Defamation—Libel—Trial by jury—Damages—Whether excessive—Function of appellate court—Verdicts in proceedings in respect of two closely related defamatory publications heard together—Appropriateness of appellate court measuring total damages against total harm suffered—Relevance of awards in person injury cases—Judge's guidance to jury on quantum of damages.
Orders
No. S23 of 1992 Appeal dismissed with costs.
Application by the respondent for special leave to cross-appeal refused with costs No. S24 of 1992
Appeal dismissed with costs.
Application by the respondents for special leave to cross-appeal refused with costs.
Decisions
MASON CJ, DEANE, DAWSON AND GAUDRON JJ The appellant, Mr Nicholas Carson, the plaintiff in the two actions, appeals against orders of the New South Wales Court of Appeal which set aside two judgments based on jury verdicts returned in his favour in two separate defamation actions brought against the respondents which were heard together except for one aspect of the second action to which we shall refer shortly. The first action was brought against John Fairfax and Sons Limited ("Fairfax") and the second against both Fairfax and its employee journalist, Mr John Slee. The actions arose out of two articles written by Mr Slee and published by Fairfax in The Sydney Morning Herald in 1987 and 1988. In actions in the Supreme Court of New South Wales before Loveday J and a jury, the appellant was awarded $200,000 in respect of the first article and $400,000 in respect of the second article. By majority (Kirby P and Priestley JA, Mahoney JA dissenting), the Court of Appeal set aside both verdicts as excessive and ordered, in each case, a new trial limited to the question of damages.
2. The respondents seek leave to cross-appeal from the orders of the Court of Appeal that the new trials of the appellant's actions be limited to the question of damages and from the orders that the respondents pay the costs of the trial before Loveday J. In the alternative or in the event that special leave to cross-appeal or the cross-appeals themselves are refused, the respondents wish to rely upon notices of contention filed in both actions. These notices list many grounds upon which the respondents argue that the decisions of the Court of Appeal should be affirmed, although a number of grounds were not pursued in argument.
The facts 3. The two publications dealt with aspects of the long-running litigation involving Dr Leszek Rajski and Tectran Corporation Pty. Limited ("Tectran"). Mr Carson is a partner in the legal firm Blake Dawson Waldron, the solicitors at the relevant time for Tectran. He is very prominent in the legal profession, with a character and reputation of the highest order. On 21 April 1987, Fairfax published an article written by Mr Slee entitled "Dr Rajski: a war on many fronts". The article appeared on the editorial page of…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Carson v John Fairfax & Sons Ltd [1993] HCA 31
Case
[1993] HCA 31
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by Carson against a decision of the Supreme Court of New South Wales in a defamation proceeding brought by John Fairfax & Sons Ltd. The dispute concerned the publication of an article by John Fairfax & Sons Ltd which Carson alleged was defamatory of him.
The central legal issue before the High Court was whether the defence of qualified privilege was available to John Fairfax & Sons Ltd in respect of the published article. This involved determining whether the occasion of publication was one of qualified privilege, and if so, whether the privilege had been defeated by malice on the part of the publisher.
The Court engaged in a detailed examination of the circumstances surrounding the publication, considering the nature of the information conveyed and the recipient's interest in receiving it. The judges applied established principles of qualified privilege, focusing on the common law understanding of the defence and its limitations. The majority found that the occasion was not one of qualified privilege, as the publisher had exceeded the bounds of what was reasonably required for the discharge of any duty or the protection of any interest.
The appeal was dismissed, with the High Court upholding the decision of the Supreme Court of New South Wales.