Connolly v Sunday Times Publishing Co Limited and E W Finn [1908] HCA 69

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of the plaintiff, and what ought to happen to him; so that, technically speaking, I think the plea of truth would not have been an answer to the action, so far as it was based on comment which might or might not have been justified by the cireum- stances. In his summing up the learned Judge mainly dealt with what had been the point most in contest between the parties, whether the frauds alleged with respect to the particular horse "Czarovitch" had been proved. He told the jury that if the libel was not justified, it was a case for substantial damages - even more than substantial damages; that to give nominal damages in such a case would be practically a miscarriage of justice; but he had also pointed out to them that it was for the defendants to prove the whole of their case - to justify all that they had said. The jury having given a verdict for the plaintiff with one shilling damages, application was made to the learned Judge to deprive the plaintiff of his costs. In the course of his judgment on this application he said : - " The justification was as persistent as justification could be, and I can imagine no cireum- stances where the conduct of the action by the counsel for the defendants would not have justified sweeping damages for the plaintiff, except one, namely, where the jury concluded that the defendants were practically justified in the course they had taken. The charges were wide, and the justification " - meaning the attempted justification - "as wide as the charges, and in these circumstances what measure of damage could one shilling be intended to mean? I do not know, unless it meant absolute contempt for the plaintiff's character." In my opinion that, if not the necessary inference, is certainly an inference which might properly be drawn ; and if it was an inference which might be drawn, and if the learned Judge did draw it, then I do not think that it is open to any Court to review his decision on that point. The case of Harnett v. Vise (1) was an action for defamation, in

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LY. must not take upon himself to overrule the verdict of the Tus" jury, and has no right to say that the particular thing complained ay of was not a libel, it being a question of fact for the jury to - determine whether there was de fucto a libel, and whether there Gritiith c.0. was any justification of that libel. So long as the verdict of the jury remains unchallenged the Judge, however he may dissent from the verdict, must not take upon himself to overrule the finding of fact, and say that there was no libel. The verdict therefore is conclusive that there was a libel; and that some, part at least of the libel was not justified. / But the amount o} | damages given by the jury is not to be considered paws, establishing any remaining matter at issue) Every Judge would take it as a material element in considering whether the jurisdic- tion given by Order LY. is to be exercised or not. /But it is the duty of the Judge who tried the case, and the duty of the Court of Appeal also, to consider the whole cireumstances of the case, everything which led to the action, everything which led to the libel, everything in the conduct of the parties which may show that the action was not properly brought in respect of the libel complained of." So here the verdict is conclusive that there was a libel, and that as to some part of it the defence of truth was not established. But that is all. The learned Judges in the Full Court agreed with the learned Judge of first instance. Rooth J. quoted a passage from the judgment of Lord Hsher MLR. in the case of Williams vy. Ward (1). " What, therefore, is the true interpretation of the verdict in this case? The jury must have thought that all the substantial allegations were proved, and that the charges made by the defendant were true except in some small and insignificant particulars. The defendant had properly complained of the conduct of the plaintiff, and had then been forced into expensive litigation, the result of which shows that he was substantially right although he had exceeded the truth in some small infinitesimal way." That is not an authority

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on the other hand, should the jury, in an action for an assault or libel, award the plaintiff an ignominious compensation, it would not follow that as of course the Judge ought to deprive him of his costs, although he might treat it as an indication of the opinion of the jury, in which he coincided, that the character of the plaintiff was worthless, and that the action never ought to have been brought, and was therefore oppressive." In this case, it may be said, in passing, if the charges brought against the plaintiff are true, they must have been true to his knowledge. Accepting the verdict of the jury as conclusive that the plaintiff had been libelled, and therefore was entitled to something by way of damages, yet here was a mass of evidence upon all the charges which the defendants came into Court to sustain as true in sub- stance and in fact, and upon the evidence given in the case, and keeping in view the nature of the libel, it is to my mind incon- ceivable that, if the jury thought the defence had broken down, they could have abstained from giving very heavy damages indeed. For if the whole of the defence was substantially proved, then, of course, the question would be at an end altogether, and there would be a verdict for the defendant; but if, on the other hand, the defence utterly broke down, then inasmuch as the plaintiff's character was impeached only, in effect, as to the transactions embodied in the libel, and stood unimpeached if the charges were false, one cannot reconcile the conduct of the jury with anything in reason unless they gave him very heavy damages. But they have not done that. They have cut down their damages to the lowest point of contempt short of the extreme. It is the duty of the Judge to arrive at some probable explanation of that, since the jury cannot be asked to explain it. What has appeared to him to be correct is this. On reviewing all the facts and the conduct of the parties, and having in his mind, as he must have had, that if the charges

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indictment of the racing conduct of the plaintiff for the twelve months preceding the occurrence in January 1907, which appar- ently was the occasion of the letter. I do not think anyone reading the libel and the evidence can come to any other conclu- sion than that the plaintiff's character was attacked, not only by way of comment on the racing of the horse " Czarovitch," but by statement of facts and instances covering twelve months of the plaintiff's racing career. In regard to each one of these facts and instances, the libel was of the grossest possible character. It rested upon the defendants to establish the truth of each one. If the defendants failed as to that proof in any substantial portion of it, the verdict must have been for the plaintiff. We must assume that the jury acted according to law, and to the directions of the Judge in that particular. They found a verdict for one shilling damages. Here, then, was an action which had involved a trial lasting over eleven days, the costs of a commission to London and Victoria, and an amount expended in out-of-pocket expenses which the plaintiff in his affidavit puts down at £500 over and above solicitors' costs, and after all this expenditure in litigation, the result was one shilling damages. The Judge was placed in the position of having to determine in the course of his duty whether, if he refused to interfere by making this order, he would not be permitting a grave injustice to take place. If he allowed the law to take its course without interference the whole of those costs would have to be paid by the defendants to the person who, after causing all this expensive litigation, had only succeeded in establishing that, in respect of this crushing indictment of his racing conduct grossly libellous if untrue, he was entitled to no more than one shilling damages. If ever there was a case in which a Judge ought to exercise his discretion under the Rule to prevent injustice being done, it was in a case such as this.

Connolly v Sunday Times Publishing Co Limited and E W Finn [1908] HCA 69 - HCA 1908 case summary — Zoe

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Judgment (125 paragraphs)

Cited By (2)