Coyne v Citizen Finance Limited

[1990] HCATrans 247

_.

-!.) 1,~USTRALIA,,i.e--._.-..;~~~~,..._

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P32 of 1989

B e t w e e n -

PETER ANTHONY COYNE

Appellant

and

CITIZEN FINANCE LIMITED

Respondent

MASON CJ
DEANE J
DAWSON J
TOOHEY J

McHUGH J

Coyne 23/10/90

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 23 OCTOBER AT 9.31 AM

(Continued from 22/10/90)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Jackson.

MR JACKSON: If the Court pleases.

MASON CJ: Before you commence I should say this: overnight

we have given consideration to the question whether

we should grant the appellant leave to amend his

notice of appeal in order to raise the issue of

interests on which Mr Hasluck presented submissions

yesterday. We have come to the conclusion that as

the issue was not raised in the courts below and we

lack the advantage of the view of those courts on

the matter, leave should be refused. So, you need

not trouble to deal with that aspect of the

appellant's case.

MR JACKSON:  Thank you, Your Honour. The Court will

recollect that I had, as a matter of convenience,

decided to go through the appellant's outline of submissions and yesterday afternoon I dealt with

the first of them. If I might now turn to the

second of the outline of submissions for the

appellant and that was that -

the test is whether the damages are so large
that no reasonable jury could have given them

without taking into account something which

they were bound to exclude from their

consideration and that they are out of all
proportion to the facts of the case.

That ties in with what is said in paragraphs 5 anJ 6, and 7 and 8 and I will come to those as part ot

a global view on this particular question.

Might I firstly suggest that the test outlineJ in the outline of submissions is a little wider

than the authorities would allow. The authority

quoted for the proposition is Lewis v the Daily

Telegraph, which is No 1 of the respondent's list

of authorities, and the page reference given is

page 405. In fact, I think it is correct to say

that the particular passage comes from page 410

where Mr Justice Havers, in the middle of page 41J

said, in relation to the question of damages:

Regarding this part of the case I am

entirely in agreement with the observations

made by my Lord and Davies L.J. and with their

conclusions. I am driven to the conclusion

that the damages are so large that no
reasonable jury could have given them without

taking into account something which they were

bound to exclude from their consideration, and

that they are out of all proportion to the

facts of the case. These awards of damages,

therefore, cannot be allowed to stand.

Coyne 50 23/10/90

If that is intended to be a restatement of

what Their Lordships said, I would respectfully

suggest it is an oversimplification.

Lord Justice Holroyd Pearce, at page 380 of the

same report, quoted from Smith v Schilling, at

about a third of the way down the page, and using
the expression:

that the damages awarded are so

The verdict may be set aside if the Court of conclusion

small or so large that twelve sensible jurors

could not reasonably have awarded them; or if

the court is satisfied that the jury have

taken into account matters which they ought

not to have taken into account or have

disregarded matters which they ought to have

taken into account.

And that is not quite the same as Mr Justice Havers

put it in the sense that it adds in the ingredient

simply on a general basis that the award is so

small or large that it is inherently unreasonable

and Lord Justice Davies, at page 395 of the same

report, said something very similar. Indeed, at

about three-quarters of the way down the page,

quoting precisely the same part of the judgment as

Smith v Schilling, came to the same conclusion as

Lord Justice Holroyd Pearce. So the proposition

put forward by the second paragraph of the outline

of submissions is, in our respectful submission, a

little wider than the authorities can properly

allow. For example, in Precision Plastics, which I

think is a case referred to on the - yes, it is

No 5 on the appellant's list of authorities. I

understand all those cases have nowt been made

available to Your Honours, and I am grateful to my

learned friends for that assistance.

TOOHEY J:  Mr Jackson, is it the test that is posed in those

passages from Lewis - is posed in destructive terms

but how is the court satisfied that the jury have

taken into account matters which they ought not to

have taken into account or have disregarded matters

which they ought to have taken into account except

by reference to the size of the award?

MR JACKSON:  I think there are two ways of looking at it,

Your Honour, and that is obviously one where the

assumption comes: because the award is so large, it

follows that there must have been something taken

into consideration. The other possibility, I

suppose, is that it depends on the way in which the

case was conducted and the way in which the jury

might have been directed and one might glean from

that that they have taken into account something

they ought not to have taken into consideration.

Coyne 51 23/10/90

But it is probably saying not a lot more than

because they are so large it follows. My complaint

about the way in which the proposition is put
forward by the appellant is that it is limiting the
consideration only to the notion of taking

something into consideration where the words upon

which Mr Justice Havers relies in the other two

judgments really are not as bald as he puts it.

In Precision Plastics v Demir, which was a

decision of this Court, at page 369,

Mr Justice Gibbs, about a third of the way into the

large paragraph towards the bottom of the page, at

about point 6 on the page, says:

Where the assessment was made by a judge, and

it has not been shown that he acted on any

error of principle or misapprehension of the

facts, the appellate court will only intervene

if satisfied that the judge has made a wholly

erroneous estimate of the damages suffered.

But where the award was made by a jury, the

test is even more stringent. In such a case

(assuming that there was no misdirection) the

appellate court will only interfere if it

arrives at the conclusion that the damages are

so large or so small as to be

unreasonable - so excessive or so inadequate

that no jury could reasonably have awarded

them, or, as it sometimes said, out of all

proportion to the circumstances of the case.

My comment yesterday as to whether, bearing in mind
the powers of the Full Court of the Supreme Court
of Western Australia, the distinction is one that

should properly be drawn, but even allowing for it

to be properly drawn the test suggested by

Mr Justice Gibbs, as he then was, was a broader

one, that is, if the:

if the damages are so large or so small as to

be unreasonable - so excessive or so inadequate that no jury could reasonably have awarded them -

which, I think, is probably saying the same thing,

unless you put the jury in a peculiar position,

divorced, as it were, from legal rules.

Now, what Mr Justice Brinsden did in relation

to this, at page 1022, he firstly, between line A
and line B, quoted part of the decision of

Mr Justice Havers to which I have referred,

Your Honours, and without the qualification that I

have suggested that is appropriate, but then went

on and said:

Coyne 52 23/10/90

What is a·grossly excessive award is said to

be one where having regard to all the

circumstances of the case the damages are so

excessive that no 12 men could reasonably have

given them.

And he then quotes from Gatley. And that is the

way he posed the question and, in my respectful

submission, there is nothing wrong with that.

There are no doubt better and more succinct ways of putting it, but the proper question is, "Are the

damages excessive on whatever test it is?" And

His Honour, at page 1023, between line Band line E

says - having gone through some of the evidence to

which I will take Your Honours in due course, said:

I am left with the distinct impression that

the total award in these two cases of $200,000

is excessive.

And when I read those words I thought that is

slightly unfortunate, that is a little lower than

one might consider the standard to be:

I am left with the distinct impression that -

is perhaps not quite strong enough to allow the

appeal, but His Honour, I think, resurrected his

ground on the next page, at page 1024 where, at

line B - or perhaps to read a little before then,

he said:

There were also circumstances of aggravation -

and I picked up what Your Honour Mr Justice McHugh

said yesterday in relation to that -

so the jury was entitled to make a generous

award in both cases. In my view they did this

in Munro's case and I would not allow the

appeal in that case but I think they erred to

excessiveness in the Citizen case.

which, of course, is the one under appeal. So, the

expression, "erred to excessiveness", I think is

the right sort of standard and Mr Justice Kennedy,

at page 1026, I think got a little closer to the

mark where in a very short judgment basically

concurring with what Mr Justice Brinsden has said,

he says, half-way between A and B:

both awards were, in my view, excessive. As

the other members of the court have pointed
out, however, that is not the appropriate

test. In the end, however, for reasons

expressed by Brinsden J., I have concluded

that no sensible jury, properly directed,

Coyne 53 23/10/90

could have reached the result which this jury

did in relation to the claim against Citizen

Finance Ltd., and I would therefore allow the

appeal.

So His Honour Mr Justice Kennedy is clearly, in our

submission, stating the correct test when dealing

with the matter. Paragraph 5 of the outline of

submissions for the appellant, it is said:

Brinsden J (with whose reasons Kennedy J

agreed) referred to the principle in

paragraph 2 above but failed to apply the

principle and also failed to apply the

principle.

In my submission, that is an unwarranted criticism.

Certainly the words used by Mr Justice Brinsden are

not as strong as one might hope, standing where I

stand, but it seems to me that Mr Justice Kennedy

quite expressly got it right and put it in the

right way.

In passing, it might also be worth noting that in Consolidated Press v Uren at page 203, "grossly

excessive" was the expression used as to whether an

appeal court should allow an appeal or not.

The third paragraph of the appellant's outline

of submissions puts forward the proposition that:

The Court must assume that the jury took a

view of the evidence most consistent with the

size of the verdict which it returns.

Now, a couple of comments we make about that: firstly, we would suggest that that is a slight

overstatement of the rule and I will refer to the
authorities in a moment. It is also a little

different from the ground of appeal in 2(a) in

which, at page 1037, the gr.ound of appeal is said:

The majority of the Full Court erred in their

consideration of the jury's assessment of

damages by failing to apply the principle that
in respect of each issue of fact joined
between the parties as to which there was some

evidence which, if accepted by the jury, could

have sustained a finding in favour of the

appellant, such a finding must be assumed to

have been made.

In Progress & Properties v Craft, which was

the first case to which the outline referred, which

is the fourth case on the appellant's list of

authorities, His Honour Mr Justice Jacobs, at

page 672, is the judgment which is referred to, and

Coyne 23/10/90

His Honour said, at about half-way down the page,

page 672:

It appears to me that the Court of Appeal fell

into error -

et cetera, and the error was described this way:

the Court reviewed the evidence as though it

were obliged to perform the function which it

has to perform when the appeal to it by way of

re-hearing from a verdict and judgment found

by a trial judge sitting without a jury.

And to interpolate, of course, that is precisely
what section 59(4) of the $upreme Court Act of

Western Australia permits an appeal court to do even in an appeal from a jury and then leaving

aside the next few lines, His Honour went on and

said:

In the case of a jury's verdict the Court of

Appeal has no power to review the evidence

except for the purpose of determining what

view on the evidence or on any particular

aspect of it was reasonably open to the jury.

The Court must assume that the jury took a view of the evidence most consistent with the

size of the verdict which it returns.

So that is the way in which His Honour

Mr Justice Jacobs put it and as I have said if you

contrast that with the rules applying to this case

we would suggest it is an overstatement.

In Precision Plastics v Demir, which is the

fifth case on the appellant's list of authorities, again a judgment of this Court, the passage relied

upon by the appellant is at page 364 by the then

Chief Justice Sir Garfield Barwick. One should

point out, however, that the Chief Justice, on that

occasion, was a dissenting judgment and

Mr Justice Gibbs, at page 371 of the judgment, in

fact went through the evidence and drew the

conclusions, for example, half-way down the page,

having gone through some of the evidence, he says:

The jury should also have concluded that

the respondent had suffered a devastating loss

of amenities.

And then goes through to detail the nature of the

evidence upon which His Honour says such a finding

should have been made. That was a case in which

there was a decision which was said to be too low

and yet the Court had no difficulty in reviewing

the evidence and coming to its own view

Coyne 55 23/10/90

notwithstanding the fact that the jury perhaps

might have not gone as far as that. I will not

take you to the other two cases to which - - -

McHUGH J: What Mr Justice Gibbs said cannot be understood

in the way you have been putting it, Mr Jackson.

An appellate court has no right to say that a jury

should have taken a view about evidence if it was

reasonable for the jury to take that particular
view about it. All His Honour is saying is that,
having regard to the cross-examination and the

uncontradicted and unchallenged evidence in this

particular case, the jury acting reasonably was

required to reach certain conclusions.

MR JACKSON:  Yes, yes. The way in which the paragraph is

put in the appellant's outline of submissions is

that - the proposition is put forward:

The court must assume that the jury took a

view of the evidence most consistent with the

size of the verdict which it returns -

which, in our submission, is a broader statement

than the one Your Honour has just put to me.	Quite
clearly, if the jury gives a verdict which is

perverse, is clearly wrong on the evidence, then

you cannot run a test of that kind. You cannot say

merely because there is some evidence no matter how

remote or obscure from the general thrust and,

certainly, that is what Mr Justice Gibbs is doing.

He is saying, "Well, this is what they ought to

have done because that is the weight of the

evidence" and it is a quarrel with the way in which

the appellant poses the case in its outline of

submissions.

The fourth paragraph of the outline of

submissions starts off with the expression: In this case there was no express finding of

fact against the Appellant and it was

therefore open to the jury to assess the

damages taking the fact at their highest in

favour of the Appellant.

That is not really a criticism in terms of the way

in which the Full Court dealt with it but again I

would remind this Court that the Full Court is

entitled to draw its own inferences of the facts

and is not, perhaps, limited in the way in which

other courts are limited. And the four paragraphs

then set out were the ones that seemed to be

significant, listening to my learned friend

yesterday.

The first proposition was that it is -

Coyne 56 23/10/90

open to the jury to find that the Appellant's

career as a developer was cut short and the

jury was entitled to include in their award an
amount for financial loss already suffered as

well as for loss likely to be suffered in the

future.

Now, two comments one might make: you cannot say that they necessarily drew such an inference

they were invited to answer particular questions

which they answered. Secondly, if you look at the

work history of the appellant you cannot, in our

submission, say that the appellant had a career as

a developer. His work history which is set out in
the appeal books - if I may take you to some few
passages of what was said - in the first volume of

the appeal book at page 10, the appellant gave his

work history: he was in the airforce for a while;

he was a sales representative employed in

Melbourne; he was a laboratory manager and

photographic technician for two years in Tasmania;

he was the State manager of Minolta Cameras for

three years in Western Australia; he was an

insurance agent with Colonial Mutual Life Insurance
for two years; and then he was for a period, I

think, of about two years employed by Leisure

Holdings as a sales representative. I am sorry,

yes, it is quite clear, he does say just over two

years. This is work history up until the time

when, as the evidence showed, Leisure Holdings

"went to the wall" to use the colloquial expression

and the result was that Mr Coyne found himself out

of a job and seeking to keep the project with

Leisure Holdings had been involved in. To say

that he has a career as a developer is, in our

submission, an overstatement on the basis of the

evidence.

The material is made, perhaps, a little

clearer at page 23D., Mr Coyne, the appellant, says that he started working on.the problem, that is, as to how to finance the project Binningup, late in

1986: 

as soon as Leisure Holdings started getting

into financial difficulties.

And at page 24C it is shown that he simply left

Leisure Holdings, walked out on them. At page 29,

between lines Band C, he says of the period from

the time he left Leisure Holdings, I think it is,

when asked the question:

Were you receiving payment from anyone at this

point in time?---No, I wasn't.

Coyne 57 23/10/90

Why was it that you were doing this

work?---Because the arrangement that I had

with Green, Smith and Holmes was that I would be paid a commission on the remaining lots to be sold and the remaining houses -

Next question:

Did you manage to sell any of those?---No.

Now, His Honour Mr Justice Walsh in his direction

to the jury, in our respectful submission, made a

couple of errors which were of significance. If I

may take you to page 883B, His Honour commented to

the jury, that Mr Coyne:

was a salesman who finished up; with the

previous company which had defaulted in

relation to the property ..... Allied Leisure -

So, having acknowledged that he then went on at page 892 and said:

There are no heads of particular damage

proved in this case. It is not put up to you
by way of pounds, shillings, and pence that

Mr Coyne has lost so much a week or so much a

month and his tax returns are not produced and

so on - but that does not mean in itself that

there are not substantial damages.	He
complains about the effect on him.	He says

that before this he was a successful man;

after this he was financially wrecked.

Now, to put it that way to the jury - firstly, the question of heads of particular damage, of course, are the subject of cross appeal and I will refer to

that in due course. So far as that sort of comment

is concerned it is our submission that bearing in

mind the evidence which was before the court as to

the appellant's previous work history, that it is

an overstatement to say that and to suggest, as is

put forward in paragraph 4.1 of the outline of

submissions, the appellant's career as a developer

and that is the same sort of notion and as

His Honour Mr Justice Walsh put to the jury and, in

our respectful submission, it is an overstatement

to put it that way.

Chief Justice Malcolm at page 997 in the

dissenting judgment of the Full Court, agrees at

line D - used the expression:

His career was cut short. There was evidence

before the jury that the respondent may well

have received substantial income had the

Binningup and Pelican Point projects been

Coyne 58 23/10/90

completed as outlined in the heads of

agreement and the; minutes of the meeting -

et cetera -

This development did not proceed as then

proposed because Citizen and the other
companies then involved could not obtain

finance. There was also evidence that the

respondent had developed proposals which would

enable him to carry on the projects with

finance obtained from Esanda.

And if we pause there for a moment, to suggest that

there is damage which has been occasioned by the

defamation which has the effect of cutting the

appellant's career short as distinct from the clear
evidence that his career was cut short because

there was no finance available, and as my learned

friend reminded the Court yesterday, these events
occurred in November 1987 and the stock market

crash was just the night before so it was hardly a

time for project developments and the appellant,

really, got caught up in all of that. The attempt

to borrow money from Rothwells, of course, occurred

at a time when as events have subsequently shown

there was not a lot left to lend and to suggest
that as is implicit in the way in which

Mr Justice Walsh put it to the jury and the way in

which Chief Justice Malcolm dealt with it is, in

our respectful submission, inappropriate bearing in

mind the nature of the action. For example, having
made the comment at the bottom of page 997:

that the respondent had developed proposals

which would enable him to carry on the

projects with finance obtained from Esanda.

It would be appropriate had Esanda been called to

give evidence or someone from Esanda to say, "I

read the defamatory material; I decided that the

appellant was not someone to whom I should give the

finance and therefore I did not", then you would

then have a connection between the defamation and
the failure of the proposals which clearly is the

major source of any loss which is suffered.

TOOHEY J: 

Why do you say that, that the failure of the

proposals was the major source of any loss that was
suffered? This is what troubles me about some of
the arguments we have heard, Mr Jackson. See, if

you take what the Chief Justice says at page 975

between line C and D, he says:

The main contention on behalf of the

defendants was that any financial consequences

to the respondent were caused not by the

Coyne 59 23/10/90

publications but by the failure of the
projects which had nothing to do with the

publications.

See, you are making a comparison between an

assertion that the appellant's career was cut short

with what the implications were surrounding the

cessation of this project as if answering one

answers the other, but it seems to me that they are

two quite different things.

Can I just take it a step further. Whatever

may have been the reason for the cessation of the

project does not seem to me to have a great deal to

do with the argument that the plaintiff's business

reputation was damaged. And in particular when the

case is put to the jury not in terms of special

damages associated with a loss surrounding the

project, but in much broader terms. I just wonder

whether the Full Court did not attach too much

importance to the question as to what caused the

projects to fail instead of looking at the broader

question of whether the defamation which, by its

nature, was capable of damaging the plaintiff's

reputation really was likely to have that result.

MR JACKSON: It is really, I think, Your Honour, a matter 0f

causation. The appellant says he suffered damage

as a result of the defamation, and evidence he

gives is as to, amongst other things, in fact

almost entirely, as to the nature of the

developments in the area around Bunbury because

that is what he was engaged in; and his case

really was as to what had happened to those as to

the consequences to him. The telephone calls and

the like that he has received in so far as they

were identifiable were from people like

contractors, people who had bought blocks of land

and the like.

The whole thrust of the complaint is as to t :--.c?

effect of the defamation on the project which is
under way.	The evidence was as to a 15 per cent

success fee as to fees, I think, of $10,000 per
month - all those sorts of things. All of this is

material which goes to the jury.

TOOHEY J: But is that not taking too narrow a view of the

matter? Say, for instance, the defamation had

been, "You are a fraud and a thief", and it so

happened that the plaintiff was working on a

project which for reasons quite unconnected with

that statement came to an end, let us say through

lack of finance. Now, what answer is it to a clai~

for damages in defamation to say, "Well, the

particular project you were concerned with at the

time was going to founder anyhow"?

Coyne 60 23/10/90

MR JACKSON:  I think the answer is in the level of the

damage. Clearly, if your reputation is damaged as

a result of a statement of the kind to which

Your Honour refers, there will be an imputation of

some damage because of the nature of it, but where
the case is put on the basis of, "I was going to
receive all of this money from this project", then

if, as an intervening event, the project collapses

because of some other event as it did on this

occasion, then it is our submission that it is an

answer to the level of damages sought to say, "But

the project had collapsed and you were not going to

make one cent out of this, so you are left only

with the general damage to your reputation."

McHUGH J: But that cannot possibly be right, can it

Mr Jackson? Suppose the jury took the view that

this man would hav·e done nothing as a developer,

but that he may have worked as a salesman, the jury are entitled to take into consideration that he had been grossly defamed, alleged that he had been

engaged in fraud and awarded him damages for that.

Why could not the jury take the view in this

particular case? Over two or three years this man

might have earned $150,000 which he will not earn

now as a result of this defamation. He had been

unemployed for 12 months up to the time of trial,

and left it on that basis.

I accept your submission that there seems to

be no evidence at the moment that I can see that

there is any causal connection between these losses

on these projects in this particular defamation.

That is not the way I understand the case was left.

It was left in a general way that this was a man who had some prospects. The jury may have taken

the view he would never have earned any money as a

developer, and that was quite a reasonable view. they saw him in the witness box; he was

enthusiastic; he would have done well; he had

gone from job to job; he seemed to be upwardly

mobile, and he would have made considerable sums of

money except for this defamation.

MR JACKSON:  I accept what Your Honour says with the

exception of the reservation that the way in which
the case was put to the jury, the material before
the jury, was material which, according to the

appellant and I think on any view, juries are

likely to be influenced by. It is different for

judges who perhaps could put aside irrelevant

matters. But if the thrust of the case by the

appellant is not, "I am generally a person who is a

salesman and because of this slur on my reputation

that is a problem", the whole of the thrust related

to these particular projects and to nothing else.

Coyne 61 23/10/90

I accept what Your Honour says. It is still

possible for the jury to say, "but leaving that

aside, he still might have done other things, and

therefore he is entitled to damages for those".

McHUGH J:  The only way the jury could legitimately use that

evidence about the projects was as some sort of

guide as to what this man's earning capacity was.

MR JACKSON: Well, you cannot, with respect, because there

is no evidence as to what his earning capacity had

been as a salesman with leisure or otherwise. So

the jury could not have known the sort of capacity

for earning in those occupations that he had.	What
the appellant said was, the way he put his case
was, "I have lost this money.	I would have earned

this money from the project." But he does not

quantify it sufficiently precisely anyway. That is

another question.

The influence upon the jury of that type of

material, in our submission, is prejudicial. It is

material that ought not to have gone before the

jury anyway, and the way in which they were

directed as to success or failure without it being
emphasized to them, "but, of course, the project

had failed anyway and there is nothing to suggest

that the defamation had anything to do with the

failure of the project", if that had been put to

the jury, then one might have felt more comfortable

with the notion the jury would have taken a view

more general; but it was not put that way. It is

our submission, therefore, that the thrust that

comes from the notion of describing him as a

successful property developer who has been. cut off

in his prime is an overstatement and is not

something which is justified by the evidence.

McHUGH J:  What the judge put at page 892B:

There are no heads of particular damage proved

in this case.	It is not put to you by way of
pounds, shillings and pence ..... tax returns	are not produced and so on ..... He complains
that before this he was a successful man;
after this he was financially wrecked ..... and
the future is clouded. He doesn't have to
express it in monetary terms.

The jury has to do the best they can.	It is all
very vague, is it not?

MR JACKSON:	The evidence, you see, was that at the time of the defamation he had been engaged on the project for about two years and had not earned any money at
all.  He had not sold any properties. He was not
successful.  The potential was there no doubt, but

Coyne 62 23/10/90

I do not suggest any of this is a criticism of

Mr Coyne. It might well be, as Your Honour points

out; that he was viewed as someone of great

enthusiasm and might have been successful had the

market not cruelled all of this.

The fact of the matter is to describe him as a

successful man when the evidence, with respect,

shows a lack of success even if there was potential

for it, is the sort of difficulty that we have.

McHUGH J:  I know, but there was no objection taken to any

of this material, none of it.

MR JACKSON:  There was objection taken to the question of

evidence as to the losses with respect to the

project. If I may take you to that.

McHUGH J:  Is that the material at 26 or something that we

referred to yesterday?

MR JACKSON: At page 919 - this was after His Honour's

summing up. Mr McPhee between lines C and D said:

I have just got some concern, sir, over the

suggestion in my friend's closing with

particular reference to loss of income,
because there is no proof of any loss of

income except in the most general way and the

authorities refer to the need in those

circumstances to take into account income tax,

of course.

And then Mr Justice Walsh discusses that again in

fairly general terms.	And then at page 921A
Mr McPhee says:

He wants it both ways, really - that is the

problem I see with it.	He doesn't want to
prove it but -

then the judge interrupts and says:

If you were on that side of the bar table you

probably would too, but I think that is the
nature of the animal, if that is the right

expression in this field of law.

Then Mr Bennett for the appellant had a few words

to say, and then Mr McPhee at line D said:

I would just raise it as best I can.

He obviously has been defeated by then as the
result of the objections to - and I do not say that
is a very strong objection which is taken, but the

point was raised as to whether or not it was

Coyne 63 23/10/90

appropriate to raise these questions of the loss of

income because that was clearly material which had

been put before the jury.	So that albeit, it was
not a very strong or pressed objection.	The point

was, we would suggest, taken sufficient for the

purpose of allowing it to be maintained at this

stage.

If I may return to where I was discussing what

the Chief Justice Malcolm had said at page 998.

The conclusion that I am somewhat puzzled by

starting at the very bottom of page 997, His Honour

said:

It was strongly argued at the trial that the respondent's financial loss, and indeed the

injury to his reputation, was not the result

of the defamatory publications but of the

failure of the projects to proceed. The

causation issue, however, appears to have been

resolved against the defendants.

I am not quite sure what that meant except perhaps

to say that His Honour Chief Justice Malcolm is

accepting that the jury has accepted that the

financial loss was as a result of the defamatory

publications, and yet the evidence clearly showed

that that was not the case.

TOOHEY J:  It seems to me it ties in with that paragraph on

page 975 that I took you to. It is drawing the

distinction between the loss associated with the
failure of the project and the reasons for that

failure, and the broader question of the effect of the defamatory statement upon the general business

reputation of the plaintiff.

MR JACKSON:  Yes, the Chief Justice certainly refers to them

both, but I must admit I have some difficulty

seeing that that was what His Honour was referring

to at page 998.

TOOHEY J: Well, if you take the first few lines on 998:

It was strongly argued -

and I will omit the next few words -

that the injury to his reputation was not the
result of the defamatory publications but of

the failure of the projects to proceed.

Well now, if that was the argument you can

understand the statement that the causation issue

appears to have been resolved against the

defendant.

Coyne 64 23/10/90

MR JACKSON:  Yes, I accept that. Looking at it in that way

that is right. But when His Honour refers to the

financial loss, and the only evidence about

financial loss related to the loss of the

expectations from the project, the thing becomes

coloured by the losses to the project and it really

ought to have been pointed out to the jury quite

clearly that the jury ought not take into

consideration anything to do with the loss of the

project because it was not in dispute that the

project failed because finance was not available,

and there was no evidence to suggest that the

attempts by the appellant to resurrect it were in

any way affected by the defamatory material. That would not have been difficult to prove had it been

the case. The example of Esanda was one I referred

to a few moments ago.

Perhaps a more interesting question was the

one that arises from paragraph 4.2 of the

appellant's outline of submissions, that is, the
assertion that it was open to the jury to find
that:

Publication in The West Australian (as contrasted with the more limited circulation

South Western Times) had a widespread and

immediate impact.

And there is a reference to Chief Justice Malcolm.

My learned friend has already referred you to

the exhibits. If I might take you back to those

very briefly - exhibit 1 is at page 936, and that

was the·newspaper article in which you can see is

an article buried at the bottom of the public

notices of the morning newspaper in Western

Australia, and I say that deliberately because I do

not know that people read public notices. I have

an accountant who does, and I find it the most

peculiar habit, but I am sure people generally do

not read the public notices in the morning

newspaper. That is not suggesting that the

respondent ought to be excused his

defamation ..... it is just a question of impact.

McHUGH J: Yes, but the importance of it is that business

people do. Indeed, I do not know what the position

is in Western Australia, but most worthwhile

companies will have an employee whose first task of

a morning is to cut out this sort of notice.

MR JACKSON:  The evidence which was before the court at

first instance was that the appellant, having read

the article because it was left on his desk, then

went down to Binningup to talk to the contractors

and the people who were working there. That is no

Coyne 65 23/10/90

criticism at all. That was quite appropriate and

proper for him to do.

There was no evidence at all that I could see

in the papers, and I am open to suggestions to the

contrary, of course, as I was not involved in the

first instance. There was no evidence at all of

anyone actually seeing the public notice. What had

happened was that because the appellant, quite
reasonably, I would say in parenthesis of course,

went down to explain to those with whom he was

dealing what had happened, and I am not sure

exactly how he put it, whether it was all a mistake

or whether that was not going to matter; it was

going to be fixed, or whatever it was - none the

less, the dissemination of the information about

the public notice did not occur simply because - at
least on the evidence - of the publication in the

public notices.

By way of contrast, it would be our submission

that the article in the South Western Times about

which the action against Munro was taken, which is

at the next page of the appeal book at page 937, is

a most dramatic article, and one could assume

without more than that that people in the area in

which the paper was circulated would have read it

and been aware of it.

DEANE J:  But why would you not say that the public notice

gave rise to the article? I mean, the worst part

of the article is an account of the publication of

the public - - -

MR JACKSON: Yes, certainly that is right. But it is a

republication which was the subject of a separate

action so that the - - -

DEANE J: But that says nothing to the question whether the

publication of this story should or should not be

seen as a natural consequence of the defamation

involved in the public notice.

MR JACKSON: Yes, I take Your Honour's point. The complaint

about the publication was that it was an action

taken against Munro who had given the interview to

the reporter. It was not, I think, put on the

basis that the original publication of the public

notice was somehow compounded as a result of this.

DEANE J: But that is the point. I mean, if you look at the

story, the headline, relate to the publication of

the public notice. The company was not sued for

that. It was sued for the public notice.

Mr Munro's part is hidden in the middle of the story.

Coyne	66	23/10/90
MR JACKSON:	Yes.	The heading, of course, is:

Firms drop bombshell on big s-w plans.

That is the initial leader to the article and, in fact, that was the main cause of the upset. This

was, as the evidence was a substantial project.

Bunbury is, Your Honours would be well aware, a

fairly substantial - at least in Western Australian

terms - country town. These were two large

projects which had got a lot of high profile in the

area so that the news of the collapse or the fact
they were not going ahead was obviously a matter of
substantial impact in the area.

What we suggest is when you try to resolve the question of the respective publications, it is our

submission that the second is one which would be

expected to have a greater impact, and the way in

which the appellant has put it in paragraph 4.2 is:

Publication in The West Australian ..... had a

widespread and immediate impact.

We quarrel with that sort of proposition. We say

that the evidence is not that the "publication in
the West Australian had a widespread and immediate

impact", but rather the news of the consequences of

it, that is, the news that the appellant himself

quite properly distributed amongst the contractors

and the people working there.

The thing that troubled the court below was

this substantial disparity between the two lots of

damages, that is, the damages against Munro with

respect to the South Western Times article of

$50,000 - - -

McHUGH J:  Can I stop you there, because there seems to me

to be a failure of analysis, and I am not even sure

that technically there should have been a verdict

for the plaintiff although I have not got the
pleadings.	You see, the plaintiff sued Munro and

succeeded on a single publication to the

journalist. That was the cause of action. What

was published in the South Western Times was damage

flowing from that defamation to the journalist. So

you had to assess what was the nature of this
damage. That meant that you had to weigh up the

bane and the antedote, because there is a definite

antedote in the article.

You have Coyne's account. You have a

statement from the Ausean chairman that he was of
the belief that Coyne had represented Citizen

Finance in the negotiations, so the jury may well

have taken the view that the damage from this

Coyne 67 23/10/90

article was far less than the damage from the

advertisement on 18 November 1987. And then you

have to take into consideration the question of

hurt, questions of aggravation, the way the notice

was brought to the attention of the plaintiff - I

must say I do not see any problem at all about the

difference in the two verdicts, speaking for myself

at the moment, Mr Jackson.

MR JACKSON:  If I might do two things in response to that,

Your Honour: firstly, to take you to the evidence

which is not very lengthy, of the appellant at

pages 118 and 121 of the appeal book.

MASON CJ: All that does is to inform us that the plaintiff

drew this matter to the attention of contractors.

MR JACKSON: It does a little more than that, I think,

Your Honour. On page 118 he gives evidence of

telephone calls and the attack on him by various

people either as a result of the first publication,

or as a result of his telling people of it. I do

not seriously draw a distinction between those two

things. His actions are quite reasonable, of

course ..... tell people about it.

So that is the first reaction. The second

publication - the reaction to that according to the

plaintiff or to the appellant appears at page 121B

where the effect of the newspaper story was, as he

puts it, immediate -

phone calls, death threats, personal threats,

threats against my family, irate contractors,

irate workers. In the end, I pulled the phone

out of the wall -

so that the effect of the second publication, he

says, is immediate because of clearly the level of

publication of it.

We are, after all, concerned today with the decision of the Full Court perhaps more than we are
with the decision of the jury.	I point out, of

course, that it is a local project, and indeed, my

learned friend yesterday in addressing you used the

expression that he had "set up a reputation in the

area", which was obviously right. There is no

suggestion that he has a reputation beyond the

immediate area of Bunbury with respect to these

particular projects.

But what His Honour Mr Justice Brinsden said

at page 1031C was this:

Though it is true that the publishing of the

public notice by Citizen on 18th November 1987

. Coyne 68 23/10/90

II

was the first libel, I would not have thought

it would have had as wide a readership

coverage as the publication of the second

libel in the "South Western Times" on

26 November under the heading "Firms Drop

Bombshell on Big S-W Plans" and sub-titled

"Coyne not Our Agent". Thus, I am not

persuaded that Citizen's libel, even though it

was the first in time, should be regarded as

more serious than the second libel. In my

view, a fair assessment of damage caused by

Citizen's libel would be achieved by varying

the award below by reducing it to $50,000.

And Mr Justice Kennedy, at page 1033 agreed with

what Mr Mr Justice Brinsden had said and says:

Whilst it is true that the company's libel was

published prior to that published by Mr Munro and the effect upon the respondent personally

was no doubt substantial, this is, in my view,

counterbalanced by the wider publicity which

it is reasonable to assume that the second

libel would have achieved in the region where

the respondent lived and worked.

This is, after all, a court entitled as a

result of section 59(4) to draw its own inferences

and that is what it has done and, in our

submission, this appeal, of course, is a criticism

of the inferences drawn by the majority of the

justices of the Full Court of the Supreme Court of

this State.

TOOHEY J: It is a bit of a two-edged sword, I think,

Mr Jackson, because accepting what you say about

the locality and paying some heed to what you say

about the extent to which the public notices are

read, it only has to be read by someone in the area

and, as you could imagine, it would get around very

very quickly by word of mouth ..... the second

article had never been published.

MR JACKSON:  Yes, that is certainly an implication that the jury could have drawn. I would accept that, but

there simply was no evidence that I am aware of of

anyone saying, "I saw the public notice and I,

therefore, came to such and such a conclusion".

Now, I appreciate that does not, from the point of

view of liability, excuse the respondent but it

might properly go to the question of the level of

damage.

McHUGH J:  But why could not the jury take the view that the

first article caused the most damage and, if that

is so, section 59 does not give the Full Court any

authority, does it? I mean, the power of the

Coyne 69 23/10/90

Full Court to make findings of inferences of fact

is not at large. They may draw any inference of

fact not inconsistent with the findings of the

jury.

MR JACKSON:  That is right. Now, there were only a limited

number of - well, I guess that depends on how you

look at what a finding is, of the jury. The jury

was invited to answer two particular questions and

one general question in this particular case, and

the questions put were in the same terms as the
pleadings so the jury was asked to answer to the

two questions going as to liability and they

answered both of those in the affirmative, and one

can look at those as particular findings, but to

say that a finding as to an assessment of damages

is a finding of the kind which would lead to the

consideration of inconsistency as set out in

section 59(4) - that is not very well put - but I

think Your Honour understands the point - but you

cannot really say that because there is a

particular finding, therefore the Full Court could

not make a contrary finding because such a finding

would be inconsistent with the jury when it is such

a general question. Different if they are asked

different questions; then the Full Court cannot

overrule those because they are not allowed to.

I think in respect of paragraph 4.3 I have

probably dealt with that sufficiently now anyway.

Just to make it clear, the collapse of the projects

due to lack of finance was not disputed and I will

not take Your Honours to it but the confirmation JE

that is at page 176B and 126D to 127E, all of that

being part of the appellant's evidence.

There is, of course, a lot of evidence from

people on behalf of the defendant as to why it

collapsed, but bearing in mind the fact that the

jury could accept any evidence at its best it is

appropriate to refer to that evidence of the

appellant.

Paragraph 4.4:

The imputation of fraud and the plea of

justification were pursued at trial - I think, again, that is a slight overstatement. It

was never said by the respondent that the appellant

had acted fraudulently. That was pleaded as an

imputation which flowed from the defamatory

material, that is, the assertion that the appellant

"had never been our agent" carries with it an

implication that he has fraudulently in the past
held himself out as an agent. So that it is,

again, an overstatement, I think, to say that

Coyne 70 23/10/90

whilst the respondent certainly pursued the

assertion that it was true that Mr Coyne had not

been their agent - that was pursued. They said

that he had not been their agent and that, of

course, was found against them, but to carry that

as far as the outline of submissions that the

imputation of fraud whilst it is a reasonable way

to clean it, it is an overstatement to suggest that
the respondent had suggested that in any overt way

the appellant had acted fraudulently.

TOOHEY J: But the word "fraudulently" was built into one of

the questions put to the jury to which they

answered, "Yes".

MR JACKSON:  Yes, that is right. I actually agree with

that, but it was put in the way in which it had

been pleaded.

TOOHEY J:  No doubt borrowed from the statement of claim.

MR JACKSON: That is right, yes. So that it is, again, put

in the way of being a consequence of the words

rather than a statement which would, I think, have

made it much worse. Had the respondent said, '.'The

appellant is a fraud" would have been a much worse

and more direct defamation than the way, in fact,

it was put.

Now, the only other matter I would like to

refer to with respect to the appellant's outline of

submissions, because I think I have covered most of

the material there, is their paragraph 8:

There was no specific ground upon which the

jury's verdict was open to challenge and, as

Malcolm CJ correctly observed (at p. 998), the

verdict was not an "impossible" one.

Then he went on to talk about this question of

damages at large which Your Honour the

Chief Justice commented yesterday was a slightly
unwise thing to suggest to a jury.	I suppose you

could also say damages are as small but it would be

meaningless and the jury really would not

understand the point.

What Chief Justice Malcolm said at page 998D

is:

It is not an "impossible" verdict of the kind

referred to in Banbury v Bank of Montreal.

But, if I might refer Your Honours to that decision

and it has not been thus far put forward and if I

might hand up a copy of - what I have handed up is

simply the last two pages of that report and,

Coyne 71 23/10/90

whilst I appreciate, of course, that is generally

not a desirable practice, there was an awful lot in

the middle which had nothing to do with the case

and I, therefore, have done it this way. This was

a -

DEANE J:  It is much better than having hundreds of pages of

argument reproduced when nobody is ever going to

look at it.

MR JACKSON:  I am delighted to hear Your Honour's approval.

In fact, the particular quote is at page 717 and

the report starts at 626 so Your Honour's

observation is well founded. This is a decision of
the House of Lords dealing with a question of jury

trial generally and what His Lordship said at the

bottom of page 716 was thi~:

I may add, however, that in no case could the

judgment, in my opinion, have been allowed to

stand. The verdict "25,000 pounds and the

securities to be returned to the bank" was an

impossible verdict. And, if it were not, the

judgment for recovery of 25,000 pounds

dropping altogether anything about the return

of the securities was a judgment not according

to the verdict.

Now, what Chief Justice Malcolm has suggested is

that because the decision of the jury is not an

impossible verdict, it therefore ought not to be

set aside and I think, with respect, that what

Lord Wrenbury is saying is, "This is an impossible

verdict, it therefore ought to be", but there is a

huge gap between the two. There are many other

reasons why a verdict ought to be set aside and His

Lordship, I think, is not to be taken as suggesting

that you have to find a verdict is impossible

before you set it aside.

TOOHEY J:  I rather read that as if the impossibility

derived from the order that the securities be

returned, not from the amount that was awarded.

MR JACKSON: Well, either way - yes, I am not suggesting it

is to do with the amount as such I am merely

quarrelling with the expression "an impossible

verdict". You see, Chief Justice Malcolm at

page 998 is talking about the quantum of the

damage. Is it grossly excessive or is it not?

TOOHEY J: Well, maybe it is an inappropriate use of the

expression particularly if it relies upon Banbury's

case.

MR JACKSON:  Yes, that is right. I mean, it is used for

that purpose and we say that clearly that is not

Coyne 72 23/10/90

the test. The test is perhaps said in various ways

but "unreasonable" is a more appropriate way of

looking at it.

If I might now turn to the cross appeal which

is to be found at the back of the third volume of

the appeal book. It is suggested, and not

unnaturally suggested, by the appellant that there

is no special leave point involved in this and, if

I may point out to the Court the issue we see that

gives rise to such a point.

The thrust of the issue of the notice of cross

appeal is that in the absence of a pleading of

special loss, the trial judge ought not to have

allowed the evidence with respect to special loss

to be adverted to. The issue is, therefore,

whether, if at all, in defamation cases evidence should be admitted of special loss if it has not

been pleaded, and that is really the issue. It

goes to a question, in our submission, of general

public importance and the reason it does that is
because if such evidence is admissible then

defendants would be prejudiced by being deprived of

notice of the particular loss which is claimed, the
opportunity to seek discovery or to interrogate

with respect to such a claim.

MASON CJ: But what was the special loss that could have

been included in the verdict here?

MR JACKSON: Well, the point we make, Your Honour, is that

the verdict of $150,000 is only explicable by a

substantial allowance by the jury of an amount for

special loss suffered as a result of the failure of

these projects.

MASON CJ: What, loss of profits or loss of income arising

from these projects?

MR JACKSON:	Yes, because that was the way in which the appellant had put his case forward and had given a
lot of fairly vague evidence about this and there
were submissions put forward as to the nature of
the sorts of awards that ought to be made and the
like.

Now, what we say is that it is unfair for a

defendant in such a trial to have such material put forward when it has not been specially pleaded. We

say it is a peculiar case this one because whilst

it is certainly an appropriate proposition to say

that evidence of loss of business does not have to

be specially pleaded, and you can call some

evidence as to general loss of orders and customers

and the like, all of which can be taken into

consideration by the jury and that does not have to

Coyne 73 23/10/90

be specially pleaded, we are in a situation here

that no matter what the appellant calls himself he
really is not a business man of that kind.

I mean, the typical sort of thing might be the doctor, for example, in Henry's case, which is

number 11 on our list of authorities, who was

dentist of whom it was said he had hepatitis Bin a

very public way on a television program called

"Hinch", of which Your Honours may be aware, and

someone of that kind could give general evidence of

drop off of patients or anything of that sort.

Where you have someone in the appellant's situation who is not running a business of that

kind; he has not got a whole series of clients or

customers; he is not running a corner store or he

is not running a solicitor's office or whatever it

might be, so that general evidence of the nature of

business has fallen by this much, then that sort of

evidence is admissible in those sorts of cases and

we do not dispute that. But with respect to a

person in the appellant's case, we say that his
position is such that he really is someone who

ought to have, in fairness to the respondent

defendant, pleaded a special loss if he was going

to rely on it. He clearly did rely on it and it

is, therefore, we say a special point matter

because it does go to the question of the

administration of law.

I do not know whether Your Honours wish me to

proceed with the fairly brief argument on this

point anyway.

MASON CJ: Yes, you had better proceed with it, Mr Jackson.

MR JACKSON: If Your Honour pleases.

MASON CJ: That is not to say that we are granting special

leave at this stage but we will take it under

consideration.

MR JACKSON:  I well understand that, Your Honour. I think

it is a practice that used to exist some time ago

in this Court, Your Honour.

MASON CJ: Yes.

MR JACKSON:  The respondent has put up an outline of

submissions with respect to the cross appeal and

whilst the cross appeal - those grounds go, in

fact, far wider and really encompass a great deal

of what has been said in answer to the appeal - the

particular point we wish to make is that when you
look at, starting with Gatley, Eighth edition,

paragraph 1321 which has been reproduced in the

Coyne 23/10/90

list of authorities as item number 16 - and, if I

may take Your Honours to that - where the author

under the heading 1321 says:

But if the plaintiff wishes to rely on any

actual loss he may give it in evidence,

provided it is alleged in the statement of

claim.

Leaving out the next few lines, at the bottom of

Coyne 92 23/10/90