Coyne v Citizen Finance Limited

[1989] HCATrans 257

~

~ -,~~

IN THE HIGH COURT OF AUSTRALIA

office of the Registry

Perth No P28 of 1989

B e t w e e n -

PETER ANTHONY COYNE

Applicant

and

CITIZEN FINANCE LIMITED

Respondent

Applicantion for special

leave to appeal

DEANE J

TOOHEY J

McHUGH J

Coyne
MR ZELESTIS:	May it please Your Honours, His Honour

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 25 OCTOBER 1989, AT 9. 3-1 AM

(Continued from 24/10/89)

Copyright in the High Court of Australia

PlTl/1/CM 6 25/10/89

Mr Justice Brinsden's consideration of the damages

grounds of appeal commences at page 114 in the

application book at lines 2 to 3. His Honour

begins by sketching very briefly the nature of

the case, the facts, as a prelude to considering

the first damages ground of appeal and that was

whether the question of financial loss could be

left to the jury as part of a general damages

award, and His Honour deals with that on page 115

in the first three-quarters of the page and

concludes that there was nothing in the ground of

appeal. Then His Honour comes finally to the

question whether the amount was excessive, that

being the remaining ground in the case and

His Honour begins at the bottom of page 115 by

referring to a passage in the judgment of

Mr Justice Windeyer in UREN's case and notes

that the courts are:

reluctant to disturb a verdict of a jury -

"But that assumes a verdict that was given by a

jury properly instructed in a trial of which

no serious criticism could be made, a verdict

that does not reflect passion or prejudice".

So there is no statement there of the necessity to assume that the jury has found material facts

in so far as they were supported by evidence in

favour of the plaintiff. And then His Honour over

at page 116 refers to LEWIS V THE DAILY TELEGRA.PH

picking up a passage which once again makes no

reference to that assumption. And at line 3 to 4

it simply says:

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:

So His Honour has expressed the starting point
correctly or partly correctly.	I say partly

because there is another limb to it which His Honour

has not expressed. Those are the only legal tests

that His Honour expresses and having expressed them His Honour then moves to consider the nature of the

case and the facts against the background of those

tests. Along the way at the bottom of page 116

His Honour notes that damages because of circumstances

of aggravation are available. And then finally at

pages 117 to 118 His Honour comes to give his

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Coyne

reasons for concluding that the award was excessive
and nowhere· does His Honour say that what

His Honour is doing is concluding what is the

highest that the jury could properly have found

the case in favour of the applicant plaintiff.

His Honour does not say that in terms anywhere and

in our respectful submission, the language which

His Honour uses at pages 117 to 118 demonstrates

that His Honour did not have that test in mind.

His Honour in the middle of page 117 makes

the conunent on the nature of the applicant's

history at lines 4 to 5 His Honour says:

That history is scarcely an extensive history

of being a property developer, promoter and

marketer.

In our respectful submission, the burden of what

His Honour is saying there is that this man could

not have been harmed much in the way of his
business reputation as a developer, because he

did not have much of a history in that capacity.

Now we say, with respect, that that overlooks a

view which the jury could have taken and which

His Honour the Chief Justice noted and that was in

effect that the defamation could be more devastating
to a person who was new to the field than to one

with an established reputation and contacts with

local authorities and government departments and

finance companies and others with whom a property

developer necessarily deals. We say it is clear

from the nature of the conunent made by His Honour

that he is not saying, "Well, no jury could have

found more than this". His Honour is making his

own assessment of the position. Next His Honour

deals with the question of loss of remuneration

and says that the loss of remuneration from the

projects did not result from the libels, but from

the inability of the projects to proceed.

DEANE J: But would you dispute the previous statement~ that

is that history is scarcely an extensive history

of being a property developer, promoter and marketer?

MR ZELESTIS:  It is an accurate statemen~ Your Honour, but it

is not a ground upon which one ✓ could contend that

the verdict was excessive. It does not point to

excessiveness, because it overlooks the other

argument which I have just mentioned.

DEANE J:  But it is a relevant statement of a relevant fact.

MR ZELESTIS: Yes, but it is not a fact which is relevant

at this stage, because what is relevant at this

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staee of the judgment is what is the highest at
which the jury could have put the case. This is not putting it at its highest. This is taking an

alternative view that was open to the jury - - -

DEANE J: But that is the highest on that fact, because it

is accurate.

MR ZELESTIS: Well it is the highest on that fact, but as

a fact it is not relevant because - - -

DEANE J:	Your argument is that His Honour should not have
said it?
MR ZELESTIS:	His Honour, if he was going to say it, should

have immediately added the comment which we have

added, that the jury could have considered, as

His Honour the Chief Justice in effect said, that

the effect of the defamation was to cut short his

career. The man did not have an established

reputation which might survive the defamation.

His Honour is using this comment as a ground for

holding that the verdict was excessive, when there

was an answer that a reasonable jury could have
made to such a point, and in our submission it must

be assumed they did make it. And dealing with the

next point which is the question of remuneration,

His Honour did not note, as His Honour the Chief Justic~

noted at the bottom of page 91 and at the top of

page 92. It is at line 8 on page 91:

There was also evidence that the respondent had developed proposals which would enable

him to carry on the projects with finance
obtained from Esanda. 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.

Now what His Honour the Chief Justice is saying there in effect is that having regard to the size of the award, and having regard to the existence of some

evidence that the present applicant had an alternative

arrangement which would have seen the projects

continue, the jury must have found the_causatian

issue against the defendants and must have found that

the defamations did play a part in destroying the

alternative means by which the respondent could have

pursued the projects. There was evidence that the
present applicant had reached an arrangement with

the owners of the land to buy the land, t'hat he

had reached an arrangement with Esanda to provide

9   25/10/89

PITJ./4/CM Coyne

finance, but that, because of the defamation,

people who were required to be involved in the

project did not want to deal with him anymore.

DEANE J: Again the statements are accurate, are they not?

MR ZELESTIS: Well, with respect, the statement at page 117,

line 6 to 7 that:

The respondent's loss of this remuneration was

in no way the result of the libels.

is not accurate for the reasons that His Honour

the Chief Justice gave, that there was evidence

from which a jury might find that the defamation,

while it did not lead to the absence of finance
to support the role of Citizen in the development,
it did prevent the applicant from himself

continuing with it with other financial arrangements.

DEANE J:	But that would not have been remuneration from those
projects going on to completion as envisaged by
the interested parties and those heads of agreement
which involve them doing it.

MR ZELESTIS: Quite. At one level I suppose it is precisely

accurate, but once again it misses the point,

with respect. It does not recognize that there

was a view that the jury could have taken in favour

of the plaintiff applicant. Once again we say

what His Honour is doing is looking for reasons which

can justify the conclusion that the verdict was

excessive and His Honour is ignoring the views which

were reasonably open to the jury, as His Honour

the Chief Justice found. The third reason which

His Honour used was that expressed at line 7 on page 117 and that is His Honour found it difficult

to appreciate why the awards, in the two cases

which were heard together should have varied,

$50,000 in one and $150,000 in the CITIZEN case.

Now, His Honour the Chief Justice dealt with that.

His Honour the Chief Justice also expressed some

surprise at that at the top of page 88,

His Honour said that:

I must say that I remain puzzled by this

contrast in the context of the respective

awards. It cannot be said, however, that it

was not open to the jury to infer that more

damage should be attributed to the first

publication -

And then:. His Honour on that page and on the next two

pages catalogues a number of reasons which could

have led· the jury to find that more damage was

PI'lj_/5 / CM	10	25/10/89
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attributible to Citizen's libel than to the

libel of the director Munro, to which may be

added the point mentioned by the trial judge in

his summing up at page 16, that the circulation

of the two newspapers was quite different.
The libel published by the present respondent made

The Western Australian newspaper and the other was

in The South-West Times, a more regional newspaper.

But His Honour the Chief Justice, in our

respectful submission, correctly identified grounds

upon which a jury could reasonably have concluded

that Citizen's libel caused far more loss than

Munro's libel. They included the fact that a

case of deliberate publication was of course

found against _Citizen, it having inserted the notice.

Whereas in the case of Munro it was a finding that it was a natural and probable consequence of what he

said to the reporter. So we say with respect once

again that His Honour Mr Justice Brisden has

failed to turn his mind to the correct question and

the correct question was, 'What could a reasonable

jury have found? What view of the facts could they

have taken?" And finally, and we say most

significantly, His Honour, at page 118, line 2,

makes a connnent as to what His Honour would accept,

not what a jury could have accepted.

His Honour says at the top of page 118:

I accept that the respondent's general

reputation was undoubedly severely prejudiced

by the libels and I would accept that to some

measure so was his business reputation.

Now we say, with due respect to His Honour, that

you could not find a more exact statement of the

judges own view on the facts.

TOOHEY J:  You may be making too much of that sentence perhaps,

Mr Zelestis. Is His Honour really saying much more than, 11I accept that the evidence was capable of

being·regarded as establishing that the respondent's

general reputation was undoubedly severely

was damaged 11 and I do not see that so much as a	prejudice and likewise that his business reputation
finding by Mr Justice Brinsderr,. 1:,ut rather an
acceptance of what the evidence amounted to.

MR ZELESTIS: With respect,Your Honour, that is to read it

very beneficially for a number of reasons. Firstly

because His Honour never stated the test; never

said we must assume that the jury has found the

case at its highest and secondly, His Honour has

drawn a distinction between the severity of the

effect on the general reputation and on the business

reputation and has not really given a reason why the

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jury could not have found that the effect on

the business reputation was at least as severe

as that on the general reputation. So His Honour

does not express it in terms of having regard to

the evidence and then identifying the evidence.

The jury could not have found more than some measure

of prejudice to the business reputation. The remark in its terms is plainly, we would say with respect,

a remark that reflects His Honours view, and the

point is that if you go to the evidence you cannot
find anything which would justify saying that the
general reputation was severely prejudiced, but

the business reputation was less prejudiced. It

was after all a libel which went to the heart of

his business, and as His Honour the Chief Justice

emphasized-and indeed Mr Justice Brinsden recognised -

much of the evidence of the applicant as to the

effect upon his reputation and upon himself was

not challenged in cross examination. So it was

hardly a case in which one could find any explicit

basis for saying that the jury could have found an

undoubtedly severe prejudice to the general

reputation, but only some measure of prejudice to
the business reputation. A jury, we would say

with respect, could easily nave found that the

great prejudice was to the business reputation and,

indeed,we would say that it is for that reason that

such a high award was found in this case.

And we say that pages 117 to 118 are the

critical pages of His Honour's judgment, because it

is only there that His Honour attempts to explain

why, in His Honours view, the award was excessive

and His Honour uses that as a shorthand expression·

for the test emerging from the authorities to·

which he has referred and we say, with respect, that

that has led him into error, because by referring to

it in a shorthand way and not stating the test in

the first instance, His Honour has been led into

doing what it might be appropriate to do if there

had not been a jury verdict and His Honour should have

at all times stated and kept firmly in mind the

position that he had to consider what was open to

the jury, not what His Honour thought was a proper

conclusion to reach, but what the jury could have

reached. This was not a cas~ Your Honours, in our

respectful submission, where the verdict can be

described as an"impossible"one, to pick up the

language sited by the Chief Justice at page 92,

borrowed from a decision of the House of Lords in

1918 in BAMBURY V BANK OF MONTREAL. It is not a

case where a million dollar award was given and
one could say, without knowing anymore about it, that it

was impossibly large, and really Mr Justice Brinsden

does not seem to put the case on that basis either.

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He does not seem to conclude that it is in the category of case where it is just impossibly

outside the range that one can conclude that it

was an error.

DEANE J:  Except that is no~ so~ in that His Honour expressly

defines the test by rererence of Mr Justice Havers in LEWIS V THE DAILY TELEGRAPH and then puts it in his own words, having regard to all the circumstance

of the case, the damages are so excessive that

no 12_men could reasonably have given them. And

Justice Kennedy catches up that point and stresses

it at page 120:

no sensible jury, properly directed, could

have reached the result which this jury did -

MR ZELESTIS:	Yes.
DEANE J:	I mean, what you are really saying is that we

should disregard what Their Honours said.

MR ZELESTIS:  With respect, n~ Your Honours. We are saying

two things really. There are some cases where, to

use the language of the House of Lords, the verdict

is an "impossible" one. It is not only excessive,

it is impossibly excessive. On any view, on a

superficial view, the amount awarded is just out

of all reason. It is not that kind of impossible case

and with respect, we adopt what the Chief Justice

said in that regard. The test, of course, is whether the award was so large that no reasonable jury could

have given it. His Honour has used the word

excessive as the label to pick up that test, but then
His Honour has sought to examine the facts using his
own view of the facts, rather than the views of

the jury.

DEA.i.""l"E J:  I follow that argument, but all I was suggesting to

you was that when you pass from that argument to talk

about not being obviously and His Honour says

"grossly excessive", not excessive, you are really

getting into the area of whether the Chief Justices

impression or the impression of the majority was right

as to what was open within the realms of what 12

reasonable men or women could reasonably do.

MR ZELESTIS:  Yes. We say, and of course with respect, it is

necessary for us to do that, because if His Honour

erred in the way we contend he erred, but it was

an impossible verdict, then of course it is not

a fit case for special leave and indeed no appeal

could succeed, but we make the point that

His Honour the Chief Justice, in our respectful

submission, was correct in saying this was not an

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impossible verdict. Just looking at the nature

of the case and the amount that was awarded, one
would not say irmnediately this is an impossible

award.

McHUGH J:  But is it not the problem that you face, that an

award of damages is really very much a matter for

the local cormnunity, the jury and the judges.

Speaking with a New South Wales background I must say I would not hesitate to dismiss an appeal

against this award. In fact I doubt if it

would have been	appealed against in New South
Wales.	But that is a very different matter altogether

from seeing what the Full Court of this State think

about it. They are the judge.....	by the standards
of the cormnunity.	No reasonable jury could interfere
with it.	Now unless you can point to some error of

principle, it is very difficult,is it not, for this

Court to interfere.

MR ZELESTIS: With respect, Your Honour Mr Justice McHugh,

it would be right if His Honour Mr Justice Brinsden

had applied the right principle, then we would

be stuck with the difficulty that there is no

necessary uniformity throughout Australia in matters

such as this, but in our respectful submission, for

the reasons we have advocated, His Honour has slipped

over the relevant principle at this critical part of

his judgment because he has not ever said that he

should make this assumption and none of his expressions

when he comes to deal with the facts are cast in

terms of it. It would, with respect to His Honour,

be a very beneficial construction of his judgment to

say that that is what His Honour meant throughout.

He uses expressions such as "I would'; which indicate

his own view and he makes cormnents without showing

that there was an alternative view open to the jury

and without referring to any of the evidence.· If

His Honour was going to say that that view was not open, His Honour, with respect, should have referred

to the evidence, and said, "Well this evidence would

not have justified that view". It is more in the

nature of His Honour making cormnents of his own,

having considered the evidence. It is not what would be required if one was going to say that the evidence

did not justify findings this high and with respect,

it is a very important test to maintain that the jury

whose findings of fact cannot be scrutinized, ought

to be assumed to have made all relevant findings in

favour of the plaintiff when the award is challenged

as being excessive. Those are our submissions.

DEANE J: Yes, Mr McPhee.

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Coyne

MR McPHEE: 

May it please the Court, we think that the

statement of the principle by·my learned
friend as outlined on page 2 overstates it

slightly and we ~imply see it.that the Co~rt must .

assume that the Jury took. a view -of the evidence trost cons1.ste

with the size of the verdict which it returns and

that of course is based on the judgment of

Mr Justice Jacobs in PROGRESS & PROPERTIES LTD

V CRAFT, but of course that statement in itself

is only to be used either in the function of the

appellate court in examining the evidence to see

what findings were open to the jury and it does not

allow the jury, for example, or permit an appeal

court to allow the jury to delve into the realms
of mere speculation about what the jury might have

thought; what conclusion it might have jumped to

outside the evidence.

McHUGH J: 

The Full Court had to approach the matter on the

basis that the jury found every fact and drew every

inference which was reasonably open to it in favour
of the plaintiff on the evidence.

MR McPHEE: 

Yes.

McHUGH J: 

Including what was let go to the jury without

objection in summing up. There were various theories
of damages left to the jury without objection,were

there?

MR McPHEE:	I would not say entirely without objection,
but perhaps substantially without objection and considered as well as the need to examine the
evidence on findings and that is what I would call,
with respect, the principle of proportionality in these matters, as explained tn TRIGGELL V PHEENEY,
that the power of the courts to set aside· the -
verdict if, upon aI;t. .examination of the evidence, such
verdicts were considered unreasonable, and that there
must be a reasonable relationship between the wrong
done and the solatium.  .
TOOHEY J:	But how do you make that assessment? The jury can make it and does not have to explain how it made it, but when the matter reaches an appellate
of proportionality?  court, how does the judge approach the question
MR McPHEE:	I do not think we are at issue with the other side

when we say that the court will not substitute its

own views, but will come to a decision as to what evidence in the circumstances of the case. the jury could have reasonably awarded on all the

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But even that judgment as to what the jury could

have ordered will involve the appellate court

in some sort of value judgment at some stage as

to what is impossible; what is reasonable or
unreasonable. It has to come to a decision at some
stage as to whether the award is a reasonable solatium

for the wrong done.

McHUGH J: But when the court has got no substantial background

of comparable jury verdicts, the Court should be

very slow to interfere because of prima facie this

jurys assessment is the best evidence of what the

connnunity thinks about it, is it not? And it would
be different it you had a string of jury verdicts

over a period of time, but from what we were told

yesterday, jury verdicts are the exception in

defamation actions rather than the rule in

Western Australia, are they not?

MR McPHEE:  From my understanding, they are certainly not

connnon, but they are around and this particular
verdict, even as amended, was by far and away

largest award ever granted on a defamation action

in this State, but there were really only two

essential differences, in my submission, between

the judgment of the majority and the judgment of

the Chief Justice in dealing with this appeal.

The first one relates to the prospect of actual

earnings from the projects under consideration and

whether the loss of income that Mr Coyne may have

had, if those projects went through to fruition,

and whether that loss was caused wholly or substantially

by the libels or partly by the libels.

TOOHEY J:  Mr McPhee, would it be a correct exercise of the

appellate function in a case such as this for the

appellate court to look at the evidence, reach

conclusions as to what view the court takes of

that evidence and then to approach the question

of damages accordingly?_	Mr Zelestis's complaint,
it may or may not be well founded, is that what

has happened here is that Mr Justice Brinsderi .has

looked at the evidence, reached some conclusions

himself as to what that evidence warrants by way of

conclusion, without necessarily excluding some other

view that might be taken, and then the complaint

is that the court really is just simply substituting

its own assessment of damages for that reached by

the jury.

MR McPHEE:  I think in the appellate function,Your Honour,

there has to be some degree of that in working out

what the jury could reasonably have awarded and it

may be that the appellate court comes to a conclusion

that it would have awarded more or less than the

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jury, but that itself is not enough, but there has
to be a question of degree I suppose as to what

the extent of that difference is.

TOOHEY J:  But is not the brake that is put on the appellate

court the brake that is expressed in PROGRESS &

PROPERTIES LTD V CRAFT? In other words, the

appellate court must assume that the jury took a

view of the evidence most consistant with the

size of the verdict and if there is a view of the

evidence. perhaps more favourable than a member

of the appellate court might take, then the court

is not justified in substituting that alternative

view of the evidence for the purpose of deciding

whether the damages are unduly excessive or not.

MR. McPHEE:  Yes, quite so, but in a case where the matter

under discussion, which in this matter I am

referring to the prospects of earnings from the

projects,,if that was not a matter which was

open to the jury on the evidence and there was a

difference between the cour~ as here, as tD what was open

to the jury, then I suppose., in "deciding
the function of the appellate court, it is to come

to the conclusion as to what in fact was open to

the jury, and in doing that and coming to that

conclusion as to what in fact was open, giving

the most beneficial construction to the evidence

in the application of the principle referred to

by my friend. Now, in this case, in relation to

the matter of earnings from the projects, the
majority view was that there was no loss flowing from

the libels as a result of the non-progress of the

projects in question.

(Continued on page 18)

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McHUGH J:  But you have got to look at it in the general

has found that this widely circulated newspaper	context of this man's career. Here as the jury
that there was an imputation that he had
fraudulantly, improperly and without authority
incurred debts and liabilities on behalf of a
company or pledged their credit. Well, to vindicate
has reputation, why was not the jury entitled to
give him $150,000, particularly when the defendant
put on a plea of justification which failed? To the last moment the defendant was saying
that was true. I know what the argument was, but
the casewent to the jury with the defendant saying,
"Not only did we say he fraudulently and
improperly incurred debts, but it is true and we

• are going to prove it."

:MR McPHEE:	I appreciate that, Your Honour, of course, and I think one of the difficulties that the Full Court
had with ,it, the majority, in matching up that award of $150,000 against Citizen Finance with the award of $50,000 against the other defendant, Munro,
in relation to a later libel dealing with the same matters, in a more limited circulation paper, but
in a much more dramatic way, with headlines and
specific conunents and so on. Bearing in mind - - -

TOOHEY J:  That is a bit of a double-edged proposition. I

mean it may be that the award of damages in the

Munro case was too low.

:MR McPHEE: Well yes, I appreciate that possibility, but in

dealing with the matters that were available to the

jury here, I submit the majority of the Full Court

came to the view that for all matters that were

available to it, not including actual losses arising

from the non-proceeding of these projects, that

a substantial award was called for, bearing in

mind the matters that you have raised, Your Honour,

and that $50,000 was a substantial award, and

The question of damages here, as put by the applicant, there was nothing else to take it beyond that. is really in financial...... is in two hits.

Financial damages directly flowing from the projects

in which he was involved with the respondents and

a claim for a future, perhaps I could phrase it,

loss of earning capacity.

McHUGH J: Did the plaintiff put in at the trial the newspaper

coverage of the trial and the defence of justification

or anything of that nature? Was that done in this

case?

:MR McPHEE:  No, I do not think it was. And I think they are the two differences: ·the question of whether or not

PIT2/l/CM	18	25/10/89
Coyne

there was a loss flowing from the failure of the projects or the libel and the difference between the majority and the Chief Justice as to matching

up the two awards,as to whether they can be

reconciled. In looking at those differences the majority, as was the Chief Justice, were

applying what I would respectfully submit were

settled principles and if this application were

to succeed it would simply be this Court substituting
its own view of the evidence for that of the Full

Court.

'IOOHEY J:  Not its own view, but - - -

MR McPHEE: Sorry. Its own view as to what the jury could

• reasonably have awarded, I think is the proper way

of putting it. And to do that it must examine the

evidence of the particular case, the facts of the
case. And in those circumstances it is not, in
my submission, a proper case for special leave.

If I could just close my submissions by talking for

a moment about my friend's suggestion that

His Honour Mr Justice Brins.den did not mention this

principle about the beneficial construction of the

evidence. Well, it is true that he did not in so

many words, but in my submission the application

of that principle must be taken into the operation

of the LEWIS V DAILY TELEGRAPH principle as

Your Honour Mr Justice Deane mentioned yesterday.

DEANE J:  Or it .comes more clearly in His Honour's own

statement relying on GATLE~ . That is no 12

men could reasonably have given them,which

obviously implies if a finding was reasonably open

you take it as having been made.

MR McPHEE:  Yes. In my submission that is the short answer

to that point. His Honour dealt with the matter

using all the appropriate and settled tests as did

Mr Justice Kennedy.	If I could just say one further
thing. In relation to the question of losses

flowing from the projects, and that is perhaps a

difference between the judges as to what findings

were open. it appears, and I do not wish to make

too much of it, but it appears the applicant has

conceded in this application that there was no

evidence upon which such losses were available and is on page 138:

while there was no evidence that the loss

of remuneration expected from the projects

was caused by the libels Brinsden J failed

to recognize that there was evidence from which

the jury could have found a causal connection

between the libels and the applicant's

general financial loss -

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So the way I understand the applicant approaches

that is the error really was not giving enough

to the future earning capacity, if I could call

it that, caused by this wrong. And it is in

that context, in my submission, that the connnents

of His Honour Mr Justice Brinsden as to the history
of Mr Coyne in property development and promotion

are particularly relevant and notwithstanding that,

His Honour allowed in his judgment of the matter as

to what the jury could have allowed, a reasonable

allowance for loss of future earning capacity,

what he described as the loss of business reputation.

Unless Your Honours have anything further, they

are my submissions.

DEANE J:  Thank you,Mr McPhee. Yes, Mr Zelestis.

MR ZELESTIS: With respect to my learned friend, Your Honour,

he reads too much into the concessions in that

paragraph in the application. What is being made

there is, with respect, the narrow point that

Your Honour Mr Justice Deane put to me, and that

is that strictly speaking remuneration from the

projects in the sense of Citizen paying this man

a commission ,	the loss of that was not the result
of the defamation.	The loss of that was because

finance was not available, but in the more general

sense identified by His Honour the Chief Justice,

the loss of remuneration from the projects was a

live issue, because there was evidence that there

was an alternative arrangement in place which, on

one view, the jury could have found ·foundered because of the

defamations. I come back to Your Honour Justice Deane's

point about His Honour Mr Justice Brinsden's reference

to the test in GATLEY at page 116. With respect,

the burden of the test as it is there stated is

to focus upon the amount of the damages and it does

not focus attention upon what is the highest at

which the case could have been put and we say, with

respect, that stating the test in that way does not

give one any assurance that thereafter the judge

has in mind that he must approach the question on

the basis of what is the highest the jury could have

put the case.

We go further and say that when. you read what follows

it is plain that His Honour's thinking has not been
along those lines, because His Honour has never
sought to say, "Well", for example, "I might not

can be put at the highest and what His Honour does instead is to use words which reflect an

have found that, but a jury could have", and what

expression of private opinion. So one might perhaps

have read the judgment differently had His Honour

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expressed his comments on the facts differently

but the way in which he has expressed his

comments on the facts we say, with respect, point

up the fact that His Honour has not applied the

correct principle. I cannot advance the

application any further.

DEANE J:	Mr Zelestis,you may have your leave.
MR ZELESTIS:	May it please the Court.

AT 10.20 AM THE MATTER WAS ADJOURNED SINE DIE

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