Bracks v Smyth-Kirk

TEXTS CITED : Gatley on Libel and Slander (Ninth Edition)

PARTIES : Noel Francis Bracks (Respondent) Ross Smyth-Kirk (Applicant)

COUNSEL : Mr A Leopold SC / Mr M Richardson (Applicant) Mr T S Hale SC / Mr J O Hmelnitsky (Respondent)

SOLICITORS : Esplins Solicitors (Applicant) Noel F Bracks & Company (Respondent)

• 16 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

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.

27 As noted by Hunt J in Sims v Wran, if that is the intended course, the plaintiff is obliged to make his intention (to rely on the republication) clear in his statement of claim. His Honour cited Part 15 Rule 13 of the Supreme Court Rules 1970 as the foundation for that obligation. That rule has been repealed but replaced in identical terms by UCPR 14.14. It requires the plaintiff, in a statement of claim, to plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.

28 Alternatively, the plaintiff may sue the original publisher on the republication as a separate publication, that is, a separate civil wrong. If he chooses that course, he must plead each republication in the exact words as a separate paragraph to enable the defendant to plead to it whatever defence may be appropriate to that particular publication: Toomey at 182B; Sims v Wran at 320D. That is nothing more than an aspect of the obligation to plead the elements of each cause of action relied upon.

29 The issue whether the original publisher is liable as a publisher of the republication has traditionally been considered against the three principles stated in Speight v Gosnay (1891) 60 LJQB 231 at 232, namely, that the original publisher will be liable:

a) where he authorised or intended the republication; b) where the person to whom the original publication was made was under a duty to repeat the statement; c) where the republication was the natural and probable result of the original publication.

30 A plaintiff who sues only on the original publication, relying on the republication as part of the damage caused rather than as a discrete cause of action, does not have to plead or establish those matters. What he has to establish is that, in accordance with the general principles relating to damages in tort, the republication was part of the damage caused by the original publication. 31 Where the republication is not in the same terms as the original publication, the question is whether the original publisher authorised the substance and the sting of the republication. If the original publisher merely provided some of the material used by another in the preparation of a defamatory piece, he will not be liable as a publisher of the later publication if, as a whole, it is different in sense and substance from the material he provided.

32 A plaintiff may, of course, also have a cause of action in respect of the republication against persons other than the original publisher. The principles relevant to identifying the range of people who may be responsible for a libel as a publisher were explained in Webb v Bloch. Liability may extend to a number of people including any person who intentionally lent his assistance to the existence of the publication for the purpose of its being published; or who concurred or showed his assent or approbation to it. It is on the basis of those principles that each of the author, editor and publisher of an article may be held liable for its publication.

33 Gatley on Libel and Slander (Ninth Edition) states at [6.30] that the principle that permits the plaintiff to sue the original publisher on the republication only as part of the damage caused by the original publication is "wider" than the principle permitting the plaintiff to sue on the republication as a separate cause of action, citing Slipper v BBC [1991] 1 QB 283. In that case the plaintiff was allowed to rely on the effect of newspaper reviews of a defamatory film as damage flowing from the broadcast of the film, where the differences between the film and the reviews were such that he could not have relied on the reviews as amounting to a republication of the film. That reflects the proposition that a plaintiff who sues only on the original publication need not be concerned with whether the repetition adheres to the sense and substance of the original publication, except to the extent that it bears on the question of causation of damage.

34 According to Mr Hale, the course chosen by Mr Bracks in his proceedings against Mr Denoon was to sue only on the original publication by Mr Denoon to Mr Smyth-Kirk, relying on the repetition of those words in Mr Smyth-Kirk's letter to the members of the AJC as damage caused by the original publication: see plaintiff's outline of submissions at [11]. Mr Hale submitted that the plaintiff's amended pleading made this clear. 35 Mr Hale placed emphasis on the fact that the amended pleading adopted the formulation "republication of the words in schedule A" (which were the words attributable to Mr Denoon only). He submitted that the "matter complained of" was always the words written by Mr Denoon. 36 As to the decision of Nicholas J, Mr Hale submitted that all that was required as a result of his Honour's decision was that Mr Bracks identify the whole of the letter, being the vehicle in which the matter complained of was in fact published, "so that the tribunal of fact could determine whether it in fact adhered to the 'sense and substance' of the libel sued on". Mr Hale submitted that that was something different from having to plead the whole letter as the publication said to amount to a republication. 37 If that was the basis for the decision of Nicholas J, it does not support Mr Hale's submission. For the reasons explained above, a plaintiff who has elected not to sue on a republication as a separate cause of action need not concern himself with whether it adheres to the sense and substance of the original publication. 38 Further, the reference to the "vehicle in which the matter complained of was in fact published" introduced a level of confusion. It suggested that, rather than relying on the repetition of Mr Denoon's words in Mr Smyth-Kirk's letter only as damage, Mr Bracks had indeed sought to rely on the repetition of those words as a separate publication. 39 This is one of the many areas in which the law of defamation is attended by a level of conceptual complexity. In order to unravel that complexity, it is helpful to go back to first principles and the careful exposition of those principles in the decision of the High Court in Dow Jones v Gutnick. As noted in that decision, the tort of defamation focuses upon publications causing damage to reputation. It is the publication, not the composition of a libel, which is the actionable wrong. The damage to reputation is done when the defamatory publication is comprehended by the reader. 40 The starting point is to identify the content of the publication. That was the premise of the decision of Nicholas J in the Denoon proceedings: at [4]. His Honour decided that a single paragraph on the reverse side of the letter could not sensibly be viewed as "the publication". When Mr Smyth-Kirk published his letter, the "publication" comprehended by the reader was the whole of the letter.

41 Mr Hale submitted that Mr Bracks could not have complained, as against Mr Denoon, of the other parts of the letter because those parts were outside Mr Denoon's responsibility. If that was so, and those other parts changed the sense and substance of the words originally published by Mr Denoon, then Mr Denoon was not liable as a joint tortfeasor for the publication of the whole of the letter, because it did not amount to a republication of the words originally published by him. However, in my view, it was not open to Mr Bracks, and would have departed from the liberty to replead granted by Nicholas J, to plead as the relevant "publication" only that part of the letter that repeated the words of Mr Denoon. 42 During the development of his submission in oral argument, Mr Hale said that care had been taken in the repleading not to sue on the whole of the publication. He submitted that, if the plaintiff had been required to plead the matter in that way, it would have been open to Mr Denoon to plead defences arising from "other parts of the matter that were not sued on". In my view, that submission confuses the distinction between the two courses open to Mr Bracks discussed in Sims v Wran. If indeed Mr Bracks sued only on the original publication, no question of defences to the republication arose. He had only to prove that the republication was part of the damage caused by the original publication. 43 What Nicholas J decided was that, assuming Mr Bracks did wish to sue on the repetition of those words as a separate cause of action, it was not open to him to do so by suing only on the words themselves, divorced of their context in the letter. The original statement of claim had attempted to plead a cause of action based on the republication, not the original publication. The effect of the decision of Nicholas J was that, if that cause of action was to be maintained, Mr Bracks did have to plead the whole letter, and to face the consequence (which followed inexorably from his doing so) that it was open to Mr Denoon to plead any defence available in respect of that publication as a whole. That was the principle explained by Hunt J in Sims v Wran at 320D where his Honour said: "But, if the plaintiff intends to complain separately of that republication, he must plead each such republication in haec verba as a separate paragraph in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication." 44 Mr Leopold submitted that the amended statement of claim in the proceedings against Mr Denoon should not be read in the manner contended for by Mr Hale. He further submitted that, if the amended pleading sued only on the words of Mr Denoon as republished in Mr Smyth-Kirk's letter, it represented a contemptuous disregard of the judgment of Nicholas J who, he submitted, had very clearly rejected that exact proposition.

45 Neither party referred me to any authority as to the proper approach when the Court is asked to resolve a dispute as to whether a cause of action has or has not been pleaded but I do not think that I should resolve that issue by reference to what Mr Hale said was intended by the pleader. The proper approach, in my view, is to consider the terms of the pleadings construed objectively and in the context of the applicable law.

46 In my view, the amended statement of claim in the Denoon proceedings pleaded a cause of action against Mr Denoon as joint tortfeasor in the publication of the whole of the letter published by Mr Smyth-Kirk. That is what the words used in the pleading are apt to convey. There are three additional matters which point to that conclusion. 47 First, as already noted, the amended pleading identified an additional imputation alleged to arise from the republication. If it were intended to rely only on that part of the letter that repeated the words of Mr Denoon, the same imputations would arise from each of the matters. Indeed, it is doubtful whether it is necessary or even appropriate to plead imputations arising from a republication at all where the republication is relied on only as damage caused by the original publication. 48 Secondly, the amended pleading included a plea of true innuendo which is relied on only in respect of the republication. Such a plea is directed to the issue of publication, that is, comprehension of the publication by the reader. It is quite inconsistent with the claim that it was not intended to rely on the republication as a separate cause of action. 49 Finally, the matters pleaded in paragraph 4 of the amended pleading (which pleaded that Mr Denoon authorised Mr Smyth-Kirk to republish the words and alternatively that the republication of the words was the natural consequence of Mr Denoon's publishing them to Mr Smyth-Kirk) were matters relevant to the requirement to establish liability as a publisher for the republication. It would perhaps be an overstatement to say those matters were only relevant to that issue, but they were couched in the language of the elements of joint liability for republication. 50 Mr Hale sought to draw some support for his submission from the defence filed by Mr Denoon in the Denoon proceedings. In paragraph 4(a) of the defence, Mr Denoon in response to paragraph 4 of the amended statement of claim denied that the letter adhered to the sense and substance of the words originally published by Mr Denoon. In my view, rather than supporting Mr Hale's submission, that paragraph of the defence confirms that Mr Denoon read the statement of claim in the same way that I do, namely, that it identified, as the relevant publication that republished Mr Denoon's words, the whole of the letter published by Mr Smyth-Kirk. In any event, it is doubtful whether I should take the defence into account in construing the amended statement of claim. 51 Even if on a proper reading of the amended statement of claim it could fairly be said that Mr Bracks sued only for the repetition in the letter of the words spoken by Mr Denoon, rather than suing on the whole of the letter as amounting to a republication of those words, the amended pleading in that event ignored the reasons for decision of Nicholas J. Mr Hale's response to that proposition was that Mr Denoon ought to have made an application to have the amended pleading struck out. I do not agree. In my view, Mr Denoon was entitled to proceed on the assumption that the amended pleading adhered to the basis on which leave to replead was granted, as in my view it does. 52 The second proposition relied on by Mr Hale was that Mr Bracks suffered different damage by reason of the acts of each joint tortfeasor in respect of the publication of the letter. In my view that submission proceeds on a misconception which is revealed by an analysis of the principles set out above. The focus of the tort of defamation is damage to reputation occasioned when a defamatory publication is comprehended by the reader. As noted in Gutnick, it is the publication, not the composition of a libel, which is an actionable wrong. In my view it is not consistent with those principles to contend that a person suffers actionable damage on account of the conduct of one of the joint tortfeasors who participated in the publication, and separate actionable damage in respect of the participation by another joint tortfeasor. Once liability as a joint tortfeasor is established, each of the joint tortfeasors is liable for the whole of the damage. That is the very essence of joint liability. 53 For those reasons, in my view the present proceedings are another action brought in respect of the damage suffered by Mr Bracks as a result of the tort sued on in the proceedings brought against Mr Denoon. Accordingly, as a result of the application of s 5(1)(b), no additional sum is recoverable by Mr Bracks in respect of that tort. 54 It appeared to be common ground, although neither party specifically addressed me on the issue, that if I accepted the substance of Mr Leopold's submissions, I would be satisfied that it would amount to an abuse of process to maintain the present proceedings. In Maple v David Syme [1975] 1 NSWLR 97, Begg J held that it was an abuse of process to maintain an action for defamation in New South Wales when proceedings for defamation for the same publication had been commenced in Victoria and damages were recoverable in the Victorian proceedings for publication in New South Wales. By analogous reasoning, where no additional sum is recoverable, I am satisfied that it would be an abuse of process for Mr Bracks to maintain the present proceedings. 55 The parties indicated that, in the event that I was minded to accede to the application, they would wish to be heard as to costs. Accordingly, the order I make is that the proceedings are dismissed and I will hear the parties on the question of costs. **********

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