Coyne v Citizen Finance Limited

[1989] HCATrans 250

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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

Application for special

leave to appeal

DEANE J
TOOHEY J

McHUGH J

Coyne

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 24 OCTOBER 1989, AT 4.25 PM

Copyright in the High Court of Australia

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MR C. L. ZELESTIS, ~C:  May it please Your Honours, with

my learne friend, MR R. BOWER, I appear for

the applicant. (instructed by Corser and Corser)

MR M. J. McPHEE:  May it please the Court, I appear with

my learned friend, MR M. G. M. BARTER, for the

respondent. (instructed by McPhee & Meyer)

DEANE J: Gentlemen, we propose to sit until half past four,

when we will adjourn until half past nine in the morning. Yes, Mr Zelestis.

MR ZELESTIS:  May it please Your Honours. This application,

Your Honours, arises out of the majority decision	of the Full Court to uphold an appeal in which a
jury '-£assessment of damages in a defamation
action was alleged to be excessive and the upshot of the appeal was that the damages award by a
jury against this respondent of $150,000 in
a case in which damages were also awarded against
its director in the sum of $50,000 _ were reduced
to an award of $50,000. The application for
special leave is put on the administration of
justice ground in this case, our contention being
that the decision of the majority was wrong and it was wrong in principle and we say that the error
in principle should not be allowed to attract the force of remaining undiminished by not being
overturned. We submit, Your Honours, that this is
not a case in which there is merely a challenge
to the way in which a principle was applied. We
are not saying that Their Honours were wrong in the way they applied the principle. Our submission
is that the majority failed to recognize or apply
the relevant principle altogether and it is for
that reason that we say special leave ought to be
granted to ensure that the case is decided
according to principle.

We go further and say that His Honour

the Chief Justice who dissanted did plainly apply

the relevant principle and applying it,he dismissed

the appeal.

TOOHEY J: Mr Zelestis, how connnon are juries in defamation

actions now in this State?

MR ZELESTIS: Defamation actions remain fairly unconnnon,

Your Honour, but in. recent times juries

have been used. I am bound to say defamation actions -
one does not see many trials of them, but the

question of principle, Your Honour, is nevertheless a very important question of principle that applies to all jury assessments of damages.

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We, of course, submit that the principle is not in dispute and the relevant principle is that

when one considers a. jury's assessment of

damages the Court adopt the words of

His Honour Mr Justice Jacobs in PROGRESS AND

PROPERTIES V CRAFT set out in paragraph 3 of

our outline, the Court must assume that the jury

took a view of the evidence most consistent with
the size of the verdict which it returns and it

follows that in a case such as the present, where

the challenge is to excessiveness, the contention

being that the jury went too far, the Court must

assume that all issues of fact were found in favour

of the applicant plaintiff. That is all issues

upon which there was some evidence which could

sustain a finding in favour of the plaintiff

applicant. We say, as I have said, that that is not a principle that is in dispute, but that the High Court ought to intervene in a case such as

the present where the principle is simply not

mentioned and in substance - and completely not

applied by the majority in the Full Court.

Now it is necessary to say something about the

nature of this case in order to understand the

error which was made. The applicant was in the

business of a land developer. There were two
projects in the south-west of Western Australia

in which he was involved.

DEANE J:	Mr Zelestis, you can assume that we have read the
judgments in the Full Court.

MR ZELESTIS:  Thank you,Your Honour. There were a number

of grounds of appeal which were directed to the

trial judges summing up which failed. One of the

important ones concerned the question whether it

was proper to leave to the jury evidence of or in

effect a claim for damages for financial loss.	The
case which was put against the applicant was that
he had not pleaded a case of special damage.	The
jury should have been told that no damages on

account of financial loss could have been awarded.

Now the Full Court unanimously dismissed that ground

of appeal holding that in a case where the nature

of the defamation was such as to be likely to cause

business or financial losses and where they were

claimed in a general way, a case in a general sense

could be put and left to the jury. Now

His Honour the Chief Justice at pages 68 to 69 and
72 to 73, 76 to 78 and Mr Justice Brinsden at

pages 114 to 117 spell out the nature of the

evidence of financial loss which was put forward by

the applicant in this case and, as I say, the

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Full Court unanimously held that in this case

the trial judge was correct in leaving it open

to the jury to take into account in their general

assessment of damages some element of business

or financial loss.

That was the background to the. final question

which arose and that was whether the jury's verdict
was excessive to use the shorthand formulation

adopted in some of the judgments. Now we acknowledge

that all of the members of the Full Court applied

the correct principle in dealing with

circumstances which interfere with the juryls
assessment, they all appreciated that one could

only inte~fere where it could be said that no

reasonable jury properly instructed could have
reached such an award and that was loosely described

as being an excessive award. But the Chief Justice

correctly noted that all material facts had to be

assumed as having been found in favour of the

applicant and His Honour makes this point, albeit

briefly, at page 87, line 5, where he says:

Upon the assumption that the jury accepted all of the evidence of the respondent

concerning the prospects of success of the

projects -

et cetera. His Honour made the point again in

a supplementary judgment which dealt with the

assessment of the damages once the Full Court had

granted leave to amend the notice of appeal and

had considered the damages afresh themselves and

that is at page 122, line 6 to 7 His Honour

the Chief Justice said:

In my view, unless the Gourt is persuaded that

the jury's award of damages can only be

explained by inferring that they made findings

of fact unsupported by the evidence, it

remains necessary to assess the damages on the

basis of the findings which it was open to
the jury to.make.

We say, with respect, that His Honour once again applied the principle which we say is at the heart

of this application. Now Mr Justice Kennedy

delivered reasons only agreeing with those
delivered by Mr Justice Brinsden, neither in his

substantive reasons for allowing the appeal in

part or in his reasons concerning the assessment
did His Honour Mr Justice Brinsden mention this

principle.

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DEANE J: Except it is implicit in the LEWIS V DAILY TELEGRAPH

test,is it not?

MR MCPHEE: :Well only - in the passages that His Honour

has cited with respect Your Honour, only

implicit. There are passages in LEWIS which
we have referred to in our list of authorities

in which it is made explicit.

DEANE J:	But if a finding of the jury was reasonably open
and would stop the verdict being grossly excessive, the LEWIS V DAILY TELEGRAPH test will not be
satisfied.
MR MCPHEE:	No, it will not be satisfied, but formulate

the test in terms of "you cannot interfere unless no reasonable jury groperly instructed could have reached the verdict', tends to focus attention

on the quantum and that was - - -

DEANE J:	I follow what you are saying, but what I think you
might direct some attention to first thing in the
morning is a distinction between saying,"A judge
has substituted his own findings a fact" and saying
"The judge, in the course of his judgment, has made
some statements about the facts." You gather the -

MR MCPHEE:  Very well. Yes, I take Your Honour's point.

DEANE J:	Mr McPhee, have you written submissions?
MR MCPHEE:	Yes, I have,Your Honour,and they have been filed.

DEANE J:  Thank you. In that case the Court will adjourn

until half past nine tomorrow morning.

AT 4.35 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 25 OCTOBER 1989

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