Australian Consolidated Press Ltd v Ettinghausen


Between: Australian Consolidated Press Ltd
And: Andrew Ettinghausen

Supreme Court of New South Wales - Court of Appeal

Judges: Gleeson CJ
Kirby P
Clarke JA

Subject References:
photograph and text in popular magazine
photograph shows plaintiff naked in shower
text refers to 'gratuitous nudity'
no specific consent secured from plaintiff for publication
plaintiff alleges imputations of deliberate exposure of genitals for publication
gives evidence of embarrassment and humiliation
jury awards verdict of $350,000 for defamation
whether errors in conduct of trial
whether verdict appealably excessive
defamation trial
matter complained of is photograph and text in popular magazine
trial judge (Hunt CJ at CL) permits tender of (a) original dispositive slide; (b) enlarged photograph; (c) photographs taken in series; (d) also permits projection of enlargement of subject photograph
warns jury of limited use to be made of such material to aide perception of matter complained of
jury trial for defamation
intervention of trial judge
limits of
appearance of neutrality in presence of jury
complaints by defendant of excessive interference and reasonable apprehension of bias
whether occasioned mistrial
whether waived by party

Legislative References:
Defamation Act 1974 - s46

Case References:
Ettingshausen v Australian Consolidated Press Ltd - (1991) 23 NSWLR 443 (SC)
Andrews and Anor v John Fairfax and Sons Ltd applied - [1980] 2 NSWLR 225 (CA)
Morgan v John Fairfax and Sons Ltd applied - (1988) 13 NSWLR 208 (CA)
Vakauta v Kelly applied - (1987) 167 CLR 568
Galea v Galea applied - (1990) 19 NSWLR 263 (CA)
Carson v John Fairfax and Sons Ltd discussed and applied - (1993) 113 ALR 577 (HC)
Butera v Director of Public Prosecutions for the State of Victoria considered - (1987) 164 CLR 180

Hearing date: 18-19 August 1993
Judgment date: 13 October 1993


BC9302147 at 1


(1) (by the Court): In the circumstances the jury, although not entitled to award the plaintiff exemplary damages, were entitled to award aggravated damages by reason of the view they may have taken of the conduct of the publisher, including in its defence.

Andrews and Anor v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 (CA) applied;

(2) The verdict was excessive having regard to (a) The statutory exclusion of exemplary damages by the Defamation Act 1974, s46; and (b) A general comparison of general damages awarded in personal injury and other awards.

Carson v John Fairfax and Sons Ltd (1993) 113 ALR 577 (HC);

(3) There should be a new trial of the plaintiff's action (per Gleeson CJ and Clarke JA) limited to damages.

BC9302147 at 2


(1) (Kirby P dissenting): The admission of the evidence caused no miscarriage and did not require a retrial. Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180 considered.


(1) (By the Court): The refusal to discharge the jury after the opening for the plaintiff disclosed no error.

Morgan v John Fairfax and Sons Ltd (1988) 13 NSWLR 208 (CA) applied;

(2) (Kirby P dissenting): The number, expression and tone of the interventions by the trial judge did not occasion a miscarriage of justice in the circumstances.

Vakauta v Kelly (1987) 167 CLR 568 applied;

Galea v Galea (1990) 19 NSWLR 263 (CA) applied.

JURY - trial before - defamation proceedings - reflection of community opinion - comments by members of the Court on the importance of avoidance of influence of jury's response to matter complained of - comments on entitlement of judge to maintain firm control over trial in presence of jury.

BC9302147 at 3

DAMAGES - defamation - popular magazine - photograph of plaintiff, a well known sportsman, naked with text suggesting "gratuitous nudity" - publication without consent - jury verdict of $350,000 - held: Verdict excessive - general comparison with personal injuries verdicts including St Margaret's Hospital for Women (Sydney) v McKibbin and Anor, Court of Appeal, unreported, 14 May 1987 (loss of top of penis $275,000) - principles governing award of compensatory damages - aggravated damages and exclusion of exemplary damages in defamation considered.

Carson v John Fairfax and Sons Ltd (1993) 113 ALR 577 (HC) discussed and applied.

LAW REFORM - invasion of privacy - appropriation of personality for gain - possible need of reform of law referred to by Kirby P. Defamation Act 1974, s46.