Australian Consolidated Press Ltd v Uren

[1966] HCA 37

HIGH COURT OF AUSTRALIA

McTiernan, Taylor, Menzies, Windeyer and Owen JJ.

AUSTRALIAN CONSOLIDATED PRESS LTD. v. UREN

(1966) 117 CLR 185

2 June 1966

Defamation—Appeal

Defamation—Damages—Exemplary damages—When may be awarded. Appeal—New trial—Misdirection that exemplary damages may be awarded—Excessive damages awarded—Counsel's prejudicial advocacy at trial—New trial generally or limited to damages.

Decisions

1966, June 2.
The following written judgments were delivered:
McTIERNAN J. I agree with the conclusion of the State Full Court that no miscarriage of justice resulted from the refusal of the trial judge to grant the defendant's application for the discharge of the jury or for a long adjournment of the trial. I also agree that the amount of damages awarded under the first and second counts is excessive, and that there should be a new trial of each count limited to damages. I would not interfere with the order of the State Full Court that the new trial be limited to damages. This order is based on the decision of the majority of the Court. I agree with their reasons for confining the new trial to the issue of damages. It seems to me that the explanation of the large amounts of damages assessed under the first and second counts is that the jury understood from the summing up that they could award both compensatory and exemplary damages under each of those counts. In my view, the question whether there was proof of circumstances which would entitle the jury to award exemplary damages should be decided according to decisions of this Court. I have stated my reasons for not departing from those decisions in Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 . In my opinion, there is no evidence of such circumstances. I think that for these reasons the verdict on the first count and the verdict on the second count should be set aside. As I have said, I think that the issue of liability should not be tried again. (at p191)

2. As regards the third and fourth counts: in my view the words of the libels are extemely offensive to the plaintiff. He is identified by the evidence as one of the persons to whom the libels referred. The defendant has put forward no plea of justification. It disavowed throughout the case that it was contending that the imputations cast on the plaintiff were true. I think that the defamatory words themselves carry an implication of actual malice. The defendant tendered a large number of publications of political matter ostensibly referable to its pleas under s. 17 (h) of the Defamation Act, 1958 (N.S.W.). One of these publications, Ex. 132, consists of pages of Hansard reporting a debate in Parliament held on 29th and 30th November 1962. A speech reported at p. 2829 contains these passages: "I invite honorable members to look at the remarks of the honorable member for . . . which followed fairly closely after his interview with a man who is, I understand, not only the First Secretary of the Russian Embassy but also the representative in Australia of the Russian secret police. If this were a single instance one would perhaps think nothing of it. But when one looks at this happening and the concerted by-play between the honorable member for . . . and the honorable member for Reid (Mr. Uren) directed against Australia's security and towards the interests of communism in regard to a base in the north-west of Western Australia, one thinks that there may be a little more in this than meets the eye . . . it is a little strange when we find members of the Opposition in close consultation with the Russian Embassy and subsequently coming out in this House openly and playing a game that is inimical to the defence security of Australia and can only be in the interests of the Communist Party. This is not just a case of association. Association could be perfectly innocent. This is a case of association followed by a line of policy which conforms to a pattern. For the proof of this I need not go further than Hansard itself. I invite honorable members to have a look at Hansard and see what this precious pair has been up to. I ask honorable members to look at the way in which their so-called inquiries are aimed at the security of the Australian people." These are grave accusations. It is a principle of the law of libel that the defendant's conduct at the trial may afford proof of malice in publishing matter defamatory of the plaintiff. (See Gatley on Libel and Slander, 5th ed. (1960) p. 626; The Herald &Weekly Times Ltd. v. McGregor (1928) 41 CLR 254 and Triggell v. Pheeney (1951) 82 CLR 497 .) In my opinion, the tender of the report of the speech containing the words quoted was proof of actual malice in the publishing of the libels sued on in the third and fourth counts. If it is right to hold that it was within the proper limits of the discretion of the jury, in the matter of damages, to give an award containing a punitive element, as I think it was, there is no sound reason for interfering with the jury's assessment of damages on the third and fourth counts. I refer to what I said towards the conclusion of my judgment in Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 . (at p193)

3. In the result, I would dismiss the appeal and allow the cross-appeal in so far as it seeks the restoration of the verdict on the third and fourth counts. (at p193)

TAYLOR J. I have no doubt that the result of this appeal should be an order for the new trial of the respondent's action. I have already, in the case of Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 , expressed my opinion that this Court should not hold that the categories of cases in which it is proper to permit an award of exemplary damages is restricted in the manner specified by Lord Devlin in Rookes v. Barnard (1964) AC 1129 . However, applying the law of this country as I understand it to be, I agree that the respondent did not make out a case which was capable of supporting an award of exemplary damages with respect to either of the publications sued upon in the first and second counts of his declaration. I am disposed to reach the same conclusion concerning the publications of which he complains in the third and fourth counts. It may well be thought that these publications constituted much more substantial libels than those complained of in the earlier counts but there was, in my view, nothing in the substance or manner of the publications, or, in the evidence relating to the circumstances in which they were published, which brought the matter within the range of an award of exemplary damages. But whether this latter conclusion be right or not it is plain enough that is is impossible for the verdict on those counts to stand alone. Nor, in the circumstances of the case, is it possible to say that justice would be done between the parties by directing a new trial limited to damages. The principles upon which the Supreme Court should act in the exercise of its discretion under s. 160 of the Common Law Procedure Act, 1899 (N.S.W.) in granting limited new trials are discussed in Pateman v. Higgin (1957) 97 CLR 521 and it is unnecessary to restate them. Here, in addition to the misdirection of the learned trial judge, there were other substantial matters of complaint which it is reasonable to conclude may well have affected the whole course of the trial. Indeed, a review of the proceedings reveals that the trial was in many respects wholly unsatisfactory. I agree generally with the observations which Walsh J. has made on this aspect of the case and with the conclusion, to which it finally led him, that there should be a general new trial. In my view the majority of the Court in considering this question did not give due weight to these considerations. The appeal should, therefore, be allowed and the cross-appeal dismissed. (at p194)

MENZIES J. The present respondent sued the appellant for damages for libel in an action covering four counts. The jury's verdict was in favour of the respondent on each count, and damages as follows were awarded: first count 5,000 pounds; second count 10,000 pounds; third and fourth counts 15,000 pounds. The appellant thereupon sought a new trial relying upon seventy-seven grounds of appeal, and upon that application the Full Court ordered that the verdict be set aside and, by a majority (Herron C.J. and Wallace J., Walsh J. dissenting as to the limitation), that a new trial be had limitedto damages (1965) 66 SR (NSW) 271; 83 WN (Pt 2) 229 . The costs of the first trial were ordered to follow the costs of the second trial. This appeal is against that order, the appellant seeking a new trial generally and an order that it receive the costs of the first trial. The respondent has cross-appealed seeking the restoration of the verdict of the jury. (at p194)

2. The decision of the Full Court to set aside the jury's verdict was based upon two grounds. First, that the learned trial judge had misdirected the jury in telling them that punitive or exemplary damages could be awarded to the plaintiff. Secondly, that the verdicts reflected prejudice engendered by inflammatory advocacy exceeding permissible limits. (at p194)

3. In charging the jury his Honour said: "The plaintiff is entitled to compensation at your hands for the damage that has been done to his reputation. He is entitled to compensation, and that compensation to be awarded may be increased if you find that the publications were made with ill will to the plaintiff, were made as part of a campaign. The damages may be aggravated by those circumstances. But in addition to compensatory damages, the law permits, in a case such as this, the award of what are called punitive damages; it permits a jury to award punitive damages. It certainly does not require a jury to award punitive damages; it all depends on the view that the jury takes of the case. They are in addition to compensation; they are called by a number of names, two of which have been used in the course of the case, punitive damages and exemplary damages, damages awarded to punish, damages awarded to make an example of the defendant. They are awarded, of course, to the plaintiff. They are not in the nature of a fine, and they should only be awarded where the conduct of the defendant merits punishment, and this could only be considered to be so where its conduct has been malicious; that it has shown what has been described as contumelious disregard for the rights of the plaintiff's right to enjoy the reputation that he possesses." Herron C.J. and Walsh J., following Rookes v. Barnard (1964) AC 1129 , held that this was a misdirection. Wallace J. held that the Court was not bound to follow Rookes v. Barnard (1964) AC 1129 but said: ". . . if I am wrong on these views and if contrary to my opinion we are bound to apply Rookes v. Barnard (1964) AC 1129 then I would be clearly of opinion that there should be a new trial on all counts (but limited to damages) because there is no evidence at all which brings the case within Lord Devlin's second category on any view thereof" (1965) 66 SR (NSW), at p 313; 83 WN (Pt 2), at p269 . His Honour held further that, independently of Rookes v. Barnard (1964) AC 1129 , and on the basis of the law as previously understood, there was no evidence warranting the leaving of punitive or exemplary damages to the jury in respect of any of the libels of which the respondent complained. (at p195)

4. In Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 I have stated why I think this Court should not follow Rookes v. Barnard (1964) AC 1129 , and to what I there said I do not wish to make any addition here. (at p195)

5. I have here to consider now whether, independently of Rookes v. Barnard (1964) AC 1129 , there was, as to any of the counts, a case for the award of exemplary damages. (at p195)

6. The libel to which the first count related was published in the Daily Telegraph of 8th December 1961 and its burden was that the plaintiff was one of a "divided, warring rag-tag and bob-tail outfit" behind the Labor leader, Mr. Calwell, in Parliament "which would have difficulty running a raffle for a duck in a hotel on Saturday afternoon, let alone running a country". It was published on the eve of a federal election in which the plaintiff was returned as Member for Reid in the House of Representatives. There was no complaint or protest about the publication until 14th February 1963 when the plaintiff sued for a somewhat stale publication. I agree with Wallace J. that exemplary damages could not be awarded for this libel. Political differences not infrequently find public expression in unrefined figures of speech and language. Although a politician is no doubt entitled to compensation for any loss of reputation brought about by an earthy political libel, it would be going beyond the authorities to allow the publisher of such a libel to be punished by an award of exemplary damages. It was ridiculous to award 5,000 pounds for this libel. The award casts doubt upon the reasonableness of the whole verdict. There must be a retrial with regard to the first count. (at p196)

7. The second count relates to a publication in The Bulletin of 3rd November 1962 as follows: "Leftwinger Tom Uren (Labor N.S.W.) still stubbornly adhered to the line that Moscow and Peking controlled Communist Parties in non-Communist countries assiduously peddle mainly through peace movements. He described suggestions for greater defence expenditure as 'so much hysteria'. But even Uren was susceptible to the prevailing climate." Again I agree with Wallace J., that exemplary damages over and above damages to compensate the plaintiff for any loss of reputation he may have suffered by reason of that publication could not be awarded to punish the defendant. There must therefore be a retrial with regard to the second count. (at p196)

8. The third and fourth counts relate to publications in two editions of the Sunday Telegraph of 10th February 1963 under the headings "SPY USED LABOR MEN AS 'PAWNS'?" and "DID RUSSIAN SPY DUPE ALP MEN?". The article, published under a Canberra dateline, was, to all intents and purposes, the same as that published by the Sun-Herald which was the subject of the claim in Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 ; indeed, it seems that it was brazenly copied from that sensational article. The keynote of the article can be gathered from the first two paragraphs, viz. "Allegations are likely to be made in Federal Parliament that some Labor M.P.s were used as 'pawns' by Russian spy Ivan Skripov to try to get defence secrets. It will be claimed that Skripov persuaded the unsuspecting Labor men to ask questions in Parliament about defence establishments in Australia." These libels were, I think, published in circumstances which did warrant the jury in awarding exemplary damages, and I will not repeat here my reasons stated in Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 for so thinking. Furthermore, as in the other case, the tactics of the defendant could have been regarded as adding sting to the libel. (at p196)

9. Were there nothing further, therefore, I would restore the jury's verdict for 15,000 pounds damages in respect of the third and fourth counts, but not the awards of 5,000 pounds and 10,000 pounds in respect of the first and second counts respectively. There is, however, something more. (at p196)

10. Herron C.J. and Walsh J. decided that the large awards of damages were due in a measure to the conduct of senior counsel for the plaintiff calculated to lead the jury astray by improperly instilling into their minds prejudice against the defendant. Herron C.J. said: "A mis-trial on the issue of damages I believe resulted, at least in part, from prejudice engendered by speeches of and statements by counsel for the plaintiff. Mr. Evatt, I regret to say, constantly and at times in face of rulings by the learned trial judge, mis-stated the issues raised by the pleadings. Time and time again senior counsel conveyed to the jury by direct statements, or by implications from argument, that they were either called upon or were at liberty to decide issues against the appellant which either were not relevant to the trial or which were the subject of rulings to the contrary by his Honour. I do not propose to refer to all these in detail for they have been adequately analysed by Walsh J., and I concur" (1965) 66 SR (NSW), at p 278; 83 WN (Pt 2), at p 234 . (at p197)

11. Walsh J. dealt with a number of matters relied upon as calculated to engender misconceptions. I will refer to the more important of these. In the first place, his Honour considered that the appellant's complaint that an unfair aspersion had been cast upon it was not without some basis. The particular aspersion was a statement made when an application for an adjournment had been made by counsel for the appellant in circumstances which I need not recount beyond saying that the application arose out of the failure on the part of the plaintiff's advisers to appreciate that, in accordance with the recent decision of the Full Court of New South Wales in Motel Holdings Ltd. v. The Bulletin Newspaper Co. Pty. Ltd. (1963) SR (NSW) 208 , a defence plea of qualified privilege under s. 17 of the Defamation Act, 1958 (N.S.W.), did not have to allege good faith and, if good faith were to be put in issue, it must be by the plaintiff's alleging its absence. Counsel for the plaintiff said: "I think it is time for some plain speaking in this matter. I submit it must become very apparent now that by hook or by crook the defendant is endeavouring to delay this trial." As to this, Walsh J. said: "In my opinion the statement by counsel for the plaintiff was unwarranted and improper. The expression 'by hook or by crook' conveys an imputation of a readiness to resort to fair means or foul to achieve the object in view. But notwithstanding the arguments for the appellant upon this incident, in my opinion it did not require the discharge of the jury, nor do I think it requires a new trial to be ordered" (1965) 66 SR (NSW), at p 289; 83 WN (Pt 2), at p 246 . The second complaint was that, despite a ruling by the learned trial judge to the contrary, it had been asserted that there was an issue whether the plaintiff had been instigated by a Russian spy to ask questions in Parliament about defence establishments. After examining each of the incidents the subjects of this complaint, Walsh J. said: "Despite arguments to the contrary, I think that here, as in the earlier incident, counsel's conduct amounted to an unwarranted introduction of false issues into the case and the defendant is entitled to complain of it. But yet, upon my view of the trial as a whole, these incidents would not justify the conclusion that because of them the trial should be held to have miscarried. But these are matters to which I think that some weight must be given when later I come to examine the award of damages, as they may serve to throw some light upon the question why the jury made an award which in my opinion was too high. I think also that they may be taken into account when considering whether a new trial, if granted, should be a general one or should be limited to damages" (1965) 66 SR (NSW), at p 293; 83 WN (Pt 2), at p 249 . Thirdly, it was claimed that the libels alleged in counts three and four contained the implication that the plaintiff was a traitor. As to this, Walsh J. said: "The meaning that the plaintiff was a traitor was ascribed in the opening address. In the course of doing this counsel asserted that if the plaintiff were guilty of such treachery he would not be appearing for him. It was not until much later in the trial that the ruling was given. Sometime afterwards counsel put a further submission that those who knew the plaintiff and knew he was not moronic or stupid would take the articles as imputing treachery. This was rejected. It appears to me that counsel did not thereafter put again to the jury that these articles had accused the plaintiff of treachery. It is suggested that in the closing address there were veiled renewals of this claim, but I do not agree that what was said could be fairly interpreted as a repetition by subterfuge of the claim" (1965) 66 SR (NSW), at p 294; 83 WN (Pt 2), at p 250 . His Honour adds: "I cannot assert that the contention was so obviously untenable that counsel acted recklessly in putting it forward at all. But in relation to all matters of this kind, the real question is not whether counsel deserves censure, but whether in an objective sense the jury was likely to be influenced in its judgment by prejudice" (1965) 66 SR (NSW), at p 294; 83 WN (Pt 2), at p 250 . Fourthly, as a means of establishing some "other improper motive" to negative good faith for the purposes of s. 17 of the Defamation Act, 1958, it was asserted - and I use the language of Walsh J. - "that the defendant sought to undermine and destroy the reputation of Labor men by 'pinning the red tab' on them, and that to prevent the achievement of the objectives of the Labor Party it sought to blacken and destroy the plaintiff" (1965) 66 SR (NSW), at p 294; 83 WN (Pt 2), at p 251 . This complaint was made out and, indeed, it was made out that the assertion was made after a ruling by the learned trial judge that "he could see no evidence of any improper motive other than ill will to the plaintiff". Walsh J. said: "I consider that in this matter the conduct of counsel for the plaintiff was flagrantly a transgression of the proper limits of advocacy and it could have been of considerable prejudice to the defendant" (1965) 66 SR (NSW), at p 295; 83 WN (Pt 2), at p 251 . After discussing this in its setting, his Honour added: "On the whole, having regard to the repeated statements by his Honour that he was excluding this question from the consideration of the jury, as well as his omission of it from the detailed questions submitted to the jury, the conclusion I reach is that we should not grant a new trial on this ground alone if no other reasons appear for doing so" (1965) 66 SR (NSW), at p 296; 83 WN (Pt 2), at p 252 . (at p199)

12. His Honour's conclusion on the foregoing matters was as follows: "After consideration of all the matters so far discussed I have reached the conclusion that, if no other ground appeared for interfering with the jury's decision, this Court would not be justified in granting a new trial" (1965) 66 SR (NSW), at p 299; 83 WN (Pt 2), at p 255 . His Honour then turned to the question of damages and, after referring to a number of matters in respect of which aggravated, as distinct from punitive, damages could have been awarded, he said: "Whilst I think the foregoing matters were open for the consideration of the jury in assessing the compensatory damages they could not, in my opinion, have warranted a very large increase in the amount of damages, over and above whatever was proper for damage to the reputation of the plaintiff" (1965) 66 SR (NSW), at p 302; 83 WN (Pt 2), at p 259 . His Honour then ruled that there had been a misdirection about exemplary damages but said that, if no other ground had appeared and the damages appeared to be reasonable and moderate, the Court might hesitate to order a new trial upon a misdirection now "seen to be incorrect because of a decision" (viz. Rookes v. Barnard (1964) AC 1129 ) "the report of which may not then have been available here. . . and which was not relied upon" (1965) 66 SR (NSW), at p 303; 83 WN (Pt 2), at p 259 . Finally, his Honour said that because this misdirection did not stand alone, the amount of damages may well have been increased "by the emphasis placed on the alleged imputation of treachery, by the repeated charges of an alleged policy of destruction of the Labor Party, by the repeated assertions about the truth or falsity of the matters published being in issue, and the comments upon the defendant's failure to call evidence on this issue, and by the charge that the defendant was seeking by hook or by crook to delay the trial" (1965) 66 SR (NSW), at p 303; 83 WN (Pt 2), at p 259 . His Honour thereupon, having stated that he could not regard the damages as awarded as reasonable, decided that they should be set aside. He said: "I think that one can find a possible explanation of such large awards in the matters of prejudice which I have mentioned, and in the probable inclusion of a considerable sum as punitive damages. But whatever the explanation, the verdicts should be set aside" (1965) 66 SR (NSW), at p 304; 83 WN (Pt 2), at p 260 . His Honour thought that the order should be for a new trial generally. (at p200)

13. Wallace J., referring to the conduct of senior counsel for the plaintiff, said: "I think his transgressions were unfortunate and undesirable - unfortunate because they attract time-wasting appeals, and undesirable if only because they were unnecessary" (1965) 66 SR (NSW), at p 312; 83 WN (Pt 2), at p 268 . His Honour's view was that "on a review of the whole trial and of his Honour's various directions to the jury I am satisfied that a new trial generally on this ground" (viz. prejudicial conduct of plaintiff's counsel resulting in a miscarriage at the trial) "is not called for" (1965) 66 SR (NSW), at p 312; 83 WN (Pt 2), at p 268 . (at p200)

14. My own conclusion is that Herron C.J. and Walsh J. were correct in their conclusion that senior counsel for the plaintiff did exceed the limits of what was permissible in an endeavour to inflame the jury against the defendant, and that his success in doing so may well have been reflected in the verdicts that were returned. In these circumstances, I do not think that the damages awarded upon counts three and four can be allowed to stand. I think, therefore, that the verdict was rightly set aside. (at p200)

15. In a case where an appeal court comes to the conclusion that the prejudice of the jury has been aroused against the defendant, there can be but few cases where the right order can be less than for a new trial of the action without limitation, and I am impressed by the strength of the reasoning of Walsh J. that this should be the order here. If, however, counts three and four were the only ones to be considered, I am nevertheless disposed to think that I would agree with Herron C.J. and Wallace J. that a new trial limited to damages would meet the justice of the case for, with respect to these libels, the real issue, as it seems to me, was the amount at which damages should be assessed. Taking the case as a whole, however - and this I feel bound to do - I cannot be satisfied that the prejudice of the jury did not affect their consideration of the question of the liability of the defendant in respect of the libels covered by the first and second counts. Upon the whole, therefore, I have reached the same conclusion as Walsh J. that there should be a new trial generally. (at p201)

WINDEYER J. The trial of this action got off to a bad start. Counsel for the plaintiff, all three of them apparently, went into Court ignorant of an important decision of the Supreme Court of New South Wales directly relevant to their case. It, the decision in Motel Holdings Ltd. v. The Bulletin Newspaper Co. Pty. Ltd. (1963) SR (NSW) 208; 80 WN 213 , had been reported over six months before the trial and some little time before the plaintiff's replication was filed. Mr. Evatt, who led for the plaintiff at the trial, frankly said in this Court that, using his words, they had been "in blissful ignorance of this". It would not have been folly to have been wise. From ignorance trouble began. (at p201)

2. Mr. Evatt opened his case to the jury in strong language. He said that the matters that had appeared in the defendant's newspapers made serious imputations against his client, that they exhibited ill will and that the defendant had published them in its newspapers from ill will and with, as he put it, a desire "to destroy the Labor Party" by deliberately, falsely and recklessly discrediting his client and other members of that party. These matters, he claimed, put the publications outside the qualified protection given by s. 17 (h) of the Defamation Act, 1958 (N.S.W.) on which the defendant by its pleadings was relying. I shall postpone for the moment a consideration of that statutory provision and its application in these proceedings, and deal very briefly with certain events in the course of the trial that were made the ground of a motion for a new trial. Mr. Evatt having concluded his opening address, Mr. Larkins for the defendant at once complained that what had been said went beyond the issues raised by the pleadings. Good faith on the part of the defendant was, he said, conceded on the pleadings; and the defendant had therefore not come prepared to meet a charge of want of good faith. Complaining that what counsel for the plaintiff had said was prejudicial, he asked that the jury be discharged. The learned trial judge refused this. It had been made perfectly clear in counsel's opening address that the plaintiff's case was to be that the matter complained of was not published in good faith, that the publications were malicious and thus outside the protection of s. 17 (h): any disadvantage that the defendant was under in meeting this case could thus, his Honour considered, have been overcome by an adjournment, and by an amendment of the pleadings if that were thought necessary. The defendant did not then ask for an adjournment. The plaintiff did not at once formulate any amendment of his replication. The trial went on, not without wrangling. I do not propose to recount all of that. In the Supreme Court their Honours thought that certain remarks that Mr. Evatt made, suggesting that the defendant was trying to frustrate the trial, were unwarranted, ought not to have been made, and were calculated to prejudice the jury. I do not disagree; but I think it unnecessary to go into that. There are ample grounds for saying that the trial was unsatisfactory and that the jury were somehow led into a mistaken approach to the question they had to try. If there were nothing else the verdict on the first count would shew this, and it provides a touchstone for the whole. (at p202)

3. I do not mean to suggest that the verdicts which the jury returned are entirely the result of the advocacy and attitude - whether proper or reprehensible - of counsel for the plaintiff. They may reflect also an unfavourable response by the jury to the manner in which counsel for the defendant cross-examined the plaintiff. He began his cross-examination by saying several times to the plaintiff: "you understand do you not that the defendant company does not come here to assert the truth of any of the matters that have been published about you?" He then proceeded to question him about his attitude to events in various parts of the world, about his statements and ideas on various topics of current controversy, to read to him passages from reports in Hansard of parliamentary discussion of these topics and of what, some time before, other people had said about him, and so forth and so on. This went on for days. Some of it seems to have reached the uttermost bounds of relevancy, if it did not transgress them. The purpose, it was said, was to shew that what had been published of him had been "in the course of the discussion of some subject of public interest". The jury may well have thought this specious, especially when, at the end of the summing up, counsel requested his Honour, who had thought that the defendant had meant to admit falsity, to tell the jury that although the defendant did not assert that what it said was true, it did not concede that it was untrue. Counsel was of course quite entitled to take the line that he did, but the method of Mark Antony may miscarry. The remarks of Jordan C.J. in Guise v. Kouvelis (1946) 46 SR (NSW) 419, at p 423 are in point. However, a wrong result is not to be perpetuated simply because both sides may have helped to bring it about. An appellate court is always reluctant to disturb the verdict of a jury in a libel action. But that assumes a verdict that was given by a jury properly instructed in a trial of which no serious criticism could be made, a verdict that does not reflect passion or prejudice: see the remarks of Lord Halsbury in Watt v. Watt (1905) AC 115 . A grossly excessive verdict in a libel case can be set aside: Lewis v. Daily Telegraph Ltd. (1964) AC 234 . (at p203)

4. I turn then to the libels sued upon and to consider the verdict given in respect of each. There were four counts in the declaration. The first count relates to matter published in the Daily Telegraph, the second in The Bulletin. The third and fourth counts can be considered together, for they relate to publications substantially the same in successive editions of the Sunday Telegraph. All three papers are published by the defendant. The argument on the appeal turned mainly upon the amount of damages found by the jury on each count. The learned trial judge had, on the invitation of the plaintiff's counsel, informed the jury that they could award exemplary damages. In saying this he made no distinction between the several counts. Counsel for the plaintiff had urged upon the jury that they should award exemplary damages. (at p203)

5. In my judgment in the case of Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 I said something about the principles governing the assessment of damages in defamation, and stated my understanding of the decision of the House of Lords in Rookes v. Barnard (1964) AC 1129 . I do not doubt that exemplary damages for defamation may be given in a proper case, and I do not think the cases in which exemplary damages may be given are to be so drastically limited as a narrowly literal reading of Lord Devlin's judgment might suggest. I shall not repeat here what I have said in the other case. I shall apply it in relation to the several matters that were in question in this case. But before doing so, it is important to notice exactly what issues were raised by the pleadings, and the state of the law as to those issues. (at p203)

6. Using common law terminology, the main defence was one of qualified privilege, the plaintiff's answer to that being express malice. But it is necessary to remember always that in New South Wales (as elsewhere in Australia except in Victoria and South Australia) much of the law of defamation has been codified. The code, although to a large extent it reproduces the common law, and in fact can only be interpreted and applied by having regard to the common law, also makes some very important departures from it. The special considerations that these raise in the assessment of damages are sometimes overlooked. Two departures from the common law have existed in the law of New South Wales since 1847 (11 Vic. No. 13). They are, first, that the distinction between slander and libel has, for most purposes, been abolished: all defamation is actionable without proof of special damage. Secondly, truth alone is no defence in either a civil action for defamation or upon a prosecution. A plea of justification must therefore allege that the matter published was true and that its publication was for the public benefit. This provision of the law of New South Wales is sometimes said to have been a local invention, enacted because of the number of former convicts in the population of the Colony in the 1840s. But, whatever the cause of its adoption in New South Wales, it was not a local product. Its derivation is from a proposal for the reform of the law of England made by a committee of the House of Lords in 1843. It was that the common law be altered to provide that in both criminal proceedings for libel (where at common law truth was no defence) and in civil actions (where truth was a complete defence) the defence should be truth coupled with public benefit. The Parliament in England adopted only one half of the proposal, which became law in 1843 as Lord Campbell's Libel Act. The legislature of New South Wales, however, adopted the whole. The result in a civil action in New South Wales, when there is no plea of justification, has been the subject of some controversy. (at p204)

7. At common law, since truth is a complete defence, evidence of the truth of the defamatory matter cannot be given unless truth be pleaded in justification. For this reason it is generally said that, at common law, a plea of the general issue without a plea in justification admits that the matter complained of was false. Some writers have commented critically on this: for the common averment that the words were published "falsely and maliciously" is little more than a pleader's flourish or a survival of older ways, now, as Sugerman J. said in Motel Holdings Ltd. v. The Bulletin Newspaper Co. Pty. Ltd. (1963) SR (NSW), at p 212; 80 WN, at p 216 to be regarded as surplusage: see Holdsworth, History of English Law, vol. 8, p. 371; Spencer Bower, Actionable Defamation, 2nd ed. (1923), p.236. Whatever the position at common law, there is not in New South Wales (or elsewhere in Australia where the law is the same) any reason for saying that in the absence of a plea of truth and public benefit the libel is presumed to be untrue. There appears to be no logical presumption either way. But I am unable to accept the proposition that without a plea of justification (that is of truth and public benefit) the truth or falsity of a defamatory statement is an irrelevant consideration in a defamation case. The truth or falsity of the words is irrelevant to the question whether they are actionable but not, I think, to the amount of damages if they be defamatory. A jury is always likely to think that heavier damages should be given for the gratuitous publication of statements that are false than would be appropriate if the same statements were true. A plaintiff is always permitted to go into the witness box to say that what was said of him was a lie. If he does so, surely the defendant should be permitted to call evidence to answer him? If he does not, must the defendant remain silent on the matter unless he has pleaded truth and public benefit? An answer to this question was long ago given in New South Wales. It was held that a defendant could call evidence of the truth of his statements with a view to mitigating damages although he had not pleaded justification. If a plaintiff could prove the matter untrue in order to aggravate damage, the defendant could, it was assumed, prove it true in mitigation of damage. That, until 1934, was the established rule. The Full Court of the Supreme Court had said so often, and decisively: West v. Wigg (1886) 3 WN (NSW) 46 ; Harper v. Bennett (1900) 21 NSWLR 365 ; Lemaire v. Smith's Newspapers Ltd. (1927) 28 SR (NSW) 161 ; Mutch v. Sleeman (1928) 29 SR (NSW) 125, at p 134 . The existence of the practice was noted, but without either approval or disapproval, by Dixon J. in Lang v. Willis (1934) 52 CLR 637, at p 661 However, in Goldsbrough v. John Fairfax &Sons Ltd. (1934) 34 SR (NSW) 524 , Jordan C.J. and Halse Rogers J. in strong dicta disapproved of it. We do not have to consider here the validity of that decision on that or any other point. I say no more than that I have never been satisfied that it was not mistaken. The questions that arise are peculiar to New South Wales and those States which inherited the law of New South Wales (as Queensland did) and did not alter it (as Victoria did), or which have adopted a similar rule (as Western Australia and Tasmania have). They are not questions that can be answered by the application of common-law rules. They are perhaps not all answerable by merely legal logic. Conflicting considerations of fairness and policy are adverted to in passages in some of the judgments referred to above, and also in what Ferguson J. said in Maling v. S. Bennett Ltd. (1928) 29 SR (NSW) 280, at pp 289, 290 , which should be read along with Judd v. Sun Newspapers Ltd. (1930) 30 SR (NSW) 294 . (at p206)

8. It is this somewhat uncertain state of the law of New South Wales as to the truth of a libel that explains Mr. Larkins' amphibology. It is impossible to know what exactly, in the light of his cross-examination, the jury made of his insistence that the defendant did not assert that what it had said was true, yet did not concede that it was false. It seems to me in the upshot that, in considering whether the verdict on any count was excessive, we must assume that the jury could have found the words used were (in any meaning that they could reasonably bear) untrue so far as they consisted of statements of fact concerning the plaintiff; and that they took this into account in assessing damages; and that they were entitled to do so. (at p206)

9. Turning now from the effect of not raising truth and public benefit as a defence, to the defence of qualified privilege that was raised. Here too the law in New South Wales is now codified. The statutory provisions are copied from the Queensland Criminal Code, which has sections codifying the law of defamation for both criminal proceedings and civil actions. They were derived from The Defamation Law of Queensland (1889), with what Sir Samuel Griffith, their draftsman, described as "a few verbal alterations" (see Wilson and Graham, The Criminal Code of Queensland (1901), introduction p. xvi). The provisions here in question, which alter and supplant the common law of qualified privilege, first became law in New South Wales in 1958. They had earlier been copied from Queensland in Tasmania and Western Australia. In New South Wales they appear as s. 17 of the Defamation Act, 1958 (N.S.W.). This section lists eight occasions of qualified privilege or, as it describes it, "qualified protection". These to some extent reflect the privileged occasions of common law, but with some very considerable departures. The one on which the defendant relied in this case is par. (h) of s. 17. Section 17 not only describes the occasions when privilege exists; it also defines the matters by which it can be lost - that is it states what matters amount to what at common law would be called express malice. This it does by stating the ingredients of a publication "made in good faith". It is convenient at this point to set out s. 17 so far as relevant and also ss. 18 and 19, each with the italicized heading it has in the Act.

" Qualified Protection.
17. It is a lawful excuse for the publication of defamatory
matter if the publication is made in good faith - . . . (h) in the course of, or for the purposes of, the discussion

of some subject of public interest, the public discussion of which is for the public benefit and if, so far as the defamatory matter consists of comment, the comment is fair.

For the purposes of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue. Good Faith.

18. When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging the absence. Relevancy and Public Benefit Questions of Fact.

19. Whether any defamatory matter is or is not relevant

to any other matter, and whether the public discussion of any subject is or is not for the public benefit, are questions of fact." (at p207)

10. There are several observations to be made on these provisions. (at p207)

11. First: section 17 (h) has no direct common-law ancestor, although its several phrases recall various statements of common-law principle. It is not a statutory counterpart of the common-law defence of fair comment. That is to be found, within the limits prescribed, in s. 15 and s. 10. Fair comment in that sense is lawful as at common law. The statutory arrangement seems to displace Sir John Salmond's view that fair comment is an instance of qualified privilege. But fair comment does not arise for consideration in this case, except indirectly in so far as the concluding words of s. 17 (h) refer to fair comment. These concluding words were not in s. 17 (8) of the Queensland statute of 1889. They are among the "verbal alterations" introduced by Sir Samuel Griffith into s. 377 (8) of the Criminal Code. If the expression "fair comment" has its common-law meaning, as presumably it has, then the effect of s. 18, read with the decision of the Court of Appeal in Thomas v. Bradbury, Agnew &Co. Ltd. (1906) 2 KB 627 in mind, seems to mean that the defendant who invokes the protection of s. 17 (h) for any matter of comment must first shew that comment to be fair in an objective sense before the onus is put upon the plaintiff to establish that it was not made in good faith: see Salmond on Torts, 14th ed. (1965), pp. 247-249. That is how the question was dealt with at the trial. It is perhaps debatable; but it was not debated before us. I therefore say no more about it. (at p208)

12. Secondly: section 17 sets out the occasions of qualified privilege exhaustively, and it defines them rigidly. It not only to this extent supplants the common law. It also, as has been observed, has stultified its development. But it only describes the occasions that are protected. It does not say anything as to how the existence or otherwise of such an occasion is to be decided. At common law it is for the judge, not for the jury, to say whether an occasion was privileged. If some fact that he must know in order to give a ruling is in dispute, then that fact may have to be determined for him by the jury. But it is for him, not the jury, to decide whether or not the occasion was privileged. If the judge rules that the occasion was privileged then, and only then, is the jury to say whether by express malice, as understood in the common law, the protection of the occasion was forfeited. This, the firm rule of the common law, has not been displaced by the code and is applied to the protected occasions as defined in the codes: see Telegraph Newspaper Co. Ltd. v. Bedford (1934) 50 CLR 632, at pp 647, 658 and Musgrave v. The Commonwealth (1937) 57 CLR 514, at pp 548, 552, 553 . This rule of the respective functions of judge and jury seems to have been somewhat departed from at the trial. His Honour, with the assent of the parties, ruled that certain subjects were of public interest. I think that he should have gone further. Neither party took any objection on this aspect at the trial or before us. As we heard no argument on it, I express no concluded opinion. I say what I do because I would not wish by silence to seem to have accepted as correct a course that seems to me to have been mistaken. The judge had to determine whether the occasion was privileged. His task in this case was therefore, I think, to determine all elements of s. 17 (h), except those that are expressly declared to be matters of fact and thus for the jury. The latter are whether or not the public discussion of a subject ruled to be of public interest was for the public benefit (s. 19) and whether any comment was fair - that is assuming as I do that the concluding words of s. 15 should be read as applying to the reference to fair comment in s. 17 (h). (at p209)

13. The critical question for his Honour on my view of the matter was thus, in respect of each count, whether the publication was "in the course of the discussion of a matter of public interest". (I may mention here that this was all that the plea alleged. There had been an alternative plea that it was "for the purposes of the discussion of a matter of public interest"; but this was withdrawn.) The question for his Honour thus required some limitation of the subject of public interest that was under public discussion. When protection is claimed for a defamatory publication on the ground that it was made in the course of discussion of a subject under public discussion and relevant to it, that subject must necessarily be determined with some exactness. As North J., speaking for the Court of Appeal of New Zealand, said, "There is no principle of law, and certainly no case that we know of which may be invoked in support of the contention that a newspaper can claim privilege if it publishes a defamatory statement of fact about an individual merely because the general topic developed in the article is a matter of public interest": Truth (N.Z.) Ltd. v. Holloway (1960) NZLR 69, at p 83 (affirmed (1960) 1 WLR 997 ). A matter is, I think, published in the course of the discussion of some subject of public interest when, as the learned trial judge in the present case said, a discussion of that subject is currently going on. This accords with what Latham C.J. said in Loveday v. Sun Newspapers Ltd. (1938) 59 CLR 503, at p 513 , "The press cannot itself make a matter one of public interest by publishing statements about it (Chapman v. Ellesmere (1932) 48 TLR 309, at p 316 )": and with the remark of Dixon J. in the same case (1938) 59 CLR, at p 521 that, when a matter of public interest is spoken of, what is meant is a matter that has already become of public interest. (at p209)

14. Thirdly: the description in the statute of the meaning of a publication made in good faith, is wide enough to indicate almost every way in which the protection of the occasion can be forfeited by being used for purposes foreign to that for which it is given. One is if the person making the defamatory statement believes it to be untrue. What if he publishes defamatory falsehoods careless whether they be true or false? Can this dissolve the protection? At common law it could. True, mere carelessness is not express malice at common law. But a reckless indifference to the truth or falsity of statements obviously defamatory may amount to malice. It seems to me that under the statute it would be open in some cases to a jury to find that such conduct shewed that the defendant was "actuated by ill-will or by some other improper motive" - that is to say, in substance, the position under the statute is not different from that at common law. (at p210)

15. With the above considerations in mind I turn to the first count. On this the jury found a verdict for the plaintiff for 5,000 pounds. The matter complained of was certainly published in the course of a discussion on a subject of public interest, namely the forthcoming election to the national Parliament. And it was for the public benefit that the capacity of candidates seeking election, the policies of the contending parties, and their claims to retain or gain office, should be the subject of vigorous public discussion. No reasonable jury could possibly hold otherwise. Freedom at election time to praise the merits and policies of some candidates and to dispute and decry those of others is an essential of parliamentary democracy. The freedom extends to the use of language that is vigorous, and sarcastic, as well as that which is reasoned, restrained and elevated. Invective is not banned. And a man who chooses to enter the arena of politics must expect to suffer hard words at times. Nevertheless, an election is not a licence for personal abuse and calumny. We have got away from the brawling of the days of the hustings. We have got somewhat away too from the vigorous vituperation of some election oratory of the past. A jury could today reasonably think that words that might have been allowable from a soap-box would, if published in the editorial columns of an important newspaper, be beyond the protection of the occasion. I find, however, great difficulty in seeing what evidence there was to go to the jury on the first count. There is not in the article itself any intrinsic evidence that I can see of a want of good faith. It disparaged the plaintiff and others as politicians and emphatically denied their capacity to undertake tasks of government. It spoke of him and the others it named as the rag-tag and bob-tail of their party. The description could be considered uncalled-for, but it is a phrase that becoming hackneyed has lost harshness. Neither it, nor the allusion, perhaps mildly amusing by its incongruity, to a capacity to raffle ducks, seems to have disturbed the plaintiff at the time. Not only is there no intrinsic evidence that I can see of a want of good faith, I cannot see any extrinsic fact that would justify an inference of this. There was not, as far as I have seen, any evidence that the defendant was actuated in this publication by positive personal ill will to the plaintiff. The policy of the defendant was through its newspapers to support the government party in the election. That is clear enough. It was in that sense hostile to the plaintiff and to the party to which he belonged. It wanted it to be defeated in the election, and the editorial efforts of its newspaper were directed strongly to that end. What more is there? Political differences can no doubt breed personal animosities. But that does not mean that all political commentary and criticism must be taken to have been actuated by personal animosity, even if some personal animosity be shewn to exist; and that was not shewn here. (at p211)

16. It was for the plaintiff to prove positively an absence of good faith. It had to be shewn by credible evidence. Mere conjecture would not suffice, still less would the assertions of counsel. The protection that the law gives to the discussion of matters of public interest is given for the public benefit. That protection is not lost except it be well proved that it was abused by being used for some purpose foreign to that for which it is given. To say this is only to repeat what has been said often enough in the past: see e.g. Laughton v. Bishop of Sodor and Man (1872) LR 4 PC 495 ; Hart v. Gumpach (1873) LR 4 PC 439 ; Godfrey v. Henderson (1944) 44 SR (NSW) 447, at p 454 . It is important that it be not forgotten. Evidence of other similar defamatory publications, whether before or after that sued upon, may sometimes provide evidence of malice, but only within the limits pointed out by Jordan C.J. in Mowlds v. Fergusson (1939) 40 SR (NSW) 311, at pp 328-330 . (at p211)

17. The matter is to go to a new trial. The evidence may be different. I shall therefore say only that if there were any justification for a verdict for the plaintiff on the first count, there was no justification for an award of 5,000 pounds. This was excessive in the extreme. Five thousand pounds for this] Hearing of it many men might echo Dogberry and say "Oh that I had been writ down an ass". (at p211)

18. It may be that the jury arrived at this amount because the plaintiff's counsel had strongly urged them to award exemplary damages to his client on all counts, and the learned trial judge had left them at liberty to do so. Was he right in this? The question is of crucial importance - for this reason: the occasion was incontrovertibly a protected one; therefore a verdict for the plaintiff must be taken to mean that the jury found that the defendant had not acted in good faith. Absence of good faith, in the statutory sense, accords with the common-law term "express malice". The meaning, for relevant purposes, is the same. When a jury find that a defendant did not act in good faith, can a court say that the case was not in law one for exemplary damages? And if it can, on what criteria does it arrive at this conclusion? These are big questions. In Rookes v. Barnard (1964) AC 1129 , the House of Lords has drastically limited the scope of terms that had formerly been used indifferently. Until then it was possible for the learned editors of successive editions of Salmond on Torts to say "no distinction has been taken in the authorities between 'aggravated' and 'exemplary' damages". And it has been generally accepted that malice on the part of a defendant can increase damages. If it be the law that proof of malice, or want of good faith in any degree which is sufficient to overthrow the protection of a privileged occasion, is at the same time a sufficient warrant for an increase in damages, then it may be argued that it can never be for a court to say that exemplary damages cannot be awarded in a case in which the jury could find that the publication went beyond the protection of the occasion. But I do not think that this is so or ever was so. In the appeal by John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 I have said why I do not take what was said in Rookes v. Barnard (1964) AC 1129 as a rigid formulation of the only circumstances in which exemplary damages may be given in a libel action, certainly not as a formulation that we must follow in this Court. Nevertheless, without repeating here all that I said, I regard that case as shewing what was I think already clear, namely that an appreciation of the purpose of exemplary damages restricts cases in which they can properly be awarded to more flagrant instances of conscious wrongdoing than occur from the mere use of language that a jury may think went somewhat beyond the protection of a privileged occasion. There was in my view no ground at all for exemplary damages on the first count. It would have been better if the learned trial judge had counselled the jury strongly to moderation on this count, if indeed there was any evidence on which they could find for the plaintiff on it. His Honour was, however, in a difficult position, because of the ways in which the matter was approached by counsel on each side. (at p212)

19. Turning now to the second count. At the trial the subject of public interest, in the course of the discussion of which the defamatory statement was said to have been made, was loosely and widely defined. Presumably it would not have required much evidence to shew, if indeed it were seriously disputed, that the policies of the government concerning measures that should be taken for the military defence of Australia, and the views of different members of the Parliament on these topics, were a subject of current public discussion. This was obviously a subject of public interest. It would, I shall assume, have been open to his Honour to rule that the matter complained of was published in the course of that discussion. And a jury could not reasonably have found otherwise than that the public discussion of this subject was for the public benefit. But I feel great doubt whether the scope of relevancy under s. 17 (e) and of permissible cross-examination could be enlarged by the list of subjects of public interest which the defendant gave in its particulars. They included "the world-wide conflict between Communism and non-Communism", "the blockade of Cuba by the United States of America", "the attack on India by Chinese forces", "the emergence of Indonesia as a military power". The protection given by s. 17 (e) is for a contribution to a discussion upon a subject of public interest, not for everything that may be said about a person that can be in some way related to a subject that is of public interest. (at p213)

20. The plaintiff's real complaint seems to have been that the article published in The Bulletin gave, he said, a distorted and unfair version of opinions that he had expressed in the Parliament, that it mis-represented the attitude he had there expressed and falsely suggested that his views differed from those of his party as a whole. But his counsel chose to say that what was in issue was an accusation of treachery. I can see no justification at all for this extravagance. The statements in the article could be hurtful to the plaintiff as a member of Parliament, and there is evidence that they were resented by him. A jury might have awarded him substantial damages on this count; but, of course, only if they were satisfied that he had proved a want of good faith on the part of the defendant. And even so I do not think that the case was one for exemplary damages, and I consider that the jury should have been told so. The verdict for 10,000 pounds, regarded simply as compensation and without any punitive element, is very large. It is more than in very many cases is awarded for serious and permanent physical injuries that greatly hamper a man in his activities and affect his livelihood. It strongly suggests that the jury were in some way misled. This conclusion is reinforced by their verdict on the first count. As there is to be a new trial I say nothing more about the second count. (at p213)

21. I go finally to the libel that is the subject of the third and fourth counts. I do not find it easy to see that these publications were made in the course of the discussion of a matter of public interest. What was the matter under discussion? The particulars that the defendant gave of what it relied upon were even more exuberant and imprecise than those given in relation to the matter of the second count. Doubtless the activities of Skripov were a matter of public interest. But that does not establish that the articles in the Sunday Telegraph were made in the course of a discussion of that matter. Nor, I think, does this appear because what was said in those articles could be linked with allegations or suggestions concerning the plaintiff made in Parliament many weeks before. However, the learned trial judge left it to the jury to say whether or not the publication was in the course of the discussion of a matter of public interest. He did not rule on this himself. The jury's verdict is therefore open to the interpretation that they found that the occasion was not protected by s. 17 (e), a conclusion that on the evidence would seem correct. (at p214)

22. The articles when fairly read do not say that the plaintiff was deliberately aiding a Russian agent to get information that it would be harmful to Australia for him to have. What they say, the plaintiff being identified as a person referred to, is that it was being said or would be said in Canberra that he had allowed himself to be an unwitting tool of the Russian. Again the plaintiff's case was damaged by the assertions of his counsel to the jury that what they had to consider was whether or not his client was a traitor, a collaborator with a spy. It would have been quite enough for his purpose, one would have thought, to say that the mischief of the publication was that all readers do not always appreciate or remember nice distinctions between acts done knowingly and purposefully and acts done unsuspectingly and innocently. (at p214)

23. The fact is that a serious libel was published. It might well attract heavy damages. Nevertheless I do not think that there was evidence which would justify the jury adding to the damages some further amount merely to punish the defendant. A suitable direction to the jury might have been to tell them, using words that Bramwell B. used in Bruton v. Downes (1859) 1 F &F 668, at pp 668, 669 (175 ER 899, at p 899) , that they could, if they thought fit, give the plaintiff "such good sound substantial damages as will mark your sense of the injury the plaintiff has sustained"; and to tell them that in considering the extent of that injury they might take all the circumstances of the publication into account, but that they ought not to add anything to the damages simply from a desire to punish the defendant. (at p214)

24. A passage from the judgment of Lord Loreburn in E. Hulton &Co. v. Jones (1910) AC 20, at p 25 will bear quotation here: "There is no tribunal more fitted to decide in regard to publications, especially publications in the newspaper Press, whether they bear a stamp and character which ought to enlist sympathy and to secure protection. If they think that the licence is not fairly used and that the tone and style of the libel is reprehensible and ought to be checked, it is for the jury to say so." I add some remarks by Farwell L.J. in his judgment in the Court of Appeal in the same case, a judgment that Lord Atkinson and Lord Gorrell approved. His Lordship said (1909) 2 KB, at p 483 : "It is difficult to estimate the consequences of libel in a newspaper . . . . Those who read it may never read the subsequent explanation or the report of the trial; and some of those who read both may forget the result, and be left with a general recollection that the plaintiff was the man of whom a discreditable story was reported in a paper. Such newspapers as publish libellous statements do so because they find that it pays: many of their readers prefer to read and believe the worst of everybody, and the newspaper proprietors cannot complain if juries remember this in assessing damages." With these general statements I fully and respectfully agree. I do not doubt that a jury may properly think that a plaintiff who has been seriously defamed in a newspaper should have heavy damages by way of compensation. What I dispute is that, except when there is positive evidence of conscious, contumelious and calculated wrongdoing, a jury can be invited to add to the damages which they think the plaintiff should have for the wrong done him some further amount professedly and intentionally to punish the defendant. (at p215)

25. I need not consider whether we would interfere with the verdict on the third and fourth counts if it had stood alone and were criticized only as being excessive and if the jury had not been told that they could award exemplary damages. The verdicts taken together show that the jury were led into a mistaken approach to the case as a whole, and it was not in my view a case for exemplary damages. I think therefore that there must be a new trial on all issues. A new trial of a libel action limited to damages can seldom be satisfactory, especially in a case where malice is alleged. The appeal should, I consider, be allowed and the cross-appeal dismissed. (at p215)

OWEN J. The plaintiff, the respondent to this appeal, sued the defendant for libel. Liability was disputed, the defendant relying inter alia upon s. 17 (h) of the Defamation Act, 1958 (N.S.W.) which provides that:

"17. It is a lawful excuse for the publication of defamatory matter if the publication is made in good faith - . . . (h) in the course of, or for the purposes of, the discussion of some subject of public interest, the public discussion of which is for the public benefit and if, so far as the defamatory matter consists of comment, the comment is fair. For the purpose of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication do not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue." (at p216)

2. By s. 18:

"When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging the absence." (at p216)

3. At all material times the plaintiff was a member of the Opposition in the House of Representatives having been elected in 1958 to represent a New South Wales electorate. On 9th December 1961 a general election was to be held and on the previous day the defendant published in its Daily Telegraph newspaper a leading article urging the electors to return the Menzies Government to power, praising that government's achievements and offering criticism of the Opposition party. In the course of it the writer said: "What, and who, has Labor to offer? Arthur Calwell, a decent, straight, hardworking parliamentary leader. But a leader in name only, because like any other Labor parliamentary leader he must take his orders from Mr. Chamberlain and the other non-parliamentary masters of the A.L.P. Who is behind Mr. Calwell in the Federal House? A divided, warring rag-tag and bob-tail outfit ranging from Eddie Ward and Les Haylen through to Dan Curtin and Tom Uren" - the last named being the plaintiff - "This is a team which would have difficulty running a raffle for a duck in a hotel on Saturday afternoon, let alone running a country." No complaint appears to have been made of this publication until the writ in the present action was issued in February 1963, followed by the plaintiff's declaration in which there were four counts, the first of which was based upon the passage I have quoted. On 3rd November 1962 the defendant published in a weekly newspaper, The Bulletin, an article expressing the opinion that in the debate in the House of Representatives on the defence estimates, which had just concluded, there had been a perceptible change in the attitude towards defence of some members of the Labor Party due, it was said, to various international developments, such as "the tension between the United States and Russia arising from the Russian arming of Cuba", "the emergence of Indonesia as a relatively major military power due to Soviet-supplied arms" and "China's attack upon India". In the course of the article the writer said of the debate that:

"Anti-Americanism had waned. Labor's rightwingers for the first time for years lost some of their timidity . . . . The leftwingers lay either cautiously low, or . . . gave indications that they were not blindly shutting their eyes to the significance of recent international events. . . . Leftwinger Tom Uren (Labor N.S.W.) still stubbornly adhered to the line that Moscow and Peking controlled Communist Parties in non-Communist countries assiduously peddle mainly through peace movements. He described suggestions for greater defence expenditure as 'so much hysteria'. But even Uren was susceptible to the prevailing climate . . . . "

He went on to refer to a number of other members of the Opposition and set out what he regarded as their attitude on defence matters. The passage referring to the plaintiff which I have set out above was the matter sued upon in the second count of the declaration. (at p217)

4. On 10th February 1963 in each of two editions of the Sunday Telegraph the defendant published a news item suggesting that some members of the Opposition in the House of Representatives who had asked questions in the House regarding defence matters had been the unsuspecting "Pawns" of a "Russian Spy", one Skripov, an official of the Soviet Embassy at Canberra who a few days earlier had been declared persona non grata by the Commonwealth Government. Except that the headlines differed, these publications were in the same terms. They were similar to reports which appeared on the same day in the Sun-Herald and were the subject of a libel action by the plaintiff against the proprietor of that newspaper, John Fairfax &Sons Pty. Limited, which came on appeal to this Court and was argued immediately after the appeal in the present case. These statements in the Sunday Telegraph were the subject of the third and fourth counts of the declaration, but at the trial these two counts were treated as one. The publications did not refer to the plaintiff by name but it was not disputed that he was one of the members to whom they referred. On each count the jury found for the plaintiff. On the first they awarded 5,000 pounds damages, on the second 10,000 pounds and on the combined third and fourth counts 15,000 pounds. The defendant appealed to the Full Supreme Court which allowed the appeal and ordered a new trial. Herron C.J. and Wallace J. took the view that the new trial should be limited to damages, while Walsh J. was of opinion that there should be a new trial on all issues. The learned trial judge had directed the jury that it was open to them, if they thought fit to do so, to award punitive damages, and each of their Honours thought that this was a misdirection. Herron C.J. and Walsh J. based their conclusion on this point on the propositions laid down by Lord Devlin and accepted by the other members of the House of Lords in Rookes v. Barnard (1964) AC 1129 , as interpreted and applied by the Court of Appeal in McCarey v. Associated Newspapers Ltd. (No. 2) (1965) 2 QB 86 . As I read their Honours' reasons they were also of opinion that the amounts awarded were in any event excessive, and this they thought might have been due, in part at least, to the way in which counsel for the plaintiff had conducted his case at the trial. In some respects he had, they considered, over-stepped the bounds of legitimate advocacy and unfairly created an atmosphere which might seriously have prejudiced the defendant in the minds of the jury. It was this last factor which led Walsh J. to the conclusion that there should be a general new trial, since whatever prejudice may have been aroused would have been as likely to affect the jury's views on issues of liability as on the question of damages. Wallace J., for the reasons which he had given in the case of Uren v. John Fairfax &Sons Pty. Ltd. (1965) 66 SR (NSW) 223; 83 WN (Pt 2) 183 , thought that Rookes v. Barnard (1964) AC 1129 should not be followed since it was in conflict with a number of decisions of this Court. Applying those decisions, however, he could find no evidence which would have warranted an award of punitive damages on any of the counts. He thought therefore that there should be a new trial but one limited to damages. (at p218)

5. In Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 I stated my opinion that Lord Devlin's speech in Rookes v. Barnard (1964) AC 1129 unduly limited the right of juries to award punitive damages and that, in Australia, the common law, as it had long been applied, did not lay down such narrow limits. I need not repeat what I and other members of the Bench there said. Applying, however, the broader rule which is sometimes expressed and sometimes implicit in the decisions of this Court to which reference was made in Uren v. John Fairfax &Sons Pty. Ltd. (1966) 117 CLR 118 , I agree with Wallace J. that, on the evidence in the present case, there is insufficient material to justify an award of punitive damages, certainly on the first and second counts. I have felt some doubt about the third count but, since the jury were wrongly directed that they might award punitive damages on each of the counts, it is plain that there must be a new trial and in all the circumstances that new trial should not be limited to two only of the three counts. Indeed no such limitation was suggested during the argument. (at p219)

6. There remains the question whether the new trial should be limited to damages. If, as Herron C.J. and Walsh J. thought, the conduct of counsel for the plaintiff at the trial had unfairly created an atmosphere prejudicial to the defendant, I would agree with Walsh J. that there should be a new trial on all issues since I find it impossible to think that its effect would have been confined to the assessment of damages. But I do not find it necessary to consider whether the complaints of unfair advocacy made against counsel for the plaintiff are justified or not since for other reasons I am of opinion that there should be a new trial on all the issues. (at p219)

7. The reference to the plaintiff in the article on which the first count was based, while capable of being regarded as defamatory of him - and I put on one side the defence based on s. 17 (h) of the Defamation Act which the jury for some reason must have rejected - could scarcely be regarded as being more than a facetious method - not distinguished by subtlety - of expressing an editorial opinion in the course of a hard-fought election campaign, that members of the opposition, including the plaintiff, lacked sufficient capacity to govern the country, and that the electors should therefore return the retiring government to power. It was not suggested that, as a result of the publication, the plaintiff suffered any special damage and in fact he won his seat by a large majority. To take the view, as the jury did, that such a publication warranted an award of 5,000 pounds, even when regard is had to the direction that punitive damages might be awarded, seems to me to go far beyond the bounds of reason. The reference to the plaintiff in the article upon which the second count was based might have been regarded by a jury as a more serious reflection upon him and, again leaving aside the provisions of s. 17 (h), might have merited an award of an amount larger than would have been justified under the first count, but here again there was no suggestion of any special damage and an award of 10,000 pounds, even when regard is had to the direction as to punitive damages, is in my opinion an extravagant figure. The amounts so awarded are such as to cause me to feel that for some reason or another the jury must have taken "a biased view of the whole case", as Jordan C.J. put it in Willis v. David Jones Ltd. (1934) 34 SR (NSW) 303, at p 317 . And what Kitto J. remarked in Pateman v. Higgin (1957) 97 CLR 521 must be borne in mind. He there said, "It is often true, in a defamation action for example, that the case on liability and the case on damages are not in distinct compartments and therefore ought not to be decided by different tribunals" (1957) 97 CLR, at p 528 . That is certainly true of the present case. (at p220)

8. For these reasons I would uphold the appeal and, in place of the limited order made by the Full Supreme Court, I would substitute an order for a general new trial. It follows that the plaintiff's cross-appeal by which it was sought to restore the jury's verdicts should be dismissed. (at p220)

Orders

Appeal allowed with costs. So much of the order of the Supreme Court as directed a new trial limited to damages varied by directing a new trial on all issues. Cross-appeal dismissed with costs. Costs of the first trial to abide the event of the second trial.