Wide Bay-Burnett Television Limited v Bradford
[1998] QCA 443
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- Wide Bay-Burnett Television Limited v Bradford[1998] QCA 443
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Wide Bay-Burnett Television Limited v Bradford[1998] QCA 443
Wide Bay-Burnett Television Limited v Bradford[1998] QCA 443
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3794 of 1998
Brisbane
[Wide Bay-Burnett Television Ltd v. Bradford & Anor.]
BETWEEN:
WIDE BAY-BURNETT TELEVISION LIMITED
ACN 009 712 261
(Defendant) Appellant
AND:
ROSS CLARK BRADFORD and SHELLY ANN BRADFORD
(Plaintiffs) Respondents
McMurdo P.
Pincus J.A.
Williams J.
Judgment delivered 22 December 1998
Joint reasons for judgment of McMurdo P. and Pincus J.A., separate reasons of Williams J. concurring as to the orders made.
APPEAL ALLOWED WITH COSTS. JUDGMENT ENTERED BELOW SET ASIDE. NEW TRIAL, LIMITED TO THE ISSUE OF DAMAGES, ORDERED. COSTS OF THE FIRST TRIAL WILL BE IN THE DISCRETION OF THE JUDGE AT THE SECOND TRIAL.
CATCHWORDS: DEFAMATION - whether trial judge wrongly directed jury with respect to questions of qualified privilege - whether judge should have left to the jury the determination of the existence of occasions of qualified privilege - whether judge’s instructions to the jury as to the circumstances in which qualified protection might exist were incorrect - whether judge misdirected on subject of good faith - whether principles in Horrocks v. Lowe apply - whether judge erred in leaving to the jury the whole issue of qualified privilege, instead of deciding questions of qualified privilege subject to the jury’s answers with respect to disputed facts - damages - apportionment of compensatory damages for economic loss - whether amount awarded for compensatory damages too high - whether exemplary damages awarded were excessive.
Criminal Code ss. 377(1)(c), (e), (h), 377(2)
Horrocks v. Lowe [1975] A.C. 135
Pervan v. The North Queensland Newspaper Company Limited (1993) 178 C.L.R. 309
Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183
Counsel: Mr R G Bain Q.C., with him Mr R A I Myers for the appellant.
Mr P A Keane Q.C., with him Mr P J Favell for the respondents.
Solicitors: Clayton Utz for the appellant.
Daniel Smith (Pialba) for the respondents.
Hearing Date: 12 November 1998.
JOINT REASONS FOR JUDGMENT - McMURDO P, AND PINCUS J.A.
- The respondent plaintiffs sued the appellant defendant for damages for defamation and obtained judgment, after a trial before judge and jury, for $344,600 and costs.
- The notice of appeal raises many grounds of attack on the judgment and the appellant’s written outline also makes numerous criticisms of what happened below. It should be stressed, in our opinion, that Practice Direction no. 4 of 1992 does not require that the outline of argument set out all contentions which could ultimately be decided to be advanced; what is intended is that decisions will be made as to the points to be argued and they will be reflected in the outline. There is, generally speaking, ample time to make such decisions; here, the outline was not filed until four months after judgment in the action.
- The respondents’ case was based on publication on the appellant’s television channel SEQ-8TV of the following material:
"About twenty people contracted Cigiatera (sic) poisoning about a week ago after eating fish at a Rugby League Banquet at the Pialba Hotel. The offending fish has been traced to a vendor at the Condor Lakes Shopping Centre. But Mr. Greenhalgh claims it was originally supplied by an amateur line fisherman who caught the reef fish in Platypus Bay and he said that infuriated the professionals, who had put up with restrictions and closures in a bid to cope with the Cigiatera (sic) problem".
- The respondents, who had a seafood shop at the Condor Lakes Shopping Centre at Pialba, alleged by their pleading that they were defamed by the publication. The argument ultimately advanced for the appellant was confined to two issues: that the judge wrongly directed the jury with respect to questions of qualified privilege which were raised by the defence and that the damages awarded were unwarranted. It is proposed to discuss these issues in that order.
- The defence pleaded three varieties of qualified privilege, being those defined by s. 377(1)(c), (e) and (h) of the Criminal Code, in the form the Code had at the relevant time. Counsel for the appellant said that the judge left to the jury the determination of the existence or otherwise of occasions of qualified privilege and should not have done so, that the judge’s instructions to the jury as to the circumstances in which qualified protection might exist were wrong and that his Honour misdirected on the subject of good faith. Consideration of the appeal is made simpler by the course the judge took, of giving the jury a document headed "NOTES FOR THE JURY", setting out in logical order the issues the jury had to consider.
- Counsel for the respondents pointed out that the jury were asked whether the publication complained of was made in good faith and answered no; if that answer stood, counsel said, it was of no consequence whether the directions otherwise given with respect to qualified privilege were right or wrong. We accept that this is so, but subject to the possibility that misdirection on other aspects of qualified privilege might have infected what the judge said about good faith.
- It is convenient to deal first with one of the appellant’s complaints about the directions on good faith. The judge told the jury, correctly, that the onus lay upon the respondents to prove lack of good faith. His Honour also said:
"If a person is acting in good faith, you would think that they would only publish stuff which is relevant to the matter which justifies what would otherwise be defamatory words. If they go beyond that and publish words or information which is irrelevant, then our law says, ‘Hang on, that’s not acting in good faith. That’s going beyond what is necessary. It goes beyond what the law allows and is taken to be demonstrative of a lack of good faith.
So what, for example, the plaintiff here seeks to do is to persuade you on the balance of probabilities that the matter published, and particularly of course the allegation that the food and fish had been traced to Condor Lakes, was irrelevant to any discussion of ciguatera poisoning. That was simply additional information, if you like, which had no relevance to that issue. In this case, so far as 3 is concerned, it had no relevance to the public good and hence showed bad faith - or absence of good faith is the expression that’s used. Likewise with 2, did the manner and extent of the broadcast exceed what was reasonably sufficient to the occasion. That probably speaks for itself. Did they go beyond what was reasonably necessary to deal with the public good, that is the discussion of the ciguatera poisoning? If they have gone beyond that more than was reasonably sufficient, then they are not acting in good faith".
The appellant’s contention was that these directions were erroneous and it was submitted that the jury should have been instructed on the basis of the speech of Lord Diplock in Horrocks v. Lowe [1975] A.C. 135; counsel emphasised that Lord Diplock laid down a test which included the expression:
". . . but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive". (151H)
What the trial judge did, in substance, was to put before the jury the matters set out in s. 377(2) of the Code:
"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".
Direct authority for the approach the judge took, inconsistently with that laid down in Horrocks v. Lowe, is the statute itself. That it is not an improper course to assume that s. 377(2) should be given its literal effect is supported by the reasons of the High Court in Pervan v. The North Queensland Newspaper Company Limited (1993) 178 C.L.R. 309 at 330:
"Under s. 377, in order to prove absence of good faith, it was necessary for the appellant to falsify any one of the following propositions: (1) that the material published was relevant to the matters raised in the plea under s. 377(8); (2) that the manner and extent of the publication did not exceed what was reasonably sufficient for the occasion; (3) that the first respondent was not actuated by ill will to the appellant, or by any other improper motive, and did not believe the defamatory matter to be untrue".
In that case the judges went on to deal with each of the propositions set out, separately.
- It is unnecessary for the purposes of these reasons to set out at length Lord Diplock’s explanation of what is necessary to be shown, when the analogous issue comes to be considered under the general law. We will quote enough to show why we have concluded that his Lordship’s explanation of the issues which had to be dealt with under the general law is irreconcilable with the language of s. 377(2):
"So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive . . .". (149)
"Even a positive belief in the truth of what is published on a privileged occasion . . . may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames . . . ". (150)
"There may be evidence of the defendant’s conduct upon occasions other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive, even although he believed it to be true. But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on . . . there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity . . .
The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded . . . the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive". (151)
One may extract the following propositions from the parts of the speech which have been quoted:
- The question is whether the defendant in publishing the material had an improper motive, being one which was dominant, and not being a sense of the relevant duty or desire to protect the relevant interest.
- Generally the improper motive which the plaintiff sets out to prove is a desire to injure the plaintiff. Commonly, where there is an improper motive, it is to give vent to personal spite or ill-will towards the plaintiff.
- If it is not shown that the defendant did not believe the matter published to be true, or was indifferent to its truth or falsity, and conduct extraneous to the privileged occasion is not relied on, then the plaintiff fails unless what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded.
- Whether irrelevant defamatory matter has been incorporated in a statement made on a privileged occasion is one of the factors to be taken into consideration in deciding whether the defendant was actuated by express malice. The test of whether matter is irrelevant is whether the defendant either did not believe it to be true or, though believing it to be true, realised it had nothing to do with a particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite or for some other improper motive.
- We express no opinion as to whether these principles would if adopted in this State be suitable tests to be applied in determining whether or not there is good faith; what is plain is that they are not the rules set out in s. 377(2). One of the more important differences is that under s. 377(2) the publication must satisfy each of 3 or 4 separate tests, one of which is relevance and another absence of belief that the defamatory matter is untrue. Under the Horrocks v. Lowe tests matter is deemed irrelevant if it was not believed to be true. This is inconsistent with what is said in s. 377(2).
- In Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183, the High Court held that the defamation provisions of the Code, insofar as they include terms which were used "in a special sense" under the pre-existing law, may be interpreted accordingly: p. 220, 221. It is another step altogether to apply, not as supplementing but as replacing the relevant provisions of the Code, views expressed in the House of Lords in 1975. We consider that Horrocks v. Lowe cannot safely be relied on in the interpretation of s. 377(2) of the Code and that the trial judge’s not having directed the jury in accordance with Lord Diplock’s speech was a correct course.
- The other major criticism which was made by counsel for the appellant, as to the judge’s directions on qualified privilege, was that his Honour left to the jury the whole issue of qualified privilege, instead of adopting the course which the law required, which was to decide questions of qualified privilege himself, subject to taking the jury’s answers with respect to any disputed facts. That was the position under the general law, which has been held to apply to the Code also: The Telegraph Newspaper Company Limited v. Bedford (1934) 50 C.L.R. 632 at 647, per Starke J., Australian Consolidated Press Limited v. Uren (1966) 117 C.L.R. 185 at 208 (a case decided under the Defamation Act 1958 (N.S.W.)), Calwell v. IPEC Australia Limited (1975) 135 C.L.R. 321 (another decision on the New South Wales Act), Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183 at 191, 205, 214, Stephens v. West Australian Newspapers Limited (1994) 182 C.L.R. 211 at 240. The learned trial judge, it was suggested by counsel, left the question of qualified privilege or no to the jury because he thought it undesirable to ask such questions about acceptance of evidence as were disapproved in Ahrens v. Queensland Railways [1997] 2 Qd.R. 1 at 4. It was said in Ahrens that:
". . . experience suggests that asking a jury detailed questions about their view of the facts, as was done in the present case, is undesirable". (3)
It does not appear to us that the Court in that case attempted exhaustively to define the circumstances in which a judge hearing a civil case should, and those in which he or she should not, leave specific issues to the jury.
- In the reasons given for this Court’s decision in Bellino v. Australian Broadcasting Commission (Appeal No. 270 of 1992, 13 May 1994), there is to be found discussion of the way in which the division of functions between judge and jury was effected in that case. It appears that the judge himself decided that there was, within the meaning of s. 377(1)(h) of the Code, discussion of a subject of public interest involved in the publication complained of but left to the jury the question whether that discussion was for the public benefit.
- Davies J.A. thought the jury should have been asked, in respect of each identified subject of public interest, whether or not the public discussion of it was for the public benefit. His Honour’s opinion was accepted in the High Court (185 C.L.R. 229 at 233). It was held that the judge erred in "failing to put separate questions to the jury as to whether the discussion of each of the subjects of public interest that were pleaded was for the public benefit" (233).
- It is suggested above that the course the judge took, in leaving to the jury all questions relating to the existence of qualified privilege except one matter arising under s. 377(1)(h), could have affected the jury’s consideration of the issue of good faith under s. 377(2). Speaking generally, a judge’s failure to decide legal questions arising under s. 377(1) might vitiate the jury’s consideration of good faith under s. 377(2) if the jury incorrectly, as a matter of law, decided against the defendant some question arising under s. 377(1) and applied that incorrect view in applying s. 377(2). But in the present case we have been unable to see how that could have occurred. If the course the judge took was erroneous, the error consisted in leaving one of the qualified protection defences to the jury when that defence was not open; that could only have advantaged the appellant. Further, we have been unable to identify any issue relating to qualified privilege left to the jury which was a question of law rather than fact; nor has counsel for the appellant done so. In the "NOTES FOR THE JURY" the judge posed two questions arising under s. 377(1)(e):
"(A) Did the viewers of the broadcast have such an interest in knowing the truth about ciguatera poisoning as to make the Defendant’s conduct in publishing the words complained of reasonable under the circumstances?
- (B)Did the Defendant believe on reasonable grounds that the viewers of the broadcast had such an interest in knowing the truth as to make the Defendant’s conduct in publishing the words complained of reasonable under the circumstances?"
These issues appear to us to be factual in content, comparable with that which was held in Bellino to be a factual point - i.e. whether public discussion of a certain subject was for the public benefit; the same may be said of the other s. 377 issues left to the jury. It should be added that counsel for the appellant did not complain of the course the judge took in not taking any answer at all with respect to s. 377(1); their view on the separate issues arising under that section is not ascertainable from the answers given. In other circumstances, the failure to ask a separate question based on s. 377(1) - or indeed the failure to ask a number of separate questions under that subsection - might have vitiated the trial, but it does not do so here, because of the jury’s answer negativing good faith.
- The only other matter with which it is necessary to deal, on the question of qualified privilege, is whether the judge erred in failing to emphasise the factors mentioned by Mason J. in Calwell v. IPEC Australia (above); in our opinion, the trial judge made no error in this respect. Mason J. pointed out that at common law it has been said that a court should not "be quick to find evidence of malice in the terms of defamatory material published on a privileged occasion" and that "where the words are utterly disproportionate to the facts this amounts to evidence of malice" (135 C.L.R. 321 at 332); he made other observations relevant to those topics. What was being discussed was the last part of the test in s. 17(3) of the Defamation Act 1958 (N.S.W.); that is the same as the portion of s. 377(2) from "if the person by whom . . ." to the end. But immediately following the passage on which reliance was placed, the judge expressed the view that one could not -
". . . formulate a precise and illuminating criterion which will separate those publications which furnish intrinsic evidence of ill will from those which do not". (332)
There was no intention, in the references Mason J. made to what had been said under the general law, of laying down such a test. Nor is it always essential for a trial judge to read to the jury every observation on defamation law which has been made in the High Court and appears to be relevant to the case before the court. What must be given to the jury is a direction on any point of law which is essential to a proper consideration of the issues; the observations quoted from Calwell’s case are not in that category.
- Other aspects of the judge’s directions were criticized on behalf of the appellant, but in our view the only points of substance are those dealt with above.
- The appeal so far as based on the issue of liability, must fail.
Damages
- As has been mentioned, the judgment in favour of the respondents was for the sum of $344,600; that was made up of $250,000 damages plus interest of $94,600. The amount of damages awarded was, because of the District Court’s jurisdictional limit, reduced from the total of $285,000 damages fixed by the jury, consisting of $210,000 compensatory and $75,000 exemplary damages.
- For the purpose of interest calculations, the judge made his own estimate of the apportionment of the figure of $210,000 compensatory damages. His Honour thought that he should "work on the basis that the jury have included in their assessment of $210,000 for compensatory damages, not less than $50,000 for ‘economic loss’". His Honour treated the balance of the award, therefore, as being a sum of $160,000. If that is the appropriate apportionment, it would seem to us clear that the amount was too high. The respondents’ substantial complaint, as explained in their evidence, was of damage to their business reputation causing loss of income. That most clearly appears from the evidence of the respondent S A Bradford, which was to the effect that the publication complained of damaged the respondents’ business and it was the falloff in business that caused personal difficulties, consisting in sale of assets and in "tension". The other respondent R C Bradford’s evidence also was almost exclusively concerned with financial losses and the consequences of those losses. In the evidence of R C Bradford, one finds it said that he felt "very hurt" when he saw the relevant TV programme, but otherwise there is little or nothing to indicate that he was damaged in any way other than financially. This is not to say, of course, that the jury were unable to draw an inference of some loss of personal, as opposed to business, reputation; but there is no doubt that the substance of the case for damages was simply loss of money, caused by damage to the respondents’ commercial reputation. It was alleged in the Statement of Claim that people shunned, avoided, ridiculed and despised the respondents and treated them with contempt, but there was no evidence to support that; the evidence given of adverse reactions to the publication complained of had to do with customers of the respondents’ business.
- In the primary judge’s discussion of apportionment of the damages, for purposes of calculation of interest, his Honour said that he found it difficult to accept the particularised claims as to the extent of the loss of trade. The appellant has argued, in effect, that that evidence had little substance and has made specific criticisms of it. We shall give three illustrations.
- The first claim in the respondents’ particulars asserts that sales to Noosa Junction Seafood were at the rate of $4,000 a month prior to 23 September 1987, the date of the publication complained of, and implied that thereafter there were no sales. The $4,000 is a round figure, which according to the evidence of the first respondent was derived by accountants from the respondents’ business records . The first respondent swore to the truth of the particulars. The records showed a far different picture of the sales to that customer:
| 16 July 1987 | $ 785.20 |
| 21 August 1987 | $ 500.00 |
| 5 September 1987 | $ 724.00 |
| 21 September 1987 | $1,523.39 |
| 26 September 1987 | $1,165.55 |
Average sales in July and August were $643; if one includes the sales in September prior to the publication date (23 September) the average for the three months is over $1,000, but well short of $4,000.
- The second claim made in the particulars we have mentioned was that sales prior to 23 September 1987 to an entity called "Alexandrias" were $800 per month. It appeared from the evidence that the respondents were referring to Alexandria’s Park Motor Inn, a customer with whom they dealt from August 1987. In that month they sold $1,419 worth of goods and in the following month $2,871. Both those figures are considerably in excess of the $800 per month asserted in the particulars. However, a substantial quantity of the produce sold in September was sold after the publication date and in December 1987 over $4,000 worth of goods was sold to that customer. The claim in respect of "Alexandrias" has no relation to the figures proved in evidence.
- The third item in the particulars is a loss in respect of sales to "Tummies Corner". It was put to the first respondent from the records that about $80 worth of produce was sold to that customer in August and September 1987 - about $40 a month; the claim is $100 per month.
- The origin of the claims to which we have just referred is a letter from Messrs Crisp Lynch & Fagg, the accountants who were engaged to assist in preparing the respondents’ claim for loss of business; it is dated 22 April 1988 and is Exhibit 14. The letter puts forward two calculations. The first gives a loss of gross profit of $9,384 per annum, based on what the letter said were average daily sales in periods of three months before and after the publication. The second is the calculation which we have been discussing, embodied in the particulars; it produces an average loss of monthly sales of $8,900 representing an annual turnover loss of $106,800. Working on a rate of profit of 28.5%, the accountant suggested a figure of loss of profit over three years of $91,314. It appears to us, however, that no evidence of substance was put forward to support this claim. Where the figures of lost turnover came from is unclear, but whatever their source they seem to have no relation to the truth. This second calculation was presumably adopted because the annual loss of $9,384 derived from the first would have given a much lower total, about $30,000 instead of $106,800. That lower total, according to some figures put before us by the appellant, is itself vitiated by error in calculation. It is unnecessary to discuss that and enough to note that if one were looking for an indication of the impact of the publication, as opposed to all the other factors which might have affected the respondents’ business for better or for worse, the takings in the few months before and after the publication would seem to provide some guidance.
- The court below also had before it financial statements of the respondents relating to each of the three financial years in the period beginning 1 July 1987. These disclose that the nett profits of the respondents in those three years and the year immediately preceding them were as follows:
| Year ended | 30 June 1987 | $ 4,031.00 |
| 30 June 1988 | $10,806.00 | |
| 30 June 1989 | $14,375.00 | |
| 30 June 1990 | $ 3,300.00 |
- The figures for the year ended 30 June 1987 represented only four or five months trading and may be ignored. The average profit for the other three years was less than $10,000, so that the jury’s assessment of compensatory damages amounted to about 20 years profit. The total amount for which judgment was given was equivalent to over 30 years profit.
- It is not easy to see any sensible basis for a substantial award of exemplary damages. The learned primary judge invited the jury to consider whether the appellant had:
"acted in a conscious way, knowing that it was doing harm to the plaintiffs or likely to do harm to the plaintiffs and in complete and utter disregard of the plaintiffs’ rights . . . ".
His Honour also suggested that exemplary damages could be awarded if "the defendant has acted consciously doing wrong and incontumelious, that is wilfully, knowingly, total disregard of the plaintiffs’ rights". In the address by counsel for the respondents below, emphasis was placed on the lack of any inquires by the appellant to ensure that the publication was accurate and the lack of efforts to preserve documentary material relevant to the case. The latter aspect does not appear to us to have any real substance. For reasons which were never explained, the case took a very long time to come to trial. One of the reasons suggested on the respondents’ side for their difficulties in proving financial loss was that all the necessary documents might not have been preserved; particularly having regard to that circumstance, it would have been almost perverse of the jury to punish the appellant for not having kept necessary evidence. The real fault on the appellant’s side was that no proper inquires were made to ensure that the identification of the source of the offending fish, "traced to a vendor at the Condor Lakes Shopping Centre", was clearly justified. There was nothing to support the suggestion that there was conscious wrongdoing or knowing disregard of the respondents’ rights. The evidence shows that the journalist who was responsible for the text (who seems to have had only a hazy recollection of the results of the inquiries he made) relied upon information obtained from the Pialba Hotel, where the offending fish was served. It would be wrong to characterise the appellant’s identification of the source as having been entirely baseless. A Mr Donnelly, then a part-owner of the Pialba Hotel, gave evidence that he purchased the fish which caused the trouble from the Condor Lakes Shopping Centre. A Mr Taylor of the Fisheries Management Branch of the relevant Department investigated and reported for that Department, identifying the same source.
- There may well have been a basis for an award of some modest sum of exemplary damages, on the evidence in this trial, but not for such a sum as was awarded.
- Another point about the damage is that there was substantial evidence that, quite apart from the publication complained of, information was circulating in the local community that it was the respondents’ business which had supplied the fish in question.
- It does not appear to us that the award can stand unless it is concluded that there was evidence on which a jury could properly conclude that there was a very large loss of income as a result of the publication. The specifically particularised case relating to that subject was not proved - worse, it had the appearance of being based on figures plucked out of the air. It would in our opinion be unfair to the appellant, the particularised case having failed, to hold that the jury was entitled to award such damages as could hardly have been properly awarded even if the particularised case had been established.
- One last point which should be mentioned with respect to the amount of the judgment (although not raised by either side) is the interest calculation. The learned primary judge, with the assent of counsel below, awarded interest on the total damages fixed by the jury, $285,000. It is not clear to us that s. 68(3)(c) of the District Court Act authorises that approach; the point was not argued and it is unnecessary to express a concluded view.
- We therefore allow the appeal with costs, set aside the judgment appealed from and order that there be a new trial, limited to the issue of damages. The ordinary rule is that the costs of the first trial abide the result of the second; but as was done in Electrolytic Zinc Co. of Australasia Ltd v. Lieslak [1969] Tas.S.R. 50, the costs of the first trial will be in the discretion of the judge at the second trial.
REASONS FOR JUDGMENT - WILLIAMS J
- All facts relevant to this appeal are set out in the joint reasons for judgment of McMurdo P and Pincus JA which I have had the advantage of reading.
- The principal matter argued on behalf of the appellant was that the learned trial judge failed to instruct the jury properly with respect to the defence of qualified protection, relevantly s. 377(1)(c), (e) and (h) of the Criminal Code as it stood as at the date of the broadcast, namely 23 September 1987. The attack on the instructions to the jury also covered what was said with respect to “good faith”, s. 377(2).
- Much of the argument was based on the judgments of the House of Lords in Horrocks v Lowe [1975] AC 135. McMurdo P and Pincus JA have fully demonstrated why that reasoning is not appropriate where s. 377 defines what constitutes qualified protection and good faith.
- In my view the instructions given by the learned trial judge to the jury were an adequate compliance with the requirements of s. 377.
- The next point taken was that the learned trial judge, rather than determining as a matter of law whether the occasion was one of qualified privilege, left all questions relating to that defence to the jury: Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 647, Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 191, 205 and 214, and Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 317. But as those cases themselves demonstrate, where the judge’s determination depends on disputed questions of fact, those questions must be determined by the jury. Here, there certainly were questions of fact which had to be resolved before a decision could be made as to whether the occasion was one of qualified privilege. But, as McMurdo P and Pincus JA have pointed out, it is difficult to see how the approach adopted by the learned trial judge could have disadvantaged the appellant. If anything it could only have favoured the appellant in that the jury was given a wider opportunity of finding in its favour.
- But the critical point is that the jury found against the appellant on the issue of good faith, and any error in the approach of the learned trial judge did not constitute any misdirection on that particular issue. As the appellant failed on that critical issue that is really the end of the matter.
- I also respectfully agree with the observations of McMurdo P and Pincus JA on the relevance of Calwell v IPEC Australia Limited (1975) 135 CLR 321.
- I further agree with McMurdo P and Pincus JA that there is no substance in any of the other criticisms of the directions given by the learned trial judge.
- So far as quantum is concerned I agree that the award cannot stand. As demonstrated by McMurdo P and Pincus JA the respondents did not substantiate by evidence their claim for economic loss and, particularly in those circumstances, the amounts awarded by the jury were grossly excessive. The question of exemplary damages was, in my view, one essentially for the jury but even if they were satisfied that some award under that head was justified an amount as substantial as $75,000 was out of all proportion to the gravity of the appellant’s conduct.
- I agree with the orders proposed by McMurdo P and Pincus JA.