Carson v John Fairfax & Sons Limited; Carson v Slee

[1992] HCATrans 50

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S93 of 1991

B e t w e e n -

NICHOLAS RODERICK CARSON

Applicant

and

JOHN FAIRFAX & SONS LIMITED

Respondent

Office of the Registry

Sydney No S94 of 1991

B e t w e e n -

NICHOLAS RODERICK CARSON

Applicant

and

JOHN SLEE and JOHN FAIRFAX &

SONS LIMITED

Respondents

Applications for special leave

to appeal

BRENNAN J
DAWSON J

TOOHEY J

Carson 1 14/2/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 FEBRUARY 1992, AT 9.30 AM

Copyright in the High Court of Australia

MR T.E.F. HUGHES, QC:  In each of these matters, if the

Court pleases, I appear with my learned friends,

MR J.R. SACKA.R, QC and MR T.D.F. HUGHES, for the

applicant, the plaintiff below. (instructed by

Blake Dawson Waldron)

MR D.F. JACKSON, QC: In these matters, if Your Honours

please, I appear with my learned friend,

MR D.A. CASPERSONN, for the respondents.

(instructed by Mallesons Stephen Jaques)

BRENNAN J:	Mr Hughes.
MR HUGHES:	May I commence, Your Honours, by handing up four

sets of some documents. The first document in each

set is an outline of the argument we propose to

present to Your Honours; the second is a redrafted

notice of appeal to express in a more economical

form of words the points that we would wish to

agitate if special leave were granted, and the
third and fourth documents in the set are

photocopies of two cases, Coyne, and of an extract

from the judgment of Lord Donaldson of Lymington MR

in Sutcliffe v Pressdram.

Your Honours, this application arises out of the consolidated hearing of two defamation actions.

Each action was based on an article written by

Mr John Slee, the legal correspondent of the Sydney

Morning Herald. The first article was published on

21 April 1987 under the heading "Dr Rajski: A war

on many fronts"; and the second was published on

6 April 1988, nearly a year later, under the

heading, "The Criminal Phase of the Rajski case".

It is quite unnecessary for me to take

Your Honours to the text of the articles. It will be sufficient for the purposes of this application if I invite Your Honours' attention to the fact

that in relation to the first article, after a

five-day hearing, the jury answered specific

questions to the effect that it - that is the first

Carson 2 14/2/92

article - in its natural meaning conveyed

imputations, first, that the plaintiff wrongly
attempted to intimidate a doctor, Dr Metcalf, by

threatening to sue him for defamation in respect of

a medical report that he had written and, second,

that the plaintiff wrongly brought defamation

proceedings in his own name against a

Mr Arthur Carney, a solicitor, for the sole purpose

of causing Mr Carney forthwith to cease to act for

Mr Carney's client, a Mr Rajski.

The jury awarded $200,000 damages for the

first article and then the claim based on the

second article was founded on the imputation which

the jury found established that the plaintiff was

wrongly a party to a conspiracy with a

Mr Moshe Yerushalmy to obstruct the course of

justice by evading service of criminal process.

The jury awarded $400,000 damages for that article.

The plaintiff came before the supreme court as

a solicitor enjoying an excellent and well-deserved

reputation, having a high profile in his

profession. Witnesses were called, consistently

with the principle propounded in Lamb v Readers

Digest in the judgment of Your Honour

Justice Brennan, to establish the particularly

adverse impact on lawyers of good professional

standing of imputations of the kind found by the

jury.

The plaintiff's claim, Your Honours, went to

the jury on the footing that they were entitled to
take into account no less than six heads of
aggravated compensatory damages. They are set out

conveniently in the judgment of the President at

pages 19 and 20 of the application book.

I should say, Your Honours, that there is a

defect in the reproduction in the application book

of the President's reasons for judgment and for

that reason we had an integral copy of the document

prepared and I hope it is with Your Honours.

BRENNAN J: Much appreciated, Mr Hughes.

MR HUGHES:  Now, if Your Honours would be good enough to go

to page 19 of the application book or, 19 of the

fresh copy which is paginated in the same way as the application book. Your Honours will see set out the heads of aggravated damages that went to the jury.

1.      The fact that the articles have been

published without any prior attempt to inquire

of Mr Carson as to the subject matter;

Carson 3 14/2/92

2.      The falsity of the imputations in each

case;
3.	The evidence that prior to the

publication, Mr Slee allegedly knew that the

imputations sued on in the first article were

false. The evidence relied upon in this

regard consisted of answers to

interrogatories. It was alleged that Fairfax

and Mr Slee knowingly published lies yet

abstained from giving evidence to rebut the

plain inference of "mendacity".

That was a head of dama..-:re which related to the

first article. The fou i head, which was

alternative to the thiru was:

4. Reckless indifference to the publication
of the imputations;

5.      The absence of any proper apology -

and that in relation to each of the articles sued

on -

6.      The disgraceful nature of the imputations

which suggested (in the first article) that

Mr Carson had engaged in disgraceful

professional misconduct and (in the second)

that he had engaged in a serious criminal

offence of conspiracy to obstruct the course
of justice.

The last matter of aggravation but certainly not the least was:

The conduct of counsel for Fairfax and

Mr Slee -

Mr Slee was a defendant, I should interpolate, in

the second proceedings -

suggesting to Mr Carson during

cross-examination that he had acted improperly

in signing a default judgment in an action

brought by -

a company -

against Dr Rajski and that Mr Carson had had

an improper motive for bringing the defamation

proceedings, namely the motive of silencing

Mr Slee.

Those are the matters that went to the jury as

matters of aggravation.

Carson 4 14/2/92

Now, the defendants' appeal came before a

court consisting of the President,

Mr Justice Mahoney and Mr Justice Priestley.	The
result of the appeal was that by a majority,
Mr Justice Mahoney dissenting, the appeal was
allowed on the basis that the damages were
excessive.	We pause here if we may, Your Honours,

to ask Your Honours to notice an incongruous

feature of the treatment of the case in the Court

of Appeal. That feature is that two of the learned

judges below, Mr Justice Mahoney who, of course,

was the dissenting judge and who would have upheld

each verdict, and Mr Justice Priestley, each of

Their Honours reached the conclusion that the verdict of the jury on the first article was not in

itself appealably excessive.

Could I just take Your Honours.to the relevant

passages in the application book? First of all, page 80 in Mr Justice Mahoney's judgment, in the

middle of the page His Honour said neither of the

amounts, in his opinion, were:

beyond what it was open to the jury to award.

And at page 92B His Honour expressed again the same

thought.

Mr Justice Priestley dealt with this topic at

page 97L of the application book, if Your Honours
please, and may I briefly read the passage?

His Honour said:

The same considerations apply with less

force to the $200,000 damages awarded in

respect of the earlier article. This figure

also seems to me to be very high. In my

opinion a considerably lower award would have

been appropriate. This award, however, does

not strike my mind as extraordinary in the

same way as the other. If this award were

being considered in isolation, then,

particularly bearing in mind what was said by

McHugh JA in Coyne, it would seem to me to

fall into that area where an appellate court,

despite forming a view different from that of
the jury, should not interfere because the
difference between the court's view and what
the jury did is not so great as to justify

saying the jury figure had passed into the

realm of the unsupportably unreasonable.

Now, Your Honours, the reasons of the majority in the Court of Appeal give rise, in our respectful

submission, to an important question of principle.

This is so, we would say, because each of the

judges who formed the majority in favour of a new

Carson 14/2/92

trial evaluated the two verdicts in the aggregate

as if they were but one verdict for the purpose of

determining whether they should be set aside. That

tendency is particularly noticeable, if I may say

so, in the judgment of the President. First of

all, may I take Your Honours to page 10 - - -

DAWSON J: Did the President say that he would have accepted

the verdict in relation to the first article?

MR HUGHES:  No, Your Honour.

DAWSON J:  He did not. There was only two?

MR HUGHES:	Only two, yes.
TOOHEY J:	Mr Hughes, when Mr Justice Priestley said that he would not have interfered with the first article in
isolation, that really has to be taken in context,
does it not, because his conclusion was that the
$400,000 could only have been awarded by
introducing impermissible elements?
MR HUGHES:	Yes, Your Honour.

TOOHEY J: And therefore it was a fair inference, His Honour

said, that that had entered into the $200,000 as

well.

MR HUGHES:  Yes. Of course, that approach has to be set in

a particular context. Each of the judges, the

three, took the view that the particular matter

advanced as vitiating the verdict was not such as

to do so. Great play was made upon an observation

or a submission that I made in my address to the

jury and the best defence I can mount to that

allegation is to cite the passage in

Mr Justice Mahoney's judgment in which His Honour

disposed of that suggestion. I do not want to go

into this, not because I am afraid to do so but

because we rely principally on the proposition that

Mr Justice Mahoney, took the view that nothing that	each of the judges in the majority, and, of course,	happened at the trial was of such a character as to
vitiate the verdict except the verdict itself. But
if Your Honours were to be interested to see what
Mr Justice Mahoney said about this allegation, it
is set out over two pages of His Honour's judgment at page 78, beginning at the bottom of the page:

I do not accept that what was said by

Mr Hughes QC in his closing address in

relation to the defendants' conduct of the

trial impugns the verdict and judgment given.

Objection was taken to Mr Hughes' observation:

Carson 6 14/2/92

"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."

I had, in my opening, emphasized that they could

only award compensatory damages, and that remark

was made in this context: one of the allegations

or imputations put to Mr Carson in

cross-examination was that he had acted - there

were two: that he had acted improperly in signing

a default judgment against Mr Rajski in some othe~

proceedings and that he had brought each action to

shut Slee up. Then, during the course of the

address to the jury of counsel for the defendant,

then leading counsel for the defendant described

Mr Carson as "a tough, fair and able solicitor".

When I made that remark, I was drawing attention to

the disconformity between the imputations that were put in cross-examination and the concession made in

address and suggesting that it was about time that
a sense of reality surrounded the defendant's
conduct.

Now, the treatment of the verdicts in the aggregate by the President emerges, we submit, very

plainly, first of all when one reads page 10, to
begin with, of the application book. At line N,

His Honour said:

The jury's verdicts were indisputably

very high. The Court was informed that they

represented, in aggregate, the highest

verdicts awarded as general damages for

defamation in the history of this country.

And reference was made by His Honour the fact that:

The previous highest awards for general

damages were jury verdicts in New South Wales

for $300,000 and $350,000.

So, there is His Honour treating the verdicts in

the aggregate for the purpose of determining

whether they were appealably too high.

The point emerges with even greater clarity,

Your Honours, if one turns to page 34 where the

learned President, in the first paragraph on the

page, made a comparison between a personal injuries

case, Canterbury Hospital v Cappelletto, and the

aggregate of the verdicts in this case in these

words where His Honour said:

Carson 7 14/2/92

In that case Mahoney JA and I both

considered $250,000 was appealably excessive.

In so far as one may compare that verdict to

this, it seems difficult to say that the

damage to Mr Carson was greater than to Mrs Cappelletto, in aggregate, and by a

magnitude of 2.4.

So, there, His Honour, for the purpose of

considering the question of quantum compared
$600,000 with the verdict in the personal injuries

case of $250,000 and we say that that approach is

wrong in principle and seriously wrong in

principle, we would venture to suggest with

respect, having regard to the position taken by the

majority in Coyne to the effect that awards in

personal injury cases are not comparable with

defamation awards and not to be used for the

purpose of determining the appealability of a

defamation award.

Now, it is true, Your Honours, that the

minority in Coyne were of the opposite view. I can give Your Honours the references to the passages in the two judgments. But there is a difference of

viewpoint in this Court as to the place, if any, to

be accorded for purposes of comparison in

defamation cases to personal injury awards and
that, with respect, is a question, given the
frequency with which defamation actions come before

the Supreme Court of New South Wales - this is the

most fertile field in Australia in this sort of

litigation - that needs to be authoritatively and

finally determined in this Court, in our respectful

submission.

DAWSON J:  I thought it had been. I thought you said the

majority said that there was no valid comparison?

MR HUGHES:  Your Honour, in a sense, yes, but that view

could change if this Court were to be constituted

by a Full Court, a Full Court of all the Judges.

One knows, with respect, from experience, that

positions do change on important questions, perhaps

much more important questions than this.

Section 92 - - -

DAWSON J: There is still a doctrine of stare decisis, is

there?

MR HUGHES:  Somewhat mitigated, Your Honour. I say that

without any intention of being flippant. It is a

malleable doctrine. But there is that point.

TOOHEY J: It seems to me that has two aspects, Mr Hughes.

One is the validity of a comparison or of accessing the excessiveness of an award in defamation against

Carson 14/2/92

the general pattern of awards in personal injury

cases and the other is to do what the President did

here, namely, to fasten on to a particular award

and use that as the yardstick.

MR HUGHES:  Yes. Whatever legal merit or

justification - - -

TOOHEY J:  I am not suggesting that either is valid but the

second is, I would have thought, more open to

attack.

MR HUGHES:  With respect, we would agree because the views

have differed, both in the Court of Appeal in

England and, of course, recently in this Court on

the comparability of the two types of awards. We

have given to Your Honours a passage from the

judgment of Lord Donaldson, Master of the Rolls, in

Sutcliffe v Pressdram, (1991) 1 QB 153, at

pages 175 and the following pages. His Lordship

rejected the concept of comparability and in a

passage, I think, at page 177 - I will not read it

to Your Honours - His Honour points to the
necessity of it being established - if a defamation

verdict is to be brought down as being appealably

too high, the necessity of establishing the

ineluctable conclusion that the jury went wrong.

But with respect, coming back to what

Your Honour Justice Toohey said to me, I accept the

possible distinction but, of course, in this case

His Honour has committed an error of principle by

comparing, albeit in somewhat hesitant terms as we

point out in our outline, but comparing a specific

defamation award with the aggregate of the two

awards made by the jury in this case and we submit

that that just cannot be right and that it is an

error of principle that needs to be corrected in

case it be repeated in the future.

BRENNAN J: What is the principle which was applied by the

view that this was an excessive award? Was it that	President and by Justice Priestley in coming to the	it was in disconformity to awards of personal injuries cases or is it simply, as it were, that those passages to which you have drawn attention
are judicial musings which, no doubt, would go on
in any judicial mind that is charged with a duty of considering awards in personal injuries and in
defamation?

MR HUGHES:  Your Honour, I would answer Your Honour's

question in this way:  Justice Kirby engaged in a

species of judicial musing in his specific

comparison of Cappelletto's award and the aggregate

of the awards in this case. He was not, in our

respectful submission, entitled to do so. It was

Carson 9 14/2/92

clearly a material factor reaching towards

His Honour's ultimate conclusion and not only was

it vitiated for the very fact of the comparison but

it was vitiated because he made the wrong

comparison: one award for personal injuries against

two awards in separate actions for defamation which

was the position in this case.

BRENNAN J: Well, I rather read that passage that you have

just referred to as saying, "Here we have, on the one hand, somebody who has been injured physically

by blindness; on the other, a man of outstanding

reputation whose reputation has been blemished by

the articles published, two articles published,

both of them defamatory of him. The person who has

been blinded gets $250,000; the man who has been

damaged in this way gets $600,000". In other

words, it is looking at what has been damaged

rather than by the instrument that has damaged it.

MR HUGHES:  But, Your Honour, the vice in that comparison is

in the use - and Your Honour has picked this up in

Your Honour's encapsulation - of the expression, "in

this way". There were two separate injuries.

DAWSON J: With one residual disability. I am not sure that

that is right.

BRENNAN J:  No.

DAWSON J: Because if vindication is one of the aims of

damages in defamation, you cannot approach it that

way, can you?

MR HUGHES:	No, Your Honour, that is, with very great respect, an observation we would gratefully adopt.
What the majority of the Court of Appeal did,
particularly the learned President, may be compared
with another situation. Suppose that the same defendant injures the same plaintiff by negligence.
The two acts of negligence each give rise to
the second case, a year later, brain damage and the separate injuries, in one case, broken limbs and in
two cases, for convenience, as were these two
cases, are heard together. It would be obviously wrong if the propriety of those verdicts, in terms of quantum, were to be considered by a court of appeal to aggregate the verdicts for the purpose of deciding whether they or either of them was too
much.  They are separate injuries.
DAWSON J:	If it were not so, you could say he did not have

much reputation left after the first article, so

the second did not warrant much damage.

MR HUGHES:  That is a problem that was dealt with by the

Lords in Dingle v Associated Newspapers. I have

Carson 10 14/2/92

not brought it with me but Dingle was the case in

which a defendant sought to mitigate the damages

for a libel by reference to the alleged diminution
of the plaintiff's reputation because of the

publication of earlier libels of and concerning the

plaintiff and the Lords said that cannot be done.

That position has been accepted, as far as my

experience goes, without question in this country.

DAWSON J: But the same position would not be so with

personal injuries claims? I mean, two successive

injuries: the residual disability would be less in

the second if it were impaired by the first, as I

understand it.

MR HUGHES:  It could be, and that may be qualification on

the comparison. I was only trying perhaps to made

a broad - to test my proposition by reference to a

near analogy.

BRENNAN J:  Mr Hughes, you really have to take these

passages to which you draw exception and elevate

them into propositions of principle to which the

Court of Appeal gave effect in reaching its decision.

MR HUGHES:  Yes.

BRENNAN J: As distinct from factors which one or other of

the judges took into account, perhaps

inappropriately, but which, if discarded, would

none the less have left that judge of the view

which he ultimately arrived at.

MR HUGHES: Yes, Your Honour. Well, we say that we can pass

that test with the President's judgment because his

whole approach was to aggregate the verdicts and

. say, "Looking at them together, they're too much." Now, the proper approach would be to consider the

imputations and the aggravating factors in relation

to the first article and ask whether $200,000 was

mention, that were founde~ on the first article too much for the two causes of action, I should

because in New South Wales the imputation is the
cause of the action and there were two imputations

which I have distilled on page 1 of our outline.

BRENNAN J: What would have been the situation if Mr Slee

had published the articles in the one edition of

the newspaper?

MR HUGHES:  If he had published the articles in the one

edition of the newspaper, the position in principle	·,
would have been the same, Your Honour, because
there would have been separate causes of action for
each defamatory imputation.

Carson 11 14/2/92

BRENNAN J: And in relation to the first article in this

instance, there were, in fact, two imputations?

MR HUGHES:  Two imputations.

BRENNAN J: But a separate award was not taken with respect

to each imputation, was it?

MR HUGHES:  No, and that is because under the Defamation Act

of New South Wales that course is commanded by the

legislature. The Defamation Act says, in effect,

where action is brought on a number of imputations

in the same publication, the jury must award an

aggregate verdict.

BRENNAN J: Well then, if that be so and if the two articles

had been published in the one edition of the

newspaper, would there have been an aggregate

verdict taken.

MR HUGHES: That is, with very great respect, a nice

question because one would have to ask whether

there were separate publications. If these two

articles had appeared on different pages of the
same newspaper, the same edition, there would have

been, in our submission, separate publications

warranting separate awards of damages. But when

one came to the individual articles, the global sum

would be awarded for the sum of the imputations

found.

DAWSON J: But there were two actions and there were two

verdicts?

MR HUGHES:  Yes.

DAWSON J: And if a majority were not able to say that the

first was excessive, why was a retrial ordered in

both actions?

MR HUGHES: Well, that is our complaint. That is one of our

complaints. And our complaint is accentuated in

the light of the fact that two of the judges, as I

have pointed out, said that the first verdict of

itself was not excessive and also said that no

feature of the conduct of the trial was such as to

vitiate the verdict.

What we have tried to say in our outline about

that part of the case is set out, if I may go to

it, Your Honours, in paragraph 11 of our

submissions. We say that given that each of the

judges in the majority were of the view that no

feature of the conduct of the trial by counsel for

the plaintiff would of itself warrant a retrial -

and we have given Your Honours references - it was

not only inappropriate but wrong in principle to

Carson 12 14/2/92

treat the first verdict as vitiated because of the

size of the second. The process of reasoning, we

venture to suggest, of each of the majority judges

commenced with an intuitive and unfavourable

reaction to the aggregate size of the verdicts.

Their Honours then proceeded to deduce
speculatively from the material in the appeal books

a possible reason why the verdict of the jury

produced this reaction, why the verdict of the jury

was so large.

Now, that approach is to be seen in the

judgment of the President at page 36S,

Your Honours:

The appellants complained that the jury's

absence of 47 minutes was itself a source of

disquiet. Certainly, Loveday J appears to

have felt an anxiety lest the jury, on a

Friday afternoon before a long weekend had

felt under any pressure of time. But this

alone would not warrant disturbance of the

judgment. Nor does the complaint about the

conduct of Mr Carson's counsel (in saying to

the jury "it is about time this defendant was

brought down to the ground" of itself warrant

the setting aside of the verdicts. Counsel

hastened to say that the defendant could be

"brought down" by an award of compensatory

damages.

That was in the next sentence of my address.

But the notion of bringing the defendant

"down" involves, unavoidably, the notion of

punishment. Loveday J made it clear (as, in

fairness, counsel had earlier himself done)

that punishment was no part of the purpose of

the action. Counsel's comment, alone, would

not justify disturbing the verdict. But it

may help to explain how such a very large,

indeed uniquely large, verdict was returned.

And there, again, His Honour seems to be in the

process impliedly of aggregation.

Mr Justice Priestley, at page 95, after

observing that:

Had there been proof of any significant effect

upon the plaintiff's professional earnings

caused by the publication of the later

article, it may have been easier to understand

the jury arriving at so swollen a figure for

damages.

Carson 13 14/2/92

In the absence of such evidence and after

giving full weight to all the matters for

which damages are awarded in such cases, the

amount of damages is only explicable to me on

the basis that the jury took into account some

impermissible matter. One possible

explanation is that the jury were affected by

the remark made to them by counsel for the

plaintiff that "it is about time this

defendant was brought down to the ground". not have been said because it could easily be

thought by the jury to be an invitation to

them to add something to the damages to punish

the defendant. Although the words were said
in the course of remarks which otherwise made

appropriate reference to the limitations

within which the jury had to work in awarding

compensatory and aggravated damages, these

remarks were not in my opinion sufficient to prevent the possibility that the words would

encourage the jury to focus on a figure which

would make an example of the defendant rather

than one appropriate to compensate the

plaintiff.

Now, that approach, with respect,

Your Honours, is to be compared with

Lord Donaldson's treatment of the problem of

quantum in Sutcliffe v Pressdram because there - I have been reminded, before I go to Lord Donaldson,

that at page 96N, Mr Justice Priestley said:

Like Kirby P, I do not think the

introduction of the words into an address

which could not otherwise be criticised on

this score, would be sufficient to justify

setting aside the jury's verdicts.

BRENNAN J:  You do not need to keep hammering that

proposition, do you?

MR HUGHES:	No, Your Honour.
BRENNAN J:	You have made that point good.
MR HUGHES:	I am sorry for being tedious.

BRENNAN J: Not at all. It just seems to me that the

problem which you face - and I am speaking here of

the President's judgment - is that he addressed the question of comparison by reference, inter alia, to

what was said in Coyne, in terms, and he listed the

matters which were relevant to the consideration of

an award and none of his enunciation of those

principles which are relevant have you thus far

attacked. If you do not attack the principles

Carson 14 14/2/92

which he expressed as being principles of matters

to be taken into account, it seems to me that you

fall short of raising a special leave point.

MR HUGHES:  But, Your Honour, it is true that in a very

thorough judgment the President examined in depth

the authorities and the principles to be adduced
from the authorities in relation to the assessment

of the quantum by a court of appeal of a jury's

verdict. But, in Coyne, there is an injunction by

the majority against comparing personal injury

verdicts with defamation verdicts.

BRENNAN J: Is there a misstatement by the President of

Coyne at page 33? Perhaps it would be as well to

start of the bottom of page 32 to go over to

page 33.

MR HUGHES: Well, His Honour says:

In considering a challenge to a

defamation verdict, a controversy has arisen

as to whether it is permissible to examine the

general damages components of judgments

awarded to persons suffering personal injury.

Views have been expressed that it is

permissible.

And then His Honour cites the cases, and then

His Honour says:

On the other hand, such comparisons have been

criticised. In this country words of warning

have now been offered by Toohey J (with whom

Dawson J agreed) in Coyne. Given the caution

venture any precise comparisons with personal

of the High Court about comparisons between
personal injury cases expressed in Planet

Fisheries and words of warning now offered in

injury cases.

Now, Your Honours, we venture to say that what was

said by the majority in Coyne went further than a

warning.

BRENNAN J: Well, does it lead to any conclusion other than it is safer not to venture any precise comparisons

with personal injury cases?

MR HUGHES:  Indeed, we would say, if one looks at the

relevant passage in the judgment of Justice Toohey

at pages 234 and 235, that the words are not words

of warning but words of injunction. Page 234, the

last paragraph on the page, if Your Honours please:

Carson 15 14/2/92

As to the complaint that the jury may

have approached the assessment of damages,

using as a comparison awards in personal

injury cases, the direction given by the trial

judge in this regard was: "but, you know,

that sort of figure can't help you in this

case, because you don't know what facts lay

behind that award". The trial judge might

have expressed to the jury in stronger terms

that awards of damages for personal injuries

would not assist it in arriving at a proper

assessment of the damages to which the

plaintiff was entitled if the jury found him

to have been defamed. But when his Honour's

remarks on the subject are read in their

entirety (they appear in the judgment of

Malcolm CJ), the jury could have been left in little doubt that no help was to be gained

from such awards. From time to time,

appellate courts have referred to awards of

damages in serious personal injury cases as a

means of contrasting what MacKinnon LJ

described in Groom v Crocker as "the frequent

niggardliness of verdicts in cases of personal

injury and the invariable profuseness in

claims for defamation": see also Diplock LJ

in Mccarey v Associated Newspapers Ltd;

Lord Hailsham in Broome v Cassell & Co;

Hutley JA in Andrews v John Fairfax & Sons

Ltd. But that is not to say that the adequacy

of awards in one type of case may be tested by

reference to awards in the other.

And then Your Honour Justice Toohey cited

Mr Justice Windeyer in Uren v Fairfax.

Lord Donaldson, Master of the Rolls, in

Sutcliffe dealt with the matter at page 176, I

think where His Lordship rejected the validity of

the comparison.

Now, we suggest, with very great respect - and

I have to say this - that while His Honour the

President referred to what was said in Coyne, he

really skirted around it and yielded to the

temptation of disregarding the injunction

propounded in Coyne against comparing the two types

of verdict.

DAWSON J:  He went on to do just that.

MR HUGHES:  Yes, exactly. He did that by referring to

Cappelletto. His judgment is not saved by saying,
"In so far as it is permissible to do so", he did

it, permissible or not.

Carson 16 14/2/92

BRENNAN J:  One can see the force of that argument,

Mr Hughes, but for my part at the moment I am

concerned to see whether the grant of special leave

is required in order to raise and consider some

question of general public importance. I can see

that there may be an alternative basis on which you

will put your case but that seems to me to be the

primary question for consideration, once one has it

quite clearly established that the authority of

Coyne is not in question.

MR HUGHES:  So far as we are concerned, Your Honour, the

authority of Coyne is not in question. What we say

is in question is that the learned President

disregarded or did not obey the injunction in Coyne

and, given the frequency of defamation cases and

the arguments about damages that inevitably occur

in these cases and on appeal, this is a matter

which, in terms of the proper administration of

justice, ought to be set right if the President is

wrong.

BRENNAN J:  I can see that as an alternative argument but as

I understood your argument thus far you are putting

it on the footing that there is, in this judgment,

some question of principle arising which requires the grant of special leave and at the moment I do

not see that you have made that good. If you put

it on the alternative basis - - -

MR HUGHES:  I certainly put it on the alternative basis that

the administration of justice in this case calls

for the grant of special leave because it would be

an injustice for, for example, the first verdict,

$200,000 for those two gravely defamatory

imputations, to be taken away in a majority

judgment albeit one of the learned judges in the

majority disregarded Coyne and when - and this is a

factor that adds to the administration of justice

aspect of the matter - two of the learned judges

have said explicitly that the first verdict is, of	itself, in terms of quantum, not such as to call	for the intervention of an appellate court at the
level of the Court of Appeal.

Your Honours, on the question of aggregation,

I should refer Your Honours to what was said by

Your Honour Justice Toohey in Coyne at page 232.

Your Honours will recall that in Coyne there were

two verdicts based on the same type of libel. Each

was in a newspaper; one was in a metropolitan

newspaper and the other in a provincial newspaper

but the libel was to the same effect in each case.

At page 232 Your Honour Justice Toohey dealt with

this topic of aggregation, at the top of the page:

Carson 17 14/2/92

What then persuaded the majority that an award of $150,000 was so excessive that it

should be set aside? The answer appears to

lie in the view Brinsden J took of the

plaintiff's work history and business

activities before he became associated with
the Binningup project, coupled with his

conclusion that the Pelican Point and

Binningup projects did not proceed because the

necessary finance could not be obtained and

that therefore the plaintiff's "loss of this

remuneration was in no way the result of the

libels". These matters are referred to in

more detail later in these reasons.

Brinsden J said: "I am left with the distinct

impression that the total award in these two

cases of $200,000 is excessive." It is clear

that his Honour was disturbed by what he saw

as a disproportion between the two awards and

thought it possible that the jury was making

the defendant pay for the plaintiff's loss of

business reputation arising from either or
both of the publications. But, as his Honour

acknowledged:  "That ... is mere speculation."

The award of damages against Munro is not in

issue in this appeal and it would therefore

not be right to measure one award against

another. It is no more legitimate to say
that, in the light of the award against Munro,
the award against the defendant was too high

than it is to say that, in the light of the

award against the defendant, the award against

Munro was too low.

I can use that passage, in my respectful

submission, to my advantage in this case when one

bears in mind what I have already said that two of

the judges said that the $200,000 was not of itself
too high. So that one can criticize the process of

aggregation in the same way.

TOOHEY J: But, Mr Hughes, Coyne was not concerned with

aggregation, was it? There was an award which was

not before this Court in Coyne.

MR HUGHES: That is so, yes.

TOOHEY J:  But which was part of the history of the matter

and all that judgment, I think, suggests that there

is no greater argument for saying, "Award A is high

because of award B", than to say that, "Award Bis

low because of award A".

MR HUGHES:  Yes, but there is an implicit warning against

aggregation where, for the purposes of comparison

or whatever, one has an award which the majority of

Carson 18 14/2/92

the judges say is not of itself too high. That is

the only point I was seeking to get.

BRENNAN J: Mr Hughes, I am having difficulty with coming to

grips with this notion of separate awards and the
impermissibility of considering them when the
awards are made in a case in which the publications

were both with respect to the one general area of

subject-matter - and I am speaking now of the

litigation with Tectran which seems to have been

the subject-matter of Mr Slee's articles - and

where, no doubt, in the course of the trial it must

have been conveyed to the jury that Mr Slee, after

the publication of the first article, made no

apology and then ultimately there was a publication

of an inadequate apology, and then returned, as it

were, to the same attack upon the same person so

that looking at the second publication, the jury

might have thought it proper to award a sum which

had reference to the history including the

publication for which the first award was made.	In
other words, the jury was invited to look at the
totality of the circumstances in assessing the
second award.	Why then can a court not look at the

same totality of circumstances in considering it?

MR HUGHES:  Your Honour, the jury were not asked to consider

their award in the second case, in the light of

whatever award they might make in the first case.

The two cases were kept on separate courses but

combined in one trial. Now, can I take up - - -

BRENNAN J: What about the circumstances of aggravation?

Were they not something that the jury were invited

to consider?

MR HUGHES: Yes, and they were specifically invited in

relation to the allegation that Mr Slee lied in his

first article, to consider that in relation to the

first article. The other circumstances of

aggravation were common in the sense that the

aggregating factors depended upon the seriousness

of each libel but the seriousness had to be
considered separately and there was no misdirection
on that score, the seriousness of each imputation,
and the conduct of the trial, the impermissible

cross-examination of the plaintiff to suggest that

he had acted improperly in two respects.

Your Honour, this was a case in which the

libels were distinctly different. That point is

made with particular clarity, in my respectful

submission, in the dissenting judgment of

Mr Justice Mahoney at page 80 of the application

book, from line 0:

Carson 19 14/2/92

In view of what has been submitted in

this appeal, it is important at the outset to:

recall that, though the two articles were

dealt with in the one trial, there were two

distinct wrongs done to the plaintiff and the

damages for each of them are to be separately

examined. There has, in my respectful
opinion, been the tendency to aggregate he

separate amounts and to address the combined

sum. That, I think, is a wrong approach for

several reasons.	The essence of the
imputations in each case was different.	The
article of 21 April 1987 alleged gross

professional misconduct, civil wrongs and, as

I think, serious contempt of this Court,

committed in relation to a psychiatrist and

then a solicitor. The article of 6 May 1987

alleged something quite different, namely, a
serious criminal offence relating to the

perversion of the course of justice.

Each of these articles, and the

imputations made by them, have been sued on

separately and warrant separate and distinct

awards. And - a matter I think of particular

importance - the second article was published

more than a year after the first with nothing
published publicly to connect the two in

public other than the suggested "apology" of

22 December 1987.

Of course, the apology, such as it was, was

published between the first and the second article.

I do not mean that there was no

connection between the two articles. The

defendants' treatment of the plaintiff's offer

to discuss the facts, the failure to

apologise, what was done in.the discussion of the plaintiff's request for apology, and the so-called "apology", may well have increased	the effect of the second article in the manner
to which I have referred. And, of course, the
publication of the second article without
warning and following what previously had been
said and done may well have - I think it would have - increased not merely the hurt and
frustration produced by the first, but the
damage to Mr Carson's standing and his honour.

But, in my opinion, none of these things

warrants that the two amounts be considered simply in the aggregate: it is proper that

each be judged separately.

Carson 20 14/2/92

And, Your Honours, I cannot, with very great

respect to Mr Justice Mahoney, put the answer to

Your Honour's question better than Mr Justice - - -

DAWSON J:  Mr Hughes, you know a great deal more about this

than I would, and I am not sure that it is

relevant, but would it be true to say it is much

more difficult to fight a defamation action on

damages for the plaintiff alone than it would be,

in many ways, to fight the action completely?

MR HUGHES:	Yes, Your Honour.
BRENNAN J:	Why?
MR HUGHES:	To fight one action?

DAWSON J:  I have in mind the first action. You say that

there is no warrant for sending that for a retrial.

MR HUGHES:	Yes.
DAWSON J:	On damages?
MR HUGHES:	On damages.

DAWSON J: But why is it more difficult for the plaintiff to

be restricted to the question of damages in a

defamation action rather than fighting the whole

action?

MR HUGHES:  Because if we are restricted to the question of

damages, we will be in this position: first of all,

one of our witnesses has died, a former judge of the

supreme court. No attempt, however valiant, would

be able to recreate the atmosphere of the first

trial in which the author of these articles was

qitting in the back of the court, had tendered

against the newspaper - - -

DAWSON J: The very atmosphere of the trial is something

that enters into a defamation action. I mean, the

very conduct of the trial could be something

that aggravates damages. But can one lead evidence

in the trial as to damages as to what happened at

the first trial?

MR HUGHES:  Well, that is a moot question. I have begun to

consider it in a proleptic way.

DAWSON J: Well, do not take - - -

MR HUGHES:  But there are obvious difficulties of proof and,

of course, the defendant will no doubt, learning

wisdom at last, perhaps, be at pains not to create

the atmosphere that was created by their leading

counsel's temerity - and I am not saying that

Carson 21 14/2/92

pejoratively - in cross-examining the plaintiff so

as to blacken his character further. So that a new

trial on damages is a very poor remedy and that is

a factor, in terms of the administration of

justice, when there was nothing in the trial to

warrant the setting aside of the first verdict,

when one considers the fate of the first verdict.

So, we say - and I have been unduly long and I

apologize for that - there are two important

questions of principle involved which affect the

running of defamation trials in New South Wales

but, more importantly, perhaps, there is a serious question which involves the legal propriety of the

way in which justice was administered in this

particular case. And for those reasons, although

the case is unusual - perhaps all cases have to be

unusual, in a sense, to get special leave - it does

warrant, on a consideration and on balance, the
grant of this discretionary remedy of special

leave. If Your Honours please.

TOOHEY J: Could I just ask you, in relation to that second

point, the conduct of the trial, Mr Hughes, does

that go to the appealability of the decision or,

rather, as to the appropriate order that ought to

have been made? I mean, once the Court of Appeal

decided, rightly or wrongly, that the awards were

excessive, it only had two choices, presumably, one

to fix damages for itself and the other to send it

back. Do you quarrel with the decision to send it

back?

MR HUGHES:  No, Your Honour, no. Let me say at once, both

parties, I think I am right in saying, joined in -

that was the only point on which they were in

unison - asking the Court of Appeal to send it

back.

DAWSON J: Both?

MR HUGHES:  Both parties.

DAWSON J: Both actions?

MR HUGHES:  Both actions. Well, if each verdict was set

aside. We were asked to express a preference -

DAWSON J: For the court assessing damages?

MR HUGHES: Yes, or - - -

DAWSON J: And you made an understandable choice, yes.

MR HUGHES:  Yes, Your Honour. Despite the hazards of a new

trial, even on damages, and the difficulties, we

opted for the understandable choice.

Carson 22 14/2/92

BRENNAN J: Thank you, Mr Hughes. Mr Jackson?

MR JACKSON:  Your Honours, may I turn immediately to the

point being addressed by my learned friend

concerning the propriety of the Court of Appeal

looking at one verdict and looking at the verdict on

one count, as it were, in the light of the approach

which it took in relation to the other one. Now,

Your Honours, the suggestion was made that that was

an inappropriate way to deal with it but may we say,

however, that if one looks at the approach taken by

this Court in Australian Consolidated Press v Uren,

(1966) 117 CLR 185, that is the approach which was

taken by the members of the Court.

Now, Your Honours, in that case there were

allegations made on four counts which were entirely

disparate in nature in some respects. The first

count was one which was an allegation about the

capacity of the plaintiff to run a duck raffle in a

country hotel; the second was one which was an

allegation to the effect that he was a fellow

traveller of communists and the third and fourth

counts were allegations to the effect that he was

being used as a dupe in Parliament by a communist
spy to ask questions.

Now, in relation to those - and may I hand to Your Honours a volume which contains some cases to

which I may refer. Behind tab 2, Your Honours,

should be Uren's case. The nature of the four

counts is set out in the headnote to the case at

page 185 and at the bottom of page 195 His Honour

Justice Menzies is there speaking about the first

count. Now, Your Honours will see the reference to

that at the start of the last paragraph on page
195, and then at the bottom of that page His Honour

says:

It was ridiculous to award 5,000 pounds for

this libel. The award -

meaning the award of 5000 pounds on the first

count -

casts doubt upon the reasonableness of the

whole verdict. There must be a retrial with

regard to the first count.

Then, Your Honours, at page 200

BRENNAN J: What was the 5000 for? Which count was that?

MR JACKSON: That was for the duck raffle, Your Honour, the

first count.

BRENNAN J: That was the first count?

Carson	23	14/2/92
MR JACKSON:	Yes.	Now, Your Honours, at page 200,

His Honour proceeds to deal with the question and

Your Honours will see in the penultimate paragraph

on page 200 he sets out his own conclusion that two

judges in the Full Court were correct in their

conclusion about the conduct of counsel, and says,

and this is the fourth line of that paragraph:

and that his success in doing so may well have

been reflected in the verdicts -

plural -

that were returned. In these circumstances, I

do not think that the damages awarded upon

counts three and four can be allowed to stand.

And then, Your Honours, in the whole of the next

paragraph it is apparent that His Honour treats the

course taken in relation to those counts which made

the verdicts unreliable as militating against

retaining, as it were, the verdicts on the other

counts. And Your Honours will see, for example, at

page 200, at the bottom of the page:

If, however, counts three and four were the

only ones to be considered, I am nevertheless disposed to think that I would agree ..... that a new trial limited to damages would meet the justice of the case ..... Taking the case as as

whole, however -

this is line four -

and this I feel bound to do - I cannot be

satisfied -

et cetera. Now, Your Honours, His Honour was not

the only one to adopt that approach. Your Honours

will see it taken too by Justice Windeyer at

page 202 about point 4 where Your Honours will see

a sentence commencing: 

There are ample grounds for saying that the

trial was unsatisfactory and that the jury

were somehow led into a mistaken approach to

the question they had to try. If there were

nothing else the verdict on the first count

would show this, and it provides a touchstone

for the whole.

TOOHEY J:	Mr Jackson, but this is a case in which it is the conduct of the plaintiff's counsel, is it, that led
to the appeal or, inter alia, led to the appeal?
MR JACKSON:	I am sorry, Your Honour, there are two aspects

to it. One is, in relation to the first count, the

Carson 24 14/2/92

verdict for 5000 pounds. That, itself, was thought

to be something which was too high and which led to

the verdict on the other counts being potentially

unsatisfactory. It was treated as being material.

There is then the reverse of it and that is that in

relation to count 3 and 4, what was said by the

plaintiff's counsel was itself, separately, in

effect, bad in relation to those and that fact

affected the other verdicts. So, Your Honours, it

has a duel aspect.

Your Honours, the point I am seeking to get out of it is simply that if there are circumstances

in a combined trial in relation to more than one

count where, as was the case in Uren's case the
counts related to quite separate defamations, there

is something which makes one of the verdicts

unsatisfactory, then the court is entitled to

consider whether that has the same effect in

relation to others.

I was going to give Your Honours one other

reference at page 215 at about point 8. Now,

Your Honours will see in the last paragraph of

Justice Windeyer's reasons for judgment that he

said:

The verdicts taken together show that the jury were led into a mistaken approach -

and so on, and Your Honours will see the view there

taken.

Now, Your Honours, if one seeks to apply the

approach there taken to the present case, one sees

that, first of all, Mr Justice Kirby thought both

verdicts were out of the range so the issue does

not arise in relation to what he said. Secondly,

it was only Mr Justice Priestley who had any

reservation. And if Your Honours go to page 97,

Your Honours have seen the passage commencing at

page 97L already, but the passage goes through to

page 98, about line 1 and, in particular, the

paragraph commencing at the bottom of p~ge 97.

Your Honours, it is entirely reflective of the

language of members of the Court in Uren's case.

Now, Your Honours, could I go then to the next aspect in relation to damages that is relied on by

our learned friend. That is the question of

aggregation, as it were. That is not, with

respect, Your Honours, the way in which the case

was approached, in our submission. Your Honours, could I in that regard - it will take me a moment

to take Your Honours to various passages - go to
the approach taken by the Court of Appeal and go

first to Mr Justice Kirby's reasons for judgment at

Carson 25 14/2/92

page 10. Now, if Your Honours go to the passage

commencing at letter N, what Your Honours will see

is that His Honour says at line 0:

The Court was informed that they represented,

in aggregate, the highest verdicts awarded as

general damages for defamation in the history

of this country.

If Your Honours go through the reasons for judgment

thereafter, it is entirely apparent that what

His Honour is doing is to consider the two verdicts

separately. Could I go, Your Honours, to the same

page, letter T, the:

challenge to the ..... verdicts -

plural; the first paragraph, Your Honours, on
page 11 and, Your Honours, at page llN he speaks of

the "first publication". Page 12J, recording the

evidence of Mr Carson who "read the second

article"; letter O on the same page, "the first
article"; next page, 13G-H, "the first article"; M,

"the second article". Your Honours, I will not

labour the references. If one goes to page 15, the

two articles are set out or commence to be set out.

Letter Ron page 15, "the first matter complained

of"; page 17B, "the second article" is there set
out. Page 18 I, the imputations are separated out

and I would ask Your Honours to compare letter I

with letter Son the same page. The differing

position in relation to apologies is noted on
page 21, Your Honours; K to N and, Your Honours, if

one goes to page 22C, when moving to the discussion

of principle, in the first two lines under the

heading "Disturbing jury defamation verdicts", it

is made quite clear that he is speaking about two

separate things.

Now, Your Honours, will see the principle is

then set out. That goes over a number of pages

and, Your Honours, when one comes to the conclusion

commencing at page 34 one sees in T the

commencement of the discussion of the application

of the principle and Your Honours will see at the

next page, 35N-P, he is discussing the two verdicts
separately, "the more serious second article".

Now, Your Honours, emphasis is placed by our learned friends on what appears at page 35T but one

must take it in a context and the context is one

where one sees, for example - page 36F:

These verdicts must therefore be judged as

compensatory only. In my opinion their

amounts -

Carson 26 14/2/92

plural -

smack of the punitive.

And, Your Honours, if one comes then to the

conclusion at page 37H:

I have concluded ..... that the jury's

verdicts -

plural -

were -

again, plural, et cetera. Now, Your Honours, we

would submit that if one takes the reasons for

judgment as a whole what is absolutely clear is

that His Honour was entirely conscious of the fact

he was dealing with two different things.

Your Honours, the reasons for judgment reflect a

continuing appreciation of that fact and no
suggestion of any kind of aggregation can be made

against the reasons for judgment of

Mr Justice Priestley.

Your Honours, could I come then to the third

point relied on by our learned friends and that is

the relevance of personal injury awards. Now,

Your Honours, if I could speak first of all of the

question of principle. The Court decided in

Coyne's case that the personal injuries awards were

not to be taken into account. That appears to be

the effect of the decision in terms of there being

a precise comparison, endeavour to say one is

higher, one is lower, and so on. Now,

Your Honours, that does not seem to exclude the

possibility that in considering what are

appropriate awards in defamation or personal

injuries cases, no doubt, one is ·entitled to look

at the fact that awards are being made in a

community.

Now, Your Honours, if one looks at what was

said by Mr Justice Kirby in this regard, could I go

first to the conclusion that he arrived at. That

appears at page 37.	Now, what he said between Q to
Tis:

By the standards of this State, as understood

in the light of Coyne, these verdicts are

appealably high.

Now, Your Honours, when he speaks of "the standards

of this State", the Court will recall that there

was some question in Coyne about the fact that the

standards of States might vary but one is looking

at the standard of a particular State.

Carson 27 14/2/92

Your Honours, if one goes back to His Honour's

discussion, paragraph 15 at page 32, he speaks of

a controversy, such as it is, about:

whether it is permissible to examine the

general damages components -

then he says specifically, Your Honours, at

page 33G:

I consider that it is safer not to venture any

precise comparisons with personal injury

cases.

He then goes on to say at J to M:

This simply serves again to emphasise the uniqueness of defamation verdicts and tYe

difficulty of adopting a standard by which to

measure them in an appellate court.

Your Honours, so it is clear that he is speaking of

defamation verdicts as having particular

characteristics.

Then, Your Honours, it is in looking at what

are broad levels of verdicts in other contexts that

he makes the observation relied upon by our learned

friends because what Your Honours will see is that

in endeavouring to arrive at some broad idea of

levels, perhaps, at letter M he speaks of "a jury's

award", an award upheld by the court in relation

to:

exemplary damages in an action for trespass -

where he speaks of $400,000 being set aside, and

that being affirmed by the court, and then speaking

of the decision of The Canterbury Hospital v

Cappelletto.

Now, Your Honours, what His Honour is not

doing, if one looks at that reference, is just to

say, "I compare blindness, in effect, with the

defamation here", but is saying, as Your Honours

will see at the bottom of page 33, that in that

case what was considered was the standard of jury

verdicts in the case. Your Honours, perhaps if I

had been conscious of the exact reliance to be

placed on that case, I would have had Your Honours

a copy of it, but that case discusses what is the

level of damages for personal injuries, pain,

suffering and inconvenience in New South Wales.

Your Honours, I was one of the counsel in that

case. But that is the point of the reference to

the case, in our submission.

Carson 14/2/92

So that, Your Honours, one should not, we

would say, try to identify any error when

His Honour is saying specifically "Coyne's case

decides this. Don't venture specific comparisons", and then seeks to say, all the time, "I'm applying

Coyne's case". Your Honours, there simply is not,

we would submit, an error either of principle or

one which goes to the justice of the case.

BRENNAN J: Well, the argument against you, of course, is

that His Honour said that he was applying Coyne's

case and then adopted a form of words which is

indicative of the fact that he did not.

MR JACKSON:	Your Honour, what one is doing in saying that is really taking, with respect, of course, half of
what he said and not the other half. The half of
what he said that suits our learned friend's
argument, of course, is to say, "It seems difficult
to say that the damage to Mr Carson was greater
than to Mrs Cappelletto.  The part that puts that
in context consists really of two things. The
first is the opening words of the sentence, "In so
far as one may compare that verdict to this" and
the second thing is that what is being looked at,
as is apparent from the bottom of page 33, is that
the Court of Appeal in that case had been looking
at the standards of jury verdicts in New South
Wales.

DAWSON J: Well, it is only a jury verdict in personal

injury cases.

MR JACKSON: Indeed, yes.

DAWSON J:  I do not suppose they mention defamation

verdicts, do they?

MR JACKSON:  No, no, but, Your Honour, one must take that

too in the part of the paragraph immediately above,

he is saying, "Well, go to another context
altogether.	You see a level for exemplary

damages." So, Your Honours, what we would submit

in relation to those particular matters is that

they do not provide any satisfactory basis.

Your Honours, may I say just a couple of other

things in response to the application? The first

is this, that if one looks at the case, what we

would submit is that it is really only a case of

applying established principles to particular

circumstances. Your Honours, it is no doubt

relatively rare for an intermediate appellate court

to set aside a jury's verdict on the question of

damages but the possibility, of course, is
recognized by the principles apposite to the

function of appellate courts and it surely cannot

Carson 29 14/2/92

mean that on every occasion on which it occurs the

Court will grant special leave.	Your Honours,
those are my submissions.

BRENNAN J: Thank you.	Mr Hughes?
MR HUGHES:	Your Honours, my learned friend has cited Uren's

case. As emerges from the report, that was an

altogether exceptional case because overshadowing

it, as appears from the judgments of the Justices

in this Court who heard the appeal, was what can

only be described as a prolonged course during the trial of unacceptable behaviour by learned counsel for the plaintiff who now, of course, is no longer

living. It was on the basis that his misconduct

overshadowed the jury's whole approach to each

cause of action that each verdict had to be set

aside. So, it is a different type of case

altogether.

My learned friend has endeavoured to suggest,

on the basis of passages in the President's

judgment, that His Honour at the end, or at bottom,

considered each verdict separately. That

proposition is denied by what was said at page 35T:

But it was not the case for the largest verdict for general damages in defamation in

the history of this State and of this country.

DAWSON J: Taking the second one, it was still the largest

on the figures that are in the - - -

MR HUGHES:  Yes, but His Honour was dealing with the

aggregate.

DAWSON J: Well, I do not know.

MR HUGHES: With respect, Your Honour, if.it is not clear

from that, it becomes p.erfectly clear from the

reference to Cappelletto's case where His Honour

refers to the ratio, at page 34, between

Mrs Cappelletto's general damages and Mr Carson's

total verdicts of $600,000. At line H there is the

exact ratio mathematically.

BRENNAN J: Yes. Well, he acknowledges that by using the

words "in aggregate".

MR HUGHES:  "In aggregate" .

BRENNAN J: But that cuts both ways, does it not? It says,

"I know there are two but I am putting them

together for this purpose".

MR HUGHES:  Yes. Well, in my respectful submission, he

cannot or should not and it is perfectly plain, on

Carson 30 14/2/92

a fair reading of His Honour's judgment, that

His Honour, while thinking that he was applying

Coyne was really disregarding it or going the other way. And one feature of this case has not been

mentioned, that the appeal to the Court of Appeal

was heard while Coyne was under reserve judgment in

this Court and therefore there was not the

opportunity of making submissions - - -

DAWSON J:  You get more comfort from the passage on page 36,

do you not?

MR HUGHES:  Yes, Your Honour. I am obliged; I should have

referred to it in-chief. But he combined the two

verdicts to see what the aggregate would return.

That is a very significant indication of his

aggregate approach. Now, I do not think I need to

say anything more in reply. This is a case where

the administration of justice requires that this

Court consider this matter.

BRENNAN J:  Mr Hughes, with reference to Uren's case, what I

derive from the passages which Mr Jackson cited was that if, by reference to two of the publications in

that case, the Court was able to be satisfied that

the jury had been misled in some respect, then that

was a reason for believing the jury to have been

misled in respect of other publications.

MR HUGHES:	Yes.
BRENNAN J:	Now, by a parity of reasoning, if one were to

conclude, with reference to the second verdict

here, that for some reason which the Court is
unable to specify the verdict miscarried and the
jury must have taken inappropriate matters into

account, may not that lead by a parity of reasoning

to the conclusion that that same impermissible

'factor affected the first verdict?

MR HUGHES:	Not in this case, Your Honour, because the difference between Uren and this case is that in	that case there was a clear indication, based on
counsel's conduct throughout a long trial, of why the jury went wrong and as I endeavour to say, his
conduct overshadowed the whole case. There were numerous specific acts of misconduct passed on by
the Court of Appeal in Uren and this Court.

BRENNAN J:  But what you are saying is that there was a

tangible ground.

MR HUGHES:  A tangible ground.

BRENNAN J: But in terms of principle, is there any reason

why it is impermissible to reason, "Here is a

verdict by a jury that has gone wrong. They

Carson 31 14/2/92

returned two verdicts. We can demonstrate that in

respect of one; we infer it in respect of the

other"?

MR HUGHES:  We say that in principle that approach is wrong

unless there is some established reason which
points ineluctably to error on the part of the

jury.

DAWSON J:	Mr Justice Priestley says it was your comment.
MR HUGHES:	He said it was possibly - a possible reason, but not a reason that vitiated the trial.
DAWSON J:	No, but may explain the high verdict in one and

therefore a higher verdict was warranted in the

other.

MR HUGHES:  I will not proceed in a process of self-defence.

I rely on what Mr Justice Mahoney said about my comment. But, Your Honour, we also rely on what

this Court per Your Honour Justice Toohey said in

Coyne at page 239. We rely on what Your Honour

said perhaps from the bottom of page 238:

The real point is, as Lord Hailsham

pointed out, that "the law makes the jury and

not the judiciary the constitutional

tribunal". There will be awards by juries

that are so large or so small that there is an

instinctive reaction by the appellate court

that something must have gone wrong in the

jury's deliberations. There are some, though

not many, reported decisions in which that has been the reaction of the appellate court. but

that is not to say that an appellate court

should begin with its instinctive reaction and

test the award against that. Rather, the
court should first look at the evidence,

assume that the jury took a view of the

evidence most consistent with the verdict it

of that evidence, the award is sustainable.	returned, and then ask whether, in the light	It may be apparent from an award of damages
that the jury has failed to take into account
some aspect of the case, whether favourable or
unfavourable to the plaintiff, about which
there was really no dispute, or that the award
is clearly punitive when punitive damages are not available. Such a conclusion is one that
an appellate court should not reach too
readily. The court has before it the product
of the jury's decision making; it knows little of the process that went into the making of
that decision.

Carson 32 14/2/92

Now, I rely on the whole of that passage, and

what we say about it, Your Honours, in reliance
upon it, is that it is an important principle

underpinning the system of trial by jury, that full

respect be accorded to a jury verdict in the

absence of some cogent, as opposed to merely

conjectural reason for supposing that their

collective decision on a particular issue was

undermined by some irrelevant consideration. Even if, therefore, which we do not concede, the jury's

verdict on the second article was appealably
excessive, it was contrary to principle to treat it

as bringing down the verdict on the first article

when the majority pointed to no more than a

possible or conjectural reason as to why the
verdict on the second article was as high as it

was. If the Court pleases.

BRENNAN J:  The Court will consider its decision in this

matter and will relist the matter for 2 pm this afternoon. It will not be necessary for senior

counsel to attend unless they wish to do so.

MR HUGHES: If Your Honour pleases.

AT 11.04 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 1.58 PM:

BRENNAN J: There will be a grant of special leave in this

case.

AT 1.58 PM THE MATTER WAS ADJOURNED SINE DIE

Carson 33 14/2/92