Bass v McDonald & TCN Channel Nine Pty Ltd (No.5)

His Honour : I have been asked by counsel for the plaintiff to require the jury, if they come to damages, to determine separately what damages are recoverable for publication in Queensland and what damages are recoverable for publication elsewhere in Australia.

Counsel for the defendant opposes this course. He mentioned, although I apprehend not intending to be exhaustive, that he has had no opportunity to address the jury differentially. I do not give weight to that point because the quantification of damages, as presently contemplated, would necessarily involve the extent of publication in particular parts of Australia.

I am, however, concerned that a jury, already burdened with a multiplicity of issues and questions, many of which are conceptually difficult, and with the task of producing answers that are consistent one with the other, could be forced onto the wrong side of the line of tolerance by adding the questions that are now sought. The basis for the application is the possibility of the plaintiff ending up at this trial or on appeal with an entitlement to damages only for publication in Queensland, or with an entitlement to damages other than for publication in Queensland, by reason of the statutory provision for qualified privilege in Queensland, whereas the case has been conducted on the basis of common law qualified privilege in relation to other places in Australia.

Whilst the possibilities to which I have referred are to be recognised, they are unlikely because of the similarity between qualified privilege at common law and the statutory form of the defence in Queensland.

Taking the foregoing considerations into account I decline the application. -oOo-