Nationwide News Pty Ltd v Weatherup

This decision involves an appeal from the verdict of a civil jury in defamation proceedings. The Court considers the issue of inconsistent verdicts in this context and explains the limited basis upon which a finding of inconsistency may be made. Interestingly, the Court also gives some consideration to the contextual truth defence and an allegation that a substantially true imputation in effect “did all the damage”, with the result that no further harm was caused by the pleaded contextual imputations. This was a question of fact for the jury, however, and the court again refused to interfere. Finally, the Court considered an appeal against the costs order of the primary judge.  The Court held that the judge had erred in the exercise of his discretion by failing to give reasons why he ordered that costs be assessed “otherwise” than in accordance with the Magistrate’s Court scale pursuant to r 697(2) of the UCPR.

Fraser JA and Douglas and Applegarth JJ

21 April 2017

A jury found that the appellant defamed the respondent in a newspaper article published in The Australian, which imputed that “[the respondent was] a person habitually intoxicated” and “his habitual intoxication was sufficient to incur the wrath of judges, thereby causing his being obliged to leave the employment of the Townsville Bulletin”. [3]. The article is set out in full at [5]. 

The jury rejected the appellant’s defence that each of those imputations was substantially true and it also rejected a defence of contextual truth. The appellant appealed on the basis that each of the jury’s findings was one that no reasonable jury, properly directed, could make. [4]. Damages were ultimately awarded in the amount of $100,000, with interest assessed at $7,479.88 and the appellant was ordered to pay costs on the indemnity basis. The appellant also appealed against the costs order. [8]. 

The appellant raised five grounds of appeal. The appeal was only allowed in part, with Applegarth J giving the lead judgment. [12]–[39], [58], [61].

Inconsistency

The respondent pleaded 4 imputations. [6]. In the first two grounds of appeal the appellant argued that the jury’s finding that two of the pleaded imputations were conveyed by the article, was inherently inconsistent with its finding that the other two imputations were not.  Justice Applegarth observed that if there is a proper means by which the appellate court may reconcile the verdicts, allowing a conclusion to be drawn that the jury performed its function as required, the verdicts will not be treated as inconsistent in the relevant sense: see MacKenzie v The Queen (1996) 190 CLR 348, 367. [10]. He further noted that courts must be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with other verdicts reached: see R v Kirkman (1987) 44 SASR 591, 593. Ultimately, appellate intervention is only warranted where the inconsistency is so grave as to amount to “an affront to logic and commonsense”. [11].  In reviewing the article, Applegarth J ultimately formed the view that the first two grounds of appeal were not established because it was possible to reconcile the jury’s findings. [14].

Contextual truth

As to the contextual truth defence, the appellant had pleaded three contextual imputations. [7]. The jury found that only one of those contextual imputations was substantially true. [40]–[41]. On appeal the appellant only took issue with respect to the jury’s finding that contextual imputation “(b)” as pleaded was not substantially true.  Justice Applegarth found that having regard to the evidence, the jury’s conclusion was unreasonable and the respondent did not seek to sustain the jury’s finding on this issue. [40].

The appellant contended that each contextual imputation was more serious than the imputations upon which the respondent succeeded and that no further harm was done to the respondent by the publication of the two imputations upon which he succeeded.  In addressing the application of s 26(b) of the Defamation Act 2005, his Honour provided this general guidance:

“The task is to consider the effect of the defamatory publication as a whole on the reputation of the plaintiff and to decide whether [the] imputations (a) and (c) pleaded by the respondent caused any further harm to his reputation once the effect of the substantially accurate contextual imputations have been assessed. … Having regard to the relevant imputations and their relative seriousness, the defence will fail if the respondent’s imputations (a) and (c) would still have some effect on his reputation, notwithstanding the effect of the substantial truth of contextual imputations (a) and (b).” [51].

Here, his Honour said that the jury found in effect that further harm was done to the respondent’s reputation by publishing the defamatory imputations upon which he succeeded. [55].

The appellant was only successful in relation to the jury’s finding about the truth of contextual imputation (b) and it was entitled to have that finding set side. [59].  However, his Honour found that the appellant had failed to establish that the jury’s finding in relation to the “no further harm” issue should be set aside. Accordingly, his Honour allowed the appeal in part but ordered that the appeal be otherwise dismissed.

The costs appeal

As to the costs appeal, the only aspect of the order which the appellant challenged was that his Honour had failed to order, pursuant to r 697(2) of the Uniform Civil Procedure Rules 1999, that the costs ought to have been assessed as if the proceeding had been commenced in the Magistrates Court. [64], [76]. In essence, the appellant argued that the trial judge erred in concluding that s 40(2)(a) of the Defamation Act displaced the continued operation of r 697 of the UCPR. [82].

His Honour held that, having applied s 40, it remained for the trial judge to decide whether the indemnity costs order to which the respondent was entitled, by virtue of s 40, should be assessed as if the proceeding had been started in the Magistrates Court (the starting point under r 697) or on some other basis. [85]. His Honour concluded that the primary judge erred in the exercise of his discretion by failing to disclose the basis upon which he ordered that costs be assessed “otherwise” than as stated in r 697, that is otherwise than in accordance with the Magistrates Court scale. [88].

His Honour re-exercised the discretion to decide the scale of costs and proceeded on the basis that r 697(2) does not identify the factors which might justify an order which is otherwise than the starting point under the rule. [90].  Importantly, his Honour also recognised that the exercise of the right to a trial by jury should not deprive the plaintiff of an assessment on the District Court or Supreme Court scales merely because the monetary award assessed by a judge falls within the monetary jurisdiction of the Magistrates Court. [94]. The position under r 697 is a starting point. Having regard to all the circumstances his Honour held that it was appropriate to exercise the discretion recognised in r 697(2). [97]–[99].  However, the legal issues to be decided were not so complex as to require a trial in the Supreme Court.  Accordingly, his Honour ordered that costs be assessed on an indemnity basis with reference to the District Court scale and the other matters stated in r 703 of the UCPR. [100].  His Honour ordered that there be no order as to costs in relation to the costs appeal.

A De Jersey