Glare v John Fairfax Publications Pty Ltd [2000] VSC 493

* The case did not involve "exquisite" complexity, whether of law or fact. Many more complex cases are tried regularly in the County Court. The guiding principle must be the jury's (money) verdict.

* The case was not brought into the Major Torts List. There was thus no contribution by the judge in charge of that list which could guide me to a conclusion that the matter had been properly brought in this Court.

* This was an important case. But every defamation case is important. Nothing distinguished this case from cases properly brought in the County Court. If the plaintiff was awarded Supreme Court costs in this proceeding there would be no defamation action in which such costs could be denied.

* Authorities show that, except if a case contains "some quite extraordinary features, the normal rule (should) apply".[2]

* Misjudgment of the amount likely to be recovered is not a special circumstance.

* The plaintiff's reputation could have been vindicated by an award of damages in the County Court just as well as by an award of damages in this Court.

15. Mr. Hughes, for the plaintiff, submitted that the proceeding was appropriately brought in this Court, and that Supreme Court costs should attend its outcome. He contended that:

* The test was whether in all the circumstances, including the nature of the libel and the plaintiff's status in the community, it was reasonable so to prosecute the matter. The nature of the libel was serious. The jury, to find defamation, must have found that the article imputed fraud against a person of blameless reputation.

* The fact that the trial had been brief was in part attributable to the defendant's late abandonment of a defence. The shortness of the trial did not show that the matter should have been initiated in the County Court**.** The taking of the defence which was ultimately abandoned was not relevant to the decision to initiate proceedings. But it was not irrelevant to the question whether Supreme Court costs should be allowed.

* It was relevant to consider what the plaintiff might reasonably have expected to recover for an imputation of fraud published throughout Australia on a large scale.

21. In my opinion the following considerations are pertinent in the exercise of the discretion:

(1) The ordinary regime set up by r.63.24(1) should apply unless there are some special circumstances associated with the case.[3]

(2) Special circumstances include, but are not confined to, a case in which there is complexity of law or fact. The presence of such complexity is usually a justification for an exercise of discretion in favour of a plaintiff. What constitutes complexity must be determined in the particular circumstances of the particular case.

(3) Contrary to Mr. Hughes' submission, it is irrelevant to the exercise of the discretion conferred by the rule to consider what amount the plaintiff might reasonably have been expected to recover for a libel which was widely published. Misjudgment of the amount likely to be recovered is not a pertinent consideration.[4]

(4) In determining whether a case should be regarded as setting up complex issues of law or fact it is not irrelevant to consider the pleadings as a whole. The fact that a pleading potentially giving rise to an issue of legal or factual complexity is abandoned at or close to trial is not a reason for concluding that there was not that complexity.[5]

(5) In the case of a defamation action, the following passage in the judgment of Kirby P. in Fairfax v. Palmer (supra) at 306 is in my respectful opinion pertinent:

"Although it is not permissible to treat defamation cases as being in a class of their own (no such approach having been taken by the rules) it is appropriate to say that typically, such proceedings do raise complexities of a kind which will (simple cases apart) more readily warrant the initiation of proceedings in the Supreme Court than other damages actions. In a claim for debt, the amount sued upon will normally be generally known. Even in a claim for personal injuries, the range of damages will be more readily predictable. In defamation cases, where damages are at large and where the jury may be given little guidance as to the calculation it must perform, the policy of the rule is more difficult to enforce. For this reason, in the nature of defamation claims, the discretion to permit a higher award of costs will more readily be exercised in the plaintiff's favour than would be the case in an action for debt or personal injury damages. This is not to elevate defamation to a special status it does not enjoy under the rules, as cases in the Commercial List do. It is simply to reflect the purposes for which the discretion is provided, in the context of rules whose overall object is to promote the correct assignment of cases to the appropriate court and to penalise error where the judgment demonstrates the assignment to have been wrong. A second consideration must be mentioned which is peculiar to defamation cases. As Allen J pointed out, the verdict of the jury represents, in part, a vindication of the plaintiff and of his reputation. No such consideration normally applies in actions for debt or personal injury damages. Thus, the very bringing in of a verdict in favour of the plaintiff represented, in this case, the achievement of one of the objects of the litigation."

The strength of his Honour's observations in the first connection has been little affected, in a practical sense, by what the majority of the High Court said in Carson v. John Fairfax & Sons Ltd.[6] concerning the right of a judge to indicate to a jury, for comparative purposes, the ordinary level of the general damages component of personal injury awards.[7]

In Humphries[8] Miles CJ did not agree with the suggestion in Palmer v. Fairfax that the discretion to permit a higher award of costs will be exercised more readily in a plaintiff's favour in an action for defamation than would be the case in an action for debt or damages for personal injury. That was because, in the Australian Capital Territory "where defamation actions, like all civil suits, have been tried by judge alone, the range of damages likely to be awarded is within the contemplation of the court, the parties and their legal advisers. Considerations applicable to jury trials are of little relevance."[9] The distinction perceived by his Honour was not taken up by either of Kirby J in Palmer v. Belan or Dunford J. in Goldsworthy. But whether it be sound or not need not be considered. For this was a trial by jury; and, it is here convenient to note, it was the defendant which sought trial by jury.

In saying that, in my opinion, the dictum of Kirby P. in Fairfax v. Palmer is pertinent, I have not overlooked the fact that Pt. 52.24(2) of the New South Wales Rules is somewhat different to r.63.24(1). Notwithstanding the differences, his Honour clearly described, in language adopted in this State and elsewhere [10], the essential common purpose of rules of this type. His Honour's dictum reflected the working out of that common purpose, and thus its present relevance.

(6) Kirby P. referred to a peculiar feature of a jury verdict in a defamation action being that it represents, in part, a vindication of the plaintiff and of his reputation. In the same case Samuels JA said this:[11]

"I agree with the President that one must be hesitant about elevating defamation cases to a particular status for which the rules do not provide. But their nature and the fact that a special defamation list has been established in the Supreme Court to cater for them, support the conclusion that it is legitimate in such cases to exercise discretion under r 24(4) with some liberality. In particular, it is, I think, true that since an assessment of damages in defamation is intended to operate as a vindication of the plaintiff and thus has what one might describe as a symbolic element, a plaintiff may well be justified in seeking to have his action heard in the senior court of the State whose pronouncements, naturally enough, may be regarded as carrying more weight than those of other courts."

I consider that those observations are of relevance to the exercise of the costs discretion in this State, notwithstanding that there is a Defamation List in the County Court and notwithstanding that there is no discrete Defamation List in this Court.[12] There are cases, in my opinion, in which the "symbolic element" of vindication may properly be sought in a proceeding in this Court. Such cases will particularly be those where the defamation is published in a mass medium. Whilst, generally, the status of the plaintiff will be irrelevant[13], it may be the case that the significance of a defamation published in a mass medium will be the greater where the plaintiff is a man or woman in public life. The potential for the defamation to be read or heard attentively, and the risk of its gaining currency, is, I think, likely to be the greater in the case of such a person.

It is of course the case that r.63.24(1) does not prevent a proceeding being instituted in this Court. It simply provides for a costs penalty in certain circumstances. There would be little point, however, in saying that in some defamation cases the symbolic element of vindication may properly be sought in this Court and at the same time saying in respect of such cases that the costs burden which prima facie flows from the operation of r.63.24(1) should be imposed if the jury finds a defamation but allows a small sum in damages.

(7) The fact that this proceeding was not entered into the Major Torts List is neutral in its impact. The judge in charge of that list did not have an opportunity of ordering that the matter be transferred to the County Court under the case transfer legislation.[14] But counsel for the defendant did not suggest, and a review of orders made by the judge in charge of the list does not reveal, that such orders have been made by his Honour in the case of alleged mass media defamations. On the other hand, assuming that this proceeding had been entered into the list, and assuming that no such order had been made, the question whether the plaintiff should be relieved from the rigour of r.63.24(1) strictly would still have remained a matter for determination by the trial judge.

38. In my opinion, applying the considerations which I have identified to the present case, the plaintiff should have an order for Supreme Court costs. The observations of Kirby P. and Samuels JA in Fairfax v. Palmer are pertinent. The defamation, as the jury found it to be, was published in a mass medium: and, indeed, throughout Australia. There was room for argument as to the precise extent of readership, but having regard to the front page of the magazine, the pictorial content of the article, and its text, it is right to conclude that readership would have been very substantial. The case not only involved a defamation in a mass medium, counsel for the defendant emphasised in his closing address the gravity of the defamation which was alleged.[15]

41. The trial turned out to be short, and the issues upon which counsel concentrated were few. But that was forensic choice. More issues were left open by the pleadings until the first day of trial, and for the most part the issues so left open mirrored issues which Miles CJ considered in Humphries were sufficiently complex to justify that proceeding being brought in the Supreme Court.[16] Every case must, of course, be considered discretely, and so what his Honour said in Humphries could not decide the present dispute. But what his Honour did say provides a check on my conclusion that on grounds of complexity alone the present matter was properly brought in this Court. I should only add that, if it was relevant, the plaintiff should certainly be regarded as a man in public life - notwithstanding that he had retired as Chief Commissioner of Police some years before the publication of the offending article.

44. Subject to anything that counsel may say as to form, I shall order otherwise, for the purposes of r.63.24(1) , that the defendant pay the plaintiff's costs in accordance with the Supreme Court scale of costs.

[1] $200,000; indeed the matter was within the jurisdictional limit of the Magistrates' Court

[2] Counsel cited Sherwell v. Armour [1962] VicRp 28; [1962] VR 197, O'Doherty v. McMahon [1971] VicRp 75; [1971] VR 625 and Brenner & Anor. v. First Artists' Management Pty. Ltd. & Anor. [1993] VicRp 71; (1993) 2 VR 221 at 276

[3] See, for example, O'Doherty v. McMahon [1971] VicRp 75; [1971] VR 625 at 628 (Full Court)

[4] See, eg. O'Doherty at 629-630, and John Fairfax & Sons Ltd. v. Palmer (1987) 8 NSWLR 297 per Kirby P. (with whom Glass JA agreed) at 306.A and per Samuels JA at 309.C)

[5] See, Humphries v. TWT Ltd. (1993) 113 FLR 422 at 426 per Miles CJ

[7] Fairfax v Palmer has recently been cited and relied upon in NSW. See Palmer & Anor v Belan & Anor [No1] [1999] NSWSC 244 and Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 772 - cases which did not depend on Pt. 52.24(2A) of the Supreme Court Rules 1970 (NSW)

[10] See Bantick v Boss Properties Pty Ltd [2000] VSC 165 at para 33 and Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd (Kennedy J, Supreme Court of Western Australia, judgment 25 March 1998, unreported).

[12] Defamation actions in this Court may be entered into the Major Torts List. Many, but not all such actions are so entered.

[13] See Fairfax v. Palmer at 306.B per Kirby P.; compare Toomey v. John Fairfax & Sons Ltd. (Hunt J, Supreme Court of New South Wales, judgment 22/5/85, unreported) and Goldsworthy at para. 15

[14] See Courts (Case Transfer) Act 1991, s.30

[15] Counsel said this: "It is a very serious case for ... the magazine. It is a serious charge to have to defend, that you have defamed, in this very serious way, an outstanding member of he community..."