Fairfax Media has taken aim at the “appalling burden of defamation laws” in Australia after being ordered to pay $300,000 in damages to international cricketer Chris Gayle over a series of defamatory reports alleging he exposed himself to a massage therapist during the 2015 Cricket World Cup in Sydney.
In a long-awaited judgment on damages, handed down on Monday, Supreme Court Justice Lucy McCallum awarded the West Indies cricketer a single sum for a series of articles published in January 2016 in The Sydney Morning Herald, The Age and The Canberra Times.
The figure is at the lower end of the scale compared with recent defamation payouts, and is within the statutory cap of $389,500 on general damages for non-economic loss. Aggravated damages were not awarded.
Gayle launched defamation proceedings against Fairfax Media in 2016 over a series of articles which alleged he exposed himself to massage therapist Leanne Russell during the Cricket World Cup in February 2015.
A four-person jury found in October last year that Fairfax had failed to establish a defence of truth to the three allegations at the centre of the case, namely that he intentionally exposed his genitals, indecently exposed himself and indecently propositioned Ms Russell.
Justice McCallum said those imputations were serious and “went to the heart of Mr Gayle’s professional life as a batsman”. However, she agreed with Fairfax Media’s submission that they were “not at the most serious end of the spectrum”.
“In light of the jury’s verdict I am required to assess damages on the basis that the allegation of indecent exposure was not true and that the attribution of such conduct was very damaging to Mr Gayle’s reputation,” Justice McCallum said.
Massage therapist Leanne Russell, outside court last year.
Massage therapist Leanne Russell, outside court last year. CREDIT:AAP
The jury also knocked out the publisher’s defence of qualified privilege, which requires a media outlet to show defamatory articles were of public interest and it acted reasonably in publishing them.
The defence can be defeated by malice, meaning the articles were published for an improper purpose. The jury found malice had been established, wiping the defence out.
Justice McCallum said she had “disregarded the defendants’ malice in my assessment of damages” because Gayle had not given evidence in court about whether the hurt and harm he suffered was increased as a result of the publisher’s conduct in this respect.
Chris Gayle arrives at the NSW Supreme Court in Sydney on Monday, October 23, 2017.
Chris Gayle arrives at the NSW Supreme Court in Sydney on Monday, October 23, 2017. CREDIT:AAP
But Justice McCallum said Gayle’s evidence on hurt to his feelings more generally was “surprisingly compelling” and “a particular source of hurt for Mr Gayle were the fact that there were calls for him to be banned from international cricket”.
Fairfax Media plans to lodge an appeal in the case and a company spokesperson said on Monday it remained “concerned with the conduct of the trial”.
“The jury was misled in a way that prejudiced Fairfax, and Fairfax did not get a fair trial,” the spokesperson said.
“The damages award merely confirms the appalling burden of defamation laws in this country. Fairfax is immediately bringing an appeal.”
Fairfax had asked Justice McCallum to discharge the jury and order a new trial in the final stages of the trial, after raising concerns about the closing address delivered to the jury by Gayle’s barrister, Bruce McClintock, SC.
Justice McCallum said in her judgment on Monday she did “not regard there to have been anything improper in the submissions put by Mr McClintock”.
Gayle, 39, told the court the allegations made against him were “heartbreaking” and he felt compelled to come to court to “clear my name”.
His teammate, Dwayne Smith, was present in the dressing room at Drummoyne Oval in Sydney’s inner west at the time of the alleged incident on February 11, 2015. He gave evidence it “did not happen” and said “that’s something you would remember” if it did happen.
Ms Russell told the court she had set up her massage table in the West Indies team’s dressing room and had returned for lunch when she encountered Gayle and his teammate Dwayne Smith.
“Chris was wearing a towel. I believe he was wearing a shirt as well,” Ms Russell said.
She said Gayle asked her: “What are you looking for?”
“I said, ‘a towel’,” she said.
Ms Russell told the court Gayle asked her, “Are you looking for this?” and “pulled his towel out and down” to expose the top of his penis.
“I proceeded to shield my eyes and I said no,” she said.