A$300,000 in general damages assessed “holistically” over three defendants involving 28 articles … No aggravated damages … Finding of malice disregarded … Truth and qualified privilege defences defeated … Consideration of whether “reasonableness” should be a matter for the judge or the jury … Criticism of closing address by plaintiff’s counsel … Basis for attack on the reliability of defence witness’s testimony … Reasons why the defendants’ application for a jury discharge was dismissed
West Indian cricketer Chris Gayle has been awarded $300,000 in damages by the NSW Supreme Court for articles published by Fairfax Media in Sydney, Melbourne and Canberra, which claimed he exposed himself to a female massage therapist while in Australia for the World Cup in 2015 ( NSWSC 1838).
Justice Lucy McCallum awarded the damages as a holistic amount across the three defendants (Fairfax Media; The Age; and Federal Capital Press) for articles published by The Sydney Morning Herald, The Age and The Canberra Times.
Gayle sued on 28 articles, but there was a substantial overlap between the articles. In summary, there were five separate articles spread across the print and electronic editions of the three newspapers over five days.
The newspapers admitted that the articles were defamatory of Gayle, conveying the following meanings:
(a) He intentionally exposed his genitals to a woman in the West Indies team dressing room during a training session at the 2015 World Cup.
(b) He indecently propositioned a woman in the West Indies team dressing room during a training session at the 2015 World Cup.
(c) He indecently exposed himself to a woman in the West Indies team dressing room during a training session at the 2015 World Cup.
After a six-day hearing in October 2017, the jury did not uphold Fairfax’s defence of truth, and it found that the publication was actuated by malice, which defeated the defence of qualified privilege.
Gayle claimed general damages for non-economic loss, including aggravated damages. There was no claim for economic loss. He accepted that where he was suing three separate entities in respect of five separate articles each published by each entity, the court had to avoid double or triple compensation.
The defendants submitted that the correct approach was to assess damages “holistically as though there were a single dispute involving the publication of a single series of articles within three geographical areas”. It was further submitted that each article group was analogous to an article published in a national newspaper.
“… there is much to be said for that approach in circumstances were articles are syndicated over several newspapers within the same national jurisdiction.”
McCallum said that Gayle’s evidence on hurt feelings was “surprisingly compelling”. She said a particular source of hurt for Gayle were the calls for him to be banned from international cricket over the alleged conduct.
McCallum accepted that the imputations were not at the most serious end of the spectrum, but that the burden of the imputations was “nonetheless serious”. She said
“… the defamation went to the heart of Mr Gayle’s professional life as a respected batsman.”
McCallum was not persuaded that aggravated damages were warranted.
A case was put forward that aggravated damages were warranted by the defendants’ conduct, including a “smear campaign” against Gayle, evidenced by the publication of the 28 articles.
Gayle’s lawyers also argued that a press release published by Fairfax Media after the jury gave its verdict, along with a follow-up article in The Sydney Morning Herald, supported the claim for aggravated damages. The press release expressed concern about the conduct of the trial and foreshadowed an appeal.
McCallum said that as no further evidence was adduced from Gayle as to the effect of the press release, aggravated damages were not warranted. She said:
“That it increased his hurt is not the only available inference; on the contrary, such an expression of soreness by his defeated opponents may well have sweetened the victory.”
McCallum said there was no need to resolve a dispute as to the proper construction of s.35(2) of the Defamation Act, in light of the decisions in the Rebel Wilson litigation.
Finding that there was nothing to warrant an award of aggravated damages, she did not find it necessary to express a view on whether the Victorian Court of Appeal got it wrong in affirming there was no role for the statutory cap on damages when aggravated damages were warranted.
McCallum indicated the amounts that she would have assessed against each defendant individually, prior to accounting for double or triple compensation. She said that she would have assessed damages of $250,000 against The Age; $200,000 against Fairfax Media Publications; and $100,000 against Federal Capital Press.
The award of $300,000 as a holistic figure took into account that the syndicated publication increased the scope of publication and caused some separate hurt and harm to Gayle.
While the jury said the defendants were actuated by malice, McCallum disregarded the factor in her assessment of damages. She said that Gayle gave no evidence that the hurt and harm he suffered was increased because of the matters canvassed during the defendants’ case.
McCallum denied the plaintiff an injunction restraining the defendants from publishing the imputations. Acknowledging that the defendants removed the matters complained of promptly after the jury verdict, she was not persuaded there an ongoing risk of sufficient magnitude to warrant an injunction.
Qualified privilege question for judge or jury?
During the trial, McCallum reversed her own concluded position on whether the qualified privilege defence was a matter for the jury.
In Daniels v State of NSW in 2015, she had ruled that the satisfaction of the element of reasonableness was one for the jury.
However, Bruce McClintock SC, for Gayle, submitted that her decision in Daniels was wrong, contending the question that should have been identified is not whether “reasonableness” is a question for the jury, but whether “a defence of qualified privilege” is to be determined by a jury. He submitted that, at general law, a defence of qualified privilege always fell to be determined by the judge rather than the jury.
McCallum considered the decision of the Victorian Court of Appeal in Herald and Weekly Times v Popovic and the Victorian Supreme Court in Belbin v Lower Murray Urban and Rural Water Corporation.
She said these cases led her to conclude that, contrary to the conclusion she reached in Daniels, the requirement of reasonableness in the statutory qualified privilege defence is not a discrete factual issue that can be carved out for determination by the jury.
She said that she formed the view that Popovic, if not strictly binding because it did not deal with the statutory defence, should be applied as providing strong support that it is for the court to determine whether the three matters listed in the statutory defence are proved so as to establish a defence of qualified privilege.
McCallum said that she did not find the issue easy to determine:
“The proposition that a whole statutory defence is carved out of a provision that assigns the determination of ‘any defence’ to the jury faces the conceptual difficulty of the exception swallowing the rule.”
She said that, on analysis, the various elements of the statutory qualified privilege defence “necessarily inform each other”. She also noted other indications in the statutory provision, such as the public interest test, that traditionally are reserved for the court rather than the jury:
“There is, for that reason, a degree of artificiality in having the elements of the defence severed for determination by different tribunals.”
At the end of McClintock’s closing address, the defendants applied to have the jury discharged. The defendants submitted that there were three aspects of McClintock’s closing that could not be cured by any direction.
The first related to a submission concerning the credibility of defence witness, Leanne Russell, the massage therapist who claimed Gayle exposed himself to her.
McClintock submitted to the jury that Russell was a liar and fabricated the accounts she gave at trial and in a witness statement. The submission focussed on supposedly inconsistent accounts given by Russell as to whether there was laughter in the change room after the alleged incident.
McCallum said that if the jury was misled as to whether Ms Russell had given inconsistent accounts, that was due to the defendants’ conduct of the trial. She said that she formed the view that it would be unfair to the plaintiff to discharge the jury, “on the basis of a problem that was of the defendant’s own making. I considered that they should be bound by their conduct of the trial”.
The second aspect of McClintock’s address the defendants submitted could not be cured by any direction concerned the issue of malice. The defendants submitted that McClintock’s closing went well beyond the particularised reply without first having foreshadowed any intention to do so or applying to amend the reply.
McCallum said that the defendants ought to have well appreciated by the end of the trial the way in which the case on malice would be put. In the circumstances, she considered the issues raised by the defence could appropriately be dealt with by direction and did not warrant discharge of the jury.
The defence also complained of submissions made by McClintock as to the relevance, in the jury’s assessment of Russell’s credibility, of her mental state, and specifically a history of anorexia.
The defendants submitted that the closing address “deployed” that condition as a general attack on the reliability of the whole of her evidence. The defendants contended that if submissions were to be put in those terms, they should have been put to Russell.
This would have allowed the defence to put on evidence as to the proposition that a history of an eating disorder could cause a person to fabricate allegations of indecent exposure or an indecent proposition.
McCallum found the prospect of such evidence to be “speculative” and did not regard there to have been anything improper in the submissions put by McClintock.
Lawyers for the defendants have been instructed to file an appeal from McCallum’s judgment, arguing that the jury was misled and the trial was not conducted fairly.
Plaintiff: Bruce McClintock SC with Matthew Richardson, instructed by Mark O’Brien Legal
Defendants: Dr Matt Collins QC with Lyndelle Barnett, instructed by Minter Ellison
Reporter: Stephen Murray
This post originally appeared in the Gazette of Law and Journalism. Australia’s leading online media law publication.