Gayle v Fairfax Media Publications Pty Ltd [2018] NSWSC 1838 | Case summary

Damages

The plaintiff sues on 28 articles (tendered collectively as Exhibit A). While that in itself indicates the wide scope of the defamation, there is a substantial measure of overlap between the articles. In summary, there are five separate articles spread across the print and electronic editions of the three newspapers over five days.
The articles were published in the wake of a strong public response to Mr Gayle's conduct during an on-field interview with a female journalist, Ms Mel McLaughlin, in early 2016. The burden of the media reporting surrounding that incident was that Mr Gayle had made inappropriate remarks to Ms McLaughlin and had made her feel uncomfortable.
The articles sued on in these proceedings were published shortly after that incident but concerned events alleged to have occurred almost a year earlier. The first article (as it appeared in The Sydney Morning Herald) appeared under the headline "Exposed" with a subheading "as besieged West Indian cricketer Chris Gayle faces a backlash over his comments to a TV reporter, allegations have surfaced of indecent exposure during the World Cup. Herald exclusive".
The article opened as follows: "Cricketer Chris Gayle, already facing a barrage of criticism over inappropriate remarks to a television reporter, allegedly indecently exposed himself to a woman during a Sydney training session at last year's World Cup. The Australian woman, who was working around the West Indies team in Sydney, has detailed the incident to Fairfax Media. In the course of her work she entered the team dressing room to get a sandwich as she hadn't eaten all day, thinking the players were on the field training. Instead, she found Gayle in the room with one other player. Gayle was wrapped in a towel, which she says he pulled down to partly expose his genitals to her while saying to her "Are you looking for this?" The new revelations follow his controversial live interview with Channel Ten's Mel McLaughlin on Monday night."
The same article appeared under slightly different headlines and illustrated by different photographs in each of the three newspapers, both in print and online (tabs 1, 2, 10, 11, 20 and 21 of Exhibit A). It was posted to the newspapers' websites on the afternoon of 5 January 2016 and appeared in the print editions the following day.
The second article appeared under the headline "Gayle faces prospect of expulsion from BBL". It reported that Mr Gayle stood to be "thrown out of the Big Bash League for good" if the allegation that he had exposed himself was verified. The article introduced the new allegation by reference to the Mel McLaughlin incident, saying: "The fallout from the Jamaican's sleazy on air comments to Network Ten broadcaster Mel McLaughlin continued on Wednesday, with Cricket Australia officials focusing their attention on additional claims, revealed by Fairfax media, that date back to last February when the West Indies were in Sydney preparing for the World Cup."
The article continued by repeating the allegation that Mr Gayle had exposed himself to a woman when she went into the dressing room to get a sandwich. The article speculated that, if the matter was "properly investigated" and misconduct proven, "it could potentially affect his participation in the ICC world 2020 event in India in March". That article was also published (again with minor editorial changes) in each of the three newspapers in print and online (tabs 3, 4, 12, 13, 22 and 23 of Exhibit A). It was posted to the websites on the afternoon of 6 January 2016, appearing in the print editions on 7 January 2016.
The third article was published under the headline "Melbourne Renegades boss calls fresh Chris Gayle allegations 'opportunistic'". As the headline suggests, the article reported that the allegation of indecent exposure had been dismissed as "opportunistic" by the Melbourne Renegades boss, Stuart Coventry, and that the club was "standing by its handling of the controversial star". The balance of the article continued the analysis of the Mel McLaughlin incident and its aftermath. That article appeared in four separate publications at tabs 5, 14, 15 and 24 of Exhibit A. It did not appear in print in The Sydney Morning Herald or The Canberra Times. It was posted on the evening of 6 January 2016 on the newspapers' websites and appeared in the print editions on 7 January 2016.
The fourth article reported Mr Gayle's intention to commence these proceedings. It appeared under the headline "Gayle engages defamation lawyer on exposure allegations". The article opened with further reference to the controversial interview with Mel McLaughlin and the fact that Mr Gayle was fined $10,000 following that incident. It continued: "Fairfax Media subsequently published allegations about a separate incident in the team dressing room at last year's World Cup. The woman was working around the West Indies team in Sydney and the incident is believed to have been raised with team management at the time by another member of staff."
It reported that Mr Gayle had engaged defamation specialist, Mark O'Brien, who had stated that Mr Gayle strongly denied the exposure allegation and would be commencing proceedings for defamation. That article appeared in each newspaper in print and online (tabs 6, 7, 16, 17, 25 and 26 of Exhibit A). It was posted to the websites on 7 January 2016 and appeared in the print editions on 8 January 2016.
The final article appeared under the headline "email confirms complaint against Windies stars". It reported: "An email from West Indies team manager Richie Richardson has emerged confirming team management was aware of misbehaviour from players towards a woman working with the team during the World Cup."
The article noted that the email did not name "the controversial Windies and Melbourne Renegades batsman Chris Gayle" but said "it does confirm concerns were raised about the treatment of a woman working around the team in Sydney."
The article reported a remark by former test captain Ian Chappell that he would have "no problems should Cricket Australia direct all eight franchises never to sign Gayle again". Mr Chappell was reported to have added "and I also wouldn't have a problem if Cricket Australia said to the ICC 'what we're doing should be worldwide.'"
The article further reported that there had been considerable support for Mr Gayle from various quarters, particularly on Twitter where the hashtag #standbyGayle was reported to have been trending. The article said that Mr Gayle's supporters believed he had been harshly treated and was "a victim of political correctness". That article was repeated under slightly different headlines in each newspaper in print and online (tabs 8, 9, 18, 19, 27 and 28 of Exhibit A), appearing on the websites on 8 January 2016 and in print on 9 January 2016.
As already noted, the defendants admitted that each of the imputations specified by Mr Gayle was conveyed and the jury rejected the defences. There was some variation between the causes of action as to which articles carried which imputations but I do not think it is necessary to set out the detail of those differences (they are set out at paragraph 3 of the plaintiffs written submissions).
Mr Gayle claims general damages for non-economic loss, including aggravated damages. There is no claim for economic loss.
The principles to be applied in assessing general compensatory damages for defamation are well understood and were not the subject of any dispute in these proceedings. The purposes of an award of damages for defamation are "consolation for the personal distress and hurt caused to [the plaintiff] by the publication, reparation for the harm done to [the plaintiffs] personal and (if relevant) business reputation and vindication of [the plaintiffs] reputation": Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 60 per Mason CJ, Deane J, Dawson and Gaudron JJ.
In assessing the amount that should be awarded for those purposes, the task for the Court is to identify all of the relevant factors, to assess their significance and to make an evaluative judgment as to the appropriate award. That assessment is guided by the provisions of the Defamation Act, particularly including the obligation to ensure that there is an appropriate and rational relationship between the harm sustained and the amount of damages awarded (s 34 of the Defamation Act) and the existence of a statutory maximum damages amount, currently $398,500 (s 35 of the Act; Gazette No 66 of 29.6.2018, p 3970). The proportionality required by s 34 should reflect the high value accorded to a person's reputation: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 at [271] per McColl JA; Spigelman CJ and Beazley JA (as her Honour then was) agreeing at [1] and [2].
As already noted, the jury found that the defendants were actuated by malice at the time of publication. Section 36 of the Defamation Act provides that the Court is to disregard the malice or other state of mind of the defendant at the time of publication except to the extent that it affects the harm sustained by the plaintiff. The evidence of malice came principally in the defendants' case, coinciding with their evidence as to the reasonableness of their conduct for the purpose of the defence of qualified privilege. The plaintiff gave no evidence in reply and, in particular, no evidence that the hurt and harm he suffered was increased as a result of the matters canvassed during the defendants' case. Accordingly, in accordance with s 36, I have disregarded the defendants' malice in my assessment of damages.
An important consideration in the present case is the mitigating factor identified in s 38(1 )(d) of the Defamation Act, which permits a defendant to rely on the fact that the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter in question in the proceedings. The plaintiff accepted that, in the present case, where he sues three separate entities in respect of five separate articles each published by each entity, the Court must be astute to avoid double (or triple) compensation.
The defendants submitted that the correct approach in the circumstances is for the Court to assess damages "holistically as though there were a single dispute involving the publication of a single series of articles within three geographical areas". It was further submitted that each "article group" is analogous to an article published in a national newspaper (or, more accurately, a newspaper with circulation occurring overwhelmingly within New South Wales, Victoria and the ACT). Subject to one potential complexity, there is much to be said for that approach in circumstances where articles are syndicated over several newspapers within the same national jurisdiction.
The complexity relates to the fact that there are three separate proceedings. As noted by the plaintiff, s 39 of the Defamation Act allows the Court to assess damages for all five causes of action in a single sum as against each individual defendant. That simplifies the task to some extent, there being five separate causes of action against each. However, subject to any agreement between the parties, the juridical requirement is that there be a separate verdict in each proceeding. On the strength of the defendants' submission seeking a "holistic" assessment, I propose to assess damages for all five causes of action against all three defendants in a single sum. However, before orders are entered, I will hear the parties as to whether I am asked to apportion that sum as between the defendants so as to be able to enter a differentiated verdict against each.
Finally on the subject of the holistic approach, I consider it appropriate in the interests of transparency to indicate the amount that would have been awarded as a single sum (as allowed by s 39) as against each defendant before taking into account the mitigating impact of the claims against the other defendants (recognised in s38(1)(d)). It will be seen that the sum of the individual indicative amounts is significantly higher than the total amount to be awarded to Mr Gayle, reflecting the very substantial measure of overlap between the many publications sued on but also recognising the breadth and scope of what amounted to a sustained attack on Mr Gayle over several days.
The evidence on hurt feelings was surprisingly compelling. A particular source of hurt for Mr Gayle was the fact that there were calls for him to be banned from international cricket. He said: "I felt devastated at that particular time, you know, based on what was actually going on with the particular interview, and then for someone to actually come and accuse me of this now, is like the one to actually, you know, bring me down to an extent and then at that particular time when I watched the TV or the talk show, when they going to say Chris Gayle should be banned from the game, you know, this is my livelihood and then for someone to come and accuse me for doing such thing, which I didn't do, and then to - to actually be able to say I should be banned, it was - that was the most thing - hurtful thing I've ever actually come across in my entire life. I mean, I've been through differences before, I've could have sued before, but this one - you know, I didn't plan to sleep -1 didn't plan to sleep well with this one. You know, this is what actually, you know, I decided, listen, this is one case I have to fight because this is a serious allegation pertaining to me and it will actually ruin me, and I think that's actually done already, you know, to an extent, and this particular time I just want to make sure everybody know this didn't happen. I want to clear my name."
The defendants accepted that Mr Gayle was hurt by the publication of the articles and that the imputations are serious. However, they also submitted that the imputations are not at the most serious end of the spectrum. I agree. It was submitted on behalf of Mr Gayle that each imputation "probably would have constituted criminal conduct". However, the Court must be astute not to compensate the plaintiff for an imputation not pleaded. The burden of the imputations is nonetheless serious. As submitted on behalf of Mr Gayle, it is significant that the imputations relate to his behaviour in the workplace with a work colleague. The articles attributed him with intentionally acting indecently towards her. I accept that the imputations had particular resonance in cricketing circles, among fans, coaches, officials and players. The defamation went to the heart of Mr Gayle's professional life as a respected batsman.
In light of the jury's verdict, I am required to assess damages on the basis that the allegation of indecent exposure was not true and that the attribution of such conduct was very damaging to Mr Gayle's reputation.
There was evidence from a professional cricket coach, Mr Donovan Miller, as to Mr Gayle's good reputation. Mr Miller works with international players from all over the world. He said of Mr Gayle, "I think everyone loves him, everyone loved Mr Gayle, a big, big figurehead, a big role model to young cricketers." Mr Miller gave evidence that the allegation had caused actual harm to Mr Gayle's reputation, amongst cricket coaches at least, suggesting that his selection for "a high performance team" had become more controversial, because of his reputation, since the publication of these allegations. I have approached that evidence with caution because the present allegations were, in most of the articles, inextricably linked with the public reaction to the Mel McLaughlin incident, which generated considerable criticism of Mr Gayle regarding his attitude to women. I would nevertheless accept that the principal harm was done to Mr Gayle's reputation by the present allegation, having regard to its significantly greater seriousness.
I am satisfied that the articles were read very widely. The defendants made admissions as to the net circulation and estimated readership of each newspaper on the relevant dates and as to the number of "unique visitors" on each of the relevant webpages (Exhibit B). As the articles were published over several days the estimated readership figures will include substantial overlap (the same readers on different days). Further, I would not assume that everyone who saw the paper read the articles concerning Mr Gayle, although I accept that a significant proportion probably did, since the articles reported a sensational allegation. It was submitted by Mr Gayle that the allegations would have been read by "millions" of people in Australia. Taking account of overlap, I do not think I can be satisfied that was the case but I accept that the defamatory sting of the articles would certainly have reached hundreds of thousands of readers and probably more than a million, particularly in the two major cities, Sydney and Melbourne. The circulation in Canberra was considerably smaller.
I am also satisfied that the allegation gained some currency around the world, as established by additional material in Exhibit B and by Mr Gayle's own evidence. He recounted conversations with a number of people in a number of different countries and said that the story "went viral". Having regard to his high profile and popularity as an international cricketer, the nature of the allegation and the fascination of humankind with all things salacious, particularly in relation to people of some celebrity, I accept that it probably did.
A case was put forward for aggravated damages on the following grounds: 1. the plaintiffs knowledge of falsity; 2. the conduct of the defendants in presenting the matters complained of in an over-sensationalised manner; 3. the failure to publish an apology despite a reasonable request; 4. the republication of the matters in other jurisdictions; 5. the engaging by the defendants in a smear campaign against the plaintiff, evidenced by the publication of the defamatory imputations particularised in respect of each of the 28 matters complained of.
However, as submitted by the defendants, no evidence was educed from Mr Gayle as to most of those matters. The particulars included reference to the fact that a defence of truth was maintained but it was conceded during oral submissions that the defence was not unmeritorious.
Upon analysis, in the absence of specific evidence of increased hurt to feelings, a number of the matters pointed to by the plaintiff are ordinary features of the assessment of general damages. It will of course be necessary in assessing those damages to have regard to the continuing campaign of publication of the allegation over several days; that informs the seriousness of the defamation. However, I am not persuaded that the matters relied upon by Mr Gayle in the pleading warrant an award of aggravated damages.
Finally, in support of the claim for aggravated damages, the plaintiff relied on the contents of a press release published by Fairfax Media after the jury gave its verdict, together with an article published in The Sydney Morning Herald reporting its contents (Exhibits R and S). The press release referred to my refusal of an application to discharge the jury (my reasons for which are stated below) and announced Fairfax's concern with the conduct of the trial and its belief that "it did not get a fair trial".
The newspaper article reported those concerns and also included quotes evidently provided to journalists by the defendants' solicitor, Mr Peter Bartlett, for publication in his clients' own newspaper. The comments recorded Mr Bartlett's personal views about the case, attributing him with saying that he was "shocked" and "disappointed". The article also attributed Mr Bartlett with saying "it will cost the company a lot of money unless we can reverse it on appeal", arguably touching on matters still before the Court (damages and costs).
The relevance of that material for present purposes was said to be that, by questioning the fairness of the trial, the defendants were necessarily endorsing the truth of the imputations, contrary to the jury's verdict. Mr McClintock SC, who appears with Mr Richardson for the plaintiff, submitted that the publication of that material is relevant to damages and also to the plaintiffs claim for an injunction to restrain further publication of the imputations.
As to whether the publication of the press release aggravated the hurt and harm suffered by the plaintiff, the problem is that, just as in the case of the evidence of malice, it was not sought to adduce any further evidence from Mr Gayle after the contents of the press release were reported. I do not think I can speculate as to the effect it had on Mr Gayle. That it increased his hurt is not the only available inference; on the contrary, such an expression of soreness by his defeated opponents may well have sweetened the victory. I am not prepared to conclude that Mr Gayle's damages are aggravated on that account.
In the absence of any established basis for awarding aggravated damages, it is not necessary to resolve a dispute between the parties as to the proper construction of s 35(2) of the Defamation Act. The dispute arises from the decisions in the Rebel Wilson litigation. In that case, at first instance, Dixon J upheld a submission by the plaintiff that the statutory maximum damages amount has no role to play when an award of aggravated damages is warranted by the circumstances of the publication: Wilson v Bauer Media Pty Ltd [2017] VSC 521 at [76]. At the hearing before me, the plaintiff disavowed reliance on that decision. However, after I reserved my decision, the Victorian Court of Appeal affirmed that aspect of Dixon J's decision: Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 at [249]. The plaintiff embraced that development and submitted that there is "no cap" applicable in any of the three proceedings before me.
The defendants submitted that the decision of the Victorian Court of Appeal has no application in this case because the circumstances are not such as to warrant an award of aggravated damages. Alternatively, they submitted that the Court of Appeal's decision in Bauer Media v Wilson is plainly wrong and should not be followed. For the reasons I have already explained, I accept the first submission and accordingly it is not necessary to express a view as to the second.
As stated above, I consider it appropriate for transparency to indicate the amounts I would have assessed as against each defendant individually, ignoring the plaintiff's claims against each other defendant for the publication of the same imputations. In oral submissions, Mr McClintock submitted that there should be a substantial award against the proprietor of The Age, which he submitted was "really the originator of the whole thing"; less against the proprietor of The Sydney Morning Herald and a much lower award against the proprietor of The Canberra Times.
Had that been the task, having regard to the factors discussed above, I would have assessed the damages against The Age Company Pty Ltd in the amount of $250,000; against Fairfax Media Publications Pty Ltd in the amount of $200,000 and against The Federal Capital Press of Australia Pty Ltd in the amount of $100,000. However, it is necessary to stand back from the sum of those amounts so as to avoid double or triple compensation, while also bearing in mind that the syndicated publication of the articles by each defendant did increase the scope of publication and cause some separate hurt and harm to Mr Gayle. Taking the holistic approach contended for by the defendants, I consider the appropriate total award to be an amount of $300,000.
The parties agreed that the plaintiff is entitled to interest on that sum from the date of commencement of the proceedings at the rate of 3%.
The plaintiff also sought an injunction to restrain the defendants from publishing the imputations. Such an order would not ordinarily be made against the proprietor of a mainstream newspaper, for the reasons I considered in Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351. In that case, I said at [13] to [15]: "So far as I am aware, the proposition that a permanent injunction should ordinarily accompany an award of damages following the unsuccessful defence of a common law claim is unknown in any other field. The court would not, without more, make an order restraining the unsuccessful defendant in a professional negligence or motor vehicle accident claim from acting negligently in the future. I accept that the analogy is imperfect but it is appropriate to test what appears to be a premise of the plaintiff's argument. I do not think it can be said, without qualification, that the restraint of speech -even indefensible speech - necessarily or ordinarily serves the public interest. Nor can it be said, without qualification, that the public interest is "not offended" by the restraint of indefensible defamation. The public interest is offended by any court-imposed restraint that is not reasonably necessary in the circumstances. It is tempting to think that is particularly so in the case of injunctions to restrain publication, since such orders necessarily impair or take away a person's freedom of speech. Upon reflection, however, it is difficult to articulate any principled basis for placing defamation in a special category in this context; any restraint of ordinary freedom imposed by order of the court warrants the same caution. In my view, as a matter of principle, the critical factor in determining whether to grant a final prohibitory injunction in aid of a claim for defamation should be an assessment of the existence and degree of any threat or risk of a repeat of the publication of the defamatory matter successfully sued on in the proceedings. Such an order should only be made where the court is satisfied that the order is reasonably necessary to address that threat or risk."
In the present case, the defendants removed the matters complained of promptly after the jury gave its verdict. That is a strong factor indicating that an injunction is not necessary.
Mr McClintock submitted, however, that the press release and article referred to above repeated the defamation on the very day of the verdict, indicating the existence of a risk of further repetition of the imputations against Mr Gayle. Upon careful reflection, I am not persuaded that material indicates the existence of an ongoing risk. It may be accepted that the publication of a complaint that the trial was not fair endorsed the truth of the imputations by necessary implication (the trial could not have been unfair if it resulted in the failure of an unmeritorious defence; necessarily, the newspaper was maintaining the assertion, even after the jury had determined otherwise, that the imputations are true). However, the particular focus of the newspapers' announcement was to complain about the fairness of the trial and my refusal to discharge the jury. The adverse remarks in the newspaper appear to have been driven at least in part by the personal reaction of the defendants' solicitor to losing the trial. On balance, I am not persuaded that the airing of those views establishes the existence of an ongoing risk of sufficient magnitude to overcome the force of the considerations I discussed in Carolan.
For those reasons, I am not persuaded that it is appropriate to grant an injunction against the defendants to restrain repetition of the defamation. That part of the relief sought is refused.

Discharge application

At the conclusion of Mr McClintock's closing address on day 5 of the trial, the defendants applied to have the jury discharged. I declined that application and invited the defendants to formulate any redirection they would seek in light of that indication (T410.3). In responding to that invitation, Dr Collins maintained that the problems could not be remedied and renewed the discharge application (T412.8). Dr Collins further submitted that, if the jury was not discharged, the defendants would need to make another address to the jury (T412.41).
As the submissions on those issues were stretching into Friday afternoon, I sent the jury home. At the conclusion of argument, I again invited the defendants to formulate in writing any redirection they would seek in the event that I neither discharged the jury nor allowed the defendants to make another address (T425.25). In a note provided to the Court on the Sunday pursuant to that request, the defendants again pressed the application to have the jury discharged, submitting that the prejudice of Mr McClintock's address was incurable. The plaintiff provided short submissions in reply to that note. After considering that material, I declined to discharge the jury. My reasons for doing so may be summarised as follows.
As the argument was developed, there were three aspects of Mr McClintock's address which the defendants submitted could not be cured by any direction.
The first related to a submission made concerning the credibility of Ms Leanne Russell, the woman to whom Mr Gayle was alleged to have exposed his genitals.
In order to understand the complaint, some context is required. The truth defence alleged that Mr Gayle intentionally exposed his genitals to Ms Russell in a dressing room at Drummoyne Oval which was being used by the West Indies team during a training session at the 2015 World Cup. The incident was alleged to have occurred on Wednesday 11 February 2015 which, as already noted, was almost a year before the publication of the matters complained of.
Mr Gayle's evidence was that the team left the hotel in which they were staying at about 1.30 pm that day (T61.44) and arrived at Drummoyne Oval at about 2 pm (T62.4). They travelled on the team bus. Mr Gayle said he was wearing his training kit (T36.21) and did not change out of it at any time during the session. He said that he did not have a shower in the dressing room and was never dressed in a towel in the dressing room. He denied that at any point he exposed himself to Ms Russell and had no memory of being in the change room with Dwayne Smith. He said it was false to say that Ms Russell entered the change room when he was there (T38.8).
In cross-examination, the following matters were put to Mr Gayle (T63.23-T64.39): Q. I just want to put this to you, Mr Gayle, you were in the change rooms at around 2.15pm wearing a short sleeved team training shirt? A. I can't recall what shirt I was wearing, to be honest with you. Q. Was your normal training outfit a short sleeved training shirt? A. Yeah, normally, yes. Q. I just put to you that you had a towel around your waist in the change room at 2.15pm on 11 February? A. No, I didn't. Q. I put to you that Dwayne Smith was also in the change room at around 2.15 on 11 February? A. No, I didn't -1 can't recall that. Q. Is it possible he was in the change room with you? A. I doubt it. Q. You doubt it, but you don't rule it? A. I don't rule it out. Q. Was Dwayne Smith wearing training clothes at around 2.15pm on 11 February? A. Yes, he was wearing training clothes. Q. I want to suggest to you that at around 2.15pm you saw Leanne Russell come into the change rooms? A. No, I didn't. Q. I suggest to you that you were standing about 2 metres apart? A. We were. That's what he said. Q. I'm asking were you were standing- A. No, I didn't see her. Q. -about 2 metres apart from Leanne Russell? A. No. Q. I suggest to you that you said to Leanne Russell in the change rooms, "What are you looking for?"? A. No, I didn't. Q. I suggest to you that she said to you, "A towel"? A. No, I didn't - no, she didn't. Q. I suggest to you that at that point you pulled your towel up and down so that your penis was partially exposed? A. That never happened. Q. I suggest to you that as you did that you said to her, "Are you looking for this?"? A. That never happened. Q. I suggest to you that at that point, Leanne Russell put her hand up in front of her face to block her view of you and turned her head and walked out of the change room? A. Not to my knowledge, that never happened. Q. I want to suggest to you is that she said the word, "No", at the point when she raised her hand up? You need to say for the transcript, Mr Gayle? A. I didn't see her. Q. You didn't see her? A. She wasn't in the dressing room. Q. Is it that she definitely wasn't in the change room also or that you don't remember seeing her in the change rooms? A. No, she wasn't there. We didn't have those engagement at that time.
Dwayne Smith gave evidence on day 2 of the hearing. He did recall being in the dressing room at Drummoyne Oval on an occasion when Ms Russell was also in the change room. However, he denied that Mr Gayle was in a towel and denied that Mr Gayle exposed himself to Ms Russell. He said he did not hear Mr Gayle say anything to Ms Russell and did not hear Ms Russell say anything to Mr Gayle (T87).
In cross examination, the following matters were put to Mr Smith (T95.42-T96.33): Q. Mr Gayle was wearing his team short sleeve training shirt? A. Full kit. Q. I want to suggest to you that Mr Gayle had a towel around his waist? A. No. Q. I want to suggest to you that when Ms Russell entered the change rooms, Mr Gayle turned and looked at her? A. No. Q. Mr Gayle said to Ms Russell "What are you looking for?"? A. No. Q. Ms Russell said, "I'm looking for a towel"? A. No. Q. I'm asking whether you saw this, did you see Mr Gayle pull his towel up and down so that his penis was partially exposed? A. That did not happen. Q. You deny any conversation between Mr Gayle and Ms Russell in the change rooms? A. Yes. Q. I suggest to you, Mr Smith, that there was such a conversation and that you overheard it.? A. No. Q. I suggest to you that Mr Gayle pulled his towel up and down, exposing partially his penis, and that as he did that he said, "Are you looking for this?"? A. That did not happen. Q. I suggest to you that Ms Russell then put her hand up in front of her face to block her view of Mr Gayle, said, "No" and walked out of the change room. You deny that that happened? A. Yes.
Importantly, that part of the cross-examination concluded with the following questions: Q. I'm suggesting, Mr Smith, that did happen and you observed it? A. No. Q. I'm suggesting that you and Mr Gayle then laughed about what had occurred? A. No.
The allegations that Smith observed the incident and that he and Mr Gayle "then laughed about what had occurred" had not been put to Mr Gayle, presumably because Mr Gayle did not recall Mr Smith being in the change room at any relevant time.
Ms Russell gave evidence on day 3 of the hearing. Contrary to what had been put to Mr Smith by senior counsel for the defendants, she did not say that Mr Smith had observed the incident of Mr Gayle partially exposing his penis to her. Indeed, she said that he was looking away at the critical moment. In her evidence in chief, she gave the following evidence (T222.5): "Q. Did you observe what Mr Smith was doing while this occurred? A. He was eating something. Q. Why are you so sure about that? A. I remember him chewing, and he was looking off to over his right shoulder. I remember him chewing something. Q. Are you able to say what Mr Smith was looking at as this interaction occurred between you and Mr Gayle? A. No, the change room was empty. Q. What was Mr Smith looking at, are you able to say? A. He was looking off to the right, which was the right wall of the change room. Q. Yes, and what does that mean relative to where Mr Gayle was? A. To where Mr Gayle was? Can you repeat the question, I'm just- Q. I'll ask you squarely, was Mr Smith looking in your direction in the time of this interaction? A. No, he was looking over his right shoulder towards the right wall."
The statement that Mr Smith was looking away ("over his right shoulder") at the critical moment had not been put to Mr Smith. Ms Russell was later asked whether she had heard any interaction between Mr Gayle and Mr Smith as she was in or leaving the change room. She said that she had not (T224.46).
There was an obvious inconsistency between the matters put to Mr Smith at [85] above and Ms Russell's evidence, in two respects. First, whereas it was put to Mr Smith that the incident happened and that he "observed it", Ms Russell said in her evidence that he was not looking in her direction but was looking over his right shoulder towards the right wall (I will refer to that as the "whether Smith was watching" inconsistency). Secondly, whereas it had been put to Mr Smith that he and Mr Gayle "then laughed about what had occurred", Ms Russell gave no such evidence (I will refer to that as the "laughing" inconsistency).
At the conclusion of the cross-examination, Mr McClintock called for any document Ms Russell had looked at to assist her to give evidence. A witness statement (which she had left in her hotel room) was produced the following morning, after she had been excused as a witness. Although that statement did not go into evidence in the trial, the plaintiff relied upon its contents for the purpose of the discharge application. The plaintiffs written submissions provided to the Court on the Sunday after the application was made informed the Court that the witness statement included the following (emphasis added in the plaintiffs submissions): "I went back into the change room to find a sandwich. I then saw Gayle, who was wrapped in a towel. He asked me: "what are you looking for?" I said "a towel". That's when Gayle pulled his towel out to partially expose his penis and said "Are you looking for this?" Smith was standing behind Gayle's left shoulder, easting [sic] a sandwich if I recall correctly. Smith did not say anything. I had Gayle and Smith looking at me as Gayle said that. I was standing about two metres from Gayle ……"
That prior statement was inconsistent with Ms Russell's sworn evidence in the trial as to whether Mr Smith was watching when Mr Gayle was alleged to have exposed himself; it thus established a basis for contending the "whether Smith was watching" inconsistency. However, the statement produced in answer to the call was silent as to whether there was laughter in the change room, as also put to Mr Smith by Dr Collins.
In his closing address, Mr McClintock reminded the jury of the evidence set out at [85] above, which he said "must have come" and "could only have come" from Ms Russell. Mr McClintock said to the jury: "it's apparent from that that Ms Russell either directly or indirectly had told Dr Collins that Dwayne Smith had seen what happened, heard what was said and then actually laughed about it with Gayle. In other words, she had said to Dr Collins that was her version at the time, that Smith was an active participant in the incident. He thought it was funny, in other words, but the point is he saw it and he reacted to it with laughter."
Mr McClintock submitted to the jury on the basis of those matters that Ms Russell was a liar and that she fabricated "both versions".
The defendants had four complaints about that submission. First, they contended that the submission that the laughter allegation "must have come" or "could only have come" from Ms Russell was factually incorrect. Dr Collins informed the Court that the proposition as to laughing which he put to Mr Gayle (set out at paragraph [85] above) was drawn from a text message exchange produced by Ms Russell in response to a subpoena. Although there was no evidence as to that issue, I indicated that, for the purpose of the discharge application, I would accept what Dr Collins told the Court, since it was based on his own conduct of the trial.
The text message included a message from CJ Clark to Ms Russell in the following terms (as in original): "well i can attest to seeing gayle in his towel immediately before you went in. and that he and smithy were laughing about it as i walked in thereafter, and the joking thay happened for the next few days"
CJ Clark did not in fact attest to those allegations in the trial; Dr Collins frankly acknowledged that he did not "have him" as a witness. The difficulty was that, with great respect to Dr Collins, the proposition put to Mr Smith did not reflect the terms of CJ Clark's text and indeed was not reasonably based on that information. The way in which the proposition was put to Mr Smith unequivocally suggested that he and Mr Gayle laughed together immediately after the alleged indecent exposure. That is simply not what CJ Clark said in his text message. More importantly, in the absence of any suggestion that CJ Clark was in the change room at the critical time, the proposition put to Mr Smith in cross-examination was a matter that could, logically, only have come from Ms Russell.
The defendants submitted that there could be "no doubt that the plaintiffs legal team had access to this text message exchange"; the suggestion was that they should have worked this out for themselves. The difficulty with that submission was that, even if Mr McClintock had had CJ Clark's text message at the front of his mind at the time of his closing address, I do not see how he could reasonably be expected to have inferred that it was the basis on which Dr Collins saw fit to put the proposition to Mr Smith about laughing with Mr Gayle. In the circumstances, regrettably, it is necessary to record my view that that aspect of the cross-examination of Mr Smith was apt to mislead the plaintiff's counsel. It was well open to Mr McClintock to conclude that the source of the laughing allegation must have been Ms Russell; indeed, that was the only sensible inference, having regard to the terms in which the propositions were put to Mr Smith.
Secondly, the defendants submitted that Mr McClintock was wrong to assert to the jury that the defendants' counsel took "instructions" from Ms Russell, as she was not their client. On my understanding of Mr McClintock's closing address, the point he was making was that she must have been the source of the information on the basis of which the defendants gave instructions to their lawyers. Even if the term "instructions" was used inaccurately (which I do not accept), it was inconsequential. The burden of the submission put to the jury was that the instructions provided to the defendants' lawyers by their clients must ultimately have been derived from information obtained from Ms Russell. There was a proper basis for drawing that inference.
Thirdly, the defendants complained that the foundation for the submission was not put to Ms Russell in cross-examination. In particular, it was not put that she had told anyone from the defendants' legal team that Mr Smith had laughed after the change room incident; that she had given evidence contradicting that information; that she had lied to Dr Collins or that she "fabricated both versions". It was submitted that the rule in Browne v Dunne required as a matter of elementary fairness that she be given the opportunity to respond to each of those allegations.
Mr McClintock submitted that it was not necessary to put those individual matters because it had squarely been put to Ms Russell that she was lying. In my view, that was clear. I was not persuaded that this was a circumstance in which each separate aspect of that submission was required to be put.
Mr McClintock further relied in that context on the decision of R v Robinson (1977) Qd R 387. His reliance on that decision formed the basis of the defendants' fourth complaint. They submitted that that decision, which had been cited by Mr McClintock as the justification for his submission to the jury concerning the inferences to be drawn from what was put to Mr Smith, is not authority for the proposition cited and did not justify the course adopted. Dr Collins submitted that the decision is concerned with inferences that can be drawn from counsel's questions as to the instructions he or she has obtained from the client based on the client's own conduct and observations.
While it may be accepted that the decision in Robinson may not have been directly on point, it was appropriate for Mr McClintock to proceed on the assumption that Dr Collins had a proper basis for putting the laughter allegation to Mr Smith. Dr Collins accepted as much when argument on this issue resumed on the Monday. The difficulty for the defendants is that the text exchange between CJ Clark and Ms Russell did not provide a basis for the proposition put. Divorced from its proper context (that laughter occurred, not when Ms Russell was in the room but in the presence of CJ Clark), it was wholly unrecognisable as having purportedly come from the text exchange.
Further, the matters put at [85] above were clearly put as a sequence of events. If the jury was misled as to whether Ms Russell had given inconsistent accounts as to whether laughter was a part of that sequence, that was due to the defendants' conduct of the trial. Specifically, it flowed from a forensic decision made by senior counsel for the defendants in putting a proposition to Mr Smith for which, if it did not come from Ms Russell, there was no foundation.
More significantly, as submitted by the plaintiff, the real impact of the closing address was the other, inseparable part of the same submission which was that Ms Russell had given completely inconsistent accounts on the important issue of whether Mr Smith was facing in the direction of the alleged incident and watching it (as she said in her statement) or whether he was looking away at the critical moment (as she said in her evidence in the trial).
I formed the view in those circumstances that it would be unfair to the plaintiff to discharge the jury on the basis of a problem that was of the defendants' own making. I considered that they should be bound by their conduct of the trial.
The second aspect of Mr McClintock's address which the defendants submitted could not be cured by any direction concerned the issue of malice. The defendants submitted that Mr McClintock closed to the jury on malice in a manner that went well beyond the particularised reply without first having foreshadowed any intention to do so or applying to amend the reply.
In defending his approach, Mr McClintock relied on the decisions of Water Board v Moustakas [1988] 180 CLR 491 at 497 and Dare v Pulham [1982] 148 CLR 658 at 664. The defendants submitted that neither of those authorities nor ordinary notions of fairness justified the course that was adopted. They submitted that the correct position is summarised in the decision of the Court of Appeal in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [22] (Macfarlan JA, Bathurst CJ and Beazley P agreeing).
The plaintiff submitted that it beggars belief that the defendants did not appreciate that the plaintiff would make submissions to the jury on malice that departed from the pleadings and instead reflected the evidence. It was noted that, repeatedly during the trial, counsel for the plaintiff referred to such matters including emphasising in his opening address the defendants' answer to an "intention to damage" interrogatory; emphasising the recklessness of Ms Saltau in publishing the allegations when they knew there had been a witness to the alleged incident but did not seek to contact that person; emphasising throughout the trial that the plaintiff saw the reasonableness evidence and the malice evidence as being interchangeable and summarising the matters relied upon in respect of reasonableness (in support of the no case submission) shortly before Dr Collins began his closing address to the jury.
The plaintiff submitted that, in those circumstances, there could have been no substantial risk of procedural unfairness and that to adjourn the proceedings for the purpose of amending the pleading at that point would have been an overly technical approach inconsistent with the objects of ss 56 to 58 of the Civil Procedure Act 2005 (NSW).
I considered that there was force in the plaintiffs submissions and that the defendants ought to have well appreciated by the end of the trial the way in which the case on malice would be put. In those circumstances, I considered that the issues raised by the defendant could appropriately be dealt with by direction and did not warrant discharge of the jury.
Finally, the defendants complained of submissions made by Mr McClintock as to the relevance, in the jury's assessment of Ms Russell's credibility, of her mental state (specifically, a history of anorexia). The defendants submitted that the closing address deployed that condition as a generalised attack on the reliability of the whole of her evidence. It was submitted that, if counsel were proposing to make a submission in those terms, that should have been put to Ms Russell. The defendants submitted that, had that occurred, it "might have been possible" for the defendants to call evidence as to the proposition that a history of an eating disorder could cause a person to fabricate an allegation of intentional or indecent exposure or an indecent proposition. The prospect of such evidence being available and admissible was speculative. I did not regard there to have been anything improper in the submissions put by Mr McClintock.

Gayle v Fairfax Media Publications Pty Ltd

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (3)

Cases Cited (16)

Cited By (11)