Australian Consolidated Press Ltd v Ettinghausen


(Judgment by: Clarke JA)

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

Judgment by:
Clarke JA

The nature, and relevant details, of the publication to which the respondent took exception have been set out in the learned President's reasons for judgment. So also has the course of the trial. I will not repeat what the President has said on those matters but will confine myself to a consideration of the grounds argued.


The plaintiff pleaded three imputations and, in a separate trial, Hunt CJ at CL ruled that the publication was capable of supporting those imputations. They were:

The plaintiff deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction in a publication with a wide spread readership;
The plaintiff is a person whose genitals have been exposed to the readers of the defendant's magazine "HQ", a publication with a widespread readership;
The plaintiff is unfit to be a schools and junior development promotions officer for the New South Wales Rugby League in that he deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction in a publication with a widespread readership.

The second imputation was pleaded as an alternative to the first in the sense that if the jury considered that the first imputation had been conveyed by the material published it was unnecessary for it to consider the second imputation.

The third imputation was an example of a "true" innuendo. It was not said to have arisen solely from the material published but the combination of that material and a number of extrinsic facts proved in evidence.

The test to be applied in determining whether the material published was capable of conveying the imputations relied upon is well established. It is, whether a jury could decide that the ordinary reasonable reader would understand the material complained of to convey those imputations (Capital and Counties Bank Ltd v Henty and Sons (1882) 7 App Cas 741 at 745; Lewis v Daily Telegraph [1964] AC 234 at 259 to 260: Farquhar v Bottom [1982] NSWLR 280 at 385 to 386).

It was submitted by the appellant that the photograph and article had a number of features which would lead the reader (the ordinary reasonable reader) to the view that the imputations relied upon were not being conveyed. The matters to which the attention of the court were drawn were as follows:

In the photograph the respondent does not appear to be aware of the photographer. He is looking to one side;
None of the other people in the photograph appear to be conscious of the photographer;
The photograph itself is very dark and shaded in the area around and below the respondent's hips such that the suggestion that his genitals were "exposed" is far fetched;
There is nothing in the article to support the proposition that the respondent was conscious of the nature of the publication in which photographs taken on the tour might be published.

In addition specific arguments were put in relation to the second imputation but as the jury did not furnish an answer to that imputation and as I am of opinion that his Honour's rulings on the questions now under consideration were correct it is unnecessary to deal with them.

In considering whether the published material was capable of supporting the imputation it is important to appreciate the way in which the respondent put his case. In his summing up his Honour explained that in dear terms saying:

"The plaintiff says that, using your knowledge of ordinary members of the community and using your common sense, you should be satisfied that there is within the community a general attitude that no apparently responsible and reputable magazine such as the defendant's magazine 'HQ' would have acted so irresponsibly and in such bad taste as to have published a photograph of someone such as a footballer whom they describe as one of the stars of the Australian Rugby League team, showing his penis, unless it first had that person's full consent to do so. The plaintiff says that such a social or moral attitude is one which is common to the Australian community generally."

What the plaintiff was saying was that, bearing in mind the community attitude to which I have referred, the reasonable reader would immediately have concluded that the respondent had consented to the publication of the photograph of his penis in the magazine. Although it may be questionable whether there is such a community attitude that was a matter for the jury and, as it seems to me, if the jury accepted that there was such an attitude then a conclusion that the reasonable reader would have regarded the magazine as communicating the message that the respondent had consented to his photograph being published in the magazine would readily be open to it. The particular matters upon which the appellant relied in support of its argument on this ground of appeal are to my mind nothing more than persuasive arguments of fact. Whether the respondent had been photographed looking at the camera or looking away from it the conclusion could have been drawn by the jury that the reasonable reader would have understood the photograph and article in the way suggested by the respondent, although it may well be that that conclusion could have more easily reached were the subject looking at the camera. I would conclude, therefore, that the first ground of appeal should fail in respect of the first imputation and, insofar as no separate argument was raised in relation to the third imputation, in respect of that one also.

Refusal to Discharge the Jury

In his opening address Mr Hughes QC, senior counsel for the respondent, said:

"As representatives of the community you would no doubt view with disgust or at least a strong disapproval, a publisher who published such a photograph of anyone unless he consented to it..."

Later Mr Hughes developed the theme somewhat more strongly saying:

"People in the community, I am sure you will agree, view with a mixture of contempt, perhaps associated with pity, those unfortunate males who wilfully expose their genitals to public view and quite rightly so - contempt and pity."

Any doubt that Mr Hughes was there referring to a "flasher" was removed by his express reference later in his address to the flasher to which he had previously referred. I should add that at another stage Mr Hughes referred to the words "How big is Big Mal?" which appeared in the article, saying "Just ponder on those words. Blind Freddy could see what they are getting at."

At the close of the opening Mr Callinan QC, senior counsel for the appellant, applied for a discharge of the jury. He submitted that the inflammatory nature of Mr Hughes' opening had created an atmosphere in which a fair trial would be impossible despite any attempts by his Honour to cure the problem. His Honour refused the application but in doing so his Honour drew attention to statements made by Mr Hughes to which exception had been taken and cautioned the jury against being diverted from its consideration of the issues properly before it by those statements. Having done that he specifically asked Mr Callinan whether there was anything further that he wanted added and received a negative answer.

The appellant has submitted, quite correctly, that it had a right to have its case tried fairly, free from the intrusion of any extraneous matters calculated to influence the jury improperly in arriving at its determination and free from bias and prejudice. It then contended that the particular statements made by Mr Hughes in his opening were highly prejudicial, were likely to divert the jury from its attention to the issues and he submitted that the tendency of those statements to cause a mistrial was incapable of being cured by judicial directions.

In Morgan v John Fairfax and Sons Ltd (1988) 13 NSWLR 208 I referred (at 238 to 239) to a passage from the judgment of Evatt CJ and Wallace J in Wellington v Lake George Mines Pty Ltd [1962] SR 326 at 327 in which their Honour's said:

"We wish to say at once that in our opinion the discharge of a jury is, by reason of the attendant consequences of frustration and delay in the administration of justice, such a serious step that it should only be taken where real injustice cannot otherwise be avoided."

I thought then, and still think, that the court should be very slow to discharge a jury upon the ground of statements made by counsel whether in opening or closing addresses and that such action should only be taken where, exceptionally, the trial judge could not cure any damage which might be caused by those statements. In the same case I referred to the caution which should be exercised by an appellate court when asked to exercise the power to reverse a trial judge's order discharging, or refusing to discharge, a jury. I said (at 237):

"There is no doubt that the trial judge is in a position of unique advantage to determine whether an event has occurred which has created a situation which cannot be rectified by a proper direction and in which a fair trial cannot be had. For this reason the authorities establish that appellate courts should exercise great caution in considering whether a trial judge erred in discharging, or declining to discharge, a jury, give weight to a trial judge's opinion and interfere only in rare cases in which error has been clearly demonstrated. Furthermore, because of the position of advantage enjoyed by the trial judge the appellate court will interfere even if error is exposed only if the error is of such a nature that to allow the decision to stand would be inimical to the interests of justice."

In my opinion the manner in which Hunt CJ at CL dealt with the application was not only appropriate but the only proper way to deal with the application. It may be, as his Honour clearly thought, that Mr Hughes had taken some liberties in his opening address and made some statements which perhaps he ought not to have made but, like his Honour, I believe that any competent trial judge could have rectified the situation.

In particular I have no doubt that the statements made by his Honour immediately following the application for discharge put the trial back on its proper course. I should not depart from this ground of appeal, however, without citing another passage from the judgment of their Honours in Wellington. I do so for two reasons First, to express my concurrence in the statement and secondly as a reminder that a common law jury trial is not, to quote Mr Hughes' words, "a place for namby pamby advocacy". Their Honours said (at 330):

"It is true that in the present case counsel is open to the charge that he used overstrong language and this, as we have already indicated, is regrettable but in principle we think he was in order as regards the general nature of his comments. There is a good deal of thrust and parry in most jury actions and hard knocks are taken and delivered and it should only be in extreme cases that words of a colourful or even intemperate nature could justify such heroic surgery as is involved in ordering a third trial. If counsel uses language of this nature a trial judge should, generally speaking, be able to neutralise the effect thereof with justice to the opposing party without discharging the jury..."

I can see no substance at all to this ground of appeal.

Defence of Consent

The appellant pleaded that to the extent that the matter complained of was found to be defamatory of the respondent it was published with his leave and license. At the conclusion of the evidence his Honour withdrew this issue from the jury upon the basis that there was no evidence to support the defence. The appellant complains that his Honour was in error in taking this course. Alternatively, it submits that his Honour applied a test which was too narrow. According to the appellant in order to succeed on this defence it was necessary for it only to establish that the respondent consented to the publication of the photograph in the magazine and not, as his Honour held, to establish consent to the publication of the photograph in a context which conveyed the imputation pleaded. As a matter of pleading, and of principle, there is much to be said for his Honour's view. The appellant pleaded, as I have pointed out, that to the extent that the matter complained of may be found to be defamatory of the plaintiff it was published with leave and license. That, as it seems to me, is a dear allegation that the defamatory material (if it be found to be defamatory) was published with leave and license. Further, as a matter of principle, I find it difficult to see why there can be a good defence of consent unless it answers the plaintiff's cause of action, ie. the imputation relied upon

It is, however, in my opinion unnecessary to pursue this rather fine point of law for the material relied upon to support the defence was insufficient to provide an evidentiary foundation for a jury conclusion that the respondent had consented to the publication of the photograph in the magazine. In other words, even if one accepted the appellant s basic submission the ground of appeal would fail.

The appellant submitted there was evidence that the respondent knew, or must have known, he was being photographed in the shower. That evidence was the photograph itself, the matter complained of (that is, the article published) and the fact that the photograph comprised one of a sequence of some twelve photographs taken by the photographer standing about four to six feet away from the respondent. When one added to those matters, so the argument ran, the additional fact that the respondent knew that the photographer was the official photographer on the Rugby League Tour and that a book was eventually to be published, it was no great leap to conclude he had consented to the taking of the photograph and its publication in the book. It was then argued that as he must have known that the book would be promoted in magazines having a wide readership, the conclusion should be drawn that he consented to the publication of the photograph in those magazines. Finally, the appellant relied upon the apparent failure of the respondent to obstruct the photographer or object to the taking of any photographs.

This evidence does not even get to first base. Let me assume, with some hesitation, that the evidence supports the conclusion that the respondent consented to a photograph being taken of him while he was in the shower and that he knew that some photographs taken on the tour would appear in magazines. Those assumptions do not go nearly far enough to present a factual case in support of the defence. There is simply nothing to show that he consented to a photograph being taken which included his penis and, just as importantly, nothing to show that even if he suspected that such a photograph had been taken that he agreed to its publication in either the book or a magazine. In evidence the respondent said that when he first saw the photograph he could not believe it and that could hardly be described as a surprising reaction.

That evidence was hardly consistent with the defence relied upon. No doubt the jury were entitled to reject that evidence but that rejection did not provide any additional matter which could support the defence of consent which was left totally unsupported by evidence. In my opinion the defence was hopeless and it is questionable whether it should have been pleaded.

Amendment of Imputation after the Close of the Evidence

When the respondent filed his statement of claim he relied on four separate imputations. In an earlier separate trial the appellant submitted that the published material did not support any of those imputations. During the course of the hearing on the separate trial, and after discussion with his Honour, the respondent recast his three asia so that they were substantially in the form to which I have earlier referred and his Honour ruled that those three should be left to the jury. Following this ruling the appellant published, in October or November 1991, an apology in which it withdrew any suggestion which might be thought by a reader to have arisen from the article and photograph "that he deliberately permitted a photograph to be taken of him with his genitals exposed for the purposes of reproduction in a publication with a wide readership". The appellant also said that there was no basis for that suggestion.

At the end of the evidence in the trial before the jury there was discussion as to the meaning which had been placed upon the word "exposed" and in order to make it clear that only one meaning was being asserted his Honour permitted the respondent to amend the imputations to include the words ("that is, shown") after the word "exposed". His Honour expressly permitted that course to be taken to remove any suggestion of ambiguity in the imputation. Senior counsel for the appellant submitted that this course should never have been taken and that it prejudiced the appellant. As I understood the argument it was that the appellant had been defending a case in which the respondent was asserting that the article conveyed the message that he had deliberately exposed his genitals which was a markedly different case from one in which it was simply said that he had permitted a photograph to be taken of him which showed his genitals.

I do not find any support for this submission in the transcript of argument which is in the appeal book. During the discussion the following exchange took place:

"His Honour: I have never understood this case to mean more than 'show'.

Callinan: I must say, your Honour, that if it is put explicitly in this case, that goes a long way in allaying my concern.

Hughes: This case has been fought on the basis that 'exposed' means 'shown' or 'visible'.

His Honour: That is how I have understood the case to have been run. If I put 'exposed', that is, 'shown'.

Callinan: With that understanding having been reached, I am a little concerned that your Honour's observations and in my friend's opening in relation to a flasher

His Honour: I propose to tell them to disregard that.

Hughes: But, in a sense there is a sexual component, because the plaintiff says that in a sense that is a pornographic photograph.

His Honour: You have no objection to amending that?

Callinan: No, not now. My junior points out, and I agree with her that there is, nonetheless, a question about amending.

His Honour: Well, what would you have done? I did not understand any of your questions meaning other than that the man had consented to his penis being shown.

Callinan: The questions having been put on the basis, to the plaintiff, that he was contending that the imputation was that he was exposing himself and I would be entitled to say to the jury that that was putting it too high.

His Honour: But, I stopped him from putting the question of a flasher and I will remind the jury that they are not to take that into account. I said he was not doing it for sexual gratification."

Then Mr Callinan sought further time to reconsider his position. After lunch his Honour raised the matter of an amendment again and the following exchange took place:

"Callinan: Yes, I oppose it on the basis that the word 'exposed' is a word that throughout the trial has been put to witnesses...

His Honour: But whereabouts is it put that it was meant other than as 'shown'?

Callinan: We do not know how the witnesses took it. My submission on the point is this; that the difficulty is that we do not know how the witnesses took it. The witnesses themselves have a different understanding of it.

His Honour: But the consequences of what you are putting is that we should leave it to the jury as to the meaning in the imputation?

Callinan: No.

His Honour: You want it to go to the jury as to an uncertainty as to what 'exposed' means in the imputation? You have disclosed that you are wanting to use it differently from the word 'shown'? As far as I have been aware throughout the trial, and I have tried to keep my finger on the pulse, that was the way it was intended and understood by everybody except, apparently, by you?

Callinan: I think at one stage during debate between your Honour and myself I said that 'exposed' may carry some connotation over the word 'show'.

His Honour: If you would have said that I would have stopped the proceedings straight away and talked about amending the imputation. There is one thing that is dear and that is since I have been running the defamation list for the last twelve years, it is the precision as to the meaning in imputations. If you would have said that to me, I would have drawn attention to it immediately."

And so the discussion continued. Eventually his Honour asked in what manner the appellant had been prejudiced by the amendment and counsel referred to the statement about a flasher in the opening which his Honour had corrected.

The picture that this transcript paints is that the trial judge thought that the word 'exposed' had been used in the sense of 'shown', senior counsel for the respondent said that that was how he had used the word and it was only after prompting from junior counsel that Mr Callinan got, as it were, a second wind and raised what to my mind was a fairly fatuous objection to the amendment. Although he denied that the interpretation of the imputation was a matter for the jury he seemed extraordinarily ambivalent about the course that his Honour should take. I am unable to perceive any that this amendment caused prejudice to the appellant and I would reject this ground of appeal.

Admissibility of Evidence

His Honour permitted the respondent to tender Exhibit G which was a two foot by three foot blow up of the one inch by one inch transparency (Exhibit F) from which the matter complained of had been developed. It was submitted that there was no issue to which this enlargement could go in the case.

At the time his Honour decided to admit the enlargement he made a specific statement to the jury which was as follows:

"The purpose of admitting it is to assist you in dealing with the transparency which was admitted beforehand so that you are able to see what is in the transparency with ease rather than having to have some artificial means of being able to see what was in the transparency. I should warn you that you are not entitled to look at that photograph in order to determine how the ordinary reasonable reader would have seen the photograph which is in Exhibit A. (That is the magazine) Both the photograph in Exhibit A (the photograph at 94 and 95 of the magazine) and this photograph were generated from the same transparency. That apparently is common ground. But when you are determining what the reader would have seen, whether they would have interpreted the shape, if I may put it this way, between the plaintiff's legs as his penis, you are not entitled to have regard to this photograph which is now in evidence."

Although the precise relevance of Exhibit G does not appear from his Honour s subsequent judgment it is fairly plain that the enlargement was admitted on the issue of qualified privilege and in particular on the issue raised by s22(1)(C) of the Defamation Act 1974. I say this because the enlargement was conceded by the defendant to have been generated from the transparency which was admitted as Exhibit F, without objection by the defendant. The transparency could, as I see it, only have been admissible on the issue of qualified privilege and the enlargement was admitted only for the purpose his Honour had earlier expressed.

That this view is correct is apparent from the summing up during which his Honour said, in the process of again warning the jury, that the ordinary reasonable reader would not have had access to the enlargement and that:

"... they (Ex G and other transparencies) related to one of the defences as to whether the defendant acted reasonably in publishing this photograph in the first place. That is an issue which I have determined against the defendant. So none of these enlargements is relevant to the issue which you have to determine in this case. The ordinary reasonable reader had only the magazine itself. It is to that magazine which you must have regard in relation to this particular issue and to that magazine alone."

Although it is possible that factual questions which require determination by the jury may arise in a trial in connection with the defence of qualified privilege, in fact that did not occur and the issue of reasonableness was one for the trial judge (see Wright v Australian Broadcasting Commission and Ors [1977] 1 NSWLR 697). In those circumstances it may have been preferable to have admitted the enlargement in evidence but not to have shown it to the jury unless an issue arose under that defence which the jury was required to resolve. If this had been done then it would only have been necessary to show the enlargement to the jury if such an issue arose. I say this because, in a sense, it was unfortunate that an enlarged photograph, which clearly shows the respondent's penis, was placed before the jury when it was not relevant to any issue which was ultimately to be determined by it. Nonetheless, the enlargement was admitted on the issue of qualified privilege and being an exhibit in the case was shown to the jury. No application was made by the appellant to follow the course I have suggested. Nor did the appellant object to the enlargement being taken by the jury out to the jury room at the end of the trial. This is somewhat surprising but in the absence of objection I do not think it open to the appellant now to complain about that fact that the jury were allowed to have the enlargement in the jury room.

Even if, however, there is some substance in the objection I am quite satisfied that no miscarriage of justice has occurred. A reading of that part of the summing up in which the passage I have cited appears makes it quite plain that the jury was instructed in clear terms that it could not have regard to the enlargement for the purpose of determining what the picture in the magazine conveyed. They had been told the same thing when the exhibit was admitted and I fail to see how the jury could have been diverted from its task by the admission of the document.

In any event, as the learned President has pointed out, the respondent's penis was clearly visible in the photograph in the magazine and the jury must have been puzzled at the appellant's attempts to suggest that it was not. In my opinion neither the admission of the enlargement nor the other photographic exhibits to which objection was taken (but in respect of which no argument was advanced) caused a miscarriage of justice nor requires this court to order a new trial of the proceedings.

Conduct of Trial Judge

The appellant complained that his Honour had interfered in the trial on a number of occasions and done so in such a way as seriously to prejudice the appellant. The consequence was that the trial miscarried. Alternatively, it submitted, that the interruptions conveyed the impression both to the public and to the appellant that his Honour was biased (see Vakauta v Kelly (1989) 167 CLR 568 at 571 and 572). In order to make good this submission counsel directed the attention of the court to a large number of events which occurred during the trial. I do not propose to refer to each of those events some of which could be dismissed as trivial or inconsequential. I will confine my attention to the more significant ones relied upon by the appellant and the general thrust of the submission.

The first complaint related to an observation made by his Honour after counsel for the respondent had objected to a question fairly early in the cross examination of the respondent. That cross examination commenced with a number of questions relating to the article complained about and then counsel for the appellant embarked on a course of questioning of the respondent's work as a male model. During this examination the respondent was questioned about a Jeans West advertisement and then asked whether he was paid a substantial sum of money for doing the advertisement. Mr Hughes objected on the grounds of relevance and, although the transcript does not disclose the precise terms of the comment, his Honour said something to the effect that the cross examination had very little connection with reality. Following this observation counsel for the appellant indicated he wished to raise a point and his Honour said that he could do that at the next adjournment. Later in the absence of the jury Mr Callinan objected to his Honour's intrusion and submitted that it was unfair and damaging and that it had interrupted the course of his cross examination. His Honour responded that "an objection had been taken and a judge is permitted to expose a cross examination as having very little connection with reality. It seemed an appropriate time to do it...".

I have some difficulty in understanding counsel's objection that his Honour's observation interrupted the course of the cross examination. It is perfectly clear from the transcript that an objection had been taken to the question asked by Mr Callinan and, as his Honour observed, once an objection on the grounds of relevance had been taken his Honour was entitled to say that the question had no relevance to any issue in the case and give his reasons for that conclusion. One possible reason was, of course, that the line of questioning was irrelevant and divorced from reality. I can see no evidence to support the conclusion that his Honour was interrupting counsel. Upon my reading of the transcript his Honour was ruling upon an objection to evidence and if, as his Honour clearly thought, the objection should be sustained because the examiner had wandered from the path of relevance his Honour was entitled to say so, even in terms such as those used. Frankly the relevance of the question, and indeed the line of questioning then being undertaken, escapes me and I would reject the criticism of comments made by his Honour at this stage of the trial.

Not only, however, did senior counsel for the appellant object to the comments but he then sought a discharge of the jury on the ground that they had been made. This was, in my opinion, a hopeless application.

A judge who is charged with a duty of trying, with a jury, a defamation case has a difficult task. One has only to read the law reports to understand that. First, and foremost the judge must ensure that each party has a fair trial. That sounds a simple matter but given the number of difficult legal questions that arise in the course of what is usually a fiercely contested struggle between the disputants much patience, persistence and resolution are required. Not only must a judge ensure the fairness of the trial but he must also administer it in such a way that it proceeds with due expedition. There is today much talk of the delay in, and cost of, litigation. Judges can no longer, if they ever could, sit back and allow trials simply to take their course and counsel to engage in extremely lengthy and seemingly irrelevant cross examinations. While a judge must extend great latitude to counsel and accord recognition to the fact that counsel may have material in his or her possession which gives a special importance to questions of apparent irrelevance he or she must nonetheless be astute to ensure that the trial maintains a steady course and is not, for instance, delayed by the endeavours of counsel appearing for a client intent on using obstruction and delay as a useful weapon against the adversary.

Although I do not suggest, and should not be taken to be suggesting, that the appellant set out on a course of obstruction in this trial it must be acknowledged that the trial took an extraordinarily long time for one with such limited issues. Furthermore during its course the appellant maintained one defence for which there was no supporting evidence and one, qualified privilege, which had no realistic prospect of success. In these circumstances and bearing in mind the insubstantial applications for discharge of the jury counsel could hardly have expected his Honour to adopt a passive role. Of course in this context it should not be overlooked that a fair trial means one which is fair to both parties.

The next objection with which I propose to deal related to a comment made by his Honour during Mr Callinan's cross examination of Mr Wayne Pearce, a leading Rugby League player, who gave evidence in support of the respondent. Having asked Mr Pearce whether he held the respondent in high regard and having received an affirmative answer Mr Callinan embarked on a line of questioning designed, apparently, to show that the photograph complained of was not repulsive. I am not sure what that issue had to do with the case and it seems his Honour was also in some doubt. The following exchange took place:

"Q. You never thought it repulsive to see a number of players having a shower?

His Honour: Really, Mr Callinan.

Callinan: May I approach it in my own way, with the greatest of respect, and not your Honour's way?

His Honour: Off you go.

Callinan: Q. Just listen to my question please. You would not have been repulsed on other occasions by the sight of other players, your team mates, under the shower?

A. I would not be, no.

Q. And that is all that photograph shows, is it not?

A. That photograph there, yes, but I certainly would be repulsed if it was me in that situation, someone had taken my photograph and printed it without my consent.

Q. But what is wrong with it?

A. Well I wouldn't want my pecker in the paper."

And then there was more cross examination as to whether a picture of his "pecker" in a publication available to the public could be described as 'repulsive and the witness said that he thought it would be damaging.

The objection that is now taken seems to me to misconceive the role of a trial judge. He is not bound to sit quietly and listen to a cross examiner go off on a frolic of his own on subjects of little apparent relevance to the trial. On the contrary, his duty to ensure that the trial is both fair and efficiently conducted may require him to intervene if he thinks that time is being wasted or the jury is being diverted from the issues. The relevance of the question which led his Honour to make the observation complained of escapes me completely and I am driven to say that his Honour's comment was not only justified but moderate in the circumstances.

The next more substantial incident about which complaint is made occurred during the cross examination of Miss Martin, the writer of the article. At the time Mr Hughes was suggesting to the witness that the positions of the players had been reversed in the photograph so that the picture of the respondent would be in the most prominent position. The witness disagreed and the cross examination then proceeded:

"Q. You disagree?

A. I disagree, yes.

Q. That last answer is just incorrect is it not?

A. No.

Q. It is an answer -

Callinan: May she explain please?

His Honour: She said 'No'. You will have the opportunity later on to clarify. Really, Mr Callinan. Your witness, if I may put it this way, is intent to answer more than the question and that is why we have been getting into trouble all along. She is obliged to answer the question and not to comment about the effects of it. She is there as a witness, not as an advocate.

Callinan: With great respect, your Honour, I object to that observation because your Honour should not be expressing conclusions about witnesses.

His Honour: I am expressing a conclusion as to the manner in which she is answering the questions and also, added to that, the expression of my view. That is why we are getting into trouble. If she would simply answer 'yes' or 'no' - please realise you will have the opportunity later on to explain or modify those matters and we will get along a lot more quickly. I am entitled, as the trial judge, to do so. I have said it; I note your objection; I will repeat it, if necessary.

Callinan: As your Honour please."

The incident was, in my opinion, wholly unremarkable. Trial judges are not only entitled to but are bound to instruct a witness to adhere to the question if that witness is not doing so but is, for instance, prevaricating or giving non responsive answers. Although his Honour's reminder that Miss Martin was there as a witness and not as an advocate could be seen to be critical of the witness this was quite understandable in the circumstances. Although I do not propose to set out the passage in full her evidence recorded at 192 and 193 of the transcript (Appeal Book 216 to 217) which culminated in her saying that the shadow between the respondent's legs could "possibly be the bathroom wall" evidenced a deal of prevarication and undoubtedly tested the patience of the jury and the trial judge. In the circumstances it is not surprising to find that his Honour suggested to her, through the appellant's counsel, that she adhere to the question and refrain from adopting the mantle of an advocate.

There were a number of other similar complaints made about his Honour's conduct. I do not propose to deal with each of them for the simple reason that neither taken individually nor collectively do they establish grounds, in my opinion, which would entitle the appellant to a new trial. Specifically, I find no support in these grounds for the contention that his Honour was, or appeared to be, biased, nor that he intervened unnecessarily in the course of the trial. I do propose, however, to deal specifically with one complaint relating to directions given by his Honour in the course of his summing-up. The statement about which complaint was made was as follows:

"The defendant does not appear to dispute that the particular attitude upon which the plaintiff relies in this case is one which is held generally through the community. The particular community attitude upon which the plaintiff relies strongly in this case is that no apparently responsible and reputable magazine, such as the defendant's magazine 'HQ' would have acted so irresponsibly and in such bad taste as to have published a photograph of someone such as a footballer whom they describe as one of the stars of the Australian Rugby League team, showing his penis, unless it first had that person's full consent to do so. I will be repeating that later. I will come back to it. At this stage I am seeking only to direct you that the defendant's publication was not evaluated or interpreted by the ordinary reasonable reader in a vacuum. It was evaluated by the ordinary reasonable reader in the light of those standards or attitudes which are common to the community generally."

Later in the summing up his Honour repeated the statement that the existence of that community attitude was apparently not disputed. His Honour did not refer, in the same context, to the submission made by senior counsel for the appellant in his address to the jury to the effect that the matter complained of should not be judged against any nineteenth century standards but in accordance with "notions which accord with the views of ordinary, decent members of the community in 1991 to 1993 because that is the period with which we are concerned".

It was submitted that the effect of his Honour's charge to the jury, his refusal to juxtapose that charge with the submission made by senior counsel for the appellant and his refusal to redirect the jury in clear terms that the question of community attitudes was one for the jury caused a substantial wrong or miscarriage in that it exposed the appellant to the prospect that the jury would not consider the question of community standards for itself but, rather, would accept the statement in terms of his Honour's summing up and without considering the point made by the appellant's counsel.

The first thing that should be said about his Honour's direction is that it appears to have been perfectly accurate. Furthermore, his Honour had taken the trouble prior to commencing his summing up to confirm with counsel for the appellant that he had not in fact dealt with the community standard upon which the respondent relied, and to which reference had been made in the opening address of senior counsel for the respondent. It is, I think, helpful to refer to the text of the exchange between his Honour and Mr Callinan immediately before the luncheon adjournment and before Mr Hughes had concluded his address:

"His Honour: I think the matter that perhaps I should ask you Mr Callinan is you never, as I understood it, ever dealt with the community standard or community expectation that a responsible magazine or a newspaper would publish a photograph of a leading sportsman with his penis exposed unless they had his consent. That was a matter that you never dealt with. That was part of the opening. Am I right?

Callinan: I never said a word about it.

His Honour: That is something I thought I would draw to their attention and I wanted to be sure.

Callinan: I talked in general terms about the community standard but not that particular one."

When, following the conclusion of the summing up, junior counsel for the appellant objected to the direction about which complaint is now made his Honour reminded her that Mr Callinan had made that statement. Counsel then put her basic submission to the effect that the question of the community standard is a question for the jury and for the jury alone. His Honour's response was that he had told the jury that. Indeed he had. The complaint, however, then made by junior counsel in seeking a redirection, and which was made again in this Court, is that his Honour did not specifically refer to contemporary standards and impress upon the jury the fact that the case should not be decided according to outmoded notions.

This complaint was, in my opinion, without any substance at all. The whole thrust of the directions in the summing-up on this aspect related to those general social or moral standards and attitudes which the community has. His Honour did not, expressly or impliedly, suggest to the jury that it should judge the case in the light of Victorian or nineteenth century attitudes. He spoke at all times of attitudes which are now common to the community generally.

The other, and main, complaint which has been pressed in the appeal is that his Honour effectively took the issue away from the jury. I reject that complaint. What his Honour did was to state, quite accurately, that from the start of the case the respondent had been asserting that the publication should be judged against the community attitude to which I have referred and that the appellant had at no stage taken issue with that contention. If it had been the appellant's contention that there was no such community attitude or that it had been inaccurately expressed then its counsel could have said so. When he failed even to advert to what had been an important part of the respondent's case the inference was dearly available to the jury that the appellant accepted what Mr Hughes had said on this issue. Whether the jury did accept that or not was a matter for it and I do not read anything his Honour said as doing any more than pointing out that Mr Callinan had not adverted to this issue and that there therefore appeared to be no dispute about it. What must be borne in mind is that when his Honour made his statement he did so n the context of a reference to what had occurred during the course of the trial.

I reject the ground of appeal asserting misconduct by his Honour. In my opinion there is no substance in it. The trial, although it concerned relatively simple issues of substance, became a lengthy one, the administration of which was complicated and difficult. And it was complicated because the appellant not only persisted in two hopeless defences but in its questioning of the respondent and his witnesses tested the limits of relevance on many occasions.

One impression that may well have been created in the mind of a trial judge during the course of this trial was that the defendant publisher was making the case as difficult as it could for the plaintiff (which, no doubt, is permissible) and in so doing was engaging in obstructionist and delaying tactics (which is not, in my view, permissible). While it is desirable that the trial judge limits his interruptions during the course of the trial, even in these circumstances, he, nonetheless, needs to be astute to ensure that the trial is not unduly protracted or delayed. Otherwise the trial may not be fair to one of the parties. Where in some cases it may be simple for a trial judge to permit the trial to run without any, or with only a very few, interruptions, in others the conduct of one or other of the parties may not only entitle but require the judge to interfere to a much greater extent in order to ensure a fair trial for both parties. In my opinion in this trial his Honour was placed in a very difficult situation by the way in which the appellant sought to conduct its case and I regard the criticism that he interfered too much and demonstrated partiality in favour of the respondent as without substance.

Excessiveness of Damages

The jury awarded the plaintiff $350,000. That was a massive sum to award by way of compensatory damages for what, although extremely hurtful to the respondent, could not be described as one of the more serious types of libels. The appellant challenged the award in two ways. First, it submitted that his Honour was in error in ruling that the jury were entitled to award aggravated damages upon the basis that the appellant had unjustifiably raised and maintained a defence of consent. Secondly, it submitted that even if that be wrong the award was beyond permissible bounds.

His Honour held that the jury could award aggravated damages on two heads. First, an award would be justified if the jury concluded that the imputation was as the respondent claimed, false. Secondly, his Honour held that it was open to the jury to conclude that the appellant's conduct in relation to the defence of consent w as unjustifiable The appellant does not challenge the first ground on which the jury were entitled to award aggravated damages but has submitted that it was not open to the jury to conclude that the appellant's conduct in relation to the defence of consent was unjustifiable. In this respect the appellant contended that the evidence showed nothing more than that the appellant had vigorously pursued a defence in respect of which there was sufficient material to justify its being raised and relied on Triggell v Pheeney (1951) 82 CLR 497 , at 516.

Pursuant to s46 of the Defamation Act 1974 damages are awarded for the harm caused by the publication. Exemplary damages may not be awarded (s46(3)(a)) and it is only malice which affects the harm suffered by the plaintiff which is relevant. Damages are intended to act as an vindication of the plaintiff to the public and as a solatium for the harm which has been caused him. The much cited statement by Windeyer J in Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 118 , at 150, makes that plain. His Honour said:

"It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money. The variety of the matters which, it has been held, 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."

More recently it has been said that the three purposes to be served by an award of damages for defamation are consolation for the personal distress and hurt, reparation for the harm to reputation and vindication of that reputation (Carson v John Fairfax and Sons Ltd (1993) 67 ALJR 634 at 643).

It is clear that aggravated damages may be awarded in particular circumstances and, insofar as they are regarded as being compensatory, rather than punitive, s46(3)(a) is not relevant to a claim for aggravated damages.

In my opinion there is, or may be, an overlapping of ordinary and aggravated compensatory damages which requires some clarification.

In the Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254 the majority of the High Court said, at 263:

"In point of law, the learned trial Judge would have been right if he had instructed the jury that in assessing damages they were entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff."

This statement was an application by the High Court of what Lord Esher MR said in Praed v Graham (1889) 24 QBD 53 . His Lordship said, at 55:

"... the jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his (the defendant's) conduct has been before action, after action and in court during the trial."

There is no suggestion in these statements that those matters could only be taken into account in determining whether aggravated damages should be awarded. Indeed the reference to the extent of publication and the potential of the named factors to increase the capacity of the libel to cause injury to the plaintiff suggests that the majority in McGregor were discussing ordinary compensatory and not aggravated damages.

However, in Triggell the majority having cited the relevant passage from McGregor, at 513, went on to say, at 514:

"It was no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper A bona fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times Ltd v McGregor must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable."

This decision has been interpreted by courts in New South Wales as permitting conduct by the defendant subsequent to publication to be taken into consideration on the issue of aggravated damages only if that conduct was found by the jury to lack bona fides or otherwise to be improper or unjustifiable. For instance, in Andrews v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 Hutley JA said, at 243:

"The failure of defendants to retract or apologise has been traditionally regarded as a matter of aggravation, as it is part of the 'the whole conduct of the defendant from the time the libel was published down to the time they (the jury) give their verdict.': Praed v Graham. Of course, it was only a failure to apologise which the jury was entitled to regard as unjustified which would support the award of aggravated damages."

(This statement was applied in Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 by Samuels JA, at 660.)

Andrews and Fitzpatrick stand as examples of the proposition expressed in Triggell that the defendant's conduct subsequent to the publication of the libel cannot be used as a basis for an award of aggravated damages unless it was unjustifiable. I must confess, however, that I find the distinction between ordinary and aggravated compensatory damages somewhat difficult to grasp in, at least, one respect.

In the present case the trial judge directed the jury that the damages to be awarded "may also include compensation for any injury to his feelings which has been caused by the defendant's publication and for the anxiety, stress and the uncertainty involved in this litigation...".

This direction has not been challenged and is based on part of the speech of Lord Hailsham in Cassell and Co Ltd v Broome and Anor [1972] AC 1050 at 1071:

"Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matters complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being 'at large'."

This passage was said by Hutley JA in Andrews to represent the law of New South Wales and my understanding is that judges have traditionally given a direction substantially in the terms I have set out since, at least, 1980.

I have already pointed out that injury to the plaintiff's feelings caused by the publication is relevant to an assessment of ordinary compensatory damages. number of the authorities, going as far back as 1844, which support this proposition are collected in McGregor on Damages (15th Ed) para1657 and para1658 and I do not think that it can now be doubted. However, I am not so confident about that part of the direction which concerned the anxiety and uncertainty involved in the litigation. There is no doubt that the plaintiff is entitled to compensation for the damage caused by, or flowing from, the libel. This is a basic rule of the law of torts and there is no reason to think that a special rule of causation applies in defamation.

But that is not to say that the damages should include a component for the anxiety caused by the litigation. That anxiety applies in every tort case yet it does not provide a basis for an increase in the damages in, for instance, an action in negligence or nuisance. The reason being, I apprehend, that the anxiety is caused by the litigation and not the tort. I appreciate that the damage resulting from a defamatory publication may continue for a significant length of time and that the plaintiff may suffer continuing apprehension and discomfort for that reason. But that harm and apprehension flows from the libel.

If it is correct to award damages for the hurt to the plaintiff's feelings which is caused by the libel and if it is correct to take account of the anxiety in the litigation then it is difficult to understand why the defendant's conduct following the publication, and including its conduct during the trial, could not increase the hurt and anxiety suffered by the plaintiff, whether or not the defendant's conduct is unjustifiable. For instance, if, as is clear, an apology may mitigate the damage why should not the absence of apology be regarded as a factor increasing the hurt suffered by the plaintiff (cf Fitzpatrick at 660). And why would not the persistence in a defence of truth also increase the anxiety suffered by the plaintiff both before and during the trial. I do not think anyone would doubt that the persistence in a defence of truth could greatly increase the hurt and anxiety suffered by a plaintiff. Why then should a plaintiff not be entitled, upon the rejection of that defence, to greater ordinary compensatory damages than he or she would have been entitled to if there had been no defence of truth?

One possible view is that a plaintiff is entitled to a larger award of ordinary compensatory damages where a defendant persists unsuccessfully in maintaining a defence of truth whether or not the defendant has acted unjustifiably but that no additional award can be made by way of aggravation in the absence of proof of unjustifiable conduct. However, this view, if correct, would increase the potential for confusion in an already over complicated area of the law, is contrary to Fitzpatrick, and seems inconsistent with the statement in McGregor that it does not matter under what name the damages are classified.

However, support for this view is to be found in Coyne v Citizen Finance Ltd (1990 to 1991) 172 CLR 221 where Toohey J said, at 237:

"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. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it: Herald and Weekly Times Ltd v McGregor (at 263). I take this to be the sense in which Lord Diplock suggested that 'persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages': Broome v Cassell and Co ([1972] AC at 1125). But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v Pheeney, does not warrant an award of aggravated damages to the plaintiff."

Similarly McHugh J said, at 241:

"Secondly, the jury were entitled to find that the hurt to the plaintiff and the harm which he suffered were increased by the defendant's defence, persisted in until the end, that the defamatory imputations made against the plaintiff were true in substance and in fact. Triggell v Pheeney is not to be taken as modifying in any way the principle that in a defamation action the jury are 'entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the [plaintiff], and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff': McGregor."

These statements are, arguably, obiter dicta , but they do provide powerful support for the view that a jury may be directed that it can take account of a failure to apologise, or the unsuccessful persistence in a defence of truth, in awarding ordinary compensatory damages (whether or not that conduct is unjustifiable). If that view is correct then aggravated damages may be awarded in circumstances where the conduct is unjustified and the effect of such an award may be to further increase the damages. If this is the correct approach then there is a real question whether an award of aggravated damages for a defendant's unjustifiable conduct is essentially penal, rather than compensatory, in nature.

It will be recalled that Toohey J referred to Lord Diplock's speech in Broome and, insofar as I have found what his Lordship said persuasive, it may be helpful if I set out the relevant passage:

"The three heads under which damages are recoverable for those torts for which damages are 'at large' are classified under three heads:

Compensation for harm caused to the plaintiff by the wrongful physical act of the defendant... upon injury to reputation, as in defamation....
Additional compensation for the injured feelings of the plaintiff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner in which or the motive for which the defendant did it.
This Lord Devlin calls 'aggravated damages'.
Punishment of the defendant... 'exemplary damages'....

The tort of defamation, to which Lord Devlin made only a passing reference in Rookes v Barnard [1964] AC 1129 , has special characteristics which may make it difficult to allocate compensatory damages between head (1) and head (2).

The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for aggravated damages under head (2). Again the harm done by the publication for which damages are recoverable under head (1) does not come to an end when the publication is made.

As Lord Atkin said in Ley v Hamilton 153 LT 384, at 386:

'It is impossible to track the scandal, to know what quarters the poison may reach.'

So long as its withdrawal is not communicated to all those whom it has reached it may continue to spread. I venture to think that this is the rationale of the undoubted rule that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial... extends the quarters that the poison reaches. The defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages under head (1). In this sense it may be said to 'aggravate the damages recoverable as, conversely, the publication of an apology may mitigate' them. But this is not 'aggravated damages' in the sense that that expression was used by Lord Devlin in head (2). On the other hand the defendant's conduct after the publication may also afford cogent evidence of his malice in the original publication of the libel and thus evidence upon which 'aggravated damages' may be awarded under head (2) in addition to damages under head (1)."

The point that his Lordship was at pains to emphasise was that conduct of the defendant subsequent to the publication may increase both the subjective hurt felt by the plaintiff and the damage to his or her reputation. A defendant might be quite justified, in the light of evidence in its possession, in maintaining a defence of truth but in doing so it may, as Lord Diplock pointed out, cause the plaintiff greater harm and therefore be exposed to a greater award of damages.

I appreciate that there was a great deal of blurring between the different types of damages which could be awarded in defamation to be found in the authorities prior to Rookes and Broome and for this reason it is important to exercise caution in applying earlier authorities. Nonetheless, it is dear since Broome that the jury are entitled to take into account the subjective sufferings of a plaintiff and if these are increased by the defendant's conduct why should not the damages awarded be greater quite apart from any question of an award of aggravated damages for unjustifiable conduct?

Strictly, however, the question does not arise in this case for the jury was directed that the failure to apologise was relevant only to an award of aggravated damages and the issue on the appeal was whether there was evidence of a relevant lack of bona fides or impropriety on the part of the defendant.

At the outset I should point out that while the mere fact that a defence has been pressed unsuccessfully does not establish that it was not justifiable for the defendant to maintain the defence, the test of lack of proper bona fides is a liberal one. In my opinion the law is as was expressed by Walsh JA in Rigby v Associated Newspapers [1969] 1 NSWR 729, at 740. There his Honour said:

"The question is rather whether, in the end and in all the circumstances of the case as found by the jury, the conduct of the case was capable of being regarded by them as not 'bona fide' or not 'justifiable' on the part of the appellant, in its resistance to the claim of the respondent.... a line of attack on a plaintiff may be followed out in such a way and to such a degree that it may in the end be open to a jury, upon finding that in fact it had no substance, to regard it as not being justifiable as between the parties, and as increasing the hurt done to the plaintiff."

Here it was open to the jury, in my opinion, to conclude that the appellant had, in raising and maintaining a defence which was completely unsupported by evidence, acted unjustifiably. What is more the defence actually raised in this case was substantially analogous to a defence of justification. What the appellant was saying in its defence of consent was that the respondent had given permission to the appellant to publish the photograph showing his penis (putting it the way most favourable to the appellant). That is, that the first imputation was true. It has long been established that a defendant by unsuccessfully pleading justification may aggravate the damages. Here not only did the appellant fail to sustain the defence of consent but, arguably, it should never have raised it. In these circumstances it was well open to the jury to regard the appellant's conduct as unjustifiable.

In accordance with the principle that the verdict must be approached upon the basis that the jury determined all matters in contest in the way most favourable to the respondent one must assume that the jury awarded aggravated damages. In Broome Lord Reid said, at 1085:

"(The defendant) may have behaved in a high handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation."

Mr Hughes submitted that the appellant had brought the verdict on its own head by the manner in which its counsel conducted the trial and that in those circumstances the appellant could not be heard to complain if the verdict was outside the permissible range. This cannot be right. A verdict that is beyond the permissible range of verdicts is not a just verdict no matter what led the jury to award it For my part I am happy to adopt what Lord Reid said although I would, perhaps, phrase it slightly differently - conduct aggravating the injury may extend the permissible range of damages beyond that which would have been available in the absence of aggravation.

Having said that it must be remembered that the award is essentially made for the harm flowing from those imputations which were found to be established whether or not there were any aggravating features. As I have said where there is aggravating conduct then the upper boundary of the permissible damages may be extended but that does not alter the fact that the award represents compensation for the harm caused by the imputations, albeit harm aggravated by the defendant's conduct.

In my opinion the amount awarded in this case was so far beyond the permissible bounds as to require that it be set aside. One explanation for the size of the verdict,s that the jury may have been expressing its outrage at the gross invasion of the respondent's privacy. That there had been such an invasion was, on the respondent's case, clear and no doubt a jury which accepted the respondent's case would regard the invasion as outrageous. Nonetheless, as the learned President has pointed out, it was impermissible for the jury to award damages for the invasion of privacy and the verdict cannot be sustained.


The orders I would propose are:

Appeal allowed;
Set aside the judgment entered by Hunt CJ at CL except as to costs;
Grant a new trial of the plaintiff's action limited to damages;
Order that the respondent pay one quarter of the appellant's costs of the appeal but have, in respect thereof, a certificate under the Suitors Fund Act 1951.

Counsel for the Appellant: DF Jackson QC / RS McColl

Instructed by: Gilbert and Tobin

Counsel for the Respondent: TEF Hughes QC / G O'L Reynolds

Instructed by: Mallesons Stephen Jaques