Kendell v North Queensland Newspaper Company Ltd

[1992] QCA 95

IN THE COURT OF APPEAL	[1992]QCA 095
SUPREME COURT OF QUEENSLAND	Appeal No. 70 of 1991
Before the Court of Appeal
The President Mr Justice Davies Mr Justice McPherson

MONA EILEEN KENDELL

(Plaintiff) Respondent

- and -

THE NORTH QUEENSLAND

NEWSPAPER COMPANY LIMITED

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the 13th day of May 1992

In this appeal, the appellant seeks to have a judgment

in favour of the respondent for $35,000.00 together with
interest set aside and asks that judgment be entered for
the appellant or alternatively that there be an order for a
new trial. The judgment from which the appeal is brought
was entered in the District Court at Townsville on 2nd
August 1991, consequent upon answers by a jury to a number
of questions in an action for defamation brought against the

appellant by the respondent.

The appellant publishes The Townsville Bulletin which

circulates in Townsville and elsewhere in northern and
western Queensland. In mid-1989, it was engaged in
publishing material in that paper relating to the conduct of
the Townsville General Hospital's Psychiatric Ward, which
subsequently became the subject of a Commission of Inquiry
known colloquially as the "Ward 10B Inquiry". On 18 May
1989, an article concerning events in the psychiatric ward a
little more than two years earlier, on 14 May 1987, was
published. The article was critical of the conduct of a
female employee in the ward, identified as "the matron", The
respondent was not named in the article and was not the
woman whose conduct was described. However, she was the
Nursing Superintendent at the Townsville General Hospital, a
position which she pleaded was "commonly known to the
medical profession, the staff of the Townsville General
Hospital and the public as the matron." There was, however,
no plea that it was "commonly known" that she was the matron
at the material time. The respondent alleged that the
article was defamatory of her and, further, was "understood
to mean to persons with medical or psychiatric training,
that the Plaintiff had behaved in dealing with patients, in
an unprofessional and uncaring manner."

The Amended Defence denied most of the respondent's

pleaded allegations and, in addition, contained the

following paragraph 5:

"5. If the said words are defamatory of the Plaintiff
(which is denied):-

(a)  the publication thereof was made in good faith and for the public good and/or;

(b) the said publication was made in good faith and
was in the course of and/or for the purposes of
discussion of a subject of public interest, namely
the manner in which the Townsville Psychiatric
Ward was conducted, the public discussion of which
is for the public benefit and insofar as the
alleged defamatory matter consists of comment the
comment is fair."

After the conclusion of evidence and before the

commencement of counsel's final addresses, the trial judge
made rulings in relation to the defences raised by that
paragraph. His Honour ruled "that the publication cannot be
said to have been for the public good", and accordingly the
defence raised by paragraph 5(a) was not considered by the
jury. However, the defence raised by paragraph 5(b) was
submitted for the jury's consideration following a ruling
that the publication was made "in the course of and/or for
the purposes of discussion of a subject of public interest,
namely the manner in which the Townsville Psychiatric Ward
was conducted". That ruling has not been challenged by the
respondent on this appeal.

The questions which the jury were asked and the answers which they gave were as follows:

"QUESTION 1:

Has it been established on the balance of probabilities that

(a) an ordinary reasonable person, or
(b) an ordinary reasonable medical practitioner, or

(c)  an ordinary reasonable member of the staff at the Townsville General Hospital, or

(d) any of them.

On reading the article in the Townsville Bulletin of 18 May, 1989, and in particular on reading the passages referred to in the statement of claim, would conclude that the person described therein as "matron" was the

plaintiff? YES

If your answer to Question 1 is no, then go no further.

If your answer to question 1 is yes:

QUESTION 2:

(a)  Has it been established that the published matter

complained of was defamatory ? YES

If your answer to Question 2(a) is yes:

(b)  Is the matter complained of as a whole defamatory,

or if in parts only, which parts ? YES

If your answer to Question 2(a) above is no, go no
further.

If your answer to Question 2(a) is yes:

QUESTION 3:

Are you satisfied that public discussion of the manner in which the Townsville Psychiatric Ward was conducted

was for the public benefit ?	NO
QUESTION 4:

(a)  Do you find that any of the defamatory statements

consist of comment ? YES

If your answer to Question 4(a) is yes:

(b) Was the comment fair ?	YES
QUESTION 5:
Are you satisfied that the plaintiff has shown an
absence of good faith by the defendant ?	YES

QUESTION 6:
(a) How much do you award by way of damages ?$35,000.00

(b)  If you award includes a component of exemplary

damages, how much is that component ? NIL"

These questions were arrived at partially by agreement

and partially as a result of determination following

argument.

The appellant submitted that the trial judge should

have held that the publication was for the public good or
should have directed the jury that the elements of the
defence raised by paragraph 5(a) of the Amended Defence were
made out."

A number of arguments were raised by the appellant in relation to paragraph 5(b) of the Amended Defence. It was submitted that the trial judge should not have submitted question 3 to the jury but should have himself determined that public discussion of the manner in which the Townsville Psychiatric Ward was conducted was for the public benefit. Alternatively, it was submitted that the trial judge should have directed the jury to answer question 3 in the affirmative, and that the negative answer given by the jury to question 3 was "perverse or against the evidence and the weight of the evidence".

It was further submitted that the trial judge should

have directed the jury that there was no evidence of absence
of good faith on the part of the appellant and that it
should answer question 5 in the negative. Alternatively, it
was submitted that the affirmative answer to question 5 was
"perverse or against the evidence and the weight of the
evidence".

In summary on these points, it was submitted for the

appellant that, because the defences under subs.377(3) and
(8) of the Criminal Code were established the trial judge
should have directed the jury to return a verdict for the

appellant.

The potentially difficult questions associated with the
meaning and effect of sub-sections 377(3) and (8) only arise
if the appellant is successful in its challenge to the
jury's answer to question 5. It is convenient, therefore,
to consider this first. Both subsections only provide
lawful excuse for the publication of defamatory matter if
the publication is made in good faith. S.377 provides that,
for its purposes, "... 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 course which was adopted at the trial presents the

appellant with a major obstacle. In this Court, the
appellant submitted that the respondent was required to
prove that the appellant believed that the defamatory matter
which it published was untrue. However, that was not the
position which the appellant adopted at the trial, where the
debate assumed that recklessness by the appellant would be
sufficient to negative good faith. Further, at the trial,
the appellant joined in formulating question 5, did not
object to it being submitted for the jury's consideration or
contest the jury's right to bring in an affirmative answer,
sought no redirections and did not move for judgment despite
the jury's answer to question 5 on the footing that an
affirmative conclusion was not open to the jury. In such
circumstances, before the appellant has any prospect of
success it must demonstrate that a negative answer was the
only possible verdict which the jury could reasonably have
given to question 5: Baird v. Magripilis (1925) 37 CLR 321;
Conrad v. The Chermside Hospitals Board (1982) Qd.R. 242.
Having regard to the conduct of the trial, that would
require a decision that the jury could not reasonably have
concluded that the appellant was reckless in publishing the
defamatory matter.

The defamatory matter published by the appellant was

derived from notes made by a relative of one of the patients
in the psychiatric ward at the relevant time which, as
stated, was two years before the publication. The relative
was called as a witness and gave evidence which, if accepted
by the jury, provided a basis for describing the person
whose conduct was criticised as the matron. The appellant's
editor at the time of publication was also called, but he
had had no personal contact with the relative or information
provided him by his staff which warranted a belief on his
part that the relative's description was correct and that
the person who had acted in the manner stated in the article
was the matron. The most he could say in his evidence-in-
chief was:- "At the time I believed that the sisters - one
of the two girls that were involved in this diary, had asked
other staff members who the person concerned was and been
told the person was the matron". However, he gave no basis
for the belief which he claimed and his evidence may not
have been accepted by the jury. The journalist who compiled
the article from the notes and the features editor were not
called, without explanation, and there was no evidence that
either of them had contact with the relatives or made any
other attempt to verify that it was the matron at the time
who had acted in the manner asserted. The jury was left to
consider question 5 on the footing that, in circumstances
devoid of urgency, a little more than two years after the
events, the appellant published defamatory statements which
were inaccurate insofar as they attributed conduct to a
female hospital employer described as "the matron" without
any effort to ascertain whether this description correctly
identified their employee or referred to another employee.
As the appellant's editor put it in his evidence, the
appellant proceeded on the footing that it "had no
particular reason to question" the allegations which it
published.

It was open to the jury to conclude that a lay person's

description of a hospital employee by reference to a
particular title was so prone to error that to omit any
attempt of verification in the circumstances went beyond
mere carelessness to indifference and was reckless. In such
circumstances, this Court should not interfere with the
answer given to question 5, and the defences pleaded on
paragraph 5 of the Amended Defence must accordingly fail.

The appellant also argued that the trial judge should

not have submitted question 1 to the jury in that form and misdirected the jury in relation to the issues sought to be raised by that question. An associated submission was that the damages awarded by the jury were excessive.

At the trial, the appellant objected to the form of

question 1 but, after argument, the trial judge ruled that
it was appropriate in form. It is unnecessary to analyse
the arguments or to refer to the form of question sought by
the appellant, which also presented difficulties. The
material problems for present purposes are those associated

with question 1 as it was answered by the jury.

It appears from the trial judge's ruling that the

purpose of question 1 was to enable the jury to be satisfied
that the respondent had been identified as the subject of
the defamation "if ... any single ordinary reasonable
person, medical practitioner or member of the staff or any
of them so concluded - one person". Other considerations
aside, what was obviously overlooked was that the multiple-
possibility question which the jury was asked inevitably
meant that a single affirmative answer was ambiguous. The
meaning of that answer bears directly upon the damages to

which the respondent was entitled.

The matter had started to miscarry in the respondent's

Amended Amended Statement of Claim which, despite the
numerous changes, did little to achieve its purpose of

accurately and succinctly pleading the respondent's case.

Paragraphs 1A, 1B and 1C asserted facts related to the

respondent's employment which were relied upon to connect
her to the position of matron and thus to identify her as
the person of and concerning whom the defamatory matter was
published. Neither in those paragraphs, nor elsewhere in the
Amended Amended Statement of Claim was it expressly
recognised that the persons to whom the respondent was
allegedly defamed were limited to those with knowledge of
these facts. Paragraph 3A attributed a special meaning
to the defamatory matter for "persons with medical or
psychiatric training", but once again did not relevantly
confine such persons to those who knew that the respondent

was the matron.

Apart from "persons with medical or psychiatric

training" who it was pleaded understood the material parts
of the article to mean that the matron "had behaved in
dealing with patients, in an unprofessional and uncaring
manner", the Amended Amended Statement of Claim did not seek

to attribute specific defamatory meanings to the article but

relied upon the general assertion that the material parts

were defamatory. Essentially, the matron was accused of
behaviour which was rude, aggressive, high-handed and,
according to the trial judge's summing up was said by the
respondent's counsel at the trial to involve an allegation
of assault by taking a patient by the arm and dragging him

away.

An award of $35,000.00 for defamation of this

character could only be explained if the range of

publication was extremely wide.

In this case, involving a publication in a provincial

newspaper with a comparatively limited circulation, only an
affirmative answer to question 1(a) could conceivably
sustain such an award. In some circumstances, it might be
appropriate to sustain the damages awarded by a conclusion
that an answer given by a jury to an ambiguous question
should be assumed to bear whichever of the available
meanings is consistent with the award. However, that course
is not open in this case.

The omission in the Amended Amended Statement of Claim

to confine the defamation of and concerning the respondent
to those persons with knowledge of the facts which connected
her to the article was continued at the trial. For obvious
reasons, there was no evidence that every "ordinary
reasonable person reading the article" would have possessed
the knowledge necessary to connect the respondent with it
and thus read it as defamatory of and concerning her.
However, when reference was made in the summing-up to the
"ordinary reasonable person reading the article", no
effective attempt was made to explain the need to confine
that group to persons who knew that the respondent was the

matron.

The point is somewhat emphasised by the consideration

that the material group of readers were those who in May
1989 knew that the respondent was the matron of the Hospital
on 14 May, 1987. However, what is more important is the
fundamental omission to address the critical issue of the
extent of publication of the defamation. The closest that
the summing up came to the point was in the following

passage:

"You have on the one hand Mr Greenwood for the
defendant urging that the plaintiff has not proved -
and remember, so far as this question is concerned,
..., the plaintiff has to do the proving - that the
ordinary reasonable reader would regard the matron in
the article as being the plaintiff. Mr Pope of course,

for the plaintiff, submits to the contrary arguing

that many classes of people, medical staff, former
patients, friends of friends, would identify the
plaintiff as the matron referred to."

That passage was not connected to question 1 in any

meaningful way which would have enabled the jury to
understand the relevance of the range of publication or the
limitation imported by the need for readers to know the
respondent's position in the hospital at the material time.

In the circumstances, the answers to questions 1 and 6

cannot stand, and there must be a new trial limited to the

issues to which these questions were directed.

The appeal should therefore be allowed with costs, and

the judgment set aside except as to the order with respect
to the costs of the trial. There should be a new trial
ordered, limited to the issues of identification and
damages.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 70 of 1991
Before the Court of Appeal

MONA EILEEN KENDELL

(Plaintiff) Respondent

- and -

THE NORTH QUEENSLAND

NEWSPAPER COMPANY LIMITED

(Defendant) Appellant

The President
Mr Justice Davies

Mr Justice McPherson

Judgment of the Court delivered on the 13th day of

May, 1992

Appeal allowed with costs. Judgment set aside except
as to order with respect to costs of trial. New trial
ordered limited to the issues of identification and
damages.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 70 of 1991
Before the Court of Appeal
The President Mr Justice Davies Mr Justice McPherson

MONA EILEEN KENDELL

(Plaintiff) Respondent

- and -

THE NORTH QUEENSLAND

NEWSPAPER COMPANY LIMITED

(Defendant) Appellant

JUDGMENT OF THE COURT

Delivered the 13th day of May 1992

MINUTE OF ORDER:	Appeal allowed with costs. Judgment set aside except as to order with respect to costs of trial. New trial ordered limited to the issues of identification and damages.
CATCHWORDS:	Defamation - Verdict - Applicant seeks to set aside it against it in respect of proceedings for defamation - whether possible for jury to be satisfied as to identification of plaintiff - whether damages disproportionate to extent of circulation of provincial newspaper - whether new trial ought be ordered
Counsel:	Mr J. Garnsey Q.C. with him Mr M. Donnolly for the Respondent
Mr M. Pope for the Appellant
Solicitors:	Messrs. Connolly Suthers for the Appellant
Messrs. Cooper Grace and Ward (as town agents for Messrs. Nehmer Davenport & McKee, Townsville) for the Respondent

Hearing dates: 7th and 8th April, 1992