Griffiths v Queensland Newspapers Pty Ltd

[1993] QCA 44

IN THE COURT OF APPEAL	[1993] QCA 044
SUPREME COURT OF QUEENSLAND

Appeal No. 175 of 1992

Brisbane
[Griffiths v. Queensland Newspapers Pty. Ltd.]

BETWEEN

HERBERT ATHERTON GRIFFITHS

(Plaintiff) Appellant

- and -

QUEENSLAND NEWSPAPERS PTY. LTD.

(Defendant) Respondent

The President
Mr Justice McPherson

Mr Justice Byrne

Judgment delivered 10/03/93
Judgment of the Court.

APPEAL ALLOWED. APPELLANT ENTITLED TO JUDGMENT IN RESPECT OF THE FIRST AND SECOND ARTICLES IN ACCORDANCE WITH THE JURY'S FINDINGS. NEW TRIAL IN RELATION TO THE THIRD ARTICLE.

RESPONDENT TO PAY 90% OF THE TAXED COSTS OF AND INCIDENTAL TO THE ACTION AND THE WHOLE OF THE TAXED COSTS OF THIS APPEAL. THE REMAINING COSTS OF THE ACTION ARE RESERVED TO THE JUDGE WHO CONDUCTS THE RE-TRIAL.

CATCHWORDS:	DEFAMATION - TRIAL OF ACTION - whether counsel's address caused trial to miscarry
DEFAMATION - TRIAL OF ACTION - Functions of judge and jury - whether judge should ask further questions of jury
DEFAMATION - QUALIFIED PRIVILEGE - Absence of good faith - evidence - whether defendants conduct after publication material
Counsel:	Mr I.D.F. Callinan Q.C. with him Mr P. Favell for the appellant Ms. S. Kiefel Q.C. with her Mr P. Applegarth for the respondent
Solicitors:	Mr James Walker for the appellant Messrs. Thynne and Macartney for the respondent
Hearing Date(s):	16th, 17th, 18th and 19th of February, 1993

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 175 of 1992

Before The President
Mr Justice McPherson
Mr Justice Byrne

[Griffiths v. Queensland Newspapers Pty. Ltd.]

BETWEEN

HERBERT ATHERTON GRIFFITHS

(Plaintiff) Appellant

- and -

QUEENSLAND NEWSPAPERS PTY. LTD.

(Defendant) Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered the tenth day of March, 1993

This is an appeal from a judgment entered on 17 July 1992 in an action for defamation brought in the District Court by the appellant against the respondent and subsequent orders for costs.

The action related to three articles published by the respondent in the "Courier Mail" newspaper on 22nd September 1989, 23rd September 1989, and 2nd October 1989 respectively. The jury before which the action was tried found that the appellant was defamed by each of the articles. It also found that the public discussion of subjects discussed in the articles was for the public benefit: see sub-section 377(8) of the Criminal Code. The trial judge found that the other ingredients of defences pleaded by the respondent under subsections 377(5) and (8) were established. Further, the jury held that the third article was published in good faith.

However, it found that the first and second articles were not published in good faith and held that the appellant was entitled to $10,000.00 compensatory damages in respect of the first article and $20,000.00 compensatory damages and $50,000.00 exemplary damages in respect of the second article.

After the jury had made its findings following addresses and the summing-up, the trial judge took an unusual step. Over the objection of counsel for both parties, he submitted a further series of questions to the jury asking precisely which portions of each article were defamatory and in what respects the respondent had acted without good faith.
After receiving the jury's answers to the additional questions, the trial judge upheld the respondent's motion for judgment notwithstanding the jury's findings in respect of the first and second articles and judgment was given for the respondent in respect of all three articles. The appellant's action was accordingly dismissed and the respondent was awarded most of the costs of the proceedings.
Much time and effort was expended in this Court in respectively criticising and defending the trial judge's submission of additional questions to the jury after they had brought in their findings, together with other aspects of his conduct of the trial including alleged unfairness towards the appellant. Certainly, the record of proceedings reveals points at which the judge does not seem to have kept in mind sufficiently firmly the distinction between his role and that of the jury. However, it is unnecessary to pursue such matters at any length, for the judge's directions to the jury possessed a major flaw which deprived all answers adverse to the appellant of any efficacy, including answers given by the jury to the additional questions asked by the judge.

That does not mean that the additional questions should have been asked. They should not. There were no exceptional circumstances such as were spoken of in Mourani v. Jeldi Manufacturing Pty. Ltd. (1983) 57 ALJR 825. Further, the questions appear to have been based upon the fundamental misconception that the jury's findings must have been derived from unanimous reasons for those findings. That is not correct either in logic or in law. In Walton v. Potter and Horsfall (1841) 3 Man. & G. 411 (133 E.R. 1203), Maule J. said at 444 (E.R. 1217):

"It is not necessary, nor indeed is it reasonable to expect that ... jurors should arrive at the same conclusion by following the same course of reasoning.

There is no rule that a verdict cannot be just unless each juryman arrives at the same conclusion, and by the same road."

As the respondent conceded, the trial judge held and expressed the view that the jury could not consider any matters subsequent to publication of the articles in determining whether or not each article was published in good faith.
Again, that is erroneous. See, for example, McKenzie v. Mergen Holdings Pty. Ltd. (1990) 20 NSWLR 42 at p.51, where Clarke JA., with whom Mahoney and Meagher JJA. agreed, said:

"Proof of malice involves, in almost every case, the drawing of inferences from proven facts. What the plaintiff seeks to persuade the jury is that because of the defendant's conduct prior to and following the publication of the defamatory statement or, in some cases, because of the exaggerated terms of the defamatory statement itself, or a combination of both, the inference should be drawn that the defendant was actuated by malice in defaming the plaintiff."
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"For the purpose of this section, a publication is said to be made in good faith if the matter published is relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter; if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion; and if the person by whom it is made is not actuated by ill-will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue."

The effect of the trial judge's error was to exclude from the jury's consideration any evidence of absence of good faith which might be inferred from the respondent's conduct subsequent to publication. Subject to any other matter raised by the respondent, the jury's finding that the third article was published in good faith, and the jury's answers in relation to the additional questions with respect to good faith insofar as the answers may assist the respondent, cannot stand.
Further, as clearly appears from the reasons which he gave for his decision, the trial judge's conclusion, contrary to the jury's findings, that the first and second articles were published in good faith was also based on his incorrect view that evidence of the respondent's conduct subsequent to publication was necessarily immaterial to whether or not it had published in good faith.
So far as concerns the first and second articles, the central issue on the appeal is whether there was evidence upon which the jury could have brought in its original findings that the respondent did not act with good faith in publishing those articles of and concerning the appellant. The test may be taken from what was stated by Clarke JA. in McKenzie at p.51G:

"... in the case of malice it is necessary for the plaintiff to lead evidence which is capable of giving rise to a reasonable and definite inference of malice in order to have his case on that issue submitted to the jury. He does not, however, have to go further and satisfy the judge that what he contends for is more probable than not. That is a question for the jury ..."

At this appellate stage, regard should be had only to the evidence favourable to the appellant: McKenzie at pp.47,48.

No distinction exists for present purposes between the first and second articles on the one hand and the third article on the other. If the respondent's conduct, including its conduct subsequent to publication, could support an inference of absence of good faith, the appellant is entitled to the new trial which he seeks in relation to his claim based upon the publication of the third article. The appellant asked that that new trial be limited to exclude issues already found by the jury in his favour, but in the circumstances that would introduce unwarranted complications and is inappropriate.

Once the major issue for determination on this appeal is identified as whether or not the jury properly found an absence of good faith, the respondent's attempt to maintain the judgment in its favour is seen as hopeless. There was ample evidence for the appellant's purpose. It is unnecessary to set the evidence out in detail or even to list all the categories. By way of example, it included evidence from which the jury might have concluded that:

(i)  although the subjects of the allegations substantially related to events much earlier and had been under consideration by the respondent for a period of months, publication took place peremptorily and without any sufficient attempt to provide the appellant with an opportunity to put forward his side of the story;

(ii) even having regard to information actually held by the respondent, there was a lack of balance;

(iii) there were significant unexplained inaccuracies in the articles including one headline;

(iv) a journalist employed by the respondent acquiesced in the deception of a potential witness after the publication;

(v)  witnesses who were available who might have provided explanations were not called;

(vi) relevant documents were not discovered or, when discovered, not produced; and

(vii) there was a refusal to apologise or even admit error throughout and, on the contrary, the respondent robustly defended the articles.

The argument for the respondent that the evidence was insufficient was grounded upon a series of propositions. It was submitted that consideration of each element of the statement in section 377 of the Code concerning what constitutes good faith must be confined to the evidence relevant to the particular element and further, that in relation to each element, each item of evidence must be considered in isolation from each other item of evidence to see whether the particular item, by itself, warrants an inference that the element had been established; if not, that item of evidence has to be ignored in connection with that element of the concept of an absence of good faith and the issue of good faith generally.
It was further submitted that, in assessing the conduct or at least the state of mind of each person for whom the defendant is legally responsible it is necessary to consider separately, in the manner described above, the state of mind of each person for whom the dependent is legally responsible, and that, unless there is sufficient evidence to warrant an inference adverse to the respondent by reference to each particular individual, that individual's conduct and state of mind must be ignored. None of these propositions is supported by authority and each is illogical and fallacious. As to the correct approach to drawing inferences from circumstantial evidence see, for example, Shepherd v. R. (1990) 170 CLR 573.

The respondent argued that, nonetheless, the appellant is not entitled to judgment for the damages assessed by the jury in respect of the first and second articles but that there should be a new trial. The basis for its argument was a submission that the address of counsel for the appellant had caused the trial to miscarry and the trial judge should have ordered a retrial. Our attention was directed to passages in the address of counsel for the appellant in which he criticised counsel for the respondent in terms which, in a few instances, may have exceeded the basis for what was said and, by reference to its counsel's conduct of the trial, asserted that the respondent had shown a lack of good faith.

However, there are major obstacles in the path of the

respondent.
Firstly, having initially sought only that the trial judge correct any impressions adverse to the respondent which may have been created by counsel for the appellant's attacks upon its counsel, the respondent sought the discharge of the jury at the trial. The trial judge's refusal to do so was a discretionary judgment involving a wide variety of considerations including the course of the trial and the practical consequences of aborting a lengthy trial which was drawing to a close.
Secondly, the trial judge's summing-up undoubtedly favoured the respondent. More particularly, the erroneous direction to which reference has previously been made, namely, that the respondent's conduct subsequent to publication was immaterial to the issue of its good faith, effectively deprived the appellant's counsel's address of any practical effect since in this Court reliance was placed upon what he said only in connection with that issue.
Indeed, the appellant's counsel's criticism of the respondent by reference to the conduct of its counsel could only have been relevant to good faith or damages and was not relied upon in relation to the latter issue. The only point raised by the respondent with respect to the damages assessed by the jury was that the exemplary damages were excessive if regard was had to the jury's answers to the additional questions asked of them. Since the additional questions should not have been asked and the relevant answers for this purpose were, in any event, tainted by misdirection, there is nothing in this point.

In summary, the fundamental error made by the trial judge in respect of the issue of good faith both in his own reasoning and in his directions to the jury means that the appeal must succeed. There must be a new trial in relation to the third article but the appellant is entitled to judgment in respect of the first and second articles in accordance with the jury's findings.

The trial judge estimated that 10% of the costs of the proceedings below related to the third article. On that basis, the respondent must pay 90% of the taxed costs of and incidental to the action and the whole of the taxed costs of this appeal. The remaining costs of the action are reserved to the judge who conducts the retrial.