Clift v Timms [1997] QCA 61

As a result, there was published in the "Courier-Mail" on 26 April 1989, the following, which constituted the second publication in issue:

" CHARLEVILLE police are investigating a complaint that a police sergeant illegally kept and sold livestock on police property.

Inspector Ray Adams confirmed yesterday that a local grazier had lodged a complaint against Sgt Kel Timms, of Tambo.

The grazier, Mr Colin Clift, alleged Sgt Timms kept five calves next to the police station and 400 sheep on a police paddock about 5 km away.

Section 5(2a) of the Stock Act says every member of the police force `shall be ex officio an honorary (stock) inspector' and `shall have and exercise the powers, functions and duties of an honorary inspector'.

Section 5(1) of the Act says `no inspector, other than an acting inspector, shall either directly or indirectly deal in stock, or act as the agent of an owner of or dealer in stock'.

Mr Clift said yesterday: `I want to know whether permits were issued to shift the stock and whether Sgt Timms had given himself a permit.'

Mr Clift said Sgt Timms had sold wool from his sheep to Elders in Charleville.

`I am also concerned about the potential health risk in keeping the calves next to the police lock-up because they are causing faeces, urine and flies to build up', he said.

In his official complaint, Mr Clift said Sgt Timms `runs approximately 400 sheep for wool and uses the police Falcon to check on their welfare at frequent intervals, a journey of 5km.'

Sgt Timms yesterday said he could not comment on the allegations. "

In his defence, as substantially amended shortly before the trial, the appellant denied that the material published was defamatory and pleaded truth and public benefit. He gave no evidence at the trial, nor was any called on his behalf. The jury was given a set of questions to answer in relation to each publication. The questions were all answered against the appellant; the jury found, in relation to each publication, that what was published was defamatory and untrue and they fixed damages in relation to each publication in the same total sum of $82,500.

It is proposed to deal with the grounds of appeal which were pressed, in order, after making two preliminary observations.

The appellant complains that the trial judge's directions were, in a number of respects, deficient. Experience suggests that defamation trials in this State, particularly trials by jury, commonly result in appeals and, not uncommonly, new trials. The law of defamation tends to be afflicted by uncertain points of substantive law and of procedure, a tendency which may be augmented by the necessity of adjusting the apparent meaning of the relevant sections of the Criminal Code, in at least some respects, to conform to the common law as it was in the 19th Century: see Bellino v. Australian Broadcasting Corporation [1996] HCA 47; (1996) 185 C.L.R. 183 at 215 et seq. In these circumstances, it is particularly desirable that the trial judge's attention should be drawn by counsel, if counsel have been briefed, to any deficiencies in the directions to the jury which are detected by either side. McHugh JA, in Singleton v. Ffrench (1986) 5 N.S.W.L.R. 425 at 440, said that:

"If a party is to rely as a ground of appeal on a misdirection in a summing-up, his counsel must specify at the trial that portion of the summing-up which he requires to be withdrawn. If any further direction is needed, counsel must specify with precision what direction the trial judge should give."

This cannot be intended to prescribe that if a redirection is not sought, an appeal on that ground necessarily fails; there is no "rigid principle of law or practice" precluding the making of an order for a new trial in such cases: Calin v. Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 C.L.R. 33 at 39. But the fact that counsel has apparently been content with the judge's summing-up will ordinarily be a strong reason inclining the Court to hold that the proceedings have not so miscarried as to necessitate a new trial. Here, counsel for the appellant who appeared below successfully applied to the trial judge for two redirections, but made no complaint about any of the supposed mistakes in the summing-up which are presently made grounds of appeal.

The second point is that the jury was invited to and did assess damages under three heads: damages, aggravated damages and exemplary damages; the appellant made no complaint of this course. We can see no reason why the jury should have been obliged to answer a distinct question about aggravated damages. The law is clear that circumstances of various kinds may justify the Court in assessing compensatory damages at a figure higher than that which would have been appropriate without those circumstances; but this does not mean that the increase is a separate category of damage. For example, the circumstances in which the information was published may be such as to increase what would otherwise have been the damages: that the defamation was published spitefully with intent to cause injury, or that it was published carelessly; but these are matters to be taken into account in assessing the sum awarded. The jury is not to be invited to perform the difficult intellectual task of first considering the defamation in an abstract way, disregarding the circumstances in which it was published and the extent of publication, and then separately considering how much should be awarded for those matters. We have not seen any reported example of proceedings in which the jury was required to give their view on damages, in respect of a single publication, under three headings, as was done here. The practice seems to us an undesirable one; it is surely enough to ask the jury for a figure for compensatory damages and one for exemplary damages.

The first ground of appeal is that the judge should not have admitted evidence of certain events which were alleged to have taken place between the publications complained of and the trial. It was also said that the judge did not give proper directions as to the use which could be made of the relevant evidence. As to the first point, it is true that some of the items relied on by the respondent seem to have little weight. But they were material as a whole, as tending to show that the defamation complained of was not a casual act, but part of a campaign of denigration of the respondent and also tending to show that, so far from having any regret about damage done to the respondent, the appellant persisted in attacking him. A more substantial complaint was that relating to the judge's directions on the subject.

The post-publication conduct of a defendant may in a defamation suit be treated as showing that the defamation was persisted in and never retracted: Triggell v. Pheeney [1951] HCA 23; (1951) 82 C.L.R. 497. In this case the principal relevance of the evidence of the events subsequent to the publication was the light it was argued to throw upon the state of the appellant's mind at the time of the defamation complained of; the jury might have used the material in question as supporting an inference that the defamation was actuated by malice: McKenzie v. Mergen Holdings Pty Ltd (1990) 20 N.S.W.L.R. 42, Griffiths v. Queensland Newspapers Pty Ltd [1993] 2 Qd.R. 367 at 371.

According to the appellant's argument, the judge's directions on this topic were lacking in a number of ways; it was said that there should have been a direction that no damages could be awarded at all for the matters in question; a direction "as to the possibility of different weights to be given to these events"; a direction that to award punitive or aggravated damages the jury must be satisfied that the conduct in question was lacking in bona fides, was improper or unjustified; and a direction giving "appropriate guidance as to the standard from which the defendant's conduct may have failed to adhere".

The judge in summing-up on damages made reference to events between publication and trial; his Honour referred to:

" . . . the question of whether the defendant ought to pay more damages still by way of punishment for what he has done, punishment for his behaviour from the time of publication right up to the present time."

Counsel for the appellant made particular complaint about these expressions, as being likely to mislead the jury. Reading what was said as a whole, it does not appear to us likely that the jury was distracted from the task of determining in what sum, in the whole of the circumstances, the respondent should be compensated for the defamation. His Honour emphasised the necessity of relating the subsequent conduct back to the original defamation and not punishing the appellant "separately" for what the judge suggested might be thought by the jury to be "bizarre acts". His Honour went on to explain that (to put it more shortly than his Honour did), the subsequent conduct might show that what was done, was done spitefully. The suggestion that this Court should conclude that the jury might have been misled as to use which might properly be made of the evidence of subsequent events is, of course, not assisted by the circumstance that senior counsel who appeared for the respondent at the trial did not think it necessary to ask the judge to clarify the point.

No doubt more elaborate directions than those which the judge gave might possibly have been given. For example, the judge might, as the appellant submitted, have told the jury that "different weights" might be given to the events in question. But the absence of such a direction cannot possibly vitiate the verdict. Nor, in our view, is the summing-up rendered inadequate by the absence from it of any reference to the necessity of finding, before using subsequent conduct against the appellant, that the conduct in question was not bona fide, improper or unjustified. Directions along these lines may be necessary to avoid the risk that the jury might, for example, treat mere legitimate but vigorous advocacy on behalf of a defendant, as evidence of malice. But that was not in question in the present case; one gathers from the summing-up that the subsequent conduct was relied on as showing a particularly aggressive state of mind, to the point of obsession, on the part of the appellant towards the respondent. Whatever the subsequent conduct showed, it plainly could not be characterised as merely orthodox defence of the appellant's interests and no doubt that was a reason why it may have been thought unnecessary to place that conclusion before the jury as one which they might possibly adopt.

The second ground was that the jury should have been told that the appellant's liability for the second publication, in the "Courier-Mail", was limited to the material therein which was republication of what was stated in the fax.

This ground was not, as we understood the oral argument, pressed in that form; what was complained of before us was that the judge left to the jury the possibility of finding that the appellant was liable for "unreasonable and unexpected" additions to the original publication. The summing-up made it plain that the appellant could not be liable to the extent that the newspaper publication "substantially changed" the original meaning. The most significant addition to what was told by the appellant was that the newspaper made references to what was thought to be relevant legislation. That could hardly be said to be unexpected; but the appellant asserted in effect that because the reporter who apparently prepared the piece for publication in the "Courier-Mail" did not make a correct explanation of the law, a special direction was necessary.

It was held in Cutler v. McPhail [1962] 2 Q.B. 292, that in circumstances of this sort the defendant who gives information to the press must pay damages for publication in the press if it is a natural and probable consequence of what the defendant has done. If the republished material adheres to the sense and substance of the original, the defendant who has supplied the information in the first place is liable for the republication: Halsbury's Laws of England, 4th Ed., Vol. 28 para. 70.

Here, the possibility of holding that the later publication so differed from the content of the fax as to require a conclusion that the appellant was not liable for the publication in the "Courier-Mail" was placed before the jury; whether a conclusion adverse to or favourable to the appellant on that point should be reached was a point properly left to them.

It was argued that the judge erred in making the award of interest which he did. The record shows that counsel who appeared below for the respondent asked for precisely that award of interest; that was done without any objection from opposing counsel. The point which was sought to be taken before us was that there were delays on the part of the respondent, in conducting the suit, of such a character as to make it proper to award interest in a lesser sum.

The difficulty about the argument is that this question of delay and its cause was simply not agitated below; if it had been, information, whether by way of the formal calling of evidence or otherwise, could have been placed before the judge to enable his Honour to determine the matter. We declined to accept an affidavit intended to prove the facts said to be relevant to the exercise of the discretion; this ground must also fail.

The judge was told of offers of settlement which were made, in sums substantially less than were ultimately awarded. On that basis the respondent asked below for costs on a solicitor and client basis. The judge inquired of then counsel for the appellant whether that was resisted and was told it was not. In these circumstances, the complaint that the judge made an error in so awarding costs does not attract much sympathy; nevertheless, it requires consideration.

The point is that presumably, although not expressly, the application for a special order for costs was made in reliance on District Court r. 118, which requires the Court to make an order for plaintiff's costs on a solicitor and client basis, in the circumstances in which it applies, "unless the defendant shows that another order for costs is proper in the circumstances". Rule 118(1) applies:

"Where the plaintiff makes an offer to settle which is not accepted by the defendant and the plaintiff obtains a judgment no less favourable than the offer to settle . . . "

The argument was that r. 118(1) had no application because it could not be shown that the judgment was "no less favourable" than the offers; that was said to be so because the offers included a requirement that an apology be published, an element not quantifiable in monetary terms.

It was contended for the respondent that no appeal against the costs order could be made without leave; no applicable provision requiring that leave be given was referred to. In Colburt v. Beard [1992] 2 Qd.R. 67, Thomas J. expressed the view that s. 92(1) of the District Courts Act 1967, now renumbered as s. 118(1), gives a right of appeal on costs, in cases to which it applies, without leave. In our view that is correct. Further, the concession which was made below does not avail the respondent, because the point taken by the appellant does not depend upon any factual consideration.

An analogous problem was considered by the English Court of Appeal in Roache v. News Group Newspapers Ltd [1992] T.L.R. 551. The successful plaintiff in a defamation suit was awarded the very sum which had been paid into court and it was argued that the plaintiff should therefore pay the defendant's costs after the date of payment in. But the plaintiff contended that no such order should be made because, in addition to damages, he had been granted an injunction restraining republication. As reported, the judgment reads in part as follows:

"A defendant could not ordinarily prevent a plaintiff pursuing his claims, however exaggerated they might be, with the consequent burden of costs in defending them. All he could do to protect himself was to pay into court what was justly due or what the plaintiff might prove likely to recover. If his judgment proved accurate he could look to the plaintiff for reimbursement of the costs of his defence.

The upshot of [certain] decisions . . . was clear.

The judge had to look closely at the facts of the particular case before him and ask: Who, as a matter of substance and reality, had won? Had the plaintiff won anything of value or anything he could not have won without fighting the action through to a finish? Had the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?"

Bingham M.R. went on to hold that if asked, the defendant would undoubtedly have made a statement in open court which "would have been in terms which roundly vindicated [the plaintiff]". It was also held, in effect, that the defendant would have undoubtedly been willing to undertake not to republish, and that the defendants emerged as the "substantial winners".

Although the question considered in that case arose in a context different from the present, the line of reasoning is applicable here; the expression "a judgment no less favourable" in r. 118 does not in our opinion exclude from consideration relief sought other than money claims. For example, if an action was brought relating to the winding up of a partnership, various items of relief might be claimed, including declaratory relief; it would be a matter for the Court's judgment as to whether, an offer to settle having been made, the effect of the judgment overall was "no less favourable" to the plaintiff than the offer.

In the present case there was, as it seems to us, no chance of an apology; however that may be, the respondent has not of course obtained one, under the judgment. But what he has is an award of damages very much higher than the sums sought in the offers to settle, namely $13,000 and $15,000. It seems to us that the result of the judgment, including ample vindication of the respondent's position, was more favourable to the respondent than either offer.

We therefore reject the submission that r. 118 was inapplicable.

It was also argued that costs should have been ordered only from the time of payment in. That is not in fact what r. 118(1) expressly contemplates; perhaps such a restricted order could be made under the concluding words of the subrule. But had the point been raised, it is conceivable that matters relevant to the exercise of the discretion could have been placed before the primary judge. Instead, as we have pointed out, the judge was told that the appellant's counsel could not resist the orders sought. In these circumstances, in our opinion this Court should not go into the question of the proper exercise of discretion under the rule.

As to the point which has been considered, namely whether the rule applies at all, our opinion is as we have said, against the appellant and we would therefore reject this ground.

As we have explained above, the jury was asked separate questions relating to damages for each publication - the fax and the consequent publication in the newspaper. In relation to each, the total of the sums mentioned in the answers to the questions was $82,500. The fifth ground of appeal is to the effect that the judge should have given judgment in the sum of $82,500 only.

It is convenient to begin consideration of this point by referring again to Cutler v. McPhail [1962] 2 Q.B. 292, mentioned above. There, the defendant sent letters defamatory of the plaintiffs; one went to the editor of a magazine. The plaintiffs sued claiming damages for defamation consisting in the letter sent to the editor and the consequent publication in the magazine. The judge held that the plaintiffs had released their cause of action for the publication in the magazine, but the judge said that it had been agreed -

"that the damages in respect of the publication in the journal shall be added to whatever damages the plaintiffs may be awarded in respect of the publication to the editor, should it be necessary so to do." (299)

We confess to finding this puzzling; if, as was held, the plaintiff had no right to recover in respect of their cause of action for the second publication, that in the magazine, it is difficult to understand why the cause of action in respect of the first publication should have included a right to damages in respect of that second publication. In this case, the respondent took the first of the two courses mentioned in Sims v. Wran [1984] 1 N.S.W.L.R. 317 at 320D; that is, the respondent complained separately of each publication and it was no doubt on that basis that a separate set of questions for the jury was prepared in relation to each. It follows that the damages for the defamation consisting in the fax could not have included the additional damage done by the republication. All the respondent was entitled to, in respect of the fax, was the damage directly done by that publication.

This does not mean, however, that the judge was incorrect in adding together the damages assessed by the jury in respect of each publication; it simply throws doubt upon the correctness of the assessment of damages for the first publication. It is evident that it was the second publication and not the first which did the real damage. There is no reason to think that, if the fax sent to the newspaper had received no further publication, any very great damage would have been done. It is convenient to defer further discussion of this point, which is more appropriately dealt with under grounds 8 and 9.

It was argued that in his directions the judge used the expression "public good" instead of "public benefit" and so he did. However, the point is of no consequence because the question of public benefit was relevant only to the defence of truth and public benefit; truth being negated by the jury's verdict, the point becomes academic and so this ground fails.

The argument was that, in his directions to the jury, the trial judge referred to the manner and extent of publication when giving directions as to what imputations might be derived. There is nothing in this ground; what the judge said on the subject was not related to the question of what imputations could be drawn from what was published, but rather to the defence of truth and public benefit. The ground must fail.

The appellant's argument under this heading derives some initial impetus from the circumstance referred to above, that the jury awarded the same amount of damages for the publication to the newspaper as was awarded for the publication by the newspaper; the second publication was much more damaging than the first. Attention must be directed first to the question whether the amounts were fixed by the jury with proper assistance from the trial judge. For this purpose it is not necessary to set the directions given out at length; we shall instead attempt to summarise the main points made by the primary judge.

His Honour said that the first basis of assessment was "ordinary compensatory damages" in relation to which there was no need to prove a particular loss, the damages being "automatic", an ill-chosen word. Next, the judge said, there was another basis, aggravated compensatory damages to compensate the plaintiff for additional hurt or stress which the plaintiff had been forced to suffer "because of the publications themselves and the subsequent events right up to this particular time". In this connection the judge mentioned the conduct of the litigation, conduct at the time of publication including anything indicating malice, the extent of the publication, failure to apologise and patent falsity. His Honour elaborated to some extent on these notions.

Then, his Honour said, the jury had to consider exemplary damages, requiring a focus on (an expression quoted above) "punishment for [the defendant's] behaviour from the time of publication right up to the present time". The judge expanded on this in the way we have already explained and continued by saying, in effect, that the essential question was whether the defendant acted in "conscious wrongdoing" and spitefully.

A number of complaints were made about the directions. One of the principal points taken was that the judge did not really explain what ordinary compensatory damages are; in particular, he did not tell the jury that they are given as vindication and consolation. The argument tended to assume that the failure to mention these topics might have been disadvantageous to the appellant; that is not necessarily so. The assumption was also made that there is a clear distinction between "ordinary compensatory damages" and `aggravated compensatory damages"; that is a proposition which we do not accept. The notion of "aggravated damages" is simply a collection of circumstances which are capable of augmenting the damages which, in their absence, would have been awarded. To illustrate this, the explanation of aggravated damages given by Lord Devlin in Rookes v. Barnard [1964] UKHL 1; [1964] A.C. 1129 at 1221 refers to cases in which the jury -

" . . . can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride."

But the effect of a publication on the plaintiff's feelings has always been a matter to be taken into account in deciding the appropriate measure of compensation.

The essence of the complaint about the directions on compensatory damages is in our opinion merely that the jury were not directed in the terms used by Windeyer J. in Uren v. John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 C.L.R. 118 at 150; but it was not essential for the primary judge to use those expressions. The matter is explained differently in Carson v. John Fairfax & Son Ltd [1993] HCA 31; (1993) 178 C.L.R. 44; the general purposes of damages for defamation are consolation, reparation for harm to reputation, and vindication (per Mason CJ, Deane, Dawson and Gaudron JJ, p. 60). What the judge tried to do, apart from encouraging the jury to take heed of both side's submissions on damages, was to draw attention to and discuss what his Honour regarded as the most important aspects of the evidence relied on by the respondent to aggravate the damages. This was, in our view, a sensible course and not one to which exception could reasonably be taken. As to exemplary damages, it seems unnecessary to add anything to what was said above under the heading "Post-defamation incidents".

In our view the complaint about the directions should be held to fail, so that the question becomes whether the damages were excessive. In relation to each publication the jury assessed what were called "ordinary compensatory damages" at $7,500, aggravated damages at $60,000 and exemplary damages at $15,000.

Some useful information about recent awards is to be gleaned from a publication called the Gazette of Law and Journalism. From that one learns that the highest award in Britain was $1.5M in 1979 (Issue No. 25, p. 11), that the highest award in South Australia was one of $268,000, and the highest jury assessment in Queensland (not an award) was $750,000 in Bellino v. Australian Broadcasting Commission. The publication records no Queensland award in excess of $100,000.

It is a question whether this Court should be influenced by the circumstance that the award here in question appears to be high by local standards and may be the highest award ever made in this State; cf. the comments of Kirby P. (as his Honour then was), referred to in the leading judgment in Carson v. John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 C.L.R. 44 at 54, 62. As we read what was said there, notice may be taken of the size of the challenged verdict compared with other verdicts given in a particular State.

What was said in the newspapers about the respondent was very unflattering and might have inclined readers of the "Courier-Mail" to think that he was behaving improperly, in running sheep in conjunction with his police duties. But there are grades of seriousness in imputations made against public officials and the allegations against the respondent would not necessarily have made a reader regard him as an extremely dishonest person, or otherwise of very bad character. The fact that $60,000 was apportioned to aggravated damages gives support to the notion that the jury must have been satisfied by the evidence that the allegations made by the appellant were purely malicious and intended to do harm, and so augmented the damages to a high figure on that account.

In these circumstances we can see no justification for interfering with the award relating to the second publication, that in the "Courier-Mail". But, accepting that that should not be upset, the award for the first publication stands out by comparison as being indefensible. One does not know how the jury in truth arrived at the conclusion that each publication should attract the same award, or whether they truly contemplated that all the sums they had fixed would be added together to produce a judgment. Looking merely at the proposition that over $80,000 was awarded for the defamatory communication to newspaper staff and disregarding completely, as one must, the subsequent publication by the paper, it seems to us impossible to support the award relating to the first publication.

2. Judgment entered below for the respondent plaintiff reduced to $82,500, as damages in respect of the publication pleaded in paragraph 2 of the statement of claim, together with the sum of $53,955 for interest.

3. Order that there be a new trial of the claim of the respondent plaintiff against the appellant defendant, limited to fixation of the amount of damages to be awarded in respect of the publication pleaded in paragraph 5 of the amended statement of claim.