Hocken v Carrie[1997] QDC 265

BETWEEN:

AND:

REASONS FOR JUDGMENT - McGILL D.C.J.

Delivered the 23rd day of October 1997

This is an appeal from a judgment in the Magistrates Court at Brisbane on 8 May 1997 when, in an action for damages for defamation, judgment was given for the plaintiff for $1, but no order was made as to the costs of the action. The plaintiff appeals against the failure of the Magistrate to award substantial damages, and against his failure to award interest on the damages awarded and costs of the action. Because of the amount of the judgment leave to appeal was required, which was not to be granted unless the Court or a Judge was satisfied that some important principle of law or justice was involved: Magistrate Court Act 1921 section 45(2)(a). On 28 May 1997 His Honour Judge Noud gave leave to appeal. Pursuant to Rule 294(3) of the Magistrates Courts Rules 1960 the appeal is by way of re-hearing.

Facts

The plaintiff claimed in the action that he was defamed by a four page letter sent by the defendant to the Judo Federation of Australia (Qld) Ltd (“the federation”), a number of clubs in Queensland constituting that federation, the executives of the National Judo Federation of Australia, the Minister for Tourism, Sport and Racing, the Director-General of the Department of Tourism, Sport and Racing, the sports development officer of that department, an officer of the Australian Securities Commission, the Australian Confederation of Sport, the Queensland Olympic Academy, and possibly others. A copy of the document is annexed to the plaint but an extract is set out in paragraph 2 of the plaint, and the appeal was conducted on the basis that the defamatory matter was that contained in the extract, and I suspect the trial was conducted on that basis also. The plaintiff was at the time of the publication of the letter chairman of the three person judiciary of the Judo Federation of Australia (Qld) Ltd, and is identified by name and by reference to that position in the letter, which also identifies him, correctly, as a barrister. He is also a university lecturer.

The Magistrate addressed the background to the publication of this letter in his reasons for judgment. He said that there had been troubles within the ranks of the federation, and referred to litigation in the Supreme Court of Queensland resulting in a decision by MacKenzie J. on 22 December 1994. His Honour's reason for judgment were Exhibit 2. His Honour at page 4 said: “The present proceedings have their origin in the internal dynamics of the organization, and it is plain that because of the conflict of personalities and, perhaps, ideas about the proper administration of the sport, there are deep divisions in the body. For that reason, it is probably too much to hope for that the decision in these proceedings will solve the problems overnight. All that can be said is that if individual differences cannot be submerged for the good of the sport, the sport will be the loser.” In those proceedings His Honour upheld a cross application by the president of the federation, Mr Robertson, and Mrs Bates who appears to be both the secretary and junior vice president, that two meetings of the governing body of the federation and resolutions passed at those meetings were void because of a failure to comply with the constitution of the federation. At one of the meetings those present had purported to remove Mr Robertson and Mrs Bates from their positions. One of the reasons why the meeting was invalid was that a quorum of the majority of persons eligible to attend was not present. His Honour commented that no doubt one of the reasons why some members did not attend was their erroneous view that the meeting had no standing which in turn was based on the erroneous view that there had been a valid suspension of those who requisitioned it. Mr Robertson had purported to suspend the three requisitioners, as well as another seven members, but His Honour regarded that action as also having been invalid. His Honour dealt with some other matters and ultimately made four declarations two of which could be said to favour the position adopted by Mr Robertson and Mrs Bates, and two of which did not. His Honour overall made no order as to costs. The plaintiff was counsel for Mr Robertson and Mrs Bates in these proceedings.

On 7 January 1995 a special meetings of congress (the governing body of the federation) was held which the plaintiff attended. The Magistrate said that at the trial much was said about this meeting, and much was said about a presentation by the plaintiff at that meeting. According to the reasons of the Magistrate the plaintiff said that he informed those persons present that if anybody wanted to contest the validity of any resolution they would go back to the Supreme Court and the federation would be seeking costs of $10,000-$20,000 if successful. This point was emphasized by the use of an overhead projector and was no doubt enlarged upon. There was also a form circulated, a copy of which was Exhibit 6, headed “Congress Meeting 7 January 1995” and continuing “Name and address of any person wishing to challenge the legality /validity of any ruling by the chairperson, Brian Robertson or any subsequent resolution moved by congress dated 7 January 1995.” The Magistrate found that the plaintiff was forthright in his presentation, which was for the purpose of suppressing and discouraging any further dissent, and accepted that persons present at the meeting had felt intimidated by it. He concluded that it did more to inflame the situation than to quell it, and that the need for such an address was questionable.

No challenge was made on behalf of the appellant to any of these findings about the meeting, and I assume that they were fairly open on the evidence. If they are accurate they seem to reflect an approach to the decision in the Supreme Court which is scarcely justified by the terms of His Honour's judgment and suggest that the plaintiff was using his position as a barrister to distort in favour of Mr Robertson and Mrs Bates the at best qualified success which they had achieved in the Supreme Court. Even if his approach had not been partisan until then, he had certainly taken sides at that point in the deep division of which His Honour had spoken. It is unfortunate, in view of his standing as a barrister, that he was not rather seeking to encourage the sort of healing process that His Honour clearly thought desirable in the interest of the sport. The plaintiff was appointed chairman of the judiciary by, in effect, Mr Robertson and Mrs Bates, on 7 January 1995, after the congress. (Transcript 40 line 34)

The next event referred to by the Magistrate was a notice of 24 March 1995 circulated by the executive of the federation, a copy of which was Exhibit 4. The notice, signed by Mrs Bates, advised that two of the individuals who had been her opponents in the Supreme Court proceedings had been expelled from the federation since February. All clubs and members were exhorted to follow a list of five rules the effect of which was to prevent them from having any sporting contact with those individuals. The letter concludes with the following: “ANY MEMBER MAY BE DISCIPLINED AT ANY TIME FOR BREACHES OF THE COMPANY RULES. ANY MEMBER WHO BREACHES THE ABOVE RULES SHALL BE REFERRED TO THE JUDICIARY FOR INVESTIGATION.”

The Magistrate characterized this notice as reeking of big brother and standover tactics. I agree. It was argued before me that the plaintiff had nothing to do with the formulation of this letter and was not responsible for its being sent. That may well be true, but it was recognised by the Magistrate that he had clearly identified himself with the faction that controlled the executive and was responsible for sending it out. The notice plainly implies that the judiciary can be relied upon to enforce the will of the Bates/Robertson faction. It is in my opinion relevant as one of the background circumstances.

Not surprisingly this behaviour prompted a reaction. It came in the form of the letter of which the plaintiff complains. Part of the letter repeated what was said to be advice from a person whose legal views might be thought to carry some weight, that expulsion of members by the executive and judiciary was illegal, that the form and statement circulated at the congress on 7 January 1995 written by the plaintiff was an illegal tactic, and that that meeting was illegal. It also asserted “an incredible number of phone calls” from people who expressed fears that if they complain about the behaviour of the current federation executive their children would be overlooked for the Queensland team or there would be future victimization by the current executive and judiciary. It referred to the behaviour, actions and vindictiveness of the current federation executive and judiciary, and urged members to demand their resignation immediately so that members were no longer controlled be means of fear and intimidation or manipulation.

In the plaint it was alleged this publication was defamatory of the plaintiff and the Magistrate so found.

Paragraph 7 alleged that the publication in its ordinary natural meaning meant and was understood to mean that: “(a) the plaintiff had committed an illegal act; (b) the plaintiff had committed an unlawful tactic; (c) the plaintiff was a person who may victimize the chance of children participating in the sport of Judo; (d) the plaintiff was vindictive; (e) the plaintiff was unjust; (f) the plaintiff was not a fit and proper person to be a member of the judiciary of the JFA (Q) Ltd; (g) the plaintiff was a person who could be treated with contempt.” Some of these aspects obviously relate to the plaintiff's activities on 7 January 1995, and some to his position as a member of the judiciary, on the basis that he was within the scope of the criticism directed generally to the executive and judiciary. The latter aspect might raise the question of whether the plaintiff as an individual was defamed by such comments, the issue considered by the Full Court in Bjelke-Petersen v. Warburton [1987] 2 Qd R 465. It appears however that the Magistrate has resolved any such issue in favour of the plaintiff since he did say that he would award nominal damages in respect of this aspect of the publication.

The defendant pleaded that the matters published were true and their publication was for the benefit of the members of the federation, and that the publication was fair and made in good faith and for the purpose of discussion of a matter of public interest and of particular interest to the members of the federation. The Magistrate found that the matters complained of by the plaintiff were certainly not the truth, and that the comments about illegality and victimization were not fair to enable the defendant to have the protection of qualified privilege.

The Magistrate said in relation to damages that he was of the view that this was not a serious case. The plaintiff's actions although not illegal were questionable and were open to criticism and the only redress he should receive in relation to the criticism of his conduct at the meeting of 7 January 1995 was nominal damages. With regard to the other matters complained of, he had earlier acknowledged that the plaintiff had been compassionate and fair in all his dealings on the judiciary, but he said that the defendant's letter should be considered in the light of the notice of 24 March 1995 which was referred to in it, and he noted that in respect of this aspect the term judiciary only had been used, not the plaintiff by name. (Indeed the criticism in this respect was directed to the executive and judiciary.) Again he thought that only nominal damages should be awarded. Overall he gave judgment to the plaintiff for the sum of $1.

Approach to the appeal: what is the test?

An appeal against an assessment of general damages is always a difficult thing in the absence of express error of principle in the reasons, and that is particularly so in the case of an award of damages for defamation, because of the nature of the proceedings and the nature of the wrong of which the plaintiff complains in such an action. In Coyne v. Citizen Finance Ltd (1991) 172 CLR 211 the High Court considered the circumstances under which an award of damages for defamation could be set aside on appeal. At page 228 Toohey J. said: “The fact that damages are at large in defamation actions, that is, that damages are not limited to the pecuniary loss that can be proved specifically, places the jury's assessment of such damages in a position which is not invulnerable but which nevertheless an appellate court is slow to disturb.” He went on to explain that the proposition that damages were at large pointed up what had been said earlier by Windeyer J., that a jury could in all cases consider “not only what the plaintiff should receive but what the defendant should pay.” McHugh J. at page 240 spoke of the test in terms of whether the damages awarded by the jury were so unreasonable that no sensible jury properly directed could have reached that conclusion, and noted at page 241 that the jury had an overwhelmingly advantage over an appellate court in determining the true motive of the defendant's conduct and the real effect of the libel and the defendant's conduct on the plaintiff. That advantage was shared by the Magistrate in this case.

Toohey J. said at page 239 that the court should look at the evidence, assume that the jury took a view of the evidence most consistent with the verdict it returned, and then asked whether, in the light of that evidence, the award is sustainable. At page 238 he said that the precise formula to be applied by an appellate court was not crucial, and quoted several including that the award was so large or so small that twelve sensible men could not reasonably have given it: Praed v. Graham (1889) 24 QBD 53 at 55.

There are however two difficulties with applying that approach in the present case. The first is that it is clear that it is directed specifically to a challenge to an assessment of damages by a jury, and the reasoning of Toohey J. in particular makes it clear that that was a most relevant factor in that decision. A jury's assessment of damages has always been accorded special significance, particularly in a defamation case: Donkin v. The Brisbane Newspaper Co. Ltd (1873) 3 SCR 186. The other is that the situation may be different where there is an award of nominal damages, because that raises the question of the circumstances in which that option is properly open to the tribunal of fact.

Appeals from assessment by a Judge

As to the first of these points, in Nance v. British Colombia Electric Railway Co. [1951] AC 601 at 613 the privy council expressed the test to be applied by an appellate court before interfering with an award of damages by a Judge sitting alone in the following terms “Even if the Tribunal at first instance was a Judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the Judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor, or leaving out of the count some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” This test was adopted by Dixon CJ. and Kitto J. in Miller v. Jennings (1959) 92 CLR 190 at 195, in a judgment which was itself cited as authoritative by the Court of Appeal in Elford v. FAI General Insurance Co. Ltd. [1994] 1 Qd R 258 at 264.

Nance (supra) was actually an appeal from a jury verdict in a personal injury action, but this test was held applicable to an appeal from an assessment by a Judge sitting without a jury in an action for defamation by the House of Lords in Dingle v. Associated Newspapers Ltd [1964] AC 371. Lord Radcliffe at page 393 expressed the application of that approach to an appeal from an assessment of damages for defamation by a Judge in the following terms:

Lord Morton and Lord Cohen agreed with Lord Radcliffe; Lord Denning said at page 408: “Damages in a libel action are so very much the province of the tribunal of fact that I would not think it right to interfere with them except on very special grounds.” In that case it was held that the Court of Appeal were justified in increasing the award because the trial Judge had erroneously taken into account two particular matters as tending to mitigate the damages. Accordingly it was a case where the Appeal Court found that there were wrong principles applied in the assessment of damages.

Their Lordships also referred to a question of whether, when considering the size of an award of damages, it was appropriate for the trial Judge to take into account that he in giving judgment was able to provide express vindication of the plaintiff's position. Their Lordships were all critical of this approach, on the basis that it would lead to a situation where damages assessed by a Judge would be lower than damages assessed by a jury, and said that a Judge assessing damages should not mitigate the award because the plaintiff had the benefit of the express judicial vindication contained in the reasons for judgment. Vindication of the plaintiff is certainly one of the bases of damages in a defamation action: Uren v. John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 150. But to the extent that the appropriateness of providing vindication to the plaintiff can be said to justify a large award of damages because that is the only means available to a jury by which it can provide some vindication to the plaintiff, it seems to me somewhat illogical to apply the same approach in the case of a trial Judge who is able to give a vindication in some other way, expressly in reasons published in open court. I would therefore respectfully suggest that the approach of Greene MR. in Rook v. Fairrie [1941] 1 KB 507 at 515, and Bull v. Vazquez [1947] 1 All ER 334 at 337, is more logical, but if the issue arose in the present case, in the absence of any appellate authority in Australia to the contrary, I would apply the law as stated by the House of Lords. In the present case however there is nothing in the reasons of the Magistrate to indicate that he was treating his express vindication of the plaintiff as justifying a lower award of damages, so the issue does not arise.

The approach of Lord Radcliffe indicates that the basic test is essentially the same as with any appeal for an assessment of general damages, although it must be applied with particular care given the nature of damages for defamation which deals with measurements that are not normally capable of proof or disproof, a point also made in Flemming “The Law of Torts” (9th Edition) page 562. As pointed out by Windeyer J. in Uren (supra) money and reputations are not commensurables; the plaintiff's compensation is “a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which .....may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations.” I think therefore that it is appropriate to be even more cautious about interfering with an award of damages for defamation than would be the case, for example, with an award of damages for personal injury. The test in Nance (supra) was also applied to a defamation case by the British Colombia Court of Appeal in Holt v. Sun Publishing Co. Ltd (1979) 100 DLR (3d) 447 at 455. I do not think that the test I apply is quite as rigorous as that adopted in Coyne.

It seems to me, after consideration of these and other decisions I have looked at, that the essential difference between the approach in dealing with an appeal against a verdict for nominal damages of a jury and an assessment of nominal damages by a Magistrate is as follows: In the case of a jury it is necessary to consider whether, on any view of the facts open on the evidence before the jury, it was possible reasonably to conclude that nominal damages were appropriate. Bailey v. Truth and Sportsmen Ltd (1938) 60 CLR 708 at 727. In the case of a Magistrate, or indeed a Judge, who gives reasons for a decision, the basis of the award is no longer a matter of speculation, and the question becomes, whether, on the basis set out in the reasons, I am satisfied that the text in Nance, as applied by Lord Radcliffe in Dingle has been met.

Awards of Nominal Damages

I turn to the second difficulty referred to earlier, whether the approach is different in the case of an appeal against an award of nominal damages. Not surprisingly that is a proposition which has received a certain amount of attention from appellate courts dealing with appeals against awards of nominal damages. A number of such cases are cited on page 625 of Gatley “Libel and Slander” (8th Edition 1981), the leading text in this area, although I was not referred to any of them in the course of argument. I have found some additional cases, but suspect there are many more I have not found.

There are a number of older reported cases in England where awards of nominal damages by juries were not interfered with: Rendall v. Hayward (1839) 5 Bing N.C. 424, 132 ER 1162; Kelly v. Sherlock (1866) LR 1 QB 686; Forsdike v. Stone (1868) LR 3 CP 607; Cooke v. Brodgen & Co. (1885) 1 TLR 497. These decisions were reviewed by Blair CJ. in Bedford v. The Telegraph Newspaper Co. Ltd [1935] St R Qd 41 at 48-51, and I shall refer to only two of them. In Kelly v. Sherlock there were a series of articles in the defendant's newspaper criticizing the plaintiff who was clergyman. The criticism was in response to two sermons preached by the plaintiff, which had themselves been published in newspapers. Shee J. who dissented said at page 693: “Regard being had to the number and character of the libels of which the plaintiff complains and to the lateness and meagerness of the defendant's apology for them, a verdict for substantial damages would have been much more satisfactory.......” Mellor J. at page 695 noted that there was no misdirection in point of law by the trial Judge, or any mistake as to their duty on the part of the jury, or any unfair practice on the part of the defendant. He went on to say at page 696 that: “The least which can be required of a plaintiff who complains of the inadequacy of the damages assessed by the jury is, that he should be able to show that he has not afforded by his conduct any legitimate ground upon which the jury could fairly and reasonably have acted in estimating the damages to which he may be entitled at a nominal sum.” The articles complained of, as a response to the sermons, “undoubtedly so far exceeded the bounds of legitimate criticism as to come within the legal definition of a libel.” There had also been a dispute between the plaintiff and the organist which gave rise to proceedings in the Magistrate Court, as a result of which the plaintiff had made observations in his church and at a meeting described by His Honour as being of an offensive character, which gave rise to a further article in the newspaper. His Honour at page 697 concluded that these matters might reasonably affect the measure of damages. Blackburn J. at page 698 noted that the question was “What compensation ought the plaintiff to have for his injured feelings for it is to be observed that there was no actual pecuniary damage; and that no one, who in these unhappy controversies was not prejudiced against the plaintiff, would think worse of him in consequence of the vulgar abuse of the defendant.” His Honour noted that the libels were in response to public criticism of the local authorities and a statement describing the defendant's paper as “the dregs of provincial journalism”, and that it was reasonable for the jury to consider the plaintiff's conduct and the degree of respect which he had shown for the feelings of others.

Cooke v. Brodgen (supra) is interesting because, although the verdict of the jury implied a finding that there was actual malice on the part of the defendant, an award of nominal damages was not interfered with. The action was one for slander by alleging to the plaintiff's wife and mother that he had been guilty of theft as a servant. The trial Judge expressed the view that “the jury appear to have thought that the defendant went a little too far but had stated nothing for which the plaintiff was entitled to substantial damages.” The Court of Appeal declined to order a new trial, Lord Coleridge saying “The jury might have thought that he did not deserve more than nominal damages.” Field J. referred with approval Kelly v. Sherlock. Given the relationship between the plaintiff and the persons to whom the slander was addressed, it might fairly be said that there had been no real damage suffered as a result of this malicious libel, and this case has been treated as justifying a view that in such circumstances an award of nominal damages could be sustained: Dennison v. Sanderson [1946] 4 DLR 314 at 320, Court of Appeal, Ontario.

Phillimore J. in The Red Man's Syndicate Ltd v. Associated Newspapers Ltd (1910) 26 TLR 394 said: “When a farthing damages was given in a personal action for libel or slander, it generally meant that a wrong has been suffered but, owing to the nearness of the statements to the truth, was so slight that a farthing covered the damage, or that a wrong had been suffered but that the plaintiff's general character was so bad that it had not suffered further substantial damage by the libel or slander. Such a verdict might also mean that the plaintiff's character was so good, and the defendant's so bad, that no substantial damage had resulted.”

Falvey v. Stanford (1874) LR 10 QB 54, appears to have been the first and, for some time, the only case where a jury verdict for nominal damages was upset on appeal. The plaintiff sought damages for slander by the statement that he had been convicted of perjury and fined £100. Quain J. said: “In the present case the words complained were grossly slanderous and calculated, if believed, to be extremely injurious to the character of the plaintiff. On the other hand, although there was no proof of any actual damage sustained by the plaintiff, yet there was no evidence whatever that he had done anything to provoke or give the least ground for the slanderous imputation cast upon him, or to show he had disentitled himself in any way to claim such a verdict as would be practically sufficient to vindicate his character. Under these circumstances a finding that the slander was uttered but that a farthing was sufficient by way of compensation seems so utterly inconsistent as to leave little doubt that the question was not duly considered by the jury and that the verdict was the result of an unwillingness either to find for the plaintiff upon the issue of not guilty with a natural and logical consequences of such a finding, or to find for the defendant, and that it was a species of compromise and, in fact, no true verdict at all.” That is a passage which has frequently been relied upon, and in a number of subsequent cases the assertion was made that an award of nominal damages was really in the nature of a compromise. That passage was sometimes referred to in a way which suggests that it was taken as meaning that a plaintiff was entitled to substantial damages unless he had done something to provoke or give some ground for the defamation or to show that he had disentitled himself in some way from claiming a verdict for substantial damages.

There is a more recent English case where an appellate court interfered with an award of nominal damages. In English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v. Odhams Press Ltd [1940] 1 KB 440 the plaintiff, a society registered under the Industrial and Provident Societies Act, was charged with making a return of income which was false in the sense that it was technically inaccurate, although the issue was one which was described by MacKinnon LJ. as a dispute between accountants as to the proper principle of drawing up a balance sheet: p. 457. A report of the charge against the company which was generally factually correct and unobjectionable had a headline “False Profit Return Charge Against Society” and it was claimed that the report meant and was understood to mean that the plaintiffs had deliberately falsified their accounts, had published a return of annual profits which they knew to be wrong and to have been advised by the auditors to be wrong, that they had done so with a view to deceiving their shareholders and bondholders and the general public, that they were insolvent or unstable, and a society which investors should avoid, and that they carried on their business by dishonest methods. A jury found that the words bore all these meanings, but assess damages at one farthing. Slesser LJ. said at pages 450-1: “A more terrible indictment of a society of this kind it is difficult to imagine. Every kind of fraud and falsity, according to the jury, was suggested by the words used, and, of course, so far as the innuendo was concerned, there was no attempt at any justification. Nevertheless, the jury, despite this finding of falsity and fraud and attempted deception of shareholders and the like, compensated the plaintiff society in the small sum of one farthing, and there is an appeal to this court for a new trial on that ground.” His Lordship at page 455 after reviewing the words of the summing up as to damages concluded, having regard to what actually occurred, that the trial Judge had left the jury with the view that, in so far as they were not satisfied that the company had lost any business, they must treat the damages as something quite nominal or trivial. He continued: “A libel by the invasion of a legal right gives a right to damages. It is the duty of the jury to assess those damages, which may be punitive or contemptuous, or, in an ordinary case, may be such as would recompensense the plaintiff for the wrong done to his reputation. That is altogether apart from any question of special damage.” His Lordship did go on to note that, although he thought there was a misdirection, “In any case, I think that no jury, having found this terrible series of innuendos to be what an ordinary person would understand by reading this issue, could properly award such a sum.” MacKinnon LJ. also thought that the effect the direction was to leave the jury with a view that unless special damages were proved the plaintiff would be entitled to nominal damages only, and that it would have been quite impossible for a jury properly directed to have awarded one farthing. Goddard LJ. at page 461 said: “There is no obligation on the plaintiffs to show that they have suffered actual damage. A plaintiff may, if he can, by way of aggravating damages, prove that he has suffered actual damage. But in every case he is perfectly entitled to say that there has been a serious libel upon him; that the law assumes that he must have suffered damage; and that he is entitled to substantial damages. If the defendant by giving evidence in mitigation of damages, or by saying that the libel is very nearly true, but not quite, can mitigate the damages, be it so. In this case the dependants did nothing of that sort............ It was a verdict which, in my opinion, no reasonable jury could find.”

In Australia there are a number of reports of appeals from decisions of juries awarding nominal damages. The ones I have found begin with Webb v. Louis (1907) 7 SR (NSW) 734. In an action for slander by a married woman in respect of a statement to her brother-in-law by the defendant, that the plaintiff had deceived her husband and committed adultery in Sydney and Melbourne, the jury awarded damages of one farthing. It was accepted that the plaintiff was chaste and the statement was entirely false. Nevertheless the Full Court considered the surrounding circumstances. The plaintiff's husband had formerly been in partnership with the defendant, but the defendant had been dissatisfied with the partnership and given notice to determine it. The plaintiff had alleged that the defendant had made improper overtures to her, and had written to the defendant charging him with having criminally assaulted her. Darley CJ. treated this as a blackmailing letter sent to restrain the defendant's proposal to discontinue the partnership. He said that it would be open to the jury to have concluded that the plaintiff's complaints against the defendant were untrue and that the letter was an invention to deter the defendant from pursuing his course in respect of the partnership and continued at page 736: “If they did come to these conclusions would it not be reasonable for the jury to refuse to award the plaintiff damages because a man smarting under her letter and in answer to a question by her brother-in-law made certain charges which could not be substantiated? In consequence of the charges made by the defendant they were bound to find a verdict for the plaintiff, but being of opinion that he slandered the plaintiff under gross provocation, and although they assumed that she was a chaste woman, as indeed it was admitted, was it not open to the jury to say it is impossible to award her damages?” His Honour approved the statement of Mellor J. in Kelly v. Sherlock (supra) that I have quoted earlier, about what a plaintiff had to show. Cohen J. concluded that the jury was entitled to think the plaintiff was not a truthful woman and that although there was not the slightest ground for imputing want of chastity against her, taking all the circumstances into consideration he did not think the verdict was such as reasonable men ought not to find. Pring J. agreed.

A verdict for nominal damages came before the High Court in Connolly v. “Sunday Times” Publishing Co. Ltd (1908) 7 CLR 263, although somewhat obliquely because the only issue argued was whether there was sufficient cause in such circumstances for the trial Judge to order otherwise than that the costs followed the event. Accordingly the court was not directly concerned with the question of whether an assessment of nominal damages could be sustained, but touched on it. The action was for libel in respect of the publication in a newspaper of a letter accusing the plaintiff, an owner of racehorses, of fraudulent conduct. Griffiths CJ. said at page 267: “A more aggravated libel on a sportsman can hardly be imagined. The defendants pleaded several defences, but the only one which was treated as substantially before the jury was the plea of truth. The defendants were called upon by the plaintiff for particulars of their defence, and they set out a series of 30 or 40 different allegations of turf frauds alleged to have been committed by the plaintiff. If a libel could ever be aggravated by the conduct of the defendants, it was aggravated in this case for, not content with the matters mentioned in the letter complained of, they gave all those other instances in which they said that the plaintiff had deliberately defrauded the public. .....As to some of the matters alleged the plaintiff practically admitted that the acts referred to had taken place substantially as alleged, but he offered a explanation of them. As to other matters the defendants were unable to establish the facts as they had alleged them in their particulars. On the whole of the evidence it was open to the jury to think that the plaintiff had been engaged for a considerable time in dishonourable and dishonest practices upon the turf..... Justification, the law says, must be as broad as the charges made, and if a person ...... takes upon himself to describe another in libelous terms and to insist upon the truth of his description, the law requires him to satisfy the jury that not only is his description correct but that the facts upon which it is based are also correct.” It followed from the verdict that some part of the defence of truth was not establish. At page 270 His Honour concluded that “It is sufficient to say that in the circumstances of the case the learned Judge was justified in drawing the inference that the jury were of the opinion that the plaintiff, by reason of his conduct and character as disclosed in the course of the evidence, was not entitled to anything more than nominal damages; and in my opinion that is good cause for thinking it more fair that an exception should be made to the ordinary rule that costs follow on success.” Barton J. at page 273 thought that the verdict could be justified if “In respect of some or one of these libels - there are a number of separate libels involved in the one-publication - the jury thought that the defendants had failed to prove some part of the allegations, the fact being at the same time clear to their minds that the remainder of the charges against the plaintiff had been proved. That indeed would be enough to show that the plaintiff had a character which could not suffer much from the unproved part of the allegations.” O'Connor J. at page 276 indicated that he thought that the jury verdict could be sustained on the basis of the character or the conduct of the plaintiff, that is on the basis that the plaintiff was of such character that he did not suffer damage to the extent of more than one shilling from these libels, or that the defendants had substantially established the truth of all the allegations but had failed technically in some particular which made it necessary in law to give the plaintiff a verdict. That decision was concerned with the situation where the defendant sought to prove a number of things in order to justify and failed to prove all of them, but proved enough so that it could be said that although the plaintiff had been defamed he did not deserve substantial damages. The references with approval in that case to Kelly v. Sherlock (supra) show that the same approach is appropriate where the defence fails as a matter of degree rather than because the defence failed to prove a sufficient number of allegations.

The language used by various Judges to describe how close the failed defence has to get to succeeding varies, but the language of some certainly suggests that it needs to get very close indeed. It must be remembered however that at least as the law is now understood in Australia it is not necessarily the case that the defendant must prove the literal truth of every particular of the allegation: what the defendant must prove is that every substantial material defamatory statement was true: Howden v. Truth & Sportsmen Ltd (1937) 58 CLR 416 at 419 per Starke J., or as Dixon J. put it at page 420-1: “The defence depends upon the substantial truth of the defamatory meaning conveyed by a libel. Every material part of the imputations upon the plaintiff contained in the words complained of must be true.” Evatt J. at page 425 expressed himself in similar terms. It follows that slight inaccuracies of detail which do not affect the substance of the charge will not prevent the success of the plea. Thus it was held a sufficient answer to a charge of libel in stating that the plaintiff had been convicted of riding in a train without an appropriate ticket and fined one pound or three weeks imprisonment in default, to prove that he had been so convicted and fined one pound but only sentenced to fourteen days imprisonment in default: Alexander v North Eastern Railway Co. (1865) 6 B&S 340, 122 ER 1221, cited with approval by Bray CJ. in Potts v. Moran (1976) 16 SASR 284 at 306. Obviously the disparity between what is proved and the literal truth must be greater than this for the defence to fail but for nominal damages to be appropriate. Indeed some of the actual outcomes in the cases seem to me to be inconsistent with the idea that there must be something very close to actually establishing a defence before the facts will justify an award of nominal damages. The analysis of Griffith CJ. in Connolly at page 267 suggests that something much broader was sufficient in that case. Some expressions suggesting that the defendant must get very close are therefore unjustified.

In Davies Brothers Ltd. v. Bond (1912) 13 CLR 518 the High Court restored a jury verdict for one penny in respect of a newspaper libel, on the ground that it was not appropriate for the appeal court to have interfered with the jury's assessment of the damages. The plaintiff had claimed that he was defamed by an article in the defendant's newspaper suggesting that he was in the habit of underpaying his employees, which article was inaccurate to the extent that he was alleged to have paid ten pence per load for carting when he actually paid one shilling, an amount still less than the average wage for such work. Griffith CJ. at page 523 spoke highly of Blackburn J and Mellor J. in Kelly v. Sherlock, said that there was no basis for criticizing the summing up, and that “There is some evidence, which the jury might have accepted, that the conduct of the plaintiff, although not exactly that described in the paragraph, was substantially the same, there being only a trifling error in describing the wages paid by him”: (p. 523). Barton J. said at page 525: “It was competent for (the jury) to find merely that amount of damages which they thought would mark their opinion of the plaintiff's conduct, and, if they thought his manner of promoting his own interest was not generous or liberal, it was competent for them to express their opinion in the verdict. It is enough to say that there was evidence before them to enable them to deduce that opinion.” Isaacs J. at page 528 said that he would not like to fetter himself by saying that a case could not arise in which it would be the duty of the court, looking at the circumstances, if satisfied that the jury had misunderstood the position, and so had done injustice, to order a new trial.

In O'Brien v. Daily News Ltd (1925) 28 WALR 1 a verdict of nominal damages was not interfered with, although the court had some difficulty explaining the basis for it.

In the Lemaire v. Smiths Newspapers Ltd (1927) 28 SR (NSW) 161 the plaintiff who represented himself at the trial stated in opening his case that he would be satisfied with an undertaking by the defendant to publish an apology in the newspaper. Counsel for the defendant offered to give such an undertaking, which offer the plaintiff then refused to accept. The jury awarded him damages of one farthing. Gordon J. at page 166 said that a plaintiff was entitled to invite an apology or retraction when opening his case before the jury, and the attitude of the defendant's in response may be taken into account by the jury in assessing damages. A failure by the defendant to apologize may aggravate compensatory damages: Herald Weekly Times Ltd v. McGregor (1928) 41 CLR 254 at 263. If the defendant had not risen to the bait the plaintiff would have used this as a basis for seeking higher damages for the jury. In those circumstances he can hardly complain if he gets what he asks for, and the jury then takes him at his word. At page 169 the court expressly rejected the argument that the plaintiff was entitled to a verdict for substantial damages.

In Maling v. S. Bennett Ltd (1928) 29 SR (NSW) 280 the plaintiff claimed that he was defamed by an article in a newspaper which accused him, in his position as a member of the Sydney City Council, in substance of making a recommendation to Council which was at least grossly incompetent and probably grossly corrupt with the result that the citizens of Sydney were robbed of over £37,000. The jury awarded the plaintiff one farthing damages. Ferguson J., with whom Gordon J. agreed, said at page 285: “In the present case it is established by the verdict that the words do convey a defamatory imputation upon the plaintiff, but the nature and seriousness of the imputation were matters for the determination of the jury. If they came to the conclusion that though they were disparaging words, the imputation against the plaintiff's character was not a serious one, then they might rightly decline to award him substantial damages, and their verdict could not be disturbed unless it appeared that the conclusion upon which they based it was one which reasonable men could not draw from the evidence.” His Honour discussed the substance of the defamation, and the basis of the defence, and page 286 concluded that he did not think the jury could reasonably have found that the articles were not seriously defamatory of the plaintiff. He went on to consider whether the allegations were true or substantially true, because if they were it would be unreasonable to expect the jury to give the plaintiff a farthing more damages than the law required them to give. He concluded however that the material statements in the article were disproved by uncontradicted evidence. His Honour then considered whether an admission by the plaintiff of some discreditable conduct having no connection with his official position was relevant, and concluded that it was, but that it did not justify an award of nominal damages. Ultimately at page 292 said that he could not come to any other conclusion than that the verdict was one which could not have been arrived at by the application of proper principles to the facts in evidence.

Campbell J. dissented, although he expressed the relevant test in the same terms as the majority. His Honour said that it would have been open to the jury to take the view that the plaintiff had not been as frank as he might have been under cross-examination with regard to the subject matter of the article, and that his answers were sometimes disingenuous and evasive and sometimes deliberately untrue, and on that basis to have acted reasonably when assessing damages. The difference therefore between His Honour and the majority appears to be that he thought that there was a reasonable basis upon which the jury could have taken a seriously unfavourable view of the plaintiff, whereas the majority did not.

In Bedford v. The Telegraph Newspaper Co. Ltd [1935] St R Qd 41, the plaintiff claimed that he had been defamed in a letter published in the defendant's newspaper which reflected on the management of a gold mining company of which the plaintiff was a director. The defendant was successful at trial but the High Court on appeal held that the defences relied on under section 377 were inapplicable: (1934) 50 CLR 632. At a second trial the jury awarded damages of one shilling. On appeal the Full Court, applying Falvey v. Samford (supra), ordered a new trial on the issue of damages. Blair CJ. at page 55, after noting that no one ever suggested that the defamatory matter was true, said that he could not see any evidence to show that the plaintiff had done anything to disentitle him to a verdict sufficient to vindicate his character. RJ Douglas J. at page 58 said that he was satisfied that the jury had misunderstood the position and so had done an injustice, which justified a new trial. EA Douglas J. at page 61 said that neither by his conduct nor his character had the plaintiff afforded any legitimate ground upon which the jury acting fairly and reasonably could have estimated the damages at one shilling. It seems that in that case there was simply no plausible basis shown on which the jury could have reasonably taken an adverse view of the plaintiff.

In Bailey v. Truth & Sportsmen Ltd (1938) 60 CLR 700 the High Court refused to intervene when a jury had assessed damages for the plaintiff in a defamation action at one farthing. The plaintiff was a New South Wales policeman who was one of a number criticized by a Royal Commission the report of which was discussed in an article in the respondent's newspaper in graphic terms. The appellant was dismissed from the police force as a result of the report but was subsequently reinstated after a successful appeal to a statutory board. He brought an action for libel at which no evidence was given as to the truth of the statements of fact contained in the article, or which in any way discredited his character. Latham CJ. at page 709 said that it was submitted that the libel was gross in character and that the verdict was really inconsistent with the finding for the plaintiff and that sensible men could not reasonably have assessed damages in case at such a sum. “A reply will be provided to this contention, however, if it can be shown that it is possible for the jury to have taken a view of the case which would render their verdict rational, or at least not entirely irrational. In my opinion it is possible to provide a rational explanation for the verdict.” At page 710 His Honour noted that it must be taken from the fact that the verdict was for the plaintiff that there was some defamatory statement of fact which was false and not for the public benefit or that some defamatory comment was not fair and that the defendant was not protected by privilege. “It was open to the jury to hold that, in view of the statements actually made with respect to the plaintiff in the report, upon which the article was plainly based, very little harm had been done to him by the publication of the libel. .....The making of the report, the presentation of the report to Parliament, and the publication of it were all lawful acts which must have seriously damaged the plaintiff's reputation. I see no reason why the jury should not have taken these facts into consideration when assessing damages. Upon such a view the damage caused to the plaintiff by the defendant's libel might be regarded as negligible, and the verdict would not be indefensible in reason.” Starke J. at page 718 said: “The jury were entitled to assess those damages, according to the charge, and to which no objection had ever been taken, on the footing that the statements of fact and conclusions of the commissioner should be treated as true. According to the commissioner the plaintiff had given false evidence indicating an admission of guilt on the part of a person charged with an offence. It was a grave statement of fact, and, if true, disgraceful conduct on the part of an officer of police. And as the jury were directed, without objection, that they might regard the statement of the commissioner as true then I fail to understand on what ground the court can say the damages are inadequate. Indeed, they seem adequate enough if the plaintiff were guilty of the conduct attributed to him by the commissioner. Possibly the jury were protesting against the extravagance and vulgarity of the language used by the newspaper; they were certainly not expressing a favourable view of the plaintiff's reputation,” McTiernan J. at page 726 said that “The evidence disclosed to the jury a number of matters which it might well have considered did detract seriously from the plaintiff's reputation.” After some further analysis His Honour concluded at page 731 that the jury had found for the plaintiff because it considered that the article overstepped the bounds of fair comment but was not otherwise defamatory, which afforded a reasonable basis for an award of no more than contemptuous damages. Dixon J. dissented. His Honour proceeded on the basis that unless the jury were to regard the plaintiff as being actually guilty of the conduct imputed to him by the Royal Commission there was no justification for refusing to award real damages for the grave reflections upon him, and on the material before the jury there was no basis upon which they could make such a finding: p.725.

His Honour's conclusion was therefore based on his fairly restrictive view as to the use which could properly be made by the jury of the report of the Royal Commission. In this respect he differed from the approach adopted by Starke J., which was endorsed by the High Court in Pervan v. North Queensland Newpaper Co. Ltd (1993) 68 ALJR 1 at 7,10. The issue on which Dixon J. appears to have differed from at least some of the majority seems to have been whether it was open on the evidence for the jury to have taken a seriously adverse view of the plaintiff.

New Zealand decisions

There are also some relevant New Zealand decisions. In Bekker v. Wrack [1937] NZLR 549 the Court of Appeal refused to interfere with a verdict of nominal damages awarded in respect of a serious case of slander, described as a gross slander, where the award was said to be able to be justified on the ground that the persons to whom it had been spoken had not believed it. One member of the court however said that the verdict could also be explained on the basis that there was evidence on which a jury could have taken an unfavourable view of the plaintiff, as an adventuress who had, by stringing along an old man, extracted over £400 from him. Kennedy J. at page 561 approached the question of whether an award of nominal damages could be sustained by asking a series of questions: “Was there any evidence that the plaintiff gave the least ground for the slanderous imputation? Was it nearly or partly true, or did the plaintiff by her own conduct bring suspicion upon herself? Was there any evidence whatever that she by her own statements, provoked the slander? Did the plaintiff show the absence in her conduct of any legitimate ground on which the jury could reasonably and fairly have acted in estimating the damages at one farthing?” This is a useful list of relevant factors.

I found two earlier appeals from awards for nominal damages, which were dealt with by reference to English authorities. In Chilwell v. Webster (1918) 37 NZLR 369 a jury verdict of one farthing was set aside, along with a finding of an absence of malice said to be against the weight of the evidence. In Butcher v. Payton (1890) 9 NZLR 240 a verdict for nominal damages was not overturned, on the basis that the jury must have taken a dim view of the plaintiff's character. Prendergast CJ. said at page 246-7: “It may be that in a case where there are no circumstances before the jury other than the publication of libelous matter of such a character as to be calculated to cause injury to reputation, the court would not hesitate to set aside a verdict of a shilling or a farthing damages.”

Canadian Decisions

I have also looked at a number of Canadian decisions dealing with awards of nominal damages. In two of them it may be said the award was justified by the bad reputation of the plaintiff prior to the defamation, an issue which does not arise here: Leonhard v. Sun Publishing Co. (1956) 19 WWR 415, 4 DLR (2d) 514; McCullough v. Robinson [1930] 3 WWR 534. In the latter case the defendant had said of the plaintiff who was a doctor “I lost two children through his damn drunkenness.” The defendant satisfied the trial Judge that the plaintiff had attended his ill children in a state of intoxication, and that he had not given proper medical treatment to them, but he said that it was impossible to prove that this statement was literally true and rejected the defence of justification. Nevertheless his award of damages of one dollar was not interfered with. Martin JA. said at page 537: “The evidence shows, and I think this was the opinion of the trial Judge, that there were at least reasonable grounds for the statement of the defendant, that he had lost his children through the drunkenness of the plaintiff. For this reason, and also on account of the evidence given as to the plaintiff's general reputation in the community, the trial Judge assessed the damages in the sum of $1.” He held that it was not open to an appeal court to interfere. The case is interesting because it is the only instance I have found of an appeal from an award of nominal damages by a Judge rather than by a jury, and because in that case, as in the present, the trial Judge made no order for costs, and that was also not interfered with on appeal. Nevertheless the facts of the case are quite different and it is a more obvious case for an award of nominal damages.

In Geddie v. Rink [1935] 1 WWR 87 the Saskatchewan Court of Appeal refused to interfere with a jury verdict for $10, described as nominal damages. Martin JA. at page 92 said: “The plaintiff's counsel told the jury that the plaintiff was not asking for large damages but was seeking a vindication of his character, and the jury in all probability seized the opportunity of treating the defendant with every consideration and awarding nominal damages only instead of assessing the substantial damages which the grossness of the slanders complained of warranted.” McKenzie JA. page 101 said: “The verdict may be sustained as a reasonable one even if the slanders were gross when it is borne in mind that there was no evidence to show that the plaintiff suffered an actual pecuniary loss, while there is good ground for the conclusion that the jury might very well have thought that he was not seeking pecuniary gain by litigation but merely to clear his character.” This approach to the issue of vindication stands in contrast to the view that vindication can only be achieved by an award of substantial damages.

In Dennison v. Sanderson [1946] 4 DLR 314 the Ontario Court of Appeal declined to interfere with a jury award of one cent for defamation where there was a finding of express malice. Robertson CJ., with whom the other members of the court agreed, said at page 320: “It was plain upon the face of the pleadings that the whole matter was a by-product of a heated election campaign, in which party feeling was aroused..... ..... A jury is not necessarily perverse if it refuses to regard as seriously as the party assailed may do the seemingly venomous attacks made upon such an occasion. No monetary loss is involved, and a jury is not likely to regard as serious the damage, if any, done by rough words applied to a political opponent, even though they may amount to gross abuse.” It may be that that approach can be carried over to the internal politics of an organisation such as the federation.

Is there an entitlement to substantial damages?

It was argued on behalf of the appellant that he was entitled to an award of substantial damages in order to vindicate his character. Vindication is certainly an important consideration in the assessment of damages: Uren v. John Fairfax & Sons Pty Ltd (supra) at page 150. I do not think however that that case or any of the other cases establishes that a plaintiff who succeeds in showing that he has been defamed is entitled in all cases to an award of substantial damages sufficient to vindicate him, or perhaps in all cases except those where his reputation is shown to be worthless. That would be inconsistent with a number of cases to which I have referred, and in particular with the formulation of the basis for interfering with an award of nominal damages expressed in Falvey v. Stanford (supra). When Quain J. in that case said that there was nothing to show that the plaintiff had disentitled himself in any way to claim such a verdict as would be practically sufficient to vindicate his character, he impliedly asserted that it was possible for a plaintiff to be so disentitled.

The law is not that a successful plaintiff in an action for defamation is entitled to substantial damages. The true rule is that given by Scrutton LJ. in Hobbs v. Tinling & Co. Ltd [1929] 2 KB 1 at 17: “The plaintiff proving a statement prima facie defamatory and unexcused by justification, privilege or fair comment is always entitled to nominal damages.” As Falvey, and the passage from the judgment of Goddard LJ. in the English and Scottish Co-operative case cited earlier indicates, a plaintiff by proving that he has been defamed established a prima facie right to substantial damages, sufficient to vindicate him, so that substantial damages must be awarded unless there is some sufficient reason for not doing so. By substantial damages I mean damages which are more than nominal damages. That is why when a court has considered whether a jury's award of nominal damages can be sustained, it has focussed on the question of whether there was any and what basis for departing from that prima facie position. The various decisions to which I have referred give a variety of circumstances which various courts have treated as been capable of providing some reasonable justification for departing from the prima facie entitlement to substantial damages.

On the basis of those cases the following list of categories where nominal damages may be appropriate can be identified, although I would not suggest that the list is exhaustive:

The test I apply:

In the light of these authorities I consider that the correct test for me to apply is to determine first whether any disputed finding of primary facts is justified on the evidence, as with any other appeal by was of re-hearing, then whether the reasoning exposes any error of law, and then whether, on the basis of the approach taken by the Magistrate, and in all the relevant circumstances of the case, the assessment of nominal damages was one that no reasonable tribunal of fact could arrive at, and thus wholly erroneous.

A plaintiff who succeeds in showing that he has been defamed is prima facie entitled to more than nominal damages, and when considering an appeal against an award of nominal damages it is necessary to consider whether there was any good reason for departing from that prima facie position in the circumstance of the particular case. The authorities however indicate that a wide range of matters can amount to good reason, and that, so long as there is some circumstance which could be seen as amounting to a good reason, whether it does so in a particular case is essentially a matter for the tribunal of fact, and an appeal court will interfere only on the limited basis on which it would interfere in any other appeal against an assessment of damages for defamation.

The retraction

The only specific finding of primary fact which was challenged on appeal was the finding that the contents of a letter of retraction written by the defendant were made known to the plaintiff. A copy of that letter was Exhibit 7. It was sent on 4 April 1995 to the secretary of the federation and was in these terms:

The respondent's counsel conceded that this was a somewhat half-hearted retraction, and it was argued on behalf of the appellant that it should really be treated as a matter which aggravated damages, on the basis that it was not an abject apology and thereby impliedly asserted that there was some justification in having written the original letter. It may well have been open to the Magistrate to have treated the terms of this letter as a matter of aggravation, but I fail to see why it is necessary unreasonable for him to have taken the view that a half-hearted retraction was better than none at all. Be that as it may, I fail to see how the question of whether the contents of this letter were made known to the plaintiff at any particular time is in any way relevant to the Magistrate's conclusion as to damages, or to the issues that I have to decide. No relevance was demonstrated in the submissions of counsel for the appellant. I therefore do not propose to consider the point further.

Was this a serious case?

No other specific finding was expressly attacked, although I think that it would be fair to treat the argument for the appellant as challenging the Magistrate's view that this was not a serious case. That implies a finding that this was not a serious defamation, that is, that it did not do any real harm to the reputation of the appellant, and that he had suffered no real mental distress from his knowledge of it. As to the latter point, the Magistrate saw the appellant and heard his evidence as to the effect on his feelings about the publication of the letter, and was in a good position to assess his personality. The comment of McHugh J. in Coyne at page 241, about the overwhelming advantage of a jury in determining the real effect on the plaintiff of the libel and the defendant's conduct, applies in my opinion equally to the Magistrate. In these circumstances it is impossible for me to say that this aspect of the finding was wrong.

As to the former point, emphasis was put on the finding that approximately fifty of the letters were published, and to the large number of people to whose attention one would expect them to come. Most of these would no doubt have been people associated with Judo organizations, and likely to be already aware of the deep division within the federation. Such people might be expected to have considered it in the context of that dispute. The letter is cast in emotional and exaggerated language, in terms which are likely to appeal only to those who are already partisan on the side of the defendant. Those who were partisan on the other side are unlikely to think less of the plaintiff because he is associated with their side. Having looked at the copy of the letter which is annexed to the amended plaint, my own view is that a person who was not already partisan in the dispute would be unlikely to take it very seriously, and would not place reliance on it in thinking ill of the plaintiff, (cf. Kelly v. Sherlock (supra)). I think it is not something an ordinary, reasonable and impartial person would take seriously. I think it reasonable to conclude that it did not do any real harm to the appellant's reputation. It follows that there was a reasonable basis available to the Magistrate to treat it as not a serious defamation.

It was argued it that it was necessarily very serious to accuse a barrister of illegal conduct. Such a submission has a somewhat old fashioned ring to it, redolent of the days when a suggestion of unchastity in a woman or of homosexuality in a man was a terrible disgrace. Lawyers have been accused by various high authorities of being selfish and greedy, overcharging and prolonging litigation and avoiding the speedy resolution of disputes so as to run up their fees, and are the butt of a host of lawyer jokes the point of which is the low public esteem in which lawyers are held. Without suggesting that the expression “reputable barrister” has actually become an oxymoron, I do not think that it is right to say that to accuse a barrister of doing something illegal must under all circumstances be regarded as a serious defamation. It must always depend on the circumstances.

This defamation must be assessed in the light of the Magistrate's finding that the plaintiff's actions, although not illegal, were questionable and open to criticism. I think there is a difference between a situation where there is no basis for criticizing the plaintiff and he is condemned in strong terms, as in the English and Scottish Co-operative case, and a case where there is a basis for criticism but the criticism went too far and became defamatory, as in Kelly v. Sherlock. The propositions expressed by Mellor J. and Blackburn J. in that case which I have quoted are applicable in the present case, or find some analogy in it. I do not think that the Magistrate was bound to find that this defamation was serious. I am not persuaded that that finding was wrong.

Other arguments for the appellant

It was argued on behalf of the appellant that there were a number of factors in the case which on the authorities justified increased damages, or aggravated damages. For example, it was argued that the pleading of justification by the respondent was an aggravating factor. There was a plea of justification, and the particulars given of the facts to support that plea do not really support it. It does not appear to have been seriously pursued at the trial, but it was not expressly abandoned, and there was a finding that the statements were not true. Persistence in the defence of justification was referred to by Toohey J. in Coyne (supra). His Honour at page 237 said that that may be relevant to the amount of compensatory damages awarded, although (significantly) it is not the case that every unsuccessful defendant must face the prospect of damages being increased simply because the defendant has elected to defend the action. His Honour also said at page 238 that in the absence of a lack of bona fides, impropriety or unjustifiability, persistence in the plea of justification does not warrant an award of aggravated damages. In the present case the Magistrate found that there was no actual malice and accepted the evidence of the defendant that she was acting in the interest of the sport and young people wishing to participate in it. There seems to be no basis to suggest a lack of bona fides on the defendant's part in putting on the plea of justification, and it was not shown to have been improper, but it may be said that it was unjustifiable, in that it was not justified by the particulars given of it or evidence available to support it. Assuming that this means that the requirement given by His Honour in Coyne for the award of aggravated damages has been met, such damages would still only be awarded if the Magistrate thought that the way in which the defence had been conducted had improperly aggravated the injury done to the plaintiff. Even if this defence was wholly misconceived. I find it difficult to see how it actually did that. This is not like a case where the defamation alleged is a statement that the plaintiff has committed a crime and the defendant pleads that the plaintiff has committed a crime, but then leads no evidence, or clearly inadequate evidence, to prove that. It follows that I find it quite impossible to say that the Magistrate was wrong in failing to conclude that this defence had aggravated the injury done to the appellant. Coyne makes it clear that it is not an error of law to fail to award increased damages on this basis. An argument that a similar approach should be adopted in relation to the plea of qualified privilege fails for the same reason.

Some point was made about the refusal of the defendant under cross-examination to apologize or retract the letter. In view of the finding as to her motives in sending the letter in the first place, it might have been hypocritical for her to have acceded to this invitation. It may well have been open for the Magistrate to have taken this refusal as evidence of actual malice, but he did not find actual malice and his failure to find it is not challenged by the appellant. It may also have been justification for increasing compensatory damages, but again there is no authority for the proposition that it must do so or that there was any error of principle in not doing so.

It was submitted that the Magistrate was “wrong in fact” in saying that approximately 50 of the letters were published, although as it developed the argument was not that the finding was factually inaccurate, but rather that what mattered was the number of people to whose attention the defamation came, rather than the number of letters published. There is no reason to think that the Magistrate was under any misapprehension about this point. Obviously the number of letters published is likely to be relevant to the scope of publication, and the fact that about 50 of them were sent out would mean that a lot more people would have become aware of the letters than if only one or a handful had been sent out. On the other hand, the scope of publication was obviously much less than if the defamation had been published in a newspaper or magazine, as is often the case when damages for defamation are assessed. I see no reason for concluding that the Magistrate in this respect misunderstood the facts.

It was argued that the Magistrate did not take into account the failure of the respondent to contact the appellant prior to publication, and the conduct of the defence at the trial. These are not issues of which the Magistrate could have been unaware, but I think it is clear that whether he chose to award substantial damages of the basis of them was entirely a matter for him. I do not consider that an appellant demonstrates that a Magistrate has failed to take something into account merely by pointing to the absence of any express reference to it in the Magistrate's reasons. Reasons should deal with those things which are thought important, and the major issues in contention, but if everything relevant had to be mentioned all reasons could end up as long as these. The appellant's argument really came down to saying that because substantial damages were not awarded the Magistrate must have failed to take these things into account. That assumes that there is some rule of law, or principle, to the effect that the presence of one or both of these factors requires an award of substantial damages. No authority in support of such a proposition was cited to me, and I know of none.

The limits of the argument

It was not argued that any of the matters referred to by the Magistrate were matters which as a matter of law could not properly be taken into account by way of mitigating damages. There was also no submission advanced that the findings of primary fact were not justified by the evidence (apart from the arguments I have already dealt with) nor was any submission made that the Magistrate erred in failing to exclude any evidence which should have been held inadmissible. Indeed the argument for the appellant really came down to the assertion that this was a terrible defamation and that there were a number of factors present which ought to have been treated as justifying a larger award of damages, and that therefore the award of nominal damages must have been wrong. That was at best an attempt to support the appeal on what Lord Radcliffe in Dingle (supra) regarded as the most difficult basis upon which to overturn an assessment of damages for defamation.

Another matter which was not relied on in argument was the proposition that the Magistrate had erred by failing to find expressly whether any and which of the false innuendos relied on in paragraph 7 of the plaint were made out. It is clear from the introductory words of that paragraph that what was pleaded there were false innuendos: Mann v. Mackay Television Ltd [1992] 2 Qd R 136 at 142. As Lord Radcliffe pointed out in Dingle at page 742, it would have been the desirable course for that finding to have been made expressly. However His Lordship in that case went on to form a view as to what must have been the situation in the light of the relevant passages in the reasons for judgment, and there was nothing to suggest that a failure to make such finding express would itself have justified allowing the appeal. In the present case I think the essence of the defamatory meaning was really two-fold: that the plaintiff had done and had been a party to illegal acts in connection with the meeting of 7 January 1995, and that the plaintiff as chairman of the judiciary would not deal impartially with opponents of the Bates/Robertson faction but could be expected to victimize them, and should therefore be removed from that position. I do not think that the various innuendos in paragraph 7 add much to such a characterization of the defamation. I think it is clear that in respect of both of these aspects the Magistrate took the view that the publication was defamatory, and that neither warranted more than nominal damages. I do not think that the absence of any express finding as to the imputations established in the present case causes any real uncertainty as to the basis upon which the Magistrate proceeded, or gives rise to any suspicion that he may have misunderstood the facts or failed to take relevant matters into account.

The argument on behalf of the appellant was directed to achieving an award of substantial damages rather than nominal damages; there was no argument advanced that, if the appropriate course was to award nominal damages, nevertheless the sum of $1 was too low. The authorities use the expressions “nominal damages” and “contemptuous damages” to refer to a very small award, but the only places where I have seen a reference to both suggesting that there is some gradation of damages is the Canadian Digest, which classifies cases on nominal damages and contemptuous damages separately, and in the judgment of the Chief Justice in O'Brien v. Daily News Ltd (1925) 28 WALR 1 at 7-8, where there is no explanation of the difference and when one or the other would be appropriate. Perhaps contemptuous damages would be the smallest possible award, formerly one farthing and now five cents. Elsewhere I have seen either nominal damages or contemptuous damages used as the alternative to substantial damages, and in Bailey (supra) at p.725 Dixon J. regarded one farthing as contemptuous or, at best, nominal damages. I think in truth the terms are interchangeable, in that they are both referring to the same thing, and that the better term is nominal damages. In any case, if there is a difference it was not pursued in argument.

Was there anything capable of being a good reason for nominal damages?

The various cases to which I have referred indicate that a wide range of matters are capable of amounting to good reason for departing from the prima facie entitlement to substantial damages. Some of those factors are not relevant in the present case, but there are factors in the present case which have been said to be relevant, or which appear by analogy to earlier cases to be relevant.

Dealing first with the allegation of association with illegality, the following factors appear to be relevant:

With regard to the defamation of the plaintiff in his capacity as chairman of the judiciary, the following factors which were relied upon are in my opinion relevant in addition to factors (b), (c) and (d) above which are also applicable:

One factor which I think the Magistrate was entitled to take into account in mitigation of damages was the personal circumstances of the defendant. Windeyer J. in Uren (supra) said at page 151 that damages could be assessed considering “not only what the plaintiff should receive but what the defendant should pay”. This comment was quoted from Forsdike v. Stone (supra) where nominal damages were awarded apparently on the basis that the defendant had made an honest mistake in identifying the plaintiff as a person he had seen in compromising circumstances. Clearly therefore the question of “what the defendant should pay” is capable of operating in mitigation as well as in aggravation of damages. Undoubtedly where the defendant is a wealthy newspaper publisher that feet is often taken into account in awarding large sums by way of damages for defamation. It is established that publication of defamatory matter in a newspaper is particularly serious, not only because of the greater dissemination of it, but because of the profit motive behind the publication: Jones v. E Hulton & Co. [1909] 2 KB 444 at 483. In the present case the respondent is apparently a widow with two young children who at the time of the trial was unemployed: T15. I think those matters were relevant, and that the Magistrate should not be criticized for being less enthusiastic than is the appellant about seeing such a person mulct in damages.

There were a number of other factors which were not mentioned in the Magistrate's reasons, but were in my opinion relevant to the assessment of damages and tended to mitigate the damages or not to increase them:

In the light of all these factors I think it is impossible to conclude that the case is one where there was no basis upon which a Magistrate could reasonably find that this plaintiff was not entitled to substantial damages, and impossible to say that the assessment of nominal damages was one that no reasonable tribunal of fact could arrive at and was thus wholly erroneous. It follows that the appeal in relation to this issue fails.

Interest

The next point which was argued was that the Magistrate erred in failing to award interest pursuant to section 95 of the Supreme Court Act 1995. The question of whether interest by statute should be awarded on damages for defamation is one which has provoked differing opinions: see Kelly v. John Fairfax & Sons Ltd (1985) 1 NSW LR 462, on appeal (1987) 8 NSW LR 131. It appears that the prevailing view is that interest should be awarded, although I would think the considerations which justify a nominal rate of interest in the case of damages for pain and suffering and loss of amenities would apply equally here: MBP (SA) Pty Ltd v. Gogic (1991) 171 CLR 657; Jackson v. Bagwell [1992] 2 Qd R 390. It was however argued that interest should have been awarded on this basis on the damages of one dollar. Such a submission defies comment. I suppose technically the reason for rejecting it is the application of the principle de minimis non curat lex.

Appeal against costs order

It was also argued that the Magistrate erred in failing to order the defendant to pay the plaintiff's costs. The Magistrate after hearing argument noted that the award had been only for nominal damages, said that he had a discretion, and that he exercised it by making no order as to costs.

Costs are dealt with in the Magistrates Court Rules by Rule 319(1) which provides that costs shall be paid in such manner as the court thinks fit, and in the absence of any special direction such costs shall abide the event of the proceedings. Under this rule it is plainly correct that the Magistrate had a discretion: Colburt v. Beard [1992] 2 Qd R 67 at 69. Such a decision is not readily or lightly disturbed: Theiss v. TCN Channel 9 Pty Ltd (No.5) [1994] 1 Qd R 156 at 207.

It is well established that the fact that only nominal damages are awarded can be a basis on which a trial Judge can deprive the plaintiff of the costs of the action: Connolly v. Sunday Times Publishing Co. Ltd (supra). The principle that a plaintiff who recovers only a very small amount should not get costs without some additional reason apart from the fact of recovery to that extent applies in this court (Rule 363A(1)) and in the Supreme Court: O 91 r 2(2). Although there does not appear to be an equivalent rule in the Magistrate Court, the underlying principle is in my opinion just as applicable there. There is some authority for the proposition that an award of nominal damages in a defamation action is prima facie good cause for depriving the plaintiff of costs: Moore v. Gill (1888) 4 TLR 738; Wood v. Cox (1888) 5 TLR 272. Although it is clear on the authorities that this consideration is not conclusive - O'Connor v. Star Newspaper Co. (1893) 68 LT 146; British Dominion Films Ltd v. Gent [1935] ALR 188 - this does mean that there is an onus on the plaintiff to show good reason for departing from this position: Martin v. Benson [1927] 1 KB 771.

There is some authority for the proposition that where the object of litigation is to obtain substantial damages and only nominal damages are awarded the plaintiff should pay the costs of the action: Alltrans Express Ltd. v. CV A Holdings Ltd. [1984] 1 WLR 394. That was a case dealing with a commercial dispute, but a similar order was made in a defamation action in Myers v. Financial News (1888) 5 TLR 42. The applicability of that approach in the present case really depends on the extent to which the failure to obtain an award of substantial damages should be regarded as failure in the action. This raises an issue to which I have averted earlier, of the significance of the fact that the plaintiff did obtain some vindication by the action, in that there were findings that his behaviour was not illegal and that he was compassionate and fair in all his dealings on the judiciary. If it be right, as seems to be asserted by the House of Lords in Dingle (supra), that vindication is provided only by an award of substantial damages, and that anything the Judge says in his reasons is irrelevant at least to the issue of damages, logically I think that make it harder to argue that the outcome in this case should not be characterized as the plaintiff's having failed in the action. That is a further reason why I find the approach in Dingle (supra) on this point unsatisfactory. However, there is no cross-appeal on costs.

The Magistrate had the opportunity of seeing a number of witnesses over a number of days giving evidence about this whole matter, of seeing both the plaintiff and the defendant in the witness box, and had an enormous advantage over any appellate court in being able to assess the background to this litigation, the circumstances under which the defamation was published, and the true effect on the parties. The Magistrate did not say expressly that the action was one which should never have been brought, but I think that it is not difficult to arrive at such a conclusion. It certainly would have been better if the plaintiff had taken to heart the comments of MacKenzie J. referred to earlier. I think the way in which the discretion as to costs was exercised was within the scope of the discretion properly available to the Magistrate, and there is no good reason for interfering with it on appeal.

Conclusion

It follows that the appeal should be dismissed with costs. I would only add one matter by way of comment. It may be thought that this judgment is somewhat unbalanced, because it tends to focus on matters critical of the appellant. But in circumstances where the issue is largely whether there was anything in the conduct or character of the appellant which could reasonably be thought to justify departure from a prima facie entitlement to substantial damages, inevitably the judgment will focus on the question of just how critical it is possible to be of the appellant in the circumstances of this case.