Van Riet & Ors v ACP Publishing P/L [2003] QCA 37

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - where judgment not an amount equal to or more than the Magistrates Courts jurisdictional limit - where appellant seeks right of appeal under s 118(2) District Court of Queensland Act 1967 (Qld)

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - DEFAMATION - whether publication capable of being defamatory - whether the question of aggravated damages should have been allowed to go to the jury - whether damages awarded in each case were outside the appropriate range - whether the learned trial judge erred in not admitting evidence relevant to the first plaintiff's income prospect - whether appellant/applicant requires extension of time within which to file application

District Court of Queensland Act 1967 (Qld), s 118(2), s 118(3), s 119(2)(b)

Magistrates Courts Act 1921 (Qld), s 4, s 4(a)

Cameron v Nominal Defendant [2000] QCA 137; Appeal No 11527 of 1999, 18 April 2000, applied

Carrier v Bonham [2001] QCA 234; Appeal No 7606 of 2000, 22 June 2001, applied

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, applied

Hough v London Express Newspaper Limited [1940] KB 507, applied

Johns v Johns [1988] 1 QdR 138, considered

Woodman v Maher [2001] 1 QdR 106, considered

P D T Applegarth SC, with L D Bowden, for the respondents

Gilbert & Tobin Lawyers for the appellant/applicant

[1] McMURDO P AND JERRARD JA: The magazine, "Home Beautiful" featured illustrated articles on the home of the first respondent, an interior designer, and the second respondent, an architect, in its June and August 1998 editions. The third respondent was the company through which the second respondent conducted his architect's practice. The December 1998 edition of "Australian House and Garden", a magazine published by the appellant, ACP Publishing ("the publisher"), featured an article which the respondents contended was defamatory.

[2] An illustrated article in the June 1998 "Home Beautiful" included the following text on the home's kitchen:

"To help the rooms flow, Ellena and Jack tied the design of the breakfast table and chairs with the bar, kitchen cabinets and benchtops. The result is striking. ... they designed the kitchen to flow through to the main living areas and out onto the deck.

... Ellena and Jack wanted to make the most of this outlook.

'We chose to put extra-wide black grouting between the hand-made white, glazed terracotta floor and wall tiles. This gives a totally different look to the tiles, which is probably a little more Mediterranean,' Ellena explains.

... We chose good quality finishes, fixtures and fittings. That way it takes ages before anything needs repairing or replacing. ...

[3] In the August 1998 "Home Beautiful", the house was again featured in an illustrated article, "Home of the Month A New View on space" and included the following:

"A creative couple has designed an inviting and peaceful home ... this modern, sunny house is truly a work of art.

Art and design are important to Brisbane artist Ellena Van Riet and her architect husband Jack Van Riet. Incorporating both aspects into their home has helped them to create a unique living environment.

Ellena and Jack agree that their main concern during the design phase was to build a home which would accommodate the needs of their family. They wanted to have a central living area while still allowing themselves and their three children ... some privacy.

... The design of their new house makes the most of the views and breezes.

The design which evolved using the size and nature of the site, resulted in the layout which looks like a series of buildings linked together. ...

Internally, the Van Riets have been able to use darker colours because of the clever positioning of skylights. Extensive use of glass on the northern elevation also gives plenty of light, not to mention great views of the Mt Coot-tha bushland.

'We knew we wanted the main living area on one level, with easy access to the outdoor living areas. I also wanted the kitchen to be central so I could still be a part of everything when preparing meals,' says Ellena.

The design actually keeps all the living areas on one level, with half levels going up and down to the bedroom wings: 'I think that is what makes the house look so spacious.'

Inside, the design is in a world of its own. Ellena, originally an interior designer, loves to collect things from all over the world. African and Asian influences can be felt strongly but everything is not as it seems.

'If I like it and it fits, then it's OK,' says Ellena. 'I use the prayer cabinet as a wine rack. Things don't have to be properly coordinated, and I think the room looks better if they're not. Special pieces make their own statement - I see each piece as a work of art.' "

[4] In the December 1998 "Australian House and Garden", the Van Riet home again featured in an illustrated article "50 Top Designers". It is this article which the respondents contend was defamatory. It was précised in the index as "What are the happening looks in Australian interiors at the moment? For our birthday issue we ask 50 of Australia's top designers to put their cards on the table and show us their favourite room. The results may surprise you."

[5] The second respondent as architect designed the house and the first respondent as interior designer was principally responsible for its interior decoration and they had both used the home to promote these respective talents. They were therefore indeed surprised by the following text accompanying photographs of their home (some of which had appeared or were similar to photographs in the June and August 1998 editions of "Home Beautiful"):

Greg Harris designed a warm, contemporary scheme for the open-plan living and dining space of architect Jack van Riet's Queensland home. The van Riets collect art and artefacts and 'the blend of Oriental and contemporary makes it work,' says Greg. 'Masks and a pot on an iron stand, together with a blend of primitive African, Japanese and Chinese elements, and the metal fireguard from India, make it a very eclectic experience,' he adds. The open space, warm timbers on the floor and a section of the ceiling and the transition of textured watermelon and ochre pain colours on the walls create impact, without being too overpowering.

Contact Greg Harris Interior Design on mobile 0413 735 938."

[6] The first respondent's solicitors, who later represented all respondents, wrote to the editor of "Australian House and Garden" on 2 December 1998, explaining the first respondent's concerns and seeking a full and unqualified apology and retraction in an approved form; prominent publication in a feature article in the next issue of the magazine; an undertaking to refrain from making similar statements; an indemnity for reasonable costs then incurred and the appellant's proposal to make amends for the loss, damage and embarrassment caused by the article. The letter also stated that the first respondent purchased eight chairs and a sideboard from Mr Harris in 1995; engaged him to construct a dining room table after the first respondent had largely completed the interior design and decoration of the house; and engaged Mr Harris to construct a sofa designed by and using fabric purchased by her. Mr Harris was not involved in choosing the colour schemes for the walls to the living area or dining room. In August 1998, the first respondent gave Mr Harris access to the home for the limited purpose of being photographed with the table.

[7] On 9 February 1999, the solicitors again wrote to the editor informing her that further enquiries indicated that Mr Harris did not authorise the publication and had impressed upon the reporter that the interior had been built and designed by the respondents; in a telephone conversation on 27 November 1998, the reporter told the second respondent that Mr Harris had said that the first respondent was responsible for the interior design of the home; that Mr Harris did not suggest that he had designed the rooms; and that the reporter included this in her draft article but this had been removed when edited. The solicitors repeated the previous grievances and indicated that in the absence of any substantive response to their letter of 2 December 1998 they would be issuing legal proceedings on behalf of their clients.

[8] No apology followed and the respondents issued proceedings claiming the publisher's December article, by way of innuendo, meant or was understood to mean first, that they falsely claimed to be responsible for the interior design of the living and dining areas of their home; second, that they misled and deceived members of the public into believing that they were responsible for the interior design of their home; and third, that they were not prepared to rely upon the first respondent's interior design skills and instead engaged Greg Harris as an interior designer of their living and dining areas, including the choice of timbers, walls and ceiling covers. The respondents also claimed the ordinary "grapevine" effect, particularly amongst those supplying and engaging in architectural and interior design services.

[9] The trial was heard by a jury in the District Court at Brisbane over six days. The learned primary judge struck out the third respondent's claim on the afternoon of the fourth day.

[10] The jury answered the questions for its determination as follows:

"1. Would ordinary reasonable persons who read the words pleaded in paragraph 10(b) of the Statement of Claim[1]

with knowledge of the extra facts, understand the words to mean that:

(a) the Van Riets falsely claimed to be responsible for the interior design of the living and dining areas of their home?

(b) the Van Riets misled and deceived members of the public into believing that they were responsible for the interior design of their home?

(c) the Van Riets were not prepared to rely upon the services of Merle Ellen Van Riet and they engaged Greg Harris to design the interior scheme of the living and dining areas of their home, including choice of timbers, walls and ceiling covers, rather than use Merle Ellen Van Riet to undertake its interior design?

2.(a) If the answer to questions 1(a), 1(b) and 1(c) is 'Yes', then is the meaning or meanings found concerning Merle Ellen Van Riet?

2.(b) If the answer to questions 1(a), 1(b) and 1(c) is 'Yes', then is the meaning or meanings found concerning Jack Van Riet?

3.(a) If the answer to question 2(a) or 2(b) is 'Yes', then is the meaning or meanings found defamatory of Merle Ellen Van Riet?

3.(b) If the answer to question 2(a) or 2(b) is 'Yes', then is the meaning or meanings found defamatory of Jack Van Riet?

4. If the answer to question 3(a) is 'Yes', do you award compensatory damages to Merle Ellen Van Riet?

5. If the answer to question 4 is 'Yes', what sum to you award as compensatory damages?

6. If the answer to question 3(b) is 'Yes', do you award compensatory damages to Jack Van Riet?

7. If the answer to question 6 is 'Yes', what sum do you award as compensatory damages?

8. If the answer to question 3(a) is 'Yes', do you award aggravated damages to Merle Ellen Van Riet?

9. If the answer to question 10 is 'Yes', what sum do you award as aggravated damages?

10. If the answer to question 3(b) is 'Yes', do you award aggravated damages to Jack Van Riet?

11. If the answer to question 12 is 'Yes', what sum do you award as aggravated damages?

[11] The publisher has filed both an appeal and, out of time, an application for leave to appeal. It purports to appeal from the jury's findings, contending that the words relied on as being defamatory were not capable of bearing the meaning attributed to them by the respondents; that the jury findings on fact were unreasonable; that the awards of damages were manifestly excessive and that the learned trial judge should have withdrawn all the claims from the jury's consideration, or at least the claim as to aggravated damages, and erred in the directions as to aggravated damages. The respondent contends that the publisher has no right of appeal and requires an extension of time within which to apply for leave to appeal.

[12] The third respondent has filed an application for leave to appeal and a cross-appeal from the learned primary judge's order against it as to costs, both of which are arguably out of time.

[13] The first issue is whether the publisher has a right of appeal under s 118(2) District Court Act 1967 (Qld) ("the Act") or requires leave under s 118(3) of the Act. If leave is required, the publisher requires an extension of time within which to file that application.

"(2) A party who is dissatisfied with a final judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment -

(i) for an amount equal to or more than the Magistrates Courts jurisdictional limit; or

(ii) in relation to a matter at issue with a value equal to or more than the Magistrates Courts jurisdictional limit; or

(b) involves directly or indirectly any claim, demand or question in relation to any property or right with a value equal to or more than the Magistrates Courts jurisdictional limit.

'Magistrates Courts jurisdictional limit' means the amount of the jurisdictional limit of Magistrates Courts for personal actions started in the Magistrates Courts Act 1921, section 4(a)."

That jurisdictional limit is currently $50,000.[2]

2. The Defendant ordered to pay the First Plaintiff the sum of $48,000.

3. The Defendant ordered to pay the Second Plaintiff the sum of $12,000.

4. The Defendant pay the First Plaintiff's costs to be assessed on an indemnity basis, with the exception of the costs of one day's hearing.

5. The Defendant pay the Second Plaintiff's costs to be assessed with the exception of the costs of one day's hearing.

6. The Defendant pay interest on $48,000 to the First Plaintiff at the rate of 2% per annum for three years.

7. The Defendant pay interest on $12,000 to the Second Plaintiff at the rate of 2% per annum for three years.

8. The Third Plaintiff pay the Defendant's costs as are referable to the Third Plaintiff (but fixed at one quarter) of the total costs of the action, including the trial, to be assessed."

[16] Mr Favell, who appears for the publisher, no longer advances the argument that a right of appeal lies under s 118(2) of the Act because the dissatisfied party is entitled to add together the judgment sums involving both the first and second respondents before it is determined whether the amount or matter at issue exceeds the $50,000 limit.

[17] The final judgment in favour of the second respondent of $12,000 damages, even with interest and costs added, does not exceed $50,000. Mr Favell submits, however, that although the $48,000 damages award to the first respondent was below the Magistrates Courts jurisdictional limit, once interest and costs are added, judgment has been given "for an amount"[3] or is "in relation to a matter in issue with a value equal to or more than the Magistrates Courts jurisdictional limit".[4]

[18] In Johns v Johns[5] the Queensland Full Court considered a provision similar to s 118[6] and determined that interest was not to be taken into account in deciding whether the sum sued for exceeded the jurisdictional limit, referring with approval to Turley v Saffin;[7] jurisdiction is determined by the amount claimed, whilst interest is something additional and does not result in the judgment being given for a sum in excess of the legislative limit.[8] Subject to what is said later in these reasons, a similar observation may be made as to costs.[9]

[19] Consistent with the approach in Johns v Johns, the civil monetary jurisdiction of Magistrates Courts is $50,000 exclusive of interest and costs. The judgment given in favour of the first respondent of $48,000 plus interest and costs was therefore within the jurisdictional limit of the Magistrates Court. This approach seems generally consistent with that taken in the interpretation of s 118(2)(b) of the Act in Woodman v Maher.[10] It follows that the judgment in favour of the first respondent was not given "for an amount" or "in relation to a matter at issue with a value equal to or more than the Magistrates Courts jurisdictional limit".

[20] This interpretation is not without problems because, unlike the position in the Supreme Court where leave is required to appeal from a costs order,[11] s 118(2) gives a party a right of appeal from an order for costs which is a final judgment, if the amount of the costs order exceeds the jurisdictional limit. That inconsistency seems irrational and may justify legislative intervention.[12] There is no suggestion, here, however that the costs order against either respondent equalled or exceeded $50,000 and the publisher does not purport to appeal specifically from any costs order.

[21] As the judgment in favour of each respondent, excluding interest and costs, is not equal to or more than the Magistrates Court jurisdictional limit, the publisher requires leave to appeal under s 118(3) District Court Act 1967 (Qld).

[22] The next issue is whether the publisher has established grounds justifying the grant of leave to appeal. This warrants some consideration of the grounds of appeal sought to be pursued.

(a) Was the article capable of being defamatory?

[23] Mr Favell contends that there was no evidence that any person who read the December 1998 article believed from any source that the second respondent, or the Van Riets collectively, were responsible for the interior design of the living and dining areas of their home.

[24] Where it is alleged that words are capable of being understood by innuendo as defamatory, a claimant must at least establish that there are persons who know the special facts and so might understand the words in that secondary, defamatory sense, although it is not necessary to prove they did in fact understand them in that sense: Hough v London Express Newspaper Limited.[13]

[25] The passages quoted earlier in these reasons from the June and August 1998 editions of "Home Beautiful" are evidence of a claim by the first and second respondents to be jointly responsible for the interior design of the living and dining areas of their home.[14]

[26] They also gave uncontroverted evidence that they designed and decorated the home, including the lounge and dining areas, and had informed professional associates, clients, friends and acquaintances of this, especially when they entertained at home, showcasing their design skills. They described experiencing great anguish occasioned by the December article attributing portion of the interior design to a third party. The first respondent's evidence was that she was particularly embarrassed, humiliated, and angered by the imputation, understood by her and which she expected to be understood by others, that she has been falsely claiming and receiving credit for that interior design.

[27] The respondents' witnesses gave uncontroverted evidence that the first and second respondents had claimed to various friends, family and business acquaintances that they were responsible for the interior design of their house. Some witnesses became aware of this through conversations with the respondents or when they visited their home; one witness read the August 1998 article. These witnesses were shocked by the December 1998 article, although they did not believe it. The evidence was that the first respondent was primarily responsible for the interior decoration but, contrary to the publisher's contentions, the concept of design goes beyond decoration and includes such things as the positioning, shape and size of rooms, windows and doors, the height and raking of ceilings, floor levels and the choice of internal building materials. The evidence, if accepted, was capable of establishing that the witnesses believed the second respondent and the Van Riets collectively both claimed and were responsible for the interior design of the living and dining areas of their home.

[28] The respondents' case was well capable of establishing that persons with knowledge of their claim (that they were responsible for the design and decoration of their home), might understand the December 1998 article as stating that the first and second respondents falsely claimed to be responsible for the interior design of the living and dining areas of their home; that they misled and deceived members of the public into believing this and that they were not prepared to rely on the first respondent's interior design skills and instead engaged Greg Harris as an interior designer of their living and dining areas. It was not necessary to go further and to establish that the respondents' witnesses believed the defamation.[15] Whether these facts constituted defamation was a jury question.[16]

[29] The learned primary judge was right to allow the case to go to the jury; the pleaded innuendoes were capable of arising from the publication; witnesses read it and knew the extrinsic facts on which the innuendoes were based; the jury verdict that the article was defamatory of each respondent was open on the evidence. This is not a matter justifying the grant of leave to appeal.

(b) Was there evidence of aggravated damages?

[30] Mr Favell rightly points out that the mere absence of an apology is not, on its own, necessarily sufficient to justify an award of aggravated damages.[17] He contends that there was no evidence that the publisher's conduct in not apologising was lacking in bona fides or was improper or unjustifiable.

[31] Absence of an apology may be a relevant factor[18] in determining bona fides; the respondents also relied on the grapevine effect as time passed with no apology. At the trial the appellant did not attempt to contradict any of the facts asserted in the respondents' correspondence through its solicitors to the appellant, and in which the respondents set out what they contended was the correct description of the actual and limited contribution made by Mr Harris. Whether the evidence justified an award of aggravated damages was a matter for the jury.

[32] Mr Favell contends that her Honour's directions to the jury as to aggravated damages were insufficient but he gives no particulars of that complaint. In a redirection, her Honour highlighted each parties' case as to aggravated damages and emphasised that the question was whether the publisher's conduct in refusing to apologise was not proper, justifiable or bona fide, consistent with Triggell v Pheeney. The award for aggravated damages of $8,000 was modest. The publisher has failed to establish that this issue warrants the granting of leave to appeal.

[33] The publisher next contends that the accountant's report as to the first respondent's losses should not have been accepted in evidence because the premises on which it was based were not established and it was not sufficiently linked to the defamation; it wrongly coloured the verdicts.

[34] The report calculated the first respondent's loss of income until trial at $26,271 with a discounted future after tax loss of income, retiring at age 60 years, of $83,639. The first respondent gave evidence that she had intended to work until aged 60 as an interior decorator but did not because of the defamation. The learned primary judge carefully reminded the jury that the defence case was that the accountant's report was based on inaccurate assumptions, leaving the determination of the issue to them. The first respondent was awarded compensatory damages of $40,000; the jurors were obviously circumspect in accepting the report. It is likely on the evidence that compensatory damages included matters other than economic loss. This contention is not one warranting the granting of leave.

[35] The publisher contends the damages awarded were manifestly excessive.

[36] Courts will not lightly interfere with a jury verdict as to the quantum of damages. The applicant has failed to show that the award is unsustainable on the evidence[19] or that the relatively modest awards were inconsistent with the evidence or were so excessive as to be outside the proper range.

[37] In circumstances where an appeal, instead of an application for leave to appeal, was filed within time, we would extend the time to file the application for leave to appeal. We would, however, refuse the publisher's application for leave to appeal because it has failed to establish that it has any realistic prospect of success in any appeal.

The third respondent's application for an extension of time within which to cross-appeal

[38] Judgment was given on Monday, 25 March 2002 and the respondents were served with the publisher's notice of appeal on 22 April 2002. The third respondent then gave instructions to appeal against the costs order made against it.[20]

The third respondent filed an application for leave to appeal under s 118(3) of the Act on 3 May 2002, a few days out of time if not treated as an application for leave to cross-appeal. It then filed a notice of cross-appeal on 7 May 2002, again a few days out of time.

[39] An order as to costs is a final judgment and a right of appeal lies from a costs order, which is equal to or more than the Magistrates Courts jurisdictional limit.[21] Affidavit material before us suggests that the third respondent's liability for costs under the order would not be more than $25,000, an amount or issue with a value less than the Magistrates Courts jurisdictional limit. Leave is therefore necessary under s 118(3) of the Act.[22]

[40] There is no provision for cross-appeals under s 118 of the Act but it seems this Court nevertheless has the power to entertain cross-appeals from the District Court.[23] The third respondent's application can be treated as an application for leave to cross-appeal so that it is within time. Arguably, as the publisher's application for leave to appeal has been refused, so too must the application for leave to cross-appeal, but we are prepared to deal with the third respondent's application on its merits.

[41] The third respondent contends that the learned trial judge erred in concluding that one-quarter of the trial had been taken up with its claim, which was struck out half way through the fourth day of the six day trial; in fact, little or no extra evidence was involved in pursuing the third respondent's claim.

[42] The appeal sought to be argued concerns the exercise of a judicial discretion as to costs. The learned primary judge was better placed than this Court to make that decision. The third respondent has not established that the exercise of discretion was so extraordinary as to warrant the granting of leave to appeal or cross-appeal. Its application for leave to appeal should be refused and its cross-appeal should be dismissed.

1. Dismiss the applicant/defendant's appeal with costs to be assessed. Extend the time within which to file the applicant/defendant's appeal until 3 May 2002. Refuse the applicant/defendant's application for leave to appeal with costs to be assessed.

2. Refuse the applicant/third respondent's cross-appeal and application for leave to appeal with costs to be assessed.

[43] DAVIES JA: These are appeals against judgments given in the District Court on 25 March 2002 for damages of $48,000 with interest in favour of Merle Ellen Van Riet, the first plaintiff in the action, and $12,000 damages with interest in favour of Jack Van Riet the second plaintiff in the action. The appellant was the defendant in the action and the publisher of a magazine "Australian House & Garden". The damages were awarded by a jury for defamation. There was a third plaintiff in the action, Van Riet Architects Pty Ltd which was struck out of the action on the fourth day of hearing and there is an application for leave to appeal by that plaintiff against an order that it pay such of the defendant appellant's costs as are referable to that plaintiff fixed at one-quarter of the total costs of the action. There were also orders that the defendant appellant pay the costs of the other plaintiffs.

[44] A question arises at the outset whether the defendant's appeal against the judgments for $48,000 with interest and $12,000 with interest require leave. There does not seem to be any doubt that the latter of those does. The judgment is plainly not a judgment for an amount equal to or more than the Magistrates Courts jurisdictional limit.[24] However it was submitted that, in determining whether the other judgment was one for an amount equal to or more than the Magistrates Courts jurisdictional limit both interest and costs may be included.

[45] The phrase "Magistrates Courts jurisdictional limit" is defined in s 118(10) of the District Court of Queensland Act 1967 ("District Court Act") to mean the amount of the jurisdictional limit in the Magistrates Courts for personal actions stated in the Magistrates Courts Act 1921 (Qld) s 4(a). That is, personal actions in which the amount claimed is not more than $50,000. That seems to imply that a claim may be made in the Magistrates Court for $50,000 damages and judgment given for that sum together with interest and costs. Consequently it would follow that the judgment for $48,000 together with interest and costs was not a judgment given for an amount equal to or more than the Magistrates Courts jurisdictional limit.

[46] Moreover s 118(2)(a), of the District Court Act and s 4(a) of the Magistrates Courts Act together have much the same effect, in this respect, as the former s 92(1)(a)[25] of the District Court Act, the predecessor of s 118(2)(a). In Johns v Johns[26] Williams J, with whom Connolly and Shepherdson JJ agreed, in construing that section, said:

"In my view, for the purposes of s 92(1)(a) one must ignore the claim for interest pursuant to s 72 of the Common Law Practice Act 1867-1978. The legislature obviously carefully used the expression 'the sum sued for' in contrast to the expression 'amount involved' which is used in s 11 of the Magistrates Courts Act 1921-1982. ...

A reading of s 72 of the Common Law Practice Act indicates that the interest, although it has been described as being of the nature of damages ... is something additional to or superimposed on the sum for which judgment is being given, and does not form part of 'the sum sued for' which postulates an identifiable amount."

[47] For those reasons, in my opinion, the appeal against each judgment requires leave of this Court. Whether such leave should be granted requires a consideration of the substantive questions sought to be argued.

[48] Mr Favell who appeared for the appellant defendant sought to argue four substantive questions. They were whether the imputations alleged were capable of arising from the publication, whether the question of aggravated damages should have been allowed to go to the jury, whether the damages awards in each case were outside the appropriate range and whether the learned trial judge should have admitted an accountant's report relevant to the first plaintiff's income prospects. The questions arise in the following way.

[49] The first plaintiff was at relevant times an artist and interior decorator. The second plaintiff, who was her husband, was a practising architect. Together they had designed the home in which they lived with their children. He had been responsible for the architectural work, she for the interior design. They used the home to promote their respective businesses in the sense that they would invite prospective clients and others who might promote their work to their home for that purpose. A number of witnesses gave evidence about seeing the interior of the house and being told by the Van Riets that together they were responsible for it, he for the architectural aspects, she for the design, including the colour scheme and furnishing.

[50] In August 1998 their home was featured in "Home Beautiful" magazine. It and they appeared on the front cover and an article about it appeared to be the main feature article. It commenced:

"A creative couple has designed an inviting and peaceful home ... "

"Art and design are important to Brisbane artist Ellena Van Riet and her architect husband Jack Van Riet. Incorporating both aspects into their home has helped them to create a unique living environment."

Featured on the same page was a picture of the interior of the dining room in their house with the description:

"Coloured feature walls and warm wood make the dining room appealing and intriguing."

On the following page there is a picture of the living room with the description:

"The layout of the house is open plan, particularly in the main living areas, but colour schemes and placement of furniture allow each space to be clearly defined."

"Internally, the Van Riets have been able to use darker colours because of the clever positioning of skylights.

Inside, the design is in a world of its own. Ellena, originally an interior designer, loves to collect things from all over the world."

[51] Then in "Australian House & Garden" magazine for December 1998 there appeared a picture of the Van Riets' dining room, similar to one of the pictures which had appeared in the "Home Beautiful" article and on the following page under the heading "Greg Harris" appeared the following:

"Greg Harris designed a warm, contemporary scheme for the open plan living and dining space of architect Jack van Riet's Queensland home. The van Riets collect art and artefacts and 'the blend of oriental and contemporary makes it work', says Greg. 'Masks and a pot on an iron stand, together with a blend of primitive African, Japanese and Chinese elements, and the metal fireguards from India, make it a very eclectic experience', he adds. The open space, warm timbers on the floor and a section of the ceiling, and the transition of textured watermelon and ochre paint colours on the walls create impact, without being too overpowering. Contact Greg Harris Interior Design on mobile 0413 735 938."

[52] The plaintiffs claimed that this article meant:

(a) that the Van Riets falsely claimed to be responsible for the interior design of living and dining areas of their home;

(b) that they misled and deceived members of the public into believing that they were responsible for the interior design of their home;

(c) that they were not prepared to rely upon the first plaintiff's services and engaged Greg Harris to design the interior scheme of the living and dining areas of their home including choice of timbers, walls and ceiling covers rather than use the first plaintiff to undertake its interior design.

The first of the substantive questions: whether the imputations were capable of arising from the publications

[53] The plaintiffs did not claim that any of those meanings appeared on their face from the article. They contended that those meanings arose by way of innuendo from the facts that

(a) the Van Riets had claimed, prior to December 1998, (as was the fact) that they were responsible for interior design of their home;

(b) the offending article attributed the design of the lounge/dining room area to Greg Harris; and

(c) to persons who had knowledge of the claims referred to in (a), the article conveyed that the Van Riets had falsely claimed to be responsible for the interior design of the lounge/dining room area.

The claims referred to in (a) were made, it was alleged, by the Van Riets personally to persons invited to their home and in the article which appeared in the August issue of "Home Beautiful".

[54] The evidence plainly established that some persons who read the article published in "Australian House & Garden" knew of the claims by the Van Riets of responsibility for the interior design of their home. The evidence of Mrs Doyle, Mr Upton, Mrs Gamble and Mrs Creswick was to that effect. The first three of those witnesses said that they understood that from what each of the Van Riets had said. But Mrs Creswick had also read the August issue of "Home Beautiful" and understood, correctly in my opinion, that in that article also the Van Riets were making that claim.

[55] This evidence was sufficient to prove, if believed, that the Van Riets had claimed, prior to December 1998, to persons who later read the December 1998 article, that they were responsible for the interior design of their home. And that article, in my opinion attributed the design of the lounge/dining room of their home to Greg Harris.

[56] The question for the judge then was whether the article was capable of conveying any and which of the meanings set out in [52] to persons who knew of the Van Riets' claim and read the article. And the question for the jury was whether the article conveyed any and which of those meanings to any such persons.[27] The former of those questions is the first of the four substantive questions which Mr Favell sought to address in this appeal.

[57] In order to answer either of those questions affirmatively it was not necessary to prove that any of those persons believed the Van Riets' claim to have been false. It was sufficient, for the judge to permit this question to go to the jury, that the article was capable of conveying meaning (a) or meaning (b) (possibly among others) to such persons; and sufficient, for the purpose of proving meaning (a) or meaning (b), that the article conveyed that meaning (possibly among others) to those persons.[28] It was sufficient for her Honour that reasonable people who knew the special facts might understand it in the defamatory sense.[29] It does not matter that some people who knew the special facts did not believe the imputation.[30]

[58] Once an imputation is proved some general damage is presumed;[31] that is, where a defamatory imputation is published, the likelihood of damage is presumed. So, in the present case, the defamation having been published to persons who knew the special facts, it may be presumed that some damage resulted.

[59] If, as I think, reasonable persons who knew the special facts, having read the article, might understand it in either of the defamatory meanings in (a) or (b), it follows that they might also well understand it to mean that the plaintiffs, whilst promoting to others the interior design skills of the first plaintiff, were not prepared to rely on them for their own home; that is, the meaning in (c). It follows that, in my opinion, all of the imputations alleged were capable of arising from the December 1998 publication.

The second question: whether the question of aggravated damages should have been allowed to go to the jury

[60] On 2 December 1998 the plaintiffs' solicitors wrote to the editor of "Australian House & Garden" informing her that the attribution to Mr Harris of responsibility for the interior design of the plaintiffs' living and dining areas, made in the December 1998 article, was false. It set out full details of the plaintiffs' relationship with Mr Harris and thereby exposed the falsity of that attribution. It sought an apology and a retraction. The letter concluded by informing the editor that the apology and retraction was sought in an attempt to mitigate continuing damage being done to the plaintiffs by the article. It said that a failure to provide such apology and retraction would aggravate the damage done to the plaintiffs and deprive those who were responsible for the publication of the opportunity to contend that they had acted in good faith in relation to the matter. There was no reply to that letter.

[61] On 9 February 1999 the plaintiffs' solicitor wrote a further letter to the editor of Australian House & Garden which contained the following:

"1. Mr Harris did not authorize your publication to suggest that he had designed the room in question. On the contrary, he impressed upon your reporter that the interior had been built and designed by our clients;

2. Mr Harris was not given any opportunity to review the text of the article prior to its publication and if an opportunity had been given to him he would have told your magazine to delete reference to him designing the room and to give credit to our clients;

3. Mr Harris regrets that the article gave him credit for the interior design of the home when he did not make any suggestion of this to the reporter;

4. On 27th November 1998 in a telephone conversation between Mr Van Riet and your reporter, your reporter advised:-

4.1 that Mr Harris had informed her about Ellena Van Riet's involvement in the interior design of the home;

4.2 Mr Harris did not suggest that he had designed the room or that the colours had come from him;

4.3 your reporter was aware that Mr Harris did not design the spaces and the colours or the furniture, but merely supplied certain furniture;

4.4 the reporter included reference to Ellena Van Riet's involvement in the interior design in the draft of the story;

4.5 the reference to Ellena Van Riet must have been sub-edited;

4.6 the reporter never sees the revised article prior to publication.

In short, your magazine knew at the time of publication that our clients, and Ellena Van Riet in particular were responsible for the interior design of the home, but published an article which suggested, instead, that Mr Harris was."

[62] It is no doubt correct to say that it is difficult to see how the mere absence of an apology can aggravate damages.[32] However what occurred here was much more than a mere absence of an apology. It was a failure to apologize after it had been pointed out to the defendant that Mr Harris, the subject of the December 1998 article, did not authorize the defendant to suggest that he had designed the room in question; that on the contrary he had said that the interior had been built and designed by the plaintiffs; and that, had he been shown a draft of the article before it was published, he would have requested deletion of the reference to his designing the room. Moreover the letter of 9 February pointed out that the reporter who wrote the article admitted to having been informed by Mr Harris that the first plaintiff, not he, had designed the room and that he had not designed the colours or the space or the furniture but merely supplied certain furniture; and that the reporter said that the article as originally submitted had included reference to the first plaintiff's involvement in the interior design but that that reference must have been deleted by the sub-editor.

[63] It was therefore a case in which, notwithstanding that the falsity of the article had been satisfactorily demonstrated to the defendant, it still failed to give even a qualified apology. Its failure to do so in those circumstances was capable of being seen as improper and unjustifiable and demonstrating a lack of bona fides; and reasonable people may well have concluded that, in those circumstances the absence of an apology increased the embarrassment and hurt which the plaintiffs suffered.[33] In my opinion her Honour was correct in leaving the question of aggravated damages to the jury.

[64] A general complaint was made about her Honour's directions in this respect. However this was not particularized in argument and it was not established. In the end it did not seem to be relied on.

The third question: whether the damages awards in each case were outside the appropriate range

[65] In Carson[34] the majority of the High Court said:

"The governing principle applying to an appeal against a jury verdict on the ground that it is excessive was expressed in Triggell v Pheeney by Dixon, Williams, Webb and Kitto JJ in these terms:

'The rule when a court of appeal is asked to set aside a verdict of a jury on the ground that the damages awarded are excessive is the same in libel actions as in any other cases, viz., that the verdict should not be disturbed unless the amount is such that no reasonable body of men could have awarded it: per Macarthur J, Falcke v Herald & Weekly Times Ltd.' "[35]

[66] The jury were entitled to accept, from the evidence of the first plaintiff, that the publication had a devastating effect on her personally and on her career plans. At about 50 years of age she had commenced a new career as an interior decorator. Her self-confidence and her career prospects were boosted by the two articles in "Home Beautiful". They had also been boosted by her feeling that those who had seen her work in the home admired it. She was shocked and very upset by the offending publication. She was concerned that people would distrust her. She became depressed and lost interest in her work. She said that she felt she needed an apology which was not forthcoming. She gave up designing in March 1999 and reverted to doing clerical work.

[67] It was open to the jury to conclude from her evidence that her motive in starting on this career was not just the making of money. It was something which she thought would improve her self-esteem as well as giving her job satisfaction. It is important to appreciate that the awards in both cases, but especially in that of the first plaintiff may have been as much for the personal effect which the jury may have thought the publication and the persistent failure to apologize had on the plaintiffs as for any monetary loss. It should be mentioned that the second plaintiff also expressed his disappointment at no longer having his wife working with him in his business and his annoyance and upset that this had been caused by the publication and, they both might have thought, by a callous disregard of the evidence produced that the article was false. Both expressed the view that an apology would have made a big difference.

[68] Acting in according with the principles to which I have referred I do not think that that there is any basis upon which this Court ought to set aside the verdict of the jury on the ground that the damages awarded are excessive.

The fourth question: whether the learned trial judge should have admitted the accountant's report relevant to the first plaintiff's income prospects

[69] The report was made on a number of assumptions and the learned trial judge made it clear that the admissibility of the report was dependent upon proof of those assumptions. It was admitted on that basis. The first plaintiff gave evidence with a view to making good those assumptions. Whether she did so satisfactorily was a matter for the jury. But Mr Favell did not point to any assumption made in the report about which there was no evidence at all. No complaint is made about her Honour's directions in respect of this report or proof of the assumptions on which it was based. On the contrary the weaknesses in this evidence were pointed out to the jury by her Honour. I would reject the appellant's contentions on this question.

[70] The respondent sought leave to cross-appeal in respect of a costs order made against the third plaintiff Van Riet Architects Pty Limited. The order was that it pay the defendant's costs as were referable to the third plaintiff (but fixed at one-quarter) of the total costs of the action including the trial to be assessed. It does not seem to have been disputed that any such appeal requires leave, the amount of such costs plainly being less than $50,000.

[71] The third plaintiff which was the company which carried on the architectural business, both the first and second plaintiffs being employed by it, had claimed loss of business and custom. On 11 October 2001, about five months before the commencement of the trial, its solicitor indicated to the defendant's solicitor that it would abandon that claim and that no evidence would be adduced to prove any such loss. Nevertheless the third plaintiff remained in the action and maintained a claim for $50,000 general damages.

[72] At the conclusion of evidence on the fourth day of the trial counsel for the defendant submitted that the third plaintiff's claim should not go to the jury and her Honour ruled that it should not. She said that she was satisfied that there was no evidence on which that claim could be maintained.

[73] Mr Applegarth SC, for the plaintiffs respondents, submitted that the third plaintiff's claim occupied very little in the way of time or effort beyond that taken up on the claim by the first and second plaintiff. The affidavit evidence on this question from the respective solicitors is conflicting and in my opinion it is impossible to resolve that conflict without hearing evidence from each. However the resolution of this issue involves no question of law or of general importance. Nor was any other basis suggested for granting leave to appeal and I would refuse leave.

[74] Nor does there appear to be any substantial dispute on matters of principle in the defendant's appeal. Rather the arguments went to the application of relevant principles by the learned trial judge. Having concluded that her Honour did not misapply any such principles I think the appropriate order would be to refuse leave to appeal.

1. Dismiss the application by the appellant ACP Publishing Pty Limited for leave to appeal;

2. dismiss the application by the appellant Van Riet Architects Pty Ltd for leave to appeal;

3. order that the appellant ACP Publishing Pty Limited pay the first and second respondent's costs of the appeal.

[1] As set out in para [ of these reasons.

2] Magistrates Courts Act 1921 (Qld), s 4.

[5] [1988] 1 QdR 138, 140-141.

[6] Section 92 District Courts Act 1967 (Qld) (the predecessor of s 118) which allowed appeals to the Full Court by

"(1) Any party who is dissatisfied with the final judgment of a District Court ...

(a) in an action or matter in which the sum sued for exceeds $5,000."

[7] (1975) 10 SASR 463

[8] This has been given statutory effect: see s 68(3) District Court Act 1967 (Qld).

[9] See Carrier v Bonham [2001] QCA 234; Appeal No 7606 of 2000, 22 June 2001, [41].

[10] [2001] 1 QdR 106, 110-112.

[11] Section 253, Supreme Court Act 1995 (Qld).

[12] See the observations of this Court in Carrier v Bonham, [41].

[13] [1940] 2 KB 507, 514, 515.

[16] Section 18, Defamation Act 1884 (Qld).

[17] Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, 514.

[18] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 67.

[19] Coyne v Citizen Finance Limited [1991] HCA 10; (1991) 172 CLR 211, 215; Carson v John Fairfax & Sons, ibid.

[20] See para [ of these reasons.

21] Colburt v Beard [1992] 2 QdR 67, 67; Timms v Clift [1997] QCA 61; [1998] 2 QdR 100,107; cf s 253 Supreme Court Act 1995 (Qld).

[22] Cameron v Nominal Defendant [2000] QCA 137; Appeal No 11527 of 1999, 18 April 2000, [6].

[23] See s 119(2)(b), Trivett v Hurst (1937) StRQd 265 and UCPR rr 754-756.

[24] District Court of Queensland Act 1967 (Qld), s 118(2)(a)(i); Magistrates Courts Act 1921 (Qld), s 4(a).

"(1) Any party who is dissatisfied with the final judgment of a District Court ...

(a) in an action or matter in which the sum sued for exceeds $5,000.00;

may appeal to the Full Court of the Supreme Court."

[26] [1988] 1 QdR 138 at 140, 141.

[27] Defamation Act (Qld), 1889 s 18.

[28] Hough v London Express Newspaper Ltd [1940] 2 KB 507; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1246.

[30] Ibid. Even if all people who knew the special facts, having read the article, did not believe the imputation, it does not necessarily follow that there has been no damage, because the plaintiffs may reasonably have suffered annoyance or embarrassment: Morgan at 1246, 1252.

[31] Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 at 507.

[32] Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 66.

[33] Clark v Ainsworth [1996] NSWSC 610; (1996) 40 NSWLR 463 at 466, 473; Cooke v Wood, VSCA 5099 of 1996, 11 December 1997; Butterworths Unreported Judgments BC9706718 at 16 - 19.

[35] See also at 67 - 69, 88 - 89, 114 - 117.