ARTHUR HARRIS v 718932

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT CLD 21479/96 FILE NUMBER(S) : LOWER COURT Newman AJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

41011/01 CLD 21479/96 HANDLEY JA STEIN JA SANTOW JA

3 March 2003 ARTHUR HARRIS v 718932 PTY LIMITED (formerly Globe Press Pty Limited) & ORS

DEFAMATION - action for distinct republication of libel not for same damage as action for earlier publication and not barred by Law Reform (Miscellaneous Provisions) Act 1946 s 5(1)(b)

DEFAMATION - action for republication of libel not barred by judgment for earlier publication

RES JUDICATA - judgment for publication of libel does not bar action for distinct republication of same libel

SUCCESSIVE TORTFEASORS - tortfeasors whose separate acts cause separate damage - not joint or concurrent tortfeasors

The appellant brought an action for defamation based on reprints of a book having earlier brought an action against different defendants based on the first print in which he recovered judgment. The defendants in the second action applied for it to be dismissed as an abuse of process relying on s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946. The primary Judge held that the second action had been brought for the same damage as the first and entered judgment for the defendants. On appeal:

HELD: An action for a distinct republication of a libel is not in respect of the same damage as that suffered as a result of an earlier publication and is not barred either by res judicata or s 5(1)(b) of the Act.

(2) Judgment of Newman AJ of 10 April 2001 set aside;

(3) In lieu thereof order that the notice of motion of 28 November 2000 be dismissed in so far as it sought the dismissal of the proceedings pursuant to s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946;

(4) The third and fourth respondents to pay the appellant's costs of the motion to date including the costs of the hearing before Newman AJ on 15 March 2001. No order as to the costs to date of the other respondents to the motion;

(5) Notice of motion remitted to the Common Law Division Defamation List for the determination of the remaining claims for relief;

(6) The first, third and fourth respondents to pay the appellant's costs of the appeal. No order as to the costs of the second respondent;

(7) The first, third and fourth respondents to have a certificate under the Suitors Fund Act in respect of the costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

41011/01 CLD 21479/96 HANDLEY JA STEIN JA SANTOW JA

3 March 2003 ARTHUR HARRIS v 718932 PTY LIMITED (formerly Globe Press Pty Limited) & ORS

Judgment 1 HANDLEY JA: In November 1990 a book entitled "The Gambling Man", written by Mr Kevin Perkins (Perkins), was published in Australia (the first print). In earlier defamation proceedings commenced on 15 February 1991 (the first proceedings) the appellant, Mr Arthur Harris (Harris), sued Perkins as the author, McPhersons Ltd as the printer, Gordon & Gotch Ltd as the distributor, and other defendants. 2 The first proceedings went to trial against Perkins and Gordon & Gotch before Ireland J and a jury in February 1999, and Harris was awarded $20,000 damages. 3 The book was reprinted in February 1991 (the first reprint) and in October 1992 (the second reprint). The first respondent, formerly known as Globe Press Pty Ltd (Globe), printed the first reprint and the second respondent, Capricorn Link Pty Ltd (Capricorn), distributed both reprints. 4 In 1996 Harris commenced further defamation proceedings (the current proceedings) against Globe, Capricorn, Mr William Waterhouse and Mr Robert Waterhouse based on defamatory imputations in the book. The Waterhouses, who were sued for publishing defamatory imputations to Perkins which were republished in the book, would be liable for the republication if this was with their authority or was the natural and probable result. Speight v Gosnay (1891) 60 LJ QB 231 CA, Ratcliffe v Evans [1892] 2 QB 524 CA, 530, and Weld Blundell v Stephens [1920] AC 956, 982, 999. Perkins was originally joined as a defendant, but without the leave of the court as required by the Defamation Act 1974 s 9(3), and Harris discontinued against him. 5 None of the remaining defendants was a defendant in the first proceedings. Globe and Capricorn were not responsible for the first print, but if the allegations against the Waterhouses are established they would have been responsible and could have been joined as defendants in the first proceedings. 6 On 28 November 2000 the Waterhouses applied for the summary dismissal of the current proceedings under s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 or under the Limitation Act 1969 and in the alternative they sought various directions. On 10 April 2001 Newman AJ held that the current proceedings were an abuse of process because s 5(1)(b) barred the award of further damages for defamatory imputations in the book and he entered judgment for the defendants. Harris has appealed by leave granted by this Court on 17 May 2002. This appeal does not concern successive actions based on substantially the same publication of the same libel. Even before the Law Reform (Miscellaneous Provisions) Act 1946, or its equivalent, it was an abuse of process to bring a second action for substantially the same publication of the same libel against the same defendant (Macdougall v Knight (1890) 25 QBD 1 CA) or against different defendants (Thomson v Lambert [1938] 2 DLR 545 (SCC)). 7 Section 5(1) provides, so far as relevant: "(1) Where damage is suffered by any person as a result of a tort ... : (a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage; (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered ... against tort-feasors liable in respect of the damage ... the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given ...". 8 The Judge said: "Ex facie the provision does not operate to debar a second or later action in respect of the same damage but rather limits the amount of damages that a plaintiff may recover under subsequent judgments. In essence what the defendants are contending here is that ... the provisions of s 5(1)(b) are such that the plaintiff's damages have already been determined and that s 5(1)(b) would ... limit any additional damages". 9 In the current statement of claim Harris repleaded the defamatory imputations on which he succeeded in the first proceedings, and additional imputations not previously litigated. As the Judge pointed out, the text was the same in all prints, but the reprints contained six pages of new material under the heading: "What the media said about the first edition". Harris did not plead any cause of action based on this new material, but relied upon it in his claim for aggravated damages. 10 The Judge referred to the statement by Hunt J in Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 (Toomey), 178: "In the case of a newspaper there is a separate publication (and thus a separate cause of action) in relation to each copy delivered to a reader" and held that there was a separate cause of action in relation to each copy of the book. It is not clear that this affected his decision. 11 He held that the defendants in the current proceedings were joint or concurrent tortfeasors, who "should have been included in the first proceedings". The current proceedings were commenced before the first proceedings went to trial and after Mr William Waterhouse was joined as a cross-defendant in those proceedings. 12 The current statement of claim alleged that the first reprint was distributed until stocks were exhausted and the second was distributed between November 1992 and June 1995. The original print comprised 10,000 copies but the size of the reprints has not been disclosed. It was common ground that Harris's claim in the first proceedings was confined to the first print. The plaintiff's reputation witnesses in the trial who had read the book did not know whether their copy was from the first print or one of the reprints, but their evidence was admissible in any event, and did not widen Harris's claim in those proceedings. 13 The opening words in s 5(1): "Where damage is suffered by any person as a result of a tort ..." are central to the appeal. If there is a separate cause of action in defamation for each copy of a book delivered to a reader Harris had 10,000 causes of action in respect of the first print. Each would be a tort for the purposes of s 5(1) which contributed to the damage he suffered because the Interpretation Act 1987 s 8(b) enables the words "damage ... as a result of a tort" to be read "as a result of torts". If Harris had only one cause of action for the first print the judgment was in respect of the damage caused "as a result of" that tort. 14 The reprints released further copies onto the market and Harris either had a separate cause of action for each copy, or a cause of action for each reprint. These causes of action were against Perkins, Globe, Capricorn and the Waterhouses in respect of the first reprint, and Perkins, Capricorn and the Waterhouses in respect of the second. It is self evident that those additional torts caused further damage to Harris, but authority is not wanting. Devlin LJ said in Dingle v Associated Newspapers Ltd [1961] 2 QB 162 CA (Dingle), 190: "... the damage done by the publication of a libel must be measured, albeit roughly, in accordance with the number of people to whom the publication is made. A man's reputation is in the keeping of others and it is by words uttered to those others that it is injured; the larger the number to whom the publication is made the greater the injury".

See also John v MGN Ltd [1997] QB 586 CA, 607 per Lord Bingham MR. 15 It is also self evident that the judgment in the first proceedings was not recovered in respect of the further damage suffered as a result of the causes of action or torts in respect of the reprints. The defendants in the first proceedings, other than Perkins, were not liable for that further damage, and no claim was made in the first proceedings in respect of it. Again authority is not wanting. Devlin LJ said in Dingle (above) at 186: "Separate publications of the same libel are of course separate torts but ... one publisher will not be liable for all the damage done by another ... If each publisher is thought of as having his own circle of readers or listeners he will be made responsible for the publication to them but not beyond, and it is irrelevant to say that some other publisher will be responsible for another publication of the same libel to another circle". 16 This reflects the substance of the matter because every republication of a libel is a new libel and each publisher is answerable as if the libel had originated with him. Dingle (above) at 171 per Sellers LJ. 17 The judgment of the Court of Appeal in Dingle was affirmed [1964] AC 371, without affecting the authority of these statements. 18 Counsel for the respondents invited the Court to re-examine the rule that there is a cause of action in relation to each copy of a newspaper delivered to a reader. Most United States courts hold that there is a single cause of action in respect of each edition. 19 The multiple cause of action rule was established in Duke of Brunswick v Harmer (1849) 14 QB 185 [117 ER 75]. The plaintiff, who had been defamed in an edition of a newspaper published in 1830, succeeded in an action based on the sale by the defendant of a single copy in September 1847 which defeated a plea of the Statute of Limitations. The validity of the multiple causes of action rule is not self evident where publication occurs substantially on the one day as with an edition of a daily newspaper. For most legal purposes the law takes no account of parts of a day (Prowse v McIntyre (1961) 111 CLR 284, 270, 271, 274, 276, 277-8) so that identical publications on the same day occur at the same time. 20 In any event the effect of the rule has been mitigated, if not ignored, to avoid inconvenient results. Under common law pleading a plaintiff could plead a single count in his declaration for the publication of the whole edition of a daily newspaper and recover damages on that basis. McLean v David Syme & Co Ltd (1970) 72 SR (NSW) 513, 522, 528. The practical position is the same under Judicature Act pleading. Toomey (above) 178, 184. In my judgment this principle also applies where publication occurs over an extended period, as with books, unless time becomes critical because of a defence under the Limitation Act, or for some other reason. 21 However it does not matter for present purposes whether the first print and the reprints are viewed as generating three causes of action, or as many causes of action as there were copies in each print. The result will be the same because the judgment in the first proceedings was only "in respect of" the damage suffered as a result of the tort or torts generated by the first print, and the current proceedings have not been brought "in respect of that damage" for the purposes of s 5(1)(b). The current proceedings therefore are not barred by that section. 22 This result is not surprising because s 5(1) applies to joint tortfeasors, whose joint acts cause the same damage, and to concurrent tortfeasors whose independent acts cause the same damage. It does not apply to successive tortfeasors whose separate acts cause separate damage. See Thompson v Smiths Ship Repairers Ltd [1984] QB 405, 437-41 where Mustill J awarded damages for industrial deafness caused by the torts of two or more employers each responsible for only part of the deafness. 23 The result is consistent with established res judicata principles. Thus in Duke of Brunswick v Pepper (1848) 2 Car & K 683 [175 ER 286] the plaintiff recovered in respect of a republication of libels although he had already recovered for an earlier publication of the same libels. Similarly in Freshwater v Bulmer Rayon Co [1933] Ch 162 CA, 186 Lord Hanworth MR said: "The tort of pollution is one that is repeated ... and each act of pollution gives rise to a separate cause of action and claim for damages. This means that on each day when pollution was caused by the Bulmer Rayon Company a cause of action arose in favour of the plaintiffs ... [The earlier and later owners of the factory causing the pollution] were not joint tortfeasors, but ... they successively committed torts; and the action that can be brought by the plaintiffs against the one or the other is not for the same cause of action, but is for a similar tort committed successively by them in sequence of time".

This decision was affirmed on appeal [1933] AC 661, 667. 24 The injured person's remedies for successive wrongs are cumulative, not alternative or concurrent. The principles were summarised by Lord Nicholls in Tang Man Sit v Capacious Investments Ltd [1996] AC 514, 522 in a passage approved in Baxter v Obacelo Pty Ltd (2001) 205 CLR 635, 653 by Gleeson CJ and Callinan J: "Faced with cumulative remedies a plaintiff is not required to chose. He may have both remedies. He may pursue one remedy or the other ... or both ... just as he wishes. ... He may obtain judgment for both remedies and enforce both judgments. When the remedies are against two different people he may sue both ... He may do so concurrently and obtain judgment against both. Damages to the full value of goods which have been converted may be awarded against two persons for successive conversions of the same goods. Or the plaintiff may sue the two persons successively. He may obtain judgment against one and take steps to enforce the judgment. This does not preclude him from then suing the other". 25 Each reprint placed additional copies in the hands of additional readers which necessarily increased the damage to Harris's reputation [par 14]. It would be most unjust if a plaintiff who had recovered judgment for a first print was barred from suing for any reprints, which could be for many more copies. Such a rule would enable a defendant to republish defamatory material with impunity. 26 The Waterhouses have been sued because the republication in the reprints of their original publications to Perkins was either authorised or was the natural and probable result. They could have been sued in the first proceedings on that basis but are now protected by s 5(1)(b) in respect of the first print, and Harris has not attempted to plead that cause of action in the current proceedings. 27 Where a defamatory publication has been republished, and the plaintiff seeks to make the original publisher liable for republication by another, he has a choice, as Hunt J explained in Toomey (above) at 182. He may sue the defendant for the original publication and the republication as separate causes of action, or he may sue for the original publication and seek to recover for the damage caused by its republication. 28 Harris has sued the Waterhouses on causes of action arising from republication in the reprints. These causes of action are not barred by s 5(1)(b), and subject to the limitation defence, which has not been argued before us, are still available to Harris. 29 The substance of the matter is that each print gave rise to separate causes of action or groups of causes of action. They arose at different times, against different defendants, and caused different damage. There is no discernible reason why a judgment in respect of the first print should bar proceedings in respect of the reprints, and as already mentioned any other rule would allow defamatory material to be republished after judgment with impunity. Section 9(3) of the Defamation Act assumes that this is the law because it allows further proceedings against the same defendant for a further publication of the same defamatory matter with the leave of the Court. 30 In some circumstances the extended res judicata principle applied in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 would bar multiple proceedings for successive publications of the same defamatory matter, but on 10 August 2000 Windeyer J held that the current proceedings were not barred by that principle. This Court declined to entertain an oral application for leave to appeal from this decision made during argument on the present appeal. 31 In my judgment therefore the appeal succeeds. The following orders should be made: (1) Appeal allowed;

(2) Judgment of Newman AJ of 10 April 2001 set aside;

(3) In lieu thereof order that the notice of motion of 28 November 2000 be dismissed in so far as it sought the dismissal of the proceedings pursuant to s 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946;

(4) The third and fourth respondents to pay the appellant's costs of the motion to date including the costs of the hearing before Newman AJ on 15 March 2001. No order as to the costs to date of the other respondents to the motion;

(5) Notice of motion remitted to the Common Law Division Defamation List for the determination of the remaining claims for relief;

(6) The first, third and fourth respondents to pay the appellant's costs of the appeal. No order as to the costs of the second respondent;

(7) The first, third and fourth respondents to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. 32 STEIN JA: I agree with Handley JA. 33 SANTOW JA: I agree with Handley JA.

Last Modified: 03/04/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.