GARY JOHN HUMPHRIES v. TWT LIMITED No. ACTG31 of 1993 FED No. 892 Number of pages - 18 Defamation (1993) Aust Torts Reporter 81-251 (1993) 120 ALR 693
COURT
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION GALLOP, DAVIES AND VON DOUSSA JJ
CATCHWORDS
Defamation - appeal against assessment of damages - whether error in principle by the trial judge on issues concerning vindication, hurt feelings, and publication of retraction and apology - whether error in principle in not awarding aggravated damages - whether award manifestly inadequate.
HEARING
CANBERRA, 3 November 1993
#DATE 3:12:1993
Counsel for the Appellant: Mr J. Neil QC with Mr S. Wilcox
Solicitor for the Appellant: Macphillamy Cummins and Gibson
Counsel for the Respondent: Mr S. Rares
Solicitor for the Respondent: Gallens Crowley and Chamberlain
ORDER
The Court Orders that:
1. The appeal be allowed.
2. The judgment in the Court below be set aside and in lieu thereof that judgment be entered for the appellant in the sum of $28,000.
3. The order made on 13 May 1993 in respect of the costs of the trial be set aside.
4. The respondent pay the appellant's costs of the action including the costs of the trial on a party and party basis on the Supreme Court scale, and that there be a certificate for Senior Counsel in respect of the trial.
5. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
THE COURT:
GALLOP, DAVIES AND VON DOUSSA JJ This is an appeal from a single judge of the Supreme Court of the Australian Capital Territory. The appellant, the plaintiff at trial, sued for damages for defamation arising out of a television broadcast in a news programme at about 6.10 p.m. on 11 October 1990. The respondent is the proprietor of the WIN Television Network which made the broadcast to viewers in the Australian Capital Territory and nearby areas of New South Wales.
An award was made in the appellant's favour by the trial judge of $9,000 being $8,000 damages and $1,000 in lieu of interest. The trial judge ordered that the defendant pay the plaintiff's costs on a party and party basis on the Supreme Court scale up to 8 December 1992 (a date, approximately two months before the trial commenced, when a "Calderbank Letter" offer by the respondent of $11,000 plus costs was rejected), that each party pay his and its costs incurred after that date, and that a certificate for senior counsel be refused. The appellant appeals against the award of damages, and the orders as to costs. There is no cross-appeal against the findings that the publication contained material defamatory of the plaintiff.
The findings of primary fact made at trial are not in dispute. The appellant was elected as a member of the Legislative Assembly of the Australian Capital Territory on 4 March 1989. He is presently the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
The appeal in Humphries v TWT Ltd concerns a defamation case where the plaintiff, Humphries, sought damages for defamatory statements made by the defendant, TWT Ltd. The case was heard in the High Court of Australia. The plaintiff argued that the trial judge made errors in assessing the damages, particularly concerning the vindication, hurt feelings, and the publication of a retraction and apology. Additionally, Humphries contended that the trial judge erred by not awarding aggravated damages and that the awarded damages were manifestly inadequate.
The legal issues the court had to decide revolved around the proper assessment of damages in defamation cases. The court had to determine whether the trial judge erred in principle when considering the vindication, hurt feelings, and the publication of the retraction and apology. It was also necessary to assess whether there was an error in principle in not awarding aggravated damages and if the awarded damages were manifestly inadequate.
The High Court found that the trial judge had indeed erred in principle in several respects. The court held that the trial judge had not adequately considered the importance of vindication and the hurt feelings experienced by Humphries. Furthermore, the court determined that the failure to award aggravated damages was a significant error. The High Court concluded that the damages awarded were manifestly inadequate given the nature and extent of the defamation. Consequently, the appeal was allowed, and the original judgment was set aside. A new judgment was entered in favor of Humphries for $28,000, with costs awarded on a party and party basis. The respondent was also ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
The Court Orders that:
1. The appeal be allowed.
2. The judgment in the Court below be set aside and in lieu thereof that judgment be entered for the appellant in the sum of $28,000.
3. The order made on 13 May 1993 in respect of the costs of the trial be set aside.
4. The respondent pay the appellant's costs of the action including the costs of the trial on a party and party basis on the Supreme Court scale, and that there be a certificate for Senior Counsel in respect of the trial.
5. The respondent pay the appellant's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.