Callinan J, at 94 said:
"The purpose of the legislation was remedial, to redress the injustice of the common law which generally made no provision for contribution between concurrent or joint tortfeasors."
129 In Austral Pacific Group Limited (in liquidation) v Airservices Australia (2000) 203 CLR 136 at 142 Gleeson CJ, Gummow and Hayne JJ said, "At common law there is no right to contribution or indemnity between tort-feasors. Such rights must be founded in an applicable statute." Callinan J said, at 168-169, "No right to contribution or indemnity between joint tort-feasors existed at common law. Any foundation for such a right is entirely statutory."
130 I would accept that the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 makes clear that it is no longer against public policy for there to be contribution between tortfeasors. However, the passing of the statute did not cause any common law right to contribution to arise between tortfeasors.
Present Significance of Nineteenth Century Cases Denying Contribution at Law to the Publisher of a Libel
131 In the nineteenth century case law concerning the application of Merryweather v Nixan to people who have jointly published a libel, one strand was that libel was both a tort and a crime. This double aspect was explained by Lush J in R v Holbrook (1878) 4 QBD 42, at 46-47:
"Libel on an individual is, and has always been, regarded as both a civil injury and a criminal offence. The person libelled may pursue his remedy for damages or prefer an indictment, or by leave of the court a criminal information, or he may both sue for damages and indict. It is ranked amongst criminal offences because of its supposed tendency to arouse angry passion, provoke revenge, and thus endanger the public peace, but the libeller is not the less bound to make compensation for the pecuniary or other loss or injury which the libel might have occasioned to the person libelled. In this respect libel stands on the same footing as an assault or any other injury to the person. But the publication of a libel, when prosecuted as a criminal offence, was treated upon an exceptional principle and with exceptional severity. The maxim " respondeat superior" , which (with rare exceptions founded on reasons not applicable to libel, and which I will presently notice) pertains to civil liability only, was applied to an indictment for libel, and the proprietor of a newspaper in which a libellous article had been inserted was held to be criminally as well as civilly responsible for it, though he had never authorised it, nor had anything to do with its insertion, and whether the editor had inserted it by negligence or wilfully. It was not so in other cases of personal injury."
132 That aspect of the law of criminal libel was removed in England by the statute 6 and 7 Victoria chapter 6. Section 7 of that Statute permitted a person charged with libel to prove that the publication was made without his authority, consent or knowledge and that it did not arise from want of due care or caution on his part.
133 The divergence between the civil law of defamation, and the criminal law of defamation, has increased since then. Section 49 of the Defamation Act 1974 abolished the common law misdemeanour of criminal libel (other than the law of blasphemous, seditious or obscene libel). Section 50 created a new statutory offence whereby:
"(1) A person shall not, without lawful excuse, publish matter defamatory of another living person:
(a) with intent to cause serious harm to any person (whether the person defamed or not), or
(b) where it is probable that the publication of the defamatory matter will cause serious harm to any person (whether the person defamed or not) with knowledge of that probability.
Penalty: Imprisonment for a term not exceeding three years or a fine of such amount as the court may impose or both. …
(4) Proceedings for an offence under this section may not be instituted without the written consent of the Attorney General."
134 There might still be some scope for a contract to provide an indemnity against, or contribution towards, a libel to be not enforced on the grounds of public policy if the person claiming indemnity or contribution had knowingly contravened section 50. However, the divergence between the tort of defamation and criminal defamation means that the cases I have mentioned at paragraphs 102-106 of this judgment cannot be taken as accurately stating the present law in all aspects of their reasoning. In the present case, the defendant does not allege that any of the actions of Mr Belan connected with publication of the letter and the leaflet amounted to a criminal offence. Thus, the cases at paragraphs 102-106 of this judgment cannot be relied on as sufficient to show that the plaintiff has no right to contribution - more general considerations must be looked to. (Even if publication of defamatory matter were criminal, contribution between joint publishers could be obtained under section 5 Law Reform (Miscellaneous Provisions) Act 1946, because it allows contribution "where damage is suffered by any person as a result of a tort (whether a crime or not)".)
Present Situation Re Contribution in Equity Between Tortfeasors
135 Prior to the enactment of the Law Reform (Miscellaneous Provisions) Act 1946 equity would not have allowed contribution between joint tortfeasors. Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 4th edition paragraph 10-005 say, "… the common law turned its face against contribution between joint tortfeasors in Merryweather v Nixan … and equity followed the law …" In so far as "equity following the law" in this area meant that equity would observe the same principles of public policy as the common law adopted, there is, since the enactment of the Law Reform (Miscellaneous Provisions) Act 1946, no reason for equity to object to the allowing of contribution between tortfeasors on any ground of public policy. Insofar as Merryweather v Nixan amounted to a refusal to imply an agreement to indemnify, from the mere circumstance that two people had been found jointly liable for a tort, and one of them had paid the whole of the verdict, it is speaking purely about the basis of a common law action, and there is no occasion for equity to follow it.
136 That does not necessarily mean that the way has been cleared for equity to now recognise that contribution between tortfeasors is possible, in accordance with equity's own principles. One reason why there might not be any right of contribution between tortfeasors in accordance with equity's own principles is that equity intervenes only where there is an inadequacy in either the right, or the remedy, created by the common law. It is only the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 which has removed the objection of public policy to equity allowing contribution between joint tortfeasors, yet that section has created its own remedy, and that remedy has not been submitted to be inadequate in any way. What occasion is there, then, for equity to change its view about the availability of contribution between joint tortfeasors from that which it applied before section 5 had been enacted? Further, the usual method by which equity grants contribution is by requiring a common burden to be shared by all those who are subject to it "either equally where they are liable in the same amount or proportionately, where the amount of their liability differs" (per Gaudron ACJ and Hayne J, Burke v LFOT Pty Ltd (2002) 76 ALJR 749 at 752; [2002] HCA 17 at [14]). The statutory right of contribution apportions the liability amongst tortfeasors in a different way, namely by reference to the court's view of what proportions the court regards as just and equitable having regard to the extent of each tortfeasor's responsibility for the damage. To allow equitable contribution between tortfeasors, and apportion the liability in equity's traditional way, would be to proceed contrary to Parliament's will as expressed in the statute, about how liability between tortfeasors should be apportioned.
137 These factors which make me pause about whether, today, equity would grant contribution between joint tortfeasors do not apply to a situation where there is one tortfeasor, who seeks contribution from someone who is liable for the same damage as the tortfeasor, but who is not a tortfeasor. Section 5 Law Reform (Miscellaneous Provisions) Act 1946 does not enable there to be contribution in that situation. Hence, provided other requirements for contribution are present (including the existence of coordinate liabilities) the removal, manifested by the enactment of section 5 Law Reform (Miscellaneous Provisions) Act 1946 of any public policy objection to a tortfeasor being relieved of the consequences of his own wrongdoing means that there might be contribution between a tortfeasor and someone who is not a tortfeasor.
The Judgment Against Both Tortfeasors as a Basis for Equitable Contribution
138 And what of the plaintiff's argument that the existence of a judgment against both Mr Belan and Mr Casey demonstrates that they are under a coordinate liability, which suffices for establishing an equity of contribution between them? In my view, that argument does not advance the plaintiff's cause. To explain why, I shall consider first how the existence of a judgment bears upon the availability of contribution at law between tortfeasors.
139 The existence of a judgment could, in some circumstances, provide the foundation for an action of assumpsit. In the heyday of the notion that implied contract was a basis for civil liabilities, Stephen's Treatise on the Principles of Pleading in Civil Actions (7th edition 1866) said, at 11,
"The action of assumpsit lies where a party claims damages for breach of a simple contract, ie a promise not under seal. Such promises may be express or implied; and the law always implies a promise to do that which a party is legally liable to perform . This remedy is consequently of very large and extensive application." (emphasis added).
140 The view that the law implies a promise to do that which a party is legally liable to perform led to a decision that there was an implied contract on the part of a judgment debtor to pay a judgment debt, including a foreign judgment debt (Grant v Easton (1883) 13 QBD 302 at 303 (though there is no implied promise recognised by the common law to obey a decree of the Court of Chancery (Bailey v Bailey (1884) 13 QBD 855 at 859), and no implied promise to pay a judgment of a court given under a statutory procedure which reserves to the judge a power to rescind or alter his judgment (Bailey v Bailey, at 860).) This implied contract to pay a judgment debt justified the court in using a rule which permitted service out of the jurisdiction of actions for breach of contract to enforce a judgment debt (Adcock v Aarons (1903) 5 WALR 140; State of Victoria v Hansen [1960] VR 582 at 586.)
141 However the implied contract arising from a judgment is one for the judgment debtor to pay the judgment creditor. The judgment has already declared the existence of the legal obligation for the judgment debtor to pay the judgment creditor. The existence of a judgment against two joint tortfeasors establishes nothing about the liability of the tortfeasors to pay one another. The decision in Merryweather v Nixan itself denies that there is any implied obligation for one of two joint tortfeasors, who have been found liable by judgment, to make any payments to the other joint tortfeasor.
142 So far as the judgment against two joint tortfeasors being a basis for equitable contribution is concerned, the judgment establishes that the two tortfeasors are indeed under a liability. Each of them is under a liability of the same type, and payment by one of them of that liability will discharge the other. However those factors are not by themselves necessarily enough to establish the existence of an equity of contribution. The factors which I have mentioned earlier in paragraph [136], as ones which make me pause before deciding that there can be an equity of contribution between tortfeasors, apply equally to the situation where joint tortfeasors have been found liable by judgment as to the situation where they have not been found liable by judgment.
143 I do not propose to decide whether any right of contribution between joint tortfeasors exists in accordance with equitable principles. Rather, I shall assume that it exists, and turn to consider whether the present proceeding was brought too late to enforce any such equitable right of contribution.
Application of Periods of Limitation by Analogy
144 The Limitation Act 1969 does not impose any period of limitation for an action to enforce an equity of contribution. However, section 23 explicitly contemplates that certain sections of that Act can be applied by analogy to a claim for equitable relief.
145 Insofar as an action for contribution at law was based on assumpsit, it was an action in quasi contract, and so had a six year limitation period apply to it under section 14(1)(a) Limitation Act 1969. For a claim to contribution at law, the cause of action is not complete until the plaintiff has actually paid more than his proportion of the debt due: Ex parte Snowdon; In Re Snowdon (1881) 17 Ch D 44 at 48; Wolmershausen v Gullick [1893] 2 Ch 514 at 529.
146 Independently of section 23 Limitation Act equity courts will apply a statute of limitations by analogy. This was explained by Lord Westbury in Knox v Gye (1872) LR5HL 656 at 673-4:
"That a Court of Equity will not, after the lapse of six years without acknowledgement, decree an account between a surviving partner and the estate of a deceased partner has been long settled by various decisions. The rule, of course, must be the same where the parties are reversed and the representative of the deceased's partner is the Plaintiff. The general principles were laid down as early as the case of Lockey v Lockey (Prec. in Ch 518) where it was held that where a Court of Equity assumes a concurrent jurisdiction with courts of law no account will be given after the legal limit of six years, if the statute be pleaded. If it could be doubted whether the executor of a deceased's partner can, at common law, have an action of account against the surviving partner, the result will still be the same, because a Court of Equity, in affording such a remedy and giving such an account, would act by analogy to the Statute of Limitations. For where the remedy in Equity is correspondent to the remedy at Law, and the latter is subject to a limit in point of time by the Statute of Limitations, a Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation. This is the meaning of the common phrase, that a Court of Equity acts by analogy to the Statute of Limitations, the meaning being, that where the suit in Equity corresponds with an action at Law which is included in the words of the statute, a Court of Equity adopts the enactment of the statute as its own rule of procedure."