Carson v John Fairfax and Sons Ltd

178 CLR 44
1993 - 0616A - HCA; 113 ALR 577

---

(Judgment by: Mason CJ, Deane J, Dawson J, Gaudron J)

Between: Mr Nicholas Carson
And: John Fairfax and Sons Ltd

Court:

Judges:
Mason CJBrennan J

Deane J
Dawson JToohey J

Gaudron JMcHugh J

Subject References:
Defamation

Hearing date: 25 August 1992, 26 August 1992
Judgment date: 16 June 1993

Canberra

---

Judgment by:
Mason CJ
Deane J
Dawson J
Gaudron J

The appellant, Mr Nicholas Carson, the plaintiff in the two actions, appeals against orders of the New South Wales Court of Appeal which set aside two judgments based on jury verdicts returned in his favour in two separate defamation actions brought against the respondents which were heard together except for one aspect of the second action to which we shall refer shortly. The first action was brought against John Fairfax and Sons Limited ("Fairfax") and the second against both Fairfax and its employee journalist, Mr John Slee. The actions arose out of two articles written by Mr Slee and published by Fairfax in The Sydney Morning Herald in 1987 and 1988. In actions in the Supreme Court of New South Wales before Loveday J and a jury, the appellant was awarded $200,000 in respect of the first article and $400,000 in respect of the second article. By majority (Kirby P and Priestley JA, Mahoney JA dissenting), the Court of Appeal set aside both verdicts as excessive and ordered, in each case, a new trial limited to the question of damages.

The respondents seek leave to cross-appeal from the orders of the Court of Appeal that the new trials of the appellant's actions be limited to the question of damages and from the orders that the respondents pay the costs of the trial before Loveday J. In the alternative or in the event that special leave to cross-appeal or the cross-appeals themselves are refused, the respondents wish to rely upon notices of contention filed in both actions. These notices list many grounds upon which the respondents argue that the decisions of the Court of Appeal should be affirmed, although a number of grounds were not pursued in argument.

The facts

The two publications dealt with aspects of the long-running litigation involving Dr Leszek Rajski and Tectran Corporation Pty. Limited ("Tectran"). Mr Carson is a partner in the legal firm Blake Dawson Waldron, the solicitors at the relevant time for Tectran. He is very prominent in the legal profession, with a character and reputation of the highest order. On 21 April 1987, Fairfax published an article written by Mr Slee entitled "Dr Rajski: a war on many fronts". The article appeared on the editorial page of The Sydney Morning Herald, a newspaper with extensive circulation throughout New South Wales and other States and Territories of Australia. The article contained the following passages:

"Dr Rajski: a war on many fronts

LAST WEEK'S account of developments in the Rajski case quickly attracted adverse comment.

...

One of the conditions of the Court of Appeal's stay was that Dr Rajski attend regular examinations before a psychiatrist approved by the court, so that it could have expert evidence as to his mental and physical condition.

Dr Rajski has duly been consulting Dr William Metcalf, a Macquarie Street specialist. Dr Metcalf has reported to the court that Dr Rajski is perfectly sane, but in need of rest.

In one of his latest reports to the court, however, Dr Metcalf has also reflected on the conduct of Mr Nick Carson, a partner of Dawson Waldron. (This is the firm which has been acting for Allen Allen and Hemsley, who are accused by Dr Rajski of abuse of process.) As a result of Dr Metcalf's comments about him, Mr Carson has threatened to sue for defamation.

Now, it is a moot point whether Mr Carson can get anywhere with such an action, whatever uncomplimentary things Dr Metcalf might say about him. Generally, what an expert witness says for the purpose of court proceedings is privileged and cannot give rise to defamation proceedings.

In any event, Dr Rajski has not taken kindly to Mr Carson's action against Dr Metcalf. He is seeking to have it declared part of a pattern of conduct that he alleges is in contempt of court.

In October 1985, Dr Rajski took proceedings against Mr Carson for contempt of court on two grounds.

He alleged Mr Carson had sought to persuade two key witnesses - who had given evidence in Dr Rajski's favour before Justice Miles - to change their testimony. And he alleged that Mr Carson had sought to influence the Legal Aid Commission by telling it that Dr Rajski's cross-action against Allens was without foundation and would fail.

(Dr Rajski's legal aid was terminated on October 22 last year).

In April, 1986, Dr Rajski also alleged that Mr Carson had brought defamation proceedings against his solicitor, Mr Arthur Carney, for the purpose of depriving Dr Rajski of his services. Whether or not that was Mr Carson's purpose, Mr Carney ceased to act for Dr Rajski forthwith. Curiously, Mr Carson appears not to have pursued the defamation action.

...

But the justice system depends absolutely on lawyers being different. They might fight for clients, but they must fight fairly.

The real importance, however, of the Rajski case is not merely that it raises issues about the probity of lawyers.

It is that it tests the ability of judges drawn from a tight-knit profession to judge senior members of it."

In May 1987, the appellant commenced the first action against Fairfax. At trial Mr Carson gave evidence that, despite the embarrassment he suffered in encounters with colleagues after the article's publication, he did not intend to sue provided a proper apology was printed. Mr Carson informed Fairfax accordingly and negotiations then ensued as to the form of an apology. Finally, eight months later and after proceedings had been instituted by the appellant, an apology was printed in The Sydney Morning Herald. The apology acknowledged two errors on the part of Mr Slee but failed to address a number of the matters of substance of which Mr Carson had complained. From the appellant's point of view, the apology was "inadequate and too late".

As well as seeking an apology, the appellant had offered to discuss the Rajski litigation with a senior Fairfax journalist and to provide whatever factual material he could, with a view to ensuring that any subsequent articles were free from the errors and alleged bias of the first article. Fairfax did not take advantage of this offer. Instead, on 6 May 1988, Fairfax published the second article written by Mr Slee. It contained the following passages:

"The criminal phase of the Rajski case

THE decision of the State Director of Public Prosecutions to institute criminal proceedings against some of the main actors in the Tectran v Raybos litigation has given it a new and potentially far-reaching dimension.

The DPP has so far begun to move against two people and is actively considering prosecuting two more.

The DPP has issued a summons against Mr Moshe Yerushalmy, a director of both Tectran Corp Ltd and Scitec Communications System Ltd, and is preparing a summons against Mr David Bruce Cowper, a former employee of Scitec.

...

On February 1 this year Justice Yeldham granted the DPP leave to prosecute Mr Yerushalmy for perjury, allegedly committed in proceedings before Justice Yeldham in 1981 and 1982. The alleged perjury related to Mr Yerushalmy's evidence as to his qualifications and experience, which he had claimed gave him a bona fide belief in the soundness of the Cowper report.

Mr Yerushalmy was to have appeared in the Local Court on April 13, but did not. Police said they had been unable to serve the summons. The matter was stood over to allow further time for service. Mr Yerushalmy is now said to be overseas.

Meanwhile, Blake Dawson Waldron, while saying they act for Mr Yerushalmy, have declined to accept service on his behalf. Instead, they have written to the DPP's office to this effect:

'We are instructed to make application in the nature of a no-bill application that the summons be withdrawn.

Before we do, we need to know the nature of the charge and the particulars relied upon. Please let us have this information as a matter of urgency.' This stern note has received a suitably dusty answer.

Blake Dawson Waldron, representing Mr Yerushalmy and Mr Cowper, are in an odd position. The partners of the firm, or Dawson Waldron as it then was, are also defendants in civil conspiracy proceedings instituted by Dr Rajski in the Supreme Court.

In that action, Dr Rajski claims that one of the senior partners, Mr Nicholas Carson, conspired with Mr Yerushalmy and Mr Cowper, as well as other officers of Tectran, to pervert the course of justice and abuse the process of the court by attempting to suborn witnesses and to prevent Dr Rajski receiving legal aid.

The difficulties the DPP has had serving summonses on Messrs Yerushalmy and Cowper suggests that the criminal phase of the Rajski case will be every bit as fiercely fought as the long, expensive, and so far inconclusive proceedings in the Equity Division of the Supreme Court."

On this occasion, the appellant did not seek an apology and commenced the second action without delay against both respondents .

Pursuant to s 9(2) of the Defamation Act 1974 (NSW) ("the Act"), a person has a cause of action in respect of any or each particular defamatory imputation in the published matter. In the first action, two imputations were pleaded and went to the jury without objection. They were:

"(a)

The (appellant) wrongly attempted to intimidate Dr Metcalf by threatening to sue him for defamation in respect of a medical report written by him.

(b)

The (appellant) wrongly brought defamation proceedings in his own name against Mr Arthur Carney, a solicitor, for the sole purpose of causing Mr Carney to forthwith cease to act for his client, Mr Rajski."

At a separate trial, Hunt J ruled that the second publication was capable of conveying the imputations ultimately pleaded by the appellant. The respondents were refused leave to appeal from that decision. The imputations were:

"(a)

The (appellant) was wrongfully party to a conspiracy with Mr Moshe Yerushalmy to obstruct the course of justice by evading service of criminal process.

(b)

The (appellant) so conducted himself as to give rise to a reasonable suspicion that he was wrongfully party to a conspiracy with Mr Moshe Yerushalmy to obstruct the course of justice by evading service of criminal process."

The appellant also provided particulars of matters relied upon in his claim for aggravated damages. While exemplary or punitive damages are unavailable in defamation actions in New South Wales, ^[F1] aggravated damages may be awarded. For the moment, it suffices to say that aggravated damages, awarded to reflect conduct by the defendant which aggravates the injury and increases the harm done to the appellant, are compensatory in nature ^[F2] and available both at common law and under the Act. The appellant relied upon a number of matters including the fact that the articles had been published without any prior attempt to make inquiries of the appellant, evidence that prior to publication Mr Slee knew that the imputations in the first article were false and the absence of any proper apology.

The respondents denied the imputations alleged by the appellant. They also pleaded in each case that the matter complained of was published under qualified privilege on the basis that it related to matters of public interest concerning the administration of justice generally and the Rajski litigation in particular. However, this defence was abandoned during the trial. The jury rejected the respondents' defences. After retiring for only 47 minutes and while counsel and the trial judge were still debating possible directions, the jury returned and announced its large verdicts in favour of the appellant.

It is necessary to refer to two particular incidents at the trial which relate to the amount of damages awarded. First, during cross-examination of the appellant, counsel for the respondents suggested that the appellant had acted improperly in signing a default judgment in actions brought by Tectran against Dr Rajski and that he had instituted the defamation actions with the motive of silencing Mr Slee. This was one of the grounds relied upon by the appellant in his claim for aggravated damages. Secondly, during his closing address to the jury, counsel for the appellant stated:

"That (i.e. the suggestion of counsel for the respondents) is what is said at the end of the case, perhaps because things are looking a bit desperate by the learned counsel who tried by cross-examination to throw mud in Mr Carson's face by suggesting unfair conduct. It is about time (Fairfax) was brought down to the ground, you may think, when that sort of conduct is engaged in. That is part, that is conduct that should be reflected, in my respectful submission, in your award of compensatory damages."

Court of Appeal

The respondents appealed to the Court of Appeal on a number of grounds which included: that in each action the verdict was excessive; that the trial judge erred in permitting the appellant to rely in his claim for aggravated damages on the conduct of counsel for the respondents; that the trial judge had failed to direct the jury concerning the weight to be given to the apology published in respect of the first article; that the trial judge had erred in not directing the jury that the remarks of counsel for the appellant were improper; and that the imputations upheld by Hunt J in the separate trial were not capable of being conveyed.

The principal judgment for the majority was delivered by Kirby P His Honour concluded that both verdicts were excessive and "smack(ed) of the punitive". ^[F3] In deciding whether to order a retrial limited to damages or a general retrial, his Honour examined the remaining complaints about the conduct of the trial by the trial judge. He concluded that these complaints were "either misconceived or of such a character as would not, alone, warrant disturbance of the jury's verdicts". ^[F4] In particular, while his Honour regarded the comments of the appellant's counsel quoted above as a call to inflict punitive damages and concluded that counsel's words may have contributed to the jury's error in the absence of an adequate direction from the trial judge, he did not think that that error alone justified a retrial.

Priestley JA generally agreed with the reasons for judgment of Kirby P but took a slightly different approach to the question of quantum. He concluded that the verdict in the second action for $400,000 was explicable only on the basis that the jury took into account some impermissible matter; he also suggested that this error may have been due to the comment of counsel for the appellant. However, his Honour concluded that, if the verdict in the first action were considered in isolation, it was not "unsupportably unreasonable"; nevertheless, as the lower award was to be considered in light of the conclusion that the higher one was reached in error, his Honour held that the "possibility must be very real that the jury, when fixing the figure for the earlier article, were influenced by the same factor that made (the jury) go wrong in their award on the later one". ^[F5] Priestley JA further differed from Kirby P in that he concluded that a general new trial should be held in respect of the imputations allegedly conveyed by the second article and that, as a consequence, the same order should be made in relation to the action arising from the first article. However, his Honour ultimately concurred in the order proposed by Kirby P in order to cut the "Gordian knot" and reach a majority court order.

Mahoney J dissented, concluding that the two verdicts were not excessive or beyond what was appropriate to achieve the objectives of damages awards in the area of defamation.

The actions in this Court

The appellant now appeals to this Court alleging several defects in the judgments of the majority in the Court of Appeal:

(a)

the failure to consider the two verdicts separately rather than improperly treating the verdicts as an aggregate amount;

(b)

the use as a comparison of awards given in personal injury actions in order to determine whether the verdicts were excessive;

(c)

the emphasis on irrelevant factors in reaching the conclusions that the verdicts were appealably excessive and amounted to awards of punitive damages.

The nature of the respondents' applications for special leave to cross-appeal and the notices of contention are set out above. During the course of oral argument, the Court refused special leave to cross-appeal in relation to the imputations pleaded in respect of the second article. However, a decision on the applications for special leave to cross-appeal from the appropriateness of the orders made by the Court of Appeal was reserved.

The Appellant's Appeals

The appellant challenges the majority decision of the New South Wales Court of Appeal on two primary grounds. They are that the judgment of Kirby P, with which (subject to some exceptions) Priestley JA expressed his general agreement, discloses that their Honours fell into two "basic error(s) of principle", namely:

(i)

"to test the two verdicts as if they were one aggregate verdict"; and

(ii)

"to compare the 'verdict' in (the appellant's) cases with a verdict in an unreported personal injury case (The Canterbury Hospital v. Cappelletto ^[F6] ". ^[F7]

The appellant also challenges the decision of the Court of Appeal on the ground that the majority impermissibly relied on certain matters in reaching the conclusion that the verdicts in the appellant's favour were outside the range of proper compensatory damages and on the general ground that their Honours' conclusion in that respect was, in any event, mistaken .

(i) That the majority tested the two verdicts as if they were one aggregate verdict

There are passages in Kirby P's judgment which make clear that his Honour placed considerable importance upon the total amount of the two verdicts (i.e., $600,000). In particular, his Honour referred to the fact that the Court of Appeal had been informed that the two verdicts "represented, in aggregate, the highest verdicts awarded as general damages for defamation in the history of this country" ^[F8] and expressed the conclusion that this "was not the case for the largest verdict for general damages in defamation in the history of this State and of this country". ^[F9] Moreover, in a passage in his judgment, Kirby P aggregated the two verdicts in stating that, "in so far as one may" make the comparison, it "seem(ed) difficult to say that the damage to (the appellant) was greater than ..., in aggregate, and by a magnitude of 2.4" the damage sustained by a Mrs Cappelletto who had had a jury verdict of $250,000 for general damages for "effective total blindness" set aside by the New South Wales Court of Appeal on the ground that it was excessive. ^[F10]

Clearly enough, if Kirby P had overlooked the fact that the two verdicts in the appellant's favour were given in different actions and were in respect of different defamatory publications, his Honour would have truly fallen into "basic error". Obviously, however, his Honour was not guilty of any such oversight. His error, if error it be, was that, in deciding whether either or both of the verdicts should be set aside as excessive, he considered it was relevant to inquire whether the total of the two verdicts exceeded the maximum amount of damages which was capable of reasonably being seen as representing appropriate compensation for the aggregate harm inflicted upon the appellant by both defamatory publications. It can be said at once that, in the circumstances of this case, we see no error in his Honour's approach.

While the two publications were different and conveyed different defamatory imputations, there was a clear and close relationship between them. Both were written by the same person (a respondent in the second action, Mr Slee) and published in the same section of different issues of the same newspaper. Each of them was defamatory of the appellant in respect of conduct relating to the same series of litigation. The effect of the defamatory publications was cumulative. The second compounded the harm to the appellant caused by the first: it renewed and expanded the hurt to his feelings; it exacerbated the damage to the reputation which he had hitherto enjoyed in legal, commercial and other circles.

Where a jury can award exemplary or punitive damages for defamation, the particular circumstances may be such as to make it unhelpful, and even potentially misleading, to reason from a finding that the total amount of the verdicts in two actions for related defamatory publications which were heard together was excessive as an aggregate award of damages to a conclusion that either or both of the two verdicts is appealably excessive. In the present case, however, it was not open to the jury to award any amount at all by way of exemplary or punitive damages. Under the Act, ^[F11] damages for defamation are limited to damages for "relevant harm" which, in a case where the person defamed has not died, is defined ^[F12] as meaning "harm suffered by the person defamed". As if to stress that damages for defamation are confined to what can be justified as compensatory for harm actually suffered, the Act goes on to provide ^[F13] that damages for defamation:

"(a)

shall not include exemplary damages; and

(b)

shall not be affected by the malice or other state of mind of the publisher ... except so far as that malice or other state of mind affects the relevant harm".

In the context of those legislative provisions, it is permissible and sensible in a case where claims for closely related defamatory publications have been heard together for a jury, in determining what is the appropriate compensation to be awarded to the plaintiff in respect of each publication, to take account of the aggregate "harm" suffered by the plaintiff by reason of both of them. Similarly, it is permissible and sensible for an appellate court in such a case to address the question whether the total of the two verdicts so exceeds the amount appropriate to compensate the plaintiff for the total harm suffered by reason of the combined effect of the two publications that it is apparent that one or both of the jury's verdicts must demonstrably be perverse. Indeed, there could be circumstances in which common sense and the need to avoid double compensation would make it all but essential that a jury or an appellate court address some such question.

An extreme example should suffice to make the point. Let it be assumed that a weekly newspaper were to publish in each of its issues for a year closely related defamatory comments to the effect that a particular lawyer had been guilty of different acts of criminal and unethical conduct in relation to a particular piece of litigation in which the lawyer was professionally involved. If the lawyer instituted separate legal proceedings for defamation in relation to each of the 52 issues of the newspaper and the 52 actions were heard together, it would border on the absurd and be all but impossible to prevent multiple compensation if the jury were instructed that they could not address the question of what represented, in their view, appropriate damages for the total "harm" which had been caused to the plaintiff by all 52 defamatory publications. Similarly, if the jury awarded the plaintiff $100,000 for each publication, it would make a mockery of the administration of justice if, in a context where the legislature had expressly restricted damages for defamation to compensation for harm suffered, an appellate court were required to disregard the fact that the total of the 52 verdicts ($5.2 million) far exceeded the maximum amount which was reasonably capable of being seen as appropriate compensation for the total harm which the plaintiff had sustained. The fact that the total of the verdicts is obviously excessive in that sense does not mean, of course, that all the verdicts should be set aside. It would be necessary to consider each verdict to ascertain whether, in the context of the case as a whole, it is excessive.

Accordingly, we do not consider that Kirby P fell into error on this aspect of the case and we note that his Honour's approach accords with that adopted by Windeyer J in Australian Consolidated Press Ltd. v. Uren when he concluded that: ^[F14]

"(t)he verdicts taken together show that the jury were led into a mistaken approach to the case as a whole".

(ii) The relevance of awards in personal injury actions

The appellant submits that Kirby P made an impermissible comparison between verdicts in personal injury cases and the verdicts awarded to the appellant and that such comparison influenced his Honour in concluding that the verdicts for the appellant were appealably excessive. The appellant argues that such comparison is impermissible according to the view of the majority of this Court in Coyne v. Citizen Finance Ltd. ^[F15]

It is worthwhile repeating in full the critical passage, to which we referred earlier in another context, from the judgment of Kirby P: ^[F16]

"It is also perhaps worth recalling that, more recently, this Court held that (by the standards of jury verdicts of this State) a jury verdict of $250,000 for general damages for effective total blindness caused by negligent hospital care, was outside 'current general ideas of fairness and moderation': see Canterbury Hospital v. Cappelletto ... In that case Mahoney JA and I both considered $250,000 was appealably excessive. In so far as one may compare that verdict to this, it seems difficult to say that the damage to Mr Carson was greater than to Mrs Cappelletto, in aggregate, and by a magnitude of 2.4".

The significance of this statement, however, can only be ascertained by reading it in context. His Honour previously set out in some detail the authorities on each side of the "controversy" as to the permissibility in defamation cases of examining the general damages components of judgments awarded to persons suffering personal injury. In particular, his Honour referred to the "words of warning" offered by Toohey J in Coyne ^[F17] to which we shall refer in detail below. His Honour then concluded that "it is safer not to venture any precise comparisons with personal injury cases". ^[F18] The appellant argues that the President nevertheless made such a comparison.

We reject this argument. The reference to Cappelletto is given as an example of a superior court in this country reducing an excessive verdict. The subsequent "comparison" between Cappelletto and the appellant's verdicts should not be accorded any significance when viewed in the context of his Honour's broader discussion of this area of the law and especially when it commences with the words "(i)n so far as one may compare that verdict to this".

In any event, we do not accept the appellant's argument that Coyne prohibits an appellate court, deliberating on the quantum of a defamation verdict, from considering verdicts in personal injury cases for the purpose of comparison. It is true that, in that case, Dawson and McHugh JJ expressed agreement with the judgment of Toohey J in the course of which his Honour stated that the adequacy of awards in one type of case should not be tested by reference to awards in the other. ^[F19] Coyne, however, is not a binding decision in the circumstances of this case. Coyne dealt with the question whether or not the jury were wrongly directed as to whether they could take into account awards in other types of cases when deciding upon a verdict. Here the alleged error is the comparison said to be made by an appellate court between verdicts in different types of cases.

In Coyne, Mason CJ and Deane J considered that it is legitimate for an appellate court considering an appeal against the quantum of damages in a defamation case to bear in mind "the scale of values" applied in dealing with appeals in cases of serious physical injury. ^[F20] There is no occasion here to repeat the reasoning advanced in support of that conclusion. That conclusion does not deny that the harm suffered in defamation cases differs from the "tearing of flesh and bone and the pain of body" ^[F21] suffered in personal injury cases nor that "precise comparisons" ^[F22] should not be drawn between the different types of cases. But for an appellate court which must test the quantum of a defamation award against some criteria to be prohibited from considering awards of general damages in personal injury cases would exclude reference to a potentially relevant criterion. In Andrews v. John Fairfax and Sons Ltd. Hutley JA stated: ^[F23]

"Lord Hailsham has pointed out in Cassell and Co Ltd v Broome: ^[F24] '... it is not necessarily fair to compare awards of damages in this field with damages for personal injuries.'; but this does not justify disregarding all the comparisons. Diplock LJ said in McCarey v Associated Newspapers Ltd (No 2): ^[F25] 'I do not believe that the law today is more jealous of a man's reputation than of his life and limb.'; and went on to compare the damages approved in recent accident cases in the Court of Appeal, concluding with the following remarks: ^[F26] 'It is, I think, legitimate as an aid to considering whether the award of damages by a jury is so large that no reasonable jury could have arrived at that figure if they had applied proper principles to bear in mind the kind of figures which are proper, and have been held to be proper, in cases of disabling physical injury.'"

That statement accords with the observation made by Mason CJ and Deane J in Coyne: ^[F27]

"(I)t seems to us that it would be quite wrong for an appellate court, entrusted with hearing appeals in both defamation and personal injury cases, to be indifferent to the need to ensure that there was a rational relationship between the scale of values applied in the two classes of case".

And the foundation of that relationship must be the scale of awards for general damages in cases of serious physical injuries which, in their severity and disabling consequences, transcend injury to reputation. ^[F28]

Such an approach, of course, raises the issue whether trial judges, in summing up to the jury, may draw such comparisons and, further, whether counsel may refer to such comparisons in their addresses. As a matter of logic and principle, there is nothing perverse in permitting - even encouraging - appellate courts to draw comparisons with personal injury verdicts while prohibiting such an approach at the trial stage. Appellate courts would have regard to personal injury awards to assist in resolving the question whether "the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case". ^[F29] Juries are charged with the more exacting task of deciding upon a precise figure, and thus will derive less assistance in accomplishing their duty from the rough comparison provided by personal injury awards. Having said this, we see no significant danger in permitting trial judges to provide to the jury an indication of the ordinary level of the general damages component of personal injury awards for comparative purposes, nor in counsel being permitted to make a similar reference. Although there is authority in this Court to the effect that the quantum of damages is not to be resolved by reference to a norm or standard supposedly to be derived from a consideration of amounts awarded in a number of other specific cases, ^[F30] there is much to be said for trial judges offering some guidance on damages - such as inviting the jury to consider the investment or buying power of the amount it might award ^[F31] or perhaps even indicating a range of damages which might be considered appropriate - while ensuring that the jury knows that they are to reach their own decision. ^[F32] Providing basic information on the general damages component of personal injury awards might even be more helpful than these other examples.

There is a distinct possibility that jurors in defamation cases, drawing on their own values and experiences, would call to mind the information provided to them in the media concerning very large personal injury awards. Such large claims often gain prominent media attention. Jurors who might call to mind such instances, however, will almost certainly be unable to recall - if indeed they ever knew - what portion of those very large verdicts represented general damages. Unassisted by the provision of information of the kind which we have suggested, the jurors may well make their own comparisons in a manner which is totally inaccurate and misleading. A defamation verdict for $250,000 may, in the mind of such jurors, bear a rational relationship to an award of $2.5 million dollars to a person suffering quadriplegia as a result of an accident, even though, unbeknown to the jurors, that person was awarded only $150,000 in general damages.

The appellant has not succeeded in proving that there was any error in the judgment of the majority of the Court of Appeal on this issue. This ground of appeal must therefore be rejected.

Were the verdicts appealably excessive?

As the appellant made no claim for particular economic loss as a result of either publication, the Court of Appeal ^[F33] was right in concluding that the jury's verdicts could not be supported by reference to specific economic loss. Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations". ^[F34] The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation. ^[F35] The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. ^[F36] Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant. ^[F37]

In the Court of Appeal, the respondents argued in respect of both verdicts that the damages awarded to the appellant were excessive and should be set aside. Considering the case in the light most favourable to the appellant, as the law requires, ^[F38] a majority of the Court accepted this argument. The appellant now contends that the majority erred in concluding that the verdicts were appealably excessive.

It has been stated that an appellate court should be extremely reluctant to interfere with a jury's assessment of defamation damages for the reason that the quantum of damages is a matter which is entrusted to the jury for determination. ^[F39] As Mason CJ and Deane J explained in Coyne, ^[F40] this argument loses much of its strength in Australia where, in all Supreme Courts other than that of New South Wales, a judge assesses damages for defamation in the absence of some contrary order or election. To say this is not to deny that an appellate court should accord respect to the quantum of damages for defamation awarded by a jury.

The governing principle applying to an appeal against a jury verdict on the ground that it is excessive was expressed in Triggell v. Pheeney by Dixon, Williams, Webb and Kitto JJ in these terms: ^[F41]

"The rule when a court of appeal is asked to set aside a verdict of a jury on the ground that the damages awarded are excessive is the same in libel actions as in any other cases, viz., that the verdict should not be disturbed unless the amount is such that no reasonable body of men could have awarded it: per McArthur J, Falcke v. Herald and Weekly Times Ltd ^[F42] )."

If an appellate court is convinced, not that in its own view the amount is too high or too low but that the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case, the proper performance of its functions will require it to intervene to prevent a miscarriage of justice. ^[F43] And the absence of power in New South Wales on the part of the judge or jury awarding damages for defamation to include an amount of exemplary or punitive damages ^[F44] removes what was perhaps the greatest obstacle in the path of an appellate court faced with the onerous task of reviewing an award of damages for defamation.

In this case the appellant submits that Kirby P took into account several irrelevant considerations in reaching his conclusion that the two verdicts were excessive. The central paragraph in this section of his Honour's judgment states: ^[F45]

"But it was not the case for the largest verdict for general damages in defamation in the history of this State and of this country. I find it hard to accept that these are the most grave imputations ever yet to have come before an Australian court, despite the multitude of defamations, including many of persons holding even more public offices than Mr Carson does and better known than he. It is especially relevant to remember that Mr Carson would have been willing to refrain from any proceedings at all in respect of the first article if only two additional matters had been added to the apology which was published. Most important of all is the fact that no punitive damages may be awarded. These verdicts must therefore be judged as compensatory only. In my opinion their amounts smack of the punitive; and that is not permissible by the law of this State."

We do not think that the matters here referred to by his Honour should be characterized as "irrelevant considerations". The matters referred to are plainly relevant, especially the reference to the appellant's willingness to refrain from suing and the fact that the damages were limited to compensatory damages. Exception can be taken to the assumption inherent in the second sentence but perhaps the sentence does little more than record his Honour's sense of astonishment at the size of the verdict.

In any event, the paragraph must be read in the context of the entire judgment which discloses that his Honour gave comprehensive and careful consideration to all those factors which must inhibit an appellate court from substituting its opinion for that of the jury and to all the considerations which would entitle the jury, in these cases, to award substantial verdicts. When read in context, it is evident that the paragraph does not state all the factors which led his Honour to the conclusion that the verdicts should be set aside. He relied upon other factors in concluding that the verdicts were appealably excessive. For instance, he noted that no proof of special damages was led and that accordingly no amount of the verdict was referable to such loss. He pointed to the substantial income which the two verdicts would yield if invested and noted that the income would last for life. And his reference to Cappelletto and that a combined verdict of $600,000 was the largest defamation verdict recorded in Australia were relevant factors leading to his Honour's conclusion that there must be an element of the punitive in the verdict. In that respect, his Honour's judgment may be compared with that of Windeyer J in Australian Consolidated Press Ltd. v. Uren. ^[F46]

Indeed, the reasons given by the Court of Appeal for setting aside the verdicts have been reinforced by our consideration of the detailed materials, to which we were referred by the respondents, relating to the general levels of personal injury awards. Our consideration of these materials reveals that the awards made to the appellant approximate (in the case of the first verdict) and exceed (in the case of the second) the general damages component of recent verdicts given in New South Wales in cases of quadriplegia. Two examples will suffice. In Guidera v. Government Insurance Office of New South Wales), ^[F47] an award of $275,000 for general damages was made to a 28 year old man whose excellence at gymnastics and plans to become a sports instructor were destroyed by an accident which left him with complete quadriplegia, poor respiratory function and a life expectancy reduced by 12.5 per cent. In Lynch v. Lynch, ^[F48] a woman aged 18 at trial was awarded $250,000 in general damages after suffering multiple injuries - primarily spastic quadriplegic cerebral palsy - which left her with no independent mobility, no prospect of improvement, a need for numerous surgical procedures and a significantly reduced life expectancy. Other similar cases could be mentioned. ^[F49]

Comparisons such as these are not made to trivialize the hurt and harm suffered by the appellant in this case. We refer to and adopt the description given by Mahoney JA in the Court of Appeal of the factors which called for large verdicts - particularly in the second action where the grounds for aggravated damages were stronger. But an appellate judge must not be indifferent to the need to ensure a rational relationship between the scale of values applied in defamation and personal injury cases. This rational relationship demands that the verdicts in this case be set aside .

(iii) The appellant's criticism of the reasons of Priestley JA

The conclusion which we have reached makes it unnecessary to examine the appellant's arguments directed against the additional reasons advanced by Priestley JA for setting aside the verdicts.

Notices of contention and applications for special leave to appeal

Again, in view of the conclusion which we have reached in relation to the disposition of the appeal, it is unnecessary to deal with the respondents' contention that the Court of Appeal erred in failing to have regard to the general levels of awards in personal injury cases in considering whether the verdicts were excessive.

We need not examine the other ground relied upon in the notices of contention. But we should express our view of the respondents' contentions with respect to the inadequacy of the trial judge's directions relating to certain matters said by the appellant to support an award of damages on the basis of aggravated damages. The first of these matters is that the jury were invited to take into account, in the context of aggravated damages, the fact that no apology was given by Fairfax in respect of the first publication at any time before action commenced, that is, within a period of seven months. The respondents' complaint is not that the lack of apology could not constitute an aggravation of damages but that his Honour should have instructed the jury that the nature of the apology had been the subject of discussion between the parties and that the appellant had sought an apology in wider terms than those to which he was entitled. The complaint amounts to no more than a claim that the judge failed to fully review the facts. We need say no more about this complaint in view of the conclusion we have reached with respect to the appeal.

The second matter is that the trial judge ruled that it was legitimate to put to the jury, in aggravation of damages, that the respondents' counsel cross-examined the appellant on the footing that he had an improper motive in bringing the proceedings for defamation. Again, the respondents' complaint is not that the cross -examination was not capable of aggravating the damages but that the directions were inadequate. In this instance the respondents argue that the judge failed to give the jury any guidance as to whether the conduct of the respondents' counsel was or was not capable of being in aggravation of damages. To reiterate the words of McHugh JA in Singleton v. French: ^[F50]

"(A) jury cannot effectively undertake the task of determining whether the defendant has conducted the trial so as to attract an award of aggravated damages 'without proper guidance as to the criteria' to be applied".

The trial judge did direct the jury in terms which generally, if not precisely, accorded with the judgment of Dixon, Williams, Webb and Kitto JJ in Triggell v. Pheeney where their Honours, after observing that: ^[F51]

"(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"

to support an award of aggravated damages, went on to say: ^[F52]

"(b)ut the decision of the majority in Herald and Weekly Times Ltd. v. McGregor ^[F53] must mean that the conduct of the defence may be taken into consideration ... 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."

It would have been preferable if the trial judge had followed the words of the judgment more precisely and related them to the facts of the instant case.

At the same time, the directions given on the subject of aggravated damages raise a more fundamental problem which was not explored in depth in the argument in this case. Although exemplary damages are unavailable in New South Wales, aggravated damages are available to the extent that they are compensatory in nature. That situation is brought about by s 46 of the Act which, by sub-s.(2), limits damages recoverable in defamation to damages for "relevant harm" (an expression which is defined by sub-s.(1)), by sub-s.(3)(a), excludes exemplary damages and, by sub-s.(3)(b), provides that damages shall not be affected by malice or other state of mind of the publisher except so far as that malice or other state of mind affects the relevant harm. As Windeyer J acknowledged in Uren v. John Fairfax and Sons Pty. Ltd., ^[F54] there is an element of the punitive in aggravated damages at common law. Under s 46, by reason of the exclusion of exemplary damages, it is necessary to confine an award of aggravated damages to what is truly compensatory. In determining what is truly compensatory in that context, regard should be had to what was said in the joint judgment in Triggell v. Pheeney. ^[F55] But, even then, we have difficulty in understanding how the mere absence of an apology can aggravate damages. Whereas publication of an apology may mitigate damage, thereby reducing the harm suffered by a plaintiff in a defamation case, and so reduce the damages awarded, the failure to publish an apology does not increase the plaintiff's hurt or widen the area of publication. No doubt want of apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that want of apology itself aggravates the plaintiff's injury. Furthermore, it is of the utmost importance that juries should be instructed that any award of aggravated damages must be confined to what is truly compensation for the relevant harm and must not include any element of punitive damages. Otherwise an invitation to award aggravated damages by reference to the defendant's conduct before and at the trial may be understood as an invitation to award punitive damages.

In our view, the directions given by the trial judge were susceptible to criticism on this score. Indeed, the jury may have been confused by his Honour's successive references to punitive damages and aggravated damages without further elucidation of the compensatory aspects of aggravated damages.

What we have said with respect to the compensatory character of aggravated damages has like application to that element of damages for defamation which is awarded in order to vindicate the plaintiff's reputation . It is the responsibility of the trial judge to give a clear and firm instruction to the jury that, in considering the plaintiff's claim for damages to vindicate his or her reputation, the damages must not exceed the amount appropriate to compensate the plaintiff for any relevant harm he or she has suffered. Furthermore, the trial judge should instruct the jury that, in the event that it is minded to award the plaintiff a substantial sum by way of damages for the plaintiff's injury apart from the claim for vindication of reputation, it will be unnecessary to add a further sum for vindication of reputation. The award of that substantial sum will in itself serve to vindicate the plaintiff's reputation. These comments are made by way of guidance to trial judges generally and are not directed to any question which arises in this appeal, for no question concerning vindication of reputation was argued in this Court.

Finally, it is necessary to consider the respondents' applications for special leave to cross-appeal on the question of the orders made by the Court of Appeal. The respondents seek a new trial generally. We would refuse the applications on the ground that they raise no question of general principle. No doubt there are cases where a trial has proceeded in such a way that a retrial on the question of damages would not address other errors or irregularities. This would not appear to be such a case. In the circumstances, there is no sufficient reason to doubt the correctness of the approach taken by the Court of Appeal on this issue.

For the foregoing reasons, we would dismiss the appeals.