Abuse of Process
143 The principles concerning abuse of process were recently summarised in Habib (at [78] - [80]) per McColl JA (Giles and Campbell JJA agreeing). It is sufficient to note for present purposes that what amounts to abuse of court process is insusceptible of a formulation comprising closed categories (Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at [1], [9]) per Gleeson CJ, Gummow, Hayne and Crennan JJ; PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 (at [3]), per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.). The High Court set out in PNJ v R (at [3]) the common characteristics of proceedings said to amount to an abuse of process. The respondent did not contend before the primary judge, or in this Court, that any of those characteristics could be discerned in the Smyth-Kirk proceedings. I shall return to this.
144 Two other general observations should be made. First, the power to stay proceedings permanently, or dismiss them on the ground that they are an abuse of process should be exercised with caution: Habib (at [79]). Secondly, a decision to stay or dismiss proceedings on the basis that they are an abuse of process involves the exercise of discretion. Accordingly "as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts, or failed to take into account some material consideration": Batistatos (at [7]) referring to R v Carroll [2002] HCA 55; (2002) 213 CLR 635 (at [73]) per Gaudron and Gummow JJ.
145 As I said earlier in these reasons, the primary judge (at [54]) approached the question whether the present proceedings constituted an abuse of process on two bases. First, that it was common ground that if the respondent's submission were accepted, she would be so satisfied. The basis of that common ground was clearly not articulated by the parties. Secondly, her Honour held the Smyth-Kirk proceedings were an abuse of process because, by analogy with Maple v David Syme the appellant could recover no sum additional to that he had recovered in the Denoon proceedings. I infer her Honour reached the latter conclusion because even though, if successful, the appellant could have been awarded damages in an amount which did not exceed those the subject of the consent judgment in the Denoon proceedings (s 5(1)(b)), he could not recover any part of any such award as the judgment in the latter proceedings had been satisfied.
146 There is no ground of appeal directly challenging the primary judge's finding that the proceedings were an abuse of process. It was not until the Court raised with Mr Leopold the question as to how the proceedings could constitute an abuse of process when s 5(1)(b) contemplated proceedings subsequent to those in which the first award of damages was made that Mr Hale sought in reply to challenge, as I understood his oral submission, her Honour's perception as to the common ground to which she referred. He drew attention to a statement in his written submissions before the primary judge contending, in substance, that a plaintiff defamed by more than one defendant is entitled to be vindicated against each of them. That submission appears in the section of those submissions dealing with the appellant's contentions that the damages he sought to recover in these proceedings differed from those he sought to recover in the Denoon proceedings. In my view they do not detract from the primary judge's statement about the common ground she perceived between the parties. Her Honour was entitled to draw that inference.
147 The fact the appellant in effect conceded at trial that the outcome of acceptance of the respondent's submissions would mean the present proceedings constituted an abuse of process means it cannot be said, in my view, that her Honour's ultimate exercise of her discretion to dismiss the proceedings as an abuse of process miscarried. The appellant did not swear an affidavit in opposition to the motion stating he wanted to vindicate his reputation in respect of Mr Smyth-Kirk's tort, even if pursuant to s 5(1)(b) he could not recover any more than he had in the Denoon proceedings. Indeed apart from pointing to the claim below that the appellant was entitled to vindicate his reputation against all defamers (and, of course, apart from his submissions that s 5(1)(b) was not engaged), Mr Hale did not seek to identify any matters which would attract appellate interference with a discretionary decision.
148 That being the case, the appellant should be held to the manner in which the trial was conducted: Multicon Engineering Pty Ltd v Federal Airports Corp (1997) 47 NSWLR 631; Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. Having failed on his substantive submissions, the Court should accept his concession at trial that the proceedings would, in that event, constitute an abuse of process.
149 This aspect of the appeal should not be allowed to rest at this point. Had it not been for the appellant's concession before the primary judge, there are several factors which might be taken into account in determining whether, in the circumstances, a later action caught by s 5(1)(b) constituted an abuse of process.
150 First, s 5(1)(b) expressly contemplates that more than one action may be brought "in respect of that damage", even though "the sums recoverable under the judgments given in those [subsequent] actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given". Prima facie, even a plaintiff who has been awarded damages in the first action has the right to invoke the jurisdiction and the powers of the court to seek the resolution of his or her dispute against other joint or concurrent tortfeasors (Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 (at [96]) per Gummow, Hayne, Crennan, Kiefel and Bell JJ) at least until that judgment is satisfied.
151 Gleeson CJ and Callinan J expressly recognised in Baxter (at [38] - [39]) that "[w]here a plaintiff has suffered loss or damage caused by the conduct of a number of tortfeasors, whether joint tortfeasors or several concurrent tortfeasors, the plaintiff's claims may be pursued in one or a number of actions". This was subject to the observation that it might be unconscientious to pursue a claim against another tortfeasor if the plaintiff had recouped his or her whole loss: Baxter (at [40], [46] - [48]) Gleeson CJ and Callinan J; (at [57]) per Gummow and Hayne JJ.
152 The respondent did not contend, in this court, or below, that the effect of the satisfaction of the judgment entered in the Denoon proceedings meant that the appellant had fully recouped his loss so that, in accordance with principles discussed in Baxter, he could recover no more. Rather the respondent's case was that whatever damages might flow from his publication of the campaign letter, the effect of s 5(1)(b) was that the amount of any actual award could not exceed the judgment in the Denoon proceedings.
153 Secondly, while as discussed, s 5(1)(b) is clearly directed to the problem of multiplicity of actions (Baxter (at [29]); Wah Tat Bank Ltd v Chan [1975] AC 507 (at 518)) the device used to discourage such claims lies in the costs penalty the sub-section contemplates.
154 Thirdly, subsequent actions may be appropriate, for example, if the judgment debtor from whom the plaintiff first sought satisfaction of the judgment was impecunious, so that satisfaction might be sought from other judgment debtors until the whole of the judgment debt was paid: XL Petroleum (at 466) per Brennan J.
155 Finally, subsequent actions may also be appropriate in defamation proceedings where, as the appellant submitted below, albeit only on the "different damage" point, damages operate as a vindication of the plaintiff to the public and as a consolation for the wrong done to him: Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 (at 150) per Windeyer J; John Fairfax & Sons Ltd v Kelly (1987) 8 NSWLR 131 (at 142) per McHugh JA, Kirby P agreeing; Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 (at 60 - 61) per Mason CJ, Deane, Dawson and Gaudron JJ.
Orders
156 I would grant leave to appeal but dismiss the appeal with costs.
157 YOUNG JA: I have read the reasons of McColl JA in draft and am indebted to her for her detailed coverage of the relevant facts, circumstances and statutory provisions so that it is unnecessary for me to repeat them. I agree with the result that her Honour has reached. However, I consider I should make some remarks of my own.
158 So far as whether this appeal lies as of right or only by leave, it seems to me that no matter what the dividing line is between decisions to the effect that there should be a permanent stay because of res judicata or the like on the one hand (where appeals may lie as of right), and summary dismissals on other grounds (where appeals only lie with leave), in this case there is not the material to show that $100,000 is at stake so that leave to appeal is required. However, I agree that leave should be granted.
159 I will assume that McColl JA is correct that Messrs Denoon and Smyth-Kirk are joint tortfeasors, though it would not matter for present purposes whether they were concurrent tortfeasors. It is clear that as a result of the settlement between the appellant and Mr Denoon, judgment was entered against Mr Denoon and that judgment has been satisfied.
160 Section 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 limits the damages to be awarded against Mr Smyth-Kirk, in the circumstances which have occurred, to those awarded against Mr Denoon.
161 Thus, no matter what damages Mr Bracks may otherwise have been awarded in his action against Mr Smyth-Kirk, judgment could not be entered for any amount greater than that already awarded against Mr Denoon. As that judgment has been satisfied, the equity against double satisfaction would apply to prevent any actual recovery of monies against Mr Smyth-Kirk.
162 It should be noted that the case before the primary judge was argued on the basis that if no additional sum could be recoverable by Mr Bracks from Mr Denoon, then there was an abuse of process and the proceedings should be dismissed.
163 Accordingly, there is no room in the instant case for resort to some fallback position such as a declaration that Mr Smyth-Kirk defamed Mr Bracks.
164 The question then is, whether the primary judge was correct in dismissing the proceedings.
165 The law is that s 5(1)(b) of the statute does not bar proceedings, but merely limits recoverability of damages in the second action against another joint or concurrent tortfeasor (Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635 at 651 [29]). Further, under s 7(2) of the Defamation Act 2005, "the publication of defamatory matter of any kind is actionable without proof of special damage". Thus, declaratory proceedings are possible.
166 McColl JA has been kind enough to quote from my book on Declaratory Orders 2nd ed (Butterworths, 1984) at [1712] that a declaration may be made that a defendant has been defamed. It must be stated, however, that as far as I am aware, there is no Australian or English reported case in which this has happened.
167 The reason for this may be, as Patrick George says in Defamation Law in Australia (Butterworths, 2006) at 415, that there is no incentive for bringing an action for a declaration: the action in damages is the simplest and most direct procedure. The law reformers have, from time to time, flirted with the idea of allowing people to obtain declarations of falsity, but as far as I am aware, no legislature has ever taken up that suggestion, presumably because of the complications involved.
168 A declaration of defamation may well lie, as I have suggested in the paragraph referred to in my book, in the case of members of an unincorporated association wishing to vindicate the association's reputation. However, outside this field, it is difficult to see when a court might be inclined in its discretion to grant a declaration that the plaintiff has been defamed.
169 Section 24 of the New Zealand Defamation Act 1992, specifically empowers the court to grant a declaration that the plaintiff has been defamed.
170 However, in connection with that section, Elias J, as her Honour then was, said in Lange v Atkinson [1997] 2 NZLR 22 at 48 that it was quite unclear whether privilege and the like would be defences to applications for a declaration. Her Honour remarked:
"If the defendant is protected against liability for damages, a balance in keeping with the pragmatic approach of the common law may be that the defence does not apply to a claim for declaration."
171 However, it may also be that a court in its discretion may consider that it is inappropriate to grant a declaration of defamation in a case where, had the ordinary course been followed of an action for damages, there would have been a verdict for the defendant or at least no verdict for the plaintiff because of defences in protection of freedom of speech which apply in actions for damages.
172 Accordingly, the parties were wise not to consider such a bold move of making a back-up claim for declaration in the light of possible problems in a relatively small case.
173 It follows that, in my view, the appeal must be dismissed with costs.
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