Court of Appeal upholds decision that Newspaper must pay significant damages for defaming journalist and pay indemnity costs on the District Court scale17 May 2017 | Defamation
The Court of Appeal upheld the decision of the Supreme Court of Townsville that a national Australian newspaper defamed a retired journalist by publishing an article that the journalist was "was habitually intoxicated" and lost his job as a result. The Court of Appeal further determined that the journalist was entitled to indemnity costs on the District Court scale, despite the journalist being awarded damages within the jurisdiction of the Magistrates Court.
- Whether allegedly defamatory imputations were substantially true.
- Whether the plaintiff should be entitled to costs on the Supreme or District Court scale despite being awarded damages that fell within the jurisdiction of the Magistrates Court.
Malcolm Weatherup (the Journalist), a former court reporter for the Townsville Bulletin, sued Nationwide News Pty Ltd (the Newspaper), the publisher of The Australian newspaper, claiming that he was defamed by an article that appeared in The Australian on 16 June 2014 (the Article).
Decision at trial
The Journalist’s claim against the Newspaper was tried before a jury in the Supreme Court in Townsville. The Journalist alleged that the Article conveyed four defamatory imputations or meanings concerning him. The Newspaper defended the Journalist’s claim on the grounds that the imputations (if defamatory) were substantially true and, by reason of three contextual imputations (also alleged to be substantially true), the allegedly defamatory imputations did not cause further harm to the Journalist’s reputation.
The jury determined that the Article defamed the Journalist because the Article made two defamatory imputations that were not substantially true. Relevantly, the Article imputed that the Journalist “is a person habitually intoxicated” and “his habitual intoxication was sufficient to incur the wrath of judges, thereby causing his being obliged to leave the employment of the Townsville Bulletin” (the 'Defamatory Imputations'). The jury also determined that harm was done to the Journalist’s reputation by the publication of a contextual implication in the Article that the plaintiff had, in a fit of anger, committed wilful damage by kicking a neighbour’s car (the 'Contextual Imputation').
The trial judge assessed the Journalist’s damages at $100,000 plus costs and interest. The trial judge subsequently determined that the Newspaper unreasonably failed to accept the Journalist’s settlement offer of $60,000 plus costs, and therefore ordered that the Newspaper pay costs on an indemnity basis on the Supreme Court scale.
Issues on appeal
The Newspaper appealed to the Court of Appeal contending that the jury’s findings were one which no reasonable jury, properly directed, could make and also appealed the trial judge’s decision to order costs on the Supreme Court scale.
Decision on appeal
The Court of Appeal determined that the jury’s finding at trial that the Contextual Imputation was substantially untrue was unreasonable. The Court of Appeal determined that the jury’s findings with respect to the Defamatory Imputations were otherwise entirely reasonable.
The Newspaper alleged that the Court of Appeal’s finding that the Contextual Imputation was substantially true permitted a conclusion that the Defamatory Imputations did not do further harm to the Journalist’s reputation. The Court of Appeal rejected the Newspaper’s argument and determined that the Defamatory Imputations were apt to cause further harm to the Journalist’s reputation.
With respect to the issue of costs, the Newspaper did not challenge the trial judge’s finding that it should be ordered to pay the Journalist’s costs on an indemnity basis. However, the Newspaper asserted that indemnity costs should be assessed on the basis that the proceedings had been commenced in the Magistrates Court (as damages could have been awarded in the jurisdiction of the Magistrates Court).
The Journalist sought a trial in the Supreme Court because of his entitlement to elect a jury trial and because both the District Court judges that reside in Townsville were personally known to the Journalist.
The Court of Appeal determined that the vindication which the Journalist obtained by virtue of the jury’s verdict meant that the Journalist’s success should not be measured simply by reference to the size of the monetary award subsequently assessed. Therefore, the Court of Appeal determined that the journalist should not be disentitled to an assessment of costs on the District Court or Supreme Court scale.
However, the Court of Appeal determined that it would not have taken any great management to have a District Court judge, who was not a resident in Townsville, to preside over a jury trial. In the circumstances, the Court of Appeal determined that the most appropriate order was for costs to be assessed on an indemnity basis by having regard to the District Court scale.
Implications for you
This appeal provides a reminder that it is for a jury to assess the credibility and reliability of each witness at trial. It is not the role of Court of the Appeal to supplement the findings of a jury in this regard.
With respect to the issue of costs, uniform state defamation laws make special provision for costs and provide protection to a successful plaintiff where a court is satisfied that a defendant unreasonably failed to settle proceedings. This appeal confirms that where a successful plaintiff elects for a trial by jury, that plaintiff may not be disentitled to an assessment of costs on the District Court or Supreme Court scale simply because the monetary award assessed falls within the monetary jurisdiction of the Magistrates Court.