JUDGMENT
1 HER HONOUR: These are proceedings for defamation arising from the publication by Mr Ross Smyth-Kirk of a campaign letter seeking his election to the Committee of the Australian Jockey Club. The letter was published in September 2006 to other members of the Club.
2 The proceedings are listed for hearing for five days commencing on 22 September 2008. By notice of motion filed 25 August 2008, Mr Smyth-Kirk seeks an order pursuant to r 13.4(1) of the Uniform Civil Procedure Rules (UCPR) that the proceedings be dismissed as an abuse of process on the grounds that the plaintiff, Mr Noel Bracks, has already recovered a sum in respect of the damage suffered by him as a result of the same publication in earlier proceedings in this Court brought against Mr John Denoon. It is contended that s 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946 precludes the recovery of any further sum and that the proceedings are accordingly an abuse of process.
3 The matter complained of was published as a two-sided document. One side was a letter from Mr Smyth-Kirk addressed to his fellow members of the Club seeking election to the Committee. The letter relevantly includes the following passage:
"You may not be aware that there are two rules obliging members of the Committee to resign - on reaching the age of 72 and after 15 years' service. One member of the Committee, Noel Bracks, reached the age of 72 some months ago. In the past other Committee members in that position have resigned. Noel Bracks, who has legal advice that the rule is unenforceable, has remained on the Committee. No one on the Committee should have the right to consider themselves above the rules of the Club, or the wishes of members. Furthermore, Noel Bracks has recently sought to rescind the club rule that mandates Committee Members sit for a maximum of 15 years. If successful, this initiative could see him and others on the Committee stay as long as they like."
4 The other side of the document sets out a biography of Mr Smyth-Kirk together with a series of quotes attributed to various people under the heading "Testimonials for Ross Smyth-Kirk".
5 One of the testimonials is attributed to Mr Denoon and is in the following terms:
"The AJC facilities and tracks are a mess. Racing administration needs younger, dynamic business people. It's not acceptable that Noel Bracks is refusing to abide by Club rules and retire at 72 years. I have known Ross Smyth-Kirk for over 15 years. He is a very successful businessman who would bring outstanding commercial and horse racing expertise to the AJC Committee. Noel Bracks should resign, he won't, we need to vote him off and support Ross Smyth-Kirk. I'll be crossing out Noel Bracks and Graham Morcom on the ballot paper, I urge you to do the same."
6 Mr Bracks commenced proceedings against Mr Denoon in 2006. The original statement of claim in those proceedings did not plead the whole of the letter as the matter complained of, but only the words attributed to Mr Denoon. The particulars of publication specified that the words appeared on the reverse side of the letter sent by Mr Smyth-Kirk to members of the Club. It was alleged that Mr Denoon published the words himself to the recipients of that letter or alternatively published the words to Mr Smyth-Kirk and authorised him to republish them. Alternatively, it was contended that republication of those words by Mr Smyth-Kirk was the natural consequence of Mr Denoon's publishing them to Mr Smyth-Kirk. Each of those formulations is consistent with an allegation that Mr Denoon was liable as a publisher for the repetition of his words in Mr Smyth-Kirk's letter. However, the balance of the letter was not sued on. Further, Mr Bracks did not at that stage sue on the original publication by Mr Denoon to Mr Smyth-Kirk.
7 Mr Denoon made an application under UCPR 14.28 to have the original statement of claim struck out on the basis that the way in which the publication had been pleaded was embarrassing. On 14 December 2006, Nicholas J upheld that application and struck out the statement of claim with liberty to replead. The basis for his Honour's decision was that it was not open for the plaintiff to take the course of pleading as the relevant publication the Denoon segment divorced from the contents of the Smyth-Kirk letter of which it was plainly a part. His Honour referred to the decisions of Webb v Bloch (1928) 41 CLR 331 at 363 per Isaacs J and Sims v Wran (1984) 1 NSWLR 317 at 320 per Hunt J and concluded that the requirement is for the parties to focus on the particular publication which the plaintiff contends constituted a republication of the originally published defamatory matter.
8 His Honour expressed the view that this approach was consistent with the discussion of the nature of the tort of defamation in the decision of the High Court in Dow Jones v Gutnick (2002) 210 CLR 575 at [25]-[27] and, in particular, the proposition that the tort focuses on publications causing damage to reputation, which is done when a defamatory publication is comprehended by the reader, listener or observer. Against that analysis, Nicholas J held at [9]:
"the act of publication of the Denoon segment in the Smyth-Kirk letter cannot be seen as separate and distinct from the act of publication of the whole of that letter. In my view, the only reasonable conclusion is that the Denoon segment must be considered as part and parcel of, and an integral part of the whole."
9 Pursuant to the leave to replead, Mr Bracks filed an amended statement of claim in the proceedings against Mr Denoon. Since there is a dispute in the present proceedings as to what was pleaded in the amendment, it is necessary to set out its terms in detail.
10 Paragraph 2 of the amended pleading complained of the publication of the words set out in paragraph 5 above by Mr Denoon to Mr Smyth-Kirk (the original publication). Those words were set out verbatim in Schedule A of the pleading. As already noted, the original statement of claim had not sued on that publication.
11 The next paragraph identified two defamatory imputations alleged to be conveyed by the matter in schedule A.
12 Paragraph 4 alleged that Mr Denoon authorised Mr Smyth-Kirk to republish those words and, in the alternative, that republication of the words was the natural consequence of Mr Denoon's publishing the words to Mr Smyth-Kirk.
13 Paragraph 5 alleged that in September 2006 Mr Smyth-Kirk did republish the words in Schedule A "as part of a letter dated September 2006 which he published to members of the Australian Jockey Club a copy of which is at Schedule B". Schedule B was a photocopy of the whole of the letter, which is the letter complained of in these proceedings.
14 Paragraph 6 identified three imputations alleged to be conveyed by "the republication of the words in Schedule A". They were the two imputations alleged to be conveyed by the matter in Schedule A plus an additional imputation. The three imputations were alleged to be conveyed by the natural and ordinary meaning of the matter complained of or, in the alternative, with the aid of certain extrinsic facts. This is to be contrasted with the pleading of the original publication in paragraph 2, which did not plead any true innuendo.
15 Paragraph 7 alleged "by reason of the publication of the matter referred to in Schedule A and its republication in the letter which is Schedule B the plaintiff has been greatly injured in his character, credit and reputation and has suffered and will continue to suffer loss and damage."
16 Following the filing of the amended statement of claim, Mr Denoon offered to compromise all of the plaintiff's claims in the proceedings and Mr Bracks accepted that offer. In due course, judgment was entered for Mr Bracks in the sum of $26,000 and Mr Denoon was ordered to pay Mr Bracks' costs as agreed or assessed on the ordinary basis. Orders reflecting the agreed judgment were filed on 30 April 2007. The judgment debt of $26,000 has since been paid in full.
17 On 15 May 2007 Mr Bracks commenced these proceedings against Mr Smyth-Kirk. The question now raised is whether, following the satisfaction of the judgment in the Denoon proceedings, s 5(1)(b) of the Law Reform Miscellaneous Provisions Act 1946 operates so as to preclude any recovery by Mr Bracks in these proceedings.
18 Section 5(1)(b) provides:
"Where damage is suffered by any person as a result of a tort…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 same damage (whether as joint tort-feasors or otherwise) 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; and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action." (emphasis added)
19 The verdict entered in favour of Mr Bracks in the sum of $26,000 in the proceedings against Mr Denoon represents the amount of the damages awarded for the damage suffered by Mr Bracks as a result of a tort committed by Mr Denoon. The present application turns on the issue whether these proceedings are brought in respect of "that damage" against a tortfeasor liable in respect of the same damage.
20 The policy and effect of the relevant legislation was summarised uncontroversially in the submissions of the parties. The general object of section 5(1)(a) was to abolish the old rule that release of one joint tortfeasor automatically released the other: Baxter v Obacelo (2001) 205 CLR 635 at [85] per Kirby J. As noted in the submissions of Mr Leopold, who appeared with Mr Richardson for Mr Smyth-Kirk, the effect of that rule was that, at common law, a claim for damages against one joint tortfeasor merged in a judgment against another joint tortfeasor: see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1984) 155 CLR 448 at 456, 465; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 584; and Baxter in the passage cited above. Section 5(1)(a) overcame that rule.
21 Section 5(1)(b) is ancillary to s 5(1)(a). In Baxter, Kirby J expressed the view at [87] that sub-section (1)(b) is confined in its operation to the two subjects dealt with in the closing words of s 5(1)(a), namely "control of the aggregate recovery so as to prevent double dipping by reason of the reform effected in par (a); and control of the recovery of multiple costs in several actions against concurrent tortfeasors where it would have been reasonable for the plaintiff to have brought one action, that is one proceeding."
22 Mr Leopold noted that s 5(1)(b) differentiates between "damage" and "damages". He referred to the statement of Kirby J in Baxter at [88] where his Honour identified "damages" as a money sum and "damage" as a civil wrong.
23 Mr Leopold submitted that, in the present case, the "damage" the subject of each proceeding was the same civil wrong, namely the single cause of action constituted by the publication by Mr Smyth-Kirk of the letter. It is perhaps not strictly accurate to describe the publication of the letter as constituting a single cause of action. If Mr Smyth-Kirk and Mr Denoon were each liable as joint tortfeasors in respect of the publication of the letter, Mr Bracks had a separate cause of action against each of them. However, in my view, that does not undermine the force of Mr Leopold's contention. The civil wrong complained of in the present case consisted in the act of publication of the letter which, if defamatory of Mr Bracks, occasioned damage to his reputation. If there was more than one person responsible for that publication, Mr Bracks had more than one cause of action and could bring more than one proceeding, but each publisher was liable as a joint tortfeasor for the same damage. If that was the damage in respect of which judgment was entered in favour of Mr Bracks in the Denoon proceedings, then s 5(1)(b) operates so as to preclude the recovery of any additional sum.
24 Mr Hale of senior counsel, who appeared with Mr Hmelnitsky for Mr Bracks, submitted that s 5(1)(b) does not have that operation in the present case for two reasons:
a) he submitted that, in the Denoon proceedings, Mr Bracks only sued on the words in schedule A, not on the whole of the letter published by Mr Smyth-Kirk (schedule B);
b) he submitted that, even if in the Denoon proceedings Mr Bracks sued on the publication by Mr Smyth-Kirk of the whole of the letter, the "damage" inflicted by Mr Denoon by that publication is not the same damage as the damage inflicted by Mr Symth-Kirk.
25 I do not accept either of those propositions.
26 The first task is to determine what publication or publications Mr Bracks sued on in the Denoon proceedings. Mr Hale acknowledged the principle explained by Hunt J in Sims v Wran that, in respect of the repetition or republication of a libel, the plaintiff is put to an election in any claim against the original publisher. He may choose to sue only on the original publication, but seek to recover as a consequence of that original publication the damage he has suffered by reason of its repetition or republication. In that event, he is not suing on the republication as a separate publication, but is relying on it as damage caused by the original publication in accordance with the general principles relating to damages in tort: Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 183F.