_Newman v Speigler & Anor_

Judgment (131 paragraphs)

[1]

Quinlan Miller & Treston for the applicants/appellants

[2]

[1] McMURDO P: The application for leave to appeal should be granted and the appeal allowed for the reasons given by Muir JA. I agree with the orders proposed by Muir JA.

[3]

[2] KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Muir JA. I agree with those reasons and with the orders proposed by his Honour.

[4]

The applicant defendants seek leave to appeal against the judgment and orders made in these defamation proceedings by a District Court Judge on the conclusion of a trial by jury. The grounds of appeal may be summarised as follows:

[5]

1. The jury's verdicts that the applicants had made defamatory statements as alleged was against the evidence and the weight of the evidence;

[6]

2. The jury's awards of $7,000 damages against the first applicant and $3,000 damages against the second applicant were against the evidence and the weight of the evidence and constituted inconsistent verdicts;

[7]

3. The primary judge's exercise of discretion in ordering costs on the District Court's scale and on the indemnity basis miscarried;

[8]

4. The primary judge, by placing undue emphasis on the evidence of the respondent's principal witness, misdirected the jury.

[9]

[4] Before considering the grounds of appeal in detail, it will be useful to consider the pleaded allegations and the evidence given in support of them.

[10]

[5] It was alleged as follows in the amended statement of claim. The respondent was the State Secretary of the Queensland Prison Officers' Association Inc ("the Association") and the applicants were custodial correction officers employed at the Townsville Correctional Centre. On 1 June 2005, in the supervisor's office in the Centre, the applicants were engaged in a conversation with another custodial correction officer, Mr Baldwin, in which the following conversation occurred:

[11]

"a. The first defendant said to the said Russell Baldwin, 'Do you know these two blokes, Ridgewell and Clarke?'

[12]

b. The said Russell Baldwin said, 'No mate who are they.'

[13]

The first defendant said, 'You must know them, you surely know them.'

[14]

The said Russell Baldwin said, 'No mate I don't know who they are.'
The first defendant then said, 'They are the two QPOA execs who just resigned because of corruption.'

[15]

f. The said Russell Baldwin then said, 'What do you mean?'

[16]

The first defendant then said, 'You know Ridgewell and Clarke have left the QPOA executive because no one knows what Newman and Sprenger do with the money.'
The said Russell Baldwin then said, 'I don't know anything about it and I don't know either of those two people.'
The second defendant then said, 'Yeah you know them, one of them talks like you, a bit of a spastic, like he's got a mouthful of marbles, they've both left because of all of the money, the corruption.' "

[17]

[6] For convenience, this conversation and publication will be referred to as the first conversation or publication.

[18]

[7] The comments by the applicants were understood to bear, and did bear, the following meanings and imputations:

[19]

(b) That the respondent was engaged in corrupt activities; and/or

[20]

[21]

[8] Mr Baldwin published the content of the conversation to one Martin Blue by telephone at about 3.45 pm on 1 June 2005.

[22]

[9] Mr Speigler published further defamatory matter of the respondent when the following conversation ("the second conversation") took place over the telephone on or about 1 June 2005 at approximately 1.30 pm:

[23]

"a. [Mr Speigler] said to the said Marty Blue, 'Do you know Brian Newman, Ross Sprenger or Peter Clark?'

[24]

[Mr Speigler] said, 'Brian Newman has been spending the QPOA's money on himself'.

[25]

Mary Blue (sic) replied, 'I don't have time for this'. Marty ended the conversation and hung up the phone."

[26]

[10] Mr Blue published the content of the second conversation to the respondent by telephone on or about 1 June 2005 at approximately 3 pm. Further publications of the content of the first conversation was made by Mr Baldwin to Mr Castles at approximately 7 am on 2 June 2005 as follows:

[27]

"a. Russell Baldwin said to the said Rip Castles, 'I was told yesterday by Harry Speigler and Chris Brennocks about the resignation of members of the executive. And they told me that Ridgeway and Clarke had resigned because of corruption and that Brian Newman and Sprenger had been taking money.

[28]

The said Rip Castles said, 'I'll phone Brian this morning and get right on to it.' " and

[29]

"The said Rip Castles contacted the Plaintiff by phone (on 2 June 2005) and said to the Plaintiff, 'Russell Baldwin told me that Harry Speigler and Chris Brannocks have accused you and Sprenger of taking the Association's money. They told him that Ridgewell and Clarke have resigned from the QPOA executive because of corruption and missing money.' "

[30]

[11] Mr Baldwin's relevant evidence-in-chief was to the effect that when he walked into the supervisor's room, Miss Richards and a prisoner, Mr Kyle, were standing close to one another. Mr Piccinelli, another corrections officer, was sitting at the supervisor's desk and the applicants were standing together. Mr Speigler approached Mr Baldwin and the following exchange, commencing with Mr Speigler's question, took place:

[31]

" 'Do you know who these guys are, Ridgewell and Clarke?' And I said, 'No, mate. I don't.' And he said, 'Yeah, you do. You surely do. You do.' I said, 'I don't. Who are they?' And he said to me, 'They're two QPOA executives that have resigned because of corruption.' And I said, 'What do you mean?' And he said, 'Well, they've resigned because of corruption and no-one knows what Newman and Sprenger do with all the money.' And I said, 'Look, I don't know anything about it, but I'll definitely be making inquiries.' And with that I turned to Chris Brennocks and he said to me, 'Yeah, you know them. One of them is like you, a bit of a spastic.' He goes, 'He talks like he's got a mouthful of marbles.' He goes, 'They've resigned and left because of the - because nobody knows what Sprenger and Newman do with the money and the corruption'. And I said, 'Look, I don't want to discuss this any further. I'm certainly going to go and make inquiries', and with that we continued on with the breach."

[32]

[12] Mr Baldwin said that he made a note of the conversation in his notebook on returning to his office within 10 to 15 minutes of its conclusion while it was fresh in his memory. He said he did that, "...because I didn't know who any of those people were." He gave this evidence of the note:

[33]

" 'The notes I got down on the day dated 1/6/05, 15:20 hours. 'Supervisor's office, Div 2'. And I've got the people that are there: 'Self, Brennocks and Spiegler'. And I've got written down, 'Do you know these two QPOA execs etc?' 'No.' 'Yeah, sure you do.' 'No, no.' And I've got the word, 'Brennocks', 'Yeah, they talk like you do with a mouthful of marbles or they left the exec because of corruption. No-one knows where the money goes. They're all corrupt. Sprenger, Ridgewell, Clarke and Newman.' "

[34]

[13] In cross-examination, Mr Baldwin accepted that he put in his notebook the matters of significance to him and the following exchange occurred:

[35]

"Your recollection would hardly get better after this notebook entry was made, would it?-- No.

[36]

So we can rely upon this notebook, can we, as containing what you say are all the points of significance that you say occurred in this conversation?-- They wouldn't be all the points. They were simply dot pointed parts that I could remember.

[37]

All the points of significance, that is, things that you thought were important?-- I would say so.

[38]

Yes. Because the purpose of making this note was to record, you say, anything of importance that had just been said in this alleged conversation?-- Yeah, that's correct.

[39]

Right. So outside of this notebook, can we proceed upon the basis that nothing else of importance to you was said in the conversation?-- Yeah, that sounds good."

[40]

[14] Mr Baldwin confirmed that the words in the diary note, "...they left the exec because of corruption. No-one knows where the money goes. They're all corrupt," were according to his recollection, uttered by Mr Brennocks. Counsel for the appellants referred to all the words in the diary note after "Brennocks" where it appears for the second time, and the following exchange took place:

[41]

"That's everything that Brennocks said. You are nodding. Do I take it that's a yes?-- Yeah, as far as I can recall.

[42]

What you just read out to the jury, correct?-- Yes."

[43]

[15] This exchange occurred in relation to the names of the four persons mentioned by Mr Baldwin when giving evidence of the content of his diary note:

[44]

"Now, there are four names referred to? -- Yes. That's not part of the conversation though ...

[45]

Or any of the names?-- No, those four names weren't part of the conversation, they are just dot points of the guys that were mentioned. Because as I said before, I didn't know any of them.

[46]

Thank you?-- Yeah, that certainly wasn't said -----

[47]

And Mr Brennocks didn't mention Newman, Sprenger, Ridgewell, or Clarke, did he?-- He did mention at the end of it.

[48]

No?-- As I said, it's only the main points that I've jotted down.

[49]

If Mr Brennocks had mentioned somebody's name, particularly Mr Newman's, that would have been main point for to you jot down, wouldn't it?-- Well, I've got all four names at the bottom.

[50]

But you don't say - as I understand of what you've just told the jury, your record of what you say Mr Brennocks said concludes immediately before those four names are noted, don't you?-- His - yeah, but at the end of his conversation he did mention Newman and Sprenger."

[51]

[16] Miss Richards gave evidence that she was a senior psychologist, that she did not know Mr Newman before her involvement with the case, but that she knew the applicants through work. She recalled being in the room with them, Mr Baldwin, Mr Boyd and Mr Piccinelli. Asked about whether she had overheard a conversation between the applicants and Mr Baldwin she said:

[52]

"Yeah, I heard a conversation with regards to a particular person, name of Brian Newman, and there was some conversation about moneys or corruption and something about marbles in the head. I was only hearing half the conversation because I was fixing the video as such."

[53]

[17] She said that she didn't know who Mr Newman was and that she thought that they were talking about "a particular prisoner". Miss Richards was cross-examined on a statement she had given the respondent's solicitors in April 2007, which she said she had used to refresh her memory the evening before she gave evidence. She admitted that in the statement she had said, "I do not recall who the conversation concerned." This exchange occurred.

[54]

"Nowhere in this statement given by you in April of last year is there any reference to you overhearing Mr Newman's name being used, is there?-- I don't think it was actually a conversation about a particular person. Like, I - my understanding was that it was about Brian Newman, but I did not know who that person was.

[55]

How did you come to that understanding?-- I don't know who he was. I -----

[56]

How did you come to the understanding that the conversation was about Mr Newman if in this statement you make no reference at all to his name being mentioned?-- I didn't mention him in my statement, but I was - at the time of the conversation that was who they were - spoke about.

[57]

But, ma'am, if that were right, how is it that you can say in this statement, 'I do not recall who the conversation concerned', and how is it that this statement is completely devoid of any reference to Mr Newman's name being raised in this alleged conversation?-- I didn't know who he was.

[58]

It doesn't matter whether you knew who he was; it was a name

[59]

You knew when you gave this statement that you were talking about a case involving Mr Newman, didn't you?-- Yes, when we discussed the conversation it was about Brian Newman."

[60]

[18] Miss Richards admitted that paragraph 6 of her statement stated, "I am uncertain as to who were the parties to that conversation" and that she didn't know who said what.

[61]

[19] The relevant passages from the evidence of Mr Blue are as follows. Mr Blue said that he was working when he was telephoned on 1 June 2005 by Mr Speigler. He gave the following account of the discussion which ensued:

[62]

"----- what happened?-- He rang me and he said do I know Brian Newman, Jack Ridgewell, Springer and a few other people. Ridgewell, Springer and there was another - and Peter Clark.

[63]

Yes?-- Yeah, and he - he just went on - and I said - I responded by saying, "Yes, of course I do" because they're fellow executives in the Queensland Prison Officers Association to which he said that, 'They've resigned', and I said, 'Oh, really. You know, who told you this?', and he said, 'Never mind', to which he implied, 'Apparently Brian's been doing something with the money.'

[64]

Well, did you - did he make any mention of Brian Newman in this conversation?-- Yeah, he did.

[65]

What did he say?-- He just said, 'Apparently because Brian's been fiddling the books or he doesn't' - 'people don't know what he's done with the money.'

[66]

Right. Did he say anything else?-- Oh, I just responded by saying, 'I haven't got time for this.' "

[67]

[20] Giving evidence of a telephone conversation with Mr Baldwin shortly after his conversation with Mr Speigler on 1 June Mr Blue explained:

[68]

"After what?-- After the phone call that I just outlined to you then. He rang up and he said he had a bit of an altercation with Chris and Harry up at Residential in the supervisor's office, and I said -----

[69]

Yes?-- He - and I said, "Well, that's funny that you should say that because", and then I explained the situation and the discussion that I had with Harry on the phone.

[70]

Did he tell you about any discussion you had with them?-- Yeah, he told me about it.

[71]

Right. And what was it? What did he say?-- Oh, just that he had an altercation. The details of which - I mean, it's that long ago. That he had an altercation with both Harry and - and Chris Brennocks.

[72]

Do you know what he -----?-- It was reference to the QPOA and Brian Newman and similar subject matter that we were discussing on the phone.

[73]

What's that?-- With - in reference to Brian, you know, the suggestion that Brian was doing something with the finances of the QPOA."

[74]

[21] Mr Blue had a diary note concerning his conversation with Mr Speigler in which he had written, "Phone call at work from Harry Speigler re QPOA. Colleen Metz [the secretary who told him of the call] ... Bagging QPOA. Re Peter Clarke, Jack Aldridge." The applicant's counsel put to Mr Blue in cross-examination that what Mr Speigler was talking to him about was, "... financial aspects, namely financial statements having been asked for". Mr Blue responded that he had, "...nothing to do with the finances of the QPOA." When pressed that this is what Mr Speigler was talking to him about, he responded, "I'm indifferent". In re-examination, the following exchanges took place:

[75]

"... Until he implied, you know, because they haven't got any financial statements, people are leaving the executive because Brian's not, you know, coming good with the financial statements as far as the QPOA are concerned?

[76]

Mmm-hmm?-- Until he inferred that, and that type of conversation unfolded.

[77]

And when you say 'inferred', what do you understand that to mean? Are you telling us what was said or are you drawing some conclusion?-- Well, I mean, the purpose of the phone call was just, you know, to put the wind under me. That was the -----

[78]

I'm asking you can you tell us what was said?-- What was said was that those members of the QPOA executive had resigned as a result of information not being tendered to them by Brian.

[79]

Did they say anything else - did he say anything else?-- Yeah, he mentioned financial records, but the words that he used - it's three years ago.

[80]

You can't recall anything else?-- Other than I said, 'I haven't got time for this.' "

[81]

(b) The words published thereby carried the meanings that the respondent was engaged in corrupt activity and was stealing from the Association and/or its members;

[82]

[83]

(d) Mr Speigler was responsible for "any of the defamatory meanings";

[84]

(e) Mr Brennocks was responsible for "any of the defamatory meanings";

[85]

(f) Compensatory, aggravated and exemplary damages of $5,000, $1,000 and $1,000 respectively were awarded against Mr Speigler;

[86]

(g) Compensatory, aggravated and exemplary damages of $2,000, $500 and $500 were awarded against Mr Brennocks.

[87]

The damages awards were against the evidence and the weight of evidence and the verdicts, because of the different awards of damage, were inconsistent

[88]

[23] There cannot be any legitimate complaint about the quantum of the damages ordered. Having regard to the nature of the allegations of dishonesty made against the respondent in the first conversation, the awards could even be regarded as paltry.

[89]

[24] The inconsistency complaint is articulated in the applicants' written outline of submissions as follows:

[90]

"...having found that each of the [applicants] made essentially the same defamatory statements, the jury awarded damages against one [applicant] which were less than 50 % of the award as against the other [applicant]. The verdict is manifestly a compromised one, particularly where the jury found in favour of one [applicant] as to whether or not he made a similar statement on the second occasion."

[91]

"The jury were entitled to award different amounts under all heads and were entitled to take into account the differing involvement of each applicant and the conduct of each applicant before the trial and up to the verdict. The jury was appropriately directed on all aspects by the trial judge. The jury could properly differentiate between the applicants, their conduct, their involvement and their evidence. It was open to the jury to properly differentiate between the applicants."

[92]

[26] In oral submissions counsel for the respondent submitted that the different awards of damages were explicable on the basis that the jury may have found Mr Speigler responsible for the two defamatory meanings which the first publication was found to have and Mr Brennocks responsible for only one. It was pointed out that it was impossible to tell from the questions posed to the jury and the answers whether each applicant was found responsible for both defamatory meanings or only one.

[93]

[27] The primary judge, in his summing-up, did not say anything which might differentiate between the gravity of the conduct of either applicant. An obvious ground of differentiation, had the second publication by Mr Speigler been established, was the second publication of defamatory matter, but that is not what the jury found. The defamatory matter was published by each applicant in the one conversation between Mr Baldwin and the applicants. The respondent's counsel failed to identify any "differing involvement" of each applicant, or for that matter, any different relevant "conduct of each applicant before the trial and up to the verdict." If there is a difference it must lie in what each of them said in the critical conversation with Mr Baldwin.

[94]

[28] The pleaded allegations were not amended to conform with Mr Baldwin's oral evidence. That evidence was virtually identical to the pleaded version of the first conversation except that, in his oral evidence, the witness reported Brennocks as saying "They've resigned and left because . . . nobody knows what Sprenger and Newman do with the money and the corruption" in place of the pleaded words, "they've both left because of all the money, the corruption."

[95]

[29] According to Mr Baldwin's evidence-in-chief, Mr Speigler initiated the conversation, but it would appear that Mr Brennocks was present throughout. He, implicitly, accepted or endorsed what was said by Mr Speigler and added his own comments. The words "they resigned and left because ... nobody knows what Sprenger and Newman do with the money and the corruption" were substantially a repeat of the allegations attributed to Mr Speigler in Mr Baldwin's evidence-in-chief. Mr Baldwin's diary note of the first conversation, however, attributed the allegations of dishonesty to Mr Brennocks rather than Mr Speigler. This attribution was confirmed by the witness in cross-examination. Consequently, the state of the evidence provided no scope for a rational finding that Mr Speigler was responsible for the two defamatory meanings found by the jury and Mr Brennocks for only one.

[96]

[30] Whilst accepting the caution of King CJ (with the concurrence of Olsson and O'Loughlin JJ) in R v Kirkman,[1] approved of by Gaudron, Gummow and Kirby JJ in MacKenzie v The Queen,[2] of the necessity for courts to "be very cautious about setting aside verdicts which are adequately supported by the evidence simply because a judge might find it difficult to reconcile them with the verdicts which had been reached by the jury with respect to other charges", the different awards of damages have no foundation in fact and constitute "an affront ... which is unacceptable and strongly suggests a compromise of the performance of the jury's duties" (footnote deleted).[3] The result was one "which no reasonable jury could reach.[4]

[97]

[31] This court is unable to substitute its determinations of damages for the jury's. The latter was based, at least in part, on the jury's appreciation of the oral evidence of matters such as injury to the feelings and reputation of the respondent. Questions of credibility were involved and critically "The assessment of damages is peculiarly the province of the jury in an action of libel."[5]

[98]

The primary judge misdirected the jury in placing undue emphasis on the evidence of Mr Baldwin by having his associate read part of Mr Baldwin's evidence

[99]

[32] After the jury retired, counsel for the applicants complained that Mr Baldwin's account of the first conversation was read to the jury and that the evidence given by Mr Baldwin about his diary note was not also read. He submitted that the reading of only one passage of the transcript gave undue emphasis to it.

[100]

[33] I do not see any particular difficulty in the course taken by the primary judge in having his associate read the piece of evidence which contained the words said to constitute the defamatory matter. After all, it was the first conversation which contained the defamatory words alleged to have been spoken by both applicants. In my view, that, in itself, was not unduly emphasising Mr Baldwin's evidence. It was reminding the jury of the words on which they had to concentrate should they accept Mr Baldwin's evidence. Before the passage was read, the primary judge explained that, "It is the linchpin of the plaintiff's case here", and so it was.

[101]

[34] However, the way in which this evidence was presented by the primary judge, in my view, does give rise to a legitimate complaint. The words used by the primary judge gave this evidence particular prominence. Immediately after the passage was read, his Honour said:

[102]

"You have to look at that evidence together with Exhibit 1 [Mr Baldwin's diary note] to determine whether it's reliable evidence or not in this case and assessing the evidence given by Mr Baldwin and the manner in which he gave that evidence."

[103]

[35] His Honour did not mention, in this part of his summing up, the extensive and effective cross-examination based on the diary note, the diary notes limited support for Mr Baldwin's oral evidence or, for that matter, the evidence of each of the applicants denying that they spoke the alleged defamatory words.

[104]

[36] The next matter mentioned by the primary judge was the evidence of Miss Richards. He observed "To some extent, what occurred in the room was confirmed by Ms Richards..." His Honour then read out her account in evidence-in-chief of what she heard of the first conversation. His Honour's observation and the reading out of this evidence gave further prominence to the subject part of Mr Baldwin's evidence.

[105]

"Now, the defence attack that evidence on the basis that in her statement to the solicitors, and as evidenced by the solicitor's diary note, there was no mention of Mr Newman. However, there is mention of corruption. Whether her evidence therefore is reliable is a matter for you."

[106]

This explanation did less than justice to the attack on the reliability of Miss Richard's evidence as a casual bystander, occupied with tasks of her own, with no interest in the content of the conversation or knowledge of the identity of the person or persons being spoken about. It is not even perfectly clear from the evidence that she recalled mention of the word "corruption". She said "...there was some conversation about moneys or corruption..." If Miss Richard's evidence was confirmatory of Mr Baldwin's evidence to any material extent, which is doubtful, it did not confirm that the respondent's name was mentioned.

[107]

[37] Much earlier in the summing up, referring to Mr Baldwin's oral evidence, the primary judge said:

[108]

"You compare that to Exhibit 1 and you say, well, is the discrepancy such as causes me some concern or is Exhibit 1 just a dot point reference for his own use? Baldwin says that Speigler told him there are two QPOA executives who resigned because of corruption. Well, they resigned because of corruption and no-one knows what Newman and Springer do with the money. That's what he says in the diary note. There's no mention of corruption by Speigler. There's just "etc"

[109]

Well, you've heard his explanation - that is Baldwin's explanation - that it was mainly a dot point diary. At the trial Baldwin said Brannocks (sic) told him that one of the men they're referring to talks like he's got a mouthful of marbles and he resigned because no-one knows what Springer and Newman do with the money. In the diary note there is no direct reference to Springer and Newman except "all corrupt" and at the end there's a list of names which I might add includes his friend Clark (sic). It's a matter for you whether you infer that in fact he was referring to anyone, particularly Clark (sic), as being corrupt."

[110]

[38] No defamatory statements were actually attributed to Mr Speigler in the diary note. Mr Baldwin clearly and more than once, in his cross-examination confirmed that the statements concerning corruption mentioned in the diary note were made by Mr Brennocks. He conceded also that although the names of Newman, Sprenger, Ridgewell and Clarke were added to the diary note they were not actually mentioned in the conversation, however in one part of his evidence, Mr Baldwin said that, "At the end of his conversation he [Brennocks] did mention Newman and Sprenger."

[111]

[39] It has long been accepted however that judges in civil jury trials may comment strongly on the facts. Glass JA, with whose reasons Reynolds JA agreed, said in Seymour v ABC[6] that the trial judge in a jury trial "is at liberty when summing up to express a strong opinion on the facts provided he does not take the determination of them out of jurys' hands." In Hoger v Ellas[7] Sugerman J said with apparent approval "In Holford v. Melbourne Tramway & Omnibus Co. Ltd. [1909] V.L.R. 497 at p. 520. Cussen J. referred to the right of the judge to state strongly, either expressly or by inference, his views as to the facts." See also Hobbs v Tinling (C.T) and Company Limited.[8] The summing up, however, must be balanced and fair. It was said in B v The Queen[9] that while a trial judge has a "broad discretion in commenting on the facts ... It must exhibit a judicial balance so that the jury is not deprived of an adequate opportunity 'of understanding and giving effect to the defence and matters relied on in support of the defence'."[10]

[112]

[40] In the part of the summing up under consideration the primary judge's implicit expression of a view of the facts was not something of which the applicants were entitled to complain. However, his Honour's approach, with respect, had a distinct potential to mislead the jury and prejudice the applicants. It denied the applicants procedural fairness. The summing up gave emphasis to a marginal piece of evidence, identified as supporting Mr Baldwin's evidence, and suggested a limited focus for the assessment of the reliability of that evidence. At the same time only cursory reference was made to much more cogent evidence which cast doubt on the reliability of the evidence of Mr Baldwin now being considered.

[113]

[41] In his earlier discussion of the diary note the primary judge remarked that there was "no mention of corruption by Speigler" but he failed to mention Mr Baldwin's concessions in cross-examination about what Mr Brennocks had said. Those concessions weakened the case against Mr Brennocks and were even more beneficial to Mr Speigler. His Honour gave prominence to Mr Baldwin's explanation that the diary was just a dot point reference for his own use but failed to mention his concessions that what was "dot pointed" was what he could remember and that "there was nothing else of importance" said in the first conversation. If a judge in a civil jury trial wishes to comment on the facts he or she must ensure that the way in which the comment is made is not productive of unfairness to a party.

[114]

[42] There is a pronounced reluctance to interfere with jurys' verdicts, having regard to the historical or constitutional role[11] of the jury as finders of fact. That may be so even where the trial judge has misstated the facts.[12] Finality in litigation is an important consideration.[13] Nevertheless the remedy of a new trial:

[115]

". . . has not been withheld when the fair trial of the issues has been prejudiced by a presentation in the summing up of a misguided view of the facts of the case: see Holford v. Melbourne Tramway & Omnibus Co. Ltd (3). In other words, the application of the remedy of a new trial is not restricted by any inflexible rule where it is evident that it is necessary to repair or avoid an injustice which the court sees the conduct of the former trial is calculated to produce. It is a mistake to attempt to subsume the considerations upon which a court will act in granting a new trial under a simple category, still more so to enumerate them in an exhaustive list, but, speaking generally, the court will not interfere where the whole question is one of the treatment by the judge, still less by counsel, of matter of fact. Of course if the judge's charge to the jury introduces matter of prejudice, or plainly is likely to distract the jury's attention from the real issue or issues on which liability depends, or to throw them into confusion about the case. . . the court may interfere. However, it is evident that a court must be satisfied that there would be a clear injustice if a verdict stood before it would grant a new trial simply upon the ground that the charge to the jury did not fairly and adequately submit the case of the unsuccessful party to the jury."[14]

[116]

[43] In my view the consequence of the unreasonableness of the awards of damages and of the error just addressed is that there has been a substantial miscarriage of justice and a new trial should be ordered. Leave to appeal should be given to remedy the error and correct a "substantial injustice".[15]

[117]

[44] I would order that the application for leave to appeal and the appeal be allowed, the judgment given and orders made on 17 November 2008 be set aside, the proceedings be remitted to the District Court for retrial and that the respondent pay the applicants' costs of the appeal. The costs of the trial are reserved to the court in which the retrial takes place.

[118]

[1] (1987) 44 SASR 591 at 593.

[119]

[3] MacKenzie v The Queen (Supra) at 368.

[120]

[4] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [185] per Callinan J with whose reasons Gleeson CJ agreed.

[121]

[5] Davis & Sons v Shepstone (1886) 11 App Cas 187 at 191 cited with approval by Samuels JA, with whose reasons Kirby P and McHugh JA agreed, in John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 at 134.

[122]

[6] (1977) 19 NSWLR 219.

[123]

[7] (1962) 80 WN (NSW) 869 at 875.

[124]

[8] [1929] 2 KB 1 at 33.

[125]

[9] [1992] HCA 68; (1992) 175 CLR 599.

[126]

[10] B v The Queen [1992] HCA 68; (1992) 175 CLR 599 at 605-6.

[127]

[11] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at [2].