NORRIS v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, SHELLER and COLE JJA 13 March 1998, 18 March 1998 [1998] NSWCA 162 DEFAMATION appeal - Held: 1. No procedural unfairness at trial. 2. No bias or prejudgment by trial judge. 3. No mix-statement of principle regarding defamation damages - s46(2) Defamation Act 1974 (NSW). 4. No procedural irregularities in the damages hearing. 5. No error in trial judge's finding of quantum of damages - amount of damages awarded was within the range and reasonable. 6. The Court should not interfere with trial judge's finding that the defamatory publication was not the cause of the appellant's business failure. Priestley JA By his written submissions, and by what he said to the court, Mr Norris very clearly got across to me his strong belief that the law and the lawyers had not done right by him or his company in this case. On considering the facts of the case and the way the trial judge handled it, I do not think there is any basis upon which this court could, or should, interfere with the result reached by the trial judge. Cole JA's reasons set out the detail of the matter and I agree with what he has written. In short, my own opinion is that, notwithstanding Mr Norris's belief to the contrary, his claim and his company's claim were fairly dealt with by Badgery-Parker J, in accordance with the relevant legal rules. The only unusual thing about his reasons for judgment was their extreme thoroughness. Sheller JA I agree with Cole JA. Cole JA Garry Norris (Mr Norris), and Garry Norris Home Improvements Pty Ltd ("the Company"), sued Illawarra Newspaper Holdings Pty Ltd in defamation alleging that an article published by the newspaper on 26 March 1992 defamed each of them. The article related to an alleged dismissal of an employee for refusing to take the job of his supervisor who had arranged for the employee to obtain his job whilst the supervisor was absent on sick leave. In circumstances to which I will refer, the matter commenced before a jury but concluded before a judge alone. In a very detailed judgment delivered on 12 December 1995, Badgery-Parker J found that two of the imputations alleged to flow from the article, namely, that Mr Norris and the Company exploited young persons in the conduct of their business, and that Mr Norris had callously dismissed, and the Company had dismissed an employee for refusing the take over the position of a fellow employee who was ill, were established. Those imputations were held to be defamatory. Various defences based upon the alleged truth of the allegations in the article and common law and statutory qualified privilege were rejected. Mr Norris was awarded $60,000 damages and $5,920 interest. The Company was awarded $20,000 damages and $6,175 interest. 2 UNREPORTED JUDGMENTS Mr Norris and the Company have appealed. Mr Norris was given leave to appear on behalf of the Company. The joint notice of appeal in substance has raised five grounds. They are: 1. Procedural unfairness. 2. Bias and prejudgment by the trial judge. 3. Erroneous statement of applicable principles of damage. 4. Procedural irregularities in the damages hearing. 5. Inadequate damages. It is convenient to address each of those matters in turn. At the hearing of this appeal Mr Norris, on behalf of himself and his Company, provided to the Court a thirty-five page written submission setting forth details of his submissions, with appropriate references, in respect of each of these grounds. During the course of his oral submissions Mr Norris made certain remarks critical of the judicial system and participants in it. I have addressed those remarks only where they are relevant to issues in the appeal. Procedural Unfairness The appellants allege that because of the defendant's prolixity in cross-examination and argument the hearing was dragged out. Owing to the judge having prior commitments, and a juror having personal commitments from 24 February 1995, this resulted in the judge discharging the jury thus denying the appellants their right to a trial by jury. This prolixity also resulted in the appellants not being permitted to put oral submissions on damages. This resulted in the judge reaching a verdict based upon inadequate material. Complaint is also made concerning what were said to be "misleading comments" by the judge concerning the prospect of him delivering judgment promptly whereas as in fact there was a lengthy delay in delivering the judgment. These allegations make it necessary to consider in more detail than is usual the circumstances of the trial. It is unnecessary to set out these circumstances in full detail for they are extensively covered in pages six to eight in the judgment. However they should be briefly summarised. The parties agreed the trial would take eight to ten days. It was listed for hearing on 7 February 1995 with other long cases. On that date its prospect of being heard was slender. On the adjournment of another matter being heard by Badgery-Parker J, he became available to hear this matter. He made it known to both parties that he was not available to sit beyond Friday 24 February as he was travelling overseas on Sunday 26 February on long leave pursuant to long standing arrangements. He indicated to the parties that the matter could not be heard by him unless both parties were able to assure him that it would conclude by Friday 24 February. He further indicated that if it did not so conclude it would then be necessary to abort the trial and fix a new hearing date which would not be before 1996. Badgery-Parker J made clear that he would hear the case only upon both parties being fully aware of those circumstances and accepting them. Both parties were confident that the matter would "comfortably conclude within the available time". Accordingly the matter commenced before Badgery-Parker J and a jury of four on 7 February 1995. On the eighth day of trial, 16 February 1995, the trial judge expressed concern that the matter may not finish by 24 February. He invited the parties' consideration to then aborting the trial. He suggested an alternative, namely, that the jury be discharged and the matter proceed to conclusion before him alone. That procedure was likely to shorten the length of the trial, and left open the URJ NORRIS v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD (Cole JA) 3 possibility if the matter did not conclude by 24 February that the matter could be adjourned part heard to be resumed on the trial judge's return from long leave in June 1995, subject to his other commitments in a part heard case and some criminal sittings. On the same day a juror indicated that he was to be married on 24 February and asked whether he should cancel those arrangements. As part of these discussions, Badgery-Parker J made plain that if the matter became part heard before him alone the date when he could resume any hearing, or give judgment, was a matter of considerable speculation because of his part heard commitments in June 1995, and his obligations in a lengthy criminal trial thereafter. The matter was adjourned to enable the parties to consider these various alternatives. As the trial judge noted!: "Both parties agreed that the jury should be discharged but, rather than abort the trial entirely and wait for a new trial date in 1996, both parties agreed that, notwithstanding the delay which would still occur, they would prefer the matter to continue before me as a non-jury trial". That occurred. The hearing concluded at 4.30pm on day thirteen, namely Friday, 24 February 1995, the last day upon which the trial judge had made plain he could sit. By that time all evidence was complete and the trial judge had heard submissions on liability but not on damages. The trial judge granted leave to the appellant to file written submissions regarding damages with the respondent having a right to reply thereto. This was to occur by 31 May 1995. The appellant's counsel filed twenty-four pages of submissions on damages dated 24 May 1995. The respondent filed a fourteen page reply dated 9 June 1995. As will be apparent, the jury was discharged by consent. The appellants had the option of not consenting to that course in which event the trial would have aborted and been relisted sometime in 1996. They chose not to adopt that course and cannot now complain of their voluntary election. Both parties entered upon the trial with a jury confident that the matter would finish within ten days: in fact it took thirteen days together with written submissions on damages. It is not unusual for trials to extend beyond the estimates given by counsel. The trial judge made it entirely plain that he would abort the trial if it was not concluded by 24 February 1995, and when it became apparent that it was unlikely so to conclude offered the parties the sensible alternative of a trial by judge alone thus saving them costs and ensuring that a judgment would be delivered before the case would otherwise have be heard if it had been aborted. It is not correct to say that the appellants were denied the right to trial by jury: in the circumstances described they consented to the discharge of the jury. Further, to assert that they were not "allowed any oral submissions on damages" conveys a false impression. The plaintiff was invited to place written submissions before the trial judge. Written submissions are intended to convey adequately and accurately that which parties wish to advance. In the circumstances of this case, once the written submissions were received and considered it was for the trial judge to determine whether he wished to have any additional assistance, by way of oral submissions. Nor is it correct to suggest that the trial judge "determined the verdict with inadequate material". He had before him all the material which the parties chose to place before him. Nor, in the circumstances, was there a lengthy delay in delivering judgment. A lengthy time passed from the conclusion of the hearing on 24 February 1995 and delivery of judgment on 12 December 1995, but that was not delay. The judge made plain that he would be absent overseas until June 1. Appeal Book, p1284I. 4 UNREPORTED JUDGMENTS 1995, that he then had a lengthy part heard commitment and that was to be followed by a lengthy criminal trial. He made plain that he would not be able to give the matter attention until his return from overseas and then only after addressing the commitments to which I have referred. Any fair reading of the judgment makes clear that the trial judge devoted a great deal of time and care to the preparation of his ninety-three page judgment. The grounds of appeal based on procedural unfairness fail. Bias and Prejudgment The notice of appeal asserts that although the trial judge accepted the appellant's evidence in chief, when he addressed the question of damages he sought inconsistencies and made "a scathing attack on the character of Mr Norris, and his sister, without foundation". References by the trial judge to the article being a "mid -range defamatory article", and to the involvement of a Mr Matters, of the South Coast Labour Council who had been referred to in the defamatory article, are apparently said to show bias or prejudgment. Complaint was also made regarding the trial judge's opening remarks concerning the history of the development of the appellants' business. There is no substance in these grounds of appeal. The reference by the trial judge to the article being a "mid-range defamatory article" was merely his assessment of where the article lay in a range of defamatory matters. The assessment was plainly correct. The reference concerning Mr Matters was simply an interjection by the trial judge to correct Mr Neil QC, senior counsel for the Newspaper, who had asked an impermissible question which assumed that Mr Gartland had said he was in the presence of Mr Norris and his wife, when he had not given that evidence.2 The opening two paragraphs of the judgment are an unexceptionable account of the business of the appellants. The judge did not make a "scathing attack on the character of Mr Norris and his sister". He found that Mr Norris was "clearly not capable of describing with any clarity his personal reaction to the publication", although he accepted Mr Norris' evidence that he found the article "devastating" and that he was "disgusted" by it, and thereby suffered considerable hurt. The trial judge found that the sister was not a satisfactory witness being undisposed to give responsive answers, but rejected her evidence that Mr Norris was "a broken man" as a result of the defamation, whilst acknowledging that it may be a true description of Mr Norris resulting from his business failure. In making those assessments of the appellant and his sister, the trial judge did no more than perform his judicial duty of recording those impressions of persons who gave evidence before him which were relevant to his decision. The trial judge noted? that in many respects the evidence given by Mr Norris was unsatisfactory, and that on some occasions he lied. It was necessary for the trial judge to determine whether Mr Norris did lie because of the submission made by Mr Norris' counsel that the damages to be awarded to Mr Norris should include aggravated damages because of the manner in which the newspaper had conducted itself at the trial, in particular by accusing Mr Norris of lying. The trial judge thus had to determine whether Mr Norris had lied. He found that he had. Notwithstanding this finding, and in contradistinction to making a "scathing attack on the character of Mr Norris", the trial judge found that: 2. Appeal Book, p1324M-R. 3. Appeal Book, p2355N. URJ NORRIS v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD (Cole JA) 5 "not only was it not true that that the plaintiff and his company exploited young unemployed persons, but that the plaintiff, who had himself struggled from unencouraging beginnings to develop a worthwhile business, had a genuine sympathy for young unemployed persons, and genuinely believed that by engaging them as canvassers and offering them the training that he did, he was giving them a real opportunity to break out of the shackles of unemployment, and I am satisfied that it is a reasonable inference that he suffered increased hurt by the publication of imputations which flew precisely in the face of that."4 This ground fails. There is no basis whatsoever for the allegation that Badgery-Parker J exhibited bias or prejudgment. Wrong Statement of Principle Regarding Defamation Damages The notice of appeal states: "The law was not delivered, in as much as, a person who has been defamed, should be returned to their position prior to defamation taking place." In New South Wales damages recoverable for defamation are determined in accordance with s46(2) Defamation Act 1974 (NSW) which provides: "Damages for defamation shall be the damages recoverable in accordance with the common law, but limited to damages for relevant harm." "Relevant harm" is defined to mean "harm suffered by the person defamed". By s46(3) damages for defamation are not to include exemplary damages and are not to be affected by malice or other state of mind of a publisher except in so far as that malice or other state of mind affects the "relevant harm". Badgery-Parker J did not misstate the principle upon which damages are to be awarded. He said: "In relation to the individual plaintiff, his damages are specifically to compensate for damage to his reputation and for hurt to his feelings (which may in certain circumstances include aggravated hurt produced by conduct of the defendant other than the mere fact of publication). At the same time, the award of damages is to serve as a vindication of the plaintiff. Usually, an award sufficient to compensate will also be sufficient to vindicate (Carson v John Fairfax & Sons Ltd (1992-93) 178 CLR 44 at 66)."5 That is a correct statement of principle regarding the individual appellant, Mr Norris. Regarding the company appellant, the trial judge said: "The company is entitled to damages in respect of injury to its trading reputation and, there being no allegation of special damages, damages by way of compensation for such general loss of business as is shown to have resulted from the publication of the defamatory material.Ӣ That is also a correct statement of principle. This ground of appeal fails. Damages The complaint in the notice of appeal is that there was "no hearing by judge or jury on this issue", that the appellant's counsel's submissions were greatly suppressed "and does not reflect true damages", that accordingly the judgment 4. Appeal Book, p1354M-S. 5. Appeal Book, p1348X. 6. Appeal Book, p1357V. 6 UNREPORTED JUDGMENTS "has to be in error because of the inadequacy of material supplied". It is submitted that "I was never heard fairly". Each of these statements is inaccurate. There was a hearing on damages conducted by the judge. The parties were each given every opportunity to place before him such evidence as they saw fit concerning damages. Extensive written submissions were provided in the circumstances I have discussed. Any failure by the appellant to place before the court evidence or submissions on damages does not flow from the conduct of the trial by the judge. Having had the opportunity to put such material as they chose on the question of damages, and to provide the trial judge with full written submissions on damages, it is not correct to suggest that the appellants were not "fairly heard" on the question. This ground fails. Quantam of Damage The appellants contend that the damages are inadequate, and would have been greater had they had a "fair hearing on damages". Ihave previously concluded the appellants did have a fair hearing on damages. The trial judge found that two imputations alleged were established and were defamatory. His Honour then addressed separately, in accordance with principle, the entitlement to each of the individual and company appellants to damages. Having carefully considered his Honour's reasons, I can detect no error. The amounts of damages awarded were, in my view, plainly within the applicable range of damages available to be awarded, and were reasonable. In submissions, no particular error or defect in the process of reasoning of the trial judge was able to be pointed to. There is however, one particular matter to which I should refer. Mr Norris' general contention was that the defamation ruined his business. The defamation occurred in March 1992. The business closed in August 1993. It was necessary for the trial judge to determine whether the defamation had the effect for which Mr Norris contended. His Honour said: "T am satisfied, on a consideration of the whole of the statistical material, that the plaintiff company did lose some business as a result of the publication of the defamatory article, but I am not thereby satisfied that the effect was other than very short lived. At most, it appears to me that that material shows, on a slender balance of probabilities, a significant loss of business during April 1992 and some slight diminishing loss in the two or three months following."7 and later: "T am not satisfied that the figures demonstrate any long-continuing effect and in particular I am not satisfied that the decline in the plaintiffs business from April 1992 till its eventual abandonment in August 1993 was attributable to the effects of the defamation. I accept, on the basis of Watt's analysis, that that downward trend which can be perceived in relation to Flexalum products was well established prior to the publication of the defamatory material, as was the overall downward trend in the value of the company's monthly sales, shown particularly clearly in Appendix 5D to Exhibit 24. The evidence establishes a number of aspects of the company's business practice and management (to which I find it unnecessary to refer in detail) all or any of which may be possible reasons for that. In any event, the trend being established prior to publication, the 7. Appeal Book, p1365N-S. URJ NORRIS v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD (Cole JA) 7 evidence simply does not justify the view that the publication was the cause of the continuing downward trend thereafter, except to the extent of the short dip to which I have already referred."8 Those statements were made after a close examination of sales and revenue figures placed before the judge on behalf of Mr Norris and an analysis of them by accountants. Having made those findings it was unnecessary for the trial judge to determine what in fact was the cause of the business failure. His task was only to determine whether the failure was due to the defamation, and on that issue the plaintiff bore the onus and failed. The evidence concerning the reasons for failure of the business was scant. It was not addressed with any clarity in the plaintiff's evidence. Addressing the question, for the third time, whether the publication of the defamation had caused the company to go out of business his Honour said: "T am not satisfied that it was the publication of the defamatory imputations that drove the company out of business - indeed, Norris has not offered any very clear explanation as to why the company did cease to trade; Watt expressed the view that the company's position was not so hopeless that it was forced to that course; there is the rather strange circumstance that Norris told an officer of the Department of Consumer Affairs that he was going to cease trading so that he could concentrate his efforts on the defamation action, presumably because he thought it was likely to be more profitable. It is unfortunate that he should be so wrong in that anticipation."9 (Emphasis added) Mr Norris took exception to the statement that he told an officer of Consumer Affairs that he was ceasing business to concentrate his efforts in the defamation action. Mr Norris gave the following evidence: "Q. Did you tell Mr Robertson that on or about 28 July 1993 you were seriously considering closing down your business operations in Wollongong for a period of 12 months or so? A. No, I did not. Q. You deny that, do you? A. Yes, I do. Q. Did you tell Mr Robertson that over the following 12 months you were concentrating on pursuing through the courts a defamation which you had commenced against a local newspaper in relation to an article in which you and your business allegedly were criticised? A. That's correct. Q. Did you close down the business in about mid 1993? A. Thad no choice. Q. Did you close it down in order to concentrate on your Court case? A. No. Q. Did you close it down with the view to being out of business for about 12 months or so while you concentrated on your Court case and started up the business again? A. No"10 However there was other evidence from Mr Robertson. Regarding his discussion with Mr Norris on 28 July he said: 8. Appeal Book, p1366P-C. 9. Appeal Book, p1368I-P. 10. Appeal Book, p154L - V. 8 UNREPORTED JUDGMENTS "Q. Do you recall anything he said about the topic of his business? A. Yes, two things. He indicated to me that he was considering closing his business down probably for a period of 12 months or so and secondly that if he did that he was going to concentrate on a defamation action that he had instigated. Q. Does the minute, the copy of which is exhibit 7, accurately reflect the substance of the conversation you had with Mr Norris in terms of what he told you. A. It does."!! Exhibit 7 being a report from Mr Robertson to the Minister stated: "At the meeting, Mr Norris: * advised me that he was seriously considering closing down his company's operations in Wollongong for a period of 12 months or so; ¢ informed me that over the following 12 months he would concentrate on pursuing through the Courts a defamation action he has commenced against a local newspaper in relation to an article in which he and his business allegedly were criticised." !2 That evidence of Mr Robertson leaves equivocal the issues whether the business was closed down "so that" he could concentrate his efforts on the defamation action, as the trial judge found. However, there was a later discussion between Mr Robertson and Mr Norris on 18 October 1993. Mr Robertson's handwritten note of that conversation stated: "Mr Norris confirmed that he has, for the time being, ceased his home improvements operations to concentrate on his defamation action which he is confident will be finalised early 1994."13 Mr Robertson in oral evidence confirmed the accuracy of that note saying that: "He told me that for the time being he had ceased the operations of his business to concentrate on the defamation action." !4 This makes clear that there was evidence available to the trial judge grounding his comment that Mr Norris had told an officer of the Department of Consumer Affairs that he was going to cease trading "so that" he could concentrate his efforts on the defamation action. Further, there was evidence before the trial judge of factors operating to diminish the business, quite apart form the publication of the defamatory article. That evidence included the effects of the recession, heavy competition in the industry, complaints by the public about the quality of workmanship carried out by the Company, a matured market for aluminium home improvements and cladding, neglect of the business by Mr Norris because of other developments and personal circumstances, the fact that the Company was existing on retained profits, and the effect of serious complaints made to the Consumer Affairs Commission regarding the business. In my view there is no basis upon which this Court should interfere with the finding of the trial judge that the publication of the defamatory material was not the cause of the business failure. It follows that the appeal should be dismissed with costs. 11. Appeal Book, p657K-O. 12. Appeal Book, p1004M-P. 13. Appeal Book, p1153 (Exhibit 30). 14. Appeal Book, p658C. URJ NORRIS v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD (Cole JA) Appeal dismissed with costs. The appellant appeared in person Counsel for the respondent: D A Caspersonn Solicitors for the respondent: Freehill Hollingdale & Page