the only evidence of which the case admits should be shut out; but, considering the arts which might be used if a contrary rule were to prevail, we think it necessary to exclude such evidence. 7 There is the broad ground on which I base my judgment." I acknowledge the learned Judge's disinclination to allow cross-examination of the jurors upon their affidavits, with which I would agree, but in my view the very reception of the affidavits ran contrary to principle, and incidentally invaded the deliberations within the jury room and denied the jurors the anonymity to which they were entitled. I therefore consider that the learned Judge should not, on 28th November, 1989, have vacated the judgment entered on 17th November, so that the judgment then entered in favour of the appellants should be restored. Counsel for the respondents raised an alternative submission in support of the judgment subsequently entered in favour of the respondents. It was that the jury's answers to question 1 should be set aside, because a jury, viewing Ex. 6 reasonably, could not properly have answered "no" to that question. Then, it was submitted, this court should uphold the judgment in favour of the respondents, because on the evidence that was "the only possible verdict (which) could reasonably be given". The submission depended upon Baird v. Magripilis (1925) 37 C.L.R. .321, 334, from which those words are taken. That case involved an appeal from a decision of the Supreme Court of Queensland, and Starke J. provided this analysis: "Consequently, in my opinion, the Supreme Court was quite right in setting aside the finding of the jury: -- 93 of 97 -- 13 it was not a finding which the jury, viewing the evidence reasonably, could properly reach. But though the verdict of the jury must be set aside, was the Supreme Court entitled itself to find a verdict and enter judgment accordingly? Under the Judicature Rules, an appellate court, where all the facts are before it, and it is satisfied that the evidence is such that only one possible verdict could reasonably be given, is not bound to order a new trial, but has jurisdiction to give any judgment and make any order which ought to have been made, notwithstanding the verdict of a jury . .. The court clearly has jurisdiction to set aside the verdict of a jury which is unreasonable or perverse, and if a finding is set aside and no longer exists, then it seems to me that the authority to draw inferences of fact under the rules may be exercised . . . but that authority will only be exerted where the evidence is such that only one possible verdict could reasonably be given upon the evidence: it is a strong power and must be exercised with considerable caution ." The Full Court set aside a jury's finding, and entered judgment in accordance with the contrary view, in Conrad v. Chermside Hospitals Board (1982) Qd.R. 242. That was a case where only one possible verdict could reasonably have been given on the evidence. Connolly J. emphasised, as did Starke J., that it is a strong power, to be exercised with great caution. As to the existence of this power in the court on appeal, I agree with the analysis of the learned Chief Justice, which I have had the advantage of reading. I turn to the question whether questions 1 and 2 could only reasonably have been answered yes. In my opinion it was not open to the jury to answer questions 1(a) and (c) in the negative; affirmative answers to those questions were the only answers which could reasonably have been made, for the reasons expressed by the Chief -- 94 of 97 -- 14 Justice. I also agree with him that we could now answer question 2 in the affirmative. The respondents raised an alternative challenge, contending that the answers to questions 1 and 4 were in any event inconsistent, and that the initial judgment for the appellants could therefore not have been sustained. I will express my views on this matter, although not necessary to the result in light of what I have said already. The suggested inconsistency arose in this way. Having answered question 1 , as to the meaning of the letter, in the negative, the jury properly declined to answer question 2,. as to whether the meaning was defamatory. That is because the need to answer question 2 was expressed in question 2 as depending upon an affirmative answer to question 1 . The jury then proceeded to answer question 3, as to whether Ex. 6 was published. Their doing that ran contrary to the learned Judge's direction that it would be necessary to answer question 3 only if affirmative answer were given to questions 1 and 2, but may be explained by the absence from question 3 of any express statement that it need be answered only if questions 1 and 2 were answered yes. In that respect, question 3 differs from questions 2 and 4, the need to answer each of which is expressed, in the question, to depend upon an affirmative answer to a previous question. That is absent in question 3, which may be regarded as poorly drafted. Notwithstanding the Judge's firm oral directions, the jury may, from the form of question 4, have discerned an obligation to answer. Having answered yes to question 3(a), as to publication to A.B.I.S., the jury proceeded to assess damages at $95,000.00. -- 95 of 97 -- 15 at $95,000.00. They recorded that assessment in answer to question 4, which reads: "if yes to any part of question 3, what damages?" It should have expressly been made to depend on affirmative answers to 1, 2 and 3, and also may therefore be regarded as poorly drafted. Counsel for the respondents submitted that the answers to questions 1 and 4 are inconsistent and cannot stand. Obviously, since the jury found against the pleaded allegedly defamatory meanings, it was, on the face of it, pointless for the jury to go on to assess damages. Such an assessment must have been artificial; was the jury assuming that contrary to its finding, the words bore those meanings and were defamatory? One could only speculate, and such speculation does not really advance a determination of whether the answers are inconsistent . In my opinion, the answer to question 4 is not inconsistent with the answer to question 1 , such as to warrant our setting aside the answer to question 1 . That is simply because by answering question 4, and doing so notwithstanding the learned Judge's directions, the jury has merely done what the form of question 4 apparently requires. The jury, conscientiously attending to the form of the question, may have believed that it was obliged to answer question 4. In short, although it was unnecessary for the jury to answer the question, its having done so is explicable. The respondents allowed poorly drafted questions to go to the jury. In the end, the answer to question 4 should be regarded as surplusage, and simply ignored. Counsel for the respondents relied on O'Brien v. Daily News -- 96 of 97 -- Ltd. (1926) 28 W.A.L.R. 1, a case of obvious inconsistency between special findings that the words complained of were not defamatory, and that, on the other hand, they were not fair comment. The defendants in that case conceded the inconsistency on appeal. There was there no complication such as arises here from the form of question 4. I note in passing that in each of Divan v, Belfast Corporation, supra, and Danis v. Saumure , supra, the jury found that there had been no negligence, yet proceeded to assess damages, and that on appeal, the judgment in favour of the defendant survived, or was reinstated. Our substituting affirmative answers to questions 1(a) and (c), and answering question 2 in the affirmative, does not however conclude the matter. There would obviously have to be an assessment of damages made properly in the context of those answers. But before possibly reaching that point, the jury would have to consider the issue of good faith with respect to the pleas of qualified protection based on s. 377(3) and (5) of the Criminal Code . In my opinion, the learned Judge erred in ruling out those defences, and I agree with the reasons expressed by the Chief Justice in that regard. I agree with the orders proposed by the Chief Justice. -- 97 of 97 --