Fairfax loses Gayle defamation appeal

West Indies cricketer Chris Gayle has failed to win more defamation damages from Fairfax Media.
West Indies cricketer Chris Gayle has failed to win more defamation damages from Fairfax Media.

International cricketer Chris Gayle's $300,000 defamation win has been upheld despite judges finding his barrister went too far in linking a massage therapist's eating disorder to her credibility.

The NSW Court of Appeal dismissed a challenge by three Australian newspapers against the successful lawsuit brought by the West Indies batsman over a claim he exposed himself to the female massage therapist.

The three judges on Tuesday also dismissed a cross-claim by Gayle who argued his $300,000 damages payout should be increased.

In October 2017, a NSW Supreme Court jury found in favour of Gayle who sued Fairfax Media - the-then publisher of The Sydney Morning Herald, The Age and The Canberra Times - over 28 articles run in January 2016.

The four jurors found Fairfax did not establish that Gayle had exposed himself to, and propositioned, masseuse Leanne Russell in the West Indies team dressing room during a Sydney training session at the 2015 World Cup.

They found the publisher was motivated by malice, which can result in aggravated damages being awarded on top of general damages.

Justice Lucy McCallum awarded him $300,000 - plus interest of $26,112 - but made no aggravated damages award as Gayle gave no evidence saying the hurt and harm he suffered was increased by the malice.

Justices Andrew Bell, Fabian Gleeson and Mark Leeming on Tuesday dismissed the publisher's appeal, rejecting a claim it didn't receive a fair trial.

Fairfax submitted that Justice McCallum ought to have discharged the jury and ordered a new trial after Gayle's barrister launched a "pretty full-throttled attack" in his final address on the credibility of Ms Russell, its key witness.

The attack by Bruce McClintock SC included linking her evidence about what happened in the dressing room to her anorexia, but the Appeal Court noted he had not cross-examined her about this point.

Fairness dictated that "counsel refrain from inviting the jury to reject Ms Russell's evidence on the basis that she suffered from anorexia," Justice Leeming said.

Based on reading the transcript alone, the judge said the final address "had gone too far" and the anorexia submission was "potentially prejudicial and unfounded in evidence or commonsense".

But the Appeal Court found the trial had not miscarried, noting Justice McCallum gave directions to the jury to "address the excesses" of the closing address and they "sufficiently cured the breach".

The judges also found the trial judge made no error in her decision not to award Gayle aggravated damages.

Australian Associated Press