International cricketer Chris Gayle has asked the NSW Court of Appeal to increase the $300,000 damages payout awarded to him in his defamation case against a suite of publications including The Sydney Morning Herald and The Age over claims he exposed himself to a massage therapist during the 2015 Cricket World Cup in Sydney.
© AAPChris Gayle leaving the NSW Supreme Court after winning his defamation case against Fairfax Media.
Mr Gayle successfully sued the publisher of the Herald, The Age and The Canberra Times over a series of articles published in January 2016 in the wake of his famous "don't blush, baby" interview with sports reporter Mel McLaughlin, then at Network Ten.
A NSW Supreme Court jury found in October 2017 that Fairfax Media, since acquired by Nine, failed to establish a defence of truth to the three allegations at the centre of the case, namely that Mr Gayle intentionally exposed his genitals, indecently exposed himself and indecently propositioned massage therapist Leanne Russell in a dressing room at Drummoyne Oval in Sydney's inner west.
In a judgment on damages published in December last year, Justice Lucy McCallum awarded the 39-year-old cricketer $325,112 for the stories, including interest.
The figure was 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.
The mastheads are appealing and in December the publisher asked Justice McCallum to grant a stay of her judgment - effectively halting the orders taking effect - so that damages would not be payable to Mr Gayle until after the resolution of any appeal.
Justice McCallum, who has since been elevated to the Court of Appeal, instead ordered half of the damages be paid immediately, as she sought to "balance competing interests" in the proceedings.
On January 21, Mr Gayle filed a notice of cross-appeal in the NSW Court of Appeal. His lawyers argue the damages awarded were "manifestly inadequate" and Justice McCallum "erred in failing to award aggravated damages".
The jury also found the publisher acted with malice, meaning the articles were published for an improper purpose. Justice McCallum did not award damages for malice because Mr Gayle did not give evidence in court about whether the hurt and harm he suffered was increased as a result of the publisher's conduct.
Mr Gayle's lawyers say Justice McCallum fell into error in this respect, and also say she did not adequately "explain her reasons or methodology" for discounting the hypothetical total amount of damages she would have awarded against the mastheads individually before arriving at a single figure of $300,000 plus interest for the three publications.
In addition, the cricketer's lawyers say aggravated damages should have been awarded for the publisher's post-verdict conduct in issuing a press release saying it believed "it did not get a fair trial" and was "seriously considering its appeal rights".
In its notice of appeal, the publisher says Justice McCallum erred in two main respects but chiefly by failing to discharge the jury in the final stages of the trial after its lawyers raised issues in relation to the closing submissions to the jury made by Mr Gayle's senior counsel.
The mastheads say the "cumulative effect" of those issues was they did not receive a fair trial and the jury should have been discharged. They are asking the NSW Court of Appeal to order a retrial in the Supreme Court.
The parties return to court for a preliminary hearing on March 6.
Pictures: Cricketers: Then and now