Carson v John Fairfax and Sons Ltd

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

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(Judgment by: Brennan J)

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

Court:

Judges: Mason CJ

Brennan JDeane J
Dawson J
Toohey J
Gaudron J
McHugh J

Subject References:
Defamation

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

Canberra

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Judgment by:
Brennan J

The judgment of the majority sets out the articles written and published by the respective respondents (the defendants in the actions) and the course of the appellant's (plaintiff's) actions for damages for defamation leading to these appeals. The issues for determination on the appeals are whether the sum of $200,000 damages awarded by verdict of the jury in respect of the first article and the sum of $400,000 awarded in respect of the second article were manifestly excessive or whether there was any error in the trial which warrants the setting aside of either verdict. It is convenient to consider the general questions of law relevant to these appeals before considering particular issues in the case and the ultimate question whether the two awards should have been set aside by the New South Wales Court of Appeal ^[F56] (Kirby P and Priestley JA, Mahoney JA dissenting).

The function of an appellate court

In Coyne v. Citizen Finance Ltd. ^[F57] Toohey J collected statements of authority relating to the review of a jury verdict awarding damages for defamation. With the concurrence of Dawson and McHugh JJ, ^[F58] his Honour placed "great emphasis on the special role of the jury and on the difficulties facing a challenge to its verdict". He pointed out that an appellate court will not regard a jury's assessment of damages as invulnerable, though the court will be slow to disturb it. Of course, as Mason CJ and Deane J pointed out in that case, ^[F59] appellate courts are vested with and must exercise the jurisdiction to control jury verdicts in defamation actions ^[F60] and must intervene when the court is convinced that an award is unreasonable. The test of unreasonableness, as Triggell v. Pheeney ^[F61] decides, is that no reasonable jury properly directed could have made the impugned award. Consistently with this approach, Toohey J said in Coyne: ^[F62]

"The real point is, as Lord Hailsham pointed out, that 'the law makes the jury and not the judiciary the constitutional tribunal': Broome v. Cassell and Co. ^[F63] There will be awards by juries that are so large or so small that there is an instinctive reaction by the appellate court that something must have gone wrong in the jury's deliberations. There are some, though not many, reported decisions in which that has been the reaction of the appellate court. But that is not to say that an appellate court should begin with its instinctive reaction and test the award against that. Rather, the court should first look at the evidence, assume that the jury took a view of the evidence most consistent with the verdict it returned, and then ask whether, in the light of that evidence, the award is sustainable. It may be apparent from an award of damages that the jury has failed to take into account some aspect of the case, whether favourable or unfavourable to the plaintiff, about which there was really no dispute, or that the award is clearly punitive when punitive damages are not available. Such a conclusion is one that an appellate court should not reach too readily."

One reason why an appellate court should not reach such a conclusion too readily is that much depends on the importance attached to the intangible factors that a jury is required to consider in assessing damages for defamation. It is for the jury, not for the appellate court, to evaluate the importance of those factors, since s 88 of the Supreme Court Act 1970 (NSW) provides that the issues of fact in an action for defamation shall be tried by a jury. ^[F64] In Broome v. Cassell and Co, ^[F65] Lord Hailsham of St. Marylebone LC said:

"It may very well be that, on the whole, judges, and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matters than judges."

The elements of damages for defamation

It was not open to the jury to award punitive damages in this case. Section 46 of the Defamation Act 1974 (NSW) limits awards to damages for "relevant harm" which, for present purposes, is defined by sub-s.(1) of that section to mean harm suffered by the plaintiff recognized by the common law. Economic loss, if it can be proved, can be taken into account as a proper subject of compensation but it is frequently difficult to prove a link between the defamation and the absence of an economic benefit which the plaintiff otherwise expected to receive. Apart from compensation for economic loss flowing from the unlawful publication of defamatory matter, a plaintiff is entitled to damages because he or she has been injured in reputation. The statement by Windeyer J in Uren v. John Fairfax and Sons Pty Ltd ^[F66] is the starting point:

"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."

The chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation. Lord Radcliffe said in Dingle v. Associated Newspapers Ltd: ^[F67]

"A libel action is fundamentally an action to vindicate a man's reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication."

The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v. Cassell and Co ^[F68] said:

"Not merely can (the plaintiff) recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge."

In considering the appropriateness of a sum to be awarded in vindication of a plaintiff's reputation injured by the publication of defamatory matter in a newspaper, it is necessary to have in mind what Mahoney JA said in the present case: ^[F69]

"(T)he plaintiff has no other way of achieving vindication than by an award of damages. There is no power to force a defendant, by public advertisement or letter or otherwise, to provide a vindication of the plaintiff. In the case of defamation by a journalist or a newspaper, the common organs for vindication are within their control. Damages, and the size of the award, are the only means which ordinarily are available to attract the public or private attention involved in the vindication of the plaintiff's position."

Although damages are awarded to vindicate the plaintiff's reputation, damages are not awarded as compensation for the loss in value of a plaintiff's reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before. ^[F70] In order to achieve the purpose of vindicating reputation, damages for defamation are quantified by reference, inter alia, to what is needed to achieve that purpose: those damages are not quantified by reference to a depreciation in the value of a plaintiff's reputation. Other heads of damage are compensation for the external consequences produced by the publication of the defamation and "a solatium" for the plaintiff's internal hurt, that is, for the complex of reactions that the plaintiff has experienced as the result of the publication and its external consequences. In McCarey v. Associated Newspapers Ltd. (No 2) ^[F71] Diplock LJ said:

"The injuries that (a plaintiff) sustains may be classified under two heads:

(1)

the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and

(2)

the grief or annoyance caused by the defamatory statement to the plaintiff himself.

It is damages under this second head which may be aggravated by the manner in which or the motives with which the statement was made or persisted in."

The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, ^[F72] any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be "shunned or avoided" is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff's injured feelings, ^[F73] including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.

Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. ^[F74] Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant. ^[F75] In Broome v. Cassell and Co. Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said: ^[F76]

"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 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."

Evidence of the defendant's conduct is admissible also in proof of malice. But s 46(3)(b) of the Defamation Act provides that, in New South Wales, damages -

"shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm."

Evidence of the defendant's conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff's injured feelings. ^[F77]

Damages by way of vindication of reputation are not added to the damages assessed under other heads. ^[F78] Although an award of damages operates "as a vindication of the plaintiff to the public and as consolation to him for a wrong done", as Windeyer J said, ^[F79] the dual operation of an award does not require cumulative components of damages. The same sum can operate as vindication, compensation and solatium, for "the amount of a verdict is the product of a mixture of inextricable considerations". ^[F80] The amount assessed under other heads may itself be sufficient in aggregate to provide the vindication required. The extent of the overlap depends on the circumstances. But the award in total must be sufficient to satisfy the purposes for which damages for defamation are awarded: vindication of reputation, compensation for injury to reputation and solatium for injured feelings.

The derivation of a "scale of values"

The factors which are to be evaluated in assessing damages for defamation make it difficult to demonstrate to an appellate court that a jury award is manifestly excessive. Yet the appellate jurisdiction to review an award must be exercised in an appropriate case. The duty to set aside a verdict which is manifestly excessive postulates a capacity in the appellate court to determine the limits of the range of reasonable assessment. Some standard must be applied, albeit the standard is neither articulated nor susceptible of articulation. A standard can be and is derived from general experience of jury awards in defamation cases and from an appreciation of contemporary community values. Obviously, a standard derived from such diffuse sources will be imprecise: so imprecise that it can be quantified only by expression of judicial impression.

A check or cross-reference has been found by some judges in the level of awards in personal injuries cases. ^[F81] Thus, in Coyne Mason CJ and Deane J thought that "it would be quite wrong for an appellate court, entrusted with hearing appeals in both defamation and personal injury cases, to be indifferent to the need to ensure that there was a rational relationship between the scale of values applied in the two classes of case". ^[F82] A similar view had been expressed by Diplock LJ in McCarey v. Associated Newspapers Ltd. (No 2): ^[F83]

"I am convinced that it is not just (and I do not think that it is the law ...) that in equating incommensurables when a man's reputation has been injured the scale of values to be applied bears no relation whatever to the scale of values to be applied when equating those other incommensurables, money and physical injuries. I do not believe that the law today is more jealous of a man's reputation than of his life or limb. That is the scale of values of the duel. Of course, the injuries in the two kinds of case are very different, but each has as its main consequences pain or grief, annoyance or unhappiness, to the plaintiff."

However, in Coyne Toohey J rejected the proposition that the adequacy of awards in one type of case might be tested by reference to awards in the other. ^[F84] I respectfully agree. An attempt to compare awards made in respect of such disparate heads of damage is more likely to confuse than to correct. The issue is not whether the law is more jealous of reputation than of life and limb. As we have seen, damages for defamation are not given for damage to reputation in the way that damages are given for damage to life and limb. If there were any true comparison between the two classes of case, it would be necessary to evaluate the overall depreciation in value of reputation caused by successive defamations and to limit the damages awarded against a later tortfeasor by reason of the damage earlier inflicted on the plaintiff's reputation. When a plaintiff in a personal injuries case has been partially incapacitated by an earlier tortfeasor, the later tortfeasor's liability is assessed on the basis that the plaintiff is already partially incapacitated. ^[F85] But that is not the law governing the assessment of damages for defamation. ^[F86] And it would be a mistake to regard the consequences of the injury inflicted in the two classes of case as being comparable. The point is made by Lord Donaldson M.R. in Sutcliffe v. Pressdram Ltd: ^[F87]

"In relation to claims for personal injury the law calls for compensation to be assessed by reference to the pain and suffering caused by the injury itself. In cases of libel, the law calls for compensation to be assessed by reference not only to the pain and suffering caused to the plaintiff by the publication of the libel, but also to the extent to which this pain and suffering is aggravated, or reduced, by the defendant's subsequent conduct. It also requires account to be taken of the plaintiff's need to receive an award which will vindicate his or her reputation in the eyes of the public."

Moreover, the proposition that awards of general damages in personal injury cases can provide legitimate guidance to an appellate court reviewing a jury award of damages for defamation assumes that personal injury awards by judges are a more correct measure of compensation than defamation awards by juries. The assumption, if not ill founded, cannot be demonstrated. Judges have not always made an adequate assessment of damages for personal injuries. Until restrained by statutory capping, personal injury awards by judges have been forced upwards as fallacies which produced under-compensation have been exposed and as actuarial evidence has given courts a more accurate appreciation of the measure of economic loss. MacKinnon LJ noted in Groom v. Crocker ^[F88] "the frequent niggardliness of verdicts in cases of personal injury and the invariable profuseness in claims for defamation". If personal injury awards were to be treated as informing the standard for reviewing jury awards of damages for defamation, an appellate court reviewing such an award would be required "to look into the minds of judges, who are not, at any rate for this purpose, ordinary sensible men and women": per Nourse LJ in Sutcliffe v. Pressdram Ltd. ^[F89] And a trial judge would have to give to a jury in a defamation case an indication of an appropriate award for general damages for personal injuries in a case which, in the judge's opinion , was in some way comparable with the defamation in issue. That course would be, in my opinion, wholly impracticable.

There is a radical difference between the heads of damage in defamation and personal injury cases. And there is a difference - or at least there often appears to be a difference - between the level of damages awarded by judges and the level of damages awarded by juries. ^[F90] These differences preclude the use of personal injury awards for comparison with jury awards of damages for defamation whether or not it is safe to assume that judicial assessments of damages for personal injury are sound. As Lord Hailsham pointed out in Broome v. Cassell and Co, ^[F91] a statutory provision directing trial by jury of issues of fact in defamation claims imports jury evaluation, not judicial evaluation, of that complex of factors in respect of which damages for defamation are awarded.

In my opinion, it is wrong for an appellate court to form a normative standard for reviewing jury assessments of damages for defamation by reference to awards in personal injury cases. The normative standard adopted by an appellate court in order to review a jury assessment in a defamation case must be derived from the court's own experience of jury awards in defamation actions and from contemporary community standards relating both to the subject and circumstances of the defamation and to the significance of sums of money. In forming that view, the court is more likely to be misled than assisted by a contemplation of awards in cases of personal injury.

The gravity of the defamatory matter in the two publications

Section 9(2) of the Defamation Act provides that a separate cause of action arises in respect of every publication to a recipient of any matter which makes an imputation defamatory of the plaintiff. A separate cause of action thus arises in respect of each defamatory imputation on publication of the defamatory matter to each recipient. The imputations which went to the jury were as follows:

(i)

imputations made by the first article -

(a)

the plaintiff wrongly attempted to intimidate Dr Metcalf by threatening to sue him for defamation in respect of a medical report written by him; and

(b)

the plaintiff wrongly brought defamation proceedings in his own name against Mr Arthur Carney, a solicitor, for the sole purpose of causing Mr Carney to forthwith cease to act for his client, Mr Rajski;

(ii)

imputations made by the second article -

(a)

the plaintiff was wrongfully party to a conspiracy with Mr Moshe Yerushalmy to obstruct the course of justice by evading service of criminal process; and

(b)

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

The jury found the imputations pleaded in respect of the first article and the first imputation pleaded in respect of the second article. The jury were entitled to regard each article as extremely damaging and hurtful to a solicitor who is prominent and of high professional repute and to assess damages in respect of the publication of each article accordingly. The then president of the Law Society of New South Wales, Mr Thornton, read the first article as "a litany of the worst sort of conduct that a solicitor could be charged with". The second article conveyed an imputation of criminal conduct. In assessing damages, the jury were concededly entitled to regard as circumstances of aggravation five matters which the learned trial judge identified as follows:

"The first matter of aggravation was, according to Mr Hughes, the additional hurt caused to the plaintiff by reason of the fact that each of the articles sued upon was published without any prior attempt to enquire of the plaintiff as to the subject matter of the article.

The second matter was that the imputations which were claimed were on the evidence before the court false in that they were founded upon facts which were not facts, namely, that the plaintiff had threatened to sue Doctor Metcalf to intimidate him and secondly, that the plaintiff had sued Mr Carney, 'to knock Mr Carney out of the case'.

The third matter of aggravation claimed was (a) that there was documentary evidence that the jury could accept that Mr Slee knew that the imputations were false because those documents reveal that Doctor Metcalf had made no complaint against the plaintiff and that the threat to sue for defamation emanated not from Mr Carson, but from his firm and (b) that the plaintiff had never personally sued Mr Carney.

The fourth matter of aggravation was put alternatively to the third, namely, that Mr Slee was recklessly indifferent to whether the imputations were true or false for reasons similar to those set out in the third head.

The fifth matter of aggravation claimed was the refusal or failure of the defendants to make a proper apology ." Two other matters of aggravation were allowed to go to the jury after contest which his Honour identified as the 7th and 8th matters of aggravation. They were as follows :

"the defendants, through their counsel, by the cross-examination of the plaintiff were suggesting impropriety in the signing of the default judgment by the plaintiff in respect of an action brought against Doctor Rajski.

... the cross-examination of the plaintiff in which there was a suggestion put to the plaintiff that he had an improper motive in bringing the proceedings for defamation, the subject of the two actions before the court."

The imputations found by the jury and the circumstances of aggravation which went to the jury and which the jury were entitled to act upon clearly show that the attack made on the professional conduct of the plaintiff was extremely serious. The "relevant harm" caused by both articles was exacerbated by the conduct of the trial. The jury were entitled to regard the second article as making not only the most damaging imputation, namely, a criminal conspiracy, but as causing more substantial injury to the plaintiff than the first article because the first article had made the plaintiff more susceptible to injury by the second. Mahoney JA rightly said that the effect of any damage to the plaintiff's reputation was apt to be great.

Vindication of the plaintiff's reputation might properly have been regarded by the jury as the dominant factor to be borne in mind in making the assessments of damages in respect of each publication. The jury might well have thought that substantial sums were needed to dispel any suspicion of professional misconduct in the respects imputed, bearing in mind that damages in order to vindicate must be large enough to ensure that the plaintiff does not suffer injury in the future from any lingering cloud left hanging over the plaintiff's reputation. There is no further allowance made for future injury to reputation. As McHugh JA said in John Fairfax and Sons Ltd. v. Kelly: ^[F92]

"Since, ex hypothesi, and leaving aside contemptuous awards, the verdict must be taken to be sufficiently large to vindicate him in the future (Cassell and Co. Ltd. v. Broome) ^[F93] he ought not be treated as suffering any future loss so far as injury to his reputation is concerned."

If the damages assessed in respect of the two articles were awarded chiefly in vindication of the plaintiff's reputation, the limits of reasonable compensation for the plaintiff's hurt feelings are not of critical significance .

In the light of these general observations, I turn to a consideration of some more particular issues that were argued on the appeals.

The plaintiff's willingness to accept an apology

The defendants sought to place some reliance on the plaintiff's evidence that he was willing to accept an apology after the publication of the first article, an attitude which he changed when he became satisfied that the article had done substantial damage. The fact that the plaintiff was at first willing to accept an apology was conceded to be relevant to his perception of the hurt he suffered, but, if the awards are to be sustained, that must be on the ground that the jury were entitled to award large sums as vindication of the plaintiff's reputation. The plaintiff's initial willingness to accept an apology does not in itself provide a foundation for setting aside the jury's verdict on the first article. To the contrary, the circumstances might have been regarded as aggravating the damage done by the first article. The jury were furnished with the correspondence relating to the publication of an apology which shows that the apology sought by the plaintiff was not forthcoming and that the only apology that was published appeared on 22 December 1987 - 8 months after publication of the defamation - in terms of the defendant's devising:

"It has been pointed out to us that some persons read the article as conveying that Mr Carson personally commenced proceedings against Mr Carney in order to deter Mr Carney from acting as the solicitor for Dr Rajski. That was not so. Mr Carson did not personally sue Mr Carney. It was not the intention of the Herald to convey that the allegations made by Dr Rajski were other than allegations made in the course of legal proceedings not yet heard and determined, or to impugn Mr Carson's professional integrity.

We apologise for the errors and any embarrassment suffered by Mr Carson."

The defendants sought to explain the failure to publish an earlier apology by pointing to the plaintiff's pleading of two imputations that were subsequently withdrawn. But the jury were entitled to discount that explanation and to assess damages in respect of the first article on the footing that, by failing or refusing to publish any retraction or apology until 22 December 1987, and then only in guarded terms, the defendants were continuing to assert or not fully to withdraw the imputations found to have existed in the first article. The direction given to the jury on this aspect of the case was not the subject of an application for redirection .

Inflammatory comment by plaintiff's counsel

During the course of his final address to the jury the plaintiff's counsel made the following comment:

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

The trial judge said that he would direct the jury to correct the impact of counsel's statement but his direction did not expressly deal with the statement. His Honour said:

"Remember when you are considering damages one very important point, that whether you are concerned with damages for the damage to the reputation, that is vindication, consolation or compensation for the injury to his reputation or whether you are concerned with damages for the hurt to his feelings, you must not include in your verdict any element by way of punishment of the defendant. That is, the paper or Mr Slee. Punishment is no part of any damages. They are intended to be compensatory in the sense that I have indicated, not by way of punishment. You don't, when you are considering, and if you allow an amount by way of aggravation, bring in a separate amount for aggravation of damages. It is included in the amount of damages which you award."

In the circumstances, this was an appropriate direction to sterilize any misconception arising from the submission without highlighting the submission itself .

In the context of a strongly contested trial, sensitivity about the submissions of counsel in the course of a jury address should not be too sharpened. It must be an extreme case, as in Australian Consolidated Press v. Uren, ^[F94] in which counsel's address can be seen to have caused a miscarriage of justice. In this case, it was open to counsel for the plaintiff properly to submit that the articles were judgmental in their tone and content, that the defendants' conduct as alleged in the first five circumstances of aggravation was haughty and that their counsel's conduct in cross-examination of the plaintiff was - to put it no higher - disdainful of the plaintiff's reputation. To submit that defendants who take the high ground of criticism and unjustifiably impute professional misconduct against a plaintiff practising his profession should be "brought down" when their counsel imply further professional misconduct in cross-examination is not a covert invitation to the jury to award punitive damages. It is to invite the jury to dismiss the criticism and the imputations made against the plaintiff, to appreciate fully the plaintiff's hurt and to treat the cross-examination as a circumstance of aggravation to be taken into account in awarding damages in vindication, as compensation and as solatium.

Counsel's allegations of impropriety and improper motive

The defendants submitted in this Court that the learned trial judge should have directed the jury that conduct of defendants' counsel in cross-examining the plaintiff could be regarded as a circumstance of aggravation only if the jury were satisfied that counsel had acted improperly, unjustifiably or without bona fides. Counsel for the defendants had put to the jury that the plaintiff's entering of a default judgment against Dr Rajski was improper and that his motive for bringing the present proceedings was to stop Mr Slee from reporting on the litigation involving Dr Rajski on the one hand and the plaintiff or his clients on the other. These were the matters alleged in the 7th and 8th matters of aggravation. It was submitted that such a direction was required by Singleton v. French ^[F95] and that the trial miscarried for want of such a direction. However, counsel at the trial did not formulate the precise direction sought, though McHugh JA in Singleton v. French pointed out ^[F96] that "counsel must specify with precision what direction the trial judge should give". The jury were ready with their verdict before the application for redirections was complete, but it was open to counsel for the defendants to insist on redirections before the jury's verdict was taken. The trial did not miscarry because of an absence of a direction in this respect. The jury were entitled to regard the cross-examination of the plaintiff by counsel for the defendants as containing further assertions of professional impropriety on the part of the plaintiff. There was evidence to support that view. These assertions of professional impropriety were not directed to any defence that was open, nor to any issue of damages. They were capable of being regarded as adding to the sting of the imputations of professional misconduct conveyed by the articles. It follows, of course, that the 7th and 8th matters of aggravation were rightly left to the jury's consideration .

In the light of these observations, I turn to consider the question whether the majority judgment of the Court of Appeal should stand or whether the minority opinion of Mahoney JA, who would have dismissed the appeals, should prevail.

The judgments in the Court of Appeal

It is not necessary to review the factors which the jury were entitled to take into account in making their assessments in respect of the two defamatory articles. Those factors are identified in the judgment of Mahoney JA and need not be repeated. His Honour has approached the appeals against the jury's assessments in conformity with the approach stated by Toohey J who spoke for the majority of this Court in Coyne: "first look at the evidence, assume that the jury took a view of the evidence most consistent with the verdict it returned, and then ask whether, in the light of that evidence, the award is sustainable". ^[F97] For the reasons I have already given, the question whether the award is sustainable depends not on a judge's evaluation of this factor or that, but on the evaluation which a reasonable jury might attribute to the factors relevant to the assessment. His Honour, having stated the objectives of an award to be "compensation for the hurt; reparation for the harm; and vindication", ^[F98] did not find either award in the present case to be "excessive or beyond what was appropriate to achieve those objectives". ^[F99]

Kirby P took a contrary view, holding that the jury's verdict "was substantially punitive". ^[F100] In coming to this conclusion, his Honour accepted that the jury were entitled to conclude that the imputations in each of the articles were seriously defamatory of Mr Carson and were entitled to take a very serious view of the way the trial was conducted. Although the case was one "for a most substantial verdict", his Honour said "it was not the case for the largest verdict for general damages in defamation in the history of this State and of this country". ^[F101] If allowance is made for changes in the value of money, it may be doubted whether the aggregate of the two awards in this case is more than has hitherto been awarded. However that may be, comparison between the present case and other cases is necessarily difficult and, by itself, this consideration would not have warranted an interference with the jury's awards. But I do not understand his Honour to have referred to the comparative magnitude of the total sum awarded as more than a pointer to the excessive character of that sum.

His Honour's approach was attacked on another ground, namely, that he did not consider whether the two awards were each sustainable but rather whether the aggregate award of $600,000 was sustainable. Although his reference to "the largest verdict", to the return that might be obtained from its investment and its comparison with awards in other classes of case suggests that his Honour was testing the excessiveness of the totality rather than the excessiveness of each of the awards in respect of the two articles , a reading of the whole of the judgment reveals that his Honour was aware that the question for determination was whether each of the sums awarded was sustainable.

However, in coming to the conclusion that the awards were excessive and were "substantially punitive", his Honour's reasons suggest that impermissible considerations influenced the conclusion. His Honour thought ^[F102] it was "worth remembering" that a 1981 jury verdict of $400,000 for exemplary damages for trespass had been reduced on appeal to $150,000 ^[F103] and that it was "perhaps worth recalling" that more recently a jury verdict of $250,000 for general damages for effective total blindness caused by negligent hospital care was outside "current general ideas of fairness and moderation". ^[F104] His Honour noted ^[F105] what he called "words of warning" offered by Toohey J in Coyne about comparing defamation awards with awards in personal injury cases. Toohey J was not warning; he was stating a proposition to govern the review of awards in defamation cases. Although Kirby P said that he considered it "safer not to venture any precise comparisons with personal injury cases", it appears nevertheless that his Honour's conclusion was affected by the awards in the cases to which he drew attention. He was comparing the incomparable and thereby deriving a normative standard from an impermissible source.

Another factor which may have affected his Honour's conclusion was his view that the plaintiff's counsel's submission to the jury that "(i)t is about time this defendant was brought down to the ground" was "a call to inflict punitive damages". ^[F106] His Honour referred to counsel's submission as a possible contribution to "the jury's error in appreciating its proper function" but his Honour's concern about the effect of this advocacy seems to have been in mind when he came to the conclusion that the award "was substantially punitive". In dealing with the impermissibility of awarding exemplary or punitive damages, his Honour quoted from the submission when he observed that it would be wrong for a jury "to 'bring (the publisher) down to the ground' because it had become overweening in relation to other persons defamed". ^[F107] In my opinion, the criticism which his Honour made of counsel's submission is, for reasons earlier stated, ill founded.

The considerations to which I have referred as affecting the conclusion of Kirby P deprive his Honour's view of the weight which would otherwise be attributed to the opinion of a judge of an appellate court charged with the primary responsibility of determining appeals against jury verdicts in defamation actions. As Priestley JA agreed generally with the President's reasons and conclusions, ^[F108] the majority view gains no further strength. Indeed, Priestley JA said of the award in respect of the first article that it would "fall into that area where an appellate court, despite forming a view different from that of the jury, should not interfere because the difference between the court's view and what the jury did is not so great as to justify saying the jury figure had passed into the realm of the unsupportably unreasonable". ^[F109] But his Honour held that the award in respect of the second article was unsupportable and held that both verdicts should be set aside because the "possibility must be very real that the jury, when fixing the figure for the earlier article, were influenced by the same factor that made them go wrong in their award on the later one". ^[F110] It must be said that, even if the award in respect of the later article were excessive, it was not demonstrable that the error was common to both awards. More significantly, his Honour thought it was "relevant to say however that the second article capable in law as I accept it is of conveying the alleged imputation, does not in fact convey it to me". ^[F111] But, as the jury's verdict testifies, the second article did convey that imputation to the jury. His Honour did not explain what the relevance of his observation was to his conclusion that the award in respect of the second article was excessive. Thus, in both the majority judgments there are indicia that their Honours were misled in their approach to the function they were called on to perform. By comparison, the approach of Mahoney JA does not reveal any failure to appreciate the need to defer to the jury's evaluation of the relevant factors provided only that their assessment is within reasonable limits.

The awards are indeed very high. But it is beyond contest that the defamations were serious attacks on the plaintiff's reputation and the matters in aggravation justified awards at the higher end of the scale of compensatory damages. Bearing in mind the factors which Mahoney JA identified as relevant to the assessments to be made in this case and conscious that the evaluation of those factors was a function for the jury, I am unable to accept the conclusion of the majority of the Court of Appeal that the verdicts were excessive and should be set aside. The conclusion of Mahoney JA, consistently with the principles I have stated, should be accepted. I would therefore allow the appeals, set aside the judgment of the Court of Appeal and dismiss the defendants' appeals to that Court. The defendants' application for special leave to appeal from the decision of Hunt J dismissing an application to strike out the imputations pleaded on the second article was dismissed in the course of the hearing.

In the light of the conclusion now reached, the application for special leave to cross-appeal against the limiting of the retrial ordered by the Court of Appeal must be dismissed.