Carson v John Fairfax & Sons Limited; Carson v Slee - [1992] HCATrans 240

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S23 of 1992
B e t w e e n -
NICHOLAS RODERICK CARSON

Applicant

and
JOHN FAIRFAX & SONS LIMITED

Respondent

Office of the Registry

Sydney No S24 of 1992
B e t w e e n -
NICHOLAS RODERICK CARSON

Applicant

and
JOHN SLEE and JOHN FAIRFAX &
SONS LIMITED

Respondents

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Carson(2)

26/8/92

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 26 AUGUST 1992, AT 10.18 AM

(Continued from 25/8/92)

MASON CJ: Yes, Mr Jackson.

MR JACKSON:

Your Honours, the issue with which I wish to

deal now is one to which I was taken, in passing as
it were, yesterday in the course of argument on
another matter and it relates to the observation of
counsel for the appellant in his address to the
jury concerning the defendant being brought to the

ground. Now, Your Honours, I want to deal with
this specifically in relation to two aspects of the
case: the first concerns the justification, if I
could use that word for the moment, justification
for the Court of Appeal looking to that as a
possible explanation for the quantum of the

verdicts. The second thing is that it is an issue

raised by our notices of contention. We would seek
to go a little further and say that another ground
for upholding the decision of the Court of Appeal
is that the jury was not properly directed on this
issue and it was an issue of materiality.
Your Honours, may I deal first with the first

of those aspects. Your Honours, the event which is

significant in that regard, if I could take
Your Honours to it, is to be found at page 372 in volume 2 at letter F. Your Honours, I have taken
Your Honours to the passage yesterday; it is the
first new paragraph on page 372 and Your Honours
will see that the jury was invited to bring this
defendant:
down to the ground -

and Your Honours, I say immediately, that there is
recorded as following it, the observation that it
should take a place as part of an -

award of compensatory damages -

Carson(2)

26/8/92

Now, Your Honours, in the context in which it
appears, in our submission, whatever might be the
words added to it, having said it, the only effect
of it, we would submit, could be - the only meaning of it, I should say, would be to invite the jury to
punish the defendant. And, Your Honours, if one is
looking to the question whether that is the meaning
which it did or did not convey at the time, the
best place to see the effect may be seen in the
contemporary observations of the primary judge,
because he proposed to direct the jury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1992] HCATrans 240
Decision Date

CaseChat Overview and Summary

This matter concerns appeals by Nicholas Roderick Carson against John Fairfax & Sons Limited and John Slee, heard in the High Court of Australia. The dispute centres on an observation made by counsel for the appellant to the jury concerning the defendant being brought to the ground, and its potential impact on the quantum of damages awarded. The respondents, John Fairfax & Sons Limited and John Slee, raised issues regarding the justification for the Court of Appeal considering this observation as an explanation for the jury's verdicts and whether the jury was properly directed on this matter, arguing it was an issue of materiality.

The High Court was required to determine whether the observation made to the jury regarding the defendant being brought to the ground was capable of being interpreted as an invitation to punish the defendant, thereby influencing the compensatory damages awarded. A further issue was whether the primary judge's directions to the jury adequately addressed this point, particularly in light of the respondents' contention that the jury was not properly instructed on the materiality of such an observation and that the direction given was insufficient.

The court considered the context in which the observation was made, with submissions arguing that its only effect could be to invite the jury to punish the defendant. The primary judge's proposed direction, which was not ultimately given in full, indicated an intention to instruct the jury that punishment was not a part of damages. The judge did, however, direct the jury that they must not include any element of punishment in their verdict. The court also noted that while there was discussion regarding redirections, no specific application was made to the judge on this particular issue before the jury returned its verdict.

Orders