Coyne v Citizen Finance Ltd

[1991] HCA 10

HIGH COURT OF AUSTRALIA

Mason C.J., Deane, Dawson, Toohey and McHugh JJ.

COYNE v. CITIZEN FINANCE LTD

(1991) 172 CLR 211

18 April 1991

Defamation

Defamation—Libel—Whether excessive—Jury trial—Appeal against award—Function of appellate court—Plea of justification—Compensatory damages—Aggravated damages—Supreme Court Act 1935 (W.A.), ss. 42, 59(1), (5)—Rules of the Supreme Court 1971 (W.A.), O. 63, r. 10.

Decisions

MASON C.J. AND DEANE J. The question for decision in this appeal is whether the Full Court of the Supreme Court of Western Australia (Brinsden and Kennedy JJ.; Malcolm C.J. dissenting) was in error in setting aside an award of $150,000 damages made by a jury in favour of the appellant ("the plaintiff") in an action for defamation against the respondent company ("the defendant"). Each member of the Full Court thought that the damages exceeded the amount which he himself would have assessed as appropriate to the circumstances. The difference between their Honours was that the Chief Justice dissented from the conclusion of the majority that the amount awarded was so excessive that the case was a proper one for the intervention of the Full Court.

2. A decision by an appellate court that a jury's award of damages for defamation should not be allowed to stand necessarily involves an element of value judgment. Such a decision may properly be influenced by local community circumstances and standards about which a member of a State or Territory Supreme Court will ordinarily be much better informed than a member of this Court. The question for this Court on an appeal from the Full Court's decision in such a case is whether the Full Court fell into error in reaching the conclusion that it did. In resolving that question, it is important that this Court give due weight to the views of the local Full Court about the permissible range of damages in the circumstances of a particular case before superimposing its own views. It is also important to identify with some precision the question which arose for the determination of the Full Court.

3. One can point to statements of authority in the reported cases to the effect that an appellate court should be reluctant or extremely slow to interfere with a jury's assessment of defamation damages for the reason that the quantum of such damages is a matter which is particularly appropriate for the determination of a jury (see, e.g., Broome v. Cassell and Co. (1972) AC 1027, at p 1065; Kornhauser v. Fairfax and Sons Pty. Ltd. (1964-65) NSWR 199, at pp 209-210). Such statements, which are often coupled with the potentially misleading comment that damages in defamation proceedings are "at large", seem to us to be essentially unhelpful and of dubious validity. In the context of present circumstances in this country where judges commonly assess defamation damages (see below), there is no compelling reason why the assessment of damages for defamation should be seen as falling within the exclusive or special competence of a jury. Indeed, there is something to be said for the view that the assessment of damages in defamation proceedings is sometimes inappropriate for a jury by reason of the difficulty of ensuring that the jury understands and observes the essential requirements of the sometimes complicated rules governing the nature and limits of the damages which can properly be awarded in such a case. More important, such statements are likely to distract attention from the duty of an appellate court entrusted with jurisdiction to hear appeals from defamation verdicts to exercise "control in libel actions over juries' verdicts as to damages, and (to) set them aside if, on consideration of all the circumstances of the case, it is convinced that the amount awarded is unreasonable" (per Dixon, Williams, Webb and Kitto JJ., Triggell v. Pheeney (1951) 82 CLR 497, at p 516, quoting McArthur J. in Falcke v. The Herald and Weekly Times Ltd. (1925) VLR 56, at p 75). In that regard, the "rule when a court of appeal is asked to set aside a verdict of a jury on the ground that the damages awarded are excessive is the same in libel actions as in any other cases" (at p 516). In such cases, the question for the appellate court is whether the amount awarded is so high or so low that it is outside the range of what could reasonably be regarded as appropriate to the circumstances of the case. If the appellate court is of the view that that question should be answered in the affirmative, there can be no question of reluctance to intervene. The proper performance by the appellate court of the functions entrusted to it will require that it intervene to prevent miscarriage of justice. It is true that the somewhat unprincipled common law rules relating to the nature and limits of defamation damages may, in cases in those jurisdictions where exemplary or punitive damages are still available, make the task of the appellate court in reviewing a jury's award an unusually difficult one. The reason for the difficulty is that the interaction of sometimes competing notions of compensation, vindication, retribution and even deterrence may give rise to a wide variety of possible components of the jury's overall award. Even in such cases, the inability to identify specific components will not absolve the appellate court of the responsibility of determining whether the overall award is within the limits of what could reasonably be regarded as appropriate in the circumstances of the particular case. However, the present case involved no such extraordinary difficulty since, as will be seen, the jury were required to determine only the appropriate amount of damages to compensate the plaintiff for the injury to his reputation.

4. In a case where there is no question of punitive or exemplary damages or of the inflation of damages to the minimum amount necessary for purposes of vindication, defamation damages are confined to what can fairly be regarded as compensation for injury sustained. As Diplock LJ. pointed out in McCarey v. Associated Newspapers Ltd. (No.2) (1965) 2 QB 86, at p 107, the injury sustained by the defamed person may be "classified under two heads: (1) the consequences of the attitude adopted towards him by other persons as a result of the diminution of the esteem in which they hold him because of the defamatory statement; and (2) the grief or annoyance caused by the defamatory statement to the plaintiff himself". The injury sustained by the plaintiff may, in some circumstances, be aggravated by subsequent conduct (see Triggell, at p 514). Such aggravation does not, however, alter the compensatory character of the damages which may properly be awarded in such a case. Some injury to reputation - as distinct from specific pecuniary loss - is presumed to flow from the publication of the defamatory material. The extent of that presumed injury to reputation, if it is not rebutted, will depend on the circumstances of the case. If specific pecuniary loss (or other special damage) is alleged, it should be specifically claimed. Any such specific pecuniary loss must be affirmatively proved by a plaintiff in the ordinary way, that is to say, on the balance of probabilities.

5. In the present case, there was no question of punitive or exemplary damages and no specific pecuniary loss was claimed or proved. The damages awarded obviously far exceeded any minimum amount necessary for the purposes of vindication. That being so, the Full Court of the Supreme Court was under a duty to intervene if it appeared to their Honours that the award of $150,000 in the plaintiff's favour (viewed in the context of the $50,000 damages awarded in the associated action against Mr. Munro) was not capable of being reasonably seen as appropriate compensation by way of general damages for the injury sustained by the plaintiff (i.e. personal grief and annoyance and the overall consequences of any effect on his personal and business reputation) as a consequence of the publication of the "notice" in The West Australian newspaper and any subsequent aggravating conduct of the defendant.

6. The reasoning which led the majority of the Full Court to decide that the jury's award of $150,000 was so excessive that it should not be allowed to stand is contained in the judgment of Brinsden J., with whom Kennedy J. agreed on that aspect of the matter. Their Honours appreciated that the jury's award should stand unless it exceeded the maximum amount which could be reasonably awarded by a jury acting on the evidence and in accordance with the law. Thus, Brinsden J. identified the "test which must be applied to determine whether an appellate court should intervene" as being that expressed by Havers J. in Lewis v. Daily Telegraph Ltd. (1963) 1 QB 340, at p 410, namely, 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" (see Munro v. Coyne (1990) WAR 333, at p 361). Kennedy J., by way of supplementary comment (at p 363), stressed that his decision on the question of damages was based on the considered view that "no sensible jury, properly directed, could have" awarded $150,000 damages in relation to the claim against the plaintiff. Their Honours' ultimate decision that the jury's verdict was "grossly excessive" (per Brinsden J. at p.361) was based upon their conclusions about the effect of the evidence. It is convenient to set out those conclusions in summary form. We do so in the following two paragraphs, to no small extent in the words of Brinsden J. (see Munro v. Coyne, at pp 361-362). Their Honours plainly approached the evidence on the basis that they should accept the view of it which was most favourable to the plaintiff. It can be said at once that, on the basis of that approach, their conclusions about the effect of the evidence were, in our view, correct.

7. The plaintiff suffered great distress and had endured considerable "vilification" as a result of the publication of the defamatory notice in The West Australian newspaper. The published notice carried an imputation of fraud. There were "circumstances of aggravation in that the plea of justification was maintained with a continued refusal to acknowledge that the (plaintiff) had been authorised to act on behalf of the companies". The injury to the plaintiff "was not only an injury to his reputation as such but also an injury to his business reputation, which it (was) claimed was that of a property developer, promoter and marketer". His "general reputation was undoubtedly severely prejudiced by the libels". So "to some measure ... was his business reputation".

8. On the other hand, examination of the plaintiff's background history made clear that that history was "scarcely an extensive history of being a property developer, promoter and marketer". The plaintiff made no claim "by way of special damage". Nor was there any evidence of actual financial loss caused by the publication of the defamatory material. It is true "that the (plaintiff) may have received considerable remuneration had the Pelican Point and Binningup projects gone on to completion as envisaged by the interested parties ... but it did not proceed and that was because money to finance it could not be obtained". The plaintiff's "loss of this remuneration was in no way the result of the libels".

9. It should be noted that, as Brinsden J. recognized, there was a single piece of hearsay evidence to the effect that "one party with whom (the plaintiff) wished to do business was informed by a local authority not to approach that local authority with (him)". The evidence did not, however, indicate whether, accepting that hearsay evidence, any reluctance of that particular local authority to deal with the plaintiff had been caused by the many disappointed expectations resulting from the collapse of the projects due to lack of finance rather than by the publication of the "notice" in The West Australian. Otherwise, there was no evidence at all that any subsequent unemployment had been caused by the publication of the defamatory notice.

10. There is no material before the Court in relation to past defamation verdicts in Western Australia. We were informed that there have been few such verdicts. Be that as it may, it would seem clear that Western Australia has so far been spared what has occurred in some other parts of this country where it is a common perception that the stop writ and the effect of extravagant verdicts have combined to constitute an increasing threat to adequate and informed public discussion of matters of legitimate concern (see, e.g., the comments in (1990) 64 Australian Law Journal 311 and cf. (1990) 64 Australian Law Journal 807) and where the absence of any apparent correlation between the quantum of the amounts awarded as damages for defamation and the injury actually sustained has even led to the suggestion that the extraction of money by a public figure by way of settlement of a defamation action could constitute a sophisticated form of corruption (see Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321). In these circumstances, the members of the Full Court, in considering whether the damages awarded were excessive, ought to have been - and, no doubt, were - conscious of the need to ensure, both in justice to the parties and in the public interest, that defamation verdicts are kept within the limits of what, having due regard to the importance of reputation and privacy, are capable of being reasonably seen as appropriate to the circumstances of the particular case. In determining what those limits are, an appellate court in this country is, in our view, entitled to take account of the range of damages which it has laid down, or accepted, as appropriate to other kinds of injuries. As Diplock L.J. commented in McCarey (at p 109):

"I am convinced that it is not just (and I do not think that it is the law ...) that in equating incommensurables
when a man's reputation has been injured the scale of values to be applied bears no relation whatever to the scale of values to be applied when equating those other incommensurables, money and physical injuries. I do not believe that the law today is more jealous of a man's reputation than of his life or limb. That is the scale of values of the duel. Of course, the injuries in the two kinds of case are very different, but each has as its main consequences pain or grief, annoyance or unhappiness, to the plaintiff."

On that approach, the members of the Full Court in the present case were entitled to take account of the fact that the damages of $150,000 awarded by the jury as compensation for the injury to the plaintiff caused by the publication of the formally worded "notice" and the subsequent aggravating conduct of the defendant exceeded what would be accepted in Western Australia as falling within the limits of what might reasonably be seen as appropriate compensation for the pain, the suffering and the loss of the ordinary amenities and enjoyment of life sustained by a person who has been made a paraplegic by the negligence of a defendant (see, e.g., Clark v. Kramer (1986) WAR 54, at pp 58-59). Indeed, the total damages ($200,000) which the jury awarded the plaintiff in the two associated actions correspond with the amount awarded by the Full Court of the Supreme Court of Western Australia in a recent case as appropriate compensation for the pain, the suffering and the loss of amenities involved in the devastation of the life of a previously active young man who had been made a tetraplegic with "no lower limb function and grossly limited upper limb function", no normal bladder or bowel control, and mobility so restricted that he even required the assistance of another person "to get from a lying to a sitting position" (see Farr v. Schultz (1988) 1 WAR 94, at p 96; and cf., in this Court, Sharman v. Evans (1977) 138 CLR 563).

11. It should, perhaps, be mentioned that the view of Diplock LJ., that it is legitimate for an appellate court in considering an appeal against the quantum of a jury's award of compensatory damages for defamation to bear in mind the scale of values which it applies in dealing with appeals in cases of serious physical injury, was rejected by the English Court of Appeal (Lord Donaldson M.R., Nourse and Russell LJJ.) in Sutcliffe v. Pressdram Ltd. (1990) 2 WLR 271 (at pp 286-287, 296, 299-300). Examination of the judgments in Sutcliffe discloses that the main grounds for the rejection of Diplock LJ.'s approach were the differences in both the kind of injury and the basis of compensation in the two classes of case and the fact that, in England, the assessment of damages in defamation proceedings was exclusively a matter for a jury whereas the assessment of damages for personal injuries was exclusively a matter for judges. Whatever strength those grounds might have had in England, they are not persuasive in this country. As to the first ground, it is true that there are some significant discrepancies between the basis upon which compensation is assessed in the two classes of case: the ascertainment of the "real" damages in a defamation case may involve peculiar difficulty (see, e.g., Ley v. Hamilton (1935) 153 LT 384, at p 386) and may be complicated by considerations such as vindication and aggravation which are not present in the ordinary personal injuries case. An appellate court can, however, take account of such discrepancies. In so far as the difference in the kind of injury involved in the two classes of case is concerned, the above-quoted passage from the judgment of Diplock L.J. makes plain that that was something of which his Lordship was fully conscious. Its importance can be exaggerated in that the pain, suffering and loss of amenities of life in a serious personal injuries case will often comprehend mental strain and hurt to the plaintiff caused by the change in his or her reputation which may seem insignificant in the context of the direct effect of the physical injuries but which would, if it could be viewed in isolation, be at least comparable to that caused by an untrue allegation about lack of physical or mental capability or control. As to the second ground advanced by the Court of Appeal in Sutcliffe for rejecting Diplock L.J.'s approach, the clear distinction between assessment of damages in personal injuries cases by judges and the assessment of damages in defamation cases by juries has since become blurred in England as a result of the enactment of s.8 of the Courts and Legal Services Act 1990 (U.K.) which empowers the making of Rules of Court enabling the Court of Appeal to substitute for a jury's award of damages which it considers to be excessive or inadequate "such sum as appears to the court to be proper" in the hope that "where cases went to appeal, the Court of Appeal's decision would filter through to the trial court" (see the comments attributed to the Lord Chancellor (Lord Mackay) in The Law Society's Gazette, 21 February 1990, p 4). That clear distinction simply does not exist in this country where in at least some cases in all Supreme Courts other than that of South Australia (where civil juries have been abolished altogether; see Juries Act 1927 (S.A.), s.5), juries may assess damages for personal injury and where, in all Supreme Courts other than that of New South Wales, a judge assesses damages for defamation in the absence of some contrary order or election (see Rules of the Supreme Court 1971 (W.A.), O.32, rr.2 and 3 and Supreme Court Act 1935 (W.A.), s.42; Australian Capital Territory Supreme Court Act 1933 (Cth), s.14; Rules of the Supreme Court 1986 (Vic.), r.47.02; Rules of the Supreme Court 1900 (Qld.), O.39, rr.4 and 5; Supreme Court Rules 1987 (S.A.), r.75.01(2); Rules of the Supreme Court 1965 (Tas.), O.39, rr.5 and 6; Juries Act (N.T.), s.7; and cf. Supreme Court Act 1970 (N.S.W.), ss.85-89 and note that, in the absence of an order for a jury, a judge assesses defamation damages in the District Court of New South Wales under the District Court Act 1973 (N.S.W.)). Even if that were not the case, however, it seems to us that it would be quite wrong for an appellate court, entrusted with hearing appeals in both defamation and personal injury cases, to be indifferent to the need to ensure that there was a rational relationship between the scale of values applied in the two classes of case. The need for such a rational relationship is, of course, even more obvious in those jurisdictions (such as Western Australia) where, in the absence of an order for a jury such as that made in the present case, damages in all classes of civil action, including defamation, are assessed by a judge alone.

12. In the result, it appears to us that there are no grounds on which this Court would be justified in interfering with the decision of the majority of the Full Court that the jury's award of damages should not be allowed to stand. To the contrary, we respectfully agree with that decision.

13. The appeal should be dismissed.

DAWSON J. I agree with Toohey J. and have nothing to add.

TOOHEY J. On 22 September 1988, in the Supreme Court of Western Australia, a civil jury awarded the appellant damages of $150,000 against the respondent. Because of the differing roles assumed by the parties throughout the course of this litigation, it is convenient to refer to Mr Coyne as the "plaintiff" and to Citizen Finance Limited as the "defendant". An appeal by the defendant to the Full Court, as to both liability and damages, was successful on the question of damages - Brinsden and Kennedy JJ., Malcolm C.J. dissenting. Thereafter the defendant obtained leave to amend its notice of appeal so as to invite the Full Court to assess the damages to which the plaintiff was entitled. The Full Court, again by majority, assessed damages at $50,000. Before this Court the plaintiff seeks to restore the jury's award.

2. The damages awarded by the jury were high. Indeed, by the standard of defamation awards in Western Australia, they were very high. By far the greater proportion of defamation actions in Western Australia are non-jury actions. In its Report on Defamation, (1979), the Law Reform Commission of Western Australia said, at par.21.1: "It is very seldom that a jury is empanelled in a civil trial - at the most once or twice a year." The question for this Court is whether the Full Court was entitled to interfere with the award. To answer that question, something must be said of the background against which the award was made.
The defamatory publication

3. The plaintiff referred to himself in the statement of claim on which he sued the defendant as "a property developer, promoter and marketer". He described the defendant as a public company "engaged in business as a finance and investment company". The document on which the plaintiff sued was a notice published in the Public Notices section of The West Australian newspaper of 18 November 1987. The West Australian is a daily newspaper with a wide circulation throughout Western Australia and in the other States and Territories of Australia. The notice was in the following terms:
"WE CITIZEN FINANCE LTD, SUN SECURITIES LTD and COMMERCIAL
EQUITY CORPORATION LTD all of 412 William St, Perth, hereby give notice that Peter Anthony Coyne (Junior) of 2 Riviera Place, Binningup, WA is not and has never been an agent of the above named Companies and further take notice that the above named Companies are not responsible for any debts or liabilities incurred by Peter Anthony Coyne (Junior) and that he is not and has never been authorised to incur any debt or liability on behalf of the above named Companies or to pledge the credit of the said Companies. This notice was filed on behalf of the above named Companies by: Kay and Lafferty, Solicitors Level 3, 58 Ord St, West Perth WA 321 4534"

4. The significance of the term "filed" was not satisfactorily explained. Perhaps there is no satisfactory explanation; certainly it was not suggested that the document was or could have been filed in the office of Corporate Affairs or some such body. Nevertheless, it would not be unreasonable for the jury to have concluded that the intention of the authors was to convey the notion that the document was in some way "official".
The background to publication

5. It is necessary to explain how the notice came to be published. In 1985 the plaintiff began to work for Leisure Holdings Pty. Ltd. ("Leisure Holdings"), a company which was involved in the development of 900 acres of land at Binningup, north of Bunbury in the south-west of Western Australia, as an urban complex. It appears that Leisure Holdings and one of the companies associated with United Development Corporation Group Pty. Ltd. ("U.D.C.") initially were joint venturers in the development of the Binningup land, which was owned by two other U.D.C. companies, each as trustee for a unit trust. The principals of U.D.C. were Messrs Waller and Scott. The plaintiff was employed as a salesman and over a time he sold about thirty lots on a package basis, that is, with a house to be built on each lot and each with access to a proposed golf course and to other planned amenities. His enthusiasm for the project is perhaps borne out by his statement: "I was so convinced of the project that I bought a house down there myself".

6. Subsequently, Leisure Holdings contracted to buy out the other joint venturer's interest through the purchase of shares in the relevant companies. However, Leisure Holdings ran into financial difficulties and defaulted on the share purchase contract. Ownership of the land had remained with the two U.D.C. companies and a number of purchasers from Leisure Holdings were unable to obtain title to land. The defendant first became involved as a lender of money to a subsidiary of Leisure Holdings on nine of the lots; eventually, in April 1987, the proposal was that the defendant would be involved in the "taking over" of the whole of the remaining Binningup land by Sun Securities Ltd., through the "vehicle" of Commercial Equity Corporation Ltd. ("C.E.C."). Sun Securities Ltd., which shared the same offices as the defendant and appears to have been associated with the defendant, was to own 41.3% of C.E.C. The rather vague term "taking over" is used because the precise mechanics of the defendant's involvement do not seem to have emerged with great clarity at trial.

7. In April 1987 the plaintiff ceased to have any connexion with Leisure Holdings. From that time until the publication of the notice in The West Australian, he occupied an office in the same suite as the defendant in Northbridge, an inner suburb of Perth. The precise role of the plaintiff at that time is not easy to identify. In the course of his evidence he said:
"I was asked by Smith and Holmes (directors of the
defendant) - or was offered an office in the Citizen Finance building to actually work out of, to help them put together this particular sale and also the sorting out of these titles in relation to land that Citizen had the mortgages over." The reference to "this particular sale" is, I take it, a reference to the defendant acquiring the land at Binningup and selling individual lots. The relevant correspondence is not reproduced in the appeal books. The plaintiff's interest was in selling lots and earning a commission on the sales.

8. At about this time, that is, in March or April 1987, the plaintiff became aware of an area of land at Pelican Point, also near Bunbury. The land was owned by Ausean Consultants Pty. Ltd. ("Ausean") but Malaysian interests were involved and those interests were becoming impatient at the delay in developing the Pelican Point land. The plaintiff conceived the idea of bringing the Pelican Point land in with the development of the Binningup land. He said that this notion progressed to the point where Ausean entered into a contract for the sale of the Pelican Point land to him, with provision for him to transfer his interest to another at any time before settlement, allegedly to someone associated with the defendant. The contract was later the subject of novation; Euston Road Pty. Ltd., a shelf company purchased by C.E.C. and used as a vehicle for the purchase of the Pelican Point land, was substituted as purchaser. The plaintiff said:
"I was to receive a payment in relation to that. One was
like a success fee in relation to handing the project to them; one was in relation to a free carried interest in the project; and the other was in relation to management fees for the project." The plaintiff elaborated upon this statement by saying that he had spent $44,000 on the project and he was to be recouped by the defendant when it acquired the land; that he was to receive 15% of the net profit of the project as a "free carried interest"; and that he was to receive $10,000 a month for duties involved in "putting all the pieces together to make it a total development".

9. The plaintiff contended that he had been appointed project and marketing manager for the joint development of both the Binningup and Pelican Point land. Effectively, he began work as project manager from 2 October 1987. But, by this time summer was approaching, bringing the realisation that purchasers of lots would not be attracted unless the development had more to show. So attention was focused on grassing the golf course at Binningup as well as developing the land generally. During October and November 1987 John Green, who was the secretary of the defendant, made out cash or cheque payments for workers, from information provided by the plaintiff, who then passed the payments on to the workers concerned. By this time the defendant's financial troubles had worsened. It was unable to raise the money it required. Meetings of various interested parties were held. The defendant still wished to proceed with the project but only, it seems, in relation to the Pelican Point land. The plaintiff claimed he was told by Mr Munro, managing director of the defendant, to sack all the staff on the Binningup site.

10. The publication of the notice in The West Australian was triggered off in the following way. Early in November 1987, believing that he had authority to continue the development at Binningup, the plaintiff had authorised a company called Simto Australia ("Simto") to carry out earthmoving there. Mr Munro then told the plaintiff that "there would be no more money for Binningup". The plaintiff was anxious to keep Simto and others on the site. Simto became uncertain with whom it was dealing so it sent a facsimile communication to the defendant, in the course of which it referred to the plaintiff as someone whom it believed to be acting on behalf of the defendant. Munro became concerned that the plaintiff may have been dealing with other contractors on behalf of the defendant and others associated with the project. He instructed solicitors to prepare the notice which was published in The West Australian. The first the plaintiff knew of the notice was when a photocopy of the page of the newspaper, asterisked, was placed by someone on his desk at the defendant's office in Northbridge the same day.
The proceedings

11. The plaintiff issued two writs claiming damages for defamation. One is the writ with which this appeal is concerned. The other is a writ which he issued against Mr Munro, claiming damages by reason of a publication in the South Western Times on 26 November 1987, that is, just over a week after the publication of the notice in The West Australian. The publication took the form of a report headed:
"FIRMS DROP BOMBSHELL ON BIG S-W PLANS
'Coyne not our agent'". The report referred to, and substantially quoted, the notice published by the defendant, then contained some comments by Mr Munro, mainly directed towards repudiating any notion that the plaintiff ever had authority to represent the defendant, and concluded with a response by the plaintiff in defence of his position.

12. The two actions were heard together before a judge and jury. The jury was asked to answer several questions. In relation to the action the subject of this appeal, the questions were:
"1. Does the publication convey the meaning that:

(a) prior to 18 November 1987 Coyne had been improperly and without authority claiming to persons that he was an agent of Citizen Finance Sun Securities or Commercial Equity Corp.

(b) prior to 18 November 1987 Coyne had been fraudulently improperly and without authority incurring debts and liabilities on behalf of Citizen Finance Sun Securities or CEC or pledging their credit

or any other similar meaning defamatory of Coyne? 2. If the publication does convey those meanings or either of them or any other similar meaning defamatory of Coyne was it true in all material respects?

3. If the meanings were not true in all material respects what is the appropriate amount of damages to compensate Coyne for the damage to his reputation?"

To those questions the jury answered:

1. (a) Yes (b) Yes 2. No
3. $150,000.

13. In respect of the publication in the South Western Times, the jury was asked like questions and answered them in like manner, save that the damages awarded were $50,000. The defendant and Mr Munro each appealed to the Full Court and the appeals were heard together. In so far as the appeals attacked the trial judge's directions as to the defamatory nature of the publications, both appeals failed. Indeed Mr Munro's appeal failed entirely. As already stated, the defendant's appeal succeeded in relation to the quantum of damages only. The function of an appellate court

14. The function of an appellate court in reviewing an award of damages by a jury was discussed in Progress and Properties Ltd. v. Craft (1976) 135 CLR 651, a decision concerned with a jury award of damages for personal injuries. At p 672 Jacobs J., with whom Stephen, Mason and Murphy JJ. agreed, spoke of the approach to be taken to a verdict and judgment found by a judge sitting without a jury, as compared with verdict of a jury, and went on to say:
"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."

15. In Triggell v. Pheeney (1951) 82 CLR 497, Dixon, Williams, Webb and Kitto JJ. said, at p 516:
"The rule when a court of appeal is asked to set aside a
verdict of a jury on the ground that the damages awarded are excessive is the same in libel actions as in any other cases, viz., that the verdict should not be disturbed unless the amount is such that no reasonable body of men could have awarded it".

16. The principle that an appellate court interferes only when it appears that the jury has failed to perform its duty appears also in the judgment of Lord Wright in Mechanical and General Inventions Co. and Lehwess v. Austin and the Austin Motor Co. (1935) AC 346, at p 375, though the jury's verdict there went to the breach of an agreement relating to the licence of a patent. Lord Wright, at p 375, reviewed some of the earlier authorities and concluded:
"Thus the question in truth is not whether the verdict
appears to the appellate Court to be right, but whether it is such as to show that the jury have failed to perform their duty."

17. In the context of defamation awards, Lord Hailsham of St. Marylebone LC. said in Broome v. Cassell and Co. (1972) AC 1027, at p 1065:
"The first, and paramount, consideration in my mind is that
the jury is, where either party desires it, the only legal and constitutional tribunal for deciding libel cases, including the award of damages. I do not think the judiciary at any level should substitute itself for a jury, unless the award is so manifestly too large ... or manifestly too small ... that no sensible jury properly directed could have reached the conclusion."

18. These judgments place great emphasis on the special role of the jury and on the difficulties facing a challenge to its verdict, particularly when an award of damages for defamation is under attack. The fact that damages are at large in defamation actions, that is, that damages are not limited to the pecuniary loss that can be proved specifically, places the jury's assessment of such damages in a position which is not invulnerable but which nevertheless an appellate court is slow to disturb. Mention of the expression "at large" may be found in Triggell v. Pheeney, at pp 510, 516, in the judgment of Lord Devlin in Rookes v. Barnard (1964) AC 1129, at p 1221, and in the judgment of Lord Diplock in Broome v. Cassell and Co., at pp 1124-1125. In Paff v. Speed (1961) 105 CLR 549, at p 559, Fullagar J. spoke of the expression as "apt to be misleading", in the context of a personal injury claim. However, it does serve to point up what was said by Windeyer J. in Uren v. John Fairfax and Sons Pty. Ltd. (1966) 117 CLR 118, at p 151:
"Damages being at large, it became in time indisputable that
a jury could in all cases consider 'not only what the plaintiff should receive, but what the defendant should pay'." The powers of the Full Court

19. By s.42 of the Supreme Court Act 1935 (W.A.), a party to an action may seek trial by jury if there is a charge of fraud against the party or a claim in respect of one of the causes of action mentioned in the section, including "libel" and "slander", and, on such an application, the trial shall be by jury except in the limited cases mentioned. The same section confers on a court or a judge a discretion, in accordance with the Rules of Court, to order that any other action be tried with or without a jury. As noted earlier, civil juries are uncommon in Western Australia, even in defamation actions.

20. Section 59(1) of the Supreme Court Act provides that, in any cause or matter in which a verdict has been found by a jury or by a judge without a jury, "the Full Court may order a new trial or reference, or vary or set aside such verdict, or reduce the damages awarded". Curiously, there is no express power in the Full Court to increase the damages awarded but, no doubt, a power to reduce or increase may be spelled out of the words "vary ... such verdict". Section 59(1) has its origin in s.16 of the Supreme Court Act 1880 (W.A.). Appeals to the Full Court are dealt with in O.63 of the Rules of the Supreme Court 1971 (W.A.). An appeal is "by way of rehearing": O.63, r.1. On appeal the Full Court has "all the powers and duties as to amendment and otherwise of the Court, Judge or Master appealed from" (O.63, r.10(1)), including the "power to draw inferences of fact and to give any judgment, and make any order which ought to have been made, and to make such further or other order as the case may require": O.63, r.10(2). The Full Court may also order a new trial if "it shall appear to the Full Court that a new trial ought to be had": O.63, r.12(1).

21. The relevant statutory and rules provisions are cast in wide terms, as to both the powers they confer and the basis upon which those powers are to be exercised. I agree with Malcolm C.J.'s conclusion in the instant case that "the test to be applied in Western Australia in deciding whether to disturb the jury's award should be the same as that applied elsewhere in Australia and in England". The power in the Full Court to draw inferences of fact on appeal does not authorise the Court to act in a manner inconsistent with the approach enunciated in Progress and Properties Ltd. v. Craft. That limitation is supported by s.59(5) of the Supreme Court Act which permits the Full Court, on the hearing of an application for a new trial, to enter judgment for the party for whom a jury verdict should have been given at the trial, if the Full Court is satisfied:
"(b) that the verdict was one which a jury, viewing the

whole of the evidence reasonably, could not properly find".

The appeal to the Full Court

22. At the end of his judgment in the Full Court Brinsden J. said:
"I accept that the (plaintiff's) general reputation was
undoubtedly severely prejudiced by the libels and I would accept that to some measure so was his business reputation. There were also circumstances of aggravation, 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." It is of course necessary to bear in mind that his Honour's conclusion was reached after an examination of the relevant facts and law. Kennedy J. was of the view that both awards were excessive, but added:

"(T)hat is not the appropriate test. In the end for the reasons expressed by Brinsden J, I have concluded that no sensible jury, properly directed, 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."

23. As already mentioned, Malcolm C.J. dissented. His Honour's reasons culminated in the following statement: "In my view, particularly where the damages were at large,
it is not reason enough to set aside the award of damages of a jury in this Court that the judges of this Court consider that the award was too high or are left with the impression that the award is excessive and would themselves have considered a considerably lower award appropriate. The award can only be set aside if it is so excessive to be beyond the bounds of reason. In my opinion, the (defendant has) not succeeded in demonstrating that this was so."

24. Before the Full Court the jury's award was attacked as:
"(a) manifestly excessive, and

(b) outside the range of any reasonable award that might have been made to compensate the plaintiff for injury to his reputation and feelings".

In addition, a number of attacks were made on the trial judge's direction to the jury and the way in which he allowed the plaintiff's case to be presented. In summary, these complaints were as follows: 1. The trial judge directed the jury that the plaintiff claimed
to have been a successful man "before this" (a reference
to publication of the notice) and that "after this" he was "financially wrecked", thereby wrongly suggesting to the jury that its award could include an amount to compensate for financial loss which had not been pleaded or particularised and also thereby
wrongly suggesting that the publication was the cause of the plaintiff being "financially wrecked", when the failure of the project was the reason for any financial loss suffered by the plaintiff. 2. The trial judge erred in allowing the plaintiff to give detailed evidence of special damage by way of economic loss arising from both the Pelican Point and Binningup projects. 3. The trial judge erred in allowing the plaintiff's counsel to put to the jury, in his final address, as matters relevant to an award of damages, an entrepreneurial "finder's fee"; the range of awards made for crippling personal injuries; and that the jury could assess the effect of the defamation by the fact that thereafter the plaintiff had been dependent on social security and "hand-outs" from family and friends. 4. The trial judge should have directed the jury that the plaintiff
was not claiming economic loss and that any award should not include a component for economic loss; that in any event there was
no evidence of economic loss arising from publication of the notice; that no damages could be awarded for hurt or injury to reputation arising from cessation of the projects; and that the trial judge should have warned the jury that any comparison with
awards for personal injuries was entirely inappropriate and irrelevant.

25. Of course, we are concerned with the plaintiff's aim of restoring the jury's award. But it is of some importance to see the way in which the attack on damages was mounted in the Full Court in order to understand what prompted the majority to regard the award as so excessive that it should be set aside.

26. In dealing with the question of damages, Brinsden J. (with whom Kennedy J. agreed) said:
"There can be no doubt the evidence as given by the
(plaintiff), indicated he suffered in his personal and business reputation." His Honour also rejected the complaint that, because there was no claim for special damages, the jury was not entitled to award damages in respect of business reputation as well as general reputation. A decision of long standing, Ingram v. Lawson (1840) 6 Bing (NC) 212 (133 ER 84), and a recent decision, Andrews v. John Fairfax and Sons Ltd (1980) 2 NSWLR 225, cited by Brinsden J., are sufficient authority to justify the rejection. His Honour also saw nothing in the complaint that the trial judge allowed the plaintiff to go too far "to the extent of actually leading evidence of special damage without pleading it". His Honour said that the trial judge had made clear to the jury that there was no plea of special damage. By implication, Brinsden J. was saying that the jury was not likely to have been misled in that regard. I respectfully agree.

27. Later in his judgment, Brinsden J. repeated that the injury to the plaintiff was "not only an injury to his reputation as such but also an injury to his business reputation, which it is claimed was that of a property developer, promoter and marketer". His Honour then referred to the imputation of fraud found by the jury to be contained in the notice and to "circumstances of aggravation in that the plea of justification was maintained with a continued refusal to acknowledge that the (plaintiff) had been authorised to act on behalf of the companies. The (plaintiff's) feelings were badly affected by the defamatory material and he suffered vilification from those who read the material." In his evidence, the plaintiff described telephone calls made to him after publication of the notice. Asked what people were saying to him, he replied: "That I was a liar, a crook and a cheat."

28. What then persuaded the majority that an award of $150,000 was so excessive that it should be set aside? The answer appears to lie in the view Brinsden J. took of the plaintiff's work history and business activities before he became associated with the Binningup project, coupled with his conclusion that the Pelican Point and Binningup projects did not proceed because the necessary finance could not be obtained and that therefore the plaintiff's "loss of this remuneration was in no way the result of the libels". These matters are referred to in more detail later in these reasons. Brinsden J. said:
"I am left with the distinct impression that the total award
in these two cases of $200,000 is excessive." It is clear that his Honour was disturbed by what he saw as a disproportion between the two awards and thought it possible that the jury was making the defendant pay for the plaintiff's loss of business reputation arising from either or both of the publications. But, as his Honour acknowledged: "That ... is mere speculation." The award of damages against Munro is not in issue in this appeal and it would therefore not be right to measure one award against another. It is no more legitimate to say that, in the light of the award against Munro, the award against the defendant was too high than it is to say that, in the light of the award against the defendant, the award against Munro was too low.
Comments on the Full Court's approach

29. There are two comments that may fairly be made about a conclusion that any loss of remuneration by the plaintiff from the projects was due, not to the publication of the notice, but to lack of finance to enable the projects to proceed. The first is that there was evidence from the plaintiff, which the jury were entitled to accept and which for the purposes of this appeal it should be taken that they did accept, that other sources of finance were available and that it was by no means certain that the projects would have foundered in any event. The point was made by Malcolm C.J. when he said of the projects:
"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 (plaintiff) 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 (plaintiff'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." By that last sentence I take the Chief Justice to be saying that the size of the award indicated that the jury must have been satisfied that the plaintiff did suffer substantial loss, including financial loss, by reason of the injury to his reputation and that the financial difficulties encountered by the defendant were no answer to this loss.

30. The second comment to be made is that to focus too closely on the history of the Binningup and Pelican Point projects is to obscure the fact that what the plaintiff was claiming was damage to his personal and business reputation generally. It is no doubt true, as Brinsden J. pointed out, that the plaintiff's history of employment was "scarcely an extensive history of being a property developer, promoter and marketer". But, at the time of publication of the notice in The West Australian, the plaintiff was involved in property development and his prospects for participating in any commercial activity, at least in Western Australia and probably anywhere in Australia, were substantially damaged by a notice which carried an imputation of fraud in his dealings with the companies with which he was then associated. There was no claim for special damages so that a precise analysis of what the plaintiff might have earned from the projects was not only unnecessary but could have been misleading.
The hurt to the plaintiff

31. It must be remembered that, in the present case, the jury's answers to the questions put to it constituted a finding that the notice attributed to the plaintiff fraud in the conduct of his business affairs and that there was no truth in the imputation. The publication was therefore seriously defamatory of him in a way that went to his business reputation, as well as his personal reputation, and was therefore likely to have an impact on his capacity to earn. In argument, the defendant made a great deal of the fact that the plaintiff had not established a business reputation extending over many years and also of the fact that the project at Binningup was in financial difficulties, with the probability that the plaintiff would not have earned much from it in any event. These considerations are undoubtedly relevant but, as already noted, they tend to overlook the real hurt to the plaintiff. There was no claim for special damages and the plaintiff did not contend for a specific financial loss by reason of the defamatory publication. It is true that he argued that the project could have been salvaged and that other financial options were available to ensure its completion. But his real complaint was that publication of the notice and the publicity it quickly received made it likely that he would not be welcomed in any other business operation and that his means of livelihood had thereby been seriously diminished.
The question for determination

32. The central question is whether the award of $150,000 was so excessive, having regard to the undoubted blow to the plaintiff's personal and business reputation, as to warrant the Full Court setting it aside. The jury, in assessing damages, was not only entitled but bound to take into account such damage as had already accrued and damage likely to accrue thereafter by reason of the notice. See Ingram v. Lawson, at p 216 (p 85 of ER); Darley Main Colliery Co. v. Mitchell (1886) 11 App Cas 127, at p 145; Mallan v. AM. Bickford and Sons Limited (1915) SALR 47, at p 93. And, as Malcolm C.J. pointed out, adapting Ratcliffe v. Evans (1892) 2 QB 524, at p 533:
"In the present case the words complained of in both
publications were 'in their very nature intended or reasonably likely to produce a general loss of business'". As the Chief Justice also observed:

"While the evidence of potential financial rewards could not be described as strong, the jury were entitled to take into account that the (plaintiff) had been unemployed since the publication and, on the evidence, it was open to them to find that he was virtually unemployable as a land developer or land salesman. The evidence that suggested a local authority would not be prepared to consider any development application with which he was connected was very significant in this context."

33. As to the complaint that the jury may have approached the assessment of damages, using as a comparison awards in personal injury cases, the direction given by the trial judge in this regard was: "but, you know, that sort of figure can't help you in this case, because you don't know what facts lay behind that award". The trial judge might have expressed to the jury in stronger terms that awards of damages for personal injuries would not assist it in arriving at a proper assessment of the damages to which the plaintiff was entitled if the jury found him to have been defamed. But when his Honour's remarks on the subject are read in their entirety (they appear in the judgment of Malcolm C.J.), the jury could have been left in little doubt that no help was to be gained from such awards. From time to time, appellate courts have referred to awards of damages in serious personal injury cases as a means of contrasting what Mackinnon L.J. described in Groom v. Crocker (1939) 1 KB 194, at p 231, as "the frequent niggardliness of verdicts in cases of personal injury and the invariable profuseness in claims for defamation": see also Diplock LJ. in McCarey v. Associated Newspapers Ltd. (No.2) (1965) 2 QB 86, at p 109; Lord Hailsham in Broome v. Cassell and Co., at p 1071; Hutley J.A. in Andrews v. John Fairfax and Sons Ltd, at p 245. But that is not to say that the adequacy of awards in one type of case may be tested by reference to awards in the other. Windeyer J. said in Uren v. John Fairfax and Sons Pty. Ltd., at p 150: "It seems to me that, properly speaking, a man defamed does
not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money."

34. At the same time, so long as civil juries are available in defamation actions, there is much to be said for the judge offering guidance on damages, for instance by inviting the jury to consider the investment or buying power of any sum it is minded to award. Such comparisons are not directly relevant but they serve to remind the jury of the implications of money awards and of the need to maintain some proportion between the hurt to the plaintiff and the amount of damages. In this regard, see Lord Donaldson M.R. in Sutcliffe v Pressdram Ltd. (1990) 2 WLR 271, at pp 289-290; (1990) 1 All ER 269, at pp 283-284. Indeed, since appellate courts do review jury awards, there is much to be said also for the judge indicating to the jury the range of damages he or she thinks appropriate in the particular case, so long as it is made clear that the decision is one for the jury.

35. Returning to the present appeal, Malcolm C.J. went on to consider decisions in which jury verdicts in defamation have been considered by appellate courts. It will be necessary to return to this aspect but it is important to see how the Chief Justice concluded his review of the evidence:
" In the present case, taking into account that the
defamatory matter carried an imputation of fraud and that justification was pleaded and relentlessly pursued by both appellants before and during the trial of the action, I find it impossible to say that no reasonable jury could have awarded $150,000 damages against the (defendant) ... It was open to the jury to assess the credibility of the (plaintiff) and the various witnesses called for the defence. Upon the assumption that the jury accepted all of the evidence of the (plaintiff) concerning the prospects of success of the projects in which he was involved and the likely remuneration he would receive from them, it was open to the jury to assess the damages as they did. It was open to them to take a very unfavourable view of the (defendant's) conduct. I am not to be taken as indicating that the jury should have made such findings, but only that it was open to them to do so. Consequently, it is of no moment that my own subjective judgment would have led me to award a lesser amount." With respect, I agree entirely with the way in which the Chief Justice approached the matter.

36. Malcolm C.J. then considered differences in the circumstances surrounding the notice in The West Australian and the report in the South Western Times and factors which might have prompted the jury to award $150,000 in respect of one publication and $50,000 in respect of the other. But, as mentioned earlier in these reasons, the Munro award is not the subject of challenge in this Court. It is profitless to explore that aspect in this appeal.
Persisting in the defence of justification

37. There is a further matter that arose during the course of argument in this Court. In his charge to the jury, the trial judge encapsulated various arguments made by counsel for the plaintiff in his final address, including the alleged consequence of publication of the notice and the newspaper report. His Honour said:
"Mr Bennett (counsel for the plaintiff) says that the
company not only did that to him but they've persisted in doing it - not only from the time when the publications appeared in November '87, but right up until today, and that that in itself is a matter of grave concern ... that that must inflate the damages that you award." It is true that his Honour was, at that point, only echoing what counsel had said. But he had earlier directed the jury that the defendant's persistence in the truth of a statement which the jury finds to be not true "is a matter which may aggravate it, to use a general term, or increase the damages". His Honour also said:

"but if you find that the defendants fail, then you may well think that that conduct in persisting with it justifies you in bringing in a much higher award than you would have otherwise if there'd been a retraction or apology at an early stage and certainly a desistance from persisting that the matter was true".

What his Honour told the jury in the passage just quoted, coupled with his implied acquiescence in counsel's submission (there being no suggestion that the jury should disregard the submission), was, in the circumstances of the case, a misdirection.

38. Mere persistence, or even vigorous persistence, in a bona fide defence, in the absence of improper or unjustifiable conduct, cannot be used to aggravate compensatory damages: Triggell v. Pheeney; Steele v. Mirror Newspapers Ltd. (1974) 2 NSWLR 348. As Dixon, Williams, Webb and Kitto JJ. said in Triggell v. Pheeney, at p 514:
" It is no doubt true that the jury cannot take into
consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times Ltd. v. McGregor ((1928) 41 CLR 254) must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable." And in Steele v. Mirror Newspapers Ltd., at p 379, Samuels J.A said, referring to Triggell v. Pheeney:

"It is quite clear, in my opinion, that the vigorous persistence in a legitimate defence cannot be used to aggravate the damages. The manifest unfairness of any contrary view is obvious."

Although there was a plea of justification in Steele v. Mirror Newspapers Ltd., Samuels J.A's observation was made in the context of an attack made upon the plaintiff's character during her defamation action.

39. It is not the case that every unsuccessful defendant must face the prospect of damages being increased, simply because the defendant has elected to defend the action. It is for the jury, properly directed in the circumstances of the case, to determine whether the defendant's conduct lacks bona fides, or is improper or unjustifiable, in the sense referred to in Triggell v. Pheeney. Nevertheless, persistence in a plea of justification may be relevant to the amount of compensatory damages awarded. An early withdrawal of the defamatory statement will ordinarily serve to reduce the harm suffered by the plaintiff; persistence in seeking to justify the statement may increase the scope of publication and the effect on those who read it: The Herald and Weekly Times Ltd. v. McGregor, at p 263. I take this to be the sense in which Lord Diplock suggested that "persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages": Broome v. Cassell and Co., at p 1125. But compensation for continuing harm is a component of normal compensatory damages and, in the absence of at least one of the factors mentioned in Triggell v. Pheeney, does not warrant an award of aggravated damages to the plaintiff.

40. That is how the matter should have been put to the jury in the present case, thereby avoiding the possibility that the jury might think it in order to "punish" the defendant for persisting in its plea of justification. But no objection was taken to the trial judge's direction to the jury in that regard; the point was not aired by the defendant before the Full Court and it does not form part of the cross-appeal. In those circumstances that aspect of the trial cannot be taken into account and we were not asked to do so.
Applying the relevant test

41. As Lord Hailsham observed in Broome v. Cassell and Co., at p 1065, in deciding whether an award of damages by a jury should be set aside as too large, the precise formula to be applied is not crucial. Courts have spoken of awards that were "unreasonable and out of all proportion" (Lewis v. Daily Telegraph Ltd. (1963) 1 QB 340, at p 386); have said that "no reasonable proportion existed between (the amount) and the circumstances of the case" (Mechanical and General Inventions Co. and Lehwess v. Austin and the Austin Motor Co., at p 378); and have said that awards were so large (or so small) that "twelve sensible men could not reasonably have given them": Praed v. Graham (1889) 24 QBD 53, at p 55. The test is often framed in the words of Havers J. in Lewis v. Daily Telegraph Ltd., at p 410, as 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 (whether) they are out of all proportion to the facts of the case".

42. The real point is, as Lord Hailsham pointed out, that "the law makes the jury and not the judiciary the constitutional tribunal": Broome v. Cassell and Co., at p 1065. There will be awards by juries that are so large or so small that there is an instinctive reaction by the appellate court that something must have gone wrong in the jury's deliberations. There are some, though not many, reported decisions in which that has been the reaction of the appellate court. But that is not to say that an appellate court should begin with its instinctive reaction and test the award against that. Rather, the court should first look at the evidence, assume that the jury took a view of the evidence most consistent with the verdict it returned, and then ask whether, in the light of that evidence, the award is sustainable. It may be apparent from an award of damages that the jury has failed to take into account some aspect of the case, whether favourable or unfavourable to the plaintiff, about which there was really no dispute, or that the award is clearly punitive when punitive damages are not available. Such a conclusion is one that an appellate court should not reach too readily. The court has before it the product of the jury's decision-making; it knows little of the process that went into the making of that decision: see Greene, "On Juries And Damage Awards: The Process Of Decisionmaking", (1989) 52 Law and Contemporary Problems 225. That may be thought to be an argument against the retention of juries in defamation actions. But that is not the point at issue here. Therefore, assuming that the jury has been properly directed, if the members of an appellate court can say no more than that the damages are considerably higher than they themselves would have awarded, there is no justification for interfering with the verdict of the jury.

43. That is the most that can be said in the present case. The plaintiff's appeal should therefore be allowed. To the extent that the notice of cross-appeal raises any matter that has not already been dealt with in the disposition of the appeal, that matter does not warrant a grant of special leave. The defendant's appeal to the Full Court should be dismissed. The defendant should pay the plaintiff's costs of the proceedings before the Full Court and before this Court.

McHUGH J. I agree with the reasons for judgment of Toohey J. and the orders which he proposes. I wish to add only a few comments.

2. The awards of damages in defamation cases with which I am most familiar are those given in New South Wales. By the standards of that State, the jury's award in the present case, although high, could not be regarded as unreasonable. However, the reasonableness of this jury's verdict is to be determined by the standards which prevail in Western Australia and not by the standards which prevail in New South Wales or, for that matter, any other State of Australia. But, even assuming that there is a significant difference between what a reasonable jury in Western Australia would award as damages for a defamation and what a reasonable jury in other parts of Australia would award for the same defamation, I do not think that it is possible to say that the damages awarded by the jury in this case were so unreasonable "that no sensible jury properly directed could have reached the conclusion": Broome v. Cassell and Co. (1972) AC 1027, per Lord Hailsham of St Marylebone L.C. at p 1065. I come to this conclusion more confidently than might otherwise be the case because both the Chief Justice of Western Australia in his dissenting judgment in the Full Court and Toohey J., the only Western Australian member of this Court, are of the opinion that this verdict is not unreasonable by Western Australian standards.

3. Moreover, while this Court must always give great weight to the views of a majority of members of a Full Court of the Supreme Court of a State when they hold that the damages awarded in a particular case are manifestly inadequate or excessive, that factor has only marginal significance where the Full Court of that State has had limited experience with jury verdicts in the particular class of action concerned. It is common ground that the assessment of damages by juries in defamation actions occurs infrequently in Western Australia. Consequently, until the appellate judges of that State have experienced a statistically significant number of jury assessments of damages in defamation actions, they should be slow to condemn a verdict in such an action as unreasonable. By reason of its composition, a jury is ordinarily in a better position than a court to divine the community's view as to what is a reasonable award of damages in a defamation action.

4. The jury in this case found that the publication of the "notice" in The West Australian newspaper meant, among other things, that the plaintiff "had been fraudulently improperly and without authority incurring debts and liabilities on behalf of Citizen Finance Sun Securities or CEC or pledging their credit". Absent a defence, the publication of this imputation in respect of a person described as "a property developer, promoter and marketer" called for a very substantial award of damages if damages in a defamation action are to serve their purpose of vindicating a plaintiff for an unjustified attack on his or her reputation. But the matters which the jury were entitled to take into consideration in this case went beyond the publication of this grave imputation to the large readership of The West Australian. First, the jury were entitled to find that the injury to the plaintiff's feelings, caused by the publication, was increased as the result of telephone calls from readers who called the plaintiff "a liar, a crook and a cheat". Secondly, the jury were entitled to find that the hurt to the plaintiff and the harm which he suffered were increased by the defendant's defence, persisted in until the end, that the defamatory imputations made against the plaintiff were true in substance and in fact. Triggell v. Pheeney (1951) 82 CLR 497 is not to be taken as modifying in any way the principle that in a defamation action the jury are:
"entitled to take into consideration the mode and extent
of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the (plaintiff), and that the statement had been persisted in to the end; because all these circumstances might in the opinion of the jury increase the area of publication and the effect of the libel on those who had read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff": The Herald and Weekly Times Ltd. v. McGregor (1928) 41 CLR 254, at p 263. Thirdly, the jury were entitled to find that the plaintiff had lost and would continue to lose considerable income as a result of the publication.

5. The jury had the opportunity - which is denied to an appellate court - of assessing the true character, feelings and sensitivity of the plaintiff. In Broome v. Cassell and Co., Lord Diplock pointed out, at p 1125:
"The harm caused to the plaintiff by the publication of a
libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him."

6. In a case where the plaintiff has been very seriously defamed in his or her personal and professional reputation and the defendant maintains to the end that the defamatory imputations are true, a jury has an overwhelming advantage over an appellate court in determining the true motive of the defendant's conduct and the real effect of the libel and the defendant's conduct on the plaintiff.

7. In the circumstances, I do not think that an appellate court can say that the assessment of damages by the jury was unreasonable.

8. The appeal should be allowed.

Orders

Appeal allowed with costs.

Set aside the orders of the Full Court of the Supreme Court of Western Australia and in lieu thereof order that the appeal to that Court be dismissed with costs.

Application for special leave to cross-appeal refused with costs.