Australian Consolidated Press Ltd v EttinghausenBC9302147
(Judgment by: Gleeson CJ)
Between: Australian Consolidated Press Ltd
And: Andrew Ettinghausen
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
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
PRACTICE and PROCEDURE
jury trial for defamation
intervention of trial judge
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
Defamation Act 1974 - s46
Ettingshausen v Australian Consolidated Press Ltd - (1991) 23 NSWLR 443 (SC)
Andrews and Anor v John Fairfax and Sons Ltd applied -  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
Judgment date: 13 October 1993
This is an appeal following a large award of damages against the appellant in a defamation action. The respondent is a prominent rugby league footballer. Some time ago, a cameraman, who had access to a dressing room, took a photograph of the respondent and some other footballers showering. The photograph included the respondent's penis. Subsequently, without the knowledge or approval of the respondent, the photograph was reproduced in a magazine published by the appellant. It appeared in connection with written matter of a suggestive nature, emphasising a display of masculine nudity.
The respondent argued, successfully, that the published matter contained two defamatory imputations. Both imputations went upon the premise that an ordinary reasonable reader would assume that any reputable publisher would have obtained the respondent's permission before publishing such a photograph. The first imputation was that the respondent deliberately permitted a photograph to be taken of him with his genitals shown for the purposes of such photograph being reproduced in a publication with a widespread readership. The second imputation arose out of the fact that the respondent was employed in promotional work amongst young people, and was to the effect that he was unfit to engage in such work in that he permitted a photograph to be taken for the purposes earlier mentioned. The jury found both imputations made out. The plaintiff was awarded damages of $350,000.
Notwithstanding a disingenuous attempt to deny the obvious, the jury would have concluded that the photograph of the respondent that was published in the appellant's magazine unquestionably showed his penis and was intended to do so. The context in which the photograph appeared places an emphasis on male nudity that was calculated to attract and amuse a certain type of reader. The publication occurred without the respondent's knowledge or consent. The evidence as to how this came about was such that it is understandable that a jury would consider that the appellant was prepared, for its own financial advantage, to exploit the respondent's body and reputation, regardless of any hurt or embarrassment that might be caused to him.
That a jury might react to the appellant's conduct with indignation is only to be expected. Such indignation would not have been dissipated bv the experience of spending several days in court listening to the appellant's attempt to defend the indefensible. However, there was a real risk that such indignation would manifest itself in an unreasonably large sward of damages. The law of defamation is an imperfect instrument for dealing with all the aspects of the appellant's conduct of which the respondent might fairly complain. However, even allowing for proper regard to matters of aggravation, the focus of attention in a claim for damages for defamation must be the just deserts of the plaintiff, not what might be thought to be those of the defendant. It is harm to the plaintiff, and compensation for such harm, that is in issue.
From time to time there is speculation as to why juries occasionally, in defamation cases, award damages which some people regard as surprisingly large. There are limits to the usefulness of such speculation, but one reason may be that defendants in defamation cases frequently raise issues which direct attention towards the question of the reasonableness of the defendant's conduct, and away from the question of the harm done to the plaintiff. As some of the judgments in the High Court in Carson v John Fairfax and Sons Ltd (1993) 67 ALJR 634 emphasise, there is an important place, even in an award of compensatory damages for defamation, for regard to the conduct of the defendant. There is a risk, however, that the exercise of awarding damages may become essentially punitive, rather than compensatory.
In Cassell and Co Ltd v Broome  AC 1027 at 1085, Lord Reid said:
"So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled to compensation. It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may be behaving in a high handed, malicious, insulting or abrasive manner in committing the tort, or he or his counsel might at the trial have aggravated the injury by what they there did. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation".
In the present case the jury were entitled to treat the defamation seriously, and they were also entitled to treat the conduct of the appellant, both in the publication of the defamatory matter, and in the conduct of the trial, as justifying going to the top of the bracket. I am afraid, however, that in the amount they awarded, the jury went over the top.
I consider that the amount awarded was out of all proportion to the harm suffered by the plaintiff, and exceeded the largest sum that could fairly be regarded as compensation. Even making full allowance for the matters of aggravation to which the respondent was entitled to point, the damages were excessive to a degree that requires appellate intervention.
I have had the advantage of reading in draft form the judgments of Kirby P and Clarke JA. For the reasons given by Clarke JA, I agree that the appellant's complaints as to the conduct of the trial have not been made out. However, it is entitled to a new trial on the issue of damages. I agree with the orders proposed by Clarke JA.