Gayle v Fairfax Media Publications Pty Ltd (No 2) Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838

Supreme Court New South Wales

Medium Neutral Citation: Gayle v Fairfax Media Publications Pty Ltd (No 2) Gayle v The Age Company Pty Ltd (No 2); Gayle v The Federal Capital Press of Australia Pty Ltd (No 2) [2018] NSWSC 1838 Hearing dates: 23, 24, 25, 26, 27, 30, 31 October 2017 Decision date: 30 November 2018 Jurisdiction: Common Law Before: McCallum J Decision: Damages assessed in the amount of $300,000; publication of reserved reasons for rulings given during jury trial Catchwords: DEFAMATION – damages – assessment after trial by jury – imputations of indecent exposure in a change room by a well-known sportsman – multiple publications by multiple defendants conveying the same imputations – importance of avoiding double-counting

DEFAMATION – defences – defence of qualified privilege under s 30 of the Defamation Act – requirement of proof that the conduct of the defendants in publishing the matter complained of was reasonable in the circumstances – whether that is a question for the jury or the judge – consideration of s 22 of the Defamation Act

JURIES – application to have jury discharged after plaintiff's closing address – submission to the jury as to the credibility of a key defence witness – submission based on inconsistencies between matters put to the plaintiff's witnesses by counsel for the defendant and the subsequent evidence of the defence witness – reasonable but mistaken inference by plaintiff's counsel as to the source of one matter put – fairness of keeping the defendants bound by their conduct of the case – submission to the jury as to malice – where counsel's closing address extended beyond the matters particularised in the reply – whether defendants had fair notice of the additional matters raised – submission to the jury as to the key defence witness's mental state – submission suggesting connection between mental illness and reliability of evidence not put to the witness Legislation Cited: Defamation Act 2005 (NSW), ss 22(2), 22(3), 22(5), 25, 30, 30(1), 30(4), 34, 35, 35(2), 36, 38(1)(d), 39 Cases Cited: Barbaro v Amalgamated Television Services Pty Ltd [1985] 1 NSWLR30 Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 Belbin v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 Dare v Pulham [1982] 148 CLR 658 Daniels v State of New South Wales (No 6) [2015] NSWSC 1074 Herald and Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 R v Robinson (1977) Qd R 387 Water Board v Moustakas [1988] 180 CLR 491 Wilson v Bauer Media Pty Ltd [2017] VSC 521 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Category: Principal judgment Parties: Chris Gayle (plaintiff) Fairfax Media Publications Pty Ltd (defendant in proceedings 2016/13257) The Age Company Pty Ltd (defendant in proceedings 2016/13259) The Federal Capital Press of Australia Pty Ltd (defendant in proceedings 2016/13260) Representation: Counsel: B R McClintock SC, M Richardson (plaintiff) Dr M Collins QC, L Barnett (defendants)