Brooks, Christopher Stuart v Davies Bros Limited, McCausland, Ian and Rogers, Matthew; Himson, Simon Ross v Davies Bros Limited, McCausland, Ian and Rogers, Matthew

[1998] TASSC 97

97/1998

PARTIES:  BROOKS, Christopher Stuart

v

DAVIES BROS LIMITED

McCAUSLAND, Ian

ROGERS, Matthew

HIMSON, Simon Ross

v

DAVIES BROS LIMITED

McCAUSLAND, Ian

ROGERS, Matthew

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  ORIGINAL

FILE NOS:  705/1998
  706/1998

DELIVERED:  18 August 1998

HEARING DATES:  10 August 1998

JUDGMENT OF:  Cox CJ

CATCHWORDS:

Defamation - Damages - General Damages - Assessment - Special matters to be considered by jury - Aggravation - Exemplary or compensatory damages - Malice is relevant factor in an award of exemplary damages.

Australian Consolidated Press Limited v Uren [1969] 1 AC 590 at 643, followed.

Aust Dig Defamation [90]

Defamation - Damages - General damages - Assessment - Special matters to be considered by jury - Aggravation - Conduct of the parties - Conduct of defendant from time of publication until return of verdict is relevant - Application to strike out as irrelevant part of defence under Rules of the Supreme Court, O28, r4 alleging mitigating conduct after publication.

Praed v Graham [1889] 24 QBD 53, followed.

Aust Dig Defamation [91]

REPRESENTATION:

Counsel:

Plaintiffs:  D J Gunson

Defendants:  D F M Zeeman

Solicitors:

Plaintiffs:  Gunson Pickard & Hann

Defendants:  Butler McIntyre & Butler

Judgment category classification:

Court Computer Code:

Judgment ID Number:                  97/1998

Number of pages:  2

Serial No 97/1998

File Nos 705/1998
706/1998

CHRISTOPHER STUART BROOKS v DAVIES BROS LIMITED IAN McCAUSLAND and MATTHEW ROGERS

SIMON ROSS HIMSON v DAVIES BROS LIMITED IAN McCAUSLAND and MATTHEW ROGERS

REASONS FOR JUDGMENT  COX CJ

18 August 1998

The plaintiffs have, in separate actions, instituted proceedings for defamation of each of them in an article published by the first named defendant as the proprietor of the newspaper concerned, the second named defendant as editor thereof and the third named defendant as the author of the article. The defamatory matter is alleged to include imputations that the plaintiffs, who are both public servants, had made improper use of Government credit cards to procure tickets to a charity dinner and concert for themselves or their families and for various other public servants, Members of Parliament, their respective families and other unidentified persons described by the defendants as having “their snouts deep in the public trough”. Publication of the article and some of those imputations are admitted by the defendants in their defence. The pleading that the article was written, printed and published by the defendants falsely and maliciously is denied, while any injury to the plaintiffs therefrom is not admitted. The plaintiffs claim damages, including aggravated and exemplary damages.

In their defence, the defendants plead that the publication was carelessly written, printed and published by them and that they have published two apologies for the article. Paragraph 20 of the defence in each case is as follows:

“The First and Second Named Defendants state further that the Second Named Defendant caused a written reprimand to be given to the Third Named Defendant and Mr Robert Gregg, Acting News Editor of the Sunday Tasmanian on the day of the publication of the article, in relation to the content of the article and have requested the Third Named Defendant to attend a full day seminar on media law to be held at the First Named Defendant‘s premises on the 27th June 1998.”

The plaintiffs now seek orders pursuant to O28, r4 that par20 be struck out on the basis that it discloses no reasonable answer to the plaintiffs’ claims.

In Burton v The President, &c, of Shire of Bairnsdale (1908) 7 CLR 76 at 99-100, Higgins J said of the equivalent Victorian rule that “it has been held not to apply except in plain or obvious cases; and if there is a point of law that requires any serious discussion, it should be set down for argument.” Paragraph 20 does not raise a defence to the cause of action pleaded, but I reject the submission that the administering of a rebuke by the second named defendant to the third named defendant and the acting editor on the day in question, together with the making of a request by them or one of them that the third named defendant should attend a seminar on media law, are irrelevant to the issue of damages on the trial. The plaintiffs have alleged malice and have sought exemplary and

aggravated damages. While proof of actual malice is not an essential precondition to an award of exemplary damages (Lamb v Cotogno (1987) 164 CLR 1 at 13), nonetheless malice is a relevant factor (Australian Consolidated Press Limited v Uren [1969] 1 AC 590 at 643). Furthermore, the fact-finding tribunal in assessing damages in defamation, is entitled to look at the whole conduct of the defendant “from the time the libel was published to the time [it] gives [its] verdict” (Praed v Graham [1889] 24 QBD 53, per Lord Esher MR at 55).

The allegations in par20 are relevant to the degree of moral turpitude of the first and second named defendants‘ conduct and in these circumstances I am of the view that it is inappropriate to strike out the pleading. The applications are dismissed.