Wide Bay-Burnett Television Ltd v Bradford and Bradford
[1998] QCA 443
•22/12/1998
IN THE COURT OF APPEAL [1998] QCA 443 SUPREME COURT OF QUEENSLAND
Appeal No. 3794 of 1998
Brisbane
[Wide Bay-Burnett Television Ltd v. Bradford & Anor.]
BETWEEN:
WIDE BAY-BURNETT TELEVISION LIMITED
ACN 009 712 261
(Defendant) Appellant
AND:
ROSS CLARK BRADFORD and SHELLY ANN BRADFORD
(Plaintiffs) Respondents McMurdo P.
Pincus J.A.
Williams J.
Judgment delivered 22 December 1998
Joint reasons for judgment of McMurdo P. and Pincus J.A., separate reasons of Williams J. concurring as to the orders made.
APPEAL ALLOWED WITH COSTS. JUDGMENT ENTERED BELOW SET ASIDE. NEW TRIAL, LIMITED TO THE ISSUE OF DAMAGES, ORDERED. COSTS OF THE FIRST TRIAL WILL BE IN THE DISCRETION OF THE JUDGE AT THE SECOND TRIAL.
CATCHWORDS:
DEFAMATION - whether trial judge wrongly directed jury with respect to questions of qualified privilege - whether judge should have left to the jury the determination of the existence of occasions of qualified privilege - whether judge’s instructions to the jury as to the circumstances in which qualified protection might exist were incorrect - whether judge misdirected on subject of good faith - whether principles in Horrocks v. Lowe apply - whether judge erred in leaving to the jury the whole issue of qualified privilege, instead of deciding questions of qualified privilege subject to the jury’s answers with respect to disputed facts - damages - apportionment of compensatory damages for economic loss - whether amount awarded for compensatory damages too high - whether exemplary damages awarded were excessive.
Criminal Code ss. 377(1)(c), (e), (h), 377(2)
Horrocks v. Lowe [1975] A.C. 135
Pervan v. The North Queensland Newspaper Company Limited
(1993) 178 C.L.R. 309
Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R.
183Counsel: Mr R G Bain Q.C., with him Mr R A I Myers for the appellant.
Mr P A Keane Q.C., with him Mr P J Favell for the respondents.Solicitors: Clayton Utz for the appellant.
Daniel Smith (Pialba) for the respondents.Hearing Date: 12 November 1998. IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3794 of 1998
Brisbane
Before McMurdo P.
Pincus J.A.
Williams J.[Wide Bay-Burnett Television Ltd v. Bradford & Anor.]
BETWEEN:
WIDE BAY-BURNETT TELEVISION LIMITED
ACN 009 712 261
(Defendant) Appellant
AND:
ROSS CLARK BRADFORD and SHELLY ANN BRADFORD
(Plaintiffs) Respondents
JOINT REASONS FOR JUDGMENT - McMURDO P, AND PINCUS J.A.
Judgment delivered 22 December 1998
The respondent plaintiffs sued the appellant defendant for damages for defamation and
obtained judgment, after a trial before judge and jury, for $344,600 and costs.
The notice of appeal raises many grounds of attack on the judgment and the appellant’s
written outline also makes numerous criticisms of what happened below. It should be stressed, in
our opinion, that Practice Direction no. 4 of 1992 does not require that the outline of argument set
out all contentions which could ultimately be decided to be advanced; what is intended is that
decisions will be made as to the points to be argued and they will be reflected in the outline. There
is, generally speaking, ample time to make such decisions; here, the outline was not filed until four
months after judgment in the action.The respondents’ case was based on publication on the appellant’s television channel SEQ-
8TV of the following material:
"About twenty people contracted Cigiatera (sic) poisoning about a week ago after eating fish at a Rugby League Banquet at the Pialba Hotel. The offending fish has been traced to a vendor at the Condor Lakes Shopping Centre. But Mr. Greenhalgh claims it was originally supplied by an amateur line fisherman who caught the reef fish in Platypus Bay and he said that infuriated the professionals, who had put up with restrictions and closures in a bid to cope with the Cigiatera (sic) problem".
The respondents, who had a seafood shop at the Condor Lakes Shopping Centre at Pialba,
alleged by their pleading that they were defamed by the publication. The argument ultimately
advanced for the appellant was confined to two issues: that the judge wrongly directed the jury with
respect to questions of qualified privilege which were raised by the defence and that the damages
awarded were unwarranted. It is proposed to discuss these issues in that order.
The defence pleaded three varieties of qualified privilege, being those defined by
s. 377(1)(c), (e) and (h) of the Criminal Code, in the form the Code had at the relevant time.
Counsel for the appellant said that the judge left to the jury the determination of the existence or
otherwise of occasions of qualified privilege and should not have done so, that the judge’s
instructions to the jury as to the circumstances in which qualified protection might exist were wrong
and that his Honour misdirected on the subject of good faith. Consideration of the appeal is made
simpler by the course the judge took, of giving the jury a document headed "NOTES FOR THE
JURY", setting out in logical order the issues the jury had to consider.
Counsel for the respondents pointed out that the jury were asked whether the publication
complained of was made in good faith and answered no; if that answer stood, counsel said, it was
of no consequence whether the directions otherwise given with respect to qualified privilege were
right or wrong. We accept that this is so, but subject to the possibility that misdirection on other
aspects of qualified privilege might have infected what the judge said about good faith.
It is convenient to deal first with one of the appellant’s complaints about the directions on
good faith. The judge told the jury, correctly, that the onus lay upon the respondents to prove lack
of good faith. His Honour also said:
"If a person is acting in good faith, you would think that they would only publish stuff which is relevant to the matter which justifies what would otherwise be defamatory words. If they go beyond that and publish words or information which is irrelevant, then our law says, ‘Hang on, that’s not acting in good faith. That’s going beyond what is necessary. It goes beyond what the law allows and is taken to be demonstrative of a lack of good faith.
So what, for example, the plaintiff here seeks to do is to persuade you on the balance of probabilities that the matter published, and particularly of course the allegation that the food and fish had been traced to Condor Lakes, was irrelevant to any discussion of ciguatera poisoning. That was simply additional information, if you like, which had no relevance to that issue. In this case, so far as 3 is concerned, it had no relevance to the public good and hence showed bad faith - or absence of good faith is the expression that’s used. Likewise with 2, did the manner and extent of the broadcast exceed what was reasonably sufficient to the occasion. That probably speaks for itself. Did they go beyond what was reasonably necessary to deal with the public good, that is the discussion of the ciguatera poisoning? If they have gone beyond that more than was reasonably sufficient, then they are not acting in good faith".
The appellant’s contention was that these directions were erroneous and it was submitted that the
jury should have been instructed on the basis of the speech of Lord Diplock in Horrocks v. Lowe
[1975] A.C. 135; counsel emphasised that Lord Diplock laid down a test which included the
expression:". . . but nevertheless seized the opportunity to drag in irrelevant defamatory matter
to vent his personal spite, or for some other improper motive". (151H)
What the trial judge did, in substance, was to put before the jury the matters set out in s. 377(2) of
the Code:
"For the purposes 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".
Direct authority for the approach the judge took, inconsistently with that laid down in Horrocks v.
Lowe, is the statute itself. That it is not an improper course to assume that s. 377(2) should be
given its literal effect is supported by the reasons of the High Court in Pervan v. The North
Queensland Newspaper Company Limited (1993) 178 C.L.R. 309 at 330:
"Under s. 377, in order to prove absence of good faith, it was necessary for the
appellant to falsify any one of the following propositions: (1) that the material
published was relevant to the matters raised in the plea under s. 377(8); (2) that
the manner and extent of the publication did not exceed what was reasonably
sufficient for the occasion; (3) that the first respondent was not actuated by ill will
to the appellant, or by any other improper motive, and did not believe the
defamatory matter to be untrue".
In that case the judges went on to deal with each of the propositions set out, separately.
| 8 | It is unnecessary for the purposes of these reasons to set out at length Lord Diplock’s explanation of what is necessary to be shown, when the analogous issue comes to be considered |
under the general law. We will quote enough to show why we have concluded that his Lordship’s
explanation of the issues which had to be dealt with under the general law is irreconcilable with the
language of s. 377(2):
"So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive . . .". (149)
"Even a positive belief in the truth of what is published on a privileged occasion . . . may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interest, but to give vent to his personal spite or ill will towards the person he defames . . . ". (150)
"There may be evidence of the defendant’s conduct upon occasions other than that protected by the privilege which justify the inference that upon the privileged occasion too his dominant motive in publishing what he did was personal spite or some other improper motive, even although he believed it to be true. But where, as in the instant case, conduct extraneous to the privileged occasion itself is not relied on . . . there is only one exception to the rule that in order to succeed the plaintiff must show affirmatively that the defendant did not believe it to be true or was indifferent to its truth or falsity . . .
The exception is where what is published incorporates defamatory matter that is not really necessary to the fulfilment of the particular duty or the protection of the particular interest upon which the privilege is founded . . . the proper rule as respects irrelevant defamatory matter incorporated in a statement made on a privileged occasion is to treat it as one of the factors to be taken into consideration in deciding whether, in all the circumstances, an inference that the defendant was actuated by express malice can properly be drawn. As regards irrelevant matter the test is not whether it is logically relevant but whether, in all the circumstances, it can be inferred that the defendant either did not believe it to be true or, though believing it to be true, realised that it had nothing to do with the particular duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite, or for some other improper motive". (151)
One may extract the following propositions from the parts of the speech which have been quoted:
1. The question is whether the defendant in publishing the material had an
improper motive, being one which was dominant, and not being a sense of the
relevant duty or desire to protect the relevant interest.
2. Generally the improper motive which the plaintiff sets out to prove is a
desire to injure the plaintiff. Commonly, where there is an improper motive, it is to
give vent to personal spite or ill-will towards the plaintiff.
3. If it is not shown that the defendant did not believe the matter published to
be true, or was indifferent to its truth or falsity, and conduct extraneous to the
privileged occasion is not relied on, then the plaintiff fails unless what is published
incorporates defamatory matter that is not really necessary to the fulfilment of the
particular duty or the protection of the particular interest upon which the privilege
is founded.
5. Whether irrelevant defamatory matter has been incorporated in a statement
made on a privileged occasion is one of the factors to be taken into consideration
in deciding whether the defendant was actuated by express malice. The test of
whether matter is irrelevant is whether the defendant either did not believe it to be
true or, though believing it to be true, realised it had nothing to do with a particular
duty or interest on which the privilege was based, but nevertheless seized the opportunity to drag in irrelevant defamatory matter to vent his personal spite or for
some other improper motive.
We express no opinion as to whether these principles would if adopted in this State be
suitable tests to be applied in determining whether or not there is good faith; what is plain is that
they are not the rules set out in s. 377(2). One of the more important differences is that under s.
377(2) the publication must satisfy each of 3 or 4 separate tests, one of which is relevance and
another absence of belief that the defamatory matter is untrue. Under the Horrocks v. Lowe tests
matter is deemed irrelevant if it was not believed to be true. This is inconsistent with what is said
in s. 377(2).
In Bellino v. Australian Broadcasting Corporation (1996) 185 C.L.R. 183, the High Court
held that the defamation provisions of the Code, insofar as they include terms which were used "in
a special sense" under the pre-existing law, may be interpreted accordingly: p. 220, 221. It is
another step altogether to apply, not as supplementing but as replacing the relevant provisions of
the Code, views expressed in the House of Lords in 1975. We consider that Horrocks v. Lowe
cannot safely be relied on in the interpretation of s. 377(2) of the Code and that the trial judge’s not
having directed the jury in accordance with Lord Diplock’s speech was a correct course.
The other major criticism which was made by counsel for the appellant, as to the judge’s
directions on qualified privilege, was that his Honour left to the jury the whole issue of qualified
privilege, instead of adopting the course which the law required, which was to decide questions of qualified privilege himself, subject to taking the jury’s answers with respect to any disputed facts.
That was the position under the general law, which has been held to apply to the Code also: The
Telegraph Newspaper Company Limited v. Bedford (1934) 50 C.L.R. 632 at 647, per Starke J.,
Australian Consolidated Press Limited v. Uren (1966) 117 C.L.R. 185 at 208 (a case decided
under the Defamation Act 1958 (N.S.W.)), Calwell v. IPEC Australia Limited (1975) 135 C.L.R.
321 (another decision on the New South Wales Act), Bellino v. Australian Broadcasting
Corporation (1996) 185 C.L.R. 183 at 191, 205, 214, Stephens v. West Australian Newspapers
Limited (1994) 182 C.L.R. 211 at 240. The learned trial judge, it was suggested by counsel, left
the question of qualified privilege or no to the jury because he thought it undesirable to ask such
questions about acceptance of evidence as were disapproved in Ahrens v. Queensland Railways
[1997] 2 Qd.R. 1 at 4. It was said in Ahrens that:
". . . experience suggests that asking a jury detailed questions about their view of
the facts, as was done in the present case, is undesirable". (3)
It does not appear to us that the Court in that case attempted exhaustively to define the
circumstances in which a judge hearing a civil case should, and those in which he or she should not,
leave specific issues to the jury.
In the reasons given for this Court’s decision in Bellino v. Australian Broadcasting
Commission (Appeal No. 270 of 1992, 13 May 1994), there is to be found discussion of the way
in which the division of functions between judge and jury was effected in that case. It appears that
the judge himself decided that there was, within the meaning of s. 377(1)(h) of the Code, discussion
of a subject of public interest involved in the publication complained of but left to the jury the
question whether that discussion was for the public benefit.
Davies J.A. thought the jury should have been asked, in respect of each identified subject
of public interest, whether or not the public discussion of it was for the public benefit. His Honour’s
opinion was accepted in the High Court (185 C.L.R. 229 at 233). It was held that the judge erred
in "failing to put separate questions to the jury as to whether the discussion of each of the subjects
of public interest that were pleaded was for the public benefit" (233).
It is suggested above that the course the judge took, in leaving to the jury all questions
relating to the existence of qualified privilege except one matter arising under s. 377(1)(h), could
have affected the jury’s consideration of the issue of good faith under s. 377(2). Speaking
generally, a judge’s failure to decide legal questions arising under s. 377(1) might vitiate the jury’s
consideration of good faith under s. 377(2) if the jury incorrectly, as a matter of law, decided against
the defendant some question arising under s. 377(1) and applied that incorrect view in applying
s. 377(2). But in the present case we have been unable to see how that could have occurred. If
the course the judge took was erroneous, the error consisted in leaving one of the qualified
protection defences to the jury when that defence was not open; that could only have advantaged
the appellant. Further, we have been unable to identify any issue relating to qualified privilege left
to the jury which was a question of law rather than fact; nor has counsel for the appellant done so.
In the "NOTES FOR THE JURY" the judge posed two questions arising under s. 377(1)(e):
"(A) Did the viewers of the broadcast have such an interest in knowing the truth about ciguatera poisoning as to make the Defendant’s conduct in publishing the words complained of reasonable under the circumstances?
(B) Did the Defendant believe on reasonable grounds that the viewers of the broadcast had such an interest in knowing the truth as to make the Defendant’s conduct in publishing the words complained of reasonable under the circumstances?"
These issues appear to us to be factual in content, comparable with that which was held in Bellino
to be a factual point - i.e. whether public discussion of a certain subject was for the public benefit;
the same may be said of the other s. 377 issues left to the jury. It should be added that counsel for
the appellant did not complain of the course the judge took in not taking any answer at all with
respect to s. 377(1); their view on the separate issues arising under that section is not ascertainable
from the answers given. In other circumstances, the failure to ask a separate question based on s.
377(1) - or indeed the failure to ask a number of separate questions under that subsection - might
have vitiated the trial, but it does not do so here, because of the jury’s answer negativing good faith.
The only other matter with which it is necessary to deal, on the question of qualified
privilege, is whether the judge erred in failing to emphasise the factors mentioned by Mason J. in
Calwell v. IPEC Australia (above); in our opinion, the trial judge made no error in this respect.
Mason J. pointed out that at common law it has been said that a court should not "be quick to find
evidence of malice in the terms of defamatory material published on a privileged occasion" and that
"where the words are utterly disproportionate to the facts this amounts to evidence of malice" (135
C.L.R. 321 at 332); he made other observations relevant to those topics. What was being
discussed was the last part of the test in s. 17(3) of the Defamation Act 1958 (N.S.W.); that is
the same as the portion of s. 377(2) from "if the person by whom . . ." to the end. But immediately
following the passage on which reliance was placed, the judge expressed the view that one could
not -
". . . formulate a precise and illuminating criterion which will separate those publications which furnish intrinsic evidence of ill will from those which do not". (332)
There was no intention, in the references Mason J. made to what had been said under the general
law, of laying down such a test. Nor is it always essential for a trial judge to read to the jury every
observation on defamation law which has been made in the High Court and appears to be relevant
to the case before the court. What must be given to the jury is a direction on any point of law which
is essential to a proper consideration of the issues; the observations quoted from Calwell’s case
are not in that category.
Other aspects of the judge’s directions were criticized on behalf of the appellant, but in our
view the only points of substance are those dealt with above.
The appeal so far as based on the issue of liability, must fail.
Damages
As has been mentioned, the judgment in favour of the respondents was for the sum of
$344,600; that was made up of $250,000 damages plus interest of $94,600. The amount of
damages awarded was, because of the District Court’s jurisdictional limit, reduced from the total
of $285,000 damages fixed by the jury, consisting of $210,000 compensatory and $75,000
exemplary damages.
For the purpose of interest calculations, the judge made his own estimate of the
apportionment of the figure of $210,000 compensatory damages. His Honour thought that he
should "work on the basis that the jury have included in their assessment of $210,000 for compensatory damages, not less than $50,000 for ‘economic loss’". His Honour treated the
balance of the award, therefore, as being a sum of $160,000. If that is the appropriate
apportionment, it would seem to us clear that the amount was too high. The respondents’
substantial complaint, as explained in their evidence, was of damage to their business reputation
causing loss of income. That most clearly appears from the evidence of the respondent
S A Bradford, which was to the effect that the publication complained of damaged the respondents’
business and it was the falloff in business that caused personal difficulties, consisting in sale of assets
and in "tension". The other respondent R C Bradford’s evidence also was almost exclusively
concerned with financial losses and the consequences of those losses. In the evidence of R C
Bradford, one finds it said that he felt "very hurt" when he saw the relevant TV programme, but
otherwise there is little or nothing to indicate that he was damaged in any way other than financially.
This is not to say, of course, that the jury were unable to draw an inference of some loss of
personal, as opposed to business, reputation; but there is no doubt that the substance of the case
for damages was simply loss of money, caused by damage to the respondents’ commercial
reputation. It was alleged in the Statement of Claim that people shunned, avoided, ridiculed and
despised the respondents and treated them with contempt, but there was no evidence to support
that; the evidence given of adverse reactions to the publication complained of had to do with
customers of the respondents’ business.
In the primary judge’s discussion of apportionment of the damages, for purposes of
calculation of interest, his Honour said that he found it difficult to accept the particularised claims
as to the extent of the loss of trade. The appellant has argued, in effect, that that evidence had little
substance and has made specific criticisms of it. We shall give three illustrations.The first claim in the respondents’ particulars asserts that sales to Noosa Junction Seafood
were at the rate of $4,000 a month prior to 23 September 1987, the date of the publication
complained of, and implied that thereafter there were no sales. The $4,000 is a round figure, which
according to the evidence of the first respondent was derived by accountants from the respondents’
business records . The first respondent swore to the truth of the particulars. The records showed
a far different picture of the sales to that customer:
16 July 1987 $ 785.20 21 August 1987 $ 500.00 5 September 1987 $ 724.00 21 September 1987 $1,523.39 26 September 1987 $1,165.55
Average sales in July and August were $643; if one includes the sales in September prior to the
publication date (23 September) the average for the three months is over $1,000, but well short of
$4,000.
The second claim made in the particulars we have mentioned was that sales prior to
23 September 1987 to an entity called "Alexandrias" were $800 per month. It appeared from the
evidence that the respondents were referring to Alexandria’s Park Motor Inn, a customer with
whom they dealt from August 1987. In that month they sold $1,419 worth of goods and in the following month $2,871. Both those figures are considerably in excess of the $800 per month
asserted in the particulars. However, a substantial quantity of the produce sold in September was
sold after the publication date and in December 1987 over $4,000 worth of goods was sold to that
customer. The claim in respect of "Alexandrias" has no relation to the figures proved in evidence.
The third item in the particulars is a loss in respect of sales to "Tummies Corner". It was
put to the first respondent from the records that about $80 worth of produce was sold to that
customer in August and September 1987 - about $40 a month; the claim is $100 per month.
The origin of the claims to which we have just referred is a letter from Messrs Crisp Lynch
& Fagg, the accountants who were engaged to assist in preparing the respondents’ claim for loss
of business; it is dated 22 April 1988 and is Exhibit 14. The letter puts forward two calculations.
The first gives a loss of gross profit of $9,384 per annum, based on what the letter said were
average daily sales in periods of three months before and after the publication. The second is the
calculation which we have been discussing, embodied in the particulars; it produces an average loss
of monthly sales of $8,900 representing an annual turnover loss of $106,800. Working on a rate
of profit of 28.5%, the accountant suggested a figure of loss of profit over three years of $91,314.
It appears to us, however, that no evidence of substance was put forward to support this claim.
Where the figures of lost turnover came from is unclear, but whatever their source they seem to
have no relation to the truth. This second calculation was presumably adopted because the annual
loss of $9,384 derived from the first would have given a much lower total, about $30,000 instead
of $106,800. That lower total, according to some figures put before us by the appellant, is itself vitiated by error in calculation. It is unnecessary to discuss that and enough to note that if one were
looking for an indication of the impact of the publication, as opposed to all the other factors which
might have affected the respondents’ business for better or for worse, the takings in the few months
before and after the publication would seem to provide some guidance.
The court below also had before it financial statements of the respondents relating to each
of the three financial years in the period beginning 1 July 1987. These disclose that the nett profits
of the respondents in those three years and the year immediately preceding them were as follows:
Year ended 30 June 1987 $ 4,031.00 30 June 1988 $10,806.00 30 June 1989 $14,375.00 30 June 1990 $ 3,300.00
The figures for the year ended 30 June 1987 represented only four or five months trading
and may be ignored. The average profit for the other three years was less than $10,000, so that
the jury’s assessment of compensatory damages amounted to about 20 years profit. The total
amount for which judgment was given was equivalent to over 30 years profit.
It is not easy to see any sensible basis for a substantial award of exemplary damages. The
learned primary judge invited the jury to consider whether the appellant had:
"acted in a conscious way, knowing that it was doing harm to the plaintiffs or likely to do harm to the plaintiffs and in complete and utter disregard of the plaintiffs’ rights . . . ".
His Honour also suggested that exemplary damages could be awarded if "the defendant has acted
consciously doing wrong and incontumelious, that is wilfully, knowingly, total disregard of the
plaintiffs’ rights". In the address by counsel for the respondents below, emphasis was placed on
the lack of any inquires by the appellant to ensure that the publication was accurate and the lack of
efforts to preserve documentary material relevant to the case. The latter aspect does not appear
to us to have any real substance. For reasons which were never explained, the case took a very
long time to come to trial. One of the reasons suggested on the respondents’ side for their
difficulties in proving financial loss was that all the necessary documents might not have been
preserved; particularly having regard to that circumstance, it would have been almost perverse of
the jury to punish the appellant for not having kept necessary evidence. The real fault on the
appellant’s side was that no proper inquires were made to ensure that the identification of the source
of the offending fish, "traced to a vendor at the Condor Lakes Shopping Centre", was clearly
justified. There was nothing to support the suggestion that there was conscious wrongdoing or
knowing disregard of the respondents’ rights. The evidence shows that the journalist who was
responsible for the text (who seems to have had only a hazy recollection of the results of the
inquiries he made) relied upon information obtained from the Pialba Hotel, where the offending fish
was served. It would be wrong to characterise the appellant’s identification of the source as having
been entirely baseless. A Mr Donnelly, then a part-owner of the Pialba Hotel, gave evidence that
he purchased the fish which caused the trouble from the Condor Lakes Shopping Centre. A
Mr Taylor of the Fisheries Management Branch of the relevant Department investigated and
reported for that Department, identifying the same source.
There may well have been a basis for an award of some modest sum of exemplary damages,
on the evidence in this trial, but not for such a sum as was awarded.
Another point about the damage is that there was substantial evidence that, quite apart from
the publication complained of, information was circulating in the local community that it was the
respondents’ business which had supplied the fish in question.
It does not appear to us that the award can stand unless it is concluded that there was
evidence on which a jury could properly conclude that there was a very large loss of income as a
result of the publication. The specifically particularised case relating to that subject was not proved
- worse, it had the appearance of being based on figures plucked out of the air. It would in our
opinion be unfair to the appellant, the particularised case having failed, to hold that the jury was
entitled to award such damages as could hardly have been properly awarded even if the
particularised case had been established.
One last point which should be mentioned with respect to the amount of the judgment
(although not raised by either side) is the interest calculation. The learned primary judge, with the
assent of counsel below, awarded interest on the total damages fixed by the jury, $285,000. It is
not clear to us that s. 68(3)(c) of the District Court Act authorises that approach; the point was
not argued and it is unnecessary to express a concluded view.
We therefore allow the appeal with costs, set aside the judgment appealed from and order
that there be a new trial, limited to the issue of damages. The ordinary rule is that the costs of the
first trial abide the result of the second; but as was done in Electrolytic Zinc Co. of Australasia Ltd
v. Lieslak [1969] Tas.S.R. 50, the costs of the first trial will be in the discretion of the judge at the
second trial.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 3794 of 1998
Brisbane
Before McMurdo P
Pincus JA
Williams J[Wide Bay-Burnett Television Ltd v Bradford & Anor]
BETWEEN:
WIDE BAY-BURNETT TELEVISION LIMITED
(ACN 009 712 261)
(Defendant) Appellant
AND:
ROSS CLARK BRADFORD AND SHELLY ANN BRADFORD
(Plaintiffs) Respondents
REASONS FOR JUDGMENT - WILLIAMS J
Judgment delivered 22 December 1998
All facts relevant to this appeal are set out in the joint reasons for judgment of McMurdo
P and Pincus JA which I have had the advantage of reading.
The principal matter argued on behalf of the appellant was that the learned trial judge failed
to instruct the jury properly with respect to the defence of qualified protection, relevantly
s.377(1)(c), (e) and (h) of the Criminal Code as it stood as at the date of the broadcast, namely 23
September 1987. The attack on the instructions to the jury also covered what was said with
respect to “good faith”, s.377(2).
Much of the argument was based on the judgments of the House of Lords in Horrocks v
Lowe [1975] AC 135. McMurdo P and Pincus JA have fully demonstrated why that reasoning
is not appropriate where s.377 defines what constitutes qualified protection and good faith.
In my view the instructions given by the learned trial judge to the jury were an adequate
compliance with the requirements of s.377.
The next point taken was that the learned trial judge, rather than determining as a matter of
law whether the occasion was one of qualified privilege, left all questions relating to that defence to
the jury: Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 at 647, Bellino v Australian
Broadcasting Corporation (1996) 185 CLR 183 at 191, 205 and 214, and Pervan v North
Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 317. But as those cases themselves
demonstrate, where the judge’s determination depends on disputed questions of fact, those
questions must be determined by the jury. Here, there certainly were questions of fact which had
to be resolved before a decision could be made as to whether the occasion was one of qualified
privilege. But, as McMurdo P and Pincus JA have pointed out, it is difficult to see how the
approach adopted by the learned trial judge could have disadvantaged the appellant. If anything
it could only have favoured the appellant in that the jury was given a wider opportunity of finding
in its favour.
But the critical point is that the jury found against the appellant on the issue of good faith,
and any error in the approach of the learned trial judge did not constitute any misdirection on that
particular issue. As the appellant failed on that critical issue that is really the end of the matter.
I also respectfully agree with the observations of McMurdo P and Pincus JA on the
relevance of Calwell v IPEC Australia Limited (1975) 135 CLR 321.
I further agree with McMurdo P and Pincus JA that there is no substance in any of the other
criticisms of the directions given by the learned trial judge.
So far as quantum is concerned I agree that the award cannot stand. As demonstrated by
McMurdo P and Pincus JA the respondents did not substantiate by evidence their claim for
economic loss and, particularly in those circumstances, the amounts awarded by the jury were
grossly excessive. The question of exemplary damages was, in my view, one essentially for the jury
but even if they were satisfied that some award under that head was justified an amount as
substantial as $75,000 was out of all proportion to the gravity of the appellant’s conduct.
I agree with the orders proposed by McMurdo P and Pincus JA.
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