Australian Consolidated Press Ltd v Ettingshausen

[1993] NSWCA 10

(Judgment by: Gleeson CJ, Kirby P, Clarke JA)

Australian Consolidated Press Ltd

Supreme Court NSW

Gleeson CJ, Kirby P, Clarke JA

Judgment date: 19 August 1993


Judgment by:
Gleeson CJ, Kirby P, Clarke JA

Australian Consolidated Press Ltd v Ettingshausen

[1993] NSWCA 10 SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL Gleeson CJ, Kirby P and Clarke JA CA 40079 of 1993 18 and 19 August 1993, 13 October 1993 AUSTRALIAN CONSOLIDATED PRESS LIMITED v ETTINGSHAUSEN Andrew

Gleeson CJ

This is an appeal following a large award of damages against the appellant in a defamation action.

The respondent is a prominent rugby league footballer. Some time ago, a cameraman, who had access to a dressing room, took a photograph of the respondent and some other footballers showering. The photograph included the respondent's penis. Subsequently, without the knowledge or approval of the respondent, the photograph was reproduced in a magazine published by the appellant. It appeared in connection with written matter of a suggestive nature, emphasising a display of masculine nudity.

The respondent argued, successfully, that the published matter contained two defamatory imputations. Both imputations went upon the premise that an ordinary reasonable reader would assume that any reputable publisher would have obtained the respondent's permission before publishing such a photograph. The first imputation was that the respondent deliberately permitted a photograph to be taken of him with his genitals shown for the purposes of such photograph being reproduced in a publication with a widespread readership. The second imputation arose out of the fact that the respondent was employed in promotional work amongst young people, and was to the effect that he was unfit to engage in such work in that he permitted a photograph to be taken for the purposes earlier mentioned. The jury found both imputations made out. The plaintiff was awarded damages of $350,000.

Notwithstanding a disingenuous attempt to deny the obvious, the jury would have concluded that the photograph of the respondent that was published in the appellant's magazine unquestionably showed his penis and was intended to do so. The context in which the photograph appeared places an emphasis on male nudity that was calculated to attract and amuse a certain type of reader. The publication occurred without the respondent's knowledge or consent. The evidence as to how this came about was such that it is understandable that a jury would consider that the appellant was prepared, for its own financial advantage, to exploit the respondent's body and reputation, regardless of any hurt or embarrassment that might be caused to him.

That a jury might react to the appellant's conduct with indignation is only to be expected. Such indignation would not have been dissipated bv the experience of spending several days in court listening to the appellant's attempt to defend the indefensible. However, there was a real risk that such indignation would manifest itself in an unreasonably large sward of damages. The law of defamation is an imperfect instrument for dealing with all the aspects of the appellant's conduct of which the respondent might fairly complain. However, even allowing for proper regard to matters of aggravation, the focus of attention in a claim for damages for defamation must be the just deserts of the plaintiff, not what might be thought to be those of the defendant. It is harm to the plaintiff, and compensation for such harm, that is in issue.

From time to time there is speculation as to why juries occasionally, in defamation cases, award damages which some people regard as surprisingly large. There are limits to the usefulness of such speculation, but one reason may be that defendants in defamation cases frequently raise issues which direct attention towards the question of the reasonableness of the defendant's conduct, and away from the question of the harm done to the plaintiff. As some of the judgments in the High Court in Carson v John Fairfax and Sons Ltd (1993) 67 ALJR 634 emphasise, there is an important place, even in an award of compensatory damages for defamation, for regard to the conduct of the defendant. There is a risk, however, that the exercise of awarding damages may become essentially punitive, rather than compensatory.

In Cassell and Co Ltd v Broome [1972] AC 1027 at 1085, Lord Reid said:

"So in the end there will probably be a wide gap between the sum which on an objective view could be regarded as the least and the sum which could be regarded as the most to which the plaintiff is entitled to compensation. It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may be behaving in a high handed, malicious, insulting or abrasive manner in committing the tort, or he or his counsel might at the trial have aggravated the injury by what they there did. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation".

In the present case the jury were entitled to treat the defamation seriously, and they were also entitled to treat the conduct of the appellant, both in the publication of the defamatory matter, and in the conduct of the trial, as justifying going to the top of the bracket. I am afraid, however, that in the amount they awarded, the jury went over the top.

I consider that the amount awarded was out of all proportion to the harm suffered by the plaintiff, and exceeded the largest sum that could fairly be regarded as compensation. Even making full allowance for the matters of aggravation to which the respondent was entitled to point, the damages were excessive to a degree that requires appellate intervention.

I have had the advantage of reading in draft form the judgments of Kirby P and Clarke JA. For the reasons given by Clarke JA, I agree that the appellant's complaints as to the conduct of the trial have not been made out. However, it is entitled to a new trial on the issue of damages. I agree with the orders proposed by Clarke JA.

Kirby P

This appeal concerns a challenge to a judgment entered following a jury verdict, after proceedings between the parties for an alleged defamation. The appellant contends that the verdict was so high as to warrant, and require, the intervention of this Court. Indeed, it suggests that the very size of the verdict shows that the jury did not perform their duties according to law. The appellant says that this result came about by reason of errors in, and the unfairness of, the conduct of the trial by the presiding judge (Hunt CJ at CL).

The matter complained of Mr Andrew Ettingshausen (the respondent) is a well known sportsman. He plays rugby league football. He was a member of the Australian team (the Kangaroos) which toured overseas countries in 1990 .

Australian Consolidated Press Ltd (the appellant) is the publisher of a glossy magazine known as HQ. Typically it has about 150 pages. At the relevant time, the editor of HQ magazine was Ms Shona Martyn.

The matter complained of appeared in the April 1991 issue of the magazine. It comprised a photograph of Mr Ettingshausen having a shower in a dressing room during the Kangaroos' tour of England. The photograph appears on a two page spread showing Mr Ettingshausen and two of his team mates, one of whom was the captain of the touring team, Mr Mal Meninga. The photograph, which is in black and white, has a grainy quality. Mr Ettingshausen is shown apparently standing under the shower and looking forward but away from the camera. Although his body below the waist is partly obscured by the quality of the photograph and an overprinted storyline, the light falling on his body sufficiently reveals his outline. Specifically, it shows his penis. No express consent was ever obtained by the appellant to display Mr Ettingshausen in its magazine in this fashion. [Editor's note: Photograph not reproduced]

I reproduce the photograph. Necessarily, the quality of the reproduction will prevent a repetition of the complaint. But it will be sufficient to indicate the general nature of the photograph and its context necessary to explain fully the strong complaint of Mr Ettingshausen.

HQ magazine appears to be aimed at a generally young market. Something of the flavour of the relevant issue can be derived from the titles of other sections in the offending issue. One is about the Queen of Jordan ("Her Royal Bossyboots"). Another on circus animals is titled "Unnatural Acts". An item on the musician Quincy Jones is titled "The Man Who Can't Say No". There are also serious articles, such as one on the well known writer John Updike. The overall impression of the magazine is substantially one of mild and harmless titillation.

The photograph of Mr Ettingshausen appears in an article titled "Hunks". In her evidence Ms Martyn originally contended that she could not see the contours of Mr Ettingshausen's penis in the photograph, as reproduced in the magazine. However, the publicity before, and the accompanying article indicate, clearly enough, the publisher's intention. On the cover of the offending issue the article in question is advertised with the catchy phrase "Some naked Kangaroos". In the contents page, the entry for this particular article is:

"94 Hunks Gratuitous nudity, bad language and some fine pectorals ... On tour with the Kangaroos (the footballers, not the marsupials).

In the article itself, the writer (James Kerr) claims to have turned into a "fly on the dressing room wall" during the 1990 Kangaroo tour of England and to have enjoyed "a freedom enjoyed by no writer before". The text includes the following:

"Yet upon my return to Australia, I was asked two questions almost exclusively. 'How big is Big Mal?' and 'What does ET look like in the showers?'
Well in the showers the soap ripples down washboard bellies, needle jets tease pert pectorals, delicate maps of veins pulse over clumped biceps, and the steam shrouded whiteness is dotted with dark pubic areas, soaped and scrubbed. ... Big Mal is, indeed, big, the biggest, and ET is built like a Greek God, statuesque with fine muscles slung low about his hips."
"Big Mal" is Mr Meninga. "ET" is Mr Ettingshausen. It does not take too much imagination to know what the writer is getting at in describing Mr Meninga's attributes. The reference to "dark pubic areas" would invite the curious to take a sharper look at the photograph to discover what a casual glance might have overlooked - Mr Ettingshausen's pubic areas.

The evidence disclosed that about 30,000 copies of the relevant issue of HQ magazine were printed, with 8,000 returns. Accordingly, some 22,000 were circulated. The estimated readership was 154,000. For Mr Ettingshausen it was suggested that this might have been an underestimate. Photographs like this (it was said) would be offered to the "girls around the office" and be seen by many more than the ordinary readers of HQ.

Mr Ettingshausen contended that the matter complained of exposed him to ridicule and damaged his reputation. He gave evidence of requests to autograph the photograph and to expose his anatomy. He also pleaded certain imputations.

The imputations

The availability and form of the imputations were the subject of pre trial consideration by Hunt J (as his Honour then was). His decision upheld the availability of the following three imputations: 1. That 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 widespread readership;

2. That 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; and
3. That the plaintiff is unfit to be a schools and junior development promotions officer for the NSW 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. See Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 (SC).

The last mentioned imputation, a "true" innuendo, rested upon the extrinsic fact that Mr Ettingshausen was, at the relevant time, employed as a promotion officer. He was concerned that the publication, conveying the impression that he had voluntarily exposed "his genitals" for publication in the magazine, might lead those who make such decisions to consider him unfit to hold the position as a role model for young people. In the event, no such action was taken against Mr Ettingshausen and no special damages were alleged.

Although the appellant contested the determination of the imputations before Hunt J, it did not challenge the imputations as settled by him and as put to the jury. The only challenge in this regard was to his Honour's action in permitting Mr Ettingshausen to amend the imputations after the evidence had been concluded and before addresses, by permitting him to add, after the word "exposed" in each case, the words "that is, shown". It will be necessary to return to this ground. As there is no other challenge to the imputations, it is unnecessary for this Court to consider them or their form.

An apology is "tucked away"

Following Hunt J's ruling that there were available to Mr Ettingshausen imputations that he had deliberately permitted his "genitals" to be exposed, the appellant published an apology. It did so at 8 of its issue for Summer 1991. According to Mr Ettingshausen's counsel, the apology was "tucked away" on an obscure page, taking second place to an item on condoms ("Discrete Objects of Desire"). The apology, appearing under a caption showing Mr Ettingshausen's name, read:

"In the April 1991 issue of HQ a photograph appeared in the article "Hunks" which showed Mr Andrew Ettingshausen naked in a shower.

Mr Ettingshausen commenced a defamation action, claiming the article suggested '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'.

HQ did not intend to convey that suggestion and has defended the action on the basis that the article did not convey that suggestion.

In the New South Wales Supreme Court on 25 June 1991, Mr Justice Hunt ruled that, on the construction of the article, the suggestion arose in law. He directed that the question whether the suggestion arose in fact should be determined by the jury at the trial.

HQ accepts this ruling on law.

If any reader understood that the photograph conveyed the suggestion, HQ withdraws the suggestion without reservation, states that it did not intend to convey the suggestion, acknowledges that there is no basis for the suggestion and apologises to Mr Ettingshausen for it."

A complaint was made of the context in which the apology appeared (condoms). However, I regard that complaint as having no substance in today's society and no merit. On the other hand, the apology is, in its terms, qualified and seemingly reluctant. Furthermore, it attracts nothing like the space devoted to the full page photograph of Mr Ettingshausen, as I have shown. Nor is it clearly headed "Apology".

Verdict. judgment and appeal

As has been stated, the proceedings were tried before a jury. The jury comprised four persons. The trial lasted six days. The jury were out for little more than an hour. They returned, finding for Mr Ettingshausen upon each of the imputations numbered 1 and 3 left to them pursuant to the trial judge's ruling. Imputation 2 was alternative to 1. The jury also found that Mr Ettingshausen had established that each of the imputations so conveyed was understood by the ordinary reasonable reader to be defamatory of him. They rejected the appellant~s contention that the imputations had been conveyed in circumstances in which Mr Ettingshausen was not likely to suffer harm. "By way of compensation", they found that the amount to be awarded to Mr Ettingshausen for the publication was $350,000. Judgment was entered in that sum. Having regard to an offer of compromise, to the ordinary order for costs, a special order for indemnity costs was added as from the date of the offer. By necessary inference, this must have been lower than the jury's verdict.

The appellant has appealed to this Court. It claims a number of errors in the conduct of the trial and that the verdict returned by the jury was so high as to authorise this Court's intervention to set it aside. Upon both categories of complaint, the appellant contended that it had suffered a miscarriage of justice to remedy which a new trial was sought. Some twenty two grounds of appeal were filed, supplemented by additional grounds. In the conduct of the appeal, however, the appellant confined itself to seven basic arguments. Mr Ettingshausen confined himself to resisting these arguments and to suggesting, by way of contention, that even if they, or some of them, were made out, the Court would, in the exercise of its discretion, refuse to order a retrial because of the way the first trial had been conducted and the hurt occasioned by that conduct which could never be fully recaptured in a retrial.

Issues in the appeal

The resulting issues in the appeal are therefore:

1. Did the trial judge err in acceding to an application, after the close of evidence, to permit Mr Ettingshausen to amend the imputations pleaded to include a definition to be given of the word "exposed" by the word "shown"?;
2.(a)Did the trial judge err in instructing the jury that, by pleading and persisting in a defence of consent to the photograph, the appellant exposed itself to a verdict for aggravated (compensatory) damages?;
(b) Did the trial judge err in taking the issue of consent to the publication from the jury?
3. Did the trial judge err in failing to discharge the jury, as requested, following the opening address by senior counsel for Mr Ettingshausen?;
4. Did the trial judge exhibit such a lack of impartiality that a reasonable person would have had an apprehension that he was biased in favour of Mr Ettingshausen and did such a perception of bias affect the jury and occasion a mistrial?;
5. Did the trial judge wrongly admit into evidence an enlarged photograph of the photograph complained of and certain extraneous photographs, not contained in the matter complained of, showing Mr Ettingshausen in the shower? Did he also err in permitting the projection of the dispositive slide so that it was shown to the jury in a greatly enlarged form?;
6. If error is shown in any of the foregoing, was it waived for the appellant, or was it, in any case, sufficiently significant to occasion a miscarriage of justice in the circumstances of this trial?;
7. Were the damages awarded to Mr Ettingshausen by the jury appealably excessive?; and
8. Should the Court, in the exercise of its discretion, set aside the judgment entered in Mr Ettingshausen's favour following the jury's verdict, having regard (amongst other things) to the way in which the trial was conducted on behalf of the appellant?

Matters of approach

It is useful to start with a number of general observations:

1. There is no doubt, as in part the appellant's case at the trial suggested, that community attitudes to nudity and sexuality have changed in recent years. Senior counsel for Mr Ettingshausen described the photograph complained of as "pornographic". By no conceivable stretch of the imagination could it be so described. On the other hand, although somewhat obscure, it is possible (as Ms Martyn was led ultimately and reluctantly to admit) to see the contours of Mr Ettingshausen's lower body and penis. Common experience demonstrates that male nudity is now much more frequently seen in books, magazines, television, video and film than was formerly the case. But it is for the jury, where summoned, to determine whether, in particular circumstances, the publication complained of reaches the wrong of defamation sued for. The fact that a judge on appeal, reviewing the verdict, would not consider the photograph defamatory as such (as distinct from an invasion or privacy) is irrelevant. The matter having gone to the jury upon the imputations stated, the jury is the constitutional tribunal accepted by the law as determining the community's standards. They accepted Mr Ettingshausen's asserted imputations proved. They found that he was defamed. Subject to complaints about the lawfulness and fairness of the trial, the community has therefore spoken through the jury;
2. The lawfulness and fairness of the trial is largely dependent upon the conduct of the presiding judge. It is trite to say that the presence of the jury renders it imperative for a judge to show more caution and restraint than he or she would do if conducting the trial sitting alone. Jurors sometimes feel that they should look to the judge, as an experienced participant in the procedure which to them is generally novel, to give an indication of how they should find. Unless the judge is scrupulously neutral and painstakingly fair, indications of irritation or hints of a point of view may unfairly influence the jury and thereby affect the integrity of their verdict. Where a judge is sitting alone, interventions both to signal preliminary opinions and to manage the case efficiently are entirely appropriate. See Galea v Galea (1990) 19 NSWLR 263 (CA), 277f. In Galea, Meagher JA stated that the disinterested bystander, viewing the judge's interventions, would "only have noted that an exceptionally irritating witness had eventually succeeded in irritating the judge" (ibid) 284. But there are special reasons to control even understandable judicial irritation in the presence of a jury. Instruction, even repeated instruction, to disregard judicial indications of opinions on the facts may not compensate for an apparent attitude critical of one party and favourable or sympathetic towards another. In the present case, where community standards to nudity were raised, neutrality and dispassion were especially important to procure a true verdict from the jury. Otherwise, the risk was run that the jury would feel obliged to uphold a standard which the judge seemed to expect of them rather than one which expressed their own opinions as a microcosm of the contemporary Australian community;
3. Although at common law, in defamation proceedings, a jury might award a successful plaintiff punitive damages to mark their disapprobation of arrogant or high handed conduct on the part of the publisher (both in the publisher's original publication and in the conduct of its defence) such damages have been abolished by Parliament in this State. See Defamation Act 1974, s46. This Court should not attempt to circumvent the clear instruction of Parliament. It should faithfully give effect to the policy which lies behind the statutory abolition of punitive damages. That policy safeguards publishers against verdicts which, in truth, contain a punitive element although presented, in the attempt to hold them, as "aggravated compensatory" damages. See Carson v John Fairfax and Sons Ltd (1993) 113 ALR 577, 593. Any other attitude on the part of the courts amounts to defiance of the clear intention of Parliament. I will not be guilty of such defiance. I am duty bound to subordinate my own opinions to the law made by Parliament;
4. The policy of Parliament in abolishing punitive damages must be seen in the context of the function of the law of defamation. That body of law operates in a society which enjoys a high measure of freedom of expression. In part, such free expression is inherent in the very nature of our polity. Some attributes of the basic right to freedom of expression are guaranteed by the Australian Constitution itself. See Australian Capital Television Pty Ltd and Ors v The Commonwealth [No 2] (1992) 66 ALJR 695 (HC); Nationwide News Pty Ltd v Wills (1992) 66 ALJR 658 (HC). These implied rights to free expression have been held to exist despite the absence from the Australian Constitution of an express guarantee of free expression, equivalent to the First Amendment to the Constitution of the United States of America or the Canadian Charter of Rights and Freedoms, 2. The constitutional protection of free speech was not invoked in the instant case. Nor is it relevant.
5. It is also pertinent to recall to mind the way in which the law of defamation works as an inhibition upon free expression in our society. The relationship between the law of defamation, and its equivalents in civil law countries and the basic human right affording freedom of expression has been considered in a number of judgments of the European Court of Human Rights. See eg Handyside v The United Kingdom (7 December 1976, series A, number 24); Lingens v Austria (Judgment 8 July 1986, series A, number 103); Castells v Spain (Judgment 23 April 1992, series A, number 236). See also S Coliver, "Defamation Jurisprudence at the European Court of Human Rights" (1992) 13 Media Law and Practice 250; Dirk Voorhoff "Defamation and libel laws in Europe - The framework of Article 10 of the European Convention on Human Rights (ECHR)" (1992) 13 Media Law and Practice, 254. Australia is not a party to the European Convention. Unlike the United Kingdom, it is therefore not directly influenced by the jurisprudence which has developed around the Convention. See eg Derbyshire County Council v Times Newspapers Ltd and Ors [1992] 3 WLR 28 (CA) 43, 60. However, Australia is a party to the International Covenant on Civil and Political Rights. That Covenant is contained in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) for the purposes of that Act. Article 19 of the Covenant provides, relevantly:
"19.2 Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, ... in writing or in print, in the form of art, or through any other media of his choice.
3 The exercise of the rights provided for in para2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) for respect of the rights or reputations of others;
(b) for the protection of national security or of public order ... or of public health or morals."
Although the Covenant is not part of the domestic law of Australia, as such, the ratification by Australia of the First Optional Protocol to that Covenant inevitably brings its influence to bear upon the exposition and development of the common law of this country. See, eg Mabo and Ors v The State of Queensland (1992) 175 CLR 1, 32. The foregoing says nothing more than that, as Australian courts approach their common law duties, they will keep in mind the value of free expression which is important to our society. They will also keep in mind that international human rights law recognises, and local law permits, inhibitions upon freedom of expression for the protection of reputations, although only to the extent necessary for that purpose and as a derogation from the basic right hereby diminished;
6. Also contained in the International Covenant (above) is a recognition of the fundamental value of human privacy. Article 17 provides:
"17.1 No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
.2 Everyone has the right to the protection of the law against such interference or attacks."
So far, the common law of Australia has not developed an enforceable right to privacy, as such. See eg Victoria Park Racing and Recreation Grounds Co Ltd v Taylor and Ors (1937) 58 CLR 479, 495. Calls have been made for judicial innovation in this respect. See eg G Dworkin "The Common Law Protection of Privacy" (1967) 2 Univ Tas LR 418. Law Reform Commissions and committees have produced reports calling for such remedies. See eg Australian Law Reform Commission, Unfair Publication, Defamation and Privacy, AGPS, Canberra, 1979 ALRC 11, 123. So far, those proposals have not been enacted. In the last mentioned report, the problem of the reproduction of photographs taken in private places and in circumstances intruding into a person's personal, home life or into private behaviour and family relationships was noted. See ibid, 125. The result of legislative inaction is that no tort of privacy invasion exists. Thus, whilst the value of privacy protection may generally inform common law developments, it would not be proper to award Mr Ettingshausen compensation for the invasion of his privacy, as such. Nor was this claimed. The jury were reminded of this fact by counsel appearing for the appellant at the trial. Their verdict must be seen purely as compensation for the damage found for the 1088 of Mr Ettingshausen's reputation and for the humiliation and embarrassment, of which he gave evidence.
7. Nor has our common law recognised a right of action for appropriation of a person's name, reputation or likeness. See Clark v Freeman (1848) 11 Beav 112; 50 ER 759. This rule has been followed with respect to the appropriation of the name, reputation or photograph of many well known people, including writers (Corelli v Wall ( 1906) 22 TLR 532); actors (McCulloch v Lewis A May (Produce Distributors) Ltd [1947] 2 All ER 845; Sim v HJ Heinz Co Ltd and Anor [1959] 1 WLR 313); and sportsmen (Tolley v JS Fry and Sons Ltd [ 1931] AC 333). Mr Ettingshausen complained that the appellant had used his photograph without consent for the purpose of promoting and selling its magazine for its own profit. In the United States of America, this would almost certainly, without more, have afforded him a cause of action against the appellant upon that ground. See eg Haelan Laboratories Inc v Topps Chewing Gum Inc 202 F Rep 2d 866 (1953). See also ALRC 11, 133ff. However, such a cause of action is not available in this jurisdiction. It was not alleged. Care must be taken to confine any damages for Mr Ettingshausen by way of compensation, strictly to the wrong claimed and upheld by the jury; viz defamation. Other notions, which arguably should or might in other places, or from a general sense of fairness ought to give rise to an entitlement to damages, must be ignored. They are irrelevant to our law; and
8. Mr Ettingshausen was entitled to rely, in his case, upon the way in which the appellant conducted its case. See eg Guise v Kouvelis (1946) 46 (SR) (NSW) 419, 423. According to his counsel, the appellant conducted this trial with "elephantine feet". Certainly, there were a number of serious inconsistencies in the successive ways by which the appellant sought, at the trial, to meet Mr Ettingshausen's complaints. Clearly this course of conduct irritated the judge. Seemingly, they also annoyed the jury. But it is important that the appellant should not be punished for the way in which the case was conducted, however offensive and hurtful. From first to last, compensation is the purpose of the remedy sued upon. Punishment must, by Parliament's clear enactment, have no part.

The curious conduct of the trial

What seems to have upset Hunt CJ at CL, and to have aggravated the jury, leading to an award which by any account is of an extremely large verdict to Mr Ettingshausen, was the apparently inconsistent way in which the case for the appellant was presented at the trial. It was clear that the appellant had published the photograph of Mr Ettingshausen whilst naked. It was equally clear, from the interrogatories, that no specific consent had ever been secured from him before the photograph was published. It is true that the granular nature of the photograph, the superimposed printing and perhaps the fact that it was "flipped" and deliberately presented in this way, obscured Mr Ettingshausen's pubic area somewhat. Certainly, in some lights his hips and pubic area are difficult to see. An uninterested reader could well pass the photograph without noticing the appearance of the penis. On the other hand, if one looks the penis can certainly be seen. Ms Martyn at first prevaricated and suggested that it could not be seen. Ultimately, she was pushed by determined cross examination to agree that it could. There was an inherent contradiction in the assertion that the penis was invisible. It was hard to reconcile with the various textual items which ostensibly drew attention to its visibility.

Then there was a suggestion in the appellant's defence that Mr Ettingshausen had actually consented to the photograph being taken. This will be explored below. It is sufficient for present purposes to make it plain that not only was express consent missing but implied consent to the presentation of a naked photograph in a popular magazine was really unarguable.

Then the appellant sought, through the somewhat argumentative testimony of Ms Martyn, to downplay the seriousness of the photograph. It was suggested that it was an "artistic" production; that it presented Mr Ettingshausen as an attractive man; and that it did no harm with regard to his schools because all the boys likely to play football "would have penises too". Such responses, if the jury accepted Mr Ettingshausen's evidence of a feeling of humiliation and embarrassment (as they clearly did) would have appeared facetious and inappropriate. Plainly, they would have contributed to Mr Ettingshausen's entitlement to aggravated compensatory damages.

Then, the appellant's case suggested that, by contemporary values, the presentation of such a photograph, even without specific consent, was not such as to damage the subject's reputation. Clearly, this ran headlong into the assertions by Mr Ettingshausen and his witnesses concerning the embarrassment and hurt which was felt. To try to counter this, the appellant at the trial secured Mr Ettingshausen's acknowledgment that he had worked as a male model, including in what might be thought of as sexually provocative poses. Modelling jeans, he had been told to "tease" the pose. It was urged that such a person, also used to the physical world of sport and the raw conditions of showers and dressing rooms, was unlikely to be harmed at all, or at least greatly harmed, by such an obscure public presentation of his penis. As senior counsel for Mr Ettingshausen commented, this was a "high risk" strategy. Clearly it did not work. To the contrary, the jury obviously reacted most unfavourably to it.

The question, then, is whether the jury's unfavourable response to the shifting case presented for the appellant at the trial was materially influenced by errors during the conduct of the trial or resulted in such a verdict which, in any case, cannot stand. The Court was informed that, on the stay application, the primary judge expressed his opinion about the jury's verdict. That opinion must be disregarded for the purposes of this appeal. If the judge's conduct at the trial was unfair, as claimed, his view of the verdict would equally be suspect. This Court must reach its own conclusion on the appeal without the assistance of the opinion of the learned trial judge.

Explanation of "exposure" in the imputations

The first substantive ground of complaint argued was that Hunt CJ at CL had erred in permitting Mr Ettingshausen, after the close of evidence, to provide the jury with a modified explanation of the sense in which "exposure" was to be understood for the purpose of the imputations (above). His Honour agreed to add the explanation that the "exposure" said to be imputed was the mere "showing" of the penis .

The complaint is not entirely meritless. There is no doubt that when senior counsel for Mr Ettingshausen opened to the jury he put it very clearly that he was asking them to consider "exposure" in the sense that exposure of the penis can sometimes be taken in popular speech. This is the deliberate flaunting, or unwelcomed presentation of, the penis by persons deriving sexual or other satisfaction from such an act. Counsel said that such people were deserving of "pity and contempt":

"I mentioned to you earlier the analogy, the comparison of the flasher, a man who exposes himself in a way which any decent person would regard as not only distasteful, but horrible. Even in this day and age there are ordinary rules about decency and modesty having been written within the rule book so far as the ordinary reasonable reader is concerned ..."

The trial having been conducted upon the footing that this was the "exposure" alleged by Mr Ettingshausen, it was argued that the late amendment permitted by Hunt CJ at CL was unwarranted. It deprived the appellant of the opportunity of putting to the jury the submission that Mr Ettingshausen s case was being pitched far too high when he asserted "exposure" in the sense that was opened. On the contrary, the amendment took the wind out of the appellant's sails. It made it look as if it had been running a false case before the jury.

I acknowledge the force of the complaint. However, in the end I do not believe that it is one which should attract the intervention of this Court.

Imputations must be expressed with precision in the attempt to eliminate ambiguities. See Singleton and Anor v Ffrench and Ors (1986) 5 NSWLR 425 (CA), 435. The ambiguity having been identified, it was within the judge's province to endeavour to remove the uncertainty by making plain the sense in which Mr Ettingshausen was alleging the defamatory imputation contended for. I see no error requiring intervention on this point. In any case, I cannot accept that it occasioned a relevant miscarriage of justice.

Defence of consent

At the conclusion of the evidence, and before final addresses Hunt CJ at CL ruled that qualified privilege had not been made out and that there was no evidence upon which the jury could properly find for the appellant on its defence of consent. He allowed the unlikelihood of harm defence to go to the jury. He also held that aggravated damages would be left to the jury.

Following the jury's verdict and his judgment, his Honour published reasons for those rulings. The appellant has challenged in this appeal the ruling that the jury were entitled to award aggravated damages for the filing and persistence in the defence of consent. In his reasons, Hunt CJ at CL said:

"In this case, after having expressly and publicly conceded in the apology that there was no basis for the suggestion that the plaintiff had consented to the publication of this photograph showing his penis (and in the absence of any belief at the time of the publication that the plaintiff had consented), the defendant persisted in the defence of consent yet failed to establish a case to go to the jury upon that issue."

His Honour also pointed out that the appellant had failed to call the publisher (Mr Richard Walsh) to give evidence and to explain its conduct. He therefore inferred that nothing Mr Walsh could have said would have assisted the appellant's case. I see absolutely no mistake in Hunt CJ at CL's decision to withdraw the defence of consent from the jury. There was no evidence to support it. On the contrary, the uncontradicted evidence denied consent by Mr Ettingshausen to the publication complained of.

There is equally no doubt that Mr Ettingshausen was entitled to claim aggravated damages for the repeated assertion, unproved, that he had given consent to the publication of the photograph which he clearly had not. His case was constructed thus. A naked photograph showing the penis of a well known figure would not normally be carried in an Australian publication without the consent of that person. Therefore, ordinary reasonable readers of the appellant's publication would infer, contrary to the fact, that Mr Ettingshausen had given his consent. From that, they would infer that he was a person given to exposing (ie showing) his penis in public. The evidence of Mr Ettingshausen (which was clearly accepted by the jury) disclosed him to be a rather modest and private man with a discreet family life which he wished to keep to himself. As it was put during evidence, his penis was something between him and his wife. A photograph showing it was not to be published without his consent (although with his apparent consent) in a popular magazine. Such a publication might titillate readers. It might promote the appellant's profits. But it humiliated and embarrassed Mr Ettingshausen and damaged his reputation.

I consider that Hunt CJ at CL was perfectly correct in his rulings on this point. In fact, the way in which the appellant conducted the trial disclosed a dangerous prevarication. It was not clear that Mr Ettingshausen knew that a photograph of him in the shower was being taken at all. In the photograph he was displayed looking away from the camera. The photograph was apparently taken after a game. Mr Ettingshausen mind would likely be on things, other than a "fly on the wall" photographer. In any case, even an awareness that the photographer was present would not necessarily bring home to Mr Ettingshausen that the lower part of his body would be photographed. He would generally be entitled to assume that a person, trusted into the milieu of the players, would respect their privacy. Least of all would the knowledge that a photographer was present entitle the publisher to infer that consent was given by the subject of such a photograph to its use in a popular magazine with promotional text emphasising what was claimed to be "gratuitous nudity" and which contained sexual references.

It was proved that the Australian Rugby Football League Ltd had, by its Executive Chairman, (Mr KR Arthurson) given consent at a board meeting to the preparation of a book titled 28 Heroes. The benefit of the book was to be for the League's sponsors and the Children's Leukaemia and Cancer Foundation. It was on that footing that Mr Cochrane was appointed as "official tour photographer" on the relevant Kangaroo tour. Presuming that Mr Ettingshausen knew of the precise basis upon which the photographer was present, and joined in the League's consent, it would have been upon the basis of the use of photographs in the proposed book. The likelihood of the inclusion, unchecked, of a naked photograph in such a book would have been extremely remote if the players had reflected upon it. In these circumstances, it was clearly open to Hunt CJ at CL to leave it to the jury to decide whether the persistence in the completely meritless defence of consent was so unjustifiable as to warrant an award of aggravated damages for the additional hurt and annoyance caused by such conduct.

The appellant complained that Hunt CJ at CL had misunderstood the apology which had been published. This was, so it was argued, to the imputation of "expose" in its original form, ie wilful flaunting of the penis. It was not an apology to "expose" in the watered down version of "shown". No application was made to Hunt CJ at CL to redirect the jury by specific reference to this nuance of meaning of the amended imputation. I do not believe that the difference was significant. In any case it caused no miscarriage of justice. Nothing therefore turns on the point.

Like Hunt CJ at CL, I consider that it was open to the jury to be satisfied that the appellant had acted "in a flagrantly unjustifiable manner in relation to" the defence of consent. In the absence of a specific request for the subject's consent to the publication in its magazine of the offending photograph, it is unacceptable to assert that the possible consent to the presence of a photographer extended to the use of this photograph in such a publication and in such a context.

The Standards of the community

The appellant complained about Hunt CJ at CL's instruction to the jury concerning the standard of reasonableness which they should apply.

Clearly enough (and understandably) counsel for the appellant opened this point to the jury in his address: , "You see you come here as members of the community, ordinary decent members of the community, and you bring to the case, you should bring to the case, no extreme views. You should not bring to the case any 19th century notions. You bring to the case notions which accord with the views of ordinary decent members of the community in 1991/93 because that is the period with which we are concerned. You put the case in perspective and I submit to you that there has been quite a lot of perspective lost in this case, that there has been to use the words of one of the witnesses, 'A great farce over something which really is not very much at all'."

Hunt CJ at CL directed the jury thus:

"It is important to emphasise that the community standards or attitudes which you must take into account are those which are common to the community generally. You are not concerned with the standards or attitudes of small sections of the community or with those of particular members of the community. You are concerned only with those social or moral standards and attitudes which are common to the community generally.
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 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."

The appellant complained that in this passage Hunt CJ at CL unfairly put into the jury's mind issues of bad taste and irresponsibility. I do not agree. I see no error in his Honour's direction. It was appropriate that some assistance be given to the jury on the approach to be taken. In a way, the manner in which the appellant conducted the trial called for such assistance. Was it conceding that the penis was shown in the photograph or was it not? Was it really suggesting that Mr Ettingshausen consented or was it not? Was it asserting that this was a deliberate "sexy" pose, just as he had performed as a fashion model, or was it not? Was its real case that the photograph was not very important? Or was artistic? Or that, although express consent was never obtained and hurt was occasioned, it was entitled to act as it did because the Rugby League had agreed to promotional photographs, including for a children's charity? The appellant spoke to the jury with inconsistent messages. That was its perfect right. But, it is little wonder that the jury saw through the inconsistencies and responded sympathetically to Mr Ettingshausen whose simplicity and modesty seemed much more straight forward and admirable by comparison.

Refusal to discharge the jury after the opening

The appellant was certainly entitled to have the case tried fairly without the intrusion of extraneous matters calculated to inflame the jury to perform their functions otherwise than in accordance with law. See Croll and Anor v McRae ( 1930) 30 SR (NSW) 137 (FC), 143; Morgan v John Fairfax and Sons Ltd (1988) 13 NSWLR 208 (CA), 211. The appellant complained that, in his opening address to the jury, senior counsel for Mr Ettingshausen introduced highly prejudicial matters. These, it was said, rendered a fair trial impossible. They were of a kind which could not be adequately repaired by judicial directions.

Three statements were complained about:

"(1) "As representatives of the community you would no doubt view with disgust and strong disapproval a publisher who published such a photograph unless he consented to it";
(2) "People in the community ... 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"; and
(3) "Just ponder on those words, "How big is big Mal?. Blind Freddie could see what they're getting it."

The principles to be applied, in reviewing Hunt CJ at CL's decision to refuse the discharge of the jury, are as stated in Morgan at 214f. The authorities are full of expressions of restraint and reluctance in acceding to such requests. See eg Wellington v Lake George Mines Pty Ltd (1962) 62 SR (NSW) 326, 328; 79 WN (NSW) 74, 75; (1962) NSWR 627, 629. A trial at common law must be judged for what it is: a contest in which evidence and addresses are largely spontaneous. It would be wrong to analyse over attentively the remarks of counsel who, on behalf of their clients, are necessarily allowed a fair degree of latitude. Exceptions may exist where counsel positively invites legal error. See eg John Fairfax and Sons Ltd v Carson ( 1991) 24 NSWLR 259 (CA), 278. None of the passages complained of in counsel's address in this trial come close to the passage which was criticised in Carson.All of them seem to me to be within the class of permissible advocacy.A measure of indignation was probably inevitable from the inconsistent ways in which the appellant appeared to be approaching its defence (and later did so).

At the end of the address and following the rejection of the application for discharge of the jury, Hunt CJ at CL reminded the jury that "disgust" was not an attitude which they should bring to bear upon their judgment of the case. The statements in para(1) and para(2) were explained as nothing more than an invocation to them, as representatives of the community, to reflect upon what an ordinary reader would have expected upon seeing a photograph of Mr Ettingshausen's naked form in such a publication. It posed the question whether the reader would assume that the photograph would not have been published "unless that newspaper had the consent of the plaintiff". It was this assumption, false as it proved, that Mr Ettingshausen relied upon to establish the "permitted" element in the imputations sued upon.

As to statement (3) I cannot really see how the appellant can complain about counsel s remarks. What he said to the jury was obviously what the writer of the text meant, particularly as that text was to be understood in the context of the accompanying photograph.

I regard Hunt CJ at CL's direction to the jury in this respect as perfectly adequate. So apparently did counsel then appearing for the appellant. The trial proceeded without further application for the discharge of the jury. The trial having proceeded on its merits to its conclusion, this Court would not be justified in the circumstances in overturning his Honour's decision, ignoring the careful directions which he gave the jury and treating the trial as a wasted exercise. Even as an element of the appellant's complaint that Hunt CJ at CL conducted the trial unfairly, I do not see any substance in this point.

The suggested lack of impartiality and bias

The Court was then taken through a very large number of passages in the transcript where the appellant suggested that Hunt CJ at CL had demonstrated a want of impartiality and the appearance of bias against the appellant.

It goes without saying that a party is entitled to have its case determined by an independent and impartial tribunal. In the criminal context this is guaranteed as a fundamental human right by the International Covenant ( above), Art 14.1. The same is clearly true of a serious civil claim such as the present. The common law guarantees the achievement of this fundamental right. It upholds the entitlement of every party, who comes to a court in Australia, to have both the reality and the appearance of a dispassionate, neutral and independent decision maker. Cf Vakauta v Kelly ( 1989) 167 CLR 568, 571; Galea (above), 281.If a judicial officer, by words or other conduct, departs from these very high standards, so that a lay person observing the conduct might have a reasonable apprehension that the judicial officer might lack impartiality then, subject to arguments of waiver or the like, an appellate court will be duty bound to set aside the result of the trial. Subject, then, to any residual discretionary arguments, a new trial would be ordered. This would be done because, in the eyes of the law, neither the public nor the parties to the case have had the reality and appearance of a trial conducted according to law.

All of this is well established. It was not really in dispute in the appeal. What was contested was whether Hunt CJ at CL's conduct of the trial gave rise to a reasonable apprehension of bias.

The schedule of his Honour's interventions, rulings and comments is contained in the appellant~s submissions. I do not propose to deal with each of the complaints, although I have considered all of them individually, as they relate to each other and as they aggregate together.

Some of his Honour's actions are the subject of separate heads of challenge already dealt with (such as his refusal to discharge the jury at the end of the opening address) or to be dealt with (such as his decision to permit the tender of an enlargement photograph and other photographs in the locker room series).

With great respect to Hunt CJ at CL (who is most experienced in the conduct of defamation trials) I have been left with a sense of unease about some of his interventions and about their cumulative effect upon the jury. Many of them would have been perfectly understandable if his Honour had been sitting alone. Many were perhaps understandable in human terms, given the inconsistencies and transparencies in the appellant' s arguments at trial.The appellant's conduct of its case was, as I have said, irritating and even perhaps provocative. However, it cannot be said too clearly that, in the presence of a jury, much greater caution and self restraint are called for by judges of trial. That was especially so in this case because of the nature of Mr Ettingshausen's complaint and the importance of securing the focus upon it of the jury s application of contemporary standards. The danger of sending too many signals of judicial disapprobation of the appellant, its witnesses and counsel was that the jury might, even unconsciously, become a reflection of the same feelings and give effect to them in the verdict.Were this to happen, the jury, in the presence of a strong judge of firm opinions, frequently disclosed, would be surrendering their opinions to those of the judge. They would be not the microcosm of the community they were intended to be but a pale reflection of judicial wrath, frequently and effectively brought to bear upon the appellant.

That Hunt CJ at CL expressed himself in no uncertain terms can be seen from the following samples:

1. During Mr Ettingshausen's cross examination, on the receipt of money for posing in an advertisement for jeans without a shirt, counsel for the appellant indicated his intention to raise a matter in the absence of the jury. At the next adjournment the transcript records that, after the jury had retired, counsel indicated his objection to his Honour's intrusion as being "unfair and damaging". It was suggested that the judge had stated that the cross examination had "little connection with reality". Although this has not been formally proved, it does appear from the exchanges with his Honour that something to that effect must have been said in the presence of the jury. The learned judge asserted an entitlement to expose a cross examination "as having very little connection with reality". I acknowledge that a judge has the duty to conduct and control the trial. But in a case such as this, it would have been wise to have refrained from such comments and to have permitted the cross examination to proceed, uninterrupted. Judges, like counsel, must show restraint. But more is expected of judges. And particularly where the respect due to their office may influence the jury's attitudes to a party's cause in a case likely to stir emotions;
2. Later in the cross examination of Mr Ettingshausen, his Honour interrupted counsel to read out the meaning of "genital" and "genitals" from a dictionary. With respect, this appears to have been a gratuitous intervention. It appeared to have the effect of interrupting the flow of the questioner's interrogation;
3. Later, whilst counsel was still cross examining Mr Ettingshausen, his Honour, in the presence of the jury, asked counsel whether "if somebody came along and snapped you under the shower does that mean you say 'You must not publish that' or you will rely upon them to use decency in relation to it". Counsel, doubtless conscious of the watching jury, was driven to indicate that he would develop the point later. The appellant complaints that the intervention was yet another indication to the jury of the judge's wholehearted acceptance of Mr Ettingshausen and his rejection of the appellant's case. Again, and with respect, I believe it would have been preferable to have allowed the cross examination relevant to the scope of any consent given by Mr Ettingshausen to continue without judicial assistance until the ruling was made that there was no evidence to support it;
4. In response to counsel's question in cross examination of Mr Ettingshausen s witness, Mr Wayne Pearce, his Honour interrupted with an expostulation "Really!", when the question was asked of the witness whether he thought it "repulsive to see a number of players having a shower?" Counsel protested, asking: "May I approach it in my own way, with the greatest of respect, and not your Honour's way?"
His Honour responded: "Off you go".
Unsurprisingly, within a few questions, the witness was perfectly able to answer the question:
"I wouldn't want my pecker in the paper".
In my respectful view it would have been preferable to have allowed the cross examination to continue without interruption;
5. During the cross examination of the appellant's witness, Ms Martyn, his Honour, over counsel's objection and in the presence of the jury, observed that the witness was intent to answer more than the question ... She is obliged to answer the question and not to comment about the effects of it. She is here as a witness, not as an advocate". Whilst some of Ms Martyn's answers were sententious and whilst it was proper for the judge to call her attention to the obligation to answer only the question asked and not to engage in argument, the very way in which she proceeded to give her answers rendered it even more essential that his Honour should not intervene too much or too critically. Otherwise, the responses, which were themselves relevant to the issues before the jury, could be lost in the drama of the engagement between the judge, the witness and her counsel. That engagement could only ever be damaging to the appellant;
6. During the final address of counsel for the appellant, Hunt CJ at CL interrupted when he referred to Ms Martyn's belief concerning the use of the subject photograph in the book on the Rugby League tour which had been authorised by the League. He ruled that Ms Martyn's belief was "totally irrelevant to any issue in this case unless punitive damages were being awarded". The appellant asks this Court to note that the interruption was to be contrasted with the apologetic way in which his Honour later intruded gently into counsel's address for Mr Ettingshausen;
7. At the close of the address for the appellant and in the presence of the jury, Hunt CJ at CL informed the jury that he had changed his ruling concerning Ms Martyn's beliefs and would permit counsel to address on that issue. But he went on to inform the jury that counsel was to correct another matter which he had asked him to identify;
8. In his Honour's final charge, he told the jury that they might think that "the standard of ordinary decency" held generally throughout the community would have required that the appellant's magazine not act "so irresponsibly and in such bad taste" as to publish a photograph of a person such as Mr Ettingshausen showing his penis "unless it first had his full consent to do so". Although expressed in terms of what the jury might think, this passage, and several others, would have left little doubt in the jury's mind as to what his Honour thought.

For Mr Ettingshausen, the response to these many complaints (and the others relied upon which I have not repeated) was threefold:

(1) That the interventions were perfectly justified on each occasion; represented no more than the robust control of the trial by an experienced judge; and where criticism was voiced simply indicated the provocation to which the judge and the jury were exposed by the appellant.It is true that a defamation trial is not a game for the faint hearted. Legal authority supports the strong control of proceedings by the judge.Recent authority, in criminal and civil trials, suggests that the judge's duty to the efficient disposal of proceedings may extend to the termination of time wasting or humbug. Cf State Pollution Control Commission v Australian Iron and Steel Pty Ltd [No 2] (1992) 75 LGRA 327 (NSWCCA); R v Champion (1992) 64 ACrimR 244 (NSWCCA), 256;
(2) That his Honour put several points during the course of the trial, and later during his final charge, repeatedly reminded - the jury of their entitlement to differ from him on factual judgments and that they were the "sole judges" of the facts; and (3) That, in any case, no application having been made, except after the opening address, either to discharge the jury or that his Honour should disqualify himself, the appellant must be taken to have waived any complaint about the contamination of the jury or the appearance of bias on the part of his Honour. See Vakauta v Kelly (1989) 167 CLR 568, 572, 577.

The appellant, in turn, sought to answer these arguments. It said that Hunt CJ at CL had crossed the invisible, but very real, boundary which divides firm conduct and good management of a trial from partisanship and an unfair lack of neutrality in the presence of the jury. It reminded the Court that the ultimate test was whether it considered that a miscarriage of justice had occurred. See Reg v Martin (1960) 60 SR (NSW) 286 (CCA), 290. It pointed out that incantation of the formula reserving facts to the jury was not a substitute for quiet and manifest neutrality during the course of the trial and a conscientious endeavour to be, and to appear, impartial. See Roger v Ellas (1962) 80 WN (NSW) 869 (FC), 873; cf Byfield Mears v The Queen [ 1993] 1 WLR 818 (PC), 822.

My own view is that care must be taken extending the principle of waiver too far. There is a public interest in the manifestly impartial conduct of a trial which goes beyond even the intense interests of the parties themselves. Cf S and M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 (CA), 373; United States of America v Jack A Lustman 258 F 2d 475 (1958) at 478.In the light of Vakauta, I must accept that in this country parties, by their conduct, can waive the public's right to a manifestly impartial trial of contested issues. This principle may be founded upon the generally safe assumption that the parties, with an interest to protect themselves, will normally adequately also protect the public's confidence in impartial justice.

This case illustrates the limits of that principle. Objection was taken to the opening by counsel for Mr Ettingshausen. It was rejected. Various particular objections followed Hunt CJ at CL's numerous interventions and interruptions. In the forensic setting, there is a limit, which all understand, upon the extent to which a party, or its legal representatives, can be expected repeatedly to challenge the judge presiding at the trial. Consistent with deference to the judge's rulings, and the psychological checks on excessive protestations, I consider that counsel for the appellant sufficiently made plain, on a sufficient number of occasions, his objections to the interruptions, comments, rulings and observations of the learned trial judge.

Standing alone, I would not have been prepared to conclude that the suggested unfairness and alleged appearance of partiality on the part of Hunt CJ at CL amounted to such a miscarriage of justice as to require a retrial. I allow that styles in the conduct of court proceedings differ between judges. The concept of neutrality - which is such a mainstay of our judiciary - varies from one judge to another. Respect for judicial independence must include respect for the right of individual trial judges to conduct trials in "robust" ways that may seem excessive to the remote appellate observer. I also allow for the very great experience of this trial judge in conducting trials in this kind of litigation. However, I am reluctantly forced to accept that there is weight in the appellant's suggestion that the explanation for the extremely large verdict in this case may, in some part at least, be explained by the jury's response to the judge's repeated and plain indications of his impatience, both with the case of the appellant and with the way it was being presented by its counsel. In human terms as I have said, the judge's reactions were understandable. But in court, judges must control and discipline their human feelings to assure manifest fairness to the myriad of people who come before them - not all of them admirable and attractive.

This conclusion requires me to consider this complaint with the two other remaining complaints of substance: the admission and projection of the photographic evidence and the size of the verdict itself.

Admission and projection of photographic evidence

Hunt CJ at CL originally admitted as an exhibit the dispositive slide from which the photograph in the matter complained of was reproduced. He did so for its suggested relevance to the defence of qualified privilege, which was then still before the jury but which was later ruled to be unavailable. That ruling has not been appealed. When the ruling was made, there was no other possible basis upon which the slide was admissible. In my view it should have been excluded at that time from the evidence.

Necessarily, as with any slide, the dispositive admitted into evidence appears much sharper in detail than the enlarged, and partly obscured, photograph reproduced in the appellant's magazine. The only matter upon which Mr Ettingshausen sued was the contents of that magazine, as seen by its readers. They did not see the dispositive slide. It should not have been before the jury.

Nor did the readers see three other items which Hunt CJ at CL permitted to be placed before the jury. The first was a photographic enlargement magnifying to nearly a square metre the photograph shown in the matter complained of. The actual dimensions were given by the old measurement as 2 feet by 3 feet. The admission of this enlargement was justified by his Honour, as an aid to the jury's understanding and by reference to Butera v Director of Public Prosecutions for the State of Victoria (1987) 164 CLR 180. In my view, the principles of that case forbade the admission of the enlargement. It was objected to. It should have been rejected. It was unfair on several bases. These related to its size, its clarity, the absence of over printing and the lack of "cloud" which is a feature of the photograph reproduced in the matter complained of.

Equally objectionable was his Honour's ruling permitting the use of a projector to show the jury an enlargement of the diapositive slide from which the photograph in the matter complained of was taken. There was no suggestion that this enlargement was ever before, or even available to, ordinary members of the public reading the magazine. It seems that the lights of the courtroom were turned down when the enlarged projection was shown to the jury. When this course was repeated in this Court the projected image showed much more clearly, than in the magazine, Mr Ettingshausen's pubic area. In my view this action was highly prejudicial to the appellant. Counsel for the appellant urged before his Honour that this course should not be allowed.

Then, inexplicably, his Honour admitted into evidence prints from other photographs and transparencies which were taken in the shower series. These clearly showed naked football players including Mr Ettingshausen. As he was suing only upon the photograph in the appellant's magazine, this was also highly prejudicial. It occasioned the risk of confusion in the mind of the jury between the admitted photographs (with their very clear rear and frontal nudity) and the matter complained of (where the exposure was much less clear).

For Mr Ettingshausen it was said:

(a) That no objection was taken to the tender of the last mentioned exhibits; and
(b) That the tender did not cause a miscarriage of justice. Because no redirection was sought, once the basis of the tender (qualified privilege) was removed.

I find neither of these answers convincing. The objections were clearly and properly noted when the first tender or projection was offered. I regard the photographs as highly prejudicial and distracting, given that a major issue in the trial was the clarity (or lack of clarity) of the representation of Mr Ettingshausen's pubic area and penis. The matter complained of presented one image. The transparency, poster, projected enlargement and associated photographs all cumulated to divert the jury's attention from the only photograph which mattered. This material (with the possible exception of the transparency) was wholly irrelevant and prejudicial. When put with the cumulative effect of the learned trial judge's interventions in the conduct of the trial, they have led me to a reluctant conclusion that a mistrial occurred. A miscarriage of justice has been established. Subject to the discretionary argument raised for Mr Ettingshausen, the appellant is entitled to a fresh trial. In the eye of the law, the first trial was not a proper trial of the issues.

Size of the verdict

This opinion is further reinforced by the size of the verdict of $350,000. Of course, that verdict must be approached upon the basis that the jury determined all matters on contest in a way favourable to Mr Ettingshausen. See Triggell v Pheeney (1951) 82 CLR 497, 516. Thus, it must be assumed, for the purpose of testing the verdict, that the jury responded most adversely to the appellant's conduct of the trial and awarded Mr Ettingshausen a full measure of aggravated compensatory damages. By reason of a s46(2) of the Defamation Act 1974, aggravated damages may be awarded in defamation actions in this State. Exemplary or punitive damages may not be awarded. See s46(3)(a). They must therefore bear some rational relationship to the wrong done to Mr Ettingshausen. See Carson ( above) 592f.

Senior counsel for Mr Ettingshausen conceded that the verdict was very high - at one stage he said "massive". In my view it is so high as to indicate that the jury must have been influenced by a wrong principle or have taken into account irrelevant considerations, so out of proportion was the verdict to that which might reasonably be expected by reference to the Court's general knowledge and comparison with other judgments for compensatory general damages - given both by judges and by juries.

It has long been permissible, in a very general way, for courts performing the function of reviewing jury verdicts to take into account their general experience as to the measure of other damages verdicts. Windeyer J did so in Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185, 213. I referred to the matter in this Court in Carson (above) 273 (para15). See also the cases there cited. The High Court, in Carson (at 591), specifically took into account two recent awards for general damages for quadriplegia, being $275,000 and $250,000 respectively. Using the same criteria, and approaching the matter in the same necessarily general way, I reach the identical conclusion in this case. It is simply impossible to suggest that compensation for the harm done to the reputation of Mr Ettingshausen required or permitted general damages greater in magnitude than those awarded to persons suffering profound quadriplegia.

By chance, this Court recently considered the case of a claim for damages for medical negligence suffered by an infant who lost the head of his penis during a neonatal circumcision operation. The first jury returned a verdict for $500,000. This was set aside by the Court as excessive. A second jury returned a verdict of $275,000. Mahoney JA considered that this too was excessive. By majority, the Court (McHugh, JA, Priestley JA concurring; Mahoney JA dissenting) sustained the second jury's verdict. See St Margaret's Hospital for Women (Sydney) v McKibbin, Court of Appeal, unreported, 14 May 1987; (1987) NSWJB 90. McHugh JA concluded that the verdict of $275,000 was high. It represented perhaps "the extreme view of the evidence" . But it was open to the jury.

Against this background, the measure of compensation due to Mr Ettingshausen for this defamation (even allowing for the entitlement to aggravated damages and the passage of time) cannot bear the relationship to the physical loss of part of the penis suffered in McKibbin which the comparison of the two verdicts suggests. It cannot be the case that publication of an obscure photograph of a penis of a popular sportsman sounds in greater damages than permanent loss of part of a penis in a young boy.

For Mr Ettingshausen, it was urged that the Court should hesitate before substituting its opinion for that of the constitutional tribunal which saw the witnesses and heard the evidence. Of course it should. It does. But having reached its view, it is duty bound to give effect to it.

It was urged that juries were more likely to reflect proper verdicts in defamation cases. For that reason they had been exceptionally retained by Parliament. See Carson, 611; Supreme Court Act 1970, s88. Judges were bound to question their own assessments when these repeatedly came in lower than those of juries in defamation proceedings. There is some merit in this point. It has been made before. But it must also be remembered that juries have relatively little guidance (and until now no comparisons) concerning the limits of the general damages they can allow as compensation for an established defamation. In this case, as in most others, no special damages were proved. Mr Ettingshausen did not claim that he had lost his educational or modelling employment. With relatively few points of guidance, it is therefore easier in a defamation action for a mistake to occur than in other trial proceedings calling for compensation to be calculated by reference to numerous heads, each of which can be carefully explained.

For Mr Ettingshausen, Shakespeare was invoked with great power by his advocate. The Court was reminded that reputation was "the purest treasure . That the jury were entitled to assess the impact of the loss of it on Mr Ettingshausen as they evaluated him. Clearly, he made a good impression on the jury. This seems unsurprising from a reading of his evidence.

Nevertheless, a limit is ultimately reached when full allowance is made for all of the considerations favourable to Mr Ettingshausen which tend to magnify the verdict he might properly recover. In the end, the check is imposed by s46 of the Defamation Act. It prohibits the award of punitive damages. As in Carson, so here, I have formed the view that, impermissibly, the jury (despite the careful judicial warnings not to do so) went beyond compensating Mr Ettingshausen. They visited their extreme displeasure both at the publication of the appellant and (possibly) its defence of the trial. In doing so they returned a verdict which can only be explained as including a component for punishment and deterrence, as well as disapprobation. It was, indeed, massive. As compensation for the whole of the matter complained of, photograph and text, the verdict returned was appealably excessive. It must be set aside.

The foregoing conclusion relieves me of the obligation to consider two interesting points which, in a case closer to the margin might need to be determined. The first was whether it was permissible, in testing the acceptability of the verdict, to take into account the amounts fixed for this community by Parliament in legislation providing for maximum statutory compensation for motor vehicle accidents and workers' compensation claims. In the case of the former, the statute, at the time of this trial, fixed maximum general damages recoverable at $211,000 . Under the Table of Disabilities found in the Workers Compensation Act 1987, complete loss of the sexual organs is valued by Parliament at $60,724. The appellant s submission was that these sums, provided by law, reinforced the impression that the jury's verdict for $350,000 for a rather obscure photograph in the midst of a trivial text was plainly excessive.

There are difficulties in the way of accepting this argument. A number of considerations might affect the caps fixed by legislation which would have nothing to do with considerations proper to the award of compensatory damages for defamation. As well, care must be exercised in deriving common law principles from statutory provisions. Cf Lamb v Cotogno ( 1987) 164 CLR 1, 11. See G. Gunasekara, "Judicial reasoning by analogy with statutes: heresy or a new avenue for the development of the Common Law" in Papers of the Lawasia Conference, September 1993 611, 18. I refrain from resolving this point, as it is unnecessary to do so. My present inclination is adverse to it.

Secondly, the question arose as to the extent to which, in providing a solatium to Mr Ettingshausen, it was permissible, and appropriate, for the jury to take into account the size and profitability of the appellant and the verdict which would be needed to afford the "sting" necessary to relieve the hurt which the plaintiff had suffered. To some extent, considerations of this kind enter into the permissible calculations of the jury by way of evidence traditionally, and in this case, received, concerning the circulation of the journal and its estimated readership. In this case the estimated readership was something over 150,000. Clearly, such a consideration would boost the judgment recoverable from an organisation such as the appellant when compared to a suburban newspaper, a student journal or the broadsheet of a small community group. Mr Ettingshausen was certainly entitled to a solatium for his hurt. But only by way of compensatory damages enlarged with aggravated damages of the kind explained in Andrews and Anor v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 (CA), 249. He was not entitled to recover punitive damages. If that was the price of relieving his sting , the law forbade the jury from imposing that price. Presumably, the law does so because of Parliament's conception of the proper limits of the civil law of defamation and the need to pay respect to the competing value of free expression in the exercise of which, inevitably, wrongs will occur and hurts will be occasioned.

McHugh J in Carson ( at s25) recalled the observation of Windeyer J in Uren (at 151f) that "in truth a punitive or vindictive element does lurk in many cases in which the damages were aggravated by the defendant's conduct". I entirely agree. But, to the extent that it lurks, it must be extirpated under the plain instruction of Parliament in s46(3)(a) of the Defamation Act. A court has no authority to defy a clearly expressed statement of the law emanating from a legislature acting within its powers. For my own part, I will submit to the will of Parliament, being mindful of the considerations which may lie behind that instruction. If publications in this country are exposed to "massive" damages verdicts for defamation of the size found here, a result might be the shrinking of diversity of expression and the presentation of inconsequential and uncontroversial banalities which no one. Whilst defamation cannot be condoned and must, where proved, be compensated, a society valuing freedom of expression, as ours does, is well entitled to limit the recovery of damages, where defamation occurs, to compensation. Such limitation recognises that free expression has its own high value and carries some risks.

Miscarriage of justice and discretionary orders For Mr Ettingshausen it was submitted that, if all other matters were determined adverse to his cause, the Court would still refrain from ordering a retrial in this case. It would do so for two essential reasons:

(1) Because the appellant had, by its own conduct, widened the range of permissible verdicts and, in particular, by the manner in which it conducted its defence at the trial; and
(2) Because of the disadvantage which a retrial would occasion to Mr Ettingshausen. The appellant, it was said, would at a second trial exhibit the fastidious care of "goody two shoes." And Mr Ettingshausen would be left with the hurt suffered by the first trial.

He relied on Wilkinson v Payne (1791) 4 TR 468; 100 ER 1123.

The answers to these contentions are plain. It would be inconceivable, having reached the opinion that a miscarriage of justice had occurred, that the verdict was indeed "massive" and beyond a rational relationship to the damage suffered, that the Court would leave the miscarriage unattended and the verdict in place to visit its punishment and disapprobation of the conduct at the first trial upon the appellant. The Act forbids that course. Justice, and the performance by this Court of its proper role, refutes such an approach. It is true that the Court has a discretion to order a retrial. But it should exercise that discretion in a principled and lawful way. In this case, that exercise yields only one result.

So far as the disadvantage thereby occasioned to Mr Ettingshausen by the suggested loss of the forensic advantages derived from the way the first trial was conducted, my present view is that to the extent that such hurt occurred, Mr Ettingshausen would be entitled to prove it in the second trial. I express no final view on the matter as the Court was informed that an appeal awaits hearing where the issue is clearly posed for decision. The point would not, in any case, stand as a reason to deny a retrial in this case to cure the miscarriage.

Because I have reached the opinion that the trial miscarried, it is my view that there should be a general order for retrial. I would not, as in Carson, limit the retrial to damages. True, the appellant's case is extremely weak. But it was entitled to have that case determined by the jury without excessive judicial interventions lacking manifest neutrality. It was also entitled to have the jury pass upon the matter complained of without extraneous slides, photographs and projections which were highly prejudicial to it. cf Balenzuela v De Gail and Anor (1959) 101 CLR 226, 236. Every person, natural and corporate, big and small, popular or unpopular, is entitled to come to our courts for a trial which is, and appears to be, manifestly fair and lawful. In a sense, the weaker is the apparent case of the defendant, the more important is scrupulous fairness on the part of the judge in the presence of a jury.


The orders which I would favour are:

1. Appeal allowed;
2. Set aside the judgment entered by Hunt CJ at CL following the verdict of the jury;
3. Order that a retrial of the plaintiff's action against the defendant be had in the Common Law Division of the Supreme Court;
4. Order that the costs of the first trial abide the outcome of the second trial; and
5. Order that the respondent pay the appellant's costs of the appeal but have, in respect thereof, a certificate under the Suitors' Fund Act 1951.

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:

(1) 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;
(2) 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;
(3) 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:

(a) In the photograph the respondent does not appear to be aware of the photographer. He is looking to one side;
(b) None of the other people in the photograph appear to be conscious of the photographer;
(c) 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; (d) 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: (1) Compensation for harm caused to the plaintiff by the wrongful physical act of the defendant ... upon injury to reputation, as in defamation ....(2) 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'. (3) 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:

(1) Appeal allowed;
(2) Set aside the judgment entered by Hunt CJ at CL except as to costs;
(3) Grant a new trial of the plaintiff's action limited to damages;
(4) 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.