Harbour Radio P/L & Anor v John Tingle [2001] NSWCA 194

New South Wales Court of Appeal

CITATION : Harbour Radio P/L & Anor v John Tingle [2001] NSWCA 194 FILE NUMBER(S) : CA 40436/99 HEARING DATE(S) : 01/06/01 JUDGMENT DATE : 6 September 2001

PARTIES : Harbour Radio Pty Limited & Ron Casey v John Tingle JUDGMENT OF : Meagher JA at 1; Beazley JA at 11; Davies AJA at 38

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 21262/95 FILE NUMBER(S) : LOWER COURT Kirby J JUDICIAL OFFICER :

COUNSEL : A: Mr B McClintock SC / Mr G McHugh R: Mr T Blackburn / Mr R Glasson SOLICITORS : A: Bush Burke & Company R: Barker Gosling CATCHWORDS : Defamation - whether statement capable of conveying pleaded imputation - principles relating to award of exemplary damages - whether damages excessive - appeal dismissed. LEGISLATION CITED : s 7A Defamation Act (1974) Rigby v Associated Newspapers Ltd (1969) 1 NSWLR 729 at 740 David Syme & Co Ltd v Mather (1977) VR 516 at 530 Triggell v Pheeney (1951) 82 CLR 497 at 516 CASES CITED: Herald & Weekly Times v McGregor (1928) 41 CLR 254 Coyne v Citizen Finance Ltd (1991) 172 CLR 211 Clark v Ainsworth (1996) 40 NSWLR 463 Steele v Mirror Newspapers (1974) 2 NSWLR 348 Singleton v Ffrench (1986) 5 NSWLR 425 DECISION : Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40436 of 1999

MEAGHER JA BEAZLEY JA DAVIES AJA

Thursday, 6 September 2001 HARBOUR RADIO PTY LIMITED & ANOR v JOHN TINGLE

FACTS

The respondent sued for defamation arising out of a statement made by the appellant C, who was an employee of the corporate appellant, concerning the Shooters' Party. The respondent alleged that two imputations arose from the statement. The jury held that the first imputation did arise and was defamatory of the respondent, but that the second imputation did not arise.

Three issues arose on appeal: 1) whether the statement was capable of conveying the pleaded imputation; 2) whether exemplary damages should have been awarded because of the behaviour of counsel for the appellant; 3) whether the damages awarded were excessive.

HELD per Meagher JA (Beazley JA & Davies AJA agreeing): (i) The spoken words relied upon by the respondent were plainly capable of conveying the pleaded imputation. The defamatory matters arose from direct statements or from implications derived from direct statement, or inferences drawn from direct statement. None of them is an inference drawn from an inference.

Per Meagher JA (Davies AJA agreeing) & Beazley JA: (ii) The propriety or otherwise of counsel's behaviour has nothing to do with an award of exemplary damages. The principle to be applied is that stated in Rigby v Associated Newspapers Ltd (1969) 1 NSWR 729. The respondent must have felt acutely lacerated by the cross-examination and that is enough. Per Beazley JA: Forceful advocacy, within appropriate limits, of itself, is not a matter of aggravation. The question is whether the conduct of the case was unjustifiable. The trial Judge's finding that the cross-examination fell outside the bounds of legitimate cross-examination was open to him.

Per Meagher JA (Davies AJA agreeing) & Beazley JA: (iii) The damages awarded are not excessive. There is no reason for the court to interfere.

ORDERS 1 Appeal dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40436 of 1999

MEAGHER JA BEAZLEY JA DAVIES AJA

Thursday, 6 September 2001 HARBOUR RADIO PTY LIMITED & ANOR v JOHN TINGLE

JUDGMENT 1 MEAGHER JA: This appeal arises from an alleged defamatory statement by a Mr Ron Casey who is an appellant and who is also apparently an employee of the corporate appellant. On 1 November 1995 Mr Casey spoke the following words on air: "I was talking about the Shooters' Party…. And the Shooters' Party (laughs) is in debt to the State Government. Now we hear a lot about them, you know, beating their chests and they've got all this political strength and they - well they've got money coming in from the United States and the Shooters' Party in a court case, High Court Judge Sir Harry Gibbs appointed as mediator on May 26th, he said that the Shooters' Party must pay back the principal of the loan made to them by the State Government and the legal costs and the interest, which means the Shooters' Party, John Tingle's crowd, is in debt to the State Government to the tune of $880,000.00, that's right, $888,000.00. Okay fellas, shut up until you pay your bill, okay, just be quiet until you've paid your bill."

The Mr Tingle referred to by Mr Casey is the respondent. 2 Not surprisingly, Mr Tingle regarded these words as defamatory. He issued a statement of claim to that effect on 1 December 1995. It disclosed two plaintiffs: Mr Tingle as first plaintiff, and The Shooters' Party Limited as the second plaintiff. Later, the second plaintiff was wound up, whereupon the action proceeded with Mr Tingle as sole plaintiff. 3 The statement of claim, in its amended form, asserted the following two imputations, allegedly arising from the natural and ordinary meaning of the words used, and both allegedly defamatory: "(a) The plaintiff had bragged publicly about the political strength and secure financial position of the Shooters' Party, knowing that both boasts were untrue; (b) The plaintiff was a foolish politician in that he had allied himself to a political party whose members made unfounded boasts about its wealth and influence." 4 The publication took place after the introduction of s.7A of the Defamation Act (1974). A jury was empanelled to determine first whether the words spoken by Mr Casey carried the imputations alleged, and (if so) whether they were defamatory. It determined that imputation (a) did arise and was defamatory of the plaintiff, but that the imputation (b) did not arise. It was then discharged. 5 No defence was filed. The plaintiff claimed damages (including aggravated (compensatory) damages). Kirby J awarded damages against both defendants in the amount of $75,000. 6 The following facts were agreed between the parties: (a) that Mr Tingle is a member of the Legislative Council of New South Wales, being the sole representative of the Shooters' Party; and (b) that Mr Tingle is a person prominently identified with the Shooters' Party. It was never suggested, by notorious facts or otherwise, that Mr Tingle was the only person prominently identified with the Shooters' Party. 7 Three issues arose on this appeal. The first is whether the spoken words relied on by Mr Tingle were capable of conveying the pleaded imputation. In my opinion they plainly were. They stress political strength and financial strength. They state specifically that the Party's financial strength is non-existent, and inferentially that its political strength is likewise non-existent. They state that the Party had boasted to the contrary. It must be inferred that the falsity of the boasts was well-known to the Party. And, owing to Mr Tingle's position in the Party, what is known to the Party must be known to him. All these matters arise from direct statement, or from implications derived from direct statement, or from inferences drawn from direct statement. None of them is an inference drawn from an inference. 8 The second issue concerns the award of exemplary damages because of the behaviour of senior counsel for the defendants (the appellants), Mr Bruce McClintock QC. Mr McClintock's argument was simple: there was no occasion to award exemplary damages unless his conduct was improper, and it wasn't improper; he may have put his case robustly, but that is an advocate's duty. It is, of course, outrageous to suggest that Mr McClintock's behaviour was improper, or anything like it. However, the propriety or otherwise of his behaviour has nothing to do with the case. The principle to be applied when determining whether a cross-examination invites exemplary damages is that stated by Walsh JA (with whom Jacob's JA agreed) in Rigby v Associated Newspapers Ltd (1969) 1 NSWR 729 at 740. " I think that the question is not whether what was done was 'legitimate' in the sense of not infringing either the rules of evidence or the ethical standards of advocacy. The question is rather whether, in the end and in all the circumstances, of the case as found by the jury, the conduct of the case was capable of being regarded by them as not 'bona fide' or not 'justifiable' on the part of the appellant, in its resistance of the claim of the respondent."

This test was followed by the Full Court of the Supreme Court of Victoria in David Syme and Co Ltd v Mather (1977) VR 516 at 530. In the present case, Mr Tingle must have felt acutely lacerated by his cross-examination and that is enough. 9 The third issue is that the damages were excessive. They are not. Bearing in mind the comparative modesty of the amount in question, and the traditional judicial reluctance to disturb the quantum of damages in defamation cases, I think there is no reason for this Court to interfere. 10 The appeal should be dismissed with costs. 11 BEAZLEY JA: I have had the advantage of reading in draft the judgments of Meagher JA and Davies AJA. I agree with Meagher JA that the broadcast had the capacity to convey imputation (a) "that the respondent had bragged publicly about the political strength and secure financial position of the Shooters' Party knowing that both boasts were untrue". 12 That leaves the question of damages. The appellants claimed that the amount awarded for damages was excessive and unreasonable and that his Honour erred in awarding any sum for aggravated damages. It is convenient to deal with the matters of aggravation first. 13 The respondent identified a number of matters of aggravation. Of these, Kirby J found that three had been established: the falsity of the imputation; the sneering tone in which the broadcast was delivered; and the conduct of the appellants, through their counsel, in the cross-examination of the plaintiff. The argument on the appeal focussed on whether his Honour erred in finding that the cross-examination of the respondent was a matter of aggravation, although the other matters of aggravation were not abandoned. 14 Kirby J dealt with what he considered to be the unjustifiable cross-examination in paras 107 and 108 of his judgment. He said: "[The respondent] asserted that each of the ideas in imputation (a) (namely, that he was a braggart and had told untruths) occurred to him from the outset. He gave reasons for not seeking to repudiate the suggestion that he was a liar and a braggart in the apology that was broadcast. In that context, [the respondent] was twice accused of giving false testimony to this Court. He was accused of 'making it up' as he went along (T 167). Counsel returned to the issue shortly thereafter, and put the following: (T 176) 'Q. Just to make it absolutely clear … I want to suggest to you, if I haven't done it already, that your evidence that you thought that [the second appellant's] words had conveyed the first imputation about bragging publicly is untrue? A. That my evidence is untrue? Q. Yes? A. No I am sorry. It is not.'" 15 His Honour found at para 112 that: "The blanket suggestion that [the respondent] was lying to the Court in stating that he recognised that the broadcast made him out as a liar was, in my view, unjustifiable …"

and held that the cross-examination was a matter of aggravation which "increased [the respondent's] sense of hurt" . 16 The appellants submit that this cross-examination fell far short of what was necessary before an entitlement to aggravated damages was established. 17 The question whether particular conduct gives rise to an entitlement to aggravated damages is a question of fact: see Triggell v Pheeney (1951) 82 CLR 497 at 516. Such damages may only be awarded where "there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable": Triggell v Pheeney at 514. 18 In Triggell v Pheeney, the majority in the High Court (Dixon, Williams, Webb and Kitto JJ) stated at 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." 19 Their Honours concluded at 515-516: "… that it was open to the jury to regard the defendant as having no genuine belief in the plaintiff's dishonesty and as improperly putting forward the possession of such a belief in his defence, and secondly that such conduct may lawfully be taken into account in the assessment of damages." 20 In Coyne v Citizen Finance Ltd (1991) 172 CLR 211, Toohey J (Dawson and McHugh JJ expressing agreement with Toohey J's judgment) said at 237: "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." 21 Toohey J further pointed out at 238 that: "… 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." 22 McHugh J, in a separate judgment, added at 241: "Triggell v Pheeney 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': Herald and Weekly Times Ltd v McGregor [at 263]."

See also Clark v Ainsworth (1996) 40 NSWLR 463 per Sheller JA, especially at 468. 23 The appellants submitted that his Honour's finding that the cross-examination of their counsel was unjustifiable could only be sustained if: "… there was no proper basis on which counsel could put the questions at issue, such that he committed an ethical breach in putting them ." (emphasis added) 24 The appellants rely on Steele v Mirror Newspapers [1974] 2 NSWLR 348 and Singleton v Ffrench (1986) 5 NSWLR 425 in support of that proposition. 25 In Steele v Mirror Newspapers, Hutley JA said at 368: "… the misconduct of counsel to justify leaving aggravation to the jury must be grave and weighty." 26 Forceful advocacy, within appropriate limits, of itself, is not a matter of aggravation: see Hutley JA at 367, Samuels JA at 380 and 381. Samuels JA had stated the same proposition in slightly different terms at 379: "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." 27 In Singleton v Ffrench, McHugh JA likewise observed at 439 that "the vigorous persistence in a legitimate defence cannot be used to increase the damages". 28 These statements, however, do not support the appellants' submission that there must be an ethical breach before it can be said that cross-examination is unjustifiable. Nor is that the law. In Rigby v Associated Newspaper Ltd [1969] 1 NSWR 729, Walsh JA, with whom Jacobs JA agreed, said at 740: "I think the question is not whether what was done was 'legitimate' in the sense of not infringing either the rules of evidence or the ethical standards of advocacy. The question is rather whether, in the end and in all the circumstances, of the case as found by the jury, the conduct of the case was capable of being regarded by them as not 'bona fide' or not 'justifiable' on the part of the appellant, in its resistance to the claim of the respondent ." (emphasis added)

See also David Syme & Co Ltd v Mather [1977] VR 516 at 530. 29 It was not of course suggested in this case that senior counsel for the appellants had breached the Bar Rules or otherwise acted unethically, but as is clear on the authorities, this is not the point. The question is whether the conduct of the case was unjustifiable. 30 Senior counsel for the appellants submitted that it could not be said that cross-examination was unjustifiable merely because a party's answers in cross-examination were accepted (with the effect that the issue raised by cross-examination was successfully repelled). Put simply in that way senior counsel is correct, but again, is not to the point. The question is whether, on the material available and in the circumstances, the questioning was unjustifiable. 31 Cross-examination unwarranted by the available evidence would, of course, be unjustifiable. I do not think that was the case here. There was material which the cross-examiner could use to suggest to the respondent that he had not "immediately thought that the broadcast accused him of lying". That material was, in particular, the terms of the apology and the correspondence between the parties' legal representatives shortly after the publication, neither of which referred to the respondent's personal reaction to the broadcast. However, in deciding to pursue that line of attack, the cross-examiner ran a risk. The risk is that identified by McHugh J in Coyne, namely, that the tribunal of fact is entitled to take into account a range of considerations in determining whether there is an entitlement to aggravated damages. That entitlement is made out, inter alia, if one or more relevant circumstances has the effect of extending the "vitality" of the publication and its capability of causing injury to the plaintiff. 32 In this case, the risk came home. His Honour was dealing with an imputation to the effect that the respondent was a liar. As the evidence clearly revealed, that was not the case. Then, in cross-examination the appellants continued to assert that the respondent was a liar. To accuse a person of telling an untruth is no small matter. To accuse a person of telling an untruth on oath is more serious. Given that that accusation was specifically directed to the respondent's reaction to the broadcast which carried the imputation he was a liar, it was, in the circumstances, clearly one of aggravation. 33 The appellants also contended that Kirby J did not identify in his reasons in what way the cross-examination was "unjustifiable". I do not agree. His Honour identified why the cross-examination was "unjustifiable" in para 82 where he said: "It is plain from [the respondent's] evidence that the contrast between [his public statements that the Shooters Party was not funded by the National Rifle Association of America] and the words in the broadcast, was a matter of concern. Now, the finding of the jury was not based upon that matter of concern. Rather, it was based upon the more subtle message, arising from the words of the broadcast itself, that [the respondent] was not telling the truth (the sneering tone of the delivery, and the contrast between the public utterances of financial strength, and the reality of massive debt). It was, no doubt, open to counsel to suggest that any concerns of [the respondent] about an imputation of lying could only arise, in effect, as a true innuendo to those persons (such as the [respondent] himself) familiar with his public utterances on funding from the United States. However, the matter was not put on that basis. Rather, [the respondent] was cross examined upon the basis that he was giving false testimony when suggesting that he immediately though[t] that the broadcast accused him of lying. Such a cross examination was not, in my view, justifiable on this material." 34 I have viewed the matter differently from his Honour. However, I consider the distinction drawn by his Honour was valid. Having drawn that distinction, it followed on his Honour's reasoning that the cross-examination fell outside the bounds of legitimate cross-examination. As Davies AJA has said, not all judges would have taken the view that his Honour did, but it was one open to him. Accordingly, not only for the reasons which I have given, but also upon the finding made by his Honour, a case for aggravated damages was made out. 35 There were also the other matters of aggravation about which there was little debate. Those matters were peculiarly within the trial judge's fact finding task and of themselves would have sustained some award of aggravated damages. 36 That brings me to the question of damages generally, which the appellants contended were excessive. Unfortunately, his Honour did not separately identify the amount he awarded for aggravated damages. In my view it would be a preferable practice to do so. Having said that, looked at overall, including the matters of aggravation, I am of the opinion that the award was modest and should not be disturbed. 37 Accordingly, I consider that the appeal should be dismissed. 38 DAVIES AJA: I have had an opportunity to read the reasons for judgment prepared by Meagher JA. I agree with them and with the orders proposed. 39 I would, however, add a few words of my own with respect to the issue of aggravated damages. In the trial, counsel for the defendant, in a vigorous cross-examination, attacked the substance of Mr Tingle's claim. Counsel put the proposition that Mr Tingle had not at first understood the broadcast to convey the pleaded imputation and that the hurt, if any, which he suffered arose from imputations which were not pleaded. Mr Tingle's credit was seriously attacked. 40 The trial Judge, however, had a firm view that the publication carried the imputation which was pleaded, that the imputation was defamatory, that it caused Mr Tingle a great deal of upset and that Mr Tingle was an honest witness. The trial Judge considered that much of the cross-examination was misdirected and unjustifiable and that it increased Mr Tingle's sense of hurt. 41 In these circumstances, the trial Judge awarded aggravated damages. Perhaps another judge may have taken a different view. However, I see no error of principle in his Honour's approach. ******

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