AUSTRALIAN CONSOLIDATED PRESS LTD v ETTINGSHAUSEN [1993] NSWCA 10

AUSTRALIAN CONSOLIDATED PRESS LTD v ETTINGSHAUSEN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, KIRBY P and CLARKE JA 18 and 19 August 1993, 13 October 1993

[1993] NSWCA 10

DEFAMATION — photograph and text in popular magazine — photograph shows plaintiff naked in shower — text refers to "gratuitous nudity" — no specific consent secured from plaintiff for publication — plaintiff alleges imputations of deliberate exposure of genitals for publication — gives evidence of embarrassment and humiliation — jury awards verdict of $350,000 for defamation — whether errors in conduct of trial — whether verdict appealably excessive.

EVIDENCE — defamation trial — matter complained of is photograph and text in popular magazine — trial judge (Hunt CJ at CL) permits tender of (a) original dispositive slide; (b) enlarged photograph; (c) photographs taken in series; (d) also permits projection of enlargement of subject photograph — warns jury of limited use to be made of such material to aide perception of matter complained of

PRACTICE and PROCEDURE — jury trial for defamation — intervention of trial judge — limits of — appearance of neutrality in presence of jury — complaints by defendant of excessive interference and reasonable apprehension of bias — whether occasioned mistrial — whether waived by party

Held:

(1) (by the Court): In the circumstances the jury, although not entitled to award the plaintiff exemplary damages, were entitled to award aggravated damages by reason of the view they may have taken of the conduct of the publisher, including in its defence.

Andrews and Anor v John Fairfax and Sons Ltd [1980] 2 NSWLR 225 (CA) applied;

(2) The verdict was excessive having regard to (a) The statutory exclusion of exemplary damages by the Defamation Act 1974, s46; and (b) A general comparison of general damages awarded in personal injury and other awards.