Carson v John Fairfax & Sons Limited; Carson v Slee

[1992] HCATrans 240

.. L-\

•

.

• ~

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) 74 26/8/92

TRANSCRIPT OF PROCEEDINGS

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

(Continued from 25/8/92)

Copyright in the High Court of Australia

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) 75 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 on the

question. That appears on the next page, page 373,

V to X, just the last two parts on the page.

MR JACKSON:  Your Honours, in fact the judge did not direct

the jury on this, or perhaps I could put it in the

alternative, did not direct the jury on this issue

specifically, the relevant direction being at

page 409 and Your Honours will see at the bottom of

the page in the last paragraph what His Honour said

was, commencing at letter S:

you must not include in your verdict any

element by way of punishment of the defendant.

That is, the paper or Mr Slee. Punishment is

no part of any damages. They are intended to

be compensatory -

et cetera. And not by way of punishment. That was

all that was said on the topic and if I could say

something in relation to the first aspect on which

we address submissions on this question, that is -

BRENNAN J: An application for redirection, Mr Jackson?

MR JACKSON:  What happened was this. If I could take

Your Honours to page 415 the jury were too quick in

a sense. Page 415, the jury retired, Your Honours

will see at letter G, at 3.14. His Honour says:

to consider your objections and if there are	4 o'clock would be a good opportunity for me
any, to give them.

There was then some discussion - applications for

redirections and argument about that, and at the

bottom of page 421 while the argument is going on,

the jury came back and the verdict was taken on the

next page.

I would like to say, however, that there was

no specific application to the judge for

redirections on this issue and the view, as I

understand the position, expressed by Mr McPhee who

appeared at the trial and in the Court of Appeal

was that his view of what the judge had done in the

Carson(2) 76 26/8/92C

passage to which I have referred at pages 409 and

410 was that he had in effect decided not to give

specific directions on the issue and that the issue

was closed subject, of course, to any matter by way

of appeal.

Your Honours, if I could deal with the first

and, if I may say so, blander aspect of the case,

in a sense, on this point, it is this: what was

said in relation to this issue in the Court of

Appeal was that if one looked at the quantum of the

verdicts there was an error in the trial. Some

factor must have induced the error and it may have

been, if one was looking at the error, that

observation to which I first referred. That that

the setting aside of the verdicts, and

is the approach that was being taken by the Court warranted
of Appeal appears from two passages: first, at

page 470U, at the bottom of the page, where the

going through to Hon the same page where he says

it may help to explain how such a large, indeed,

uniquely large verdict was returned.

Your Honours, all His Honour is saying there

is that the notion of bring down involves the

notion of punishment. His Honour expresses the

view that the verdict was, in effect, too high and

he is simply offering the observation at that point

that the conduct to which he has referred may be an

explanation. To have said that does not, in our

submission, demonstrate error in His Honour's

approach in setting aside the verdicts.

TOOHEY .J:  No, but it is a rather curious way of putting it,

Mr Jackson, because it is expressed in terms of

verdict. You would perhaps more readily understand

it if there had been one verdict involved. But

when you have two verdicts and differing amounts,

in substantially differing amounts, it make it the

more difficult to even begin to attribute any

relationship between a remark like that and the

verdicts that the jury returns.

MR JACKSON:  What Your Honour puts to me, in some contexts,

would be of great significance, with respect, but

one really should, we would submit, in fairness to

the judge whose judgment is being scrutinized, look

at the whole of the paragraph. In that regard,

Your Honours will see that he commences at the

bottom of the preceding page at 470 by saying - I

am sorry, the last three lines on page 470. At the

top of the next page, His Honour says that would

not:

of itself, warrant the setting aside of the

verdicts -

Carson(2) 77 26/8/92

plural. Your Honours, in those circumstances,

where His Honour has made it clear - and I would

not attempt to go back over it. I think I said

yesterday that it is clear he understands he is

dealing with two verdicts. The fact that he has

used the expression "verdict" in the singular

should not really be taken as indicating that that

is leading him into error. If one looks at the

next paragraph two lines down, he speaks of "the

jury's verdicts" and he describes them as being in

that way.

TOOHEY J: 

I was not seeking to focus so much on the use of

the singular or plural, although I did preface the
question or the comment with a reference to that,
but when you have two separate verdicts for

different amounts and for substantially different

amounts, it makes it perhaps the more difficult to

know what weight, .if any, one should attribute to

the remark that you are presently discussing.

MR JACKSON: 

Your Honour, could I just say this, that for

the purposes of the argument I am putting just at

the moment, we really are resisting the proposition

that in saying what His Honour said there, he

himself fell into some error. All I am seeking to

demonstrate for present purposes is that that

should not be treated as His Honour falling into

error; it is simply him saying, in the context of

a case where it is not possible to identify exactly

what the error was, perhaps this was the error.	I
really do not like to use the expression,
Your Honour, because it describes so much of my

argument, I suspect, but it is a kind of throwaway

line.

Your Honours, if one goes to page 529 in the

,reasons for judgment of Mr Justice Priestley, it is
the passage commencing on the page just before in

the first paragraph on the page. I will not read

it out, because Your Honours have seen it, but

Your Honours will just see that what His Honour is

there saying is that:

it could easily be thought by the jury to be

an invitation to them to add something to the

damages to punish the defendant.

His Honour expresses the view that the remarks were

not sufficient to prevent the possibility that they

encouraged the jury the focus on the figure.

His Honour does take the view in our favour in that

regard, that more should have been said, but he

says that would not by itself be sufficient, will

see between Mand P, to justify setting aside the

verdicts. All he says is:

Carson(2) 78 26/8/92

The use of the words does however furnish a

possible explanation for the size of the

damages for the later article.

So that is really all that is being said by the court, we would submit, in making our submissions in response to our learned friend's argument.

May I move to the second aspect of the case on

this point with which it is convenient to deal now,

and that is the issue raised by the notices of

contention, and Your Honours will see the issue

raised, for example, in ground l(d) which is at

page 559. I should strictly refer to the amended

notices of contention, then it may perhaps be more

conveniently seen simply at that page, ground l(d).

If Your Honours look at the opening words of

ground 1 on the preceding page, there is perhaps an

enthusiasm of negatives, but the effect of it is
that the judge should have directed the jury more
specifically than he did on the issue raised by

these observations.

Now, I have taken Your Honours to the relevant

passage, and we would submit that the term could

only be a term which meant that some punishment

should be inflicted on the defendant, and that

effect could not be satisfactorily taken away

simply by adding the reference to compensatory

damages immediately following it.

May I say two things about the observation in

the context in which it was made. The first of

them is that one is now looking at the words in a

printed page, but they were delivered in the course

of and as part of the peroration in what

undoubtedly was a powerful address to the jury.

The atmosphere in which they were to operate was

hardly that in the sense of the vicar's tea party.

That is the first thing.

The second thing is that if one is seeking to

judge whether they should or should not be treated

as having conveyed the meaning, which we submit

they did, one has only to look to see the view

taken by the primary judge to provide a

contemporary view of it.

Your Honours have seen His Honour's direction

on the issue on pages 409 and 410. That direction,

in our submission, was simply not adequate in the
circumstances. It did not direct attention at all

to the particular matter in question. All it did

was to express the broad concept that the damages

should not take into account any punitive element,

and a suggestion that a punitive element might be

taken into account had been put in direct and

Carson(2) 79 26/8/92

graphic terms, and it was appropriate, we would
submit, for His Honour to give a fuller direction

than that.

Now, Your Honours, that fact, in our

submission, is itself a good reason for taking the

view that the result arrived at by the Court of

Appeal in ordering a new trial as to damages was a

result that was correct.

May I move then to the next issue which is the

issue, if I could put it shortly, concerning the

imputation, and is an issue which arises only in

relation to the second publication. Your Honours,

it is raised in the notices of cross appeal but not

in the notices of contention. Now, before going

to it, may I say something about the differences

between the notices of cross appeal and the notices

of contention.

The notices of cross appeal differ in that

they raise the issue to which I have just adverted,
that is the question of imputation, which is not in

the notices of contention and they seek a different

relief, if we are correct. That is, that there

should be a general new trial, both as to liability

and quantum, as distinct from merely sustaining the judgment of the Court of Appeal, which is for a new

trial limited to damages. Your Honours, the issue

concerning the imputation and, of course, the

question of whether there should be a new trial in

toto is one on which we require special leave.

Your Honours, may I first make some

submissions on the question why special leave
should be granted in relation to the question of

the imputation, and they are these - Your Honours,

if I could put it very broadly for the moment - the

submission which would be made is that the material

published on the second occasion could not give

rise, using the appropriate test, to the imputation

which is relied on and upon which the jury must

have found. Your Honours, in relation to that,

what we would submit is that the assessment of the

damage, or damages, involves an understanding of

the nature and seriousness of the relevant
imputation. The two are intertwined. The second

thing is that the issue goes to the whole of the

second action. The third thing is that there was,

in effect, a division of view on this issue in the

Court of Appeal. Your Honours have seen

Mr Justice Priestley's view already. The final

thing is that the applicant's special leave appears
to have been granted on - Your Honours, the Court

does not give reasons, of course - grounds which

would include the general injustice ground. I say

that because the grant of special leave does not

Carson(2) 80 26/8/92

appear to have been limited to any issue. We would

submit that if that is so, then it would be an

equal injustice if the appeal were argued and a

possible new trial held on the basis of an

imputation which in truth cannot be made out.

Your Honours, those are the matters which we

would urge in support of the proposition broadly.

May I move - Your Honours, I need to go a little to

the imputation to seek to make out the proposition

which we do. Your Honours, the question raised by

this issue is whether the imputations in the
amended statement of claim in the second action

were capable of being made out from the matter

which was published. May I take Your Honours

immediately to the imputations which appear at

page 56.

Your Honours, may I preface what I am about to

say by saying that they are alternatives and the

jury's verdict was on the first, the jury having

been told that if they were against the plaintiff

on the first they might then proceed to consider

the second.

Now Your Honours, could I take you to the

terms of imputation (a). Your Honours will see

from its terms that it involves a number of factors

or elements: one is that Mr Carson and the other
gentleman there named, had entered into an

agreement; the second is that the agreement was:

to obstruct the course of justice -

the third is that the agreement contemplated that

the manner of its implementation was -

by evading service of criminal process -

and the fourth is that it was wrongful to do so.

Your Honours will see those elements, one could divide it up perhaps differently but essentially they are there in one form or another.

Now Your Honours, could I say one further

thing before going on to develop the submission,

and it is this, that it is not permissible, of

course, for a plaintiff to rely, in effect, upon

inference. Could I take Your Honours for just one

moment to what was said by Your Honour

the Chief Justice in Harrison v Mirror Newspapers

Ltd, (1982) 149 CLR 293, in that regard, and at

page 301 about point 2 Your Honour was dealing with

the particular case and then, in about the sixth

line in that paragraph, there is a passage

commencing:

Carson(2) 81 26/8/92

A distinction needs to be drawn between the

reader's understanding of what the newspaper is saying and judgments or conclusions which

he may reach as a result of his own beliefs

and prejudices.

Your Honours, I shall not read out the remainder of

the paragraph, but ask Your Honours to read it and,

in particular, the observation that the defamatory quality of the material is to be determined by the

first and not the second proposition. Now,

Your Honours, one should put in a sense the other

side of the coin a little and the basic test to be

applied is quoted by Your Honour Justice Brennan on

the last page of the judgment at page 304 in

quoting the observations of Lord Devlin in Lewis v

Daily Telegraph Ltd.

DEANE J: Mr Jackson, what account would you suggest this

Court should or should not take of the fact that, as I understand it, all the judges who have dealt

with the matter have thought the imputation was

open and the jury who, as I understand it, is not

suggested to have been other than properly

instructed, apart from that it was open, has found

that the imputation was positively made?

MR JACKSON:  Your Honour, may I say first that what

Your Honour puts to me in relation to the number of

judges does not really seem to accord with the view

taken by Mr Justice Priestley.

DEANE J:  I read what His Honour said differently. I read

what His Honour said was that he personally would

not draw the imputation but that in a context where
he had the benefit of what other judges had said he

was not prepared to say the imputation was not

open.

MR JACKSON:  Your Honour, might I submit, with respect, the

alternative view of what His Honour said and that

is that in the light of the fact that two other

members of the court had a different view and in

the light of the fact that the issue had been dealt
with by Mr Justice Hunt below and, perhaps,

although it is not entirely clear, by

Mr Justice Loveday at the trial, that there was no

point in him going further to discuss the issue
but, really, suggesting that he was not assenting

to the proposition de novo as it were.

Your Honour, I accept the fact that those who

have considered the issue have arrived at a

particular view is a matter to be taken into

account. Equally is the fact that they jury

arrived at a particular conclusion. But, of

course, the matter was put to the jury in a form in

Carson(2) 82 26/8/92

which it was treated as being something that was an

imputation open to them.

DEANE J: But there are two areas in which this is relevant,

are there not? One is as to whether the imputation

was open, it seems the classic case where judges

such as us, with our knowledge of legal process,
are possibly not the best people to decide what

imputation is open in terms of the ordinary lay

reader. The other aspect, of course, is that if

lawyers would understand what was being said it

must be relevant to the quantum of damages. The

profession community in which the plaintiff moves would not see this as an allegation of a criminal conspiracy if that be so, regardless of the fact

that the ordinary lay reader could well draw that

imputation.

MR JACKSON:	Your Honour, may I say something first in relation to the second point Your Honour makes,
then go back to the first.  Your Honour has, in a
sense, put a finger on what really is a curious aspect of the case because, assuming all else in
favour of the appellant on this, in relation to
this imputation, the case that seemed to be made
out was one that involved saying, "Lawyers would
understand that to decline to accept service is not
really any evidence of conspiracy or does not
amount to conspiracy. On the other hand, the public might not understand that but yet the
damages that are said to flow are damages which in
large measure reflect the view taken by the
professional compatriots of the appellant." Your Honours, that is the something of a paradox
that appears.  I would want to develop that a
little later if I may.

But going back to what Your Honour has put to

me on the first aspect of it, Your Honour, one must

approach these things in the context of there

being, in fact, a division of function as between

judge and jury. The division of function,

Your Honours, and it really does not matter, I

suppose, if one characterizes the judge's functions

as being one of law or an aspect of fact, is the
judge's function is to decide the very question
whether the material is capable of giving rise to

the imputations.

Your Honours, that is a function which is as

much given to the judiciary as is the function of
deciding the ultimate result is given to the jury.

So it is not, with respect, inappropriate. It

simply reflects the difference in functions that is

given. That is the answer I was seeking to make.

Carson(2) 83 26/8/92

Your Honours, may I move then to the material published with a view to seeking to demonstrate

that it could not give rise to the imputation. The

article as scheduled to the amended statement of

claim, and given paragraph numbers perhaps for ease

of reference, appears at page 40. The actual

article, if one wants to look at it, is at

page 182.

Could I take Your Honours to paragraphs 1, 2

and 3 at page 40. Your Honours will see that they

say absolutely nothing about Mr Carson. What one can say is that those paragraphs introduce, as it

were, the Tectran and Raybos litigation and

identify the offices held by Mr Yerushalmy and

Mr Cowper. If one goes from paragraphs 1 to 3,

next to paragraphs 4 and 5, there is again

absolutely nothing in those paragraphs which could

support the imputation relied on.

If one takes the next block of paragraphs as

being paragraphs 6 to 12, there is again nothing in

those paragraphs which remotely suggests any matter

from which any part of the imputations relied on

could be derived. Could I come then to

paragraphs 13 and 14. If I could just pause at

that point, Your Honours, before doing it to say
that there is no identification at all of Mr Carson

in any of the parts to which I have so far

referred, and no connection with Mr Carson of any

of the conduct there referred to.

When one comes to paragraphs 13 and 14, what

is said is that:

In 1984, four months after Dr Rajski sought to bring conspiracy proceedings against him,

Mr Cowper moved to Brisbane.

In January this year -

that is 1988 -

Mr Cowper moved from Brisbane to Ok Tedi in

Papua New Guinea.

It is then said that Blake Dawson Waldron were - or perhaps are - Mr Cowper's solicitors and that they:

have told the police Mr Cowper declines to be

interviewed.

Your Honours, to that point there is, with respect,

nothing. One goes then to paragraph 15 where the

article turns to Mr Yerushalmy. Paragraph 16 says

what was done by Mr Justice Miles, and in

Carson(2) 84 26/8/92

paragraph 17 it is noted that Mr Yerushalmy is to

be charged with perjury. Paragraph 18 sets out:

Mr Yerushalmy was to have appeared in the

Local Court on April 13 but did not. Police

said they had been unable to serve the

summons ..... is now said to be overseas.

Your Honours, so far, again there is nothing.

If one goes to paragraph 19, there is the

first relevant mention of Blake Dawson Waldron, or

the first potentially relevant mention. It is

noted in that paragraph that Blake Dawson Waldron
have declined to accept service on Mr Yerushalmy's

behalf, although they act for him.

We are still a long way from the appellant, we are still a long way from the imputation to which I

have referred Your Honours.

When one comes to paragraphs 20 and 21, what one sees in paragraph 20 is that the substance of a

letter written seeking some particulars of the

nature of the charge in effect and intimating that

a no-bill application has been sent to the

Director of Public Prosecutions. Paragraph 21 says:

This stern note has received a suitably dusty

answer.

That takes one a very long way from any imputation of the nature pleaded.

So that, if one comes to the article, it must

be from paragraphs 22, 23 and	24, that the
imputation is to be derived.	What is said in
paragraph 22 is that:

Blake Dawson Waldron, representing Mr.

position. The partners of the firm, or

Dawson Waldron as it then was, are also defendants in civil conspiracy proceedings

instituted by Dr. Rajski in the Supreme Court.

What is wrong with that, one might ask, and

Yerushalmy and Mr. Cowper, are in an odd

then in paragraph 23 what is said is that:

In that action - - -

That is the civil conspiracy proceedings referred

to in paragraph 22 - - -

Carson(2) 85 26/8/92

Dr. Rajski claims that one of the senior

partners, Mr. Nicholas Carson, conspired with

Mr Yerushalmy and Mr. Cowper -

to pervert the course of justice, et cetera:

by attempting to suborn witness and to prevent

Dr. Rajski receiving legal aid.

It must come then from paragraph 24 that there

is any basis for the imputation. What paragraph 24

says is:

The difficulties the DPP has had serving

summonses on Messrs. Yerushalmy and Cowper

suggests that the criminal phase of the Rajski
case will be every bit as fiercely fought as

the long, expensive, and so far inconclusive

proceedings in the Equity Division of the

Supreme Court.

DEANE J:  Why do you say it must come from 24? What if the

article had been confined to paragraphs 1, 2, 22

and 23?

MR JACKSON:  Your Honour, if one had simply paragraphs 1,

2 -

DEANE J: Paragraph 1 says criminal proceedings against

four, paragraph 2 names two, paragraphs 22 and 23

say there are conspiracy proceedings against

Dawson Waldron because of what Mr Carson has done.

Surely any reader of those paragraphs when simply read together would draw an unmistakable evidence.

MR JACKSON: With respect, Your Honour, no. All one would

see

DEANE J:  I put that too strongly, Mr Jackson. Surely it

would be open to a reasoning jury properly to draw

that inference.

MR JACKSON:  Your Honour, we would submit not. All one

would have is a situation where in paragraph 1

there would be an assertion that the Director of

Public Prosecutions had decided to institute criminal proceedings against some of the main

actors in the Tectran v Raybos litigation - - -

DEANE J:  But that is the whole context of the article. I

mean, reading it the thing that would strike the

ordinary reader is two people have been charged,

they are named, and another two - - -

MR JACKSON:  But they are not named, with respect. sorry, Your Honour, with respect, in the passages I am

to which Your Honour referred me, Yerushalmy and

Carson(2) 86 26/8/92

Cowper are not named until one gets to

paragraph 22.

DEANE J:	I said paragraph 1, 2, 22 and 23.
MR JACKSON:	Yes, Your Honour, but in 1 and 2 there is no

mention of Yerushalmy and Cowper.	It is only one
would have in 22 - - -

DEANE J:  We are probably looking at different - I am

looking at the numbering on the actual article.

MR JACKSON:  I am sorry, Your Honour. I was looking at

page 40.

DEANE J:  I am looking at page 182.

MR JACKSON:  I am sorry, Your Honour. May I consider it for

just a moment: paragraphs 1, 2, 21 and 22?

Your Honour, all that would be said in that would

be that would be - when I say that, I mean the only

inferences that might be drawn are these: that the

OPP was considering prosecuting a total of four

people.	Two had already been
summonsed - Yerushalmy and Cowper.	One would then

go to see in 21 that Blake Dawson Waldron were in

an "odd position", in that the partners of that

firm were -

also defendants in civil conspiracy

proceedings -

and all it would say is that the solicitors for

those people are partners in civil conspiracy

proceedings.

McHUGH J: Well, the difficulty about the matter is that you

have to get the last paragraph in because of the

definition of what the conspiracy was, a conspiracy

to evade service of criminal process.	I must say
my problem with the case is whether His Honour's
judgment was correct in the first place.	I would

have thought that the imputation as originally

pleaded was the correct imputation in this case.

MR JACKSON: Well, Your Honour, that might mean a new trial.

McHUGH J: Like Justice Deane, I must say that I would have

thought the imputations came out of paragraph 23,

that you just suddenly have this particularization

of Mr Carson after a reference to Blake Dawson

being in an odd position, and a jury would be

entitled to infer that it was Mr Carson who had

conspired to pervert the course of justice and

abuse the process of the court by attempting to

suborn witnesses, and so on. That was what he was

Carson(2) 87 26/8/92

likely to be charged about. But that was not the

view Justice Hunt took.

MR JACKSON:  Your Honour, the point I am seeking to make

about it is that one has to, of course, read the

article as a whole, and whilst it is possible to

parse and analyse, it is not in a sense the right

way to do it. I did it myself in going through it,

but, Your Honours, at the end of the day one has to

look to see what is there.

DEANE J: Well, except what I was suggesting to you, and

perhaps I have a nasty turn of mind, is having read

that the article was about two people being charged

and two others who were likely to be charged, my

reading of the rest of the article would be to a

large extent trying to identify who the other two

were. Now, in that sense, what I was putting to

you possibly does take it out of context, but it

may be the approach of quite a few people, I would

have thought.

MR JACKSON: Well, Your Honour, that of course was not the

imputation.

DEANE J: No, I follow what Justice McHugh said, yes.

MR JACKSON:  And Your Honour, one has to bear in mind in

dealing - Your Honour, I would not attempt to

express a view on why Your Honour might arrive at

that view. Might I say, however, with respect, it

is not the view which should be taken in relation

to it, which might properly be taken in relation to

it, and that really does rather involve the taking

of the two-stage process to which Your Honour

the Chief Justice referred in Harrison v Mirror

Newspapers Ltd, the second of which is not, in a sense, permissible. Your Honour, what I was going

to say - - -

DEANE J:  I do not want to take undue time, but how was that

not obvious when you say two people are going to be

charged and the second-last paragraph you say, it

is already alleged that Mr Carson was guilty of a

criminal conspiracy?

MR JACKSON: Well, Your Honour -

DEANE J: Because that is precisely what paragraph 22 says.

MR JACKSON:  Your Honour, what paragraph 1 on page 182 says,

is that the:

State Director of Public Prosecutions •..•• is actively considering prosecuting two more.

Carson(2) 88 26/8/92

Now, it does not say what the two more might be

prosecuted for - - -

DEANE J: But it then says, and it is already alleged in

other proceedings, that Mr Carson is guilty of a

criminal conspiracy.

MR JACKSON: But, Your Honour, if I could just say this, if

one looks at where that appears, what it appears is

as one of, if I can give it its context, three

paragraphs, in the middle of them, and what is said

is that you have got a firm of solicitors which is

acting for two of the people who are being charged.

It says, that firm is in an odd position; it is in an odd position, it says, because the partners to that firm are defendants in a civil conspiracy case which, in effect, is a matter which is related.

That is the introduction to the paragraph.

BRENNAN J: What is the oddity of that position?

MR JACKSON: Well, the oddity of it is, Your Honour, that -

the first thing is one does not find it very often,

find things like that happening very often. That

is sufficient to make it odd. But, Your Honours,

one - - -

BRENNAN J: Scarcely sufficient to make it remarkable,

though, is it?

MR JACKSON:  It is sufficient to make it worthy of remark.

One very frequently finds things where it is said,

"It is odd that someone is appearing for someone

else in proceedings when they themselves have an

interest in resisting other cognate or related

proceedings, even though it may be perfectly

professionally proper for them to appear.".	If one
would hear of conduct like that it is not
surprising to say, "Pretty funny thing to do,

nothing to stop them but pretty funny thing to

do.". Your Honours, not every aspect of

professional behaviour depends upon it being the

exact compliance with the rules and no more and

there is no reason why one should treat a

journalist as saying more than, "It is an odd thing

to do if you arr defendants in civil conspiracy

proceedings to be representing in criminal

proceedings two of the person who are said to be

involved in the matter.".

McHUGH J:  But then the next paragraph goes on and after

having said that the partners are "defendants in

civil conspiracy proceedings", it says in that

action a special claim is made against one of the
senior partners and it is a very definite claim.

It does not say that all the partners are charged

Carson(2) 89 26/8/92

with that. You would imagine that they must be but

this seems to select Mr Carson.

MR JACKSON:  Your Honour, what it say - that is why it is

related to the preceding paragraph. It says:

The partners of the firm ..... are also

defendants in civil conspiracy proceedings - The allegation in that firm is that one of their

number did particular things. Now, that is

explaining what is involved in the proceedings to

which reference has just been made. Your Honours,

that is the context in which the whole thing

appears and all that is then said - - -

McHUGH J:  I appreciate, now that you make the point. So

the allegation is - you are saying that the firm is

vicariously responsible for Mr Carson's wrongs?

MR JACKSON:	Yes.
McHUGH J:	I can appreciate that now that you have pointed

it out but it does not necessary hit you that way

when you first read it.

MR JACKSON:  Your Honour, one can really only take the words

that are there and it commences, as I say, in that

action, there they are. When one comes then to the

last paragraph of it, all that is said in it is the

difficulties they have had in serving summonses on

Yerushalmy and Cowper and if one goes back to look

at the difficulties that are said to have occurred, one sees that in the preceding paragraphs and they are that Cowper moved to Brisbane and then to New

Guinea and his solicitors have said that he

declines to be interviewed. All one sees about

Yerushalmy is that his solicitors have declined to

accept service and that they have asked for

particulars of the charges. That is all it says,

Your Honours, and he just simply says that the

criminal phase will be every bit as fiercely fought

and so on.

Your Honours, in those circumstances, if one

goes back to the starting point, back at page 40

which sets out the -

BRENNAN J:  Mr Jackson, would the article have lost any

meaning at all if paragraphs 21 and 22 had been

omitted or would the thrust of the article still have been because of the difficulties of service

the criminal proceedings will be fiercely fought?

Then my next question is: if that is so, why put

in 21 and 22?

Carson(2) 90 26/8/92

MR JACKSON: Well, Your Honour, one does not have to write

the most economical article, one does not have to

write the fullest article. The article, I think it

is probably correct to say, might have a somewhat

different tone if those two paragraphs were not
there. But it is a question if the difference of

the tone would have been material to the making out

of the imputations with which it is charged.

Your Honours, what I mean by that is that - it

gives it a different tone, but could I just say

that it really introduces a topic which is slightly

different, and the topic is a comment upon the

position of Blake Dawson Waldron acting in several

capacities. That is what the comment is.

BRENNAN J: Not acting in several capacities, acting in only

one capacity, but being defendants in an action and

that contributing to the fierceness of the fight

that was going to take place in the criminal aspect

of the Rajski case.

MR JACKSON:  Your Honour, perhaps I may be corrected if I am

wrong - I am not 100 per cent certain that the two

actions are the same. May I just check that? One

takes it from the article, I know, but may I just -

Your Honour will see an action referred to in

paragraph S. Your Honour, the action that is being

spoken of in the last paragraph as being the

proceedings in the equity division are those

referred to in paragraph 5, of course.

Your Honour, it is not possible, if one looks at

the article only, to determine precisely whether

that is the same proceedings or different

proceedings. It is right to say - Your Honour

correctly draws my attention to the fact that they

are not acting in different capacities, they are in

different _capacities - but, Your Honour, what is

wrong with a journalist saying, in relation to all

these various pieces of litigation, one feature

which is odd is that you have got Blake Dawson

Waldron having these two roles.

McHUGH J:  I rather thought that it was odd that they were

acting for Mr Yerushalmy and Mr Cowper when one of

their partners was alleged to have conspired with

these people.

MR JACKSON:  I am sorry, Your Honour said would or would

not? I did not catch what Your Honour said.

McHUGH J: The article was saying that it was odd because

they were acting for Yerushalmy and Cowper and

Yerushalmy and Cowper were alleged to have

conspired with their own partner to pervert the

course of justice.

MR JACKSON:  Your Honour, if that is fact, it is pretty odd.

Carson(2) 91 26/8/92

McHUGH J: That leads to the inference that Carson must be

as guilty as these other two, and is perhaps one of

the four.

MR JACKSON:  Your Honour, could I just say - and I do not

want to debate whether that is the right inference

to draw from it, but it is not the one on which

the - - -

McHUGH J:  I know. That was the way it was apparently

originally pleaded. Mr Justice Hunt struck that

out and then he tied it into the very last

paragraph.

MR JACKSON:  Your Honour, there was a lapse or two towards

it, I might say, in the course of the argument in

the case, and one sees -

McHUGH J: You mean in the course of this case?

MR JACKSON:  Yes, the course of this case. I will go very

briefly to the references in that, both in the

Court of Appeal, Mr Justice Mahoney, and also in

trying to justify - I do not mean that badly, but

in dealing with this argument, adversely to us, and

on the other hand, in my learned friend's - I will

come to it; it is either opening or address to the

jury, the temptation could not be resisted, if I

may say so with respect.

But, Your Honours, one must come back in the

end to the imputation that was relied upon. That
appears at page 56. Your Honours will see that the

imputation is pleaded specifically and necessarily

very specifically as being:

party to a conspiracy ...•• to obstruct the

course of justice by evading service of

criminal process.

Your Honours, I will not labour the point, but we

would simply submit that it is impossible to derive

that imputation from the material. Could I

indicate where the views expressed on it by the

judges below are to be found:  Mr Justice Hunt at

page 570A, which is in the third supplementary

volume. Your Honours will see the then form of the

imputation - it is not for present purposes

materially different - at the bottom of page 570.

His Honour's reasoning commences at page 571E.	He
says:

A lawyer would no doubt realise that

there is absolutely nothing wrong for a

solicitor to inform the police •.... the

ordinary reasonable reader would not

necessarily react in the same way.

Carson(2) 92 26/8/92

Your Honours, that goes through to the end of that

paragraph. There is a discussion of Mirror

Newspaper Ltd v Harrison on the next page, and then

the discussion goes on to page 573 o. The

substance of it appears to be at page 574 in the
new paragraph commencing on that page and going
over to the top of the next page.

His Honour's view appears to be based on the proposition that the ordinary reader would in

effect misread the article, misread in the sense

that although lawyers - and one notes in passing

that people who might principally be affected by

what was said about Mr Carson would not misread the

article; the public would. I have really

addressed to Your Honours our submissions in

relation to the meaning of the article, and I will

not elaborate upon that.

Your Honours, I should say. there was a slight

but presently immaterial amendment of the

imputation to its present form, and I should simply

refer Your Honours to the fact that

Mr Justice Hunt's decision on that point appears at page 581. These were rulings given before trial as

to the imputations.

Now, Your Honours, the way in which the case

on this point was put to the jury in opening

appears at page 73 in the first volume and it was

put, in effect, as meaning that Mr Carson was up to

his old tricks again. Now, at page 73,

Your Honours, at about letter R, and it is a

passage which goes through from 73R through to 74M.

DAWSON J: Can you just help me, Mr Jackson? Can a

solicitor accept service on a summons?

MR JACKSON:	No, not in a case like this.
DAWSON J: Charge him with an indictable offence?
MR JACKSON:	No.

DAWSON J: No, I would not have thought so.

MR JACKSON:  It is section 28 of the Justices Act,

Your Honour.

DAWSON J: It says that?

MR JACKSON: That says that, yes. Now, Your Honours, that

is the way in which it is put in opening. If one

moves from that to my learned friend's address to

the jury, the position which was put was that the

article had a meaning that the persons against whom

the criminal proceedings might be brought might

Carson(2) 93 26/8/92

include the appellant. That appears in the second

volume at page 364 at about letter K. Now, I go to

the second article and it is described as

being,"defamation by insinuation", and Your Honours

will see, the second paragraph:

The OPP has so far begun to move ..... two

more". The reader would naturally ask, "Who?

I wonder who?" The article is in substantial

measure about Mr Carson and his professional

relationship, about Cowper and Yerushalmy.

Mr Carson is the only partner in Blake Dawson

Waldron singled out by Mr Slee in this article

for mention by name.

And the address on the point goes through to the

next page, page 365 about letter O and,

Your Honours, the address concludes at the top of

page 366.

Now, Your Honours, in dealing with that, could

I refer Your Honours, at page 365, to the matter

raised by Your Honour Justice Dawson, J to Land,

Your Honours, one does have the curious situation

that the persons giving evidence about the effect
on the plaintiff's reputation are lawyers.

Lawyers, it seems to be accepted, are persons who would know that there is nothing wrong in declining

to accept service; one could not accept service,

for example.

DAWSON J: Well, in fact they may never have been asked.

MR JACKSON: No. Your Honour, the plaintiff's claim, in

effect, is for damages, because as a lawyer he has

been affected in his reputation with perhaps

potential effects upon his practice and the esteem

in which he is held by members of the legal

profession and others. Members of the legal
profession would not, we would submit, draw an

adverse inference in relation to the particular

aspect of not accepting service, but that being so,

yet that is the basis for there being a very large

award of damages in circumstances where members of

the public are the ones who must necessarily be the

ones who would be affected by the publication of

the article.

If one goes to the reasons for judgment of

Mr Justice Mahoney, Your Honours will see that he

too has to rely on additional features to justify
the arrival at the imputation. His Honour

discusses that at page 5020 in a passage which goes

for some distance and, Your Honours, in the first

few paragraphs he offers some general observations

and then, Your Honours, at page 503M he refers to

observations starting a line of thought. Well, it

Carson(2) 94 26/8/92

is one thing to start a line of thought, but the

hares cannot be allowed to run all over the field.

They have to run along the track. The line of

thought suggested by the article has got to be one
that leads to an answer rather than just being

something which allows minds to roam unaided.

Your Honours will see that he adopts that very

broad approach at the bottom of the page, the last

five lines, and on the next page at about letter F

he seems to place some reliance upon the

possibility that Mr Carson is one of the two people

who may yet be charged. Then he describes at

letter M the declining to accept service as

reflecting questionable ways, and then between O

and Pa "suitably dusty answer". Well,

Your Honours, it is very difficult, with respect,

to see that the mere fact that someone asked a

question and got an answer which was perhaps not a

direct response in terms of answering the question,

could really give rise to any inference of the

nature in question in the present case, because

what one had to get to was to derive from this a

conspiracy to evade service. That was the count

that was made.

Your Honours, the discussion proceeds then to

page S0SS. That is fundamentally the discussion on

that issue.	I think I have really been over the
field.	We would submit that the imputation that

was made was one that was not open on the material

contained in the article. And may I, by analogy,

refer Your Honours to what was said in Lewis v

Daily Telegraph Ltd, (1964) AC 234, at page 274,

about two-thirds of the way down the page by

Lord Hodson, when he said:

Suspicion, no doubt, can be inferred from the

fact of the inquiry -

there was an inquiry into the conduct of the

company -

being held if such was the case, but to take

the further step and infer guilt is, in my

view, wholly unreasonable. This is to draw an

inference from an inference and to take two

substantial steps at the same time.

BRENNAN J: Mr Jackson, the whole thrust of this article,

particularly if it is read after reading the first

article, is to show that there is something

improper about the conduct of the solicitors who

were acting against Dr Rajski, is it not? Or

enough at all events to excite the gravest

suspicion about the propriety of their conduct?

Carson(2) 95 26/8/92

MR JACKSON:  The solicitors acting for Dr Rajski?

BRENNAN J: Against Dr Rajski.

MR JACKSON: If one looks at the - - -

BRENNAN J: And what else is the purpose of the article?

MR JACKSON: With respect, Your Honour, no. If one looks at

the article, there really seem to be three points

that are being made: the first is to convey

information about the state of play, as it were, in

relation to the area generally; the second is to

express a view, namely oddness about the conduct of

Blake Dawson Waldron in occupying a number of

positions; the third is to express a view set out

in the last paragraph that the difficulties in

serving Yerushalmy and Cowper suggest that it will

be fiercely fought litigation between Yerushalmy

and Cowper and the Director of Public Prosecutions.

Your Honours, that is what it says and we

would submit that further inferences that go from

that to saying that one of the members of Blake

Dawson Waldron, the one specifically named in the

article, is engaged in a conspiracy with Yerushalmy

to evade service is something that is really quite

remote from that. Your Honour, I do not know that

I can develop that further.

Your Honours, I perhaps should mention that in

New South Wales the imputation is the cause	of
action and that appears from section 9(2).	So that
is what has to be made out, the imputation.

Your Honours, may I move from that topic - I

am sorry I have taken rather longer than I expected
,yesterday - to the next issue and that is an issue
that relates to the first action and it is the

question of the directions in relation to an

apology.

The appellant in the proceedings had alleged

originally four imputations. They appear at

page 2. Your Honours, the appellant had originally pleaded four imputations, those four imputations or causes of action being set out at page 2, but he
did not persist with those which are (a) and (d)

set out on that page. They were part of the

original request for an apology and Your Honours

will see their terms.	The first was that there was
an abuse:

of position as a senior member of the legal

profession to wrongly obstruct and impede the

fair trial of Mr Rajski's case.

Carson(2) 96 26/8/92

And the last was that he "lacks integrity".

They were, in effect, part of the original

request for an apology. That appears from

pages 184 to 188.

I was about to take Your Honours to page 184,

In the various documents which appear at page 184

to 188 there are various requests for and response

to the request for an apology. At page 187,

Your Honours will see a letter on behalf of the

appellant in which it said, between letter Sand

the bottom of the page:

the only publication in your client's

newspaper to which our client would be willing

to instruct us to agree, is a statement in

which there is an unequivocal retraction of

each of the imputations pleaded in the

Statement of claim and which makes a full and

sincere apology to our client for the hurt and

embarrassment.

et cetera. Now, at that point the case was one of

the four imputations. It was after the first and

fourth imputations were dropped from the case that

the apology, in fact, was made. The judge appeared

to accept that the directions which he had given

in relation to an apology were not sufficient.

The directions which he gave appear at

page 414 and the point that was being sought to be

made on our side of the case was that it was a
material matter in considering that such damages as
might be awarded for the lateness of an apology or

perhaps its inadequacy so far as the plaintiff's

feelings were concerned that we had not been

prepared to apologize in the terms which were the

subject of the letter to which I referred a moment

ago.	In other words, we were not prepared to
apologize in relation to assertions which were

rather larger than those ultimately proceeded with,

but we were prepared to give an apology when a

smaller case was mounted, in effect.

The direction in relation to apology was at

page 404, I think I said 414, but at page 404

commencing at letter O you will see some directions

about the apology going through to letter N. There

was then an application for redirections in

relation to it which appears at page 414, letters

M to O where His Honour with some - - -

DEANE J: A strange procedure, Mr Jackson. The jury

indicates that they might come back with a verdict

before 4 and the judge says he will give any

further directions at 4.

Carson(2)	97	26/8/92
MR JACKSON:	Yes, Your Honour.	I do not think there is much

I can say about it really.	It certainly has an
element of unusualness about it.	I perhaps should

say I understand this was a Friday before a long weekend. Your Honours, with perhaps a degree of prescience, at page 414M, the judge asks for

submissions on matters that Mr McPhee might have a

chance of getting up on. What is then raised is:

The matter about the apology. First of all,

as the matter of aggravated damages and

secondly as mitigation. The only things the

defendant could be obliged to apologise for

are the imputations -

meaning in the context the two and not the four.

At page 415M, His Honour says:

There were four imputations. Thank you for

reminding me. I think that is fair enough. I

should remind them about that.

Then at page 415S, 419F to H, 420G to N and 421E.

Of course, the bottom of page 421 shows what

happened, so there were no further directions given

about it.

Your Honours, there is no reason, in our

submission, why this was not an issue which may

have had some effect on the jury. The particular

point just was not dealt with in the Court of

Appeal. Could I take Your Honours to page 474.

BRENNAN J: What is the point, Mr Jackson?

MR JACKSON:  The point is this, Your Honour, that the jury

was invited, and quite properly, to take into

·account the fact that an apology was not given for

some considerable time and also the fact that the

apology was one which Mr Carson, properly, it was

put, might not regard as satisfactory. That is a

matter which could go to increase the damages, but

if that was being put to the jury, equally it

should have been put to the jury, in our

submission, that in weighing the damages to be

awarded on that basis, they should take into

account the fact that the apology he was seeking in

the initial period was one which went a long way

beyond any apology that might properly have been

required at that stage or called for or given.

BRENNAN J:	Why?
MR JACKSON:	Because, Your Honour, what was sought was an apology for the imputations which are the (a) and
(d) in the passage to which - - -

Carson(2) 98 26/8/92

BRENNAN J: Yes, I appreciate that, but why is it that the

jury should have been so directed?

MR JACKSON:  Your Honour, they should have been told that it

was not just as simple as saying there was no

apology given for, let us say, seven months.

BRENNAN J: But that is the fact. That is the objective

fact, is it not?

MR JACKSON:  Of course, Your Honour, but it is not the only

fact.

BRENNAN J:  How does the other fact come into the

consideration of damages? Is it that the plaintiff

has inflated his own damages by asking for too

elaborate an apology?

MR JACKSON:  Your Honour, that is one way of putting it.

May I put it slightly differently. What we would say is this, that you have a situation where the

jury is invited to take into account the fact that

there be no apology. That is a fact. It is not

the only fact. They are entitled to take into

account also the fact that there were discussions

concerning the apology and that a reason they might

conclude why an apology, whatever be its ultimate

form, was not given earlier was because the
plaintiff was saying, "The only type of apology

which is suitable to me is one which absolves me

publicly from all these allegations including

allegations which in the end aren't ones that were

ever pursued."

BRENNAN J:  I could understand that argument if we were

dealing with exemplary damages, but as we are
dealing only with compensatory damages, how does

·the problem arise? What is the theory of it?

MR JACKSON:  Your Honour, compensatory damages, of course, include aggravated damages and one of the features

going to aggravated damages is the conduct, in

certain respects, in relevant respects, of the

defendant in circumstances where they may increase

the harm, or hurt and so on, suffered by the

plaintiff. If what is being said is that those

damages may be increased by virtue of the fact that

no apology was given, one is entitled to look at

the events which brought about that situation. If

one of the events which brought about that

situation is the fact that there were discussions

about the apology but what was being sought was

something larger than any apology that might

properly have been given, that is a matter which

the jury is entitled to take into account and that

is a matter on which they should have a direction.

Carson(2) 99 26/8/92

Your Honours will see in the small volume, the

supplementary volume at page 587, that at the top of the page - Your Honours I should identify what

this is: it is a judgment of the trial judge in

which he gives rulings as to the matters which may

be taken into account in aggravation of damages.

At the top of the page, 587, Your Honours will see:

The fifth matter of aggravation claimed was

the refusal or failure of the defendants to

make a proper apology.

And you will see at page 588 that he ruled - and I
make no complaint about that - that it was a matter

properly to be considered by the jury. The

question of the lack of apology and lateness of the
apology and the subject-matter of the apology was

an issue before the jury. The jury should have

received a direction of the nature to which I

refer. It was a direction which the judge seems to

have taken the view, he would have given, had it

not been for the trial coming to an end so quickly.

BRENNAN J:  I suppose he would have had to give them another

direction and that is that if the defendant was

only going to give an apology if it was screwed out
of him, and that also is relevant?

MR JACKSON: Well, Your Honour, it is a -

BRENNAN J:  I mean the whole scope of the negotiations then

must be relevant, must they not?

MR JACKSON:  Your Honour, I do not contest that. Plainly

enough the jury were entitled to take into account

the apology, but it was not adequate to leave the jury with a direction which said no more than the

direction to which I referred earlier, without at

the same time taking into account in assessing the

value to be placed on the refusal to give an

apology, of the fact that the apology that was

being sought was one that went to matters far

beyond those in relation to which they could give

damages.

Now, Your Honour, it may be that if one on

either side of the case looked through the case to

find all the particular things that might have been

said, one could have said that the directions might

have been this, this and this. That is one of the

exercises of judgment, no doubt, of those appearing

at the time. This matter was one seized on, as it

were, by our side. We asked the judge for

redirection; the judge proposed to give one and

did.

Carson(2) 100 26/8/92

DEANE J: They seemed to treat aggravated damages as damages

for being aggravated rather than for something that

objectively increases the damage. I mean, the fact

that somebody is annoyed may not increase the

damage, it may in the objective sense make him feel

more self-righteous and, as it were, less damaged.

MR JACKSON: Well, Your Honour, of course, the annoyance of

a particular thing in fact may clear the air for

the future but, Your Honour, in the end, no

doubt -

DEANE J:	In one sense we have got to refer to it, but take for example the suggestion that, because you think
that the defamer knows that you are innocent, that
your damages are aggravated, if somebody said
something defamatory about me, I would much prefer
that not only I, but the defamer, knew that I was
innocent, than to think that he honestly believed
what he said and that it was - the whole concept
seems quite strange to me.

MR JACKSON: Well, Your Honour, it takes one back, in a

sense, to a point I was seeking to make, albeit

imperfectly yesterday, concerning the terms of
sections 46(2) and (3) of the Defamation Act,
because in respect of some of the areas that are
conventionally ascribed to aggravated damages, one

would think that in many respects they are, whilst

perhaps not punitive damages as a matter of

conventional description, they are, at the same

time, something that does not - - -

DEANE J:	But you see, you did not have to worry about it when you could get punitive damages and when you did not have something like section 46, which said
you can only get compensatory damages. But, once
you move into a regime where your only damages are
compensatory damages, you have to look at what were
previously allowable as aggravated damages to
distinguish between what is properly seen as
compensatory damages and what is properly seen as
not compensatory.

MR JACKSON:  Yes. Your Honour, the point that Your Honour

is making, it may perhaps have been capsulated in a

sense in what is in section 46(3)(b), because it

speaks of, it is a provision to which I did not

refer yesterday in at least any detail, it says:

Damages ..... shall not be affected by the

malice or other state of mind of the

publisher ..... except so far as that malice or

other state of mind affects the relevant harm.

Now, Your Honours, what that seems - that, together

with the concluding clause of section 46(2) seems

Carson(2) 101 26/8/92

to be doing is to say that there are elements which

perhaps might have in the past been treated as

aggravating damage, but which on their true nature

cannot be regarded as being damages for "relevant

harm" and they are not to be taken into account.

That is why, Your Honours, the requirement of

section 46(2), at least in some cases, may not be
exactly the same as damages before the Act, leaving

aside exemplary damages.

Your Honours, in response to Your Honour

Justice Brennan, may I just say that speaking

generally about apologies, there is a New South

Wales decision, the effect of which is that one can

only award aggravated damages for a non-bona fide

failure to apologise. That is Mirror News Limited

v Fitzpatrick, (1984) 1 NSWLR 643. So, without

labouring the point, if I can just say this: the jury is entitled to look at the bona fides of the

refusal to apologise.

BRENNAN J: Was section 46(3)(b) considered in that case, do

you know, Mr Jackson?

MR JACKSON:  No, Your Honour. I think the answer is "No",

but the issue was dealt with as a general issue.

Your Honours, the last thing I was about to say

about apologies was this: in the Court of Appeal,

the issue that I have been raising does not seem to

have been dealt with. Could I refer to page 474V,

commencing at V, and going through to page 476C.

No, Your Honours, that really does not seem to

touch the point. At page 512T, Mr Justice Mahoney

agrees with the President that the trial judge's

summing up was not erroneous.

The next matter with which I wish to deal,

Your Honours, concerns what I might perhaps

describe shortly as the "stop Slee issue" and how

it arises in this way: the trial judge gave a

separate ruling, as I have taken Your Honours to,

on matters which could be relied on in aggravation

of damages. The relevant part of the judgment, for present purposes, is at page 588, at the top of the

page, and he speaks of the eighth matter and so he

was ruling that there could be put to the jury, in

aggravation of damages, the manner of conduct of

the cross-examination of the plaintiff in which he

says it was said to him that the plaintiff:

had an improper motive in bringing the

proceedings for defamation.

Your Honours, the questions to which that issue

related appear at pages 112 and 113.

Carson(2) 102 26/8/92

Our complaint about it, may I say, is this,

Your Honours, not that the judge was wrong in

ruling that these things were not capable of

amounting to an aggravation but in not giving the

jury any guidance on whether the conduct of counsel

was or was not capable of being in aggravation of

damages, whether it was or was not conduct that
might properly be engaged in.

At page 112D to H, Your Honours, at the top of the page, in the first three questions and answers,

one has to bear in mind that unusually of course,

one is looking at the questions to investigate

their propriety. Then at the top of the next page,

the first two questions and answers, the only

directions given by the judge in relation to the

propriety of putting those matters to Mr Slee

appear at pages 407 to 409. It commences on

page 407J. At the top of the next page, the

assertion on our side it was not improper, and then

it goes through to page 409M. Your Honours will

see in the two paragraphs on page 409M is the only

passage in which there are any directions about the

approach which the jury might take in relation to

that. All he is saying to the jury is:

if you regard that conduct as improper and if

you regard that conduct was unjustifiable,

that is cross-examining the plaintiff in that

way ....• then you are entitled to again take

that into account - Your Honours, those directions, in our submission,

were not really any directions at all. The need to

give directions to a jury on an issue of this kind

was referred to by Your Honour Justice McHugh in

the Court of Appeal in New South Wales in Singleton

v Ffrench, (1986) 5 NSWLR 425, at page 439G. In

the last paragraph on the page, Your Honour said:

be taken into consideration only if it The defendants' conduct at the trial may

demonstrates a lack of bona fides or is

improper or unjustifiable. But the vigorous

persistence in a legitimate defence cannot be

used to increase the damages.

Then at the top of the next page:

a jury cannot effectively undertake the task

of determining whether the defendant has

conducted the trial so as to attract an award

of aggravated damages "without proper guidance

as to the criteria" to be applied.

Carson(2) 103 26/8/92

Your Honour elaborates upon that proposition

throughout that paragraph. Your Honour's judgment

was concurred with by Mr Justice Samuels.

Your Honours, may I say two things in relation

to that in its application to the present case.

The judge was asked for redirections on this issue.

That is at page 417P. Commencing at letter R is

the request for a direction on the point. At

page 418 between letters Kand O His Honour

declined to give such a direction.

Your Honours, perhaps I should say our

submission is that a defendant's counsel were

entitled to put a proposition to a plaintiff that

sought to probe the degree of hurt which the

plaintiff had suffered by looking to the purpose of

instituting proceedings. Now, a jury might take

the view that that was not the purpose of counsel

in doing that, but that the purpose was simply to

blacken the plaintiff or to reduce the damages in

an inappropriate way. The views were open to the

jury, but the view that the conduct was proper was
also open to the jury and it was a matter for the

jury to decide what view they took in relation to

it. But equally, Your Honours, it was for the

judge to give some direction to the jury other than

just to say to them, "If you think it is proper,

that is okay; if you think it is improper, then you

can treat the damages as aggravated by it." So

that is the substance of the complaint which we

make.

At page 473 in the reasons for judgment. of the

President, Your Honours will see commencing at letter Lon the page, His Honour speaks of the duty

of the judge and the complaint which we make.

His Honour says at letter S:

I say at once that it might have been

preferable if more guidance had been given by

Loveday J to the jury on this score. On the

other hand, whilst it might be true that the

cross-examination of Mr Carson could not be

judged unjustifiable, improper or lacking in

bona fides, the fact remains that it was put

to Mr Carson that he had brought his actions

to "shut Slee up". This was the major

complaint.

His Honour goes on to discuss that down to letter P

but, with respect, it really does not touch the
point which is dealt with at the start of the

paragraph on page 473 and that is that the jury should have some directions on dealing with the

issue and not simply be left, if I could adapt the

Carson(2) 104 26/8/92

phrase, "at large", to say whether they thought

what was happening was proper or improper.

McHUGH J: What do you say as to whether or not these

authorities proceed on a false premise? Can I put

the problem I have always had about this: this

doctrine arises from Triggell v Pheeney, in which

in a judgment which Sir Owen Dixon obviously wrote,

he gave effect to the argument which he had put and

which had been rejected in Herald and Weekly Times

v McGregor. Once the defendant loses the issue of
liability, why should the jury not be able to
assess the damages having regard to the harm caused
to the plaintiff by the conduct of the case

irrespective of whether the defendant was acting bona fide or not? That was the law, it seems to

me, before Triggell v Pheeney.

MR JACKSON:  Your Honour, one has really underlying the notion a couple of policy considerations.

McHUGH J: Yes, it is a question of policy.

MR JACKSON:  In a sense. Your Honours, could I say that it

is, if I could say something by way of analogy

first, rather akin to an issue that was discussed

Smith v New whether one should, in disciplinary proceedings, be

by the members of the court who sat on

liable in effect to being struck off as well as to

perjury. I am putting it rather badly but a

witness in court proceedings should not be in

immediate jeopardy in those proceedings of
something happening to the witness because the

evidence is not accepted.

Underlying that notion, we submit, is a notion

similar to that which is involved in the present

issue and that is this - one has to have legal

proceedings for defamation actions or for any other

kind of action. In those proceedings, a person

seeks to, if I could use the word vindicate for the

moment, seeks to vindicate or obtain something for

the wrong that has been done.

It is possible, of course, to adopt the view

that everything that happens in those proceedings

is something which could aggravate the wrong. But

the fact of the matter is that it is very unlikely that that is so. The mere fact of the proceedings may not do it; events that happen in the course of

it may or may not do it but, Your Honours, what we

would submit is why should it be the case, if I

could just put the other side of it, that simply

because someone bona fide defends legal

proceedings, that in addition to the right being

justified by the award that is given in respect of

Carson(2) 105 26/8/92

the injury to the right, there is also another

penalty which is imposed for, in effect, having

lost on particular issues.

The ability to award aggravated damages in

respect of the conduct of the case provides, in
effect, a policy balance between the two things,
because as it says, if you have acted, in effect,
improperly or not bona fide, that is the measure of

the additional damages the plaintiff is entitled

to. If, on the other hand, all that you have done

is to try to defend yourself in a bonafide way,

but in the end you have lost, you do not suffer the

additional penalty.

McHUGH J:  It does not matter how wrong-headed you are, if

you are bona fide about, and the plaintiff suffers

further harm by your conduct, then the

Triggell v Pheeney doctrine says the plaintiff is the one who has to wear the loss, it is not the

defendant. Why does not fairness require a

defendant in those circumstances to compensate for

the harm, rather then the plaintiff to suffer the

harm without compensation.

JACKSON J: Well, Your Honour, the answer probably may well

lie between the two. It may be that it should not

fall on one or the other, but that the test should

be moved somewhat in favour of the plaintiff by

saying, for example, reasonable rather than

bona fide, but, Your Honour, that particular issue

is not involved in this case, but wherever the test

be in the future, at present one is in a situation

where, if a jury is to take into account the

conduct of the defendant, at least the jury should

have some direction about how it is going to

approach it, not simply be put to them in relation

,to the conduct of someone whose brief, in effect,

they do not explore, is it proper or improper?

DEANE J:  Mr Jackson, on that page you have been pointing

to, why was it a ground for aggravated damages,

that Mr Slee did not give evidence?

MR JACKSON:  I am sorry, Your Honour, I am not sure what

page Your Honour is talking about there.

DEANE J: Page 474. It says:

It was justifiable for those representing

Mr Carson then to call to the jury's attention

not only the failure of Mr Slee or any other

officer of Fairfax to give evidence -

Apparently the suggestion is that if a defendant

fails to give evidence, that justifies aggravated

Carson(2) 106 26/8/92

damages.	I would have thought the contrary was the
case?

MR JACKSON:  Yes. Your Honour, I do not know, I would

really need to check on whether that is something

that the judge is saying or something that the

other side is saying.	Your Honour, may I check on
that.

DEANE J: Perhaps I am just wasting time, but I am very

puzzled, I must confess, about how aggravated

damages fits into this statutory context.

MR JACKSON:  Yes. Your Honour, of course the point we make

in the end is one to the side of that, as it were.

Your Honours, I was going to say that

Mr Justice Mahoney dealt with the issue at

page 505. Now, Your Honours, it is a passage which

I am afraid is very lengthy and it goes from

page 505 at the bottom of the page through to

page 512K. His Honour, at the bottom of the page,

meaning by that page 506, seems to take the view:

that the suggestion that Mr Carson brought the
present proceedings for the improper purpose

of stopping comment by Mr Slee -

did not go -

to the pursuit of a legitimate defence.

Your Honours, the word "improper" keeps slipping

in; that was not in any of the questions that was

put to the witness, and what His Honour says is, at

the next page, page 507 letter C to G, is that:

A reading of the transcript suggests, in my opinion, that the questions asked were not in

reality directed to any defence of this kind.
Your Honours, there is not, we would submit,

any particular reason why one could not ask a

witness what the purpose of instituting proceedings
was as a matter going to the degree of hurt which

the witness had suffered. That is why questions

relating to obtaining or not obtaining an apology

or delay in starting proceedings and matters of

that kind are always material to be put to a

witness in relation to a question of damages. Your Honours, it might well be that a jury,

having seen what happened, took the view that

questions of that kind were questions which, in

fact, were put for some other purpose but they

might equally take the view that they had been

perfectly properly put.

Carson(2) 107 26/8/92

Your Honours, we would submit that the issue was one on which the jury were entitled to decide

whether the questions had or had not been properly

put. It went to a matter in issue in the proceedings. One had to see whether the conduct of

the defendant's counsel had aggravated the damages

and, in deciding that, the jury should have

received some direction in addition to that which

they in fact received.

The matters referred to by Mr Justice Mahoney

at, for example, page 511 in the first new

paragraph on that page, really do not answer, in

our submission, the proposition which we have been

advancing. And Your Honours will see that

His Honour, at letters K to M, really just picks up

the very broad direction that was given to the

jury. So, Your Honours, that, in our submission,

is a factor which would militate in sustaining the

judgment of the Court of Appeal.

Your Honours, might I move then to a question

which I, in effect, deferred from yesterday and

that was dealing with our submissions and I will

endeavour to make them as briefly as I can

concerning the level of damages overall. I have
deferred them until now because Your Honours had

not earlier looked at any detail of the terms of

the second article.

Could I say - I will endeavour to summarize

these submissions although it will be necessary to

go a little to the evidence - that the first thing

is that there was no evidence of any economic loss

in relation to either publication and none was

suggested. There was no evidence, for example,

that clients had not, in fact, come to him. At

,best one would be left with the supposition,

perhaps, that perhaps people might have come but

might not have come because of the articles.	Nor
was there any evidence that any person had, in
fact, shunned or avoided the appellant in

consequence of the publications.

Your Honours, if I could just go a little into

the detail, in relation to the first article, the

evidence commencing at page 91W was that more than

three people spoke to the plaintiff. They were the

Honourable Andy Larkins - that is page 91X -

Mr Gill, the former president of the Law. Society -

at page 92C; Mr McGeoch, page 92D; his partner,

Mr Davidson, page 92L to M; and Mr Justice Meagher,

who was then at the bar, at page 92L to M - and

Mr Meagher was appearing for a party with a

somewhat similar interest in the Rajski

litigation - that appears at 92M too.

Carson(2) 108 26/8/92

Your Honours, so far as the plaintiff's

evidence concerning his feelings was concerned, his

initial reaction and the increasing amazement that

he felt he suffered was referred to by him at

page 82C to Q. He refers at page 820 going through

to Y to the call from the former Mr Justice Larkins

speaking to him about the article. It made him

think it was more serious and he was very hurt and

angry. That appears at page 83G to K.

Mr Meagher QC, as he then was, was sympathetic.

That appears at page 83L to N. There is a

reference to Mr Mark; it should be Meagher,

Your Honours.

At the bottom of page 84 he was at a meeting

of the Law Cover Management Committee and one of

the people who was there was Mr Michael Gill, who

was the chairman of the committee. Your Honours

will see then at page 85J, Mr Gill said what is set

out there:

He said, "You sent Rajski to a psychiatrist

and the psychiatrist says he is okay and says

you are a crook" .

Your Honour will see, as appears from M to O, that he perceived it as being said in jest and it drew

forth laughter, although he did not like it and, as

you will see between Land M, had suffered

embarrassment. Mr McGeoch told him at page 85W to

86F that he had read the article, and Your Honours

will see that he spoke of a conversation with

Mr Thornton - that is the passage that goes from

SSW to 86G - and Mr Thornton saying:

it was pretty crook of Nick Carson to have

sued the solicitor to get him out of the

case".

Your Honours, at page 86I to L, he said that what he was told caused him hurt, he was hurt and

worried. At page 86Q to The said he was angry and

frustrated with the Herald's reply on 30 April

concerning the apology. Your Honours will see at

page 87 between T and u, he expressed the view that

he issued the statement of claim because he was

unable to get a proper apology. At page 88T to v,

the November apology was not good enough, and at

page 89L to N, the 22 December apology he regarded

as inadequate and too late. That apology, if

Your Honours are looking for it, is at page 196.

That apology, if Your Honours are looking for

it, is at page 196. Your Honours, at page 90D to

G, he said he was angry and frustrated because of

the imputation. I am sorry, that I think, may

Carson(2) 109 26/8/92

refer to the second article - does refer to the

second article.

Your Honours, could I just say that if one

goes to page 138, lines R to T, he said that if the

form of apology, which one sees in exhibit L -

which I might interpolate is at pages 191 to 193 -

had been offered to him at the outset, he did not
know if he might or might not have accepted it.

Perhaps with a bit extra in at the beginning,

litigation could have been avoided. That is the

first article.

As to the second article, only two of the five

reputation witnesses, if I can call them that, had

seen the second article. And at page 158, between

letters N and S, Mr Garling, who is a former

President of the Law Society, said it gave him some

concern, and Your Honours will see what he said in

the last answer. Your Honours, Mr Horrobin at page

160, commencing at Wand going through to 161 I,

spoke of a meeting at which he said what Your

Honours will see at 161F to G. Someone said:

Anybody who knows of Rajski and knows you is

going to give you the benefit of the doubt,

but the problem is that mud sticks -

This goes on to Hand I:

and it is going to give you, do you damage

whatever happens.

And Mr Carson was upset by that. The reference to

"mud sticks" appears also, Your Honours, at page 160

between Mand P.

Your Honours, so far as the plaintiff was

concerned he said that he was spoken to by a number

of his partners and others who mentioned the second

was published - that is at page 90, lines V to W -	article casually to him in the week or so after it
however he could not recall who they were. That
appears at 90, again, V tow. What they said, in effect, was:

I see you have got another serve from Slee.

That appears at page 91 lines B to E. He felt

embarrassed by that - 91 O, Your Honours.

He did not seek an apology, because he felt:

there was no point.

And he had his -

Carson(2) 110 26/8/92

lawyers ..... issued a statement of claim.

That is page 91P to R. The reason that he did not

take notice of anyone's name who spoke to him about

it was:

Because no one spoke to me about it in

circumstances indicating that they thought the

less of -

him.

They were sympathetic -

that is page 91S to V and at page 920 to u.

Your Honours, he did not remember any partner

suggesting that the imputation was conveyed. That

appears at page 1220 to R.

Now, Your Honours, as Mr Justice Priestley, at

the commencement of his reasons for judgment in

this case, said there are really no very exact

guidelines and, Your Honours, I am referring to

page 527. He says that:

no more precise statement can be made

that .•... appellate courts must decide, in the
light of their experience, and legal values

conditioned by that experience, whether or not

to set aside the jury figure.

And I would refer Your Honours to what he says at

page 527 and 528. Your Honours, our submission is

that the course taken or the view held by the

majority in the Court of Appeal on this issue was

one that should not be set aside by the court. The

view taken by the Court of Appeal was one that was

correct.

Your Honours, there are only a couple of other

matters with which I wish to deal.	So far as our
notice of cross appeal is concerned, the only other

question raised by it is the question of whether

there should be a new trial generally.

Your Honours, our submission is that if the

verdicts are excessive, the view taken by

Mr Justice Priestley should prevail, or a view

similar to that taken by Mr Justice Priestley,

should prevail, or originally taken by

Mr Justice Priestley should prevail. That appears

at page 531J to 532N, and that is that there should

be a general new trial of the matters, because the

issues were intertwined and the normal course, in

such a case, we would submit, would be for there to

be a new trial limited to damages.

Carson(2) 111 26/8/92

MR JACKSON:  Your Honours, the approach taken in

Australian Consolidated Press Limited v Uren in the court appears to recognize that in a case where the

verdict as to damages is unsatisfactory, then it is

very difficult to separate out the two and the more

appropriate course would be for the ordering of a

new trial generally. Your Honour, those are out

submissions.

MASON CJ: Mr Hughes, before you commence your reply, the

Court is in a position to give its decision on

Mr Jackson's application for special leave to appeal.

The application is refused on the ground that

in the view of the Court, the imputation found by
the jury in the second action was open.

MR JACKSON:  Your Honour, there is a second aspect to the

special leave application which does not concern

that, of course, but it concerns the question of

the appropriateness of the relief and it was

necessary for us to seek to appeal from the Court

of Appeal's decision in order to invite this Court

to order that there be a complete new trial as

distinct from a new trial limited only as to

damages.

MASON CJ: Mr Jackson, we have not ruled on that aspect of

the application.

MR JACKSON:	I understood that, Your Honour.
MASON CJ:	You are right to say that I think the order that

should be made is that the application is refused,
so far as it relates to the matter of the

imputation.

MR JACKSON:  I apologize for doing it, but I meant to hand

to the Court a table of damages awarded in

defamation cases which has been prepared which

would indicate to Your Honours so far as it is	possible to do so, the various awards of damages,
including ones that Your Honours have mentioned in
the course of the hearing.

McHUGH J: Are these only in reported cases? What about a

verdict like Doherty, $140,000 for an article in

1970, appeal settled? Is that there?

MR JACKSON:  Your Honour, they start, I think, in 1979, so

on that basis it will not be there, but it is not

limited to reported cases - - -

MCHUGH J: No, I see.

Carson(2) 112 26/8/92

MR JACKSON:  - - - and if I may say so, with respect,

sometimes one's recollection of these damages can

be imperfect, and I include my own in that.

MASON CJ: Thank you, Mr Jackson. Yes, Mr Hughes.

MR HUGHES:  May it please the Court. I should first deal

specifically with the residue of the application

for special leave. My learned friend seeks, as I

understand it, special leave to appeal against the

order in each action sending each case down for a

new trial on damages only.

Now, some of what I want to say may be to use

an expression that has already been used in this case, "intertwined with other arguments", but we

should at the outset, I submit, state our position

quite clearly. It is this: that the question

whether a new trial should be general or limited is

essentially a decision of a discretionary nature,

and it is very much a question for an intermediate

Court of Appeal in the great run of cases.

We submit that there are no special features

about that question that would justify the grant of

special leave. We submit that one finds, in this

case, two judgments in the Court of Appeal clearly

expressive of the view that the justice of the case

is met by a limited new trial.

Mr Justice Priestley, although he thought that

there should be a general new trial of each case,

deferred to the majority opinion, in effect, on the

basis that the Gordian knot had to be untied.

There is a special feature about the

application for a general new trial of the first

action. The special feature, Your Honours, is this

- I do not want to go over the ground again but I

must flag the points: there was no challenge to

the jury's verdict as to the meaning of the words

and a majority have said that the damages are not

manifestly excessive.

The whole court has said that nothing in the

conduct of the trial would warrant a new trial -

that is, my conduct. Those, in our submission, are

powerful considerations against what could be

fairly described as a very unusual application for
special leave because of the narrowness of the
point and the discretionary nature of the judgment
of the Court of Appeal on that issue. There is

nothing unusual about ordering a new trial limited

to damages in defamation cases.

Your Honours, we have taken the course - and I

hope I shall be treated leniently by the Court - of

formulating rather more lengthy submissions than a

Carson(2) 113 26/8/92

mere outline of our argument in response to the

notice of contention and the notice of cross appeal

in each case. I have done that - and I take full

responsibility for it - because it did occur to me,

and my forecast has been correct, that the ambit of
the matters that have been traversed on the notice

of contention and the cross appeal has been very

wide.

The course that I would respectfully suggest

the Court might take in relation to this rather
longer than usual document is to treat it as the

rather extended material from which I will speak.

It really encapsulates in very large measure the

arguments we want to put in relation to the

specific points that are raised, now mainly of

course on the notice of contention.

But if Your Honours would be good enough to go

to page 10 of that document, what we say in the

last paragraph, and this is germane for the

application for special leave to appeal as it is

now presented, is that:

At the end of the day, the decision whether a

new trial should be general or limited is

discretionary. There is no reason to suppose

that the discretion miscarried in this case.

If, contrary to our main submission, the

damages were excessive, the order for a

limited new trial is compatible with the

proper exercise of a discretionary judgment.

And we give references to various cases in which that course has been taken and I shall not take up the Court's time by referring in detail to those cases, but they are there for consideration. And,

in any event, it would be quite inappropriate, in

our respectful submission, to grant a general new

trial of the first action, given the clear meaning

expressed by the Court of Appeal as to the conduct	of the articles and given the views that have been
of the trial. I shall of course deal with the
argument based upon the reference at page 372 in my
address to the jury.
Now, in Uren, perhaps I should say something about Uren v Australian Consolidated Press. I will
not go to those other cases in paragraph (x),
page 10 of our Part B submissions, which Your Honours have just received.

Uren v Australian Consolidated Press, in this

Court, provides, in our submission, no basis for an

argument that there should here, in relation to

either action, be a general new trial. Putting the

matter in a very summary way, Your Honours, as

Carson(2) 114 26/8/92

Your Honours have been told, there were four counts

in the declaration. On each count the jury was

instructed that they could award punitive damages.

There was quite a wide difference of view by the

Justices who decided the case in this Court as to

the counts on which punitive damages were or were

not available. I do not think that I need go into

that quite detailed difference of viewpoint.

But overshadowing - and this has to be said -

the whole case, as appears from the reasons of

Sir Douglas Menzies at pages 196 onwards, there was

apparently a deliberate and continuous course of

inflammatory advocacy by the counsel for the

plaintiff. Sir Douglas Menzies, at the bottom of
page 196 referred to the judgment of

Chief Justice Herron and Mr Justice Walsh and said:

Herron CJ 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 CJ

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 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.

Chief Justice Herron said he did not propose to go

into all those - that was done by Mr Justice Walsh.

Then at page 197 - I shall not read it - 197

onwards, Sir Douglas Menzies catalogues what can

only be described as a litany of statements made by leading counsel for the plaintiff during the trial. So that with that litany of impermissible forensic

conduct, added to the fact that there was a

distinct direction to the jury that they could

award damages on all the counts, it was a very

special case when punitive damages were not

available on some of them warranting a general new

trial. This case is not of that nature or anything

like that nature.	I see it is quarter to 1, Your
Honour.

Carson(2) 115 26/8/92

MASON CJ:  We will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2:16 PM

MASON CJ: Yes, Mr Hughes?

MR HUGHES:  May it please Your Honours. There is one other

point that I should deal with briefly in relation

to the proposed new trial generally, in other words, raised by the residual application for

special leave to cross appeal. It is flagged,

Your Honours, on page 9 of our part B submission or

outline, item (viii). We say the issues of

liability and quantum in each action were quite

separate. We say that because since the enactment

of section 9 of the Defamation Act of 1974 the

cause of action in defamation is the publication of

a particular specified defamatory imputation, as

opposed to the publication of matter containing

some defamatory sting. Under the common law, the

jury was at large, subject only to definition of

issues by particulars, to award damages for any defamatory sting reasonably found by them to be conveyed by the matter complained of. Under the

Act, a jury is confined to awarding damages for the

pleaded imputation reasonably found to be conveyed.

The difference between the common law position

and the statutory position under the 1974 Act, we

would say, Your Honours, is illustrated by Coroneo,

a case to which I referred Your Honours yesterday

but a different judgment. Coroneo, 51 CLR 328, per

case in which the jury had awarded two separate	Sir Hayden Starke at page 349, and that was the
amounts, one for damage to business reputation and
the other, a very large amount by the standards of those days, for damage to personal reputation.

His Honour said, it is the paragraph

commencing "Some suggestion" on page 349.	I will
not read it all:

The issue of damages should certainly go down

for a new trial, but I would prefer that the

whole case go to a new trial. It is almost

impossible to assess damage in this case apart

from the meaning attributed to the words

complained of. And what meaning is another

Carson(2) 116 26/8/92

jury to attribute to them? The meaning

assigned in the declaration? Or a less

aggravated form, such as that they refer to

giving mortgages over the land entitling the

mortgagees to receive the rents? The jury on

a new trial limited to damages must assume

that the words are defamatory, but it would

be, I apprehend, quite open for them to

consider in what sense they are defamatory.

Another statement, Your Honours, of the same

position is to be found - and I shall not read it -

in the speech of Lord Reid in Lewis v Daily

Telegraph. We have given the reference on page 10

of that outline, (1964) AC 234, at pages 258 to

259. Clearly, the reasoning of Sir Hayden Starke,

which was, with respect, perfectly appropriate in a

common law setting is no longer applicable where a

plaintiff is tied to specified imputations as the

cause of action.

Before I pass, as I shall in a moment, to deal

with the matters raised by the notices of
contention, I should enumerate those points or

grounds raised in the notice of contention that

have not been the subject of any oral argument by

my learned friend.	I assume that the omission was
a considered one.

The first point that was not argued is that set out in ground l(c) of the notice of contention

and I am working off the notice of contention,

Your Honours, in the appeal book, the original, for

the sake of convenience. l(c) is to be found at

page 546 and that ground was that error in refusing

to admit Mr Justice Clarke's judgment. That is to

be found at 547G in the notice of contention.

Had it been necessary to argue that ground, we

would have put the arguments that are set out on

page 2, paragraph 4. But it has been apparently abandoned. The next matter that seems to have been

abandoned, because no oral submission was directed

to it by my learned friend, is the proposition

expressed in grounds l(a)(i) and (ii) to the effect

that the defendant should have been permitted to

address and rely upon Mr Justice Clarke's judgment.

That ground is set out at page 546, in volume 2 of

the appeal book; l(a)(i) and (ii). I am sorry, the

ground that the defendant should have been entitled

to rely and address upon the judgment of

Mr Justice Clarke is to be found in l(b) of the

notice of contention at page 547.

The next proposition that seems to have been

abandoned is that the ground expressed in l(a)(ii),

that the cross-examination of the plaintiff to the

Carson(2) 117 26/8/92

effect, as we put it to the jury, that he was

bringing the proceedings for the purpose of

silencing Mr Slee, was incapable of amounting to

aggravation.

As I understand the argument that my learned

friend has put to Your Honours today, it is not
that that cross examination was incapable of

amounting to aggravation, the ground, rather, is

that the jury should have been directed as to what

was the criterion according to which that cross-

examination was to be judged in terms of its

effect, or possible effect, on damages. In other

words, that raises the bona fide justifiable or

proper formula to which Your Honour Justice McHugh

alluded this morning when discussing Triggell v

Pheeney.

The next matter that seems to have been

abandoned is the ground taken in l(a)(i). My

learned friend has not put to Your Honours that -
l(a)(i) is at page 546R - my learned friend has not

put to Your Honours that the cross-examination by

counsel for the defendant of Mr Carson in relation

to his conduct in signing default judgment against

Mr Slee was incapable of amounting to a matter of

aggravation.

The next matter that has not been the subject

of any oral argument is the ground that is taken in

l(d)(ii) of the notice of contention at page 547,

namely, the alleged impropriety of my remark to the

jury that some people who read of Mr Carson might

view the matter with a streak of mild malice. That

has not been argued. This outline, which I handed

up just before lunch, deals with that matter so I

need not go to it.

The next - and this is the final matter that

seems to have been abandoned, final point - my

learned friend did not argue that there should have

been a direction to the jury that the apology

ultimately proffered was capable of amounting to a

proper apology. As I understand the argument that

has been put to Your Honours, that ground is

l(e)(ii). That ground is to be found at 547S.

That enumeration seems to clear the decks to the

point where I must, in reply on the notices of
contention, deal with a relatively small number of

matters.

May I first of all deal with the submission

that there should have been a direction by the
trial judge concerning the supposed fact that at

the time when the matter of an apology was properly

opened for consideration there were four

imputations, and not just two. The actual fact as

Carson(2) 118 26/8/92

disclosed by the pleadings in the appeal book is
that at the time when the apology of
22 December 1987 was published late in the day, the

statement of claim that was on the file was the

statement of claim at page 9 of volume 1, and that
statement of claim was put on the file on

2 October 1987 as appears from page 11 pursuant to

leave granted by Mr Justice Hunt as appears from

page 9 on 29 September 1987.

We would submit that in that situation there

is no substance in the argument which is, in

effect, the argument put on this point that the

defendant never had a real chance of making an

apology for the two imputations prior to

22 December, they being the imputations upon which
the plaintiff went to trial. There was ample

opportunity for the defendant to grapple with the two imputations, and although learned counsel for the defendant addressed the jury on the supposed

dichotomy between the two and four imputations,

that argument, as it turns out, was based on a
misconception.

In any event, counsel for the defendant did not, in terms of the requirement prescribed by

Your Honour Mr Justice McHugh in Singleton v

French, ever seek a specific and formulated

direction on the point, and in that connection I

refer, Your Honours, if I may to what Your Honour

Justice McHugh said in the Court of Appeal in

Singleton v French, (1986) 5 NSWLR 425, at

page 440. The relevant passage in Your Honour's

judgment is between line F and the bottom of the

page:

If a party is to rely as a ground of

appeal on a misdirection in a summing-up, his
counsel must specify at the trial that portion

of the summing-up which he requires to be

withdrawn. If any further direction is

needed, counsel must specify with precision

what direction the trial judge should give.

And then Your Honour went on to examine the

particular passage in the transcript.

We would submit that the appropriate direction

was not sought, and the ground fails on that score alone, and we would refer very briefly if I may to

Bugg v Day in this Court, (1979) CLR 442, in the judgment of Sir Owen Dixon at page 462. There is a

passage starting in the third line at the top of

the page where His Honour said:

To grant a new trial in a civil case upon the

ground that the charge to the jury did not

Carson(2) 119 26/8/92

fairly and adequately submit the case of one

or other party to them is a course which the

court may take where the court is satisfied

that it would be a manifest injustice to leave
the verdict standing. But it must be a very

strong case and that is a description which

certainly cannot be applied in the present

instance.

McHUGH J: But how do you apply that passage to the present

case, Mr Hughes?

MR HUGHES: Well,simply this, that if there was anything in

the dichotomy between two imputations and four

imputations, and there was not, but if there was

anything, learned counsel who appeared at the trial

for the defendant should have formulated a specific

direction as to what he wanted.

McHUGH J:  I can understand that, but I just do not follow

how you rely on Justice Dixon. He was talking

about putting parties' cases and balancing it.

MR HUGHES:  Yes. Your Honour, it was part of the

defendant's case, misconceived, we would submit,

but there was some relevance in the fact that at

some stage during the time when the apology was

being discussed there were four imputations on the

file.	Now, that was referred to in argument, as
the transcript of counsel's address shows.	The

learned trial judge was not under an obligation to

repeat the argument; it was not susceptible to a

direction of law. His Honour left it to the jury

fairly and clearly to say whether or no they

thought the apology ultimately published was - - -

McHUGH J:  I thought Mr Jackson was putting that the

direction was required as a legal direction and not

just simply as part of his case. That was what he

was complaining about, that the jury had been

misdirected in point of law on the use that they

could make of the request for apology.

MR HUGHES: Well, I must have misconceived the - - -

McHUGH J:	I may have misunderstood the argument, but the - - -
MR HUGHES:	I thought the argument, ultimately presented to

Your Honours, was that the apology issue was not

factually canvassed by the learned trial judge in

such a way as to put the case. It cannot be right

to say that the defendant was entitled to a

direction that the apology was capable of being

regarded as adequate; it was entirely a factual

matter for them. The argument that the defendant

was entitled to such a direction, on the capacity

Carson(2) 120 26/8/92

of the apology to be adequate was, as I understand

it, not put to this Court today. If it was, the
proposition must be erroneous, because it is a
matter for the jury to consider in the factual

context the correspondence that was in evidence,

whether it was adequate.

It was a matter for the jury to consider

whether the change from four imputations to two

could have any real bearing on the question of
adequacy of the apology. It ought to be said

perhaps, and I do say it, that it was open to the

defendant to go into evidence to put somebody in

the box, if there was anybody available and who

could say this, to testify that the reason why the

apology was eight months late was that a difficulty

was experienced by reason of the change of the -

reduction in the number of the imputations. That

opportunity was not availed of.

I should clear up one matter while I am

speaking - briefly, I hope - on this question of

the defendant's abstention from calling any oral

evidence. Contrary to what may be read in the

judgment of the learned President, I never put that

the abstention of the defendant from calling any

oral evidence was a matter of aggravation. With

respect, Mr Justice Kirby got that wrong. What I

did say was this, that the defendant had answered

interrogatories, the text of which I have not

wearied this Court - - -

MASON CJ:	It is about the only thing you have not wearied us with.
MR HUGHES:	Your Honour, I thought I had been a little more

economical than that, but I get the hint.

MASON CJ:  I will give you the benefit of the doubt,

Mr Hughes.

MR HUGHES:  I get the hint, Your Honour, and I am sorry. I

know I have put myself on a time limit and I will

try to keep to it.

DEANE J:  You seem to me to have been very concise, if I

might say so, Mr Hughes.

MR HUGHES:  I take great comfort from that; I am obliged to

Your Honour. What I did say, Your Honours, was

that I pointed out to the jury that the defendant

had answered two interrogatories from which the

conclusion could clearly be drawn that the author
of the first article knew that the imputations were

a lie. That matter went to the jury without

protest as a matter of aggravated damages.

Carson(2) 121 26/8/92

I admit that I said on that aspect, "The

defendant could have called Mr Slee but we have not seen him, except in the back of the court.". It is

all recorded in my remarks but I hope Your Honours

have not read them all; it would be very tedious.

McHUGH J:	I am looking forward to it, Mr Hughes.
MR HUGHES:	I beg Your Honour's pardon?
McHUGH J:	I am looking forward to it, to reading the whole

of the transcript of the evidence.

MR HUGHES:	Your Honour makes me blush. Next, I come to the alleged impropriety of my remark at page 372.
Your Honours, that is dealt with in Part B, page 4,
paragraph 8. The first point we would make is that
that remark, at page 372, needs to be considered in
the context of what I said at page 371. I was
referring to the cross-examination of Mr Carson on
the criticisms that had been expressed of him by
Mr Justice Clarke for having signed a default judgment on Mr Slee. Your Honours, Mr Carson
explained the matter and told the jury that
Mr Justice Clarke had later privately apologized
and I said:

That criticism was wrong. Judges sometimes do

go wrong. Judges sometimes blow their tops in

circumstances of pressure. They are only

human. That judge got it wrong and he

apologised afterwards and that incident is

used to blacken Mr Carson. That is a thoroughly obnoxious way of running a

defamation case. It is calculated to increase

the damages. It is aggravating -

and the cross-examination, I said, went on for some

· time.

An imputation was put to Mr Carson that

effectively -

he -

engaged in the same sort of conduct as he was
charged with in the articles, obstructing or

interfering with the course of justice

improperly, and yet, at the end of the day my

learned friend, doing the best he can on behalf of his client, makes a remarkable

concession. He says of Mr Carson, "There is

no dispute that Mr Carson is a tough fair and

very able litigation solicitor -

practitioner". What do you think of that?

Carson(2) 122 26/8/92

That is what is said at the end of the case,

perhaps because things are looking a bit

desparate by the learned counsel who tried by cross-examination to throw mud in Mr Carson's

face by suggesting unfair conduct. It is

about time this defendant was brought down to

the ground, you may think, when that sort of

conduct is engaged in. That is part, that is
conduct that should be reflected, in my

respectful submission, in your award of

compensatory damages.

McHUGH J:  You just read it differently to the way it

occurred to me, that you made that statement about

"brought down to the ground" that you realized or

you thought you may have stepped over the mark into

the area of punitive damages and you hastily

corrected yourself.

MR HUGHES: Supposing I had, Your Honour?

McHUGH J:  You have just read it in a very different way to

the way I was reading it.

MR HUGHES:  One can never recapture the atmosphere of the

trial.

McHUGH J:	No, I know, having been in the position myself a few times, Mr Hughes.
MR HUGHES:	I can well remember, Your Honour, and I must

mention this. The case we did against each other, with my tongue in my cheek because you had turned

round to me, addressing the jury, and said that I

was the mouthpiece of a certain newspaper

proprietor. Your Honour, even today, the

namby-pamby school of advocacy ought not to be

encouraged. There is still room for red-blooded

advocacy in jury trials. If not, we may as well

abolish juries altogether.

DEANE J: Or barristers.

MR HUGHES: Supposing that Your Honour has correctly

perceived that I thought I had gone a bit far and

immediately corrected it, that is the whole point;

it was corrected. It was corrected in this

context, that at page 76 of the transcript,

Your Honour will see that in opening the case to

the jury - my learned friend has not mentioned

this, of course - line M down to line T, I stressed
that damages were compensatory no less than three

times, and in the course of doing that I said,

"Punishment is no part of the remedy". That is

what I told the jury in opening the case.

Carson(2) 123 26/8/92

Your Honours, this was, if I may say so, as appears from the transcript, a jury that took a

lively interest in the case from the outset. If

Your Honours would look - and I will not read it -

at pages 119S, 359K and 414Q, Your Honours will see

that the jury asked what were, if I may say so with

respect, intelligent questions about the case.

They were giving it attention. They were

listeners; they were not bored.

The way we put it is that it would have been

quite wrong for the learned trial judge to accede
to the suggestion that was made at page 373 of the

transcript by Mr McPhee:

I ask Your Honour to direct the jury that what

Mr Hughes said was an invitation to award

punitive damages.

That was not an appropriate way to handle it,

because if the theory - and I say at once that I

disavow this - is that my advocacy was so

powerful - and I disclaim that - that the jury were

going to go out with my words ringing in their
ears, to make them ring a second time would have

been singularly inappropriate and contrary to the

defendants' interest. What His Honour did, if I

may say so with respect, very wisely, was to give

that direction at pages 409 and 410 which has been

referred to. It takes up several lines.

His Honour's opening words on this topic:

Remember when you are considering damages

one very important point, that whether you are

concerned with damages for the damage to the

reputation, that is vindication, consolation

or compensation .•... or whether you are

concerned with damages for the hurt to his

feelings, you must not include in your verdict

any element by way of punishment of the

defendant.

The theory upon which the attack on this part

of the plaintiff's case is based implicitly is that

the jury must be presumed to have disregarded that

very clear direction and heeded my words about

bringing down to the ground without regard to the

correction that I immediately made. That is on the

assumption that the "bringing down to the ground"

metaphor was an invitation to award punitive

damages. We say, in any event, to put that

interpretation on the whole of my remarks on that

topic is to give the words a strained and

unreasonable meaning, and we would ask Your Honours

to consider the material we put in writing in

paragraph 8 of our part B submissions.

Furthermore, no application was made to discharge

Carson(2) 124 26/8/92

the jury, and that is a measure perhaps of the lack

of seriousness with which my alleged transgression

was attended.

In Guise v Kouvelis, (1947) 74 CLR 102 - that

was the case in which counsel for the plaintiff

said that if he got a verdict from the jury he

would donate it to the Red Cross. That is at
page 112 and I will not read it. But the thrust of what Sir John Latham said was that if exception was

to be taken to that remark, the way to do it was to

ask for the discharge of the jury. Instead,

Mr McPhee asked for a direction in terms that it

would not have been appropriate to give, got a

clear warning from the learned trial judge given to

the jury emphasizing the compensatory nature of damages, and then my learned friend, Mr McPhee,

never sought a further direction.

Now, there is nothing in the point, we would

venture to suggest, that the jury knocked on the

door rather more quickly than expected. If my

learned friend wanted a further direction he should

not have been deterred by the knock on the door.

He was entitled to ask the judge to keep the jury

out until he got a full opportunity of putting any

further specific objections that he wanted, and he

did not. And if Your Honours want a paradigm of a

theatrical display by counsel which was regarded as

being of no importance by this Court many years
ago, one can go to David Syme v Swinburne,

by Mr Charles Gavin Duffy, as His Honour then was,

10 CLR 43, and there pick up from the judgment of

in the course of an address to the jury, and those

remarks were dismissed as being of no consequence
at all, and by Mr Justice Barton.

The remark is set out at page 59 and the treatment of the subject of those remarks by

Chief Justice Griffith, page 58 towards the bottom

of the page, and by Mr Justice Barton at page 61.

Mr Justice O'Connor did not think the topic was

worth a mention. So this is, with respect, an

insubstantial ground upon which to attack either of
these verdicts. As I said, merely to round the

subject off, a jury's verdict is not to be brought

down on a conjectural basis and the majority in the

Court of Appeal resorted to conjecture rather than

examining the probabilities.

Your Honour, I must make one final reference

to the principle which Your Honour Justice McHugh

propounded in Singleton v Ffrench and this relates

to aggravated damages. There were seven heads of

aggravated damages: one finds them all set out in

Mr Justice Loveday's ruling in the supplementary

Carson(2) 125 26/8/92

volume. It starts at page 585. There was no

argument from the defendant as to the availability

of five of those grounds of aggravation. They are

set out at pages 586, 587; 586C, the publication of

each article without any previous attempt to

inquire of the plaintiff; line G, the falsity of

the imputations; line L, the fact, as the jury were

entitled to accept, that Mr Slee told lies; line Q

was an alternative one of reckless indifference -

that is at the bottom of the page.

The fifth matter of aggravation was the

refusal or failure of the defendants to make a

proper apology, line C of page 587, Your Honours. The sixth was not allowed, so I pass it by. Then

His Honour left to the jury, as matters of aggravation, the conduct of the defendant in cross-

examining Mr Carson on his alleged impropriety in

signing the default judgment and on the alleged

impropriety of his bringing the action to silence

Mr Slee.

Those last two heads of aggravated damages were the only heads of aggravated damage which the

defendant argued should not go to the jury. When

they were put to the jury, my learned friend did

not seek any Singleton v French direction, except

that, at page 417Q, Mr McPhee said:

In our submission Your Honour should give a

direction to the jury as to what conduct on

the part of counsel is not bona fide or

unjustifiable in these circumstances.

Now, he did not propound the direction and the

direction that would have been appropriate has

never been propounded, even in argument.

His Honour was asked to do no more, in terms of

this request, than give the jury a verbal essay of

his own devising without any formulation from

counsel for the defendant about impropriety in the

conduct of the case. As we would point out, the
learned trial judge left to the jury a very simple

issue which was left to them congruently with the

way in which the case had been fought on this point

by counsel on both sides and that point is picked

up PY Mr Justice Mahoney between pages 505 and 512

of the appeal book in His Honour's judgment.

The learned trial judge left to the jury this

simple issue and it is conceded that it would have

been open to the jury to find this way in favour of

the plaintiff: were those parts of the

cross-examination conducted for the purpose of

further blackening the plaintiff's character, and

it must be inferred that they so concluded.

Carson(2) 126 26/8/92

And, if it was done for that purpose, the jury did not need an essay describing why that would be

unjustifiable; its unjustifiabity, if that was the

purpose, would be manifestly clear to a jury. And

that issue was left to them, after the learned
trial judge had put both sides of the case, and we have developed that in our written submissions and

I will not say anything more about it.

Now, that brings me to the matters of reply to

the appeal. My learned friend made some

submissions to the Court yesterday afternoon about

section 46 of the Defamation Act, and the thrust of

his submission, if I may say so, seemed to go this

way, that the effect of section 46 is to extract

from the content of damages, available damages for

defamation, any conduct that, under the common law,

would have sounded in punitive, as opposed to

aggravated compensatory damages.

Now, it is clear that section 46 does extract

form the content of available damages conduct that

would have been available as a ground for awarding

punitive damages. But, Your Honours, with respect,
the argument goes no where, because this case at
the trial and in the Court of Appeal was conducted

on the basis, subject only to the complaints of

non-specific direction about unjustifiability in

relation to two heads of aggravated damage. , this

was conducted on the basis that all the heads of

aggravated damage left to the jury were available,

if the jury found them in favour of the plaintiff,

as grounds for aggravated compensatory damages, and

there was no contest about that in the Court of

Appeal.

So that while there may be lurking in section 46 serious questions of the kind touched on

by Your Honour Justice Deane this morning as to the

full scope of section 46, they are, with respect,

not questions that arise for consideration, having

regard to the way this case was conducted in both
the courts below.	I should say something
briefly - - -

MASON CJ: Just before you leave that, can you give us

instances that would fall within the qualification

to section 46(3)(b), that is the qualification:

except so far as that malice or other state of

mind affects the relevant harm?

MR HUGHES: Yes, Your Honour, I can give Your Honour an

example which can be taken from this case. When

Mr Carson found out, as he did at least during the hearing of the case if he did not find out before

when he read the answers to the defendant's

Carson(2) 127 26/8/92

interrogatories, that the first article peddled

lies, two lies, that would be evidence of malice or

a vindicative state of mind on the part of the

author. Now, unless that malice affected the

relevant harm, that is hurt the feelings, it is

ruled out, but the jury, in this case, were

entitled to take the view - and I know Your Honour

Justice Deane looked at the problem from another perspective this morning - a jury would be entitled

to take the view that Mr Carson was entitled to be

more hurt than he otherwise would have been to know that he was defamed by a liar who made the lies the
very basis of the defamation.

Another view is open, I can see that,

Your Honour, but so much will depend on

circumstances and the individual reaction of the

plaintiff or the jury. That view is open and it is

an example, the best I can think of at the moment,
of the sort of problem with which that provision

deals, Your Honour.

McHUGH J:  To some extent it proceeded on, in my view, a

false assumption that prior to the 1974 Act that

you could get damages merely because there was some

malice on the part of the defendant. But even at

common law the malice had to be related to some

issue. It had to have some relevance, it had to go
to motive or publication or the conduct of the

action.

MR HUGHES:  Yes. In this case it could be said that the

malice, the lie or lies, went to show an evil
motive, and that could increase the relevant harm.

Now, I need say no more about section 46.

The vexed question of personal injuries

verdicts: Your Honours, what we would want to put

runs this way. The question may possibly be

regarded, we concede, as not having been the

subject of the definitive decision as part of ratio
in Coyne.	Two views are open. What seems to have

happened, in that case, so far as one can judge

from the reports, is that the plaintiff's counsel
went to the jury with a suggestion that they should
bear in mind personal injury cases; big verdicts in

personal injury cases. The trial judge poured cold

water on that suggestion and Your Honour

Justice Toohey dealt with it at pages 234 and 235.

It might be most economical in terms of time

if I simply put the argument that I want to put as

to the non-availability of personal injury damages

on the footing that leave will be granted. It is

obviously an important question and the Court may

be minded to reconsider the matter, even if it was

ratio in Coyne, and it would - - -

Carson(2) 128 26/8/92

MASON CJ:  Do not feel under any constraint of time,

Mr Hughes, notwithstanding my earlier comment to

you. I mean, if you feel that you ought to put an

argument, by all means do so.

MR HUGHES:  Yes. It is a little unclear because we do not

know exactly what happened at the trial in Coyne to
know whether what was said when the matter came up

to this Court was ratio or dictum. Let me suppose,
therefore, that it was ratio and that that might

encourage the Court to allow the matter to be

reopened.

A process of comparison of defamation verdicts

with personal injury verdicts would be, in our
respectful submission, unhelpful for a number of
reasons: first, is one to select jury verdicts for

personal injuries or verdicts by judges sitting

alone or both? Now, it might be said that given

the constitutional primacy, subject, of course, to

section 102 of the Supreme Court Act, of the jury

in New South Wales in supreme court actions, one

should select only jury verdicts; otherwise, the

views of judges on damages might intrude upon the

views expressed by juries.

But in any event - and perhaps this is the

second point - to test jury verdicts in defamation

actions against verdicts either by judges or
juries, one or the other or both, runs into this

difficulty: that except in a most unusual case like Cappelletto which, if I may say so was the subject of no reference or argument in the Court of

Appeal whatsoever - it just drifted into the

judgment - juries do not bring in their verdicts in

personal injuries cases in tidy baskets with so

much for general damages being pain and suffering,

.	~o much for general damages being future economic
loss, so much for general damages being loss of amenities. They bring in a lump sum generally speaking - Cappelletto is an exception - and the
only item one can, as it were, discern from the

lump sum as being referable to any specific head of

damages is the amount awarded for out of pockets

because, generally speaking, they are not a round

sum.

TOOHEY J: Is that entirely correct, Mr Hughes? I mean, is

not some allocation generally made for interest

purposes? I do not mean a precise breakdown, but

to the extent that interest is payable on some

aspect of the award.	Is that not reflected in some
allocation by the jury?

MR HUGHES:  It may be when judges are dealing with matters.

Frankly, I must confess - - -

Carson(2) 129 26/8/92

TOOHEY J:  I am speaking from a jurisdiction originally

where juries were not used.

McHUGH J:  I do not know how regularly it is done in New

South Wales, but certainly when I was on the Court

of Appeal, there were a number of instances where juries did segregate the amount of damages for up to the date of trial and afterwards in terms of

general damages.

MR HUGHES:  Even when that is done, one can predicate that

of the segregated amount up to date of trial, Xis

for pain and suffering or hurt.	It is pure
conjecture.

McHUGH J: Except it used to be, Mr Hughes, because that was

what it had to be based on to some extent.

MR HUGHES: 

It is an exercise that wears the aspect of conjectural inquiry.

McHUGH J: 

Mr Hughes, allowing for all the difficulties you

have pointed to, why in some general way can you
not use jury verdicts in personal injury actions,
the same as you might use the cost of barristers'

chambers or the cost of cars or levels of

remuneration in the community? There has to be

some objective external set of values that you can

appeal to to determine a reasonableness of an

amount in a defamation action.

MR HUGHES: 

Your Honour, we would say that the process of

comparison, to borrow an expression used by

Your Honour Justice Brennan yesterday, of finding a

benchmark, is to elusive and so attended with

uncertainty and conjecture that it is just
complicating an ancient process which has been

confided to juries under the common law of giving

their own intuitive view based on their standards

of community values as to what is appropriate in a

particular and unique case, because every

defamation case is in its way unique.

McHUGH J: But having said that, the reports do disclose

cases where defamation verdicts have been set aside

on the ground that they are excessive. The judges

have got to be operating according to some

standard. They have got to be applying some

external standard. It must surely be what is fair

and reasonable having regard to general values in

the community.

MR HUGHES:  We dispute that there is any general standard,

because each case is, as I said yesterday, a

one-off case.

Carson(2) 130 26/8/92

McHUGH J:	But that must lead to the result that you could never set aside a jury's assessment of damages in a
defamation action.
MR HUGHES:	If any standard is to be found, it is not to be found, in our respectful submission, in other
personal injury cases. It is to be found, if at all, in other defamation cases. Let me take the
document that has been put before the Court for its
information.  We have not checked every aspect of
this document, but let me ask Your Honours to look
at the first page, Laws v Fairfax, 1982/83. I was in that case and I can inform the Court that the
poster - it was a placard, a Sydney Sun placard,
which said, "Laws in court", meaning John Laws; in
a box, "Fraud charge". The truth of the matter was
that Mr Laws was not, as the poster as found by the jury to convey, in court charged with fraud, he was
a witness for the prosecution in a case that was
brought against an allegedly fraudulent land shark.

Your Honour, that may have been regarded as

one of my more signal failures as a jury advocate;

I appeared for the newspaper and I could really

think of very little to say. I think that, in

extremis, I said, "Look, this man, Mr Laws, is such

a well-known and favourably known character, who

would believe it?", and of course that was no

argument, except as a bit of a talking point to the

jury but they would not have that. He got 90,000

for the poster and 130,000, 10 years ago, for the

article which -

McHUGH J:	The other way round, I think, Mr Hughes.
MR HUGHES:	I am sorry, poster 130,000 and the article

90,000. The article was a description which

imputed that he was fraudulent. It was an article

which the poster was blazoning. 130,000 10 years

ago, it makes 200,000 today, for the first article,

look pretty moderate and there was no appeal in

that case of Laws. Anyhow, no doubt I was a great

failure as a jury advocate because I could not do

any better.

BRENNAN J:  I thought you were putting it forward as an

indication of how well you had done, Mr Hughes.

MR HUGHES:  Perhaps I could but that would be boasting,

Your Honour.

MASON CJ:  I gather the implication is you did not advise an

appeal?

MR HUGHES:  I could not. But one can pick cases at random

out of this but they may, in the Planet Fisheries

sense provide a broad guide. The other difficulty

Carson(2) 131 26/8/92

about this supposed process of comparison is if

Courts of Appeal are going to sit in judgment on

jury verdicts on the basis of comparisons of this

kind, should not the jury be let into the secret at

the trial?

If it is relevant for a Court of Appeal to

make these comparisons, surely it is relevant for

counsel to give evidence about other verdicts for

the purpose of guiding or misleading the jury?	We
submit that the process would, in sum, be
misleading but if a process is permissible for

Courts of Appeal it must be permissible for juries

to have these things in mind. And as my learned

junior says, how can a Court of Appeal say that the
jury got it wrong when they were never given an
opportunity of considering the basis upon which the

Court of Appeal may set aside their verdict.

Yesterday, indeed, I detected a concession by my

learned friend that if the Court of Appeal could

conduct this exercise so could the jury.

Apparently such an exercise was attempted in Coyne.

Now, as my learned friend said yesterday, once

this becomes part of the jury's field, the prospect

of proliferation of collateral issues becomes quite

frightening.

TOOHEY J: Well, I suppose it is really pointed up when the

matter goes back to the jury; if it goes back on
the basis that the award is excessive, measured
against, for instance, awards of damages for

personal injuries of a certain type. It is a bit

difficult to know what the jury is supposed to do

when the matter goes back for retrial, unless the basis upon which the Court of Appeal acted, or at ,least the sort of yardsticks that the Court of

Appeal used, were not also made available to the

jury.

MR HUGHES: Yes, Your Honour. Well, we would respectfully

adopt what Your Honour has tentatively said. Now,

when my learned friend, very skillfully if I may

say so, with respect, came down to specifics

yesterday, in an endeavour to make a basis of

comparison, he invoked cases such as a case where a

plaintiff suffers from some infectious disease as a

result of maladministration of blood - we know

there are tragic cases like that - and he invoked
the case of the ugly injury. Now, they constitute

a very small proportion, probably, of the general

range or infinite variety of personal injury cases,

and therefore the utility of the comparison, even

if it were allowed, is very limited.

Carson(2) 132 26/8/92

It has been said, and there is reference to

this in one of the judgments, that juries are

niggardly, generally speaking, in awarding damages

for pain and suffering for physical injuries, but

generous in awarding damages for defamation. The

point I would seek to make is that that is their

prerogative and one should respect their

entitlement to do that even if, as a court, one

were not to agree with it. Juries may do that on

the basis that they think honour is more important,

in some cases, than physical integrity.

McHUGH J: Yes, but the other view is that juries do not

like newspapers; that they are disgusted with the

standing of a lot of the reporting and when they

get an appropriate case, they pay out on the jury.

That is another theory, Mr Hughes, and it is up to

the courts to protect the newspapers and freedom of

speech.

MR HUGHES:  Your Honour, legitimate freedom of speech. That

is a very important qualification.

McHUGH J: Yes, I would accept that.

MR HUGHES:  Freedom of speech in accordance with legal

requirements, but, with very great respect, that

great common lawyer, Lord Justice Diplock, may be

thought to have got it wrong in one respect when in

McCarey's case at page 109 he referred to "the

scale of values of the duel." His Lordship said:

I am convinced that it is not just - Your Honours will be familiar with the passage so I

will not read it in full. In the last line of that

paragraph, His Lordship said:

Of course, the injuries in the two kinds of case are very different, but each has as its

main consequences pain or grief, annoyance or	unhappiness, to the plaintiff.
Now, with very great respect to a great common

lawyer, those last three lines are inaccurate. The

main consequences of defamation are not always, at

any rate, pain or grief, annoyance or unhappiness.

The main consequence in many many cases is damage,

and serious damage many times, certainly in this

case on two separate occasions, to an unblemished

reputation.

It is important to bear in mind that a

professional man's reputation in relation to his

professional activities is of great importance to

him. Speaking loosely, it is a species, and this

is speaking very loosely, but it is an asset, it is

Carson(2) 133 26/8/92

almost a species of property. If one can have goodwill, if a manufacturer of some particular product can have goodwill in that product, in its

getup, so as to enable him to bring an action for

passing off, it does not require a great stretch of

the imagination, figuratively speaking, to say that

a professional man has a sort of property in his

name.

DEANE J: Is this leading into a Shakespearean peroration?

MR HUGHES:  No, Your Honour, I would not chance my arm

twice.

BRENNAN J:  The risk with that argument, apart from the

oratorical risks involved, Mr Hughes, is that,

damage the capital asset once, how does it regain

its value for the second time.

MR HUGHES:  In this case the question does not arise because

it was never attempted except ex improvise by

cross-examination to use damage to the plaintiff's

name resulting from the first article as a

particular of mitigation and under the rules we have made this point in our additional outline,

that if the defendant wanted to have the temerity

to invoke the damage done by the first article in

mitigation, it had to give particulars and it never did, and of course if would never have been game to

do that. If it had, of course, the damages for the

first article could have been more enormous than

the 200,000 than the jury awarded.

BRENNAN J: That may well be so if it is a question of

mitigation and obviously you do not want to take

too much time on this aspect of the argument,

except that it seems to me to be perhaps important

for this case to identify what damages for

defamation are for. If damages for defamation are

substantially or chiefly for damage to reputation

considered as a form of quasi property then it

seems to me that, without reference to mitigation,

one has to put something of a value on that quasi

property on the second occasion.

MR HUGHES:  That brings me back to the argument that the

defendant cannot rely on its own wrongdoing, it

would be precluded.

TOOHEY J:  It was that notion of reputation as a proprietary

interest that I think Sir Victor Windeyer was

seeking to get away from, although not using those words, in Uren v John Fairfax, because it seems to

involve putting some value on the reputation pre-
publication and some value on the reputation post-

publication, if you take that approach.

Carson(2)	134	26/8/92
MR HUGHES:	Yes.	We do not have to take that approach and I

do not ask the Court to do that. Damages for

defamation is a blunt instrument for remedying a

legal wrong. It is blunt - - -

BRENNAN J:  One perhaps should not try to sharpen it too

much.

MR HUGHES:  It perhaps represents part of the genius of the

common law that -

TOOHEY J: Perhaps that is what Lord Justice Diplock was

saying when he was speaking of a scale of values,

rather than - - -

MR HUGHES:  Yes, the scale of values. But, of course,

His Lordship speaks of the "scale of values of the

duel". It is perhaps important to bear in

mind - and this is the other respectful criticism

that I would make of that paragraph in

His Lordship's judgment - that part of the purpose

of the common law in creating the cause of action for defamation was to prevent the scale of values

of the duel from being used. It was a substitute

for the horse whip or the sword. And that brings

me back to what I was trying to say earlier,

perhaps rather inelegantly, that juries are perhaps

entitled to take the view that a man's honour or a

woman's honour is of transcendent importance, and

to value it more highly than a broken leg or some

other form of physical maiming.

If Your Honours go to Spencer Bower on

actionable defamation, the author deals with the

topic at page 240.

That is what we would wish to say about the process of comparison and why it is not useful. Of

course, this jury, it goes without saying, was not

told about comparisons and we say their verdicts

are not to be impugned on the score that they have	given a sum that would have been greater than that	that they might have awarded on the basis of a
comparison that they were never asked to make.
Your Honours, the other point that my learned friend made today was that really there was no
evidence before this jury of significant damage to
reputation. With very great respect, the evidence
that was adduced in this case pointed strongly in
the opposite direction. They were profoundly serious libels, the second much more than the
first. It is difficult to imagine worse libels of
a lawyer because they strike at the heart of his professional integrity and his moral integrity, and
we called this body of evidence consistently with
what one is allowed to do in the light of Lamb v

Carson(2) 135 26/8/92

Readers Digest, to show how serious the impact of those imputations would be on the reputation of a professional man.

Everybody knows that when one is running a

libel action in the real world, it is generally

very difficult to get people to come along and say, "I thought less of the plaintiff", because the very people who have thought less of the plaintiff as a

result of what was published are unlikely,

generally speaking, to be willing to come along to

court and say so; they run a mile. So the case

cannot be discounted on the basis that there was no

significant damage to reputation.

One witness, Mr Thornton, the first witness we

called, said in effect that he thought less of him,

but Your Honours have been referred to the evidence

and I do not want to make a jury address at this

hour of the afternoon and it would be quite

improper for me to do so. So if I have strayed, I

shall not stray any further, Your Honours.

There has been a rather wide range of topics

to deal with.	I think I have dealt with them all.
I am sorry for being so long;	I have gone over

time by 25 minutes. But for those reasons, we

would submit that the jury were justified in making

these awards and that each appeal should be allowed

and the verdicts of the jury restored. If I am

wrong in making that twofold submission, the

verdict in the first action should be restored,

200,000.

In our respectful submission, despite what was

put by my learned friend yesterday, one can search
the judgment of the learned President without

finding any passage in which he separately analyses

in terms of permissible quantum either verdict. He

does not say, "Well, 200,000. Can this be

justified taking the evidence to its fullest pitch,

400,000." While he uses "verdicts" in some

passages, the essential flaw, with very great

respect, is that he aggregated them and did not

consider each separately.

McHUGH J:  Mr Hughes, apart from the appeal being allowed

and the jury's verdicts restored or the appeal

being dismissed, there are various combination.	Do
you want to say anything about costs, or is it
something that should await the judgment?

MASON CJ:  The possibilities are too many, are they not,

Mr Hughes?

MR HUGHES:  Yes. Would Your Honour reserve to the parties

liberty to argue costs when the result is known?

Carson(2) 136 26/8/92

MASON CJ: That seems to be a sensible course.

MR HUGHES:  I am obliged to Your Honours. Mr Jackson, do

you wish to reply on the cross appeal?

MR JACKSON:  Your Honours, there are just a few matters with

which I wish to deal. May I say, first, in

relation to the question concerning the improper

silencing of Mr Slee and the direction which should

have been given to the jury, the point made by our

learned friends was that it was said that at the

trial our side had not sought a sufficiently

specific direction. Your Honours, that did not

appear to be the case so far as the judge at the
time was concerned because if Your Honours look at

pages 417 and 418, the issue there seems to have been clearly enough before the judge's mind. In

that regard may I refer Your Honours to page 417P

to u and page 418H too.

Your Honours, turning to the question of the conduct of my learned friend, may I just say that

it is, of course, as he has argued, hard to

recreate the atmosphere and one certainly would not

wish to assert a namby-pamby approach as being the

appropriate one. But, as we said before, one is

looking to create the contemporary view of what

occurred, the view taken by the primary judge or the judge at first instance, at page 373, is the

best place for the Court to look to seek to resolve

it.

Your Honours, the last thing we would wish to

say is this, that if one is looking at the issue of

a new trial completely, it is true to say that the

manner in which section 9 of the Defamation Act is

expressed means that the publication is treated as

being the publication of a particular imputation

but, Your Honours, the quantum of the damage must

yet depend, in every case, on the view taken as to

the seriousness of the publication~ the two issues are inevitably intertwined.

Your Honours, may I give one further reference

to a case in which there was an observation that

the normal result was that be a new trial on all

issues and that is to a decision of the New South

Wales Court of Appeal in Monti-Haitsma Enterprises

Pty Limited v Lord, (1988) Aust Torts

Reports 80-200, and in particular in the reasons

for judgment of Your Honour Justice McHugh, then a

member of that court, at page 67,979, where

Your Honour said:

The verdict for $112,00, therefore,

cannot stand. It must be set aside. Since

the issues of liability, malice and damages

Carson(2) 137 26/8/92

are intertwined, the normal order would be a
general new trial of the action in respect of

the publication to Mr Cronin -

and Your Honour referred to a number of cases and

Your Honour's reasons on that point were agreed in

by the other members of the court.

Your Honours, the last matter with which I

wish to deal concerns the question of apology and

the direction in relation to apology. Now,

Your Honours will have seen my learned friend refer

to the amended statement of claim which appears as

having been the subject of an order permitting

amendment on, I think, 26 September 1987. The

document, in fact, was delivered on 2 October 1987

and it appears at page 11 and if Your Honours look

at the pages, which are 191 through to 194,

Your Honours will see correspondence relating to

the apology from our side. At page 191 on

19 November, Your Honours will see in the first

paragraph of that letter, the reference to an

offer:

to publish a correction of the two -

relevant -

errors in that article.

And at the top of the next page, the observation:

Recently, you have amended the Statement of

Claim to delete two imputations -

and there is an:

offer to print a retraction -

and it said that would be an open letter. And

then, Your Honours, on page 194 there is the

indication of the intention to advise to make the

apology.

Now, Your Honours, at page 415, it is clear

from what His Honour there said, that His Honour

was of the view that there should be a further

direction on this question. That appears at

page 415M and R to s.

MASON CJ:  Yes, thank you, Mr Jackson. The Court will

consider its decision in this case.

AT.3.49 PM THE MATTER WAS ADJOURNED SINE DIE

Carson(2) 138 26/8/92